ERI v Commissioner for Fair Trading

NCAT Occupational|2021-05-21

The Applicant wrote that, the previous year, her long-standing relationship had ended, due to her partner's alcohol abuse. She was working long hours to cover their debts, and she "lost her way". In her evidence she said that she fell asleep because she was exhausted because she had been working so hard. She had been to a party the previous weekend and had imbibed there. It was not her practice to drink/drive or to use drugs if she was driving.
In relation to the unregistered and uninsured vehicle, she said she had arranged the "pink and green slips", but she had needed her pay to finance the registration. As the company she worked for had just been taken over and the pay arrangements were in disarray, she had not been able to make the necessary payments.

2018 Offences

According to the Police Facts Sheet, the Applicant was growing cannabis plants hydroponically in the spare bedroom of her home. This set up consisted of two medium sized plants in pots, two heat lamps and an exhaust fan and filter. There was also a smaller grow tent which contained four small cannabis plants in pots, an exhaust fan and filter and one heat lamp. An amount of cannabis leaf was also located in the kitchen cupboard, as were numerous bags of dried cannabis leaf, along with two capsules and a freezer bag containing the resin. The Applicant admitted to owning, planting and maintaining the cannabis plants, and to owning the resin and leaf.

Can the Tribunal take into account the Applicant's spent convictions?

With the exception of the 2018 matters, all the Applicant's offences are all spent convictions.
Section 12(c)(ii) of the Criminal Records Act 1991 (CR Act) provides that a reference in a provision in an Act to the person's character or fitness is not to be interpreted as permitting or requiring account to be taken of spent convictions. However, s 11(7) of the TP Act provides that s 12 of the CR Act does not apply in relation to an application for a licence. The Tribunal, in exercising the functions of Fair Trading, may have regard to spent convictions in determining the administrative review application, subject to considerations of the weight which should be given to those matters. Accordingly, all the Applicant's offences can be taken into account in my consideration.

Fit and proper person

The meaning of "fit and proper person" in the licensing context has been the subject of a well-known line of cases dating back at least to Hughes and Vale Pty Ltd v New South Wales (No.2) [1955] HCA 28; (1955) 93 CLR 127. The principles laid down in those cases were distilled by the Tribunal's Appeal Panel in Austin v Commissioner of Fair Trading [2016] NSWCATAP 179 (Austin), adopting Montgomery SM's reasons at first instance, as follows: 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 in 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.
This summary of the key propositions has been cited with approval many times: see, eg, Brown v Department of Fair Trading [2020] NSWCATAD 313 at [9]; Larter v Commission of Fair Trading [2019] NSWCATAD 81 at [60]. The key authorities on the fit and proper person test have also been summarised at length in AJO v Director-General, Department of Transport [2012] NSWADT 101 (AJO) at [24]-[41] and adopted in Smith at [39]-[41].
In the context of the TP Act, it has been held that unfitness can be indicated by "criminal associations, habitual recidivism, formal or informal links with OMCGs, failure to implement proper tattooing practices and general disregard for the law": see Allen v Commissioner for Fair Trading [2015] NSWCATAD 273 (Allen) at [49]; Mielczarek v Commissioner of Fair Trading [2017] NSWCATAD 5 (Mielczarek) at [27]). While there is a focus in the legislation and its administration on the involvement of gangs in the tattoo industry, that is not to the exclusion of other concerns about criminality: Wright v Commissioner for Fair Trading [2017] NSWCATAD 98 at [118].
In AJO, the Tribunal held, at [32], that issues of character and reputation may play a "determinative role" in deciding whether a person is fit and proper. At [29], the Tribunal cited Saadieh v Director General, Department of Transport [1999] NSWADT 68, where Hennessey DP held that the factors to be taken into account in determining an applicant's suitability and fitness in the context of a taxi authority included: 1. the nature, seriousness and frequency of any criminal offences for which an applicant has been arrested or convicted, 2. an applicant's reputation in the community, and 3. the likelihood that an applicant will re-offend, be the subject of further complaints or commit further (traffic) offences
The Respondents submitted that the Applicant is not a fit and proper person to hold an operator licence, considering her criminal history. The Respondents submitted that little time has elapsed since the Applicant's last offending and I could not be satisfied that she has put that conduct behind her. I observe that in Owen v Commissioner for Fair Trading [2017] NSWCATAD 137, the application for review was successful notwithstanding the applicant in that matter having an extensive criminal history that encompassed offending conduct over a 15-year period including convictions for assaulting police officers, assault occasioning actual bodily harm, as well as behaving offensively in a public place and intimidation. The criminal history of the Applicant in this matter compares favourably: she has drug and other offences (as a juvenile) - some 34 years ago, and other offences some 32 years ago. In 2001, now 20 years ago, she was convicted of driving under the influence of multiple substances and of driving an unregistered and uninsured vehicle. The Respondents submitted that, I should also take into account that, whilst uncharged conduct, the car was driven in a manner which was physically unsafe, resulting in a collision with another vehicle and a telegraph pole, and the crossing of several lanes of traffic without indicating. I do not consider that these further particulars, as recorded in the COPS Event add to the matter, especially now after 20 years. In summary, I have placed very little weight on the 1987, 1989 and 2001 conduct because many years have now passed since those offences.
More relevantly, in 2018 the Applicant was found guilty of growing cannabis, and having in her possession a small quantity of cannabis oil and some resin, for which she was placed on a two year good behaviour bond and was fined. The Respondents submitted that there has not been sufficient time to assess whether there has been a change in circumstance following the discovery of her hydroponic growing and possession of cannabis leaf. I observe that the Applicant's two year bond expired in May 2020, and, she has not come to attention again.
The Respondents submitted that as the Tribunal has frequently required a lengthy period of time with no offending in order to be satisfied that an Applicant for a tattooist licence has been completely rehabilitated: see, eg Allen (4 years between last offence and Tribunal decision); Moore v Commissioner for Fair and Commissioner of Police [2016] NSWCATAD 80 (over 4 years between last offence and Tribunal decision). These cases are not prescriptive as to the length of time since the last offence; each matter is determined on its facts.
On 13 June 2020 the Applicant applied for a tattoo parlour operator licence. At that time, the Applicant held a tattooist licence which was later renewed on 31 July 2020 and which is valid until 17 July 2023. In essence, the Respondents position was that the Applicant, while a fit and proper person to hold a tattooist's licence, was not a fit and proper person to operate a tattoo parlour.

Standards applicable to operator licence as compared to a tattooist

At the hearing, I discussed with the Respondents' solicitor that the Applicant's tattooist licence had only recently renewed, and that might considerations as to her fitness and propriety to be engaged in the tattoo industry have been reviewed at that time. It was submitted that the standards of fitness and propriety applicable to an operator licence are stricter than those applicable to the tattooist. Written submissions were provided after the hearing in relation to this issue.
As Ransome SM observed in Mumby v Commissioner for Fair Trading [2017] NSWCATAD 27 at [21], "it is generally accepted that what is fit and proper needs to be determined by reference to the activities in issue and is to be gauged in light of the nature and purpose of the activities that the person will undertake."
I was referred to Do v Commissioner for Fair Trading [2020] NSWCATOD 101 at [87], in which Robertson SM approved a statement by Dinnen SM in Cox v NSW Fair Trading [2019] NSWCATOD 170 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 Dr Lucy SM noted in DLY v Commissioner for Fair Trading [2018] NSWCATAD 125 at [26]: 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.
In Holdstock v Department of Fair Trading [2018] NSWCATOD 200, after referring to DLY, Montgomery SM said at [53]: 53. 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.
I was also referred to Lu v Commissioner for Fair Trading (No. 2) [2018] NSWCATAD 221 at [104], where Ludlow SM held: 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.
The cases, while pointing out that there is a distinction between the licences are not particularly helpful in identifying how the moral characteristics in an operator, as compared to a tattooist, are greater. I accept that because of the different nature of an operator licence, the licensee has greater capacity to control the nature and activities of the parlour and has greater statutory obligations.
In the context of the TP Act, it has been held that unfitness can be indicated by "criminal associations, habitual recidivism, formal or informal links with OMCGs, failure to implement proper tattooing practices and general disregard for the law": see Allen v Commissioner for Fair Trading [2015] NSWCATAD 273 (Allen) at [49], Mielczarek v Commissioner of Fair Trading [2017] NSWCATAD 5 (Mielczarek) at [27]. In this matter there was no evidence whatever of the Applicant having links with OMCGs or that she had failed to implement proper tattooing practices.
I accept that, in the past, the Applicant has shown a disregard for the law. However, I observe, that with the exception of the 2018 charges, all were many years ago. She provided a reasonable explanation for her growing cannabis, namely, having regard to her inability to take anti-inflammatory medication, to manage pain in her hand and arm. Her evidence, which I accept, is that that same pain limits her ability to engage in tattooing for extended periods and that she no longer uses cannabis to manage the pain.
In the context of discussing the relevance of an Applicant's criminal record, the Appeal Panel in Austin (in relation to a tattooist licence) considered that a record was relevant because it showed a "disregard for the law and the rights and safety of others". In particular, the Appeal Panel held, at [79]-[80]: 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. 80. Secondly, as we have already explained, there was no real issue in the proceedings that, in the absence of rehabilitation, Mr Austin's criminal history, including the nature and seriousness of it, leaving aside any relationship with OMCGs, stood in the way of a successful application by him for a licence. In our opinion, it was correct that it did so because it showed a disregard for the law and the rights and safety of others which was inconsistent with his designation as a fit and proper person and warranted a lack of confidence that he would conduct himself as a tattooist safely and honestly.
The Applicant has been a tattooist for about 10 years and there was no evidence whatsoever that there has ever been any concern about public safety: per Austin at [79].
I accept that the Applicant, according to her written material, has expended funds to set up her premises to accommodate the proposed tattoo activities, and that she is the sole breadwinner for her family. I observe though, that the Appeal Panel has held that questions of financial disadvantage or hardship on an Applicant are not relevant to the assessment of that person's fitness and propriety: per Austin at [73].
The Respondents also submitted that the drug-related nature of the criminal offending is directly relevant to her fitness and propriety to hold an operator licence; the Tribunal needs to have confidence that the Applicant is fit and proper to avoid connecting the use or growing cannabis with her body art tattooing business. In light of her criminal record, it was submitted, the Tribunal should not hold that confidence. The Respondents invited attention to the fact that the 2018 offending in which cannabis was being cultivated hydroponically occurred at the premises at which the Applicant proposes to run the tattoo business. I do not accept that this, of itself, is relevant; there was no contention that there is something inherently concerning about the premises.
The Respondents had submitted that there is nothing in the Applicant's materials that she has ceased to use, possess or cultivate cannabis. However, in her evidence, which I accept, the Applicant said that she had grown cannabis for her own use to alleviate pain and I also accept her evidence that, since 2018 she must now rely on other forms of pain relief.
I observe that the Applicant has not come to attention since the time of the 2018 offences. In the Respondents' submission, the Applicant has a "practical onus" to demonstrate her rehabilitation to demonstrate that she is a fit and proper person notwithstanding her extensive criminal record: Deakin v Commissioner for Fair Trading & Commissioner of Police [2016] NSWCATAD 2 at [55]. I observe that in that matter Mr Deakin's offending was of a very serious kind over a long period of time. It was submitted that, in the absence of cogent evidence of rehabilitation, the Tribunal could not have faith that the Applicant will, in the future, comply with the requirements of the TP Act or the general law. The Respondents invited attention to the duration of the Applicant's criminal history as suggesting that issues with drugs might be entrenched. Whilst it was acknowledged there has been no offending in the intervening years between 2001 and 2018, the Respondent submitted that there is no direct evidence that there has been no such offending. As I discussed at the hearing, I consider this suggestion that the Applicant have to do this was, in the circumstances, unreasonable, especially given the Applicant's evidence of now having to rely on other forms of pain relief.
The Respondents submitted that the Applicant's character references should only be afforded limited weight. In Allen at [69] the Tribunal said: 69.Experience shows that many people who provide references feel that a certain delicacy is involved in referring specifically to a person's misdeeds and prefer to make only oblique references to them. Provided that the testimonial expresses some awareness of the legal trouble in which the subject finds himself or herself, it can be taken into account, but the weight that can be attributed to it cannot be substantial.
It was conceded that at least some of the references were aware of the Applicant's criminal history. Furthermore, again as discussed at the hearing, they did not appear to be references for the purposes of a job application so it is fair to assume the referees knew, at least in general terms, of the Applicant's history.

Conclusion as to fitness and propriety

On balance, I consider that the Applicant has sufficient moral integrity and rectitude of character as to permit her to be safely accredited to the public as a person to be entrusted with the sort of work which a tattoo parlour operator entails. I consider that she is a fit and proper person to hold such a licence.

The public interest

The Respondents also submitted that it is not in the public interest for the Applicant to be granted an operator licence.
The phrase "public interest" is not defined in the Act or the regulations. It is an inherently broad concept which gives the Tribunal on review the ability to have regard to a wide variety of factors in choosing whether to exercise a discretion adversely to an individual: Commissioner of Police v Toleafoa [1999] NSWADTAP 9 at [25]. It is a wider enquiry than the question of the fitness of a particular applicant. Necessarily, the public interest will be informed by the legislation under consideration. See also Collins v Department of Fair Trading [2019] NSWCATAP 199 (Collins) at [33].
When considering fitness and propriety and the public interest, an applicant's private interests, such as in obtaining access to a reliable income stream, receive no weight: Austin at [72] - [73]. There may, however, be some public benefit in the Applicant engaging in gainful employment rather than being kept by the taxpayer: see Allen at [70].
Montgomery SM in Smith summarised the authorities as being part of the public interest consideration: (i) The 'public interest' is a term embracing matters, among others, of standards of human conduct and functioning government and government instrumentalities. The interest is therefore the interests of the public as distinct from the interests of an individual or individuals. (ii) The 'public interest' is an inherently broad concept giving the Tribunal the ability to have regard to a wide range of factors in choosing whether to exercise a discretion adversely to an individual (iii) The applicant's personal interest in retaining his licence cannot outweigh the public interest in having full confidence in the professionalism of the people involved in the [security] industry (iv) The 'public interest' allows 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.
The Tribunal's task is to place itself in the position of a member of the public knowing the Applicant's record and consider whether that person would object to the applicant having a [tattooist] licence: Naziry v Director- General, Ministry of Transport [2004] NSWADT 40 at [55]. See also Mielczarek at [162].
The Respondents submitted that granting the Applicant a licence would erode public confidence in the tattoo licensing scheme. One of the objectives of the scheme is the exclusion of persons with criminal tendencies from the industry, with a view to protecting public safety; the public would not have confidence in the integrity of that scheme if a person with very recent criminal offending, and no adequate evidence of rehabilitation, were to be granted a licence.
The primary focus must be on the protection of public safety. As Frost JM said in the context of public interest in relation to firearms, in Petas v Commissioner of Police, New South Wales Police [2013] NSWADT 137 at [36], "the licensing regime is not about punishment. It is about identifying the possible risks to the public and then making decisions that are consistent with a need to reduce any risks to a minimum".
I consider that a member of the public knowing the circumstances of the Applicant's case would not object to her having an operator's licence. By all accounts she is a talented artist. Her evidence was of not wanting to grow a business but to be able to offer a service to friends and acquaintances. She plans to employ no staff and I accept that her physical condition would preclude an extensive operation. Further, only her recent criminal history is relevant, and notwithstanding that conduct, I am of the view that there is minimal risk to the public.
I therefore conclude, on balance, that it would not be contrary to the public interest for the Applicant to be granted an operator licence. Given her record though, I would suggest to the Applicant that it is in her interest to ensure that she strictly complies, not only with her obligations as an operator, but with the law generally. I doubt that any future contraventions are likely to be viewed leniently.

Decision

The decision to refuse to grant the Applicant a tattoo operator licence is set aside.
In substitution, the decision is made that the application for a tattoo operator licence is granted.

I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal. Registrar I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 14 July 2021

Tribunal's approach

Section 63 of the ADR Act provides that in determining an application for review the Tribunal is to make the correct and preferable decision having regard to the material before it, and any applicable written or unwritten law. The standard of proof that applies in these proceedings is the civil standard, that is, on the balance of probabilities. There is no onus of proof: Nakad v Commissioner of Police, New South Wales Police Force [2014] NSWCATAP 10 at [28] - [34]. The Tribunal makes its own decision in place of Fair Trading's, and there is no presumption that Fair Trading's decision is correct: McDonald v Director General of Social Security (1984) 1FCR 353 at 357; the Tribunal considers the matter afresh. Under s 28(2) of Civil and Administrative Tribunal Act 2013 (CAT Act) the Tribunal is not bound by the rules of evidence and may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice: s 38(2) of the CAT Act. It is well established that in considering an application for review the Tribunal is not restricted to a consideration of the material that was before the decision-maker, but may have regard to any relevant material before it at the time of the review: Shi v Migration Agents Registration Authority [2008] HCA 31.
At my request, the Respondent provided submissions after the hearing in relation to whether the Applicant's name could be published having regard to the Children (Criminal Proceedings) Act 1987. Amongst other limitations, s 15A of that Act prohibits the publication of the name of a person so as to connect the person with criminal proceedings in relation to an offence committed while a child. Accordingly, I have anonymised her name, and other personal details.

CONSIDERATION

Under s 27(3)(c) of the TP Act, if an application for a licence has been refused on the ground of an ASD made by the Commissioner about an applicant for review, the Tribunal, nonetheless, is not prevented from determining whether Fair Trading made the correct and preferable decision regarding the application for the licence merely because of the ASD. There is, however, no jurisdiction conferred on the Tribunal to review the ASD itself: Smith v Commissioner of Police & Anor [2014] NSWCATAD 184 at [13], [15] (Smith). However, unlike Fair Trading, the Tribunal has a discretion as to whether or not to grant a licence, notwithstanding the ASD: see s 27(3)(c) of the TP Act; Hallman v Commissioner for Fair Trading and Commissioner of Police [2017] NSWCATAD 136 at [7].
Clause 13(1)(c) of the TP Regulation provides that the Secretary may refuse to grant an operator licence if satisfied that the Applicant is disqualified from a holding a licence, permit or other authority under legislation administered by the relevant Minister. The Commissioner in making the ASD advised, pursuant to s 36(1) of the TP Act, that the Applicant is disqualified from holding licences and permits under the Commercial Agents & Private Inquiry Agents Act 2004, the Security Industry Act 1997, the Firearms Act 1996 and the Weapons Prohibition Act 1998 due to her criminal offences. For the reasons discussed below it was not necessary to consider this aspect of the ASD.
Central to this review is the Applicant's criminal history which is the basis of the ASD.

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