SMC v Department of Fair Trading

The licensing regime

1. The licensing regime established by the Act was set out in detail in the decisions of Smith v Commissioner of Police NSW Police Force & NSW Fair Trading [2014] NSWCATAD 184 (Smith) and Zahra v Commissioner of Police, NSW Police Force & NSW Fair Trading [2014] NSWCATAD 211 (Zahra).
2. In summary, from November 2013 the Act introduced licensing requirements for operators of tattoo parlours (operators) and tattooists. Relevantly, it is an offence for a tattooist to fail to have the requisite licence: s 7 of the Act.
3. A person may apply to Fair Trading for a tattooist licence pursuant to s 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.
4. Pursuant to s 14(b) of the Act, upon receiving an application for a licence, Fair Trading is to refer the application to the Police Commissioner (Commissioner), for 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 provides that the Commissioner is to inquire into, 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.
5. A licence must not be granted if the Commissioner makes an adverse security determination (ASD) in relation to an applicant: s 16(3)(c) of the Act.

Basis of the refusal

1. On 7 August 2018, the Commissioner provided to Fair Trading a Determination pursuant to s 19(1) of the Act, that SMC was not a fit and proper person to be granted the licence, because of her criminal history and that it would be contrary to the public interest for her to be granted the licence, because of her criminal history. The Applicant's only convictions were as a minor.
2. Following the ASD in respect of the Applicant, Fair Trading was obliged to refuse SMC's application.

The 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) of the Act.
2. On review, the Tribunal is not bound by the security determination and must make a fresh determination, on the basis of the information before it: Austin v Commissioner for Fair Trading & Commissioner of Police [2016] NSWCATAP 179 (Austin) at [37].
3. At my request, the parties made helpful submissions in relation to whether the Applicant's name could be published having regard to the Children (Criminal Proceedings) Act 1987. Amongst other limitations, section 15A of that Act prohibits the publication of the name of a person so as to connect the person with criminal proceedings in relation to an offence committed while a child. The Applicant had no issue with being identified by her initials, and I have anonymised her name, and other personal details, accordingly.

Issue

1. Is the Applicant a fit and proper person to be granted the licence and would it would be contrary to the public interest for the licence to be granted?

Applicant's criminal history

1. On 16 March 2015 the Applicant was apprehended after supplying a re-sealable bag containing 2 grams of methylamphetamine (ice) to a [named] person in return for $1,200 in cash.
2. The Applicant was arrested shortly afterwards with $1,190 of the cash (which had been previously identified by Police for purpose of the ice purchase) in an envelope on the front seat of her vehicle. The Applicant told Police that her mother had given her the cash for the purposes of a rental bond. When informed that she was to be searched, she started to walk away, removed a plastic bag of ice from her bra and was about to swallow it. Police grabbed her hand and struggled briefly with her before seizing the bag. It was alleged she was in possession of two further re-sealable bags (which were inside the larger plastic bag) weighing 1.2 grams and 1.5 grams, believed to be for the purpose of a further supply.
3. At the time, the Applicant was only a couple of months short of her eighteenth birthday.
4. On 4 August 2015, the Applicant was sentenced for one offence of possessing a prohibited drug (ice), and one offence of supplying ice. She was sentenced as a juvenile pursuant to the Children (Criminal Proceedings) Act 1987 (the CCP Act). She was sentenced to 125 hours of community service in relation to the possession charge, and an 18-month control order under s 33(1)(g) of the CCP Act, suspended under s 33(1B) in relation to the supply charge.

The Respondents' position

1. The Respondents relied on the Applicant's criminal history, as outlined above.
2. The Respondent also relied on an incident of on 15 September 2016, that is, within the 18-month period during which her control order was suspended. According to the Police Information Report Summary, the Applicant was stopped by Police while driving. Two $50 notes were found "on the Applicant in her bra" (sic). The Applicant told Police she had just dropped off a friend, Ms A, after the friend had had a tattoo drawn. The Applicant was observed to have "red glazed eyes". The Applicant denied drug use and stated that the $100 was cash paid by her friend for the tattoo.
3. The Applicant went on to tell Police that "[she] and her father (for whom she worked) ... had recently decided to expand the [tattoo] business". She reportedly said that a [named] OMCG was trying to "muscle in" on her father's tattoo parlour. She reportedly named two OMCG members, B and M she had seen opposite the tattoo parlour the previous day. She believed they were trying to intimidate her and her father.
4. The relevant Police officer, Sergeant Troy Kauter, provided an affidavit and gave evidence. He said that at the time the Applicant was pulled over she was using a mini iPad, about which she was cautioned. That she mentioned the OMCG "caught his attention" because Police were, at that time, proactively targeting criminal elements in the area. He said she did not say, nor did he ask, how she knew the two men were members of the OMCG, but denied in cross-examination that the town was so small that the information would be common knowledge. He said that, prior to that time, he did not know the names of those persons. He said the Applicant did not say at that stage that she had already told Police about the OMCG members' conduct. He said she had explained that money was kept in the car because of fears of robbery. As to her "red glazed eyes" he said she seemed nervous, but agreed in cross-examination that to be nervous when pulled over by Police was not unusual. A PCA test returned negative. Random mobile drug testing was not yet available.
5. Evidence was given by Intelligence Team Leader Anthony Macken which confirmed that the Applicant's assertion of an attempt by OMCG members to take over her father's business was consistent with OMCG conduct in the tattoo industry and that standover tactics were employed; he considered the Applicant's assertion to be plausible.
6. In Mr Macken's affidavit of 21 December 2018 he wrote that, based on his training, knowledge and experience, both B and M "had an association" with the [named] OMCG. His information did not include whether they were nominees or full members, when the alleged association began or finished, nor certainty as to the Chapter with which they were associated. While his evidence was that there was an "association" in 2015/2016 there was, importantly, no evidence as to current association. He did not know if the Applicant had any OMCG associations, as he was not asked to address that issue.
7. The Respondent also relied, to a lesser degree, on the Applicant having a number of traffic infringements since the issue of her provisional licence in June 2014. These included driving a prohibited vehicle (twice), speeding in excess of 30 km/h and failing to display her 'P' plates (three occasions).

Applicant's evidence

1. The Applicant provided an affidavit dated 16 November 2018 and gave evidence. Her evidence was that, at the time of committing the offences she was in a toxic relationship with her then-partner of 4 years, who was a drug user, and in gaol after he had held her hostage for 48 hours and viciously attacked her, resulting in a miscarriage. She explained in her evidence that [named] others involved in the supply of ice were closely related to the partner and were themselves heavy drug users; her partner previously used to drive them around but once he went to gaol, the role fell to her. She said she drove them everywhere supplying drugs because at least one of them did not have a licence. She was their "drug mule" for about 6 months. She said she received no benefit from the role; she did as she was told, because she was in love with her partner.
2. She said this occasion was the first time that she had taken the drugs to them. She recalled that the money was to be taken to someone else. She said she lied to Police when apprehended because she was scared because it was "drug money". She was also afraid that there would be retribution for her loss of the money and that it was better to kill herself than face her partner's family. As to the drugs located in her bra, she said that she was to take them to a park where a person was looking out for her distinctive car.
3. As to the occasion she was pulled over by Police on 15 September 2016, she said that the money in her bra was for a tattoo performed by her father on a [named] friend. She said that no cash was kept at her father's business premises because it had been broken into many times. She explained that Ms A was not the person who had been tattooed; there would be no reason to be driving a client home. As to the report that she was said to have "red glazed eyes", she said she did not recall having red eyes, nor was there any reason that that would be the case, and there was no discussion by Police about it at the time.
4. As to why she had mentioned OMCG members to Police, she said she had wanted help in avoiding the attempt to "muscle in" on her father's business. She was dreading having to talk to other Police about it. She said she had already mentioned her concerns to another [named] Police officer, who had helped her in relation to her domestic violence situation. She thought her father had previously made a formal complaint to licensing Police about the OMCG activity. In cross examination she was asked how she knew the people outside her father's shop were members of the OMCG. She said she knew someone who had dated one of them in high school. It is a small town. She said she had described one of them to Police and the Police officer had told her the man's name. She knew there was a [named] tattooist in town who, clients told her, had been unable to get a licence, but she did not know if that was because of association with an OMCG.
5. In relation to OMCGs generally, she said that her father refuses to do tattoos associated with gangs; he does not want gang members in his shop.
6. [NOT FOR PUBLICATION]
7. In cross-examination the Applicant was shown two photographs downloaded from her Facebook page, one of which showed the Applicant and her father with a large sum of money. She explained that these were the business' proceeds of a community-wide exposition in which the business had participated, working around the clock on the day of the festival to provide discounted tattoos.
8. In her evidence, the Applicant said that she lives with her sister (who has a tattooist licence) and her sister's partner, and her child. She relies on Centrelink benefits but works, unpaid, at her father's shop as receptionist. She is one of a large number of siblings, so cash is tight. She would prefer to be able to work as a tattooist, so as to support her child, and doubts her employability in a country town, given her conviction. She has never been a drug user, as she has repeatedly told Police.

Consideration

1. The Respondents submitted that the Applicant is not a fit and proper person to hold a tattooist licence. The Respondents' contentions refer to the Applicant's criminal history as demonstrating an unwillingness to comply with the law. The Respondents also submitted that it would be contrary to the public interest for her to hold a licence.

Fit and proper person

1. The meaning of "fit and proper person" in the licensing context has been the subject of a well-known line of cases dating back at least to Hughes and Vale Pty Ltd v New South Wales (No.2) [1955] HCA 28; (1955) 93 CLR 127. The principles laid down in those cases were distilled by the Tribunal's Appeal Panel in Austin, following Montgomery SM's reasons at first instance, as follows: 1. The very purpose of the words "fit and proper" is to give the widest scope for judgment and for rejection on that ground. 2. "Fit" with respect to an office is said to involve honesty, knowledge and ability. 3. The expression "fit and proper" person, standing alone, carries no precise meaning. It takes its meaning from its context, from the activities in which the person is or will be engaged in and the ends to be served by those activities. 4. Depending on the nature of the activities, the question may be whether improper conduct has occurred, whether it is likely to occur, whether it can be assumed it will not occur, or whether the general community will have confidence that it will not occur. 5. In certain contexts, character (because it provides indication of likely future conduct) may be sufficient to ground a finding that person is not fit and proper to undertake the activities in question. 6. The expression meant that an applicant needed to show not only that he has the requisite knowledge of the duties and responsibilities of the holder of the particular licence but also that he is possessed of sufficient moral integrity and rectitude to be accredited to the public as a person to be entrusted with the work the subject of the licence.
2. In the context of the Act, it has been held that 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" (see Allen v Commissioner for Fair Trading [2015] NSWCATAD 273 (Allen) at [49]; Mielczarek v Commissioner of Fair Trading [2017] NSWCATAD 5 at [27]). While there is a focus in the legislation and its administration on the involvement of gangs in the tattoo industry, that is not to the exclusion of other concerns about criminality: Wright v Commissioner for Fair Trading [2017] NSWCATAD 98 at [118].
3. The Respondents' submissions were to the effect that the following considerations are relevant to the suitability of a person to be granted a licence under the Act: 1. the nature, seriousness and frequency of any criminal offences in respect to which the applicant has been charged or convicted; 2. the applicant's reputation; 3. the likelihood the Applicant will re-offend or be the subject of further complaints: see Saadieh v Director General, Department of Transport [1999] NSWADT 68 per Hennessy DP which was applied in Smith at [39], and 4. any other relevant matter. NOT IMPLEMENTED: support for w:pict - without v:imagedata The Applicant is seeking a licence as a tattooist, not as a tattoo parlour operator ; sh e would thus be working under the supervision of an operator . It is in the operator ' s interest to ensure that the Applicant complies with legislative standards. While it would have been prefer able to see a longer period of incident-free living, I am satisfied , on balance, that, at present, the Applicant meets the fitness and propriety criterion required for a tattooist licence, and I so find.
4. The Respondents relied on material relating to the Applicant's criminal history and the ASD. Some additional material was provided to the Tribunal on a confidential basis and has not been supplied to the Applicant. Section 64 of the Civil and Administrative Tribunal Act 2013 (CAT Act) applies to that material.
5. [NOT FOR PUBLICATION]
6. [NOT FOR PUBLICATION]
7. [NOT FOR PUBLICATION]
8. [NOT FOR PUBLICATION]
9. [NOT FOR PUBLICATION]
10. The Applicant has a relatively recent, albeit limited, criminal history involving the possession and supply of 'ice'.
11. I accept that, at the time of committing the drug offences she was in a very abusive relationship with her then-partner. I also accept that other persons involved in that supply of ice were closely related to the partner and that she was their "drug mule". There was no evidence that the Applicant has herself ever been a drug user.
12. The Second Reading Speeches to the Act on 22 May 2012 specifically identified drug offenders as being precisely the kind of offenders that Act seeks to extricate from the tattoo industry. The Respondents submitted that very little time has elapsed since the Applicant's offending and I should not be satisfied that she has put her offending behavior behind her. In Owen v Commissioner for Fair Trading [2017] NSWCATAD 137, to which the solicitor for the Applicant referred, the Application for Review was successful notwithstanding the applicant having an extensive criminal history that encompassed offending conduct over a 15 year period including convictions for assaulting police officers, assault occasioning actual bodily harm, as well as behaving offensively in a public place and intimidation. The Applicant's criminal history compares very favourably in that it is a limited one - now about 4 years ago when she was a juvenile.
13. The Applicant, the Respondents said, has indicated a willingness to be dishonest in her dealings with Police, through her conduct when arrested in 2015. I accept her evidence that she lied to Police because she was scared because she had "drug money" and was afraid that there would be retribution for her loss of the money. The administration of the Act depends on honesty in a number of respects, most particularly that a tattooist must be trusted to make contemporaneous records of tattoos performed. While I accept that the Applicant may have conducted herself in a less than exemplary manner at the time of her arrest while a juvenile, it does not follow in my view, that she is unlikely to perform her statutory obligations as a tattooist.
14. It is unclear as to what should be made of the incident of 15 September 2016, on which the Respondents relied. The Applicant explained the money apparently located, bizarrely in my view, by Police "in her bra". Her evidence was that her father's business had been robbed on a number of occasions, and there was no evidence to the contrary. I accept that in those circumstances having a relatively small amount of money on her person is innocuous. No inference can be drawn from the Applicant reportedly having "red glazed eyes".
15. As to the Applicant's discussion with Police about the OMCG trying to "muscle in" on her father's tattoo parlour, I consider, on the basis of the available evidence, that the Applicant, was aware that the men she had seen outside her father's business were members of the OMCG and that she is likely to have known their names. However, in my view, no adverse conclusion can be drawn because of that knowledge; it is not indicative of a "formal or informal link" with the OMCG: per Allen. I also accept that the men's conduct was consistent with her assertion that they were engaging in standover tactics in relation to her father's business. There was no evidence as to the men's current association with the OMCG, nor, for that matter, if the intimidation continues.
16. [NOT FOR PUBLICATION]
17. As to the photographs downloaded from her Facebook page, including one showing the Applicant and her father with a large sum of money, there was no evidence to contradict her assertion that the money was the business' takings following a community fair.
18. As to the Respondents' submission that the Applicant's traffic record (which was conceded as not extensive) tends to suggest a level of disregard for her obligations and a cavalier attitude to the law, again, it does not follow, in my view, that on the basis of her having committed several traffic offences, that she is unlikely to perform her statutory obligations as a tattooist. A contention accepted in Dyas v Director-General, Fair Trading & Commissioner of Police [2014] NSWCATAD 223, was that a reasonable person attending a tattoo parlour for a tattoo by the Applicant would be unaffected by knowing about the driving offence matters relied upon by the Respondents.
19. In any event, the administrative requirement on tattooists is minimal and appears limited to recording the date a procedure is performed, the name and licence number of the tattooist and the amount charged and payment method. A history of non-compliance with traffic legislation, does not demonstrate that the Applicant will not comply with the relatively straightforward administrative obligations as a tattooist she has under the Act: eg cl 23 Tattoo Parlour Regulations
20. The Applicant produced no evidence in support of her application as to her current reputation in the community, relying only on submissions that her reputation has been unaffected by her "minor criminal infringements", which characterisation, in my view, significantly understated the seriousness of the offences. It was asserted on the Applicant's behalf that the Respondents had provided no evidence of the Applicant's poor reputation in the community. However, there is no onus of proof in proceedings of this kind (see e.g. discussion in Bronze Wing International Pty Ltd v SafeWork NSW [2017] NSWCA 41.) A number of references were available in relation to her Children's Court guilty plea, but these are now nearly 4 years old and do not speak to her current standing. As was correctly pointed out on the Applicant's behalf, however, there was nothing in Mr Macken's evidence to tarnish the Applicant's reputation. As observed above, there was no evidence that she has ever been a drug user.
21. I accept that the offences reflect the Applicant's then immaturity and poor judgment in the context of her being in a violent domestic relationship, and being subservient to her then partner. In the intervening four years, the Applicant has been charged with no further offences. In 2016 she was "diagnosed" (albeit by a psychologist, rather than a psychiatrist) with a number of psychiatric conditions, many of which appear to have been responsive to a very dysfunctional childhood. Although, no up-to-date psychiatric or psychological evidence was provided, I am satisfied the Applicant now has some maturity - she maintains her additional responsibility for a child, and, commendably, a professed interest in obtaining a job instead of living on welfare.

The public interest

1. The Respondents also submitted that it is not in the public interest for the Applicant to be granted a licence.
2. The phrase "public interest" is not defined in the Act or the regulations. It is an 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: Commissioner of Police v Toleafoa [1999] NSWADTAP 9 at [25]. It is a wider enquiry than the question of the fitness of a particular applicant. Necessarily, the public interest will be informed by the legislation under consideration.
3. When considering fitness and propriety and the public interest, an applicant's private interests, such as in obtaining access to a reliable income stream, receive no weight: Austin at [72] - [73]. There may, however, be some public benefit in the Applicant engaging in gainful employment rather than being kept by the taxpayer: see Allen at [70].
4. Senior Member Montgomery in Smith and Roberts v Commissioner for Fair Trading [2016] NSWCATAD 218 summarised the authorities as being part of the public interest consideration: 1. The 'public interest' is a term embracing matters, among others, of standards of human conduct and functioning government and government instrumentalities. The interest is therefore the interests of the public as distinct from the interests of an individual or individuals. 2. The 'public interest' is an inherently broad concept giving the Tribunal the ability to have regard to a wide range of factors in choosing whether to exercise a discretion adversely to an individual 3. The applicant's personal interest in retaining his licence cannot outweigh the public interest in having full confidence in the professionalism of the people involved in the [security] industry 4. 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.
5. The Tribunal's task is to place itself in the position of a member of the public knowing the Applicant's record and consider whether that person would object to the applicant having a tattooist licence: Naziry v Director- General, Ministry of Transport [2004] NSWADT 40 at [55].
6. While it is not the only point, I agree with the submission on the Applicant's behalf that the public interest consideration is focused on ensuring that criminal elements that have been known to be involved in the tattoo industry are prevented from again accessing that industry, and is designed to ensure that confidence can be held by the public that those involved in the tattoo industry are not involved with criminal elements. While there is some dispute as to timing, the Applicant informed Police that the [named] OMCG was trying to muscle in on her father's tattoo business. The fact that the Applicant reported this to Police speaks to co-operation with Police, which, in itself, is likely to be a matter of public interest. This is not a matter where there is credible evidence of current links to OMCGs.
7. I consider that a member of the public knowing the circumstances of the Applicant's case would not object to the Applicant having a tattooist licence.
8. On balance I therefore conclude that it would not be contrary to the public interest for the Applicant to be granted a tattooist licence. Given her record and the misgivings expressed in the ASD, however, I would suggest to the Applicant that it is in her interest to ensure that she strictly complies, not only with her obligations as a tattooist, but with the law generally. I doubt that any future contraventions are likely to be viewed leniently.

Decision 1. The decision under review is set aside and the Applicant's application for a tattooist licence is granted.

Amendments 19 March 2019 - Coversheet publication restriction amended. 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