Wade v Commissioner for Fair Trading

NCAT Administrative and Equal Opportunity|2016-05-16

Background

The Applicant has worked in the tattoo industry for a number of years. Following the introduction of the licensing regime the Applicant applied for a licence in September 2013. His application was successful and he was granted a licence on 14 August 2014. The licence was to be in force for 3 years.
Having considered the Applicant's operator licence application, the Commissioner provided an adverse security determination under section 19 (1) of the Act in relation to the Applicant. A delegate of the Commissioner determined that:

the Applicant was not a fit and proper person to be granted the licence on the basis of his criminal history and penalty notice history; and
it would be contrary to the public interest for the licence to be granted on the basis of the Applicant's criminal history and penalty notice history.

The delegate of the Commissioner also advised, pursuant to section 36(1) of the Act, that the Applicant is disqualified from holding a licence, permit or other authority under: 1. section 11 (5) (c) of the Firearms Act 1996; and 2. section 10 (3) (b) of the Weapons Prohibition Act 1998; for the reason that, Mr Wade was made the subject of an apprehended violence order on 5 August 2015 by the Gold Coast District Court, which expires on 4 August 2017 .
None of the Applicant's offences have been related to tattooing or occurred at his place of work as a tattooist. There is no suggestion that he has ever had a drug, alcohol or violence related issue at his work.

The Issues

The issues to be determined are whether it would be contrary to the public interest for Mr Wade to be granted the operator licence sought and whether Mr Wade is a fit and proper person to hold the operator licence. The second issue is whether it would be contrary to the public interest for Mr Wade to continue to hold his tattooist licence.

The Applicant's case

The Applicant provided a written statement to the Tribunal. He also gave further oral evidence and was cross examined by the Respondent counsel.
The Applicant provided a letter dated 24th of March 2016 from Ms Rebecca Antoniou supporting the grant of his operators licence.
The Applicant provided a bundle of references from other members of the community including other business operators in the Atrium Shopping Centre in Tamworth where he proposed to open his parlour Killa Ink.
The Applicant provided a petition which was posted on the front of the Parlour Premises seeking support for the opening of his business Killa Ink.
The Applicant provided a petition seeking support for the opening of Killa Ink which was sent to the operators of other businesses in the complex where the parlour premises are located.
The Applicant provided further petitions seeking support for the opening of Killa Ink which were kept in other businesses around Tamworth.

Evidence of Malcolm Victor Charles Wade

The Applicant is 47 years old and grew up in Griffith. As a young man he had fallen in with the wrong crowd and has an extensive criminal record from this time. He became interested in tattooing in his early 20s. He started as an apprentice in Taree and eventually took over the parlour in around 1995. He later ran Body Art until he sold it in 2005. He operated Taree Tattoo From 2006-2007. He owned and operated Taboo Tattoo in Tamworth. During this time he travelled to Melbourne to work as a guest tattooist.
When his partner Shannon Hawkes became pregnant they moved to the Gold Coast to be closer to her parents, thinking there would be a better life there. From 2007 to 2015 he lived on the Gold Coast. He worked as a contract tattooist at Universal Ink. During this time he also travelled to work as a tattooist in Melbourne and Tamworth.
After he heard about the commencement of licensing in the tattoo industry, he made an application just before the closing date. He successfully applied for a tattooist licence on 30 September 2013. He considered the licensing regimen as a good thing as it washes out the "riffraff" from the industry. After he applied for the licence he was asked go to Tamworth to work in a parlour.
In about 2015 he returned to Tamworth with his partner Shannon Hawkes who had grown up in Tamworth and with their son Charlie. His goal was to open up a new parlour which he would call Killa Ink. In the interim he had worked as a contract tattooist for Honey Ink in Tamworth. The Applicant was not aware of any complaints having been made against him in relation to his tattooing work. He noted that he had very positive commentary on his Facebook page from his clients.
On 1 March 2015 he entered into a lease for premises in Tamworth to set up Killa Ink. He has been paying $2640 a month in rent for the premises. The lease runs until about 28 February 2017. He has fitted out the premises and has obtained council approvals. On 27 August 2015 he applied for an operator licence.
He had first met Brent Murray when the Applicant owned Taree Tattoo in Taree. Mr Murray came into the shop in 2000 for a tattoo. Mr Murray subsequently came in for new tattoos between 2000 and 2005. He would also stop by for a chat occasionally. They would say hello to each other when they saw each other in town in Taree. Other than that, he had no association with Mr Murray.
Between 2007 and 2015 he saw Mr Murray occasionally in Tamworth - but he had no other association with him. In early 2015 he visited Brent Murray in hospital in Tamworth because he had heard he had a traffic accident. He was at the hospital for about 25 to 30 minutes. He had asked Mr Murray if he wanted a magazine or food. He had said to Mr Murray at the time "I heard you joined the Rebels. You and your friends aren't welcome in my shop, right". He understood later from his conversation with a police officer in Tamworth in December 2015 that his conversation with Mr Murray when he visited him in hospital had been recorded.
Mr Wade denied that he had ever been a member of an outlaw motorcycle gang. He did not own colours and did not attend outlaw motorcycle gang events. He did not associate with people whom he knew to be members of outlaw motorcycle gangs. Since he has known of the restrictions on members of outlaw motorcycle gangs and the tattooing industry he has not done business or tattooed anyone who he knew to be an outlaw motorcycle gang member.
In relation to his criminal history, Mr Wade referred to the material filed by the Respondents. He noted some inaccuracies in the criminal records provided in those documents. I do not know why but two separate matters appear to be missing from the NSW Bail Report filed on behalf of the First and Second Respondents, these being H 50681953 and H 51399378. Copies of the Court Attendance Notices for these matters are included in the bundle of documents filed on behalf of the Second Respondent and marked "T" and "U". In respect of H 50681953, the charge in sequence 1, being a charge of common assault, was withdrawn by police. There were no further charges. In respect of H 51399378: (a) The charge set out in sequence 1, being a charge of common assault, was withdrawn by police, and (b) I plead guilty to the charge set out in Sequence 2 after significant changes were made to the facts, being a charge of breach AVO, and was fined $200.00.
Each of these matters had occurred before he had been issued with a tattooist licence. His partner had made an application to rescind the protection order made in Queensland on 5 August 2015 and they travelled to Queensland on 6 May 2016 when the protection order was withdrawn. He said that the matter had only arisen because he and his partner were shouting at each other and a nosy neighbour intervened.
His Queensland drivers licence is currently suspended for another 10 days. He has been living in Tamworth. His wife drove him to Sydney for the hearing.
Under cross-examination Mr Wade told the Tribunal he had known his partner for approximately 12 years. He could not remember exactly when they had got together. The people that come to tattooists as clients are general customers. They include doctors, police, and sheriffs - not just the riffraff. He has spent roughly 7 months working this year. He gets a percentage of his work - 50-50. Some weeks he might earn $1000 to $2500. There are sometimes quiet times. He probably lodged his last tax return for the year ended June 2012. He was caring full-time for his son on the Gold Coast and receiving carer's pension. He hasn't earned a lot in the last year. He has probably earned only $12-$17,000 because he is trying to get the shop open. His partner Shannon is working and brings in approximately $500 a week. She has only worked there for seven months - so he doesn't know how much she will earn per annum. He and Shannon have no other source of income. Their financial situation is really tight.
He spent $12-$15,000 fitting the premises out with cupboards, mirrors, floors and sterilisers. He had paid the monthly lease of $2640 for five months. Prior to that, the landlord, Bruce had let him off paying. He said that he had borrowed money to fit out the shop from friends Natalie Scieber and Neil Missen. Natalie had lent him $4000 in June 2015. He asked Neil Missen for a loan. He had lent him $4000. Natalie had stayed at their home for a couple of months. She is not associated with an outlaw motorcycle club. She has no interest in his business. He had known Neil since just before his child Taylor was born. He is the same as him - a family man. Neil had borrowed from his own mortgage repayments to lend him the money. Neil has nothing to do with his business. He had paid Neil Missen back $3500 in dribs and drabs, since he has been working.
His clientele is just like the clientele that goes into hairdressers and cafes. He said that only a small proportion of the clientele would be motorcycle club members. He stressed the very high quality of his work, for which he has won trophies.
He first worked for Taboo Tattoo in Tamworth when it was run by Aaron Simmonds. He had met Aaron Simmonds in Old Bar going back some years - probably in 2002. He then met him again a few months later - probably in Forster. He had commuted between Taree and Tamworth for a while. He had stayed at Aaron Simmonds' place in Tamworth for 3 to 4 months on and off, because he had nowhere else to stay. When he met Shannon Hawkes he then had somewhere else to stay in Tamworth. He didn't hang out with Aaron at other times. He never went out to have a drink with him. He knew that Aaron had been president of the local Rebels motorcycle club. He did not think that having a connection with somebody who was high up in an outlaw motorcycle club was a matter of concern. In 2014 somebody had told him that Brent Murray was a member of the Rebels. He thought "What an idiot." He is not close to Brent Murray or his friends.
He agreed that he knows David Keen as David Keen had lived with Aaron Simmonds in Tamworth. Dave and Aaron used to hang around together, but Mr Wade denied socialising with David. He knew that David Keen was a Rebel motorcycle club member. Dave and Aaron had been arrested for drug matters. The Applicant and his wife had not wanted to be involved with them. He didn't know anything about what they were doing, but he understood that they had been arrested for selling drugs to undercover police. They went to gaol for a couple of years. He had bumped into them in the street but he was not associated with them.
He returned to Tamworth in February 2015 with the intention of setting up his own business. He probably stayed for a couple of days. During this time he went to the police station. He spoke to the landlord. He rang his solicitor and his barrister. It was put to him that the reason he had come to Tamworth was to see Brent Murray as President of the Rebels to get his agreement to opening up his own tattoo parlour. He disagreed with this proposition.
He said that Mr Simmonds was not his issue. The Applicant said he knew things about people because "it's Tamworth." The Tribunal understood this to mean that it was a small place and people talked. He agreed that he knows Matty Brazier who is now President of the Rebels outlaw motorcycle club. He had seen Dave Keen not long after he got out of gaol. He ran into Aaron Simmonds two years ago. He had met Dave Keen and Matty Brazier when they had all lived with Aaron Simmonds.

The Applicant's submissions

The Applicant submitted that the Tribunal does not have jurisdiction to review an adverse security determination. However as found in the matter of "Smith" at paragraph 15, the Tribunal can decide to grant a licence or not to cancel a licence despite an adverse security determination.
The Applicant referred to the first adverse security determination made on 22 February 2016 in relation to the refusal of an operator licence under section 19(1) and the second on the 25th of February 2016 under section 19(2) in relation to the cancellation of his existing tattooist licence.
The adverse security determination in relation to his operator licence application had been made relying upon a number of documents. These were the Applicant's criminal history and statements of facts for the three sets of charges from 2003, 2012 and 2013. Presumably the determination also relied on confidential information which had been redacted pursuant to section 20 of the Act. There was also the notebook record of interview between the Applicant and a police officer at Tamworth police station on 2 December 2015 in which the Applicant had denied having a relationship with a member of the outlawed motorcycle club Rebels
The Applicant noted that it had not been determined that he was not fit and proper to continue to hold a tattooists licence.
In relation to the Applicant's fitness and propriety he noted that his criminal history consisted of a group of matters that had occurred between May 1990 and October 1993.
They were all 15 to 20 years old relating to assault, larceny, and break, enter and steal. There was the exception of possession of marijuana in October 1999.
There was a second group of charges between 1996 to 2012 which related to a goods in custody matter, which could not have been made out on the facts, and charges that had been withdrawn. The Applicant submitted that these matters should not be given any weight in determining a lack of fitness and propriety. The Applicant noted that the Respondent had not included the amended statement of facts concerning the finding of guilt in 2013 of a breach of an AVO. This matter did not involve violence and was at the lower end of the scale. There had been no other offences since then. His offences had mainly occurred before entering the tattooing industry. It was clear from the definitions of fitness and propriety that he had the necessary knowledge and skills. This was evidenced by the fact that he had not been subject to complaints and that he had references from people in the general community. He had reformed his character and has sufficient moral character to be an operator of a tattoo parlour and to continue to hold a licence as a tattooist.
The Applicant conceded that the petitions in favour of the opening of his tattoo parlour had limited weight, given that those signing a petition may not have known of his criminal history. In relation to the public interest concerns as a tattoo parlour operator, the Applicant referred to the matters already raised in relation to his criminal history. That history should have little negative impact on considerations of public interest. Further the Applicant assumed that the heavily redacted material in the Respondent's documents may relate to outlaw motorcycle club associations. The Applicant maintained that any such relationship was historical and he no longer associated with OMC members.
The Applicant had been considered fit and proper in August 2014 to gain a tattooist licence. There were only two significant events in the Respondent's material since this time. One was the apprehended violence order obtained in August 2015 and the other was his visit to Brent Murray in Tamworth hospital in early 2015. The Applicant referred to the decision in Zahra where an Applicant had been refused an operator licence because of his association with outlaw motorcycle club members. The Applicant's situation was to be distinguished from that of Mr Zahra. Mr Wade had not been a member of an outlawed motorcycle club whereas Mr Zahra had been. See Zahra v Commissioner of Police, NSW Police Force & NSW Fair Trading [2014] NSWCATAD 211
Mr Wade had specifically declared, as noted in a police notebook interview, that he had told Mr Murray that he did not wish to have Mr Murray or his friends come to his business. Mr Wade had no ongoing friendships or social interaction with members of an outlaw motorcycle club. In short, the Tribunal should draw the conclusion that it was not contrary to the public interest for the Applicant to obtain an operator licence or to continue to hold his tattooist licence.

The Commissioner's Case

The case for the Respondents was presented by the Commissioner.
The Commissioner relied on material relating to the Applicant's criminal history and the adverse security determination. Some of the material relating to the adverse security determination was provided to the Tribunal on a confidential basis and has not been given to the Applicant. Section 64 of the Civil and Administrative Tribunal Act 2013 applies to that material. Section 64 provides: 64 Tribunal may restrict disclosures concerning proceedings (1) If the Tribunal is satisfied that it is desirable to do so by reason of the confidential nature of any evidence or matter or for any other reason, it may (of its own motion or on the application of a party) make any one or more of the following orders: (a) an order prohibiting or restricting the disclosure of the name of any person (whether or not a party to proceedings in the Tribunal or a witness summoned by, or appearing before, the Tribunal), (b) an order prohibiting or restricting the publication or broadcast of any report of proceedings in the Tribunal, (c) an order prohibiting or restricting the publication of evidence given before the Tribunal, whether in public or in private, or of matters contained in documents lodged with the Tribunal or received in evidence by the Tribunal, (d) an order prohibiting or restricting the disclosure to some or all of the parties to the proceedings of evidence given before the Tribunal, or of the contents of a document lodged with the Tribunal or received in evidence by the Tribunal, in relation to the proceedings.
Some of the hearing was held in the absence of the Applicant and his legal adviser. During that time the Tribunal heard evidence and was provided with documents which have been made subject to orders under section 64. These orders prohibit the publication of evidence given before the Tribunal, whether in public or in private, or of matters contained in documents lodged with the Tribunal or received in evidence by the Tribunal. The Tribunal prohibited the disclosure to the Applicant of evidence given before the Tribunal, and documents lodged with the Tribunal and received in evidence by the Tribunal.

The Respondent's reasons for refusal of operator licence

In a letter to Mr Wade dated 26 February 2016, the delegate of the Commissioner for Fair Trading advised the Applicant that his application for an operator licence was refused in accordance of section 16(1) of the Act.
After inquiry under section 19(1) of the Act, the Commissioner of Police had made an adverse security determination concerning Mr Wade. The inquiry found that Mr Wade was not a fit and proper person to hold a tattoo operators licence due to his criminal history and that it would be contrary to the public interest for the licence to be granted to him because of his criminal history.
Further the Applicant had been disqualified from holding a licence, permit or authority under the Firearms Act 1996 and the Weapons Prohibition Act 1998 because on 5 August 2015 an apprehended violence order was made against him which was to expire on 4 August 2017. As a consequence of the adverse security determination, the Chief Executive must not grant the licence sought.

The Respondent's reasons for cancellation of Tattooist Licence

The Chief Executive also wrote to Mr Wade in February 2016 advising that pursuant to section 19 (2) of the Act, the Commissioner of Police had reported that it would be contrary to the public interest for Mr Wade to continue to hold his tattooist licence, due to his criminal history. Where such an adverse security determination has been made about a licence holder, section 26(1) (b) of the act requires the Chief Executive to cancel a licence.

Respondent's evidence at the Hearing

At the hearing, the Commissioner relied on material relating to the Applicant's criminal history and the adverse security determination.
Non-confidential material included the Applicant's criminal record, his traffic record and material relating to court attendance notices and facts sheets. There was also a copy of a police notebook entry as result of Mr Wade's attendance in December 2015 at Tamworth police station concerning his operator licence application.
The Commissioner relied on the contents of the section 19 report. A redacted copy of the section 19 report was provided to the Applicant. A somewhat redacted copy of the report was provided to the Tribunal. The Tribunal made an order under Section 64 of the NCAT Act in relation to the redacted parts of the section 19 report.
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Respondent's submissions

The Respondent provided written submissions to the Tribunal. Both decisions - to refuse the operator licence and to cancel the tattooist licence - were based on an adverse security determination. The refusal and the cancellation were therefore mandated by the requirements of the Act. The operator licence had been refused because the adverse security determination found that the Applicant is not fit and proper and it was contrary to the public interest for him to be granted an operator licence. The Applicant's tattooist licence had been cancelled because it was regarded as not in the public interest for him to continue to hold this.
The Respondent submitted that the Tribunal was not bound by the security determinations as set out in section 27(3) (c). The Tribunal can determine the question of fitness and propriety and the public interest itself and can rely on the material before it at the time of review.
The Respondent referred to the principles set out in Smith and Austin concerning the different levels of fitness and propriety relating to the different types of licence in the tattoo industry. The level of fitness and propriety required in relation to an operator's licence is more stringent because the roles and responsibilities of an operator or owner are an important aspect of the operation of the regulatory system for tattoo parlours. At the same time the refusal or cancellation of one level of licence may also influence the decision to refuse or cancel another level of licence. See the matters of "Smith"- Smith v Commissioner of Police NSW Police Force & NSW Fair Trading [2014] NSWCATAD 184 and "Austin" - Austin v Commissioner for Fair Trading + Commissioner of Police, NSW Police Force [2015] NSWCATAD 244.
A finding of fitness and propriety is necessary but not sufficient for a decisionmaker to be satisfied that it is in the public interest or not that a person hold a licence. See the matter of "Stiles" - Stiles v Commissioner for Fair Trading & Commissioner of Police, NSW Police Force [2016] NSWCATAD 30.
It was the Respondent's central submission that even if the Applicant were to be considered to be fit and proper to continue to hold a tattooist licence, he may not be fit and proper to hold an operator licence and it may not be in the public interest for him to hold either licence.
The evidence before the Tribunal concerned the question of the Applicant's association with outlaw motorcycle club members. The question for the Tribunal is "is there a real risk of association, either directly or indirectly". See Stiles at paragraph 68.
The Respondent submitted that the prevention of such association between those working in the tattoo parlour industry and members of outlaw motorcycle clubs was at the heart of the regulatory schemes that have been set up under the Tattoo Parlours Act 2012 as evidenced in the Second Reading speeches.
The evidence before the Tribunal was that contained in the Respondent's documents and evidence which had been heard in a closed Tribunal under section 49 of the Civil and Administrative Tribunal Act 2013 and subject to non-publication orders under section 64 and/or section 27 of the Tattoo Parlours Act 2012.
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The Tribunal should give little weight to the petitions and work quality references provided to the Tribunal by the Applicant as the providers were not aware of his criminal history. See the matter of "Deakin" - Deakin v Commissioner for Fair Trading & Commissioner of Police [2016] NSWCATAD 2. Ms Antoniou's reference relies on the information provided to her by the Applicant. She had not referred to the Queensland criminal matters in her reference. Further the reference did not address the adverse security determination issues.
The Respondent conceded that the AVO made in Queensland in August 2015 had been removed in May 2016. The disqualifications that flowed from the AVO under the Firearms Act 1996 and the Weapons Prohibition Act 1998 were now removed and could not be relied upon.

Discussion

In the present matter there is some limited dispute about the Applicant's criminal history. The Tribunal accepts the Applicant's contention that he had pleaded guilty to breaching an AVO in his most recent criminal conviction on the basis of a set of facts different to those presented by the Respondent.
The Applicant's criminal history includes assault, larceny, and break, enter and steal and drug possession and administration offences. There are also a number of driving offences.
The issues are whether or not that criminal history is such that:

it would be contrary to the public interest for the Applicant to be granted a tattoo operator licence or to continue to hold a tattooist licence; and
he is not a fit and proper person to hold the operator licence sought.

Findings of Fact

The Applicant has a criminal record which goes back to his youth. Some of his offences involve violence.
Despite the Applicant's criminal history, he was considered fit to hold a tattooist licence in August 2014. Since this time there has been a further matter involving at the least, verbal intimidation of the Applicant's partner. When the fact of the events leading to the AVO is considered along with the Applicant's earlier record, it suggests a propensity towards intimidation in the Applicant's dealings with others.
There have also been further traffic offences leading to the suspension of the Applicant's drivers licence for demerit points loss. Significantly it is the fourth time the Applicant's drivers licence has been suspended. The Applicant did not address the reasons for this record in his evidence. The record would appear to demonstrate a lack of concern on the Applicant's behalf for the consequences of offending - both in relation to the safety of others and in relation to the serious consequences for the Applicant himself.
The Tribunal is satisfied that the Applicant has met council requirements for the setup of the parlour.
It is not contested that the Applicant visited Brent Murray in Tamworth Hospital in February 2015 during the Applicant's short trip to Tamworth and told Brent Murray that he did not want his friends visiting his tattoo parlour. During this trip the Applicant undertook tasks relating to the establishment of his own tattoo parlour.
The Tribunal understands that the conversation included words to the effect of the Applicant stating to Mr Murray: "I heard you joined the Rebels… I don't want you or your mates visiting the parlour."
The Applicant says he wished to ensure that Mr Murray's friends did not attend his parlour as he did not wish to be associated with them. The Respondent says that the conversation was staged as the Applicant knew that OMC influence in his business would damage his chances of obtaining an operator licence.
The Applicant had told the Tribunal during his evidence that the source of his information about Rebels activity in Tamworth was hearing things said around town. "It's Tamworth mate".
The Tribunal considers on balance it was likely that the Applicant was well aware of Brent Murray's role in the Rebels OMC. Whether the conversation was staged or not it suggests that the Applicant was aware of the influence the Rebels might seek to have over the activities of the Applicant's proposed parlour. The contents of the Reading Speeches clarify that tattoo parlour operators and tattooists do not necessarily invite or welcome this influence. Operators and tattooists are themselves susceptible to intimidation. The Applicant himself may also be susceptible to this intimidation - willingly or otherwise.
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Fit and Proper

The expression "fit and proper" has been considered in numerous matters in this Tribunal and in other jurisdictions.
The concept of 'fit and proper' takes its colour from its statutory context and a person's fitness is to be gauged in the light of the nature and purpose of the activities that the person will undertake. In Hughes and Vale Pty Ltd v New South Wales (No. 2) [1955] HCA 28; (1955) 93 CLR 127 the High Court said (at 156-7): "The expression 'fit and proper' is of course familiar enough as traditional words when used with reference to offices and perhaps vocation. But their very purpose is to give the widest scope for judgment and indeed for rejection. 'Fit' (or 'idoneus') with respect to an office is said to involve three things, honesty, knowledge and ability ... When the question was whether a man was a fit and proper person to hold a licence for the sale of liquor it was considered that it ought not to be confined to an inquiry into his character and that it would be unwise to attempt any definition of the matters which may legitimately be inquired into; each case must depend upon its own circumstances."
The 'fit and proper' test applied in the Act is of broad application. The discretion vested in a decision maker in determining whether a person is fit and proper, in any given context, was said by the Full Court of the Federal Court in Commissioner for ACT Revenue v Alphaone Pty Ltd (1994) 49 FCR 589 at 389, per Northrop, Miles and French JJ, to "give wide scope for judgement and allow broad bases for rejection.
In Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321, Chief Justice Mason explained that, at 380: 'The question whether a person is fit and proper is one of value judgment. In that process the seriousness or otherwise of particular conduct is a matter for evaluation by the decision maker. So too is the weight, if any, to be given to matters favouring the person whose fitness and propriety are under consideration.'
Toohey and Gaudron JJ said at 380: "The expression "fit and proper person", standing alone, carries no precise meaning. It takes its meaning from its context, from the activities in which the person is or will be engaged and the ends to be served by those activities. The concept of "fit and proper" cannot be entirely divorced from the conduct of the person who is or will be engaging in those activities. However, depending on the nature of the activities, the question may be whether improper conduct has occurred, whether it is likely to occur, whether it can be assumed that it will not occur, or whether the general community will have confidence that it will not occur. The list is not exhaustive but it does indicate that, in certain contexts, character (because it provides indication of likely future conduct) or reputation (because it provides indication of public perception as to likely future conduct) may be sufficient to ground a finding that a person is not fit and proper to undertake the activities in question."
In Sobey v Commercial and Private Agents Board (1979) 22 SASR 70 Walters J said: "In my opinion what is meant by that expression is that the Applicant must show not only that he is possessed of a requisite knowledge of the duties and responsibilities devolving upon him as the holder of a particular licence ... but also that he is possessed of sufficient moral integrity and rectitude of character as to permit him to be safely accredited to the public ... as a person to be entrusted with the sort of work which the licence entails."
In the matter of Moore, see Moore v Commissioner for Fair Trading and Commissioner of Police [2016] NSWCATAD 80 at 16-23, Senior Member Montgomery analysed the term "fit and proper" in connection with the tattoo parlour industry.
In Smith at paragraphs [19] - [20] Senior Member Montgomery stated : [19] ...There is no "Principles and Objects" section within the Act. The Tribunal can look at Hansard and the Minister's speech to ascertain the purpose of the Act - the mischief that the statute was designed to cure. In his second reading speech on the introduction of the Bill to Parliament, the Minister for Police and Emergency Services Mr Gallacher noted that the Act was introduced in response to gang crime in NSW. It aims to break the stranglehold that outlaw motorcycle gangs have over the tattoo industry. It was anticipated that removing bikies from the tattoo industry will reduce the reasons for rival gangs to fight turf wars, because these businesses will no longer be symbols of a gang's territory. ... [20] While the second reading speech focused on the involvement of outlaw motorcycle gangs in the tattoo industry, it is clear from the Act that the broader intention is to rid the industry of any criminal or otherwise undesirable element and the avoidance of improper conduct.

Reformation of Character

In his evidence and submissions the Applicant contended that his criminal history was the result of getting in with the wrong crowd as a young man. Since he had been working as a tattooist this had changed. In the matter of Saadieh, see Saadieh v Director General, Department of Transport [1999] NSWADT 68, Deputy President Hennessy set out factors for consideration by a decision maker when determining whether a driving authority should be cancelled. Those considerations focus on establishing the reform of character and the likelihood that a person will reoffend. Those considerations are: ● "the nature, seriousness and frequency of any criminal offences for which the Applicant has been arrested or convicted; ● the nature, seriousness and frequency of any complaints made against the Applicant; ● the Applicant's driving record; ● 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."
In assessing the last factor, the following considerations are relevant: ● the length of time since the offences were committed and the circumstances in which they were committed; ● whether the Applicant admits responsibility for the offences or complaints and shows genuine remorse; ● the efforts the Applicant has made to rehabilitate himself or herself during that time; ● any change in the Applicant's circumstances such as increased support from friends, family or professional service providers.
The Tribunal has considered the factors set out in Saadieh's case in relation to the Applicant's reformation of character.
It is clear that Mr Wade has a significant criminal history as a younger man. His most recent criminal offence occurred in 2012 and his conviction recorded in 2013. His traffic offences have continued consistently. At the time of hearing he was nearing the end of his fourth drivers licence suspension.
There is no record of complaints against Mr Wade in exercising his tattooist skills. Nor has he been convicted of any offences in relation to the tattooing industry.
Mr Wade told the Tribunal that he does not use illicit drugs.
Mr Wade presented petitions and a reference from Ms Rebecca Antoniou which demonstrated that his tattooing skills are desired and well thought of in the community.

The references and the petition

In relation to the references as to Mr Wade's repute, the Tribunal refers to Loye's case, Loye -v- Director General, Department of Transport [2000] NSWADT 145 at 42 and 44. In this matter the Tribunal gave less weight to the references provided which did not contain the referee's knowledge of the offences where the references were relied upon to show the Applicant was of good repute.
Senior Member Montgomery expressed a similar view in Sawires v Commissioner of Police [2010] NSWADT 4at paragraph [49] - [53]: 49 The Applicant's character references: the Applicant filed a number of character references in support of his submission that he is a person of good character and a fit and proper person to hold a security licence. The Commissioner submitted that the references should be given little or no weight. 50 The references mostly make no reference to any of the criminal allegations made against the Applicant, the Applicant's prior criminal convictions or the proceedings before the Tribunal. Those references ... only refer to general events involving the Applicant's then girlfriend in 2004. Mention of the charges laid by the NSW police are made only obliquely. 51 The Commissioner submitted that none of the references demonstrate that the author was aware of specific charges against the Applicant, that the references were prepared with the knowledge that they would be used in proceedings seeking a reinstatement of the Applicant's security licence and the issues in those proceedings, or that the referees understood that the Applicant was previously found guilty of serious criminal offences. In particular, the references make no specific mention of the serious stalking charges brought against the Applicant in 2004 and the finding against him for that offence. Some of the references predate this and other offences committed by the Applicant. 52 Mr Zoppo, solicitor for the Commissioner submitted that there is longstanding authority that a reference should be given little or no weight where the referee has not demonstrated that they are aware of the person's offences and that, despite those offences they still believe the person to be of good fame and character: see for e.g., Tzoudas v Ministry of Transport [2008] NSWADT 350 at [42]; Council of the NSW Bar Association v Power [2008] NSWCA 135 at [39]. 53 The Tribunal has repeatedly accorded limited weight to references supplied in licensing cases that do not indicate knowledge of an Applicant's past offences or negative history. In Director-General, Ministry of Transport v FV (GD) [2008] NSWADTAP 60, the Appeal Panel said: [40] Clearly an important factor to be taken into account in giving weight to references is what the authors know of the negative history of the subject, especially criminal convictions. Where references do not show a knowledge of negative history, they must be approached with caution.
It is apparent that there is strong community support for the Applicant's business. However neither the petitions nor the references set out the petitioner's or the referee's knowledge of the Applicant's background or criminal history. As a result, this support does not assist the Tribunal in determining whether or not the Applicant is a fit and proper person to hold the licence that he is seeking. Nor do the petitions and reference assist in establishing that it is in the public interest for the Applicant to be granted an operator licence or for him to continue to hold his tattooist licence.
Mr Wade did not express any remorse in relation to his breach of a domestic violence order nor in relation to his motor traffic offences. There was no evidence presented to the Tribunal about how Mr Wade might prevent these matters occurring in the future or of any support he had obtained to assist him in changing his behaviour. In the circumstances, the Tribunal could not be satisfied that Mr Wade would not engage in this kind of behaviour in the future.

The concept of the 'public interest'

In the matter of Smith, Smith v Commissioner of Police, NSW Police Force & NSW Fair Trading [2014] NSWCATAD 184 at paragraphs [42]-[47], Senior Member Montgomery analysed the concept of "public interest". The 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.
Discretion 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.
In 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"
In 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"
The 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].
In 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.
The Tribunal has considered the Reading speeches made when the Tattoo Parlours Bill 2012 was introduced to parliament as guidance to the interpretation of the public interest test in the specific area of tattoo parlour licensing.
In his Second Reading Speech, Mr Anthony Roberts observed that the bill did not seek to define or particularise the meaning of what would be against the public interest in this regulatory regime. It is "deliberately broad to allow the Police Commissioner sufficient scope to get crime gangs out of this industry and keep them out". It is designed to address the criminal matters currently surrounding the industry, such as extortion, money laundering, personal violence, firearms crime, illicit drug offences, arson and so on. Mr Roberts further noted that "Applicants who are part of this criminal world can and should be refused a licence on public interest grounds." Further, "...if the Commissioner has credible evidence of their links to bikie gangs, under this scheme he may refuse or revoke their licence."

Consideration

In this matter the Tribunal notes that the Applicant is no longer subject to disqualifications under the Firearms Act 1996 or the Weapons Prohibition Act 1998 as the apprehended violence order made on 5 August 2015 has now been lifted.

Fit and Proper

It is clear from the material before the Tribunal that the Applicant has a long history of conduct that is of significant concern. In the circumstances, it is necessary for the Applicant to establish that he is a fit and proper person to hold the licence notwithstanding that background.
Since the Applicant was granted a tattooist licence in 2014 he has been made subject to an apprehended violence order in August 2015 and his driver's licence has been suspended as a result of repeated driving offences. The Tribunal understands that the apprehended violence order was lifted at the request of the Applicant's partner in May 2016. The behaviours involved which prompted the apprehended violence order - at the least, shouting and intimidation - were not denied by the Applicant. Further the loss of the Applicant's drivers licence indicates a continuing lack of willingness or capacity to cooperate with a public safety regulatory scheme.
The Applicant's criminal background shows an indifference towards licensing and regulatory schemes that are aimed at ensuring public safety.
To be fit for the role of tattoo parlour operator, an Applicant must demonstrate "honesty, knowledge and ability."
The evidence is that Mr Wade has met the technical set up requirements for a tattoo parlour. He is recognised as possessing skill as a tattooist. The decisionmaker must also be satisfied "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." A tattoo parlour operator is required to comply with a range of public regulatory matters. The evidence before the Tribunal set out above, contributes to the Tribunal's view of the Applicant as not being possessed of sufficient moral integrity and rectitude of character for the role. Given the Applicant's criminal history, the repeated domestic violence and intimidation incidents and lack of compliance with road regulations, the Tribunal cannot be satisfied that the Applicant would demonstrate the integrity required of a tattoo parlour operator. The Tribunal is not satisfied that the Applicant is fit and proper to be granted a tattoo operator licence.

In the Public Interest

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These factors referred to above contribute together with Mr Wade's criminal history and continuing disinclination to comply with motor traffic requirements to a conclusion that it would not be in the public interest for Mr Wade to become a tattoo parlour operator.
The Tribunal has considered whether it is in the public interest for Mr Wade to continue to hold a tattooist licence.
The Tribunal accepts that there have been no complaints put forward relating to Mr Wade's skill as a tattooist.
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Given the Applicant's breach of an AVO and repeated traffic offences, the Tribunal cannot be satisfied that were compliance with tattoo industry regulation not to suit Mr Wade's desires in the future, that he would comply with such regulation. In these circumstances the Tribunal is satisfied it is not in the public interest for Mr Wade to continue to hold a tattooist licence.

Decision

The Tribunal has concluded that Mr Wade is not fit and proper to be a tattoo parlour operator nor is it in the public interest for Mr Wade to become a tattoo parlour operator.
Further it is not in the public interest for Mr Wade to continue to hold a tattooist licence.

Tribunal's orders

The decisions of the Chief Executive to refuse Mr Wade a tattoo operators licence and to cancel his tattooist licence are affirmed. I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 18 July 2016

The licensing regime

Senior Member Montgomery considered the licensing regime established by the Act in his decisions in Smith v Commissioner of Police NSW Police Force & NSW Fair Trading [2014] NSWCATAD 184 and Zahra v Commissioner of Police, NSW Police Force & NSW Fair Trading [2014] NSWCATAD 211. This Tribunal adopts Senior Member Montgomery's analysis of the licensing regime.
The Act introduced licensing requirements for operators of body art tattoo parlours and tattooists. The regime came into force in November 2013. The licensing regime imposes a test of whether the person is "fit and proper" and whether it would be "contrary to public interest" to grant the licence or allow it to continue in force. It is an offence to carry on a body art tattooing business without an operator licence: section 6 of the Act.
Pursuant to Part 2 of the Act, body art tattooing businesses, body art tattooists and employed body art tattooists are to be licensed. It is an offence for those businesses or individuals, as the case may be, to fail to have the requisite licence: sections 6 - 7 of the Act. Businesses that only undertake cosmetic and medical tattooing procedures do not need a licence.
Pursuant to section 9 of the Act, there are two kinds of licence that 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 organisation. Sole operators only require an operator licence.
A person may apply to the Director-General for a tattooist licence pursuant to section 11 of the Act. Sections 12 - 13 of the Act provide for an application to be accompanied by a written statement in respect of close associates of Applicants and for the fingerprinting and palm printing of Applicants.
Pursuant to section 14(b) of the Act, upon receiving an application for a licence, the Director-General is 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 provides that the Commissioner is to inquire into and determine, and report to the Director-General on those issues. Subsection 19(3) provides that, for the purposes of making his determination, the Commissioner may have regard to criminal intelligence reports or other criminal information held in relation to an Applicant.
Pursuant to section 20, neither the Commissioner nor the Director-General are required to give any reasons for the determination or for not granting the licence, if such reasons would disclose any criminal intelligence report or other criminal information.
The Director General has a discretion whether to grant a licence in some circumstances, however, a licence must not be granted if the Commissioner makes an adverse security determination in relation to the Applicant: section 16(3)(c). Further a licence must be cancelled if an adverse security determination is made by the Commissioner about the licensee. See section 26 (1)(b)

At a glance

Court

Decision date

Catchwords

Source

Catchwords

Judgment (21 paragraphs)

Parties

Cases Cited (19)

Cited By (1)