Hallman v Commissioner for Fair Trading and Commissioner of Police

NCAT Administrative and Equal Opportunity|2017-03-16

reasons for decision

On 27 October 2016 the Commissioner for Fair Trading (Fair Trading) refused an application by Brett Adam Hallman for a tattooist licence under the Tattoo Parlours Act 2012 (the Act). The reason for the refusal was because the Commissioner of Police (the Commissioner) had made an adverse security determination under s 19(2) of the Act. The Commissioner had determined that Mr Hallman is not a fit and proper person to be granted the licence due to his criminal history and it would be contrary to the public interest for the licence to be granted because of that history.
On 1 December 2016 Mr Hallman sought review of that decision by the Tribunal.
Prior to the introduction of the current legislation, Mr Hallman did not need a licence to be a tattooist. When the licensing regime came into being, Mr Hallman was required to apply for a licence if he wished to continue his profession. He made an application on 20 September 2013 and, under the transitional provisions in the new legislation, was permitted to continue to work as a tattooist while his application was being considered.
Mr Hallman is also known as Brett Hilton. He explained that he was born Brett Hallman but his mother changed his name to Hilton when he was 3 or 4 years old. He changed his name back to Hallman when he was an adult.

The respondents' evidence

The Applicant has been provided with the adverse security determination in a redacted form. An unredacted copy of that document has been provided to the Tribunal on a confidential basis and the Commissioner provided information to the Tribunal in the absence of the Applicant. The Applicant is aware that a confidential session took place but he is not aware of the information that was presented.
The open evidence provided by the respondent was to the effect that Mr Hallman has a substantial criminal record in New South Wales. Mr Hallman was convicted of nine offences between 1990 and 1997, 12 offences between 2000 and 2003 and five offences between 2007 and 2013. The convictions were primarily in relation to possession of a prohibited drug, stealing, shoplifting, and goods in custody. In 2007 he was convicted of using offensive language and having custody of a knife in a public place. In 2011 he was convicted of driving never licensed and negligent driving. There is also a break and enter with intent to steal offence in 2000 and a conviction in 2003 for maliciously inflicting grievous bodily harm.
He has also come to the attention of police on a number of other occasions but no charges have resulted.
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At the time he made his application for the licence Mr Hallman had been working as a tattooist at 13Crowns Custom Tattoos in Huskisson since July 2011. Mr Grant Stephens was the operator of that parlour at the relevant time.
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Mr Stevens' application for an operator licence was refused and he appeared before this Tribunal in May 2016 accompanied by Mr Hallman. His application for a stay of the decision was refused. Mr Stevens was not the holder of an operator licence during the period beginning on 17 August 2016 and ending on 15 March 2017. During that period, the premises in Huskisson occupied by 13Crowns Custom Tattoos were not licensed premises under the Act.
Screenshots of posts from the Facebook page of Brett Hilton were provided by the respondent. On 8 September 2016 a post by Brett Hilton states: "Hey guys I am taking bookings again so if you want anything done just msg me cheers". In response to a question posted the same day Brett Hilton responded: "We are open until we have had enough and wanna go home! lol".
The Facebook page of Brett Hilton was accessed by an officer of the second respondent on 7 March 2017. The "Intro" section on the page states that he is a "tattooer at 13crown custom tattoos". The Brett Hilton Facebook page gives his date of birth in 1973 which is the same date of birth as Mr Hallman.
The officer also accessed the Facebook page of 13Crowns Custom Tattoos on 7 March 2017. A post on 21 August 2016 shows photographs of a bulldog tattoo on an upper arm and states: "We almost finished this bulldog portrait on …today! Cheers to all you guys this arvo can't wait to finish it!" A post from Jervis on 9 October 2016 states: "Brett is awesome at what he does, previously went to a reputable place in Sydney and probably won't go back to them. The service from the team was great."
There was a "review" post on 17 January 2017 which stated in part: "he wanted to get a tat to match mine wasn't big but Brett turned it down". There was another post on 1 February 2017 from Bill which included the words: "Hi Brett. You have done a couple of tatts for me last year … It is time formy [sic] next". A reply by 13Crowns Custom Tattoos on 5 February 2017 states: "Hi bill, has brett been in touch with you regarding what you want done?" to which Bill replied, "Not yet. Realise he most prob flat out…". The reply from 13 Crowns Custom Tattoos was: "He has phone problems and I don't think he has facebook on his crap phone, I will show him this tomorrow".
The respondent states the posts on Facebook demonstrate that, contrary to the Act, Mr Hallman continued to tattoo after he was refused a licence and carried out tattooing at premises he knew to be unlicensed.

Mr Hallman's evidence

Mr Hallman is 44 years of age. He acknowledges his past criminal history and states his behaviour was due his heroin addiction and homelessness at the time. He states he has not used heroin for 17 years. In 2000 while in prison he was bashed and severely injured. He has frontal lobe damage which affects him to this day and which can lead to poor decision making and minor trouble.
Mr Hallman said he has been in a stable relationship with his partner for 16 years and moved to the NSW south coast in 2011. He said he started tattooing in 1998 and has worked professionally for a number of different shops since 2004 but he was hoping the licence would allow him to work independently. He states he is unable to find alternative work and has nothing else to fall back on. Mr Hallman said that he loves fishing and living a quiet life with his partner and two dogs. He no longer drinks and no longer uses drugs.
Mr Hallman disputed elements of the Police Facts Sheets in relation to some of his past convictions. He denied that in relation to the 2007 offence of using offensive language he stated to police: "Fuck you cunts, I don't live by no rules, I just do what I want, I fucking drink when I want, I fucking work when I want". He denied that he had chased some girls through carriages on a train. He also denied having custody of a knife in a public place stating that they were nail clippers. He also stated that he acted in self defence in relation to his 2003 conviction for maliciously inflicting grievous bodily harm when he broke the jaw of a 17 year old boy.
Mr Hallman did acknowledge when questioned that he has a tendency to react when placed under pressure. He said that this was a result of his brain injury and if he feels threatened, he will act in self defence.
Mr Hallman did not deny that in May 2016 he had attended the Tribunal with Mr Stevens who was seeking to overturn the refusal of his operator licence. He said he has known Mr Stevens for some 17 years and sees him every now and again. He said that he went to Thailand with Mr Stevens around 2011 but he didn't like the place and came back to Australia after about four days. He said he was not employed by Mr Stevens but worked on a percentage basis - 40% of the fee for a tattoo went to the shop and he kept 60%.
Mr Hallman said that he has not done tattoos for money since being refused a licence. He said he has done some tattoos on friends for free to keep up his skill level. He said that he has also done some advertising to keep in touch with his clients. He denied having done tattooing from his home.
Mr Hallman said that he had done the bulldog tattoo referred to in paragraph 19 above and had written the message on the 13Crowns Custom Tattoos Facebook page. He said he was not aware that he could not perform tattooing in unlicensed premises irrespective of whether he was paid for the work.
Mr Hallman provided two character references in support of his application - one from his mother and the other from his partner's father. Both are aware of his criminal past and state that he has changed since the offences were committed.

Fit and proper

The expression 'fit and proper' is not defined in the Act but is a common statutory term and has been considered by this Tribunal and in other jurisdictions in numerous cases.
In Hughes and Vale Pty Ltd v New South Wales (No.2) (1955) 93 CLR 127 at 156-7 the High Court said: 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.
These sentiments have been echoed in cases before the Tribunal and 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 (AJO v Director-General of Transport [2012] NSWADT 101 at [26]; Austin v Commissioner for Fair Trading & Commissioner of Police [2016] NSWCATAP 179 at [82]).
In Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 380 Toohey and Gaudron JJ said: 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.
They went on to say at 388: 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.
In Sobey v Commercial and Private Agents Board (1979) 22 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 devolving 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.
In Smith v Commissioner of Police & Commissioner for Fair Trading [2014] NSWCATAD 184 at [19-20] in the context of the Tattoo Parlours Act, Senior Member Montgomery stated: [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… [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.

Public interest

In general, the concept of the public interest is designed to give the broader interests of the community priority over private interests of individuals. In Smith v Commissioner of Police & Commissioner for Fair Trading [2014] NSWCATAD 184 Senior Member Montgomery set out a number of authorities in which the concept of the public interest has been considered (at [42-47]). In Roberts v Commissioner for Fair Trading [2016] NSWCATAD 218 Senior Member Montgomery said that the authorities referred to in Smith indicated that: 1. The 'public interest' is a term embracing matters, among others, of standards of human conduct and of the functioning government and government instrumentalities. The interest is therefore the interest of the public as distinct from the interest of an individual or individuals. 2. 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 a discretion adversely to an individual. 3. An applicant's personal interests in retaining his licence cannot outweigh the public interest in having full confidence in the professionalism of people involved in the security industry. 4. 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.
He went onto say: Public confidence in the scheme and regulatory requirements under the Act is a public interest consideration. In the Second Reading Speech, Mr Roberts stated that the public interest test under the Act "is designed to address the criminal matters currently surrounding the industry, such as ... personal violence". The scheme has as one its objectives the exclusion of persons with criminal tendencies from the tattooing industry, with a view to protecting public safety.
The Tribunal's task is to place itself in the position of a member of the public knowing Mr Hallman's record and consider whether that person would object to Mr Hallman possessing a tattooist licence (Naziry v Director-General, Ministry of Transport [2004] NSWADT 40 at [55]).
The respondent's case that Mr Hallman is not a fit and proper person rests on his past criminal history and possible breaches of the Act in recent times.
Mr Hallman was last convicted of an offence in 2013. Many of the convictions sought to be relied upon by the respondent occurred many years ago, a fact acknowledged by the respondent at the hearing. Mr Hallman's evidence is that his criminal past was associated with drugs and homelessness. He states he gave up using heroin in 2000 whilst in jail, but it is apparent that he had several convictions after that involving alcohol and drugs.
A number of the offences involving Mr Hallman demonstrated aggression to varying degrees. I do not accept his denials and statements that the police account is wrong in relation to a number of events as outlined above. He himself acknowledged that he can be quick to react and stated that this is a result of the damage caused to his frontal lobe when he was bashed in prison.
A number of the offences also demonstrate a lack of respect for authority and the law such as driving unlicensed, particularly where Mr Hallman has never held a licence. His taunts to police while intoxicated demonstrate an attitude of disrespect for rules and accepted norms.
His referees say that he is a reformed character and, if his past offences were all that was before the Tribunal, I may have been inclined to agree. However, other material indicates that his attitude to the law has not in fact changed.
The evidence of Mr Hallman is that he was tattooing at 13Crowns Custom Tattoos on 21 August 2016. The post of 8 September by Brett Hilton - who I accept is in fact Brett Hallman - that he is taking bookings again and his subsequent reply to a query about opening hours that "We are open until we have had enough and wanna go home!", indicates that he was working from the premises with others. The post of 9 October 2016 on the 13Crowns Custom Tattoos Facebook page by Jervis would indicate that, around that date, Mr Hallman was performing work at 13Crowns Custom Tattoos. Mr Hallman has not stated that he worked anywhere other than 13Crowns Custom Tattoos during this time and I am satisfied that he was working at the premises of 13Crowns Custom Tattoos in Huskisson.
At this time the premises of 13Crowns Custom Tattoos in Huskisson was unlicensed. This was a fact which was known or ought to have been known by Mr Hallman. He, after all, had accompanied Mr Stevens to a hearing before the Tribunal in May 2016 when Mr Stevens was seeking review of the decision to refuse him an operator licence. At the hearing before me, Mr Hallman sought to downplay his association with Mr Stevens but it was apparent he had known him for many years, had worked at 13Crowns Custom Tattoos since 2011 and had even travelled to Thailand with Mr Stevens. This further strengthens my view that Mr Hallman was aware the premises were unlicensed or, at the very least, was wilfully blind to that fact.
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The posts on the 13Crowns Custom Tattoos Facebook page from January and February 2017 demonstrate that Mr Hallman was still associated with 13Crowns Custom Tattoos after his application for a tattooist licence had been refused on 27 October 2016. While there is no direct evidence that he continued to tattoo at the unlicensed premises after that time, there is circumstantial evidence that he did so. The statements on the 13Crowns Custom Tattoos Facebook page on 5 February 2017 in relation to the inquiry from Bill certainly suggest that Mr Hallman was working and available for work. When combined with the statements by Mr Hallman that tattooing is the only work he can do and he did not look for other work after his licence was refused, there is a very clear indication he was undertaking tattooing work at this time.
Mr Hallman states that he was not paid for any tattooing work after his application for the licence was refused. However, his own statements that this was the only work he could do when combined with the various Facebook posts referred to above, cast considerable doubt on that statement. Mr Hallman said that he had carried out some tattoo work on friends for free but the Facebook posts would indicate that he was being permitted to perform work for reward on clients who made contact through the 13Crowns Custom Tattoos Facebook page and, presumably, through other more traditional means. In addition, Mr Hallman became evasive during the hearing when questioned in detail about his role at the tattoo parlour. On balance, I am satisfied that, contrary to the provisions of the Act, Mr Hallman performed tattooing work for reward after he was refused a licence.
While Mr Hallman may no longer be engaged in the same sort of criminal activity as was the case up to 2013, he has, in relation to his role as a tattooist, demonstrated a continuing attitude of disregard and disrespect for the law as was apparent throughout his earlier life. He has shown that he is willing to breach the provisions of the Act if it suits his personal interests. I cannot be satisfied that he would adhere to all the requirements of the licensing scheme.
After considering all the evidence, I am of the view that Mr Hallman is not a fit and proper person to hold a tattooist licence. In such circumstances, where the public must have faith in the integrity of the licensing scheme, neither would it be in the public interest for Mr Hallman to be granted a licence.

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: 28 April 2017

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Judgment (7 paragraphs)

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