Roberts v Commissioner for Fair Trading

Background

1. The Applicant has been a tattoo artist for approximately 23 years. For many years he has operated a tattoo parlour at The Entrance. The parlour is known as 'Skin Circus". Prior to the introduction of the Act he was entitled to do so without a licence.
2. The Act established a licensing regime for "body art tattooing businesses and body art tattooists". It was introduced with a view to imposing requirements that would have the effect of eradicating criminal elements/links from the tattooing industry.
3. There are strict prohibitions on body art tattooing without a tattooist licence. Section 6 of the Act provides that it is an offence to operate a body tattooing business without an operator licence. Section 9(1)(a) of the Act provides that an operator licence may be granted to a person. This authorises the licensee to "carry on a body art tattooing business ... at the premises specified in the licence in accordance with this Act and the conditions of the licence.
4. The Act requires an assessment of whether an applicant for a licence is fit and proper and whether it is in the public interest to grant the operator licence. Entry to the industry is restricted by the licensing scheme in order to protect the public interest by diminishing the likelihood of criminal activity within the industry.
5. I have discussed the relevant aspects of the regime in several decisions and I have also considered the approach to be adopted when undertaking a review of a decision to refuse an application for a licence under the Act as a result of an adverse security determination: see for example the discussion in Smith v Commissioner of Police & Anor [2014] NSWACTAD 184. This approach was accepted by the Appeal Panel in Austin v Commissioner of Fair Trading & Commissioner of Police [2016] NSWCATAP 179 at paragraphs [37] - [38].
6. In August 2013, the Applicant lodged an application for an operator licence. He was entitled to continue to operate until such time as the application was determined. The application was not determined until January 2016 when the First Respondent refused to grant the licence. His application for a stay of that refusal was unsuccessful.

The Issues

1. The issues to be determined are whether the Applicant is a fit and proper person to hold the licence sought and whether it would be contrary to the public interest for the Applicant to be granted the licence.

Fit and Proper

1. This expression has been considered in numerous matters in this Tribunal and in other jurisdictions. In Smith at paragraphs [19] - [20] I 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. 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. The concept of 'fit and proper' takes its colour from its statutory context and 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." The 'fit and proper' test applied in the Act is of broad application. 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. 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." 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."

Public Interest

1. The Tribunal may affirm the decision if it would be contrary to the public interest for the Applicant to be granted the licence. In Smith at paragraphs [42] - [47] I referred to a number of authorities that have considered the concept of the "public interest". It is clear from those authorities that it is designed to give the broader interests of the community priority over private interests. Those authorities indicate that:

• The 'public interest' is a term embracing matters, among others, of standards of human conduct and of the functioning government and government instrumentalities. The interest is therefore the interest of the public as distinct from the interest of an individual or individuals.
• 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.
• An applicant's personal interests in retaining his licence cannot outweigh the public interest in having full confidence in the professionalism of people involved in the security industry.
• The "public interest" allows 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.

1. Public confidence in the scheme and regulatory requirements under the Act is a public interest consideration. In the Second Reading Speech, Mr Roberts stated that the public interest test under the Act "is designed to address the criminal matters currently surrounding the industry, such as ... personal violence". The scheme has as one its objectives the exclusion of persons with criminal tendencies from the tattooing industry, with a view to protecting public safety.

Evidence

1. The Applicant relies on his own evidence. He appeared at the hearing and was cross-examined. He also relies on a number of references. Many of the references are from individuals who have known him for long periods of time. Most of the referees indicated that they are aware that the Applicant has a criminal record but the extent of their knowledge is not clear.
2. The Commissioner relies on the fact of the Applicant's criminal record, entries from the police Computerised Operational Policing System ("COPS") database and the fact sheets relating to the various convictions.

The Applicant's criminal history

1. The Applicant's criminal history is not in dispute. Mr El Hage has referred to the most significant parts of that history as follows: A. The Applicant was convicted of breaching Apprehension Violence Orders (AVOs) on 31 July 1989 and again on 12 March 2001. An AVO was taken out against the Applicant by his former partner, [Ms W], on 17 July 2000, after "the violence became to [sic] much". Despite this order, on 17 October 2000, the Applicant left sexually explicit and offensive items in a baby bag that was passed from the Applicant to [Ms W]. The Applicant again breached the same AVO on 7 November 2000 by approaching [Ms W] while she was at Westmead Children's Hospital. The Applicant had a verbal argument with the nurse and stated "I don't care about the AVO or the pigs ". B. On 9 August 2004, the Applicant was involved in an incident with a female friend at the Applicant's house and while his son was in the house. After the victim rebuked the Applicant's romantic advances, the Applicant confronted the victim with a piece of paper saying "This is what [I] have spent on you" and "Are you calling me a liar?". When the victim attempted to leave, the Applicant stated "You're not going anywhere", blocked the victim's exit and pushed her to the floor. While the victim managed to dial 000, the Applicant then took a knife from the kitchen while the victim pleaded with him not to harm her, grabbed the victim by the throat and threw her to the ground, and again restrained the victim from escaping. On 10 February 2005, the Applicant was convicted of common assault and fined. C. On 18 March 2014, the Applicant was involved in yet another incident with a woman, this time his then-partner, [Ms K]. The relationship had deteriorated when [Ms K] began a relationship with another male in January 2014. On this day, [Ms K] returned home after telling the Applicant she was at the gym. After asking [Ms K] four times "how was the gym ", he confronted her by stating "you have three seconds to tell me who you are seeing" and "I have been to the gym tonight and driven around the car park six times ". The Applicant repeated his request and picked up a guitar strap. He then said to [Ms K] "I will cut your dogs up into a million pieces with an axe if you don't tell me who you are seeing". The Applicant slapped the victim repeatedly on the head. The victim remained in the room, crying until 2:00 am being fearful for her life. Subsequent to this incident, the Applicant called numerous times and left approximately 30 messages abusing the victim with repeated statements of "filthy fucking whore" and a "fucking slut". Yet another AVO was taken out against the Applicant on 22 June 2014. On 10 October 2014, the Applicant was convicted of common assault and stalk/intimidate intend fear physical etc harm (domestic) and fined.
2. The Facts Sheet relating to that incident also states that : While walking through the kitchen at the residence the accused picked up a empty Malterser's bucket which was filled with a clear liquid. The victim asked the accused what was in the bucket. The accused replied, "Methylated Spirits. Had you told me you were seeing somebody, I was going to get you to ring him and get him to come over to our house and I was going to pour the metho over them and set them alight."
3. Mr El Hage also noted: Secondly, the Applicant has been convicted of two serious criminal offences while performing tattooing procedures: A. On 19 May 2000, the Applicant sexually assaulting a female customer while performing tattooing procedures. While applying a tattoo to the victim's upper buttock area, the Applicant repeatedly rubbed her vagina with his free hand and did so despite numerous verbal and physical demands to stop. On 16 March 2001, the Applicant was convicted of 3 charges under s 611 of the Crimes Act 1900 (Assault with act of indecency T2) and received a 12 month section 9 bond (2 charges) and a 12 month suspended sentence (1 charge). B. On 12 September 2000, the Applicant performed tattooing procedures on two children at the business premises. The Applicant knew the ages of both victims, prepared parental consent forms to be signed by a male customer unknown to either victims (ie he facilitated the fabrication of the consent forms; parental consent was required), and encouraged the girls to lie about their tattoos and where they obtained them. The Applicant also made sexually suggestive comments to one of the girls. On 13 July 2001, the Applicant was convicted of an offence of tattooing of children and fined. Thirdly, the Applicant has a long history of breaching traffic laws. The Applicant has been convicted of an astounding 31 traffic-related offences. After being disqualified from driving in 1974, 1978 and 1983 for drink-driving offences and having his licence cancelled in 1998 for speeding, the Applicant went on to commit a further 9 traffic-related offences between 1999 and 2015.
4. Facts Sheets in relation to these offences that are in evidence. The Applicant disputed some details as recorded in the Facts Sheets but did not dispute the fact of the convictions.
5. [NOT FOR PUBLICATION]

The Applicant's case

1. The Applicant provided evidence in regard to his life and his criminal history. While he did not dispute the convictions he sought to minimise their seriousness in terms of their relevance to the licence that he is seeking. His evidence is that he considers his personal life and his work as separate and that he has not committed any offences in relation to his work since 2000 and nor had there been any other issues of concern in relation to his work.
2. He gave evidence in regard to the circumstances surrounding his domestic violence related convictions. His evidence was that the incidents were provoked and that the circumstances were not as described in the facts sheets.
3. The Applicant denies any involvement with outlaw motorcycle gangs. Mr Maspero argued that in the circumstances the Tribunal cannot take account of any materials or intelligence about motor cycle gangs.
4. Mr Maspero argued that most of the Applicant's driving offences are minor in nature and that most are old and did not concern his work. He also argued that most of the convictions should not prevent the Applicant from being a tattoo artist or the operator of a tattoo parlour.
5. He submitted that in order to decide as to whether the Applicant is a fit and proper person the Tribunal should consider whether the standard being currently set by this Tribunal is in tune with other professional bodies to which the same rules apply. He submitted that being a doctor, teacher, high government department manager or even a lawyer would demand a higher degree of being a fit and proper person and that a criminal conviction is not a barrier to becoming a solicitor, policeman, teacher, doctor or indeed a high government official.
6. Mr Maspero also argued that the Tribunal should consider the lack of procedural fairness available to applicants under the Act. He submitted that procedural fairness is absent in the Act and that it would be unduly harsh or unfair to prevent the Applicant from operating as a tattooist.

The Commissioner's case

1. The First Respondent did not take an active role in the proceedings. The First Respondent has discretion in regard to whether to grant a licence in some circumstances. However, as was the case in this matter, a licence must not be granted if the Commissioner makes an adverse security determination in relation to the applicant: section 16(3)(c) of the Act.
2. As noted, the Commissioner relies on the fact of the Applicant's criminal record and its records relating to those convictions. Particular reliance is placed on the domestic violence offences and those offences that were committed while the Applicant was performing tattooing procedures i.e. sexually assaulting a female customer while performing tattooing procedures and performing tattooing procedures on two children.
3. Mr El Hage submitted that the Applicant has demonstrated a pattern of violent and domestic offences over a 27 year period with the level of seriousness increasing in recent years.
4. Mr El Hage also submitted that when performing tattooing procedures on the children the Applicant knew the ages of both victims and that parental consent was required. He prepared parental consent forms, facilitated the fabrication of the consent forms and encouraged the girls to lie about their tattoos and where they obtained them. He was prepared to carry out tattooing on children knowing that it was illegal to do so without parental consent.
5. It is also alleged that the Applicant made sexually suggestive comments to one of the girls.
6. The Commissioner contends that the Applicant's criminal record demonstrates that he has a history of flagrant disregard for the law and for the safety and well being of others - both within the tattoo parlour industry and outside of it. He has engaged in violent behaviour on a number of occasions.
7. Mr El Hage submitted that, on any view, the convictions for assault, indecency and tattooing children are serious. These violent tendencies, together with the Applicant's habitual disregard for the law and the serious nature of the crimes that he committed over a number of years, are significant factors that count against a finding that he is a "fit and proper" person to operate a tattoo parlour. That is, that he is a person with rectitude of character.
8. He submitted that this is not a case where the Applicant has been involved in a 'one off incident or even a couple of incidents. Indeed, the Applicant has repeatedly engaged in criminal behaviour. Moreover, the fact that the Applicant has been convicted of offences relating to conduct engaged in during the course of tattooing is a factor that weighs heavily against him. It shows that his adverse traits not only affect his treatment of others on a personal level, they affect his conduct as a tattooist.
9. In regard to Mr Maspero's argument regarding the requirements of procedural fairness and the comparison with other professions, Mr El Hage submitted that the arguments do not advance matters. He submitted that the Applicant has the opportunity before the Tribunal to demonstrate that a licence should be granted. He also has the opportunity to adduce evidence that he has changed or reformed since committing the offences. Mr El Hage submitted that not only has the Applicant failed to demonstrate that he has reformed, his misbehaviour appears to have grown more serious in recent times.
10. Mr El Hage submitted that in this sense the present case differs crucially from Dyas v Director-General Fair Trading & Commissioner of Police [2014] NSWCATAD 223. In that matter I commented that Mr Dyas' criminal record "suggests a propensity towards violence which raises serious concerns in regard to his fitness and propriety". However, I accepted that his lifestyle had changed so that he is no longer subject to the social factors that were at play and which impacted on his conduct for a major part of his life. At paragraphs [61] - [63] I noted: 61. ... I accept that the Applicant's drug addiction has been addressed and is under control. I also accept that he has taken steps to curb his alcohol use. 62. I note that it is three and a half years since the events that gave rise to his most recent conviction. All the material before me suggests that he was profoundly affected by that event and this lead to a significant lifestyle change. He underwent anger management training and reduced his alcohol consumption. He received a suspended two-year prison sentence and completed the bond period without incident. 63. Had it not been for this change I would have no hesitation in agreeing with the Commissioner that the Applicant's background is quite sufficient to ground a finding that he is not a fit and proper person to hold a licence under the Act and that it is not in the public interest that he do so.
11. The Commissioner also contends that it is not in the public interest for the Applicant to be granted a licence. It is submitted that it is contrary to the public interest to grant a licence to a person who has been convicted of multiple offences and who has demonstrated, repeatedly, a willingness to engage in violent conduct and to disregard the law. Further, the grant of a licence in the circumstances here is likely to erode public confidence in the scheme and regulatory requirements under the Act; and the Applicant's willingness to engage in criminal conduct whilst carrying out tattooing procedures is antithetical to the public interest of eradicating criminal elements from the tattooing industry.

Consideration

1. I note the many references provided on the Applicant's behalf. It is clear that he is well regarded by the referees and the quality of his artistic work is not in dispute. However, while the referees have indicated that they are aware that the Applicant has a criminal record, the extent of their knowledge is not clear. That limits the weight that can be given to those references.
2. I agree with the Applicant to the extent that I consider that only limited weight should be give to his traffic offences. I agree that those offences indicate a willingness to disregard the law however, for the most part the time that has passed since the offences were committed reduces their relevance.
3. I also note that the offences that the Applicant committed while performing tattooing procedures were committed in 2000. The time that has passed since those offences were committed also reduces their relevance to some extent. However, the Applicant attempted to downplay the significance of those offences. In the circumstances I am not satisfied that the Applicant has accepted responsibility for that conduct or that he understands the significance of the fact that he was willing to engage in criminal conduct whilst carrying out tattooing procedures.
4. I give greater weight to the domestic violence offences. While some of those offences occurred in 2000, other conduct is quite recent. The fact that he was convicted of breaching AVOs in 1989 and 2001 indicates a very long period of such conduct. The 2014 incidents demonstrate clear issues with respect to anger and propensity to violence and also show that those issues have not been addressed even though he has been convicted on several separate occasions.
5. [NOT FOR PUBLICATION]
6. It is apparent that the Applicant has not addressed the circumstances that led him to offend in the past. Further, he has not provided any evidence of what steps he is taking to deal with his issues regarding anger and propensity to violence to ensure that the conduct does not reoccur.
7. There is no evidence before me to suggest that the Applicant has accepted responsibility for his conduct or that he has made efforts to change his ways. Given the Applicant's history of offending, habitual disregard for the law and the seriousness of at least some of the crimes he has committed, I am not confident that similar conduct will not occur in the future.
8. In my view it is not sufficient that he has distinguished between conduct in his tattoo business and conduct in his personal life.
9. In these circumstances, I am not satisfied that the Applicant is a fit and proper person to be granted the licence that he is seeking.
10. Further, for the reasons that the Commissioner has argued, until such time as he is able to show that he has taken appropriate steps to address the issues that have been identified as of concern to the Commissioner, it is my view that it is not in the public interest for the Applicant to be granted the licence.
11. That being the case, it is my view that the correct and preferable decision is that the decision to refuse to grant the licence should be affirmed.

Order 1. The decision under review is affirmed I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 05 October 2016