Jones v Department of Fair Trading

The legislation

1. Section 6(1) of the TP Act provides that a person must not carry on a body art tattooing business (whether on the person's own behalf or on behalf of another person) at any premises unless the person is authorised to do so by an operator licence. Section 9 provides: "9 Types of licences and authorisation conferred by licence (1) The following kinds of licence may be granted and held under this Act: (a) an operator licence, (b) a tattooist licence. (2) An operator licence authorises the licensee to carry on a body art tattooing business (whether on his or her own behalf or on behalf of another person) at the premises specified in the licence in accordance with this Act and the conditions of the licence. (3) A tattooist licence authorises the licensee to perform body art tattooing procedures in accordance with this Act and the conditions of the licence. (4) The authorisation conferred by a licence is subject to this Act and the regulations." Section 11 requires a licence application to be made to the Secretary under the TP Act, who is the Commissioner for Fair Trading. Section 14 provides for an application to be referred to the Commissioner of Police, the second respondent, in certain circumstances: "14 Investigations, inquiries and referrals in relation to licence applications (1) If the Secretary receives an application for a licence or for the renewal of a licence, the Secretary: (a) may carry out such investigations and inquiries in relation to the application as the Secretary considers necessary for a proper consideration of the application, and (b) is to refer any application that the Secretary considers to have been duly made (along with any supporting information) to the Commissioner for an investigation and determination as to any one or more of the following: (i) whether the applicant is a fit and proper person, (ia) whether a close associate of the applicant is a fit and proper person, (ii) whether it would be contrary to the public interest for the licence to be granted or renewed. (2) However, an application for the renewal of a licence is required to be referred to the Commissioner only if the application includes any changes relating to: (a) the close associates of the licensee, or (b) the licensed premises at which the licensee carries on a body art tattooing business."
2. The Secretary or the Commissioner may require further information of the applicant (s 15). If the application is referred to the Commissioner of Police, the Commissioner may make a security determination about the applicant: "19 Commissioner to make security determinations about applicants and licensees (1) If an application for a licence is referred to the Commissioner for investigation under section 14, the Commissioner is to inquire into and determine, and report to the Secretary on, any one or more of the following: (a) whether the applicant is a fit and proper person to be granted the licence, (a1) whether a close associate of the applicant is a fit and proper person, (b) whether it would be contrary to the public interest for the licence to be granted. (2) The Commissioner may also investigate and determine, whether at the request of the Secretary or on the Commissioner's own initiative, any one or more of the following and report to the Secretary on them: (a) whether a licensee continues to be a fit and proper person to hold his or her licence, (a1) whether a close associate of the licensee continues to be a fit and proper person, (b) whether it would be contrary to the public interest for the licensee to continue to hold his or her licence. (3) For the purpose of making a determination on a matter referred to in subsection (1) or (2), the Commissioner may have regard to any criminal intelligence report or other criminal information held in relation to the applicant or licensee (or a close associate of the applicant or licensee) that: (a) is relevant to the business or procedures proposed to be carried on or performed, or carried on or performed, under the licence, or (b) causes the Commissioner to conclude that improper conduct is likely to occur if the applicant were granted the licence or the licensee continued to hold the licence, or (c) causes the Commissioner not to have confidence that improper conduct will not occur if the applicant were granted the licence or the licensee continued to hold the licence. (4) For the purpose of making a determination on a matter referred to in subsection (1) or (2) and without limiting subsection (3), the Commissioner may consider the following: (a) information relating to spent convictions, despite anything to the contrary in the Criminal Records Act 1991, (b) information relating to criminal charges, whether or not heard, proven, dismissed, withdrawn or discharged, (c) information relating to offences, despite anything to the contrary in section 579 of the Crimes Act 1900."
3. Section 16 provides: "16 Decision of Secretary in relation to licence applications (1) The Secretary may, after considering an application for a licence or for the renewal of a licence and the determination of the Commissioner under section 19 on the application, grant or renew the licence or refuse to grant or renew the licence. (2) The Secretary may, in such circumstances as the Secretary considers appropriate, treat an application for a licence or for the renewal of a licence as having been withdrawn. (3) The Secretary must not grant or renew a licence if: (a) the Secretary is satisfied that the application for the licence or for the renewal of the licence was not duly made, or (b) the applicant is a controlled member of a declared organisation, or Note. Controlled members are prohibited from applying for licences - see section 27 of the Crimes (Criminal Organisations Control) Act 2012. (c) an adverse security determination has been made by the Commissioner about the applicant. (4) Without limiting subsection (1), the Secretary may refuse to grant or renew an operator licence if the Secretary is satisfied that: (a) a prohibition order under Part 3 of the Public Health Act 2010 in connection with the carrying out of skin penetration procedures is in force in respect of the proposed licensed premises or the licensed premises, or (b) development consent is required under the Environmental Planning and Assessment Act 1979 (or approval under Part 3A or Part 5.1 of that Act is required) to use the proposed licensed premises or the licensed premises for the purposes of carrying on the body art tattooing business and such consent or approval has been refused or is not in force. (5) The regulations may also provide mandatory or discretionary grounds for refusing the granting or renewal of a licence. (6) A licence confers no right of property and is incapable of being transferred, assigned or mortgaged, charged or otherwise encumbered. Note. A non-transferable licence is not personal property for the purposes of the Personal Property Securities Act 2009 of the Commonwealth. See the definitions of licence and personal property in section 10 of that Act. (7) (Repealed)"
4. An "adverse security determination" in relation to an applicant for a licence by the Commissioner of Police is: "a determination of the Commissioner that is reported to the Secretary under this Act on any one or more of the following: (i) that the applicant is not a fit and proper person to be granted a licence, (ii) that a close associate of the applicant is not a fit and proper person, (iii) that it would be contrary to the public interest for the applicant to be granted a licence…" (s3(1))

The Tribunal's jurisdiction

1. It is the decision of the Commissioner for Fair Trading that is under review (see s 8(2) of the Administrative Decisions Review Act 1997 ("ADR Act"). As determined in previous decisions (Austin v Commissioner of Fair Trading & Commissioner of Police [2016] NSWCATAP 179; Smith v Commissioner of Police, NSW Police Force & NSW Fair Trading [2014] NSWCATAD 184) this Tribunal may grant a licence despite the existence of an adverse security determination made by the Commissioner of Police. The Tribunal is required to take the second respondent's adverse security determination into account as a relevant consideration to which weight must be given. The Tribunal is not confined to the grounds relied upon by the Commissioner in making the adverse security determination. The Tribunal may make its decision on any other lawful, discretionary basis. This may include criminal intelligence reports or other criminal information.
2. In determining an application for review of a decision under the TP Act, the Tribunal is to decide what the correct and preferable decision is, having regard to the material then before it. For this purpose, the Tribunal may exercise all of the functions that are conferred or imposed by any relevant legislation on the administrator who made the decision (s 63(1) and (2) ADR Act.)

The issues for determination

1. The issues before the Tribunal are: 1. whether the applicant is a fit and proper person to be granted an operator licence; and 2. Whether it would not be in the public interest for him to be granted an operator licence.
2. The respondent relies upon evidence of additional conduct which was not before the first respondent when it made its decision.

Evidence for the respondents

1. The unchallenged evidence regarding the applicant's criminal history included several matters which occurred when the applicant was a juvenile, in 2006. I have not considered these to be relevant to the issues given the applicant's age. I note that the records show that the charges were dismissed with a caution.
2. The applicant's adult criminal history includes the following: 1. A conviction for destroying or damaging property for which he was fined $300 on 25 January 2011. 2. A conviction for resisting or hindering police in the execution of their duty for which he was placed on a 12 months good behaviour bond (s 9) on 3 May 2013. 3. Convictions on 16 December 2015 for stalking or intimidating under s 13(1) Crimes (Domestic and Personal Violence) Act 2007 and common assault for which he was fined $700, placed on a 12 months bond and directed to undergo counselling as recommended. 4. A conviction on 3 February 2016 for driving with a low range PCA for which he was placed on a 6 month bond and directed to complete a Traffic Offenders Program. 5. A conviction on 10 October 2017 for possession of MDMA (ecstasy) for which he was fined $750 and costs.
3. The applicant also had been fined on multiple occasions in 2016 and 2017 for traffic offences including driving with low range PCA, performing an illegal u-turn, exceeding speed limits, driving without a licence, disobeying traffic lights, and driving with a prescribed illicit drug present in his blood or urine. For the last offence he was disqualified from driving for 3 months on 10 October 2017.
4. The prosecution fact sheet for the 2013 conviction states that the applicant had attended a wedding and consumed a large amount of alcohol. The fact sheet alleged that he got into an argument with a taxi driver and struck him. When police arrived he pushed them away, struggled, resisted arrest and swore at police. The applicant was extremely intoxicated, according to police. He made a number of threats against the victim while intoxicated but later apologised for resisting arrest. The applicant submitted that the fact sheet did not give the full story but there was no evidence to contradict it.
5. The fact sheet for the 16 December 2015 conviction stated that the applicant threatened and abused staff at a pizza restaurant both over the phone and in person when he was unable to use a discount voucher at the restaurant. It states that the applicant arrived at the restaurant intoxicated and asked who answered the phone because "I want to find that guy and punch him." He then jumped the front counter and threatened staff with violence, refusing to leave. He then pushed a computer off the counter, flung soft drink over one of the staff and left.
6. On 24 February 2017, according to police, the applicant was pulled over by police while riding a motorcycle, underwent a roadside drug test and tested positive for methylamphetamine. He attempted to dispose of two capsules but was detected by police. He admitted possession of drugs.
7. The respondents also relied on evidence that the applicant operated a tattoo parlour without an operator licence and carried out tattooing work at the parlour without a licence.
8. Sergeant Gary John Keevers, Licensing Supervisor of the Lake Illawarra District Police District, gave evidence. He stated that he attended the premises of Steel City Tattoo Parlour on 4 August 2018 with another officer. He completed a COPS event recording his visit. He observed tattooing taking place during his visit and spoke to the applicant, who was present, and a Mr Benjamin De Luca. Sergeant Keevers said he asked the applicant how the parlour was operating without a licence and that the applicant replied "Ben has one" referring to Mr De Luca. Mr De Luca showed Sergeant Keevers his licence and said that he had asked to have his licence transferred to these premises.
9. On 8 August 2018 Sergeant Keevers had a conversation with the applicant about a "grand opening event" he had planned for 11 August 2018 on adjacent land. He gave evidence that he warned the applicant that the event required development consent, to which the applicant said that this would take a long time. Sergeant Keevers said that if it went ahead he would have to shut it down. To his knowledge the event did not take place as planned.
10. Sergeant Keevers carried out an inspection of the parlour on 31 August 2018 at which he noted the business was compliant with public health requirements.
11. The respondent adduced evidence that the business name Steel City Tattoo was registered on 19 October 2017 by "Peter Jones" as a sole trader.
12. The respondent also adduced evidence to show that the applicant had posted pictures on Instagram during 2018 showing tattoos by him.
13. While on 27 July 2018 Mr De Luca changed the address for his operator licence to the address of Steel City Tattoos, the business of Steel City Tattoos was still registered to the applicant. A Licence Summary report dated 2 November 2018, however, shows that Mr De Luca's business attached to his licence was "Rose and Dagger". There was no evidence that Mr De Luca was either an owner, close associate or employee of Steel City Tattoo and the applicant holds the only operator licence associated with that business.

Evidence for the applicant

1. The applicant acknowledged that he had made some stupid decisions in the past but said they were mainly the result of excessive alcohol consumption.
2. He said that the 2012 incident which resulted in a conviction for resisting arrest occurred because he drank too much at an open bar at a wedding reception. He could not afterwards recall much of what happened.
3. He said that he became depressed when he was 18 years of age because he was told he could no longer play football as a result of a football injury.
4. His life improved when he met his current partner about six years ago and had a daughter in 2015. He said that he rarely drank alcohol now and had not consumed it to excess since the incident at the pizza restaurant in 2015. He said that this incident occurred after his partner had left him, taking their daughter. His neighbour brought two bottles of rum to console him and after drinking most of the rum the incident occurred. He accepted that he was at fault although he could hardly recall the incident and had paid restitution to the shop owners. He was embarrassed about the event. He has been attending a drug and alcohol counselling service since April 2018 and has found it helpful. A letter from his counsellor at the Illawarra Drug and Alcohol Service was in evidence which stated that he had been attending counselling regularly since April 2018 and had applied the strategies he learned to his life.
5. He stated that the incident where drugs were found on him in 2017 occurred after he had visited some friends in Melbourne and his friend had given him a tablet which he said was speed and two tablets of MDMA. He did not intend to use the MDMA and believed the tablet he had taken was speed, not methylamphetamine or "ice". He stated he did not usually take drugs and does not associate with people who sell them.
6. With regard to the operation of his tattooing business, the applicant's evidence was that he registered the business name Steel City Tattoo and applied for an operator licence. He said that at that time he was told by a number of tattooists that he could operate once he had applied. He said that he read the Fact Sheet and other documents relating to the licence and could not see anything that contradicted what he had been told. As a result he did operate the business while he was waiting for his licence application to be approved.
7. On his licence application in answer to the question 'Have you read the Fact Sheet Applying for an Operator Licence?" he answered "yes." Under cross-examination he said that he read material on the Fair Trading website, but thought he was covered by the transitional period because of what his previous employer had told him. This was a period following the commencement of the TP Act where if an application had been made prior to the commencement of Part 2 of the Act, the requirement not to operate without a licence did not apply. As Part 2 commenced on 1 October 2013, this did not apply to the applicant. He now realised he had been given bad advice and he should not have operated the business in the intervening period.
8. He sought to excuse his lack of compliance on the basis that he found the council and licensing processes very complicated and at the time his partner was pregnant.
9. The applicant admitted that he operated the tattoo parlour without a licence between January and July 2018. He initially said that he had stopped tattooing after he became aware of the refusal on 31 July 2018 but under cross examination admitted he had touched up a tattoo in August 2018. He believed that he could operate for 7 days following the refusal. On being showed the letter of refusal he agreed that he could not find anything to that effect in the letter. He said many of the photographs in his Instagram account were old photos from the back catalogue which he used as advertising. He also admitted allowing a tattooist named Sonya to tattoo on two occasions in the shop although he knew she did not have a licence.
10. He said that he currently had an "administration role" at the tattoo parlour involving taking bookings, paying bills and ordering supplies. He said the money from the shop just covered expenses.
11. About a week before he received the refusal, he contacted Fair Trading about transferring Mr De Luca's licence to the business. He said he wanted them both to be operators for the business and he stated that following the refusal he ran the business using Mr De Luca's licence. However he said that Steel City Tattoos was his business. He received 30% of the income.
12. He said he had never had any involvement with outlaw motorcycle gangs and he would happily accept conditions on his operator licence.
13. The applicant tendered a number of character references. The references are all favourable. Some come from acquaintances and friends, others are business owners and indicate that Mr Jones is well liked and his business is welcomed by other business owners and the Business Chamber. While they do not all refer to his criminal history, those that do indicate a belief that he has matured recently, become more responsible and is supportive of his family. He has also demonstrated a passion for tattooing. The applicant is given credit by several referees for supporting the revitalisation of Port Kembla through his business.

Whether the applicant is a fit and proper person to be granted an operator licence

1. The respondents submitted that the applicant's criminal conduct indicates a marked lack of fitness and propriety as it involves conduct which disregards the safety of others and demonstrates a disregard for the law. While alcohol may have contributed to his behaviour it did not excuse it. There was no evidence of alcohol being involved in the 2017 conviction involving drug possession. While he said that he was given the drugs by a friend, the respondents submitted that this showed he associates with persons who disregard the law. His convictions in combination with his driving record show a recklessness and willingness to disobey the law.
2. In addition the respondents submitted that the applicant had conceded that he operated a tattoo parlour without a licence in reckless disregard for what the law required; tattooed a person at a time when he knew that his licence had been refused; allowed a person to tattoo in his business without a licence and continued to be involved in the operation of the business.
3. The applicant submitted that he had no intention to break the law by operating his business and had freely admitted his breaches to the Tribunal in order not to mislead. He pointed to his attendance at counselling before his licence was refused, as evidence of his intention to reform. He did not consort with criminals and he is viewed favourably by his associates and the business community in Port Kembla. He was not extensively educated and had received poor advice.
4. Whether a person is fit and proper has been said to relate to honesty, knowledge and ability, and is to be judged by the nature of the activities that the person seeks to undertake (Hughes and Vale Pty Ltd v New South Wales (No.2) [1955] HCA 28; AJO v Director General, Department of Transport [2012] NSWADT 101 at [26-28] and [33] ). In Australian Broadcasting Tribunal v Bond [1990] HCA 33 it was explained by Chief Justice Mason at [63]: "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."
5. In the same case, Toohey and Gaudron JJ said at [36]: "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."
6. The interpretation of "fit and proper" in the current context will be influenced by the general purpose of the legislation which broadly, is to rid the industry of any criminal or otherwise undesirable element and improper conduct (Austin at [23-25]) and is a matter to be determined objectively on the evidence. It can be indicated by "criminal convictions, criminal associations, habitual recidivism, formal or informal links with OMCGs, failure to implement proper tattooing practices and general disregard for the law" (McDonald v Commissioner for Fair Trading [2017] NSWCATAD 330 at [86]).
7. During the second reading speech and debates on the introduction of the Bill to Parliament, the Minister for Fair Trading noted that the Act was introduced in response to gang crime in NSW and that it aimed to break the control that outlaw motorcycle gangs had over the tattoo industry. The Minister also referred to the fit and proper person test and the public interest test in the Bill and stated: "The public interest test is not intended to be focused on issues particular to the art of tattooing or to concern itself with the competence of those performing the service. It is designed to address the criminal matters currently surrounding the industry such as extortion, money laundering, personal violence, firearms crime, illicit drug offences, arson and so on. Applicants who are part of this criminal world can and should be refused a licence on public interest grounds. The fit and proper person test will often cover the same kinds of criminal activities as those just mentioned. However, there may also be cases in which an applicant is not connected with organised crime gangs, such as bikies, but is still deemed to be not fit and proper. For example, an applicant may have a long history of receiving stolen goods or involvement in fraud offences. In respect of both tests, the commissioner may have regard to the person's criminal history and any criminal intelligence concerning them." (p11707 Leg Assembly 22 May 2012)

Consideration

1. It is clear that where a person is not associated with outlaw motorcycle gangs he or she may still not be fit and proper to be granted a licence. Failure to implement proper tattooing practices and a disregard for the law may also result in such a finding.
2. The criminal record evidence was largely unchallenged by the applicant. I am satisfied that some of the applicant's criminal history results from his consumption of alcohol, and he has taken steps to address that problem, although he has been doing so for less than a year. The more recent possession of illicit drugs and riding with an unlawful drug in his system cannot be attributed to alcohol, however. This offence occurred at a time when he claimed he was attempting to turn his life around and shows a certain recklessness and lack of regard for the law, even if the applicant's version of events is believed. This is also reflected in his driving record, which he did not dispute.
3. In addition, the applicant's fitness and propriety to operate a tattoo parlour is put in question by his disregard for the licensing regime which led him to commit a number of breaches. He also did not challenge the evidence of Sergeant Keever that he had knowingly planned to hold a public event without a permit until advised of the legal consequences.
4. While these incidents are not at the highest level of seriousness, in my view they indicate that he lacks the necessary fitness and propriety to operate a tattoo parlour. While the character references indicate that he is well intentioned and wishes to operate a successful business, and he admitted his breaches, these factors alone are not sufficient in my view to counteract the recent evidence of his general disregard for the law and for the tattoo licensing regime, particularly where he has applied for an operator licence and would therefore be managing the business and supervising other staff.
5. Consequently I find that the applicant is not at present a fit and proper person to be granted an operator licence under the TP Act.

Whether it would be contrary to the public interest to grant the applicant a licence

1. In Smith, the Tribunal set out a summary of the principles that govern the concept of "public interest" (at [42]- [47]). "The Courts and the Tribunal have held that the concept of the 'public interest' is designed to give the broader interests of the community priority over private interests. In Comalco Aluminium (Bell Bay) Ltd v O'Connor and Others (1995) 131 ALR 657 at 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.' … 45. In Commissioner of Police v Toleafoa [1999] NSWADTAP 9 at paragraph [25] the Tribunal's Appeal Panel said: '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.' 46. The Tribunal has also found that an Applicant's personal interest in retaining his licence cannot outweigh the public interest in having full confidence in the professionalism of people involved in the security industry: Blissett v Commissioner of Police, New South Wales Police; Webb Protection Australia Ply Ltd v Commissioner of Police, New South Wales Police [2006] NSWADT 114 at paragraph [32]. 47. In Constantin v Commissioner of Police, NSW Police Force (GD) [2013] NSWADTAP 16 at paragraph [33] the Appeal Panel held: 'The 'public interest' allows, we consider, 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.' "
2. The Tribunal concluded that the public interest was protected by restricting access so as to diminish the likelihood of criminal activity within the industry (at [49]).
3. The applicant submitted that it was not in the public interest for his business to close down, he wanted to contribute to the revitalisation of Port Kembla, he was viewed favourably by the business community and he had made a significant investment in the business.
4. The respondents submitted that granting a licence to the applicant was likely to erode public confidence in the licensing system, and would be antithetical to the goal of the TP Act to eradicate criminal activity from tattoo parlours. The character references should be given little weight.

Consideration

1. While not all the character references show an awareness of the applicant's criminal history, some do and most of them point to several matters which favour the public interest in the applicant operating a tattoo parlour. His business is welcomed by the local business community and is expected to contribute to the revitalisation of the area.
2. The public interest would not be served, however, by a person with his disregard for the licensing regime currently being granted an operator's licence in an industry which is susceptible to criminal influence. It would create a risk to public confidence in the licensing regime. While I accept that he is now aware of the consequences of his conduct, something more is required from him to demonstrate that the business would be operated properly and in accordance with the law so that the public interest would not be harmed by his control of a business of this nature.
3. It may be that after some time has passed he will be able to demonstrate, by taking action to distance himself from his prior conduct, that the risks of improper conduct have diminished to the extent that they no longer impact on the public interest.

Conclusion

1. While the applicant indicated he was willing to be granted a licence with conditions to address any concerns, I am not satisfied that the imposition of conditions could address the factors identified in this case, and none were put forward for the Tribunal to consider. Consequently I have determined that the decision of the first respondent should be affirmed.

Orders 1. The decision under review is affirmed. 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: 10 March 2023