McCurday v Commissioner for Fair Trading

NCAT Administrative and Equal Opportunity|2016-11-03

reasons for decision

On 29 July 2016 the Commissioner for Fair Trading (Fair Trading) refused an application by Steven McCurday for an operator licence under the Tattoo Parlours Act 2012 (the Act). The reason for the refusal was because the Commissioner of Police (the Commissioner) had made an adverse security determination under s 19(2) of the Act. The Commissioner had determined that Mr McCurday is not a fit and proper person to be granted the licence because he is a member of the Comanchero Outlaw Motorcycle Gang (OMCG) and it would be contrary to the public interest for the licence to be granted because of that membership.
Mr McCurday, by an application lodged on 16 August 2016, has sought review of that decision by the Tribunal.

Nature of review

A person whose application for a licence under the Act has been refused may apply to this Tribunal for an administrative review of that decision (s 27(1)).
In circumstances where, in accordance with s 14 of the Act, Fair Trading has referred a licence 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, and the Commissioner has made an adverse security determination, Fair Trading must refuse to grant the licence.

Background

Mr McCurday has owned and operated the Alligator Ink tattoo parlour since 2008, initially from premises in Wyong and, since 2010, in premises at Gorokan. Prior to the introduction of the current legislation, he did not need a licence to operate the tattoo parlour. When the licensing regime came into being, Mr McCurday was required to apply for a licence if he wished to continue his business. He made an application on 27 September 2013 and, under the transitional provisions in the new legislation, was permitted to continue to operate the business while his application was being considered.

The respondents' evidence

The Commissioner provided information to the Tribunal on a confidential basis in the absence of the Applicant. The Applicant is aware that a confidential session took place but he is not aware of the information that was presented.
The Applicant has been provided with the adverse security determination in a redacted form. An unredacted copy of that document has been provided to the Tribunal on a confidential basis.
The open evidence provided by the respondent was to the effect that Mr McCurday is a member of the Comanchero OMCG and that he previously held a high ranking position. He registered a motorcycle bearing the number plate 'ACCA' in 2012, although the registration expired in 2015. Evidence was provided that he made a report to police that the rear plate of the motorcycle had been stolen in late February or early March while the motorcycle was secured at his home. In 2007 Mr McCurday registered the business name 'Comanchero MC Australia" with ASIC.
A criminal check shows that Mr McCurday was convicted of assault in 1988, of refusing to leave licenced premises in 1982 and of speeding in the same year.
The respondents provided copies of a number of newspaper articles which concerned incidents involving member of the Comanchero OMCG, including about a shooting victim linked to the Comanchero, shooting and arson attacks on various tattoo parlours and the murder conviction of the Comanchero national president, Mick Hawi, arising out of a brawl with members of the Hells Angels OMCG at Sydney Airport in 2009. A document prepared by the Australian Crime Commission on OMCGs in general describes them as "one of the most high profile manifestations of organised crime" in Australia.
A police report states that Mr McCurday, when questioned in relation to assaults which had occurred at the Comanchero South Chapter clubhouse in Turrella in July 2013, indicated that the attack could have been in retaliation for 14 members of the South Chapter attending his home two weeks earlier. Mr McCurday did not tell police why they had gone to his home but stated that he had been surrounded by the 14 individuals in his kitchen. Mr McCurday told police he had spoken to other members "higher up" than himself and stated his displeasure about the visit to his home. The report stated Mr McCurday believed the events at Turrella were to placate him. There is also evidence that the Alligator Ink tattoo parlour was itself targeted by a rival OMCG in 2011.
Evidence was also provided that Mr McCurday had contacted police in July 2010 to inform them that local and Sydney Comanchero members would be celebrating an anniversary at the Central Coast Chapter's premises on 31 July. He also contacted police in August 2010 to inform them that there would be a ride involving Sydney, Melbourne and Central Coast Comanchero members to commemorate the 1984 Father's Day Massacre.
Photographs were also provided from Mr McCurday's Facebook page which showed Comanchero related items, including a framed picture on a wall at his home depicting Comanchero insignia.
The relevant confidential evidence provided by the respondent is summarised in the following paragraphs.
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Mr McCurday's evidence

Mr McCurday is 53 years of age and lived in Sydney until about 1991 when he moved to the Central Coast. He worked as a mechanic on the Central Coast and did tattooing work on a casual but regular basis. He opened his business Alligator Ink in Wyong in 2008 and moved to the current premises in Gorkoran in 2010.
Mr McCurday said he joined the Comanchero in about 1987. After a probationary period he obtained full membership and got his colours - the insignia patch on his leather vest which identified him as a member of the Comanchero. He said he joined the Comanchero because he was interested in the history of the club and its membership. He was interested to know how they came to be labelled "outlaws" and what the comparison was with the wild west. He said he knew two of the people who had been killed at Milperra in 1984. At the time he knew members of both the Comanchero and the Bandidos and wanted to know why things happened at Milperra because what was said in the newspapers didn't ring true of his friends. He said that it wasn't true that the Comanchero and the Bandidos were paramilitary organisations.
Mr McCurday said that he was not concerned when he in joined the Comanchero in 1987 that some members had been involved in the shootout with the Bandidos at Milperra in 1984. He said those who had been involved were in jail at the time.
Mr McCurday said he became the Commander of the Central Coast Chapter of the Comanchero in late 1991. This was the most senior position in the Chapter responsible for overseeing the general running of the Chapter. At the time there were only three or four members and they used to meet at Mr McCurday's house. Over the following years about 15 members joined and the Chapter got a club house. The Chapter had various club houses in Wyong over the years, usually rented premises in a factory area. Mr McCurday said there were Friday night meetings and on Sunday there was a ride and lunch. Members wore their colours on the ride. A couple of times a year there were compulsory runs when all members from around Australia got together. At one time he oversaw new Chapters at Mudgee, North Lakes and Somersby.
Mr McCurday said he left the Comanchero in June 2013 because he was not happy with the direction in which the club was heading. He said that in February that year, when he turned 50, he had decided he would leave the club in September 2013 to coincide with the traditional remembrance day for members of the club who had died. However, he became disillusioned with the direction the club was taking and this came to a head when he was visited in his home on 8 June 2013 by members of the Sydney Chapter. He handed in his colours that day and rescinded his life membership. He has not regarded himself as a member of the Comanchero since that day and has not taken part in any meetings or rides.
Mr McCurday said that there is only 5 or 6 members left in the Comanchero from the Central Coast Chapter as others left when he did. He understands there is no longer a club house. He does not know whether there is currently an active Central Coast Chapter.
Mr McCurday said that he had run the Central Coast Chapter as a separate entity - more of a social club with family involvement - and would only join up with the Sydney Chapter on compulsory runs. He said he wasn't impressed with what had happened at Sydney Airport in 2009 when the Hells Angels and the Comanchero fought at the airport but thought it wouldn't affect the Central Coast Chapter so he remained a Comanchero. By 2012, however, he started to see the influence of members with a Middle Eastern criminal background in the club and the presence of hard drugs. He said the Sydney club was enticing younger members from the Central Coast Chapter to go to Sydney where they would party and take drugs. These members went down to Sydney against his instructions and Sydney wanted to introduce that culture to the Central Coast and sell drugs there.
Mr McCurday said he had been a member of the Comanchero for 25 years but things soured for him when drugs started to impinge upon the Central Coast Chapter. He said by June 2013 he couldn't oppose Sydney on the drugs issue any more and so left the club. He said he was going to leave in September anyway.
Mr McCurday has Comanchero related tattoos on his chest and back. He has a very large tattoo of the Comanchero insignia on his back and said he had that done in 1988 when he got his colours. He has a smaller one on his chest which was done in 1987 and the word Comanchero in an arc below his neck on his chest which he said was done about 8 years ago.
Mr McCurday was questioned about why he had not had the tattoos removed (or been required to have them removed) if he was no longer a member of the Comanchero. Mr McCurday acknowledged that having such tattoos is a sign that a person is a member of the Comanchero. He said that he has been given leave to remove the tattoos over time and has begun that process with the large tattoo on his back. He has had two sittings where work has begun on a design incorporating the four riders of the Apocalypse at the base of his back which will be worked upwards over time to obscure the current tattoo. He said it would be unsightly simply to block out the tattoos.
In relation to the business name Comancheros MC Australia, Mr McCurday said he, with the help of his son, registered the name in 2007 at the time when a man by the name of Mark Brown was writing a screenplay about motorcycle clubs. The club had thought there might be some spin off merchandise but the film was never made. The registration was for three years and he did not recall receiving any renewal. He said his son handles that sort of thing for him. Mr McCurday said he received a reminder to renew the registration in August this year but has not renewed the registration.
Mr McCurday said he obtained the ACCA (which stands for Always Comanchero, Comanchero Always) plates for his motorcycle in 2012. He said he kept the registration for two years after he left the Comanchero but, on apart from one occasion, did not ride the bike after he left. The motorcycle was stored in his shed and the fact that one of the plates was missing only came to his attention on 6 March 2015 when he was cleaning out the shed. He reported the theft to police.
Mr McCurday undertook to remove any images from his Facebook page which could be said to be associated with the Comanchero. He said the painting on the kitchen wall which appears in the corner of some of the photographs was given to him as a birthday present when he turned 50. The painting contains images of himself, John Wayne and the Comanchero insignia. He said the painting is no longer on the wall. As for a message showing the club insignia, Mr McCurday said he posted that to commemorate a friend who died who had remained a member of the club. He said his Facebook page is only seen by friends.
Mr McCurday said that it was by no means certain that his tattoo parlour had been targeted by a rival club in 2011 when a window was broken. He said this may have been a theory at the time but another rumour was that it was the boyfriend of a lady who was in a relationship with someone who helped out at the parlour from time to time. He said police were notified of the incident at the time and attended the premises.
Mr McCurday denied he had told police that what happened at Turrella in July 2013 was done to placate him or in retaliation for Comanchero members invading his home two weeks earlier. He said he had left the Comanchero in June and wanted nothing further to do with the club. He said officers from Strikeforce Raptor came to question him if he knew the whereabouts of a certain person but he did not.
Mr McCurday said he does not tolerate criminal activity and the only criminal matters against him have been for failing to quit licenced premises in 1980 and a conviction arising out of the Bathurst riots in 1984. He said he was not involved in the riot and was only a bystander and on appeal a sentence of imprisonment was overturned on that basis.
Mr McCurday provided testimonials from the operators of a number of businesses close to Alligator Ink all of whom state that there has been no negative effect or threat of illegal activity associated with the tattoo parlour. Many of the business owners acknowledge that Mr McCurday's licence application was rejected on the basis that he is a member of the Comanchero OMCG. He also provided a more personal reference from a friend he has had since high school who is now a senior employee in the banking industry.
Mr McCurday also provided evidence of his support in 2011 for the McDonald's Helping Hands Fundraiser and in 2014-15 for the United Nations and Overseas Policing Association of Australia. He also stated that in recent years he has been involved with, an on the committee of, the local Junior Trail Mini Cycle Club, a community mini bike club for children.

Fit and proper

The expression 'fit and proper' is a common statutory term and has been considered by this Tribunal and in other jurisdictions in numerous cases.
In Hughes and Vale Pty Ltd v New South Wales (No.2) (1955) 93 CLR 127 at 156-7 the High Court said: The expression 'fit and proper' is of course familiar enough as traditional words when used with reference to offices and perhaps vocation. But their very purpose is to give the widest scope for judgment and indeed for rejection. 'Fit' (or 'idoneus') with respect to an office is said to involve three things, honesty, knowledge and ability ... When the question was whether a man was a fit and proper person to hold a licence for the sale of liquor it was considered that it ought not to be confined to an inquiry into his character and that it would be unwise to attempt any definition of the matters which may legitimately be inquired into; each case must depend upon its own circumstances.
These sentiments have been echoed in cases before the Tribunal and it is generally accepted that what is fit and proper needs to be determined by reference to the activities in issue and is to be gauged in light of the nature and purpose of the activities that the person will undertake (AJO v Director-General of Transport [2012] NSWADT 101 at [26]; Austin v Commissioner for Fair Trading & Commissioner of Police [2016] NSWCATAP 179 at [82]).
In Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 380 Toohey and Gaudron JJ said: The expression "fit and proper person", standing alone, carries no precise meaning. It takes its meaning from its context, from the activities in which the person is or will be engaged and the ends to be served by those activities. The concept of "fit and proper" cannot be entirely divorced from the conduct of the person who is or will be engaging in those activities. However, depending on the nature of the activities, the question may be whether improper conduct has occurred, whether it is likely to occur, whether it can be assumed that it will not occur, or whether the general community will have confidence that it will not occur. The list is not exhaustive but it does indicate that, in certain contexts, character (because it provides indication of likely future conduct) or reputation (because it provides indication of public perception as to likely future conduct) may be sufficient to ground a finding that a person is not fit and proper to undertake the activities in question.
They went on to say at 388: The question whether a person is fit and proper is one of value judgment. In that process the seriousness or otherwise of particular conduct is a matter for evaluation by the decision maker. So too is the weight, if any, to be given to matters favouring the person whose fitness and propriety are under consideration.
In Sobey v Commercial and Private Agents Board (1979) 22 SASR 70 Walters J said: In my opinion what is meant by that expression is that the Applicant must show not only that he is possessed of a requisite knowledge of the duties and responsibilities devolving upon him as the holder of a particular licence ... but also that he is possessed of sufficient moral integrity and rectitude of character as to permit him to be safely accredited to the public ... as a person to be entrusted with the sort of work which the licence entails.
In Smith v Commissioner of Police & Commissioner for Fair Trading [2014] NSWCATAD 184 at [19-20] in the context of the Tattoo Parlours Act, Senior Member Montgomery stated: [19]…There is no "Principles and Objects" section within the Act. The Tribunal can look at Hansard and the Minister's speech to ascertain the purpose of the Act - the mischief that the statute was designed to cure. In his second reading speech on the introduction of the Bill to Parliament, the Minister for Police and Emergency Services Mr Gallacher noted that the Act was introduced in response to gang crime in NSW. It aims to break the stranglehold that outlaw motorcycle gangs have over the tattoo industry. It was anticipated that removing bikies from the tattoo industry will reduce the reasons for rival gangs to fight turf wars, because these businesses will no longer be symbols of a gang's territory… [20] While the second reading speech focused on the involvement of outlaw motorcycle gangs in the tattoo industry, it is clear from the Act that the broader intention is to rid the industry of any criminal or otherwise undesirable element and the avoidance of improper conduct.
The respondent's case that Mr McCurday is not a fit and proper person rests on his membership of and association with the Comanchero OMCG. On the basis of the open and confidential evidence there is no doubt that members of the Comanchero OMCG have been involved in criminal activity. It is also the case that the Comanchero are generally regarded as being involved in organised crime.
The applicant admits he joined the Comanchero in 1987 and held a high position in the club, that of Commander of the Central Coast Chapter. He also admits to being granted life membership. The respondent states that, over the years, Mr McCurday has publicly exhibited his affiliation with the Comanchero and cites the registration of the business name Comancheros MC Australia in 2007 and the motorcycle registration ACCA in 2012. Mr McCurday does not deny these things.
The following statement made by Senior Member Walker in Mielczarek v Commissioner of Police, New South Wales Police Force and Commissioner for Fair Trading [2016] NSWCATAD 34 at [138] is applicable in the current circumstances (although reference in that decision is to the Rebels OMCG and not the Comanchero): In the present context, the correct position seems to be that membership of an OMCG such as the Rebels is a major factor in the consideration of fitness and propriety and may come close to establishing a prima facie case, but that other factors, such as the applicant's criminal history or lack of one, and his or her other known activities or qualities, may prevent, or alternatively reinforce, an inference of lack of fitness or propriety.
Mr McCurday joined the Comanchero following the Milperra massacre and was aware of what was said about the Comanchero at that time. He states that he was not concerned about that when he joined because the persons responsible were in jail and the incident did not disturb his curiosity about so-called outlaws. I note that in 1987 Mr McCurday was only 24 years old and perhaps lacked some judgment. He was also a member in 2009 when members of the Hells Angels and the Comanchero fought violently at Sydney Airport. While Mr McCurday says he "was not impressed" by what happened, he did not disassociate himself from the club at that time. That again perhaps demonstrated a lack of judgment on his behalf, but I accept his statements that he felt the Central Coast Chapter to be a separate entity and therefore insulated from those events to be plausible.
Mr McCurday does not have a substantial criminal record. Indeed his criminal record reveals only one violent offence of assault and that occurred in 1988. There are no convictions recorded since that time. Mr McCurday has stated his opposition to drugs and cited an encroaching drug culture as the reason for his departure from the Comanchero. There is no evidence that he has at any time been involved in drug use or distribution.
Mr McCurday states he rescinded his membership of the Comanchero in June 2013 by handing in his colours and has had no further involvement with the club. [Not for publication]. I accept that Mr McCurday handed in his colours and therefore effectively ceased his membership of the Comanchero in June 2013.
Of concern to the respondent is that, even if it is accepted that Mr McCurday handed back his colours in June 2013, he has retained his Comanchero tattoos, and continued the registration of the motorcycle with the ACCA plates and the registration of the business name Comancheros MC Australia after that time. He has a painting in his home depicting Comanchero images and has posts on his Facebook page which reference the Comanchero. The respondent contends that these point to the fact that Mr McCurday has a level of continuing association with the Comanchero.
Mr McCurday's tattoos are substantial, with the larger one covering almost his entire back. While their retention would seem to indicate a reluctance by him to dissociate himself completely from the Comanchero, I consider that their removal in a way which is not painful, unsightly or disfiguring would be a substantial undertaking. I therefore accept Mr McCurday's evidence of the prolonged process he is undertaking. In any event, I note the tattoos are not displayed on parts of his body, such as his limbs, which are normally uncovered. I therefore do not consider that the retention of the tattoos to date is indicative of an ongoing meaningful association with the club.
There is evidence that the registration of the motorcycle expired in 2015 and evidence that the ACCA plates were reported as stolen in that year. I accept the evidence of Mr McCurday that he only rode the bike once after June 2013 and that was not in association with any Comanchero event. No evidence was put before the Tribunal that the business name has ever been used and I accept Mr McCurday's explanations for why the name was obtained and renewed. It is no longer current. I do not consider retention of the motorcycle or the business name for a period after 2013 to be indicative of an active continuing association with the Comanchero.
The images on Facebook incidentally show a painting in Mr McCurday's home. The painting contains images of Mr McCurday, of the actor John Wayne, who played the lead in the movie "The Comancheros" after which the Comanchero OMCG was named, and the Comanchero insignia. I accept that the painting was given to Mr McCurday on his 50th birthday at which time he was still a member of the club. I also accept that the post on his Facebook page of the Comanchero insignia was done in memory of a friend who died. Given Mr McCurday's long membership with the Comanchero it is not surprising that he retains some items such as the painting which have a Comanchero association. It does not necessarily follow, however, that these are indicative of an ongoing membership or association with the club.
The respondent expressed concerns that the Facebook postings by Mr McCurday ran the risk of there being a perceived link between the Alligator Ink parlour and the Comanchero. Mr McCurday undertook to remove the postings and has stated the painting is no longer on the wall in any event. These actions would obviate any such risk as put by the respondent - however small that risk might be.
Evidence was given of an incident at Alligator Ink premises in 2011 which was said by the respondent to involve a rival OMCG. Mr McCurday states that this was a possible theory at the time but implies the culprit was somebody else. On balance, I accept the respondent's view of the 2011 incident and consider it does indicate that there were tensions involving the Comanchero and another OMCG at the time. I note, however, there have been no other reports of incidents at the tattoo parlour before or after that time and, that apart from this one incident in 2011, the parlour has operated without incident since 2008. In that regard, while the letters of support from nearby businesses are not determinative of any matter, I do note that a variety of businesses do not consider Alligator Ink or Mr McCurday to be associated with any illegal activity. In addition, there is nothing in the evidence to suggest the business has not been operated properly in accordance with all applicable laws.
There is undisputed evidence that members of the South Chapter Turrella paid what appears to be an unwanted visit to Mr McCurday at his home around the time he left the Comanchero. Some mystery surrounds this event but it does not demonstrate that Mr McCurday did not leave the Comanchero in June and nor does it demonstrate that he retains current links. Similarly, the police information report which states that Mr McCurday intimated that assaults at Turrella in July 2013 were in retaliation for the home invasion (which is denied by Mr McCurday), does not indicate any ongoing association.
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Mr McCurday made submissions about his financial concerns if he can no longer operate the business, particularly as he has a number of health problems. However, any financial hardship that will be occasioned by the decision is not relevant to the assessment of a person's fitness and propriety (Austin v Commissioner for Fair Trading & Commissioner of Police [2016] NSWCATAP 179 at [73]; Lal v Director-General, Department of Transport [2001] NSWADT 74 at [47]).
While I have some residual concern about Mr McCurday's long association with the Comanchero, having been a member for some 25 years, and the fact that he held a senior position in the club until June 2013, I am satisfied that he is no longer a member. I am also satisfied that he has a personal and moral objection to the what he describes as the "direction" taken by the club and it is extremely unlikely that he will resume membership. It is to be expected that, after 25 years, there are remaining vestiges of his association with the club but no evidence has been put before the Tribunal to indicate an active, ongoing association.
After considering all the evidence, I am of the view that Mr McCurday is a fit and proper person to hold a tattoo parlour operator licence.

Public interest

In general, the concept of the public interest is designed to give the broader interests of the community priority over private interests of individuals. In Smith v Commissioner of Police & Commissioner for Fair Trading [2014] NSWCATAD 184 Senior Member Montgomery set out a number of authorities in which the concept of the public interest has been considered (at [42-47]). In Roberts v Commissioner for Fair Trading [2016] NSWCATAD 218 Senior Member Montgomery said that the authorities referred to in Smith indicated that: 1. The 'public interest' is a term embracing matters, among others, of standards of human conduct and of the functioning government and government instrumentalities. The interest is therefore the interest of the public as distinct from the interest of an individual or individuals. 2. The 'public interest' is an inherently broad concept giving the appellant the ability to have regard to a wide range of factors in choosing whether to exercise a discretion adversely to an individual. 3. An applicant's personal interests in retaining his licence cannot outweigh the public interest in having full confidence in the professionalism of people involved in the security industry. 4. The "public interest" allows for issues going beyond the character of the applicant to be taken into account. These may include concerns in relation to public protection, public safety and public confidence in the administration of the licensing system.
He went onto say: Public confidence in the scheme and regulatory requirements under the Act is a public interest consideration. In the Second Reading Speech, Mr Roberts stated that the public interest test under the Act "is designed to address the criminal matters currently surrounding the industry, such as ... personal violence". The scheme has as one its objectives the exclusion of persons with criminal tendencies from the tattooing industry, with a view to protecting public safety.
The Tribunal's task is to place itself in the position of a member of the public knowing Mr McCurday's associations and record and consider whether that person would object to Mr McCurday operating a tattoo parlour (Naziry v Director-General, Ministry of Transport [2004] NSWADT 40 at [55]).
As noted above, there is uncontroverted evidence that members of the Comanchero have been involved in criminal activity and that OMCGs in general are regarded as being involved in organised crime. The respondent argues that any association between the Alligator Ink parlour and the Comanchero raises an issue of public risk, since it makes the parlour a possible target for rival gangs or factions. The respondent, quite naturally, points to the 2011 incident and to the time in 2013 when about 14 members of the South Chapter Turrella came to Mr McCurday's home.
The also respondent points to the observations of the Tribunal in Mielczarek at [167]: The applicant's continuing association, however fragmentary it might be, adds to the public risk presented by the organization by making him a possible target of competing factions.
Unlike in the present case, Mr Mielczarek continued to be a member of an OMCG and was so at the time of the Tribunal proceedings. The same was true in the case of Zahra v Commissioner for Police and NSW Fair Trading [2014] NSWCATAD 211 where there was evidence of Mr Zahra's continuing involvement with the Rebels OMCG. In that case the risk to the public interest was found to be such that Mr Zahra's application for the licence should be refused. Senior Member Montgomery went on to state at [69]: Until such time as he fully disassociates himself from the Rebels, this risk will remain and he should not be granted the licence.
Here, Mr McCurdy is no longer a member and there is no evidence of any active continuing association. It has now been some three and a half years since Mr McCurday handed back his colours. This is a fair period of time. Furthermore, no evidence has been provide of any influence - either before or after Mr McCurday's resignation - of any influence of other members of the Comanchero in the tattoo parlour.
It is possible, however, that, given his previous position with the Central Coast Chapter, there is a risk that his tattoo parlour would be associated in the mind of the public with the Comanchero. The 2011 incident occurred over 5 years ago and there is no evidence of any other similar incidents, or indeed any allegations of violence or illegality, involving the tattoo parlour. In fact, there is little evidence in relation to the tattoo parlour itself and any association, perceived or otherwise, with the Comanchero apart from Mr McCurday's ownership. In these circumstances it would seem that the risk of any member of the public associating the tattoo parlour with the Comanchero would be very small.
I have no doubt that, given his former history as a member of the Comanchero, should there be any irregularities in the way Mr McCurday conducts his business or should he, once again, associate himself with an OMCG, that the police will be made aware of those activities.
It is not possible to find that there is no risk to the public interest in Mr McCurday holding an operator licence. However, in the circumstances I am not satisfied that the risk is sufficiently high that it should prevent him from holding the licence.
The correct and preferable decision is to set aside the Commissioner's determinations and in their place the decision should be made to grant the licence.

Orders 1. The decision under review is set aside. 2. The decision is made that the licence is granted. I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 19 January 2017

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Judgment (8 paragraphs)

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