O'Donnell v Commissioner for Fair Trading

The licensing regime

1. Senior Member Montgomery of this Tribunal has repeatedly summarised the relevant provisions of the licensing regime in a line of decisions from Smith v Commissioner of Police NSW Police Force and Fair Trading [2014] NSWCATAD 187 through to Austin v Commissioner for Fair Trading and Commissioner of Police NSW Police Force [2015] NSWCATAD 244.
2. In Austin at [2] Senior Member Montgomery summarised the regime under the Act as follows at paragraphs 3 to 15 inclusive: 3.The Act introduced licensing requirements for operators of body art tattoo parlours and tattooists. The regime came into force in November 2013. The licensing regime imposes a test of whether the person is "fit and proper" and whether it would be "contrary to public interest" to grant the licence or allow it to continue in force. It is an offence to carry on a body art tattooing business without an operator licence: section 6 of the Act. 4.Pursuant to Part 2 of the Act, body art tattooing businesses, body art tattooists and employed body art tattooists are to be licenced. It is an offence for those businesses or individuals, as the case may be, to fail to have the requisite licence: sections 6 - 7 of the Act. Businesses that only undertake cosmetic and medical tattooing procedures do not need a licence. 5.Pursuant to section 9 of the Act, there are two kinds of licence that may be granted: 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 organisation. Sole operators only require an operator licence. 6.A person may apply to Fair Trading for a tattooist licence pursuant to section 11 of the Act. Sections 12 - 13 of the Act provide for an application to be accompanied by a written statement in respect of close associates of applicants and for the fingerprinting and palm printing of applicants. 7.Pursuant to section 14(b) of the Act, upon receiving an application for a licence, Fair Trading 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 the licence, and whether it would be contrary to the public interest for the licence to be granted. 8.Section 19 provides that the Commissioner is to inquire into and determine, and report to Fair Trading on those issues. Subsection 19(3) provides that, 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. 9.In making a report under section 19(3) the Commissioner may have regard to any criminal intelligence report or other criminal information ("Criminal Information") held in relation to the applicant 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. 10.Evidence of this kind is also admissible in this Tribunal. Section 27(4) of the Act provides that Criminal Information must not be disclosed without the agreement of the Commissioner. 11.Pursuant to section 49(2) of the Civil and Administrative Tribunal Act 2013 ("the NCAT Act") a confidential hearing may be conducted wholly or partly in private; and pursuant to section 64 of the NCAT Act and/or section 27(4)(b) of the Act, evidence of any Criminal Information and submissions may be heard in the absence of the of the public, the applicant and the applicant's representative. 12.To the extent that was necessary I made orders under these sections. 13.Pursuant to section 20, neither the Commissioner nor Fair Trading are required to give any reasons for the determination or for not granting the licence, if such reasons would disclose any criminal intelligence report or other criminal information. 14.In some circumstances Fair Trading has discretion as to whether to grant a licence. However, a licence must not be granted if the Commissioner makes an adverse security determination in relation to the applicant: section 16(3)(c). 15.The Tribunal's jurisdiction to review the decision is constrained by the terms of the Act. Pursuant to section 27(i)(a) of the Act, review may be sought of the refusal or failure by Fair Trading to grant a licence. The Act does not expressly confer jurisdiction on this Tribunal to review any report or determination made by the Commissioner.
3. In respect of the Tribunal's jurisdiction, I note the observations from paragraph 15 of the decision in Austin. However it is well established practice that for practical purposes, in order to discharge the relevant function under the legislative regime, the Tribunal's jurisdiction must be sufficient to make a fresh decision.
4. In that regard the decision of Smith at [2] canvassed this issue in some detail. At paragraphs 13 to 37 of Smith the Tribunal embarks on a broad examination of the jurisdiction and powers of the Tribunal specifically in the context of administrative review under the Act. From paragraphs 26 to 36 inclusive the Tribunal indicates the basis for its view in respect of the jurisdiction. 26.While I agree that the Tribunal would only form a view after consideration of any material that the Commissioner put before it, I do not agree that the adverse security determination is a starting point or prima facie position. 27.In my view section 27(3) of the Act is to be construed as giving the Tribunal the jurisdiction to make a fresh determination on the basis of the material placed before it. The Tribunal is not confined to the grounds relied upon by the Commissioner in making the adverse security determination. 28.The Tribunal may make its decision on any other lawful, discretionary basis. In doing so there is no need to revisit the adverse security determination. Pursuant to section 27(3)(a) of the Act the Commissioner is a party to the proceedings. The Commissioner is able to present material and argument in relation to the matter to be determined. The Commissioner is able to present criminal intelligence reports or other criminal information to the Tribunal and subsections 27(4), (4A) and (4B) of the Act provide safeguards in relation to that material. 29.These safeguard provisions are comparable to those found in section 29 of the Security Industry Act 1997 and the approach taken by the Tribunal in determining applications under that Act. 30.To some extent, the scheme established by the Act is comparable to that under the Explosives Act 2003. That Act regulates the handling of explosives and explosives precursors, and makes provision in relation to the conveyance of explosives, their negligent handling, and the supply of explosives to minors. The WorkCover Authority is the regulatory authority but section 13 of the Explosives Act enables the regulatory authority to obtain reports from the Commissioner of Police in relation to a security clearance or licence. The impact of a report recommending "that the person should not be granted a security clearance or licence on the basis of criminal or security intelligence or other information available to the Commissioner" is a mandatory refusal of the security clearance. The security clearance is a prerequisite to obtaining licence. 31.Notwithstanding the nature of the scheme and the mandatory consequences of a negative report from the Commissioner, the Tribunal has construed that legislative scheme as providing jurisdiction to make a fresh determination on the basis of the material placed before it. For a discussion of the scheme established under the Explosives Act see YJ v Chief Executive Officer, WorkCover Authority [2006] NSWADT 264. 32.Section 63 of the ADR Act provides that in determining an application for review of an administratively reviewable decision the Tribunal is to make the correct and preferable decision having regard to the material before it, and any applicable written or unwritten law. While it is clear that the Director-General is the administrator for the purposes of section 63 of the ADR Act, and the administratively reviewable decision is that of the Director-General, in my view section 27(3)(c) of the Act is to be construed as giving the Tribunal the power to make a fresh determination, notwithstanding the wording of section 8 of the ADR Act. 33.It is also my view that in considering an application for review under the Act, the Tribunal is not constrained to have regard only to the material that was before the Director-General, but may have regard to any relevant material before it at the time of the review. 34.This is comparable to the approach taken by the Tribunal in determining applications under the Explosives Act.
5. In the absence of any compelling submissions to the contrary, I agree with the approach previously taken by the Tribunal, as set out in the decision of Smith at [2]. The decision also addresses how the Tribunal might approach the issue of confidential evidence having regard to the provisions of the Act and the cases on the powers and duties to afford procedural fairness in the face of a confidentiality regime. In my view those provisions are now well established and understood by the parties and as they were not a live issue ventilated in these proceedings, I will not reproduce any of that commentary in these reasons.

Background

1. The applicant is a young man who has developed some ability and experience in tattoo art. In material before the Tribunal it was reported that he struggled in his later years at school (with his behaviour) including anger management. The applicant had been living in a regional inland centre in Northern New South Wales and in his early adult years his behaviour had brought him to police attention.
2. By the age of 22 he had accumulated a number of criminal antecedents for offences relating to corporal violence, and public order type offences usually where alcohol was a factor. It was uncontroversial from the applicant's history that there had been a period of what could be characterised as 'reckless behaviour'. In recent years the applicant had commenced an apprenticeship and prior to the hearing of his application had been offered a position at a Tattoo Parlour. In early 2015 the applicant relocated to live with his parents who live in coastal New South Wales hundreds of kilometres by road away from the location of his early adult offending. As will be set out later, the applicant now seeks to commence a new (and it was submitted) directed aspect of his life with a stable and grounded occupation as a tattoo artist.
3. On 12 February 2015 the applicant lodged an application for a tattooist licence with the first respondent (agency). Under the provisions and requirements of the Act the second respondent provided a Report of Security Determination to the first respondent in September 2015. That report deemed or determined that the applicant was not a fit and proper person to be granted a Tattooist licence due to his criminal history. In addition it determined that it would not be in the public interest for the licence to be granted due to the applicant's criminal history.
4. In the open evidence tended by the respondent was a print out of the applicant's criminal history. The offences include:

• Common Assault (April 2010)
• Destroy or Damage Property (April 2010)
• Behave in Offensive Manner in / Near Public Place / School (April 2010)
• Behave in Offensive Manner in / Near Public Place / School (November 2013) The earlier convictions arose from charges in January 2010 and the last conviction arose from a charge in December 2012.

1. Outside of any criminal record the history indicates that the applicant was charged with two other counts, Assault Occasioning Actual Bodily Harm - AOABH, and Offensive Language in respect of the January 2010 charges however these were withdrawn by the prosecution. In December 2012 the applicant was also charged with AOABH and this matter was dismissed by the Court. There also appears to be a minor larceny matter which was dealt with Criminal Infringement Notice (CIN) and satisfied by the payment of a fine. Minor antecedents also exist for cautions for drug possession, alcohol in a public place as a minor and skateboarding in contravention of Council by laws.

The Issue

1. The issue which the Tribunal must determine is whether the applicant is a fit and proper person to hold the Tattooist Licence that he is seeking, and whether it is in the public interest to grant the licence.

The Hearing

1. The applicant's matter was heard by the Tribunal on 15 February 2016. The applicant acted for himself but was supported at the hearing by his mother and father. The respondents were represented by Counsel and instructing Solicitors.
2. It was apparent at the outset of the hearing and due to the nature of some of the material filed by the respondent, that a portion of the hearing would be in confidential session (excluding the applicant and his representatives) in accordance with the provisions of section 49 (2) of the Civil and Administrative Tribunal Act 2013.

Applicant's Evidence

1. The applicant gave evidence at the hearing. The applicant's main submission was that he had not re-offended for over two and a half years and that he had taken a different direction in his life since his earlier offending. He explained the circumstances of the 2013 offence involving offensive behaviour in that he stated that he did not spit at the other person but blew cigarette smoke in their face / direction. His evidence was that the CCTV outside the 'Generation Inc Tattoo Parlour' would establish those matters.
2. The applicant admitted that he had 'anger management' issues and problems at the time of his offending but that some of this was related to his place on the periphery of the autism spectrum, and in support of this advised that he had been in a 'gifted and talented' placement / program due to this assessment.
3. The applicant gave evidence that the circumstances of the first offence where that he came to the assistance of a friend. His evidence was in contrast to the police facts of the incident although it appeared that the incident followed some earlier altercation between the victim and his associates and the applicant's friend.
4. The applicant gave evidence in respect of the opportunity that had recently been offered to him, that is the offer of full time employment as a Tattoo Artist at a Parlour in the Newcastle area. Whilst the offer was formally made in February 2015 (12 months prior to the hearing), the applicant's evidence at hearing was that he had been advised that the offer remained open to him, and that the prospective employer would wait and see if he could complete the regulatory requirements satisfactorily.
5. The applicant had been assisted by the Legal Aid Commission prior to the hearing, and written material was tendered by Legal Aid on his behalf. That material comprised detailed written submissions and annexures which took the form of evidence and material broadly in support of the application. The annexures included:

• A written reference by J Brooks dated 17 November 2015.
• A written reference by R French dated 16 November 2015.
• A written reference by R Elwin dated 11 November 2011.
• Six folios of artwork where it was submitted that the applicant was the author / artist.

1. Other than the reference by R French, there was no reference to the applicant's criminal history. This means that little weight (if any) can be attributed to those references because the purpose of the evidence tendered in these proceedings is to ascertain whether the applicant is a fit and proper person and it is in the public interest that he be issued a licence.
2. Whilst the concept of fit and proper involves a component of knowledge and ability / skill, that is not the basis for the adverse determination leading to the decision under review. The main aspect upon which the respondent's decision was based was the criminal antecedents of the applicant and particular the observation that the applicant has a disregard for the law and resorts to violence and possesses violent tendencies.
3. In addition the respondent submitted that the applicant's private interest in obtaining a Tattooist Licence cannot outweigh or override the public interest test that must be met in order for a licence to be issued.
4. In any event the Tribunal notes that the applicant appears to possess the 'non character' aspects of fit and proper, that is knowledge skill and experience, and those matters (his artistic talent, and prospective employment) were not challenged in the proceedings by the respondent.

Respondent's Evidence and Submissions

1. In the open session the respondent took the Tribunal through the statutory provisions and the basis for the adverse determination and ultimate decision to refuse the licence application. The respondent submitted that they only relied upon the assessment that the applicant meets the criteria for disqualification from holding a licence, permit or authority under the Security Industry Act 1997 and that the first respondent does not seek to rely on references in the Notice of Information Relevant to the Exercise of the Function, to the applicant being disqualified under the Firearms Act 1996 or the Weapons Prohibition Act 1998.

The Adverse Security Determination

1. The second respondent provided information to the Tribunal on a confidential basis. This material was considered by the Tribunal in a confidential session of the hearing in the absence of the applicant. As indicated above at paragraph 14, the applicant was aware that a confidential session took place, and that there was in existence redacted (confidential) material, but the applicant was not aware of the nature of that material.
2. The applicant (and the Tribunal) had been provided with a copy of the adverse security determination and associated material in a redacted form.

(NOT FOR RELEASE TO APPLICANT, FIRST RESPONDENT OR PUBLIC)

1. [Not for publication]
2. [Not for publication]
3. [Not for publication]
4. [Not for publication]
5. [Not for publication]
6. [Not for publication]

Consideration of confidential evidence

1. [Not for publication]
2. [Not for publication]
3. [Not for publication]
4. [Not for publication]
5. [Not for publication]
6. [Not for publication]

Respondents Submissions

1. In open hearing the respondent submitted that the applicant has been involved in incidents of violence on three occasions resulting in two adverse Court outcomes. The last incident was only fairly recent being in 2013.
2. The respondent submitted that in their view, the applicant is a person who is prepared to use violence to resolve conflict. In respect of the consideration of 'fit and proper', the respondent submitted that this extends to a consideration of a person's moral rectitude, their traits and their characteristics.
3. It was submitted that someone who is willing to take the law into their own hands does not possess the necessary characteristics to be considered a fit and proper person. The respondent also submitted that it is also of concern that the person under assessment (the applicant) has shown a disregard (by their conduct) of the matters required for a licence.
4. In the respondent's view the applicant failed the Fit and Proper grounds test, as his position was adverse to satisfying such a criteria, and he failed the Public Interest grounds test, for the same reasons. Whilst it was conceded that the submission may seem harsh, the respondent submitted that the public interests prevailed under the Act over the private interests.

Applicants Submissions

1. The applicant submitted at the conclusion of the hearing that he wishes to be a productive member of society in an area where he can demonstrate aptitude.
2. In other written submissions it was submitted that the applicant had not re-offended since September 2013, and that in all matters resulting in a conviction the applicant had pleaded guilty and taken full responsibility for his actions. It was submitted that none of his offences were in any way connected with organised crime or outlaw motorcycle gangs.
3. The applicant through his lawyers submitted that the offer of an apprenticeship is the applicant's opportunity to become a productive member of society and for once and for all to be diverted away from the criminal justice system.
4. The applicant submitted that he had matured since his offending behaviour and is at a point in his life whereby he wishes to take advantage of his artistic talent by making a meaningful life for himself and contributing to society.
5. In respect of the violent nature of some of his offences, the applicant submitted that he had and has taken steps to mitigate his behaviour and address his previous anger issues.

Consideration

1. The notion of fit and proper has regularly been considered by Courts and Tribunals especially when considering matters of an occupational nature. In respect of the regime covered under the Act, this Tribunal has previously set out the relevant considerations having regard to statutory interpretation and precedent.
2. In addition a useful review of the authorities was provided in the case of AJO v Director-General Department of Transport [2012] NSWADT 101 (25 May 2012) at paragraphs 24 to 33: 24.Assessment of whether a person is fit and proper to be the holder of a licence is different from, but related to, an assessment of whether a person is of good character. 25.In Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321,Chief Justice Mason explained that, at 380: 'The question whether a person is fit and proper is one of value judgment. In that process the seriousness or otherwise of particular conduct is a matter for evaluation by the decision maker. So too is the weight, if any, to be given to matters favouring the person whose fitness and propriety are under consideration.' 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." 26.A person's fitness is to be gauged in the light of the nature and purpose of the activities that the person will undertake. In Hughes and Vale Pty Ltd v New South Wales (No. 2) [1955] HCA 28; (1955) 93 CLR 127 the High Court said (at 156-7): "The expression 'fit and proper' is of course familiar enough as traditional words when used with reference to offices and perhaps vocation. But their very purpose is to give the widest scope for judgment and indeed for rejection. 'Fit' (or 'idoneus') with respect to an office is said to involve three things, honesty, knowledge and ability ... When the question was whether a man was a fit and proper person to hold a licence for the sale of liquor it was considered that it ought not to be confined to an inquiry into his character and that it would be unwise to attempt any definition of the matters which may legitimately be inquired into; each case must depend upon its own circumstances." 27.InSobey v Commercial and Private Agents Board 20 SASR 70 Walters J said: "In my opinion what is meant by that expression is that the Applicant must show not only that he is possessed of a requisite knowledge of the duties and responsibilities 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." 28.Fitness and propriety are flexible concepts. A consideration of whether a person is fit and proper involves an assessment of their knowledge, honesty and ability in the context of the role they are seeking to undertake. Thus in Obradovic -v- Commissioner for Fair Trading, Office of Fair Trading (GD) [2006] NSWADTAP 18 the Appeal Panel agreed that a formerly licenced building contractor should have his application for a new licence refused, despite there being no evidence that he was dishonest or of bad repute. Evidence that he had been extremely tardy and intransigent in dealing with customer complaints, and the regulator, when he held a licence, was sufficient to conclude that he was not fit and proper for the role. In that case the licensing scheme was among other things, designed to protect consumers and to provide them with adequate means of redress against licensed contractors. In Bond the assessment occurred in the context of whether the Applicant was a fit and proper person to hold a licence under the Broadcasting Act 1942 (Cth). 29.InSaadieh v Director General, Department of Transport [1999] NSWADT 68, Hennessey DP set out the factors to be taken into account in determining a person's suitability and fitness to obtain a taxi authority. They are: 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 re-offend, be the subject of further complaints or commit further traffic offences. 30.In Director General, Transport NSW v AIC (GD) [2011] NSWADTAP 65 the Appeal Panel, at [37] the Appeal Panel drew attention to the role public interest considerations play in the assessment of fitness and propriety. The courts have emphasised the connection that assessment of repute, fitness and propriety have in a regulated context with public interest considerations. Repute, fitness and propriety involve 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] HCA 33; (1990) 170 CLR 321 (26 July 1990) at [64] per Mason CJ. .... The comments of Kirby P in Pillai v Messiter [No.2], quoted above, are an example of this. 31.The discretion vested in a decision maker in determining whether a person is fit and proper, in any given context, was said by the Full Court of the Federal Court in Commissioner for ACT Revenue v Alphaone Pty Ltd (1994) 49 FCR 589 at 389, per Northrop, Miles and French JJ, to "give wide scope for judgement and allow broad bases for rejection." 32.As was made clear by Toohey and Gaudron JJ in Bond, issues of character and reputation may play a determinative role in deciding whether a person is fit and proper. Their Honours also clearly highlighted that there is a difference between the two. They explained that an assessment of character is relevant because it is an indicator of a person's likely future conduct when considering how a person might act in the context of the role they are seeking to undertake. Reputation on the other hand, provides an indication of the public perception of future conduct in that role. In Re T and the Director of Youth and Community Services [1980] 1 NSWLR 392, Waddell J explained, at 393: 'A distinction must be drawn between "repute" or "reputation" and "character" or "disposition". The word "character" is sometimes used as meaning a person's reputation, but "reputation" is not ordinarily used to mean character. The distinction has been referred to in many decisions of the courts." In Melbourne v The Queen [1999] HCA 32; [1999] 198 CLR 1 at 15 McHugh J explained: "... character refers to the inherent moral qualities of a person or what the New Zealand Law Commission has called "disposition - which is something more intrinsic to the individual in question". It is to be contrasted with reputation, which refers to the public estimation or repute of a person, irrespective of the inherent moral qualities of that person." 33.In Ex Parte Tziniolis; Re Medical Practitioners Act (1966) 67 SR (NSW) 448 Walsh JA, at 450, said that in determining questions of character: "... the court is required to consider matters affecting the moral standards, attitudes and qualities of the Applicant and not merely to consider what is his general reputation." That case was concerned with an application for registration of a medical practitioner. His Honour went onto explain that the Court was entitled to inquire into personal misconduct, as well as professional misconduct, in considering whether the Applicant was a man of good character: "... whilst recognizing that there may be some kinds of conduct deserving of disapproval which have little or no bearing on whether or not it shows the Applicant for registration as a medical practitioner is a person of good character. In this respect, I think, that some assistance can properly be obtained as to the mode of approach to be made from the observations made in cases where the was whether or not that a person was fit and proper to be a barrister, such as those in Ziems v Prothonatory of the Supreme Court of NSW [1957] HCA 46; (1957) 97 CLR 279." Thus, as with fitness and propriety, assessment of character is to be made in the context of the nature and purpose of the activities that the person is seeking to undertake. In Director General, Department of Transport v Z (No.2) (GD) [2002] NSWADTAP 37 the Appeal Panel explained: 'Good repute' refers to the way reasonably-minded people assess an individual's current reputation, with reasonably precise knowledge of those matters that put the person's reputation in doubt. The fact that the person produces evidence from witnesses who vouch in general terms for the person's reputation cannot be conclusive. Equally, care must be taken, as we see it, not to use the 'good repute' requirement as a way of bringing into consideration stereotypes or assumptions which offend, for example, against human rights or anti-discrimination standards.
3. Many of these considerations were raised by the respondents in their written submissions. The Act also makes provision for the granting of a licence to be in the public interest. The respondent referred to the case of Smith in considering the Tribunal's position on how such a concept should be considered under the Act.
4. In Smith at [2] Senior Member Montgomery observed the following at paragraphs 42- 47: The concept of the 'public interest' 42. The Courts and the Tribunal have held that the concept of the 'public interest' is designed to give the broader interests of the community priority over private interests. In Comalco Aluminium (Bell Bay) Ltd v O'Connor and Others (1995) 131 ALR 657 at 681 the 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. 43. Discretion to make a decision "in the public interest" is not confined except by the scope and purpose of the legislation itself: O'Sullivan v Farrer [1989] HCA 61; (1989) 168 CLR 210 at 216 per Mason CJ, Brennan, Dawson Gaudron JJ. Applying a public interest test is a question of fact and degree: Re Queensland Electricity Commission and Ors; Ex parte Electrical Trades Union of Australia [1987] HCA 27; (1987) 72 ALR 1 at 5. 44. In Director of Public Prosecutions v Smith [1991] VicRp 6; (1991) 1 VR 63 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 interest of the public as distinct from the interest of an individual or individuals" 45. In Commissioner of Police v Toleafoa [1999] NSWADTAP 9 at paragraph [25] the Tribunal's Appeal Panel said: 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" 46. The Tribunal has also found that an Applicant's personal interest in retaining his licence cannot outweigh the public interest in having full confidence in the professionalism of people involved in the security industry: Blissett v Commissioner of Police, New South Wales Police; Webb Protection Australia Ply Ltd v Commissioner of Police, New South Wales Police [2006] NSWADT 114 at paragraph [32]. 47. In Constantin v Commissioner of Police, NSW Police Force (GD) [2013] NSWADTAP 16 at paragraph [33] the Appeal Panel held: 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.
5. I have carefully considered all of the evidence submissions and material put forth by the parties in these proceedings. I have taken all of it into account even if I have not referred to all matters specifically in these written reasons.
6. Having considered all of the matters put forth, by the parties, in my view the applicant no longer presents as a person not fit and proper to hold a Tattooist licence under the Act. The applicant has in my view significantly matured in recent years and has significantly rehabilitated himself from the young man and adolescent he was when living in the New England area. He has not come to adverse police attention for almost three years, and his offences are (in my view) consistent with a young person who was at the time in 2013 on the edge of the criminal justice system, facing a series of choices to either lead an anti-social life, or become a pro-social and law abiding member of the community.
7. He has relocated (with the support of his family) to live a significant distance away from his former life. Notwithstanding the respondent's significant objection to some of the opinions in the medical report, it is clear that the applicant took steps to address his prior behaviour and these steps would appear to have been successful.
8. The one reference which could be relied upon with some confidence, which discloses the applicant's antecedents, indicates in my view the clear pro-social qualities and current choices of the applicant. I therefore make a finding that the applicant is a fit and proper person to be granted a licence. I make this finding having regard to the matters set out above in the evidence, consideration of the evidence, and the case law.
9. In my view sufficient time has passed (almost three years) when one has regard to the low to middle level of seriousness of the applicant's prior criminal history (and noting my comments in the confidential paragraphs), to remove any concerns of risk to the public should the licence be granted. I therefore make a finding that it is in the public interest to grant the licence.

Conclusion

1. I have made the above findings having regard to the objects of the Act. Having made a finding that the applicant is a fit and proper person, and that it is in the public interest for the licence to be granted, I make the following orders:

Orders 1. The decision to refuse the applicant's application for a tattooist licence is set aside. 2. The applicant's application for a tattooist licence is granted. 3. Pursuant to section 64 of the Civil and Administrative Tribunal Act 2013 the publication of paragraphs 27-38 (inclusive) of this decision (except to the second respondent) is prohibited. 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: 24 April 2023