Jay v Commissioner for Fair Trading [2014] NSWCATAD 180

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Jay v Commissioner for Fair Trading [2014] NSWCATAD 180 Hearing dates: 14 October 2014 Decision date: 24 October 2014 Jurisdiction: Administrative and Equal Opportunity Division Before: N Hennessy LCM, Deputy President Decision: The operation of the decision to refuse to grant the applicant a licence is stayed and the applicant is granted a temporary operator's licence under the Tattoo Parlours Act 2012 pending the determination of these proceedings. Catchwords: CIVIL AND ADMINISTRATIVE TRIBUNAL - administrative review jurisdiction - security determination under Tattoo Parlours Act 2012 - application for operator's licence refused - stay application Legislation Cited: Administrative Decisions Review Act 1997 (NSW) Tattoo Parlours Act 2012 (NSW) Cases Cited: Williamson v Director General, Department of Transport [2000] NSWADT 165 Category: Interlocutory applications Parties: Sacha Jay (Applicant) Commissioner for Fair Trading (First Respondent) Commissioner of Police (Second Respondent) Representation: Counsel H El-Hage (Respondent) S & P Lawyers (Applicant) Crown Solicitors Office (Respondent) File Number(s): 1410474 Publication restriction: Section 75(2) of the Administrative Decisions Tribunal Act 1997 applies to those paragraphs of these reasons identified as '[not for publication]'. Those paragraphs are not to be released to the Applicant or the public.

reasons for decision

Introduction 1The Commissioner for Fair Trading refused Mr Jay's application for an operator's licence under the Tattoo Parlours Act 2012 (NSW). He had been operating a tattoo parlour without the need for a licence for the previous three years but was required to cease trading on 20 August 2014. Mr Jay has applied for a stay of that decision so that he can continue to operate until the Tribunal makes a final decision as to whether he should be licenced. The hearing is listed for 12 November 2014. 2When Mr Jay applied for the licence, the Commissioner of Fair Trading referred the application to the Commissioner of Police who made an adverse security determination about him based on confidential criminal intelligence. In those circumstances, the Commissioner for Fair Trading was obliged to refuse the application. 3Section 19(1) of the Tattoo Parlours Act allows the Commissioner of Police to determine whether an applicant 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. In making that determination the Commissioner may have regard to any "criminal intelligence report or other criminal information held in relation to an applicant." But, under s 19(3), the Commissioner may only have regard to a report or information that: (a) is relevant to the business or procedures proposed to be carried on or performed, or carried on or performed, under the licence, or (b) causes the Commissioner to conclude that improper conduct is likely to occur if the applicant were granted the licence or the licensee continued to hold the licence, or (c) causes the Commissioner not to have confidence that improper conduct will not occur if the applicant were granted the licence or the licensee continued to hold the licence.