Deakin v Commissioner for Fair Trading & Commissioner of Police

The licensing regime

1. I have considered the licensing regime established by the Act in my decisions in Smith v Commissioner of Police NSW Police Force & NSW Fair Trading [2014] NSWCATAD 184,Zahra v Commissioner of Police, NSW Police Force & NSW Fair Trading [2014] NSWCATAD 211,Dyas v Director-General Fair Trading & Commissioner of Police [2014] NSWCATAD 223and most recently in Austin v Commissioner for Fair Trading & Commissioner of Police, NSW Police Force [2015] NSWCATAD 244.
2. The Applicant applied to Fair Trading for an operator licence pursuant to section 11 of the Act. Fair Trading then referred the application to the Commissioner, 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. The Commissioner made an adverse security determination in relation to the Applicant. In the circumstances where the Commissioner makes an adverse security determination Fair Trading has no discretion and must refuse to grant a licence.
3. Pursuant to section 27(i)(a) of the Act, review may be sought of the refusal to grant a licence. In my view, 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 has discretion to grant a licence notwithstanding the adverse security determination.

Background

1. The Applicant has been the operator of the tattoo parlour named "Feel the Steel" located at Richmond NSW. He has applied for a licence that would allow him to continue to operate that business. A delegate of the Commissioner determined that the Applicant is not a fit and proper person to be granted the licence due to his criminal history. A copy of the Applicant's criminal record is in evidence. It shows that he has a long history of criminal activity dating back to 2000. His offences include: a. Possess unauthorised pistol b. 3 counts of steal a motor vehicle (accessory after the fact to an offence) and 1 count of steal motor vehicle (accessory after the fact to an attempt). The vehicles were located in a unit that the Applicant leased. c. possess a barrel without authority/licence d. cultivate prohibited plant e. not keep firearm safely f. possess loaded firearm in a public place g. handle/use firearm under the influence of alcohol/drug and h. Malicious wounding; and i. Various assaults and property damage and public order offences .
2. In relation to the firearms offences of not keep firearm safely and possess a barrel without authority of licence/permit, the police Facts Sheet indicates, and the Applicant does not dispute, that two disassembled firearms were located within a unit that the Applicant leased. It states: Located on a bench top at the rear of the unit was a disassembled doubled barrelled 12 gauge shotgun. The Firearm had been completely pulled apart with the barrel, the breach and stock in separate pieces. The trigger mechanism has also been pulled apart. The serial number displayed on this firearm was 9440261, there is no record of this firearm ever being registered. Located on the same bench in a riggers glove was a disassembled Derringer replica two shot pistol. This firearm was also in numerous pieces. On the same bench was an instruction manual to build a home made .22 calibre machine gun. The instructions demonstrate how to make the firearm from tubed or box sectioned steel. Adjacent to the manual was two lengths of galvanised tubed steel with templates from the manual attached. These pieces of steel are alleged to be the beginnings the accused attempt to construct the machine gun. Located on the floor of one of the toilets was an additional instruction manual on how to build your own .22 calibre machine gun. Also on the same bench was an instruction manual detailing the process for manufacturing methylamphetamine. The manual was inspected and it contains clear and correct instructions on the processes and procedures involved in the manufacture of the drug.
3. The Applicant does not dispute his criminal background. He says that he fully acknowledges his past and that he is not proud of a lot of things that he has done. However, he says that he has already been punished for that conduct and that he has reformed.

The Issue

1. The issue to be determined is whether the Applicant is a fit and proper person to hold the licence that he is seeking.

Fit and Proper

1. This expression 'fit and proper' has been considered in numerous matters in this Tribunal and in other jurisdictions. The concept 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.
2. I have discussed various authorities in relation to the concept in some detail in the decisions that I have referred to above and will not repeat it here.

The Applicant's evidence

1. The Applicant relies on his own evidence and a number of references provided in support of his application. He also relies on a petition which he says shows that he has community support for his application.
2. He also provided two medical reports-the report of Dr David Norus and the report of Dr Padma Kaluarachchi.
3. Those reports give some indication of the Applicant's circumstances and the stresses that he has experienced in recent times.
4. Dr Norus reported that the Applicant has a long history of mental illness which had been exacerbated severely by those stresses. These include a marriage break-down; separation from his children; severe/complex PTSD after being a witness to and rescuing his girlfriend from a near death experience and being involved on the aftermath of the incident; and he is also going through business troubles.
5. Dr Norus reported that the Applicant has symptoms of PTSD / depression / anxiety but that he is open to suggested treatment, is starting to see a clinical psychologist and manages his symptoms well. He is determined to feel well again and Dr Norus reported that he has noticed some significant improvement.
6. Dr Kaluarachchi's report concerned the Applicant's partner and reported that she has a long history of mental health issue. She is currently under the care of a psychologist and psychiatrist.
7. The Applicant attended the hearing and was cross-examined.
8. He said that when he left school he was nearly illiterate and an angry young man. He said that he felt stupid and he did stupid things. He acknowledges that he hurt people and did some dishonest things. He progressively got worse; his offending escalated and became more serious. However, he says that he is an honest person and that he has reformed his behaviour and no longer engages in the type of conduct shown in his background.
9. He says that he changed for his children and for tattooing and that his life over the past three and a half years should show that he is no longer a violent person. He recounted several incidents in recent years in which he has been exposed to extreme pressure but says that he did not resort to violence.

The Respondents' evidence

1. The Respondents rely on criminal intelligence information filed on a confidential basis and which has not been disclosed to the Applicant.
2. Pursuant to section 49(2) of the Civil and Administrative Tribunal Act 2013 ("the NCAT Act") a confidential hearing may be conducted wholly or partly in private; and pursuant to section 64 of the NCAT Act and/or section 27(4)(b) of the Act, evidence of any Criminal Information and submissions may be heard in the absence of the of the public, the Applicant and the Applicant's representative.
3. To the extent that was necessary I made orders under these sections.
4. The non-confidential material which includes the Commissioner's redacted adverse security determination, the Applicant's criminal history and the Police Facts Sheets in relation to several of the incidents that lead to the convictions discussed above. This material has been disclosed to the Applicant.

The Adverse Security Determination

1. The Commissioner provided information to the Tribunal on a confidential basis in the absence of the Applicant. The Applicant is aware that a confidential session took place but he is not aware of the information that was presented.
2. The Applicant has been provided with the adverse security determination in a redacted form. An unredacted copy of that document has been provided to the Tribunal on a confidential basis
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12. The Respondents also rely on the evidence of Ms Jacqueline Palmer, the acting Manager, Assessment and Prevention, Security Licensing & Enforcement Directorate with the New South Wales Police Force. Ms Palmer provided an affidavit and also appeared at the hearing on 30 October 2015 and was cross-examined.
13. Ms Palmer's evidence is that in October 2015 she conducted a search of social media sites, Facebook and Instagram relating to the Applicant. She annexed to her affidavit a number of screen shots of some of the images and posts on those sites.
14. She referred to a post on a Facebook page on 5 September 2015 for "SAVE Feel the Steel" and included two photographs of sample reference letters, captioned: "My fight isn't over and I need references from every one, the judge told me I need to show I'm not the same person I was years ago when I was in trouble with the police. I have written an example reference. Your reference must statement you no I have a criminal past but that's not the person u no now. I no everyone has signed the petition but PLEASE PLEASE. Do me a reference, here's an example u can email one to feelthesteel@live.com.au".
15. Ms Palmer further stated that on 18 September 2015, "FeeltheSteelTattoo" posted on Instagram an image of the cover of the Hawkesbury Gazette, captioned: "I have been refused my NSW Tattoo licence. Laws that were bought in to get bikers out of the industry. I am in no way a biker but I have a criminal record so that makes me an unfit or proper person as the police commissioner puts it to hold a licence to tattoo please sign my petition and help me appeal this decision ...
16. Ms Palmer further stated that on 5 September 2015, "FeeltheSteelTattoo" posted on Instagram an image of arose tattoo captioned: "First tattoo in 2 weeks. Forced to close the doors because of the NSW police commissioners bull shit, we still have a big fight ahead of us to continue to do our job #FTS #fts #feelthesteel #fukthesystem #rose #rosetattoo".
17. Ms Palmer further stated that on 24 June 2015, "FeeltheSteelTattoo" posted on Instagram an image of a police officer inspecting a car with the following caption: "Picking on a LoLife! Muthafukndefect on the poor little bug #copsrtops #pricks #howlowcanugo #vw #beetle".
18. She provided screen shots of those entries. She also provided a screen shot of the webpage http://www.ipetitions.com/petition/save-feel-the-steel-tattoo/ which she said that she accessed on 14 October 2015.
19. The Commissioner contends that these extracts give an indication of the Applicant's negative attitude towards the police.

The Hawkesbury Gazette article

1. It is common ground that the Hawkesbury Gazette ran an article in relation to the Applicant and that the article was not accurate insofar as it referred to the Applicant's criminal history and intimated that the refusal to grant the licence was because of "a non-custodial criminal conviction recorded when he was 22" and that it was for a "non-violent" offence and he has never been in jail or in trouble with the law since".
2. The Commissioner contends that the Applicant received the benefit of the inaccuracy in that it was presented the Applicant more favourably than if it had been accurate and that the Applicant did not attempt to correct the inaccuracy or to contradict it on his Facebook page.
3. The Applicant stated that he was not aware that he could attempt to have the article corrected and denied that he had deliberately exploited the situation.

Submissions

1. The Applicant does not dispute his criminal record. He submitted that the media publicity surrounding the introduction of the legislation indicated that its purpose was to rid the industry of the influence of OMCGs. He contends that he has no affiliation with OMCGs and that to his knowledge OMCGs are still heavily involved in the industry. For this reason he is unhappy that his application was refused. He presented this as the circumstances underlying comments on his Facebook page. He contends that it shows no more than his frustration with the system and his concern that the efforts that he has made to change his lifestyle and build up his business could be disregarded.
2. The Commissioner contends that the Applicant's criminal record demonstrates a disregard for the law and propensity to re-offend and that it is a prima facie indicator of lack of fitness and propriety. Ms Rao submits that the Applicant must demonstrate that he is no longer unfit and she submits that the fact that the Applicant has displayed erratic behaviours in connection with his offending adds to the concerns.
3. Ms Rao further submits that the Applicant's medical reports lack detail and are therefore of limited value. While reference is made to the Applicant's psychological condition, there is no assistance given to assist in an assessment of the likelihood of reoffending.
4. In regard to the Applicant's character references, as well as the petition showing community support for his application, Ms Rao submitted that it is apparent that most of those who provided the references or contributed to the petition do not know the extent of the Applicant's criminal record. She submitted that for that reason the references and the petition should be given little weight.
5. In the circumstances, the Respondents contend that the Applicant has not established that he is a fit and proper person to hold the licence.

The references and the petition

1. In Gomes v Roads and Maritime Services [2014] NSWCATOD 130, Senior Member Scahill stated at paragraph [62] - [63]: 62. In relation to the references as to Mr Gomes' repute, the tribunal refers to Loye's case, Loye -v- Director General, Department of Transport [2000] NSWADT 145 at 42 and 44. In this matter the Tribunal gave less weight to the references provided which did not contain the referee's knowledge of the offences where the references were relied upon to show the Applicant was of good repute. 63. Evidence was provided orally by Mr Syed and Mr Hussein that they considered Mr Gomes to be a good person. Neither was aware however of Mr Gomes' complaint history in detail. Their evidence is not accepted as to Mr Gomes' good repute.
2. I expressed similar views in my decision in Sawires v Commissioner of Police [2010] NSWADT 4at paragraph [49] - [53]: 49 The applicant's character references: the applicant filed a number of character references in support of his submission that he is a person of good character and a fit and proper person to hold a security licence. The Commissioner submitted that the references should be given little or no weight. 50 The references mostly make no reference to any of the criminal allegations made against the applicant, the applicant's prior criminal convictions or the proceedings before the Tribunal. Those references … only refer to general events involving the applicant's then girlfriend in 2004. Mention of the charges laid by the NSW police are made only obliquely. 51 The Commissioner submitted that none of the references demonstrate that the author was aware of specific charges against the applicant, that the references were prepared with the knowledge that they would be used in proceedings seeking a reinstatement of the applicant's security licence and the issues in those proceedings, or that the referees understood that the applicant was previously found guilty of serious criminal offences. In particular, the references make no specific mention of the serious stalking charges brought against the applicant in 2004 and the finding against him for that offence. Some of the references predate this and other offences committed by the applicant. 52 Mr Zoppo, solicitor for the Commissioner submitted that there is longstanding authority that a reference should be given little or no weight where the referee has not demonstrated that they are aware of the person's offences and that, despite those offences they still believe the person to be of good fame and character: see for e.g., Tzoudas v Ministry of Transport [2008] NSWADT 350 at [42]; Council of the NSW Bar Association v Power [2008] NSWCA 135 at [39]. 53 The Tribunal has repeatedly accorded limited weight to references supplied in licensing cases that do not indicate knowledge of an applicant's past offences or negative history. In Director-General, Ministry of Transport v FV (GD) [2008] NSWADTAP 60, the Appeal Panel said: 40] Clearly an important factor to be taken into account in giving weight to references is what the authors know of the negative history of the subject, especially criminal convictions. Where references do not show a knowledge of negative history, they must be approached with caution.
3. I agree with the Commissioner that the petition and references provide little assistance in this matter. It is apparent that there is strong community support for the Applicant's business but in the absence of specific knowledge of the Applicant's record this support does not assist in determining whether or not the Applicant is a fit and proper person to hold the licence that he is seeking.

Discussion

1. It is clear from the material before me that the Applicant has a long history of conduct that is of significant concern. I agree that in the circumstances, it is necessary for the Applicant to establish that he is a fit and proper person to hold the licence notwithstanding that background.
2. The Commissioner has pointed to conduct that does the Applicant no credit. In particular the material that has been published on social media sites relating to the Applicant and the business suggest a negative attitude towards the police. However, it seems to me that this is more a marketing exercise designed to appeal to customers of the business than a serious contempt for authority. While it may be misguided, I do not agree that it demonstrates a disregard for the law or a propensity to re-offend.
3. It is apparent that the Applicant has attempted to work within the law to achieve his objectives in relation to his business.
4. I agree that the Hawkesbury Gazette article was inaccurate and that it was favourably to the Applicant. In the circumstances he should have taken steps to have the inaccuracy corrected or at least to have contradicted it on his social media sites. It does him no credit that he did not do so. However, I do not regard this is such a significant issue that it should prevent him from obtaining the licence.
5. In my view, the overriding factor is the Applicant's conduct over recent years, which indicates that he has made significant progress in changing his behaviour. It is clear that the Applicant has been subjected to extraordinary stress in recent times, particularly in relation to his personal relationships. While the medical reports that he relies on are lacking in detail, they are useful in that they confirm the Applicant's own evidence regarding this stress.
6. Notwithstanding those stressful circumstances the Applicant has not reverted to the type of conduct that is seen in his criminal history. The efforts that he has made to change his lifestyle and build up his business should be acknowledged. I am satisfied that he has demonstrated that he is no longer unfit.
7. In my view, the Applicant is a fit and proper person to hold the licence sought. Accordingly, the licence should be granted.

Order

1. The decision to refuse to grant the licence is set aside. In its place the decision is made that the 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: 05 January 2016