Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Wade v Commissioner for Fair Trading [2017] NSWCATAP 33 Hearing dates: 30 November 2016 Date of orders: 17 February 2017 Decision date: 17 February 2017 Jurisdiction: Appeal Panel Before: K O'Connor, AM, ADCJ, Deputy President, Appeals S Montgomery, Senior Member Decision: Appeal dismissed Catchwords: OCCUPATIONAL REGULATION – Tattoo Parlours Industry – Refusal of operator licence – cancellation of tattooist licence – following adverse security determination by Commissioner of Police – Affirmed by Tribunal – Appeal – Whether Tribunal had regard to relevant considerations – Appeal dismissed. Legislation Cited: Administrative Decisions Review Act 1997 Civil and Administrative Tribunal Act 2013 Tattoo Parlours Act 2012 Cases Cited: Austin v Commissioner of Fair Trading & Commissioner of Police [2016] NSWCATAP 179 Commissioner of Police v Sleiman & AVS Group of Companies Pty Ltd & Ors [2011] NSWCA 21 GWVR and Director-General of Security [2010] AATA 1062 House v R [1936] HCA 40; (1936) 55 CLR 499 Wainohu v New South Wales [2011] HCA 24 Smith v Commissioner of Police, NSW Police Force & NSW Fair Trading [2014] NSWCATAD 184 State of New South Wales v Public Transport Ticketing Corporation (No 3) [2011] NSWCA 200 Category: Principal judgment Parties: Malcolm Victor Charles Wade (Appellant) Commissioner for Fair Trading (First Respondent) Commissioner of Police, NSW Police Force (Second Respondent) Representation: Solicitors: M Wade (Appellant in person) Crown Solicitor's Office (Respondents) File Number(s): AP 16/21487 Publication restriction: Section 64 of the Civil and Administrative Tribunal Act 2013 applies to the material filed by the Respondents on a confidential basis. That material is not to be released either to the Appellant or to the public. Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Administrative and Equal Opportunity Division Citation: Wade v Commissioner of Fair Trading [2016] NSWCATAD 149 Date of Decision: 18 July 2016 Before: A Scahill, Senior Member File Number(s): 1610139 REASONS FOR DECISION 1. Mr Malcolm Wade ('the appellant') has applied to the Tribunal for review of two administrative decisions, the combined effect of which is that he is no longer able to work in the tattoo industry either as a tattooist or as an operator of a business. He has worked in the industry in one or other of those capacities for most of his adult life. He is now aged 47 years. 2. In September 2014, he was granted a tattooist licence under the Tattoo Parlours Act 2012 ('the TP Act'). In September 2015, he applied under the TP Act for an operator licence. On 22 February 2016 the Commissioner for Fair Trading, the administrator of the TP Act ('the administrator'), as required (s 16(3)(c)), refused his operator licence application following receipt of an adverse security determination from the Commissioner of Police ('the Commissioner'). On 26 February 2016 the administrator, as required (s 26(1)(b)), cancelled his tattooist licence following receipt of another adverse security determination from the Commissioner. Ordinarily, the administrator may not cancel a licence without first suspending it and inviting the licensee to show cause why the licence should not be cancelled (s 26(3)) but this procedure is excluded where the cause of cancellation is an adverse security determination. 3. The Tribunal affirmed the two decisions: Wade v Commissioner for Fair Trading [2016] NSWCATAD 149. 4. He now appeals to the Appeal Panel for the reversal of the Tribunal's decisions. Legislative Background 1. The TP Act was enacted in 2012, and commenced full operation on 1 March 2013. It established a licensing system. The industry had previously only been regulated by laws relating to planning, health and safety, and the like. The new law sought to control strictly participation in the industry. A similar law has also been enacted in Queensland. 2. The TP Act created the two types of licence under notice in this case. An 'operator licence' must be held by any person who conducts a 'body art tattooing' business. A 'tattooist licence" must be held by any person who undertakes work as a body art tattooist. It is unlawful to conduct a body art tattooing business or to work as a body art tattooist without a licence. 3. The TP Act formed part of a broader legislative response by the Government to the problem of gang crime in New South Wales. 4. The Government informed Parliament that the new law was seen as an important means for dealing with the penetration of the tattoo parlour industry by groups described as outlaw motor cycle gangs. Outlaw motor cycle gang (OMCG) is a term commonly used to refer to motor cycle clubs that are perceived to engage in criminal activities, or have been formally declared to be criminal organisations under relevant laws. (In New South Wales, the original law allowing for declarations of that kind was the Crimes (Criminal Organisations Control) 2009. It was declared invalid by the High Court in June 2011: Wainohu v New South Wales [2011] HCA 24. The law was repealed and replaced by the Crimes (Criminal Organisations Control) Act 2012 (commenced 21 March 2012).) 5. The Minister said in introducing the Tattoo Parlours Bill to Parliament, that it formed part of the package which included the redrawn Crimes (Criminal Organisations Control) Act; and stated: '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' (2R speech, Legislative Assembly, 3 May 2012). 6. The Tribunal's reasons outlined the scheme of the TP Act: see Reasons, [6] to [24]. We will not repeat that detail here. There is a fuller account of the relevant provisions in Smith v Commissioner of Police, NSW Police Force & NSW Fair Trading [2014] NSWCATAD 184, and the other cases referred to in the decision under appeal at [6]. Decisions Under Review 1. Operator Licence: Two Grounds. In this case the Commissioner's delegate made an adverse security determination on both of the grounds provided for in s 19(1). He found that: (i) the appellant is not a fit and proper person to be granted the licence, (ii) it would be contrary to the public interest for the licence to be granted 1. Tattooist Licence: One Ground. In addition in light of the information considered in connection with the administrator's referral, the Commissioner's delegate undertook, as permitted by s 19(2) an own-motion investigation into the desirability of the appellant continuing to hold a tattooist licence. In this instance the delegate made no adverse finding as to the fitness of the appellant to hold a tattooist licence but determined that it would be contrary to the public interest for him to retain the licence. Tribunal's Approach regarding Criminal Intelligence Information 1. The Tribunal is not bound by the Commissioner's determination (s 27(3)(c)). The Tribunal is to decide what the correct and preferable decision is having regard to the material then before it, including any relevant factual material: section 63 of the Administrative Decisions Review Act 1997. Therefore, the Tribunal must evaluate all of the material that gave rise to the administrator's decision, including any criminal intelligence information, in deciding on the correct and preferable decision in the circumstances. In cases of the present kind, the Tribunal will, like the Commissioner did, undertake an assessment of the aggrieved person's fitness to have or retain the licence under notice and, in addition or alternatively, the degree of risk to the public interests upheld by the legislation if the aggrieved person is allowed to have or retain the licence under notice. 2. Criminal intelligence will often contain information that is hearsay in character, ranging from observations of the conduct of persons of interest to opinions about their associations and involvement in crime. 3. The Tribunal ordinarily proceeds by examining criminal intelligence information in closed session, as permitted by s 64 of the Civil and Administrative Tribunal Act 2013 ('the NCAT Act'), and as envisaged by s 27(4) of the TP Act if the Commissioner so requires. As a consequence it is not open to be tested by the person affected. As noted by the Downes J, the then President of the Administrative Appeals Tribunal, in GWVR and Director-General of Security [2010] AATA 1062 at [15]: '[I]t is difficult for a court or tribunal to deal with issues before it in circumstances in which the party whose vital interest is affected is not allowed to know precisely what is before the court or tribunal and, accordingly, cannot test the facts upon which it is based satisfactorily, or put satisfactory submissions'. 1. The reasons for decision of the Tribunal in a case of this type cannot be assessed solely by reference to what is said in the open reasons, even though the aggrieved party, as we have explained, can only have that record of the reasons against which to prepare and present their appeal. 2. In a situation like this, and in the absence of any special advocate (as to which in New South Wales, see Commissioner of Police v Sleiman & AVS Group of Companies Pty Ltd & Ors [2011] NSWCA 21; State of New South Wales v Public Transport Ticketing Corporation (No 3) [2011] NSWCA 200; and at Commonwealth level in cases challenging adverse national security assessments, GWVR) the Appeal Panel should, we think, take particular care to assess the closed reasons for adequacy. See also the comments of the Appeal Panel on this problem in appeals of this kind: Austin v Commissioner of Fair Trading & Commissioner of Police [2016] NSWCATAP 179 at [85]-[89]. 3. If there is no sworn evidence from the compilers of the intelligence information that might assist in providing context in relation to the records relied upon, the Tribunal will be left to determine the weight and significance of the intelligence entirely by reference to the internal contents of the documentation, and having regard to any evidence that may have been given in open session by, or in support of, the review applicant. So, for example, a single negative observation that is repeated several times in the documentation may be accorded little or no weight. A number of similar negative observations from a variety of sources over a span of time might attract significant weight. The Appeal 1. As provided by s 27(3)(b) of the TP Act, both the administrator and the Commissioner became respondent parties to the review application. They are now the respondents to the appeal, as first and second respondent, respectively. As is customary the Commissioner presented the case in support of the decisions under review, and appeared at the appeal hearing. The administrator has not actively participated in the proceedings. 2. Preliminary Matters: Mr Wade filed his Notice of Appeal on 18 August 2016. It was prepared by his then solicitors, Lyons, Barnett Kennedy Solicitors, Tamworth (LBK). Mr A Floyd of that firm had appeared on his behalf before the Tribunal below. The respondents filed their Reply on 5 September 2016. 3. On 27 September 2016 the Appeal Panel gave directions for the conduct of the appeal, setting a timetable for the exchange of submissions, and fixing a date for hearing. On 8 November 2016 LBK advised the Registry that they no longer held instructions in the matter. They also explained in that letter that their client had been unable to adhere to the timetable for exchange of submissions because of the length of time it had taken to get a transcript of the hearing by the Tribunal. It had only become available on 26 October 2016. 4. The Commissioner's solicitors sought a directions hearing to consider whether the case was ready to proceed on 30 November 2016. The Appeal Panel heard the parties on this issue on 28 November 2016, and decided to retain the date. The Appeal Panel directed that the appeal proceed on the basis of the material filed to date, i.e. the Notice of Appeal, the Reply, and the underlying material including the Transcript. 5. Mr Wade advised that he would be appearing on his own behalf at the hearing. 6. As had occurred at the Tribunal hearing, the Commissioner provided the Appeal Panel with an unredacted copy of the adverse security determinations. Mr Wade had a redacted version of its contents. 7. The Tribunal did not publish generally 13 paragraphs of its reasons relating to its account of the Commissioner's evidence. It did not publish 1 paragraph relating to the Commissioner's submissions. It did not publish 2 paragraphs relating to its findings of fact. It did not publish one paragraph of its decision as it related to the exercise of the public interest discretion. The Appeal Panel had a confidential copy of the Tribunal's unredacted reasons. 8. The Appeal Panel sought, so far as practical, to conduct its hearing in the presence of both parties, but there was one confidential session in which counsel for the Commissioner addressed the Appeal Panel without the appellant being presented. Grounds of Appeal 1. An appeal may be made to the Appeal Panel on 'any question of law', and, with the permission of the Appeal Panel, may be extended to 'other grounds': NCAT Act, s 80(2)(a). 2. The notice of appeal (as prepared by the appellant's then lawyers) identifies five grounds of appeal. It asks for orders setting aside the decisions of the Tribunal, and for the whole of the case to be reconsidered in accordance with the directions of the Appeal Panel. There is no application to extend the appeal to 'other grounds' i.e. matters other than questions of law. 3. We will deal with the appeal on the basis that it is a questions of law only appeal. Tribunal's Decision 1. In making the two adverse security determinations, the Commissioner relied on the same body of information. 2. In the open parts of the determinations, the Commissioner justified his findings by reference to: (a) 'a history of involvement in relevant serious criminal activity'; and (b) 'a demonstrated disregard for the law'. 3. The Commissioner acknowledged that the appellant had the necessary skills and experience to work as a tattooist and to operate a business. 4. As the Tribunal's reasons show, the appellant has had a long career in the tattoo industry both in New South Wales and Queensland. He has had extensive experience in operating businesses and working as a tattooist. He referred in his evidence to the presence in the industry of members of gangs now outlawed, and referred to the steps he had taken to avoid association with them, and to avoid having them as clients where he knew of their connection to gangs. There were a range of testimonials from customers and others in the local community that referred to the quality of his work. 5. The Tribunal, in its open reasons, began by examining the appellant's history of criminal offences as a young man in the years 1990-1993. They included offences of assault, larceny, and break, enter and steal. He served a prison sentence around 1990 for the offence of break, enter and steal (sentence imposed: one year and four months). The Tribunal noted that since, approximately, 1994 his reoffending has been much reduced. His subsequent history includes an offence of possession of marijuana (1999); and two apprehended violence orders (AVO) in 2012 and 2015; and driving offences, giving rise to four licence suspensions. 6. Without recounting in detail this history here, it is clear, we think, that his criminal history in the years since 1994/95 when he entered the tattoo industry has been much less serious than it was in his youth. It lends credence to his claims that he found a level of personal fulfilment in his work as a tattooist, in developing his artistic skills, and in working with clients that enabled him to move away from his criminal past. 7. In our view the key considerations for the Tribunal in deciding to affirm the Commissioner's decisions as revealed by its open reasons were the fact of the two recent AVOs, his poor driving offence history, and, most importantly, the degree and nature of the appellant's association with members of the Rebels. 8. The Tribunal acknowledged in its open reasons that, despite what might be seen as a relatively negative criminal and traffic history to that point, the appellant had been granted a tattooist licence in September 2014. At least at that point on the material considered, he was seen as a fit and proper person to be granted that licence, and no public interest concerns were raised. 9. The Tribunal noted there were three events of significance since that time – the second AVO a relatively short time after the previous one, and the visit to Mr Murray in hospital, to which we refer further below; and continued traffic and driving infringements. 10. The Tribunal essentially divided its treatment of the appellant's history into the matters not affected by criminal intelligence considerations, i.e. his criminal history, the AVOs, and the traffic record, and the matters that were affected by criminal intelligence consideration – the nature and degree of his association with members of the Rebels. Consideration of AVO History 1. At our hearing, the appellant referred frequently to the part of the Tribunal's reasons that dealt with the AVOs, and considered that these matters had been unfairly raised against him and unfairly treated by the Tribunal. 2. As at December, 2012 he and his partner were living apart, he in Queensland, she in Tamworth. She had the care of their son, then about 3 years old. On 28 December he went to her home in Tamworth. His conduct led to him being charged with two offences, common assault and breach of the AVO. In July 2013 he pleaded guilty to a charge of contravening a restriction/prohibition in an AVO and did so based on a set of agreed facts. He was fined $200. The common assault charge was withdrawn. The Commissioner acknowledged that the conduct had not been found to involve any act of violence, and was at the lower end of the scale. 3. The second AVO was issued on 5 August 2015 in Queensland on the application of his partner. He said that she decided to apply to rescind the order the next day, and the court made the order when they next travelled to Queensland, in May 2016. His evidence to this effect was recorded by the Tribunal (see Reasons [44]) and not questioned. There is further detail in the Tribunal's decision about aspects of their relationship including the division of responsibility in relation to the care of their son, and his and her sources of income. 4. Tribunal Assessment: The Tribunal fully exposes its consideration of the AVO history in its open reasons, as follows. (We have left in the references to the traffic history.) 102. Despite the Applicant's criminal history, he was considered fit to hold a tattooist licence in August 2014. Since this time there has been a further matter involving at the least, verbal intimidation of the Applicant's partner. When the facts of the events leading to the AVO is considered along with the Applicant's earlier record, it suggests a propensity towards intimidation in the Applicant's dealing with others. 130. Mr Wade did not express any remorse in relation to his breach of domestic violence order nor in relation to his motor traffic offences. There was no evidence presented to the Tribunal about how Mr Wade might prevent these matters occurring in the future or of any support he had obtained to assist him in changing his behaviour. In the circumstances, the Tribunal could not be satisfied that Mr Wade would not engage in this kind of behaviour in the future. 141. ....The Tribunal understands that the apprehended violence order was lifted at request of the Applicant's partner in May 2016. The behaviours involved which prompted the apprehended violence order – at the least, the shouting and the intimidation – were not denied by the Applicant. ... 1. The Tribunal summed up its view of his fitness to hold an operator licence at [144] as follows: Given the Applicant's criminal history, the repeated domestic violence and intimidation incidents and lack of compliance with road regulations, the Tribunal cannot be satisfied that the Applicant would demonstrate the integrity required of a tattoo parlour operator. 1. As noted earlier, the appellant's application for a tattooist licence was rejected only on public interest grounds. As to aspect of the Commissioner's case that turned on his AVO history and traffic record, the, the Tribunal concluded: 150. Given the Applicant's breach of an AVO and repeated traffic offences, the Tribunal cannot be satisfied that were compliance with tattoo industry regulation not to suit Mr Wade's desires in the future, that he would comply with such regulation. Degree and Nature of Associations with OMCGs 1. The key consideration in the Commissioner's determinations and the Tribunal's decision was, as we see it, their conclusions as to the degree and nature of the appellant's associations with members of OMCGs especially people in leadership positions in northern New South Wales. 2. The appellant denied that he had ever been a member of an OMCG. He denied any active association with persons who might be members of OMCGs. 3. The Tribunal set out in its open reasons his links to four persons with OMCG connections: Brent Murray; Aaron Simmonds; David Keen; Matty Brazier. 4. Mr Murray: The appellant depicted his contact with Mr Murray as no more than casual and occasional. Mr Murray was a local president of the Rebels in the Tamworth area at or around 2015. The appellant stated that he first met Mr Murray when he worked at Taree in the year 2000. The appellant said that between 2000 and 2015, he had had minimal contact with Mr Murray. 5. He acknowledged that in 2015 he did visit Mr Murray in hospital in Tamworth after Mr Murray was involved in a traffic accident. He stated that at that time he said to Mr Murray that he had heard that Mr Murray had joined the Rebels, and told him he was not welcome in his shop. He stated that he understood that the conversation with Mr Murray had been taped, covertly, by the police. He denied that he had he had visited Mr Murray with a view to getting his permission, as local Rebels president, to opening, in Tamworth, the parlour that is the subject of his operator's licence application. 6. Mr Simmonds: Mr Simmonds had at one time operated a tattoo parlour in Tamworth called Taboo Tattoo. The appellant told that the Tribunal that he had worked for Mr Simmonds there. The appellant acknowledged that he knew that Mr Simmonds was president of the local Rebels Chapter. He acknowledged that some years ago he had also stayed for three or four months on and off at Mr Simmonds' place. His evidence was to the effect that in recent years his association with Mr Simmonds was only casual or occasional. 7. Mr Keen: He agreed that he knew Mr Keen, and that he knew that Mr Keen was a Rebels member. He knew that Mr Keen and Mr Simmonds had been arrested for drug related matters. 8. Mr Brazier: He agreed that he knew Mr Brazier, who is now the local president of the Rebels. 9. Tribunal Assessment: In recounting the Commissioner's submissions in its open reasons, the Tribunal noted the Commissioner's submission that the level of fitness and propriety required in relation to an operator's licence is more stringent because the roles and responsibilities of an operator or owner are a more important aspect of the operation of the regulatory system for tattoo parlours. The Tribunal also noted that a refusal or cancellation of one level of licence may also influence the decision to refuse or cancel another level of licence, citing the cases of Smith and Austin v Commissioner for Fair Trading and Commissioner of Police [2015] NSWCATAD 30. 10. The Tribunal stated: 91 It was the Respondent's central submission that even if the Applicant were to be considered to be fit and proper to continue to hold a tattooist licence, he may not be fit and proper to hold an operator licence and it may not be in the public interest for him to hold either licence. 1. At paras [101]-[111] the Tribunal set out, what it described as, its 'Findings of Fact'. They included the following adverse finding in its open reasons in relation to the appellant's evidence. 109 The Tribunal considers on balance it was likely that the Applicant was well aware of Brent Murray's role in the Rebels OMC. Whether the conversation was staged or not it suggests that the Applicant was aware of the influence the Rebels might seek to have over the activities of the Applicant's proposed parlour. The contents of the Reading Speeches clarify that tattoo parlour operators and tattooists do not necessarily invite or welcome this influence. Operators and tattooists are themselves susceptible to intimidation. The Applicant himself may also be susceptible to this intimidation – willingly or otherwise. 1. [NOT FOR PUBLICATION] 2. [NOT FOR PUBLICATION] 3. Fitness: Legal Principles. The Tribunal then goes on to discuss the law's approach to the assessment of whether a person meets a statutory criterion that he or she be 'fit and proper' to hold a licence (the cases are well known). It includes in its discussion a reference to the use by a Tribunal of evidence of reformation of character, in circumstances where there is an adverse prior history. 4. At [129] it discounted the testimonials and references supplied by the appellant, because these statements did not display any knowledge of the appellant's background or criminal history. At [130], as we have noted above, it referred to the appellant's lack of remorse for his AVO and traffic history. 5. Application to Operator Licence: In its open paragraphs on the question of whether the appellant was a person of fit and proper character to be granted an operator licence, the Tribunal referred adversely to the following matters: * the appellant's 'long history of conduct that is of significant concern', namely the recent AVO, his overall driving record, and the fact that his drivers licence had recently been suspended because of repeated driving offences, and * the intimidatory behaviour that was the subject of the AVO. 1. It saw these more recent matters as indicating a 'continuing lack of willingness or capacity to cooperate with a public safety regulatory scheme' (para [141]). 2. It went on to state that 'the appellant's criminal background shows an indifference towards licensing and regulatory schemes that are aimed at ensuring public safety'. 3. The Tribunal did not question the appellant's immediate skills in tattooing and the relevance of his experience in the industry. 4. As we noted above, it concluded that he was not possessed of sufficient moral integrity to be trusted with an operator's licence. 5. Public Interest: Legal Principles: The Tribunal then discussed the law's approach to the discretions in licensing schemes allowing the refusal or cancellation of a licence in 'the public interest'. The Tribunal referred to well-known cases, noted the need to give particular regard to the statutory scheme and the policy considerations giving rise to regulation, in this instance referring to the emphasis found in the second reading speeches on ridding the industry of the influence of criminal gangs and of people with links to OMCGs. 6. Application to Operator Licence and Tattooist Licence: In its open reasons on this issue, the Tribunal said: In the Public Interest 145 [not for publication] 146 These factors referred to above contribute together with Mr Wade's criminal history and continuing disinclination to comply with motor traffic requirements to a conclusion that it would not be in the public interest for Mr Wade to become a tattoo parlour operator. 147 The Tribunal has considered whether it is in the public interest for Mr Wade to continue to hold a tattooist licence. 148 The Tribunal accepts that there have been no complaints put forward relating to Mr Wade's skill as a tattooist. 149 [not for publication] 150 Given the Applicant's breach of an AVO and repeated traffic offences, the Tribunal cannot be satisfied that were compliance with tattoo industry regulation not to suit Mr Wade's desires in the future, that he would comply with such regulation. In these circumstances the Tribunal is satisfied it is not in the public interest for Mr Wade to continue to hold a tattooist licence. 1. [NOT FOR PUBLICATION] Grounds of Appeal 1. The Grounds each challenge the way in which the Tribunal dealt with particular parts of the evidence, and the view it formed as to the appellant's suitability for one or other of the licences. We have approached the consideration of the grounds on the basis of the principles laid down by the High Court in House v R [1936] HCA 40; (1936) 55 CLR 499 at 504-5 per Dixon, Evatt and McTiernan JJ: The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred. 1. Grounds 1 and 3 are related. We will deal with these two grounds together. 1. Allowing material filed on behalf of the Commissioner that was inconsistent with material previously filed on behalf of the Commissioner in the Local Court.3. Concluding that the events leading to the AVO against Mr Wade suggest a propensity towards intimidation, in circumstances where there was no evidence of such behaviour in the material before the Tribunal in relation to that AVO. 1. We have set out the background to these Grounds of Appeal earlier in our reasons. As we noted there, the appellant was particularly critical in his oral submissions to us of the way the Tribunal dealt with his AVO history. We are not satisfied that the Tribunal misunderstood or misdirected itself in having regard to that history. 2. At the Tribunal hearing, it was put to the appellant a number of times in cross-examination that he had punched his partner on the jaw in the incidents that occurred on 28 December 2012. He repeatedly denied the allegation. We have set out the way in which the Tribunal dealt with the AVO history. It is plain that it did not make any findings of punching against the appellant, and confined its findings to ones of intimidatory behaviour, and shouting. It did not question the appellant's evidence as to the outcome of the August 2015 order. 3. In our view, the Tribunal did not misinform in the way suggested by the appeal grounds. It did not adopt the version of the facts found in the police brief. It was circumspect in its conclusions, in a way favourable to the appellant. 4. The Tribunal reached a general conclusion that the fact of two AVOs in the relatively recent past provided evidence of a propensity to 'intimidatory' behaviour on the part of the appellant. In our view that was a consideration open to be identified on the material, and was relevant to the determination of the matter. It was a factor in the Tribunal's final determination of the matter, but not the major one. There is nothing in the confidential reasons that affects this conclusion. Grounds 1 and 3 are rejected. 2. Rejecting the evidence of Ms Antoniou [a character referee] after finding that it was prepared without regard to Mr Wade's criminal history, when the reference expressly stated that it had regard to that history. 1. In support of this ground the notice submitted that her evidence went to his rehabilitation of character and bore directly on the fitness issue and the public interest issue. 2. This was a strong testimonial from a client, friend and former teacher now working in the justice system. Ms Antoniou referred several times in her testimonial, in general terms, to the appellant's prior criminal history, and stated that he had disclosed to her. 3. She was not called to give evidence. The appellant in his evidence swore that he gave her an updated criminal history, being the one supplied by the police. 4. The Tribunal was, we think, mistaken in suggesting, as part of its global remarks on the testimonials, that Ms Antoniou had not been informed appropriately. 5. However, we do not think that mistake played any significant role in the Tribunal's ultimate determination. It is clear from the open reasons, that the predominant concern of the Tribunal, as it had been for the Commissioner, was the nature and degree of the appellant's links to leading members of OMCGs. There is nothing in the confidential reasons which affects this conclusion. 6. Ground 2 is rejected. 4. Misconstruing its jurisdiction, when dealing with the issues of fitness and public interest as they related to both licences, by giving inappropriate weight to the risk that an OMCG may influence a tattoo parlour operator. 1. The Parliamentary record relating to the introduction and passage of the TP Act shows clearly that the Government and the Parliament as a whole had very real concerns that the tattoo industry as it had developed in Australia was heavily penetrated by OMCGs. Members of OMCGs are considered to be heavily involved in activities such as illegal drug manufacture and distribution, and money laundering. 2. As the Minister's statement to Parliament reflected, OMCGs are thought to have controlled many tattoo parlours in the past, and to have controlled who can open a tattoo parlour in places considered by them to fall within their territory. There is no error in having regard to this matter as a relevant consideration. The weight to be given to it is, ordinarily, a question of fact not law. 3. There is nothing in the confidential reasons that affects this conclusion. 4. Ground 4 is rejected. 5. Misconstruing its jurisdiction, when dealing with the fitness issue as it related to the operator licence, by giving too much weight to Mr Wade's traffic history and insufficient weight to Mr Wade's historical compliance with the tattoo parlour licensing scheme. 1. This Ground relates only to the refusal of the operator licence. 2. We will deal with the final part of this Ground first. The tattoo parlour licensing scheme is so new that little significance can be attached at this stage to an operator applicant's 'historical compliance' with the scheme. The appellant had held a tattooist licence for about two years when it was cancelled. It is the case that he had not been breached in any way in respect of his conduct under that licence. The Tribunal need not have given that factor any weight. A pre-TP Act record of compliance (in respect of such issues as health and hygiene practices, and planning laws) has little or no relevance to the matters that might form the basis for an adverse security assessment today. 3. The appellant's recent Queensland traffic record (as noted he primarily lived in Queensland between 2007 and 2015) resulted in a demerits points suspension of his Queensland licence (for 6 months from 25 November 2015), but its components are quite minor, and involve events that are a common driving experience for many drivers who attract a demerits points suspension. (He accumulated the demerit points in the period 2014-2015. There are no recorded offences in the year 2013. In the year 2014 there were three offences of exceed speed limit (3 x 13-20kmh (3 demerit points each); 1 x less than 13 kmh (1 point); 1 x drive defective vehicle (1 point); and 1 x disobey traffic light (3 points).) 4. Losing a licence due to an accumulation of demerit points is a familiar aspect of road law enforcement for many motorists today. In isolation, it would have little or no relevance to the grant of an operator licence or tattooist licence. However, both the Commissioner and the Tribunal saw it as a relevant factor to take into account as part of a mix of information relating to the appellant's history of breaches of the law, and a long record of traffic violations. 5. Material of this kind may have particular importance in assessing a business licence applicant's likelihood of compliance with the laws to which a business licence is subject, laws which will often be relatively complex and impose special duties on the licence holder in relation to management, facilities, record keeping and reporting. In this instance, the Tribunal was concerned over what his driving record, with four suspensions, might say over the appellant's general attitude to compliance with the law. 6. In this area of regulation, given the history of concerns that moved the Parliament to legislate, it will be desirable to have as licence holders people who are prepared to be co-operative with the regulators, which in a practical sense means both officers of the administrator and members of the Police Force. 7. Given those factors, we think it was reasonable for the Tribunal, like the Commissioner, to give weight to the appellant's overall record of compliance with the law, even if did extend to what may be seen as the relatively minor failure, viewed in isolation, of having incurred a demerits points licence suspension. The difficulty the appellant faced was this was yet another occasion on which he had incurred a licence suspension, and it belonged to a wider history. 8. We do not think this factor was irrelevant, and we do not think that the Tribunal gave it such weight or importance as to produce an unreasonable or unjust decision. There is nothing in the confidential reasons that affects this conclusion. Conclusion 1. No errors of law have been identified in the Tribunal's reasons. There was, as explained, no application in the notice of appeal to extend the appeal to other grounds. Accordingly the appeal is dismissed. Order Appeal dismissed. 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 Amendments 17 February 2017 - Corrected file number 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: 17 February 2017