Brown v Department of Fair Trading

The licensing regime

1. In Larter v Commissioner for Fair Trading; Commissioner of Police, New South Wales Police Force [2019] NSWCATAD 81 (Larter) at [5]-[8], Professor Walker SM summarised the legislation as follows:
2. The legislative scheme under the TP Act is discussed in more detail below. At this point it is necessary to note only that s 7(1) of the TP Act creates an offence of an individual performing any body art tattooing procedure for fee or reward unless authorized to do so by a tattooist licence. Section 9(1)(b) provides for the granting of tattooist operator licences and tattooist licences to persons, which authorize the licensee to "perform body art tattooing procedures in accordance with this Act and the conditions of the licence": s 9(3). The provisions in part 2 of the Act requiring the holding of licences came into operation on 1 October 2013.
3. When the first respondent's chief executive receives an application for a licence, he or she is required to refer it to the Commissioner of Police for an investigation and determination as to whether the applicant is a fit and proper person to be granted the licence, or whether it would be contrary to the public interest for the licence to be granted, or both: s 14(b)(i).
4. Section 16(1) confers on the chief executive a general power to deal with licence applications and to grant or refuse a licence. That general discretion is limited by s 16(3), which provides that "The Chief Executive must not grant a licence if: ... (c) an adverse security determination has been made by the Commissioner about the applicant.
5. Under s 27(1)(a) of the TP Act, a person whose application for a licence has been refused may apply to this tribunal for administrative review under the Administrative Decisions Review Act 1997 (ADR Act). Section 27(3) deals with the nature of the tribunal's function. It provides as follows: (3) If an application for a licence or for the renewal of a licence was refused or a licence was suspended or cancelled by the Secretary on the ground of an adverse security determination made by the Commissioner about the applicant for the administrative review or a close associate of the applicant: (a) the Commissioner (as well as the Secretary) is to be a party to any proceedings in the Civil and Administrative Tribunal for an administrative review of the decision of the Secretary, and (b) the Tribunal is to be provided with a copy of the report of the Commissioner's determination, and (c) the Tribunal is not prevented from determining whether the Secretary made the correct and preferable decision regarding the application or the licence concerned merely because of the determination of the Commissioner. ...
6. Similar provisions apply in relation to an application for an operator licence. See for example, the discussion in Collins v Department of Fair Trading [2019] NSWCATOD 36 from [4].
7. In summary, from November 2013 the Act introduced licensing requirements for operators of tattoo parlours and tattooists. A person may apply to Fair Trading for an operator licence pursuant to s 11 of the Act. Sections 12-13 of the Act provide for an application to be accompanied by a written statement in respect of close associates of applicants and for the fingerprinting and palm printing of applicants.
8. Pursuant to s 14(b) of the Act, upon receiving an application for a licence, Fair Trading is to refer the application to the Commissioner, for investigation and determination as to whether the applicant is a fit and proper person to be granted the licence, and whether it would be contrary to the public interest for the licence to be granted. Section 19 provides that the Commissioner is to inquire into, determine, and report to Fair Trading on those issues. A licence must not be granted if the Commissioner makes an ASD in relation to an applicant: s 16(3)(c) of the Act. However, on review, the Tribunal is not bound by the ASD: s 27(3)(c).
9. As the Senior Member observed in Larter the Act is directed at keeping gang crime out of the tattoo parlour industry and also at eliminating general criminal activity, including violence. One means of achieving that goal is to require applicants to disclose their 'close associates', the definition of which, includes a lessor: s 4(4)(c) of the Act. I observe that an application form for an operator licence contains multiple references to 'close associate' and an applicant is required to certify that they are aware of the definition of the term as defined by the Act.
10. The Tribunal has jurisdiction to hear and determine the present application by reason of s 27(1)(a) of the Act. Under s 63 of the Administrative Decisions Review Act 1997, the Tribunal's role is to determine whether, having regard to the underlying facts in the matter and the applicable law, Fair Trading's decision is the correct and preferable one. The Tribunal must make a fresh determination, on the basis of the information before it, whether the Applicant is a fit and proper person to be granted the licence and whether it would be contrary to the public interest for the licence to be granted: Austin v Commissioner for Fair Trading & Commissioner of Police [2016] NSWCATAP 179 at [37].
11. In Larter the Senior Member also helpfully discussed the concepts of fitness and propriety and the public interest. In regard to the phrase "fit and proper person" he stated at [60] - [62]: Whether a fit and proper person
12. The meaning of the phrase "fit and proper person" in the licensing context has been the subject of a well-known line of cases dating back at least to Hughes and Vale Pty Ltd v New South Wales (No.2) [1955] HCA 28; (1955) 93 CLR 127. The principles laid down in those cases were distilled by the tribunal's Appeal Panel in Austin v Commissioner of Fair Trading and Commissioner of Police [2016] NSWCATAP 179, following Montgomery SM's reasons at first instance, as follows: (1) The very purpose of the words "fit and proper" is to give the widest scope for judgment and for rejection on that ground. (2) "Fit" with respect to an office is said to involve honesty, knowledge and ability. (3) The expression "fit and proper" person, standing alone, carries no precise meaning. It takes its meaning from its context, from the activities in which the person is or will be engaged in and the ends to be served by those activities. (4) Depending on the nature of the activities, the question may be whether improper conduct has occurred, whether it is likely to occur, whether it can be assumed it will not occur, or whether the general community will have confidence that it will not occur. (5) In certain contexts, character (because it provides indication of likely future conduct) may be sufficient to ground a finding that person is not fit and proper to undertake the activities in question. (6) The expression meant that an applicant needed to show not only that he has the requisite knowledge of the duties and responsibilities of the holder of the particular licence but also that he is possessed of sufficient moral integrity and rectitude to be accredited to the public as a person to be entrusted with the work the subject of the licence.
13. The Appeal Panel has pointed out that public interest considerations play a role in the assessment of fitness and propriety: Director-General, Transport New South Wales v AIC (GD) [2011] NSWADTAP 65, [37].
14. While there is a definite focus in the legislation and its administration on the involvement of OMCGs in the industry, that is not to the exclusion of other concerns about criminality: "[T]he broader intention [of the TP Act] is to rid the industry of any criminal or otherwise undesirable element and the avoidance of improper conduct": Smith, [2014] NSWCATAD 184, [20]. The point was specifically made in Wright v Commissioner for Fair Trading [2017] NSWCATAD 98, [118]: ".. Gang crime is not the only consideration of the Act, however. The Tattoo Parlours Act 2012 is directed at keeping gang crime out of the tattoo parlour industry and also at eliminating general criminal activity, including violence. …
15. In regard to the phrase "public interest" the Senior Member stated at [103]-[111]: The public interest
16. The phrase "public interest" is not defined in the TP Act or the regulations. In O'Sullivan v Farrer [1989] HCA 61; (1989) 168 CLR 210, [13], the High Court held that the "public interest" imported a discretionary value judgment to be made by reference to undefined factual matters, confined only in so far as the subject matter and the scope and purpose of the legislation might require. In Commissioner of Police v Toleafoa [1999] NSWADTAP 9, [25], the Appeal Panel described the public interest ground in the relevant Act in the following terms: [A]n inherently broad concept giving the [Commissioner] the ability to have regard to a wide variety of factors in choosing whether to exercise a discretion adversely to an individual. As the possibility of refusing an application on the ground of character is dealt with elsewhere in the same section, it is reasonable to infer that the Parliament intended that the public interest discretion operate in areas to which the character ground was not relevant or, possibly, in circumstances where an objection on character grounds would not be sufficient in its own right to warrant refusal.
17. The concept does include standards acknowledged to be for "the good order of society and for the well-being of its members": Director of Public Prosecutions v Smith [1991] VicRp 6; [1991] Vic Rep 6; (1991) 1 VR 63. In Comalco Aluminium (Bell Bay) Ltd v O'Connor (1995) 131 ALR 657, 681, the High Court said: The purpose of the reference to public interest is to ensure that private interests are not the only matters taken into account: to make clear that the interests of the whole community are matters for the Commissioner's consideration. The effect of the reference is to amplify the "scope and purpose" of the legislation.
18. The issue of public interest allows for matters going beyond the applicant's character to be taken into account. They include public protection, public safety and public confidence in the administration of the licensing system: Constantin v Commissioner of Police, New South Wales Police Force [2013] NSWADTAP 16, [33].
19. Legislation such as the TP Act serves the public interest in ways that go beyond guarding against misconduct by an individual licensee. Licence refusals and similar orders serve the public interest by establishing a regulatory structure for an industry that not only protects the public from harm, but also helps to preserve public confidence in that industry and its members by signalling that those whose activities or facilities do not meet the required standards will not be permitted to operate in the industry: Health Care Complaints Commission v Do [2014] NSWCA 307, [34] - [39]; Moujalli v Roads and Maritime Services [2017] NSWCATAD 141, [52] - [53].
20. That objective must implicitly be one of the purposes of this legislative scheme and is relevant to the interpretation of its provisions. As the tribunal pointed out in Naziry v Director-General, Ministry of Transport [2004] NSWADT 40 in the context of taxicab licensing, decision-makers must as far as possible place themselves in the position of a member of the public who might use the applicant's services and ask whether that member of the public, knowing of the applicant's record, would object to the applicant as the driver of the taxi.
21. A finding that an applicant is not of fit and proper character to hold the type of licence in question would normally also necessarily mean that it would be contrary to the public interest to allow the person to hold the licence: Stiles v Commissioner of Fair Trading [2017] NSWCATAP 44, [34]. … The question therefore becomes whether there are other public interest grounds justifying refusal.
22. The legislation's main object is to rid the tattoo industry of OMCG influence and infiltration by other criminal elements. …
23. It is settled law that an applicant's private interests, such as in obtaining access to a reliable income stream, receive no weight in a consideration of the public interest or fitness and propriety: Austin v Commissioner of Police, New South Wales Police Force [2016] NSWCATAP 179, [72] - [73]; Butler v Commissioner for Fair Trading [2017] NSWCATAD 138, [114]. Nevertheless, matters directly affecting the individual can have a wider public interest relevance. In Wright at [121], [127], Scahill SM accepted that an applicant's working as a tattooist could be a significant aspect of his ongoing rehabilitation and a relevant public interest factor (see also Butler, [117], [122]).There is also a public benefit in a person being able to engage in gainful business or employment rather than being kept by the taxpayer: (id. at [127]; see also Allen v Commissioner for Fair Trading [2015] NSWCATAD 273, [70]).
24. There is thus a public interest in assisting the rehabilitation of persons who have fallen foul of the criminal law, so far as is possible without endangering public health, safety, security or public confidence in the regulatory scheme. …
25. The issues in this case are therefore whether the Applicant is a fit and proper person to be granted the licence and whether it would be contrary to the public interest for the licence to be granted.

The material before the Tribunal

1. The Applicant made detailed statements/submissions in addition to those attached to his Application for Review. He also gave evidence at the hearing. The Applicant also provided a large number of references. Of those, Tony Dunn, CEO of Hawkesbury Community Help Services Inc, and Mike Oseguera, were required for cross-examination. In addition to the documents filed under s 58 of the Administrative Decisions Review Act 1997, the Respondents relied on the ASD, which included an expert report by a Senior Intelligence Analyst in relation to OMCGs.
2. Having regard to the evidence given by the Applicant in respect of his operation of Majestic Custom Tattoo while not holding an operator's licence (discussed below) I decided to issue a certificate under s 128 of the Evidence Act 1995.

Respondents' case

1. In summary, the Respondents contended that the Applicant is not a fit and proper person to be granted an operator's licence and that it would be contrary to the public interest for the licence to be granted. The Respondents contended that the Applicant is a close associate of a member of the Outcasts, and had operated a tattoo parlour without a licence. Attention was also invited to his criminal and traffic history.

CONSIDERATION

1. There was little dispute about the facts. The Applicant has been involved in the tattoo industry since about mid 2008 when he commenced as an apprentice tattooist on the Gold Coast. The Applicant was a sole trader, and held the same ABN since October 2008, initially trading under the name "addicted to ink". In about December 2008 he accepted a job offer to work in a tattoo parlour in Richmond, and relocated from the Gold Coast to Sydney to take up the job. He worked at that tattoo parlour and in early 2011 he contacted a friend who was working at War Paint, a tattoo parlour in St Marys, which was owned by Mark Randall. The Applicant was offered a job at War Paint but said he was subcontracted to War Paint, effectively running his own business and renting space while 'flying under the War Paint banner'.
2. The Applicant said in his evidence that, a couple of weeks after he commenced working at War Paint, he became aware that Mr Randall was a member of the Outcasts when he saw Mr Randall wearing colours on the way to a club meeting after work. The Applicant said that to his knowledge no other members of staff were members of the Outcasts. The Applicant said he did not associate with Mr Randall socially and never saw anyone else at the shop wearing colours; although he occasionally saw other people wearing colours. When asked what he thought about Mr Randall's membership of the Outcasts, the Applicant said that he knew of the Outcasts from when he was at high school in 1998 when there was something of a shoot out nearby. He had heard nothing of them in the intervening period - 13 years. He agreed that the Act had been needed to manage bikie involvement in the industry, and was very supportive of the introduction of the Act. He had studied fine arts at TAFE and just wanted to practice his art, away from the OMCG stigma associated with the industry.
3. With the advent of the Act, on 17 August 2013 the Applicant applied for a tattoo artist licence which was ultimately granted in mid-2016.
4. In 2014 the Applicant was directed, presumably by Mr Randall, to work at War Paint's other premises, owned by Mr Randall, in Penrith (the Penrith Premises) from the next day. All the previous staff at the Penrith Premises were sacked and the Applicant and others replaced them. The St Mary's premises were closed.
5. The Applicant and his then personal and business partner, a Ms Sultana, decided they would like to establish a tattoo studio under a new name and ABN operating out of the Penrith Premises, effectively taking over Mr Randall's business. In late 2015 Ms Sultana made an application for an operator licence, which was granted in about July 2016.
6. On or about 2 December 2015 the Applicant entered into a lease with Mr Randall for the Penrith Premises. The lease was for an initial period of three years, commencing 1 November 2015, with an option to renew for a further three years, for a weekly rental of $800 and payment of 100% of the outgoings on the premises (rates, charges, land tax and strata levies, etc). There was considerable delay and Mr Randall blamed the solicitor who, incidentally, notwithstanding that he acted for Mr Randall, advised Ms Sultana, the Applicant said, against entering the lease. The Applicant had no independent legal advice and said he was unaware he would be responsible for strata levies and other outgoings. He said he did not pay anything until he took over the business, and only paid rent to the real estate agent and never to Mr Randall.
7. There were protracted negotiations about the purchase of the business. The Applicant said he thought Mr Randall was 'quite blasé' about the sale. One of Mr Randall's children participated in the negotiations once, but no one else, and certainly no one from the Outcasts. Some time in 2016 the Applicant finally reached agreement with Mr Randall that he would buy the plant, equipment and goodwill of War Paint for an agreed sum. Nothing was documented. He sourced the funds for purchase of the business through a loan from the ANZ Bank, which was evidenced before me. After the purchase of the business from Mr Randall, the Applicant renamed the tattoo parlor "Majestic Custom Tattoo", although it took a few months to be able to afford new signage. He employed two tattoo artists who were former employees of War Paint. He said he was operating on Mr Randall's licence until Ms Sultana's application was approved. This also was undertaken without legal advice.
8. In about April 2016 Mr Randall sold the Penrith Premises to Stanwell Property Investments (SPI), a company the Applicant understands is owned by Mr Randall's former accountant. The sale, he understood, nearly did not proceed because the lease arrangements were taking so long. If there was no lease in place, he understood, SPI did not want to purchase the Penrith Premises.
9. The Applicant has continued to lease the Penrith Premises from SPI since that time, presumably under the terms of the lease entered into with Mr Randall. The lease with SPI does not appear to have been renewed and, according to the Applicant, will not be renewed until outstanding rental arrears are paid. There was no contention on behalf of the Respondents that SPI was not the beneficial owner of the Penrith Premises, and there was no evidence that SPI had otherwise come to Police attention.
10. In his submissions annexed to his Application for Review, the Applicant asserted that he purchased the tattoo parlour business from Mr Randall "roughly five years previous to any licensing laws", but this is clearly incorrect, as the Act commenced in 2013. The Applicant states that his "dealings" with Mr Randall ceased in the "months of June 2016 after the transaction of the equipment and goodwill" and said there has been "no contact for at least 2 years to Mr Randall on my behalf!".
11. However, the Applicant said that two years after he had purchased the business from Mr Randall, in about May or June 2018, he was approached by Mr Randall who claimed the Applicant owed him money. In his October Submissions, the Applicant said that when Mr Randall approached him demanding the payment of money, Mr Randall pressed his chest to the Applicant's and threatened "trouble". The Applicant immediately reported the matter to Police and a copy of the Police event record for the Applicant's report to the Police dated 17 June 2018 was before me. He was recorded as having told Police that on 2 June 2018 at 10.15am Mr Randall approached him in the car park behind the business premises and said to him, "I'm here for my money. You agreed to pay me, I want my money". The Applicant disputed that he owed Mr Randall any money. Mr Randall reportedly threatened the Applicant, saying: "If you don't have anything, you won't have anything. I will fucking wreck you. July it all starts. You have to pay me or I will have to fucking wreck you. I don't care what you must do, just sort it out and I know everything about you. If I catch you bagging me out, your (sic: you're) fucking gone". The Applicant informed Police that when he had purchased the business Mr Randall directed him to pay about two-thirds of the proceeds of sale to Mr Randall's son and the balance to Mr Randall's business partner, Jane Randall. In September 2016, by which time the premises had been sold by Mr Randall to SPI, the Applicant had received a bill for strata fees which he disputed with the real estate agent. He told Police that he had not read the lease. The Applicant said in his evidence that in June 2018 Mr Randall had sought a percentage of the business' takings but the Applicant had refused, and it was never mentioned again.
12. On 16 November 2018, while the Applicant was at home, Mr Randall reportedly attended Majestic Custom Tattoo with another man, and spoke with the Applicant's employee, Mr Scott. They left when Mr Scott explained that the Applicant was not there. The Applicant called Mr Randall and asked him why he attended his business premises to which Mr Randall allegedly responded: "I want my money and making sure you have it sorted out". The Applicant informed Mr Randall there was no money owing to which Mr Randall allegedly responded: "No you owe me and if you don't things are going to get nasty, that's not a threat, it's a warning". When the Applicant and Mr Scott reported the matter to Police, the Applicant informed Police that he was not overly fearful of Mr Randall as he is 'elderly' but that he believed that Mr Randall had "OMCG links" and that he did not want to be further harassed by Mr Randall about owing money. In his October Submissions, the Applicant said that when he telephoned Mr Randall after he had attended the Applicant's shop, he and Mr Randall discussed "the issue about strata levies", in response to which the Applicant said Mr Randall said "there is going to be trouble" and hung up.
13. The matter seems ultimately to have been resolved by the Police speaking with Mr Randall, though on Mr Randall's reported version of events it was his position that the balance of the purchase price was still owing but, curiously, he accepted that the Applicant would not pay him and he was prepared to accept the economic loss. In his October Submissions, the Applicant said that he has neither heard from nor associated with Mr Randall since the time he last spoke with Mr Randall on the telephone. The incident with Mr Randall was resolved on the basis that Mr Randall would not contact the Applicant again. The Applicant said he has not been contacted by Mr Randall since. He said his former association with Mr Randall keeps 'coming back to haunt him'.

Applicant's association with Mr Randall

1. A landlord of premises leased for the purposes of conducting a body art tattooing business is a "close associate" for the purposes of s 4(4)(c) of the Act and is a person whose identity was expressly required to be disclosed in any application for an operator licence.
2. The expert evidence referred to various anti-social activities of the Outcasts and adverse interactions with Police in 2016. I observe that the expert report contained multiple references to OMCGs generally, but little about the Outcasts.
3. Among the Respondents' continued concerns is the Applicant's history with Mr Randall. The expert evidence is that Mr Randall is a current Life Member of the Outcasts and has been a member of the Outcasts since at least 1978. Mr Randall was stopped by Police as recently as 29 February 2020 in Outcasts colours, at which time, Mr Randall informed Police that he was still an active Life Member of the Outcasts.
4. In 2006 Mr Randall's then newly-established tattoo parlour at the Penrith premises was the subject of a fire-bombing. The Respondents did not suggest that the Applicant was in any way involved or associated with this incident, and in any event, this was well before the Applicant had taken up his role at War Paint. I accept that this incident of the targeting of a tattoo parlour owned by a member of an OMCG exemplifies why Parliament has chosen to regulate the tattoo industry as it has done under the Act and Regulation, but it is unhelpful vis-à-vis the Applicant. Indeed, as the Applicant pointed out, much of the ASD related to OMCGs at large, and had nothing to do with him, and little to do, for that matter, with Mr Randall. In answer to my enquiry, I was informed by the Respondents' counsel that there is no evidence of Mr Randall's personal involvement in any illegal OMCG activities.
5. In any event, when the Applicant lodged his application for an operator's licence on 12 June 2019, the Applicant had no business relationship with Mr Randall at all - Mr Randall having sold the Penrith Premises to SPI in April 2016.
6. I therefore do not consider the Applicant's previous association with Mr Randall to be relevant to his application. I note in this regard too that the Applicant has previously sought Police intervention in distancing himself from Mr Randall. I also note the Applicant gave evidence, which I accept of his strong support for the Act, and the need to eradicate OMCG influence from the industry.

Applicant's failure to disclose lessor

1. It was submitted on the Respondents' behalf that it is significant that a landlord of premises leased for the purposes of conducting a body art tattooing business is a "close associate" for the purposes of s 4(4)(c) of the Act and is a person whose identity was expressly required to be disclosed in any application for an operator licence. It was submitted that it is unsatisfactory that the Applicant failed to accurately disclose the identity of his landlord (a close associate) at the time he made his application for an operator licence. If referring to Mr Randall, the submission is flawed, in that, by the time the Applicant applied for the operator licence the owner of the Penrith Premises was no longer Mr Randall but SPI.
2. In his application the Applicant indicated that there was no manager of the business, that he was the sole employee, identifying only himself as a close associate and nominating the owner of the premises as the real estate agent who managed the property that he leased. In identifying the owner of the premises as the real estate agent, the application was inaccurate and potentially misleading as to the owner of the property. At the hearing the Applicant said he only ever communicated through the real estate agent. He said that he did not read the definition of close associate; it did not occur to him to get legal advice.
3. When, on 16 April 2020 the Applicant was issued a notice under ss 15 and 19 of the Act directing him to provide a copy of the lease of the Penrith premises, the Applicant provided a copy of the lease as well as an email from the real estate agent confirming that he leased the premises. The lease named Mr Randall as landlord and no further documentation was provided to suggest that the property had been sold and that Mr Randall was no longer the landlord. I consider the Applicant has adequately explained that no new lease will be entered into until arrears are paid. I reject the Respondents' contention that, having responded as he did, he continued to fail to disclose the identity of his current landlord and therefore had failed to disclose the identity of a "close associate". The Applicant said he just sent on the material the real estate agent sent him. I accept that in naming the real estate agent the Applicant was careless in his completion of the application.

Applicant's trading without an operator licence

1. The Applicant said he had operated at first "under Mr Randall's licence" until Ms Sultana's licence was issued. By April 2016 Mr Randall had no role in the business whatsoever. Ms Sultana's role was to help him with the business plan and to attend to the paperwork and manage the pay, while he, essentially, managed the shop.
2. In his October Submissions, the Applicant said that on 21 December 2016 he and Ms Sultana broke up and that he was very distressed. In his evidence he said that the finances of the business were still in joint names - they had a joint account to which they were both signatories. They agreed to split the ongoing profits 50/50, her contribution to the business being the operator licence. He said a fresh application in his own name would have cost about $3000, and Ms Sultana was prepared to have him operate under her licence until he applied for his own when hers expired.
3. It would appear that the Applicant continued to conduct the tattoo business from the Penrith Premises while Ms Sultana's operator licence remained current. The Applicant does not address in his submissions or elsewhere in his evidence whether Ms Sultana continued after the break-up of their personal relationship to have any involvement or interest in the business. There is no material before me one way or the other as to whether Ms Sultana had any involvement in the conduct of the business after the break-up, other than, according to the Applicant, for a 50% share of the profits, allowing the Applicant to rely on her operator licence. If Ms Sultana was no longer "operating" the business, she was obliged to notify Fair Trading under s 22(1) of the Act but apparently did not do so. If Ms Sultana was no longer operating the business, and the Applicant was aware of that fact, then the Applicant was in breach of s 6(1) of the Act from the time Ms Sultana ceased operating the business as he was carrying out a body art tattooing business in circumstances where he was not authorised to do so by an operator licence. In other words, the Applicant was carrying on the business unlicensed for a period 3 years and 9 months. However, as I have already observed, there is no material before me one way or the other as to whether Ms Sultana had any involvement in the conduct of the business after the break-up.
4. The Applicant said that Ms Sultana's operator licence was due to expire in July 2019 and that on 6 June 2019 he submitted an application for an operator licence in his own name. He said he understood that he could continue operating while his licence application was processed; in fact he was mistaken.
5. The material contained in the ASD Documents demonstrates that the Applicant continued to trade under the name "Majestic Custom Tattoo" carrying out a body art tattooing business after the expiration of Ms Sultana's operator licence, in contravention of s 6 of the Act. For a period of at least 15 months (i.e. from the date Ms Sultana's operator licence expired to the date the Applicant received notice of the decision to refuse him an operator licence (on which date the Applicant said he ceased trading), the Applicant admits he engaged in the provision of body art tattooing procedures for reward and in doing so, contravened the Act. The Applicant could not continue to operate the business using Ms Sultana's operator licence if Ms Sultana was no longer operating the business. To put this in context, however, the Applicant applied for his operator's licence one month prior to Ms Sultana's operator licence was due to expire. The business was ongoing but it took Fair Trading 15 months to consider his application.
6. The Respondents considered it is noteworthy that the Applicant made an application for an operator licence one month prior to the expiration of Ms Sultana's licence as demonstrating that the Applicant was aware of the requirement to have a current operator licence. I do not draw any adverse conclusion from this, instead, observe that the Applicant was endeavouring to ensure compliance by applying for his own licence before the expiration of Ms Sultana's.
7. A breach of the Act of this kind may be sufficient to warrant refusal by the Tribunal of the Applicant's operator licence. The Respondent referred me to Do v Commissioner for Fair Trading [2020] NSWCATOD 101 (Do), in which the Tribunal refused to grant a tattooist licence in circumstances where the applicant had been engaged for a period of three years in tattooing for reward without a tattooist licence. In Do, the Tribunal was satisfied that Mr Do's contraventions of the Act were sufficient grounds to refuse him a tattooist licence, the Tribunal finding that that conduct both adversely affected the Applicant's fitness to hold a licence and suggested that it would not be in the public interest for him to be granted a tattooist licence. I observe however, that in that case the applicant knowingly engaged in tattoo artist activities after refusal of his licence. I think the circumstances of that case to be very different from the present matter.
8. The Applicant also addressed his operating the business without a current operator's licence in the submissions in support of his Application for Review. The Applicant said there that, as at July 2017, he had recently broken up with Ms Sultana. The Applicant said that in June 2018 he became a first-time father to a daughter and a stepfather to two boys, aged 3 and 5 years. He said that as a result of these changes in his personal life his "focus" on the industry and legislative requirements "lapsed quite considerably" and his involvement in the PTAA (Professional Tattoo Association of Australia) took a "back seat" to his new focus on his young family.
9. The Applicant said, and I accept, that when he received the decision refusing him an operator licence he ceased trading immediately. However, it remains that that he operated without a licence for a period of 15 months. The Applicant also said that after he lodged his application for an operator licence, in November 2019, he was spoken to by Police, in relation to an allegation concerning a Mr Honeyman who claimed part ownership of the business. Police apparently investigated Mr Honeyman's claim and, when informing the Applicant that the matter had been positively resolved, told him there was an "issue" with the Applicant's licence. The Applicant said he was specifically told that he would not be shut down or fined and, so long as he maintained his log book and paperwork, he could continue to operate until his licence was approved. The Applicant heard nothing more about his licence from Police until his application was refused in August 2020. The Respondents submitted that nothing turns on what a particular attending Police officer did or did not do in relation to the matter of the Applicant's operator licence as it is the Applicant who is solely responsible for ensuring that he, and any business he might wish to operate, complies with the Act. I have concerns that notwithstanding, at the time it was apparent to the attending Police that the Applicant was operating without a licence, no steps were taken to close the Applicant's business.

Applicant's criminal record and traffic record

1. The Respondents referred to the Applicant's Criminal Record and Traffic Record. On 21 February 2008 the Applicant was fined $500 and disqualified from driving for a period of six months for driving with middle range concentration of alcohol. On that same date the Applicant was fined for negligent driving and not giving particulars after a crash.
2. On 14 May 2017 the Applicant was charged with possession of a prohibited drug under s 10(1) of the Drug Misuse and Trafficking Act 1985 (NSW) (possession offence) and with drive vehicle with illicit drug present in blood (first offence) under s 111(1)(A) of the Road Transport Act 2013 (NSW) (DUI - illicit substance offence. In his October Submissions, the Applicant explained that on 13 May 2017 he attended his nephew's engagement party and had cocaine. In the early hours of 14 May 2017, on his way home from the party, he was pulled over by Police for random testing. He volunteered that he had taken illicit substances, and tested positive for Cannabis and Methyl-Amphetamine. The Applicant admitted to Police that he believed he had cannabis on him but when a search was conducted by Police a white powder was discovered, which the Applicant identified as cocaine he had received in payment from a friend at a party and which he intended to get rid of later. In his evidence he denied saying that and said he had no intention to sell the cocoaine. He also said that it was in fact a gift. On 31 July 2017 both charges were found proved but without proceeding to conviction, the Applicant was discharged on condition that he enter into a good behaviour bond for a period of 18 months (which expired on 31 January 2019), pursuant to s 10(1)(b) of the Crimes (Sentencing Procedure) Act 1999.
3. In his submissions in support of his Application for Review, the Applicant said that there was context for the offences, namely the recent break up of his long-term relationship with Ms Sultana. In his October Submissions, the Applicant says that he and Ms Sultana broke up on 21 December 2016, that is a few months before the offence. At the hearing the Applicant said that he had not used cocaine before this occasion, or since, although he had occasionally used cannabis before this occasion.
4. By reason of the possession offence having been found proved, the Applicant would be disqualified from holding a licence under legislation administered by the Minister for Justice and Police, such as a Commercial Agents and Private Inquiry licence, a security licence, a firearms licence and a weapons permit: This is an additional discretionary ground on which the decision to refuse to grant the licence should be affirmed: s 16(5) of the Act and 13(1)(c) of the Regulation.
5. Aside from the DUI - illicit substance offence and the PCA offence, however, the Applicant has no other convictions for drug-related offences of any kind.
6. The Applicant is currently 38 years of age. He has held an unrestricted driving licence since December 2000. Between June 2010 to January 2018 the Applicant has been fined on seven occasions for exceeding the speed limit by more than 10 km/hour and one of those occasions (October 2017) the fine was for exceeding the speed limit by more than 30km/hour but less than 45km/hour.
7. The Applicant did not address his history of disobedience of the road rules, in particular in regard to the observation of speed limits. The Respondents acknowledged that the Applicant's last speeding fine was incurred in January 2018, prior to the birth of his daughter.

Applicant's references

1. The Applicant supplied a large number of references from clients of his business. The Applicant's clients variously attest to the Applicant's skill as a tattoo artist and a number refer to the cleanliness of the Applicant's studio and his passion, and there was no dispute as to his artistry and professionalism. Few, if any, of the references, however, disclose that the referees have any knowledge of the Applicant's criminal history, in particular the possession offence. These are matters relevant to the weight to be given to the references. The Respondents noted that most references do not mention the Applicant's 'connection' with Mr Randall, but for the reasons discussed above, I do not consider that omission to be of relevance.
2. In addition to the client references, the Applicant relied on a number of character references including one from Tony Dunn, CEO of Hawkesbury Community Help Services Inc and one from Mike Oseguera, tattoo artist. Each of Mr Dunn and Mr Oseguera refer, in effect, to the Applicant's prior dealings with Mr Randall in historical terms.
3. In cross-examination Mr Dunn explained that he had known the Applicant for about 20 years - from the time he had been referred to him as part of a rehabilitation program for young offenders. Whereas he considered the Applicant had been gullible in the past, he wrote of the Applicant's current maturity and desire to distance himself from bikie elements in the industry; he was aware the Applicant had purchased his tattoo parlour from a bikie. He said he regularly comes across the Applicant helping out disadvantaged young people in the community. He regarded him as a 'decent fellow' and 'had confidence in him'.
4. Mr Oseguera wrote that he had known the Applicant for 10 years. In his evidence he said he had worked with the Applicant who had trained him. He considered the Applicant to be an 'awesome' tattooist, and a 'good person'. He said he was aware of the sale of Mr Randall's business to the Applicant and observed that it had been an extremely stressful, year-long process for the Applicant.

Matters raised by the Applicant

1. The Applicant said that his only qualification is as a tattoo artist. In his October submissions, the Applicant addressed his current personal and financial circumstances. He said he is in a de facto relationship with the mother of his daughter, now aged 2, and that his partner also has two boys (aged 6 and 4 years). In the submissions attached to his Application for Review, the Applicant indicated that from about 2018 he, together with his partner and the three children, formed a young family and, for the first time, he took on family responsibilities. In his October submissions, the Applicant said that his partner is currently studying and they live in a rental property, and that he is responsible for meeting the household living expenses. The Applicant referred to the financial strain on the family since he ceased working in the business and the ongoing financial strain on the family should he not be able to work as a tattoo artist. He continues to be responsible for the rent of the Penrith Premises.
2. The Applicant said that he is a member of the New South Wales and Queensland Tattoo Artists Facebook page and keeps himself up to date in relation to legislative changes, including obligations in response to Covid-19. As to his personal life, the Applicant referred to using the services of a personal trainer to improve himself and his lifestyle. The Applicant also referred to making time for troubled youths in the area by doing a talk about the tattoo industry and making donations in the local community and providing support to a disabled youth.
3. The Applicant said that he maintains a tattoo log and has correct documentation for the premises kept up to date, as well as insurances, and I do not understand to be any dispute about this.

Fit and proper person

1. The expression 'fit and proper' is a common statutory term and has been considered by this Tribunal and in other jurisdictions in numerous cases and it is generally accepted that what is fit and proper needs to be determined by reference to the activities in issue and is to be gauged in light of the nature and purpose of the activities that the person will undertake: see AJO v Director-General of Transport [2012] NSWADT 101 at [26], Austin v Commissioner for Fair Trading & Commissioner of Police [2016] NSWCATAP 179 at [82].
2. In Smith v Commissioner of Police & Commissioner for Fair Trading [2014] NSWCATAD 184 at [19-20] in the context of the Act SM Montgomery observed: [19]...There is no "Principles and Objects" section within the Act. The Tribunal can look at Hansard and the Minister's speech to ascertain the purpose of the Act - the mischief that the statute was designed to cure. In his second reading speech on the introduction of the Bill to Parliament, the Minister for Police and Emergency Services Mr Gallacher noted that the Act was introduced in response to gang crime in NSW. It aims to break the stranglehold that outlaw motorcycle gangs have over the tattoo industry. It was anticipated that removing bikies from the tattoo industry will reduce the reasons for rival gangs to fight turf wars, because these businesses will no longer be symbols of a gang's territory... [20] While the second reading speech focused on the involvement of outlaw motorcycle gangs in the tattoo industry, it is clear from the Act that the broader intention is to rid the industry of any criminal or otherwise undesirable element and the avoidance of improper conduct.
3. The Respondent's primary position is that the Applicant is not a fit and proper person rested on his association with Mr Randall, a life member of the Outcasts. On the basis of the evidence there is no doubt that members of the Outcasts have been involved in criminal activity. It is also the case that OMCGs are generally regarded as being involved in organised crime. However, Mr Randall, while known to Police, has no criminal record as far as I can tell. Most relevantly, the Applicant does not associate with Mr Randall, and in my view, has done his best to eliminate all contact with him.
4. The Applicant does not have a substantial criminal record. There is no evidence that he has at any time been involved in drug distribution or other organised crime.
5. The Applicant made submissions about his financial concerns if he can no longer operate the tattoo parlour business. However, any financial hardship that will be occasioned by the decision is not relevant to the assessment of a person's fitness and propriety: Austin v Commissioner for Fair Trading & Commissioner of Police [2016] NSWCATAP 179 at [73]; Lal v Director-General, Department of Transport [2001] NSWADT 74 at [47].
6. After considering all the evidence, I am of the view that the Applicant is a fit and proper person to hold a tattoo parlour operator licence.

Public interest

1. In general, as discussed above, the concept of the public interest is designed to give the broader interests of the community priority over private interests of individuals. In Smith v Commissioner of Police & Commissioner for Fair Trading [2014] NSWCATAD 184 Montgomery SM set out a number of authorities in which the concept of the public interest has been considered (at [42-47]). In Roberts v Commissioner for Fair Trading [2016] NSWCATAD 218 Montgomery SM said, at [12] that the authorities referred to in Smith indicated that: (a) The 'public interest' is a term embracing matters, among others, of standards of human conduct and of the functioning government and government instrumentalities. The interest is therefore the interest of the public as distinct from the interest of an individual or individuals. (b) The 'public interest' is an inherently broad concept giving the appellant the ability to have regard to a wide range of factors in choosing whether to exercise a discretion adversely to an individual. (c) An applicant's personal interests in retaining his licence cannot outweigh the public interest in having full confidence in the professionalism of people involved in the security industry. (d) The "public interest" allows for issues going beyond the character of the applicant to be taken into account. These may include concerns in relation to public protection, public safety and public confidence in the administration of the licensing system.
2. The Senior Member went onto say: Public confidence in the scheme and regulatory requirements under the Act is a public interest consideration. In the Second Reading Speech, Mr Roberts stated that the public interest test under the Act "is designed to address the criminal matters currently surrounding the industry, such as ... personal violence". The scheme has as one its objectives the exclusion of persons with criminal tendencies from the tattooing industry, with a view to protecting public safety.
3. The Tribunal's task is to place itself in the position of a member of the public knowing the Applicant's associations and his record and to consider whether that person would object to him operating a tattoo parlour: Naziry v Director-General, Ministry of Transport [2004] NSWADT 40 at [55]. I do not consider a member of the public would have such an objection.
4. It is not possible to find that there is no risk to the public interest in the Applicant holding an operator licence. However, in the circumstances I am not satisfied that the risk is sufficiently high that it should prevent the Applicant from holding the licence.

Orders 1. The decision under review is set aside . 2. The decision is made that the tattoo operator licence is granted. I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 08 March 2023