Avnell v Commissioner of Fair Trading [2018] NSWCATAD 58Austin v Commissioner for Fair Trading and Commissioner of Police [2016] NSWCATAP 179Butler v Commissioner for Fair Trading [2017] NSWCATAD 138Comalco Aluminium (Bell Bay) Ltd v O'Connor (1995) 131 ALR 657Commissioner of Police v Toleafoa [1999] NSWADTAP 9Constantin v Commissioner of Police, New South Wales Police Force [2013] NSWADTAP 16
Dessmann v Commissioner for Fair Trading [2015] NSWCATAD 255
Director-General, Transport New South Wales v AIC (GD) [2011] NSWADTAP 65
Director of Public Prosecutions v Smith [1991] Vic Rep 6, (1991) 1 VR 63
Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60
Health Care Complaints Commission v Do [2014] NSWCA 307
Hughes and Vale Pty Ltd v New South Wales (No. 2) (1955) 93 CLR 127
Lindroos v Commissioner of Fair Trading [2016] NSWCATAD 175
Moujalli v Roads and Maritime Services [2017] NSWCATAD 141
Naziry v Director-General, Department of Transport [2004] NSWADT 40
O'Sullivan v Farrer [1989] HCA 61, (1989) 168 CLR 210
Project Blue Sky Inc. v Australian Broadcasting Authority [1998] HCA 28, (1998) 194 CLR 355
Smith v Commissioner of Police [2014] NSWCATAD 184
Stiles v Commissioner for Fair Trading [2017] NSWCATAP 44
Judgment (14 paragraphs)
[1]
Solicitors:
J Larter (Self Represented)(Applicant)
Crown Solicitor's Office (respondents).
File Number(s): 2019/00002437
Publication restriction: (i) Pursuant to s 64(1)(d) of the CAT Act, the contents of confidential exhibits CR 4 and CR 5 and all of the paragraphs of these reasons marked "[Not for publication]", and the transcripts that are records of the confidential hearing are not to be disclosed to the applicant;(ii) Pursuant to s 64(1)(c) of the CAT Act, the contents of confidential exhibits CR 4 and CR 5 and all of the paragraphs of these reasons marked "[Not for publication]", and the transcripts are records of the confidential hearing are not to be published.
[2]
Reasons for decision
The applicant Mr James E W Larter on 3 January 2019 applied to this tribunal for review of a decision made by a delegate of the Commissioner for Fair Trading on 7 December 2018 to refuse his application for a tattooist licence under the Tattoo Parlours Act 2012 (TP Act) pursuant to s 16(3)(c) of that Act. Mr Larter had applied for the licence on 27 July 2018.
At a directions hearing held on 12 February 2019, Pearson PM directed that the Commissioner of Police be joined as a respondent, as is required by s 27(3)(a) of the TP Act.
The delegate's reasons for refusing the application noted that the Commissioner of Police had reported under s 19(1) of the TP Act that the applicant is not a fit and proper person to be granted the licence because of his criminal history and it would be contrary to the public interest for a licence to be granted to him, again because of his criminal history.
The grounds on which the Commissioner of Police had reached that conclusion were:
that the applicant was convicted of an offence against s 10(1) of the Drug Misuse and Trafficking Act 1985 (Drug Act), namely possession of a prohibited drug, on 26 July 2016 on two counts and was placed on a good behaviour bond for 12 months;
that he was convicted of an offence against s 10(1) of the Drug Act, namely possession of a prohibited drug, on 17 August 2015 and was fined $800, and on 29 July 2014 (and was fined $200) and on 20 February 2014 (and was fined $250);
that he was disqualified from holding a licence, permit, or other authority under the Security Industry Act 1997, the Firearms Act 1996 and a number of other regulatory statutes.
[3]
Applicable legislation
The legislative scheme under the TP Act is discussed in more detail below. At this point it is necessary to note only that s 7(1) of the TP Act creates an offence of an individual performing any body art tattooing procedure for fee or reward unless authorized to do so by a tattooist licence. Section 9(1)(b) provides for the granting of tattooist operator licences and tattooist licences to persons, which authorize the licensee to "perform body art tattooing procedures in accordance with this Act and the conditions of the licence": s 9(3). The provisions in part 2 of the Act requiring the holding of licences came into operation on 1 October 2013.
When the first respondent's chief executive receives an application for a licence, he or she is required to refer it to the Commissioner of Police for an investigation and determination as to whether the applicant is a fit and proper person to be granted the licence, or whether it would be contrary to the public interest for the licence to be granted, or both: s 14(b)(i).
Section 16(1) confers on the chief executive a general power to deal with licence applications and to grant or refuse a licence. That general discretion is limited by s 16(3), which provides that "The Chief Executive must not grant a licence if…(c) an adverse security determination has been made by the Commissioner about the applicant".
Under s 27(1)(a) of the TP Act, a person whose application for a licence has been refused may apply to this tribunal for administrative review under the Administrative Decisions Review Act 1997 (ADR Act). Section 27(3) deals with the nature of the tribunal's function. It provides as follows:
(3) If an application for a licence or for the renewal of a licence was refused or a licence was suspended or cancelled by the Secretary on the ground of an adverse security determination made by the Commissioner about the applicant for the administrative review or a close associate of the applicant:
(a) the Commissioner (as well as the Secretary) is to be a party to any proceedings in the Civil and Administrative Tribunal for an administrative review of the decision of the Secretary, and
(b) the Tribunal is to be provided with a copy of the report of the Commissioner's determination, and
(c) the Tribunal is not prevented from determining whether the Secretary made the correct and preferable decision regarding the application or the licence concerned merely because of the determination of the Commissioner.
[4]
The evidence
The respondents called no oral evidence but relied on the documentary material, including the s 58 documents (exhibit R1). They also tendered certain confidential documentary evidence, for which a closed hearing was held pursuant to s 64 of the Civil and Administrative Tribunal Act 2013 (CAT Act).
At the hearing the applicant gave oral evidence, in which he adopted his statement dated 22 March 2019 (part exhibit A1) in which he began by acknowledging that he does have a history of illicit drug misuse in the past and has been convicted for it but wished to give an explanation for his behaviour and an insight into why he feels he is a fit and proper person to work in a tattoo parlour and not be detrimental in any way to public safety and the public interest.
He used to have an issue with drugs, and obviously addictions, at a young age, which involved an inability to stop and make the right choices when he should have. That, however, was related to the fact that he had some "issues" growing up that led him down that path. He argued that some people do grow out of that phase in life, as he now had, and the time between his last conviction and the present had been longer than the time between his first and last drug convictions.
During that time he had rehabilitated himself and reformed into a functioning and fit member of society and of the public. He understood why the Commissioner had said it had not been long enough for him to be comfortable with granting him the licence, but he asked that it be taken into account that it was younger and less intelligent period of his life that was now almost 3 years in the past. He was 20 years old and barely out of his teens when he was last convicted and he will be aged 24 in September this year, with a year and a half of effort put into a career path that is the only one he wants to pursue.
He understands that the convictions were repetitive and seemed to show a lack of respect for the law and understanding of the gravity of the situation, but it is possible to overcome those habits and downfalls and become a better, more mature person. He had worked in a tattoo shop for over a year and a half and in that time had learned virtually how to run a tattoo parlour (apart from any financial obligations). He had been taught the safety standards that need to be upheld at all costs and had learned the trade of tattooing, from cleaning, handling money, customers and bookings to helping with design, setting the artist's area up to safety standards and everything in between.
[5]
Confidential hearing
At the completion of the open evidence and submissions, a confidential hearing was held pursuant to s 49(2) of the CAT Act, with confidentiality orders being made under s 64(1)(b), (c) and (d) of that Act.
[NOT FOR PUBLICATION]
[NOT FOR PUBLICATION]
[NOT FOR PUBLICATION]
[NOT FOR PUBLICATION]
[NOT FOR PUBLICATION]
[6]
Applicant's submissions
The applicant made oral submissions in which he contended that enough time had elapsed since his convictions. He had been using drugs while in his teens, the last occasion being when he was 20, and he was now 23, turning 24 in September. The evidence of rehabilitation was the contrast in his record between his earlier troubled period and recent years. He had passed many searches and tests since then.
He had no record of violence, stealing or drug dealing. His repeated drug violations had led to fines of about $200, and he had then been sent on his way. That approach had not helped him as he had not been shown the real consequences of his conduct. People needed rehabilitation in order to progress, but his had consisted of working for a year in a tattoo parlour. He had also taken other steps, including removing certain persons from his life. He had seen a court-appointed therapist before his last court case, but as he thought the counselling did not help much, he had taken his own steps towards rehabilitation.
He loved tattooing and had been encouraged by his father and grandfather and had passed all the drug tests he had been required to undergo at the parlour where he worked. He would like to work at another such establishment and thought that a career opportunity existed there, which was important for him as he had left school at year 11 and had not obtained the HSC. His criminal record also did not help. He had completed a drink driver course but at his last court hearing, on 26 July 2016, he had lacked confidence in his ability to complete a rehabilitation course at that time and had asked the judge to take his license instead.
[7]
Respondent's submissions
The respondents on 23 April 2019 filed written submissions in which, after correctly surveying the legislative scheme and outlining the applicable legal principles, they submitted that the adverse determination was primarily based on the applicant's criminal history, particularly his "repeat convictions for possession of prohibited drug related offences". Those offences demonstrated a repeated failure to reform, despite sanctions by the courts, and a disregard for the law.
The applicant's criminal history was lengthy and recent. The tribunal should accept that there is a real risk that his past behaviour will be repeated in the future, given the frequency of his offending from 2013 to 2016, and the fact that he appears to have used cannabis regularly during that period, including before driving. The tribunal had not been given satisfactory evidence to demonstrate that the applicant had ceased using cannabis since his last conviction in July 2016. It appeared that on 5 January 2018, the applicant admitted to police that he had used cannabis "within the last couple of months".
It was also settled law that a finding of reformation could not be made by reference merely to the passage of time without renewed misconduct. Accordingly, in order for the tribunal to be satisfied that the applicant had rehabilitated, there should be some evidence of rehabilitation besides the mere passage of time. He had provided no specifics of the steps he had taken to rehabilitate and the date and circumstances on which his drug use had ceased. For example, he had not provided any information about any drug rehabilitation programs in which he had participated, nor of any medical professionals whose help he might have sought.
The applicant had provided a number of purported character references from a range of family members, friends and acquaintances. They were unpersuasive, as in the main they made little or no reference to the applicant's criminal history, and again provided no specifics of the circumstances of his asserted rehabilitation.
The cases of Smith, Dessmann and Lindroos v Commissioner for Fair Trading [2016] NSWCATAD 175 provided helpful examples of how the tribunal had dealt with offences of this kind in the context of tattooist licence applications. The applicant in this case had not provided evidence of the kind that the tribunal found persuasive in Avnell v Commissioner for Fair Trading [2018] NSWCATAD 58.
[8]
Consideration
The tribunal has jurisdiction to hear and determine the present application by reason of s 27(1)(a) of the TP Act. Under s 63 of the Administrative Decisions Review Act 1997 (ADR Act), the tribunal's role is to determine whether, having regard to the underlying facts in the matter and the applicable law, the first respondent's decision is the correct and preferable one. The tribunal is to review the merits of the original decision and consider the evidence available at that time, together with any other or later material, so as to affirm the original decision, vary it or set it aside: Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60, 77.
[9]
The legislative scheme and the tribunal's approach
The applicant has applied for review under s 27(1)(a) of the TP Act of a decision taken by the Director-General of Fair Trading under s 16(3) of the TP Act to refuse to grant him a tattooist licence. The Commissioner of Police made an adverse security determination (ASD) (exhibit R2) under s 19(1) of the Act to the effect that the applicant was not a fit and proper person to be granted the licence and that it was not in the public interest for the licence to be granted. Pursuant to s 27(3), the Commissioner is a party to these proceedings.
The TP Act introduced licensing requirements for operators of tattoo parlours and tattooists that came into operation on 1 October 2013. Two kinds of licence may be granted: an operator licence and a tattooist licence. The licensing regime imposes a test of whether the person is "fit and proper" and whether it would be "contrary to the public interest" to grant the licence. It is an offence to perform body art tattooing procedures without a tattooist licence: s 7.
A person may apply to the director-general for a tattooist licence pursuant to s 11. Section 13 provides for the fingerprinting and palm printing of applicants. On receiving an application for a licence, the director-general is required by s 14(b) to refer 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.
Section 19 requires the Commissioner to inquire into and determine, and report to the director-general on, those matters. For the purposes of making his determination, the Commissioner may have regard to criminal intelligence reports or other criminal information held in relation to an applicant: s 19(3). The director-general has a discretion whether or not to grant a licence in some circumstances, but must not grant a licence if the Commissioner makes an adverse security determination in relation to the applicant: s 16(3)(c). Once granted, a licence remains in force for three years; it may not be renewed, but a new application can be made: s 17.
Pursuant to s 27(1)(a), a person may apply to this tribunal for review of a refusal or failure by the director-general to grant a licence. The Act does not expressly confer jurisdiction on the tribunal to review any report or determination made by the Commissioner of Police but does so implicitly, as s 27(3)(c) provides that "the Tribunal is not prevented from determining whether the director-general made the correct and preferable decision regarding the application of the licence concerned merely because of the determination of the Commissioner": Smith, [22]. Nevertheless, the tribunal is required to take the ASD into account as an essential, legally relevant, consideration to which weight must be given: id., [24].
[10]
Whether a fit and proper person
The meaning of the phrase "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 and Commissioner of Police [2016] NSWCATAP 179, following 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.
The Appeal Panel has pointed out that public interest considerations play a role in the assessment of fitness and propriety: Director-General, Transport New South Wales v AIC (GD) [2011] NSWADTAP 65, [37].
While there is a definite focus in the legislation and its administration on the involvement of OMCGs in the industry, that is not to the exclusion of other concerns about criminality: "[T]he broader intention [of the TP Act] is to rid the industry of any criminal or otherwise undesirable element and the avoidance of improper conduct": Smith, [2014] NSWCATAD 184, [20]. The point was specifically made in Wright v Commissioner for Fair Trading [2017] NSWCATAD 98, [118]: "The Applicant had stressed that he had not been involved in gang crime. Gang crime is not the only consideration of the Act, however. The Tattoo Parlours Act 2012 is directed at keeping gang crime out of the tattoo parlour industry and also at eliminating general criminal activity, including violence. Unfortunately, violence is a clear feature of the Applicant's background".
[11]
References
The applicant also tendered a number of references (part exhibit A1). When I asked him why they were all unsigned, he replied that there was no particular reason. While that may seem odd, it may be that in these days of email and texting that many people, especially young people, are not in the habit of always manually signing their written communications. On the face of it, there appears no reason to doubt their authenticity; there is, for example, no suspicious similarity of content or style.
The first reference, dated 18 March 2019, is from Renee Dallison, the applicant's mother. She said he had made some bad choices in his teens and young adult years and was not proud of those choices in any way. His behaviour problems started when she and his father separated when he was 14 years old. He did not cope well with the separation and that was when he began to act out. Mrs Dallison feels that was when the applicant turned to marijuana to cope with his depression and anxiety, added to which he started to mix with the wrong crowd. Drugs were his only problem and it was only ever himself he was hurting. He had been to his doctor over the years to seek help with his problems, but nothing seemed to work for him, which caused him frustration and made it easier to return to what he felt worked for him.
After he left school, he did not know what he wanted to do. He worked at a few manual jobs that were not where he wanted to spend the rest of his working career, and which made him extremely unhappy. He had no direction, and that in turn made him more depressed. The last time James went to court, she felt that something had actually clicked when he said he was too old to keep doing this childish stupid stuff and was going to straighten up and get a portfolio together and start applying for a tattoo apprenticeship, as that was what he loved, both tattooing and art. He never had any confidence and did not think he was good enough, but said he was going to try and see what happened. He moved out of the house he was sharing with friends and came home to put all his spare time into preparing his portfolio.
From then on he never looked back, he stopped doing drugs and was excited for his future for the first time ever. Once he was ready, he applied for a tattoo apprenticeship and when he obtained it she had never seen him happier. Working in the tattoo shop was the best thing for him. It kept him focused and he loved what he was doing. He knew he had to change his ways, otherwise he could not work in that field. The decision to refuse his tattoo licence depicts James as a stupid adolescent, not the man he is today.
[12]
The public interest
The phrase "public interest" is not defined in the TP Act or the regulations. In O'Sullivan v Farrer [1989] HCA 61; (1989) 168 CLR 210, [13], the High Court held that the "public interest" imported a discretionary value judgment to be made by reference to undefined factual matters, confined only in so far as the subject matter and the scope and purpose of the legislation might require. In Commissioner of Police v Toleafoa [1999] NSWADTAP 9, [25], the Appeal Panel described the public interest ground in the relevant Act in the following terms:
[A]n inherently broad concept giving the [Commissioner] the ability to have regard to a wide variety of factors in choosing whether to exercise a discretion adversely to an individual. As the possibility of refusing an application on the ground of character is dealt with elsewhere in the same section, it is reasonable to infer that the Parliament intended that the public interest discretion operate in areas to which the character ground was not relevant or, possibly, in circumstances where an objection on character grounds would not be sufficient in its own right to warrant refusal.
The concept does include standards acknowledged to be for "the good order of society and for the well-being of its members": Director of Public Prosecutions v Smith [1991] Vic Rep 6; (1991) 1 VR 63. In Comalco Aluminium (Bell Bay) Ltd v O'Connor (1995) 131 ALR 657, 681, the High Court 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 issue of public interest allows for matters going beyond the applicant's character to be taken into account. They include public protection, public safety and public confidence in the administration of the licensing system: Constantin v Commissioner of Police, New South Wales Police Force [2013] NSWADTAP 16, [33].
Legislation such as the TP Act serves the public interest in ways that go beyond guarding against misconduct by an individual licensee. Licence refusals and similar orders serve the public interest by establishing a regulatory structure for an industry that not only protects the public from harm, but also helps to preserve public confidence in that industry and its members by signalling that those whose activities or facilities do not meet the required standards will not be permitted to operate in the industry: Health Care Complaints Commission v Do [2014] NSWCA 307, [34] - [39]; Moujalli v Roads and Maritime Services [2017] NSWCATAD 141, [52] - [53].
[13]
Conclusion
I therefore find that the applicant is a fit and proper person to hold a tattooist licence and that it would not be contrary to the public interest for such a licence to be granted to him. The licence issued to him should, however, be subject to a condition requiring total abstinence from all illicit drugs.
[14]
Orders
1. Decision under review set aside.
2. A tattooist licence is to be issued to the applicant.
3. The licence referred to in (2) is to be subject to a condition requiring total abstinence from all or any prohibited drugs.
4. Pursuant to s 64(1)(d) of the CAT Act, the contents of confidential exhibits CR 4 and CR 5 and of all paragraphs of these reasons marked "[Not for publication]", and the transcripts and records of the confidential hearing are not to be disclosed to the applicant.
5. Pursuant to s 64(1)(c) of the CAT Act, the contents of confidential exhibits CR 4 and CR 5 and of all paragraphs of these reasons marked "[Not for publication]", and the transcripts and records of the confidential hearing are not to be published.
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: 13 March 2023
Parties
Applicant/Plaintiff:
Larter
Respondent/Defendant:
Commissioner for Fair Trading; Commissioner of Police, New South Wales Police Force
The issue in the present application is thus whether Mr Larter is a fit and proper person to hold a tattooist licence, or whether it would be contrary to the public interest for him to hold such a licence, or both.
In that time he had honed his drawing skills and had discovered a direction in life. He hoped that this proved that he could be trusted at least to some degree in that environment and he wants to continue to do so in the future.
In oral evidence at the hearing the applicant adopted his statement and in cross-examination accepted his criminal history as stated in the documentary evidence as correct. He said he had gone through a troubled period at high school, including vandalism, and a graffiti incident when he was 14. His first serious encounter with the police occurred on 14 March 2013 when he was 17 (exhibit R3) when he was required to undertake a roadside random breath test. The analysis returned a result of 0.046 g, but as he held only a P1 provisional licence, he was in breach of the more stringent alcohol limit applicable to that category.
He had consumed three "long neck" bottles of beer on that occasion but said he had waited for a period to ensure that his blood-alcohol level declined, as he had no intention of driving under the influence. As a result of that charge, he underwent a driver safety program focusing on drink-driving. It was pointed out to him, however, that he had subsequently accumulated further PCA and drug contraventions, including on 28 April 2013 (exhibit R3, p 73), when police interviewed him and some companions sitting in a motor vehicle at Harrington Park Plaza. He had "red glassy eyes" and admitted having smoked cannabis earlier that night.
An intelligence report of the same incident (exhibit R2, pp 65 -66, I 52830725) notes that on being searched he was found to have two bags of cannabis concealed in his underwear. It was in small resealable bags with black and yellow skulls on them He refused to tell police where he had obtained the drugs. He was subsequently charged with possessing a prohibited drug.
In cross-examination he said he had refused to say where he had obtained the drug because he had been pulled over with another group and did not wish to report them. He had obtained the marijuana from friends, not from his regular dealer. He had not obtained it to sell, and had never sold or distributed drugs.
He was then referred to an incident on 5 February 2015 (exhibit R3, pp 263 - 264, I 57131956) in which he was seen to be seated in the driver seat of a vehicle at ** Hambledon Ct, Harrington Park, alongside a passenger who had collected a large amount of cash. He said he did not recall going to the Harrington Park address or being with a person who received a large amount of cash.
As regards intelligence report I 57871749 (exhibit R2, pp 59-60), which stated that police searching the vehicle found $280 in the side pocket of the driver's door, he said he had been carrying cash because he had lost his ATM card. He had never sold drugs, though.
He admitted using other drugs, as was shown by event report E 112948201 (exhibit R3, pp 301 - 302), which recorded that police who searched him on 25 July 2015 at Camden had found in his wallet a small clear resealable bag containing a white powder. He had told police that "It's cocaine" and that "I intend to have it". He said he had never been an habitual cocaine user, however.
He was then asked about intelligence report I 59349651 (exhibit R2, p 55) that on 25 July 2015 (thus apparently on the same date as the last-mentioned incident) police who searched him found a small amount of "ice" (apparently methylamphetamine). When they asked him where he had obtained the ice, he had replied "I swap it for cannabis". In cross-examination he said he did not recall the incident and it had never happened. He had never touched methylamphetamine, nor had he ever swapped other drugs for marijuana.
[NOT FOR PUBLICATION]
At a traffic stop at Narellan on 19 August 2015 (event E 59368467, exhibit R3, pp 307 - 307), the applicant tested negative for alcohol but positive for cannabis. Having observed a used "bong" on the back floor, police conducted a search and located a bag containing a small amount of cannabis and two white capsules. The applicant admitted possessing cannabis and that he had recently smoked it, that the substance in the bag was cannabis and that he intended to smoke it later. He also admitted possession of the white capsules and explained that they contained MDMA (apparently known as "ecstasy"). He said he had found three such capsules and had taken one previously, which was how he knew what it contained, as he had used MDMA before. Actually, he said at the hearing, he had purchased the capsules from close friends.
On 31 March 2016 at another traffic stop he tested negative for alcohol and positive for cannabis, telling police that he had "Last smoked some this arvo" (event E 60844257, exhibit R3, pp 333 - 334). He thus admitted that he had been driving under the influence of the drug.
Event report E 66488203 (exhibit R3, pp 347 - 349) related that on 5 January 2018 a police patrol pulled over his vehicle and officers noted that he appeared to be nervous when questioned by police and had red watery eyes. When questioned about drug use, he admitted that he had smoked cannabis within the last couple of months. Searching his vehicle police found a bag containing an assortment of aerosol paint cans, which he explained as being "for a work project", an explanation that the police accepted. At the hearing he said he did not recall the incident and that the report was not accurate at that time. It had not been only a couple of months since he last used the drug as he had not been smoking in January 2018. He thought the police might have mis-heard what he said.
The applicant was then asked about a report that on 8 March 2018 a police patrol had noticed that his vehicle had quickly turned into a side street as they approached. When they pulled it over for the purposes of a random breath test, they noticed that the applicant's eyes were "glazed over", but he said that he had stopped taking drugs over a year previously. A search of the vehicle found nothing untoward (event E 67583149, exhibit R3, pp 362 - 363). At the hearing he denied that his eyes had been "glazed" because of marijuana, and said he had stopped smoking it a year previously, as he had told the police.
Asked about his statement dated 22 March 2019, he agreed that he had started using alcohol and marijuana at a young age and that to remain free of illegal drugs would be a lifetime commitment. He said he had begun using cannabis before his first conviction, but had stopped after his last conviction. His letter of 22 March did not give the dates when he started and ceased, he said, because he did not recall the dates. Further, when preparing his statement he had not been sure about what evidence would be required and had assumed that any gaps could be filled by oral evidence at the hearing.
His mother's letter of 18 March 2019, referring to his drug violations, had said that he was "only hurting himself" but, it was put to him, he had created risks by driving under the influence of drugs. He agreed. Asked whether he had told his mother about supplying drugs or about the $280 cash, he replied that the money had not been obtained through dealing. He agreed that obtaining prohibited drugs involved organized crime and that he had obtained drugs from criminals.
The applicant also provided six character references (part exhibit A1), the contents of which will be outlined below.
Granting a licence to the applicant would be contrary to the public interest as there is a public interest in protecting the community from the effects of serious crime (including prohibited drug-related offences) and the fear of crime, and that insufficient time had elapsed to be confident that the applicant had reformed his criminal behaviour. The evidence on this issue consisted of the applicant's criminal history, his use of drugs before driving, indicating a lack of concern for public safety, the concerns that he might have been involved in the distribution and supply of drugs and the lack of satisfactory evidence of his rehabilitation. The respondent submitted that the tribunal would be satisfied that a member of the public, knowing the matters set out above, would object to the applicant having a tattooist licence.
At the hearing Mr Birch reiterated those propositions, adding that the applicant's encounters with police had been frequent. Police had found a "bong" in his possession a mere two days after he had come before the court. It was obvious that the court date had no effect on his behaviour. Consequently there was an ongoing risk of lawbreaking and it was too soon to conclude that he had rehabilitated. Although he claims to have rehabilitated himself, there is no objective evidence or record of any programs or medical evidence in relation to his case.
The applicant's convictions had been repetitive and demonstrated a lack of respect for law. They were not long ago, and he had told police that he had used marijuana up until 2017. More time, together with objective evidence, was required, as there was no evidence that his rehabilitation is permanent. The references he produced carried little weight as they did not directly describe his criminal history or the circumstances of his offending. To be of any value such material must be candid.
His own steps towards rehabilitation would be less effective than seeking professional help. The tribunal would need to be confident that his rehabilitation had been successful.
The assessment of whether an applicant is a fit and proper person rests with the Commissioner of Police, but the Act makes it clear that it is the director-general's decision that is under review, not the Commissioner's determination. Under s 8(2) of the ADR Act, the person or body whose decisions are administratively reviewable is taken to be the only administrator in relation to the making of an administratively reviewable decision, even if some other person or body also had a role in the making of the decision.
As with all legislation, the provisions of the TP Act and the powers that it confers must be construed and applied in such a way as to be consistent with the language and purpose of all the provisions of the Act: Project Blue Sky Inc. v Australian Broadcasting Authority [1998] HCA 28: (1998) 194 CLR 355, [69]. 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 of the TP Act noted that the Act was introduced in response to gang crime in New South Wales. It aimed to break the stranglehold that OMCGs had over the tattoo industry. The Act's purpose is not, however, limited to eradicating the influence of OMCGs in the industry. The "fit and proper" criterion applied in the Act is of much broader application, as Montgomery SM explained in his comprehensive review of the authorities in Smith, at [38] to [41].
In Smith, Montgomery SM set out the approach to be adopted when undertaking a review of a decision to refuse an application for a licence as a result of an ASD (at [24] - [28] and [32] - [37]). Those principles may for present purposes be summarized as follows:
1. As was noted above, the tribunal is required to take the ASD into account as an essential, legally relevant consideration to which weight must be given: at [24].
2. While the ASD does not constitute a prima facie position which the applicant bears the burden of displacing, due weight must be given to it: at [25] - [26].
3. Although the decision under review may be that of the secretary rather than the Commissioner, the tribunal may make a fresh determination as to whether the person is a fit and proper person to be granted a licence and whether it would be contrary to the public interest for the applicant to be granted a licence: at [31] - [32]; and
4. The tribunal is to determine what the correct and preferable decision is on the basis of the material before it and any other lawful, discretionary basis; it is not confined to the grounds relied upon by the Commissioner or the secretary: at [27] - [28], [32] - [33].
The first issue to be considered, therefore, is the applicant is a fit and proper person to hold a tattooist licence.
Thus, in Austin, Montgomery SM considered that the applicant's long criminal record was a "strong prima facie indicator of the Applicant's lack of fitness and propriety", and that "The question therefore arises as to whether he has been completely rehabilitated" (at [75]). The tribunal ultimately was not satisfied about the applicant's rehabilitation and refused the grant of a licence.
In this case the applicant's record of criminal convictions begins in July 2013 and continues until July 2016. They comprise:
3 July 2013: Special category driver (P1 provisional) driving with special range PCA. Section 10 bond for 12 months;
12 February 2014: Possessing a prohibited drug (cannabis resin). Fine $250;
17 August 2015: Possessing a prohibited drug (small quantity of cocaine). Fine $800;
9 February 2016: Possessing a prohibited drug (small quantity of cannabis and two white capsules); driving a vehicle with an illicit drug present in the blood. Two bonds under s 10 for 12 months, and one for 6 months;
26 July 2016: Driving a vehicle with an illicit drug present in the blood (two counts), Possessing a prohibited drug (two counts). Two fines of $300 each and two bonds under s 9 for 12 months.
Further details of the circumstances surrounding the offences are given above. In addition, there was the police intelligence report stating that on 5 February 2015 the applicant had been in the driver's seat of his vehicle while his passenger had collected a large amount of cash. He claimed he was unable to recall that incident.
[NOT FOR PUBLICATION]
Another intelligence report stated that on 26 March 2015 (I 57871749) police had searched the applicant and his passenger, as well as their vehicle, and had located $280 on the side pocket of the driver's door. His explanation was that he was carrying more than the usual amount of cash because of having lost his ATM card, but that is hardly plausible. As the evidence shows that he was in the habit of carrying a wallet, it seems unlikely that he would have kept a significant amount of cash in the door pocket.
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Most of the event reports concerning the applicant arose before 2016 but, on 5 January 2018, in the course of a traffic stop, police thought his eyes appeared red and watery and reported him as saying that he had smoked cannabis a "couple of months" previously. At the hearing he said it was much more than two months and he believed that the police had mis-heard him. That report may be regarded as inconclusive.
On 8 March 2018, he was again stopped by police, this time because they thought he made a rapid turn into a side street when he saw them approaching. They thought his eyes appeared to be "glazed over". He said that he had ceased using cannabis a year earlier. At the hearing he said his eyes were not glazed over because of cannabis use and that he had indeed stopped using the drug a year earlier.
The applicant's record of repeated contraventions seemingly indicating an inability or refusal to learn from his mistakes or to make use of the courts' relative leniency to change the course of his life, together with the misgivings arising from the other incidents, constitute evidence weighing against finding him to be a fit and proper person to hold a licence.
There is no evidence that he has been associated with an OMCG or has ever knowingly been involved with OMCG members. He stresses that he has no record of violence or stealing. At the same time, he must have known, and indeed admitted as much in his evidence, that his suppliers were criminal elements. He said he knew their identities but was not aware of their networks or other activities.
He was adamant that he had never personally sold or distributed drugs, and there is no evidence to contradict him on that point. Nevertheless, the incident with the suspicious $280 and the 5 February 2015 report that a passenger in his car had collected a large amount of cash, an event he claimed not to remember, suggest, but do not prove, that at that period he may have been an accessory to drug dealing more than once. The evidence does suggest that his flirtation with the drug economy was rather more serious than he likes to admit, but also that it ceased some two years ago.
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On its own, such a record extending over a period of approximately three years would prima facie be enough to disqualify him from meeting the "fit and proper person" criterion. The question therefore becomes whether he has been rehabilitated sufficiently to meet that standard. Mr Birch pointed out that there was no evidence that the applicant had undertaken any drug rehabilitation programs or sought other professional help. There is, however, other evidence that supports his case.
The first point is that his last drug offence (taking the arrest date) is now over three years ago and he has not failed any drug or alcohol tests since then. He says that he ceased using drugs after his arrest on that charge on 31 March 2016, and there is no clear evidence to contradict him in that respect, although the police opinions that on 5 January 2018 and 8 March 2018 his eyes appeared "red and watery" or "glazed" raise suspicions that there may have been a relapse. He has not come under adverse notice since then, however.
He has worked hard to get himself where he is and is proud of who he has become. He would be devastated if the stupid decisions he made as an adolescent would stop him from excelling in the career he had chosen. He had worked over 18 months without pay in a tattoo studio, had learned a great deal and now knows that it is the career that he wants to follow above all others. Mrs Dallison feels he is absolutely of good character to hold a tattoo licence. He had never hurt anyone and would be the first person to help anyone in need. He had not been in any trouble for over the last 2½ years
Ms Emilia Socorro in her letter dated 24 March 2019 stated that she is a senior registered nurse with 28 years' experience in her specialty, who currently works at Westmead private hospital. She has known the applicant since birth and is a close family friend who has watched him grow into an outstanding young man who is a great asset to the community and has a career path planned out. He has learned from "the mistakes of the past", and that should not hinder his desire to pursue a bright future.
She had always found him to be polite, respectful extremely kind and well regarded by his peers. His positive attitude, drive, and enthusiasm for his artistic endeavours was evident and she endorsed him without reservation.
Mr Trevor Stark of Narellan Powder Coating (NSW) Pty Ltd stated in his letter of 21 March 2019 that the applicant had worked as a labourer with his company from November 2015 until December 2017. During his employment he was self-motivated and willing to go above and beyond what was expected of him. He has a positive attitude and is very respectful to others. Mr Stark would highly recommend him for any other position. The reference does not, however, indicate awareness of Mr Larter's criminal history.
Mr Shane Dallison, the applicant's stepfather, wrote on 22 March 2019 that he has known him for over 9 years and has found him to be an honest, good person. Over the time he had known him, he had "gotten himself into trouble with the police, where I don't condone his behaviour, the majority of his trouble was over his addiction to marijuana". He was an unhappy boy and thought that was the answer to help him cope, and as he matured he realized that was far from the truth. Over the last 2½ years he had proven to everyone that he has stopped using drugs to medicate himself and has found a career in tattooing that he loves and wants to do more than anything else. Mr Dallison had noticed that positive change in him since he started his tattoo apprenticeship - he is happy and calm and loving life in general.
He is currently working for Mr Dallison casually but doing full-time hours, from 5 a.m. to 2 p.m. every day. He is a great worker, comes to work on time and does his work with no problems. Nevertheless, that is not where James wants to be. He has worked so very hard to get his life together and chose the career in tattooing that he loves so much. Mr Dallison knows that he is most definitely of good character to hold a tattoo licence.
Ms Natasha Christopher wrote that the applicant "has had a few bumpy years with not knowing where he wanted to go in life". "[H]e had gotten into trouble a few times and floundered with thinking he was a failure. Since then he had found tattooing to be his calling and is a natural at it. Over the last 18 months, he has "pulled himself out of his funk" and has buckled down and completely changed his life. The only setback had been his "knockback" for his tattooist licence. "If you knew this young man and had seen the turnaround, you would understand how completely proud I am of him and the changes he has made". She guarantees that he would succeed in his dreams if given the opportunity. The letter does not indicate the nature of Ms Christopher's association with the applicant.
Finally, Ms Casey Turvey in her letter of 21 March 2019 related that she has known the applicant for over 10 years. They met while they were both in year 7 of high school, and in him she had always seen a friendly and polite face. They were never the closest of friends throughout their years in high school, but shared many of the same classes. In her experience (as someone who lacked friends and was constantly teased), James was one of the most polite students in the entire school and had always been kind towards her.
It was not until a few years after high school that they reconnected and became friends. He was at the lowest point mentally, lacking any self-worth and was on a very self-destructive path. He reached a point where he did not value anything about himself and vowed to change that. He decided to get back into the one thing he loved about himself, his drawing abilities. She and James had bonded over their common love of art. He set goals for himself, building up his art portfolio, and began applying for his dream job. He quit his full-time occupation to pursue a completely unpaid 45-plus hour week. He dedicated all of his time to his work and his drawing. His behaviour changed drastically, as did his sense of responsibility.
Ms Turvey had feared that following the rejection of his application, he would return down his purely self-destructive path. Now, however, he works full-time and has moved out of home and in with her. He is still dedicated to pursuing the career of his dream, spending as much of his spare time on his drawing and still focusing on his good behaviour. As a long-time acquaintance and now a close friend, she vouches that the applicant is of "great character" and is grateful to have had the opportunity to find such a genuine friend. He is genuinely remorseful and blames himself harshly for his adolescent actions. He had never been a risk to those around him, let alone the general public, but the maturity growth she had witnessed over the past three years alone was outstanding and should most definitely be considered.
The referees were not called for cross-examination.
As Mr Birch pointed out, it has been held that references not containing explicit particulars of the subject's violations should be given little weight on the question of fitness and propriety: Dessmann, [46]. While that is a sound general rule, one needs to realize that when referees are preparing character references without the benefit of legal advice, as in this case, they may be unaware of that requirement. In many cases people prefer to employ tactful euphemisms such as "mistakes", "bumpy years" or "getting into trouble with the police". That need not mean that they are unaware of the subject's record, though they may not be au fait with every detail of it.
Provided that they contain some acknowledgement of the applicant's criminal history, however, I think they can be given some weight. In this case, all the referenees stress the radical and positive transformation in the applicant's behaviour and attitudes in the last 18 months to 3 years. That suggests that there had previously observed him to present a deplorable spectacle, no doubt because of his "trouble with the police".
It could be argued, with all respect, that Mrs Dallison's reference for her son might be expected to paint a somewhat more favourable picture than the facts warranted. But her letter is no mere recital of parental pieties, and it contains multiple references to specific matters of fact and personal observations. The same applies to Ms Turvey's reference.
I therefore conclude that the references constitute significant evidence of rehabilitation. They speak of the applicant's remorse and contrition about his past follies and a determination to make something of his life. Now aged 23 (24 in September), he seems to realize that he wasted the years when he would normally have been laying the foundations for his future trade or profession and that it is time to make a purposeful move towards carving out an occupation.
As Mr Birch pointed out, he has not produced any expert evidence about his medical or psychological progress, but his mother states that he did seek help from doctors for his drug problem over the years but did not find that their ministrations helped him. His own evidence about psychological counselling was to a similar effect. Further, rehabilitation can be shown in other ways, such as by actions. He is currently in full-time employment and has produced supportive references from present and past employers.
The respondents drew a parallel between the present case and Dessmann, in which a tattooist licence application refusal was affirmed. In that case, however, the applicant had been abusing drugs for 10 years and had clear contact with criminals. He was still using drugs a month before the hearing (at [37]). The respondents also similarly relied on Smith, but there the applicant had been on drugs for 18 years and had started to abstain from regular cocaine use only 4 months before the hearing. Also cited was Lindroos v Commissioner for Fair Trading [2016] NSWCATAD 175, but the applicant's evidence in that case was evasive and contradictory. He displayed no remorse at any stage and expressed regret only at having "got caught".
The respondents' written submissions also noted that the applicant had not provided evidence of the kind that the tribunal found persuasive when setting aside a licence refusal in Avnell v Commissioner for Fair Trading [2018] NSWCATAD 58, [29] - [34], [42] - [49]. That applicant had served a prison sentence for aggravated culpable driving and had a record of other traffic and drug offences extending until 3½ years previously, but had produced character evidence and testified that he had sought to remove himself from the drug and crime milieu he had previously frequented ([42]).
The present applicant, however, has also produced such evidence. His character references are supportive and uniformly attest to the radical change in his conduct and mentality over the last 18 months to 3 years. He also gave evidence that he had taken steps to "remove" certain persons from his life in order to detach himself from the drug culture. He did not provide any details of the persons or classes of persons in question, or how he had "removed" them, but he was not asked to. That evidence was not, of course, available to the primary decision-maker or to the respondents when preparing their written submissions.
[NOT FOR PUBLICATION]
Also relevant is the fact that this application is for a tattooist licence, not an operator licence. Consequently, Mr Larter would at all times be working under the supervision of a putatively responsible person: Avnell, [52].
Although one might have preferred to see a longer period without adverse indications, on the basis of all the evidence before the tribunal I conclude that the applicant is now a fit and proper person to hold a tattooist licence, subject to a special condition that will be outlined below. I am mindful that in Smith the tribunal agreed with a submission by the agency concerning the imposition of conditions, which described it as "illogical and absurd". But that was in the context of a finding that the applicant was not a fit and proper person, the Commissioner arguing that it would be illogical and absurd for the tribunal to find that the applicant was not a fit and proper person, but then seek to consider the imposition of conditions on a licence (at [114], [115], [134]). In the present case, however, my finding is that the applicant is a fit and proper person, but a special condition is needed as an extra guarantee.
That objective must implicitly be one of the purposes of this legislative scheme and is relevant to the interpretation of its provisions. As the tribunal pointed out in Naziry v Director-General, Ministry of Transport [2004] NSWADT 40 in the context of taxicab licensing, decision-makers must as far as possible place themselves 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 as the driver of the taxi.
A finding that an applicant is not of fit and proper character to hold the type of licence in question would normally also necessarily mean that it would be contrary to the public interest to allow the person to hold the licence: Stiles v Commissioner of Fair Trading [2017] NSWCATAP 44, [34]. In this case, however, I have found that the applicant meets the fitness and propriety standards required for a tattooist licence. The question therefore becomes whether there are other public interest grounds justifying refusal.
The legislation's main object is to rid the tattoo industry of OMCG influence and infiltration by other criminal elements. As was noted above, the applicant has never had any association with any OMCG or any other criminal group, or any knowing links with them. He has no history of violence or threatening violence or of stealing. His last criminal conviction was nearly 3 years ago, and although that is not a long time, he has not come under unambiguous adverse notice since then, a clear change from his earlier record when he accumulated multiple drug-related encounters with the police. There is clear evidence of rehabilitation, including uncontradicted references, and of a demonstrated determination to make a fresh start in life, an ambition that is quite attainable in a young man of 23.
It is settled law that an applicant's private interests, such as in obtaining access to a reliable income stream, receive no weight in a consideration of the public interest or fitness and propriety: Austin v Commissioner of Police, New South Wales Police Force [2016] NSWCATAP 179, [72] - [73]; Butler v Commissioner for Fair Trading [2017] NSWCATAD 138, [114]. Nevertheless, matters directly affecting the individual can have a wider public interest relevance. In Wright at [121], [127], Scahill SM accepted that an applicant's working as a tattooist could be a significant aspect of his ongoing rehabilitation and a relevant public interest factor (see also Butler, [117], [122]).There is also a public benefit in a person being able to engage in gainful business or employment rather than being kept by the taxpayer: (id. at [127]; see also Allen v Commissioner for Fair Trading [2015] NSWCATAD 273, [70]).
There is thus 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, security or public confidence in the regulatory scheme. The evidence here suggests that licensing the applicant as a tattooist would assist the rehabilitation process, especially as he is not qualified or equipped for any other kind of work other than labouring. Requiring him to wait another couple of years to prove full rehabilitation could be counter-productive if it leaves him with idle time and leads to a temptation to resume drug-taking. In addition, enabling him to join the industry at this juncture would tend to tap his present enthusiasm and motivation as a way of helping to keep him away from the drug scene.
But in view of the relatively limited time that has elapsed since his last conviction, it would be prudent to stipulate that any licence issued should contain a condition requiring total abstention from all prohibited drugs. Although that is a legal requirement in any event, its incorporation as a s 10(1)(a) condition would mean that even a single instance of drug abuse would, under s 26(2)(a)(iii), empower the chief executive to cancel the licence without the need to be ready to prove that the holder was no longer a fit and proper person. Although the point was not canvassed at the hearing, that is my understanding of the law's effect.