Civil and Administrative Tribunal New South Wales Medium Neutral Citation: DLY v Commissioner for Fair Trading [2018] NSWCATOD 212 Hearing dates: 5 March 2018 Date of orders: 8 June 2018 Decision date: 08 June 2018 Jurisdiction: Occupational Division Before: Dr J Lucy, Senior Member Decision: 1. The disclosure of the applicant's name is prohibited. 2. The first respondent's decision to refuse to grant the applicant a tattooist licence is set aside. 3. In substitution for the first respondent's decision, the applicant is to be granted a tattooist licence. Catchwords: ADMINISTRATIVE LAW – Tattoo Parlours – Review of decision to refuse to grant applicant a tattooist licence – Where applicant had criminal history including violent offences – Where applicant's crimes were alcohol-related – Where applicant had given up alcohol and made positive life changes – Whether applicant a fit and proper person – Whether it is contrary to the public interest for him to hold a tattooist licence – Relevance of disqualification from holding a licence under Security Industry Act 1997 Legislation Cited: Administrative Decisions Review Act 1997 (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Crimes Act 1900 (NSW) Security Industry Act 1997 (NSW) Tattoo Parlours Act 2012 (NSW) Tattoo Parlours Regulation 2013 (NSW) Cases Cited: Austin v Commissioner for Fair Trading and Commissioner of Police, NSW Police Force [2015] NSWCATAD 244 Austin v Commissioner of Fair Trading and Commissioner of Police [2016] NSWCATAP 179 Commissioner for ACT Revenue v Alphaone Pty Ltd (1994) 49 FCR 589 Deakin v Commissioner for Fair Trading & Commissioner of Police [2016] NSWCATAD 2 Hallman v Commissioner for Fair Trading and Commissioner of Police [2017] NSWCATAD 136 Lee v Health Care Complaints Commission [2012] NSWCA 80 Moore v Commissioner for Fair Trading and Commissioner of Police [2016] NSWCATAD 80 Mumby v Commissioner for Fair Trading [2017] NSWCATAD 27 Smith v Commissioner of Police, NSW Police Force & NSW Fair Trading [2014] NSWCATAD 184 Sobey v Commercial and Private Agents Board (1979) 22 SASR 70 Category: Principal judgment Parties: DLY (Applicant) Commissioner for Fair Trading (First Respondent) Commissioner of Police (Second Respondent) Representation: Counsel: Solicitors: Applicant in person Crown Solicitor (Respondents) File Number(s): 2017/330104 Publication restriction: Non-publication and non-disclosure orders have been made pursuant to s 64(1) of the Civil and Administrative Tribunal Act 2013. REASONS FOR DECISION 1. This is an application for review of the Commissioner for Fair Trading's decision not to grant the applicant a tattooist licence. 2. The applicant has committed a number of violent offences and has a long history of transport infringements. Mainly as a result of his offences, the Commissioner of Police made an adverse security determination about the applicant, forming the view that he was not a fit and proper person to hold a tattooist licence and that it would be contrary to the public interest for him to do so. The Commissioner for Fair Trading was then bound to refuse the applicant's licence application. 3. I have found that the applicant has made significant reforms in his life since his last offence in 2015, including giving up alcohol, seeking psychological help, changing his associates and committing to a life without violence. As a result of these changes, I have decided that he is now a fit and proper person to hold a tattooist licence and that it is not contrary to the public interest for the licence to be granted. 4. Accordingly, I have decided to set aside the decision of the Commissioner for Fair Trading and to substitute a decision to grant the applicant a tattooist licence. Non-publication orders 1. The Tribunal is required, when conducting a review such as the present, to receive evidence and hear argument in the absence of the public and the applicant, in order to prevent the disclosure of any criminal intelligence report or other criminal information, unless the Commissioner of Police approves otherwise (Tattoo Parlours Act 2012 (NSW), s 27(4)). 2. The Commissioner of Police applied to the Tribunal, at the hearing, to make non-disclosure orders in respect of certain confidential evidence and to hear submissions about certain evidence in closed session. 3. As a result, I made non-publication and non-disclosure orders pursuant to s 64 of the Civil and Administrative Tribunal Act 2013 (NSW) ("NCAT Act"). These orders prohibited disclosure, to the applicant and others, of certain documents and evidence produced by the Commissioner of Police, and also prohibited publication of part of the transcript of the hearing (the confidential session). 4. Following the hearing, I have determined to make an order pursuant to s 64(1)(a) of the NCAT Act prohibiting the disclosure of the applicant's name. My reasons for doing so are as follows. The applicant has given evidence about growing up in a family in which both his father and his older brother were habitually violent to other family members. I have accepted that evidence. The applicant's father and brother took no part in the proceedings. If the applicant's identity were published, this would result in the making of public findings that identifiable persons had engaged in sustained criminal activity in circumstances where they had no opportunity to respond to the allegations made against them. In addition, if I publish reasons naming the applicant and recording those findings, other applicants may in the future be reluctant to give similar evidence. 5. Another reason I have decided to make a non-disclosure order concerns the applicant's evidence about the work he did at a particular tattoo parlour ("the Tattoo Parlour") and the conduct of the owners. The applicant's evidence was that the owners of the Tattoo Parlour had generally failed to pay him any wages for work done with their clients and had threatened him with violence if he did not continue to work for them. He appeared reticent to provide any further information about the Tattoo Parlour or its owners or managers. I am satisfied that he was threatened by the owners and/or managers at the time he worked at the Tattoo Parlour and still feels some degree of apprehension in relation to them. 6. [NOT FOR PUBLICATION] 7. For these reasons, I have made an order anonymising the applicant's name. Background 1. In April 2013, the applicant was working at the Tattoo Parlour. When the police visited it, he told them he had been working there for a month. 2. On 4 December 2013, the applicant applied, under s 11 of the Tattoo Parlours Act, for a tattooist licence. A tattooist licence authorises the licensee to perform body art tattooing procedures in accordance with the Tattoo Parlours Act and the conditions of the licence (Tattoo Parlours Act, s 9(3)). 3. On the application form, the applicant ticked a box declaring that he had no previous, current or pending employment as a body art tattooist, and signed a declaration certifying that the details in the application were true and correct. 4. An officer from Fair Trading sent the applicant a letter in December 2013 asking him for further information in relation to his application. On about 9 January 2014, the applicant replied, stating it would take a week or two to supply the information, as he had been on holiday. 5. After that, no further steps were taken in relation to the application until about two years later, when on 21 January 2016, Fair Trading again requested the additional information. The applicant then promptly provided it. 6. In February 2016, s 14(b) of the Tattoo Parlours Act required the Commissioner for Fair Trading to refer any duly-made application for a tattooist licence to the Commissioner of Police for an investigation and determination as to either or both of the following: 1. whether the applicant is a fit and proper person to be granted the licence; 2. whether it would be contrary to the public interest for the licence to be granted. 1. The Commissioner for Fair Trading referred the applicant's application to the Commissioner of Police. On 2 August 2016, a delegate of the Commissioner of Police reported to the Commissioner for Fair Trading, in accordance with s 19(1) of the Tattoo Parlours Act, that the applicant was not a fit and proper person to be granted the licence and that it would be contrary to the public interest for the licence to be granted, due to the applicant's criminal history. This was an "adverse security determination" (Tattoo Parlours Act, s 3(1)). 2. The applicant's criminal history, as described by the Commissioner of Police, consisted of a conviction in August 2015 for two offences of common assault and a conviction in December 2009 for affray (Crimes Act 1900, ss 61 and 98C). 3. Having been provided with the adverse security determination, the Commissioner for Fair Trading decided to refuse to grant the application, as the Commissioner was required to do by s 16(3)(c) of the Tattoo Parlours Act. 4. The letter sent to the applicant, refusing the application, was returned to the Commissioner for Fair Trading marked "return to sender." The applicant eventually received the letter in September 2017 (over a year later). He then applied to the Tribunal for a review of the decision. Jurisdiction 1. The Tribunal has jurisdiction to review the decision of the Commissioner for Fair Trading under s 27(1)(a) of the Tattoo Parlours Act, s 9 of the Administrative Decisions Review Act 1997 (NSW) and ss 28 and 30 of the NCAT Act. An order was made by consent, at the first case conference in these proceedings, extending the time for applying to the Tribunal to the date of the applicant's application. The Tribunal's role and task 1. The Tribunal's role is to decide what the correct and preferable decision is having regard to the material before it (Administrative Decisions Review Act, s 63). The Tattoo Parlours Act specifies that "the Tribunal is not prevented from determining whether the [Commissioner for Fair Trading] made the correct and preferable decision regarding the application or the licence concerned merely because of the determination of the Commissioner [of Police]" (s 27(3)(c)). 2. The Tribunal is not bound by the adverse security determination and its task is to make a fresh determination on the licence application according to the criteria set out in s 19(1), namely whether the applicant is a fit and proper person, and/or whether it would be contrary to the public interest for the licence to be granted (Austin v Commissioner of Fair Trading and Commissioner of Police [2016] NSWCATAP 179 at [37]). The Tribunal may also consider other relevant matters. Fit and proper person 1. The meaning of the expression "fit and proper," in this context, has been considered in Senior Member Montgomery's decision in Moore v Commissioner for Fair Trading and Commissioner of Police [2016] NSWCATAD 80 at [16] to [23]. I respectfully adopt that discussion. In particular, I note that the words give "wide scope for judgement and allow broad bases for rejection" (Commissioner for ACT Revenue v Alphaone Pty Ltd (1994) 49 FCR 589 at 389). 2. As Senior Member Ransome observed in Mumby v Commissioner for Fair Trading [2017] NSWCATAD 27 at [21], "it is generally accepted that what is fit and proper needs to be determined by reference to the activities in issue and is to be gauged in light of the nature and purpose of the activities that the person will undertake." A tattooist licence authorises a person "to perform body art tattooing procedures" (Tattoo Parlours Act, s 9(3)). The nature of the activities a person will undertake is body art tattooing. The purpose of those activities is to decorate the body. A person holding a tattooist licence is not required to operate a trust account, or to receive confidential information, or to represent a person's interests before a court or tribunal. For these reasons, a person who is a fit and proper person to hold a tattooist licence may not be a fit and proper person to be a real estate agent or a legal practitioner. 3. In order to be "fit and proper," a person must be "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" (Moore v Commissioner for Fair Trading and Commissioner of Police [2016] NSWCATAD 80 at [23]; Sobey v Commercial and Private Agents Board (1979) 22 SASR 70 at 76). In light of the applicant's criminal history, this is a key issue in this case. Public interest 1. The Tribunal must also consider whether it would be contrary to the public interest for the applicant to be granted a tattooist licence. The question whether this is contrary to the public interest is one of fact and degree which requires the exercise of value judgment (Smith v Commissioner of Police, NSW Police Force & NSW Fair Trading [2014] NSWCATAD 184 at [43]). As Senior Member Ransome said in Mumby v Commissioner for Fair Trading [2017] NSWCATAD 27 at [27], "the concept of the public interest is designed to give the broader interests of the community priority over private interests of individuals." Consideration 1. The respondents submit that the applicant is not a fit and proper person to hold a tattooist licence and that it would be contrary to the public interest for him to do so, because: 1. the applicant has a long history of involvement in relevant, serious criminal activity; 2. the applicant has a long history of general disregard for the law; 3. there is evidence to suggest that the applicant may have breached the Tattoo Parlours Act; 4. the applicant lied when making his application for a tattooist licence; 5. [NOT FOR PUBLICATION]; 6. there is no or little evidence to suggest that the applicant is completely rehabilitated. 1. I will deal with each of these matters in turn. Criminal history 1. The respondents point to a number of violent offences on the applicant's criminal record in support of their submission that his criminal history tends against the grant of a tattooist licence. 2. The applicant was convicted of an assault which occurred in the early hours of New Year's Day in 2013. The applicant, the victim and his wife were on a train. The police facts sheet records that the victim's wife was crying. The applicant approached the victim. The police facts sheet then states that the applicant attacked the victim and punched him in the head about thirty times. The police facts sheet also states that the victim was in a foetal state to protect himself. 3. The applicant gave evidence at the hearing that, on this occasion, he had been drinking alcohol and was travelling home from New Year's Eve celebrations. He said he was sitting near a man and his wife in the train. They were fighting and the man grabbed his wife by her wrist. The applicant said that he said to the man, "give it a rest." He said he and the man started arguing and then it got heated and he ended up hitting the man. The applicant denied punching the man thirty times and denied that the man fell to the floor. The applicant said he hit the man a few times and then stopped. 4. It is difficult to determine exactly what occurred in the absence of any direct evidence from the victim or his wife. The applicant admits to being drunk at the time. The applicant admitted that he did not have a clear memory of the events. I consider that it is likely that the applicant hit the man more than a few times but less than thirty times. It is more likely than not that the man was in the foetal position at one point and the applicant cannot remember this. I also accept that the applicant acted, however misguidedly, in defence of the victim's wife and to protest against the victim's treatment of her. 5. The applicant said that, at this stage in his life he was constantly drinking and was depressed, with anger issues. He said he did not understand that by pleading guilty to the offence he had agreed to the police facts sheet (and he did not agree with it). I accept that evidence. 6. The respondents also rely upon an offence which occurred on 4 April 2015, when the applicant assaulted a homeless man who was sitting on the footpath outside a city convenience store. The applicant was drunk at the time. He gave evidence, which I accept, that his girlfriend was concerned about the homeless man's dog. The applicant went into the convenience store to buy the dog some dog food whilst his girlfriend remained outside. 7. When the applicant came out of the convenience store, the homeless man was yelling at the applicant's girlfriend to go away. The police facts sheet records that the applicant said "Why are you trying to hit my girl? I just went into the supermarket to buy your dog a can of food you homeless bum." The applicant says that when he came outside the dog was jumping up towards his girlfriend and the homeless man was aggressive, pushing his girlfriend towards the kerb. The applicant accepts that he then kicked the man once and aimed at his upper chest. This appears to be consistent with the police facts sheet and I accept that evidence. 8. The applicant acknowledged that, at the time of the kick, the threat to his girlfriend had passed. He said that he got angry and lost his temper. He had been concerned about his girlfriend's safety as buses were going past when the homeless man appeared to be aggressive. 9. The applicant was also convicted of the offence of affray in 2009. The offence occurred when a fight broke out in a pub. The police facts record that the applicant punched a person in the back. The applicant gave evidence, which I accept, that he does not recall the incident. As with the other offences, he was affected by alcohol at the time. 10. I largely accept the respondents' submission that these assaults were unprovoked and carried out on members of the public who were minding their own business. However, I also accept the applicant's evidence that he intervened in the incident on the train in support of the victim's wife (who was being threatened by the victim) and that he understood the homeless man to be attacking his girlfriend, even though the applicant kicked him when the threat to his girlfriend had passed. 11. [NOT TO BE PUBLISHED] 12. [NOT TO BE PUBLISHED] 13. I find that these incidents demonstrate that, as at April 2015, the applicant was not a fit and proper person to hold a tattooist licence, because of his violent and criminal behaviour. As the respondents submit, the incidents described above are illustrative of a pattern of violent offending up to that point, extending over many years. History of disregard for the law 1. The respondents submit that the applicant's many infringement notices, cautions and offences are indicative of a disregard for the law. They say that this is an indication that he is not a fit and proper person to hold a tattooist licence and that it would not be in the public interest for him to do so, relying upon Hallman v Commissioner for Fair Trading and Commissioner of Police [2017] NSWCATAD 136 at [50] and other relevant cases. 2. The applicant was issued with infringement notices or cautioned on 23 separate occasions in the period between 2005 and 2014. These include many counts of "travel or attempt to travel without valid ticket," and counts of damage train infrastructure, custody of knife in public place and graffiti of train. 3. I accept the respondents' submissions that that the large number of offences on the applicant's record, including travel without a valid ticket, indicate a disregard and disrespect for the law during the decade or so to October 2014. This is a factor indicating that he was not a fit and proper person to hold a tattooist licence at this time and that it was not in the public interest for him to do so. 4. My decision, however, must focus on the present. When asked in cross examination whether the offences showed that he did not respect the law, the applicant said that was how he "used to be." For the reasons which follow, I am persuaded that the applicant no longer disrespects the law (or, perhaps more accurately, that he is no longer reckless in relation to his own compliance with it), despite this history of offending. Alleged breach of Tattoo Parlours Act 1. The respondents submit that there is evidence to suggest that the applicant performed body art tattooing in contravention of the Tattoo Parlours Act. 2. [NOT FOR PUBLICATION] 3. The respondents rely upon evidence that the police visited the Tattoo Parlour to conduct a business inspection in May 2014. According to the "COPS" report, the applicant identified himself as the manager, and informed police of the Tattoo Parlour's usual hours of operation. No one else was present at the time of the inspection. 4. The applicant denies he told a police officer that he was the manager. Without any direct evidence from the police officers attending the premises, I am not prepared to find that the applicant said he was the manager. The police may have described him as the manager in the report because nobody else was present and the applicant appeared to be managing the shop. 5. The respondents submit that this incident provides circumstantial evidence that the applicant has committed offences relating to unlicensed body art tattooing. The applicant gave oral evidence that he performed tattoo work at this time. He said he was not sure if he was allowed to do such work while his licence application was pending, but had been told by other tattooists that he could. He said that he was not paid by the owners of the tattoo shop for doing the tattoo work for the owners' clients, but rather was paid by friends who came and helped him out. 6. At the relevant time, it was an offence to perform any body art tattooing procedure for fee or reward unless authorised to do so by a tattooist licence (s 7(1)). Under cl 29(3) of the Tattoo Parlours Regulation 2013, the offence in s 7 did not apply to certain applicants where an application for a tattooist licence had been made before the relevant day (in October 2013). The applicant's application was made after that day. 7. The circumstance that the offence did not apply to certain applicants supports the applicant's evidence that he thought he may be permitted to work whilst his application was pending, even though he was not sure about this. There is still a degree of recklessness in him performing work as a tattooist without being sure whether he was entitled to do so. This occurred in the period when he described himself as being "off the rails." He said that following up on the progress of his licence application would have "slipped" his "memory." The evidence supports a picture of a man who was fairly dysfunctional at the relevant times and who did not take proper steps to ensure that he complied with licensing requirements. 8. I find that it is more probable than not that the applicant was not lawfully entitled to perform tattoo work for reward in April 2014, but nevertheless did so. I find that he was not sure whether he was entitled to perform the work or not. 9. This finding supports the respondents' submission that the applicant is not a fit and proper person to hold a tattooist licence and that it is not in the public interest for him to do so. Alleged lie in application 1. The respondents submit that the applicant lied when making his application for a tattooist licence, by indicating that he had no previous, current or pending employment as a body art tattooist, when in fact he had worked, and probably was working, at the Tattoo Parlour as a body art tattooist. 2. The applicant explained in oral evidence that he had worked at the Tattoo Parlour against his will. He said it was "not a nice place to work" and that "they" would "stand over us." He said that there was a threat of violence if he did not work for the owners. He said he "had to" lie in his application because he did not want to indicate that he worked there. 3. It is questionable whether the applicant was in fact "employed" as a body art tattooist (meaning that the answer to the question about his employment may in fact have been correct). His evidence is that the owners generally did not pay him but allowed him to earn money from doing work for friends. This arrangement is unlikely to constitute employment. 4. The applicant has, however, admitted to an element of dishonesty in the completion of the form. The applicant's evidence that he lied on the form due to threats of violence was not challenged and I accept that this was a reason he failed to tick the box indicating that he had been employed. It is unclear why he thought that indicating that he had been employed would lead to any adverse consequences connected with the atmosphere in which he worked. 5. The Tribunal accepts, however, that the applicant ticked a box on his application form believing his answer to be incorrect, and then signed a declaration stating that the answers given were correct. This is a serious matter. It is a circumstance tending against a finding that he is a fit and proper person to hold a licence and supporting a finding that it is not in the public interest for him to hold a licence. [NOT FOR PUBLICATION] 1. [NOT FOR PUBLICATION] 2. [NOT FOR PUBLICATION] 3. [NOT FOR PUBLICATION] 4. [NOT FOR PUBLICATION] 5. [NOT FOR PUBLICATION] Rehabilitation 1. The critical question is whether the applicant has been rehabilitated since his last offence in April 2015. 2. The applicant filed a number of references in support of his application. Most of these made no reference to his criminal history. As they do not display a knowledge of the violent incidents referred to above, I do not give them much weight (see Deakin v Commissioner for Fair Trading & Commissioner of Police [2016] NSWCATAD 2 at [52]-[54]). Another reference refers to "past transgressions" and a further reference refers to "previous charges." I give these references some weight, qualified by my recognition that the extent of the referees' knowledge about the applicant's criminal history is unclear. One of these references refers to him "putting a great effort to start a new life." This supports the applicant's own evidence that he has made efforts to change his behaviour. 3. The applicant has also provided a letter from a clinical psychologist dated September 2017, who states that the applicant has attended voluntarily for counselling on a regular basis from October 2015. The respondents appear to accept that this may be regarded as evidence that the applicant has taken some steps to address psychological issues which contributed to his pattern of offending. That is the view I hold. The letter is fairly short and is not an expert report. I do not rely upon it for any formal diagnosis. However, I accept the applicant's evidence that the psychologist has helped him a lot, including with anxiety issues and anger management. 4. The applicant gave oral evidence that he grew up in a family where domestic violence was common. As indicated earlier, his father and brother were frequently violent to his mother and other family members. Violence was thereby normalised for him. The applicant explained that a lot of his own violent behaviour had occurred where violence was happening already and he got involved. I accept that his behaviour was generally triggered by violence or aggression in others, or a perception of such. I also accept that he has taken steps to address this and now has greater insight into his own behaviour. 5. The applicant said that in the period when he committed the offences he had been drinking heavily and was "off the rails." He had been drinking alcohol prior to all of his offences. He said that, one day, he woke up and decided to stop. He stopped drinking after the most recent charge. The applicant's evidence was that he also "dropped" friends who he considered to be "bad people to be with." He said that, after talking to his psychologist, he separated himself from the kind of life he had been leading before. The applicant explained that he stopped drinking because he saw what it had done to his father and older brother. 6. The applicant was not seriously challenged on his evidence that he had stopped drinking and that his violent behaviour had stopped about three years ago. I accept that evidence. I also accept that he is now trying to lead a law-abiding life which is free of violence. This is consistent with his criminal history. He had four infringement notices in 2014, two in 2013, and two in 2010. The evidence indicates that he has had none since 2014. His most recent charge relates to conduct in April 2015. It is after this charge that he says he decided to change. He has no criminal history since that time. 7. The respondents submit that the applicant's criminal history is a strong prima facie indicator that he is not a fit and proper person to be granted a tattooist licence and that it is beholden upon him to demonstrate that he has been "completely rehabilitated" (relying upon Austin v Commissioner for Fair Trading and Commissioner of Police, NSW Police Force [2015] NSWCATAD 244 at [75]). I agree that the applicant's criminal history tends to show that he is not a fit and proper person. However, I do not consider that the Tribunal in Austin was setting out a general principle that a person with a criminal record has an onus of showing he or she is "completely rehabilitated" before the Tribunal may decide that the correct and preferable decision is for him or her to be granted a tattooist licence. 8. An applicant with a criminal record may have a practical onus to put forward some material to indicate that, contrary to the evidence of his or her criminal history, he or she is now a fit and proper person to hold a licence. However, the Tribunal's task is to determine the correct and preferable decision, and there is no legal onus on either party. In this case, that means that the Tribunal must decide, considering both the evidence given by the applicant and that given by the respondents, whether the applicant is a fit and proper person to hold a tattooist licence and whether this would be contrary to the public interest. A relevant factor is, of course, the extent of the applicant's rehabilitation. 9. The respondents rely upon Lee v Health Care Complaints Commission [2012] NSWCA 80 at [72]-[73] for the proposition that the passage of time since the commission of an offence is relevant to an assessment of rehabilitation, but is not of itself sufficient to establish rehabilitation. What the Court of Appeal in fact said in that case was that a finding of reformation cannot be made by reference to the passage of time, without any explanation that would make it unlikely misconduct would reoccur or to suggest that the practitioner had become a changed person (at [72] to [73]). The applicant has, in oral evidence, given an explanation which suggests that he is now less likely to engage in criminal activity and that he has, to some extent, become a changed person. The explanation includes that he has stopped drinking alcohol, sought psychological help, separated himself from friends he considered to be a bad influence and determined not to act violently. I accept that these things have occurred. 10. The respondents say that the passage of time since the applicant's offences is not sufficient for the Tribunal to be satisfied that he is now a fit and proper person to hold a tattooist licence. The Commissioner of Police added that the Commissioner would not submit that the applicant would never fulfil this criterion. According to the Commissioner, he may do so at some time in the future, but that time has not yet come. 11. The applicant has clearly made significant changes to his life since the last offence just over three years ago. Most importantly, he has given up alcohol. This was a major contributor to each of his offences. It was a factor in his violence, as he now accepts. Without drinking alcohol, I consider that it is much less likely that the applicant will reoffend. 12. I also find that the applicant has made other important changes to his life. Dissociating from friends who he considered were a bad influence upon him is a major step towards changing his anti-social behaviour. Further, the strong conviction he now holds that he does not want to replicate the violent behaviour of his father and brother is another factor supporting the proposition that he will not re-offend. His voluntary attendance on a psychologist on a monthly basis for about two years is also significant. It is another circumstance indicating that he now wishes to lead, and has taken steps to help to ensure that he will lead, a pro-social life. Fitness and propriety 1. The first question the Tribunal needs to consider is whether the applicant is a fit and proper person to hold a tattooist licence (Tattoo Parlours Act, s 14(1)(b)(i)). 2. There are a number of factors, discussed above, which tend towards the conclusion that he is not fit and proper. I consider that, in April 2015, the applicant was not possessed of sufficient moral integrity and rectitude of character as to permit him to be safely accredited to the public (see Moore v Commissioner for Fair Trading and Commissioner of Police [2016] NSWCATAD 80 at [23]). This conclusion flows from his lack of candour in filling out his licence application form, his history of violent offences, his recklessness as to whether he was complying with the Tattoo Parlours Act and a general disregard for the law up until this time. 3. I am satisfied that the applicant has changed significantly in the last three years. He has demonstrated a sustained commitment to abstinence and has repudiated his former violent behaviour. He has taken positive and significant steps to address the underlying psychological and substance issues which were major contributors to his past conduct. The two references, to which I have given some weight, describe him as "a great man" who "treats his neighbours with respect, family with love and friends with care" (reference one) and as "a person of very good moral character" who has "been putting a great effort to start a new life" (reference two). Whilst it is unclear whether these referees have a full knowledge of the applicant's criminal history, they do show some knowledge of his past wrongdoing, and may be accepted insofar as they are testimony to how the referees have observed the applicant to conduct himself. 4. On balance, I consider that the applicant now has 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 a tattooist licence entails. I consider that he is a fit and proper person to hold such a licence. Public interest 1. The next issue to be addressed is whether it would be contrary to the public interest for the licence to be granted (Tattoo Parlours Act, s 14(1)(b)(ii)). 2. As the respondents submitted, the applicant's criminal history is relevant to the question of whether it is in the public interest for him to be granted a tattooist licence. The findings that it is likely that the applicant breached the Tattoo Parlours Act and that he made a false (or possibly false) declaration on his application form are also relevant. These factors tend to show that it would be contrary to the public interest for him to be granted a licence. However, essentially for the reasons given above, the applicant has made sufficient changes in his life and has sufficiently reformed his character that, notwithstanding those matters, it is no longer "contrary to the public interest" for the licence to be granted. Other matters 1. The Commissioner for Fair Trading, and the Tribunal standing in the Commissioner's shoes, 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 a relevant Minister (Tattoo Parlours Act, s 16(5); Tattoo Parlours Regulation, cl 13(2)(b)). 2. At the time of making the adverse security determination, the Commissioner of Police advised the Commissioner for Fair Trading, pursuant to s 36(1) of the Tattoo Parlours Act, that the applicant was disqualified from holding a licence, permit or other authority under the Security Industry Act 1997. The reason for the disqualification was that he had been convicted of the offences of common assault and the offence of affray. 3. I have taken the applicant's disqualification under the Security Industry Act into account. However, I consider that the correct and preferable decision is for him to be granted a tattooist licence, in light of the changes in his character and conduct since the offences which led to his disqualification. 4. The appropriate order is therefore to set aside the Commissioner for Fair Trading's decision, and to substitute a decision granting the applicant a licence, pursuant to s 63(3)(c) of the Administrative Decisions Review Act. Orders 1. For the above reasons, I make the following orders: 1. The disclosure of the applicant's name is prohibited. 2. The first respondent's decision to refuse to grant the applicant a tattooist licence is set aside. 3. In substitution for the first respondent's decision, the applicant is to be granted a tattooist licence. 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