Butler v Commissioner for Fair Trading

NCAT Administrative and Equal Opportunity|2017-03-15

The Applicant's case

The Applicant provided a personal statement dated 7 February 2017. The Applicant provided 19 references from other members of the community. These included his treating psychologist, the President of the Australian Tattooists Guild, clients and his former partner.
The Applicant provided a written statement, gave evidence and made oral submissions at the hearing.

Mr Butler's evidence before the Tribunal

The Applicant also gave evidence before the Tribunal and was cross examined. The Applicant told the Tribunal that when he had applied for his tattoo licence at Services New South Wales in July 2015, he was told that the number on his receipt was his interim license number. He thought that this entitled him to tattoo until his application was determined. Then on 27 September 2016, the police came to inspect the parlour in which he was working. He spoke with them about his application. He told them that he was waiting to hear about the outcome of his licence application. The police told him that they would follow up on his application for him. The police did not tell him that he should not tattoo while he waited for his licence application to be determined.
In February 2016, Mr Butler was convicted of driving a vehicle with an illicit substance in his blood in October 2015. Prior to this offence in October 2015, his most recent conviction in November 2007 had been for wilful destruction committed in September 2007. He said that he did have driving offences in the interim period, but no criminal offences. He does not have any outlaw motorcycle gang friends. He is an artist and a father of two - this is his identity.
Mr Butler referred to the references provided for him. He had undertaken a course at Centrecare to boost his skills as a parent - especially in crisis management. The reference from the President of the Australian Tattoo Guild was provided after he had told the vice president everything about himself - including his criminal background. He referred to the reference from his long-term psychologist Mr Hoviatdoost dated 9 February 2017. He knows everything about him; is a leader in dual diagnosis and has been treating him for a long time. Mary Alcorn had known him at his best and his worst times. She can speak to his transition. Amelia Callaghan oversees Headspace in Queensland and has known him for 19 years. She is also a confidante. Peter Mark had been his counsellor for 10 years, he has seen him in severe crisis and attested to the fact that he had seen a great improvement in him. His ex-partner Elizabeth Harward provided a reference. Linda Healey is the owner of Innocent Ink Tattoos, the tattoo parlour in which he has been working. He had been able to debrief with Scott Hastings a close friend after he was refused his licence and about the breakdown of his relationship. Margaret Pease is his best friend's mother and she thinks highly of him. He had told Carolyn Turner everything. Lili Scutts is a client. He had not necessarily told her all the details of his background, but she was aware that he has a criminal background. Kate Cross is a close family friend and knows all about him. Rebecca Kite is his sister and knows all about his criminal background. Peter Bennett is from a rival parlour - they know each other through the industry. Josh Kuhne used to work for him. Gene Casey is his mentor. Tom Denholme has been in the industry for 35 years and has worked with him at Innocent Ink Tattoos for the last year. Joshua Trenwith was his apprentice, but has now become his friend. He had relocated from Sydney to do an apprenticeship with Mr Butler.
He had started tattooing 5 years ago at Images of the Soul in Eagleby. He had learnt the trade working six days a week for no pay. He then moved to a Beaudesert studio for six months. Josh Kuhne offered him the opportunity to finish his apprenticeship in Helensvale. Then, for a while, he had concentrated on his therapy. In 2015 Linda Healey asked him to work in her parlour Innocent Ink. He worked there as a solo artist for seven days a week.

Receipt from Services NSW

He had thought that the number on his services New South Wales receipt was his interim license number. He had no idea that he was breaking the law. He agreed that the facts sheet shown to him which accompanies a tattoo licence application, makes it clear that it is unlawful to tattoo without a licence and that there is a penalty. He maintained that his receipt from Services New South Wales functioned as an interim license. He agreed that the fact sheet does not talk about interim licences

The Facebook posts

He acknowledged that he continued to advertise for work through the Facebook posts in December 2016 and January and February 2017. He had cancelled his tattooing engagements when he received the letter in December 2016, as he realised then that he was not able to tattoo. Even though he was not working as a tattoo artist, he did this to avoid losing clients. His employer would continue to book people in for a later time. Some of the photos of tattoo work that appeared on Facebook had been done some time previously, not on the day they were posted on Facebook. The photos were for advertising. He wasn't taking bookings during February 2017. When a potential client rang up they were told that Josh was not available but they could make a booking. He agreed that it was misrepresentation, perhaps - but not an offence. He had hoped that by the time these proceedings had finished he would have a licence. When he lodged his application for review he had realised that he was not able to tattoo until the review was dealt with.
After he received the letter refusing him his tattoo licence in December 2016 he borrowed money from his mother and his sister to support himself and his children. His weekly survival budget for himself and his children is $1000. There is no way he can get another job because of his criminal background.
He eventually had to make a choice and did do some tattoos in December 2016 and January and February 2017 to survive and support his children. He estimated that he had tattooed three times between December and February 2017, due to financial constraints. He felt he had no other recourse because of the financial constraints. He has not sought Centrelink benefits. His rent alone is $320 a week.
Mr Butler told the Tribunal that had previously had an interlock system to prevent him from drink-driving. He cannot afford it at present.
His most recent offence in October 2015 was his one relapse into substance use after breaking up with his partner. The offence occurred on the day he relapsed. He was stopped by the police while driving on that day.
He said he had not been trying to be underhanded and that he was not maliciously breaking the law when he tattooed after his licence refusal. He would be willing to undertake drug tests were he to be given a licence.
He had continued seeking assistance from his councillors. He had seen Mr Hoviatdoost, his psychologist fortnightly. He also goes to AA and NA and tries to average three meetings a week. He picks up other suffering alcoholics and tries to assist them.

Order under section 64(1) (c)of the Civil and Administrative Tribunal Act 2013

At the hearing the Respondent sought an order under section 64 (1) (c) of the Civil and Administrative Tribunal Act 2013 that there be no publication of evidence given before the Tribunal or matters contained in documents lodged with the Tribunal or received in evidence by the Tribunal about the fact that the police access social media to test compliance with the Tattoo Parlours Act 2012. The Tribunal granted this order, subject to further order. The Respondent undertook to research references to the use of social media as part of police investigation in previous tattoo parlour matters.
After the matter had been adjourned pending the Tribunal's decision, the Respondent wrote to the Tribunal informing the Tribunal that it no longer sought the order under section 64(1) (c). There had been previous references in NCAT decisions to the use of social media by police in investigating breaches. Accordingly, with the consent of the Applicant, the Tribunal determined to lift the order.

The Applicant's submissions

The Tribunal summarises the Applicant's submissions as follows. The Applicant acknowledged his criminal background. He was not involved in gang crime. He was not involved with outlaw motorcycle gangs. He had sought help for his substance abuse problems. The Applicant had never been charged with any offences in relation to the tattooing business.
He thought the Tribunal should consider him holistically. He had made a great effort to turn his life around. His referees attested to this. Without his tattooing career, he becomes nothing. He did not think it was in the public's best interests to have someone who was highly sought after as a tattooist, unable to work in that area. It was never his intention to be deceptive. Facebook allows him to have a body of work out there advertising himself. Tattooing is a way of providing for his children's security. He relies on his tattooing career spiritually and emotionally. His past criminality has been long paid for. Tattooing brings him back to a place of responsibility. He is willing to undertake any kind of screening if he were permitted his tattoo licence. The law is forward-looking and aimed at rehabilitation.

The Commissioner's Case

The case for the Respondents was presented by the Commissioner of Police. The Respondents relied on the contents of the section 58 documents and the evidence of Sergeant Ryan Coffey.

Affidavit of Ryan Coffey dated 6 March 2017

Mr Coffey is a Detective Sergeant, solicitor at the office of the general counsel NSW Police Force. He has responsibility in relation to the Commissioner exercising his functions under the Tattoo Parlours Act 2012. His affidavit set out his research on Facebook and Instagram in relation to Mr Butler's tattooing activities from December 2016 to February 2017. The Facebook posts on both the Innocent Ink Facebook page and Mr Butler's Facebook page were taken from the period of December 2016 through to February 2017. Mr Coffey said that they demonstrated that the Applicant had continued to work tattooing after he had been refused his licence. A 17 December 2016 post said: "I have the full day today available to tattoo due to a no-show on a full day booking and I also have all day Monday available."
A post on 16 January 2017 said "Josho did this little abstract elephant family today for a great young couple and their beautiful bub." A post in January referred to "tattoo deals I'm doing in February."
Some of the posts advertised Mr Butler as being available to do work during February. Others referred to "tattoos done by Josho today" and "Josho has some time available over the next few weeks, so don't miss out."

The Respondents' Submissions

The Respondents relied on the section 58 documents. The Respondents made both oral and lengthy written submissions. The Tribunal sets out the Respondent's written submissions as follows.
The Tribunal must assess whether an Applicant for a licence is fit and proper and whether it is in the public interest to grant the tattooist licence.

Fit and proper

The expression "fit and proper" is not defined in the TP Act or the TP Regulations. It is well established that, in considering the meaning of those words, the Tribunal will have regard to the context in which the words appear in the first instance: CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384, at 408; also, Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, [69].
Here, the relevant contextual matters include the following: A. The TP Act imposes requirements that would have the effect of eradicating criminal elements/links from the tattooing industry: see the Second Reading Speech to the Tattoo Parlours Bill 2012: Mr Anthony Roberts, Legislative Assembly, 3 May 2012. As the Tribunal stated in Smith ([49]), "[e]ntry to the industry is restricted by the licensing scheme in order to protect the public interest by diminishing the likelihood of criminal activity within the industry." See Smith v Commissioner of Police NSW Police Force & NSW Fair Trading [2014] NSWCATAD 184 B. There are strict prohibitions on carrying on a body art tattooing business without a tattooist licence. Parliament has provided for penalties to be imposed against persons who violate those prohibitions: s. 6 of the TP Act. C. An Applicant for a licence must consent to having his or her fingerprints and palm prints taken by police to confirm his or her identity: s. 13. D. There is a mandatory requirement for the Commissioner to assess an Applicant's fitness and propriety (s. 14). That determination is not subject to review; E. The First Respondent is precluded from granting a licence in the circumstance where the Commissioner makes an adverse security determination: s. 16(3).

Case authorities on fit and proper

In addition to these contextual matters, the Tribunal would have regard to the relevant authorities which provide guidance as to the meaning of the expression "fit and proper." These authorities were usefully summarised in more recently in Smith, [39]- [41] see Smith v Commissioner of Police NSW Police Force & NSW Fair Trading [2014] NSWCATAD 184, as follows.
A useful review of the authorities was provided in the case of AJO v Director-General Department of Transport [2012] NSWADT 101 at paragraphs [24] to [35]: Assessment of whether a person is fit and proper to be the holder of a licence is different from, but related to, an assessment of whether a person is of good character.
In Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321, Chief Justice Mason explained that, at 380: The question whether a person is fit and proper is one of value judgment. In that process, the seriousness or otherwise of particular conduct is a matter for evaluation by the decision maker. So too is the weight, if any, to be given to matters favouring the person whose fitness and propriety are under consideration.
Toohey and Gaudron JJ said at 380: 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 and the ends to be served by those activities. The concept of "fit and proper" cannot be entirely divorced from the conduct of the person who is or will be engaging in those activities. However, 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 that it will not occur, or whether the general community will have confidence that it will not occur. The list is not exhaustive but it does indicate that, in certain contexts, character (because it provides indication of likely future conduct) or reputation (because it provides indication of public perception as to likely future conduct) may be sufficient to ground a finding that a person is not fit and proper to undertake the activities in question.
A person's fitness is to be gauged in the light of the nature and purpose of the activities that the person will undertake. In Hughes and Vale Pty Ltd v New South Wales (No. 2) [1955] HCA 28; (1955) 93 CLR 127 the High Court said (at 156-7): The expression 'fit and proper' is of course familiar enough as traditional words when used with reference to offices and perhaps vocation. But their very purpose is to give the widest scope for judgment and indeed for rejection. 'Fit' (or 'idoneus') with respect to an office is said to involve three things, honesty, knowledge and ability ... When the question was whether a man was a fit and proper person to hold a licence for the sale of liquor it was considered that it ought not to be confined to an inquiry into his character and that it would be unwise to attempt any definition of the matters which may legitimately be inquired into; each case must depend upon its own circumstances. (emphasis added)
In Sobey v Commercial and Private Agents Board 20 SASR 70 Walters J said: In my opinion what is meant by that expression is that the Applicant must show not only that he is possessed of a requisite knowledge of the duties and responsibilities evolving upon him as the holder of a particular licence ... but also that he is possessed of sufficient moral integrity and rectitude of character as to permit him to be safely accredited to the public ... as a person to be entrusted with the sort of work which the licence entails, (emphasis added)
Fitness and propriety are flexible concepts. A consideration of whether a person is fit and proper involves an assessment of their knowledge, honesty and ability in the context of the role they are seeking to undertake. In Obradovic -v- Commissioner for Fair Trading, Office of Fair Trading (GD) [2006] NSWADTAP 18 the Appeal Panel agreed that a formerly licensed building contractor should have his application for a new licence refused, despite there being no evidence that he was dishonest or of bad repute. Evidence that he had been extremely tardy and intransigent in dealing with customer complaints, and the regulator, when he held a licence, was sufficient to conclude that he was not fit and proper for the role. In that case, the licensing scheme was among other things, designed to protect consumers and to provide them with adequate means of redress against licensed contractors. In Bond the assessment occurred in the context of whether the Applicant was a fit and proper person to hold a licence under the Broadcasting Act 1942 (Cth).
In Saadieh v Director General, Department of Transport [1999] NSWADT 68, Hennessey DP set out the factors to be considered in determining a person's suitability and fitness to obtain a taxi authority. They are: -.the nature, seriousness and frequency of any criminal offences for which the Applicant has been arrested or convicted; -. the Applicant's reputation in the community; and -. the likelihood that the Applicant will re-offend, be the subject of further complaints or commit further traffic offences.
In Director General, Transport NSW v AIC (GD) [2011] NSWADTAP 65 the Appeal Panel, at [37] the Appeal Panel drew attention to the role public interest considerations play in the assessment of fitness and propriety.
The courts have emphasised the connection that assessment of repute, fitness and propriety have in a regulated context with public interest considerations. Repute, fitness and propriety involve concepts that should not be 'narrowly construed or confined' and may extend to 'any aspect of fitness and propriety that is relevant to the public interest' (Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 (26 July 1990) at [64] per Mason CJ.
The comments of Kirby P in Pillai v Messiter [No.2], quoted above, are an example of this. The omitted comments of Kirby P are as follows: ... The public needs to be protected from delinquents and wrong-doers within professions. It also needs to be protected from seriously incompetent professional people who are ignorant of basic rules or indifferent as to rudimentary professional requirements. Such people should be removed from the register or from the relevant roll of practitioners, at least until they can demonstrate that their disqualifying imperfections have been removed ...] (emphasis added)
The discretion vested in a decision maker in determining whether a person is fit and proper, in any given context, was said by the Full Court of the Federal Court in Commissioner for ACT Revenue v Alphaone Pty Ltd (1994) 49 FCR 589 at 389, per Northrop, Miles and French JJ, to "give wide scope for judgement and allow broad bases for rejection."
As was made clear by Toohey and Gaudron JJ in Bond, issues of character and reputation may play a determinative role in deciding whether a person is fit and proper. Their Honours also clearly highlighted that there is a difference between the two. They explained that an assessment of character is relevant because it is an indicator of a person's likely future conduct when considering how a person might act in the context of the role they are seeking to undertake. Reputation on the other hand, provides an indication of the public perception of future conduct in that role. In Re T and the Director of Youth and Community Services [1980] 1 NSWLR 392, Waddell J explained, at 393: A distinction must be drawn between "repute" or "reputation" and "character" or "disposition". The word "character" is sometimes used as meaning a person's reputation, but "reputation" is not ordinarily used to mean character. The distinction has been referred to in many decisions of the courts.
In Melbourne v The Queen [1999] HCA 32; [1999] 198 CLR 1 at 15 McHugh J explained: ... character refers to the inherent moral qualities of a person or what the New Zealand Law Commission has called "disposition - which is something more intrinsic to the individual in question". It is to be contrasted with reputation, which refers to the public estimation or repute of a person, irrespective of the inherent moral qualities of that person.
In Ex Parte Tziniolis; Re Medical Practitioners Act (1966) 67 SR (NSW) 448 Walsh JA, at 450, said that in determining questions of character: ... the court is required to consider matters affecting the moral standards, attitudes and qualities of the Applicant and not merely to consider what is his general reputation.
That case was concerned with an application for registration of a medical practitioner. His Honour went onto explain that the Court was entitled to inquire into personal misconduct, as well as professional misconduct, in considering whether the Applicant was a man of good character: ... whilst recognizing that there may be some kinds of conduct deserving of disapproval which have little or no bearing on whether or not it shows the Applicant for registration as a medical practitioner is a person of good character. In this respect, I think, that some assistance can properly be obtained as to the mode of approach to be made from the observations made in cases where the question was whether or not a person was fit and proper to be a barrister, such as those in Ziems v Prothonotary of the Supreme Court of NSW [1957] HCA 46; (1957) 97 CLR 279.
Thus, as with fitness and propriety, assessment of character is to be made in the context of the nature and purpose of the activities that the person is seeking to undertake. In Director General, Department of Transport v Z (No.2) (GD) [2002] NSWADTAP 37 the Appeal Panel explained: 'Good repute' refers to the way reasonably-minded people assess an individual's current reputation, with reasonably precise knowledge of those matters that put the person's reputation in doubt. The fact that the person produces evidence from witnesses who vouch in general terms for the person's reputation cannot be conclusive. Equally, care must be taken, as we see it, not to use the 'good repute' requirement as a way of bringing into consideration stereotypes or assumptions which offend, for example, against human rights or antidiscrimination standards.
Fitness and propriety is a question of fact for the decision maker to determine objectively based on the all evidence.
In contrast to character, the Applicant's reputation is an estimate provided by others, such as by those who live in his neighbourhood, those who work with him, or those with whom he associates in his occupation. The Appeal Panel in Director General, Department of Transport v Z (No. 2) (GD) [2002] NSWADTAP 37 stated at paragraph [38]: 38 Good Repute: The approach to be adopted in considering 'good repute' is well explained by Waddell J in [Re T and Anor and the Director of Youth and Community Services [1980] 1 NSWLR 392]. The Appeal Panel also considers it in a forthcoming decision, Lo -v- Director-General, Department of Transport [2002] NSWADTAP 39.
'Good repute' refers to the way reasonably-minded people assess an individual's current reputation, with reasonably precise knowledge of those matters that put the person's reputation in doubt. The fact that the person produces evidence from witnesses who vouch in general terms for the person's reputation cannot be conclusive. Equally, care must be taken, as we see it, not to use the 'good repute' requirement as a way of bringing into consideration stereotypes or assumptions which offend, for example, against human rights or anti-discrimination standards.

Case Authorities on Public interest

The application of the expression "public interest" permits a general discretionary judgment that is unconfined except insofar as the subject matter, scope and purpose of the TP Act provides: O'Sullivan v Farrer (1989) 168 CLR 210, at 216; Water Conservation and Irrigation Commission (NSW) v Browning (1947) 74 CLR 492, at 505.
In Smith, see Smith v Commissioner of Police NSW Police Force & NSW Fair Trading [2014] NSWCATAD 184 the Tribunal set out a summary of the principles that govern the concept of "public interest" (at [42]- [47]): The Courts and the Tribunal have held that the concept of the 'public interest' is designed to give the broader interests of the community priority over private interests. In Comalco Aluminium (Bell Bay) Ltd v O'Connor and Others (1995) 131 ALR 657 at 681 the Wilcox CJ and Keely J 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. Discretion to make a decision "in the public interest" is not confined except by the scope and purpose of the legislation itself: O'Sullivan v Farrer [1989] HCA 61; (1989) 168 CLR 210 at 216 per Mason CJ, Brennan, Dawson Gaudron JJ. Applying a public interest test is a question of fact and degree: Re Queensland Electricity Commission and Ors; Ex Parte Electrical Trades Union of Australia (1987) 72 ALR 1 at 5.
In Director of Public Prosecutions v Smith [1991] VicRp 6; (1991) 1 VR 63 the Court held: The public interest is a term embracing matters, among others, of standards of human conduct and of the functioning of government and government instrumentalities tacitly accepted and acknowledged to be for the good order of society and for the well-being of its members. The interest is therefore the interest of the public as distinct from the interest of an individual or individuals.
In Commissioner of Police v Toleafoa [1999] NSWADTAP 9 at paragraph [25] the Tribunal's Appeal Panel said: 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.
The Tribunal has also found that an Applicant's personal interest in retaining his licence cannot outweigh the public interest in having full confidence in the professionalism of people involved in the security industry: Blissett v Commissioner of Police, New South Wales Police; Webb Protection Australia Ply Ltd v Commissioner of Police, New South Wales Police [2006] NSWADT 114 at paragraph [32].
In Constantin v Commissioner of Police, NSW Police Force (GD) [2013] NSWADTAP 16 at paragraph [33] the Appeal Panel held: The ' public interest ' allows, we consider, 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.
The material (namely, the Commissioner's ASD) reveals that: A. The Applicant has a criminal record with convictions recorded from 1995 to 2016 in New South Wales and Queensland. B. The Applicant has a lengthy traffic record. C. The Applicant was refused a tattooist license on 2 December 2016. Social media posts indicate that the Applicant was operating unlicensed since approximately 2015. Further; the Applicant appears to have continued operating unlicensed since being notified of the refusal of his application by Fair Trading. In Cali v Commissioner of Police [2007] NSWADT 187, the Applicant forgot to renew his firearms licence. The Tribunal found at [41]- [42] that the Applicant can be "legitimately criticized for not realizing his firearms licences had expired and for not taking action to renew them". The Respondent submitted that the Applicant was obliged to ensure that he had been granted a licence to perform body art tattooing procedures. D. The Applicant was most recently convicted of driving a vehicle with an illicit drug present in his blood, being methamphetamine, on 9 February 2016. The Applicant was operating as a tattooist unlicensed at the time of this conviction. The Applicant's drug use in and of itself shows he is not a fit and proper person to hold a tattooist licence, particularly where he was operating as a tattooist at around the same time.
The Applicant's convictions are serious. They reveal a willingness on the part of the Applicant to repeatedly disregard the law. This willingness to turn a blind eye to the law calls into question the Applicant's ability to comply with requirements under the TP Act: see Dessmann v Commissioner for Fair Trading & Anor [2015] NSWCATAD 255 at [50]- [52].
The Applicant's convictions, together with the nature of the conduct, are significant factors that count against a finding that the Applicant is a "fit and proper" person, i.e., a person with sufficient moral integrity and rectitude of character. This is all the more so when the Applicant has been operating as an unlicensed tattooist.
This conduct demonstrates that the Applicant lacks fitness and propriety and shows that he: A. Is prone to disregarding the law and regulatory requirements. This is a significant factor that counts against a finding that the Applicant is a "fit and proper" person, i.e., a person with rectitude of character. Here, it is important to bear in mind that this is not a case where the Applicant has been involved in a "one off" incident (cf. Clark v WorkCover Authority of New South Wales [2006] NSWADT 320, [40]) or even a couple of incidents (cf. Stevens v WorkCover Authority of NSW [2014] NSWCATAD 202, where the Applicant had only one assault conviction and, even then, the Tribunal's conclusion to allow the challenge was subject to the caveat at [73] that any further disregard of the law would likely have adverse consequences for the Applicant). The convictions indicate that the Applicant continues to possess a willingness to disregard/violate the law; B. Does not possess the qualities of a fit and proper person.
On the basis of the above and the Commissioner's ASD, the Tribunal should conclude that the Applicant does not satisfy the requirement that he be a fit and proper person.
Further, the Respondents submit that it is not in the public interest for the Applicant to be granted a tattooist licence, having regard to the applicable principles. It is contrary to the public interest to grant a tattooist licence to a person who has been convicted of multiple offences and who has demonstrated, repeatedly, a willingness to disregard the law by operating as an unlicensed tattooist. The grant of a licence in such circumstances is likely to erode public confidence in the scheme under the TP Act, which has as one its objectives the exclusion of persons with criminal tendencies from the tattooing industry, with a view to protecting public safety;
It is not in the public interest to grant a tattooist licence to a person such as the Applicant who, has a criminal record and has been operating unlicensed as a tattooist.

Respondent's oral submissions

At the hearing, the Respondent submitted that the Respondent's primary concern was that the Applicant had tattooed without a licence. When applying for a licence, the Applicant was required to declare he had read the fact sheet. It was clear that it was necessary to hold a licence prior to tattooing. The Applicant claimed that he had an interim licence, but there was nothing in the fact sheet that indicated the existence of interim licences. The Applicant had then received a letter advising him that his application had been refused on 2 December 2016. This letter made it plain that there were penalties that applied to tattooing without a licence. The Applicant had said in his evidence that he needed to tattoo to provide for Christmas time expenses, but the Applicant had also agreed that he had tattooed in January and February. This was confirmed by social media posts.
To be fit and proper, an Applicant needed to be honest. The Applicant had been acting dishonestly even though he said he had not been trying to be deceptive. The Applicant had thought that he was above the law because he needed to provide for his family. Some of the Applicant's references had not referred to his criminal record. Smith's case was clear that the public interest means the broader interests of the community over the private interests of individuals. See Smith v Commissioner of Police NSW Police Force & NSW Fair Trading [2014] NSWCATAD 184. The Applicant's tattooing without a licence could undermine public confidence in the licensing system. It was not good enough for the Applicant to say he was operating under an interim licence. The onus had been on the Applicant to ensure that he had a licence and was operating within the law. The Applicant's offences in February 2016 involving driving while under the influence of substances, was also of concern. The Applicant's credibility was damaged. He appeared to be evasive when asked questions about tattooing without a licence. Initially he said that he had tattooed around Christmas time. He later said that he had tattooed in January and then that he had tattooed in February because of school expenses. The significant thing was that the Applicant had breached the law and he knew that he had done so.
The finding that the Applicant had breached the law meant that it was unlikely he would comply with the law in future if it did not suit him. If the Tribunal were to grant a licence in would be in a situation where the Applicant had admitted to breaching section 7 of the TP Act in December 2016 and January and February 2017. In these circumstances, the Commissioner of Police could investigate again and revoke the licence on the basis of the Applicant's submissions at the hearing.

Scope of the Tribunal's role

The Tribunal adopts the expression of the Tribunal's role as set out by Senior Member Montgomery in Smith. Section 27(3) of the Act is to be construed as giving the Tribunal the jurisdiction to make a fresh determination on the basis of the material placed before it. The Tribunal is not confined to the grounds relied upon by the Commissioner in making the adverse security determination. See Smith v Commissioner of Police NSW Police Force & NSW Fair Trading [2014] NSWCATAD 184 ("Smith") and Zahra v Commissioner of Police, NSW Police Force & NSW Fair Trading [2014] NSWCATAD 211 ("Zahra")
The Tribunal may consider fresh material not placed before the original decision maker. The Tribunal may make its decision on any other lawful, discretionary basis. In doing so there is no need to revisit the adverse security determination.
Unlike the Director-General, the Tribunal has a discretion to grant a licence even though the Commissioner (of Police) has made an adverse security determination (ASD). The (Police) Commissioner's report or security determination is not under review, the Tribunal may decide to grant a licence despite the ASD.

Fit and Proper

The expression "fit and proper" in the context of the TPA was considered in Moore v Commissioner for Fair Trading and Commissioner of Police [2016] NSWCATAD 80 at paragraphs [16-23] by Senior Member Montgomery as follows:
This expression has been considered in numerous matters in this Tribunal and in other jurisdictions. The concept of 'fit and proper' takes its colour from its statutory context and a person's fitness is to be gauged in the light of the nature and purpose of the activities that the person will undertake.
In Smith see Smith v Commissioner of Police NSW Police Force & NSW Fair Trading [2014] NSWCATAD 184, at paragraphs [19] - [20] I (SM Montgomery) stated: [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.
In the present matter there is no suggestion that the Applicant has had any involvement with outlaw motorcycle gangs.
An assessment of whether a person is fit and proper to be the holder of a licence is different from, but related to, an assessment of whether a person is of good character. The concept of 'fit and proper' takes its colour from its statutory context and a person's fitness is to be gauged in the light of the nature and purpose of the activities that the person will undertake. In Hughes and Vale Pty Ltd v New South Wales (No. 2) [1955] HCA 28; (1955) 93 CLR 127 the High Court said (at 156-7): "The expression 'fit and proper' is of course familiar enough as traditional words when used with reference to offices and perhaps vocation. But their very purpose is to give the widest scope for judgment and indeed for rejection. 'Fit' (or 'idoneus') with respect to an office is said to involve three things, honesty, knowledge and ability ... When the question was whether a man was a fit and proper person to hold a licence for the sale of liquor it was considered that it ought not to be confined to an inquiry into his character and that it would be unwise to attempt any definition of the matters which may legitimately be inquired into; each case must depend upon its own circumstances."
The 'fit and proper' test applied in the Act is of broad application. The discretion vested in a decision maker in determining whether a person is fit and proper, in any given context, was said by the Full Court of the Federal Court in Commissioner for ACT Revenue v Alphaone Pty Ltd (1994) 49 FCR 589 at 389, per Northrop, Miles and French JJ, to "give wide scope for judgement and allow broad bases for rejection.
In Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321, Chief Justice Mason explained that, at 380: 'The question whether a person is fit and proper is one of value judgment. In that process, the seriousness or otherwise of particular conduct is a matter for evaluation by the decision maker. So too is the weight, if any, to be given to matters favouring the person whose fitness and propriety are under consideration.'
Toohey and Gaudron JJ said at 380: "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 and the ends to be served by those activities. The concept of "fit and proper" cannot be entirely divorced from the conduct of the person who is or will be engaging in those activities. However, 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 that it will not occur, or whether the general community will have confidence that it will not occur. The list is not exhaustive but it does indicate that, in certain contexts, character (because it provides indication of likely future conduct) or reputation (because it provides indication of public perception as to likely future conduct) may be sufficient to ground a finding that a person is not fit and proper to undertake the activities in question."
In Sobey v Commercial and Private Agents Board (1979) 22 SASR 70 Walters J said: "In my opinion what is meant by that expression is that the Applicant must show not only that he is possessed of a requisite knowledge of the duties and responsibilities devolving upon him as the holder of a particular licence ... but also that he is possessed of sufficient moral integrity and rectitude of character as to permit him to be safely accredited to the public ... as a person to be entrusted with the sort of work which the licence entails."
This Tribunal draws from Senior Montgomery's analysis the following principles:

Fitness and propriety must be considered in the light of the particular calling for which the Applicant is seeking a licence and the statutory intention of the relevant Act;
Issues of the Applicant's character are relevant;
Past conduct is a relevant guide to future conduct;
Fitness and propriety includes issues of honesty, knowledge of the calling and ability in the skills of the calling; and
The decision maker should consider all information both "for and against" when determining fitness and propriety.

The concept of the 'public interest'

The Tribunal refers to Senior Member Montgomery's analysis of the concept of "public interest in the matter of Smith, Smith v Commissioner of Police, NSW Police Force & NSW Fair Trading [2014] NSWCATAD 184 at paragraphs [42]- [47],". 'Public interest' is designed to give the broader interests of the community priority over private interests .and to make clear that the interests of the whole community are matters for the Commissioner's consideration.
In Director of Public Prosecutions v Smith [1991] VicRp 6; (1991) 1 VR 63 the Court held that the public interest is a term embracing matters of standards of human conduct and of the functioning of government and government instrumentalities tacitly accepted and acknowledged to be for the good order of society and for the well-being of its members.
In Constantin v Commissioner of Police, NSW Police Force (GD) [2013] NSWADTAP 16 at paragraph [33] the Appeal Panel held that 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.
The Second Reading Speech, sets out that the bill did not seek to define or particularise the meaning of what would be against the public interest in this regulatory regime. It is "deliberately broad to allow the Police Commissioner sufficient scope to get crime gangs out of this industry and keep them out". It is designed to address the criminal matters currently surrounding the industry, such as extortion, money laundering, personal violence, firearms crime, illicit drug offences, arson and so on. Mr Roberts further noted that "Applicants who are part of this criminal world can and should be refused a licence on public interest grounds."

Findings of Fact

In making its findings, the Tribunal must be satisfied on the standard of proof set out in the Evidence Act 1995 as follows.

Section 140 Civil proceedings: standard of proof (1) In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities. (2) Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account: (a) the nature of the cause of action or defence, and (b) the nature of the subject-matter of the proceeding, and (c) the gravity of the matters alleged.

The Applicant has a criminal record which includes 23 offences from 1995 to February 2016. These offences include break and enter, damage to property, drug offences and carrying a knife. The Tribunal notes that except for the carrying a knife offence, the offences do not involve violence towards others. There was a significant break in the Applicant's criminal offending from 2007 to February 2016.
The offence in October 2015, involved driving under the influence of an illicit substance. The Tribunal accepts the Applicant's evidence that this occurred in the context of the breakup of his long-term relationship. Otherwise, the Applicant has been working hard to abstain from substance use for a lengthy period. Mr Butler's clinical psychologist Mr Hoviatdoost in his letter of 9 February 2017 describes Mr Butler's drug and alcohol addiction as being in remission. Mr Hoviatdoost states that over the previous 18 months Mr Butler had made significant progress in his journey of recovery from drug and alcohol and mental health problems. He has managed to remain sober for most the year and has shown genuine commitment to his recovery. He stated that Mr Butler is well on the road of recovery.
In her reference of 9 January 2017, Ms Callaghan states that she is aware that over the last year Mr Butler has continued regular counselling, and has submitted to a random urine tests. She was aware of Mr Butler's criminal history and of his wilful damage charge in 2016, incurred in the context of a long-term relationship breakdown. She was of the understanding that prior to this Mr Butler had nine years without serious charge.
Ms Elizabeth Harward, Mr Butler's previous long-term partner, states in her reference of 13 January 2017 that she believes Mr Butler's criminal history is directly related to his past substance abuse issues. Mr Butler had worked solidly to address this.
The Tribunal notes that other than in Ms Callaghan's reference, the wilful damage matter in March 2016, was not explained to the Tribunal.

Traffic offences

The Applicant has been issued with penalty notices for 19 traffic-related offences. These offences include several driving under the influence convictions and a number of speeding offences.

Tattooing without a licence

The Applicant has never held a tattooist licence. He applied for a licence on 28 July 2015. The Tribunal accepts his evidence that he thought he had an interim licence number. He asked police who visited his workplace in September 2016 why his application was taking so long. This is reflected in the COPS entry in the Respondent's documents. The Tribunal is satisfied that until 2 December 2016, the Applicant continued tattooing with the false but genuine belief that he was entitled to do so by an interim licence.
The Tribunal notes that Part 2 of the TPA 2013 commenced on 1 October 2013. Clause 29 of the TPA Regulations permitted applicants who had applied for a licence prior to 1 October 2013, to continue tattooing pending the outcome of their application. Mr Butler does not fall into this group, having applied on 28 July 2015.The Tribunal is satisfied that after receiving the letter of 2 December 2016 advising him that his licence had been refused, the Applicant became aware that it was unlawful for him to tattoo without a licence. The Tribunal is also satisfied by Mr Butler's evidence, that on at least 3 occasions after 2 December 2016, he tattooed clients for reward.

Discussion of facts and law

The Applicant's criminal record is not in dispute. The issues are whether that criminal history is such that:

it would be contrary to the public interest for the Applicant to be granted a tattoo licence; and
he is not a fit and proper person to hold the licence sought.

Fit and Proper

The meaning of fit and proper person in the context of issuing a driver authority was considered by the NSW ADT Appeal Panel in the matter of Department of Transport and Infrastructure v Murray [2011] NSWADTAP 16 at 20. In that matter, Deputy President Hennessy said that the determination of fitness and propriety is a question of fact for the decision maker to determine objectively on the basis of the all evidence.
The Tribunal refers to the summary of the term "fit and proper" set out above drawn from the matter of Moore v Commissioner for Fair Trading and Commissioner of Police [2016] NSWCATAD 80

Fitness and propriety must be considered in the light of the particular calling for which the Applicant is seeking a licence and the statutory intention of the relevant Act;
Issues of the Applicant's character are relevant;
Past conduct is a relevant guide to future conduct;
Fitness and propriety includes issues of honesty, knowledge of the calling and ability in the skills of the calling; and
The decision maker should consider all information both "for and against" when determining fitness and propriety.

In Saadieh v Director General, Department of Transport [1999] NSWADT 68 the Tribunal set out factors for consideration by a decision maker concerning whether to grant a taxi driver's authority. These include the severity of the offence that lead to cancellation. Those considerations are:

"the nature, seriousness and frequency of any criminal offences for which the Applicant has been arrested or convicted;
the nature, seriousness and frequency of any complaints made against the Applicant;
the Applicant's driving record; (the Applicant was a taxi driver)
the Applicant's reputation in the community; and
the likelihood that the Applicant will re-offend, be the subject of further complaints or commit further traffic offences."

In assessing the last factor, the following considerations are relevant:

the length of time since the offences were committed and the circumstances in which they were committed;
whether the Applicant admits responsibility for the offences or complaints and shows genuine remorse;
the efforts the Applicant has made to rehabilitate himself or herself during that time;
any change in the Applicant's circumstances such as increased support from friends, family or professional service providers.

The Tribunal has analysed Mr Butler's fitness and propriety in the light of these factors as follows.

The nature, seriousness and frequency of any criminal offences

The Tribunal is satisfied that from 1995 at the age of 15, until 2007 at the age of 27, Mr Butler was convicted of criminal offences relating to break and enter, drug possession and property damage. The Tribunal is satisfied that Mr Butler then had a significant period between 2007 until late 2015, where he did not engage in criminal offending.

The nature, seriousness and frequency of any complaints

The Tribunal has not been made aware of any complaints made against Mr Butler's tattooing skills.

The Applicant's driving record

The Tribunal translates this measure, in this context, to the Applicant's compliance with regulation. Mr Butler's traffic history is poor. The Tribunal considers it demonstrates poor compliance with regulation established for community safety. Further there is a serious matter of Mr Butler having knowingly tattooed without a licence, contrary to the regulatory scheme.

The Applicant's reputation in the community;

Mr Butler provided a range of referees who appear to be aware of his past offending and substance use. These referees think well of his tattooing skills and his passion for tattooing. They note his commitment to his children and his own recovery from substance use.

The likelihood that the Applicant will re-offend, be the subject of further complaints or commit further traffic offences

Ms Harwood, Mr Butler's long-term partner considers that substance abuse was the source of Mr Butler's criminal offending. Ms Harwood notes Mr Butler's efforts to avoid substance abuse, as do Ms Callaghan and Mr Hoviatdoost.
The likelihood of Mr Butler reoffending is not canvassed by the referees. However, it appears both from Mr Butler's evidence to the Tribunal and the comments from referees, that Mr Butler admits responsibility for his past offending. He has undertaken significant rehabilitation efforts. He has sought out professional support for himself. It is clear he has also garnered personal support from others.
In Mr Butler's favour is his admission to the Tribunal that he did tattoo without a licence.
Mr Butler told the Tribunal of the financial hardship he and his children have already suffered because of him not being able to work. The Tribunal also accepts that Mr Butler has suffered anxiety because of refusal of his licence and his difficulty in supporting his children. The Tribunal is specifically not able to take into account the hardship occasioned to Mr Butler by not being able to work as a tattooist when it is determining whether he is "fit and proper" to hold a licence. See Lal v Director-General, Department of Transport [2001] NSWADT 74

Consideration

The Tribunal has weighed up the factors both for and against Mr Butler's fitness and propriety to hold a tattooist licence. The Tribunal considered that Mr Butler was largely honest with the Tribunal. The Tribunal finds that Mr Butler genuinely believed he was entitled to operate as a tattooist with the receipt number from Services New South Wales functioning as an interim licence number. Mr Butler's erroneous belief was not altered by the police visit to Innocent Ink in September 2016 when he discussed his application for a licence with them. The COPS note does not indicate that Mr Butler was told he could not operate as a tattooist in the interim period. The Tribunal is satisfied that from 2 December 2016, or the date upon which he received the letter advising him that his tattoo licence had been refused, Mr Butler was aware that he was not permitted to tattoo. The Tribunal has found that Mr Butler tattooed after this time on at least three occasions knowing that he was not permitted to tattoo.
Between 2007 and March 2016 (wilful damage) Mr Butler did not commit criminal offences. The Tribunal accepts that his offending in October 2015 when he drove with illicit substances in his blood, was the result of his relapse into substance use after the breakdown of his long-term relationship with his partner, the mother of his children. The Tribunal accepts that this was a one-off event. The Tribunal is satisfied that between 2007 and 2016 Mr Butler had not engaged in criminal activity and had worked to reform and rehabilitate himself. Mr Butler did commit several traffic infringements during this time.
The references provided indicate that Mr Butler has worked hard to rehabilitate himself both in his own eyes and in the eyes of others. The references are uniformly acknowledging of Mr Butler's changing of his ways. They also acknowledged that tattooing has enabled Mr Butler to reform his life.
Mr Butler's evidence and the references make it clear that Mr Butler has availed himself of professional and personal support. He has also participated in NA and AA and has tried to assist others.
Unfortunately, none of the referees commented on the fact that Mr Butler had continued tattooing after December 2016 when he was aware that he was not permitted to tattoo. The Tribunal did not have evidence before it either from Mr Butler or his referees, to assist the Tribunal to assess the likelihood of Mr Butler breaching the Tattoo Parlour Act 2013 and the Regulations in the future - were he to be registered.
The Tribunal finds that Mr Butler's knowing breach of the TPA between December 2016-February 2017 renders him not fit and proper to be licensed under that Act at present.

In the Public Interest

The Tribunal has considered whether it is in the public interest for Mr Butler to hold a tattooist licence. The Tribunal accepts that there have been no complaints put forward relating to Mr Butler's skill as a tattooist. The references are positive as to his tattooing skills.
Public interest as it relates to the tattoo parlour industry, gives primacy of the community's interests over the private interests of an Applicant seeking a license. In this respect, the Tribunal acknowledges the Applicant's submissions that being licensed as a tattoo artist is a significant part of the Applicant's continuing rehabilitation.
The Tribunal notes that in Constantin v Commissioner of Police, NSW Police Force (GD) [2013] NSWADTAP 16 at paragraph [33] the Appeal Panel found that public interest goes beyond the Applicant's character. Issues of public safety and the "public confidence in the administration of the licensing system" are relevant considerations. In the circumstances, licensing of an Applicant who had knowingly breached the requirement to hold a licence to tattoo at this time may cause an undermining of public confidence in the administration of the licensing system.

Decision

Many factors set out above are in Mr Butler's favour. However, Mr Butler's tattooing without a licence after his receipt of the letter rejecting his licence application in December 2016 prevents the Tribunal finding that presently Mr Butler is fit and proper to hold a tattooist licence. Compliance with the industry's regulation is a basic requirement for an Applicant to be considered fit and proper to be licensed to work in it. Mr Butler admitted to having breached this basic requirement approximately two months prior to the hearing and determination of this matter.
It would also be contrary to the public interest for the Tribunal to provide a licence to an Applicant who had breached basic licensing requirements of the Tattoo Parlours Act 2013. This could undermine public confidence in regulation of the industry, were the Tribunal to permit Mr Butler's licensing at this time.
The Tribunal has concluded that Mr Butler is not fit and proper to be the holder of a tattooist licence at present. Nor is it in the public interest for Mr Butler to hold a tattooist licence at present.

Tribunal's orders

The decision of the Chief Executive to refuse Mr Butler a tattoo licence is affirmed. 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: 01 May 2017

issioner of Police NSW Police Force & NSW Fair Trading [2014] NSWCATAD 184 Sobey v Commercial and Private Agents Board (1979) 22 SASR 70 Stevens v WorkCover Authority of NSW [2014] NSWCATAD 202 Stiles v Commissioner for Fair Trading & Commissioner of Police, NSW Police Force [2016] NSWCATAD 30 Tzoudas v Ministry of Transport [2008] NSWADT 350 Zahra v Commissioner of Police, NSW Police Force & NSW Fair Trading [2014] NSWCATAD 211 Category: Principal judgment Parties: Joshua Butler (Applicant) Commissioner for Fair Trading (First Respondent) Commissioner of Police (Second Respondent) Representation: Counsel: Ms Kumar (First & Second Respondent)

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