Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Wieckowski v Commissioner for Fair Trading [2017] NSWCATOD 190 Hearing dates: 30 November 2016 and 22 March 2017 Date of orders: 3 May 2017 Decision date: 03 May 2017 Jurisdiction: Occupational Division Before: N S Isenberg, Senior Member Decision: 1 The decision to refuse to grant Mr Wieckowski's application for an operator licence under the Tattoo Parlours Act 2012 is set aside. 2 In substitution, order that the Commissioner issue an operator licence under the Tattoo Parlours Act 2012 to Mr Wieckowski Catchwords: MERITS REVIEW – tattoo parlour – operator licence – fit and proper person – public interest - additional grounds for refusing an application - Tattoo Parlours Act 2012 Legislation Cited: Administrative Decisions Review Act 1997 Firearms Act 1996 Security Industry Act 1997 Tattoo Parlours Act 2012 Tattoo Parlours Regulation 2013 Cases Cited: Deakin v Commissioner for Fair Trading & Commissioner of Police [2016] NSWCATAD 2. Dyas v Director-General, Fair Trading & Commissioner of Police [2014] NSWCATAD 223 Roads and Maritime Services v Rifahi [2015] NSWCATAP 43 Category: Principal judgment Parties: David Michael Wieckowski (Applicant) Commissioner for Fair Trading, Department of Finance, Services and Innovation (First Respondent) Commissioner of Police (Second Respondent) Representation: Counsel: Mr Wieckowski and R Taylor-Notley, agent, appearing by leave (Applicant) M Kumar (the Respondents) Solicitors: Self-represented (Applicant) Crown Solicitor's Office (Respondent) File Number(s): 2016/378380, 1610623 reasons for decision Introduction 1. This is an application for review of a refusal to grant an operator licence under the Tattoo Parlours Act 2012 (the Act) (the Licence) to Mr Wieckowski in accordance with his application lodged with the Commissioner for Fair Trading, Department of Finance, Services and Innovation (Fair Trading) on 26 February 2016. 2. The Applicant's case is that he is entitled to be granted the Licence and the refusal to do so should be set aside. 3. The Respondents' case is that the application to the Tribunal (the Application) should be dismissed because Mr Wieckowski is not a fit and proper person to be granted the Licence, it is not in the public interest for him to be granted the Licence, and he is disqualified from holding a licence, permit or authority under the Firearms Act 1996 and the Security Industry Act 1997. Jurisdiction of Tribunal on review 1. Section 27 of the Act provides that any person may apply to the Tribunal for an administrative review under the Administrative Decisions Review Act 1997 (the ADR Act) of a refusal to grant a licence such as the Licence. 2. Section 63 of the ADR Act empowers the Tribunal to decide what the correct and preferable decision is, having regard to the material then before it, including any relevant factual material and any applicable written or unwritten law. The Tribunal may exercise all the functions conferred or imposed on Fair Trading. In determining the Application, the Tribunal may affirm, vary or set aside the refusal. Material before the Tribunal 1. The Respondents relied on: 1. documents filed pursuant to s 58 of the ADR Act (the s 58 documents). 2. A one page document headed RTA Enquiry - NSW Police Force - Address History, filed 30 November 2016. 3. A bundle of 211 pages of documents produced by the Office of the Director of Public Prosecutions for Western Australia filed 28 February 2017. The bundle included a transcript of The Queen v David Michael Wieckowski (the Transcript) and a one page "Statement of Material Facts". 4. A redacted Adverse Security Determination of 71 pages filed 18 October 2016 (ASD) and clean copies of the redacted pages. 5. Written submissions filed 17 November 2016 (RS). 6. Oral submissions made by Ms Kumar during the proceedings. 1. References in these Reasons to page numbers are to pages of the s 58 documents unless stated to the contrary. References to paragraphs of submissions by the Respondents are to paragraphs of RS unless stated to the contrary, footnotes have not been extracted. 2. Mr Wieckowski relied on: 1. the Application and attached documents. 2. Some of the s 58 documents. 3. A Risk Assessment Template of four pages dated 27 November 2016. 4. An email chain of documents received 4 November 2016 comprising: 1. letter to the Respondents from Mr Wieckowski and Ms Rachel Taylor-Notley and attached: 1. statutory declaration made 24 October 2016 by Ms Taylor-Notley; 2. statutory declaration made 28 October 2016 by Sonia Carol Wieckowski; 3. screen shot of deletion of Facebook page; and 4. screen shot of Hotfrog listing. 1. Statutory declaration by Mr Wieckowski final 27 January 2017. 2. Oral submissions made by Ms Taylor-Notley and Mr Wieckowski during the proceedings. Consideration Legislative scheme 1. The Respondents' unchallenged submission as to the rationale and relevant operation of the Act includes: 11. The TP Act establishes a licensing regime for "body art tattooing businesses and body art tattooists". It was introduced with a view to impose requirements that would have the effect of eradicating criminal elements/links from the tattooing industry: see the Second Reading Speech to the Tattoo Parlours Bill 2012: Mr Anthony Roberts, Legislative Assembly, 3 May 2012; also Smith v Commissioner of Police & Anor [2014] NSWACTAD 184 (Smith), [20]. …. 12. By s. 9(1)(a) of the TP Act, a tattooist licence may be granted to a person. This authorises the licensee to "perform body art tattooing procedures in accordance with this Act and the conditions of the licence": s. 9(3). It is 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). 13. By s. 9(1)(b) of the TP Act, a operator licence may be granted to a person. This authorises the licensee to "carry on a body art tattooing business (whether on his or her own behalf or on behalf of another person) at the premises specified in the licence in accordance with this Act and the conditions of the licence": s. 9(2). It is an offence to "carry on a body art tattooing business (whether on the person's own behalf or on behalf of another person) at any premises unless the person is authorised to do so by an operator licence": s. 6(1). 14. A person may apply to the Chief Executive for an operator licence under s. 11. By s. 14(b), the Chief Executive must refer such an application to the Commissioner for a determination as to whether the applicant is a fit and proper person and whether it is contrary to the public interest for a licence to be granted. The Commissioner is empowered to make that determination under s. 19. If the Commissioner determines that an applicant is not a fit and proper person and/or it is contrary to the public interest for the licence to be granted, such a determination is an "adverse security determination": s. 3(1). 15. By s. 16(3), the Chief Executive must reject an application for a licence, if the Commissioner makes an adverse security determination. 16. By s. 16(5), an additional ground for refusing the grant of a tattooist licence is set out under cl. 13(2)(b) the Tattoo Parlours Regulation 2013 (NSW) (TP Regulations). By that clause, the Chief Executive may refuse to grant a tattooist licence if the Chief Executive is satisfied that an applicant is disqualified from holding a licence, permit or authority under legislation administered by a relevant Minister (by cl. 13(3), the Minister for Police and Emergency Services is a "relevant Minister"). 1. At [18] the Respondents submitted: By s. 27 of the TP Act, the Tribunal has jurisdiction to review a decision to refuse the grant of a tattooist licence. The Act does "not expressly confer jurisdiction on this Tribunal to review any report or determination made by the Commissioner": …. and conceded: …. in a case such as this where the Commissioner has made an adverse security determination, the Tribunal nevertheless has a discretion to grant a licence notwithstanding the adverse security determination: see s. 27(3)(c): 1. The above submissions were not challenged by Mr Wieckowski. 2. While accepting the general thrust of the submissions, I make the following observations in relation to the RS paragraphs referred to below: 1. Paragraph [11] - during his Second Reading Speech on 3 May 2012 the Honourable Anthony Roberts, then Minister for Fair Trading, made specific reference to the Tattoo Parlours Bill 2012 being: …. Part of the Government's continued response to gang crime …. [The Bill] aims to break the stranglehold that outlaw motorcycle gangs have over the tattoo industry in New South Wales …. Removing bikies from the tattoo industry will reduce the reasons for rival gangs to fight turf wars, because these businesses will no longer be symbols of a gang's territory …. This bill makes good on the Premier's announcement to get bikies out of tattoo parlours … Accordingly, I find that the Bill which led to the Act was introduced to deal with a particularly focused criminal element rather than the more general description used at [11]. 1. Paragraphs [12] and [13] respectively state that s 9(1)(a) refers to a "tattooist licence" and s 9(1)(b) refers to an "operator licence". On my reading of the Act the reverse applies, s 9(1)(a) refers to an "operator licence" and s 9(1)(b) refers to a "tattooist licence". 2. References in paragraphs [14] - [16] to the "Chief Executive" are references to the First Respondent. The reference at [14] to a "fit and proper person" is a reference to whether the applicant is such a person "to be granted the licence" rather than for a more general purpose. 1. References in this decision to legislative provisions are to provisions of the Act and the Tattoo Parlours Regulation 2013 (the Regulations) unless stated to the contrary. Issues before the Tribunal 1. The issues to be determined by the Tribunal are: 1. whether Mr Wieckowski is a fit and proper person to be granted the Licence (s 3(1)(a)(i)); 2. whether it would be contrary to the public interest for the Licence to be granted (s 3(1)(a)(ii); and 3. whether there are mandatory or discretionary grounds for refusing the Application if Mr Wieckowski is disqualified from holding a licence, permit or other authority under legislation administered by the Minister for Police and Emergency Services (s 16(5) and cl 13(1)(c)). Matters relied on by the Respondents 1. The matters relied on by the Respondents were set out in RS at [26] A – D, [27] and [34]. These matters, referred to as Items A to G are: Item A 1. At [26] A the Respondents submitted: On 18 October 2001, the Applicant was found guilty and convicted of two counts of sexual penetration without consent. He was sentenced to 4 years imprisonment; 1. The Respondents relied on Annexure M to the ASD (a Western Australian Police Service Apprehension Information (Arrests/Summons) form and a Statement of Material Facts and the Transcript which formed part of the bundle of documents produced by the Office of the Director of Public Prosecutions for Western Australia. 2. Mr Wieckowski's evidence is that there was consent and he pleaded not guilty on that basis: ….the evidence from the full court transcript would have shown that there was no signs of any force. I stopped when she said stop. I pleaded not guilty and still believe I spent 18 months in jail as an innocent man. Item B 1. At [26] B the Respondents submitted: On 3 June 2010, the Applicant was convicted of an offence against section 80(1)(b) of the Domestic and Family Violence Protection Act 1989 (Qld) for contravening the conditions of a protection order. 1. The evidence relied on by the Respondents is found at Annex N to the ASD and comprises a Queensland Court Outcome with alleged facts including that there was, at the date of the event in April 2010, a Domestic Violence Cross Order between Mr Wieckowski and Kyle Maree Gallagher and a statement, possibly by an unidentified police officer who was not present at the time of the event. 2. Mr Wieckowski's statutory declaration included: AVO Breach 2010: Kylie Gallagher has a history of perpetrating violence. Kylie actually on another occasion kicked me repeatedly in the head causing me to have a serious concussion for which I was admitted to Rockhampton hospital. We at the time had lost a full term baby who was still born and our relationship was breaking down. We were drinking and arguing a lot at that time but I was never physically violent with her or any other woman. The night this occurred Kylie was at the pub drinking, it was her son's birthday and I was home with the kids and not drinking. I went to tell her to come home and found her with a bloke who was all over her, he told me he was taking her home. There was an angry confrontation with that bloke but no-one was injured I have never been charged of any violent acts in my life. I went home and left her there. When she came home she attacked me scratching and hitting me in the face I had to hold her arms away from my face. When the police came they had to charge one of us for breaching the AVO. I asked to take the charge because I just wanted to get away from her and had nowhere else to go. I was …. fined $750 …. 1. I observe that Mr Wieckowski's evidence, which was not challenged, is not inconsistent with the facts alleged at Annex N to the ASD. Item C 1. At [26] C the Respondents submitted: On 6 March 1990, the Applicant was convicted of possessing cannabis and a smoking implement. 1. Mr Wieckowski's unchallenged evidence in his statutory declaration was: Marijuana Charge when I was 19: This was so long ago and I have never reoffended. I thought that this would be a spent offence but I didn't know that in WA you have to apply for offences to be spent, I didn't know this. Item D 1. At [26] D the Respondents submitted: The Applicant has had his driver's license suspended or cancelled on four separate occasions. 1. Mr Wieckowski readily acknowledged that he had previously driven a vehicle without having a licence. His evidence is: …. I don't feel that my driving history is relevant to my Job as a Tattoo Artist …. …. I did drive an unregistered vehicle but it was because I was homeless at the time and it was a survival situation. I felt justified that my need to survive was greater that obeying the road rule to have my car registered. I needed to get out of my situation with Kylie and was on my way to a job interview as a Tattooist in Forster and was hoping to change my life for the better. My fines are being paid off because Rachel set up a regular direct debit for me. The times when I had my driver's licence cancelled in the past were only because I was too broke to pay my fine instalments …. Item E 1. At [27] the Respondents submitted: The Applicant was refused a tattooist license on 15 August 2014. The Applicant did not disclose that he had been refused an application for a license in his application for the current license. 1. At page 33 of the ASD in response to a question as to whether he had any application for any licence or other authority refused, Mr Wieckowski answered "no". 2. The Respondents submitted that this answer was evidence that he was not fit and proper to be granted the Licence. 3. Mr Wieckowski stated in his statutory declaration: I don't feel that I have disreguard (sic) for the Tattoo Licencing laws. It took me a long time to come up with the $2100 to pay for the application. Rachel has explained the mistakes that were made in my application and justifications why. We haven't purposely tried to mislead anyone in our application in any way …. 1. In his oral evidence, Mr Wieckowski said he applied for a tattoo operator licence because he knew he needed a licence to perform body art tattooing procedure for fee or reward. He was aware that if he carried out procedures for fee or reward without a licence there would be a breach of the law and he would be subject to penalties. 2. Mr Wieckowski was referred to a letter from Fair Trading dated 15 August 2014 which refused his 2013 application for a tattooist licence. He told the Tribunal that he had not received the letter. He said he had changed address by the time the letter was posted and the person who lived at his former address had not received any such letter. Item F 1. At [27] the Respondents also submitted: …. social media posts indicate that the Applicant was operating unlicensed. In Call v Commissioner of Police [2007] NSWADT 187, the applicant forgot to renew his firearms licence. The Tribunal found at [41]-[42] that the applicant can be "legitimately criticized for not realizing his firearms licences had expired and for not taking action to renew them". It is submitted that the Applicant was obliged to ensure that he operated as a licenced tattooist. He was obliged to check the outcome of his licence application. 1. The Respondents relied on social media and screen-prints from the Internet as their evidence for this item. 2. Mr Wieckowski stated in his statutory declaration: 1. …. the purpose of the advertising screen shots provided as evidence were to promote the business that we have been planning to open. They do not show that we have been operating an illegal business. There is no business operating. 2. I have never worked as an unlicensed Tattooist. I applied for my original Tattooist licence in 2013 before the cut-off date so was told I was able to Tattoo under the transitional arrangements. Department of Fair Trading let me Tattoo for a year before they refused my licence …. and I had resigned from my Tattooist job the shop in July 2015 a month before they refused my license. 4. Because I received no refusal for the whole year in the shop I was still under the belief that I had not been refused. I never enquired if I had been approved because I did not need my licence because I wasn't working. I thought at the time, they must have disregarded my criminal history because it was so long ago and I had not reoffended. I thought if they were going to cancel my licence they would have done it pretty quickly 6. I didn't work as an unlicensed Tattooist after I left my job at Great Lake Tattoos, I was exhausted physically and mentally and needed a break. I didn't get my letter for a licence refusal because I moved and didn't change my address for a while. 7. I didn't change my address because I was worried that there might be pressure to go back or consequences for leaving as I was the main money earner for that business. I was scared as I had heard many stories of things like that happening and I just wanted to lay low for a while just to be safe and to keep Rachel and her children safe. 1. In his oral evidence, Mr Wieckowski said that after he ceased employment as a licensed tattooist he carried out tattooing on his family and friends. He did not carry out tattooing procedures on any member of the public and did not carry out tattooing for fee or reward. 2. The Respondents submitted that the screen shots which they described in the index of the ASD were "Screenshots advertising applicant's tattoo parlour business "Dr Goodpain Skin Artist" suggested that members of the public could ask for advice or plans for tattooing. Ms Kumar conceded that providing advice or plans for tattooing procedures did not require a licence under the Act. 3. The Respondents referred to screenshots in evidence showing advertisements in a hotfrog website. Mr Wieckowski conceded that the advertising was part of their planning while waiting for the grant of a licence. It was not evidence that any unlicensed procedures had been carried out. 4. Ms Taylor-Notley's evidence to the Tribunal was that Mr Wieckowski's business, which was to be carried on from Mr Wieckowski's and her home, was registered but was not yet in operation other than that a trade mark had been registered. 5. The Respondents conceded that they had no evidence that Mr Wieckowski had, at any time when he did not have a licence, carried out body art tattooing for fee or reward. Item G 1. At [34] the Respondents submitted: …. the Applicant is disqualified from holding a licence, permit or authority under the Firearms Act 1996 and the Security Industry Act - these have comparable requirements that an applicant be a fit and proper person and that the grant of the relevant licence/permit be in the public interest. By reason of s. 16(5) of the TP Act, the fact that the Applicant is disqualified from holding a licence, permit or authority under those Acts provides a further basis for refusing his application for a tattooist licence. 1. The Respondents' authority was a reference to [6] in RS. That paragraph referred to a Notice of Information issued by an assessment officer of the Commissioner on 3 August 2016 and relevantly stated: As an Assessment Officer, I: 1. advise that David Michael Wieckowski, being an applicant for a tattooist licence under the Tattoo Parlours Act 2012 … …. (b) is disqualified from holding a licence, permit or other authority under: • The Firearms Act 1996 pursuant to section 11(5)(c) of the Firearms Act 1996 for the reason that the applicant was the subject of an Apprehended Violence Order in May 2010; and • Security Industry Act 1997, pursuant to sections 16(1)(a) of the Security Industry Act 1997 and clause 18(1)(b) of the Security Industry Regulation 2007 for the reason that, on 3 June 2010, he was convicted of an offence against section 80(1)(1)(b) of the Domestic and Family Violence Protection Act 1989 (Qld) in respect of which the penalty imposed was a fine of $750. Submissions by the Respondents 1. The Respondents made detailed oral and written submissions in relation to the Act's requirement for investigation and determination as to whether an applicant for a tattoo operator licence is a fit and proper person to be granted a licence and whether it would be contrary to the public interest for the licence to be granted. 2. Mr Wieckowski did not dispute the principles and authorities outlined by the Respondents, including the following: Fit and proper 21. The expression "fit and proper" is not defined in the TP Act or the TP Regulations. It is well established that, in considering the meaning of those words, the Tribunal will have regard to the context in which the words appear in the first instance … 22. Here, the relevant contextual matters include the following: A The TP Act imposes requirements that would have the effect of eradicating criminal elements/links from the tattooing industry. 1. I have commented on this interpretation of the Minister's Second Reading Speech concerning the Act at [12] above. B. There are strict prohibitions on carrying on a body art tattooing business without an operator licence. Parliament has provided for penalties to be imposed against persons who violate those prohibitions: s. 6 of the TP Act; C. An applicant for a licence must consent to having his or her fingerprints and palm prints taken by police to confirm his or her identity: s. 13; D. 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; E. The First Respondent is precluded from granting a licence in the circumstance where the Commissioner makes an adverse security determination: s. 16(3). 1. The Respondents have conceded that although the First Respondent may not grant a licence where there is an ASD, there is no such restriction on the Tribunal. 23. In addition to these contextual matters, the Tribunal would have regard to the relevant authorities which provide guidance as to the meaning of the expression "fit and proper" …. These authorities were usefully summarised in YJ v Chief Executive Officer, WorkCover Authority [2006] NSWADT 306, at [35]ff, and more recently in Smith, [39]-[41] as follows: A useful review of the authorities was provided in the case of AJO v Director-General Department of Transport [2012] NSWADT 101 at paragraphs [24] to [35]: 24. Assessment of whether a person is fit and proper to be the holder of a licence is different from, but related to, an assessment of whether a person is of good character. 25. In Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321, Chief Justice Mason explained that, at 380: The question whether a person is fit and proper is one of value judgment. In that process the seriousness or otherwise of particular conduct is a matter for evaluation by the decision maker. So too is the weight, if any, to be given to matters favouring the person whose fitness and propriety are under consideration. Toohey and Gaudron JJ said at 380: The expression "fit and proper person", standing alone, carries no precise meaning. It takes its meaning from its context, from the activities in which the person is or will be engaged and the ends to be served by those activities. The concept of "fit and proper" cannot be entirely divorced from the conduct of the person who is or will be engaging in those activities. However, depending on the nature of the activities, the question may be whether improper conduct has occurred, whether it is likely to occur, whether it can be assumed that it will not occur, or whether the general community will have confidence that it will not occur. …. 26. A person's fitness is to be gauged in the light of the nature and purpose of the activities that the person will undertake. In Hughes and Vale Pty Ltd v New South Wales (No. 2) [1955] HCA 28; (1955) 93 CLR 127 the High Court said (at 156-7): …. The expression 'fit and proper' is of course familiar enough as traditional words when used with reference to offices and perhaps vocation. But their very purpose is to give the widest scope for judgment and indeed for rejection…. it would be unwise to attempt any definition of the matters which may legitimately be inquired into; each case must depend upon its own circumstances. 27. In Sobey v Commercial and Private Agents Board 20 SASR 70 Walters J said: In my opinion what is meant by that expression is that the Applicant must show not only that he is possessed of a requisite knowledge of the duties and responsibilities evolving upon him as the holder of a particular licence ... but also that he is possessed of sufficient moral integrity and rectitude of character as to permit him to be safely accredited to the public ... as a person to be entrusted with the sort of work which the licence entails, (emphasis added) …. 29. In Saadieh v Director General, Department of Transport [1999] NSWADT 68, Hennessey DP set out the factors to be taken into account in determining a person's suitability and fitness to obtain a taxi authority. They are: -.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 re-offend, be the subject of further complaints or commit further traffic offences. 30. In Director General, Transport NSW v AIC (GD) [2011] NSWADTAP 65 the Appeal Panel, at [37] the Appeal Panel drew attention to the role public interest considerations play in the assessment of fitness and propriety. The courts have emphasised the connection that assessment of repute, fitness and propriety have in a regulated context with public interest considerations. Repute, fitness and propriety involve concepts that should not be 'narrowly construed or confined' and may extend to 'any aspect of fitness and propriety that is relevant to the public interest' (Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 (26 July 1990) at [64] per Mason CJ …. 31. The discretion vested in a decision maker in determining whether a person is fit and proper, in any given context, was said by the Full Court of the Federal Court in Commissioner for ACT Revenue v Alphaone Pty Ltd (1994) 49 FCR 589 at 389, per Northrop, Miles and French JJ, to "give wide scope for judgement and allow broad bases for rejection." … 33. In Ex Parte Tziniolis; Re Medical Practitioners Act (1966) 67 SR (NSW) 448 Walsh JA, at 450, said that in determining questions of character: ... the court is required to consider matters affecting the moral standards, attitudes and qualities of the Applicant and not merely to consider what is his general reputation. That case was concerned with an application for registration of a medical practitioner. His Honour went onto explain that the Court was entitled to inquire into personal misconduct, as well as professional misconduct, in considering whether the Applicant was a man of good character: ... whilst recognizing that there may be some kinds of conduct deserving of disapproval which have little or no bearing on whether or not it shows the Applicant for registration as a medical practitioner is a person of good character. In this respect, I think, that some assistance can properly be obtained as to the mode of approach to be made from the observations made in cases where the question was whether or not a person was fit and proper to be a barrister, such as those in Ziems v Prothonatory of the Supreme Court of NSW [1957] HCA 46; (1957) 97 CLR 279. Thus, as with fitness and propriety, assessment of character is to be made in the context of the nature and purpose of the activities that the person is seeking to undertake. …. 40 Fitness and propriety is a question of fact for the decision maker to determine objectively on the basis of the all evidence. 41 In contrast to character, the Applicant's reputation is an estimate provided by others, such as by those who live in his neighbourhood, those who work with him, or those with whom he associates in his occupation …. Public interest 1. The Respondents submitted: 24. The application of the expression "public interest" permits a general discretionary judgment that is unconfined except insofar as the subject matter, scope and purpose of the TP Act provides …. 25. In Smith, the Tribunal set out a summary of the principles that govern the concept of "public interest" (at [42]-[47]): The Courts and the Tribunal have held that the concept of the 'public interest' is designed to give the broader interests of the community priority over private interests. In Comalco Aluminium (Bell Bay) Ltd v O'Connor and Others (1995) 131 ALR 657 at 681 the Wilcox CJ and Keely J said: The purpose of the reference to public interest is to ensure that private interests are not the only matters taken into account: to make clear that the interests of the whole community are matters for the Commissioner's consideration. The effect of the reference is to amplify the 'scope and purpose' of the legislation. Discretion to make a decision "in the public interest" is not confined except by the scope and purpose of the legislation itself. Applying a public interest test is a question of fact and degree …. In Commissioner of Police v Toleafoa [1999] NSWADTAP 9 at paragraph [25] the Tribunal's Appeal Panel said: The "public interest" is an inherently broad concept giving the appellant the ability to have regard to a wide range of factors in choosing whether to exercise a discretion adversely to an individual. …. In Constantin v Commissioner of Police, NSW Police Force (GD) [2013] NSWADTAP 16 at paragraph [33] the Appeal Panel held: The ' public interest ' allows, we consider, for issues going beyond the character of the applicant to be taken into account. These may include concerns in relation to public protection, public safety and public confidence in the administration of the licensing system. Consideration of the Respondents' submissions 1. The Respondents submitted that Mr Wieckowski was not a fit and proper person to be granted the Licence. They relied on Items A to G outlined above. 2. In particular, the Respondents submitted that Mr Wieckowski had repeatedly disregarded the law. They substantially relied on 1. convictions of two counts of sexual penetration without consent; 2. having had his driver's license suspended or cancelled on four separate occasions; 3. operating as an unlicensed tattooist; and 4. his failure to disclose in his Licence application that he had been refused in an earlier application. 1. I observe that: 1. both convictions in respect of sexual penetration without consent arose from the same incident. There is no submission that there was any other occurrence of a similar offence by Mr Wieckowski at any time. 2. Mr Wieckowski has denied on oath that there was any relevant lack of consent. I have regard to that denial. However, I also have regard to the undisputed evidence of the convictions. 3. In addition, I have regard to: 1. the Respondents' unchallenged submission that Mr Wieckowski was sentenced to 4 years' imprisonment; 2. Mr Wieckowski's unchallenged evidence, that he was released after 18 months; 3. The lack of any allegation of violence. This was confirmed by the complainant's evidence in the Transcript. The complainant also said that as soon as she told Mr Wieckowski to stop, he did so; 4. the following statement to Mr Wieckowski by the presiding judge, Muller DCJ, after Mr Wieckowski had been convicted: …. I am prepared to find as [Mr Wieckowski's solicitor] submitted that your degree of culpability falls at the lower end of the scale in terms of seriousness …. I will also have to accept that you are a first offender which in turn will have a marked effect upon the sentence imposed …. 1. the fact that the convictions occurred in 2001 in respect of an event which occurred over 17 years ago; 2. the lack of any evidence that there has been any repetition of the events which led to Mr Wieckowski's convictions; 3. Ms Taylor-Notley's evidence as to Mr Wieckowski's character from her observations during the 3 years prior to these proceedings; and 4. Mrs Wieckowski's evidence as to Mr Wieckowski's character from 1990. 1. Mr Wieckowski's unchallenged evidence in relation to the multiple suspensions or cancellations of his driver's licence arose because he could not afford to pay fines; 2. the Respondents stated on six occasions in RS that Mr Wieckowski operated as an unlicensed tattooist. The only evidence in support of these repeated submissions was "social media posts" and screen-prints from the Internet. Having regard to Mr Wieckowski and Ms Taylor-Notley's unchallenged evidence I reject the submissions. 3. Mr Wieckowski's evidence is that that he failed to disclose a refusal of an earlier application for a tattooist licence because he had not received the refusal notice as he had changed his residential address and the person living at his former address had not received the notice. I observe that there was no evidence as to service of the letter. 1. The Respondents submitted that Mr Wieckowski's convictions were "serious". I do not dispute this submission in respect of Items A and B, namely sexual penetration without consent and contravening the conditions of a protection order. The Respondents withdrew the submission in respect of Item C, the conviction 27 years ago of possessing cannabis and a smoking implement. 2. The Respondents submitted at [29] that Mr Wieckowski's driving without a license showed conduct which was reckless and dangerous. The Respondents conceded that there was no evidence that Mr Wieckowski had driven dangerously and withdrew the submission. In my opinion the act of driving without a licence in the circumstances of which Mr Wieckowski gave evidence was clearly unlawful and foolish, although not necessarily reckless. The Respondents have not indicated, to my satisfaction, the relevance of such conduct to the License, should it be granted, in contrast to Mr Wieckowski's unchallenged evidence of his history in the tattoo industry. 3. The Respondents submitted at [30] that Mr Wieckowski lacks fitness and propriety and he is prone to disregarding the law and regulatory requirements. This is a significant factor that counts against a finding that the Applicant is a "fit and proper" person, ie, a person with rectitude of character. Here, it is important to bear in mind that this is not a case where the Applicant has been involved in a "one off' incident (cf. Clark v WorkCover Authority of New South Wales [2006] NSWADT 320, [40]) or even a couple of incidents (cf. Stevens v WorkCover Authority of NSW [2014] NSWCATAD 202, where the Applicant had only one assault conviction and, even then, the Tribunal's conclusion to allow the challenge was subject to the caveat at [73] that any further disregard of the law would likely have adverse consequences for the Applicant). The convictions indicate that the Applicant continues to possess a willingness to disregard/violate the law. 1. I observed during the hearing that the Respondents relied heavily in their submissions on decisions of Senior Member Montgomery in this Tribunal and its predecessor, the Administrative Decisions Tribunal. However, the Respondents had not referred to Senior Member Montgomery's decisions in Dyas v Director-General, Fair Trading & Commissioner of Police [2014] NSWCATAD 223 and Deakin v Commissioner for Fair Trading & Commissioner of Police [2016] NSWCATAD 2. 2. In Dyas, which involved a consideration of the fit and proper and public interest tests in respect of an application for the grant of a tattooist licence which had been refused by Fair Trading after the Commissioner had made an ASD, SM Montgomery said: 56 In the present matter the factual background is not in dispute. The issue is rather whether or not that background is such that it would be contrary to the public interest for the Applicant to be granted a licence or that he is not a fit and proper person to hold the licence sought. 57 It is common ground that the Applicant has a long criminal record. I generally agree with the Commissioner's assessment of the Applicant's record. Some of his offences involve violence. At best, almost all show an indifference towards licencing and regulatory schemes that are aimed at ensuring public safety. 58 I agree with the Commissioner that the Applicant's convictions that occurred in the last 10 years would call his integrity into question. However, it is my view that the offences should not prevent the Applicant obtaining the licence that he seeks. This is because of a combination of the nature of the offences, the time that has passed since the offences were committed, the Applicant's acknowledgement of his past and the efforts that he has made to change his lifestyle [emphasis added]. 59 I agree that the most troubling aspect of the Applicant's a long criminal record is since the incident of May 2011. On the evidence, I do not agree that the earlier offences would prevent him from holding a licence under the Act. 60 When the May 2011 incident is considered along with the Applicant's earlier record it suggests a propensity towards violence which raises serious concerns in regard to his fitness and propriety. 61 Nevertheless, I accept that the Applicant's lifestyle has changed so that he is no longer subject to the social factors that were at play and which impacted on his conduct for a major part of his life. I accept that the Applicant's drug addiction has been addressed and is under control. I also accept that he has taken steps to curb his alcohol use. 62 I note that it is three and a half years since the events that gave rise to his most recent conviction. All the material before me suggests that he was profoundly affected by that event and this lead to a significant lifestyle change. He underwent anger management training and reduced his alcohol consumption. He received a suspended two-year prison sentence and completed the bond period without incident. 63 Had it not been for this change I would have no hesitation in agreeing with the Commissioner that the Applicant's background is quite sufficient to ground a finding that he is not a fit and proper person to hold a licence under the Act and that it is not in the public interest that he do so. 64 However, the change is apparent. Those witnesses who have provided statements in support of the Applicant's case obviously think highly of him and have confidence in his ability to maintain his changed lifestyle. 65 While there can be no assumption that the Applicant will not re-offend, in my view it is significant that he has not reverted to his former conduct after the refusal of his licence application. This is significant as the refusal has clearly placed major stresses on him, including his unemployment. He has nevertheless managed to deal with those stresses in an appropriate manner. He also has the prospect of work should he obtain the licence. 66 It is my view that sufficient time has passed since the incident of May 2011 to remove any concerns of risk to the public should the licence be granted. I do not agree that the Applicant poses a risk to his clients. There is no suggestion that his conduct ever directly impacted on his work as a tattooist and it is improbable that this would change if he is granted the licence. 1. I also observe that the Respondents did not refer to the more recent decision of SM Montgomery in Deakin v Commissioner for Fair Trading & Commissioner of Police [2016] NSWCATAD 2. 2. Deakin involved an application for a review of a determination to review the applicant's application for a tattoo operator licence. The Commissioner had made an ASD to the effect that Mr Deakin was not a fit and proper person to hold the licence sought and Fair Trading refused to grant the licence. SM Montgomery's decision included: 6. … A copy of the Applicant's criminal record is in evidence. It shows that he has a long history of criminal activity dating back to 2000. His offences include: a. Possess unauthorised pistol b. 3 counts of steal a motor vehicle (accessory after the fact to an offence) and 1 count of steal motor vehicle (accessory after the fact to an attempt). The vehicles were located in a unit that the Applicant leased. c. possess a barrel without authority/licence d. cultivate prohibited plant e. not keep firearm safely f. possess loaded firearm in a public place g. handle/use firearm under the influence of alcohol/drug and h. Malicious wounding; and i. Various assaults and property damage and public order offences 7 In relation to the firearms offences of not keep firearm safely and possess a barrel without authority of licence/permit, the police Facts Sheet indicates, and the Applicant does not dispute, that two disassembled firearms were located within a unit that the Applicant leased. It states: Located on a bench top at the rear of the unit was a disassembled doubled barrelled 12 gauge shotgun. The Firearm had been completely pulled apart with the barrel, the breach and stock in separate pieces. The trigger mechanism has also been pulled apart. The serial number displayed on this firearm was 9440261, there is no record of this firearm ever being registered. Located on the same bench in a riggers glove was a disassembled Derringer replica two shot pistol. This firearm was also in numerous pieces. On the same bench was an instruction manual to build a home-made .22 calibre machine gun. The instructions demonstrate how to make the firearm from tubed or box sectioned steel. Adjacent to the manual was two lengths of galvanised tubed steel with templates from the manual attached. These pieces of steel are alleged to be the beginnings the accused attempt to construct the machine gun. Located on the floor of one of the toilets was an additional instruction manual on how to build your own .22 calibre machine gun. Also on the same bench was an instruction manual detailing the process for manufacturing methylamphetamine. The manual was inspected and it contains clear and correct instructions on the processes and procedures involved in the manufacture of the drug. 55 …. It is clear from the material before me that the Applicant has a long history of conduct that is of significant concern …. 57 It is apparent that the Applicant has attempted to work within the law to achieve his objectives in relation to his business. 59 In my view, the overriding factor is the Applicant's conduct over recent years, which indicates that he has made significant progress in changing his behaviour. It is clear that the Applicant has been subjected to extraordinary stress in recent times …. 60 Notwithstanding those stressful circumstances the Applicant has not reverted to the type of conduct that is seen in his criminal history. The efforts that he has made to change his lifestyle and build up his business should be acknowledged. I am satisfied that he has demonstrated that he is no longer unfit. 1. The evidence concerning Mr Wieckowski's history does not indicate that he has gone to the same extent as Mr Deakin in seeking to change his life for the better. However, the evidence also shows that the conduct engaged in by Mr Wieckowski and relied on by the Respondents in support of their submissions, was not as prejudicial to Mr Wieckowski's Licence application as was the evidence of Mr Deakin's conduct in his matter. 2. Other than the incident in Queensland nearly 7 years ago referred to in Item B there is no evidence of any violent conduct on the part of Mr Wieckowski. This should be contrasted with the evidence in respect of Mr Dyas and Mr Deakin. The decision in Dyas states at [17] that four of his convictions were for violent offences. The most recent conviction before the hearing in September 2014 was for an offence of assault occasioning actual bodily harm in May 2011 while he was intoxicated. 3. The Dyas decision also refers to drug use and abuse of alcohol. There is no reference to such matters in respect of Mr Wieckowski other than in Items C and A, which respectively occurred in 1990 and 2000, 27 and 17 years ago. 4. I observe that although the Respondents provided over five pages of written submissions as to principles to be considered in relation to the expression "fit and proper" there appears to be a lack of consideration given to reformation of character and the passing of time since the events referred to in Items A to G. 5. I have regard, in respect of these issues, to the decision of the Appeal Panel of the Administrative Decisions Tribunal (ADT) in Roads and Maritime Services v Rifahi [2015] NSWCATAP 43. 6. In Rifahi, Roads and Maritime Services was unsuccessful in appealing against a decision at first instance in the ADT that Mr Rifahi, whose taxi driver authority had been cancelled, was "of good repute and in all other respects a fit and proper person" to drive a taxi. The background to the cancellation was that Mr Rifahi was convicted of two counts of assault occasioning actual bodily harm on his former wife and her sister. 7. In considering the expression "fit and proper" the Appeal Panel said: 35 In cases where 'good character' is part of the legal test for the practice of a particular occupation or profession, the question of reformation of character is significant. Similarly if a person has been 'unfit' in the past, the question arises is to whether they are now a fit and proper person to perform a particular role … 36 Each case will depend on its facts. The Tribunal would fall into error if it adopted a rule of universal application or even a general guideline that a person serving a sentence for a criminal offence should not be considered to be fit and proper or of good repute. Nevertheless, fitness must be determined as at the date of hearing …. 1. Ms Taylor-Notley's evidence indicated that she was well aware of all of the items relied on by the Respondents. She stated: …. David has made significant changes in his life and has learnt and reformed from his past. I've known David for 3 years and have resided with him as de-facto partner for most of that time. I have also met and spent time with all of David's immediate and extended family and close friends …. I …. feel that these mistakes in his life do not reflect his true character which I know of him now. David and I have a child of this relationship Vince George Wieckowski who is now 16 months old …. Despite [having been given explicit details by Mr Wieckowski of his past criminal history and his incarceration] David and I continue to be a stable couple who intend to get married. I can also confirm that David is an excellent Father and step Father to my 3 children from a previous relationship. David has the utmost respect of my children and I have no concerns in allowing him to supervise my children in my absence for after school care. I have 3 daughters 17 years, 11 years and 9 years of age. I have never had any concerns regarding David's interactions with my daughters. I have also observed David's interactions with his own children, of which he has 7 including our son and see that he is well respected and loved by all his children who range in age from Vinnie who is 16 months to his daughter Cassie who is 27. Cassie has 6 children of her own who regularly visit David and I during school holidays. I am aware that David has a history of disregard for rules and regulations. Despite this past history I feel that David has made significant changes to his behaviour and is learning the importance of having respect for rules and regulations and with my support has learnt how to follow proper processes and to understand the long term benefits of doing things the right way. He has developed a great deal of patience and perseverance over the past 3 years and I am proud of how he has behaved despite the setbacks that he has faced in trying to do the right thing. I now feel that David has shown his maturity and ability to adhere to rules and regulations and can continue to do so especially with my support and guidance. 1. Ms Taylor-Notley stated that Mr Wieckowski has taken measures to distance himself from bad influences. He is a stay-at-home dad for their son and has joined his local football team and participates in an over 35's competition. She said that Mr Wieckowski is forming friendships with people of good reputation and standing in the community. 2. Ms Taylor-Notley said that she has observed that Mr Wieckowski currently needs her support to understand complex written documentation and complete forms such as his Licence application and also the Application to the Tribunal. Her observation is that once Mr Wieckowski understands something he has exhibited a good memory for it. She used as examples the Regulations and what she described as the Health Department regulations. 3. Ms Taylor-Notley said she helped complete the Licence application and she made some errors with dates which she offered to clarify at the hearing. 4. Mr Wieckowski relied on a Risk Assessment Template in evidence. That template which had been substantially prepared by Ms Taylor-Notley, is based on a New South Wales government template designed to document risk assessments to manage health and safety hazards and risks. The Template was prepared having regard to concerns raised by the Respondents in respect of, what Mr Wieckowski described as, "tattooing body art procedure performed on intimate parts of human body". 5. The Template outlines various hazards, allocates a "risk level" to each hazard and outlines reasonably detailed control measures to be taken to deal with the stated risks. It appears that a substantial amount of work has gone into the preparation of this Template and in my opinion Ms Taylor-Notley and Mr Wieckowski are to be complimented for the work involved in seeking to deal proactively and objectively with issues raised by the Respondents so as to enable Mr Wieckowski to operate a tattoo parlour if he is granted the Licence. 6. Mr Wieckowski also relied on a statutory declaration by his former wife, Sonia Carol Wieckowski (Mrs Wieckowski). Mrs Wieckowski's declaration indicated that the met in 1990, married and had two children. They separated in 1998 after stress caused to their family resulting from the effects of a work injury suffered by Mr Wieckowski. 7. Mrs Wieckowski indicated that she had some knowledge of what she described as Mr Wieckowski's sexual assault charge. She states that she and the children visited him in gaol. 8. So far as she is aware, Mr Wieckowski has had nothing to do with biker gangs or crime groups. Mrs Wieckowski is very supportive of Mr Wieckowski's attempts to obtain the Licence. 9. Mrs Wieckowski does not give any indication that she is aware of the items which the Respondents relied on, other than Item A. Her statutory declaration is supportive of Mr Wieckowski. However, I have given it limited weight because of her lack of knowledge of most of the issues raised by the Respondents and her limited recent contact with Mr Wieckowski. 10. The Tribunal records show that in September 2016 Mr Wieckowski applied for a stay or interim order to carry out body art tattooing at his home. That application was heard on 11 October 2016 and refused by order of the Tribunal made on 8 November 2016. There is no evidence that Mr Wieckowski engaged in any unlawful or other prejudicial conduct as a result of his failure in that application. It may well be that that failure caused him, with the assistance of Ms Taylor-Notley, to put additional effort into the application I heard on 30 November 2016 and 22 March 2017 so as to achieve, by legal means, his desire of obtaining a licence to carry on his chosen profession. 11. Mr Wieckowski's unchallenged evidence in relation to the introduction of the Tattoo Parlours legislation in 2012 is: When these laws came in I was really happy. I had spent years tattooing as a freelance artist, developing my art in return for a few dollars, a bed and a feed. I had no fixed address for many years and I did not even contact my family. This was because I was hiding from Bikies who had made threats against me and my family for refusing to join their association. In those days you could not work unless associated with a club under their control. I didn't want to be controlled like that because I wasn't a criminal. That's why I went off the radar. When I heard of these laws coming I applied for a job back in NSW and then my licence. I was relieved that I would finally be protected and that I could finally make a name for myself as a talented artist. 1. There is no dispute that the public interest test requires that the interests of the public take priority over Mr Wieckowski's personal interests. 2. Mr Wieckowski's evidence is that in his 19-year career as a tattooist he has not received any complaint of inappropriate or disrespectful treatment of any person. The Respondents provided no evidence adverse to Mr Wieckowski in respect of the body art tattooing he performed during this lengthy period. 3. The evidence and submissions on Mr Wieckowski's behalf in respect of the manner he would carry on business if granted the Licence indicate that substantial effort has gone into planning the conduct of his business so as to address the concerns put forward by the Respondents and enable him to operate a tattoo parlour with appropriate protection for members of the public who deal with him. 4. In having regard to the intentions of Parliament in enacting the Tattoo Parlours legislation, as stated by the Minister during the Second Reading Speech, I observe that there is no evidence that Mr Wieckowski has been involved with "gang crime" or "outlaw motorcycle gangs" as referred to by the Minister. 5. I am not satisfied that the Respondents' submissions in relation to "eradicating criminal elements/links from the tattooing industry" are supported by relevant probative evidence sufficient to override the evidence in favour of Mr Wieckowski's application, having regard to the fit and proper test and the public interest test. Additional grounds for refusing the Application 1. The Respondents' submissions in respect of Item G are outlined at [41] and [42] above. The submissions referred to s 16(5), and stated that a further basis for refusing the Application was because Mr Wieckowski was disqualified from holding a licence, permit or other authority under legislation administered by the Minister for Police and Emergency Services. 2. Section 16 and cl 13 of the Regulations, relevantly provide: 16 Decision of Secretary in relation to licence application (1) The Secretary may, after considering an application for a licence and the determination of the Commissioner under section 19 on the application, grant the licence or refuse to grant the licence. …….. (3) The Secretary must not grant a licence if: …. (c) an adverse security determination has been made by the Commissioner about the applicant. …. (5) The regulations may also provide mandatory or discretionary grounds for refusing the granting of a licence. …. 13 Additional grounds for refusing to grant licences (1) Grounds for refusing operator licence applications For the purposes of section 16(5) of the Act, the Secretary may refuse to grant an operator licence if satisfied of the existence of any of the following grounds: …. (c) the applicant is disqualified from holding a licence, permit or other authority under legislation administered by a relevant Minister, 1. There is no dispute that: 1. the Minister for Police and Emergency Services is a relevant Minister for cl 13; 2. Fair Trading had no authority to grant the Licence having regard to the ASD and that limit of authority does not apply to the Tribunal; 3. Clause 13(1)(c) did not preclude Fair Trading from granting the Licence. However Fair Trading determined not to make the grant; 4. Clause 13(1)(c) does not preclude the Tribunal from determining to grant the Licence. 1. I make findings elsewhere in these reasons as to whether Mr Wieckowski is a fit and proper person to hold the Licence. 2. I observe that the "public interest" test is referred to in 6 locations in the Act. At two places, in s 3, they relate to a determination by the Commissioner that "it would be contrary to the public interest for the applicant to be granted a licence". In four places in ss 14, 19 and 19A they relate to "whether it would be contrary to the public interest" for a licence to either be granted or for a licensee to continue to hold his licence. 3. The Respondents' submission at [34] is to the effect that for Mr Wieckowski to be successful there is a requirement to determine "that the grant of the relevant licence/permit be in the public interest". That is not the test required by the Act and I reject the submission. Decision and orders 1. Having regard to the above findings on the material before me, I am satisfied that: 1. Mr Wieckowski is a fit and proper person to be granted an operator licence, and 2. it would not be contrary to the public interest for that licence to be granted. 1. Accordingly, the correct and preferable decision is that the Licence should be granted. 2. The Tribunal's orders are: 1. The decision to refuse to grant Mr Wieckowski's application for an operator licence under the Tattoo Parlours Act 2012 is set aside. 2. In substitution, order that the Commissioner issue an operator licence under the Tattoo Parlours Act 2012 to Mr Wieckowski 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