Do v Commissioner for Fair Trading

Background to the Application

1. On 12 April 2019, the Applicant applied to the Commissioner for Fair Trading for a tattooist licence under the TP Act. Section 11 of the TP Act requires an application for a tattooist licence to be made to the "Secretary" which, by virtue of the definition in section 3 of the TP Act, was relevantly the first respondent.
2. Section 14(1) of the TP Act provides: 14 Investigations, inquiries and referrals in relation to licence applications (1) If the Secretary receives an application for a licence or for the renewal of a licence, the Secretary - (a) may carry out such investigations and inquiries in relation to the application as the Secretary considers necessary for a proper consideration of the application, and (b) is to refer any application that the Secretary considers to have been duly made (along with any supporting information) to the Commissioner for an investigation and determination as to any one or more of the following - (i) whether the applicant is a fit and proper person, (ia) whether a close associate of the applicant is a fit and proper person, (ii) whether it would be contrary to the public interest for the licence to be granted or renewed.
3. "Commissioner" is defined in s 3 of the TP Act as the Commissioner of Police. Pursuant to s 14(1)(b) of the TP Act the first respondent referred the application to the Commissioner of Police, the second respondent.
4. Section 19 of the TP Act relevantly provides: 19 Commissioner to make security determinations about applicants and licensees (1) If an application for a licence is referred to the Commissioner for investigation under section 14, the Commissioner is to inquire into and determine, and report to the Secretary on, any one or more of the following - (a) whether the applicant is a fit and proper person to be granted the licence, (a1) whether a close associate of the applicant is a fit and proper person, (b) whether it would be contrary to the public interest for the licence to be granted. … (3) For the purpose of making a determination on a matter referred to in subsection (1) or (2), the Commissioner may have regard to any criminal intelligence report or other criminal information held in relation to the applicant or licensee (or a close associate of the applicant or licensee) that - (a) is relevant to the business or procedures proposed to be carried on or performed, or carried on or performed, under the licence, or (b) causes the Commissioner to conclude that improper conduct is likely to occur if the applicant were granted the licence or the licensee continued to hold the licence, or (c) causes the Commissioner not to have confidence that improper conduct will not occur if the applicant were granted the licence or the licensee continued to hold the licence. (4) For the purpose of making a determination on a matter referred to in subsection (1) or (2) and without limiting subsection (3), the Commissioner may consider the following - (a) information relating to spent convictions, despite anything to the contrary in the Criminal Records Act 1991, (b) information relating to criminal charges, whether or not heard, proven, dismissed, withdrawn or discharged, (c) information relating to offences, despite anything to the contrary in section 579 of the Crimes Act 1900.
5. On 17 September 2019, the second respondent made a determination and report, pursuant to s 19(1) of the TP Act, that: 1. the applicant is not a fit and proper person to be granted the licence, due to his criminal history and disregard for licensing legislation; and 2. it would be contrary to the public interest for the applicant to be granted the licence, due to this criminal history.
6. This constituted an "adverse security determination" as that term is defined in s 3 of the TP Act.
7. Section 16 of the TP Act relevantly provides: 16 Decision of Secretary in relation to licence applications (1) The Secretary may, after considering an application for a licence or for the renewal or restoration of a licence and the determination of the Commissioner under section 19 on the application, grant, renew or restore the licence or refuse to grant, renew or restore the licence. … (3) The Secretary must not grant, renew or restore a licence if - … (c) an adverse security determination has been made by the Commissioner about the applicant.
8. On 25 November 2019, in accordance with section 16(3)(c) of the TP Act, a delegate of the Commissioner for Fair Trading informed the applicant of their decision to refuse to grant the application for a tattooist licence and provided the applicant with a statement of reasons.
9. On 9 December 2019, the applicant filed his application for administrative review of the decision.
10. Section 27 of the TP Act relevantly provides: 27 Right to seek administrative review from Civil and Administrative Tribunal (1) A person (other than a controlled member of a declared organisation) may apply to the Civil and Administrative Tribunal for an administrative review under the Administrative Decisions Review Act 1997 of the following decisions - (a) the refusal or failure by the Secretary to grant a licence to the person, ... (3) If an application for a licence or for the renewal of a licence was refused or a licence was suspended or cancelled by the Secretary on the ground of an adverse security determination made by the Commissioner about the applicant for the administrative review or a close associate of the applicant - (a) the Commissioner (as well as the Secretary) is to be a party to any proceedings in the Civil and Administrative Tribunal for an administrative review of the decision of the Secretary, and (b) the Tribunal is to be provided with a copy of the report of the Commissioner's determination, and (c) the Tribunal is not prevented from determining whether the Secretary made the correct and preferable decision regarding the application or the licence concerned merely because of the determination of the Commissioner. … (5) Section 53 (Internal reviews) of the Administrative Decisions Review Act 1997 does not apply in relation to a decision referred to in subsection (1).
11. Sub-sections (4)-(4B) of s 27 make provision for the protection of criminal information against disclosure in the course of an application for review. The second respondent's adverse security determination in this case did not contain such material.

The evidence

1. The applicant relied upon two statements, signed by the applicant, dated 24 February 2020 and 23 April 2020. The applicant also tendered character references from: 1. Ian Cimera, dated 12 December 2019; 2. Eduardo Camps, dated 13 December 2019; 3. Jimmy Do, dated 2 January 2020; 4. Lacy London (unsigned), dated 6 January 2020; 5. Tmara Johnson, dated 29 January 2020; 6. and letters from: 7. Gordana Ruzic, Fairfield Enhanced Care Team, South West Sydney Local Health Network dated 17 October 2019; and 8. Binh To, Cabramatta East Day & Night Pharmacy, dated 24 March 2020.
2. The applicant filed written submissions in support of his application, dated 24 February 2020.
3. The Respondents relied upon the following material: 1. Documents filed pursuant to section 58 of the Administrative Decisions Review Act 1997 (s 58 documents) on 20 January 2020. 2. Adverse Security Determination, dated 17 September 2019. 3. Affidavit of Leanne Neilsen, an Assessment Officer with the New South Wales Police Force, dated 17 April 2020 (with exhibit LN-1). 4. Bundle of correspondence, filed 7 May 2020.
4. The respondents filed written submissions opposing the application, dated 7 May 2020.
5. The hearing of the application took place by telephone on 11 May 2020. The applicant appeared in person. The respondents were represented by Mr R Coffey of Counsel.

The applicant's evidence

1. The applicant gave oral evidence and was cross-examined by Mr Coffey. Part of the applicant's evidence was given with the benefit of a certificate pursuant to s 128 of the Evidence Act 1995 (NSW).
2. Three of the applicant's referees, Mr Camps, Ms Johnson and Ms London also gave oral evidence and were cross-examined by Mr Coffey.
3. In his statement of 24 February 2020, the applicant set out the background to his application including his employment history and his training as a tattooist. The applicant stated that in about 1999 he had started an apprenticeship at a tattoo studio called Tattoo Nation in Cabramatta. He stated that he worked there for about a year until it closed. He then went overseas for a year and upon return worked in a number of other jobs.
4. The applicant stated that in about 2009 he got a job at House of Ink in South Granville. He stayed there for about a year and then worked at Rox Ink in South West Rocks for a month while the regular tattooist was away on holidays.
5. The provisions of the TP Act which require tattoo parlours and persons performing body art tattooing for reward to be licensed commenced operation on 1 October 2013.
6. The applicant stated that in around early 2016 he started working as a general hand and head designer at Inkd Up in Guildford. The applicant stated he was responsible for "cleaning, serving customers and taking bookings". He stated that he also designed most of their tattoos.
7. On 22 October 2016 the applicant applied for a tattooist licence. That application was refused on 9 August 2017. The applicant states that after lodging his application he started doing some tattooing work at Inkd Up so that he could learn new skills and techniques. He stated that he was not paid for this tattooing work.
8. The applicant stated that in around early 2017 the Inkd Up business was sold and the name of the business changed to "Blaque Cat Studios". The applicant stated that he "stayed on as the manager" of Blaque Cat Studios in which role he was responsible for opening and closing the studio. The applicant stated that Blaque Cat Studios closed in or around March 2017 and that he has not worked in a tattoo studio since. He records that he is currently unemployed and has been since 2017.
9. The applicant acknowledged a criminal history involving a number of interactions with the Police, commencing with a conviction for two offences of break and enter in 2002 which he attributed to a bad drug problem. He pleaded guilty and received a 12 month good behaviour bond.
10. The applicant was also charged in 2007 with custody of a knife in a public place and armed with intent to commit an indictable offence. Those charges were later dropped. The applicant was charged in 2011 with possession of a prohibited drug and possession of ammunition without holding a licence. The applicant explained that the ammunition consisted of bullets that he had found at a park near his mother's house when he was a teenager. The drug in question in the possession offence was marijuana. The applicant pleaded guilty to those charges and received a fine.
11. In April 2013 the applicant was found in possession of heroin and charged with possession of a prohibited drug. He pleaded guilty, and again received a fine.
12. The applicant gave further details of his drug issues, stating that he had started methadone treatment in 2002 and had ceased using heroin in about 2014, although he remains on the methadone programme, taking methadone every day.
13. The character references and letters tendered by the applicant supported his evidence that he was on a methadone programme.
14. The applicant also gave evidence that since ceasing to work at Blaque Cat Studios in 2017 he occasionally tattooed friends and family members in order to improve his skills and keep up his portfolio. He stated that he did not charge for that work. He also gave evidence that he done some unpaid tattooing work at Inkd Up and Blaque Cat Studios while working there.

Respondents' evidence

1. The respondents' evidence included the second respondent's security determination, and information relevant to the applicant's criminal record and other interactions with the Police.
2. The adverse security determination and Ex LN-1 to Ms Neilsen's affidavit, contained a number of documents extracted from the internet. Those documents included extracts of Facebook profiles for "TC Oriental Skin Art", "Jayde Do Arts", "Jayde Do" and "Blaque Cat Tattoo Studio".
3. The documents included in the security determination were downloaded in July or September 2019. Exhibit LN-1 contained documents downloaded in April 2020.
4. Ms Neilsen's affidavit identified that the "Jayde Do Arts" Facebook page was no longer available on Facebook by December 2019 and that the "TC Oriental Skin Art" Facebook page had been deleted or deactivated by April 2020.
5. Ms Neilsen included in EX LN-1: further extracts from the "Jayde Do" Facebook page which had been posted since 15 January 2018, an Instagram entry for "Jayde Do", pages from "AustraliaListed.com" entitled "TC Oriental Arts and Tattoo in Ingleburn, New South Wales For Sale" and a posting on "Vymaps.com" entitled "TC Oriental Skin Art".
6. Ms Neilsen also gave evidence of having carried out searches on the database containing records for tattoo licensing in New South Wales and having identified that a Mr Cimera held an operator licence for a tattoo studio in Guildford with the name "Inkd Up Guildford" for the period from 20 June 2014 to 19 June 2017. Ms Neilsen stated that the database contained no records of any holder of an operator licence or applications for an operator licence using the name "Blaque Cat Tattoo Studio".

The Adverse Security Determination

1. The second respondent's adverse security determination set out under two headings the reasons for making an adverse determination against the applicant.
2. The first heading was that "The applicant has a history of involvement in relevant, serious criminal activity".
3. Under that heading the second respondent's delegate referred to the applicant's admitted involvement in purchasing illicit drugs and to COPS event reports which disclose that the applicant was given directions pursuant to s 197 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) on a number of occasions between 2008 and 2015.
4. The second respondent's delegate also noted that the applicant's convictions for possession of a prohibited drug and possession of a weapon disqualified the applicant from holding a licence under the Security Industry Act 1997 (NSW), the Commercial Agents and Private Inquiry Agents Act 2004 (NSW), the Firearms Act 1996 (NSW) and the Weapons Prohibition Act 1998 (NSW) for 10 years from the dates of conviction.
5. The delegate stated "based on his criminal history I have formed the opinion that the applicant has demonstrated poor character and disregard for the personal rights and safety of others and for the law in general…". The delegate also stated that they had "formed the opinion that insufficient time has elapsed for the Commissioner to be confident that the applicant would comply with the requirements inherent in the TPA".
6. The second heading under which the second respondent's delegate set out their reasons for their adverse finding was that "The applicant has demonstrated a history of disregard for the law and licensing legislation".
7. The second respondent's delegate referred to the pages downloaded from Facebook. They concluded that the applicant had been knowingly performing body art tattooing proceedures and operating an unlicensed tattoo parlour in breach of the TP Act since 2013.
8. The delegate referred to a post uploaded to the "Jayde Do Arts" Facebook page on 22 March 2019 which "advertises a business card for Sydney Original Custom Skin Art by Jayde Do Arts". The delegate concluded that each of the "Jayde Do", "TC Oriental Skin Arts" and "Jayde Do Art" Facebook pages were associated with the applicant and concluded: "multiple posts uploaded to each of these Facebook pages showcase images of body art tattooing procedures uploaded between March 2018 and September 2019".
9. The delegate stated "the combination of the images and booking instructions suggest that the pages are used to attract paid customers looking to obtain a tattoo".
10. The delegate also referred to the applicant's driving history, which disclosed twenty three traffic infringements or driving offences between 2006 and 2018.
11. The delegate concluded: "When viewed in conjunction with the rest of his criminal history, the applicant's behaviour demonstrates a wilful disregard for the law, poor character and a disregard for the personal rights and safety of others. The conduct further calls into question the applicant's moral integrity and whether he is a fit and proper person to hold a tattooist licence."

Oral Evidence

1. In cross-examination by Mr Coffey, the applicant denied that he was conducting a business as a tattooist for reward. He maintained that he had ceased working at Rox Ink in 2012 before the TP Act commenced operation, that he had not carried out tattooing at Inkd Up, and that the assertion in paragraph 55 of his statement, that he had started doing some tattooing work at Inkd Up so that he could learn new skills and techniques, was not correct.
2. The applicant acknowledged that he knew Blaque Cat Studios needed a licence under the TP Act and that he knew it did not have one while he was working there.
3. The applicant acknowledged that he had been involved in tattooing customers at Blaque Cat Studios. He stated that he had tattooed between 10 and 15 people at Blaque Cat Studios, some from start to finish, and in other cases cover up work or parts of tattoos.
4. The applicant stated that the customers had paid the owner for that work and acknowledged that he had received about half of the money received by the owner for that work. The applicant acknowledged that he knew that that was an offence under the TP Act.
5. The applicant maintained that since leaving Blaque Cat Studios he had only tattooed friends and family and had not charged for that work. Although he initially stated that he had last performed a tattoo in September 2019, he subsequently acknowledged that he had carried out tattooing work in January 2020.
6. The applicant acknowledged that the "TC Oriental Skin Art", "Jayde Do Arts" and "Jayde Do" Facebook pages were his and had been maintained by him.
7. The applicant was asked about entries on his Facebook pages. On 21 May 2018 the applicant posted on the "Jayde Do Arts" Facebook page: "Hey ppl as many of you know I'm a full time artist/tattooist. Please view my Instagram for more detailed work at Jayde Do.Arts And don't forget to hit me up for you are nxt custom one off piece #great rates"
8. The applicant initially suggested that that Facebook entry related to the period he had worked at Blaque Cat Studios. However I note in this context that in his statement the applicant had stated that Blaque Cat studios had closed in 2017.
9. On 7 December 2019 a Ms Cooke posted a comment under photographs of a tattoo: "how much would this cost same everything! I love this great work". The applicant respondent "DM me". The applicant acknowledged that the photographs were of a tattoo which he had done.
10. The applicant acknowledged that "DM me" meant "direct message me" by which he was asking Ms Cooke to send him a private message on Facebook. The applicant's evidence was that Ms Cooke had not responded.
11. On 22 March 2019 the applicant posted on the "Jayde Do Arts" Facebook page a picture which included the words "Sydney Original Custom Skin Art, Jayde Do Artworks, Chicano/Oriental Ink Est 2013" and appended to that picture the comment "new business cards Dm for your nxt skin art piece".
12. When asked what was the purpose of new business cards in circumstances, where, as he alleged, he was only offering tattooing to his friends and family, the applicant stated "Yeah I made a business card you know. There was like really no major purpose to it or anything like that."
13. When it was suggested to the applicant that "the business card is a tool used to continue to market your unlawful tattooing business that you have been operating?" the applicant responded "Yes I can see how you know you can see that Mr Coffey."
14. The pages downloaded from "AustraliaListed.com" in Ex LN-1 included the entry "TC oriental arts and tattoo in INGLEBURN, for sale" and photographs which had been posted to the "Jayde Do" Facebook page in 2013. AustraliaListed.com appears to be a form of business directory. The following statement appears under the photographs: "hi there my name is jayde, and im a tattooist, ive been tattooing for a number of years now,during that time ive worked for various studios,my forte is oriental , all work is custom and free handed,i normally take on really large projects like sleeve and so on but i pretty much take on anything these days except portaits,my price is 60 an hour… ( plz go to my face book jayde do…tc oriental skin art) to see more of my work..(,mobile service for a fee)..ps please call me in person,no email..all equipment is brand new and sterile"
15. The applicant denied that he was responsible for the creation of that web page or the entry on the web page. He stated that the name used in the heading "TC Oriental Arts and Tattoo" is not a manner in which he had ever identified himself. The applicant gave evidence that he had not seen that page before it was exhibited to Ms Neilsen's affidavit. When asked whether he had taken steps to have the page removed, he stated "I haven't made any attempts about it because I didn't know how to go about it".
16. In relation to the page downloaded from "Vymaps.com" (which is also apparently a business directory) the applicant denied that he was responsible for that web page or had lodged any advertisement of that nature. The applicant pointed out that the page provided the longitude and latitude co-ordinates for his home which he stated that he had never provided.
17. The applicant acknowledged receiving a summons requiring him to produce financial records and that he had failed to produce those records. He sought to explain his failure to produce his financial records by reference to a concern to protect his privacy.
18. Each of Mr Camps, Ms Johnson and Ms London gave oral evidence in support of the applicant.
19. Ms Johnson and Mr Camps are in a relationship. Each of them gave evidence that they had had tattoos performed by the applicant. Each also gave evidence that they had not paid the applicant for those tattoos.
20. Mr Camps' evidence was that the applicant had performed a tattoo on him around 2014 at Mr Camps' home. Mr Camps stated that he had purchased the needles and ink through Ebay and he had not paid the applicant in any way for the three tattoos which he had had performed.
21. Ms Johnson also gave evidence that the applicant had given her two tattoos a few years ago at Mr Camps' house. The needles and ink had come from a kit which she and Mr Camps had purchased for her niece and had never been used. Ms Johnson confirmed she had not paid for the tattoo.
22. Ms London had not been tattooed by the applicant. She had met him while she was getting work done by other tattooists at Inkd Up. She stated she was aware of the applicant's Facebook profiles and had commented on the applicant's Jayde Do Facebook page on 17 February 2019 in relation to a comment by the applicant that his ceramic lucky cat had gone missing "I hope it wasn't a client that did that".
23. Her explanation for using the word "client" was that she had made an assumption that the applicant might have had a client who might have taken the cat but she hadn't spoken to the applicant much over the last five years and that as far as she knew the applicant had not been carrying out tattooing in that time.

Tattoo Parlours Act 2012 (NSW)

1. The TP Act establishes a comprehensive licencing regime for tattoo parlours and tattooists in New South Wales.
2. The TP Act applies in addition to the Public Health Act 2010 (NSW), which is concerned with public health issues and the procedures adopted by tattooists.
3. Section 9(1) of the TP Act provides for two classes of licence to be granted: 1. an operator licence; and 2. a tattooist licence.
4. An operator licence authorises the licensee to carry on a body art tattooing business (whether on their own behalf or on behalf of another person) at the premises specified in the licence in accordance with the TP Act and the conditions of the licence: section 9(2). A tattooist licence authorises the licensee to perform body art tattooing procedures in accordance with the TP Act and the conditions of the licence: section 9(3).
5. It is an offence to "perform any body art tattooing procedure for fee or reward unless authorised to do so by a tattooist licence": section 7(1).
6. The Tribunal has the discretion to grant a licence, despite the making of an adverse security determination by the Commissioner of Police. This is so notwithstanding that the first respondent did not have any discretion in that regard but was bound by the second respondent's adverse security determination. However, the Act does not expressly confer upon the Tribunal power to revisit the adverse security determination itself.
7. In Smith v Commissioner of Police, NSW Police Force [2014] NSWCATAD 184, the Tribunal set out the approach to be adopted when undertaking a review of a decision to refuse an application for a licence under the TP Act as a result of an adverse security determination: 13 The Tribunal's jurisdiction to review the decision is constrained by the terms of the Act. Pursuant to section 27(i)(a) of the Act, review may be sought of the refusal or failure by the Director-General to grant a licence. The Act does not expressly confer jurisdiction on this Tribunal to review any report or determination made by the Commissioner. 14 However, pursuant to section 27(3) of the Act: (3) If an application for a licence was refused or a licence was suspended or cancelled by the Director-General on the ground of an adverse security determination made by the Commissioner about the applicant for the administrative review: (a) the Commissioner (as well as the Director-General) is to be a party to any proceedings in the Civil and Administrative Tribunal for an administrative review of the decision of the Director-General, and (b) the Tribunal is to be provided with a copy of the report of the Commissioner's determination, and (c) the Tribunal is not prevented from determining whether the Director-General made the correct and preferable decision regarding the application or the licence concerned merely because of the determination of the Commissioner. 15 Accordingly, unlike the Director-General, this Tribunal has the discretion to grant a licence despite an adverse security determination made by the Commissioner. Whilst the Commissioner's report or security determination is not under review, the Tribunal may nevertheless decide to grant a licence despite the adverse determination. 16 The Act provides that the assessment of whether an applicant is fit and proper and the public interest assessment rest with the Commissioner. The Act also specifies that it is the Director-General's decision that is under review, and not the Commissioner's determination. Section 8(2) of the ADR Act provides that the person or body whose decisions are administratively reviewable decisions is taken to be the only administrator in relation to the making of an administratively reviewable decision even if some other person or body also had a role in the making of the decision. The question therefore arises as to the correct approach to be taken by the Tribunal in determining these types of applications. 17 The provision and power must be construed in a way that is consistent with the language and purpose of all the provisions of the Act. … … 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. Mr Gallacher stated: When tattoo parlours are no longer controlled by bikies, they will not be so closely associated with serious acts of violence, such as shootings and fire-bombings. Bikies will no longer feel that they 'own' the industry - that they have the right to stand over, and extort, owners of tattoo businesses who are unaffiliated with outlaw motorcycle gangs. Nor will tattoo parlours be able to provide a means for organised criminals to launder the proceeds of crime. ... The bill sets out the role of the Commissioner of Police in the scheme. In addition to the role of the Commissioner of Police in the granting of a licence, the Commissioner of Police can undertake inquiries into licensees at his own initiative, or at the request of the Commissioner for Fair Trading. This will be important where police become aware that a licensee is engaging in conduct that might cause the Commissioner of Police to determine that the licensee was not a fit and proper person, or that it would be contrary to the public interest for the licensee to retain a licence. The bill provides that the Commissioner of Police may consider criminal intelligence or other criminal information in relation to an applicant or licensee or in relation to a close associate of an applicant or licensee. Criminal information and intelligence can include information relevant to the business or procedures to be carried out under the licence, or that gives an indication that some improper conduct could occur if the applicant were granted a licence, or a licensee were permitted to retain a licence. But it should be made clear that some people currently in the tattoo industry may regularly associate with bikie members unwillingly. For example, they may be forced to pay them protection money. The Commissioner of Police will distinguish between those who have willingly assisted and associated with criminals on the one hand, and on the other, people who are essentially victims of extortion. The bill also provides protections for criminal intelligence considered by the Commissioner of Police or the Commissioner for Fair Trading. ... One of the Government's aims in introducing this legislation is to ensure that tattoo parlours cannot be used to launder the proceeds of crime. To that end, the bill makes it a condition of an operator licence that the licensee must make certain business financial records available for inspection by an authorised officer at a reasonable time. Licensees will also be required to report on any change of licence particulars within 14 business days of the change occurring. Particulars could include change of the licensees' residential address, or a change in close associates. The regulations may also make provision for other relevant particulars. To ensure that a business cannot employ unlicensed tattooists in a body art tattoo business, and that all employees are subject to proper scrutiny, it will be a condition of an operator licence that the operator informs the Commissioner of Fair Trading within 20 business days of any change in staff member employment at the licensed premises. A change in staff member employment includes a new staff member commencing employment, or a staff member ceasing employment at the licensed premises. The definition of staff members is not limited to licensed tattooists, but to any staff member employed at the licensed premises. Without this definition, there is a risk that, in an attempt to avoid scrutiny by the regulators, the real operator of the premises may be employed there in another capacity, for example as a book keeper or receptionist. 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. 21 The legislation provides that the Tribunal has jurisdiction in relation to: • refusal or failure to grant a licence; • imposition of licence conditions; and • suspension or cancellation of a licence. 22 The Tribunal may grant a licence or reinstate a licence in the face of an adverse security determination in circumstances where the Director-General could not do so. While there is no express power to revisit the adverse security determination, section 27(3)(c) of the Act provides that the Tribunal is not prevented from determining whether the Director-General made the correct and preferable decision regarding the application or the licence concerned merely because of the determination of the Commissioner. 23 I do not agree with the Applicant's submission that, because of the section 26(1)(b) requirement that the Director-General cancel the licence once an adverse security determination is made, in truth the Director-General has not made a "decision" at all. While cancellation is the only option available to the Director-General once an adverse security determination is received, before taking that action the Director-General must make a finding of fact that the Commissioner had in fact made an adverse security determination in relation to a licensee. The decision making process therefore involves an assessment of the Commissioner's determination and then acting on that determination. 24 The Commissioner contends that the Tribunal is required to take the adverse security determination into account as an essential legally relevant consideration to which weight must be given. I agree with that contention. 25 The Commissioner also contends that that the Tribunal is required to take the adverse security determination as a starting point or prima facie position, which the Applicant bears the burden of displacing. That is, the Commissioner contends that the Tribunal would only form a view contrary to the Commissioner's view after according due weight to the adverse security determination. 26 While I agree that the Tribunal would only form a view after consideration of any material that the Commissioner put before it, I do not agree that the adverse security determination is a starting point or prima facie position. 27 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 is not confined to the grounds relied upon by the Commissioner in making the adverse security determination. 28 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. Pursuant to section 27(3)(a) of the Act the Commissioner is a party to the proceedings. The Commissioner is able to present material and argument in relation to the matter to be determined. The Commissioner is able to present criminal intelligence reports or other criminal information to the Tribunal and subsections 27(4), (4A) and (4B) of the Act provide safeguards in relation to that material. 29 These safeguard provisions are comparable to those found in section 29 of the Security Industry Act 1997 and the approach taken by the Tribunal in determining applications under that Act. 30 To some extent, the scheme established by the Act is comparable to that under the Explosives Act 2003. That Act regulates the handling of explosives and explosives precursors, and makes provision in relation to the conveyance of explosives, their negligent handling, and the supply of explosives to minors. The WorkCover Authority is the regulatory authority but section 13 of the Explosives Act enables the regulatory authority to obtain reports from the Commissioner of Police in relation to a security clearance or licence. The impact of a report recommending "that the person should not be granted a security clearance or licence on the basis of criminal or security intelligence or other information available to the Commissioner" is a mandatory refusal of the security clearance. The security clearance is a prerequisite to obtaining licence. 31 Notwithstanding the nature of the scheme and the mandatory consequences of a negative report from the Commissioner, the Tribunal has construed that legislative scheme as providing jurisdiction to make a fresh determination on the basis of the material placed before it. For a discussion of the scheme established under the Explosives Act see YJ v Chief Executive Officer, WorkCover Authority [2006] NSWADT 264. 32 Section 63 of the ADR Act provides that in determining an application for review of an administratively reviewable decision the Tribunal is to make the correct and preferable decision having regard to the material before it, and any applicable written or unwritten law. While it is clear that the Director-General is the administrator for the purposes of section 63 of the ADR Act, and the administratively reviewable decision is that of the Director-General, in my view section 27(3)(c) of the Act is to be construed as giving the Tribunal the power to make a fresh determination, notwithstanding the wording of section 8 of the ADR Act. 33 It is also my view that in considering an application for review under the Act, the Tribunal is not constrained to have regard only to the material that was before the Director-General, but may have regard to any relevant material before it at the time of the review. 34 This is comparable to the approach taken by the Tribunal in determining applications under the Explosives Act.
8. The respondents relied upon Smith as setting out the correct approach to the determination of an application for review of a decision to refuse a licence under the TP Act. As stated by the Tribunal in Smith (at [16]), the TP Act requires assessment whether an applicant for a licence is fit and proper and whether it is in the public interest to grant the applicant a tattooist licence.

Fit and proper person

1. The expression "fit and proper" is not defined in the TP Act or the Tattoo Parlours Regulation 2013 (NSW).
2. In Austin v Commissioner of Police [2016] NSWCATAP 179 at [58] the Appeal Panel of the Tribunal distilled the authorities into six propositions: 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.
3. The respondents submitted that relevant contextual matters in the consideration of the meaning of "fit and proper" in the TP Act include the following: "(a) the TP Act imposes requirements that would have the effect of eradicating criminal elements/links from the tattooing industry. As the Tribunal stated in Smith (at [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.'; (b) there are strict prohibitions on body art tattooing without a tattooist license. Parliament has provided for penalties to be imposed against persons who violate these provisions: section 7 of the TP Act; (c) an applicant for a license must consent to having his or her fingerprints and palm prints taken by police to confirm his or her identity: section 13; (d) there is a mandatory requirement for the Commissioner to assess an applicant's fitness and propriety; see section 14. That determination is not subject to review; and (e) the Secretary is precluded from granting a license in circumstances where the Commissioner makes an ASD [adverse security determination]."
4. In AJO v Director-General, Department of Transport [2012] NSWADT 101 the Administrative Decisions Tribunal stated at [24]-[33]: 24 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. 25 In Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321,Chief Justice Mason explained that, at 380: 'The question whether a person is fit and proper is one of value judgment. In that process the seriousness or otherwise of particular conduct is a matter for evaluation by the decision maker. So too is the weight, if any, to be given to matters favouring the person whose fitness and propriety are under consideration.' Toohey and Gaudron JJ said at 380: "The expression "fit and proper person", standing alone, carries no precise meaning. It takes its meaning from its context, from the activities in which the person is or will be engaged and the ends to be served by those activities. The concept of "fit and proper" cannot be entirely divorced from the conduct of the person who is or will be engaging in those activities. However, depending on the nature of the activities, the question may be whether improper conduct has occurred, whether it is likely to occur, whether it can be assumed that it will not occur, or whether the general community will have confidence that it will not occur. The list is not exhaustive but it does indicate that, in certain contexts, character (because it provides indication of likely future conduct) or reputation (because it provides indication of public perception as to likely future conduct) may be sufficient to ground a finding that a person is not fit and proper to undertake the activities in question." 26 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) 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." 27 In Sobey v Commercial and Private Agents Board 20 SASR 70 Walters J said: "In my opinion what is meant by that expression is that the applicant must show not only that he is possessed of a requisite knowledge of the duties and responsibilities evolving upon him as the holder of a particular licence ... but also that he is possessed of sufficient moral integrity and rectitude of character as to permit him to be safely accredited to the public ... as a person to be entrusted with the sort of work which the licence entails." 28 Fitness and propriety are flexible concepts. A consideration of whether a person is fit and proper involves an assessment of their knowledge, honesty and ability in the context of the role they are seeking to undertake. Thus in Obradovic -v- Commissioner for Fair Trading, Office of Fair Trading (GD) [2006] NSWADTAP 18 the Appeal Panel agreed that a formerly licenced building contractor should have his application for a new licence refused, despite there being no evidence that he was dishonest or of bad repute. Evidence that he had been extremely tardy and intransigent in dealing with customer complaints, and the regulator, when he held a licence, was sufficient to conclude that he was not fit and proper for the role. In that case the licensing scheme was among other things, designed to protect consumers and to provide them with adequate means of redress against licensed contractors. In Bond the assessment occurred in the context of whether the applicant was a fit and proper person to hold a licence under the Broadcasting Act 1942 (Cth). 29 In Saadieh v Director General, Department of Transport [1999] NSWADT 68, Hennessey DP set out the factors to be taken into account in determining a person's suitability and fitness to obtain a taxi authority. They are: the nature, seriousness and frequency of any criminal offences for which the applicant has been arrested or convicted; the applicant's reputation in the community; and the likelihood that the applicant will re-offend, be the subject of further complaints or commit further traffic offences. 30 In Director General, Transport NSW v AIC (GD) [2011] NSWADTAP 65 the Appeal Panel, at [37] the Appeal Panel drew attention to the role public interest considerations play in the assessment of fitness and propriety. The courts have emphasised the connection that assessment of repute, fitness and propriety have in a regulated context with public interest considerations. Repute, fitness and propriety involve concepts that should not be 'narrowly construed or confined' and may extend to 'any aspect of fitness and propriety that is relevant to the public interest' (Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 (26 July 1990) at [64] per Mason CJ. .... 31 The discretion vested in a decision maker in determining whether a person is fit and proper, in any given context, was said by the Full Court of the Federal Court in Commissioner for ACT Revenue v Alphaone Pty Ltd (1994) 49 FCR 589 at 389, per Northrop, Miles and French JJ, to "give wide scope for judgement and allow broad bases for rejection." 32 As was made clear by Toohey and Gaudron JJ in Bond, issues of character and reputation may play a determinative role in deciding whether a person is fit and proper. Their Honours also clearly highlighted that there is a difference between the two. They explained that an assessment of character is relevant because it is an indicator of a person's likely future conduct when considering how a person might act in the context of the role they are seeking to undertake. Reputation on the other hand, provides an indication of the public perception of future conduct in that role. In Re T and the Director of Youth and Community Services [1980] 1 NSWLR 392, Waddell J explained, at 393: 'A distinction must be drawn between "repute" or "reputation" and "character" or "disposition". The word "character" is sometimes used as meaning a person's reputation, but "reputation" is not ordinarily used to mean character. The distinction has been referred to in many decisions of the courts." In Melbourne v The Queen [1999] 198 CLR 1 at 15 McHugh J explained: "... character refers to the inherent moral qualities of a person or what the New Zealand Law Commission has called "disposition - which is something more intrinsic to the individual in question". It is to be contrasted with reputation, which refers to the public estimation or repute of a person, irrespective of the inherent moral qualities of that person." 33 In Ex Parte Tziniolis; Re Medical Practitioners Act (1966) 67 SR (NSW) 448 Walsh JA, at 450, said that in determining questions of character: "... the court is required to consider matters affecting the moral standards, attitudes and qualities of the Applicant and not merely to consider what is his general reputation." That case was concerned with an application for registration of a medical practitioner. His Honour went onto explain that the Court was entitled to inquire into personal misconduct, as well as professional misconduct, in considering whether the applicant was a man of good character: "... whilst recognizing that there may be some kinds of conduct deserving of disapproval which have little or no bearing on whether or not it shows the applicant for registration as a medical practitioner is a person of good character. In this respect, I think, that some assistance can properly be obtained as to the mode of approach to be made from the observations made in cases where the was whether or not that a person was fit and proper to be a barrister, such as those in Ziems v Prothonatory of the Supreme Court of NSW (1957) 97 CLR 279." Thus, as with fitness and propriety, assessment of character is to be made in the context of the nature and purpose of the activities that the person is seeking to undertake. In Director General, Department of Transport v Z (No.2) (GD) [2002] NSWADTAP 37 the Appeal Panel explained: 'Good repute' refers to the way reasonably-minded people assess an individual's current reputation, with reasonably precise knowledge of those matters that put the person's reputation in doubt. The fact that the person produces evidence from witnesses who vouch in general terms for the person's reputation cannot be conclusive. Equally, care must be taken, as we see it, not to use the 'good repute' requirement as a way of bringing into consideration stereotypes or assumptions which offend, for example, against human rights or anti-discrimination standards.
5. This passage was also cited in Smith at [39].
6. In McDonald v Commissioner for Fair Trading [2017] NSWCATAD 330 at [86] the Tribunal stated, at [86]: 86 In the context of the TP Act, unfitness can be indicated by criminal convictions, criminal associations, habitual recidivism, formal or informal links with OMCGs [Outlaw Motorcycle Gangs], failure to implement proper tattooing practices and general disregard for the law. Relevant in this case are Hennessy DP's comments in Saadieh v Director-General, Department of Transport [1999] NSWADT 68, [17]. In the context of a taxi licence, the Tribunal identified factors relevant to fitness and propriety as including: the nature, seriousness and frequency of any criminal offences for which the applicant has been arrested or convicted; the applicant's reputation in the community; and the likelihood that the applicant will reoffend, be the subject of further complaints or commit further offences.
7. In Austin v Commissioner of Police the Appeal Panel stated, at [79]: 79 We accept that the standard of character required of a tattooist does not equate with the high standard of character required of, for example, a legal practitioner. However, in our opinion, qualities of good character are introduced as an aspect of the licence assessment by the legislature's adoption of the commonly used expression "fit and proper person". They bear upon the obvious consideration of public safety.
8. In Cox v NSW Fair Trading [2019] NSWCATOD 170 the Tribunal held at [38]: 38 …..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.
9. In Lu v Commissioner for Fair Trading (No 2) [2018] NSWCATAD 221 the Tribunal held at [104]: …. It is true that there must be a difference between the obligations of an operator and those of a tattooist. The tattooist is not responsible for the conduct of other staff, does not manage the operation and does not have business responsibilities. However, the Act is concerned with whether a tattooist's background or character could lead to, or facilitate the involvement of criminal organisations or interests in the tattoo parlour industry.
10. In McDonald v Commissioner for Fair Trading the applicant's disregard for the law was the primary basis for determining that an applicant was not a fit and proper person. In that case, the Tribunal held, at [111]: "The law does not require an applicant to profess admiration for the administration of the TP Act, but the applicant's responses suggest a reluctance to accept full responsibility for his past actions and a lack of seriousness about his statutory obligations."
11. In concluding that the applicant was not and fit and proper person the Tribunal stated, at [113] that: "the evidence in the present case … does not justify confidently predicting that the applicant will in the future comply with relevant legislation in a conscientious and timely manner."
12. However, past criminal conduct, including past breaches of the TP Act, does not inevitably establish that a person is not a fit and proper person to hold a licence. That assessment depends on the specific facts in each case. In Merino v Commissioner for Fair Trading [2019] NSWCATOD 137 at [60] the Tribunal found the applicant was a fit and proper person despite the fact that the applicant admitted to engaging in performing tattoos for payment for a period of three months in 2017 without holding a licence.

Public interest

1. In Smith the Tribunal set out a summary of the principles that govern the concept of 'public interest' (at [42]-[47]): 42 The courts and the tribunal have held that the concept of 'public interest' is designed to give the broader interest of the community priority over private interests. In Comalco Aluminium (Bell Bay) Ltd v O'Connor and Others (1995) 131 ALR 657 at [681] 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 interest 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. 43 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) 168 CLR 210 at 216 per Mason CJ, Brennan, Dawson and 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. 44 In Director of Public Prosecutions v Smith [1991] VicRp 6; (1999) 1 VE 63 the Court held: The public interest is a term embracing matters, among others, of standards of human conduct and of the functioning of the government and government instrumentalities tactilely excepted 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 the individual or individuals. 45 In Commissioner of Police v Toleafoa [1999] NSWADTAP 9 at [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 the discretion adversely to individual. 46 The Tribunal has also found that an applicant's personal interest in retaining his licence cannot outweigh the public interest in having full confidence in the professionalism of people involved in the security industry: Blissett v Commissioner of Police; Webb Protection Australia Pty Ltd v Commissioner of Police [2006] NSWADT 114 at [32]. 47 In Constantin v Commissioner of Police, NSW Police Force (GD) [2013] NSWADTAP 16 at [33] the Appeal Panel held: "The 'public interest' allows, we consider, for issues going beyond the character of the applicant to be taken into account. These may include concerns in relation to public protection, public safety and public confidence in the administration of the licensing system."
2. As the Tribunal held in Lu v Commissioner for Fair Trading (No 2) at [116], to satisfy the public interest test, "the public must have confidence that a licensed tattooist will be honest and comply with the law" and these factors outweigh whatever public interest there may be in the expression of an applicant's skill and artistry.

The Applicant's submissions

1. The applicant in his written submissions suggested that there had been a strong link between the applicant's criminal offending and his drug use. He also submitted that the amounts of drugs of which he was convicted of possession were on both occasions classified as small quantities under the Drug Misuse and Trafficking Act 1985 (NSW).
2. The applicant also submitted that the Tribunal should not take into account, in considering his fitness and the public interest, the charges against him which had been withdrawn or the directions which he had received under the Law Enforcement (Powers and Responsibilities) Act.
3. In respect of the social media pages upon which the respondents relied and the tattooing work carried out by the applicant which was disclosed on those pages, the applicant referred to Hawes v Commissioner for Fair Trading [2017] NSWCATAD 30. In that case the respondent had opposed an application for a tattooist licence in part on the basis that the applicant had demonstrated a history of disregard for licensing legislation. The respondent had relied upon postings by the applicant to social media sites, primarily Facebook pages, including posts which indicated the applicant's availability to take appointments for tattooing, and hourly rates.
4. The Tribunal recorded that "the applicant does not dispute that he has advertised his availability to perform body art tattooing procedures and other information in relation to that work" but that the applicant had given evidence "that he did so in order to maintain a presence in the industry. His evidence was that he has continued to perform these procedures for family and friends and former clients in order to maintain his skills but that he does not charge for these procedures."
5. In that case the Tribunal upheld the application for review, concluding at [70]: The Commissioner's primary concern is that the Applicant has been working in contravention of section 7(1) of the Act. As I have indicated, I am not satisfied that he has done so. While his conduct in posting on social media sites with the intent of giving the impression that he has been working was imprudent, it is not in contravention of the Act. Similarly, performing body art tattooing procedures so that he does not fall behind in his craft is not in contravention of the Act if it is not done 'for fee or reward'.
6. The applicant submitted he was a fit and proper person, that he had taken positive and significant steps to address his underlying substance abuse issues which were major contributors to his past conduct and that he had not engaged in further criminal activity since his last offence in 2013. He submitted that he had been free from drug use for six years, had no links with outlaw motorcycle gangs or other criminal gangs, no history of violence or threatening violence and that his criminal offending did not take place in the context of his tattooing work.
7. The applicant relied upon his referees who had given positive statements about his character and submitted that he was "of sufficient moral integrity and rectitude of character as to permit him to be safely accredited to the public as a person to be entrusted with the sort of work which a tattooist licence entails".
8. The applicant submitted (citing Wright v Commissioner for Fair Trading (2017) NSWCATAD 98 [121] and [127] and Butler v Commissioner for Fair Trading (2017) NSWCATAD 138 at [117] and [122]) that "there is a public interest in assisting the rehabilitation of persons who have fallen foul of the criminal law", and (citing Allen v Commissioner for Fair Trading [2015] NSWCATAD 273 at [70]) that there is a public benefit in a person being able to engage in gainful business or employment rather than being kept by the taxpayer.
9. In oral submissions the applicant acknowledged that he was unable to explain his use of the term "#greatrates" in his social media posts. He explained the fact that he had not produced financial records by reference to a concern to protect his privacy and indicated that had not asked further witnesses to give evidence to support his case as he had not wanted to trouble them and didn't realise he had to lead such evidence.
10. In his written submissions the applicant submitted that he had not undertaken unlicensed tattooing work for fee or reward in contravention of the TP Act. The applicant accepted in oral submissions that that was not correct.
11. The applicant stated: "I understand that how I went about this was very unconventional". He acknowledged in relation to his conduct in carrying out tattooing while working at Blaque Cat Studios that: "I did realise at the time that what I was doing was wrong but I truly loved what I did".

Respondent's submissions

1. In oral and written submissions the respondents relied upon the applicant's criminal record and also submitted that the evidence disclosed that the applicant had been carrying on body art tattooing for reward not only at Blaque Cat Studios (as he acknowledged at the hearing) but also subsequently.
2. Mr Coffey submitted that the Tribunal should draw an adverse inference from the fact that the applicant had declined to produce his financial records which Mr Coffey submitted might disclose the receipt of payments for tattooing and also how often the applicant was purchasing materials.
3. Mr Coffey submitted that the statement included in the listing on AustraliaListed.com bore similarities in grammar and punctuation to Facebook posts which the applicant acknowledged posting. Mr Coffey also relied upon the fact that the applicant had designed and posted on Facebook a "business card" and the applicant's use of the term "#greatrates" as indicative that the applicant was carrying on a business providing tattoos for reward.
4. Mr Coffey submitted that, although the applicant had been candid about aspects of his work at Blaque Cat Studios, in respect of his subsequent conduct the applicant had not been honest or candid.
5. The respondents in their written submissions acknowledged, referring to the Tribunal's decision in Haley v Commissioner of Fair Trading, Department of Finance Services and Innovation [2017] NSWCATAD 48 at [101], that the drawing of adverse inferences from social media posts must be undertaken with caution.
6. The respondents submitted that the decision in Hawes v Commissioner of Fair Trading upon which the applicant relied upon was distinguishable.
7. The respondents submitted: The Facebook posts clearly demonstrate that since 2013, the Applicant has used social media, including both Facebook and Instagram, to operate as a tattoo business in various forms and to advertise the body art tattooing that he has personally performed. The accounts are a tool to generate business and income and as part of his portfolio to be used upon being granted a tattoo licence. Further, the Respondents submit that that Applicant's assertion that he performs tattooing "occasionally" and only for "friends and family" is not supported by the frequency of the posts, nor by the content of the messages within each post, the general information contained on the profiles/user accounts about the Applicant or by the exchange of messages between the Applicant and Facebook "connections" or "followers".
8. The respondents further submitted: The Respondents submit that when all of the social media posts, including the business card, the online advertisements located through google searches, and the admissions by the Applicant in his statements are taken into account, the Tribunal would be satisfied that the Applicant's social media accounts are not for the purpose of simply creating a 'mere presence' in the tattoo industry, but rather a deliberate act and key tool in advertising and operating his unlawful business in circumstances where he does not hold a licence.

Consideration

1. I have concluded that the applicant is not a fit and proper person to hold a tattooist licence and that it is not in the public interest that the applicant be granted a tattooist licence.
2. My reasons for so finding arise from the conclusion I have reached, for reasons set out below, that the applicant has, since 2017 engaged in the provision of body art tattooing procedures for reward in contravention of the TP Act.
3. I do not consider that the applicant's other criminal history would have precluded him from receiving a licence had he not engaged in breaches of the TP Act.
4. I accept, as the applicant submitted, that the applicant's criminal history, outlined in the second respondent's adverse security determination, was related to his drug abuse. I accept the applicant's evidence that he is no longer using prohibited drugs and is maintaining his methadone treatment. It is significant that Mr Coffey did not put to the applicant that he was still using drugs or that his evidence concerning his drug history was false.
5. The applicant has had no convictions since 2013. There is no suggestion that the applicant's criminal convictions were connected to the tattooing industry or that the applicant has any link to criminal gangs or outlaw motor-cycle gangs.
6. In that context I would not consider that the applicant's criminal history would on its own have the effect that he is not a fit and proper person. I would make that finding also with reference to the fact that, by reason of his convictions, the applicant is disqualified from holding licences under other legislation.
7. I do not consider the directions to move on issued to the applicant under the Law Enforcement (Powers and Responsibilities) Act or the applicant's history of traffic offences are significant in the consideration of the applicant's fitness or the public interest.
8. I do find, however, that the applicant's involvement in the carrying out of body art tattooing for reward in contravention of the TP Act affects adversely his fitness and suggests it would not be in the public interest for the applicant to be granted a tattooist licence.
9. The applicant acknowledged in cross examination having carried out tattooing at Blaque Cat Studios for which he was paid and acknowledged that he was aware that he was breaking the law by doing so. The applicant also acknowledged that he knew that Blaque Cat Studios was not licensed.
10. The applicant maintained that he had not performed any body art tattooing work for reward since leaving Blaque Cat Studios. As noted above, the respondents submitted that the applicant's social media posts clearly demonstrate that this was not correct.
11. A finding that the applicant has continued to carry out body art tattooing work for reward carries with it the conclusion that the applicant has been guilty of offences under the TP Act. As such, it is a conclusion that is not lightly to be reached.
12. As the hearing took place by telephone, I am not able to draw conclusions regarding the applicant's credit from observing his demeanour while giving evidence. I must assess the applicant's credibility on the basis of the applicant's answers to questions in cross-examination, the documentary evidence, and the inferences to be drawn from the documentary evidence.
13. Having considered the evidence, I am comfortably satisfied that the applicant has been carrying out body art tattooing procedures for reward since ceasing to work at Blaque Cat Studios in 2017.
14. I reach this conclusion: on the basis of the volume of work that the applicant had, by his social media posts, disclosed that he has been carrying out throughout 2018 and 2019; by reason of the applicant's production of a business card, the purpose of which he could not explain; and by reason of the post, dated 21 May 2018, set out at [55] above, including in particular the use of the term "#greatrates", which the applicant was also unable to explain.
15. I accept that caution is appropriate before drawing inferences from social media posts. However the applicant acknowledged responsibility for the content of the Facebook pages in which the abovementioned material appears.
16. My conclusion that the applicant has been engaged in body art tattooing work for reward is reinforced by the fact that the applicant initially stated that he had not received any reward for carrying out body art tattooing work at Blaque Cat Studios, but, under cross examination did acknowledge that not only had he done so but that he had been aware that doing so was an offence.
17. Although the applicant's admission to this effect did to some degree reflect well on his credit, the fact that he had been prepared to sign a statement to the contrary and state under oath that its contents were true, suggests his evidence cannot be relied upon without question.
18. I do not, in reaching my conclusion in this regard, give any weight to the pages from AustraliaListed.com and Vymaps.com exhibited in Exhibit LN1. There is nothing in the Vymaps.com page which suggests that the applicant had any involvement in its creation.
19. The text on the AustraliaListed.com page which I have set out at [62] above bears similarities to posts on the applicant's Facebook pages for which he acknowledged he was responsible. However, I am not prepared to draw the inference that the page was created by the applicant rather than by a third party who extracted the information on the page from other sources such as the applicant's public Facebook pages.
20. I recognise that it is possible that the applicant could have carried out each of the tattoos, photographs of which he had posted online on his Facebook pages, for friends and family without charge, but, in the absence of any evidence from any persons for whom the applicant had carried out body art tattooing work without charge in 2018, 2019 and 2020, I more readily draw the conclusion that those tattoos were carried out for payment.
21. I note that Mr Camps gave evidence that the applicant had carried out tattoos on him for free in 2014. I infer that Ms Johnson, who is Mr Camps' partner, received her free tattoos at the same time.
22. In this regard the decision in Hawes is clearly distinguishable. In that case the applicant gave a coherent explanation for elements of his social media posts which otherwise suggested he was carrying out procedures contrary to the TP Act and called evidence from third parties to corroborate that explanation.
23. The applicant in this case does not have a coherent explanation for significant features of his social media accounts which I have referred to above, that is the business card and the post of 21 May 2018, and did not call evidence from witnesses who might have corroborated the explanations which he did proffer for the volume of tattooing work which his social media accounts disclosed he had been carrying out.
24. I am also more readily able to reach the conclusion that the applicant has been carrying out body art tattooing procedures for reward in breach of the TP Act in circumstances where, although the applicant acknowledged receiving a summons to produce his financial records, he had declined to do so.
25. The fact that the applicant has carried out body art tattooing contrary to the TP Act, and the fact that he has not been frank in acknowledging that fact, in my view lead to the conclusion that the applicant is not a fit and proper person to be granted a tattooist licence.
26. Moreover, because the applicant has shown a preparedness to act in contravention of the TP Act, the public cannot be confident that, if granted a licence, the applicant would abide by the requirements of the TP Act. For that reason I conclude it is not in the public interest for the applicant to be granted a tattooist licence.
27. Accordingly, the decision under review will be affirmed and the application dismissed.

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: 03 September 2020