Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Penno v Commissioner for Fair Trading [2019] NSWCATOD 198 Hearing dates: 30 October 2019 Date of orders: 29 November 2019 Decision date: 29 November 2019 Jurisdiction: Occupational Division Before: A Scahill, Senior Member Decision: (1) Decision under review is set aside. (2) The Applicant's application for a Tattooist licence is granted. Catchwords: TATTOO PARLOURS – tattooist licence – fit and proper person – public interest –criminal record –no links to organized crime or OMCGs –rehabilitation -disqualification under other legislation. Legislation Cited: Administrative Decisions Review Act 1997 Commercial Agents and Private Inquiry Agents Act 2004 Crimes (Sentencing Procedure) Act 1999 Evidence Act 1995 Firearms Act 1996 Security Industry Act 1997 Tattoo Parlours Act 2012 Tattoo Parlour Regulation Weapons Prohibition Act 1998 Cases Cited: Allen v Commissioner of Fair Trading [2015] NSWCATAD 273 Austin v Commissioner of Fair Trading and Commissioner of Police, New South Wales Police Force [2016] NSWCATAP 179 Birch v Commissioner of Fair Trading and Commissioner of Police, New South Wales Police Force [2017] NSWCATAD 166 Bugmy v The Queen [2013] HCA 37 Butler v Commissioner for Fair Trading [2017] NSWCATAD 138 Comalco Aluminium (Bell Bay) Pty Ltd v O'Connor (1995) 131 ALR 657 Commissioner of Police v Toleafoa [1999] NSWCATAP 9 Constantin v Commissioner of Police, New South Wales Police Force [2013] NSWADTAP 16 Director-General, Transport New South Wales v AIC (GD) [2011] NSWADTAP 65 Director of Public Prosecutions v Smith [1991] VicRp 6; [1991] Vic Rep 6, (1991) 1 VR 63 Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60 Health Care Complaints Commission v Do [2014] NSWCA 307 Hughes and Vale Pty Ltd v New South Wales (No. 2) [1955] HCA 28, (1955) 93 CLR 127 Moujalli v Roads and Maritime Services [2017] NSWCATAD 141 Naziry v Director-General, Ministry of Transport [2004] NSWADT 40 O'Sullivan v Farrer [1989] HCA 61, (1989) 168 CLR 210 Project Blue Sky Inc v Australian Broadcasting Tribunal[1998] HCA 28, (1998) 194 CLR 355 R v Ellis (1986) 6 NSWLR 603 Saadieh v Director-General, Department of Transport [19991 NSWADT 68 Smith v Commissioner of Police, New South Wales Police Force NSWCATAD 184 Stiles v Commissioner of Fair Trading [2017] NSWCATAP 44 Ting v Department of Fair Trading [2017] NSWCATAD 304 Wright v Commissioner of Fair Trading [2017] NSWCATAD 98 Category: Principal judgment Parties: Keith Penno (Applicant) Commissioner for Fair Trading (First Respondent) Commissioner of Police (Second Respondent) Representation: Counsel: M J Davis (Applicant) L Johnston (Respondent) Solicitors: Crown Solicitor (Respondent) File Number(s): 2019/00003438 Publication restriction: Nil REASONS FOR DECISION 1. The Applicant Keith Penno applied to this Tribunal on 28 December 2018 for review of a decision made by the first Respondent dated 7 December 2018 refusing to grant him a tattooist licence pursuant to s 16(1) of the Tattoo Parlours Act 2012 (TP Act). He had lodged an application for a tattooist licence with the first Respondent on 7 July 2018. He has never held a tattooist licence. 2. The decision was made after the Second Respondent, the Commissioner of Police, had investigated the Applicant. The Commissioner is required to be a party to review proceedings in this Tribunal pursuant to s 27(3)(a) of the TP Act, although initially he had not been mentioned in the title of these proceedings. The Commissioner is, however, effectively a Respondent by operation of law. 3. On 7 November 2018 , the Commissioner made a determination and report (the "adverse security determination" or ASD) pursuant to s 19(1) of the TP Act that the Applicant is not a fit and proper person to be granted the licence, on the basis of his criminal history . The Commissioner also found that it would be contrary to the public interest for the Applicant to be granted the licence. The decision also noted, pursuant to s 16(5) of the TP Act, that the Applicant is disqualified from holding a licence, permit or other authority under other legislation administered by the Minister for Fair Trading or the Minister for Police and Emergency Services. Applicable legislation 1. Section 7(1) of the TP Act creates an offence of an individual performing any body art tattooing procedure for fee or reward unless authorized to do so by a tattooist licence. Section 9(1)(b) provides for the granting of tattooist operator licences and tattooist licences to persons, which authorize the licensee to "perform body art tattooing procedures in accordance with this Act and the conditions of the licence": s 9(3). The provisions in part 2 of the TP Act requiring the holding of licences came into operation on 1 October 2013. 2. When the first Respondent's Chief Executive receives an application for a licence, he or she is required to refer it to the Commissioner of Police for an investigation and determination as to whether the Applicant is a fit and proper person to be granted the licence, or whether it would be contrary to the public interest for the licence to be granted, or both: s 14(b)(i). 3. The general discretion to grant or refuse a licence set out in section 16(1) is limited by s 16(3), which provides that "The Chief Executive must not grant a licence if...(c) an adverse security determination (ASD) has been made by the Commissioner about the Applicant". 4. Under s 27(1)(a) of the TP Act, a person whose application for a licence has been refused may apply to this Tribunal for administrative review under the Administrative Decisions Review Act 1997 (ADR Act). Section 27(3) deals with the nature of the Tribunal's function. It provides as follows: (3) If an application for a licence or for the renewal of a licence was refused or a licence was suspended or cancelled by the Secretary on the ground of an adverse security determination made by the Commissioner about the Applicant for the administrative review or a close associate of the Applicant: (a) the Commissioner (as well as the Secretary) is to be a party to any proceedings in the Civil and Administrative Tribunal for an administrative review of the decision of the Secretary, and (b) the Tribunal is to be provided with a copy of the report of the Commissioner's determination, and (c) the Tribunal is not prevented from determining whether the Secretary made the correct and preferable decision regarding the application or the licence concerned merely because of the determination of the Commissioner. 1. The point of this section is that the Tribunal may not change the adverse security determination. The Tribunal must make the correct or preferable decision about the licence application – which may include granting a licence even if the Commissioner has made an adverse security decision about the Applicant. The Issues 1. The issues in the present case are whether Mr Penno is (a) a fit and proper person to be granted a tattooist licence, and/ or (b) whether it would be contrary to the public interest for him to be granted a licence, or both: section 14(b). The evidence 1. The Respondents called no oral evidence, but relied on the documentary material, including the s 58 documents and the ASD. 2. The Respondent cross examined Mr Penno and Dr Lennings, psychologist. The Applicant's evidence 1. The Applicant's case relied on his own evidence, the comments of the sentencing District Court Judge in December 2016 and Dr Lennings' reports and evidence. Mr Penno's case was that he was confident he would not lapse into drug abuse or to reoffend. He was fit and proper to be granted a tattooist licence and it would not be contrary to the public interest for him to be granted a licence. 2. In his oral evidence at the hearing, Mr Penno adopted the statement provided to the District Court in December 2016 when he pleaded guilty to aggravated break and enter, take a conveyance, drug possession and failures to appear before the courts. 3. Mr Penno's statement for the criminal proceedings in December 2016 set out that Mr Penno came from a family of eight children. He had gone into DOCS care when he was two years old. His father had spent some time in gaol. He had lived with grandparents and other family members across the state. He had lived with his mother in Victoria but there was violence in this household. He returned to live with his father. He was bullied in a number of different schools. He lived in a caravan at his grandparents' place and attended Nowra High. He had left school in year 11 and commenced work at McDonalds. He moved to Canberra to take up an auto mechanic apprenticeship, but his accommodation became unavailable and he could not continue with the apprenticeship. He returned to Nowra. He was approximately 20 when his drug habit started. He also started drinking alcohol at this time. His drug taking was initially social. He found that drugs assisted to manage the numbness that he had felt since his childhood. He started using ice socially. He then moved in with someone who had access to a lot of ice, and he started using it every day. He lost his girlfriend because she did not use drugs. He lost his job because of his drug use and then lost his accommodation. He moved in with someone who provided him with free access to drugs. His life became very difficult. 4. He committed offences in November 2015. On the day he broke into his friend Sienna's house in November 2015 he had drunk meth water which was very potent. He was hallucinating. He had only a hazy recollection of trying to do something about taking the car. He was too wasted to start it. He then went to a friend's place and it took him some time to come down from the drugs. He said that when the police had attended the house he was staying in immediately after the break and enter he was still drug intoxicated and not able to deal with the matter. 5. Essentially Mr Penno said that he had been abusing drugs – methamphetamines and THC – in the 18-24 months prior to the aggravated break and enter and take a conveyance offences in November 2015. On the evening of the offences he was very drug affected and remained so for the next 4 days. 6. He woke up feeling like the previous four days had not happened. He felt terrible about what he had done. However, he had called the police four days later when he had dried out, to turn himself in. 7. The first time he called the police they told him not to worry about it. The second time they came to see him and on the third occasion he insisted that they arrest him. 8. He kept using after he was charged. He had missed court on an occasion because he was in Canberra. There were lawyers at the courts on a couple of occasions and he tried to get them to have him sentenced but they explained that it was a District Court charge carrying 20 years in prison. 9. He was charged with drug possession in May 2016. He had been holding some MDMA for a mate. The car that he was in was pulled over by police. He told them that there was MDMA in his bag, but he had not realised how much there was. 10. He stated that rehab was awesome, and it was the longest time he had gone without drugs since he had first started using. He had detoxed himself prior to going into rehab. It had made him feel sick inside hearing all the wrong he had done. He could not believe that he had got so out of control that he had broken into someone's house. He thought it must have been terrifying for the people in the house. He was sorry about what he had done. 11. He told the Tribunal that he was living in Melbourne now with people who do not do drugs. His work is very important to him. He has been working as a tattooist in Victoria where it is not necessary to be licensed, for seven months. He had become the head tattooist. His strategies to stay away from drugs are to separate himself from the triggers and focus on his work. He described his art as his work. It is not really work at all - but rather his dream. His design had been chosen for the Koori knockout weekend jersey. His employers wanted to send him to a recent tattoo convention in New South Wales. He declined as he did not wish to risk breaching New South Wales laws. He may also be involved in an upcoming Netflix series on tattooing. 12. His aim is to support his father who was broken his back for the second time. When he comes back to Nowra, he does not see his previous associates. He just sees his old boss Rachel Shiels and his family. He thinks that travel is the next thing for him. He is saving to buy a van so he can travel for a week at a time and do tattooing. Having a licence New South Wales would assist him. He would love to use the platform from his role to inspire people who have done the same things that he had done. He has a lot of support both in the white and Aboriginal communities. He was disgusted with the evil things he had done. He could not explain why he had done things when he was on drugs. 13. Under cross-examination he agreed that he had not stopped using drugs even after the break and enter offences. He said however that this event had set in motion the events that changed everything for him. He thought it was quite impossible to change his whole life with just one incident. He agreed he had not approached rehabilitation until November/ December 2016. He agreed that drug tests showed that he did have THC and amphetamine in his blood when he first approached rehabilitation in November 2016. He said he had not been ordered by the court to undertake rehabilitation. At that time, he thought that as he had detoxed, he didn't need to follow rehabilitation, however he did remain there. He was asked to leave after an incident where he had laid his hands on another client. However, when that client left approximately a month later, he re-entered rehabilitation and finished it after about six months in 2017. 14. He strongly disagreed that there was a risk that if he moved back to Nowra, he was in danger of resuming his drug and criminal habits. Comments of the sentencing Judge McClintock 2 December 2016 1. In sentencing Mr Penno, the sentencing Judge McClintock made the following comments. He noted Mr Penno's unsettled upbringing. Mr Penno had no prior criminal record. After the break and enter in November 2015 the police had visited the house in which Mr Penno was staying and the three people present, including Mr Penno, denied all knowledge of bank cards, master and credit and visa cards found in the home that had been stolen during the break and enter. Mr Penno had then gone to police even though he was not a suspect in the matter. Mr Penno had expressed contrition to the probation officer. He had stated that what he had done was evil and he deserved what he got. His behaviour had made him feel dirty and he did not attempt to justify his conduct in any way. The Judge accepted that Mr Penno was personally genuinely remorseful. Mr Penno's background indicated very significant "Bugmy" factors. See Bugmy v The Queen [2013] HCA 37. The Judge accepted that it was not likely that Mr Penno had been a principal in the break and enter and that he had been affected by methamphetamine. He had also taken into account the fact that Mr Penno had pleaded guilty. There was an "Ellis" discount for Mr Penno's turning himself in to police and confessing to undiscovered criminality. His lack of a record was an important factor. 2. One of the major factors for the Judge was Mr Penno's rehabilitation. It appeared that Mr Penno had seriously undertaken the process of rehabilitation and getting himself off ice. He considered Mr Penno's statement to be an impressive document. There was no alternative to a custodial term, but the Judge suspended the term of imprisonment on the condition that Mr Penno remain under the supervision of community corrections. The Judge did not make specific directions in relation to rehabilitation – although Mr Penno was to undertake whatever rehabilitative courses community corrections directed. He imposed a suspended sentence of 12 months for the aggravated break and enter; for the take and drive the vehicle a concurrent term of four months which was also suspended. The Judge took into account 2 counts of possession of a prohibited drug and the failure to appear. Mr Penno was sentenced to an overall suspended sentence of 14 months. The Judge told Mr Penno that he had dealt with him relatively leniently as this there was a standard non-parole period of five years for the offences. Reports and evidence of Dr Lennings 1. The Tribunal had before it 2 reports from Dr Lennings psychologist both dated 22 August 2019. However, one had been completed in September 2019 after his receipt of Mr Penno's completed Personality Assessment Inventory. 2. Dr Lennings saw Mr Penno on an occasion in August 2019 for approximately 1 and ¾ hours. He had been provided with documents relating to Mr Penno's drug rehabilitation at Oolong House; sentencing remarks by Judge McClintock and Mr Penno's statement to the Court in December 2016 explaining the circumstances of and reason for his offending. 3. Dr Lennings noted that a unique feature of Mr Penno's situation was that he had no criminal record prior to November 2015, despite the very difficult life that he had lived. Since May 2016 he had no criminal record. It appeared that what occurred for him was a two to three year period of heavy drug use that derailed his behaviour, culminating in a six month period (in reality a single episode of criminal behaviour) but ongoing drug use that constituted criminal behaviour. It was likely that his use of drugs at that time was a legacy effect of his significant childhood disturbance. 4. Dr Lennings commented that from a clinical perspective Mr Penno's involvement in that lifestyle was relatively short lived, lasting approximately two to two and a half years. 5. In relation to the Risk (of further offending) Assessment, Dr Lennings noted that Mr Penno had been assessed on the LSI by Mr Irvine Community Corrections, Nowra in 2016 as being at medium risk of reoffending. The primary risk factors for Mr Penno at that time were financial issues, his accommodation, his companions, his drug use and some emotional personal issues. On the day of his assessment in August 2019, Dr Lennings noted that Mr Penno no longer had significant financial issues. He was able to manage on the money he was getting, and he had prospects of full time employment. His accommodation was settled, and he did not have any anti-social peers associated with that. His companions were now again pro social, he had separated himself from his prior anti-social peers and his drug use was no longer an issue. There were no significant mental health issues for him. 6. Dr Lennings stated that contrary to the opinions reflected by Counsel in regard to Mr Penno, that Mr Penno's period of abstinence of two and a half years was a sufficient length of time to give suitable indication to the likelihood that he will remain abstinent. Dr Lennings did not believe that Mr Penno had a significant risk of return to substance use nor was there a significant risk of him returning to negative peers. Dr Lennings considered that there is no appreciable risk in regard to Mr Penno resuming drug use or resuming connections with anti-social peers. 7. Dr Lennings observed that Mr Penno's response to the tests revealed some defensiveness, that he is reluctant to acknowledge faults in his character and is somewhat uncritical of himself. However, the level of defensiveness noted was not sufficient to invalidate the test but did require some caution in interpreting the results. There was evidence from Mr Penno's self-report that a process of maturation is occurring. 8. His lack of self-critical reflection made it more difficult for him to develop insight into the triggers he possessed. The personality profile obtained did not alter Dr Lennings' assessment that Mr Penno was at low risk of reoffending. Applicant's written submissions filed on 17 June 2019. 1. Mr Penno submitted that the Tribunal was not bound by the security determination and must make a fresh determination on the basis of the information before it, 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 (Austin v Commissioner for Fair Trading & Commissioner of Police [2016] NSWCATAP 179 at T371. 2. Mr Penno had no criminal history prior to the offences for which he was sentenced at Nowra District Court on 2 December 2016. Mr Penno had not committed any criminal offences since that time. 3. Mr Penno had been 22 years of age when the offences were committed in November 2015 and 23 years of age when the drug offences were committed in May 2016. He was now 26 years old. 4. The determination of the Commissioner had incorrectly stated that Mr Penno had been convicted of fraud offences. 5. Mr Penno had confessed to his crimes voluntarily and was accorded an "Ellis" discount by the District Court Judge. 6. Mr Penno expressed remorse and contrition and accepted responsibility for his offending as noted by His Honour McClintock DCJ transcript. "He has expressed contrition to the probation officer in stating that it was evil, and he deserved whatever he gets, and his behaviour made him feel dirty and he did not attempt to justify his conduct in any way. I accept that he is personally genuinely remorseful." 1. Mr Michael Irvine the Community Corrections Officer in his report of 4 October 2016 stated: "when asked about the offence Mr Penno said, "it was evil, and I deserve whatever I get". He went onto to say that the victims didn't deserve to be victims of the offence. Mr Penno stated that his behaviour made him feel "dirty". At no point did he attempt to justify any of his offending behaviour. Mr Penno claimed he was ashamed of his offending behaviour and made no attempt to minimise his behaviour or justify his actions. He had been under the influence of ice at the time." 1. In his statement Mr Penno stated : "I knew Sienna, who was the partner of my best mate a few years before. I've got no grudge against Sienna and no reason to go into her house. If I could take back what I did, I would. She didn't deserve this at all." 1. It was clear that Mr Penno at all times regarded his offending very seriously and did not in any way wish to minimise his criminal behaviour. The Commissioner's determination that he lacks moral rectitude, lacks or has poor character and has a disregard for the law and the safety of victims is not fully supported by the factual circumstances of his offending behaviour. Nor does it extend to him any credit for his conduct in turning himself in and admitting his crimes and subjecting himself to punishment for them. 2. His Honour Judge McClintock found that there were very significant Bugmy factors (Bugmy v The Queen [2013] HCA 37) "A … detailed statement of his background …indicates very significant Bugmy factors. Notwithstanding the unstable background that he has had, he is to be credited with not having got into trouble for a considerable period, well into his early adulthood." 1. Mr Penno submitted that the Commissioner's determination that he will re-offend and that insufficient time has elapsed to be satisfied that he will not re-offend fails to give due consideration to the role of drug dependency in his offending and his conduct in rehabilitating himself from his drug addiction. 2. The materials before the Court had set out that Mr Penno's drug problem was the major causal factor in his offending. 3. In Allen v Commissioner for Fair Trading and Commissioner for Police [2015] NSWCATAD 273 at [49] the Tribunal stated that in the context of the Act, "unfitness can be indicated by criminal associations, habitual recidivism, formal or informal links with OMCGs, failure to implement proper tattooing practices and general disregard for the law." 1. The Respondent's determination rested on Mr Penno's criminal history. 2. In Saadieh v Director-General. Department of Transport [1999] NSWADT 68 at [17], in the context of a taxi licence, the Tribunal identified factors relevant to fitness and propriety as including: * The nature, seriousness and frequency of any criminal offences for which the applicant has been arrested or convicted; * The applicant's reputation in the community; and * The likelihood that the applicant will reoffend, be the subject of further complaints or commit further offences. 1. Mr Penno's criminal history was not lengthy and covered a very small period in 2015/2016. 2. Mr Penno had admitted drug use was a major factor during this period and prior to this period. His drug use was connected to hanging out with the wrong type of persons who used drugs and he stated that he no longer associates with these type of persons. 3. Mr Penno had in fact ceased consuming drugs prior to his sentencing. 4. Mr Penno completed residential rehabilitation, his supervision with community corrections and underwent psychological treatment with Glenn Williams Psychologist. 5. Mr Penno had worked hard to pursue his dream career as a tattoo artist and to make the most of the opportunity provided to him. 6. The full quote from the Second Reading speech of Mr Roberts specified examples of the criminal behaviour to be addressed by the public interest test: "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." 1. Mr Penno had never engaged in extortion, money laundering, personal violence, firearms crime or arson offences. He is not a member of an OMCG. He does not associate directly or indirectly with members of OMCGs. 2. It is the Tribunal's task to place itself in the position of a member of the public knowing Mr Penno's record and consider whether that person would object to Mr Penno having a tattoo licence. (Naziry v Director General. Ministry of Transport [2004] NSWADT 40 at [551). Mr Penno submitted that a member of the public knowing his background would not object to Mr Penno having a tattooist licence. 3. Mr Penno had distanced himself from his former life and no longer associated with persons who use and sell drugs. There were numerous worksheets in the materials for exercises Mr Penno undertook with Community Corrections to set short and long term goals and to identify high risk situations. 4. The Ellis and Bugmy principles were not strictly relevant to the tattoo licensing provisions. However, it was a measure of Mr Penno that he had identified himself to the police, pleaded guilty at the first opportunity and had pursued rehabilitation. He had attempted to check himself out of rehabilitation on the day of sentence. This was not a breach of the court's orders. He was directed by community corrections to stay in rehabilitation and he did so. The court had taken no further action when he was called up in relation to potential breaches of his bond. Mr Penno had identified Oolong House as a source of support should he regress. He has had opportunities presented to him because of his rehabilitation and tattooing skills. Dr Lennings had stated that Mr Penno is still maturing but it should not concern the Tribunal that a young man should be found to be still maturing. There was public interest in "closing the gap" with its accent for Aboriginal people on health, education and employment. Mr Penno had an opportunity now to serve the community to be an example of "closing the gap." The public interest was better served by Mr Penno being an example of how a person can change their life outcomes. The report of Glenn Williams psychologist dated 25 March 2019 provided additional evidence of Mr Penno's rehabilitation. Mr Penno submitted that that the Tribunal should be satisfied that there are no public interest considerations that prevent Mr Penno from obtaining the licence that he is seeking. Respondents' submissions 1. The Respondents relied on written submissions filed on 6 June 2019 and oral submissions at the hearing. 2. The TP Act imposed requirements that would have the effect of eradicating criminal elements and links from the tattooing industry. As the Tribunal had stated in Smith v Commissioner of Police [2014] NSWCATAD 184, [49], "Entry to the industry is restricted by the licensing scheme in order to protect the public interest by diminishing the likelihood of criminal activity within the industry". 3. The Second Reading speech on 22 May 2012 further stated that the fit and proper person test would often cover activities such as "personal violence, firearms crime, illicit drug offences". 4. There is a mandatory requirement for the Commissioner to assess an Applicant's fitness and propriety: s 14. That determination is not subject to review. 5. The Chief Executive is precluded from granting a licence in the circumstance where the Commissioner makes an ASD: s 16(3). The legislation places reliance on honesty in entrusting a person with a tattooist licence to comply with its obligations to keep contemporaneous records: Tattoo Parlour Regulation cl 23. 6. In Austin v Commissioner of Fair Trading and Commissioner of Police [2016] NSWCATAP 179, the Appeal Panel dealt with facts involving links with outlaw motorcycle gangs (OMCGs) and also a more general criminal history. The latter was held to have its own significance under the fitness and propriety test ([79]-[80]. As regards the public interest, the written submissions surveyed the relevant authorities and pointed out how those decisions emphasized the wide-ranging "political" character of decision-making by reference to a public interest standard. 7. A finding that a person is not fit and proper to hold the type of licence under notice would also necessarily mean that it would be contrary to the public interest to allow the person to hold the licence: Stiles v Commissioner for Fair Trading [2017] NSWCATAP 44, [34]. Given the Applicant's criminal history, the Respondent submitted that it would be contrary to the public interest for the Applicant to be granted a tattooist licence. 8. Further, for the purposes of s 16(5) of the TP Act, the Tribunal may refuse to grant a tattooist licence if satisfied that the Applicant is disqualified from holding a licence, permit or other authority under legislation administered by the Minister for Fair Trading or the Minister for Police and Emergency Services: TP Reg. cll 13(2)(b) and (3). Mr Penno's criminal convictions disqualified him under several other licensing statutes administered by the relevant ministers. 9. In oral submissions at the hearing, Ms Johnston reiterated that the Respondents' case rested on the Applicant's drug taking and criminal records. 10. Mr Penno's offences had been serious – with six separate instances of criminal charges over a considerable period of time. There was evidence that Mr Penno had been addicted to drugs over of period of five years. The aggravated break and enter was a serious offence which carried a maximum 20 years imprisonment. He knew that someone would be sleeping in the home at the time. The offending had occurred only four years previously. Hours after he had been sentenced, leniently, as set out by the Judge, Mr Penno had attempted to leave the rehabilitation centre. He had entered into a bond. It clearly weighed on the sentencing Judge's mind that the process of rehabilitation had only commenced two days previously. There had been an inconsistency between what Mr Penno had said and what he does given that he tried to leave rehabilitation. The Tribunal had a regulatory and supervisory role. A person's attitude was relevant to their willingness to comply with obligations. Mr Penno had been subject to external supervisory factors - not his own internal compass. The Respondent submitted that it was not in contest that the more substantial the crime, the longer the rehabilitation should be. See Allen v Commissioner for Fair Trading and Commissioner for Police [2015] NSWCATAD 273. 11. Dr Lennings' evidence had been premised on the fact that he accepted Mr Penno had a shorter period of drug taking than the five years which appeared from the evidence. Dr Lennings had only less than two hours to make an assessment of Mr Penno. He had to rely on Mr Penno's self-presentation. Dr Lennings had commented on Mr Penno's defensiveness and grandiose self-appreciation. Even if Mr Penno were not attempting to mislead, he is more optimistic than he should be that he would not revert to drug use again. 12. In Austin's case it was clear the public interest is not public interest in what becomes of the individual. Rather public interest is that of members of the public who cannot know what risks exist. This instance involved the use of needles. Mr Penno would not be deprived of the opportunity to pursue his passion were he to be refused a tattooist licence in New South Wales. He could continue to do so in Victoria or elsewhere. He would not be deprived of the opportunity to be a leader in the Aboriginal community as he was already doing that. The Tribunal's Role 1. Under s 63 of the ADR Act, the Tribunal's role is to determine whether, having regard to the underlying facts in the matter and the applicable law, the first Respondent's decision is the correct and preferable one. The Tribunal is to review the merits of the original decision and consider the evidence available at that time, together with any other or later material, so as to affirm the original decision, vary it or set it aside: Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60, 77. Findings of Fact 1. The Tribunal adopts the balance of probabilities test set out in section 140 of the Evidence Act 1995 in making its findings. 140 Civil proceedings: standard of proof (1) In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities. (2) Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account: (a) the nature of the cause of action or defence, and (b) the nature of the subject-matter of the proceeding, and (c) the gravity of the matters alleged. 1. Mr Penno had no criminal history prior to being sentenced at Nowra District Court on 2 December 2016. Mr Penno pleaded guilty to a number of offences. Mr Penno was 22 years of age when the break and enter and take a conveyance offences were committed in November 2015. 2. Mr Penno had gone to the police to confess to these matters even though he was not a suspect. 3. The Judge imposed bonds for 12 months (Aggravated Break & Enter), 4 months (Attempt take and drive conveyance) and 2 months (2x Fail to appear). The 12 month bond and 2 month bond were to be served cumulatively making the total sentence 14 months i.e.: until 1 February 2018. 4. The court took into account three other offences in a Form 1 pursuant to sections 32 and 33 of the Crimes (Sentencing Procedure) Act 1999. Those offences were 2 X Possess prohibited drug committed in May 2016 and a fail to appear. 5. Mr Penno's evidence was that he had been using drugs for the 18-24 months prior to the offences in November 2015. He then continued to use drugs until November 2016 – just prior to his admission to Oolong House and drug rehabilitation. He told Dr Lennings, Mr Williams, psychologist and the Tribunal that he had not used drugs after this time. The Tribunal finds on balance that Mr Penno used drugs for a period of approximately 3 years until late November 2016. 6. After tests showed he no longer had prohibited drugs in his system, Mr Penno commenced drug rehabilitation at Oolong House on 16 November 2016. He was required to leave on 27 December 2016 after an altercation with another client. He then returned to Oolong House on 1 February 2017. Mr Penno completed the rehabilitation program on 24 May 2017. Mr Penno had tested negative to all drugs tested for during the program of rehabilitation. 7. Mr Penno has not been convicted of further criminal offences committed since the drug possession offences in May 2016. 8. On the basis of Mr Penno's uncontradicted evidence, the Tribunal finds that since completing rehabilitation in May 2017 that Mr Penno has not used prohibited drugs. 9. Mr Penno has been working as a tattooist in Victoria in the 7 months preceding the hearing in October 2019. On the basis of Mr Penno's own uncontradicted evidence, there have been no concerns about Mr Penno's tattooing practices during this time. The Tribunal's Consideration 1. The TP Act introduced licensing requirements for operators of tattoo parlours and tattooists that came into operation on 1 October 2013. The licensing regime imposes a test of whether the person is "fit and proper" and whether it would be "contrary to the public interest" to grant the licence. 2. Pursuant to s 27(1)(a), a person may apply to this Tribunal for review of a refusal or failure by the Director-General to grant a licence. The Act does not expressly confer jurisdiction on the Tribunal to review any report or determination made by the Commissioner of Police but does so implicitly, as s 27(3)(c) provides that "the Tribunal is not prevented from determining whether the Director-General made the correct and preferable decision regarding the application of the licence concerned merely because of the determination of the Commissioner": Smith v Commissioner of Police and Commissioner of Fair Trading [2014] NSWCATAD 184, [22]. Nevertheless, the Tribunal is required to take the ASD into account as an essential, legally relevant, consideration to which weight must be given id., [24]. 3. The Act makes it clear that it is the Director-General's decision that is under review, not the Commissioner's determination. 4. As with all legislation, the provisions of the TP Act and the powers that it confers must be construed and applied in such a way as to be consistent with the language and purpose of all the provisions of the TP Act: Project Blue Sky Inc. v Australian Broadcasting Authority [1998] HCA 28: (1998) 194 CLR 355, [69]. The TP Act contains no objects clause, but the Tribunal may have regard to the Minister's Second Reading speech to ascertain the purpose of the legislation, and the mischief that it was designed to cure. The Second Reading speech of the TP Act noted that the TP Act was introduced in response to gang crime in New South Wales. It aimed to break the stranglehold that OMCGs had over the tattoo industry. It was expected that removing bikers from the tattoo industry would reduce the reasons for rival gangs to engage in turf wars, because those businesses would no longer be symbols of a gang's territory. The Act's purpose is not, however, limited to eradicating the influence of OMCGs in the industry. The "fit and proper" criterion applied in the TP Act is of much broader application, as Montgomery SM explained in his comprehensive review of the authorities in Smith, at [38] to [41]. 5. In Smith, Montgomery SM set out the approach to be adopted when undertaking a review of a decision to refuse an application for a licence as a result of an ASD (at [24] – [28] and [32] – [37]). Those principles may for present purposes be summarized as follows: (1)…, the Tribunal is required to take the ASD into account as an essential, legally relevant consideration to which weight must be given: at [24]. (2) While the ASD does not constitute a prima facie position which the Applicant bears the burden of displacing, due weight must be given to it: at [25] – [26]. (3) Although the decision under review may be that of the secretary rather than the Commissioner, the Tribunal may make a fresh determination as to whether the person is a fit and proper person to be granted a licence and whether it would be contrary to the public interest for the Applicant to be granted a licence: at [31] – [32]; and (4) The Tribunal is to determine what the correct and preferable decision is on the basis of the material before it and any other lawful, discretionary basis; it is not confined to the grounds relied upon by the Commissioner or the secretary: at [27] – [28], [32] – [33]. Fit and proper person 1. Both parties submitted that the meaning of the phrase "fit and proper person" in the licensing context has been the subject of a well-known line of cases dating back at least to Hughes and Vale Pty Ltd v New South Wales (No.2) [1955] HCA 28; (1955) 93 CLR 127. The principles laid down in those cases were distilled by the Tribunal's Appeal Panel in Austin v Commissioner of Fair Trading and Commissioner of Police [2016] NSWCATAP 179, following Montgomery SM's reasons at first instance, as follows: (1) The very purpose of the words "fit and proper" is to give the widest scope for judgment and for rejection on that ground. (2) "Fit" with respect to an office is said to involve honesty, knowledge and ability. (3) The expression "fit and proper" person, standing alone, carries no precise meaning. It takes its meaning from its context, from the activities in which the person is or will be engaged in and the ends to be served by those activities. (4) Depending on the nature of the activities, the question may be whether improper conduct has occurred, whether it is likely to occur, whether it can be assumed it will not occur, or whether the general community will have confidence that it will not occur. (5) In certain contexts, character (because it provides indication of likely future conduct) may be sufficient to ground a finding that person is not fit and proper to undertake the activities in question. (6) The expression meant that an Applicant needed to show not only that he has the requisite knowledge of the duties and responsibilities of the holder of the particular licence but also that he is possessed of sufficient moral integrity and rectitude to be accredited to the public as a person to be entrusted with the work the subject of the licence. 1. The Appeal Panel has pointed out that public interest considerations play a role in the assessment of fitness and propriety: Director-General, Transport New South Wales v AIC (GD) [2011] NSWADTAP 65, [37]. 2. While there is a definite focus in the legislation and its administration on the involvement of OMCGs in the industry, that is not to the exclusion of other concerns about criminality: "[T]he broader intention [of the TP Act] is to rid the industry of any criminal or otherwise undesirable element and the avoidance of improper conduct": Smith, [2014] NSWCATAD 184, [20]. The point was specifically made in Wright v Commissioner for Fair Trading [2017] NSWCATAD 98, [118]: "The Applicant had stressed that he had not been involved in gang crime. Gang crime is not the only consideration of the Act, however. The Tattoo Parlours Act 2012 is directed at keeping gang crime out of the tattoo parlour industry and also at eliminating general criminal activity, including violence." 3. Mr Penno's record, the Respondents submitted, especially the aggravated break and enter when a person known to the Applicant was likely to be present in the home, is a substantial one, pointing to Mr Penno not being fit and proper to hold a licence. The break and enter was an act of violence. 4. The Tribunal is satisfied that at the time of his offences in November 2015 and May 2016 Mr Penno would not have been fit and proper to be licensed with the responsibility of being a tattooist because of his criminal behaviour and drug use. 5. The Tribunal must also consider the question of reform and rehabilitation. 6. In Saadieh v Director-General. Department of Transport [1999] NSWADT 68 at [17], in the context of a taxi licence, the Tribunal identified factors relevant to fitness and propriety as including the likelihood that the applicant will reoffend, be the subject of further complaints or commit further offences. Support in the community is also relevant. 7. The Respondents submitted that the Applicant's period of drug addiction was closer to 5 years than the 18-24 months upon which Dr Lennings had based his optimistic views about Mr Penno's drug abstinence. The Tribunal notes that Dr Lennings was however unshaken in his views that Mr Penno had a low risk of resuming drug use, his old negative social connections and reoffending. 8. Mr Penno said that he would be able to call again on the services of Oolong House should he require assistance. 9. Consideration of Mr Penno's progress in reform and rehabilitation shows that there are a number of points to be made in his favour. He accepts full responsibility for his criminal record and does not seek to excuse or minimize his misdeeds. His remorse seems profound and genuine. He has positive and attainable goals in life, including being near his father and family in Nowra. He says he is likely to find a tattooist job there. He also plans to travel with his tattooing skills and licensing in NSW will enable this. He wishes to be a role model for others who have experienced an unsettled upbringing, and drug addiction induced offending. 10. His serious offence of break and enter and take a conveyance occurred 4 years ago. He ceased abusing drugs almost 4 years ago. There is no evidence of any complaints against him in relation to his tattoo practice in Victoria. 11. Mr Penno recognized his drug problems and their role in his criminal offending. He sought professional help for them. 12. If Mr Penno were to have a tattooist licence, he would be working under the supervision of an operator in whose interests it would be to ensure that he complies with legislative standards. The Tribunal is satisfied that at the present time Mr Penno meets the fitness and propriety criterion required for a tattooist licence. Public interest 1. The parties made similar submissions about aspects of the phrase "public interest". The phrase "public interest" is not defined in the TP Act or the regulations. In O'Sullivan v Farrer [1989] HCA 61; (1989) 168 CLR 210, [13], the High Court held that the "public interest" imported a discretionary value judgment to be made by reference to undefined factual matters, confined only in so far as the subject matter and the scope and purpose of the legislation might require. In Commissioner of Police v Toleafoa [1999] NSWADTAP 9, [25], the Appeal Panel described the public interest ground in the relevant Act in the following terms: [A]n inherently broad concept giving the [Commissioner] the ability to have regard to a wide variety of factors in choosing whether to exercise a discretion adversely to an individual. As the possibility of refusing an application on the ground of character is dealt with elsewhere in the same section, it is reasonable to infer that the Parliament intended that the public interest discretion operate in areas to which the character ground was not relevant or, possibly, in circumstances where an objection on character grounds would not be sufficient in its own right to warrant refusal. 1. The concept does include standards acknowledged to be for "the good order of society and for the well-being of its members": Director of Public Prosecutions v Smith [1991] VicRp 6; [1991] Vic Rep 6; (1991) 1 VR 63. In Comalco Aluminium (Bell Bay) Ltd v O'Connor (1995) 131 ALR 657, 681, the High Court said: "The purpose of the reference to public interest is to ensure that private interests are not the only matters taken into account: to make clear that the interests of the whole community are matters for the Commissioner's consideration. The effect of the reference is to amplify the "scope and purpose" of the legislation." 1. The issue of public interest allows for matters going beyond the Applicant's character to be taken into account. They include public protection, public safety and public confidence in the administration of the licensing system: Constantin v Commissioner of Police, New South Wales Police Force [2013] NSWADTAP 16, [33]. 2. Legislation such as the TP Act serves the public interest in ways that go beyond guarding against misconduct by an individual licensee. Licence refusals and similar orders serve the public interest by establishing a regulatory structure for an industry that not only protects the public from harm, but also helps to preserve public confidence in that industry and its members by signalling that those whose activities or facilities do not meet the required standards will not be permitted to operate in the industry: Health Care Complaints Commission v Do [2014] NSWCA 307, [34] – [39]; Moujalli v Roads and Maritime Services [2017] NSWCATAD 141, [52] – [53]. 3. That objective must implicitly be one of the purposes of this legislative scheme and is relevant to the interpretation of its provisions. As the Tribunal pointed out in Naziry v Director-General, Ministry of Transport [2004] NSWADT 40 in the context of taxicab licensing, decision-makers must so far as possible place themselves in the position of a member of the public who might use the Applicant's services and ask whether that member of the public, knowing of the Applicant's record, would object to the Applicant as the driver of the taxi. 4. The Tribunal is satisfied Mr Penno is fit and proper to be licensed as a tattooist. The question therefore becomes whether there are other public interest grounds justifying refusal. 5. The legislation's main object is to rid the tattoo industry of OMCG influence and infiltration by other criminal elements. The Tribunal is satisfied that Mr Penno has never had any association with any OMCG. He was associated with anti-social peers – but is no longer. He has strategies in place to avoid these associations. His own most serious offence occurred almost 4 years ago, when he was aged 22. Mr Penno is now 26 and leading a life that has not attracted adverse notice. He appears to be rehabilitated from drug use and was assessed by Dr Lennings as at low risk of resuming drug use and criminal activity. As the Tribunal said in Wright at [120], however, a tattooist is not required to have led a prior life of unblemished rectitude. It is fair to say that a person wishing to obtain a tattoo would be prepared to use his services as an employee in a tattoo parlour without fear of being the victim of wrongdoing. Issuing a licence to the Applicant would not undermine confidence in the licensing scheme. 6. An Applicant's private interests, such as in obtaining access to a reliable income stream, receive no weight in a consideration of the public interest or fitness and propriety: Austin at [72] – [73]; Butler v Commissioner for Fair Trading [2017] NSWCATAD 138, [114]. Nevertheless, matters directly affecting the individual can have a wider public interest relevance. In Wright at [121], [127], the Tribunal accepted that an Applicant's working as a tattooist could be a significant aspect of his ongoing rehabilitation and a relevant public interest factor (see also Butler, [117], [122]).There is also a public benefit in a person being able to engage in gainful business or employment rather than being kept by the taxpayer: (id. at [127]; see also Allen v Commissioner of Fair Trading [2015] NSWCATAD 273, [70]). 7. There is a public interest in assisting the rehabilitation of persons who have fallen foul of the criminal law, so far as is possible without endangering public health, safety or security, and the evidence here suggests that licensing Mr Penno as a tattooist would assist that process. There would also be a modest benefit to the taxpayer, as he does not wish to live on the dole, and he does appear to have the opportunity of returning to work in that industry in NSW. 8. As the Respondents pointed out, under s 16(5) of the TP Act, the Tribunal may refuse to grant a tattooist licence if satisfied that the Applicant is disqualified from holding a licence, permit or other authority under legislation administered by the Minister for Fair Trading or the Minister for Police and Emergency Services: TP Regulation cl 13(2)(b) and (3). The Applicant's criminal convictions would accordingly disqualify him under the Security Industry Act 1997, the Firearms Act 1996, the Weapons Prohibition Act 1998 and the Commercial Agents and Private Inquiry Agents Act 2004. 9. His disqualification under those provisions is in a sense hypothetical, as he has not applied for any licence or permit to which that legislation would apply, nor has he ever held such a licence or permit. But the disqualification itself is not hypothetical. It is currently operating, and it shows the seriousness with which his past behaviour is viewed. Nevertheless, giving due weight to that circumstance does not, in my view, outweigh the considerations set out above that favour granting him a licence. 10. On balance the Tribunal is satisfied that it would not be contrary to the public interest for Mr Penno to be granted a tattooist licence. 11. The decision under review is set aside. Orders 1. Decision under review is set aside. 2. The Applicant's application for a Tattooist licence is granted. Amendments 03 December 2019 - typographical error corrected 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: 08 March 2023