Tattoo Parlours Regulation 2013.
Cases Cited: Allen v Commissioner of Fair Trading [2015] NSWCATAD 273
Austin v Commissioner of Fair Trading and Commissioner of Police, New South Wales Police Force [2016] NSWCATAP 179
Source
Original judgment source is linked above.
Catchwords
Civil and Administrative Tribunal Act 2013Tattoo Parlours Act 2012Tattoo Parlours Regulation 2013.
Cases Cited: Allen v Commissioner of Fair Trading [2015] NSWCATAD 273Austin v Commissioner of Fair Trading and Commissioner of Police, New South Wales Police Force [2016] NSWCATAP 179Birch v Commissioner of Fair Trading and Commissioner of Police, New South Wales Police Force [2017] NSWCATAD 166Butler v Commissioner for Fair Trading [2017] NSWCATAD 138
Commissioner of Police v Toleafoa [1999] NSWCATAP 9
Constantin v Commissioner of Police, New South Wales Police Force [2013] NSWADTAP 16
Director-General, Transport New South Wales v AIC (GD) [2011] NSWADTAP 65
Director of Public Prosecutions v Smith [1991] Vic Rep 6, (1991) 1 VR 63
Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60
Health Care Complaints Commission v Do [2014] NSWCA 307
Hughes and Vale Pty Ltd v New South Wales (No. 2) [1955] HCA 28, (1955) 93 CLR 127
Moujalli v Roads and Maritime Services [2017] NSWCATAD 141
Naziry v Director-General, Ministry of Transport [2004] NSWADT 40
O'Sullivan v Farrer [1989] HCA 61, (1989) 168 CLR 210
Project Blue Sky Inc v Australian Broadcasting Tribunal [1998] HCA 28, (1998) 194 CLR 355
Smith v Commissioner of Police, New South Wales Police Force NSWCATAD 184
Stiles v Commissioner of Fair Trading [2017] NSWCATAP 44
Judgment (13 paragraphs)
[1]
[Not for publication]" are not for publication or for disclosure to the applicant or the first respondent.
[2]
The decision has been amended please see end of decision for details.
[3]
reasons for decision
The applicant John-Ross Ting on 28 February 2017 applied to this tribunal for review of a decision made by the first respondent dated 2 February 2017 refusing to grant him a tattooist licence pursuant to s 16(1) of the Tattoo Parlours Act 2012 (TP Act). He had lodged an application for a tattooist licence with the first respondent on 15 March 2016. He has never held a tattooist licence (exhibit R3).
The decision was made after the second respondent, the Commissioner of Police, had investigated the applicant. The Commissioner is required to be a party to review proceedings in this tribunal pursuant to s 27(3)(a) of the TP Act, although initially he had not been mentioned in the title of these proceedings. The Commissioner is, however, effectively a respondent by operation of law.
On 31 January 2017, the Commissioner made a determination and report (the "adverse security determination" or ASD) pursuant to s 19(1) of the TP Act that the applicant is not a fit and proper person to be granted the licence, on the basis of his involvement in relevant and serious criminal activity and his demonstrated disregard for licensing legislation. He also found that it would be contrary to the public interest for the applicant to be granted the licence. It was also noted, pursuant to s 16(5) of the TP Act, that the applicant is disqualified from holding a licence, permit or other authority under other legislation administered by the Minister for Fair Trading or the Minister for Police and Emergency Services.
[4]
Applicable legislation
The legislative scheme under the TP Act is discussed in more detail below. At this point it is necessary to note only that s 7(1) of the TP Act creates an offence of an individual performing any body art tattooing procedure for fee or reward unless authorized to do so by a tattooist licence. Section 9(1)(b) provides for the granting of tattooist operator licences and tattooist licences to persons, which authorize the licensee to "perform body art tattooing procedures in accordance with this Act and the conditions of the licence": s 9(3). The provisions in part 2 of the act requiring the holding of licences came into operation on 1 October 2013.
When the first respondent's Chief Executive receives an application for a licence, he or she is required to refer it to the Commissioner of Police for an investigation and determination as to whether the applicant is a fit and proper person to be granted the licence, or whether it would be contrary to the public interest for the licence to be granted, or both: s 14(b)(i).
Section 16(1) confers on the Chief Executive a general power to deal with licence applications and to grant or refuse a licence. The general discretion is limited by s 16(3), which provides that "The Chief Executive must not grant a licence if…(c) an adverse security determination has been made by the Commissioner about the applicant".
Under s 27(1)(a) of the TP Act, a person whose application for a licence has been refused may apply to this tribunal for administrative review under the Administrative Decisions Review Act 1997 (ADR Act). Section 27(3) deals with the nature of the tribunal's function it provides as follows:
(3) If an application for a licence or for the renewal of a licence was refused or a licence was suspended or cancelled by the Secretary on the ground of an adverse security determination made by the Commissioner about the applicant for the administrative review or a close associate of the applicant:
(a) the Commissioner (as well as the Secretary) is to be a party to any proceedings in the Civil and Administrative Tribunal for an administrative review of the decision of the Secretary, 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 Secretary made the correct and preferable decision regarding the application or the licence concerned merely because of the determination of the Commissioner.
[5]
The evidence
The respondents called no oral evidence, but relied on the documentary material, including the s 58 documents (exhibit R1), the redacted ASD (exhibit R2) and the confidential unredacted ASD (confidential exhibit CR 5).
In his oral evidence at the hearing, the applicant adopted the undated statement attached to his application in which he stated inter alia that between six and eight years ago he had not been aware that he suffered from bipolar borderline personality disorder, manic episodes and severe anxiety. At the time he was aware that he was actually self-medicating with large daily amounts of alcohol and marijuana. He was homeless and made many poor choices, which he severely regretted. He sought help from a professional, in the first instance a doctor who diagnosed him with bpd, manic episodes and anxiety.
Four or five years ago his life changed, the medication having helped him to become stable and to change his way of thinking. He was no longer that man who made irrational choices. He thinks clearly and has abstained from any form of drugs and alcohol for four years or longer. He knows in his heart that he is nothing like the man he once was and is now medicated. He is proud of how far he has come in his life. He hoped that the tribunal could help him to continue to rehabilitate himself.
At the hearing Mr Ting added that his conviction for possessing a prohibited drug (presumably the one recorded on 28 September 2011, exhibit R2, p 40) he had been in possession of only 5 g of marijuana, including the weight of the bags, $50 worth. He believed he had been charged with the wrong offence but had pleaded guilty because he was young and naïve.
Cross-examined by Mr Mantziaris, the applicant conceded that over the last six months he had been living "all round", and for the previous two years had been living at Narrabri, Inverell, Dubbo and Muswellbrook. He had spent four months at Narrabri with his sister, and had stayed at Inverell because he grew up there. The last time he had seen a psychiatrist or psychologist was his visit to Dr Fernando (whose report was exhibit A2). He had seen other doctors since in connection with his medication and was also seeing a counsellor with the Jobs Network.
He has a son aged nine and a daughter aged 11, who is not biologically related to him but for whom he has accepted responsibility. That was why he wanted to be in Dubbo, where his children are. He had spent a year in Muswellbrook and a year in Narrabri rather than in Dubbo because he had been attending family mediation with his ex-partner, who has psychiatric problems. He has been co-operating with the Department of Children's Services and was not otherwise able to see his children. He still suffers from anxiety and panic attacks sometimes, but not when he is engaging in tattooing work. His condition is a borderline personality disorder, not a full bipolar condition. It is an ongoing condition, but since he has been tackling it over the last five years, he has only incurred a traffic offence.
[6]
Respondents' submissions
The respondents relied on some written submissions filed on 29 June 2017 in which inter alia they outlined the authorities on the concept of "fit and proper". They submitted that construing the requirement in the context of the TP Act required certain contextual matters to be taken into account. They include:
The TP Act imposes requirements that would have the effect of eradicating criminal elements and links from the tattooing industry. As the tribunal had stated in Smith v Commissioner of Police [2014] NSWCATAD 184, [49], "Entry to the industry is restricted by the licensing scheme in order to protect the public interest by diminishing the likelihood of criminal activity within the industry".
The second reading speech on 22 May 2012 further stated that the fit and proper person test would often cover activities such as "personal violence, firearms crime, illicit drug offences".
There are strict prohibitions on tattooing without a tattooist licence. Parliament has provided for penalties to be imposed against persons who violate those prohibitions: s 7.
An applicant for a licence must consent to having his or her fingerprints and palm prints taken by police to confirm his or her identity: s 13.
There is a mandatory requirement for the Commissioner to assess an applicant's fitness and propriety: s 14. That determination is not subject to review.
The Chief Executive is precluded from granting a licence in the circumstance where the Commissioner makes an ASD: s 16(3). The legislation places reliance on honesty in entrusting a person with a tattooist licence to comply with its obligations to keep contemporaneous records: Tattoo Parlour Regulation cl 23.
In Austin v Commissioner of Fair Trading and Commissioner of Police [2016] NSWCATAP 179, the Appeal Panel dealt with facts involving links with outlaw motorcycle gangs (OMCGs) and also a more general criminal history. The latter was held to have its own significance under the fitness and propriety test ([79]-[80]. As regards the public interest, the written submissions surveyed the relevant authorities and pointed out how those decisions emphasized the wide-ranging "political" character of decision-making by reference to a public interest standard.
[7]
Consideration
Under s 63 of the ADR Act, the tribunal's role is to determine whether, having regard to the underlying facts in the matter and the applicable law, the first respondent's decision is the correct and preferable one. The tribunal is to review the merits of the original decision and consider the evidence available at that time, together with any other or later material, so as to affirm the original decision, vary it or set it aside: Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60, 77.
[8]
The legislative scheme and the tribunal's approach
The applicant has applied for review under s 27(1)(a) of the TP Act of a decision taken by the Director-General of Fair Trading under s 16(3) of the TP Act to refuse to grant him a tattooist licence. The Commissioner of Police made an adverse security determination (exhibit R2) under s 19(1) of the Act to the effect that the applicant was not a fit and proper person to be granted the licence and that it was not in the public interest for the licence to be granted. Pursuant to s 27(3), the Commissioner is a party to these proceedings.
The TP Act introduced licensing requirements for operators of tattoo parlours and tattooists that came into operation on 1 October 2013. Two kinds of licence may be granted: an operator licence and a tattooist licence. Only an individual can apply for a licence, even where the individual is applying on behalf of an organization: s 11. The licensing regime imposes a test of whether the person is "fit and proper" and whether it would be "contrary to the public interest" to grant the licence. It is an offence to perform body art tattooing procedures without a tattooist licence: s 7.
A person may apply to the Director-General for a tattooist licence pursuant to s 11. Section 13 provides for the fingerprinting and palm printing of applicants. On receiving an application for a licence, the Director-General is required by s 14(b) to refer the application to the Commissioner for an investigation and determination as to whether the applicant is a fit and proper person to be granted the licence, and whether it would be contrary to the public interest for the licence to be granted.
Section 19 requires the Commissioner to inquire into and determine, and report to the Director-General on, those matters. 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: s 19(3). The Director-General has a discretion whether or not to grant a licence in some circumstances, but must not grant a licence if the Commissioner makes an adverse security determination in relation to the applicant: s 16(3)(c). Once granted, a licence remains in force for three years; it may not be renewed, but a new application can be made: s 17.
Pursuant to s 27(1)(a), a person may apply to this tribunal for review of a refusal or failure by the Director-General to grant a licence. The Act does not expressly confer jurisdiction on the tribunal to review any report or determination made by the Commissioner of Police but does so implicitly, as s 27(3)(c) provides that "the Tribunal is not prevented from determining whether the Director-General made the correct and preferable decision regarding the application of the licence concerned merely because of the determination of the Commissioner": Smith v Commissioner of Police and Commissioner of Fair Trading [2014] NSWCATAD 184, [22]. Nevertheless, the tribunal is required to take the ASD into account as an essential, legally relevant, consideration to which weight must be given: id., [24].
[9]
Fit and proper person
The meaning of the phrase "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 v Commissioner of Fair Trading and Commissioner of Police [2016] NSWCATAP 179, 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.
The Appeal Panel has pointed out that public interest considerations play a role in the assessment of fitness and propriety: Director-General, Transport New South Wales v AIC (GD) [2011] NSWADTAP 65, [37].
While there is a definite focus in the legislation and its administration on the involvement of OMCGs in the industry, that is not to the exclusion of other concerns about criminality: "[T]he broader intention [of the TP Act] is to rid the industry of any criminal or otherwise undesirable element and the avoidance of improper conduct": Smith, [2014] NSWCATAD 184, [20]. The point was specifically made in Wright v Commissioner for Fair Trading [2017] NSWCATAD 98, [118]: "The Applicant had stressed that he had not been involved in gang crime. Gang crime is not the only consideration of the Act, however. The Tattoo Parlours Act 2012 is directed at keeping gang crime out of the tattoo parlour industry and also at eliminating general criminal activity, including violence. Unfortunately, violence is a clear feature of the Applicant's background".
[10]
Public interest
The phrase "public interest" is not defined in the TP Act or the regulations. In O'Sullivan v Farrer [1989] HCA 61; (1989) 168 CLR 210, [13], the High Court held that the "public interest" imported a discretionary value judgment to be made by reference to undefined factual matters, confined only in so far as the subject matter and the scope and purpose of the legislation might require. In Commissioner of Police v Toleafoa [1999] NSWADTAP 9, [25], the Appeal Panel described the public interest ground in the relevant Act in the following terms:
[A]n 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. As the possibility of refusing an application on the ground of character is dealt with elsewhere in the same section, it is reasonable to infer that the Parliament intended that the public interest discretion operate in areas to which the character ground was not relevant or, possibly, in circumstances where an objection on character grounds would not be sufficient in its own right to warrant refusal.
The concept does include standards acknowledged to be for "the good order of society and for the well-being of its members": Director of Public Prosecutions v Smith [1991] Vic Rep 6; (1991) 1 VR 63. In Comalco Aluminium (Bell Bay) Ltd v O'Connor (1995) 131 ALR 657, 681, the High Court 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.
The issue of public interest allows for matters going beyond the applicant's character to be taken into account. They include public protection, public safety and public confidence in the administration of the licensing system: Constantin v Commissioner of Police, New South Wales Police Force [2013] NSWADTAP 16, [33].
Legislation such as the TP Act serves the public interest in ways that go beyond guarding against misconduct by an individual licensee. Licence refusals and similar orders serve the public interest by establishing a regulatory structure for an industry that not only protects the public from harm, but also helps to preserve public confidence in that industry and its members by signalling that those whose activities or facilities do not meet the required standards will not be permitted to operate in the industry: Health Care Complaints Commission v Do [2014] NSWCA 307, [34] - [39]; Moujalli v Roads and Maritime Services [2017] NSWCATAD 141, [52] - [53].
[11]
Orders
1. Decision under review set aside.
2. The applicants' application for a Tattooist licence is granted.
3. Pursuant to s 64(1)(b), (c) and (d) of the CAT Act, the recording and transcript of the confidential hearing on 27 September 2017, confidential exhibit CR 5 and the paragraphs of these reasons marked "[Not for publication]" are not for publication or for disclosure to the public, the applicant or the first respondent.
[12]
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
[13]
Amendments
08 November 2017 - orders amended to add (2)
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: 08 November 2017
The issues in the present case are thus whether the applicant is (a) a fit and proper person to be granted a tattooist licence, or (b) whether it would be contrary to the public interest for the licence to be granted, or both: s 14(b).
He had begun tattooing in Toowoomba four or five years ago, for one or two years. Then he worked in Newcastle in 2012 or 2013 at a shop called Honey Ink, which was owned by a man named Will, whom the applicant seldom saw. He simply worked there and received 50 percent of the take, as is usual in most shops. He spent three or four months there and then moved to Muswellbrook for a few months, and later to Cessnock for between eight and 12 months, subsequently relocating to Dubbo and Narrabri.
The last time he had performed any tattooing, he had tattooed himself and could not recall when he had last worked on someone else. He did perform a couple of other tattooing tasks on friends and family, including a man named Taylor, whom he wished to oblige as he was living in Taylor's house. He had done it for free. Asked whether he had been tattooing in Newcastle after the Act came into operation, he replied that he had not. He had gone to Newcastle because that was where his mother's family lived. He stayed at Waratah, Cook's Hill and other places in the area. The police had come to see him in connection with information they had received about tattooing without a licence, and asked him to accompany them to the police station. They had checked on him and discussed the position with him but had taken no further action.
The applicant denied that he had performed any tattooing in Newcastle after October 2013, repeating that the police had discussed the position with him. Shown some Facebook pictures of himself with his face heavily tattooed which had been updated in November 2013 (exhibit R2, pp 69-72), he replied that he did not know when those tattoos had been applied. He had many photographs of his tattoos. Newcastle was the last shop he had worked in. He could not recall exactly when he had received his first facial tattoo, but thought it was roughly at the time he was in Toowoomba.
He did not remember dates because dates and the order in which his tattoos had been acquired was not a significant matter for him. He was covered from head to toe. He could not recall when he had received the Italian inscription "Il mio cuore" on his forehead. The Roman numerals XXVI on his face related to his son's birthday, and he had received the tattoo near the birthday.
In a statement by way of re-examination he said he sometimes had difficulty recalling past events because he had been a heavy user of marijuana and it had affected his memory, and he especially became agitated when he was asked the same question repeatedly. A tattooist licence would change his life. He wanted a regular job and a roof over his head. He did not want to live on the dole for the rest of his life, but had no hope of obtaining any other job. The licensing regulations, which he supports, are designed to get criminal clubs and organizations out of the industry. He has a job awaiting him in Dubbo, and cannot better himself without the opportunity to return to work.
The applicant tendered two character references (exhibit A1), one (undated) from Duane Hartas, the owner of the D & C Body Grafix tattoo parlour in Dubbo, which stated that the applicant had approached him over 12 months ago for an advertised tattooist position, but his licence application had been rejected. Since knowing the applicant, Mr Hartas had found him to be an extremely gifted artist with a passion for tattooing. He also understood that John has a past that he is not proud of. Mr Hartas believes that he has turned his life around for the better. Mr Hartas's shop is a family-owned business. He has three children under 10 years old, and all at the business are family people, whose families are their life, as is tattooing. John was no different and fitted in perfectly. Mr Hartas understands the need for tattoo licensing and supports it 100 percent, but believes some people are unfairly treated because of their past. He believes people can change, as he believed the applicant has, and deserves to be able to continue his tattoo career.
The other reference is from Emma Nolan, dated 14 February 2017. Ms Nolan works as an aboriginal mental health rehabilitation support worker in Dubbo and has known the applicant for the past 15 years. She acknowledges that he had experienced a time in his life that resulted in his obtaining a criminal record many years ago. She could honestly say that he is no longer involved in that lifestyle and is currently both drug and alcohol free on an ongoing basis. She believed he had worked hard to obtain the lifestyle he is currently living.
The applicant has had assistance from his doctor, such as by having a trusted professional to talk to at length, along with receiving medication to take on a daily basis to assist him to live a meaningful and fulfilling life, together with coping strategies to maintain his health and well-being and become the man he had not proved to be. One of the strategies that assists John in maintaining his health and well-being is art. Ms Nolan had had the pleasure of watching John grow, not only as an artist, but as a person, in the time that she had known him. He is incredibly talented and pays close attention to detail in every piece of art he produces.
The applicant is a caring man who is honest, reliable, artistic, clean, patient, polite, responsible, generous, organized and easy-going. He demonstrates an unbelievable amount of passion and commitment to his artwork, along with other aspects of life, such as maintaining the lifestyle he currently leads. She highly recommends him as she believes he will positively contribute to the community along with any business with which he may become associated. Neither of the referees was required for cross-examination.
The applicant also tendered a certificate dated 16 September 2015 (exhibit A2) from a psychiatrist, Dr Irosh Fernando, describing an assessment conducted at Newcastle Community Mental Health Service. Dr Fernando set out the applicant's history and symptomology and noted that he has a history of childhood trauma. His mother had reportedly been diagnosed with schizophrenia and had several psychiatric admissions to hospital when he was a child. He had lost a brother aged two years in a house fire, and his mother attempted suicide afterwards in front of him when he was a child. His step-father used to beat him and also beat his mother in front of him. He was also reportedly sexually abused by his step-father's sister. He said he did not use any drugs at all and stopped drinking about 7 years ago but had been using THC excessively ("$200 a day") for five years until 7 years ago.
The report diagnosed agoraphobia with panic attacks and stated that his history was also consistent with the diagnosis of bipolar and affective disorder. "However, it is difficult to arrive at a reliable diagnostic conclusion since John also seemed to have an underlying emotional dysregulation and affective instability due to his childhood trauma". The report concluded by setting out a plan for medicating his condition. It appears that the applicant has not consulted a psychologist or psychiatrist since then.
A finding that a person is not fit and proper to hold the type of licence under notice would also necessarily mean that it would be contrary to the public interest to allow the person to hold the licence: Stiles v Commissioner for Fair Trading [2017] NSWCATAP 44, [34]. Consequently, given the applicant's criminal history, the respondent submitted that it would be contrary to the public interest for the applicant to be granted a tattooist licence.
Further, for the purposes of s 16(5) of the TP Act, the tribunal may refuse to grant a tattooist licence if satisfied that the applicant is disqualified from holding a licence, permit or other authority under legislation administered by the Minister for Fair Trading or the Minister for Police and Emergency Services: TP Reg. cll 13(2)(b) and (3). His criminal convictions disqualified him under several other licensing statutes administered by the relevant ministers.
On 6 October 2017, the respondent filed some further written submissions correcting some passages in the original submissions that were relevant to the power in s 16(5) of the TP Act. They were necessary because the applicant's conviction for stealing from the person had been incorrectly recorded a "Robbery - SI" on his criminal record. The supplementary submissions provided the correct basis for his disqualification under parallel regimes on the basis that he was convicted of "Stealing from the person" but did not alter his disqualified status.
The supplementary submissions also noted that the Weapons Prohibition Regulation 2009 and the Firearms Regulation 2006 had been repealed and replaced by the Weapons Prohibition Regulation 2017 and the Firearms Regulation 2017 respectively. The change did not alter the applicant's disqualified status under the Firearms Act 1996 and the Weapons Prohibition Act.
In oral submissions at the hearing, Mr Mantziaris relied on the written submissions and reiterated that the respondents' case rested in part on the applicant's criminal record. There were some early low-grade convictions when he was aged between 17 and 20, but they were not enough on their own to warrant licence refusal. From 2008 onwards, however, there was a succession of offences that represented a consistent strand of disobedience to law and dishonest responses to police and regulatory bodies.
Particularly serious was his June 2008 conviction for stealing from the person involving taking a mobile telephone from a stranger on a railway platform by means of aggressive behaviour and serious threats (exhibit R2, pp 50-53).
Between July 2010 and November 2015 there followed a succession of some 15 traffic offences, some of them involving refusal to give particulars and dishonesty, together with a drug possession conviction. In some instances he had been found guilty of an offence and had repeated the same offence some months later. There had been a pattern of conscious disregard for the legislation and of contempt for the driver licensing regime.
Counsel submitted that his oral evidence had been evasive about the date on which he had last given a tattoo, in relation to when a licence was needed. He appeared to have tailored his evidence about Newcastle in order to fit in with the cut-off date of 1 October 2013. He claimed to be a family man, but had been separated from his children in the last two years, during which time there had been a custody dispute. This contradicted his evidence about his fitness and propriety.
The mental health evidence before the tribunal showed that he suffered from a borderline personality disorder, anxiety and panic attacks, which he admitted. Consequently he is vulnerable because of his mental health. His condition had been kept in check by medication, but he had not been assessed by a psychiatrist or a psychologist since 16 September 2015. He had consulted other doctors, but his pattern of moving about could disrupt his treatment.
The assessment of whether an applicant is a fit and proper person rests with the Commissioner of Police, but the Act makes it clear that it is the Director-General's decision that is under review, not the Commissioner's determination. Under s 8(2) of the ADR Act, the person or body whose decisions are administratively reviewable 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.
As with all legislation, the provisions of the TP Act and the powers that it confers must be construed and applied in such a way as to be consistent with the language and purpose of all the provisions of the Act: Project Blue Sky Inc. v Australian Broadcasting Authority [1998] HCA 28: (1998) 194 CLR 355, [69]. The Act contains no objects clause, but the tribunal may have regard to the Minister's second reading speech to ascertain the purpose of the legislation, the mischief that it was designed to cure. The second reading speech of the TP Act noted that the Act was introduced in response to gang crime in New South Wales. It aimed to break the stranglehold that OMCGs had over the tattoo industry. It was expected that removing bikers from the tattoo industry would reduce the reasons for rival gangs to engage in turf wars, because those businesses would no longer be symbols of a gang's territory. The Act's purpose is not, however, limited to eradicating the influence of OMCGs in the industry. The "fit and proper" criterion applied in the Act is of much broader application, as Montgomery SM explained in his comprehensive review of the authorities in Smith, at [38] to [41].
In Smith, Montgomery SM set out the approach to be adopted when undertaking a review of a decision to refuse an application for a licence as a result of an ASD (at [24] - [28] and [32] - [37]). Those principles may for present purposes be summarized as follows:
(1) As was noted above, the tribunal is required to take the ASD into account as an essential, legally relevant consideration to which weight must be given: at [24].
(2) While the ASD does not constitute a prima facie position which the applicant bears the burden of displacing, due weight must be given to it: at [25] - [26].
(3) Although the decision under review may be that of the secretary rather than the Commissioner, the tribunal may make a fresh determination as to whether the person is a fit and proper person to be granted a licence and whether it would be contrary to the public interest for the applicant to be granted a licence: at [31] - [32]; and
(4) The tribunal is to determine what the correct and preferable decision is on the basis of the material before it and any other lawful, discretionary basis; it is not confined to the grounds relied upon by the Commissioner or the secretary: at [27] - [28], [32] - [33].
Thus, in Austin, Montgomery SM considered that the applicant's long criminal record was a "strong prima facie indicator of the Applicant's lack of fitness and propriety", and that "The question therefore arises as to whether he has been completely rehabilitated" (at [75]). The tribunal ultimately was not satisfied about the applicant's rehabilitation and refused the grant of a licence.
As has been noted above, the applicant in this case has a significant criminal record. Following a number of mainly minor offences (but including a $300 fine for damaging property in 2006) when he was aged between 17 and 21, there followed a seven-year period between 2008 and 2015 when he engaged in a series of some 15 contraventions of the motor traffic legislation, including the following:
Failing to give particulars after a crash (July 2010);
Not complying with the conditions of his learner licence (unaccompanied by a licensed driver) (July 2010);
Negligent driving (July 2010);
Driving with a blood alcohol concentration of 0.098 (March 2011);
Failure to display "L" plates (March 2011);
Failure to comply with licence conditions (not accompanied by licensed driver, not displaying "L" plates), and also giving false information to police (September 2011);
Driving a vehicle using a registration plate issued for another vehicle (January 2012);
Driving without a licence (February 2013);
Driving while disqualified (February 2014);
Again, driving while disqualified (November 2015).
During that period there was also a cannabis offence for which he was fined $500 (September 2011) and an instance of travelling without a valid railway ticket (June 2008).
Most serious was his February 2008 conviction for stealing from the person after an incident in which he stole the victim's mobile telephone while they awaited a train at Civic Railway Station. He obtained the telephone by means of serious threats of violence and also threatened to harm the victim's mother (whose contact details he had obtained by scrolling through the telephone) if he reported the incident. He was fined $1000 and sentenced to 12 months' imprisonment, suspended upon entering into a s 12 bond, the conditions of which required him to:
Obey all reasonable directions for counselling, educational development or drug and alcohol rehabilitation and report to the Dubbo Parole Office in 7 days;
Undertake drug and alcohol assessment and therefore enter such programs as directed;
Undertake an anger management program;
Undertake an assessment for a positive lifestyle program and, if suitable, undertake that program;
Undertake other counselling as directed.
That record, the respondents submitted, especially the stealing from the person conviction, is a substantial one, pointing to the applicant's not being fit and proper to hold a licence. His record as detailed in the ASD also demonstrated an attitude of contempt for law and for regulatory legislation designed to protect the public. I accept that contention as far as it goes. There remains, however, the question of reform and rehabilitation. First, however, it is necessary to refer to the evidence taken in the confidential session held under s 46 of the CAT Act at the conclusion of the open hearing.
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As regards reform and rehabilitation, the respondents submitted that the applicant's evidence at the hearing was uncertain and evasive. He maintained that his memory for dates and the sequence of events was somewhat confused because he had been a heavy marijuana user and that his powers of recall had been impaired as a result. It is now generally accepted that regular cannabis use does cause cognitive impairment (including memory loss). The applicant, on his own admission to the psychiatrist, had at one time been regularly consuming very large amounts over a period of years, although he had ceased using the drug some years before.
That period of drug abuse could partly explain the applicant's uncertain recollection of relevant events, but on the basis of all the evidence I agree with the conclusion in the ASD (exhibit R2, p 9) and find that he did perform tattooing on a commercial basis in and around Newcastle for a period of months after a licence became compulsory.
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There is no evidence, however, that he continued to tattoo without a licence after being spoken to by police about the matter in 2014.
Consideration of the applicant's progress in reform and rehabilitation begins, therefore, with the fact that his evidence before the tribunal was less than entirely satisfactory and suggested some deficiency of candour. As against that, however, there are a number of points to be made in his favour. He accepts full responsibility for his criminal record and does not seek to excuse or minimize his misdeeds. In that respect his case contrasts with that of the unsuccessful applicant in Birch v Commissioner of Fair Trading and Commissioner of Police, New South Wales Police Force [2017] NSWCATAD 166. He acknowledges that he took a long time to realize that he was on the wrong path and to begin turning his life around. His remorse seems profound and genuine. He has positive and attainable goals in life, including being near his children in Dubbo. He says he has a tattooist job waiting for him there.
His serious offence of stealing from the person occurred 9 years ago and there is no evidence to suggest that he failed to comply with any of the conditions of his bond. His last offence was a traffic matter two years ago. He ceased drinking alcohol or abusing drugs at least 4 and possibly 7 years ago. There is no evidence of any complaints against him in relation to observance of tattoo infection control protocols or other health and safety practices, or of misconduct towards clients.
The applicant recognizes his mental health problems and has sought professional help for them. He has not been assessed by a psychiatrist or psychologist since 2015, but despite his peripatetic lifestyle in the meantime he appears to have followed his medication regime conscientiously.
His unchallenged character references (exhibit A1) are supportive and both speak highly of the way in which he has reformed and reconstructed his life. Mr Hartas finds him to be an extremely gifted artist with a passion for tattooing. Ms Nolan, who appears to be a social worker, maintains that he is no longer involved in the lifestyle that caused him to earn a criminal record many years ago and that he is currently free of involvement with drugs and alcohol on a continuing basis. He has been assisted by being able to talk with a trusted professional and has learned coping strategies to maintain his health, as well as taking his medication on a daily basis.
The applicant is seeking a licence as a tattooist, not as a tattoo parlour operator. He would thus be working under the supervision of an operator in whose interests it would be to ensure that he complies with legislative standards. While one would have preferred to see a longer period of incident-free living, as well as greater frankness in relation to the Newcastle episode, I think that at the present time he meets the fitness and propriety criterion required for a tattooist licence to a passable standard, and I so find.
That objective must implicitly be one of the purposes of this legislative scheme and is relevant to the interpretation of its provisions. As the tribunal pointed out in Naziry v Director-General, Ministry of Transport [2004] NSWADT 40 in the context of taxicab licensing, decision-makers must so far as possible place themselves in the position of a member of the public who might use the applicant's services and ask whether that member of the public, knowing of the applicant's record, would object to the applicant as the driver of the taxi.
A finding that an applicant is not of fit and proper character to hold the type of licence in question would normally also necessarily mean that it would be contrary to the public interest to allow the person to hold the licence: Stiles, [34]. In this case, however, I have found that the applicant meets the fitness and propriety standards required for a tattooist licence. The question therefore becomes whether there are other public interest grounds justifying refusal.
The legislation's main object is to rid the tattoo industry of OMCG influence and infiltration by other criminal elements. The applicant's has never had any association with any OMCG or, apparently, with any other criminal group. His own most serious offence occurred 9 years ago, when he was aged 21. It is well known that the peak years for male criminality are between the ages of 18 and 25. The applicant is now 30 and leading a life that has not attracted adverse notice. He appears to be substantially rehabilitated, although not perfectly. As the tribunal said in Wright at [120], however, a tattooist is not required to have led a prior life of unblemished rectitude. It is fair to say that a person wishing to obtain a tattoo would be prepared to use his services as an employee in a tattoo parlour without fear of being the victim of wrongdoing. Issuing a licence to the applicant would not undermine confidence in the licensing scheme.
It is settled law that an applicant's private interests, such as in obtaining access to a reliable income stream, receive no weight in a consideration of the public interest or fitness and propriety: Austin at [72] - [73]; Butler v Commissioner for Fair Trading [2017] NSWCATAD 138, [114]. Nevertheless, matters directly affecting the individual can have a wider public interest relevance. In Wright at [121], [127], Scahill SM accepted that an applicant's working as a tattooist could be a significant aspect of his ongoing rehabilitation and a relevant public interest factor (see also Butler, [117], [122]).There is also a public benefit in a person being able to engage in gainful business or employment rather than being kept by the taxpayer: (id. at [127]; see also Allen v Commissioner of Fair Trading [2015] NSWCATAD 273, [70]).
There is thus a public interest in assisting the rehabilitation of persons who have fallen foul of the criminal law, so far as is possible without endangering public health, safety or security, and the evidence here suggests that licensing the applicant as a tattooist would assist that process, especially as he is not qualified or equipped for any other kind of work. There would also be a modest benefit to the taxpayer, as he does not wish to live on the dole and he does appear to have the opportunity of returning to work in that industry.
As the respondents pointed out, under s 16(5) of the TP Act, the tribunal may refuse to grant a tattooist licence if satisfied that the applicant is disqualified from holding a licence, permit or other authority under legislation administered by the Minister for Fair Trading or the Minister for Police and Emergency Services: TP Regulation cl 13(2)(b) and (3). The applicant's criminal convictions would accordingly disqualify him under the Security Industry Act 1997, the Firearms Act 1996, the Weapons Prohibition Act 1998 and the Commercial Agents and Private Inquiry Agents Act 2004.
His disqualification under those provisions is in a sense hypothetical, as he has not applied for any licence or permit to which that legislation would apply, nor has he ever held such a licence or permit. But the disqualification itself is not hypothetical. It is currently operating and it shows the seriousness with which his past behaviour is viewed. Nevertheless, giving due weight to that circumstance does not, in my view, outweigh the considerations set out above that favour granting him a licence.
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 his record and the perfectly reasonable misgivings expressed in the Commissioner's ASD, however, I would stress that it is in the applicant's interests to ensure that he complies strictly with all the statutory requirements under the tattoo parlours regulatory scheme and the law generally. Any future contraventions are unlikely to be viewed leniently.