Smith v Commissioner of Police, NSW Police Force & NSW Fair Trading [2014] NSWCATAD 184 | Case summary

NCAT Administrative and Equal Opportunity|2014-06-16

The Applicant's case 55The Applicant relies on his own evidence as well as that of his parents, Dr Anthony Smith and Ms Helen Smith, an affidavit of Dr Shahid Hashmi and character references from Dr Rob Sharp and Father Richard Gleeson, Parish Priest of the Catholic parish of St Nicholas Tamworth. The Applicant and both of his parents attended the hearing, gave evidence and were cross-examined.

The Applicant's evidence 56The Applicant holds a degree from Newcastle University in graphic design visual communications. He is the registered owner and proprietor of the business - a business registered under the Act. He commenced the business in 2008. The business has been operating at the same premises since it commenced. He pays $1,610 per month as rent. He holds an operator's licence to operate the business. 57At various times he has had apprentices working in the business. He conceded that he did not notify the Director-General about those apprentices at the time of his licence application. His explanation for this failure was that the apprentices were engaged on a casual basis and were not paid for their work. He did not understand them to be employees and therefore did not understand that he needed to advise that they were working in the premises. Similarly, the Applicant did not notify the Director-General that his mother had worked in the studio from time to time. He does not accept that his mother was employed, but rather that she was just helping out as his mother. 58Section 8(1) of the Act provides that a person must not employ an individual to work as a body art tattooist unless the individual is the holder of a tattooist licence. Section 3 of the Act defines the expression "employ" to include 'engage under a contract for services or as an apprentice'. The Applicant accepts that he had employed an apprentice. He conceded that this was in breach of section 8 of the Act. The apprentice does not hold an operator's licence and therefore cannot conduct a tattoo business. 59The Applicant's parents agreed to financially support him to establish the business. They invested between $25,000 00 to $30,000 00 and provided him with this financial capital to commence the business. 60Prior to opening the business the Applicant contacted the local Police, introduced himself, and informed the Police that he intended to open the business. In response to his inquiry about whether he should expect problems from any gangs in the area he was assured that he had nothing to fear. 61He recalled that shortly after he opened the business he was approached by the owner of the other local tattoo premises who complained that the Applicant was taking business away from his shop and threatened him. He was subsequently approached by two males who were both wearing bike colours from the Life & Death Outlaw Motor Cycle gang. They demanded that he pay them $100 per week protection money. He said that he refused but offered a discount on tattoos and reported the incident to the Police. Police took particulars in relation to his complaint but he did not recall whether Police took any other action in relation to the incident. In contrast to the Applicant's affidavit evidence in relation to the incident, the Police record indicates that no discount on tattoos was offered. 62About a month later the front window of his shop was smashed. After the window was repaired he observed a motor bike pull up across the road and saw the rider to be wearing a Life & Death Outlaw Motor Cycle jacket. No words were exchanged but the Applicant formed the view that the purpose was to convey to him that the Life & Death Motor Cycle gang were responsible for smashing the window at the shop. He did not report this incident to the Police. He has had no other incidents or threats from any outlaw motor cycle gang members. 63The Applicant said that he is not affiliated with any gangs, is not friends with any gang members and cannot recall any of them attending his studio to receive tattoos. 64In addition to tattooing many other persons he said that he has performed tattoos on at least four or five current serving local NSW Police Officers. He also agreed to sponsor the NSW Police Rugby Team. He also cited a number of other local community sponsorships. He concedes that the Police put their trust in him and that he had let them down. 65The business is subject to stringent health regulation and random compliance checks are conducted on the premises. The Applicant said that he has passed all requirements under the health regulations and has never received adverse comments regarding the operation of the business. The Applicant was unable to produce all of the records that are required to be kept pursuant to clause 24 of the Tattoo Parlours Regulation 2013 ("the Regulations"). His evidence was that he kept records with respect to his customers. 66The Applicant stated that business has been a bit slow in recent times but in 2012 and 2013 he was averaging between $3,000 and $4,000 per week. He uses money from the business to support his fiancé's family in Cambodia. He sends her approximately $600 per month. There have been times when he was unable to pay the rent for the business. 67In February 2014 the Applicant was in a motor vehicle which was stopped by Police. Police searched the vehicle and located at quantity of white powder which they allege is cocaine. He has been charged with possession of a prohibited drug and supply of a prohibited drug. He is defending those charges. 68The Applicant conceded that he has had problems with drug abuse. He first started to use drugs when he was 14 years of age. He commenced to smoke marijuana whilst at school. When he was 16 he started to experiment with harder drugs and commenced using amphetamines. He used drugs frequently until he was about 19. He abstained from drug use during the time he was studying at University but he recommenced afterwards. At that time he mainly used amphetamine and cannabis. He developed an addition to the drugs and sought assistance from his GP, Doctor Hashmi. He was given advice to receive counselling or other treatment for his addiction but did not take that advice. 69He has two prior charges for possession of prohibited drugs. He was first arrested for possession of prohibited drugs in 2010. At that time he was stopped and searched by Police and they located about 3 grams of amphetamine. He was subsequently charged with possession of prohibited drugs and received a monetary fine. 70In December 2013 he was travelling to Newcastle to see his family when he was stopped by Police. They searched him and the vehicle and located a small satchel of cannabis leaf. He subsequently pleaded guilty to the possession charge and received a monetary fine. 71He concedes that in early 2014 he was using prohibited drugs. He concedes that he was using cocaine and that he would regularly use cocaine. His use escalated to the stage that he used cocaine on a daily basis. It was an extremely expensive and damaging habit. He said that cocaine made him feel relaxed and confident about what he was doing. He conceded that he would have had drugs in his system while he was working. He stated that he has not used cocaine or any other prohibited drug since he was arrested on 23 February 2014 and that he is now totally free of any drug use. He accepts that he is an addict and that remaining free of any drug use will require a lifetime commitment. 72Further since being arrested he has engaged in drug and alcohol counselling. He has attended Dean House at Tamworth Hospital where he has seen a counsellor every two weeks. This is the first time that he has really engaged in professional help to address his issues. He is currently prescribed anti-depressant medication to assist with his drug abuse issues. 73He has been stopped by Police and subjected to a random breath test and drug test and the tests have proved negative. 74The Applicant says that despite his previous convictions he is a fit and proper person to hold an operator's licence under the Act. He said that he is not affiliated or associated with any outlaw motorcycle gangs or any organised crime gangs.

The evidence of Dr Anthony Smith 75Doctor Smith is Associate Professor and Deputy Director of the University of Newcastle, Department of Rural Health, based in Taree. The Applicant is his eldest child. 76Doctor Smith gave evidence in regard to the Applicant's early life, training and the establishment of the business. He provided funds for the start-up of the business and said that the bulk of the money that he provided went towards complying with a range of occupational health and safety aspects of the business. He said that from the time the Applicant commenced the business he was able to cover its costs. 77Doctor Smith conceded that the Applicant has had a chronic issue with drug abuse. He said that this commenced when the Applicant was about 15 years of age. This affected his school performance very negatively and caused a great deal of disruption in the family. The Applicant's parents had intense discussions with him about receiving professional help concerning his drug abuse and encouraged him to obtain professional help for his drug abuse, but he was very resistant to this. The Applicant did speak to Dr Hashmi about his drug issues. However, he did not receive professional drug counselling, and attempted to address his issues on a personal basis. Doctor Smith stated that there were periods of time when the Applicant abstained from drug use. For example, the Applicant was not using drugs at the time he was at University doing his degree. 78The Applicant remained living in Newcastle after his parents moved to Tamworth. The Applicant's drug use would often increase when his parents were not present. This was one of the reasons that they encouraged him to move to Tamworth to join them, so as to assist him in dealing with the issue. 79Doctor Smith stated that opening the business gave the Applicant a purpose and this coincided with a significant reduction in his drug abuse. His whole mental state and demeanour gradually improved. 80He is aware that the Applicant has previously been arrested and charged with possession of drugs and he has supported the Applicant during his Court appearances. He is also aware that the Applicant has been arrested by Police and that it is alleged that the Applicant had in his possession a quantity of white powder, purported to be cocaine. He is aware that since this arrest, the Applicant has seen a GP who prescribed antidepressant medication for him, and that the Applicant is voluntarily attending drug rehabilitation counselling. 81Doctor Smith stated that he is not aware of any association or affiliation that the Applicant has with any outlaw motor cycle gangs either in Newcastle or in Tamworth. He knows that the Applicant does not ride a motor cycle and has never had a motor cycle licence. The Applicant has never discussed joining any club or being associated with any form of motor cycle club with him. Rather, the Applicant has discussed with him that it has always been his intention to remain separate and away from any form of motor cycle gangs or organised crime. He has been adamant that his tattoo business will be independent of any motor cycle club. He said that the Applicant has always maintained to him that he is in the tattoo industry because of the art and that he wants no association with any form or organised crime and/or motor cycle gangs. 82Doctor Smith stated that the Applicant is a fit and proper person to conduct a tattoo or body art studio, that he has no affiliations with outlaw motorcycle clubs and that he has made commendable attempts to be an upstanding member of the Tamworth community. He concedes that the Applicant has a chronic drug abuse problem and he is currently receiving professional help to overcome it once and for all.

The evidence of Ms Helen Smith 83Ms Smith is the Applicant's mother. She is currently retired. She gave evidence in regard to the Applicant's character, personality and close relationship to his siblings and extended family members. Her evidence in regard to the Applicant's drug issues is consistent with that provided by Doctor Smith. She is aware that the Applicant has previously been arrested by Police for possession of prohibited drugs and has received monetary fines. 84Ms Smith gave evidence of the Applicant's introduction to the tattoo industry and his apprenticeship with the Crossroads Tattoo shop in Newcastle. She also gave evidence about the family's re-location from Newcastle to Tamworth. Not long after the Applicant joined his parents in Tamworth he realised that he wanted to pursue his interest in the tattoo industry. Ms Smith explained how she assisted the Applicant in looking into the establishment of his own premises and went guarantor on the lease of the studio premises. She and Doctor Smith supported the Applicant in his business venture and provided him with initial start-up capital. She said that the Applicant's goal was to establish a business free from intimidation. She has worked at and attended the business on numerous occasions, and says that it is an excellent environment. 85During her time of working at and attending the business she has never witnessed any persons who she would describe as "bikies". She said that she is aware that "bikies" wear jackets displaying their colours and that she has never observed such people in the Applicant's premises. Further, she does not recall the Applicant ever discussing any association with "bikies" or "bike clubs". In fact she recalled the Applicant informing her about harassment and intimidation he had received from members of bikie clubs. She described the Applicant as meticulous with all autoclave dates, every autoclave receipt and consent forms from customers. He also diligently complies with Health Department Regulations. 86She says that the Applicant is a fit and proper person to continue in his business and he does not present a threat to the local community. In fact she says that the Applicant has added empathy and consideration with his art to the local community. 87She is aware that the Applicant has been arrested for allegedly being in possession of cocaine. She is aware that the Applicant had re-commenced to use illicit drugs and that he has now engaged the services of professionals and is currently receiving drug counselling. She believes that he is abstaining from using drugs and said that he has her continued love and support.

The evidence of Dr Shahid Hashmi 88Dr Hashmi has known the Applicant for the past thirty three years, as a patient and as a friend. He has also been closely associated with the Applicant's family for approximately forty years. He is aware of the Applicant's family relationships and his upbringing. 89Dr Hashmi first became aware of the Applicant's drug use in 1999 to 2000 when the Applicant sought his professional advice. At the time he diagnosed the Applicant as suffering from depression and anxiety and encouraged him to attend drug counselling. He is aware that the Applicant did not do so but attempted to address his drug issues on a personal level. He is aware that the Applicant has previously been arrested for possession of illicit drugs and that in February 2014 he was arrested for having possession of a white powder which is alleged to be cocaine. 90Dr Hashmi is aware of the Applicant's background in the tattoo industry and that, with the financial support from his parents, the Applicant started his own tattoo business in the Tamworth area. He is also aware of the Applicant's work ethic, his relationship with a woman from Cambodia and that he provides her with financial assistance. 91Dr Hashmi is aware of these proceedings and regards the Applicant as a fit and proper person to hold an operator's licence under the Act, notwithstanding his drug abuse issues. He has never known the Applicant to be involved in any organised crime or associated with any gangs or outlaw motorcycle gang members.

The reference of Dr Rob Sharp 92Dr Sharp is an Orthopaedic Surgeon who has known the Applicant for five years. During this time he has come to know him as a reliable and honest person. He regards the Applicant as dependable and law abiding, well respected by his peers within the business sector and committed to the local community. He stated that the Applicant has no affiliation with any outlawed motorcycle gangs.

The Applicant's submissions 93It is conceded that the supply charge which the Applicant faces is a serious offence, albeit not the most serious of such offences. As to the charges of possess prohibited drug, it is submitted that these are only minor offences. Counsel for the Applicant submits that it is significant that, despite the seriousness of the offence, the Applicant was granted bail on these charges. He submits that there is an important distinction to be drawn between convictions and charges; the Applicant has pleaded not guilty, and is entitled to the presumption of innocence. 94It is also submitted that at least one of the Applicant's drug offence was known to the decision maker at the time of the grant of his operating licence. 95In regard to the Applicant's criminal history, there are considerable gaps of years between his offences. There are no supply offences other than the alleged offence. It is submitted that this neither establishes "an ongoing wilful disregard for the law" nor a "pattern of ongoing disregard for the law". 96It is also submitted that the Applicant has, for the first time, undertaken steps towards his rehabilitation. He has attended regular drug and alcohol counselling. He has ceased his use of illicit drugs. There is also evidence to suggest that the Applicant is positively involved with his community, both through his support for local community events, and by practising his faith. 97Further, the Applicant's evidence also suggests he has taken positive steps to assist police in achieving the purposes of the regime, by resisting approaches from criminal organisations, and by reporting such approaches to police. 98It is submitted that there is no obvious link between these offences, and a risk to public safety flowing from the operation of a tattoo parlour. There is no evidence to suggest breaches of the regulatory health regime. 99It is submitted that the imposition of conditions might satisfactorily protect the public interest. Such conditions might include that: a. the Applicant continue to attend regular drug and alcohol counselling; b. the Applicant submit to urinalysis or other drug testing to ensure he has not taken any illicit substances.

The Respondents' Cases 100The Director-General did not take an active role in the proceedings. The case for the Respondents was undertaken by the Commissioner. 101Under section 26(1)(b) of the Act, the Director-General must cancel a licence if an adverse security determination is made by the Commissioner about a licensee. In this case, the Commissioner made an adverse security determination under section 19(1) of the Act in regard to the Applicant, finding that the Applicant is not a fit and proper person to hold the Licence, and further, that it is not in the public interest that he continue to hold the Licence. 102Under section 26(2) of the Act, the Director-General may cancel a licence (a) if the Director-General is satisfied that the licensee has: (i) supplied information which was (to the licensee's knowledge) false or misleading in a material particular in, or in connection with, the application for the licence, or (ii) contravened any provision of this Act or the regulations (whether or not the licensee has been convicted of an offence for the contravention), or (iii) contravened a condition of the licence, or (b) in such other circumstances as may be prescribed by the regulations. 103Clause 21(1) of the Regulations provides for additional grounds for cancelling operator licences the purposes of section 26(2)(b) of the Act: (a) the Director-General is satisfied that the licensee holds (or has held) a licence, permit or other authority under legislation administered by a relevant Minister that has been suspended, cancelled or revoked, (b) the Director-General is satisfied that the licensee is disqualified from holding a licence, permit or other authority under legislation administered by a relevant Minister, (c) in the case of a body art tattooing business that is owned or operated by or on behalf of a corporation-the Director-General is satisfied that the corporation is a corporation that is the subject of a winding up order or for which a controller or administrator has been appointed, (d) the Director-General is satisfied that: (i) a prohibition order under Part 3 of the Public Health Act 2010 in connection with the carrying out of skin penetration procedures is in force in respect of the licensed premises, or (ii) a person has been convicted of an offence against the Public Health Act 2010 or the regulations under that Act in connection with the carrying out of skin penetration procedures at the licensed premises, (e) the Director-General is satisfied that a closure order made under section 29 of the Act is in force in respect of the licensed premises. 104The Commissioner submits that the Applicant's licence should be cancelled by reason of the matters identified in the adverse security determination. The Commissioner further contends that: (1)the Applicant supplied information which was, to his knowledge false or misleading, in connection with the application for a licence; (2)that the Applicant has contravened a provision of the Act or regulations (whether or not he has been convicted); (3)that the Applicant has contravened a condition of the licence; (4)the Applicant is disqualified from holding a licence under the , the Security Industry Act 1997 (s.26(2)(b)). 105In making the adverse finding in relation to the Applicant the Commissioner relied upon the Applicant's alleged ongoing disregard for the law and failure to comply with conditions of his operator licence. 106The Commissioner contends that the Applicant has shown an ongoing pattern of criminal behaviour including current serious charges in relation to prohibited drugs. The present charges are indictable charges carrying a maximum penalty of a fine of 2,000 penalty units or imprisonment for a term of 15 years, or both. 107The Applicant has been abusing prohibited drugs, sometimes heavily, for at least the past 18 years. He acknowledges that he had been using drugs right until his arrest in February 2014. He showed disregard towards the advice of friends and family to address that behaviour and only took steps to address it after the most recent charges were laid. 108The Commissioner submits that the Applicant's failure to reform that behaviour reflects lack of sufficient moral integrity and rectitude of character and demonstrates an ongoing disregard for the law. 109The Commissioner further submits that it is premature to assume that the Applicant has defeated his long term drug issues, especially in view of the fact that the Applicant has previously abstained from drug use, only to relapse. 110In respect of the pending charges, the Commissioner submits that the Tribunal should have regard to the circumstances of the alleged offence, and not merely to the fact of the charge. That requires review of the full facts and the Crown case as indicated in the statement of Senior Constable Gavel. Both those documents are in the material that the Commissioner has provided to the Tribunal. 111The Applicant also has several driving offences, including driving while disqualified; driving an uninsured vehicle and driving an unregistered vehicle. 112In conclusion the Commissioner submits that the Tribunal should not readily depart from the view that the Applicant is not, at this time, a fit and proper person. While the Commissioner accepts that the Applicant is capable, in due course and after the passage of enough time, of demonstrating that he has reformed his ways, it is submitted that at the present time the Tribunal could not safely make a finding that the Applicant is a fit and proper person to hold the licence. The Tribunal should therefore affirm the decision under review. 113In regard to the issues raised by the Applicant's counsel that any concerns that the Tribunal might have can be addressed by way of the imposition of conditions, the Commissioner submits that any issues raised by an adverse security determination cannot be cured by the imposition of conditions on a licence. Nor is the availability of conditions a relevant consideration in assessing the issues raised as to fitness and propriety and public interest. 114The Commissioner referred to the Federal Magistrates Court decision in McBain v CASA (No 1) (2003) 174 FLR 471 where the Court considered the imposition of conditions in circumstances where the Civil Aviation Safety Authority ("CASA") had refused to reissue Mr McBain a commercial helicopter pilot licence. The CASA had refused the licence on the ground that Mr McBain was not a "fit and proper person" to hold the licence. The Court held at page 480 that: "Once a decision is made that the Applicant is not a fit and proper person, then in my view even if the Tribunal had power to consider the imposition of conditions, it would be illogical and absurd for the Tribunal having found that the Applicant is not a fit and proper person to then proceed to consider the imposition of conditions. Therefore, even if the Applicant was satisfied that the Tribunal had power to embark upon consideration of the imposition of conditions in my view in the exercise of its power upon review of the decision in the present case to do so would constitute an error as the Tribunal would be considering conditions to be imposed in circumstances where the substantive issue of whether a licence should be issued has already been decided in the negative." 115In the present case, the Commissioner submits that it would be equally "illogical and absurd" for the Tribunal to find that the Applicant is not a fit and proper person, but seek to consider the imposition of conditions on a licence.

Discussion 116The question for the determination of the Tribunal is whether the decision to cancel the Applicant's licence was the correct or preferable one on the material before it. 117The Commissioner submits that the Applicant is not a fit and proper person to hold a licence, and that it is not in the public interest that he continues to hold a licence. To a large extent this view is based on the Applicant's criminal history and the pending charges. To a lesser extent the Commissioner relies on the allegations that the Applicant failed to comply with the Act and the Regulations in regard to record keeping and employment of an unlicensed people in his premises. 118I am not satisfied on the evidence that the Applicant intended to mislead the Director-General by failing to notify of those working in his premises. I accept that he made an effort to comply with the licencing requirement and that he did not think that he was required to notify of his apprentices. I also accept that the Applicant had attempted to comply with the record keeping requirements of the legislation. While I regard these requirements as a significant aspect of the licensing regime, I do not consider that the Applicant's non-compliance reflect so negatively on his fitness and propriety as to warrant the cancellation of his licence. 119It is not in dispute that the Applicant has a long history of illegal drug use. He has two convictions recorded in relation to possession of illegal drugs and a series or traffic convictions. One of his convictions was known to the Commissioner at the time that the licence was granted. Since the licence was granted he has had a further conviction recorded and has been charged with possession of prohibited drug and supply prohibited drug which is alleged to be cocaine. 120The Applicant was open and forthright in describing his background, his addiction, the events surrounding his convictions, and in answering questions in cross-examination. He acknowledged the mistakes he has made and it is apparent that he has taken steps to turn his life around. 121The Applicant has acknowledged the seriousness of the pending charges and asserts that he has been clean of illegal drug use since his arrest on those charges. He has undergone drug counselling and as a condition of the stay granted in these proceedings he agreed to regular drug testing. He accepts that he is an addict and that it will take a lifelong commitment to remain drug free. He has the support of his parents in this endeavour. 122The Applicant gave evidence in regard to the extent of his addition and that it had increased in recent times to the extent that he was using cocaine on a daily basis. No evidence was presented in regard to how long cocaine stays in the body but there can be little doubt that with daily use there would have been times when the Applicant was working with the drug still in his body. 123The Applicant accepted that production of illicit drugs is a major organised crime and that organised crime is a blight on society. He also accepted that obtaining drugs is criminal activity and it is necessary to make contact with criminals in order to obtain the drugs. He accepted that the suppliers have control over an addict and that an addict relies on the supplier. However, he says that he made the choice to take the drugs and the suppliers did not have control over him. 124The Applicant's parents each gave evidence that at various times during his years of illicit drug use the Applicant had attempted to break his habit. He had remained drug free for various length of time but all conceded that he had relapsed and recommenced his drug use. It appears that there was a link between the Applicant's parents' relocation to Tamworth and the time when he recommenced his drug use. This also coincided with his grandmother's death. The Applicant's parents are each supportive of the Applicant, notwithstanding that they no longer live in Tamworth. It seems that the Applicant also receives support from the church where he attends regular services. 125It is apparent that the Applicant is well regarded by those who have provided references on his behalf. It therefore appears that he is of good repute. In my view, the present situation suggests that there is reason for optimism that the Applicant will remain drug free. However, as I have noted above, reputation is a separate concept to that of fitness and propriety. 126However, I agree with the Commissioner that it is too soon to be confident that it will be the case. The Applicant's use of cocaine was not an isolated act. It was going on for a significant period and it was not until he was charged with the latest offences that he changed his ways. There is therefore a question of whether he has sufficient moral rectitude and integrity to carry on the licensed occupation within the regime established by the Act. 127The Applicant has been convicted of offences arising from association with drugs. He had, by reason of his drug use, become involved with a criminal element - by reason of his own acts he has had an association with criminals. Clearly, the drugs he was using were distributed and sold within the criminal element. It is possible that the suppliers were associates at the very least, if not members, of organised criminal elements. The Applicant was exposed, even if peripherally, to criminal elements in relation to the drug dealing. This connection is a matter capable of being relevant in the sense of being material to the question of the Applicant's fitness and propriety. 128The Applicant must have been aware that he was associating with individuals who were involved in criminal activity, particularly the production, distribution and sale of illegal drugs. The question of his prospects of rehabilitation is very much tied up with his capacity to separate himself from those people. 129The Applicant and his witnesses put much weight on the fact that he is not affiliated with any gangs, he does not knowingly associate with any gang members, that is not friends with any gang members and cannot recall any of them attending his studio to receive tattoos. However, this does not acknowledge the link between organised crime and the illegal drug trade or the potential association that arises from the use of illegal drugs. 130The tattoo industry needs to be protected. The integrity of the licensing regime dictated by the legislation needs to be preserved and enforced. It is clear that the intention of the Act is to rid the tattoo industry of any criminal or otherwise undesirable element and the avoidance of improper conduct. The reality of the Applicant's addiction has been the need to obtain illicit drugs and by this means he had been introduced to a criminal element. 131The rationale for the existence of the Act's requirements in relation to disclosure of associates and transparency is the exclusion of criminal elements from actual or concealed involvement in the operation of tattoo parlours. This case illustrates the apparent ease with which a licensed operator can become associated with criminal elements. Once that association is established the potential exists for those criminal elements to infiltrate the management of a business. 132The connection to criminal elements in relation to the drug dealing opens up the possibility of that element gaining influence over the business. There is no suggestion that this has occurred, but the potential has existed. If the Applicant were to revert to his previous conduct, the potential will again arise. 133In my view, in these circumstances it is too soon to be sure that the Applicant is a fit and proper person to hold this licence and that it is not contrary to the public interest for him to do so. The public would not expect that a person who has a long history of addiction, has fairly recently been convicted of two drug offences and who is facing serious drug related charges, would be granted such a licence. 134I agree with the Commissioner that the imposition of conditions on the Applicant's licence is not appropriate. In my view it would be inappropriate to place the burden of ensuring compliance with the proposed conditions on the Commissioner. The proposed conditions would not only become difficult to enforce but the need for the imposition would also demonstrate that the Tribunal itself had concerns. 135I agree with the Commissioner that the Applicant might be able demonstrate by subsequent conduct that he is a person of good character, and overcome the shortcomings displayed to the present time. 136I recognise that this will be discouraging for a young man who is keen to pursue his chosen career and for whom time is of the essence. He will, however, have to be patient. It is up to him to continue to demonstrate by his good conduct that he is indeed a fit and proper person to be granted a certificate. In my view, a drug free period of at least a year would need to have expired before he could be said to have demonstrated this. 137It follows, in my view, that the decision to cancel the Applicant's licence was the correct and preferable one. It should therefore be affirmed. 138I am aware that the Applicant has the benefit of a stay and that the consequences of this decision are significant to him and to his business. In the circumstances it is appropriate that the order should not take effect immediately. I therefore propose to allow a period of 28 days before the decision is to take effect.

Orders (1)The decision under review is affirmed. (2)This decision is to take effect 28 days from the date of these reasons.

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: 31 October 2014

The Tribunal's Jurisdiction 12Section 58(1)(b) of the Administrative Decisions Review Act 1997 ("the ADR Act") requires the Director-General to lodge a copy of every document relevant to the determination with the Tribunal. Under section 59 of the ADR Act the Tribunal may make an order that the administrator is not required to lodge a copy of a document under section 58. The Tribunal is to grant the Applicant access to the documents lodged unless there is an order restricting disclosures made under section 64 of the Civil and Administrative Tribunal Act 2013. 13The 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 the Director-General to grant a licence. The Act does not expressly confer jurisdiction on this Tribunal to review any report or determination made by the Commissioner. 14However, pursuant to section 27(3) of the Act: (3) If an application for a licence was refused or a licence was suspended or cancelled by the Director-General on the ground of an adverse security determination made by the Commissioner about the applicant for the administrative review: (a) the Commissioner (as well as the Director-General) is to be a party to any proceedings in the Civil and Administrative Tribunal for an administrative review of the decision of the Director-General, and (b) the Tribunal is to be provided with a copy of the report of the Commissioner's determination, and (c) the Tribunal is not prevented from determining whether the Director-General made the correct and preferable decision regarding the application or the licence concerned merely because of the determination of the Commissioner. 15Accordingly, unlike the Director-General, this Tribunal has the discretion to grant a licence despite an adverse security determination made by the Commissioner. Whilst the Commissioner's report or security determination is not under review, the Tribunal may nevertheless decide to grant a licence despite the adverse determination. 16The Act provides that the assessment of whether an applicant is fit and proper and the public interest assessment rest with the Commissioner. The Act also specifies that it is the Director-General's decision that is under review, and not the Commissioner's determination. Section 8(2) of the ADR Act provides that the person or body whose decisions are administratively reviewable decisions is taken to be the only administrator in relation to the making of an administratively reviewable decision even if some other person or body also had a role in the making of the decision. The question therefore arises as to the correct approach to be taken by the Tribunal in determining these types of applications. 17The provision and power must be construed in a way that is consistent with the language and purpose of all the provisions of the Act. In Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355 at paragraph [69] per McHugh, Gummow, Kirby and Hayne JJ stated (citations omitted): The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute. The meaning of the provision must be determined "by reference to the language of the instrument viewed as a whole". In Commissioner for Railways (NSW) v Agalianos, Dixon CJ pointed out that "the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed". Thus, the process of construction must always begin by examining the context of the provision that is being construed. A legislative instrument must be construed on the prima facie basis that its provisions are intended to give effect to harmonious goals. Where conflict appears to arise from the language of particular provisions, the conflict must be alleviated, so far as possible, by adjusting the meaning of the competing provisions to achieve that result which will best give effect to the purpose and language of those provisions while maintaining the unity of all the statutory provisions. Reconciling conflicting provisions will often require the court "to determine which is the leading provision and which the subordinate provision, and which must give way to the other". Only by determining the hierarchy of the provisions will it be possible in many cases to give each provision the meaning which best gives effect to its purpose and language while maintaining the unity of the statutory scheme. Furthermore, a court construing a statutory provision must strive to give meaning to every word of the provision. In The Commonwealth v Baume Griffith CJ cited R v Berchet to support the proposition that it was "a known rule in the interpretation of Statutes that such a sense is to be made upon the whole as that no clause, sentence, or word shall prove superfluous, void, or insignificant, if by any other construction they may all be made useful and pertinent".. 18The High Court said in Thiess v Collector of Customs [2014] HCA 12; (2014) 306 ALR 594, 599 at paragraphs [22] - [23]: 'Statutory construction involves attribution of meaning to statutory text. As recently reiterated: "This Court has stated on many occasions that the task of statutory construction must begin with a consideration of the [statutory] text". So must the task of statutory construction end. The statutory text must be considered in its context. That context includes legislative history and extrinsic materials. Understanding context has utility if, and in so far as, it assists in fixing the meaning of the statutory text'. Objective discernment of statutory purpose is integral to contextual construction. ... 19There 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. Mr Gallacher stated: When tattoo parlours are no longer controlled by bikies, they will not be so closely associated with serious acts of violence, such as shootings and fire-bombings. Bikies will no longer feel that they 'own' the industry - that they have the right to stand over, and extort, owners of tattoo businesses who are unaffiliated with outlaw motorcycle gangs. Nor will tattoo parlours be able to provide a means for organised criminals to launder the proceeds of crime. ... The bill provides a definition of close associate. Defining close associates is important to ensure that all persons with a relevant interest in a body art tattooing business are identified. A close associate is someone who will hold a financial interest, or can exercise any power in the applicant's business, and who by virtue of that power will be able to exercise a significant influence over the business. Close associate will also include a person who has any relevant position in the business that will be carried on under the authority of the licence. In some cases bikie gangs who have effective control over a tattoo parlour, have, on paper, no legally enforceable interest in the business. So the bill makes it clear that a close associate is someone who can, in fact, direct the business, or receive a financial benefit from it, whether or not it is legally enforceable. ... The bill sets out the role of the Commissioner of Police in the scheme. In addition to the role of the Commissioner of Police in the granting of a licence, the Commissioner of Police can undertake inquiries into licensees at his own initiative, or at the request of the Commissioner for Fair Trading. This will be important where police become aware that a licensee is engaging in conduct that might cause the Commissioner of Police to determine that the licensee was not a fit and proper person, or that it would be contrary to the public interest for the licensee to retain a licence. The bill provides that the Commissioner of Police may consider criminal intelligence or other criminal information in relation to an applicant or licensee or in relation to a close associate of an applicant or licensee. Criminal information and intelligence can include information relevant to the business or procedures to be carried out under the licence, or that gives an indication that some improper conduct could occur if the applicant were granted a licence, or a licensee were permitted to retain a licence. But it should be made clear that some people currently in the tattoo industry may regularly associate with bikie members unwillingly. For example, they may be forced to pay them protection money. The Commissioner of Police will distinguish between those who have willingly assisted and associated with criminals on the one hand, and on the other, people who are essentially victims of extortion. The bill also provides protections for criminal intelligence considered by the Commissioner of Police or the Commissioner for Fair Trading. ... One of the Government's aims in introducing this legislation is to ensure that tattoo parlours cannot be used to launder the proceeds of crime. To that end, the bill makes it a condition of an operator licence that the licensee must make certain business financial records available for inspection by an authorised officer at a reasonable time. Licensees will also be required to report on any change of licence particulars within 14 business days of the change occurring. Particulars could include change of the licensees' residential address, or a change in close associates. The regulations may also make provision for other relevant particulars. To ensure that a business cannot employ unlicensed tattooists in a body art tattoo business, and that all employees are subject to proper scrutiny, it will be a condition of an operator licence that the operator informs the Commissioner of Fair Trading within 20 business days of any change in staff member employment at the licensed premises. A change in staff member employment includes a new staff member commencing employment, or a staff member ceasing employment at the licensed premises. The definition of staff members is not limited to licensed tattooists, but to any staff member employed at the licensed premises. Without this definition, there is a risk that, in an attempt to avoid scrutiny by the regulators, the real operator of the premises may be employed there in another capacity, for example as a book keeper or receptionist. 20While 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. 21The legislation provides that the Tribunal has jurisdiction in relation to:

refusal or failure to grant a licence;
imposition of licence conditions; and
suspension or cancellation of a licence. 22The Tribunal may grant a licence or reinstate a licence in the face of an adverse security determination in circumstances where the Director-General could not do so. While there is no express power to revisit the adverse security determination, section 27(3)(c) of the Act provides that the Tribunal is not prevented from determining whether the Director-General made the correct and preferable decision regarding the application or the licence concerned merely because of the determination of the Commissioner. 23I do not agree with the Applicant's submission that, because of the section 26(1)(b) requirement that the Director-General cancel the licence once an adverse security determination is made, in truth the Director-General has not made a "decision" at all. While cancellation is the only option available to the Director-General once an adverse security determination is received, before taking that action the Director-General must make a finding of fact that the Commissioner had in fact made an adverse security determination in relation to a licensee. The decision making process therefore involves and assessment of the Commissioner's determination and then acting on that determination. 24The Commissioner contends that the Tribunal is required to take the adverse security determination into account as an essential legally relevant consideration to which weight must be given. I agree with that contention. 25The Commissioner also contends that that the Tribunal is required to take the adverse security determination as a starting point or prima facie position, which the Applicant bears the burden of displacing. That is, the Commissioner contends that the Tribunal would only form a view contrary to the Commissioner's view after according due weight to the adverse security determination. 26While 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. 27In 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. 28The 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. 29These 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. 30To 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. 31Notwithstanding 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. 32Section 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. 33It 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. 34This is comparable to the approach taken by the Tribunal in determining applications under the Explosives Act. 35In matters of this type it will be common for the Commissioner to present material to the Tribunal on a confidential basis. It is likely that the material will not have been made available to the Director-General and will not be available to the Applicant. In such circumstances, pursuant to section 27(4) of the Act, the Tribunal can receive evidence and hear argument in the absence of the public and the Applicant, unless the Commissioner approves otherwise. Section 27(4A) of the Act clearly anticipates that the Tribunal will take an active role in assessing whether the Commissioner has correctly categorised the material that is identified as being from a criminal intelligence report or other criminal information. 36The issue of the powers and duties to afford procedural fairness in face of confidentiality regime was discussed at length by the Court of Appeal in the matter of Commissioner of Police v Sleiman & AVS Group of Companies Pty Ltd & Ors [2011] NSWCA 21. 37Within the restrictions imposed by the Act the Tribunal has the obligation of to afford natural justice or procedural fairness to a review applicant. Even though the Tribunal may not disclose or permit disclosure of Criminal Intelligence to the Applicant or the Applicant's legal representatives, it should take whatever measures it can to ensure that procedural unfairness is minimised.

The meaning of "fit and proper person" 38This phrase has not been judicially considered in the context of the Act though the phrase is well known and has been considered on numerous occasions in connection with other legislation. 39A useful review of the authorities was provided in the case of AJO v Director-General Department of Transport [2012] NSWADT 101 at paragraphs [24] to [35]: 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. In Sobey 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. In Saadieh 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. [the omitted comments of Kirby P are as follows: "... The public needs to be protected from delinquents and wrong-doers within professions. It also needs to be protected from seriously incompetent professional people who are ignorant of basic rules or indifferent as to rudimentary professional requirements. Such people should be removed from the register or from the relevant roll of practitioners, at least until they can demonstrate that their disqualifying imperfections have been removed ..."] 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 question was whether or not 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. 40Fitness and propriety is a question of fact for the decision maker to determine objectively on the basis of the all evidence. 41In contrast to character, the Applicant's reputation is an estimate provided by others, such as by those who live in his neighbourhood, those who work with him, or those with whom he associates in his occupation. The Appeal Panel in Director General, Department of Transport v Z (No.2) (GD) [2002] NSWADTAP 37 stated at paragraph [38]: 38 Good Repute: The approach to be adopted in considering 'good repute' is well explained by Waddell J in [Re T and Anor and the Director of Youth and Community Services [1980] 1 NSWLR 392]. The Appeal Panel also considers it in a forthcoming decision, Lo -v- Director-General, Department of Transport [2002] NSWADTAP 39. '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 can not 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. ...

The concept of the 'public interest' 42The 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. 43Discretion 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) 72 ALR 1 at 5. 44In 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" 45In 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" 46The 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]. 47In 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.

Smith v Commissioner of Police, NSW Police Force & NSW Fair Trading

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