Fisher v Department of Fair Trading [2019] NSWCATOD 208 | Case summary

Is Ms Fisher a fit and proper person to hold a tattooist licence?

In considering the term 'fit and proper', the Appeal Panel in Austin v Commissioner for Fair Trading [2016] NSWCATAP 179 found that: 1. 'fit' with respect to an office is said to involve honesty, knowledge and ability. 2. 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. 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. 3. The expression means that an applicant needs to show not only that he or she 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.
I agree with the findings of Senior Member Walker in Birch v Commissioner of Fair Trading [2017] NSWCATAD 166 that: 1. being a fit and proper person to perform tattooing does not necessarily require an applicant to have led a life of unblemished rectitude. On the other hand, a history of good qualities can be outweighed by a single, serious incident.' 2. the elements of fitness and propriety are knowledge, integrity and ability of the kind and standard required in the relevant activity, in this case tattooing.
Before the tribunal, Ms Fisher gave evidence, which was undisputed, that she has been working as a tattooist for forty years, that she has a particular expertise in Celtic tattooing and has won awards and trophies at tattoo conventions. She also gave evidence, again undisputed, that she maintains standards of hygiene when tattooing including the use of sterile and disposable instruments. In accepting Ms Fisher's uncontradicted evidence in this regard, I am satisfied that she has the knowledge and ability to tattoo clients to the standard required of a licensed tattooist.
This leaves the question of honesty. In examining this aspect of fitness and propriety, I will consider whether Ms Fisher is possessed of sufficient moral integrity and rectitude to be accredited to the public as a person to be entrusted with tattooing clients.
There is no dispute that on 9 August 2018, a 15-year-old boy who, Counsel for the Department of Fair Trading concedes, 'was of large stature and may have appeared older than his age' came into the tattoo parlour where Ms Fisher was working and requested a tattoo. The young person came into the tattoo parlour with the brother of a fellow tattooist known to Ms Fisher.
In her police record of interview, in which I find Ms Fisher was both candid and forthcoming, she explained what happened on 9 August 2018: It was just - what happened was two -a guy - I thought a guy and a girl came into the shop and the guy who came in was a Facebook friend of mine…And he came in with a - I thought a girl - I thought a woman…And she looked youngish, but I thought, you know? [I]t was apparently a boy. And he just was saying he wanted to get a tattoo…I said 'How old are you?' And he said, '18,' and I said, 'Have you got ID?' And he goes, 'No.' And I said, 'Why's that?' and he goes, 'I'm in a refuge.'…And I turned to [the other person]..I don't know him real well, but I know him…I know his brother too. And I said, 'Is he 18?' And he goes, 'Yes, he is.' And I said, 'Well, where's the refuge?' and he says, 'It's in Penrith.'..And I said, 'God.'..And I hadn't done anything all day and I hadn't made any money and I just said, 'Well look…If you can get some more money..I can do something small on you..I know I should have said no. Like,'Come back when you've got ID…But they both lied to me by saying they're 18…I felt sorry for him, because he said he was in a refuge. I thought that's why he won't - I can't call his mother, because he's obviously got problems at home where he had to leave and he's in a refuge, you know? So that's what happened.
In his police statement, the young person explained that he had been with a friend when he suggested getting a tattoo before walking into a tattoo parlour: We were trying to figure out what we were doing in there when Kim said to us I need to see your ID as you are not supposed to be in here if you are under 18. I explained that I was living in a refuge as I was kicked out of home. I lied about that so that she would give me a tattoo. Kim believed me and agreed to give me a tattoo.
In his statement, the young person admitted telling Ms Fisher that while he was living in a refuge, all his identity documents remained with his mother. The young person told the interviewing officer that Ms Fisher had not asked for written consent before tattooing him. The young person agreed that getting the tattoo was the wrong thing to do because he was only fifteen and he was aware that eighteen was the legal age for a tattoo.
In her police statement, the young person's mother stated that on 9 August 2018, her then fifteen-year-old son had asked her for some money, which he said was for food. His mother gave him $20 in cash and $20 on his bank card, which she controls. She confirmed that she had never given her son permission verbally or in writing to get a tattoo. She also stated that she would never have transferred money to her son if she'd known he would be using it for a tattoo.
I am satisfied on the evidence before me that when Ms Fisher asked for the young person's age, he said he was eighteen years old and when Ms Fisher requested identification as verification of this, the young person replied that he had no identification because he had been kicked out of house and was living in a refuge. I accept the evidence before me that the young person has autism and is high functioning. I am satisfied that Ms Fisher did not know this at the time she agreed to tattoo him.
I accept the evidence before me including the (unsigned) facts sheet contained on file that Ms Fisher pleaded guilty to the offence on the basis that she had been under the impression that the young person was over eighteen years of age, as he had claimed to be.
In oral evidence before this tribunal, she agreed that she should have insisted on sighting the young person's identification. She also told the tribunal that since her offence, she has been a lot more careful in confirming a client's age. She emphasised that in her long career as a tattoo artist, this was the first time it had happened to her and confirmed that if a client looks younger than eighteen she always asks for proof of identification.
In this case, she had believed that the young person was over eighteen years old, both because he had told her so and because his companion - the brother of a tattooist acquaintance of Ms Fisher - had confirmed this information.
Ms Fisher agreed that she should have taken more steps to establish the young person's age, telling the tribunal that from now on, she will always insist on seeing a client's identification. She also suggested preparing a disclaimer form for clients to sign, as is required in many tattoo parlours. She also told the tribunal that if she is successful in having her tattooing licence reinstated, she will look to work in a more professional tattoo parlour where proof of identification is requested from all clients who also have to complete a form providing their details. She told the tribunal that there is a lot of work available for tattooists and she is confident of finding work in a parlour with more rigorous operating procedures. Ms Fisher's evidence was detailed and open and I am satisfied that although she had initial concerns that he looked 'youngish', she believed the young person when he said he was over eighteen. I am satisfied that Ms Fisher regrets not having insisted on sighting a proof of identification and is remorseful at having tattooed the young person. I am also satisfied that she will be careful in future to demand appropriate identification documents from clients. I am satisfied that her intention to find work in a parlour with more rigorous procedures is a genuine one and that by working in a parlour under an operator who demands details and proof of identification of all clients, she will ensure that she will never again tattoo a person who is under-aged (without parental consent). I am also satisfied that in her current tattoo parlour, she will herself take appropriate steps to ensure anyone she tattoos is over the age of eighteen years.
Contained on file are details of Ms Fisher's full criminal history. In 1977, she was fined for the possession of cannabis and in 2002 she was fined for driving in a manner dangerous and disqualified from driving for a period of eighteen months. In 2002, she was also fined for having custody of stolen goods and for the possession of a prohibited drug. In 2003, on appeal to the District Court, her convictions for steal from the person and drive while under the influence were confirmed. There have been no subsequent offences prior to Ms Fisher's conviction for tattooing a child without parental consent in 2018.
In an affidavit prepared for these proceedings, Ms Fisher explained the background to those offences committed in 2002, which she described as a 'very bad time in my life.' At the time, she had been a recreational user of cannabis and following the death of a friend, began to also use cocaine and ecstasy as a means of self-medicating. At the time, she was also in a relationship with a man, now deceased, who had been abusive towards her.
I accept Ms Fisher's evidence in this regard and accept that for the past twelve years, she has been under medical supervision for depression and anxiety. I accept her evidence that she has 'stayed away from drugs for over seventeen years' and that she has never been affiliated with any motorcycle gangs or been in any trouble with the police relating to any such affiliation.
I accept that Ms Fisher has been issued with a tattooist licence on two occasions, the first in 2014 after the tattooing licensing scheme first came into effect and the second upon expiry of that licence. I note that to be issued with such a licence would have required a determination that, despite her criminal record, the applicant was a fit and proper person to be granted the licence, and that it would not be contrary to the public interest to do so. (s14(1)(b) of the Tattoo Parlours Act).
It is also my view that Ms Fisher's earlier criminal record would not now preclude her from being found to be a fit and proper person to be granted a tattooing licence and that is would not be contrary to the public interest to do so. I accept Ms Fisher's evidence that the offences occurred over sixteen years ago, at a time when she was using drugs and had an abusive partner. I accept her evidence that the circumstances that led to her offending are no longer there: her former partner is deceased and she no longer uses drugs. She now has a settled lifestyle, evidenced by the undisputed evidence that she is paying off her house and supporting her son who is studying at university.
In determining the seriousness of the offence of tattooing a child without parental consent, I have considered whether it is of such severity as to warrant the permanent removal of her licence, a question that was considered in NSW Bar Association v Cummins [2001] NSWLA 52 in the context of the removal of a practising certificate for a lawyer. In doing so, I note the findings of the Appeal Panel in Austin v Commissioner for Fair Trading at [79] 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.' I also agree that a tattooist is not required to have led a prior life of unblemished rectitude. Wright v Commissioner for Fair Trading [2017] NSWCATAD 98
On the evidence before me, I accept that, after an initial concern as to his age, Ms Fisher tattooed the young person believing he was 18 years old. I also accept that while she was happy to receive the payment for the tattoo - which was in fact only $20 after 50% commission was paid to the operator - her actions were also motivated by her sympathy for the young person who she believed to be living in a refuge. I am satisfied that it was her sympathy for the young person more than her desire for payment that explains her carelessness in not insisting on a proof of identification after her initial doubts as to his age or, in the case of no proof of identification being available, her poor decision to tattoo him anyway.
On this basis, I am satisfied that Ms Fisher's behaviour was more careless than deliberately wilful or morally delinquent. (see Pillai v Messiter [No 2] (1989) NSWLR 197 at [201])
Having heard from Ms Fisher in person, I am satisfied that she has learnt from her actions in tattooing a minor without parental consent, for which she received a criminal conviction for the first time in sixteen years and a hefty fine. I accept that she will be more careful in her insistence on proof of identification and is genuine in her desire to find work in a more suitable venue where details of clients and proof of identification are required as a matter of course by the operator of the parlour.
In Ms Fisher's favour is the fact that in a tattooing career of forty years, this is the first time Ms Fisher has come to the attention of the authorities in relation to a matter pertaining to her work as a tattooist. On the evidence before me, and despite the short amount of time that has elapsed since the offence itself, I accept that Ms Fisher is fully rehabilitated. On this basis, I am satisfied that having learnt from her error, she retains the moral rectitude and integrity for me to find that she has the honesty required to be a fit and proper person to hold a tattooist licence.
As I have found that Ms Fisher continues to hold the knowledge, ability and honesty required to hold a tattooist licence, I am satisfied that she continues to be a fit and proper person to hold a tattooist licence.

Would it be contrary to the public interest for Ms Fisher to continue to hold a tattooist licence?

Although the words 'public interest' are not defined in the Tattoo Parlours Act, I accept that the primary focus of the Act is on the regulation of the tattoo industry and on the protection of the public from criminal gangs and criminal activities, as was articulated by in the second reading speech for the bill that preceded the Act. The tribunal may, of course, have regard to the second reading speech to ascertain the purpose of the legislation and the mischief it was designed to cure. (Thiess v Collector of Customs [2014] HCA 12; 306 ALR 594)
This approach to making a determination on public interest grounds in relation to the Tattoo Parlours Act was also taken in Smith v Commissioner of Police NSW Police Force & NSW Fair Trading [2014] NSWCATAD 184 where Senior Member Montgomery stated, where 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.'
The words 'public interest', in conferring a wide discretion on the Tribunal, permit consideration of matters going well beyond the skills, character or reputation of an applicant. These matters may include concerns in relation to public protection, public safety and public confidence in the administration of the licensing system. (see Smith v Commissioner of Police NSW Police Force & NSW Fair Trading [2014] NSWCATAD 184; Constantin v Commissioner of Police, NSW Police Force (GD) [2013] NSWADTAP 16).
I accept that Ms Fisher's personal interest in retaining her licence cannot outweigh this public interest and that her personal interest in retaining her licence cannot outweigh the public interest in having full confidence in the professionalism of people involved in the tattoo industry (Smith v Commissioner of Police [2014] NSWCATAD 184).
I agree that the Tattoo Parlours Act is designed not only to protect the public from harm, but also to help 'preserve public confidence in that industry and its members by signalling that those activities or facilities do not meet the required standards will not be permitted to operate in that industry.' (Birch v Commissioner for Fair Trading and the Commissioner of Police, NSW Police Force [2017] NSWCATAD 166)
I also agree that in determining such a case I should put myself in the position of a member of the public who might use the applicant's services and 'ask whether that member of the public, knowing of the applicant's record, would object to the applicant being their tattoo artist.' (Birch v Commissioner for Fair Trading and Commissioner of Police, NSW Police Force [2017] NSWCATAD 166)
In considering Ms Fisher's situation, I accept the submission of Counsel for the Commissioner of Fair Trading that it is not in the public interest for a vulnerable young person to be left with a body marking they might subsequently regret. On the evidence before me, however, and for the reasons set out above, I am satisfied that Ms Fisher believed that the young person was over the age of eighteen years and that, by insisting on proof of identification in the future, will make sure that she will never again made such an error. I accept that it is Ms Fisher's intention to find work in a tattoo parlour with more rigorous operating procedures to ensure that details of all clients and proof of their identity are required by the operator. For these reasons, I am satisfied that a member of the public, knowing the circumstances of Ms Fisher's criminal record, her experience and skill as a tattooist, including winning awards for the quality of her work, her remorse for her offence and her strategies to ensure she does not reoffend, would not object to her being their tattoo artist.
I also accept, as was found in Ting v Department of Fair Trading [2017] NSWCATAD 304, that there is a public interest in assisting the rehabilitation of persons who have fallen foul of the criminal law, so far as is possible without endangering public health, safety or security.
In that case, Senior Member Walker found that licensing the applicant would assist in his rehabilitation, particularly as he was not qualified or equipped for any other kind of work. This would also bring a benefit to the taxpayer, as licensing the applicant would avoid him being on the dole as he would appear to have the opportunity of continuing to work in the tattoo industry.
I am satisfied that Ms Fisher falls in a similar category. She is 58 years old and, apart from a brief stint working as a warehouse packer, has spent all her working life as a tattoo artist. On the evidence she has provided to me, I am satisfied that she remains in demand as a tattooist and, assuming she retains a licence, will be able to find work in this area. At her age and without additional qualifications, I am not satisfied that she would be successful in finding work elsewhere and might otherwise become a burden on the taxpayer.
I am also satisfied that Ms Fisher has learned from her offence in tattooing the young person and will be careful not to again fall breach the law in her capacity as a tattooist. I have confidence in her ability to do this given that she has previously turned her life around following drug-related offences in 2002 and, I accept, has now remained drug-free for close to seventeen years. This achievement gives me confidence that Ms Fisher will also learn from this recent offence and will ensure her vigilance in adhering to the legal requirements in her tattooing work.
On balance, and for the reasons set out above, I am satisfied that it would not be contrary to the public interest for Ms Fisher to be granted a tattooist licence.

Fisher v Department of Fair Trading

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