Austin v Commissioner for Fair Trading and Commissioner of Police [2016] NSWCATAP 179Australian Broadcasting Tribunal v Bond(1990) 170 CLR 321Butler v Commissioner for Fair Trading [2017] NSWCATAD 138Comalco Aluminium (Bell Bay) Ltd v O'Connor (1995) 131 ALR 657Commissioner of Police v Toleafoa [1999] NSWADTAP 9Constantin v Commissioner of Police, New South Wales Police Force [2013] NSWADTAP 16
Dessman v Commissioner for Fair Trading [2015] NSWCATAD 255
Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60
Director of Public Prosecutions v Smith [1991] Vic Rep 6, (1991) 1 VR 63
Health Care Complaints Commission v Do [2014] NSWCA 307
Hughes and Vale Pty Ltd v New South Wales (No. 2) (1955) 93 CLR 127
Moujalli v Roads and Maritime Services [2017] NSWCATAD 141
Naziry v Director-General, Department of Transport [2004] NSWADT 40
Project Blue Sky Inc. v Australian Broadcasting Authority [1998] HCA 28, (1998) 194 CLR 355
Saadieh v Director-General, Department of Transport [1999] NSWADT 68
Smith v Commissioner of Police [2014] NSWCATAD 184
Sobey v Commercial and Private Agents Board (1979) 22 SASR 70
Stiles v Commissioner for Fair Trading [2017] NSWCATAP 44
Judgment (10 paragraphs)
[1]
REASONS FOR DECISION
The applicant Mr Jason Nguyen applied to this tribunal on 30 November 2018 for review of a decision by the first respondent made on 5 November 2018 to refuse Mr Nguyen's application for a tattooist licence under the Tattoo Parlours Act 2012 (TP Act).
He had applied for a licence on 25 June 2018, but the second respondent had delivered an adverse security determination (ASD) against him on 23 October 2018, stating that he was not a fit and proper person to hold a tattooist licence because of his criminal history. The first respondent accordingly informed Mr Nguyen on 5 November 2018 that his application had been refused. The applicant then applied for review of that decision in this tribunal.
[2]
Applicable legislation
The legislative scheme under the TP Act is discussed in more detail below. At this point it is necessary to note only that s 7(1) of the TP Act creates an offence of an individual performing any body art tattooing procedure for fee or reward unless authorized to do so by a tattooist licence. Section 9(1)(b) provides for the granting of tattooist operator licences and tattooist licences to persons, which authorize the licensee to "perform body art tattooing procedures in accordance with this Act and the conditions of the licence": s 9(3).
When the first respondent's chief executive receives an application for a licence, he or she is required to refer it to the Commissioner of Police for an investigation and determination as to whether the applicant is a fit and proper person to be granted the licence, or whether it would be contrary to the public interest for the licence to be granted, or both: s 14(b)(i).
Section 16(1) confers on the chief executive a general power to deal with licence applications and to grant or refuse a licence. That general discretion is limited by s 16(3), which provides that "The Chief Executive must not grant a licence if…(c) an adverse security determination has been made by the Commissioner about the applicant".
Under s 27(1)(a) of the TP Act, a person whose application for a licence has been refused may apply to this tribunal for administrative review under the Administrative Decisions Review Act 1997 (ADR Act). Section 27(3) deals with the nature of the tribunal's function. It provides as follows:
(3) If an application for a licence or for the renewal of a licence was refused or a licence was suspended or cancelled by the Secretary on the ground of an adverse security determination made by the Commissioner about the applicant for the administrative review or a close associate of the applicant:
(a) the Commissioner (as well as the Secretary) is to be a party to any proceedings in the Civil and Administrative Tribunal for an administrative review of the decision of the Secretary, and
(b) the Tribunal is to be provided with a copy of the report of the Commissioner's determination, and
(c) the Tribunal is not prevented from determining whether the Secretary made the correct and preferable decision regarding the application or the licence concerned merely because of the determination of the Commissioner.
The tribunal is thus granted an implied review power over the ASD, as by virtue of s 27(3)(c), "the Tribunal is not prevented from determining whether the Chief Executive made the correct and preferable decision regarding the application or the licence concerned merely because of the [adverse security] determination of the Commissioner". The issues in this case are thus:
1. whether the applicant is a fit and proper person to hold a tattooist licence, and
2. whether it would be contrary to the public interest for the licence to be granted, within the meaning of s 14(b).
[3]
The evidence
The respondents called no oral evidence but relied on the s 58 documents (exhibit R2) and other documentary material.
The applicant did not lodge a witness statement or other material by the deadline of 12 February, but the respondents took no issue about it. The applicant did, however, in the week before the hearing lodge two signed statements. The first, dated 26 March 2019, was described by the applicant as "an apology to the tribunal, community, friends and family for the grief and disappointment I have caused".
The letter continued by stating that Mr Nguyen took full responsibility for his actions, including the repeated offences against the law for cannabis possession. He was disappointed in himself and regretted the poor choices he had made in his adolescent years. He had no goals at that time and was unsure about his direction in life. He was immature and did not think about the consequences that had now affected his dream of becoming a tattoo artist.
At the beginning of January 2018, he began working as a volunteer in a tattoo studio in the hope of learning about the industry. At that time he was still using cannabis and was caught, convicted and fined. His parents were disappointed in him and he was ashamed of himself. He realized he had to quit that habit in order to save his relationship with his family. Within that year of working in a tattoo parlour, he had met many artists who had become his greatest inspirations. Their work ethic and dedication had motivated him to be the best he could be as an aspiring artist. He learned that being taught the craft of tattooing was something to be earned and not given. He realized that there were many sacrifices to be made to that end. He spent his time at the shop cleaning, running errands, serving customers and drawing. Outside work hours he would occupy himself drawing and exercising. His passion for art and fitness helped him to overcome his drug habit, now that his direction in life is clear.
His approach to the tattoo industry was always to be professional, as there is a matter of reputation involved. He would not tattoo without a licence, he was never intoxicated or under the influence of drugs at the workplace and the owner of the shop does not condone that sort of behaviour. He understands that he should have thought about his future instead of spending so much of his time and money on cannabis. Quitting his drug habit was the best decision he had ever made and he now has more time to draw, much more energy, his mind is sharp and focused and he is not wasting money. He is fit and healthy and more motivated than ever to pursue his dream of becoming a tattoo artist. He would not revert to his old ways as it would jeopardize his chances of ever becoming a tattoo artist and even of owning a business one day.
[4]
Respondents' submissions
The respondents relied on their written submissions dated 12 March 2019. It should be noted that as the applicant had failed to lodge his statements and other material within time as directed by the tribunal, the respondents had to prepare and file their written submissions without the benefit of information about the case the applicant would be raising. That is not an uncommon occurrence where applicants are unrepresented, and applicants' failure to follow directions is usually waived by respondents, but it places them at a disadvantage when preparing their cases. Accordingly I summarize below the respondents' written submissions as filed, but with the caveat that they had to be supplemented and amended in oral submissions at the hearing.
In their written submissions the respondents contended that the applicant is not a fit and proper person to be granted a tattooist licence because, first, he has a recent criminal record for possessing cannabis. Before that, he had twice been cautioned over cannabis possession, on 30 October 2016 and a year later on 14 October 2017. After two cautions the applicant should have been well aware of the legal consequences of using the drug.
Secondly, there was no evidence that the applicant had given up his apparently habitual drug use. The only material before the tribunal was a general statement that "the Applicant has acknowledged his past and has made efforts to change his lifestyle by pursuing his goal of becoming a tattoo artist and volunteering to gain experience in this industry". That submission did not identify any concrete way in which the applicant had in fact changed his lifestyle to distance himself from illicit drugs, nor did it contain any statement to the effect that he had stopped using them.
Little weight should be given to his submission that he had admitted his guilt on three occasions when he had been found with cannabis and had accepted responsibility for his actions, as it found no support in the evidence. That he had been found in possession of cannabis on three occasions within 15 month period was inconsistent with accountability or remorse. He had not corrected his behaviour in response to the two cautions, but instead persisted in illegal drug use, which demonstrated a lack of respect for law. Nor had he placed before the tribunal any evidence to suggest that he had discontinued his apparently habitual drug use since his conviction or any references going to his reputation in the community. The passage of time since his offending was brief, and in any event the passage of time in itself is not enough to demonstrate rehabilitation: Dessman v Commissioner for Fair Trading [2015] NSWCATAD 255.
[5]
Consideration
This tribunal has jurisdiction to hear and determine the present application by reason of s 27(1)(a) of the TP Act. Under s 63 of the ADR Act, the tribunal's role is to determine whether, having regard to the underlying facts in the matter and the applicable law, the first respondent's decision is the correct and preferable one. The tribunal is to review the merits of the original decision and consider the evidence available at that time, together with any other or later material, so as to affirm the original decision, vary it or set it aside: Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60, 77.
[6]
The legislative scheme and the tribunal's approach
The applicant has applied for review under s 27(1)(a) of the TP Act of a decision taken by the Director-General for Fair Trading under s 16(3) of the TP Act to refuse to grant him a tattooist licence. The Commissioner of Police made an ASD (exhibit R1) under s 19(1) of the Act to the effect that the applicant was not a fit and proper person to be granted the licence. Pursuant to s 27(3), the Commissioner of Police is a party to these proceedings.
The TP Act licensing requirements for operators of tattoo parlours provide for two kinds of licence: an operator licence and a tattooist licence. Only an individual can apply for a licence, even where the individual is applying on behalf of an organization: s 11. The licensing regime imposes a test of whether the person is "fit and proper" and whether it would be "contrary to the public interest" to grant the licence. It is an offence to perform body art tattooing procedures without a tattooist licence: s 7.
A person may apply to the director-general for a tattooist or operator licence pursuant to s 11. Section 13 provides for the fingerprinting and palm printing of applicants. On receiving an application for a licence, the director-general is required by s 14(b) to refer the application to the Commissioner of Police for an investigation and determination as to whether the applicant is a fit and proper person to be granted the licence, and whether it would be contrary to the public interest for the licence to be granted.
Section 19 requires the Commissioner to inquire into and determine, and report to the director-general on, those matters. For the purposes of making his determination, the Commissioner may have regard to criminal intelligence reports or other criminal information held in relation to an applicant: s 19(3). The director-general has a discretion whether or not to grant a licence in some circumstances, but must not grant a licence if the Commissioner makes an adverse security determination in relation to the applicant: s 16(3)(c). Once granted, a licence remains in force for three years; it may not be renewed, but a new application can be made: s 17.
Pursuant to s 27(1)(a), a person may apply to this tribunal for review of a refusal or failure by the director-general to grant a licence. The Act does not expressly confer jurisdiction on the tribunal to review any report or determination made by the Commissioner of Police but, as was pointed out above, it does so implicitly, as s 27(3)(c) provides that "the Tribunal is not prevented from determining whether the director-general made the correct and preferable decision regarding the application of the licence concerned merely because of the determination of the Commissioner": Smith, [22]. Nevertheless, the tribunal is required to take the ASD into account as an essential, legally relevant, consideration to which weight must be given: id., [24].
[7]
Whether a fit and proper person
The respondents' case is in part that the applicant is not a fit and proper person by reason of his criminal conviction and related criminal history. The High Court has explained that assessing whether a person is fit and proper to hold a licence is a value judgment, involving concepts that should not be "narrowly construed or confined" and may extend to "any aspect of fitness and propriety that is relevant to the public interest: Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321, 348. In Hughes and Vale Pty Ltd v New South Wales (No. 2) (1955) 93 CLR 127, the Court said:
The expression "fit and proper person" is of course familiar enough as traditional words when used with reference to offices and perhaps vocations. But their very purpose is to give the widest scope for judgment and indeed for rejection. "Fit" (or 'idoneus') with respect to an office is said to involve three things, honesty, knowledge and ability…. When the question was whether a man was a fit and proper person to hold a licence for the sale of liquor it was considered that it ought not to be confined to an inquiry into his character and that it would be unwise to attempt any definition of the matters which may legitimately be inquired into; each case must depend on its own circumstances (at 156 - 157).
In Bond, Toohey and Gaudron JJ said at 380 -
The expression "fit and proper person", standing alone, carries no precise meaning. It takes its meaning from its context, from the activities in which the person is or will be engaged and the ends to be served by those activities. The concept of "fit and proper" cannot be entirely divorced from the conduct of the person who is or will be engaging in those activities. However, depending on the nature of the activities, the question may be whether improper conduct has occurred, whether it is likely to occur, whether it can be assumed that it will not occur, or whether the general community will have confidence that it will not occur. The list is not exhaustive but it does indicate that, in certain contexts, character (because it provides indication of likely future conduct) or reputation (because it provides indication of public perception as to likely future conduct) may be sufficient to ground a finding that a person is not fit and proper to undertake the activities in question.
In a much-quoted passage in Sobey v Commercial and Private Agents Board (1979) 22 SASR 70, 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 a 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.
[8]
Public interest
While the ASD did not rely on the public interest ground in making its determination, the respondents are not thereby prevented from raising it in the present review application, and they do so.
The phrase "public interest" is not defined in the TP Act or the regulations. In O'Sullivan v Farrer [1989] HCA 61; (1989) 168 CLR 210, [13], the High Court held that the "public interest" imported a discretionary value judgment to be made by reference to undefined factual matters, confined only in so far as the subject matter and the scope and purpose of the legislation might require. In Commissioner of Police v Toleafoa [1999] NSWADTAP 9, [25], the Appeal Panel described the public interest ground in the relevant Act in the following terms:
[A]n inherently broad concept giving the [Commissioner] the ability to have regard to a wide variety of factors in choosing whether to exercise a discretion adversely to an individual. As the possibility of refusing an application on the ground of character is dealt with elsewhere in the same section, it is reasonable to infer that the Parliament intended that the public interest discretion operate in areas to which the character ground was not relevant or, possibly, in circumstances where an objection on character grounds would not be sufficient in its own right to warrant refusal.
The concept does include standards acknowledged to be for "the good order of society and for the well-being of its members": Director of Public Prosecutions v Smith [1991] Vic Rep 6; (1991) 1 VR 63. In Comalco Aluminium (Bell Bay) Ltd v O'Connor (1995) 131 ALR 657, 681, the High Court said:
The purpose of the reference to public interest is to ensure that private interests are not the only matters taken into account: to make clear that the interests of the whole community are matters for the Commissioner's consideration. The effect of the reference is to amplify the "scope and purpose" of the legislation.
The issue of public interest allows for matters going beyond the applicant's character to be taken into account. They include public protection, public safety and public confidence in the administration of the licensing system: Constantin v Commissioner of Police, New South Wales Police Force [2013] NSWADTAP 16, [33].
Legislation such as the TP Act serves the public interest in ways that go beyond guarding against misconduct by an individual licensee. Licence refusals and similar orders serve the public interest by establishing a regulatory structure for an industry that not only protects the public from harm, but also helps to preserve public confidence in that industry and its members by signalling that those whose activities or facilities do not meet the required standards will not be permitted to operate in the industry: Health Care Complaints Commission v Do [2014] NSWCA 307, [34] - [39]; Moujalli v Roads and Maritime Services [2017] NSWCATAD 141, [52] - [53].
[9]
Conclusion
I therefore find that the applicant is a fit and proper person to hold a tattooist licence and that it would not be contrary to the public interest for such a licence to be granted to him. The licence issued to him should, however, be subject to a condition requiring total abstinence from all illicit drugs.
[10]
Orders
1. The determination under review is set aside.
2. A tattooist licence is to be issued to the applicant.
3. The licence referred to in (2) is to be subject to a condition requiring total abstinence from all or any prohibited drugs.
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
He was now much smarter and more mature than he had been last year and could give an assurance that no incident with the slightest relation to that period would occur again. His dream was to become a great tattoo artist and without the opportunity he really does not know what other field he could find the same passion in.
His second letter, dated 27 March 2019 (exhibit A2), related to his arrest on 20 January 2018. The narrative relating to that event contained details that were false, he said. The police summary stated, "He told police the cannabis was his and he was going to smoke it when he returned to work in a tattoo shop in Liverpool". That information was completely false and he believes there was a matter of miscommunication. His recollection was that the police officer asked him what his occupation was, to which he replied that "I work at a tattoo shop in Liverpool".
In fact he finished work that Saturday at 6 pm, travelled to Villawood, was arrested at 6:50 and had planned to go home and use the drug. He was only being honest and truthful to the officer about his actions and about his occupation, but at no point did he say he was returning to the workplace to use the drugs. When sentenced, he had pleaded guilty at the earliest opportunity, but had not read the summary properly and at that time could not afford a lawyer.
On receiving the respondents' statement on 15 March, he saw that the Commissioner strongly argued that he intended to use the drugs at his workplace, and made assumptions that he "perform[ed] dangerous procedures" under the influence. He had never performed tattooing and did not intend to do so without a licence.
He had taken the step of contacting the officer who arrested to point out to him him that they needed to clarify the information on the record. Constable Aaron James Gunn vaguely remembered the event and their conversation and advised him to take the matter into court as the situation was not in his control. As his submission was late and close to the tribunal hearing, taking the matter to court was not possible within the limited time. If that statement did not suffice to do him justice, he was prepared to take the matter to court. The purpose of his statement was only to state the truth.
In his oral evidence at the hearing, the applicant adopted the two statements and added that his employer [Ms Joyce Deang] could give further evidence as they had discovered only the previous day that the tattoo parlour's burglar alarm was set that day on 6:01 pm. That showed that he had no intention of returning to the workplace that evening.
In cross-examination, Ms Johnson pointed out that the evidence showed there had been further instances of police contact with him in connexion with drug use. He did not dispute event report E56295661, which recorded that on 18 October 2014 (part exhibit R3) police spoke to him and his companions when they smelt cannabis emitting from the vehicle they were sitting in. They admitted that they had been smoking marijuana earlier. As regards event report E59726155 dated 4 July 2014, the report stated that police had approached the applicant at a dance or "rave" party, partly because such parties were well known for a high rate of drug activity. They searched the applicant but found no drugs; and the applicant denied having used drugs on that occasion.
Event report E59366853 stated that on 19 July 2015, at another dance event, security staff observed the applicant sniffing a small bottle of liquid and possibly passing a small clear resealable bag between people around him. Spoken to by police, he said he was just sniffing a liquid called "Jungle Juice" to get high. He was searched but no drugs were found. He said he was at the dance in question and admitted using "Jungle Juice" (which is apparently amyl nitrite).
Event report E66448518 described a later interaction with police, on 21 December 2017. The applicant passed a random breath test, but police could smell a strong odour of cannabis coming from the vehicle he was driving. They asked him about the smell, and he confirmed that there was a "bong" (a device for smoking marijuana) in the vehicle. No drugs were found in his possession and he maintained in cross-examination that he had not been using at that time, nor earlier in the day either. He thought the smell of cannabis that police had detected came from the bong.
On 28 January 2018, police on patrol saw the applicant park his vehicle in Villawood and leave it to go inside a nearby building, before returning to his vehicle a short time later and driving off. Police stopped him and conducted a random breath test, which showed a negative result for alcohol (event report E 67116766). They informed the applicant and his companion that they intended to search them for drugs, whereupon the applicant removed a small clear resealable plastic bag containing green vegetable matter from his pants pocket. He admitted to police that the vegetable matter was cannabis, which weighed a total of 4 g. As a result he was issued with a cannabis caution. At the hearing he admitted that they had planned to smoke the drug later.
Ms Johnson pointed out that only a week before, on 20 January 2018, he had pleaded guilty to a drug charge and suggested that his behaviour indicated a lack of contrition. The applicant replied that it was hard to say in relation to that time, when he did not understand the situation, but agreed that it did not demonstrate remorse.
Besides cannabis, he said he had used "ecstasy" about four times at dance parties, a long time ago, his first use being in about 2014 then later in 2015 and 2016, and for a fourth time in 2016. He had, however, given up all drugs. Counsel noted that he said he had been frank with the police and had pleaded guilty to the cannabis charge at the earliest opportunity, but pointed out that police had said he had been taking cannabis to his workplace.
He said he did not accept that statement and that he seldom "hung out" at work. He had not said he was returning to work, as he had been planning to smoke the drug at home. The police officer had asked him his occupation and he had answered truthfully that he worked at the tattoo parlour. Although he had pleaded guilty at the time, the information in the fact sheet had not been drawn to his attention and he probably did not read it properly. The statement was contained in the detail, and he had not expected to be there. He had not intended to return to work and had tried to contact the arresting police officer, Const. Gunn, about the matter.
The applicant agreed that he had used drugs several times between 2014 and 2018, that he had not really been an "adolescent" at the time as he had suggested, and that he had persisted in using prohibited drugs over a period. He could not recall the exact date when he had ceased using drugs, but thought it might be February 2018, after he had pleaded guilty to the cannabis charge. At that time drugs had ceased to be a significant factor in his life, as he had started working in the tattoo industry. He had felt he had to turn his life around and prove himself to his employers. He agreed, though, that he had not sought any medical treatment or psychological counselling for his drug issues, nor had he joined a support group.
By way of re-examination, the applicant said that although he had not been an adolescent when he was using drugs, it was at a time when he did not know what he wanted to do. But in 2018 when he had put more time into the tattoo industry as a volunteer, his life had changed. As a result he stopped using drugs. He knew that any relapse into drug use would jeopardize the opportunities he had to pursue his dream and realize his possibilities.
Thirdly, although there was no evidence to suggest the applicant had any personal links to OMCGs, his drug use necessarily placed him in contact with criminal elements, who may well use and supply more serious drugs than cannabis.
The submissions noted that the ASD contained no finding that it would not be in the public interest to grant the applicant a licence, but that was an alternative basis on which the decision ought to be upheld. The tribunal has the power to make a fresh determination on the basis of the material placed before it and is not confined in doing so by the grounds relied on in the ASD: Smith v Commissioner of Police & Anor [2014] NSWCATAD 184, [27] - [28]. The factors relevant to the "fit and proper person" criterion applied equally to determining whether it would be in the public interest to grant the applicant a licence.
In addition, however, the applicant's drug use raised legitimate doubts about his capacity to perform the responsibilities of a tattoo artist. Those who engage a tattoo artist necessarily placed themselves in a position of vulnerability vis-à-vis the tattoo artist, and therefore depend on the artist's competence.
While the evidence did not show that the applicant had ever conducted a tattooing procedure under the influence of drugs, or indeed that he had ever conducted a tattooing procedure, he had admitted that he was returning to his workplace at a tattoo shop in Liverpool to smoke cannabis. That aggravated his conduct beyond a mere cannabis possession charge, and the fact that he considered it appropriate to take drugs into his workplace suggest a lack of insight into the serious impact drug use could have on his work.
That lack of insight was also evident in his proposition that the administrative requirements of tattooists are minimal and appear easy to comply with. His attitude to compliance with his obligations as a tattoo artist could not be quarantined from his broader attitude to compliance with the law. Further, his persistence in illegal drug use demonstrated a pattern of disregard for the law.
The applicant's admission that he intended to use cannabis in his workplace, a tattoo parlour, was the very kind of risk that an ordinary member of the public would expect to be protected against by a properly functioning regulatory regime.
The assessment of whether an applicant is a fit and proper person rests with the Commissioner of Police, but the Act makes it clear that it is the director-general's decision that is under review, not the Commissioner's determination. Under s 8(2) of the ADR Act, the person or body whose decisions are administratively reviewable is taken to be the only administrator in relation to the making of an administratively reviewable decision, even if some other person or body also had a role in the making of the decision.
As with all legislation, the provisions of the TP Act and the powers that it confers must be construed and applied in such a way as to be consistent with the language and purpose of all the provisions of the Act: Project Blue Sky Inc. v Australian Broadcasting Authority [1998] HCA 28: (1998) 194 CLR 355, [69]. The Act contains no objects clause, but the tribunal may have regard to the minister's second reading speech to ascertain the purpose of the legislation, the mischief that it was designed to cure. The second reading speech of the TP Act noted that the Act was introduced in response to gang crime in New South Wales. It aimed to break the stranglehold that outlaw motorcycle gangs (OMCGs) had over the tattoo industry, but its purpose was not limited to eradicating the influence of OMCGs in the industry. The "fit and proper" criterion applied in the Act is of much broader application, as Montgomery SM explained in his comprehensive review of the authorities in Smith, at [38] to [41].
In Smith, Montgomery SM set out the approach to be adopted when undertaking a review of a decision to refuse an application for a licence as a result of an ASD (at [24] - [28] and [32] - [37]). Those principles may for present purposes be summarized as follows:
(1) As was noted above, the tribunal is required to take the ASD into account as an essential, legally relevant consideration to which weight must be given: at [24].
(2) While the ASD does not constitute a prima facie position which the applicant bears the burden of displacing, due weight must be given to it: at [25] - [26].
(3) Although the decision under review may be that of the secretary rather than the Commissioner, the tribunal may make a fresh determination as to whether the person is a fit and proper person to be granted a licence and whether it would be contrary to the public interest for the applicant to be granted a licence: at [31] - [32]; and
(4) The tribunal is to determine what the correct and preferable decision is on the basis of the material before it and any other lawful, discretionary basis; it is not confined to the grounds relied upon by the Commissioner or the secretary: at [27] - [28], [32] - [33].
The first issue to be considered, therefore, is the applicant is a fit and proper person to hold a tattoo operator licence.
In the context of the TP Act, unfitness can be indicated by criminal convictions, criminal associations, habitual recidivism, formal or informal links with OMCGs, failure to implement proper tattooing practices and general disregard for the law. 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.
Now aged 24, the applicant was fined $400 at Bankstown Local Court on 7 February 2018 on a charge of possessing marijuana (charge H66199025). The police fact sheet for that offence relates that at about 6:50 pm on 20 January 2018, police were patrolling an apartment complex in Villawood that is well known to police as an area where drug supply occurs. At that time police sighted the applicant walking into the apartment block and leaving within a very short time. He entered a grey Daihatsu with New South Wales registration. Police approached him and asked what he was doing. He replied that he was there to buy weed, adding that there were four sticks' worth of weed in his backpack on the passenger seat of his car.
Police searched the bag and found four small resealable bags containing cannabis inside the front pocket they immediately arrested and cautioned the applicant. He made full admissions to police, saying that the cannabis was his "and he was going to smoke it when he returned to work in a tattoo shop in Liverpool". The drug was weighed at Bankstown Police and proved to amount to 5.2 grams.
The applicant freely admits the offence but steadfastly denies that he said he was returning to the tattoo shop to smoke the marijuana. Rather, he claims that the officer asked him where he worked, and that he replied that it was at a tattoo parlour in Liverpool. He believes that the fact sheet contains an error resulting from a miscommunication, and his intention had been to take the drug home and smoke it there.
The respondents submitted that nothing turned on that point, given the other evidence showing the applicant's drug habit. In my view, however, it is quite material to the question of fitness and propriety, particularly as the respondents rely on it as showing that he would be unlikely to take a proper and responsible attitude towards his duties as a tattoo artist or to respect the law relating to tattoo parlours.
The evidence showing his propensity for conspicuous frankness and candour with the police and the tribunal in relation to his drug use history suggested, the respondents contended, that he had indeed probably admitted to the police that he was proposing to partake of the drug at the tattoo parlour. While that is certainly a possible interpretation of the evidence, there is a more plausible one. His established pattern of freely making admissions against his interest makes it more likely that his consistent denial of a particular action is truthful and should be accepted.
Further, it seems unlikely that he would have taken the trouble of contacting Const. Gunn if he had known that the officer's original account of the interaction had been correct in all respects. There is also the matter of the tattoo parlour burglar alarm. In his evidence at the hearing the applicant said that on the previous day he had learned from the tattoo parlour proprietor, Ms Deang, that she had just discovered that on the day of the offence the alarm had been set at 6:01 pm, which made it improbable that the applicant would have intended to return there after hours for any purpose. That representation is, however, somewhat ambiguous and obviously it is hearsay. Nevertheless, given the applicant's clear propensity to tell the truth, it cannot be dismissed entirely.
I therefore conclude that the applicant did not say he was returning to the tattoo parlour to smoke the cannabis, as he was planning to take the drug home and consume it there. It therefore follows that there is little evidentiary basis for the respondents' concern that if granted a licence he might expose patrons to health or other risks by performing tattoo procedures while under the influence of drugs.
The applicant has had a number of other encounters with the drug laws, however. In a period of little over four years, he received no fewer than three cannabis cautions, one on 30 October 2016, another on 13 October 2017 and a third on 28 January 2018, the last-mentioned coming only a week after his drug arrest on 20 January. He also featured in four other drug-related police event reports, on 18 October 2014, 4 July 2015, 19 July 2015 and 21 December 2017. If that pattern had continued, the applicant would have had little prospect of qualifying as a fit and proper person to hold a tattooist licence.
But it has not continued. The applicant does not appear to have come under adverse police notice for drugs or any other contraventions since 28 January 2018. One of the respondents' main concerns is whether there is sufficient evidence of the applicant's rehabilitation and breaking of his drug habit. Ms Johnson correctly pointed out that 14 months is not a long period of good conduct to set against his record of disregard for law, and in any event mere effluxion of time is an insufficient basis in itself for establishing that a person is rehabilitated.
As against that, his evidence that he has made a firm project of getting his life back on the rails and dedicating himself to earning his way into the tattoo industry is corroborated by Ms Deang, the proprietor of the Monarch tattoo parlour, in her signed letter of support dated 25 March 2019 (which, like the applicant's other documentary material, was unavailable to the primary decision-maker). Ms Deang writes that she has known the applicant for 14 months during which he has been volunteering at Monarch Tattoo Studio with duties including general cleaning, assisting employees and some customer service work, as he has expressed his interest in pursuing a career as a full-time tattoo artist. During that time, he has not, however, performed any tattoo procedures.
Ms Deang stated that he has shown great artistic potential and demonstrated a strong work ethic. He has expressed much remorse and shame about the reasons why his licence application was rejected. The studio has strict drug and alcohol codes and they do not condone that type of behaviour. She confirms that on 20 January 2018 the applicant had left the premises at 6 pm with no intention or reason to return, as they no longer needed his assistance that evening. He came back to the studio the following Monday, 22 January. He is a very talented artist with a promising future in the tattoo industry. He has dedicated a great deal of time to the industry and is kind and well-mannered. He has never entered the studio intoxicated by drugs or alcohol and is always well presented and ready to go above and beyond the call of duty for their employees and customers. He is very respectful and has a very positive outlook on life.
Another expression of support comes from Mr Patrick Truong in his signed letter dated 23 December 2018. The letter states that he has known the applicant for 13 years. While it was not an excuse for is offence, the applicant had faced a number of personal battles while growing up, with no clear direction for a career over a number of years. "However, with great certainty I along with family and peers have noticed Jason has found his first real passion in pursuing his tattoo artist career".
Mr Truong has had many long conversations with the applicant since the offence, and with his unquestionable dedication to his work and the countless hours of practice he has devoted to it, his commitment alone was enough for Mr Truong to understand his remorse. He had taken action to ensure that there would be no repeat offence by keeping his family and Mr Truong in tune with his emotional state and thought processes on how he will better himself moving forward.
While it is true, as the respondents point out, that the applicant has not sought medical advice or psychological counselling in relation to his drug habit, nor has he joined a support group, his apparently strong support from family and friends and his manifest commitment to his newfound direction in the tattoo industry provide grounds for a degree of confidence that he will not reoffend or jeopardize his future by returning to his drug habit. He has no links with OMCGs or other criminal gangs, although his past drug habit would have brought him into contact with criminal elements. He has no history of violence or threatening violence and his conduct while working as a volunteer at the Monarch Tattoo Studio has been beyond reproach. It is not suggested that he has ever performed any tattoo procedures without holding a licence. His candour in his dealings with the police, the Department and the tribunal counts in his favour. As the tribunal said in Wright v Commissioner of Fair Trading and Commissioner of Police, New South Wales Police Force [2017] NSWCATAD 98, [120], an applicant for a tattooist licence is not required to have led a life of unblemished rectitude. On the basis of all the evidence I find that the applicant is a fit and proper person to hold such a licence.
An alternative basis for refusing a licence is provided by s 16(5) of the TP Act, which provides that the regulations may provide mandatory or discretionary grounds for refusing the granting of a licence. By cl 13(2)(b) of the Tattoo Parlours Regulation 2013, the secretary has a discretion to refuse to grant a tattooist licence if satisfied that an applicant is disqualified from holding a licence, permit or authority under legislation administered by "a relevant Minister", defined in cl 3(3) to include the Minister for Police and Emergency Services. It is not disputed that the grounds on which the discretion is to be exercised are the same as those under the "fit and proper person" test. For the reasons set out above, I exercise that discretion in the applicant's favour.
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 so far as possible place themselves in the position of a member of the public who might use the applicant's services and ask whether that member of the public, knowing of the applicant's record, would object to the applicant as the driver of the taxi.
A finding that an applicant is not of fit and proper character to hold the type of licence in question would normally also necessarily mean that it would be contrary to the public interest to allow the person to hold the licence: Stiles v Commissioner of Fair Trading [2017] NSWCATAP 44, [34]. In this case, however, I have found that the applicant meets the fitness and propriety standards required for a tattooist licence. The question therefore becomes whether there are other public interest grounds justifying refusal.
The legislation's main object is to rid the tattoo industry of OMCG influence and infiltration by other criminal elements. As was noted above, the applicant has never had any association with any OMCG or any other criminal group. He has no history of violence or threatening violence and his conduct at the Monarch Tattoo Studio has been beyond reproach. His criminal conviction was 14 months ago, and although that is not a long time, he has not come under any form of 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 an active determination to make a fresh start in life, and ambition that is quite attainable in a young man of 24.
It is settled law that an applicant's private interests, such as in obtaining access to a reliable income stream, receive no weight in a consideration of the public interest or fitness and propriety: Austin v Commissioner of Police, New South Wales Police Force [2016] NSWCATAP 179, [72] - [73]; Butler v Commissioner for Fair Trading [2017] NSWCATAD 138, [114]. Nevertheless, matters directly affecting the individual can have a wider public interest relevance. In Wright at [121], [127], Scahill SM accepted that an applicant's working as a tattooist could be a significant aspect of his ongoing rehabilitation and a relevant public interest factor (see also Butler, [117], [122]).There is also a public benefit in a person being able to engage in gainful business or employment rather than being kept by the taxpayer: (id. at [127]; see also Allen v Commissioner for Fair Trading [2015] NSWCATAD 273, [70]).
There is thus a public interest in assisting the rehabilitation of persons who have fallen foul of the criminal law, so far as is possible without endangering public health, safety or security. The evidence here suggests that licensing the applicant as a tattooist would assist that process, especially as he is not qualified or equipped for any other kind of work. 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.
Issuing a licence could also confer a modest benefit on the taxpayer, as he does not wish to live on the dole and does appear to have the opportunity of progressing in the industry. I also see no danger that granting him a licence might undermine public confidence in the regulatory scheme.
But in view of the relatively limited time that has elapsed since his conviction, it would be prudent to stipulate that any licence issued should contain a condition requiring total abstention from all prohibited drugs. Although that is a legal requirement in any event, its incorporation as a s 10(1)(a) condition would mean that even a single instance of drug abuse would, under s 26(2)(a)(iii), empower the chief executive to cancel the licence without the need to be ready to prove that the holder was no longer a fit and proper person. Although the point was not canvassed at the hearing, that is my understanding of the law's effect.