Dyas v Director-General, Fair Trading & Commissioner Of Police

NCAT Administrative and Equal Opportunity|2014-09-23

reasons for decision 1This is an application for review of a determination to refuse the Applicant's application for a tattooist licence. The decision to refuse the licence application was taken by the Director-General of Fair Trading ("the Director-General") under section 16 (1) of the Tattoo Parlours Act 2012 ("the Act"). The Commissioner of Police ("the Commissioner") made an adverse security determination under section 19(2) of the Act, to the effect that it would be contrary to the public interest for the Applicant to be granted a licence and that the Applicant is not a fit and proper person to hold the licence sought. Pursuant to section 27(3) of the Act, the Commissioner is a party to these proceedings.

The licensing regime 2I have recently 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 and Zahra v Commissioner of Police, NSW Police Force & NSW Fair Trading [2014] NSWCATAD 211. I will only discuss it briefly in these reasons. 3The Act introduced licensing requirements for operators of body art tattoo parlours and tattooists. The regime came into force in November 2013. The licensing regime imposes a test of whether the person is "fit and proper" and whether it would be "contrary to public interest" to grant the licence or allow it to continue in force. It is an offence to carry on a body art tattooing business without an operator licence: section 6 of the Act. 4Pursuant to Part 2 of the Act, body art tattooing businesses, body art tattooists and employed body art tattooists are to be licenced. It is an offence for those businesses or individuals, as the case may be, to fail to have the requisite licence: sections 6 - 7 of the Act. Businesses that only undertake cosmetic and medical tattooing procedures do not need a licence. 5Pursuant to section 9 of the Act, there are two kinds of licence that may be granted: an operator licence and a tattooist licence. Only an individual can apply for a licence, even where the individual is applying on behalf of an organisation. Sole operators only require an operator licence. 6A person may apply to the Director-General for a tattooist licence pursuant to section 11 of the Act. Sections 12 - 13 of the Act provide for an application to be accompanied by a written statement in respect of close associates of applicants and for the fingerprinting and palm printing of applicants. 7Pursuant to section 14(b) of the Act, upon receiving an application for a licence, the Director-General is to refer 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. 8Section 19 provides that the Commissioner is to inquire into and determine, and report to the Director-General on those issues. Subsection 19(3) provides that, for the purposes of making his determination, the Commissioner may have regard to criminal intelligence reports or other criminal information held in relation to an applicant. 9Pursuant to section 20, neither the Commissioner nor the Director-General are required to give any reasons for the determination or for not granting the licence, if such reasons would disclose any criminal intelligence report or other criminal information. 10The Director General has a discretion whether to grant a licence in some circumstances, however, a licence must not be granted if the Commissioner makes an adverse security determination in relation to the applicant: section 16(3)(c). 11The 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. 12I considered the scope of the Tribunal's jurisdiction in my decisions in Smith and Zahra. I will not repeat it here except to say that, 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.

Background 13The Applicant has worked in the tattoo industry for a number of years. He has been tattooing since 1985. Initially he treated tattooing as a hobby but in 1993 he started working in a tattoo shop at Campbelltown. He worked there for two years and then worked in Newtown for 4 years and other shops after that. In about 2000 he took a job at a tattoo shop in Dubbo. He subsequently moved to his most recent workplace, also in Dubbo. 14Following the introduction of the licensing regime the Applicant applied for a licence. His application was unsuccessful. 15The determination to refuse the application was based on the Applicant's criminal history and traffic record. The Applicant has a long criminal history stretching from 1977 to 2011, and a long history of drug and alcohol abuse. His record includes convictions for assault occasioning actual bodily harm, demanding property by force with intent to steal, break enter and steal, and convictions for the possession of prohibited drugs. He has breached bail conditions on four separate occasions. He has at least 21 convictions for traffic offences from 1986 - 2001 and 16 penalty notices issued in respect of traffic offences from 1980 - 2011. 16A significant percentage of the Applicant's offences are a repeat offence of enter enclosed land. These offences occurred in circumstances where the Applicant was homeless and sleeping in abandoned premises. 17Four of the Applicant's convictions are for violence offences. The most recent conviction was for an offence of assault occasioning actual bodily harm. The assault, which occurred in May 2011, occurred whilst the Applicant was intoxicated. He received a suspended two-year prison sentence. 18In relation to the Applicant's licence application, the Commissioner provided an adverse security determination under section 19 (1) of the Act in relation to the Applicant. A delegate of the Commissioner determined that:

the Applicant was not a fit and proper person to be granted the licence on the basis of his criminal history and penalty notice history; and
it would be contrary to the public interest for the licence to be granted on the basis of the Applicant's criminal history and penalty notice history. 19The delegate of the Commissioner also advised, pursuant to section 36(1) of the Act, that the Applicant is disqualified from holding a licence, permit or other authority under: (i) the Firearm Act 1996, pursuant to sections 11 (5) (b) and 29 (3) (b) of the Firearms Act 1996 and clause 5 (1) (c) (i) of the Firearms Regulations 2006; (ii)the Security Industry Act 1997, pursuant to section 16 (1) (a) of the Security Industry Act 1997 and clause 18 (1) (c) (i) of the Security Industry Regulation 2007; and (iii)ithe Weapons Prohibition Act 1998, pursuant to section 10 (3) (a) of the Weapons Prohibition Act 1998 and clause 5 (1) (c) (i) of the Weapons Prohibition Regulation 2009; for the reason that, on 10 Augusts 2011, he was convicted of an offence against section 59 (1) of the Crimes Act 1900 (assault occasioning actual bodily harm) in respect of which the penalty imposed was imprisonment for 2 years (suspended pursuant to section 12 of the Crimes (Sentencing Procedure) Act 1999). 20None of the Applicant's offences have been related to tattooing or occurred at his place of work as a tattooist. There is no suggestion that he has ever had a drug, alcohol or violence related issue at his work.

The Commissioner's case 21The Commissioner relies on material relating to the Applicant's criminal history and the adverse security determination. Much of that material was provided to the Tribunal on a confidential basis and has not been given to the Applicant. Section 64 of the Civil and Administrative Tribunal Act 2013 applies to that material. Section 64 provides: 64 Tribunal may restrict disclosures concerning proceedings (1) If the Tribunal is satisfied that it is desirable to do so by reason of the confidential nature of any evidence or matter or for any other reason, it may (of its own motion or on the application of a party) make any one or more of the following orders: (a) an order prohibiting or restricting the disclosure of the name of any person (whether or not a party to proceedings in the Tribunal or a witness summoned by, or appearing before, the Tribunal), (b) an order prohibiting or restricting the publication or broadcast of any report of proceedings in the Tribunal, (c) an order prohibiting or restricting the publication of evidence given before the Tribunal, whether in public or in private, or of matters contained in documents lodged with the Tribunal or received in evidence by the Tribunal, (d) an order prohibiting or restricting the disclosure to some or all of the parties to the proceedings of evidence given before the Tribunal, or of the contents of a document lodged with the Tribunal or received in evidence by the Tribunal, in relation to the proceedings. ... 22The Commissioner submits that the Applicant is not a fit and proper person to hold a licence. The Commissioner's contentions can be divided into three broad categories: (a)that the Applicant has a lengthy criminal history demonstrating an unwillingness to comply with the law; (b)that the Applicant has demonstrated a propensity to violence; and (c)that the Applicant has a lengthy history of non-compliance, and criminal convictions in respect of, the road traffic licencing scheme. 23The Commissioner submits that the material before the Tribunal is quite sufficient to ground a finding that he is not a fit and proper person to hold a licence under the Act. 24The Commissioner submits that although the Applicant has not been convicted of any further offence for around three years, there can be no assumption that the Applicant will not offend again. The Commissioner notes that the Applicant's long criminal history has been punctuated in the past with periods of criminal inactivity: from May 1990 - January 2000 and from September 2006 -April 2011. 25Further, the Commissioner submits that arguably the most serious offence for which the Applicant has been convicted is also his most recent offence. His conviction for assault occasioning actual bodily harm arose out of an incident in May 2011 when he violently assaulted a young disabled man merely for having the temerity to note that the Applicant was looking serious. 26The Applicant has also been convicted of other serious violence offences, as three drug offences (including in respect of methamphetamine), trespass offences and numerous breaches of bail, and traffic offences. 27Accordingly, having regard to the Applicant's criminal history, the Commissioner submits that it is difficult to understand how he could be regarded as anything other than not fit and proper to hold a tattooist licence at the present time. 28The Commissioner also submits that there can be no doubt that it would be contrary to the public interest for the Applicant to hold a licence. 29The Commissioner's contentions as to the public interest can be divided into two categories: (a)that the Applicant has a history of violent behaviour against members of the public which led the delegate to conclude that he showed a scant regard for public safety by his actions and that his repeated and unprovoked violent behaviour caused the delegate to not have confidence that the Applicant would not re-offend in the future; and (b)at the Applicant has a history of non-compliance with other licencing and regulatory schemes that are aimed at ensuring public safety. This led the delegate to conclude that the Applicant is unlikely to comply with the requirements of the Act. 30The Commissioner also submits that there discretionary grounds on which the licence should be refused. Clause 13(2) of the Tattoo Parlours Regulation 2013 ("the Regulation") relevantly provides: 13 Additional grounds for refusing to grant licences ... (2) Grounds for refusing tattooist licence applications For the purposes of section 16 (5) of the Act, the Director-General may refuse to grant a tattooist licence if satisfied of the existence of any of the following grounds: ... (b) the applicant is disqualified from holding a licence, permit or other authority under legislation administered by a relevant Minister, ... (3) Definition In this clause: "relevant Minister" means: (a) the Minister for Fair Trading, or (b) the Minister for Police and Emergency Services. 31The Commissioner submits that the Applicant has been convicted of one offence in the last 10 years which would disqualify him from holding a licence under the Security Industry Act, Firearms Act and Weapons Prohibition Act. The Applicant has also been convicted of an additional offence in the last 10 years which would disqualify him from holding a licence under the Weapons Prohibition Act. 32The Security Industry Act, Firearms Act and Weapons Prohibition Act are all administered by the Minister for Police and Emergency Services. Accordingly, the licensing regimes established by those Acts are within the scope of clause 13(2) of the Regulation. 33The Commissioner submits that these convictions represent a separate ground upon which this Tribunal could, and should, refuse to grant a licence to the Applicant. The Commissioner submits that they are all very serious offences. Any one of those convictions having occurred in the last 10 years would call into question the integrity of the Applicant. The Commissioner's contention is that having multiple such convictions means that it is very difficult to characterise the Applicant as being of the "utmost integrity". 34In summary, the Commissioner submits that the Applicant's review application should be dismissed because: (a)there is no compelling reason to revisit or doubt the Commissioner's security determination in respect of the Applicant, which is not directly reviewable by this Tribunal in any event; (b)on the facts, which appear not to be in dispute, and which include a lengthy criminal history, including violence and stealing offences, it was entirely open to the delegate to find that the Applicant is not a fit and proper person to hold a licence, and that it is contrary to the public interest for the licence to be granted; (c)nothing provided by the Applicant in support of his review application comes close to providing a compelling reason for the Tribunal to disregard the adverse security determination and nevertheless grant him a licence; (d)even if there was no adverse security determination, there are at least two, and probably three, separate grounds upon which this Tribunal should refuse to grant a licence; (e)the references provided by the Applicant should be disregarded or given little weight because they are either self-serving, or otherwise far from impartial, or fail to set out in sufficient detail knowledge of the Applicant's lengthy criminal history, or are contradictory; and (f)any hardship to the Applicant as a result of the decision under review is an irrelevant consideration if the Applicant is not fit and proper or if it would be contrary to the public interest for him to be granted a licence;

The Applicant's case 35The Applicant relies on his own evidence and that of Ms Patricia Clarke both of whom provided Statutory Declarations, attended the hearing and was cross-examined. He also relies on Statutory Declarations provided by Tracie Hartley, Lesley Johnson and Trudy London. 36He does not dispute his criminal history and says that he is ashamed of it. He provided the following explanation of the circumstances in which some of the offences occurred: In about 2004 I was charged on number of occasions with enter enclosed land. At this time I was addicted to drugs and was homeless. I was not capable of making good decisions about my welfare. I would offend on occasions so that I would be charged and obtain a place to sleep and a meal in the evening. There is no longer a risk of this occurring as I have overcome my drug addiction and have demonstrated during my current period of unemployment that I can manage my life and make ends meet. I am not a risk to any of my clients. I have never had a run in with any of my clients. None of my past criminal behaviour has been work related or involved clientele. I consider myself a fit and proper person to hold a tattooist licence. When I applied for my licence an issue arose in respect of unpaid fines. I have now been paying off my fines the [State Debt Recovery Office] for the last 4 1/4 years. Each fortnight $30.00 is deducted from my unemployment benefit, it was previously $60.00 each fortnight. I will continue to pay of these fine until they are paid. I have also made some poor decisions over the years concerning the use of cars and motorcycles. In 1990 (approximately 25 years ago) I committed a number of traffic offences arising from the one incident. My girlfriend at that time bought me a motorcycle that was unregistered. I made a poor decision to take her for a ride and put another plate on the motorcycle. Most recently I obtained my provisional licence in 2010 and at that time the RTA clerk told me that I would be eligible to ride a full capacity motorcycle after 1 year. Based upon that conversation I committed myself to purchase a new motorcycle which I was paying off whilst I was on my red P's. At the time I went to get my full licence I was then told I had to go onto green P's for 2 years. I was upset about this as the bike I had been saving to purchase was ready to be collected and was not able to be ridden on green P's due to its engine capacity. In 2011 I had to collect the bike from the dealer and made a poor decision to ride the bike home. I was prohibited on my provisional licence from riding a motorcycle of that capacity. I was stopped and issued tickets as indicated in my traffic record. I had a helmet on though it was not an approved helmet. After I was stopped I then continued to ride the bike to get it home and was stopped again by a different officer as there was a blitz on. I was issued with another set of infringements for the same offences. The original officer saw me and felt sorry for me and told me to wait an hour and then ride the bike home after the blitz was over. I have since obtained my full licence which is current. The Applicant's evidence is that he is now drug free, drinks responsibly, and has had no offences for over three years. He will have employment if a licence is granted. This evidence is supported by the other witness's evidence.

Patricia Clarke's evidence 37Ms Clarke provided a Statutory Declaration. She also attended the hearing and gave evidence. She is the owner of a shop in Dubbo which offers tattooist services. She has known the Applicant for fifteen years and employed him as a tattooist in her business. She is aware of his past drug addiction and his criminal and traffic record. She said that the Applicant is genuinely ashamed of his past and that he was open with her about these matters before she decided to employ him. She said that she was impressed by his honesty about his past. 38Ms Clarke said that she was aware of the Applicant's 2011 assault charge and that he attended anger management classes after this incident in an effort to improve himself. She has noticed a difference in his behaviour and manner since then and has seen him change for the better. She said that he is a brilliant artist. He can sit and draw anything. He is equally brilliant at body art. During the time the Applicant worked for her, they never failed a health department inspection. She said that the Applicant was always compliant with safety and health procedures. She has never had a complaint about his standard of workmanship. She never had an issue at work involving the Applicant's use of drugs or alcohol and never had any violence related issues at work involving him. 39Ms Clarke said that she has no doubt that the Applicant will comply with any licensing requirement if his tattooist licence were to be granted. She would not risk her livelihood on a person she did not honestly think would be an asset to her business or that would harm her customers or engaged in organized crime through his employment. 40Ms Clarke said that if the Applicant is granted a tattoo licence, she will definitely re-employ him on a full time basis.

Lesley Johnson's evidence 41Ms Johnson runs an accommodation outlet in Dubbo. She has known the Applicant for six to eight years and he has stayed at that outlet on two occasions. She is aware of the Applicant's criminal record and in particular she was aware of the Applicant's 2011 assault charge. She recalls that when the Applicant came home after being charged by the police he told her what happened. She saw that he was deeply ashamed of what he had done and he was going to find out the details of the victim and go and apologise. 42Ms Johnson said that she saw an immediate change in the Applicant's drinking habits following the incident. He chose not to frequent any hotel in Dubbo. He became quieter and more respectful. She believes that he is now a person of sober habits and that he is drug free.

Tracie Hartley's evidence 43Ms Hartley has known the Applicant for four and a half years. She met him when she got tattoo work from him and she said that she found that he took a very professional approach to his work. 44The Applicant has been boarding in Ms Hartley's family home for nearly one year with her and her partner. She said that she has found him to be a respectable trustworthy person who has always paid his board on time and contributes to household bills without hesitation. He doesn't use any form of drugs and takes a responsible approach when having a social drink. 45Ms Hartley is aware of the Applicant's past. She said that he has shown that he is remorseful and that he has overcome the problems that contributed to his past. She believes that the Applicant is a fit and proper person to hold a tattooed licence.

Trudy London's evidence 46Ms London has known the Applicant for nearly 15 years on both a professional level and on a more personal level. He has been honest with her about his past. She is aware that the Applicant has a criminal history and she witnessed his struggle with drugs. She said that he no longer uses drugs. She is convinced that he will never return to that type of life. 47She believes that the Applicant has certainly paid his price for the crimes he has committed.

The Applicant's submissions 48The Applicant does not dispute his criminal record. However his counsel, Mr Gruzman, submitted that while the Applicant has convictions for four offences involving violence, the first offence occurred over 30 years ago. The next two offences occurred approximately 10 years ago and the most recent criminal conviction of assault occasioning actual bodily harm occurred in 2011. The incident occurred early in the morning at a hotel when the Applicant was intoxicated. The Applicant's evidence is that he pleaded guilty and demonstrated genuine shame and remorse for his conduct. He was given a 2 year suspended sentence on entering a bond which has not been breached. 49The Applicant completed an anger management course following that event and there is evidence that this has had a positive effect on the Applicant. 50It is submitted that none of the violence offences are connected in any way with organized crime or outlaw motorcycle gangs and do not present as significant matters of concern when considering the suitability of the Applicant for a tattoo licence at present. The evidence shows that he committed ad hoc crimes on occasions where social factors were at play. These issues have now been addressed and are under control. 51Mr Gruzman submitted that a reasonable person attending a tattoo parlour to be tattooed by the Applicant would be unaffected by knowing the driving offence matters relied upon by the Commissioner. Further, he submitted that the administrative requirement on tattooists is minimal and appears limited to recording the date a procedure is performed, the name and licence number of the tattooist and the amount charged and payment method. The fact of a history of non-compliance with traffic legislation, which is no longer a fact, does not demonstrate that the Applicant will not comply with the relatively simple administrative obligations he has under the Act. 52Mr Gruzman further submitted that the Act has provisions for inspection and cancellation of the licence in the event something occurs that warrants such a course. The risk of this administrative procedure not being performed based upon unrelated prior conduct should not result in the Applicant not being able to continue to earn a living in his chosen field. 53It is further submitted that the public interest aspect of the refusal relied upon by the Commissioner cannot rationally demonstrate an unacceptable risk to the public. 54It is submitted that there is no public interest reason to refuse the Applicant a tattooist's licence. Accordingly, the licence should be granted.

Discussion 55I have discussed the licensing regime established by the Act as well as the authorities relating to the issues of fitness and propriety and the public interest in my decisions in Smith and Zahra. I will not repeat that discussion here. However, I note that I adopt the views that I expressed in those decisions. I have read and considered the authorities referred to and I have taken account of the material presented by the parties and the submissions made on their behalf. 56In the present matter the factual background is not in dispute. The issue is rather whether or not that background is such that it would be contrary to the public interest for the Applicant to be granted a licence or that he is not a fit and proper person to hold the licence sought. 57It is common ground that the Applicant has a long criminal record. I generally agree with the Commissioner's assessment of the Applicant's record. Some of his offences involve violence. At best, almost all show an indifference towards licencing and regulatory schemes that are aimed at ensuring public safety. 58I agree with the Commissioner that the Applicant's convictions that occurred in the last 10 years would call his integrity into question. However, it is my view that the offences should not prevent the Applicant obtaining the licence that he seeks. This is because of a combination of the nature of the offences, the time that has passed since the offences were committed, the Applicant's acknowledgement of his past and the efforts that he has made to change his lifestyle. 59I agree that the most troubling aspect of the Applicant's a long criminal record is since the incident of May 2011. On the evidence I do not agree that the earlier offences would prevent him from holding a licence under the Act. 60When the May 2011incident is considered along with the Applicant's earlier record it suggests a propensity towards violence which raises serious concerns in regard to his fitness and propriety. 61Nevertheless, I accept that the Applicant's lifestyle has changed so that he is no longer subject to the social factors that were at play and which impacted on his conduct for a major part of his life. I accept that the Applicant's drug addiction has been addressed and is under control. I also accept that he has taken steps to curb his alcohol use. 62I note that it is three and a half years since the events that gave rise to his most recent conviction. All the material before me suggests that he was profoundly affected by that event and this lead to a significant lifestyle change. He underwent anger management training and reduced his alcohol consumption. He received a suspended two-year prison sentence and completed the bond period without incident. 63Had it not been for this change I would have no hesitation in agreeing with the Commissioner that the Applicant's background is quite sufficient to ground a finding that he is not a fit and proper person to hold a licence under the Act and that it is not in the public interest that he do so. 64However, the change is apparent. Those witnesses who have provided statements in support of the Applicant's case obviously think highly of him and have confidence in his ability to maintain his changed lifestyle. 65While there can be no assumption that the Applicant will not re-offend, in my view it is significant that he has not reverted to his former conduct after the refusal of his licence application. This is significant as the refusal has clearly placed major stresses on him, including his unemployment. He has nevertheless managed to deal with those stresses in an appropriate manner. He also has the prospect of work should he obtain the licence. 66It is my view that sufficient time has passed since the incident of May 2011 to remove any concerns of risk to the public should the licence be granted. I do not agree that the Applicant poses a risk to his clients. There is no suggestion that his conduct ever directly impacted on his work as a tattooist and it is improbable that this would change if he is granted the licence. 67I agree with counsel for the Applicant that the risk of administrative procedures not being performed based upon unrelated prior conduct should not result in the Applicant not being able to continue to earn a living in his chosen field. 68That being the case, it is my view that the licence should be granted.

Order (1) The decision under review is set aside. (2)In its place the decision is made that the licence is granted.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 17 December 2014

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