Owen v Commissioner for Fair Trading

Nature of review

1. A person whose application for a licence under the Act has been refused may apply to this Tribunal for an administrative review of that decision (s 27(1)).
2. In circumstances where, in accordance with s 14 of the Act, Fair Trading has referred a licence application to the Commissioner for an investigation and determination as to whether the applicant is a fit and proper person to be granted the licence and whether it would be contrary to the public interest for the licence to be granted, and the Commissioner has made an adverse security determination, Fair Trading must refuse to grant the licence.
3. On review, however, the Tribunal is not bound by the security determination and must make a fresh determination, on the basis of the information before it, 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 (Austin v Commissioner for Fair Trading & Commissioner of Police [2016] NSWCATAP 179 at [37]).
4. The issues in this case are therefore whether Mr Owen 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. The major factor in determining these issues is Mr Owen's past criminal history.

The respondents' evidence

1. The Applicant has been provided with the adverse security determination in a redacted form. An unredacted copy of that document has been provided to the Tribunal on a confidential basis and the Commissioner provided information to the Tribunal in the absence of the Applicant. The Applicant is aware that a confidential session took place but he is not aware of the information that was presented.
2. The confidential evidence is not extensive and, given the candid admissions made by Mr Owen during the hearing, it is not necessary to refer explicitly to that evidence in these reasons.
3. The open evidence provided by the respondent was to the effect that Mr Owen has a substantial criminal record in New South Wales and one conviction in Queensland. In brief, the convictions are: 1. 13 June 2001: assault occasioning actual bodily harm for which Mr Owen received a 200 hour community service order. According to the Police Facts Sheet, on 8 December 2000 Mr Owen was a passenger in a car. He got out of the car and punched the victim once in the head. The victim's head hit a steel pole and he fell to the ground unconscious. Mr Owen got back into the vehicle which drove off. The community service order was revoked in 2002 and Mr Owen received a four month suspended prison sentence. 2. 12 February 2003: convictions for negligent driving (not occasioning death or grievous bodily harm) (fined $250) and drive with high range PCA (fined $750 and disqualified from driving for 12 months). The incident out of which the convictions arose occurred in December 2002. 3. 6 June 2005: convictions for resisting an officer in the execution of duty (fined $400) and for assaulting an officer in the execution of duty (fined $750). The convictions arose out of an incident in April 2005 where police attended a fight between about 25 people who were attending a birthday party. According to the Police Facts Sheet, Mr Owen was verbally abusive towards police, refused to move away, threw his arms about and pushed a police officer in the chest. 4. 6 June 2005: a conviction for causing fear to three people (fined $500). This conviction arose out of the same factual circumstances in (b) above. The applicant was a driver of a vehicle with three passengers. The police activated warning lights to indicate to the driver to pull over. Mr Owen lost control of the vehicle and crashed into a small tree causing moderate damage to the vehicle. Two of the passengers got out of the vehicle and argued with Mr Owen. A third was found slumped in the back seat and was not breathing. Police were able to resuscitate him before the ambulance arrived. 5. 15 January 2014: two convictions for possession of a prohibited drug (fined $300 for each conviction). The applicant was a passenger in a vehicle stopped by police. The police smelled a strong odour of cannabis in the vehicle. They searched Mr Owen and found one tab of MDMA. Police also found a glass jar of cannabis belonging to Mr Owen in a backpack in the vehicle. 6. 10 March 2016: a conviction for behaving in an offensive manner in a public place (fined $200). On 9 February 2016 Mr Owen had been refused service at a hotel because he was intoxicated. He did not leave the area when requested by security to do so and took a beer from another patron and began to drink it. He walked away but returned and then began to dance around the security guard in a boxer's stance asking the guard: You want to swing. You want to box?
4. Mr Owen also appeared in Warwick Magistrates Court in Queensland on 12 November 2014 charged with possession of a dangerous drug and contravene a direction. He was fined $400 and no conviction was recorded in relation to all charges. He has also come to the attention of police in NSW on a number of other occasions, predominantly in relation to suspected illicit drug use, but no charges have resulted.
5. In addition, Mr Owen has been issued with 27 transport infringements since 2001, primarily for not having a valid train ticket. The most recent infringements for this reason occurred in January, February and July 2016.

Mr Owen's evidence

1. Mr Owen agreed with the evidence presented by the respondent with respect to his criminal history with one or two exceptions. In relation to item (c) above at paragraph 9, he denied he hit a police officer. He said he pled guilty because his lawyer told him that it would be difficult to prove he didn't hit the officer and he might get a jail sentence. Mr Owen clarified that the injured man in the car referred to in (d) above was not injured in the accident but had been bashed at a party and Mr Owen was getting him away. He acknowledged he was drunk at the time.
2. Mr Owen said he developed a drug dependency in his late teens. He said his behaviour was largely self destructive and involved the use of drugs and alcohol. This reached its height when he was in his early 20s and using marijuana daily. He said that by the time he was 26 or 27, he was not using marijuana daily but would smoke joints socially. He was, however, drinking heavily and his alcohol consumption reached its heights in about 2012 when he drank large amounts of spirits daily.
3. Mr Owen said that in 2013 he began his current relationship with a woman who does not drink or consume drugs. His alcohol consumption reduced at this time but he would binge drink at social events. He states he has been drug free since New Year's Eve 2014 and has consumed alcohol on two occasions since then.
4. In relation to those two occasions, Mr Owen said that the first time in February 2016 was on his birthday. He said he had been sober for 14 months and thought it would be alright to have a couple of drinks. Instead, he drank to excess and got into trouble with police (item (f) above). He said he was disappointed with himself and regretted his behaviour. He said he also had a beer with a friend for his friend's birthday in September 2016. He did not drink to excess and was the designated driver.
5. In relation to his recent infringement notices for travelling or attempting to travel without a ticket, Mr Owen said that one related to the charges against him in February 2016. He said he was released from Surry Hills Police Station and had no money to get home and he tried to take the train. On the more recent occasion in July 2016, his Opal card ran out of credit.
6. Ironically, Mr Owen was a youth worker and then a drug and alcohol support worker at a youth rehabilitation centre from 2005 to 2014. He lost his job because of the drug possession charges in 2014. He was also a member of a music band for about 10 years but left the band in 2014.
7. He returned to painting and visual art, an activity he had engaged in since he was a child, and in 2015 was accepted into the National Art School. At the time he was receiving counselling for severe anxiety and depression following a nervous breakdown and was on medication. He received high distinctions in his course but was unable to continue as he could not afford it. Mr Owen said he had a lot of accumulated debts and declared bankruptcy in mid 2016.
8. Mr Owen said he became interested in tattoo art and spent a year as an unpaid apprentice at a private tattoo studio, Bright Lights Tattoo Studio, in Balmain. The studio has offered him employment if he obtains a licence. Mr Owen states that he is now 35, is in a stable relationship and is a father. He lives with his elderly mother and looks after his 7 year old daughter from a previous relationship every fortnight. He said he spends most of his time with his family and his partner of three years.
9. Mr Owen states he is ashamed of his past behaviour. He states he is determined to remain drug and alcohol free and keeps away from places where he could drink. He admitted that if he were to relapse and drink or take drugs to excess, he would most likely engage in criminal activity.
10. Mr Owen is still on medication for anxiety and depression and sees his doctor every month. He also sees a psychologist regularly and practices mindfulness and breathing exercises. He has a mental health plan and is able to see the psychologist six times a year on Medicare. He said he also has access to services at Campbelltown Mental Health Community Service. Mr Owen said he also sees a personal trainer and a nutritionist to help him stay focussed on a healthy lifestyle.
11. Mr Owen has provided a copy of his mental health plan and a letter dated 29 January 2017 from his psychologist who states that Mr Owen is drug free and is dedicated to changing his life. He also states that he now attends Alcoholics Anonymous (AA) meetings twice a week and that he is committed to sobriety.
12. Mr Owen has proposed that he would abide by any conditions placed on his licence and proposes several possible conditions, including continuing to see his doctor and psychologist, attending AA meetings and undergoing regular urine tests. Mr Owen has also provided letters from the Australian Tattooists Guild in which the Vice President of the Guild states that members of the Guild committee would put in place a support program for Mr Owen for a period of two years.
13. Mr Owen also provided a considerable number of character references in support of his application. The majority are aware of his past criminal convictions and state they have witnessed a change in his behaviour and believe he will not reoffend. All speak highly of him.

Fit and proper

1. The expression 'fit and proper' is a common statutory term and has been considered by this Tribunal and in other jurisdictions in numerous cases.
2. In Hughes and Vale Pty Ltd v New South Wales (No.2) (1955) 93 CLR 127 at 156-7 the High Court said: The expression 'fit and proper' is of course familiar enough as traditional words when used with reference to offices and perhaps vocation. But their very purpose is to give the widest scope for judgment and indeed for rejection. 'Fit' (or 'idoneus') with respect to an office is said to involve three things, honesty, knowledge and ability ... When the question was whether a man was a fit and proper person to hold a licence for the sale of liquor it was considered that it ought not to be confined to an inquiry into his character and that it would be unwise to attempt any definition of the matters which may legitimately be inquired into; each case must depend upon its own circumstances.
3. These sentiments have been echoed in cases before the Tribunal and it is generally accepted that what is fit and proper needs to be determined by reference to the activities in issue and is to be gauged in light of the nature and purpose of the activities that the person will undertake (AJO v Director-General of Transport [2012] NSWADT 101 at [26]; Austin v Commissioner for Fair Trading & Commissioner of Police [2016] NSWCATAP 179 at [82]).
4. In Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 380 Toohey and Gaudron JJ said: The expression "fit and proper person", standing alone, carries no precise meaning. It takes its meaning from its context, from the activities in which the person is or will be engaged and the ends to be served by those activities. The concept of "fit and proper" cannot be entirely divorced from the conduct of the person who is or will be engaging in those activities. However, depending on the nature of the activities, the question may be whether improper conduct has occurred, whether it is likely to occur, whether it can be assumed that it will not occur, or whether the general community will have confidence that it will not occur. The list is not exhaustive but it does indicate that, in certain contexts, character (because it provides indication of likely future conduct) or reputation (because it provides indication of public perception as to likely future conduct) may be sufficient to ground a finding that a person is not fit and proper to undertake the activities in question.
5. They went on to say at 388: The question whether a person is fit and proper is one of value judgment. In that process the seriousness or otherwise of particular conduct is a matter for evaluation by the decision maker. So too is the weight, if any, to be given to matters favouring the person whose fitness and propriety are under consideration.
6. In Sobey v Commercial and Private Agents Board (1979) 22 SASR 70 Walters J said: In my opinion what is meant by that expression is that the Applicant must show not only that he is possessed of a requisite knowledge of the duties and responsibilities devolving upon him as the holder of a particular licence ... but also that he is possessed of sufficient moral integrity and rectitude of character as to permit him to be safely accredited to the public ... as a person to be entrusted with the sort of work which the licence entails.
7. In Smith v Commissioner of Police & Commissioner for Fair Trading [2014] NSWCATAD 184 at [19-20] in the context of the Tattoo Parlours Act, Senior Member Montgomery stated: [19]…There is no "Principles and Objects" section within the Act. The Tribunal can look at Hansard and the Minister's speech to ascertain the purpose of the Act - the mischief that the statute was designed to cure. In his second reading speech on the introduction of the Bill to Parliament, the Minister for Police and Emergency Services Mr Gallacher noted that the Act was introduced in response to gang crime in NSW. It aims to break the stranglehold that outlaw motorcycle gangs have over the tattoo industry. It was anticipated that removing bikies from the tattoo industry will reduce the reasons for rival gangs to fight turf wars, because these businesses will no longer be symbols of a gang's territory… [20] While the second reading speech focused on the involvement of outlaw motorcycle gangs in the tattoo industry, it is clear from the Act that the broader intention is to rid the industry of any criminal or otherwise undesirable element and the avoidance of improper conduct.
8. In Allen v Commissioner for Fair Trading and Commissioner for Police [2015] NCWCATAD 273 at [49] the Tribunal stated that, in the context of the Act, "unfitness can be indicated by criminal associations, habitual recidivism, formal or informal links with OMCGs, failure to implement proper tattooing practices and general disregard for the law".
9. The respondent's case that Mr Owen is not a fit and proper person rests on his criminal history.
10. In Saadieh v Director-General, Department of Transport [1999] NSWADT 68 at [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.

1. There is no doubt that Mr Owen's criminal history is lengthy. He has a conviction for assault in 2001 and, while he denies that he actually assaulted a police officer in 2005, that conviction stands. By his own admission he used illicit drugs for a lengthy period and has several convictions related to that drug use. In addition, his evidence to the Tribunal was that he had associated with people who consumed drugs during a significant part of his life.
2. Mr Owen gave very open and candid evidence to the Tribunal. His evidence is that between his late teens and mid-twenties he took drugs, particularly marijuana, regularly and, for periods, daily. He also consumed alcohol to excess. His criminal record reflects his addictions.
3. Mr Owen states that he has not consumed drugs since New Years' Eve 2014. There is nothing in the material before the Tribunal to suggest this statement is untrue, and I accept it. He also states he also stopped drinking on that day and maintained his sobriety for 14 months. Again, there is nothing to suggest that this is not true.
4. Of concern are the incidents in 2016 - the conviction for behaving in an offensive manner in a public place and the three transport infringements in that year. The conviction was the result of a relapse on Mr Owen's part where he consumed an excessive amount of alcohol on his birthday and ended up in trouble with police. With nothing more, these incidents, as the respondent states, indicate that insufficient time has passed for the Tribunal to be satisfied that Mr Owen is rehabilitated and is fit and proper to be granted a licence.
5. The respondent is critical of the lack of independent expert evidence to substantiate Mr Owen's claims of sobriety and future treatment. Mr Owen is not legally represented and has limited financial resources. He has provided a range of material, including letters from his treating psychologist, a mental health assessment and mental health plan review form. While this material is not comprehensive or in the form of expert opinion, it does demonstrate that Mr Owen is obtaining professional help.
6. It is apparent from the evidence that Mr Owen is determined to make a new life for himself. He has distanced himself from his former life and states he no longer associates with people who sell drugs. I am satisfied that he is intent on maintaining his sobriety and, while it can never be said that there is no risk he will lapse, I consider that risk to be small. He has the support of his partner, mother, intended workplace and the Australian Tattooists Guild. Being able to pursue his chosen career will also give him the confidence to deal with personal issues.
7. I note that the respondent has asked that I place little weight on the references submitted by Mr Owen. I agree that the references cannot be accorded great weight, but they do show that Mr Owen has a good deal of genuine support.
8. After considering all the evidence, I am of the view that Mr Owen is a fit and proper person to hold a tattoo parlour operator licence. I do not intend to impose conditions on the licence. Public interest

Orders

1. The decision under review is set aside.
2. The decision is made that the licence is granted. I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 28 April 2017