Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Purdie v Commissioner for Fair Trading [2017] NSWCATAD 38 Hearing dates: 17 August 2016 and 31 August 2016 Date of orders: 23 January 2017 Decision date: 23 January 2017 Jurisdiction: Administrative and Equal Opportunity Division Before: R Perrignon, Senior Member Decision: The decision under review is affirmed. Catchwords: ADMINISTRATIVE LAW – review of decision to decline the grant of a tattoo parlour licence – adverse security determination by Commissioner of Police – what is the correct and preferable decision in relation to the licence application Legislation Cited: Administrative Decisions Review Act 1997 Civil and Administrative Tribunal Act 2013 Tattoo Parlours Act 2012 Cases Cited: Comalco Aluminium (Bell Jay) Limited v O'Connor and Others (1985) 131 ALR 657 Constantin v Commission of Police, NSW Police Force (GD) [2013] NSWADTAP 16 Dyas v Director-General Fair Trading & Anor [2014] NSWCATAD 223 McKinnon v Department of Treasury (2005) FCAFC 142Smith v Commissioner of Police & Anor [2014] NSWCATAD 184 Zahra v Commissioner of Police, NSW Police Force & Anor [2014] NSWCATAD 211 Category: Principal judgment Parties: Kathleen Jane Purdie (Applicant) Commissioner for Fair Trading (First Respondent) Commissioner of Police (Second Respondent) Representation: Counsel: H El-Hage (Respondents) Solicitors: Otto Stichter & Associates (Applicant) Crown Solicitors Office (Respondents) File Number(s): 1610420 Publication restriction: (1) The disclosure, publication or broadcast of paragraphs 64 to 84 inclusive of the reasons for decision is prohibited, except to the Second Respondent.(2) The disclosure, publication or broadcast of any oral or written evidence or submissions lodged with, or given to, the Tribunal in confidence is prohibited, except to the Second Respondent. REASONS FOR DECISION 1. The applicant, Ms Purdie, has owned and operated a tattoo parlour in Sydney since 22 July 2005, in partnership with her de facto partner of 14 years, Mr Lincoln. 2. On 26 March 2011, two hooded men entered the premises through a back door. One of them shot and killed a tattoo artist working there, named Daniel Vella, with a revolver at close range. 3. On 29 May 2012, the Tattoo Parlours Act 2012 ("the Act") commenced. It introduced a licensing regime for body art tattoo parlours and tattooists. Part 2 of the Act, which came into force on 1 October 2013, provided that it was an offence to carry on a body art tattooing business without a licence: section 6(1). On or before 12 July 2013, well before the commencement of Part 2, Ms Purdie duly applied for a licence to the Commissioner for Fair Trading. As she was required to do, she disclosed the names and details of her close associates, including Mr Lincoln. 4. As required by section 14, the Commissioner for Fair Trading referred the application to the Commissioner of Police for investigation and determination as to whether (among other things) it would be contrary to the public interest to grant the licence. 5. Pursuant to section 19, the Commissioner of Police investigated the application. On 7 July 2016, he determined that: "it would be contrary to the public interest for Kathleen Jane Purdie to be granted the licence, for the reason that a close associate of the applicant, Adam Gordon Lincoln, is a member of the Bandidos Outlaw Motor Cycle Gang." 1. A determination by the Commissioner of Police that it would be contrary to the public interest to grant a licence, is defined in the Act as an "adverse security determination". 2. On 7 July 2016, the Commissioner for Fair Trading declined to grant a licence to Ms Purdie, for the sole reason that the Commissioner of Police had made the adverse security determination set out above. In the circumstances, the Commissioner for Fair Trading had no choice but to decline the application, because section 16(3)(c) prevented him from granting a licence in the face of an adverse security determination. 3. Ms Purdie seeks review of the decision of the Commissioner for Fair Trading to decline her licence application. Unlike the Commissioner for Fair Trading, this 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 [adverse security] determination of the Commissioner": section 27(3)(c). 4. The Tribunal's task is to determine what is the correct and preferable decision, having regard to the material before it and the applicable law: section 63(1), Administrative Decisions Review Act 1997. In this case, that material included confidential evidence and submissions by the Commissioner of Police. Pursuant to section 64 of the Civil and Administrative Tribunal Act 2013, orders have been made prohibiting the publication, broadcast or disclosure of that confidential evidence and submissions except to the Commissioner of Police. 5. Ms Purdie admits that Mr Lincoln is her close associate, as defined in the Act. She accepts that the 'public interest' test is designed to give the broader interests of the community priority over private interests, and that it permits things other than her own character to be taken into account, including concerns relating to the protection of the public, public safety and public confidence in the administration of the licensing system: Constantin v Commission of Police, NSW Police Force (GD) [2013] NSWADTAP 16. 6. However, she says that the correct and preferable decision is to grant the licence, for the following reasons: 1. Mr Lincoln ceased to be a member of the Bandidos in 2014. 2. Even if he were a continuing member, he is not in a position to influence her conduct of the business, and in any event not in a way that renders improper conduct likely, or that would cause the Tribunal not to be satisfied that improper conduct would not occur. 3. There is no evidence to link him or her with the murder of Daniel Vella. 4. She and Mr Lincoln are persons of good character. 5. The decision of the Commissioner of Fair Trading to decline the licence causes hardship to them. 1. Ms Purdie also makes two discreet submissions in relation to the effect of section 19(3) of the Act: 1. The Tribunal's ability to take into account criminal intelligence reports is limited by section 19(3) in the same way that it limits the power of the Commissioner of Police to take them into account. To the extent that any criminal intelligence report does not satisfy the requirements of that section, she says the Tribunal may not have regard to it. 2. In determining whether the grant of a licence is against the public interest, the Tribunal is confined to determining whether improper conduct is likely or whether it cannot be satisfied that improper conduct would not occur, as set forth in paragraphs (b) and (c) of section 19(3) 1. The Commissioner of Police does not suggest that there is evidence before the Tribunal which would satisfy it that either Ms Purdie or Mr Lincoln were involved with the murder of Daniel Vella. He says that the correct and preferable decision is to decline to grant the licence, for reasons variously expressed in written and oral submissions. They may be summarised as follows: 1. Mr Lincoln was a very senior member of the Bandidos, being at different times the Secretary and Vice President of the club. 2. On the evidence, the Tribunal would not be satisfied that he had ceased his long association with the club, and the clear intention of the government in introducing the licensing regime was to bring an end to the association of outlaw motorcycle gangs with the tattoo industry. 3. Little weight can be given to Mr Lincoln's character evidence to the extent that the referees are unaware of his criminal history or long association with the Bandidos or, if aware of that association, to the extent that they simply assume that it has ceased. 4. The reasons advanced in confidential oral submissions, supported by confidential evidence. Legislation 1. The essential features of the licencing regime introduced by the Act were described in the following way by Senior Member Montgomery in Smith v Commissioner of Police [2014] NSWCATAD 184: 2. The Act introduced licensing requirements for operators of body art tattoo parlours and tattooists. … The licensing regime imposes a test of whether the person is "fit and proper" and whether it would be "contrary to public interest" to grant the licence or allow it to continue in force. It is an offence to carry on a body art tattooing business without an operator licence: section 6 of the Act. 3. Pursuant to Part 2 of the Act, body art tattooing businesses, body art tattooists and employed body art tattooists are to be licenced. It is an offence for those businesses or individuals, as the case may be, to fail to have the requisite licence: sections 6 - 7 of the Act. Businesses that only undertake cosmetic and medical tattooing procedures do not need a licence. 4. Pursuant to section 9 of the Act, there are two kinds of licence that may be granted: an operator licence and a tattooist licence. Only an individual can apply for a licence, even where the individual is applying on behalf of an organisation. Sole operators only require an operator licence. 5. A person may apply to the Director-General for a tattooist licence pursuant to section 11 of the Act. Sections 12 - 13 of the Act provide for an application to be accompanied by a written statement in respect of close associates of applicants and for the fingerprinting and palm printing of applicants. 6. Pursuant to section 14(b) of the Act, upon receiving an application for a licence, the Director-General is to refer the application to the Commissioner, for an investigation and determination as to whether the applicant is a fit and proper person to be granted the licence, and whether it would be contrary to the public interest for the licence to be granted. 7. Section 19 provides that the Commissioner is to inquire into and determine, and report to the Director-General on those issues. Subsection 19(3) provides that, for the purposes of making his determination, the Commissioner may have regard to criminal intelligence reports or other criminal information held in relation to an applicant. 8. Pursuant to section 20, neither the Commissioner nor the Director-General are required to give any reasons for the determination or for not granting the licence, if such reasons would disclose any criminal intelligence report or other criminal information. 9. The Director General has a discretion whether to grant a licence in some circumstances, however, a licence must not be granted if the Commissioner makes an adverse security determination in relation to the applicant: section 16(3)(c). 10. Once granted, a licence remains in force for three years, and may not be renewed: section 17 of the Act of the Act. 11. Further, if the Commissioner makes an adverse security determination in relation to a licensee, the Director-General must cancel the licence: section 26(1)(b) of the Act. Ordinarily, the Director-General may not cancel a licence without first suspending it and inviting the licensee to show cause why the licence should not be cancelled (section 26(3)) but this procedure is excluded where the cause of cancellation is an adverse security determination. 1. He continued to describe the jurisdiction and task of the Tribunal as follows: The Tribunal's Jurisdiction 12. Section 58(1)(b) of the Administrative Decisions Review Act 1997 ("the ADR Act") requires the Director-General to lodge a copy of every document relevant to the determination with the Tribunal. Under section 59 of the ADR Act the Tribunal may make an order that the administrator is not required to lodge a copy of a document under section 58. The Tribunal is to grant the Applicant access to the documents lodged unless there is an order restricting disclosures made under section 64 of the Civil and Administrative Tribunal Act 2013. 13. The Tribunal's jurisdiction to review the decision is constrained by the terms of the Act. Pursuant to section 27(i)(a) of the Act, review may be sought of the refusal or failure by the Director-General to grant a licence. The Act does not expressly confer jurisdiction on this Tribunal to review any report or determination made by the Commissioner. 14. However, pursuant to section 27(3) of the Act: (3) If an application for a licence was refused or a licence was suspended or cancelled by the Director-General on the ground of an adverse security determination made by the Commissioner about the applicant for the administrative review: (a) the Commissioner (as well as the Director-General) is to be a party to any proceedings in the Civil and Administrative Tribunal for an administrative review of the decision of the Director-General, and (b) the Tribunal is to be provided with a copy of the report of the Commissioner's determination, and (c) the Tribunal is not prevented from determining whether the Director-General made the correct and preferable decision regarding the application or the licence concerned merely because of the determination of the Commissioner. 15. Accordingly, unlike the Director-General, this Tribunal has the discretion to grant a licence despite an adverse security determination made by the Commissioner. Whilst the Commissioner's report or security determination is not under review, the Tribunal may nevertheless decide to grant a licence despite the adverse determination. 16. The Act provides that the assessment of whether an applicant is fit and proper and the public interest assessment rest with the Commissioner. The Act also specifies that it is the Director-General's decision that is under review, and not the Commissioner's determination. Section 8(2) of the ADR Act provides that the person or body whose decisions are administratively reviewable decisions is taken to be the only administrator in relation to the making of an administratively reviewable decision even if some other person or body also had a role in the making of the decision. The question therefore arises as to the correct approach to be taken by the Tribunal in determining these types of applications. …. 19 There is no "Principles and Objects" section within the Act. The Tribunal can look at Hansard and the Minister's speech to ascertain the purpose of the Act – the mischief that the statute was designed to cure. In his second reading speech on the introduction of the Bill to Parliament, the Minister for Police and Emergency Services Mr Gallacher noted that the Act was introduced in response to gang crime in NSW. It aims to break the stranglehold that outlaw motorcycle gangs have over the tattoo industry. It was anticipated that removing bikies from the tattoo industry will reduce the reasons for rival gangs to fight turf wars, because these businesses will no longer be symbols of a gang's territory. …. 20. While the second reading speech focused on the involvement of outlaw motorcycle gangs in the tattoo industry, it is clear from the Act that the broader intention is to rid the industry of any criminal or otherwise undesirable element and the avoidance of improper conduct. 21. The legislation provides that the Tribunal has jurisdiction in relation to: (a) refusal or failure to grant a licence; (b) imposition of licence conditions; and (c) suspension or cancellation of a licence. 22. The Tribunal may grant a licence or reinstate a licence in the face of an adverse security determination in circumstances where the Director-General could not do so. While there is no express power to revisit the adverse security determination, section 27(3)(c) of the Act provides that the Tribunal is not prevented from determining whether the Director-General made the correct and preferable decision regarding the application or the licence concerned merely because of the determination of the Commissioner. … 27. In my view section 27(3) of the Act is to be construed as giving the Tribunal the jurisdiction to make a fresh determination on the basis of the material placed before it. The Tribunal is not confined to the grounds relied upon by the Commissioner in making the adverse security determination. 28. The Tribunal may make its decision on any other lawful, discretionary basis. In doing so there is no need to revisit the adverse security determination. … 32. Section 63 of the ADR Act provides that in determining an application for review of an administratively reviewable decision the Tribunal is to make the correct and preferable decision having regard to the material before it, and any applicable written or unwritten law. … in my view section 27(3)(c) of the Act is to be construed as giving the Tribunal the power to make a fresh determination, notwithstanding the wording of section 8 of the ADR Act. 33. It is also my view that in considering an application for review under the Act, the Tribunal is not constrained to have regard only to the material that was before the Director-General, but may have regard to any relevant material before it at the time of the review. 34. This is comparable to the approach taken by the Tribunal in determining applications under the Explosives Act. 35. In matters of this type it will be common for the Commissioner to present material to the Tribunal on a confidential basis. It is likely that the material will not have been made available to the Director-General and will not be available to the Applicant. In such circumstances, pursuant to section 27(4) of the Act, the Tribunal can receive evidence and hear argument in the absence of the public and the Applicant, unless the Commissioner approves otherwise. 1. Descriptions of the licensing regime are also to be found in Zahra v Commissioner of Police, NSW Police Force & Anor [2014] NSWCATAD 211 and Dyas v Director-General Fair Trading & Anor [2014] NSWCATAD 223. Issues for determination 1. The issues for determination are as follows. 1. What is the correct and preferable decision in relation to Ms Purdie's licence application, having regard to the material before the Tribunal and the applicable law. 2. In determining what is the correct and preferable decision: 1. whether section 19(3) restricts the kind of criminal intelligence reports to which the Tribunal may have regard, and 2. whether, in assessing the public interest, the Tribunal is confined to considering whether the licence is likely to have the effects set forth in section 19(3). Effect of section 19(3) 1. It is convenient to deal first with the latter issue – that is, the effect of section 19(3). That section provides as follows: (3) For the purpose of making a determination on a matter referred to in subsection (1) or (2), the Commissioner [of Police] may have regard to any criminal intelligence report or other criminal information held in relation to the applicant or licensee (or a close associate of the applicant or licensee) 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. 1. Section 19(3) limits the kind of criminal intelligence report which the Commissioner of Police may take into account. It does not, in terms, limit the power of the Tribunal in any way. The Tribunal neither reviews the determination of the Commissioner of Police, nor stands in his or her shoes when reviewing the decision of the Commissioner of Fair Trading. It forms no part of the functions of the Commissioner of Police to review a decision of the Commissioner of Fair Trading. 2. As indicated, the task of the Tribunal is to determine the correct and preferable decision in relation to the Applicant's licence application, having regard to the material before the Tribunal. Though the material which the Tribunal considers must be relevant material, there is no provision in the Act that restricts the scope of the Tribunal's inquiry to material which the Commissioner of Police is permitted to take into account. It follows that the scope of the Tribunal's factual inquiry is potentially wider than that of the Commissioner of Police. In the circumstances of this case, nothing turns on it, as the Tribunal's decision is not based on any criminal intelligence report which does not satisfy the requirements of section 19(3). 3. In relation to the second limb of the Applicant's submission on section 19(3), that section does not purport to define the phrase, "public interest". Its function is to limit the category of criminal intelligence reports to which the Commissioner of Police may have regard in investigating and determining whether a licence ought be granted or continued, or whether a licensee or potential licensee is a fit and proper person. 4. "Public interest" is not defined in the Act. The concept of public interest directs attention to that conclusion or determination which best serves the advancement of the interest or welfare of the public or of society: McKinnon v Department of Treasury (2005) FCAFC 142 per Tamberlin J at [8]. It allows for issues to be taken into account going beyond an applicant's character, and includes concerns relating to public protection, public safety and public confidence in the administration of the relevant licensing system: Constantin, at [33]. It requires consideration of the interests of the whole community, as opposed to private interests: Comalco Aluminium (Bell Jay) Limited v O'Connor and Others (1985) 131 ALR 657 at 681. The broad intention of the Act is "to rid the [tattoo] industry of any criminal or otherwise undesirable element", including the influence of outlaw motorcycle gangs, "and the avoidance of improper conduct": Smith at [20]. These objects are manifestly in the public interest. 5. Though the public interest is a relevant factor in deciding what is the correct and preferable decision in relation to a licence application, the restrictions imposed by section 19(3) on the Commissioner of Police do not purport to restrict the matters to which the Tribunal may have regard in taking into account the public interest, nor do they have that effect. 6. It is convenient now to consider what is the correct and preferable decision, having regard to the material before the Tribunal. Ms Purdie's evidence 1. Ms Purdie gave evidence consistent with the background information set out above. She said she has worked in the tattoo industry for 29 years, for the last 26 of which she has worked as a body piercer. 2. She said that she had invested well over $100,000 in the business, that her studio was highly regarded in the tattoo industry, that it employed two employees and had the services of eight contractors, that proper records were kept and tax paid. As a result of the decision under review, and because her application for a stay of that decision was unsuccessful, she said the business ceased to trade as of 15 July 2016. 3. She said the only income of herself and Mr Lincoln was from the business, that substantial rent was paid and payable in respect of it, that the couple were liable to repay a loan secured on their home, and that she had no experience in any other industry. She said that closure of the business would cause not only financial hardship to herself and Mr Lincoln, but also to their employees and contractors, who would be forced to find other work. 4. That evidence is uncontradicted, and I accept it as true. 5. She produced testimonials evidencing her professionalism as proprietor of the tattoo business. The respondents do not submit that she is not a person with a professional attitude to her work. I am satisfied that Ms Purdie has a professional attitude to her work. One testimonial was from her accountant of 11 years. He testified to her good character. In the absence of evidence to the contrary I am satisfied that she is of good character. The respondents do not suggest otherwise. 6. She said that Mr Lincoln had owned and operated the business with her for the last 11 years. She said he was a certified and qualified laser tattoo removalist, as was she. On 7 August 2014, she said, he was diagnosed with renal carcinoma, which had spread to his chest, back and head. One kidney was removed and the cancer was surgically removed from his back and head. She described other, non-life-threatening, conditions from which he also suffered, including arthritis, Paget's disease of the left hip, degenerative disc disease and medical carpal impairment. As a result of his impairments, she said he has restricted his activities in the business to laser removal and business administration, including website administration. 7. This evidence was unchallenged, and I accept it as true. 8. In her affidavit, Ms Purdie did not give evidence of Mr Lincoln's involvement in the Bandidos Outlaw Motorcycle Gang. However, her application for review lodged with the Tribunal on 11 July 2016 was supported by a signed but unsworn statement. In it, she denied that he was a member of the Bandidos. She said: Adam became a member of the Bandidos Motorcycle Club ("the Club") in 2003 and was Secretary of the club in that time. His activities with the Club consisted only in taking part in rides and in organising the Club to raise money for charity. Adam had no involvement in the Club beyond that. In July 2014 Adam was diagnosed with renal carcinoma cancer and early stage Paget's Disease in his left hip. He resigned and retired from the Club in October 2014. Since that time his only involvement with the Club has been to attend a funeral of a Club member. 1. In his own evidence, considered below, Mr Lincoln admitted to being the Vice President of the club in Sydney from 2008, after the former Vice-President went to gaol. I am satisfied that he had a very significant involvement in the club, beyond the matters referred to by the applicant. 2. The evidence is silent as to whether Ms Purdie was ever informed that Mr Lincoln became the Vice President. If she was told, her statement in support of her application lacked candour, considerably understating his role in the organisation, and was false to the extent that she said he "had no involvement in the club beyond that". If she was not told, then her knowledge of his involvement was seriously deficient, and her evidence in relation to his involvement is unreliable. However, none of this affects the finding that she is nevertheless of good character, as she has produced to the Tribunal positive evidence, through Mr Lincoln, of his activities as Vice President of the club. Mr Lincoln's evidence 1. Mr Lincoln gave evidence by way of a signed affirmation and oral evidence. He was extensively cross examined. He said he had resigned his membership of the Bandidos in 2014, and in July 2016 instructed his solicitor to notify the police of his resignation. In oral evidence, he added that he had 'retired' in 2013, which meant that he retained his membership but significantly restricted his activities with the club. 2. He described his life history. He said that he abused drugs and alcohol from 1985, and commenced a methadone program in 1986. In 1988, he returned to drug abuse and committed various offences, including drug offences, illegal use of a motor vehicle and theft. 3. His police record was before the Tribunal. It detailed various offences in 1986 and 1989, including stealing motor vehicles, break enter and steal offences, and at least one drug offence. No further offences were recorded until the period 1998-2000, when he was convicted of various driving offences. In this period, his recorded offences were not of the same seriousness as those previously recorded. No further offences had been recorded as at 8 February 2013, except for a driving offence in 2005 which was found proven without proceeding to a conviction. 4. Mr Lincoln admitted that, commencing in 1989, he served a term of imprisonment for his break enter and steal offences. After his release, in 1991, he resumed his abuse of drugs, including heroin. 5. In 1996, he said, he became aware that his neighbour was a member of the Bandidos. The neighbour introduced him to members of the gang. He began to attend their meetings and weekend rides. He enjoyed their comradery in their clubhouse, which was situated at Prospect near his home. He said he benefited from the club's policy, as it then was, of no heroin, opiates or needles, though he admitted that "pot, amphetamines and cocaine" were all allowed. 6. In 1999, he said, he became addicted to morphine and pethidine after suffering head injuries in a car accident. He committed various motor vehicle offences at this time, as detailed in the police record. He moved to Canowindra and undertook a drug rehabilitation program for a year. 7. In 2000, a member of the Bandidos helped him find accommodation in Parramatta. 8. In 2003, he said, he became a member of the Bandidos. He regularly took part in their activities and rides, including rides for charity. In June that year, he said, he commenced his relationship with Ms Purdie, who had been seeing another club member. He lived with her from late in 2003. 9. In 2004, he said, he became the club secretary. He said his duties included collecting membership fees, booking rooms and flights and organising charity rides. He said he stayed away from drugs and alcohol. In his oral evidence, he supplemented this evidence by admitting that, in order to collect membership fees, he would meet each and every member of the Club. He knew them all by name, but did not know whether the names he knew were their birth names or assumed names. It is a reasonable inference that his duties as secretary caused him to have an extensive acquaintance with the club's members, and I draw that inference. 10. In 2005, he said, he and Ms Purdie opened the tattoo business. 11. In 2008, he accepted an invitation to become the club's Vice President, and was elected unopposed. He admitted that the reason for his election was that the members saw him as the most responsible person for the position and one who was in a position to teach the Secretary what to do. I infer that he was a very well-known member of the Bandidos, with an unusually high level of experience in its workings and knowledge of its membership. 12. Later that year, he said, he started to reduce his attendance at club meetings, parties and charity rides, because he was becoming disillusioned with the club. He perceived that members of certain ethnic groups were joining the club and causing conflict within it and with other motorcycle clubs, that the drug "ice" was being used by club members, and that club rules were being ignored, including a rule against using the club name and insignia as a "standover tactic". 13. In 2009, he said, he purchased a home at Spencer near Wiseman's Ferry, which was quite distant from the clubhouse. He ceased attending all meetings except those which were compulsory. He continued to attend club funerals and an occasional run for charity. 14. On 26 March 2011, he said, Daniel Vella was shot dead while working at the business. He said the Coroner had cleared him and Ms Purdie of any involvement, but in that, he appears to have been mistaken. He produced the Coroner's report of 3 August 2015. The Coroner found that the identity of the killers remained unknown despite extensive investigation, and referred the matter to the Unsolved Homicide Unit of the Homicide Squad for further investigation. The Coroner made no finding as to who was, or who was not, involved in the killing. 15. Mr Lincoln speculated that the killing was directed at the victim personally. He said a detective had told him, after reviewing security footage, that the murderer waited for the victim to look at him before he shot him. Mr Lincoln said the killing did not arise from "bikie links or associations with me". 16. He produced various media articles reporting the killing. A number of them speculated that it was carried out by or at the directive of the Hell's Angels club. One speculated that the Hell's Angels had directed former Bandidos who had "patched over" or migrated to the Hell's Angel's gang to demonstrate their loyalty to their new club by "shooting up" a Bandidos business. 17. Mr Lincoln denied the accuracy of these reports. He accepted that he was a member of the Bandidos at the time, but said that his membership was the only link between the business and the club. Though he admitted that motorcycle club members "might" have been among their clients, he said that "colours" (a significant form of club insignia) were not permitted to be worn inside the studio. There would have been no reason for that rule, of course, unless the clientele did include members of motorcycle gangs, and I am satisfied that it did. 18. Mr Vella, he said, was not a member of any motorcycle gang, but had a lifelong interest in motorcycles. 19. In August 2014, Mr Lincoln said, he was diagnosed with renal carcinoma and early stage Paget's disease. In October that year, after surgery, he said he announced his resignation from the Bandidos at a club meeting. It was accepted. He stored his club "colours" and other paraphernalia in a box, which he placed in his garage. He said it was a club rule that such insignia should be picked up by other club members, but they never came. Eventually, he returned it to the club himself during the course of these proceedings. 20. Since his resignation, he said, he has attended two funerals of club members, and has not worn his colours. He said he had ceased abusing drugs and committing crime. 21. He said his medical conditions prevented him from working except in the tattoo business, and that he was not qualified for any other occupation. 22. Mr Lincoln was extensively cross examined about his membership of the Bandidos, the offices he held, and his continuing involvement. In particular, he was asked about his failure to return the box containing his colours until after these proceedings had been commenced. He did not resile from his evidence that he resigned in 2014, after moving to Spencer in 2009 and reducing the level of his involvement over a number of years. In oral evidence, he spoke with emotion in relation to his growing disillusionment with the club. He said he hates the club, for what it has done to his business. He made it clear that he was particularly upset at the apparent indifference of club members to his life-threatening condition, and their failure to visit him after his diagnosis with cancer. 23. I accept Mr Lincoln's evidence that he did not return the box containing his club paraphernalia because he was expecting club members to pick it up. I do not accept that he kept it because he wished to continue his membership. I am satisfied that the box has now been returned, and that he did in fact resign from the club, as he said, in 2014. I accept that he became disillusioned with the club for the reasons he gave. 24. Mr Lincoln produced a large quantity of character references, variously attesting to his professionalism in the studio, his good character and his charitable works. They were attached to a petition by local business owners in support of the grant of a tattoo licence to Ms Purdie. I accept that this business has the respect and support of other business owners in the area. I accept that Mr Lincoln has exhibited professionalism in his work in the business. I am satisfied that he has done charitable work. However, to the extent that the character references express awareness neither of his criminal record nor of his membership or offices in the Bandidos, they are not of real assistance in determining whether the correct and preferable decision is to grant the licence. There were five references, one from the firm's accountant, one from the President of the local Chamber of Commerce, and three from nearby residents at Spencer, which did record a knowledge of his former membership of the Bandidos. I give greater weight to those references, but they do not indicate a detailed knowledge of his positions or activities in the club, or of his criminal record, and for that reason are not persuasive. In the circumstances, it is not possible to make a finding in relation to Mr Lincoln's current character, though I am satisfied that he is well perceived in his local community. 25. One of the referees from the local community at Prospect was a retired police officer. He was aware of the tattoo business and the murder of Daniel Vella there. He said Mr Lincoln told him of a desire to resign from the Bandidos, but that he felt he should do it gradually in order not to upset other members. That is consistent with Mr Lincoln's own evidence, and I accept it as true. He also said that Ms Purdie and Mr Lincoln took it in turn to manage the tattoo parlour, "leaving very little home life with each other. There [sic, they] were basically ships in the night". 26. That evidence is uncontradicted and I accept it as true. It supports an inference that Mr Lincoln managed the business alone whenever Ms Purdie was not there. I draw that inference. I am satisfied that Lincoln is in a position to exercise significant influence over the conduct of the business, not only because of his part ownership and personal relationship with Ms Purdie, but also because he manages it alone when she is not present. 27. Mr Lincoln also produced a reference from another former police officer who was a client of the tattoo business. He had been a client of Daniel Vella. He said that over the years Mr Lincoln had been friendly, polite, pleasant and welcoming to him, that he did not believe Mr Lincoln had any continuing Association with the Bandidos, and that he had no reason to believe he was untrustworthy. It is clear that Mr Osborn knew of Mr Lincoln's involvement with the Bandidos, and to that extent his reference does not suffer from the problems associated with other references produced. It does not go so far as to say, in terms, that Mr Lincoln is a person of good character, but it is a favourable reference. I accept that Mr Osborne was treated politely as a client by Mr Lincoln over the years, including after the murder of Mr Vella. I take into account the fact that the reference is a favourable one, so far as it goes. 28. That, however, does not compel a conclusion either that the grant of a licence is in the public interest, or that the correct and preferable decision is that the licence be granted. Whether I accept Mr Osborn's opinions generally depends on an analysis of the evidence as a whole, including the confidential evidence produced by the Commissioner of Police, which is considered below. Evidence produced by the Commissioner of Police 1. As indicated, the Commissioner of Police produced evidence on a confidential basis and made oral submissions on it, also on a confidential basis. 2. [Not for publication] 3. [Not for publication] 4. [Not for publication] 5. [Not for publication] 6. [Not for publication] 7. [Not for publication] 8. [Not for publication] 9. [Not for publication] 10. [Not for publication] 11. [Not for publication] 12. [Not for publication] 13. [Not for publication] 14. [Not for publication] 15. [Not for publication] 16. [Not for publication] 17. [Not for publication] 18. [Not for publication] 19. [Not for publication] 20. [Not for publication] 21. [Not for publication] 22. [Not for publication] Summary 1. In summary, I am satisfied that Mr Lincoln ceased his long membership of the Bandidos in 2014, that he and Ms Purdie both have a professional attitude to their work, that Mr Purdie is of good character, and that the tattoo parlour is well respected among the business community in their area. 2. Though the respondents have not sought to prove that either the applicant or Mr Lincoln were involved in the murder of Daniel Vella, it is appropriate to record that I have seen no evidence which causes me to suspect the knowing involvement of either of them. 3. I accept that the decision under review causes some hardship, because the applicant and Mr Lincoln are unable to pursue their career of choice as owners of a tattoo parlour in which they have invested significant funds. However, there is no persuasive evidence that they are otherwise unemployable. In particular, there is no persuasive evidence that Ms Purdie is incapable of other gainful employment, including clerical and administrative work, or that Mr Lincoln, despite his infirmities, is incapable of some work in a sedentary capacity. He possesses skills in website administration, among other things, and is said by Ms Purdie to be a good people person. The evidence is silent as to the availability of suitable work in the labour markets reasonable accessible to them, but the evidence does not persuade me that they do not have at least the capacity for other gainful employment. 4. In determining the correct and preferable decision, the Tribunal must have regard not only to the evidence brought by the applicant, but also to the evidence of the respondents, which was adduced on a confidential basis. The applicant has not seen that evidence, except in part and in redacted form. 5. It is appropriate also for the Tribunal to have regard, not just to the interest of Ms Purdie, Mr Lincoln and their employees and contractors, but also to the public interest. That includes public safety, and ensuring that public confidence is maintained in the administration of the licensing system by removing the influence of outlaw motorcycle gangs and other undesirable persons from the tattoo industry. 6. Having regard to the confidential evidence, I am satisfied there is a real risk that the grant of the licence to Ms Purdie would facilitate the involvement in, and influence over, the business by a member or members of an outlaw motorcycle gang, or persons associated with crime. If the licence were granted, I could not be satisfied that improper conduct would not occur in respect of the business, by reason of that involvement. 7. For those reasons, while acknowledging the private interests of the applicant in obtaining a licence, it is not in the public interest that the licence application be granted. 8. Having regard to all the material before the Tribunal, and to all the findings above, whether in respect of the public interest or otherwise, the correct and preferable decision is to decline the licence application. 9. The decision under review is affirmed. I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 23 January 2017