Butler v Commissioner for Fair Trading

The Applicant's case

1. 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.
2. The Applicant provided a written statement, gave evidence and made oral submissions at the hearing.

Evidence of Joshua Butler

1. The Tribunal sets out Mr Butler's statement as follows. "I would like to thank the Tribunal for allowing me this opportunity to present this statement, which outlines my personal circumstances. When I received the letter from NCAT stating that I was refused my licence I was very heavy hearted, I honestly did not expect this decision. I am aware that I have had troubles in my life with drug and alcohol addiction and have a number of criminal offenses. I have however dedicated myself over many years to address these issues. Over the last 5 years and especially the last 12 months 1 have worked extremely hard on the psychological issues that were the root cause of my problems. I was a child of a broken family; my father is a severe alcoholic who was absent for most of my life and my mother abandoned me from the age of 12. As a result of this my mental health suffered greatly and I developed Complex Post Traumatic Stress Disorder and acute anxiety and depression. I was too young and did not have the emotional resilience or support to deal with what was happening in my life. The early criminal history you can see in my record, which is mentioned in the reasons for refusal of my license, reflects my life as a homeless youth and starts from when I was fourteen years old. From there on up until the birth of my first child I struggled greatly to find the self-esteem to facilitate the change needed to grow into a responsible adult Since my son was born in 2006, I have consistently worked on the emotional and psychological issues that so adversely affected my ability to change. As you can see in my references I sort help from Drug and Alcohol services and psychologists, I have kept consistent contact with these services for 11 years and maintain an open dialogue about the struggles that impact my family and myself. One of the specific things that 1 achieved in my rehabilitation is to separate and distance myself from people who participate in any anti-social behaviour. My work as a professional tattooist has been integral in my rehabilitation, tattooing is so much more to me than just a job. I worked extremely hard during my apprenticeship to master the craft that I love and respect so dearly. It has had a profound impact on my life It has given me the ability to break the cycle that I found myself playing out. My children see me as a responsible contributing member of society. The culmination of my career pursuits and my rigorous ongoing psychological betterment has given me the opportunity to leave that old me in the past where it belongs. Looking back on my record I am not in any way proud that I displayed that behaviour and am determined that my community will not ever have to see that of me again. Pertaining to the most recent charge of driving under the influence of drugs I would like to state that this occurred after a long period of sobriety when my 13-year relationship with the mother of my children broke down and as a result of this I spiralled into depression and regrettably relapsed. The day of my relapse is the day that I made the regrettable decision that resulted in the charge for driving under the influence. I am extremely ashamed of these last charges, as they do not in any way reflect who I am as a person anymore. I have worked extremely hard to be a responsible citizen and break the cycle of my previous abuse. This has not been easy and I have made mistakes which I am greatly ashamed of but I have not wavered from my intent or conviction to be a better man, father and member of society. I have come such a long way, worked too hard and come too far to be held back by the mistakes of my past I would also like to respond to the claim of my tattooing without a licence. My license application was submitted 28th July 2015, and I was told that the number on my application was my interim license number so I had been waiting to hear back since then. As stated in the security determination NSW police licensing branch came to the studio I was working at - Innocent Ink to conduct an audit on 27/09/2016 and I told them 1 was yet to hear whether my license had been approved even after all this time and produced my interim license number and all the paper work provided to me by the DFT NSW which both police looked at and were satisfied with informing me that they would follow up on why my license was taking so long to be processed, I was absolutely certain that I was following correct procedure and working under my interim license number. I would ask that this statement and my personal circumstances please be considered carefully as any negative decision made by the Tribunal will profoundly impact both my families and my own life. Thank you for your consideration."

Mr Butler's evidence before the Tribunal

1. 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.
2. 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.
3. 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.

Receipt from Services NSW

1. 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

1. 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.
2. 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.
3. 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.
4. Mr Butler told the Tribunal that had previously had an interlock system to prevent him from drink-driving. He cannot afford it at present.
5. 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.
6. 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.
7. 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

1. 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.
2. 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

1. 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.
2. 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

1. 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

1. 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."
2. 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."
3. 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

1. 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.
2. 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

1. 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].
2. 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

1. 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.
2. 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.
3. 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.
4. 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.
5. 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)

Case Authorities on Public interest

1. 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.
2. 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.
3. 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.
4. 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.

Respondent's oral submissions

1. 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.
2. 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.
3. 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

1. 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")
2. 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.
3. 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

1. 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:
2. 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.
3. 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.
4. In the present matter there is no suggestion that the Applicant has had any involvement with outlaw motorcycle gangs.
5. 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 concept of the 'public interest'

1. 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.
2. 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.
3. 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.
4. 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

1. 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.

1. 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.
2. 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.
3. 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.
4. 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.

Traffic offences

1. 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

1. 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.
2. 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

1. 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

1. 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.
2. 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.

1. 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."

1. 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;

The nature, seriousness and frequency of any criminal offences

1. 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

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

The Applicant's driving record

1. 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;

1. 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

1. 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.
2. 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.
3. In Mr Butler's favour is his admission to the Tribunal that he did tattoo without a licence.
4. 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

1. 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.
2. 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.
3. 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.
4. 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.
5. 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.

In the Public Interest

1. 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.
2. 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.
3. 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

1. 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.
2. 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.
3. 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

1. 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