Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Stevens v Commissioner for Fair Trading [2017] NSWCATAD 213 Hearing dates: 17 November 2016 and 25 January 2017 Date of orders: 30 June 2017 Decision date: 30 June 2017 Jurisdiction: Administrative and Equal Opportunity Division Before: S Montgomery, Senior Member Decision: (1) The decision under review is affirmed. Catchwords: ADMINISTRATIVE REVIEW - tattoo parlours – operator licence - adverse security determination –fit and proper person - public interest Legislation Cited: Tattoo Parlours Act 2012 Cases Cited: Austin v Commissioner for Fair Trading & Commissioner of Police [2016] NSWCATAP 179 Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 Hallman v Commissioner for Fair Trading and Commissioner of Police [2017] NSWCATAD 136 Hughes and Vale Pty Ltd v New South Wales (No.2) (1955) 93 CLR 127 Smith v Commissioner of Police & Commissioner for Fair Trading [2014] NSWCATAD 184 Sobey v Commercial and Private Agents Board (1979) 22 SASR 70 Category: Principal judgment Parties: Grant Allen Stevens (Applicant) Commissioner for Fair Trading (First Respondent) Commissioner of Police, NSW Police Force (Second Respondent) Representation: Counsel: C Mantziaris (Respondents) Solicitors: Benjamin & Khoury Solicitors and Attorneys (Applicant) NSW Crown Solicitor's Office (Respondents) File Number(s): 2016/00378276 Publication restriction: Section 64 of the Civil and Administrative Tribunal Act 2013 applies to the material filed by the respondents on a confidential basis, to those paragraphs of these reasons identified as [Not for publication], to the evidence given in private before the Tribunal and to the record of that part of the proceedings conducted in private pursuant to s 49. That material is not to be released to either the applicant, first respondent or to the public. REASONS FOR DECISION 1. The Applicant, Grant Allen Stevens, has applied for an operator licence under the Tattoo Parlours Act 2012 ("the Act") in regard to his business XIII Crown Street Customs ("the business"). The Applicant operates a tattoo parlour at premises located in Huskisson NSW ("the premises"). 2. The Commissioner for Fair Trading ("Fair Trading") refused to grant the licence application as a result of the adverse security determination ("the ASD") issued by a delegate of the Commissioner of Police ("the Commissioner"). The Commissioner had inquired into the application and determined that: (a) the Applicant is not a fit and proper person to be granted the licence, due to his criminal history and (b) it would be contrary to the public interest for the Applicant to be granted the licence, because of his criminal history. 1. The Applicant does not have an extensive criminal history. In 1991 he was the subject of an assault charge. In relation to that charge the Court made orders pursuant to section 556A of the Crimes Act 1900 finding the offence proven but without proceeding to conviction. He was released subject to a good behaviour bond. In 2006 he was fined $200 for the damage incurred as a result of his negligent driving. The Tribunal's jurisdiction 1. The Tribunal's jurisdiction to determine applications for review under the Act has been considered in several matters. It was discussed by Senior Member Ransome in Hallman v Commissioner for Fair Trading and Commissioner of Police [2017] NSWCATAD 136. The Hallman matter is also relevant to these proceedings in that Mr Hallman has been linked to the Applicant as an employee in the business. 2. As Senior Member Ransome noted: * A person whose application for a licence under the Act has been refused may apply to this Tribunal for an administrative review of that decision; * Where Fair Trading has referred a licence 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, and the Commissioner has made an ASD, Fair Trading must refuse to grant the licence; * On review, the Tribunal is not bound by the ASD and must make a fresh determination, on the basis of the information before it: see Austin v Commissioner for Fair Trading & Commissioner of Police [2016] NSWCATAP 179 at paragraph [37]). 1. The issues in this case are therefore 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. 2. The major factors relevant to a determination of these issues are the Applicant's history and also his more recent behaviour that has given the Commissioner cause for concern. 3. [Not for publication] Consideration Fit and proper 1. The expression 'fit and proper' is not defined in the Act but is a common statutory term and has been considered by this Tribunal and in other jurisdictions in numerous cases. 2. In Hughes and Vale Pty Ltd v New South Wales (No.2) (1955) 93 CLR 127 at 156-7 the High Court said: 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. 'Fit' (or 'idoneus') with respect to an office is said to involve three things, honesty, knowledge and ability ... When the question was whether a man was a fit and proper person to hold a licence for the sale of liquor it was considered that it ought not to be confined to an inquiry into his character and that 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. 1. This view has been adopted in numerous cases before this Tribunal. 2. In Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 380 Toohey and Gaudron JJ said: 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. The list is not exhaustive but it does indicate that, in certain contexts, character (because it provides indication of likely future conduct) or reputation (because it provides indication of public perception as to likely future conduct) may be sufficient to ground a finding that a person is not fit and proper to undertake the activities in question. 1. They went on to say at 388: 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. 1. In Sobey v Commercial and Private Agents Board (1979) 22 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 devolving 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. 1. Fitness and propriety needs to be determined by reference to the activities in issue and is to be gauged in light of the nature and purpose of the activities that the person will undertake. 2. In Smith v Commissioner of Police & Commissioner for Fair Trading [2014] NSWCATAD 184, in the context of the Act, I stated at paragraphs [19] – [20]: [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. Public interest 1. In general, the concept of the public interest is designed to give the broader interests of the community priority over private interests of individuals. In Smith v Commissioner of Police & Commissioner for Fair Trading at paragraphs [42] – [47] I set out a number of authorities in which the concept of the public interest has been considered. 42. 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. 43. Discretion to make a decision "in the public interest" is not confined except by the scope and purpose of the legislation itself: O'Sullivan v Farrer [1989] HCA 61; (1989) 168 CLR 210 at 216 per Mason CJ, Brennan, Dawson Gaudron JJ. Applying a public interest test is a question of fact and degree: Re Queensland Electricity Commission and Ors; Ex parte Electrical Trades Union of Australia [1987] HCA 27; (1987) 72 ALR 1 at 5. 44. In Director of Public Prosecutions v Smith [1991] VicRp 6; (1991) 1 VR 63 the Court held: "The public interest is a term embracing matters, among others, of standards of human conduct and of the functioning of government and government instrumentalities tacitly accepted and acknowledged to be for the good order of society and for the well-being of its members. The interest is therefore the interest of the public as distinct from the interest of an individual or individuals" 45. 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" 46. The Tribunal has also found that an Applicant's personal interest in retaining his licence cannot outweigh the public interest in having full confidence in the professionalism of people involved in the security industry: Blissett v Commissioner of Police, New South Wales Police; Webb Protection Australia Ply Ltd v Commissioner of Police, New South Wales Police [2006] NSWADT 114 at paragraph [32]. 47. 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. The material before the Tribunal 1. The Applicant relies on his own evidence. He provided written statements and also appeared at the hearing, gave evidence and was cross-examined. He also relies on a number of written character references that were provided on his behalf. The authors of those references clearly hold the Applicant in high regard. 2. Mr Khoury also provided both written and oral submissions on behalf of the Applicant. 3. The Commissioner relies on the ASD and a significant amount of material that underlies the ASD. The Applicant has been provided with a redacted copy of the ASD. 4. An unredacted copy of the ASD has been provided to the Tribunal on a confidential basis and the Commissioner provided information to the Tribunal in the absence of the Applicant. The Applicant is aware that a confidential session took place but he is not aware of the information that was presented in that confidential session. 5. Mr Mantziaris provided both open and confidential submissions in support of the Commissioner's case. The Applicant's case 1. The Applicant gave evidence about his work history and about his involvement in the tattoo industry. 2. He started the business in July 2012 and had been operating it until the determination to refuse his licence application. Mr Brett Hallman and Ms Stevie Lea Nixon worked in the business. He has known Ms Nixon for about three years. He met Mr Hallman in Sydney and has known him for about twelve years but has always known him as Brett Hilton. He is now aware of Mr Hallman's criminal history but did not know the full history at the time he employed him. The Applicant said that at the time Mr Hallman was being stood over by bikies and that he had suggested to Mr Hallman that he relocate to the south coast. 3. The business receives a percentage of the taking from clients for the tattoo artwork performed and also receives some income from other goods and services such as jewellery, creams and piercings. 4. The Applicant said that he had worked in the security industry for about 10 years. He obtained a security licence in about 1998. He worked for Serco Sodexho Defence Services (SSDS) on the HMAS Albatross in Nowra for five years. He also worked as security at the St Georges Basin Country Club and the Huskisson Club. He said that he had not worked in the security industry anywhere else. 5. He injured his back in about 2002 and from that point forward found it difficult to do manual labour. He worked as a private massage therapist thereafter. 6. The Applicant gave evidence that he is involved in a business known as BK Pharma Health that is based in Thailand. BK Pharma Health is an internet business which deals with weight loss supplements and other products. Many of the clients of the business are elite athletes seeking performance enhancing supplements. He made an initial investment of $6000 in that business and the returns from that investment make up a significant proportion of his monthly income. His evidence is that his business partners undertake most of the activities in that business. 7. The Applicant denied that he has any criminal associations or association with any outlaw motorcycle gangs ("OMCG"). He stated that he does not pay any monies to, or receive any monies from any OMCG although he does not dispute that from time to time he has been aware of persons who are OMCG members. He provided references from individuals who indicated that they had not seen him associating with OMCG members. The Commissioner's case 1. The Commissioner relies on the ASD and the records held by Police which underlie that determination. The Applicant has been provided with a redacted version of the ASD. The unredacted version has been provided to the Tribunal on a confidential basis and has not been provided to the Applicant. 2. A confidential hearing was held in the absence of the Applicant, his legal representatives and the public. The Commissioner's confidential material was presented in that hearing and the Commissioner had the opportunity to present submissions in relation to that material. 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] 23. [Not for publication] 24. [Not for publication] 25. [Not for publication] 26. [Not for publication] 27. As noted above the Applicant provided evidence in regard to his involvement with Lee Haines and Keith Weafer in a Thailand based partnership named BK Pharma Health. The Commissioner has expressed concerns about that business and questions the truthfulness of the Applicant's evidence in regard to his involvement in that business. 28. [Not for publication] 29. The Commissioner has also expressed concerns about the Applicant's evidence and submits that he lacked candour under cross-examination. The Commissioner questioned the accuracy of the evidence in relation to the Applicant's role in the BK Pharma Health business and the financial return that he receives from that business. 30. The Commissioner relies on the confidential evidence and contends that there significant differences between the Applicant's evidence and the confidential evidence. 31. The Commissioner submits that the confidential material and the Applicant's lack of candour support the finding that the Applicant is not a fit and proper person to hold the operator licence that he is seeking and that it is not in the public interest for him to do so. On that basis the decision should be affirmed. Discussion 1. The issues in this case are therefore whether the Applicant is a fit and proper person to be granted an operator licence and whether it would be contrary to the public interest for the licence to be granted. 2. The Commissioner's case that the Applicant is not a fit and proper person rests on the confidential material which has not been made available to the Applicant. Clearly, this places the Applicant in a difficult position in that he is unable to respond to that material. In these circumstances it is important that the Tribunal scrutinises that material so as to limit the unfairness to the Applicant as far as possible. For that reason I have scrutinised the material carefully. 3. I propose to take the confidential material that is held in relation to the Applicant into account, notwithstanding that the Applicant has not seen that material and has not had an opportunity to respond to it. 4. [Not for publication] 5. As noted, the Applicant's criminal convictions are limited in nature and are not recent. I do not consider that the criminal record alone is sufficient to warrant the refusal of an operator licence. 6. The Applicant's evidence is that he has no recent convictions and he denied that he has engaged in recent criminal conduct or that he has any associations with OMCGs. However, the confidential material suggests that the Applicant has not been totally candid in his evidence. 7. I have considered the confidential material closely and I am satisfied that it is probable that the evidence that the Applicant gave before the Tribunal was either incomplete or not accurate. 8. [Not for publication] 9. [Not for publication] 10. [Not for publication] 11. If the Applicant's evidence is truthful, it must follow that the confidential evidence is not accurate. I do not accept that that is the case. 12. The references on which the Applicant relies are limited to the knowledge and observations of the authors. None of the references contradicts the confidential material. In the circumstances I give those references little weight. 13. After considering all the evidence, I am of the view that the Applicant is not a fit and proper person to hold the licence that he is seeking. 14. [Not for publication] 15. For completeness I also find that in the circumstances, it would not be in the public interest for the Applicant to be granted the licence. Order 1. 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: 30 June 2017