Civil and Administrative Tribunal Act 2013Competition and Consumer Act 2012 (Cth)Crimes (Criminal Organisations Control) Act 2012Interpretation Act 1987Liquor Act 1992 (Qld)Statutes of Livery 1377 - 1468Tattoo Parlours Act 2012.
Cases Cited: Blisset v Commissioner of Police, New South Wales Police Service [2006] NSWADT 114
Briginshaw v Briginshaw (1938) 60 CLR 336
CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384
Commissioner of Police v Toleafoa [1999] NSWADTAP 9
Commissioner for ACT Revenue v Alphaone Pty Ltd (1994) 49 FCR 576
Constantin v Commissioner of Police, New South Wales Police Force (GD) [2013] NSWADTAP 16
Deakin v Commissioner for Fair Trading and Commissioner of Police [2016] NSWCADAT 2
Dyas v Director-General, Fair Trading and Commissioner of Police, New South Wales Police Force [2014] NSWCATAD 223
Director of Public Prosecutions v Smith [1991] VicRep 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
Kirbach v Health Care Complaints Commission (No. 2) [2015] NSWCATAD 234
Heydon's Case (1584) 3 Co Rep 7a, 7b
76 ER 637
Hughes and Vale Pty Ltd v New South Wales (No. 2) (1955) 93 CLR 127
Naziry v Director-General, Ministry of Transport [2004] NSWADT 40
O'Sullivan v Farrar [1989] HCA 61, (1989) 168 CLR 210
Project Blue Sky Inc. v Australian Broadcasting Authority [1998] HCA 28, (1998) 194 CLR 355
Re Queensland Electricity Commission
ex parte Electrical Trades Union of Australia (1987) 72 ALR 1
R v Bolton
ex parte Beane (1987) 162 CLR 514
Re Phillip Morris and Prime Minister (2011) 122 ALD 619
Saadieh v Director-General, Department of Transport [1999] NSWADT 68
Smith v Commissioner of Police, New South Wales Police Force and New South Wales Fair Trading [2014] NSWCATAD 184
Sobey v Commercial and Private Agents Broad (1979) 22 SASR 70
Commissioner for Fair Trading (respondents).
Representation: Counsel:
G Doyle (Applicant)
A Rao (Respondents)
Judgment (15 paragraphs)
[1]
Solicitors:
Doyle Legal (Applicant)
Crown Solicitor's Office (Respondent).
File Number(s): 1510566
Publication restriction: Section 64 of the Civil and Administrative Tribunal Act 2013 applies to the material filed by the respondent's on a confidential basis, to those paragraphs of these reasons identified as [Not for publication], to the evidence given in private before the tribunal and to the record of that part of the proceedings conducted in private pursuant to s 49. That material is not to be released to either the applicant or to the public.
[2]
reasons for decision
On 18 September 2015 the applicant Aleksander Gustav (Alex or "Sasha") Mielczarek applied to this tribunal for review of a decision of delegate of the second respondent to refuse to grant him a tattooist licence under the Tattoo Parlours Act 2012 (TP Act). On the basis of an adverse security determination made by the Commissioner of Police about the applicant, the delegate concluded that he is not a fit and proper person to be granted a licence and it would be contrary to the public interest for a licence to be granted to him.
On 30 June 2015, a delegate of the Commissioner of Police had reported to the Commissioner for Fair Trading under s 19(1) of the TP Act that it had been determined, following an inquiry into the application, that the applicant is not a fit and proper person to be granted a licence for the reason that he is a member of the Rebels Outlaw Motorcycle Gang (OMCG), and that for that reason it would be contrary to the public interest for him to be granted a licence.
Until the decision under review, the applicant had worked at tattoo shops in Picton and Bowral. He had established those shops with his ex-wife in about 2008 to 2009.
[3]
Applicable legislation
Section 3(1) of the TP Act provides in pertinent part that:
adverse security determination made by the Commissioner means:
(a) in relation to an applicant for a licence - a determination of the Commissioner that is reported to the Chief Executive under this Act on either or both of the following:
(i) that the applicant is not a fit and proper person to be granted the licence,
(ii) that it would be contrary to the public interest for the applicant to be granted a licence, or
(b) in relation to a licensee - a determination of the Commissioner that is reported to the Chief Executive under this Act on either or both of the following:
(i) that the licensee is not a fit and proper person to continue to hold his or her licence,
(ii) that it would be contrary to the public interest for the licensee to continue to hold his or her licence.
Section 11 provides in part:
11 Licence applications
(1) An application for a licence is to be made to the Chief Executive.
(2) An application for a licence may only be made by an individual.
Note. See Part 5A of the Crimes Act 1900 for offences with respect to the making of false and misleading applications, information and documentation.
(3) An application for an operator licence in connection with a body art tattooing business that is owned or operated by or on behalf of a corporation, partnership or trust must be made by an individual nominated by the corporation, partners or trustees to be the premises manager for the purposes of carrying on that business at the premises for which the licence is sought.
(4) An application for a licence may not be made by:
(a) an individual who is under the age of 18 years, or
(b) an individual who is not an Australian citizen or Australian resident, or
(c) an individual who is a controlled member of a declared organisation.
Note. Controlled members are prohibited from applying for licences - see section 27 of the Crimes (Criminal Organisations Control) Act 2012.
Section 14 of the Act states that:
14 Investigations, inquiries and referrals in relation to licence applications
If the Chief Executive receives an application for a licence, the Chief Executive:
(a) may carry out such investigations and inquiries in relation to the application as the Chief Executive considers necessary for a proper consideration of the application, and
(b) is to refer any application that the Chief Executive considers to have been duly made (along with any supporting information) to the Commissioner for an investigation and determination as to either or both of the following:
(i) whether the applicant is a fit and proper person to be granted the licence,
(ii) whether it would be contrary to the public interest for the licence to be granted.
[4]
The evidence
The respondent's oral evidence was all given in closed session and is outlined below. The respondent also relied on documentary evidence including the s 58 documents.
The applicant tendered three affidavits (exhibit A1), the first of which was dated 23 September 2015. In it the applicant stated inter alia that he is 51 years old, and divorced with three adult children. He has no criminal record but does have matters on his traffic record. He has been a member of the Rebels Motorcycle Club since 1998. He has not changed his mobile telephone numbers since purchasing his first mobile in about 1989. The only change in his telephone number was when Telecom added an extra digit to all mobile telephone numbers.
After leaving school, he worked for several years in mechanical repair occupations, establishing his own sandblasting business through which he obtained council contracts for graffiti removal. He established a used car business which became successful, then sold it in about 2008. In about 2008 or 2009 he opened a tattoo shop in Cabramatta with a business partner, but sold it when the partner's marriage broke down. After developing a number of other business ventures, he opened Picton Tattoos with his then wife Mrs Dawn Mielczarek, later opening a second branch at Bowral. The businesses are still operating today as Dawn also has a licence, but Dawn wishes to withdraw from the business since the divorce.
The tattoo business creates employment for twenty people in Picton and Bowral. There are seventeen contractors working in the practice, and the other three are Dawn, himself and the receptionist Lisa McGrath. Police regularly inspect both shops without notice, once a week at Bowral and once every three weeks at Picton. There have been no breaches of the Act or regulations for either of the shops.
Over the years he has been operating he has given training to over twenty young people. They have been taught office skills, sterilization, and eventually tattooing. Many of those people have been from broken families and needed an opportunity for employment and for training in this specialized area. He intends to continue to give young people opportunities if he is able to keep the business open.
Both shops are directly opposite hotels, and on occasion police have asked him for footage from his CCTV recordings to assist in their investigations of incidents at those premises. He has always obliged the police when they have made such a request. He does not permit any member of a motorcycle club to wear "colours" (see para 39 below) in the shops and does not employ any members of the Rebels or other motorcycle clubs in the business. He has made it known in the Rebels Motorcycle Club that if any member wants to get a tattoo, they are not to come in colours, as the shop is a place of business and not a hangout or clubhouse. The business has nothing to do with the Rebels Motorcycle Club.
[5]
Additional evidence - the Picton shootings
The first hearing day of this application was 4 November 2015, and it was on that date that the applicant presented the above evidence. On 8 November, however, there was a drive-by shooting at Picton in which three rounds, apparently from a revolver, were fired into the front window of the tattoo shop with which the applicant is associated and a further three rounds into the front of the adjoining business, Such is Leather, which was owned by a Rebels member, Darren Wallace, and had held its opening party the night before. A month later, on 8 December, Wallace was shot dead in a service station opposite the Picton courthouse and police station, apparently by a former Rebels member, Tevita Daunibau, whose body was found shortly afterwards in a nearby park, apparently killed by a self-inflicted gunshot.
As those events potentially had a bearing on the present application, the applicant adduced evidence in relation to them on the third hearing day, 28 January 2016. He tendered an affidavit by his son, Mr Jay Mielczarek, dated 7 January 2016 in which he deposed inter alia that he is a tattooist employed as a contractor by Picton and Bowral Cosmetic Tattooing (known as "Picton Tattoos") and works at the Picton shop. During the day following the drive-by, Det/S.Const. Deas and plainclothes S/Const Crossingham had attended at Picton Tattoos with a search warrant, where they seized the computer CPU on which the store's CCTV footage is saved.
On 8 December 2015, following the shooting of Darren Wallace, Det/.SConst. Deas, from Camden Local Area Command came into Picton Tattoos at about 12.30 pm or 1.00 pm and said to the applicant, "It looks like you guys are off the hook". He understood that to mean that he and his father were not the target of the police inquiry about the drive-by on 8 November. The deponent stated that he had no direct knowledge about the shootings in Picton on 8 November and 8 December. He is not, and has never been, a member of the Rebels or any other motorcycle club. Attached to his affidavit was a photocopy of the search warrant referred to. Mr Jay Mielczarek was not required for cross-examination.
The applicant gave further oral evidence in which he adopted his affidavit of 6 January 2016 (exhibit A5) in which he stated inter alia that Darren Wallace was not a friend of his, and he had met him only twice. He was not part of the applicant's chapter. The first time they had met, he asked the applicant for a quote for removing at tattoo from his face near his right eye. The second occasion was when he came into the shop and the applicant removed the tattoo for him.
[6]
Applicant's submissions
On behalf of the applicant, Mr Doyle presented written submissions in which he argued inter alia that both the respondents' grounds of objection were based on his membership of the Rebels Motorcycle Club. The applicant had never denied being a member of it. The respondent' evidence raised no issue about the manner in which the applicant had operated the two tattoo parlours with his estranged wife Dawn Mielczarek, no evidence that either venue was a Rebels hangout or that any crimes had been committed there, or that any undesirables were loitering around the premises. There was no evidence that the parlours failed to meet health and hygiene standards. On the contrary, the evidence was that they were conducted in a professional manner, welcoming visits from the Department of Health and cooperating with police inspections. The applicant had assisted police in their investigations of incidents occurring in the hotels opposite by making his CCTV footage available to police. The evidence showed that a wide range of people had visited the tattoo parlours, including people who had undergone plastic surgery and had a tattoo to further their rehabilitation, such as women who have had a mastectomy. The parlours employ up to 20 people, who receive training and attend TAFE art courses.
The applicant gave evidence of giving young people an opportunity to be employed and develop their skills. The parlours had attracted people to the Picton CBD and had made gifts to a number of charities, including police charities. He had been convicted of lower range PCA in 1986 and 2003, and once of mid-range PCA in 1991. The last of those offences was twelve years ago and the applicant has no other criminal convictions. His tax affairs are up to date. His failure to renew his firearms licence in June 2012 was due to an oversight on his part as he did not receive the renewal notice. His safe storage apparently passed an inspection by police on 25 October 2012.
His Bowral and Picton tattoo parlours to the best of his knowledge are the only ones between Goulburn and Liverpool, but he gave evidence about the proliferation of illegal backyard tattooists operating in those areas. They are not subject to health and hygiene checks, creating a risk that blood-borne diseases can be transmitted. There was also the evidence of a girl aged 14 who was brought into the Picton parlour by her parents to see what could be done about a very unattractive tattoo she had received. As it is unlawful to tattoo a child of that age, the applicant was unable to assist.
[7]
Further submissions - the Picton shootings
Following the applicant's further evidence on 28 January, the applicant made additional submissions, mainly with regard to the Picton shootings.
On the question of fitness and propriety, Mr Doyle referred to the recent tribunal decision in Deakin v Commissioner for Fair Trading and Commissioner of Police [2016] NSWCATAD 2. The applicant in that matter was not an OMCG member but had a serious record, including car stealing and firearms offences. The tribunal had nevertheless determined that a tattooist licence should be issued to him. Mr Mielczarek, however, had no criminal antecedents.
There had been no incidents at Picton Tattoos in the eight years in which they had been established in their present location. The drive-by occurred just when the leather goods store had opened, and the murder was committed exactly one month later. There appeared to be an issue between Wallace and Daunibau that had nothing to do with the applicant. He is a man aged 53, and when the police said he was "off the hook", they must have meant that he had done nothing wrong. The police were of the view that the drive-by and the murder were related. Three shots were fired into each shop.
The licence the applicant seeks is valid only for a period of three years and he would be subject to inspections. The appropriate standard of proof was that laid down in Briginshaw v Briginshaw (1938) 60 CLR 336. As the application involved loss of his tattooist licence. Zahra was not comparable, as the applicant's evidence was not accepted in that case.
The applicant accepts that the Rebels New South Wales branch still exists, because he acknowledges that he is still a member. But he disapproves of the other members who have joined and keeps his distance from them, partly because of the consorting legislation. There can be rogue members in any organization, but there is no suggestion of misconduct on the applicant's part.
[8]
Respondents' open submissions
In their written submissions, the respondents contended inter alia that the tribunal could affirm the decision on the ground that it would be contrary to the public interest to grant a licence. Smith v Commissioner of Police [2014] NSWCATAD 184, [42], explained that the concept of the public interest is designed to give the broader interests of the community priority over private interests. An applicant's personal interest in retaining his licence could not outweigh the public interest in having full confidence in the professionalism of people involved in the industry. The "public interest" is a protean concept, not a static one. It "takes its shape and substance from the circumstances which are said to give rise to it": Re Philip Morris and Prime Minister (2011) 122 ALD 619 per Forgie DP.
Accordingly, the public interest at stake must be discerned by reference to the broader interests of the community in light of the context and purpose of the Act under consideration, and the particular field of regulation - here, the tattoo industry. The TP Act does not define the "public interest", so its content must be informed by context and purpose. As the tribunal has found, the TP Act establishes a regime that is intended to remove the influence of OMCGs and criminal influences from the industry. The second reading speech identifies in some detail the threats posed by OMCGs and criminal elements. In Zahra v Commissioner of Police [2014] NSWCATAD 211, [59], the tribunal pointed out that in his second reading speech the minister had stated that the Act was introduced in response to gang crime in New South Wales. "It aims to break the stranglehold that outlaw motorcycle gangs have over the tattoo industry". It was expected that removing bikers from the tattoo industry would reduce the reasons for rival gangs to fight turf wars, because those businesses would no longer be symbols of a gang's territory.
In Smith at [19] - [20], the tribunal observed:
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 [the minister] noted that the Act was introduced in response to gang crime in New South Wales It aims to break the stranglehold that outlaw motorcycle gangs have over the tattoo industry…. 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.
[9]
Respondents' confidential evidence
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At that point the hearing was adjourned part heard to 12 January 2016. As that hearing day was taken up solely with the presentation of further confidential evidence for the respondents and with confidential submissions, the applicant was not present or represented. When the proceedings commenced on 12 January, Ms Rao announced that since the previous hearing day, there had been some shootings in the Picton area that might bear on the present application and that the applicant had indicated his intention to adduce further evidence in relation to those events on a later hearing date to be fixed.
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[10]
Respondents' confidential submissions
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[11]
Consideration
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 respondent's decision is the correct and preferable one. The tribunal is to review the merits of the original decision and is required to 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. The tribunal has jurisdiction under s 27(1) of the TP Act, which empowers it to form its own view of the fitness and propriety of an applicant, although that does not require reviewing the ASD itself.
Under s 9 of the Act, two kinds of licence may be granted: an operator licence and a tattooist licence. The person may apply to the Director-General for a tattooist licence pursuant to s 11 of the Act. The applicant is required to submit a written statement in respect of close associates and applicants must be fingerprinted and palm printed: ss 12, 13. On receiving an application for a licence, the Director-General is 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 a licence, and whether it would be contrary to the public interest for the licence to be granted.
By virtue of s 19, the Commissioner is to inquire into, 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, namely that which:
is relevant to the business or procedures proposed to be carried on or performed, or carried on or performed, under the licence, or
causes the Commissioner not to have confidence that improper conduct will not occur if the applicant were granted the licence or the licensee continued to hold the licence, or
causes the Commissioner to conclude that improper conduct is likely to occur if the applicant were granted the licence or the licensee continued to hold a licence.
Neither the Commissioner nor the Director-General is required to give any reasons for the determination or for not granting a licence, if such reasons would disclose any criminal intelligence report or other criminal information: s 20.
[12]
"Fit and proper person"
The assessment of whether an applicant is a fit and proper person rests with the Commissioner, but the Act makes it clear that it is the Director-General's decision that is under review, and 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.
The provisions of the TP Act and the power 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 aims to break the stranglehold that outlaw motorcycle gangs had over the tattoo industry. It was expected that removing bikers from the tattoo industry would reduce the reasons for rival gangs to engage in turf wars, because those businesses would no longer be symbols of a gang's territory. The Act's purpose is not, however, limited to eradicating the influence of outlaw motorcycle gangs (OMCGs) in the industry. The "fit and proper" criterion applied in the Act is of much broader application, as was explained in a comprehensive review of the authorities by Montgomery SM in Smith v Commissioner of Police & Anor [2014] NSWCATAD 184 at [38] to [41].
The assessment of fitness and propriety is a question of fact to be decided objectively in relation to the activities in which the applicant, if licensed, would be engaged (ibid). It has been held to involve three qualities, integrity, knowledge and ability (Hughes and Vale Pty Ltd v New South Wales (No. 2) (1955) 93 CLR 127, 156 - 7. In Sobey v Commercial and Private Agents Board (1979) 22 SASR 70, 75, Walters J had this to say:
In my opinion what is meant by that expression is that the applicant must show not only that he is possessed of the requisite knowledge of the duties and responsibilities evolving upon him as the holder of a particular licence… but also that he is possessed of sufficient moral integrity and rectitude of character as to permit him to be safely accredited to the public… as a person to be entrusted with the sort of work which the licence entails.
[13]
The public interest
As regards the public interest ground, the courts and the tribunal have held that the concept of the public interest is designed to give the community's broader interests priority over private interests. In Comalco Aluminium (Bell Bay) Ltd v O'Connor (1995) 131 ALR 657, 681 Wilcox CJ and Keely J said: "The purpose of the reference to public interest is to ensure that private interests are not the only matters taken into account; to make clear that the interests of the whole community are matters for the Commissioner's consideration. The effect of the reference is to amplify the 'scope and purpose' of the legislation".
As Montgomery SM explained in Smith v Commissioner of Police, New South Wales Police Force [2014] NSWCATAD 184, [42] - [47], the discretion to make a decision "in the public interest" is confined only by the scope and purpose of the legislation itself: O'Sullivan v Farrar [1989] HCA 61; (1989) 168 CLR 210, 216. Applying a public interest test is a question of fact and degree: Re Queensland Electricity Commission; ex parte Electrical Trades Union of Australia (1987) 72 ALR 1, 5.
In Director of Public Prosecutions v Smith [1991] VicRp 6; [1991] 1 VR 63, 75, the court held:
The public interest is a term embracing matters, among others, of standards of human conduct and of the functioning of government and government instrumentalities tacitly accepted and acknowledged to be for the good order of society and for the well-being of its members. The interest is therefore the interests of the public as distinct from the interest of an individual or individuals.
This tribunal's Appeal Panel pointed out in Commissioner of Police v Toleafoa [1999] NSWADTAP 9, [25] that "The 'public interest' is an inherently broad concept giving the appellant the ability to have regard to a wide range of factors in choosing whether to exercise a discretion adversely to an individual".
It is also well settled that an applicant's personal interest in retaining a licence cannot outweigh the public interest in having full confidence in the professionalism of people involved in the industry (in the following case the security industry): Blisset v Commissioner of Police, New South Wales Police Service [2006] NSWADT 114, [32].
The Appeal Panel explained in Constantin v Commissioner of Police, New South Wales Police Force (GD) [2013] NSWADTAP 16, [33] that "The 'public interest' allows, we consider, for issues going beyond the character of the applicant to be taken into account. These may include concerns in relation to public protection, public safety and public confidence in the administration of the licensing system".
[14]
Order
The decision under review is affirmed. Confidentiality orders as asked.
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
[15]
Amendments
24 February 2016 - Removal of details due to publication restriction
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: 24 February 2016
Parties
Applicant/Plaintiff:
Mielczarek
Respondent/Defendant:
Commissioner of Police, New South Wales Police Force and Commissioner for Fair Trading.
Section 16 provides that:
16 Decision of Chief Executive in relation to licence application
(1) The Chief Executive may, after considering an application for a licence and the determination of the Commissioner under section 19 on the application, grant the licence or refuse to grant the licence.
(2) The Chief Executive may, in such circumstances as the Chief Executive considers appropriate, treat an application for a licence as having been withdrawn.
(3) The Chief Executive must not grant a licence if:
(a) the Chief Executive is satisfied that the application for the licence was not duly made, or
(b) the applicant is a controlled member of a declared organisation, or
Note. Controlled members are prohibited from applying for licences - see section 27 of the Crimes (Criminal Organisations Control) Act 2012.
(c) an adverse security determination has been made by the Commissioner about the applicant.
(4) Without limiting subsection (1), the Chief Executive may refuse to grant an operator licence if the Chief Executive is satisfied that:
(a) a prohibition order under Part 3 of the Public Health Act 2010 in connection with the carrying out of skin penetration procedures is in force in respect of the proposed licensed premises, or
(b) development consent is required under the Environmental Planning and Assessment Act 1979 (or approval under Part 3A or Part 5.1 of that Act is required) to use the proposed licensed premises for the purposes of carrying on the body art tattooing business and such consent or approval has been refused or has not been granted.
(5) The regulations may also provide mandatory or discretionary grounds for refusing the granting of a licence.
(6) A licence confers no right of property and is incapable of being transferred, assigned or mortgaged, charged or otherwise encumbered.
Note. A non-transferable licence is not personal property for the purposes of the Personal Property Securities Act 2009 of the Commonwealth. See the definitions of licence and personal property in section 10 of that Act.
(7) (Repealed)
Section 19 provides as follows:
19 Commissioner to make security determinations about applicants and licensees
(1) If an application for a licence is referred to the Commissioner for investigation under section 14, the Commissioner is to inquire into and determine, and report to the Chief Executive on, either or both of the following:
(a) whether the applicant is a fit and proper person to be granted the licence,
(b) whether it would be contrary to the public interest for the licence to be granted.
(2) The Commissioner may also investigate and determine, whether at the request of the Chief Executive or on the Commissioner's own initiative, either or both of the following and report to the Chief Executive on them:
(a) whether a licensee continues to be a fit and proper person to hold his or her licence,
(b) whether it would be contrary to the public interest for the licensee to continue to hold his or her licence.
(3) For the purpose of making a determination on a matter referred to in subsection (1) or (2), the Commissioner may have regard to any criminal intelligence report or other criminal information held in relation to the applicant or licensee (or a close associate of the applicant or licensee) that:
(a) is relevant to the business or procedures proposed to be carried on or performed, or carried on or performed, under the licence, or
(b) causes the Commissioner to conclude that improper conduct is likely to occur if the applicant were granted the licence or the licensee continued to hold the licence, or
(c) causes the Commissioner not to have confidence that improper conduct will not occur if the applicant were granted the licence or the licensee continued to hold the licence.
Section 20 of the TP Act states:
20 Disclosure of criminal intelligence information
(1) The Commissioner is not, under this or any other Act or law, required to give any reasons for determining a matter under section 19 if the giving of those reasons would disclose the existence or content of any criminal intelligence report or other criminal information as referred to in section 19 (3).
(2) The Chief Executive is not, under this or any other Act or law, required to give any reasons for not granting a licence to (or for suspending or cancelling a licence of) a person on the basis of an adverse security determination made by the Commissioner about the person if the giving of those reasons would disclose any criminal intelligence report or other criminal information as referred to in section 19 (3).
The issue in the present proceedings is thus whether the applicant is a fit and proper person to hold at tattooist licence and whether it is contrary to the public interest for him to hold a tattooist licence under the TP Act. The respondent agreed that the major factor in determining that issue is the applicant's membership of the Rebels OMCG. On the respondents' side, the first respondent had the carriage of the matter.
His customers are from a broad range of backgrounds, some of them needing cosmetic tattooing after surgery. His accounts are methodically kept and his taxation affairs are up-to-date. He has a long-standing interest in cars and motorcycles and has grown his business life around that. Before his property settlement he had five businesses, a leased car yard, another car yard, the two tattoo shops and Camden Automotive. Since the divorce property settlement, his only source of income is from the tattoo shops.
He met Alex Vella and members of the Rebels through his mother's workplace at Leppington, but did not join until he was 36 years old. Before joining the Rebels, he had friends who also enjoyed riding motorcycles. They would plan to go on riding holidays together, but the trips never eventuated as other intending participants would become unavailable. His then wife Dawn suggested he should join the Rebels, as it was a club rule for members to go on the club's organized runs and he had similar interests in custom car building and motorcycles. As a result he joined the club in 1999.
Over the years the Rebel members he was involved with were car and motorcycle enthusiasts. He never involved himself in drug use or any criminal activities of club members. He had always kept his distance from those members who he thought might be involved in criminal activities. As his position was known, no one would approach him with regard to any criminal action. He would sell cars and motorcycles to members, but that was done on a legitimate basis and the sales went through his police books at the car yard. Those books were checked from time to time by the Department of Fair Trading. Over the years he made friends through the club, but it changed as a group. He did not agree with many of the new members who were being brought into it. He had his own small chapter at Bargo, however, with about four members. He would avoid going to the Bringelly clubhouse, except for the monthly compulsory meeting, as he was not interested in the politics.
Over the past two years the police have arrested those who have been committing crimes, and many of those numbers are now in prison. There are now no club meetings. The Bringelly clubhouse is closed and is leased to a trucking company. He asked an officer from the police Raptor strike force about what would happen if he left the club. He was told that it would make no difference, as he would be seen as a close associate.
In any event the club no longer functions. The president, Alex Vella, is no longer in Australia. There are no meetings and no rides. As far as he is concerned the club is finished. It is only a matter of time before there is an announcement that the Rebels no longer exist.
He appreciates that the police have done an excellent job in arresting those members who were involved in crime. His only concern in announcing that he is no longer a member is what happened to a former member who was a chapter president. It was reported that after he resigned, he was kidnapped, beaten and lacerated by some of the newer members. He is concerned that this could happen to him or a member of his family if he makes a formal announcement of resignation. What the club had become is not the club that he joined. It evolved and he does not like the way it evolved.
During his business career he has been involved with charity work, donating substantial amounts regularly to Sydney Children's Hospital, Kids of Macarthur, the Fire Brigade, Bandage Bear at the Children's Hospital and the Sisters of Charity. He also helped a boy who was in a wheelchair following a motorcycle accident, with his parents' permission, and remains in touch with him.
Following prostate cancer surgery, he has enrolled with the Cancer Council of Australia to do counselling for men who have prostate cancer. The training for that is to commence in March 2016. His only source of income is from the tattoo shops. Dawn is moving out of the business, as the applicant is keeping the shops apart from the property settlement. If she leaves, he would have to close the shops, which would mean a loss of employment for those who work in them.
The applicant's affidavit of 27 October 2015 supplements the earlier affidavit. It relates to the seizure of his firearms following the lapse of his firearms licence. He said he did not receive the renewal notice, and his failure to renew his licence was pure oversight on his part. When the police brought it to his attention, he immediately renewed his licence. As regards his firearms safe, it was affixed to a brick wall with two dynabolts. The police who inspected it suggested that it should have another two bolts, which he affixed the next day. Since then his safe and firearms have been inspected several times by police and no further compliance issues have arisen.
The applicant's affidavit of 16 October 2015 also supplements the 23 September affidavit. It attaches a copy of the Skin Penetration Audit Tool completed by a DFT inspector. He went on to say that when he had joined the Rebels, it was the club that his friends were members of. While there are now many other clubs, that was not the case at the time. He is aware that the Ulysses Motorcycle Club is known more as a recreational club, but you have to be over 50 to join, so he was not eligible to be a member at the time.
He referred to some oral evidence he had given at the stay hearing about the growing number of backyard tattooists, in which he testified about a 14 year-old girl whose parents contacted his business with a request that they rectify her daughter's tattoo. Because of her age, they could not fix the tattoo by any further tattooing. He is aware that the person who originally tattooed her has done further work on her. He is deeply concerned about the amount of illegal tattooing that is occurring in south-west Sydney, down to Bowral. Currently Picton and Bowral Cosmetic Tattooing is the only fully licensed parlour between Liverpool and Goulburn. He is aware of numerous illegal operators within a 5 km radius of his stores.
In his oral evidence at the hearing on 4 November 2015, the applicant reiterated those points and tendered some certificates attesting to his financial support for the Police News (exhibit A2), and a business card from what he said was a mobile tattoo parlour operating illegally in his area (exhibit A3).
He emphasized that the Rebels had been dissolved following the deportation of Alex Vella. The Rebels had begun small, but the applicant disagreed with the way Vella had grown the organization. On arriving on a flight at San Francisco recently, he had found that his United States visa had been cancelled following a report from the New South Wales police stating that he was a member of the Rebels. This he found vexing, as he used his visa in connection with his business activities in the automotive and motorcycle industries, and the loss of his visa was a result of the way in which Vella had developed the club.
There had been no club meetings for sixteen months - there is no president, there are no runs and no meetings. The police had done a good job; there had been attempts by some members to arrange meetings, but the police had blocked them. A minority of members had wrecked the Rebels, and it was good that it had been cleaned up. He himself had never held a senior rank. He had spoken to a Constable David …. (he could not remember his surname) from the Raptor strike force about attempting to resign, as he wanted to obtain an answer from the police. The officer said that they didn't care if he resigned, as no biker would ever get a tattoo licence. From the police point of view there was no benefit in resigning. Shortly afterwards, his licence was refused. He had experienced difficulty in obtaining employment, as the police had spoken to prospective employers.
He was also a member of the Beatniks Car Club. To join, a prospective member had to be an artist and the owner of an old car from the 1960s or earlier.
He had been a member of the Southern Highlands chapter of the Rebels, which had between two and four members. (It was located at Bargo and was sometimes referred to as the Bargo chapter.) They only accepted applicants who were working, for otherwise they were likely to attract adverse police attention. Meetings were held monthly. There had never been any action taken against the applicant's shops. He had helped the police with CCTV footage and had also produced tattoos for some members of the force.
Most of his workers are young people who have been on the streets. They have nothing except their art, and he endeavours to turn it to their benefit. He requires them to undertake a fine arts course at Campbelltown TAFE.
Currently he has no income and is unable to work. His son and his ex-wife are operating the shops, but his ex-wife wants to quit. He will face problems if he is unable to obtain a licence.
He had been quite successful in his used car business, but it would not be practicable to return to it. GST and Internet selling had inflicted a large impact. "Backyarders" in the industry attend car auctions and buy high-mileage cars, then rewind the odometer. They pay no GST. He is unable to return to customizing either, because of arthritis in his hands.
In cross-examination, he said that his arthritis was no problem in tattooing, because the handpiece is held loosely, and not squeezed. Tattooing is all he is able to do.
Referring to the Skin Penetration Audit Tool completed by the inspector, he said he had telephoned the Health Department and asked them to visit the Picton shop. The inspector had asked him a range of questions and then completed the form there.
There had been no resolution in writing to dissolve the Rebels. After Vella left, the leadership was finished and the police completed the process by dealing with individuals. Ron Brown had been the vice-president, but was walking away from the organization. There was no secretary or other office-holder, and nobody to talk to. It had been Vella's show. Vella had been a friend of the applicant's parents.
Club colours are the picture on the back of members' jackets. The Rebels have the Confederate flag as their colours. His own jacket is that of a life member, for the Southern Highlands district. He has ridden his motorcycle only once in the last fourteen months. Members must attend the national run once a year. The last Rebel run was over two years ago, and he had ridden all the way around Australia with it, taking 4½ weeks. He enjoyed the camaraderie of the friends in the club that he had joined with. He had no association with the Picton chapter of the Rebels, though his shop was near their clubhouse. He works every day in the tattoo shops.
He joined the Rebels as a nominee, or "nom", in 1998 and had held that status for 8 months. All he was required to do was serve drinks, but he did not do it much. He also drove members home if they had been drinking. There is no compulsion on noms -- they do not have to comply if a request is unreasonable. A nom can become a member if the chapter so decides. It depends on a consensus, but there is not always a vote. He and a friend named Errol had started the Southern Highlands chapter, which they joined. It was unstructured and had no president, and they preferred to keep it small. There was no sergeant-at-arms to maintain order. The Rebels did have a national sergeant, but he died and was not replaced. The structure simply broke down.
The last meeting took place when the consorting laws came into force over two years ago. They had brought in a lawyer to give them a briefing on the new laws, and the meeting was attended by some 300 members. It was a full-time job to run the New South Wales branch. No one wants to go back to the Vella regime, and the consorting laws have worked. He was a member for 17 years and became a life member after 10 years. It is possible to leave at any time with no consequences, especially if a member had done no wrong. He had tried to make the club a better place, and the police had cleared up the undesirable elements. There was no control and the new laws had worked. It was only the New South Wales branch of the Rebels that had been dissolved, as other States did not have similar laws, though there were new laws coming in Queensland. He has concerns about those who are joining in other States.
Attendance at the monthly meetings was compulsory. They would discuss forthcoming runs, parties and similar matters. The Bringelly clubhouse was dissolved by the police. The consorting laws keep those with criminal records away, and the police bend the rules in order to keep others away.
There would be no problem if others set up competing tattoo businesses, and he runs the biggest shop in Australia. The shops are not associated with the Rebels - their colours are black and yellow, not the red, white and blue of the Rebels. It would not be possible to stage a takeover of a rival shop because of the paperwork needed.
He works every day in the tattoo shops. There are 20 employees together with himself. The tattooists are mostly contractors; he and his ex-wife are directors.
Asked about his statement in his 23 September affidavit relating to his apprehension as to what might happen if he resigned, he replied that there is no problem in leaving, but new people could join the club who might behave in ways he could not predict. What he had heard was only hearsay. It was only a minority who had given the Rebels their reputation. Some of those who had joined did not own a motorcycle but lied about it. He had no personal knowledge of any crime involving the Rebels. He did not have to tell people that he was not interested in drugs or criminal activities; he believes in karma. His concerns were his car yards and other businesses. His standing as a worker with a clean record was known. He does not wear his club colours except on rides, and no one is afraid of him.
He had heard about the shootout at the Black Market Café, but it was before his time. He only knows what he learned through the media, as he was living at Bargo and was isolated. From what he knew it was an isolated episode involving guys on drugs and had nothing to do with him. He had joined for the camaraderie. He did not know about conflicts involving the Rebels, apart from what he saw. He had settled a dispute with the Bandidos on Christmas Day seven or eight years ago. No one knew what the dispute was really about. He knew nothing about Paul Summers, as there were 500 members in Australia. "The police only meet the bad guys", he said.
He had no fear of retribution if he opposed the Rebels' interests. The four tattoo businesses he had sent out of business through open competition were Rebels - P Ziller, M Saph, Brett ... and R Isadoris. It was simply a matter of better business management. None of his artists are bikers.
Ms Rao then asked the applicant about part E of his tattooist licence application form, which calls for particulars of previous, existing or impending employment as a body art tattooist. He had ticked the box stating "I have no previous, current or pending employment as a body art tattooist". He said he had missed a few things in the form and had had to re-do it. It was put to him that he made no reference to his prior experience as a tattoo artist because he knew he would have trouble getting a licence if he disclosed it. He replied that he had not expected to have any difficulty because he had no criminal record. Asked if he had chosen not to mention the Bowral and Picton shops, he replied in the negative, saying that the police knew about his work there. He had, however, never been an employee, and that was why he had completed the form in that way.
He was then referred to para 22 of his affidavit of 23 September and asked if he knew the person who had been attacked. He said he knew of him and of the attack and had heard that one man, a Rebel, had been arrested. He had been somewhat concerned about the matter. Again asked about the shooting at the Black Market Café and the two perpetrators, Constantine Georgiou and Bruce Harrison, who had been convicted of the murder, he said he did not really know Georgiou, but had met Harrison once in connection with some panel beating work 20 or 30 years ago. Harrison was not a Rebel at that time, being involved with Triumph motorcycles.
The tattoo shop at Tahmoor that had failed was run by Rebels. The applicant knew nothing about how they ran their business and he had done nothing to disrupt it. Their tattooing was terrible -- he had repaired one tattoo they had performed on a woman. The new laws have driven out the bad artists, but they are also driving shops out as well.
Damien Wallace had opened his business "Such is Leather" in the shop next to Picton Tattoos the day before the drive-by. Both shops are in the same building (see exhibit R5, screenshots from Google Earth, the pictures having been taken before Such is Leather opened when the premises were occupied by a different business). The building is on the corner of Argyle Street (the main street of Picton) and Barker's Lodge Road. Picton Tattoos faces onto Barker's Lodge Road but has one window facing onto Argyle Street. Such is Leather faced onto Argyle Street, its window being about 4 m away from that of Picton Tattoos. The only bullets that entered Picton Tattoos came through the window facing Argyle Street.
On the evening of 7 November, Darren Wallace had a party to celebrate the opening of the shop. The applicant did not attend. He was at home on 8 November when he received a call about the shooting at the shops. Picton Tattoos had been operating in that location for about eight years without incident. He stated that the majority of the bullets were fired into Such is Leather from Argyle Street and not from Barker's Lodge Road. He believes that Such is Leather was the target of the shooting and not Picton Tattoos. He had not been approached by the police in relation to their investigation and they had not asked him for a statement or questioned him about the incident.
In relation to the shooting of Wallace by Daunibau on 8 December, he deposed that he had no knowledge of why Daunibau had murdered Wallace and committed suicide. He had never met Daunibau, and all he knew was what he had read and heard in the news, that he was an ex-soldier who served in Afghanistan with the Australian army, though it had been reported that he was suffering from PTSD. The applicant thought the two incidents appeared to be related.
He did not attend the funeral for either man, nor did he attend any wakes. He had not attended a Rebels Club meeting for about eighteen months to two years, which was when the new consorting laws came into effect. He had not been employed since he gave evidence at the hearing on 4 November.
In oral evidence in chief he said that he currently had no income at all, which made him feel depressed and drained. His lack of cash flow was causing problems in relation to his divorce property settlement. He had spoken to a gymnasium proprietor, Maurice Khoury, who had known Daunibau as a customer at his gymnasium. When he was off his medication, his personality was different. He said he had "died over there" and that there were a number of suicides in his unit. He had joined the Rebels for the camaraderie.
Some days after the drive-by, police had told the applicant that the CCTV footage showed that the car from which the shots were fired stopped and started again. The applicant believed that the acceleration had pushed the shooter's arm backwards and that his premises had not been an intended target of the attack.
In cross-examination he said he did not know where the bullets fired into the leather shop had struck. Wallace had been a Rebel, but he did not know for how long or where he came from. He had not discussed the murder with anyone or asked any questions about it. But the police had told him that they would treat him as a Rebels member in any event.
He had not attended the Such is Leather opening party, as he had not been invited and was not part of Wallace's circle. He did not know if any Picton Tattoos staff had been invited. Channel 7 and other media had contacted him after the murder, but he regarded their reports as untrue. After the drive-by, his legal representative had telephoned to tell him about it.
It was put to him that it was unlikely that he had met Wallace only twice, to which he replied that he made an effort to stay away from members of the club, especially when it was going downhill. He had never seen Wallace in club colours. He did not know the motive for the murder, and did not want to know, he was not interested. He had not spoken to any current members about it. He had not attended the funerals or wakes, as the consorting laws prevent it. He did not think that the drive-by could have resulted from his Rebels nexus, as he did not know the man [presumably Wallace]. It was put to him that when the police said he was "off the hook," they did not mean that there was no connection between the shooting of his premises and his Rebels membership, but only that he was not the target of the police inquiry. He replied that at first the police had said Picton Tattoos was the target, but Such is Leather had held a big opening the day before.
It was then put to him that the Rebels New South Wales branch still existed and that members were active. The applicant replied that "As we knew it, it's finished", but "Some guys are still there". He did not agree that their continued existence represented a risk of violence. There was violence every day, and motorcycle clubs commit only 0.1 percent of crime in Australia, as compared with 0.4 percent by police. If he had really been targeted by the Rebels, he "wouldn't be here".
Although he had been a co-founder with Errol of the Southern Highlands (Bargo) chapter, he had never been its president except for a short period after all the other members had left. The clubhouse had been located in a small factory building and there had never been any incident connected with the chapter.
The applicant's ex-wife now wishes to leave the businesses. At present she has the operator's licence. If these parlours ceased to operate it, it would leave a huge void that would most likely be filled by illegal backyard operators. Consequently there is no public interest in refusing the applicant a licence, indeed on the contrary there is a public interest in their remaining open.
The TP Act does not bar a person from holding a tattooist licence solely on the ground of motorcycle club membership. If that had been the Legislature's intention, it could have been stated in the Act. The provisions in s 34 of the Interpretation Act 1987 authorizing courts and tribunals to have regard to extrinsic material in the interpretation of legislation do not permit the courts to ignore the language of the enactment and the aim as expressed in parliamentary speeches cannot be substituted for the precise terms of the Bill as enacted, Mr Doyle submitted, citing R v Bolton; ex parte Beane (1987) 162 CLR 514 and similar cases. The meaning of s 19 of the TP Act is clear, however, and extrinsic material would not assist. The TP Act has no principles and objects clause and the speeches in Parliament relating to the members of motorcycle clubs cannot be imported into the Act.
In Smith v Commissioner of Police, New South Wales Police Force and New South Wales Fair Trading [2014] NSWCATAD 184, [20], the tribunal stated that, "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".
While the respondent argues that the Rebels pose a nationally significant threat, there is no suggestion that the applicant poses any threat at all. He is involved in the Rebels because of his passion for motorcycles and motor vehicles. He has no criminal record other than the three traffic matters, is now 53 years of age and has never changed his telephone number. If he were involved in criminal activities, it would be remarkable if a prominent businessman with one telephone number did not come to the attention of police. It should also be considered that the applicant, as a member of the Rebels, would be subject to greater scrutiny than the average citizen. Notwithstanding the assessment officer's comments about the production of amphetamine-type stimulants, there is no evidence that the applicant is aware of, supports or is involved in such conduct. The serious incident at Sydney Airport did not involve the Rebels and there is no suggestion that the applicant played any part in, or supports such conduct. Indeed, in his evidence the applicant congratulated the police for arresting members who had committed crimes. There is no order of the Supreme Court under the Crimes (Criminal Organisations Control) Act 2012 against the Rebels or the applicant.
The applicant gave evidence that he disagreed with the expansion of the club and there is nothing to indicate that he agrees with any unlawful activities by other chapters, or that he uses violence or condones violence by members. He is passionate about the industry and maintaining high standards in it, and there is no evidence that he has engaged in any conduct to mark his "territory". His two premises have been inspected regularly by the authorities and there have been no problems. They are a place of business and not a hangout for club members. No colours are worn by club members if they wish to have a tattoo. References from surrounding businesses show that the parlours add to the business in the area and there is no evidence of complaints being made against them. He has held a firearms licence and a motor vehicle trader's licence over a long period without incident. The oversight in renewing his firearms licence and the direction to place two additional dynabolts in his firearms safe mounting could not be characterized as "a wilful disregard for regulatory schemes" as the assessment officer did.
If he were not a member of the Rebels, there would be no problem about the issuance of his licence. While membership of the Rebels could be a relevant factor in the decision, it is not determinative factor under the TP Act. In Dyas v Director-General, Fair Trading and Commissioner of Police, New South Wales Police Force [2014] NSWCATAD 223, the applicant had a criminal history dating from 1997 to 2011, including assault occasioning actual bodily harm, demanding property with intent to steal, breaking and entering and stealing, and drug possession. The tribunal accepted, however, that he had rehabilitated himself and granted him a tattooist licence. The applicant in this case has a far stronger case than Dyas had.
At the hearing the applicant reiterated those points and said that the applicant is a good citizen who cooperates with the health authorities and the police. The assessing officer's conclusion that the applicant displayed "a wilful disregard for regulatory schemes" was a harsh comment that suggested that the officer had a closed mind and was never going to approve the application.
There had been no incidents in the two parlours and the applicant kept his club interests separate from the businesses. The Act did not bar a club member per se and the applicant would have been granted a licence if he had not been Rebel member. There was no evidence that he held any kind of stranglehold over tattoo parlour operations in the Picton and Bowral area and there was nothing to prevent new shops from opening.
As regards the public interest, there was no evidence that he held high rank in the Rebels. He was a friend of Alex Vella, but was glad that Vella no longer had any influence within the club. It was in the public interest that there should be a well-conducted tattoo parlour in the area. His failure to disclose his links with the Picton and Campbelltown shops in his application was the result of confusion about the form. He gave correct details but had misunderstood what was required. He had never held an office within the Rebels, but had qualifications that could appeal to Vella, such as his lack of a criminal record, and his being a personal friend of the family.
The respondents also referred to the speeches and Parliamentary debates quoted in the ASD, in particular where Mr Gallacher MLA had explained, "When tattoo parlours are no longer controlled by bikies, they will not be so closely associated with serious acts of violence, such as shootings and fire-bombings. Bikers will no longer feel that they 'own' the industry - that they have the right to stand over, and extort, owners of tattoo businesses who are unaffiliated with outlaw motorcycle gangs". The applicant's submission opposing the use of extrinsic materials to discern the statutory purpose of eradicating OMCGs from the industry is based on a restrictive reading of s 34 of the Interpretation Act 1987, a position that is contradicted by Zahra and Smith. On the contrary, both the concepts of "fitness and propriety" and "public interest" are paradigm examples of broad concepts that can and should be informed by a particular statutory context and purpose. The extrinsic materials provide important context and content to the meaning of such expressions. The common law also permits recourse to extrinsic materials to identify the "mischief" to which the statute is directed: CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384, 634.
The applicant's point that the TP Act does not disqualify an applicant simply because he is a member of the motorcycle club misses the point of the Act. In the circumstances of this legislation, motorcycle club membership may be a very strong indicator of lack of fitness and propriety or harm to the public interest, or both. It could be determinative of those questions. While the Rebels OMCG has not been made a declared organization under the Crimes (Criminal Organisations Control) Act 2012, the Commissioner, and the tribunal on review, must be entitled to take into account all matters that may bear on the questions of fitness and propriety, and public interest. The tribunal is not prevented from reaching the view that membership of an organization may weigh heavily, or decisively, on the questions of public interest and fitness and propriety. The tribunal's consideration of these matters cannot be artificially constrained. In the context of the TP Act, unfitness can be indicated by disregard for the law, including criminal conduct and antisocial behaviour and involvement with organizations that are known to have an adverse impact on the tattoo industry, such as OMCGs.
In making a report under s 19(3), the Commissioner may have regard to relevant criminal intelligence, and evidence of that kind is also admissible in the tribunal. Section 27(4) evinces an intention that criminal information must not be disclosed without the Commissioner's agreement. The Commissioner therefore seeks orders under ss 27(4)(b), 49(2) and 64 of the Civil and Administrative Tribunal Act 2013 (CAT Act).
The public interest considerations weighing against the applicant being granted a licence are that he is a powerful, high-ranking member of the Rebels, he joined the Rebels in 1999 and has been a member for at least 17 years, remaining a member to this day, is a close friend of the Rebels' president, Alex Vella, and the Rebels are an established criminal organization in Australia. The applicant argues that the public interest would be better served by granting him a licence because as Mrs Mielczarek wishes to leave the industry, if the applicant is unable to take over from her, illegal backyard operations may fill the void if in the long run Picton and Bowral Cosmetic Tattoos are forced to close. But the review application relates to a tattooist licence only, not an operator licence. Secondly, far from creating a backyard industry in the long run, it is more likely that new legitimate tattoo parlours would open up, where there is an identified gap in the market.
The applicant refers to various matters such as his charitable works and that the tattoo parlours are run in a professional and hygienic manner, but such matters are essentially peripheral and those relating to the running of the parlour are better directed to an application for an operator's licence.
In her oral submissions at the hearing, Ms Rao reiterated those points and stressed that Parliament's use of protean terms such as "public interest" and "fit and proper" invites the tribunal to make an evaluative judgment and consider context, including the second reading speech so far as it is relevant to the Rebels. Fitness and propriety and the public interest must take into account the applicant's connections with organizations, and the Rebels give grounds for concern.
The applicant's evidence must be evaluated with caution. He said he joined the Rebels simply for the camaraderie and that no coercion was ever involved, but also said that he feared for his safety were he to resign. There was a degree of ambivalence present. He said the Rebels had been dissolved but also said that he disliked the new members (counsel said that the respondent does not admit that the New South Wales Rebels branch has been dissolved).
The Crimes Act s 93X consorting provisions could be effective only if there were convicted offenders in the club. The Rebels were not a declared organization, and indeed no organizations had been declared under the criminal organizations legislation legislation. The applicant's relationship with Vella, the Rebels' founder, suggested that he was a favoured member. He sought to distance himself from any criminal activity by club members but was aware before he joined that criminal violence had occurred. That was indicative of his state of mind. There were inconsistencies in his evidence in relation to the leaving process and on whether he was approached to join the club or did so at his wife's suggestion.
He claimed to be concerned about the rise of backyard operations, but the lack of legitimate independent parlours might have been caused by the inability of independents to enter the industry openly. Dyas v Director-General Fair Trading [2014] NSWCATAD 223 was different because the applicant in that case had a long criminal record but had subsequently been rehabilitated. The present case was closer to Zahra. The applicant when completing the application form had failed to disclose his links with the Picton and Campbelltown salons, despite his prominent role in the business of which his wife was a director. As the application concerns a tattooist licence, not an operator licence, the shops could continue in business if the respondent's refusal of a licence were affirmed.
In further open submissions on 28 January 2016, Ms Rao pointed out that there had been two shootings involving Rebels and apparently a conflict between two members. This showed that there was a risk of violence and that the club was still a danger to the public. As the investigation into Wallace's death was still proceeding, the police had no theory about causation and motive. It is not known at present whether the target of the drive-by was Such is Leather, as three shots were fired into both shops. But there is a common link to the Rebels.
The Briginshaw standard was inapplicable as it was not alleged that the applicant was involved in the shootings and no suggestion that he had engaged in any wrongdoing. The tribunal's task was to make an evaluative judgment based on all the evidence. The standard of proof in licensing cases of this nature was the balance of probabilities. Deakin was not relevant as it emerged from a different stream of authority and related to the applicant's criminal record and his possible rehabilitation. In the present case the issue is public interest on the basis of OMCG membership, and Zahra was the relevant authority.
The article from the January 10 Sun-Herald (exhibit A7) showed that it was an exaggeration to say that the Rebels New South Wales branch had been dissolved. A detective superintendent was quoted as saying that there was disenchantment with the club, giving rise to a greater number of "patch-outs" or resignations, and conflicts stemming from members not meeting the rules for leaving the gang. There was a leadership vacuum, general disarray and a lack of discipline, leading to the cancellation of the national run and a lack of visibility because of the consorting laws. Ms Rao submitted that all this only made the gang more dangerous.
While the Director-General in some circumstances has a discretion as to whether to grant a licence, a licence must not be granted if the Commissioner makes an adverse security determination in relation to the applicant: s 16(3)(c). A licence once granted remains in force for three years and may not be renewed: s 17.
As was noted above, under s 27(1)(a) the tribunal may review the Director-General's refusal or failure to grant a licence, but the tribunal is not expressly granted jurisdiction to review any report or determination made by the Commissioner. It is not, however, prevented from determining whether the Director-General made the correct and preferable decision merely because of the Commissioner's determination. Unlike the Director-General, therefore, the tribunal has a discretion to grant a licence notwithstanding an adverse security determination made by the Commissioner. Although the Commissioner's report or security determination is not under review, the tribunal may nevertheless decide to grant a licence despite the ASD.
In the context of the TP Act, unfitness can be indicated by criminal associations, habitual recidivism, formal or informal links with OMCGs, failure to implement proper tattooing practices and general disregard for the law. Also relevant in this case are Hennessy DP's comments in Saadieh v Director-General, Department of Transport [1999] NSWADT 68, [17]. In the context of a taxi licence, the tribunal identified factors relevant to fitness and propriety as including:
the nature, seriousness and frequency of any criminal offences for which the applicant has been arrested or convicted;
the applicant's reputation in the community; and
the likelihood that the applicant will reoffend, be the subject of further complaints or commit further offences.
Assessing an applicant's fitness and propriety is thus an evaluative process that gives the decision-maker "wide scope for judgment and allow[s] broad bases for rejection" (Commissioner for ACT Revenue v Alphaone Pty Ltd (1994) 49 FCR 576, 589), based on both the open and the confidential evidence.
In the present case it is not suggested that the applicant lacks the necessary knowledge and ability to qualify him for a tattooist licence. The respondents' case on fitness and propriety focuses on the third element, personal integrity and rectitude, particularly in light of his membership of the Rebels.
It is not disputed that the applicant joined the Rebels OMCG in 1999 at the age of 36 and knew at that time that Rebels members had been involved in serious crimes of violence. He remains a member to this day. He acknowledges that the Rebels New South Wales branch still exists, although he maintains that it is "finished" as the organization that he had joined. He had made the acquaintance of the Rebels' founder, Alex Vella, through his mother's workplace and was on friendly terms with him. He has three PCA convictions, the most recent being 12 years ago, but otherwise no criminal record. He holds a firearms licence, but in June 2012 police seized his firearms as he had failed to renew his licence. They were returned to him after he renewed his licence, but police required him to affix two additional dynabolts to his firearms safe. No charges were laid in relation to those events.
Relying on Smith and Zahra, the respondents invoke the parliamentary debates as support for the proposition that membership of an OMCG such as the Rebels is a very strong indicator of lack of fitness and propriety and may be determinative of that question. The applicant replies that the TP Act does not preclude a person from holding a tattooist licence merely by reason of membership of an OMCG and that, following ex parte Beane, the second reading speech in Parliament cannot be used to ignore the language of the legislation or to substitute the parliamentary speeches for the precise terms of the Bill as enacted.
In my view those contentions are not necessarily mutually inconsistent. As Montgomery SM said in Smith (at [19]), in the absence of a "principles and objects" section in the Act, the tribunal may have regard to the minister's speech to ascertain the purpose of the Act, the mischief that the statute was designed to cure, in this case the stranglehold that OMCGs had on the New South Wales tattoo industry. That has been the position at common law since Heydon's Case in 1584 ((1584) 3 Co Rep 7a, 7b, 76 ER 637), and the High Court made it clear in CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384, 634 that in modern statutory interpretation practice regard may be had to extrinsic materials to discern the mischief that the statute was intended to remedy at the outset, not merely at some later stage when ambiguity might be thought to arise. But that is far from saying that extrinsic material may be used to contradict the plain language that the Legislature has used or to insert some other language that it has not used.
On the basis of the open and confidential evidence, there is no doubt that the Rebels OMCG is considered, both internationally and within Australia, to be an organized crime group. That is apparent from the s 19 assessment determination, including the redacted version that has been supplied to the applicant, the unredacted version given to the tribunal and the respondent's confidential evidence. Both versions of the s 19 determination note the tribunal's comment in Zahra at [52] that "the Rebels are an organised crime network and … the club poses a significant threat to the public interest". It may also be noted that organized groups with violent propensities that wear distinctive uniforms or emblems have been an object of legislative concern since the Statutes of Livery of 1377 to 1468. See also Liquor Act 1992 (Qld), ss 173EA to 173AD, declaring OMCG colours to be prohibited items that must not be worn on licensed premises.
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.
The respondents rely on Smith and Zahra, recent tribunal decisions in which the reviewable decisions were affirmed. The applicant in Smith was not an OMCG member but had a long history of illegal drug use, including two convictions for illegal drug possession. He was also facing pending charges for serious indictable drug supply offences. He had taken steps to turn his life around, but Montgomery SM thought it was too soon to be sure that he was a fit and proper person to hold the licence and that it was not contrary to the public interest for him to do so. He agreed with the Commissioner that the applicant might be able to demonstrate by subsequent conduct that he is a person of good character, but thought that a drug-free period of at least a year would need to have expired before he could be said to have demonstrated that.
In Zahra, the applicant was a continuing Rebel member with a criminal record for malicious wounding, selling liquor without a licence, and possession of a prohibited plant. The Commissioner had contended that the applicant had engaged in criminal activities on behalf of the Rebels (at [55]), and the tribunal appeared to accept that. Despite his record, the tribunal intimated that he could or would qualify for a licence if he fully dissociated himself from the Rebels (at [69]).
In the present case the applicant has no non-traffic criminal history at all and there is no cogent open or confidential evidence personally implicating him in criminal activity. The assessing officer conceded that this factor "weighed heavily in the applicant's favour".
The applicant's three PCA contraventions are not minor matters, but the most recent was 12 years ago and he has had no other convictions or charges of any kind. He said his failure to renew his firearms licence was the result of an oversight as he did not receive the renewal notice. Given his multiple business interests in various locations, it is possible that if a renewal notice was sent to him, it could have been mislaid or overlooked without gross negligence on his part. In any event no charges were laid and his firearms were returned to him after he renewed his licence.
The respondents contended that his evidence was unsatisfactory. At one point he had said that he was invited to join the Rebels, but he also testified that his wife had encouraged him to join. Both versions could be true, however. He said that he had joined for the camaraderie and because his own attempts to organize rides with others came to nothing when intending participants withdrew for various reasons, but he also expressed concerns about what might happen to him if he decided to leave the club. His explanation was that normally he would have been free to resign, but some of the newer members, of whom he disapproved, could take it upon themselves to punish him, as they had at least one other departing member. That could also be true, as at several points in his evidence he expressed disagreement with the manner in which Alex Vella had developed the club and the class of person he had admitted to membership, including some who did not even own a motorcycle but lied about it and used the club purely as a base for drug dealing. Nor was his disapproval necessarily inconsistent with his being on friendly terms with Vella in other respects over a period of years. Again, the respondent pointed out, there was ambivalence in his assertion that the New South Wales Rebels branch had been dissolved, while also said he disliked the new members. But he also stated that there had been no formal announcement of dissolution (though he expected there would be one), but that the branch was "finished" for practical purposes.
The respondents pointed out that in his licence application (exhibit R1, tab 1) he had failed to mention that he had previously worked as a tattooist, at the Picton and Campbelltown shops. His explanation was that the question asked if he had been "employed" as a tattooist, and he had never been an employee working in a tattoo shop. In any event he had missed a few things in the form and had had to re-do it. He denied that he had omitted referring to that connection because he would have had difficulty obtaining a licence, saying that he had not expected any difficulty because he had no criminal record. Further, the police knew of his role in the Picton and Campbelltown establishments. While his reply does elicit certain reservations, it could be true and his written notation was not technically false. I do not think the incident shows an intent to deceive.
As against the respondents' open case on this point was the applicant's uncontradicted evidence that his shops had passed all police and health inspections and that he had cooperated with police investigations of incidents occurring at the hotels opposite his premises, including by supplying police with his CCTV footage. Several times he expressed strong approval of police efforts to bring to book the criminal elements in the New South Wales branch. Several police were customers of his tattoo shops.
In other evidence he said he made a practice of avoiding contact with members who he suspected of being involved with drugs and crime and did not attend the Bringelly clubhouse but remained with his small Southern Highlands chapter of between two and four members, including himself. He had also broken his contacts with the Picton chapter because he disapproved of some of the members who had been admitted.
He believed he was recognized as a member who wanted nothing to do with criminal activities and for that reason had been invited to help settle a long-running dispute between the Rebels and the Bandidos OMCGs. He had never changed his telephone number, except by adding a "9" when Telstra altered all numbers in that way.
The respondents portrayed these actions as being "attempts to distance himself" from the Rebels' criminal activities and, implicitly, as evidence in themselves that he was not a fit and proper person. But I do not think that distancing himself in that way was necessarily for a nefarious purpose. His contention that he sought to participate in the camaraderie of the club without becoming entangled in the criminal activities of what he regarded as a "small minority" is plausible, especially for someone who was at the time heavily involved in the automotive industry, and is consistent with his other conduct. That does not, of course, alter the fact that his mere membership of the Rebels was likely to bring him under adverse notice and stands as a weighty factor against his case.
The applicant relied on 15 highly supportive character references, mainly from other business people in the area, that were tendered as exhibit A2 in the stay proceedings before Montgomery SM. Only three of them refer to his Rebels links, even obliquely, but one of those states that everyone knows about them. While that is possibly true in a small community, without explicit acknowledgement that the referee is aware of at least the general nature of the proceedings and the reason why the applicant seeks such expressions of support, they cannot be given substantial weight: see Sawires v Commissioner of Police, New South Wales Police Force [2010] NSWADT 4, [49] - [53].
The applicant gave uncontradicted evidence of his extensive involvement with charitable works, his employment of 20 staff, his training of young people who might otherwise have poor prospects in life, and his ban on the employment of OMCG members and on the wearing of OMCG colours on the premises. The respondents submitted that those matters were only of peripheral significance and would mainly be relevant to an application for an operator licence, not a tattooist licence. Nevertheless, they do cast some light on fitness and propriety, as they combine with other evidence to depict a pattern of predominantly positive individual conduct. It is also necessary, however, to evaluate the respondents' confidential evidence on this point.
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In light of all the evidence, I conclude that the applicant has established that, notwithstanding his membership of the Rebels OMCG, he is a fit and proper person to hold a tattooist licence.
Also relevant to the public interest is the fact that occupational regulatory schemes such as the TP Act not only directly protect the public from harm, but also help to preserve public confidence in the regulated activity and its members: Health Care Complaints Commission v Do [2014] NSWCA 307, [34] - [39]; Kirbach v Health Care Complaints Commission (No. 2) [2015] NSWCATAD 234, [39] - [40], [45]. The tribunal should place itself in the position of a member of the public knowing of the applicant's associations or record, and consider whether that person would object to having the applicant perform the relevant services: Naziry v Director-General, Ministry of Transport [2004] NSWADT 40, [55].
The first fact relevant to the public interest is that the applicant is a senior member (whether or not he has ever held a senior office) of an organization that has a long history of involvement in violent crime. He is a long-standing friend of Alex Vella, the founder of the Rebels, although he appears not to approve of the way in which Vella administered and expanded the club. Vella is unable to return to Australia, as he would not be allowed entry, but reportedly still has an input into the club's management, through meetings in Malta with his son Damien Vella. There is no evidence to suggest that the applicant is still in contact with him.
It does not appear from the evidence that the applicant has held a senior office in the Rebels New South Wales branch. He was a co-founder of the Southern Highlands chapter at Bargo, but the chapter seems to have lacked a formal structure and, initially at least, had no president and never had a sergeant-at-arms. It never had more than four members, much of the time two, and for a period only one, during which time the applicant may have been regarded as a de facto president of the chapter. To be the president of such a modestly-sized branch could hardly be regarded as holding a senior office in the organization. At the same time, the applicant has enjoyed a position of prominence by virtue of his standing as a successful businessman and his known avoidance of criminal activity. His lack of a criminal record helped to make him a suitable person to conduct liaison with the police over club rides.
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The applicant submitted that if Picton Tattoos had been the target of the shooting, the bullets would have been fired at the shop's Barker's Lodge Road frontage, which is larger. But as Argyle Street is the main street of Picton, an attack on that frontage would be more prominent and would probably have a greater psychological and symbolic impact. It thus seems likely that the premises were the primary target because the applicant is the public face of Picton Tattoos and is known to be a senior Rebel. On that basis his continuing work as a tattooist is likely to perpetuate the threat to public order and tranquillity demonstrated by the Picton episode.
While there is no evidence to suggest that the applicant was in any way personally involved in the murder of Wallace, that crime further underlines the continuing danger presented by the Rebels OMCG, notwithstanding that it is in disarray in New South Wales and the applicant considers it for practical purposes to be "finished". 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.
His argument that if his licence is not granted, his businesses' place will be taken by "backyard" operators who do not comply with health requirements or other regulatory standards is not a strong one, as this application is for a tattooist licence, not an operator's licence. Further, although there is no evidence to suggest that he has used violence or other unlawful means to deter new entry, his identification as a prominent Rebel in an area regarded as Rebel-held territory may be a deterrent to the establishment of new and independent tattoo parlours, as potential entrants would be aware of [Not for publication] the Rebel-connected Picton shootings. That deterrent factor constitutes a lessening of competition in the field that is itself detrimental to the public interest. One of the objects of the federal Competition and Consumer Act 2010 is declared in s 2 to be to "enhance the welfare of Australians through the promotion of competition".
The applicant's maintenance of high standards of hygiene, his cooperation with the health authorities and the police, his charitable activities and his offering of training and employment to young people would be of greater relevance to an application for an operator licence than a tattooist licence. In any event they cannot outweigh the threat to public safety and order presented by the identification of his tattoo shops as Rebel strongholds, despite his ban on the wearing of Rebel colours, the employment of Rebel members and his refraining from displaying the Rebel red white and blue on the front of his establishments. He is the public face of the two businesses and is regarded as an influential member of the OMCG.
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For the above reasons, I find that it would be contrary to the public interest for the applicant to be granted the licence that he is seeking. The public would expect that a person with the applicant's connections would not be granted such a licence. Following Montgomery SM in Zahra (at [69]), I may add that "Until such time as he fully dissociates himself from the Rebels, this risk will remain and he should not be granted the licence".
I therefore conclude that the decision to refuse the applicant a tattooist licence was the correct and preferable one and should be affirmed.