Hawes v Commissioner for Fair Trading [2017] NSWCATAD 30 | Case summary

NCAT Administrative and Equal Opportunity|2016-10-04

Traffic record

The Commissioner's material refers to the Applicant's traffic record and notes that he been found guilty or convicted of, or issued with penalty notices for 14 traffic related offences between the years of 2000 to 2015. The Commissioner contends that the number of these offences demonstrates an ongoing and wilful disregard for both the law and a licensing scheme put in place to regulate drivers of vehicles and to protect the public.
The Commissioner submits that the Applicant's traffic record demonstrates a failure to appreciate the importance of the requirements of the driver licensing regime, a disregard for public safety and a propensity to re-offend, and that this is relevant to the question of whether there can be confidence that he would comply with the requirements of the Act.

Discussion

The Commissioner is concerned that the Applicant has been carrying on a business performing tattoo procedures without holding the appropriate licence. Given the postings on the Applicant's social media sites this is a reasonable concern. The question arises as to whether the postings are intended to give the impression that the Applicant is working, when he isn't in fact doing so, or whether in fact the Applicant is working, in contravention of section 7(1) of the Act. That is, has he created a false narrative in order to maintain a presence in the industry until such time as he is able to obtain a licence?
Section 7(1) of the Act provides that an individual must not perform any body art tattooing procedure for fee or reward unless authorised to do so by a tattooist licence. The Applicant does not dispute that he has been performing body art tattooing procedures but denies that he has been doing so 'for fee or reward'.
The Commissioner has not presented any evidence to show that the Applicant has been working 'for fee or reward'. Nor is there any evidence to contradict that provided by the Applicant and Ms McGregor.
In the circumstances, I accept the evidence of the Applicant and Ms McGregor.
I accept that the postings on the Applicant's social media sites were intended to give the impression that the Applicant was working, in order to maintain a presence in the industry. I also accept that he has been performing body art tattooing procedure so that he does not fall behind in his craft. I am not satisfied that he has been working in contravention of section 7(1) of the Act.
There is no suggestion that the Applicant has ever failed to implement proper tattooing practices in the work that he has done.
I note that the Applicant's traffic record does him no credit but I do not regard it as so significant that it should prevent him obtaining the licence that he is seeking. It cannot be reasonably regarded as habitual recidivism or general disregard for the law to the extent that he is not a fit and proper person to hold a licence.

The Applicant's References

As noted above, the Applicant has provided a number of character references in support of his application. Each of those references presents a positive image of the Applicant. They suggest that he is an honest, hardworking, reliable, reputable person.
The Commissioner submits that those references do not assist the Applicant and that they tend to confirm that he has been tattooing without a licence over a lengthy period of time. Further, some referees appear to be unaware of the Applicant's family connection to the Comancheros, while others seem to confirm that he continues to have family members in the club.
The Commissioner has also provided criminal and traffic records for some of the referees. This is to be taken into account in regard to the weight to be given to their references.
The question of what weight is to be given to references that do not indicate the extent of the referee's knowledge of relevant issues has been considered in a number of decisions in this Tribunal and the forms Administrative Decisions Tribunal.
These Tribunals have repeatedly accorded limited weight to references supplied in licensing cases that do not indicate knowledge of an applicant's past offences or negative history. In Director-General, Ministry of Transport v FV (GD) [2008] NSWADTAP 60, the Appeal Panel said at paragraph [41]: 41 Clearly an important factor to be taken into account in giving weight to references is what the authors know of the negative history of the subject, especially criminal convictions. Where references do not show a knowledge of the negative history, they must be approached with caution.
In this matter, given the findings that I have made in regard to the allegation of the Applicant's association with the Comancheros and the allegation that he has been working in contravention of section 7(1) of the Act, I do not consider that the failure to make reference to those issues significant. In the circumstances I accept that the Applicant is held in high regard by those referees.

Conclusion

The Commissioner's primary concern is that the Applicant has been working in contravention of section 7(1) of the Act. As I have indicated, I am not satisfied that he has done so. While his conduct in posting on social media sites with the intent of giving the impression that he has been working was imprudent, it is not in contravention of the Act. Similarly, performing body art tattooing procedures so that he does not fall behind in his craft is not in contravention of the Act if it is not done 'for fee or reward'.
As I have also indicated, I accept the Applicant's evidence that he is not associated with the Comancheros.
In the circumstances, I am not satisfied that there are issues of fitness and propriety or the public interest that should prevent the Applicant from obtaining the licence that he is seeking. That being the case, it is my view that the correct and preferable decision is that the licence should be granted.

Orders 1. The decision to refuse the Applicant's application for a tattooist licence is set aside. 2. 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: 16 January 2017

The licensing regime

I have considered the licensing regime established by the Act in several decisions including Smith v Commissioner of Police NSW Police Force & NSW Fair Trading [2014] NSWCATAD 184, Zahra v Commissioner of Police, NSW Police Force & NSW Fair Trading [2014] NSWCATAD 211, and most recently in Mielczarek v Commissioner of Fair Trading and Commissioner of Police, NSW Police Force [2017] NSWCATAD 5.
In Smith at paragraph [27] - [28] I expressed the view: 27. In my view section 27(3) of the Act is to be construed as giving the Tribunal the jurisdiction to make a fresh determination on the basis of the material placed before it. The Tribunal is not confined to the grounds relied upon by the Commissioner in making the adverse security determination. 28. The Tribunal may make its decision on any other lawful, discretionary basis. In doing so there is no need to revisit the adverse security determination. Pursuant to section 27(3)(a) of the Act the Commissioner is a party to the proceedings. The Commissioner is able to present material and argument in relation to the matter to be determined. The Commissioner is able to present criminal intelligence reports or other criminal information to the Tribunal and subsections 27(4), (4A) and (4B) of the Act provide safeguards in relation to that material.
This approach was accepted by the Appeal Panel in Austin v Commissioner of Fair Trading & Commissioner of Police [2016] NSWCATAP 179 at paragraphs [37] - [38].
In my view, the Tribunal stands in the shoes of the Commissioner for the purposes of these proceedings, and in making its decision the Tribunal is entitled to have regard to and give weight to any material which the Commissioner was entitled to consider and give weight. This material might include relevant criminal intelligence reports or other criminal information held in relation to an applicant or a close associate of an applicant. The relevant material can also include any material that has come into existence, or discovered, after the date of the Commissioner's decision: Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577.
The Applicant applied to Fair Trading for a tattooist licence pursuant to section 11 of the Act. Fair Trading then referred 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. The Commissioner made an ASD in relation to the Applicant. In circumstances where the Commissioner makes an ASD Fair Trading has no discretion and must refuse to grant a licence.
Pursuant to section 27(i)(a) of the Act, review may be sought of the refusal to grant a licence. In my view, section 27(3) of the Act is to be construed as giving the Tribunal the jurisdiction to make a fresh determination on the basis of the material placed before it. The Tribunal has discretion to grant a licence notwithstanding the ASD.
The Tribunal is not confined by the ASD and can affirm the decision on any other ground contemplated by the Act. The grounds available under the Act include, but are not limited to, grounds that the applicant is not a fit and proper person, or that it is not in the public interest for the licence to be granted.
Further, Intelligence is also admissible in this Tribunal. Section 27(4) of the Act provides: (4) In determining an application for an administrative review of any decision to refuse to grant a licence or to suspend or cancel a licence that was made on the ground of an adverse security determination made by the Commissioner about the applicant for the administrative review, the Civil and Administrative Tribunal (and any Appeal Panel of the Tribunal in determining any internal appeal against such a review under the Civil and Administrative Tribunal Act 2013): (a) is to ensure that it does not, in the reasons for its decision or otherwise, disclose the existence or content of any information identified in the Commissioner's determination as being from a criminal intelligence report or other criminal information referred to in section 19 (3) without the approval of the Commissioner, and (b) in order to prevent the disclosure of any such report or other criminal information, is to receive evidence and hear argument in the absence of the public, the applicant for the administrative review, the applicant's representative and any other interested party, unless the Commissioner approves otherwise.

"Fit and proper person"

The Act contains no objects clause, but the Tribunal may have regard to the Minister's second reading speech to ascertain the purpose of the legislation, the mischief that it was designed to cure. The second reading speech noted that the Act was introduced in response to gang crime in New South Wales. It aims to break the stranglehold that OMCGs had over the tattoo industry. However, the Act's purpose is not limited to eradicating the influence of OMCGs in the industry. The "fit and proper" criterion applied in the Act is of much broader application.
I reviewed a number of relevant authorities that considered the meaning of the expression "fit and proper person" in Smith at paragraphs [38] to [41]. The assessment of fitness and propriety is a question of fact to be decided objectively in relation to the activities in which the applicant, if licensed, would be engaged. It has been held to involve three qualities, integrity, knowledge and ability: Hughes and Vale Pty Ltd v New South Wales (No. 2) (1955) 93 CLR 127 at 156 - 7.
In Sobey v Commercial and Private Agents Board (1979) 22 SASR 70, 75, Walters J stated: In my opinion what is meant by that expression is that the applicant must show not only that he is possessed of the requisite knowledge of the duties and responsibilities evolving upon him as the holder of a particular licence … but also that he is possessed of sufficient moral integrity and rectitude of character as to permit him to be safely accredited to the public … as a person to be entrusted with the sort of work which the licence entails.
As Senior Member Walker noted in Mielczarek v Commissioner of Police and Commissioner for Fair Trading [2016] NSWCATAD 34, in the context of the Act, 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.
Factors relevant to fitness and propriety include the nature, seriousness and frequency of any criminal offences; an applicant's reputation in the community; and the likelihood that the applicant will reoffend, be the subject of further complaints or commit further offences. Assessing an applicant's fitness and propriety is thus an evaluative process that gives the decision-maker wide scope for judgment and allows broad bases for rejection.

The public interest

The decision-maker is required to weigh up whether it would be contrary to the public interest for the licence to be granted. This requires consideration of both public and private interests: See discussion in Mielczarek v Commissioner of Police, NSW Police Force (No 2) [2016] NSWCATAP 255 at paragraphs [15] - [28]. In Comalco Aluminium (Bell Bay) Ltd v O'Connor (1995) 131 ALR 657, 681 Wilcox CJ and Keely J said: "The purpose of the reference to public interest is to ensure that private interests are not the only matters taken into account; to make clear that the interests of the whole community are matters for the Commissioner's consideration. The effect of the reference is to amplify the 'scope and purpose' of the legislation".
The discretion to make a decision "in the public interest" is confined only by the scope and purpose of the legislation itself: O'Sullivan v Farrar [1989] HCA 61; (1989) 168 CLR 210, 216. Applying a public interest test is a question of fact and degree: Re Queensland Electricity Commission; ex parte Electrical Trades Union of Australia (1987) 72 ALR 1, 5.
In Director of Public Prosecutions v Smith [1991] VicRp 6; [1991] 1 VR 63, 75, the court held: The public interest is a term embracing matters, among others, of standards of human conduct and of the functioning of government and government instrumentalities tacitly accepted and acknowledged to be for the good order of society and for the well-being of its members. The interest is therefore the interests of the public as distinct from the interest of an individual or individuals.
The Appeal Panel pointed out in Commissioner of Police v Toleafoa [1999] NSWADTAP 9 at paragraph [25] that "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".
It is also well settled that an applicant's personal interest in retaining a licence cannot outweigh the public interest in having full confidence in the professionalism of people involved in the relevant industry: Blisset v Commissioner of Police, New South Wales Police Service [2006] NSWADT 114 at paragraph [32].
The Appeal Panel explained in Constantin v Commissioner of Police, New South Wales Police Force (GD) [2013] NSWADTAP 16 at paragraph [33] that 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.

Hawes v Commissioner for Fair Trading

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