Moc v Department of Fair Trading

Background

1. The Applicant purchased Cabramatta Ink with Mark Cuello on a walk-in-walk-out basis in 2011. Mr Moc and Mr Cuello purchased Cabramatta Ink from vendors, one of whom was Alexander Mielczarek. Police records indicate that Mr Mielczarek is a life member of the Rebels Outlaw Motorcycle Gang ("OMCG").
2. When they purchased Cabramatta Ink it was based in Cabramatta and there were three employees. They subsequently moved Cabramatta Ink to West Cabramatta and the number of employees increased to seven. At the time they purchased Cabramatta Ink there was not requirement to hold an operator's licence to purchase a tattoo business or to hold a tattoo licence to be employed in a tattoo business.
3. With the changes to the licensing requirements from 1 October 2013 it became necessary for the owner of a tattoo business to have an operator's licence. Transitional provisions permitted existing applicants for an operator licence to continue to operate a tattoo parlour pending the determination of their application. The Applicant applied for an operator's licence in July 2013 and therefore he had the benefit of that transitional provision. The Applicant also ensured that all the tattooists who worked at Cabramatta Ink had applied for and obtained a licence.
4. A delegate of the Commissioner of Police considered that Applicant's application and provided an adverse security determination in August 2018.
5. The Applicant sought external review in this Tribunal.

Issues for determination

1. In considering the application for review, the Tribunal must determine whether the Applicant is a fit and proper person to hold the licence and whether it would be contrary to the public interest for him to continue to do so

Applicable legislation

1. The Tribunal has jurisdiction to hear and determine the present application by reason of section 27(1)(a) of the Act. Under section 63 of the Administrative Decisions Review Act 1997, the Tribunal's role is to determine whether, having regard to the underlying facts in the matter and the applicable law, the First respondent's decision is the correct and preferable one. The Tribunal is to review the merits of the original decision and consider the evidence available at that time, together with any other or later material, so as to affirm the original decision, vary it or set it aside: Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60, 77.
2. The applicable legislation has been considered in several decisions of this Tribunal. Most recently in Larter v Commissioner for Fair Trading; Commissioner of Police, New South Wales Police Force [2019] NSWCATAD 81 at paragraphs [5] - [8] Senior Member Walker summarised the legislation as follows: 5. The legislative scheme under the TP Act is discussed in more detail below. At this point it is necessary to note only that s 7(1) of the TP Act creates an offence of an individual performing any body art tattooing procedure for fee or reward unless authorized to do so by a tattooist licence. Section 9(1)(b) provides for the granting of tattooist operator licences and tattooist licences to persons, which authorize the licensee to "perform body art tattooing procedures in accordance with this Act and the conditions of the licence": s 9(3). The provisions in part 2 of the Act requiring the holding of licences came into operation on 1 October 2013. 6. When the first respondent's chief executive receives an application for a licence, he or she is required to refer it to the Commissioner of Police for an investigation and determination as to whether the applicant is a fit and proper person to be granted the licence, or whether it would be contrary to the public interest for the licence to be granted, or both: s 14(b)(i). 7. Section 16(1) confers on the chief executive a general power to deal with licence applications and to grant or refuse a licence. That general discretion is limited by s 16(3), which provides that "The Chief Executive must not grant a licence if...(c) an adverse security determination has been made by the Commissioner about the applicant". 8. Under s 27(1)(a) of the TP Act, a person whose application for a licence has been refused may apply to this tribunal for administrative review under the Administrative Decisions Review Act 1997 (ADR Act). Section 27(3) deals with the nature of the tribunal's function. It provides as follows: (3) If an application for a licence or for the renewal of a licence was refused or a licence was suspended or cancelled by the Secretary on the ground of an adverse security determination made by the Commissioner about the applicant for the administrative review or a close associate of the applicant: (a) the Commissioner (as well as the Secretary) is to be a party to any proceedings in the Civil and Administrative Tribunal for an administrative review of the decision of the Secretary, and (b) the Tribunal is to be provided with a copy of the report of the Commissioner's determination, and (c) the Tribunal is not prevented from determining whether the Secretary made the correct and preferable decision regarding the application or the licence concerned merely because of the determination of the Commissioner. ...
3. Similar provisions apply in relation to an application for an operator licence. See for example the discussion in Collins v Department of Fair Trading [2019] NSWCATOD 36 from paragraph [4].
4. In Larter v Commissioner for Fair Trading Senior Member Walker also discussed the concepts of fitness and propriety and the public interest. In regard to the phrase "fit and proper person" he stated at paragraphs [60] - [63]: Whether a fit and proper person 60. The meaning of the phrase "fit and proper person" in the licensing context has been the subject of a well-known line of cases dating back at least to Hughes and Vale Pty Ltd v New South Wales (No.2) [1955] HCA 28; (1955) 93 CLR 127. The principles laid down in those cases were distilled by the tribunal's Appeal Panel in Austin v Commissioner of Fair Trading and Commissioner of Police [2016] NSWCATAP 179, following Montgomery SM's reasons at first instance, as follows: (1) The very purpose of the words "fit and proper" is to give the widest scope for judgment and for rejection on that ground. (2) "Fit" with respect to an office is said to involve honesty, knowledge and ability. (3) The expression "fit and proper" person, standing alone, carries no precise meaning. It takes its meaning from its context, from the activities in which the person is or will be engaged in and the ends to be served by those activities. (4) Depending on the nature of the activities, the question may be whether improper conduct has occurred, whether it is likely to occur, whether it can be assumed it will not occur, or whether the general community will have confidence that it will not occur. (5) In certain contexts, character (because it provides indication of likely future conduct) may be sufficient to ground a finding that person is not fit and proper to undertake the activities in question. (6) The expression meant that an applicant needed to show not only that he has the requisite knowledge of the duties and responsibilities of the holder of the particular licence but also that he is possessed of sufficient moral integrity and rectitude to be accredited to the public as a person to be entrusted with the work the subject of the licence. 61. The Appeal Panel has pointed out that public interest considerations play a role in the assessment of fitness and propriety: Director-General, Transport New South Wales v AIC (GD) [2011] NSWADTAP 65, [37]. 62. While there is a definite focus in the legislation and its administration on the involvement of OMCGs in the industry, that is not to the exclusion of other concerns about criminality: "[T]he broader intention [of the TP Act] is to rid the industry of any criminal or otherwise undesirable element and the avoidance of improper conduct": Smith, [2014] NSWCATAD 184, [20]. The point was specifically made in Wright v Commissioner for Fair Trading [2017] NSWCATAD 98, [118]: "The Applicant had stressed that he had not been involved in gang crime. Gang crime is not the only consideration of the Act, however. The Tattoo Parlours Act 2012 is directed at keeping gang crime out of the tattoo parlour industry and also at eliminating general criminal activity, including violence. Unfortunately, violence is a clear feature of the Applicant's background". 63. Thus, in Austin, Montgomery SM considered that the applicant's long criminal record was a "strong prima facie indicator of the Applicant's lack of fitness and propriety", and that "The question therefore arises as to whether he has been completely rehabilitated" (at [75]). The tribunal ultimately was not satisfied about the applicant's rehabilitation and refused the grant of a licence.
5. In regard to the phrase "public interest" Senior Member Walker stated at paragraphs [103] - [111]: The public interest 103. The phrase "public interest" is not defined in the TP Act or the regulations. In O'Sullivan v Farrer [1989] HCA 61; (1989) 168 CLR 210, [13], the High Court held that the "public interest" imported a discretionary value judgment to be made by reference to undefined factual matters, confined only in so far as the subject matter and the scope and purpose of the legislation might require. In Commissioner of Police v Toleafoa [1999] NSWADTAP 9, [25], the Appeal Panel described the public interest ground in the relevant Act in the following terms: [A]n inherently broad concept giving the [Commissioner] the ability to have regard to a wide variety of factors in choosing whether to exercise a discretion adversely to an individual. As the possibility of refusing an application on the ground of character is dealt with elsewhere in the same section, it is reasonable to infer that the Parliament intended that the public interest discretion operate in areas to which the character ground was not relevant or, possibly, in circumstances where an objection on character grounds would not be sufficient in its own right to warrant refusal. 104. The concept does include standards acknowledged to be for "the good order of society and for the well-being of its members": Director of Public Prosecutions v Smith [1991] VicRp 6; [1991] Vic Rep 6; (1991) 1 VR 63. In Comalco Aluminium (Bell Bay) Ltd v O'Connor (1995) 131 ALR 657, 681, the High Court said: The purpose of the reference to public interest is to ensure that private interests are not the only matters taken into account: to make clear that the interests of the whole community are matters for the Commissioner's consideration. The effect of the reference is to amplify the "scope and purpose" of the legislation. 105. The issue of public interest allows for matters going beyond the applicant's character to be taken into account. They include public protection, public safety and public confidence in the administration of the licensing system: Constantin v Commissioner of Police, New South Wales Police Force [2013] NSWADTAP 16, [33]. 106. Legislation such as the TP Act serves the public interest in ways that go beyond guarding against misconduct by an individual licensee. Licence refusals and similar orders serve the public interest by establishing a regulatory structure for an industry that not only protects the public from harm, but also helps to preserve public confidence in that industry and its members by signalling that those whose activities or facilities do not meet the required standards will not be permitted to operate in the industry: Health Care Complaints Commission v Do [2014] NSWCA 307, [34] - [39]; Moujalli v Roads and Maritime Services [2017] NSWCATAD 141, [52] - [53]. 107. That objective must implicitly be one of the purposes of this legislative scheme and is relevant to the interpretation of its provisions. As the tribunal pointed out in Naziry v Director-General, Ministry of Transport [2004] NSWADT 40 in the context of taxicab licensing, decision-makers must as far as possible place themselves in the position of a member of the public who might use the applicant's services and ask whether that member of the public, knowing of the applicant's record, would object to the applicant as the driver of the taxi. 108. A finding that an applicant is not of fit and proper character to hold the type of licence in question would normally also necessarily mean that it would be contrary to the public interest to allow the person to hold the licence: Stiles v Commissioner of Fair Trading [2017] NSWCATAP 44, [34]. In this case, however, I have found that the applicant meets the fitness and propriety standards required for a tattooist licence. The question therefore becomes whether there are other public interest grounds justifying refusal. 109. The legislation's main object is to rid the tattoo industry of OMCG influence and infiltration by other criminal elements. As was noted above, the applicant has never had any association with any OMCG or any other criminal group, or any knowing links with them. He has no history of violence or threatening violence or of stealing. His last criminal conviction was nearly 3 years ago, and although that is not a long time, he has not come under unambiguous adverse notice since then, a clear change from his earlier record when he accumulated multiple drug-related encounters with the police. There is clear evidence of rehabilitation, including uncontradicted references, and of a demonstrated determination to make a fresh start in life, an ambition that is quite attainable in a young man of 23. 110. It is settled law that an applicant's private interests, such as in obtaining access to a reliable income stream, receive no weight in a consideration of the public interest or fitness and propriety: Austin v Commissioner of Police, New South Wales Police Force [2016] NSWCATAP 179, [72] - [73]; Butler v Commissioner for Fair Trading [2017] NSWCATAD 138, [114]. Nevertheless, matters directly affecting the individual can have a wider public interest relevance. In Wright at [121], [127], Scahill SM accepted that an applicant's working as a tattooist could be a significant aspect of his ongoing rehabilitation and a relevant public interest factor (see also Butler, [117], [122]).There is also a public benefit in a person being able to engage in gainful business or employment rather than being kept by the taxpayer: (id. at [127]; see also Allen v Commissioner for Fair Trading [2015] NSWCATAD 273, [70]). 111. There is thus a public interest in assisting the rehabilitation of persons who have fallen foul of the criminal law, so far as is possible without endangering public health, safety, security or public confidence in the regulatory scheme. The evidence here suggests that licensing the applicant as a tattooist would assist the rehabilitation process, especially as he is not qualified or equipped for any other kind of work other than labouring. Requiring him to wait another couple of years to prove full rehabilitation could be counter-productive if it leaves him with idle time and leads to a temptation to resume drug-taking. In addition, enabling him to join the industry at this juncture would tend to tap his present enthusiasm and motivation as a way of helping to keep him away from the drug scene.

The material before the Tribunal

1. The Applicant relies on his own evidence and that of Mr Eric Pham. Both attended the hearing and were cross-examined. The Applicant also relies on a number of character references. Mr Shridhar provided submissions.
2. The Respondents rely on statements by Senior Constable Mark Whiteside, a Police Officer who was the author of an Information Report concerning an event which took place on 7 June 2013; an affidavit and a report by Senior Constable Deborah Mortimer who is attached to the Criminal Groups Squad, State Crime Command of the NSW Police Force. Neither Senior Constable Whiteside nor Senior Constable Mortimer was required for cross-examination. The Respondents also rely on the evidence of Detective Sergeant Bruce Groenewegen who is attached to the Criminal Groups Squad, State Crime Command of the NSW Police Force. Detective Sergeant Groenewegen provided a detailed report in regard to the Hells Angels OMCG and also attended the hearing, gave both open and confidential evidence and was cross-examined. Mr El Hage provided written submissions both open and confidential oral submissions.
3. Respondents also rely on criminal intelligence information which has been provided to the Tribunal on a confidential basis and which has not been disclosed to the Applicant.

The Respondents' case

1. The Respondents contend that the Applicant is not a fit and proper person to be granted the licence and that it would be contrary to the public interest for the licence to be granted.
2. The Respondents contend that the Applicant is a member of the Hells Angels OMCG or alternatively he is a close associate of members of the Hells Angels OMCG.
3. The essence of the Respondents' case is as set out in the security determination which stated: According to the SCC Gangs Squad, the applicant is a current member of the Hells Angels OMCG and has been a member since 2014, having been identified as a prospect since April 2013. … The applicant's membership of the Hells Angels OMCG causes me to not have confidence that he would not engage in criminal activity or be influenced by other OMCG members. Similarly, I have formed the opinion that any tattoo parlour business he owns may also be at risk of being influenced by OMCG members. The applicant's membership of the Hells Angels OMCG promotes a public perception that the business may be associated with Hells Angels OMCG. OMCG Colours "carry an implied threat that the wearer is, by virtue of OMCG culture, predisposed to violence.... the wearer has the support of other OMCG who will readily engage in violent acts in support of the wearer. This is typically referred to as the 'power of the patch'" … By extension, the public may perceive that the applicant will engage in violent activity and may be assisted by other OMCG members, including at the tattoo parlour, putting the safety of the public at risk. … On the basis of the applicant's membership of the Hells Angels OMCG, I cannot be confident that improper conduct will not occur, or that the public would not be at risk, if the applicant were granted a licence. I have therefore formed the opinion that it would be contrary to public interest for an operator licence to be granted to the applicant. … The applicant has a history of involvement in relevant, serious criminal activity. … In 2000 the applicant was convicted for offences described as "Supply a prohibited drug" for which he was sentenced to two years imprisonment (suspended on entering a two-year section 12 good behaviour bond) and forfeited the $48,600 found in his possession ... Charges relating to the importation of prohibited substances were also laid against the applicant in 2004. … Whilst the applicant was not found guilty in this instance, the Facts Sheet and transcripts indicate that he was involved in the importation of narcotics via human couriers through international air and mail streams and suggest a close association between the applicant and an organised crime group involved in serious drug-related criminal activities.
4. The Respondents contend that the Applicant's lack of fitness and propriety is reinforced by his criminal history. They refer to the following: 1. On 10 February 2015, the Applicant was convicted of low range PCA. He was fined $600 and disqualified from driving for 3 months; 2. On 11 March 2011, he was convicted of resisting a police officer in the execution of duty and behaving in an offensive manner in a public place. The Applicant was involved in a fight on George Street Sydney and physically resisted arrest on multiple occasions. He was given a 9 month bond and was ordered to pay a fine; 3. On 7 October 2008, the Applicant was convicted of behaving in an offensive manner in a public place. Again, the Applicant had been involved in a fight in a public place (Oxford Street). The Applicant was issued with a fine; 4. On 27 March 2001, the Applicant was convicted of supplying a prohibited drug (trafficable but not commercial quantity). The drug was heroin and, it seems, the Applicant was part of an organised crime group which imported drugs into Australia. The Applicant was imprisoned for a period of 2 years (suspended on entry into a two year bond). The Court also ordered the forfeiture of $48,600 found in his possession; 5. In 1996, the Applicant, then a child, was convicted of, inter alia, malicious damage and possession of an offensive implement.
5. Mr El Hage submitted that the Applicant's history of offending indicates a marked lack of fitness and propriety. It reveals a willingness to disregard the law, on multiple occasions, and engage in conduct that, at times, has involved a disregard for the safety of others and a disregard for public order. The supply of drugs, for which he was convicted in 2001, was a serious offence.

Senior Constable Mark Whiteside

1. Senior Constable Whiteside's evidence is that he was the author of an Information Report which concerns an event which took place at the Sefton Playhouse on 7 June 2013. At the time Mr Whiteside was attached to Strike Force Raptor. He attended the Sefton Playhouse in company with two or three other police officers.
2. He observed a group of five persons in the vicinity of the bar area and he recognised three of these persons from prior dealings and knew them to be members of the Hells Angels. The other two persons of the group were not previously known to him. The Applicant is identified as one of those persons.
3. His report records that at least one of them was wearing some form of Hells Angels apparel. There is no suggestion that the Applicant was wearing any Hells Angels apparel.

Senior Constable Deborah Mortimer

1. Senior Constable Mortimer provided evidence regarding the purchase of Cabramatta Ink. She stated that the Applicant purchased Cabramatta Ink with Mr Mark Cuello. She noted that Mr Cuello is the brother of a former Rebels OMCG Member. She further noted that Cabramatta Ink was purchased from Alexander Mielczarek who is recorded as a Rebels Picton Life Member and he is well known in the tattoo industry.
2. In regard to the event which took place at the Sefton Playhouse on 7 June 2013, Senior Constable Mortimer noted that one of the persons spoken to by police on that occasion, who Senior Constable Whiteside recognised as a member of the Hells Angels, was reported to have stated to police, "I do not understand why we are being asked to leave coz this is our place. We half own the place and we will be back, it's our turf here."
3. In her report dated 3 April 2018 Senior Constable Mortimer stated: On 21 March 2014, Police conducted a search warrant at the Hells Angels Cabra Crew Clubhouse at 3 De Garis Close Middleton Grange. During the search warrant Police located the "Cabra Crew Church attendance book". Based on my knowledge and experience, I understand that OMCGs refer to their regular chapter meetings as "church". On the attendance list for 11, 18 and 24 April 2013, "Pete. M" is recorded in the prospect list. On 3 and 10 May 2013, "Pete. M" is not recorded in the attendance book, indicating non-attendance. There is no further record for "Pete. M" in this attendance book. However on 17 May 2013, the name "Mockey" is first listed. On 24 May 2013, "Mock" is recorded in the attendance list. Throughout the "church attendance book" there is no further reference to "Pete. M" however the nicknames "Mockey", "Mocky" or "Mock" are listed as a regular attendee at the church meetings. In the "church attendance book", records are kept on which members and prospects attend the weekly church meetings. Between the 11 April 2013 and 19 March 2014 the attendance records indicate "Peter Moc", is referred in the Prospect section as either "Pete M", "Mockey" "Mocky" or "Mock" they are recorded on different dates, however the names never overlap.
4. Senior Constable Mortimer noted that searches on the Police Computerised Operational Policing System ("COPS") identified the use of the alias' "Moc", "Mock" and "Mockey", however they are not linked to a person as an alias. She also stated that; Whilst Mr Moc may not use those nicknames, it is evident that the Hells Angels Member or Members who recorded the information in those documents between 11 April 2013 and 1 August 2014 have used the listed nicknames for Peter Moc.
5. She further stated: Based on my knowledge and experience Peter Moc was identified as a Member of the Hells Angels since at least 11 April 2013 when he was identified as a Prospect. There is currently no information available for me to form an opinion that he ceased being a member of Hells Angels. Therefore, it is my opinion that he remains a member of Hells Angels.

Detective Sergeant Bruce Groenewegen

1. Detective Sergeant Groenewegen provided a report regarding the Hells Angels. His report addresses the structure of the organisation and indicia of membership. He noted that members of the Hells Angels often decorate their skin with tattoos, including those marking them as members of the organisation. Tattoos bearing the words "Hells Angels" and the "winged death head" are specifically reserved for Full Members, as are tattoos of the "1%" symbol.
2. He also made reference to a significant number of incidents involving the Hells Angels which show extensive links to criminal activity. These include firearms and violence offences including intimidation and threats and the manufacture, supply and possession of prohibited drugs.
3. Under cross-examination he conceded that there is no photographic evidence of the Applicant wearing Hells Angels colours, participating in runs or any other OMCG activities. There is no suggestion that the Applicant has any Hells Angels related tattoos.
4. Detective Sergeant Groenewegen stated that the Hells Angels organisation discourages photographic display of membership indicia. For example, posting photographs of the "winged death head" on social media is discouraged.
5. Further, there is no evidence of any association between the Hells Angels and Cabramatta Ink.
6. Detective Sergeant Groenewegen also provided evidence in a confidential session. That evidence is not available to the Applicant.
7. [NOT FOR PUBLICATION]
8. As noted above, the Respondents rely on criminal intelligence that has been provided to the Tribunal on a confidential basis.
9. [NOT FOR PUBLICATION]
10. The Respondents contend that little if any weight should be given to the Applicant's references as they make no reference to his criminal record.
11. The Respondents contend that given his criminal record the Tribunal could not be satisfied that the Applicant is a fit and proper person to hold the licence or that it is in the public interest for him to do so.

The Applicant's case

1. The Applicant relies on his own evidence and that of Mr Pham.

The Applicant

1. The Applicant does not dispute his criminal record but he denies that he has ever been a member or associate of any OMCG in Australia or overseas. He denies that he is a member of the Hells Angel or ever been such a member or associate. He stated that he does not have any tattoos of any membership to an OMCG. He denied that he has ever been involved in any of the incidents identified in Detective Sergeant Groenewegen's evidence.
2. He accepts that Alexander Mielczarek was a partner in the business prior to his purchase of Cabramatta Ink but he denied that he dealt with Mr Mielczarek in regard to the purchase of the business. He stated that since he purchased Cabramatta Ink there have been no incidents and Police have had no cause to attend the premises other than to have artwork carried out. There have been no adverse complaints from customers and no health issues relating to the parlour.
3. He denied any association with Mark Cuello's brother. He may have met him in the past. He said that Mark Cuello does not intend to have any ongoing association with Cabramatta Ink.
4. In regard to the evidence of Senior Constable Mortimer the Applicant denies that he has had any membership or association with the Hells Angel. He agrees that he attended the Sefton Playhouse on 7 June 2013 but he denies that he was part of any particular group and he said that he has never visited that Playhouse since that day. He said that he was at the Playhouse with Mr Pham and not part of any group. He did not know the Hells Angels members who were there at that time.
5. The Applicant stated that he does not use the nick names "Mockey", "Mock", "Pete M", "Mocky", "CK", "OCK" as referred to by Senior Constable Mortimer. He accepted that others may use those nicknames in reference to him. He denied that the references to any of those names that appeared in the material obtained from the Hells Angels Cabra Crew Clubhouse on 21 March 2014 is a reference to him.
6. In relation to the offence of 'Supply Prohibited Drug' in 2001, he stated that at the time of the offence he was 20 years old, immature and naive. He said that he has since learnt from that huge mistake in his life and that he has not re-offended. He said that he does not consume alcohol and does not consume prohibited drugs.

Eric Pham

1. Mr Pham gave evidence that he has known the Applicant since 2010 and he has never known the Applicant to be a member of any OLMC club. He has never seen the Applicant dressed in any OLMC club clothing. He said that they used to visit the the Sefton Playhouse as patrons. He has also visited Cabramatta Ink to have artwork done from time to time.
2. He was employed by the Sefton Playhouse as the Duty Manager from approximately 2014 to 2016. He agreed that he attended the Sefton Playhouse with the Applicant on 7 June 2013 but stated that they did not go with others. He denied that he or the Applicant associated with the Hells Angels members who attended on that occasion.
3. As Duty Manager he was aware of the general running of the Playhouse. OLMC members were not permitted and there were occasions when OLMC members were identified and when he directed security to inform the Police to have them removed. He is aware that the Sefton Playhouse has a register of OLMC club members' names and photographs and he reviewed that register from time to time during his employment. He said that the Applicant did not appear in that register. He also said that the Sefton Playhouse was not owned by any OLMC club.
4. He does not know any OLMC club members by name however he could recognize them as they usually made it known that they were bikies. He said that he did not associate with them.
5. He is aware of an OLMC club member who calls himself Mocky and he has sighted him at the Sefton Playhouse. He said that the male who calls himself Mocky is not the Applicant. He did not associate with that person and did not speak with him. He only became aware of him through others working at the Playhouse.
6. Mr Shridhar submitted that the Applicant's evidence should be accepted. There is no evidence to show that he has ever been a member of any OMCG. The incident at the Sefton Playhouse should not be taken in isolation. There is no photographic evidence to show any association between the Applicant and any OMCG.
7. He submitted that the Applicant's criminal record can be taken into account but the Tribunal should note that it is 20 years old. It should be viewed in the context of what has happened since. No weight should be given to charges that were brought against the Applicant but where he was acquitted. No weight should be given to that fact that nicknames appear in material obtained from the Hells Angels Cabra Crew Clubhouse.

Consideration

1. This is a matter in which the open evidence suggests that the Applicant has a history that includes some criminal convictions and some acquittals on charges that are objectively serious.
2. The Applicant denies that he has continued that lifestyle. He stated that he has learnt from his mistakes and has not re-offended. He said that he does not consume alcohol and does not consume prohibited drugs. He denies that he has ever been a member or an associate of any OMCG. In particular, he denies that he is a member of the Hells Angel or ever been such a member or associate.
3. I agree that the Applicant's history of offending indicates a willingness to disregard the law, on multiple occasions. I also agree that the supply of drugs, for which he was convicted in 2001, was a serious offence. However, given the time that has passed since that offence it is not determinative of this matter.
4. As I have indicated above, the Respondents have provided criminal intelligence information to the Tribunal on a confidential basis. I am satisfied on the basis of that evidence that it is likely that the Applicant has either been a member or associate of the Hells Angels or that he has had close associations with the Hells Angels. That being the case, I am satisfied that the Applicant has not been truthful in the evidence that he has given before the Tribunal.
5. Honesty is a relevant consideration when determining whether the Applicant is a fit and proper person to hold an operator licence under the Act. It is important to the regulation of the tattoo industry that licensees are honest in their dealings with the regulator.
6. I am unable to disclose the contents of the information that I have received in confidence but I am satisfied that there is a reasonable basis for a finding that the Applicant is not a fit and proper person to hold an operator licence under the Act. I am also satisfied that it is not in the public interest for him to be granted the licence. Accordingly, the decision to refuse to grant the licence is the correct and preferable one and it should be affirmed.

Order 1. The decision under review is affirmed. I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 10 March 2023