Cox v NSW Fair Trading

Legal principles

1. The Tribunal has jurisdiction to hear and determine the present application by reason of s 27(1)(a) of the Act. Under s 63 of the Administrative Decisions Review Act 1997 (ADR Act), the tribunal's role is to determine whether, having regard to the underlying facts in the matter and the applicable law, the First Respondent's decision is the correct and preferable one. The Tribunal is to review the merits of the original decision and consider the evidence available at that time, together with any other or later material, so as to affirm the original decision, vary it or set it aside: Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60, 77.

The legislative scheme and the tribunal's approach

1. The Act introduced licensing requirements for operators of tattoo parlours and tattooists in 2013 which was, according to the Minister's Second Reading speech, aimed at removing Outlaw Motorcycle Gangs (OMCGs) from the industry. The Act's purpose is not, however, limited to that aim and "the broader intention is to rid the industry of any criminal or otherwise undesirable element and the avoidance of improper conduct": Smith v Commissioner of Police & Anor [2014] NSWCATAD 184 (Smith) at [20], affirmed in Austin v Commissioner of Fair Trading & Anor [2016] NSWCATAP 179 (Austin) at [33].
2. Two kinds of licence may be granted under the Act: an operator licence and a tattooist licence. The licensing regime imposes a test of whether the person is "fit and proper" and whether it would be "contrary to the public interest" to grant the licence. It is an offence to perform body art tattooing procedures without a tattooist licence: s 7.
3. Licence applications received by the First Respondent are referred to the Second Respondent pursuant to s 14(b) of the Act for an investigation and determination as to whether the applicant is a fit and proper person to be granted the licence, and whether it would be contrary to the public interest for the licence to be granted. Section 19 requires the Second Respondent to inquire into, determine, and report to the First Respondent on those matters. Those inquiries may include criminal intelligence reports or other criminal information held in relation to an applicant: s 19(3).
4. The Act does not expressly confer jurisdiction on the tribunal to review any report or determination made by the Commissioner of Police but does so implicitly, as s 27(3)(c) provides that "the Tribunal is not prevented from determining whether the director-general made the correct and preferable decision regarding the application of the licence concerned merely because of the determination of the Commissioner": Smith at [22]. The tribunal is required to take the ASD into account as an essential, legally relevant, consideration to which weight must be given: Smith at [24]; however the Tribunal has a discretion to grant a licence despite an ASD which is not available to the First Respondent: s 27(3)(c) of the Act, also Hallman v Commissioner for Fair Trading and Commissioner of Police [2017] NSWCATAD 136 at [7].
5. In Smith, Montgomery SM set out the approach to be adopted when undertaking a review of a decision to refuse an application for a licence as a result of an ASD (at [24] - [28] and [32] - [37]). Those principles may for present purposes be summarized as follows: 1. As was noted above, the tribunal is required to take the ASD into account as an essential, legally relevant consideration to which weight must be given: at [24]. 2. While the ASD does not constitute a prima facie position which the applicant bears the burden of displacing, due weight must be given to it: at [25] - [26]. 3. Although the decision under review may be that of the secretary rather than the Commissioner, the tribunal may make a fresh determination as to whether the person is a fit and proper person to be granted a licence and whether it would be contrary to the public interest for the applicant to be granted a licence: at [31] - [32]; and 4. The tribunal is to determine what the correct and preferable decision is on the basis of the material before it and any other lawful, discretionary basis; it is not confined to the grounds relied upon by the Commissioner or the secretary: at [27] - [28], [32] - [33].

Fit and proper person

1. Whether a person is "fit and proper" has been said to relate to honesty, knowledge and ability, and is to be judged by the nature of the activities that the person seeks to undertake (Hughes and Vale Pty Ltd v New South Wales (No.2) [1955] HCA 28). In Australian Broadcasting Tribunal v Bond [1990] HCA 33 it was explained by Chief Justice Mason at [63]: "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."
2. In the same case, Toohey and Gaudron JJ said at [36]: "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."
3. In Smith the Tribunal considered the various authorities on the expression "fit and proper" at [26] to [30] including those above and Sobey v Commercial and Private Agents Board (1979) 22 SASR 70, which were distilled into six propositions by the Appeal Panel in Austin at [58] as: 1. The very purpose of the words "fit and proper" is to give the widest scope for judgment and for rejection on that ground. 2. "Fit" with respect to an office is said to involve honesty, knowledge and ability. 3. The expression "fit and proper" person, standing alone, carries no precise meaning. It takes its meaning from its context, from the activities in which the person is or will be engaged and the ends to be served by those activities. 4. Depending on the nature of the activities, the question may be whether improper conduct has occurred, whether it is likely to occur, whether it can be assumed it will not occur, or whether the general community will have confidence that it will not occur. 5. In certain contexts, character (because it provides indication of likely future conduct) may be sufficient to ground a finding that person is not fit and proper to undertake the activities in question. 6. The expression meant that an applicant needed to show not only that he has the requisite knowledge of the duties and responsibilities of the holder of the particular licence but also that he is possessed of sufficient moral integrity and rectitude to be accredited to the public as a person to be entrusted with the work the subject of the licence.

The public interest

1. The phrase "public interest" is not defined in the Act or its regulations. In O'Sullivan v Farrer [1989] HCA 61; (1989) 168 CLR 210, [13], the High Court held that the "public interest" imported a discretionary value judgment to be made by reference to undefined factual matters, confined only in so far as the subject matter and the scope and purpose of the legislation might require. In Commissioner of Police v Toleafoa [1999] NSWADTAP 9, [25], the Appeal Panel described the public interest ground in the relevant Act in the following terms: [A]n inherently broad concept giving the [Commissioner] the ability to have regard to a wide variety of factors in choosing whether to exercise a discretion adversely to an individual. As the possibility of refusing an application on the ground of character is dealt with elsewhere in the same section, it is reasonable to infer that the Parliament intended that the public interest discretion operate in areas to which the character ground was not relevant or, possibly, in circumstances where an objection on character grounds would not be sufficient in its own right to warrant refusal.
2. The concept does include standards acknowledged to be for "the good order of society and for the well-being of its members": Director of Public Prosecutions v Smith [1991] VicRp 6; [1991] Vic Rep 6; (1991) 1 VR 63. In Comalco Aluminium (Bell Bay) Ltd v O'Connor (1995) 131 ALR 657, 681, the High Court said: The purpose of the reference to public interest is to ensure that private interests are not the only matters taken into account: to make clear that the interests of the whole community are matters for the Commissioner's consideration. The effect of the reference is to amplify the "scope and purpose" of the legislation.
3. The issue of public interest allows for matters going beyond the applicant's character to be taken into account. They include public protection, public safety and public confidence in the administration of the licensing system, including by signalling that those whose activities or facilities do not meet the required standards will not be permitted to operate in the industry: Constantin v Commissioner of Police, New South Wales Police Force [2013] NSWADTAP 16 at [33]; Health Care Complaints Commission v Do [2014] NSWCA 307 at [34] - [39]; Moujalli v Roads and Maritime Services [2017] NSWCATAD 141 at [52] - [53].
4. A finding that an applicant is not of fit and proper character to hold the type of licence in question would normally also necessarily mean that it would be contrary to the public interest to allow the person to hold the licence: Stiles v Commissioner for Fair Trading & Anor [2017] NSWCATAP 44 at [34]. In Mielczarek v Commissioner for Fair Trading [2017] NSWCATAD 5 the Tribunal noted at [162] that the "Tribunal should place itself in the position of a member of the public knowing of the applicant's associations or record, and consider whether that person would object to having the applicant perform the relevant services".

Consideration

1. The Respondents provided the Tribunal with extensive evidence supporting the ASD and its submissions that the Applicant was not a fit and proper person to hold a tattooist licence, and that it was not in the public interest for him to obtain such a licence. This included the Applicant's criminal antecedents, conviction Fact Sheets, COPS entries, traffic record from the RTA, a statement from the Second Respondent's Manager, Adjudication and Enforcement Directorate (SLED) who made telephone inquiries of the Applicant's tattoo industry referees, and a detailed chronology containing the Applicant's police interactions, traffic infringements, transport infringements, fine defaults, criminal infringements and criminal offences. The Applicant was cross examined in detail and at length, and two of his referees gave evidence during the hearing via telephone at short notice.
2. The Applicant relied on his application, a written statement in the form of a letter addressed "to the Presiding Magistrate, Sydney District Court" dated 2 January 2018 (dated in error, the contents clarify the correct date to be 2019), and 17 written character references. He additionally gave oral evidence at the hearing and relied on the oral evidence of his referees.
3. The Respondents' evidence demonstrated that the Applicant had an extensive history of interactions with law enforcement from 2006 onwards, when he was 17 years of age, including traffic offences, failing to pay fines, failing to pay transport fares or provide proof of fares paid, offences from his involvement in the graffiti subculture including defacing property and trespassing, and shoplifting. These instances included: 1. Traffic offences: $77 speeding fine in 2006, caution for failing to display P plates in 2007, $197 speeding fine in 2010, $439 disobey traffic lights fine in 2018. His provisional licence was repeatedly suspended between 2008 and 2018 for failure to pay fines incurred. 2. Transport offences: travelling without valid or appropriate tickets on 5 occasions in 2008, 2011, 2013 and 2016. 3. Graffiti related offences: s 10 and 12 month GBB granted on 4 November 2013 for defacing property and goods (pens from Dymocks) in personal custody suspected of being stolen, fined on 13 January 2015 $400 for breaches of those bonds and $2000 for additional offences of intentionally mark premises without prescribed consent and aggravated enter enclosed lands without consent in October and November 2014. 4. Shoplifting offences: Fined $300 on 17 October 2018 for shoplifting a packet of cold and flu tablets on 27 June 2017, for which he was charged on 23 September 2017 after a warrant was issued. Additionally, the Applicant had admitted to shoplifting an ink cartridge on 19 February 2018, but no formal action had been taken.
4. Additional evidence was adduced in a confidential hearing. [NOT FOR PUBLICATION]
5. Taking into consideration the evidence tendered and submissions expressed in the confidential hearing, I find that the Applicant's criminality did not extend beyond the instances referred to in the open evidence and hearing. Notably, there was no evidence adduced in the confidential hearing that the Applicant had any relationship, knowledge or interaction with OMCG or their illegal activities.
6. In cross examination the Respondents sought to impugn the Applicant with the offence of working as a tattoo artist without a licence, but there was no evidence that this ever occurred, and I reject any such submissions or implication. The evidence before the Tribunal is to the contrary, that the Applicant had worked at one or two tattoo parlours in an unpaid position, and did not do any tattoo work there.
7. In addition to the offences detailed above at [19], the Respondents included in their Chronology every interaction the Applicant had with Police as recorded in the COPS database, whether or not those records indicated an offence had been committed by the Applicant, or the interactions constituted an offence. This included entries on 25 October 2008, 6 December 2009, 19 November 2015 marked as "assault" in the chronology which in evidence were demonstrated to refer to events in which the Applicant was the victim to an assault, not the perpetrator or a person of interest; and various instances between 2007 and 2016 where the police had recorded giving the Applicant a "person search" and/or "move on direction", despite no outcome adverse to the Applicant being recorded.
8. The Applicant gave evidence that he was no longer involved in the "graffiti subculture" and that his previous actions had been impulsive and childish. He had completed 50 hours community service in 2015 in relation to the graffiti offences and had not re-offended since that time, aside from the shoplifting offence which he stated was an "impulsive mistake". He admitted to having made some "silly mistakes" since 2015 but he was "trying to be an honest upstanding citizen". He no longer used illegal drugs and was committed to a more productive lifestyle. He agreed that the evidence demonstrated he had a disregard and disrespect for the law, but stated that this was a previous attitude which had changed over the last few years. These changes coincided with him being in a stable relationship and developing a passion for tattoo artistry as a creative outlet.
9. In relation to the offences post 2015, the Applicant gave evidence that these were minor in nature, "mistakes", and he sincerely regretted his actions. In 2018 he was charged with shoplifting a packet of cold and flu tablets in 2017 and in February 2018 he was caught shoplifting a small item, immediately apologised, and no further action was taken.
10. Since "turning over a new leaf", as the Applicant expressed his reformation, he had been working in the tattoo industry as an apprentice in anticipation of obtaining a tattoo licence. This involved unpaid work of up to 20 hours per week in tattoo parlours, including cleaning premises and equipment and assisting the owner and artists. The Applicant was aware that s7 of the Act prohibited him from tattooing without a licence, and was firm under rigorous cross examination that he did not actually do any of the tattoo work, but assisted "in the process of tattooing without tattooing".
11. The Applicant gave evidence that he was passionate and involved in the tattoo industry including travelling, painting, drawing, and the "lifestyle". He denied that this lifestyle was a subculture that was "run counter to normal legal society and contrary to the law", although accepted that there was an element of that in the industry, which is why the Act had introduced regulation. He explained that the industry involved collectors, that he had travelled all over Australia to be tattooed by his favourite artists, and that he steered away from any of the "illegal or shady aspects", and any of the "drug connections" which did not interest him. He admitted to having occasionally smoked marijuana in the past but denied any other drug use.
12. The Applicant expressed a deep respect "for the craft" and a desire to "make an honest living" in the tattoo industry. He had considered and attempted other work involving drawing such as signwriting but explained that "tattooing is a lifestyle and subculture. I've got my heart set on it. It's my dream career". The Applicant explained that he had worked without pay, assisting in tattoo parlours as an "apprentice" for between 20 and 50 hours a week. He explained that his understanding of an apprenticeship in the tattoo industry consisted of 3 years' experience, the first half of which involved just cleaning and sweeping floors. He agreed that his past actions were unacceptable but that he had "paid for my mistakes", he had wanted to be a tattoo artist for a very long time, there was "too much at stake" for him to keep making the mistakes he had made in the past as the licence "means a lot", and he "couldn't see myself doing anything else".
13. I found the Applicant to be a witness of truth. His answers under extensive cross examination were reasonable and he made appropriate admissions and concessions, such as his marijuana usage and the unacceptability of his previous actions. He acknowledged his past mistakes and the offending lifestyle associated with the graffiti subculture, and provided adequate explanations for the circumstances of his offending after 2015 which effectively minimised his criminality. This included his constrained financial circumstances as a result of working as an unpaid apprentice, resulting in his shoplifting, his failure to pay a "backlog of fines", and a warrant being issued for the 2017 charge due to his lack of permanent address. He explained the transport infringements being infrequent in the context of daily public transport usage for years, where "sometimes I lose my wallet and don't have any money". The Applicant explained that he wasn't treated well as an apprentice without a licence in a tattoo parlour, as the "lowest ranking member mopping floors" in circumstances where he had "his own financial troubles, in a lot of debt" and the apprenticeship was informal and unpaid. I accept these explanations, affirmed by a lack of evidence to the contrary in relation to the Applicant's financial circumstances and the likelihood of his exploitation as an apprentice in an industry in which there is no formal accreditation or training as an apprentice, and the Act prohibits the employment and payment of unlicensed individuals.
14. The Applicant provided 17 written references, and two of those referees gave oral evidence via telephone during the hearing at short notice. He did not provide a reference from his employer on the basis that he did not feel comfortable asking for one. I accept that the weight to be afforded to those written references provided is limited and variable on the basis that not all of the referees were informed of the detail or extent of the Applicant's criminal history or his past drug use, and most had a personal rather than professional connection with the Applicant. The Applicant explained that he had provided the detail regarding his criminal history that he considered necessary to the referees and did not think it was generally necessary to disclose his past drug usage because he had never been charged with drug offences. I accept the Applicant's evidence that he was "as honest as possible with the referees", if not as detailed as required, and that there were no deliberate omissions in what he informed those referees for the purpose of obtaining a reference. Although I afford each of the written references limited weight, I consider that the quantity of references obtained by the Applicant demonstrates his strong desire to demonstrate that he is of good character for the purposes of this review and the references are reflective of what the Applicant's peers and family think of him.
15. More significantly, two of the referees were called during the hearing to give evidence without prior notice. Daniel Hundt, a tour operations manager and the Applicant's former housemate, was aware of the Applicant's history of graffiti related offences and when informed of the shoplifting offences stated that these did not change his view. He stated that the Applicant had "grown, can see where he wants to be", and "talking and focussing on the [tattoo] industry has calmed him down", that "everyone has a few skeletons in the cupboard" and the Applicant "was lacking a compass but this gives him something to work on. He is passionate, focussed and motivated. If he can put all that energy into something he wants to do, he will excel. Give the guys a chance". I accept Mr Hundt's evidence and consider that his reference should be afforded significant weight.
16. Jake Asprey, a friend of the Applicant's for the past 4-5 years, gave a similarly positive reference when informed of the additional criminal offences of which he had not previously been aware. In relation to the June 2017 shoplifting offence, Mr Asprey stated that this "was not a surprise" and agreed it was a "concern, because I care for him". He stated that the Applicant had "strict morals he conducts himself under" and was "impressed with the way he operates. I've never seen [him commit] any crimes, or emotional outbursts. He's level headed. I'm envious of his ability to conduct himself like that". Further, that he was "delicate with the way I choose my friends and I don't accept that I don't know him. I still believe that I know him better". He stated that the Applicant was "on the road to redemption, he's been battling for that". Although an equally positive reference to that provided by Mr Hundt, I give Mr Asprey's reference less weight on the basis that he is clearly a close friend of the Applicant's and may not therefore have been impartial in his evidence, which I believe Mr Hundt's evidence to be.
17. The Respondents submitted that the evidence demonstrated the Applicant had a wilful disregard for the law which was continuing despite being sanctioned repeatedly over the past decade, and that his "pattern of criminal behaviour and transport infringements… calls into question his judgment and indicates he is of poor character. Moreover such conduct means that the Tribunal can have no faith that the Applicant will, in the future, comply with the requirements of the TP Act or the general law". In support of that submission, the Respondents relied on the Chronology as demonstrating the pattern of criminal behaviour, however I afford that Chronology limited weight in the circumstances expressed at 23 above. The Respondents submitted that the reviewable decision should be upheld because it was "all about time", that there had not been sufficient time since the Applicant's past offending conduct for the Tribunal to find that he was truly reformed and of good character.
18. The Respondents suggested that an appropriate amount of time would be one to two years following any offending conduct before a licence should be obtained, on the basis that the Act required strict adherence, to ensure public confidence in the system, and for the Applicant to be able to demonstrate an ability to resist engagement in criminal activity. The Respondents suggested otherwise the Applicant could be influenced by OMCG activity in the industry.
19. The Applicant submitted that his past conduct consisted of minor offences. He had demonstrated reformation of character in relation to the graffiti related offences as there had been no additional similar offences since 2015, and I accept his evidence that he was no longer involved in that subculture. He submitted that he had not been able to demonstrate reformation of his shoplifting conduct because of his financial desperation, but that these were "stupid mistakes" and that his life has since changed with a strong support network and counselling to deal with situations in a different matter, so that he didn't "need to shoplift". He had not "set out to offend". He believed that tattooing would give him direction, an honest artistic path and outlet for his passion, and life direction.
20. In applying the steps expressed by the Tribunal in Smith on the basis of the evidence before me I give reasonable weight to the ASD dated 17 August 2018 with the exception of its conclusion that the Applicant had failed to reform from his offences. On my consideration of the evidence before me, which is additional to that which was before the Second Respondent in making the ASD, I reject the Respondents' submissions regarding reformation of character, and accept the Applicant's. In my view, the Applicant has demonstrated sufficient reformation of character since his offending. The Applicant also does not need a specific period of time to lapse to convince the Tribunal of his reformed character. Although there is a relatively short period of time between the Applicant's shoplifting offences and his licence application, the circumstances of his offending give me confidence in the Applicant's evidence and submissions that having a direction and purpose in life realised through legitimate involvement in his artistic passions, via the tattoo industry, will ensure that the offending conduct does not reoccur.
21. There was no evidence suggesting that the Applicant was involved, in any way, with an OMCG. I reject any implication by the Respondents that the Applicant demonstrated a likelihood that he would become involved with an OMCG or its activities if a licence was granted to him, or that he could or would be exploited by an OMCG through his involvement in the industry. He does not need to demonstrate an ability to resist engagement in criminal activity to ensure he cannot be influenced by OMCG involvement, in circumstances where he has never been associated with OMCG and there is no evidence to support any continued involvement after 2015 with the graffiti subculture.
22. Taking into account the six considerations expressed by the Appeal Panel in Austin (see above at 12), it is essential to note that the licence applied for is as a tattooist, which is a different standard than that required of tattoo operator. The appropriate standard of whether the Applicant is a fit and proper person to hold a licence is judged by the requirements of the tattooist role and the community expectations of an individual in that position. This involves honesty in interactions with the general public, artistic ability, knowledge of the regulations and health and safety requirements. As noted by the Tribunal in DLY v Commissioner for Fair Trading [2018] NSWCATAD 125 at paragraph [26]: A tattooist licence authorises a person "to perform body art tattooing procedures" (Tattoo Parlours Act, s 9(3)). The nature of the activities a person will undertake is body art tattooing. The purpose of those activities is to decorate the body. A person holding a tattooist licence is not required to operate a trust account, or to receive confidential information, or to represent a person's interests before a court or tribunal. For these reasons, a person who is a fit and proper person to hold a tattooist licence may not be a fit and proper person to be a real estate agent or a legal practitioner. Similarly, a person may be possessed of sufficient moral integrity and rectitude of character as to permit him or her to be safely accredited to the public as a person to be entrusted with the sort of work which a tattooist licence entails but they may not be a fit and proper person to be the operator of a tattoo parlour.
23. There is no evidence to suggest that the Applicant is not capable in terms of his "fitness" - his honesty, knowledge or ability - to carry out the work of a tattooist. There is no evidence of heightened "community expectations" beyond the matters expressed above which are relevant to working as a tattoo artist. The Applicant has demonstrated in his evidence and that he has 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 a tattooist licence entails". I consider that he is a fit and proper person to hold such a licence.
24. I am also satisfied that the Applicant has made sufficient changes in his life and has sufficiently reformed his character that it is not "contrary to the public interest" for the licence to be granted. I do not agree with the Respondents that to allow the Applicant a tattooist licence would undercut public confidence in the system.
25. Accordingly the correct and preferable decision is for the Applicant to be granted a tattooist licence. The appropriate order is therefore to set aside the First Respondent's reviewable decision, and to substitute for it a decision granting the Applicant a tattooist licence.

Orders 1. The decision to refuse to grant the Applicant a tattooist licence is set aside. 2. In substitution the decision is made that the application for a tattooist licence is granted.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 04 November 2019