Dessmann v Commissioner for Fair Trading & Anor

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 223 and 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 a tattooist 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. If the Commissioner makes an adverse security determination Fair Trading has no discretion and must refuse to grant a licence.
3. Section 27(i)(a) of the Act provides for review of the refusal to grant a licence. In my earlier decisions I expressed the view that 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. Therefore the Tribunal has discretion to grant a licence notwithstanding the adverse security determination.

Background

1. The Applicant concedes that he was convicted of drug related offences on 26 June 2014. The Police Facts Sheet in regard to the charges that resulted in his convictions indicates that on 30 May 2014 police attended the Applicant's residence in relations to a domestic incident. He was subsequently detained and served with an urgent apprehended violence order.
2. Whilst inside the Applicant's residence, the police saw numerous forms of drugs and drug paraphernalia. They searched the premises and located and seized seventeen discrete dosage units of Lysergic Acid (LSD), two Methylenedioxymethylamphetamine (MDMA also commonly known as ecstasy) caps (0.3 grams), 45.5 grams of cannabis leaf, and three Diazepam tablets (2.5 grams)
3. The Applicant was cautioned and arrested for possession of prohibited drugs. He was subsequently interviewed and he made full and frank admission about the knowledge and possession of the seized drugs. He further stated that the drugs were for his personal use.
4. On 26 June 2014 he was convicted of a number of offences arising from the charges brought on that day.
5. As a result of those convictions, the Commissioner issued an adverse security determination to the effect that the Applicant is not a fit and proper person to hold the licence sought.
6. The Commissioner has subsequently raised the additional issue of whether it would be contrary to the public interest for the Applicant to be granted the licence.

The Issues

1. The issues to be determined are whether it would be contrary to the public interest for the Applicant to be granted the licence sought and whether the Applicant is a fit and proper person to hold the licence.

Fit and Proper

1. 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 wishes to 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.

Public Interest

1. The Tribunal may affirm the decision if it would be contrary to the public interest for the Applicant to be granted the licence. In my earlier decisions under the Act I have referred to a number of authorities that have considered the concept of the public interest. In my view the Act's provision for consideration of the concept of the public interest is intended to give the broader interests of the community priority over private interests.
2. The ' public interest' allows for issues going beyond the character of the Applicant to be taken into account. These may include consideration of concerns in relation to public protection, public safety and public confidence in the administration of the licensing system: Constantin v Commissioner of Police, NSW Police Force (GD) [2013] NSWADTAP 16. An applicant's personal interest in obtaining a licence cannot outweigh the public interest in having full confidence in the professionalism of people involved in the industry.

Evidence

1. The Applicant relies on his own evidence and a number of references provided in support of his application. These include a statement by his partner Aimee Stringfellow and a statement by his psychologist Amrita Chawla. Most of the references do not mention the Applicant's past.
2. The Applicant attended the hearing and was cross-examined.
3. The Respondents rely on non-confidential material as well as criminal intelligence information filed on a confidential basis and which has not been disclosed to the Applicant.
4. 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.
5. To the extent that was necessary I made orders under these sections.
6. The non-confidential material includes the Commissioner's redacted adverse security determination, the Applicant's criminal history and the Police Facts Sheet dated 3 June 2014. 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
3. [not for publication].
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The Applicant's evidence

1. The Applicant's evidence was that his convictions concerned possession of drugs that were all for his personal use. He said that police had wrongly assumed that he is a drug dealer. He stated that he is not a drug dealer or trafficker, nor does he know or associate with any type of organised crime or gang.
2. Under cross-examination the Applicant admitted that he had been using cannabis since he was about 18 years old. He said that he distinguishes between cannabis use and chemical use. His cannabis use was for pain relief for an injured ankle and as well as for recreational purposes. He smoked daily but only used chemicals once or twice per month. He had been using LSD and ecstasy for a year or two.
3. His evidence was that he obtained his drugs from casual acquaintances that he did not identify. He said that he always paid in cash and that he bought large quantities because it was cheaper and that it lasted him for a long period. This explained the quantities that were found at his premises in May 2014.
4. He stated that he has now ceased using illicit drugs. He has commenced seeing a psychologist who helps him to deal with stress. He commenced seeing the psychologist about one month prior to the hearing. The psychologist's clinical notes indicate that he had been cutting back on his drug use but that he was still continuing with some use. The Applicant's evidence was that the psychologist's notes are not a accurate record correctly of what he told her. In fact he told her that he had made efforts to cut back on the use and that in fact he has now ceased completely.
5. In relation to the incident on 30 May 2014, the Applicant denied that he had assaulted his partner.

Submissions

1. The Applicant submits that he has taken steps to address his drug use. These steps have included ceasing use of illegal chemical drugs, cutting back and ultimately ceasing use of cannabis and consulting a psychologist. He has tried to reform. He also submitted that he has the knowledge and ability to undertake the tasks involved in working as a tattooist.
2. The Commissioner contends that the Applicant does not have an extensive criminal history but nevertheless he has a history of drug use that has continued for over ten years. His cannabis use was daily for a long period and his use of chemical drugs was for a period of over two years.
3. Mr El-Hage submitted that the recent convictions for possession of drugs are serious. They demonstrate that the Applicant has a willingness to disregard the law. This conduct counts against a finding that he is a "fit and proper" person i.e. a person with sufficient moral integrity and rectitude of character, to hold a licence under the Act.
4. He further submitted that the Applicant's continued use of illicit drugs indicates that he did not seek to reform himself and address his past wrongdoings.
5. In addition, Mr El-Hage submitted that the Applicant's continued use of illicit substances, such as cannabis, would create a risk for members of the public who seek to have a tattoo done by the Applicant because in some instances the Applicant might be under the influence of such drugs. It is not in the public interest to grant a licence to the Applicant in light of such risks.
6. In regard to the Applicant's efforts to address his drug use, Mr El-Hage pointed to the fact that the Applicant had not made any prior efforts in that regard. He further submitted that it is way too soon to be confident that the Applicant has succeeded in his objective. The convictions are recent. The consultation with the psychologist is recent and the AVO is recent.
7. In regard to the Applicant's character references, Mr El-Hage pointed to the fact that most of the references do not mention the Applicant's past. He submitted that, as such, they should be given little weight. In support of that submission he relies on the decision in Gomes v Roads and Maritime Services [2014] NSWCATOD 130, where 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.
8. I expressed similar views in my decision in Sawires v Commissioner of Police [2010] NSWADT 4 at 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.
9. In the circumstances, the Respondents contend that the Applicant has not established that he is a fit and proper person to hold the licence.

Discussion

1. Essentially, I agree with the Commissioner in that it is too early to be satisfied that the efforts that the Applicant has made to address his drug use has been successful.
2. I am satisfied that the Applicant is committed to this occupation and that it is where his talents are suited. However, it is necessary to take account of his convictions and the long period of drug use.
3. It is clear that in order to meet his requirements the Applicant has needed to obtain the illegal drugs in circumstances where the suppliers are operating outside of the law. The Applicant has conceded that he has been dealing with those suppliers in circumstances where he does not know their identities or their associations. He has no knowledge of the drug production and distribution networks, or how sophisticated those networks might be. Over a long period of time he has turned a blind eye to that aspect of the supply of illegal drugs.
4. The regulation of the tattoo industry is intended to ensure that the criminal element has no role to play in tattoo parlours. Traditionally there has been heavy involvement of outlaw motorcycle gangs in the tattoo industry. This resulted in turf wars and pressure being brought on people who are not affiliated with those gangs to comply with the demands of those gangs. The potential exists for those working in the industry to be subjected to that type of pressure.
5. It is unclear how the Applicant would cope with that type of pressure. However, the fact that for the last ten years he has been prepared to turn a blind eye to the laws regarding the supply, purchase and use of illegal drugs makes me concerned that he may have difficulties in complying with those requirements in the immediate future.
6. I accept the Applicant's evidence that he is now clean of illegal drugs. However, the fact that he has had such a long period of drug use and has only been clean for a short time, raises doubts about how successful he will be in continuing on the path he has taken.
7. In my view, the Applicant must show a longer drug-free period before I would be prepared to grant the licence. The fact that he has sought assistance from a psychologist is a step in the right direction. If he continues with that arrangement it should greatly assist his chances of obtaining he licence in the future.
8. The Applicant is clearly making an effort to turn his life around. He has a job, he is off the drugs and he is obtaining help. That is as much as he can do at this stage; but he needs to keep doing it. I recommend that if he completes the program with the psychologist and is able to continue with his efforts for a reasonable time and if he makes a fresh application, then the licence should be granted. It is difficult to give any guidance as to how long 'a reasonable time' would need to be. I suggest that it would be at least six months from the date of hearing.
9. However, at this time the decision should be affirmed.

Order

1. The decision 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 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 December 2015