Wright v Commissioner for Fair Trading

Evidence of Damien Wright

1. The Tribunal summarises Mr Wright's affidavit of 9 December 2016, as follows.
2. Mr Wright experienced a violent family upbringing. This led to violent behaviour on his part as a young man.
3. However, he said that: "I have made genuine efforts to improve my behaviour, to become a responsible and law-abiding member of Australian society. I want to show my family and children through my example that it is possible to overcome disadvantage and have a good life."
4. He acknowledged that between 2000 and 2006 he had been convicted of criminal offences, however he also applied himself to advancing his skills as an artist and as a tattooist/body artist.
5. In 2010 he relocated to Newcastle from Sydney and pursued his passion to be employed as a body artist/tattooist. His parole finished in November 2012. He worked as a business manager and tattoo artist in a tattoo parlour and applied for a licence in September 2013.
6. Mr Wright acknowledged his criminal offences. At the same time, he stated: "However, my life has changed significantly in the past decade, and I have done everything in my power to rehabilitate myself, take control of my anger and move forward in my life. Tattooing helped me express how I was feeling through art, and was a way that I could contribute to society."
7. He said his only offences between 2006 and late 2014 were driving offences. He committed offences in late 2014. The tattoo business he was working in was sold in 2014 and the employer had difficulties with an outlaw motorcycle gang. This caused Mr Wright stresses and contributed to his psychotic breakdown. He became paranoid, fearing for his own life and that of his family because of the outlaw motorcycle gangs. He engaged in substance abuse. He noted that his fear of outlaw motorcycle gangs means that he would never deal with them in any circumstances. Holding a tattoo licence enables him to provide for his family. It is his only area of training. His art is what drives him. He considered that he was a skilled tattooist. He could use his skills for the benefit of society.
8. Mr Wright also provided a separate 4-page letter addressed to the Tribunal which he said he had probably written in December 2016.
9. The Tribunal summarises that letter as follows. Mr Wright referred to his violent upbringing and substance abuse which led to violence and gaol terms. He regretted these experiences which he could not undo. He stated that he had undergone a massive voluntary change of heart, mind and lifestyle. He had to be realistic that with his criminal record the kinds of work he could do would be limited. His passion in life is art. He learned tattooing. He undertook TAFE business management courses. He had completed a contamination course and is in the process of finishing his diploma. He reads self-help literature and is committed to his rehabilitation. He maintains faith that he can improve himself through tattoo study and self-improvement. When he was released from prison at the age of 27, he left Sydney and moved to Newcastle to move away from his past influences. He continued attending AA and found a job in a tattoo shop. After eight months, he was made the manager at the shop. Tattooing provides him with positive interaction with people. People respect him because of the changes that he has made from his past life. He has a desire to help people. He travelled to Japan to study Japanese traditional tattooing and to Thailand. His life was going well.
10. In late 2014 the shop was sold and he was concerned about the threats from outlaw motorcycle gangs to himself and his family, which caused him anxiety and depression. He did not contact the police because he feared reprisal. He said he started smoking marijuana to sleep because of his anxiety. His mental state deteriorated and he felt something bad was going to happen soon. He became suicidal. He was worried about the safety of his family. He called police and asked them to meet him. As he came close to the arranged meeting place he threw the weapon out of the car window. He was not intending to hurt anyone. He was wanting to preserve his safety and that of those around him. He was sorry for the disturbance he had caused. His psychiatrist later told him that he had a drug induced psychosis and acute depression.
11. While he was in gaol after the offences in late December 2014, he started drawing and this gave him some hope. He is in a better frame of mind now. He has completed his sentence. Tattooing is his passion. It gives him some hope. He has begun a path away from crime and violence. He is earning a legitimate income. He has not touched marijuana since going to gaol. He takes prescribed medication. He conducts himself appropriately in the tattoo industry. He uses his art to spread messages of motivation and positivity to people. He understands the need for regulation in the industry and he would strictly adhere to any supervision or special restrictions if he were allowed to be a tattooist. All he wants to do is produce art, support his family and help people. He has no ulterior motives or hidden agendas.
12. Under cross-examination, Mr Wright agreed that he had commenced smoking marijuana again after the breakdown in his relationship in 2013. He agreed he had told Dr Bench that he started smoking synthetic cannabinoids in January 2013. It had built up from there. His written submissions had referred to his use of marijuana to combat pain. He said that pain included psychological pain.
13. He had obtained the unregistered, unauthorised firearm involved in his offences in December 2014, from a client. The client was a large man of 150 kg and instead of paying for his tattoo, he said he would give Mr Wright a firearm. Mr Wright was intimidated and felt unable to say no. He also thought "it was a little bit cool." He kept it under the lounge. He thought he had made a bad, dumb decision to accept the firearm. He would now make a different decision.
14. He does not take drugs. He is tested for drug use as part of his parole until September 2017.

Evidence of Dr Christopher Bench

1. The Tribunal had reports from Dr Bench dated 19 January 2015 and 7 November 2016. In his evidence, Dr Bench told the Tribunal that Mr Wright should be subject to further monitoring over the next 12 months. He said he understood from the reports of Dr Morgans and Dr Sinnaduray, that Mr Wright had reported experiencing paranoia and auditory hallucinations during the second half of 2016. Dr Bench thought it would be necessary to monitor Mr Wright in a drug free state for a further 12 months from the date of those reported auditory hallucinations. If Mr Wright were to remain drug free for 12 months, this would assist to clarify whether the symptoms were symptoms of a drug induced psychosis or a primary psychotic illness such as schizophrenia. If Mr Wright abstained from substance use for a period of 12 months, but still experienced symptoms such as auditory hallucinations, it might be possible to conclude that he has a psychosis such as schizophrenia, not a drug induced psychosis. Dr Bench thought that if Mr Wright has a psychosis such as schizophrenia, which is not drug induced, he is likely to experience further symptoms if he does not take appropriate medication. Monitoring over the next 12 months would tell. Generally speaking, Dr Bench considered it more likely that Mr Wright had a drug induced psychosis.

The Applicant's submissions

1. The Tribunal summarises the Applicant's submissions as follows. The Applicant had acknowledged his criminal background. He was not involved in gang crime. He had sought help for his substance abuse problems. The Applicant had never been charged with any offences in relation to the tattooing business. The Tribunal should only consider criminal offences relating to the TPA, concerning tattooing. He had no history of criminal offences involved in the tattooing industry. In relation to public interest, the Applicant submitted that he had served his time for his offences and it would be unjust to impose further punishment on him by withholding his tattooist's licence. The references show that he had a positive reputation as a tattooist. The referees supported him in this. The Applicant's offences in December 2014 were the result of a drug induced psychosis. He was now drug free.

Fit and proper

1. The Applicant submitted he was fit and proper to be a tattooist. See Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321. Apart from the psychosis induced offending in December 2014, his offences did not demonstrate a relevant disregard for public safety. His offences in December 2014 were self-harming. His offences did not involve amphetamines or ice - which would have been more serious.
2. The community support set out in the references shows that the Applicant is fit and proper to be a tattooist. The Applicant had never been an incompetent professional see Pillai v Messiter [No.2] (1989) 16 NSWLR 197 and Constantin v Commissioner of Police NSW Police Force (GD) [2013] NSWADTAP 16. He had undertaken relevant training in professional skills - such as infection control. He possessed the requisite knowledge of the duties and responsibilities that are attached to a tattooing licence.

Good Fame and character

1. The Applicant submitted he was of good fame and character. He submitted that the Tribunal should not consider the crimes committed by the Applicant as a minor to assess his character as an adult. A reasonable person attending a tattoo parlour would not be concerned by the Applicant's criminal record. The Applicant had held a good reputation prior to his offending in December 2014. The offences in December 2014 were the result of a drug induced psychosis. The Applicant was taking measures to address his substance use. Dr Bench, psychiatrist, noted that this reduced his risk of reoffending. In keeping with the factors set out in Saadieh's case, the Tribunal should note that the Applicant's addressing of his substance abuse problems meant that his risk of reoffending was reduced. See Saadieh v Director General, Department of Fair Trading [1999] NSWADT 68

Public Interest

1. The Applicant submitted his skills as a tattooist were valuable to the community. His clients trusted him. He was not a career criminal. He had not reoffended for eight years prior to the events of December 2014. His likelihood of reoffending was remote. The Applicant compared his circumstances more favourably to those of Mr Moore in the matter of Moore v the Commissioner of Police [2016] NSWCATAD 80. Mr Moore was refused a tattooist's licence. Mr Moore had a significant criminal history but none of his offences were work related. The Tribunal had said that Mr Moore would be able to obtain his licence in the future if he familiarised himself with the requirements of a tattooist's licence. The Applicant had already familiarised himself with these requirements. Some of his offences were as a minor. He should be considered to be fit and proper to hold a tattooist's licence.
2. In summary, the Applicant's case was that many of his offences were undertaken as a minor. He had been offence free for a period of eight years prior to December 2014. His offences in December 2014 were drug-related and he had taken "extreme measures" to ensure that this behaviour is not repeated. He was not a target of the tattoo parlours legislation. None of his offending was gang related. He was not associated with an outlaw motorcycle gang. He had the necessary skills and ability to be a tattooist. Being a tattooist was an important element in his rehabilitation.

The Commissioner's Case

1. The case for the Respondents was presented by the Commissioner for Police. The Respondents relied on the contents of the section 58 documents and written and oral submissions.

The Respondents' submissions

1. The Respondent submitted that there had been a mandatory refusal of the Applicant's tattooists licence by the Commissioner for Fair Trading, because of the Commissioner of Police's adverse security determination. Further there had been a discretionary refusal because Mr Wright was also disqualified from holding a licence under the Security Industry Act 1997, the Firearms Act 1996 and the Weapons Prohibition Act 1998

Legislative background

1. The TP Act was introduced with a view to imposing requirements that would have the effect of eradicating criminal elements/links from the tattooing industry: see the Second Reading Speech to the Tattoo Parlours Bill 2012: Mr Anthony Roberts, Legislative Assembly, 3 May 2012.
2. While there is a focus by the legislation on the involvement of outlaw motorcycle gangs, "the 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 v Commissioner of Police & Anor [2014] NSWCATAD 184 (Smith), [20] (affirmed in Austin v Commissioner of Fair Trading & Anor [2016] NSWCATAP 179 (Austin) at [33]).
3. By s 16(3), the Secretary must reject an application for a licence if the Commissioner makes an "adverse security determination". By s 16(5), additional grounds for refusing the grant of a tattooist licence may be provided by the regulations. The Tattoo Parlours Regulation 2013 (NSW) (TP Regulations), provides for discretionary refusal if the Secretary is satisfied that an Applicant is disqualified from holding a licence, permit or authority under legislation administered by a "relevant Minister".
4. The Respondent submitted that the approach in Smith was correct. When the Commissioner has made an adverse security determination, the Tribunal still has a discretion to grant a licence despite the adverse security determination: s 27(3)(c).

Fit and proper person

1. The authorities on words "fit and proper" were distilled into 6 propositions by the Appeal Panel of the Tribunal in Austin: 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 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." See Austin v Commissioner of Fair Trading & Commissioner of Police [2016] NSWCATAP 179
2. In AJO, see AJO v Director-General, Department of Transport [2012] NSWADT, the Tribunal held (at [32]) that it was made clear in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 that issues of character and reputation may play a "determinative role" in determining whether a person is fit and proper. For instance, at [29], the Tribunal cited Saadieh v Director General, Department of Transport [1999] NSWADT 68, where Hennessey DP held that the factors to be taken into account in determining an Applicant's suitability and fitness to obtain a taxi authority included: a. the nature, seriousness and frequency of any criminal offences for which the Applicant has been arrested or convicted; b. the Applicant's reputation in the community; and c. the likelihood that the Applicant will re-offend, be the subject of further complaints or commit further traffic offences.
3. The relevant contextual matters for construing the fit and proper requirement include the following:

• The TPA Second Reading Speech requirement to eradicate criminal elements and links from the tattooing industry;
• The speech's statement that fit and proper will cover activities such as "personal violence, firearms crime, illicit drug offences".
• There are penalties for tattooing without a licence;
• Applicants must be finger and palm printed;
• There is mandatory assessment of fitness and propriety;
• An adverse security determination leads to mandatory refusal; and
• the Act and Regulations rely on honesty in entrusting a tattooist licence to comply with its obligation to keep contemporaneous records: cl 23 TP Regulations.

1. In Austin v Commissioner for Fair Trading and Anor [2015] NSWCATAD 244, Senior Member Montgomery considered that the long criminal record of the Applicant was a "strong prima facie indicator of the Applicant's lack of fitness and propriety" and that "[t]he question therefore arises as to whether he has been completely rehabilitated" (at [75]). The Tribunal ultimately was not satisfied of such rehabilitation and refused the licence.
2. The decision in Austin to refuse the licence was upheld on appeal. While the Applicant also allegedly had links with outlaw motorcycle gangs (OMCGs), the Appeal Panel confirmed that the criminal history was in itself significant. The Appeal Panel of the Tribunal held (at [79] - [80]): "We accept that the standard of character required of a tattooist does not equate with the high standard of character required of, for example, a legal practitioner. However, in our opinion, qualities of good character are introduced as an aspect of the licence assessment by the legislature's adoption of the commonly used expression "fit and proper person". They bear upon the obvious consideration of public safety. Secondly, as we have already explained, there was no real issue in the proceedings that, in the absence of rehabilitation, Mr Austin's criminal history, including the nature and seriousness of it, leaving aside any relationship with OMCGs, stood in the way of a successful application by him for a licence. In our opinion, it was correct that it did so because it showed a disregard for the law and the rights and safety of others which was inconsistent with his designation as a fit and proper person and warranted a lack of confidence that he would conduct himself as a tattooist safely and honestly. In our opinion, of prime concern in this regard was the 2013 conviction involving the use of "Ice"."
3. The Applicant had cited the authority of Saadieh v Director General, Department of Transport [1999] NSWADT 68 at [15] incompletely to the effect that "a person's criminal record alone is not necessarily evidence of bad repute" The full quotation was that "a person's criminal record alone is not necessarily evidence of bad repute which is sufficient to disqualify that person from holding a taxi authority". The TP Act, by contrast, has one of its central aims to prevent criminality in the tattoo industry.
4. Finally, it should be observed that questions of financial disadvantage or hardship on an Applicant are not relevant to the assessment of that person's fitness and propriety: Austin at [73] (and authorities cited therein).

Not a fit and proper person

1. The Respondents submit that the Applicant is not fit and proper to be granted a tattooist licence and is precisely the type of person that the legislation seeks to exclude from the tattooing industry.

The effect of the Applicant's offending

1. The Applicant's criminal record demonstrates that the Applicant is a person who has a propensity towards violence and a long history of flagrant disregard for the law and for the safety and well-being of others. This counts against a finding that the Applicant is a person with a rectitude of character. It also contradicts the Applicant's submission that, "[a]part from the psychosis-induced offending in December 2014, the offences do not demonstrate a relevant disregard for public safety".
2. As in the case of Austin, the Applicant's long criminal history creates a strong prima facie presumption that he is not a fit and proper person. Indeed, in Allen v Commissioner for Fair Trading and Anor [2015] NSWCATAD 273, it was held that a "substantial period of rehabilitation" would have been needed for the Applicant to have been granted a licence (at [73]). This submission is heightened in the present case, given the Applicant's failure to report the criminal activities of OMGs in the tattoo parlour industry.
3. The Applicant had not rehabilitated. There was no significant period where he was not committing offences, such that the Tribunal may safely draw the inference that he has been rehabilitated. It is in this sense that the present case differs from cases such as Dyas v Director-General Fair Trading & Commissioner of Police [2014] NSWCATAD 223 and O'Donnell v Commissioner for Fair Trading [2016] NSWCATAD 166 (both of which involved less serious offending and patterns of at least 3 years of not committing offences prior to the application for a licence).
4. The Applicant had characterised the 2014 offending as an anomaly in his progressive rehabilitation, but this was contradicted by the fact that the Applicant has either been offending or in prison for over a decade.
5. Even if the Applicant had not offended since his release from prison in April 2016, that was a grossly inadequate period to assess whether the Applicant has rehabilitated. It is also an artificial period, since he remains on conditional parole until September 2017 and is liable to return to prison in the event of any reoffending.

The effect of the Applicant being on parole until 13 September 2017

1. The Applicant was subject to conditional parole until 13 September 2017. Long periods of rehabilitation have usually been required of an Applicant who has committed serious offences. In other licensing areas (taxi, hire cars) the Tribunal has usually found that insufficient time had elapsed for the Tribunal to be satisfied that an Applicant was rehabilitated. The TPA has criminality as its focus. It imposes a higher level of concern than other contexts of fitness and propriety and measuring of the public interest. The Applicant is still serving a sentence and is not yet entitled to full liberty. In this respect, he was not a fit and proper, nor was it in the public interest for him to hold a licence.
2. The Tribunal should also consider that the Applicant is being supervised while he is on parole. The Tribunal cannot be sure whether the Applicant is really rehabilitated or whether he is just avoiding incarceration. The Applicant's abstinence may be driven only by the drug testing regimen of his parole.
3. Of further note is his failure to report the criminality of OMGs while he was last working in the tattoo industry.

Public interest

1. The expression "public interest" is not defined in the TP Act or the Regulations. The application of the expression "public interest" permits for a general discretionary judgment that is unconfined except insofar as the subject matter, scope and purpose of the TP Act provides: O'Sullivan v Farrer (1989)168 CLR 210 at 216; Water Conservation and Irrigation Commission (NSW) v Browning (1947) 74 CLR 492 at 505. As held in McKinnon v Department of Treasury (2005) FCAFC 142 at 8 - 10: "The expression 'in the public interest' directs attention to that conclusion or determination which best serves the advancement of the interest or welfare of the public, society or the nation and its content will depend on each particular set of circumstances."
2. In Smith, the Tribunal set out a summary of the principles that govern the concept of "public interest" (at [42]- [47]). 42. "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, 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. 43. 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. ………. 44. 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. 45. 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. 46. 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] 47. 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."
3. The Second Reading Speech of Anthony Roberts on 22 May 2012, expressed the intention of the public interest requirement under the TP Act: "The public interest test is not intended to be focused on issues particular to the art of tattooing or to concern itself with the competence of those performing the service. 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. Applicants who are part of this criminal world can and should be refused a licence on public interest grounds."

Application in this case

1. The Respondents submitted that it is not in the public interest for the Applicant to be granted a licence, having regard to the applicable principles.
2. A finding of fitness and propriety is necessary, but not sufficient, for a decision maker to be satisfied that it is in the public interest for that person to hold a licence. See Stiles - Stiles v Commissioner for Fair Trading & Commissioner of Police, NSW Police Force [2016] NSWCATAD 30.
3. The Applicant is a person who has been convicted of multiple offences and who has demonstrated, repeatedly, a willingness to engage in violent conduct and to disregard the law. The Tribunal could not be satisfied that the Applicant has rehabilitated.
4. Secondly, while operating as a tattoo artist between 2012 and 2014, the Applicant engaged in drug-taking, illegally obtained a firearm and failed to report known criminal activity by an OMG in the tattoo industry.
5. Thirdly, the Applicant's expert report from Dr Bench does not support the conclusion that it would be in the public interest to grant the Applicant a licence. Dr Bench notes that the Applicant has a history of psychotic illness, Polysubstance Dependence and Antisocial Personality Disorder and now presents with a Substance-Induced Psychotic Disorder (in remission). Given the Applicant's background of offending, such a diagnosis represents a risk to public safety if the Applicant cannot demonstrate progress in containing and controlling it.
6. The Applicant has not demonstrated that he no longer remains a risk to the public. At the very least, a further significant period of time is required before the Tribunal could be so satisfied. In particular: a. Dr Bench recommends mental health care monitoring on a monthly or bi monthly basis and a further 2 or 3 sessions with a psychiatrist for a further 12 months (i.e. until November 2017). The Applicant has not indicated whether he is complying with this recommendation or not. b. Dr Bench notes that the Applicant's prognosis is "closely linked to his willingness and ability to be abstinent from illicit substances". Again, the Applicant has not yet demonstrated any such wiliness or ability for any significant length of time.
7. Ultimately, the grant of a licence in the present circumstances is likely to erode public confidence in the scheme and regulatory requirements under the TP Act, which has as one its objectives the exclusion of persons with criminal tendencies from the tattooing industry, with a view to protecting public safety.
8. To allow the Applicant a tattooist licence, notwithstanding his actions, would undercut public confidence in tattoo parlours, and, cause a risk to public safety by allowing a person such as the Applicant to operate.

Disqualification under similar regimes

1. Finally, it should be noted that the Applicant's convictions mean that he is disqualified from holding a licence, permit or authority under the Security Industry Act 1997, the Firearms Act 1996 and the Weapons Prohibition Act 1998.
2. These Acts each have comparable requirements that an Applicant be a fit and proper person and that the grant of the relevant licence/permit be in the public interest. By reason of s 16(5) of the TP Act, the fact that the Applicant is disqualified from holding a licence, permit or authority under those Acts provides a further basis for refusing his application for a licence.

Scope of the Tribunal's role

1. The Tribunal adopts the expression of the Tribunal's role as set out by Senior Member Montgomery in Smith. Section 27(3) of the Act is to be construed as giving the Tribunal the jurisdiction to make a fresh determination on the basis of the material placed before it. The Tribunal is not confined to the grounds relied upon by the Commissioner in making the adverse security determination. See Smith v Commissioner of Police NSW Police Force & NSW Fair Trading [2014] NSWCATAD 184 ("Smith") and Zahra v Commissioner of Police, NSW Police Force & NSW Fair Trading [2014] NSWCATAD 211 ("Zahra")
2. The Tribunal may consider fresh material not placed before the original decision maker. The Tribunal may make its decision on any other lawful, discretionary basis. In doing so there is no need to revisit the adverse security determination.
3. Unlike the Director-General, the Tribunal has a discretion to grant a licence even though the Commissioner (of Police) has made an adverse security determination (ASD). The (Police) Commissioner's report or security determination is not under review, the Tribunal may decide to grant a licence despite the ASD.

Fit and Proper

1. The expression "fit and proper" in the context of the TPA was considered in Moore at paragraphs [16-23] by Senior Member Montgomery as follows:
2. This expression 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.
3. In Smith at paragraphs [19] - [20] I stated: [19] ...There is no "Principles and Objects" section within the Act. The Tribunal can look at Hansard and the Minister's speech to ascertain the purpose of the Act - the mischief that the statute was designed to cure. In his second reading speech on the introduction of the Bill to Parliament, the Minister for Police and Emergency Services Mr Gallacher noted that the Act was introduced in response to gang crime in NSW. It aims to break the stranglehold that outlaw motorcycle gangs have over the tattoo industry. It was anticipated that removing bikies from the tattoo industry will reduce the reasons for rival gangs to fight turf wars, because these businesses will no longer be symbols of a gang's territory. ... [20] While the second reading speech focused on the involvement of outlaw motorcycle gangs in the tattoo industry, it is clear from the Act that the broader intention is to rid the industry of any criminal or otherwise undesirable element and the avoidance of improper conduct.
4. In the present matter there is no suggestion that the Applicant has had any involvement with outlaw motorcycle gangs.
5. An assessment of whether a person is fit and proper to be the holder of a licence is different from, but related to, an assessment of whether a person is of good character. The concept of 'fit and proper' takes its colour from its statutory context and a person's fitness is to be gauged in the light of the nature and purpose of the activities that the person will undertake. In Hughes and Vale Pty Ltd v New South Wales (No. 2) [1955] HCA 28; (1955) 93 CLR 127 the High Court said (at 156-7): "The expression 'fit and proper' is of course familiar enough as traditional words when used with reference to offices and perhaps vocation. But their very purpose is to give the widest scope for judgment and indeed for rejection. 'Fit' (or 'idoneus') with respect to an office is said to involve three things, honesty, knowledge and ability ... When the question was whether a man was a fit and proper person to hold a licence for the sale of liquor it was considered that it ought not to be confined to an inquiry into his character and that it would be unwise to attempt any definition of the matters which may legitimately be inquired into; each case must depend upon its own circumstances."
6. 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.
7. 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.'
8. 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."
9. 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."
10. This Tribunal draws from Senior Montgomery's analysis the following principles:

• Fitness and propriety must be considered in the light of the particular calling for which the Applicant is seeking a licence and the statutory intention of the relevant Act;
• Issues of the Applicant's character are relevant;
• Past conduct is a relevant guide to future conduct;
• Fitness and propriety includes issues of honesty, knowledge of the calling and ability in the skills of the calling; and
• The decision maker should take into account all information both "for and against" when determining fitness and propriety.

The concept of the 'public interest'

1. The Tribunal refers to Senior Member Montgomery's analysis of the concept of "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],". 'Public interest' is designed to give the broader interests of the community priority over private interests .and to make clear that the interests of the whole community are matters for the Commissioner's consideration.
2. In Director of Public Prosecutions v Smith [1991] VicRp 6; (1991) 1 VR 63 the Court held that the public interest is a term embracing matters 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.
3. In Constantin v Commissioner of Police, NSW Police Force (GD) [2013] NSWADTAP 16 at paragraph [33] the Appeal Panel held that the ' public interest ' allows, for issues going beyond the character of the Applicant to be taken into account. These may include concerns in relation to public protection, public safety and public confidence in the administration of the licensing system.
4. The Second Reading Speech, sets out 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."

Findings of Fact

1. The Applicant is now 34 years old. The Applicant committed a vast range of violent and serious offences between 2000 and October 2006 (between the ages of 17 and 23).
2. Many of his offences involve violence. These offences included resisting police officers in the execution of their duty assaulting a police officer; malicious wounding with the use of a broken bottle; having an offensive implement in a public place and assault occasioning actually bodily harm.
3. The Applicant had also been convicted of a number of other criminal offences not involving personal violence - including larceny and vandalism, during this same period.
4. The Applicant was imprisoned for these offences from 2006-2010. The Applicant was released from imprisonment in 2010.
5. After early 2013 the Applicant started taking drugs and illegally obtained and stored a firearm while working as a tattoo artist. The Applicant has not been prosecuted for these matters. In late 2014, the Applicant committed a number of further offences leading, again, to the Applicant's arrest, conviction and imprisonment. Those offences were as follows: a. possessing an unregistered and unauthorised pistol in a public place (sentenced to 2 years', 3 months' imprisonment with a non-parole period of 10 months); b. possess ammunition without holding a licence, permit or authority (taken into account on sentence); c. use offensive weapon to prevent lawful detention (sentenced to 18 months' imprisonment with a non-parole period of 9 months); d. drive recklessly/furiously or in a speed/manner that is dangerous (sentenced to 6 months' imprisonment); e. have custody of a knife in a public place (taken into account on sentence); f. affray (sentenced to 13 months' imprisonment with a non-parole period of 7 months); and g. assault (sentenced to 9 months imprisonment with a non-parole period of 5 months).
6. The Applicant was released from prison in April 2016. He remains on conditional parole until 13 September 2017.

Discussion of facts and law

1. The Applicant's criminal history includes serious assault matters, larceny, firearms offences and a very serious driving offence.
2. The issues are whether that criminal history is such that:

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

Fit and Proper

1. The Applicant had submitted that he had committed no offences as a tattooist and therefore his criminal history should be considered, only as it related to the tattoo parlour industry. The Applicant relied upon the matter of Dyas, see Dyas v Director-General Fair Trading & Commissioner of Police [2014] NSWCATAD 223 as authority for the proposition that a person who had not committed crimes in his workplace as a tattooist, such as Mr Wright, was fit and proper. The Applicant submitted that he should be assessed as fit and proper (unlike Mr Moore) as his criminal record was less extensive than Mr Moore and he had greater knowledge of tattooing industry requirements. He should be viewed more favourably than Mr Moore and licensed on this yardstick. See Moore v Commissioner for Fair Trading and Commissioner of Police [2016] NSWCATAD 80
2. The Tribunal accepts that Mr Wright had not been prosecuted for criminal offences committed as a tattooist. However, the Tribunal does not accept that considerations of fitness and propriety or of public interest should be limited to criminal history within the tattoo parlour industry. The Second Reading Speech and the fact that the Applicant had been banned from licensing under other Acts, demonstrate the parliamentary intention to consider criminal behaviour beyond the tattooing industry.
3. The Applicant submitted that the Tribunal should not consider his crimes as a minor when looking at his good fame and character as an adult. The Tribunal rejects this submission. Case law relating to fitness and propriety makes it clear that past conduct is relevant to how a person might act in the future.

Reformation of Character

1. The Applicant submitted that he was rehabilitated and that his likelihood of reoffending is remote. The Tribunal concluded on the evidence before it that Mr Wright's rehabilitation must include both a rehabilitation from drug use and also a rehabilitation from criminal behaviour.
2. The Applicant had a period between 2006 and 2010 where he did not offend as he was imprisoned.
3. The Tribunal accepts that after his release from prison in 2010, the Applicant made efforts to rehabilitate his life and avoid criminal offending. The Tribunal accepts that moving to Newcastle and commencing work were part of this criminal rehabilitation. Mr Wright's evidence is that he abstained from substance use, which had been an aspect of his criminal offending as a younger man, until the breakup of his relationship in January 2013. Between 2010 and 2013, (after the breakup of his relationship), the Applicant did not, on his own report, commit criminal offences.
4. The Applicant told the Tribunal that he had recommenced taking drugs in 2013, after the breakup of his relationship. He had accepted a firearm from a client in lieu of payment. The Applicant did not register or store the firearm lawfully.
5. In 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 there has been a 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."

1. 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.

1. The Tribunal has considered these factors in relation to the Applicant's reformation of character.
2. It is clear that Mr Wright has a significant criminal history as a younger man. His most recent criminal offence occurred in 2014. There is no record of complaints against Mr Wright in exercising his tattooist skills. Nor has he been convicted of any offences in relation to the tattooing industry.
3. The Applicant referred to the references that have been provided by family members, other tattooists and clients of the Applicant's tattooing skills. These references commented favourably on the Applicant. They attested to the Applicant's tattooing skills. The referees refer to Mr Wright's criminal past and his imprisonment. The Applicant submitted that his community support in itself demonstrates that he was a fit and proper person. The Tribunal gives weight to the references as to their appreciation of Mr Wright's tattooing skills and to their perception that he is fit to be a tattooist.
4. Mr Wright expressed a deal of remorse in his affidavit and statement before the Tribunal and in his evidence to the Tribunal for his past offending. There was limited evidence presented to the Tribunal about how Mr Wright intended to prevent these matters occurring in the future. He was clear that he intended to avoid using substances. There was evidence from Dr Bench about Mr Wright's need to persist with abstinence from drug taking. It was not clear if he was still attending AA. He has a mental health plan.
5. There was some evidence of the Applicant's rehabilitation from drug use. The Applicant had sought help for his drug problems. The submissions referred to his contact with WHOS in Surry Hills after the offences in 2014. Dr Bench referred to the fact that the Applicant had largely been driven himself to abstain from drug use. The Applicant did not refer to other clinical assistance for his drug rehabilitation at present.
6. The Applicant submitted that the psychiatrist Dr Bench considered that his risk of reoffending was low. This was not the Tribunal's complete understanding of Dr Bench's evidence. The Tribunal is satisfied that Dr Bench said that Mr Wright had experienced a drug induced psychosis in December 2014, at the time that he committed a number of offences. The Tribunal notes however that the matters were treated criminally and not under the Crimes Act 1900 mental health provisions.
7. The Tribunal understood Dr Bench's evidence to be that for him to be clear whether Mr Wright's psychosis had been a primary psychotic illness or a drug induced psychosis, he needed evidence that Mr Wright had abstained from substance use for a period of 12 months since his last report of symptoms such as paranoia and auditory hallucinations. Mr Wright had reported such symptoms to Dr Sinnaduray and Dr Morgans in September and October 2016. If Mr Wright did not experience psychotic symptoms for a period of a year after abstaining from substances and he was not taking medication for treating psychosis, it was more likely that Mr Wright's psychosis in December 2014 had been drug induced. If Mr Wright were to experience psychotic symptoms even though he was abstaining from substance use, then it was more likely that his psychosis was the result of an illness such as schizophrenia which would require Mr Wright to take appropriate medication.

Implications of the Applicant being on conditional parole until September 2017

1. The Applicant provided written submissions after the hearing, addressing the fact that, at the time of hearing, he was still subject to conditional parole.
2. In summary, the Applicant submitted that the conditional parole was primarily a rehabilitation issue that should be given limited weight in the circumstances. Any weight given to the fact of the Applicant's conditional parole until September 2017 should reflect the rehabilitative function of parole.
3. The purpose of parole is to assist in monitoring an offender's adaptation to a normal community life. The Applicant submitted that his employment as a tattoo artist was part of this adaptation to a normal community life.
4. The granting of parole means that a number of factors had already been taken into account in respect of the Applicant. These included:

• the protection of the safety of the community;
• the need to maintain public confidence in the administration of justice;
• the impact of the offender's release on the victims; and
• the circumstances of the offences.

1. Having the support of a parole officer was the ideal time for the Applicant to re-establish himself as a tattoo artist.
2. In contrast, the Respondent had submitted that, as the Applicant was still on conditional parole, he was still serving a sentence. He does not yet have full liberty in the community. In these circumstances the Tribunal must find that the Applicant was not a fit and proper person and could not be in the public interest for someone still serving a sentence to be licensed in the context of the Tattoo Parlours Act 2013.

Public Interest

1. The Applicant had submitted that apart from the psychosis induced offending in December 2014, his offences did not demonstrate a relevant disregard for public safety. The Tribunal rejects this submission. The matters in December 2014 - possessing an unlicensed firearm and reckless/furious driving - contradict this. The Applicant's criminal and traffic offence history, demonstrate ignorance of public safety issues.
2. The Applicant had stressed that he had not been involved in gang crime. Gang crime is not the only consideration of the Act. 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.
3. The Applicant had submitted that he had served his time for his offences and he should not be further punished. The Tribunal notes that the case law is clear that licensing decisions are not matters of punishment but rather public protection.

Tribunal's Assessment

1. In Mr Wright's favour is the fact that none of his offences relate to his activities or behaviour as a tattooist. He has no established links with OMCGs or other criminal elements. He is regarded as having a high level of expertise and good relations with customers as a tattooist. Mr Wright showed signs of long-term rehabilitation after his release from imprisonment in 2010, until the 2014 offences. Further, the authorities make it clear that fitness and propriety are to be judged in the context of the activities intended to be engaged in. Being a fit and proper person to perform tattooing does not necessarily require an applicant to have led a life of unblemished rectitude.
2. The Tribunal also accepts that working as a tattoo artist would be a significant aspect of Mr Wright's ongoing rehabilitation. On the other hand, his long criminal history involving violence is frightening.
3. The 2014 offences could be regarded as a sign of relapse into his earlier habits of disregard for law, or they could be viewed as the result of drug use as Dr Bench considered. Either way, Mr Wright needs to satisfy a decision maker of his rehabilitation.
4. It is clear that before it licenses Mr Wright, the Tribunal must be satisfied that Mr Wright is presently a fit and proper person to undertake the responsibilities of a tattooist. He must also ensure that his past criminality does not enter into his tattooing practice. Dr Bench considered that a further period of monitoring is necessary to confirm the source of the Applicant's suspected drug induced criminality. The Applicant still has a period of conditional parole ahead of him.
5. In these circumstances the Tribunal cannot find that the Applicant is, as yet, a fit and proper person to hold a tattooist licence.

In the Public Interest

1. The Tribunal has considered whether it is in the public interest for Mr Wright to hold a tattooist licence. The Tribunal accepts that there have been no complaints put forward relating to Mr Wright's skill as a tattooist. The references are positive as to his tattooing skills.
2. In his Second Reading Speech to the Tattoo Parlours Bill 2012 on 3 May 16, Mr Anthony Roberts stated: "[e]ntry 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" (see also Austin at [59]).
3. Public interest as it relates to the tattoo parlour industry gives primacy of the community's interests over the private interests of an Applicant seeking a license. In this respect, the Tribunal acknowledges the Applicant's submissions that being licensed as a tattoo artist is a significant part of the Applicant's continuing rehabilitation. No doubt too there is a public benefit in a person, being able to engage in gainful employment rather than being kept by the taxpayer.
4. The Tribunal notes that in Constantin v Commissioner of Police, NSW Police Force (GD) [2013] NSWADTAP 16 at paragraph [33] the Appeal Panel found that public interest goes beyond the Applicant's character. Issues of public safety and the "public confidence in the administration of the licensing system" are relevant considerations. The Applicant is still subject to conditional parole at least until September 2017. He is not yet completely free. He is subject to continuing urinalysis as part of his rehabilitation from drug use and from criminal offending. In the circumstances, licensing of the Applicant at this time, when he is still subject to a sentence, may cause an undermining of public confidence in the administration of the licensing system.
5. The Second Reading Speeches indicate an intention for the public interest to be interpreted sufficiently broadly to allow the Police Commissioner the scope to address criminal matters such as personal violence, firearms offences and illicit drug offences. These are matters which featured in the Applicant's most recent offending in late 2014. The Tribunal considers that it is not at present in the public interest for the Applicant to be licensed as a tattoo artist prior to the completion of his conditional parole in September 2017.
6. In these circumstances, the Tribunal is satisfied it is not in the public interest at present for Mr Wright to hold a tattooist licence.

Decision

1. The Tribunal has concluded that Mr Wright is not fit and proper to be the holder of a tattooist licence at present. Nor is it in the public interest for Mr Wright to hold a tattooist licence at present.

Tribunal's Orders

1. The First Respondent's decision to refuse Mr Wright a tattoo licence is affirmed. I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 21 April 2023