Civil and Administrative Tribunal New South Wales Medium Neutral Citation: White v Commissioner of Fair Trading [2017] NSWCATAD 233 Hearing dates: 20 April 2017 Date of orders: 27 July 2017 Decision date: 27 July 2017 Jurisdiction: Administrative and Equal Opportunity Division Before: A Scahill, Senior Member Decision: (1) The Respondent's decision is affirmed. Catchwords: ADMINISTRATIVE REVIEW - tattoo parlours – tattooist licence - adverse security determination - fit and proper person - public interest Legislation Cited: Administrative Decisions Review Act 1997 Broadcasting Act 1942 (Cth) Civil and Administrative Tribunal Act 2013 Crimes (Criminal Organisations Control) Act 2012 NSW Evidence Act 1995 Tattoo Parlours Act 2012 Cases Cited: AJO v Director-General of Transport [2012] NSWADT 101 Austin v Commissioner for Fair Trading & Commissioner of Police [2016] NSWCATAP 179; Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 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 CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 Comalco Aluminium (Bell Bay) Ltd v O'Connor and Others (1995) 131 ALR 657 Commissioner for ACT Revenue v Alphaone Pty Ltd (1994) 49 FCR 589 Commissioner of Police v Toleafoa [1999] NSWADTAP 9 Constantin v Commissioner of Police, NSW Police Force (GD) [2013] NSWADTAP 16 Director General, Transport NSW v AIC (GD) [2011] NSWADTAP 65 Director General, Department of Transport v Z (No. 2) (GD) [2002] NSWADTAP 37 Director of Public Prosecutions v Smith [1991] VicRp 6; (1991) 1 VR 63 Hughes and Vale Pty Ltd v New South Wales (No.2) [1955] HCA 28; (1955) 93 CLR 127 Lal v Director-General, Department of Transport [2001] NSWADT 74 McCurday v Commissioner for Fair Trading [2017] NSWCATAD 35 Mielczarek v Commissioner of Police, New South Wales Police Force and Commissioner for Fair Trading [2016] NSWCATAD 34 Moore v Commissioner for Fair Trading and Commissioner of Police [2016] NSWCATAD 80 Obradovic -v- Commissioner for Fair Trading, Office of Fair Trading (GD) [2006] NSWADTAP O'Sullivan v Farrer [1989] HCA 61; (1989) 168 CLR 210 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 Re Queensland Electricity Commission and Ors; Ex Parte Electrical Trades Union of Australia (1987) 72 ALR 1 Re T and the Director of Youth and Community Services [1980] 1 NSWLR 392 Roberts v Commissioner for Fair Trading [2016] NSWCATAD 218 Saadieh v Director General, Department of Transport [1999] NSWADT 68 Smith v Commissioner of Police & Commissioner for Fair Trading [2014] NSWCATAD 184 Sobey v Commercial and Private Agents Board (1979) 22 SASR 70 Zahra v Commissioner for Police and NSW Fair Trading [2014] NSWCATAD 211 Category: Principal judgment Parties: Blake White (Applicant) Commissioner for Fair Trading (First Respondent) Commissioner of Police (Second Respondent) Representation: Counsel: Ms Mc Laughlin (Applicant) Mr El Hage (Respondent) Solicitors: Mr Giles (Applicant) Ms Power (Respondent) File Number(s): 2017/00049667 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, the first Respondent or to the public. REASONS FOR DECISION 1. On 16 January 2017, the Commissioner for Fair Trading (Fair Trading) refused an application by Blake White for a tattooist licence under the Tattoo Parlours Act 2012 (the Act). The reason for the refusal was because the Commissioner of Police (the Commissioner) had made an adverse security determination under s 19(1) of the Act. The Commissioner had determined that Mr White is not a fit and proper person to be granted the licence because he is a member of the Life and Death Outlaw Motorcycle Gang (OMCG) and it would be contrary to the public interest for the licence to be granted because of that membership. 2. Mr White lodged an application in the Tribunal on 15 February 2017, seeking review of that decision by the Tribunal. Mr White also lodged an application for a stay or interim order that would allow him to continue to work as a tattooist, pending the outcome of his NCAT application. That stay was not granted by the Tribunal. Nature of review 1. Under s.14 of the Act, Fair Trading refers a licence application to the Commissioner of Police 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. Fair Trading must then refuse to grant a licence, if the Commissioner of Police has made an adverse security determination about the Applicant. 2. 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 (s 27(1) the Act). 3. On review, however, the Tribunal is not bound by the security determination and must make a fresh determination, based on the information before it, 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. See Austin v Commissioner for Fair Trading & Commissioner of Police [2016] NSWCATAP 179 at [37]). 4. In this matter, the Commissioner of Police took the lead role and presented the case for the Respondents. The issues for determination 1. The issues in this case are therefore whether Mr White 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. The major factor in determining these issues is Mr White's membership of and/or association with the Life and Death OMCG. Mr White's Case 1. Mr White provided an affidavit and gave evidence. Mr Gregory Smart, Mr White's employer at the time of his application for licensing, also provided an affidavit and gave evidence. 2. Mr White also provided written and oral submissions to the Tribunal. Mr White's evidence 1. Mr White has worked as a tattooist in the Body Craft tattoo parlour in Belmont for Mr Greg Smart since January 2012. Mr White commenced as an apprentice in Mr Smart's business. He has not worked in any other parlour. Application for tattooist licence 1. Mr White contended that he first lodged his application for a tattoo licence during August 2013 with the assistance of Mr Smart and other staff at the parlour. He used Mr Smart's credit card to pay the fee. He said that during September 2013, Fair Trading sent paperwork back to him asking him to re-do it. Mr White completed the paperwork again and sent it to Fair Trading. When he had not heard anything from Fair Trading about the licence, he contacted Fair Trading. Fair Trading told him to contact the police. The police told Mr White that they didn't know anything about his application. Mr White was concerned because the application fee had not come up on Mr Smart's credit card bill. Accordingly, Mr White re-did his application. It was acknowledged by Fair Trading as lodged on 19 December 2013. He recalled sending some original documents and close associate forms to an address in Parramatta. 2. Mr White continued tattooing pending the outcome of his application. He understood he was entitled to do this because he had made an application prior to 1 October 2013. Mr White thought that under the transitional provisions in the new legislation, he was permitted to continue to tattoo while his application was being considered. 3. Mr White told the Tribunal that if his application which he had originally lodged in August 2013 was recorded as being received after the cut-off date in October 2013 – it was a Department of Fair Trading's fault, not his. When he received the notice of the refusal of his application in January 2017, he stopped work immediately. 4. The parlour was regularly visited by police, four monthly, to inspect compliance. Mr White displayed his receipt, what he understood to be, an interim licence number, as did others at the parlour, as required. He was never told he was tattooing illegally. Membership of Life and Death 1. Mr White said he had first joined Life and Death in February 2013. He had an interest in motorbikes. He could not learn to drive a car – as there was no-one available to teach or supervise him. Some of his mother's old friends had been members of Life and Death. He joined because he liked riding and socialising. He became a "nom" – a non-official member – and then a full member of the Newcastle chapter in December 2013. The reason he had decided to join Life and Death, was that growing up he didn't have many male figures in his life. He had not known his father. He admired traits in certain members. He said they were just Aussie blokes. 2. Mr White provided a history of Life and Death and its founding by Bob Kitchener. He talked about the rules and disciplinary processes. He named six members who broke away to form the Swansea chapter because they were concerned by some of the activities of the group. They were himself and: * Warren Guffog; * Terry Macey * Brian Phillis * Jeff Firkin; and * Lee Warren. 1. Mr White said that there had been issues around the Swansea and Boolaroo groups. There had been issues about members patching over to, and from, other OMCGs. He said there had been issues around loyalty, territory and violence with the Bandidos. Eventually the Swansea chapter clubhouse closed down. 2. Mr White said that members of Life and Death only came to visit him in the parlour without wearing their colours. They were not his clients. 3. He does not hold office in the hierarchy of Life and Death. He continues to be a member. Apprehended violence order 1. Mr White referred to the apprehended violence order obtained by a former employee of Body Craft after an incident at the parlour in January 2014. Mr White said that the term of the order had now expired. He had not been able to attend the final hearing and the order had been made. He did not however agree that he had done anything to justify the order. At Mr Smart's request, he had spoken to the former employee who had been badmouthing other tattooists in the parlour. He did say to the former employee: "If you were a bloke – I'd knock your block off." 1. He told the Tribunal that he did not regard this as a threat. Allegations of Intimidating police 1. On 30 November 2013, the police had attended near Life and Death's clubhouse at Redhead. It was alleged that Mr White had approached the police car and asked them what they were doing. He had then reassured the Police that Life and Death "looked after the area". He was then alleged to have checked the licence plate of the unmarked police car. 2. Mr White said that he didn't deny the event but could not recall it. Mr White's traffic record 1. Mr White obtained his motorbike learner's permit in September 2008. His record shows the following matters: * Not display P sign; * Ride without a helmet; and * Speeding by more than 30 km and less than 45 km. 1. He has also been breached in respect of non-compliance with regulations relating to his bike's handle bars. 2. Mr White's explanation of these matters was that he was unaware that his P sign had fallen off; he was wearing a helmet – but it did not comply with requirements; and he had just had the handle bars fitted on that day and that he had rectified the problem. 3. He had successfully appealed the length of the licence suspension for the speeding offence. 4. Mr White said that these matters did not display a disregard for licensing requirements. Evidence of Mr Gregory Smart 1. Mr Smart provided an affidavit and gave evidence before the Tribunal. Mr Smart is a licensed operator of Body Craft tattoo parlour Pacific Highway Belmont. Mr Smart employed Mr White. He is also a friend to Mr White. Mr Smart has been in the tattoo industry for 25 years. He opened his current parlour Body Craft in late 2006 in Belmont. He first met Mr White in late 2007/early 2008. In January 2012, Mr White started as an apprentice in Mr Smart's business. Mr Smart allowed Mr White to stay in his flat behind his home as he was an apprentice and he was not making any money and had difficulties living in his own home. After an initial period of observation of other tattooists, Mr White started doing a few tattoos on his own. He slowly built a body of work and clientele. Around May to June 2013, Mr White was finally starting to earn enough money to stay alive on his own. Mr Smart stated that Mr White had a good deal of talent and he was happy to have him working at Body Craft. His work was bringing in many clients. 2. Mr Smart had told all the tattooists about the changes in the industry in August 2013. He told the tattooists working for him that they needed to have their applications in before 1 October 2013. Mr Smart stated that he was pretty sure that Mr White's application for a tattooist licence went in three days after Mr Smart's own application in mid-August 2013. Both his own and Mr White's applications came back a number of times, as Fair Trading said that something hadn't been properly completed. Each time they made the necessary changes and sent the applications back in. After 1 October 2013, Mr Smart contacted Fair Trading to find out the status of Mr White's application. Fair Trading and the Police each told him to contact the other body. At some point, he was told that they had lost Mr White's application altogether. He understood that this had happened because Mr White's application had been sent to Belmont police station which had closed for renovations. They advised Mr White to reapply. Mr Smart assisted Mr White to redo his entire application send it back in. 3. Mr Smart said that he might have called the Department of Fair Trading about 60 times over the last four years to follow-up on the applications. He thought the process had been a mess. He thought that he had realised in either December 2013 or January 2014 that the payment for Mr White's application had not gone through on his credit card, despite the earlier application. He thought that he had to do a close associate form for Mr White because he was an apprentice, not an employee. He recalled sending documents to an office in Parramatta as part of the process. 4. Mr Smart said he would not have allowed Mr White to work as a tattooist if he did not think that Mr White had a valid application in, as it would affect his own application for an operator's licence. Mr Smart received his operator's licence on 7 March 2017. Except for Mr White, all the other tattooists at his shop got their licences within eight weeks. While Mr White was waiting to hear about his licence, Mr White continued to tattoo because they had his application number on the wall as required. Police made regular checks of the parlour. They never said anything about Mr White working. 5. Mr Smart said that they had a strong policy at the parlour that they didn't deal with bikers because of the harassment from the police about the bikie connections. When Mr White first started working in Mr Smart's parlour, he was not a member of any motorcycle club. Mr Smart later became aware that Mr White was hanging with a bunch of guys from the motorcycle club at the Swansea clubhouse from time to time. 6. Mr Smart stated that he has no affiliation with any outlaw motorcycle clubs. Mr Smart is aware that Mr White did join the Life and Death club, but this had no impact on his parlour or Mr White's work. Mr White keeps his membership completely separate from his tattoo work. Mr Smart stated that Mr White is a highly professional tattooist and very trustworthy. He never saw Mr White wearing colours at work. Mr Smart considered that Mr White is a professional tattooist. He is a fit and proper person to be a tattooist. He thought that there was no reason the public should have any concern about him being a tattooist. The Applicant's submissions 1. Mr White provided written and oral submissions. These submissions were of course, unable to address the confidential material put to the Tribunal in Mr White's absence. Not fit and proper Membership of Life and Death 1. Mr White had a lack of male role models growing up. He had been caring for his alcoholic mother. There was no-one in his family to teach him to drive. He had obtained a motorbike licence. He loved to ride and socialise. He had been a member of Life and Death since February 2013. It was not a declared organisation under the Crimes (Criminal Organisations Control) Act 2012 NSW. He had never been found to be a controlled member of such an organisation. 2. His membership of Life and Death should not be considered as rendering him not fit and proper or for it not to be in the public interest for him to hold a tattoo licence. There was nothing in the Act which stated that membership of an outlaw motorcycle gang is a basis for refusing a tattooist licence. Parliament would have expressed this, if that were its intention. 3. There was no evidence connecting him to criminal activity or to behaviours or to concerns raised by the licensing regime. Disregard for licensing 1. Mr White's explanation of why he had continued to work as a tattooist until he was advised in January 2017 of the refusal of his licence, should be accepted. It had not been put to him that his account of the application process was false. His evidence was corroborated by Mr Smart. 2. He had no criminal record. 3. The other issues raised – the fact of the apprehended violence order, his traffic infringements and the alleged disregard for licensing - should not separately or in combination be sufficient to prevent him from being a licensed tattooist. 4. There was nothing in the redacted materials which connected him with criminal activities. There was no evidence of criminal activities by Life and Death around Belmont and Swansea. 5. His traffic infringements did not demonstrate a disregard for licensing. Three out of four of them did not relate to his manner of driving. There was one speeding offence. He had been successful in appealing the length of his suspension. His traffic record was ordinary and unremarkable. Further, the Tribunal should consider that as a member of an outlaw motorcycle gang, he was stopped by police far more often than the average person. 6. The Tribunal should reject that the AVO was evidence of a willingness to engage in intimidatory behaviour. The matter had arisen from a workplace dispute. There had been no intimidation. There had been no findings of fact made by the Local Court. He had abided by the apprehended violence order. The Tribunal should prefer the versions provided by Mr White and Mr Smart. 7. There was no evidence offered in open court of Mr White's alleged intimidation of police. Public interest 1. There was no evidence in the Respondent's determination that outlaw motorcycle gangs form a significant threat to the tattooing industry. The reference to insurance claims by individuals connected to outlaw motorcycle gangs being rejected because of OMCG membership was an irrelevant consideration to this matter. A media article was not objective evidence. Relevant cases 1. Mr White referred to previous Tribunal decisions in the matter of Zahra; Smith Roberts and Mielczarek. In those matters, there had been specific evidence showing direct links between criminal activity and either the parlour involved or the Applicant themselves. Mr White's circumstances were different. Mr White's case, there was no criminal activity link with Body Craft or Mr White. There was no evidence of Mr White having engaged in antisocial behaviour. There was no known connection between Body Craft and outlaw motorcycle gangs. There was no evidence that Mr White held a position within the hierarchy of Life and Death. There was no evidence of any intimidation or money laundering associated with tattoo parlours, outlaw motorcycle gang members, Mr Smith or Body Craft. See Mielczarek v Commissioner of Police, New South Wales Police Force and Commissioner for Fair Trading [2016] NSWCATAD 34; Roberts v Commissioner for Fair Trading [2016] NSWCATAD 218; Smith v Commissioner of Police & Commissioner for Fair Trading [2014] NSWCATAD 184 and Zahra v Commissioner for Police and NSW Fair Trading [2014] NSWCATAD 211. 2. In the matter of McCurday, the Tribunal had said that there could never be a situation where there would be no risk and that this should not stop an Applicant from being licensed. However, the risk in Mr McCurday's matter was judged as not being sufficiently high to prevent him having a licence. Mr White submitted that the actual risk in his circumstances was as low as it was in relation to Mr McCurday, who was seeking to be an operator. Mr White was seeking to hold only a tattooist licence. There was only a small and theoretical risk in relation to Mr White. See McCurday v Commissioner for Fair Trading [2017] NSWCATAD 35 The Respondents' case 1. The Respondent relied upon a statement and oral evidence from Mr Peter Flematti, licensing adviser, customer experience in the Department of Finance, Services and Innovation. 2. The Commissioner provided documents pursuant to section 58 of the Administrative Decisions Review Act 1997. Confidential material 1. The Commissioner also relied upon confidential material. Evidence of Mr Peter Flematti 1. Mr Peter Flematti, Licensing Advisor, customer experience, in the Department of Finance, Services and Innovation, provided a statement and oral evidence. Mr Flematti oversees the processing of tattoo licence applications. Mr Flematti noted that there was no record of Mr White having made an application for a tattooist licence prior to 19 December 2013 in the Department's records - either in hard copy or electronically. Mr Flematti noted that on 28 August 2013, Gregory Smart, submitted an application to Department of Fair Trading for an operator's licence. The application did not refer to Mr White as a proposed employee. On 16 January 2017, Department of Fair Trading wrote to Mr Smart informing him that Mr White's application for a tattooist licence had been refused. Mr Smart responded on 23 January 2017 that Mr White would not be employed as a tattooist. 2. Mr Flematti gave evidence of the process of registering application for a tattooist licence. One group receipts incoming applications. An application cannot proceed unless the fee has been attached. The application then passes to the next level processing. There are both hard copy files and online files for applications. Telephone calls received would not generally be recorded on files. Services New South Wales offices were also involved in the process, but phone calls to them would not be noted on files. Confidential information provided by Respondent 1. The Applicant was provided with the adverse security determination in a redacted form. An unredacted copy of that document was provided to the Tribunal on a confidential basis in a closed session. 2. The Tribunal heard evidence in a closed session, in the absence of the Applicant and his counsel under section 49 of the CATA. The Commissioner provided documents, oral evidence and submissions to the Tribunal on a confidential basis in the absence of the Applicant. The Applicant is aware that a confidential session took place but he was not made aware of the information that was presented. 3. The Tribunal made orders under section 64 of the CATA, preventing the publication of these documents to the Applicant and any other person. This order was made on the basis of the Respondent's statement that the documents should remain confidential under section 27 (4) of the Tattoo Parlours Act 2012, because they involved criminal intelligence. 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] The Respondents' submissions 1. The Respondents relied on the section 58 documents. The Respondents made both oral and lengthy written submissions. Some of the submissions were made in the closed session concerning confidential material. The Tribunal sets out the Respondent's written submissions as follows. 2. The Tribunal must assess whether Mr White is fit and proper and whether it is in the public interest to grant him a tattooist licence. Fit and proper 1. The expression "fit and proper" is not defined in the TP Act or Regulations. It is well established that, in considering the meaning of those words, the Tribunal will have regard to the context in which the words appear in the first instance: CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384, at 408; also, Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, [69]. 2. Here, the relevant contextual matters include the following: 1. The TP Act imposes requirements that would have the effect of eradicating criminal elements/links from the tattooing industry: see the Second Reading Speech to the Tattoo Parlours Bill 2012: Mr Anthony Roberts, Legislative Assembly, 3 May 2012. As the Tribunal stated in Smith ([49]), "[e]ntry to the industry is restricted by the licensing scheme in order to protect the public interest by diminishing the likelihood of criminal activity within the industry." See Smith v Commissioner of Police NSW Police Force & NSW Fair Trading [2014] NSWCATAD 184 2. There are strict prohibitions on carrying on a body art tattooing business without a tattooist licence. Parliament has provided for penalties to be imposed against persons who violate those prohibitions: s. 6 of the TP Act. 3. An Applicant for a licence must consent to having his or her fingerprints and palm prints taken by police to confirm his or her identity; s. 13. 4. There is a mandatory requirement for the Commissioner to assess an Applicant's fitness and propriety (s. 14). That determination is not subject to review; 5. The First Respondent is precluded from granting a licence in the circumstance where the Commissioner makes an adverse security determination; s. 16(3). Case authorities on fit and proper 1. In addition to these contextual matters, the Tribunal would have regard to the relevant authorities which provide guidance as to the meaning of the expression "fit and proper." These authorities were usefully summarised in more recently in Smith, [39]- [41] see Smith v Commissioner of Police NSW Police Force & NSW Fair Trading [2014] NSWCATAD 184, as follows. 2. A useful review of the authorities was provided in the case of AJO v Director-General Department of Transport [2012] NSWADT 101 at paragraphs [24] to [35]: Assessment of whether a person is fit and proper to be the holder of a licence is different from, but related to, an assessment of whether a person is of good character. 1. In Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321, Chief Justice Mason explained that, at 380: The question whether a person is fit and proper is one of value judgment. In that process, the seriousness or otherwise of particular conduct is a matter for evaluation by the decision maker. So too is the weight, if any, to be given to matters favouring the person whose fitness and propriety are under consideration. 1. Toohey and Gaudron JJ said at 380: The expression "fit and proper person", standing alone, carries no precise meaning. It takes its meaning from its context, from the activities in which the person is or will be engaged and the ends to be served by those activities. The concept of "fit and proper" cannot be entirely divorced from the conduct of the person who is or will be engaging in those activities. However, depending on the nature of the activities, the question may be whether improper conduct has occurred, whether it is likely to occur, whether it can be assumed that it will not occur, or whether the general community will have confidence that it will not occur. 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. A person's fitness is to be gauged in the light of the nature and purpose of the activities that the person will undertake. In Hughes and Vale Pty Ltd v New South Wales (No. 2) [1955] HCA 28; (1955) 93 CLR 127 the High Court said (at 156-7): The expression 'fit and proper' is of course familiar enough as traditional words when used with reference to offices and perhaps vocation. But their very purpose is to give the widest scope for judgment and indeed for rejection. '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. (emphasis added) 1. In Sobey v Commercial and Private Agents Board 20 SASR 70 Walters J said: In my opinion, what is meant by that expression is that the Applicant must show not only that he is possessed of a requisite knowledge of the duties and responsibilities evolving upon him as the holder of a particular licence ... but also that he is possessed of sufficient moral integrity and rectitude of character as to permit him to be safely accredited to the public ... as a person to be entrusted with the sort of work which the licence entails, (emphasis added) 1. Fitness and propriety are flexible concepts. A consideration of whether a person is fit and proper involves an assessment of their knowledge, honesty and ability in the context of the role they are seeking to undertake. In Obradovic -v- Commissioner for Fair Trading, Office of Fair Trading (GD) [2006] NSWADTAP 18 the Appeal Panel agreed that a formerly licensed building contractor should have his application for a new licence refused, despite there being no evidence that he was dishonest or of bad repute. Evidence that he had been extremely tardy and intransigent in dealing with customer complaints, and the regulator, when he held a licence, was sufficient to conclude that he was not fit and proper for the role. In that case, the licensing scheme was among other things, designed to protect consumers and to provide them with adequate means of redress against licensed contractors. In Bond, the assessment occurred in the context of whether the Applicant was a fit and proper person to hold a licence under the Broadcasting Act 1942 (Cth). 2. In Saadieh v Director General, Department of Transport [1999] NSWADT 68, Hennessey DP set out the factors to be considered in determining a person's suitability and fitness to obtain a taxi authority. They are: - the nature, seriousness and frequency of any criminal offences for which the Applicant has been arrested or convicted; - the Applicant's reputation in the community; and - the likelihood that the Applicant will re-offend, be the subject of further complaints or commit further traffic offences. 1. In Director General, Transport NSW v AIC (GD) [2011] NSWADTAP 65 the Appeal Panel, at [37] the Appeal Panel drew attention to the role public interest considerations play in the assessment of fitness and propriety. 2. The courts have emphasised the connection that assessment of repute, fitness and propriety have in a regulated context with public interest considerations. Repute, fitness and propriety involve concepts that should not be 'narrowly construed or confined' and may extend to 'any aspect of fitness and propriety that is relevant to the public interest' (Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 (26 July 1990) at [64] per Mason CJ. 3. The discretion vested in a decision maker in determining whether a person is fit and proper, in any given context, was said by the Full Court of the Federal Court in Commissioner for ACT Revenue v Alphaone Pty Ltd (1994) 49 FCR 589 at 389, per Northrop, Miles and French JJ, to "give wide scope for judgement and allow broad bases for rejection." 4. As was made clear by Toohey and Gaudron JJ in Bond, issues of character and reputation may play a determinative role in deciding whether a person is fit and proper. Their Honours also clearly highlighted that there is a difference between the two. They explained that an assessment of character is relevant because it is an indicator of a person's likely future conduct when considering how a person might act in the context of the role they are seeking to undertake. Reputation on the other hand, provides an indication of the public perception of future conduct in that role. In Re T and the Director of Youth and Community Services [1980] 1 NSWLR 392, Waddell J explained, at 393: A distinction must be drawn between "repute" or "reputation" and "character" or "disposition". The word "character" is sometimes used as meaning a person's reputation, but "reputation" is not ordinarily used to mean character. The distinction has been referred to in many decisions of the courts. 1. Thus, as with fitness and propriety, assessment of character is to be made in the context of the nature and purpose of the activities that the person is seeking to undertake. In Director General, Department of Transport v Z (No.2) (GD) [2002] NSWADTAP 37 the Appeal Panel explained: 'Good repute' refers to the way reasonably-minded people assess an individual's current reputation, with reasonably precise knowledge of those matters that put the person's reputation in doubt. The fact that the person produces evidence from witnesses who vouch in general terms for the person's reputation cannot be conclusive. Equally, care must be taken, as we see it, not to use the 'good repute' requirement as a way of bringing into consideration stereotypes or assumptions which offend, for example, against human rights or antidiscrimination standards. 1. Fitness and propriety is a question of fact for the decision maker to determine objectively based on the all evidence. 2. In contrast to character, the Applicant's reputation is an estimate provided by others, such as by those who live in his neighbourhood, those who work with him, or those with whom he associates in his occupation. The Appeal Panel in Director General, Department of Transport v Z (No. 2) (GD) [2002] NSWADTAP 37 stated at paragraph [38]: 38. Good Repute: The approach to be adopted in considering 'good repute' is well explained by Waddell J in [Re T and Anor and the Director of Youth and Community Services [1980] 1 NSWLR 392]. The Appeal Panel also considers it in a forthcoming decision, Lo -v- Director-General, Department of Transport [2002] NSWADTAP 39. 1. 'Good repute' refers to the way reasonably-minded people assess an individual's current reputation, with reasonably precise knowledge of those matters that put the person's reputation in doubt. The fact that the person produces evidence from witnesses who vouch in general terms for the person's reputation cannot be conclusive. Equally, care must be taken, as we see it, not to use the 'good repute' requirement as a way of bringing into consideration stereotypes or assumptions which offend, for example, against human rights or anti-discrimination standards. Case Authorities on Public interest 1. In Smith, see Smith v Commissioner of Police NSW Police Force & NSW Fair Trading [2014] NSWCATAD 184 the Tribunal set out a summary of the principles that govern the concept of "public interest" (at [42]- [47]): The Courts and the Tribunal have held that the concept of the 'public interest' is designed to give the broader interests of the community priority over private interests. In Comalco Aluminium (Bell Bay) Ltd v O'Connor and Others (1995) 131 ALR 657 at 681 the Wilcox CJ and Keely J said: The purpose of the reference to public interest is to ensure that private interests are not the only matters taken into account: to make clear that the interests of the whole community are matters for the Commissioner's consideration. The effect of the reference is to amplify the 'scope and purpose' of the legislation. Discretion to make a decision "in the public interest" is not confined except by the scope and purpose of the legislation itself: 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) 72 ALR 1 at 5. 1. 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 1. 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. 1. 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]. 2. 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. Respondents' Submissions on Not fit and Proper 1. The Respondents submitted that Mr White's membership of Life and Death outlaw motorcycle gang of itself meant that he was not fit and proper to be licensed as a tattooist. 2. Mr White had shown disregard for licensing schemes generally. He kept tattooing at least until January 2017 when his application was refused. He was not entitled to do so as he had not lodged an application for a licence prior to 1 October 2013 as required by the interim licensing procedures. 3. Mr White had committed 4 traffic offences since August 2013. 4. Mr White had shown willingness to engage in intimidatory behaviour. He had been subject of an apprehended violence order taken out by a former employee of Body Craft. His own evidence before the Tribunal was that he had said to the employee: "if you were a bloke I'd knock your block off." This showed a readiness to intimidate. 1. Further, Mr White had not denied behaviour towards the police when they attended near the Life and Death club house. He had not denied saying "We are looking after this area", or of checking the numberplates of the police car. Respondents' Submissions on Not in the public interest 1. The Respondent submitted that Mr White's membership of Life and Death outlaw motorcycle gang presented a significant risk to others and other businesses. It presented a risk of criminal threats to safety and property because of the practices of such gangs. The decision maker could not be confident that improper conduct would not occur or that the public would not be at risk if Mr White were granted the licence. 2. Mr White had no criminal offences. However, he was a long-term and active member of Life and Death. The Second Reading speeches made it clear that Applicants who are part of this world can and should be refused tattooed licences. 3. It was also not in the public interest for Mr White to be granted the licence as he had demonstrated willingness to engage in intimidatory behaviour. This was evidenced by the apprehended violence order and his interactions with the police. Further, his continuing membership of Life and Death contributes to a public perception of him as being someone who may engage in threatening and intimidatory behaviour. 4. There is record of Mr White being issued with a noise abatement direction on 28 October 2012 after a complaint from neighbours about loud music and drumming at his home. On 19 August 2012 police had issued Mr White with an infringement notice due to noise. 5. The Respondents provided copies of a number of newspaper articles which concerned court proceedings in which an insurance company had declined to make payment upon an insurance policy taken out by members of an outlaw motorcycle gang. 6. Photographs were also provided from Mr White's Facebook page which showed that he had advertised that he was continuing to tattoo in July 2016 although he was not entitled to do so. His licence application had not been lodged prior to the cut-off date of 1 October 2013. Respondents' confidential submissions 1. The Respondents made the following submissions on the confidential material before the Tribunal. 2. [Not for Publication] 3. [Not for Publication] 4. [Not for Publication] The Tribunal's consideration of the law and the evidence Case law on Fit and Proper 1. The expression "fit and proper" in the context of the TPA was considered in Moore v Commissioner for Fair Trading and Commissioner of Police [2016] NSWCATAD 80 at paragraphs [16-23] by Senior Member Montgomery as follows: 16. This expression has been considered in numerous matters in this Tribunal and in other jurisdictions. The concept of 'fit and proper' takes its colour from its statutory context and a person's fitness is to be gauged in the light of the nature and purpose of the activities that the person will undertake. 17. In Smith, see Smith v Commissioner of Police NSW Police Force & NSW Fair Trading [2014] NSWCATAD 184, at paragraphs [19] - [20] I (SM Montgomery) stated: [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. 19. An assessment of whether a person is fit and proper to be the holder of a licence is different from, but related to, an assessment of whether a person is of good character. The concept of 'fit and proper' takes its colour from its statutory context and a person's fitness is to be gauged in the light of the nature and purpose of the activities that the person will undertake. In Hughes and Vale Pty Ltd v New South Wales (No. 2) [1955] HCA 28; (1955) 93 CLR 127 the High Court said (at 156-7): "The expression 'fit and proper' is of course familiar enough as traditional words when used with reference to offices and perhaps vocation. But their very purpose is to give the widest scope for judgment and indeed for rejection. '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." 20. The 'fit and proper' test applied in the Act is of broad application. The discretion vested in a decision maker in determining whether a person is fit and proper, in any given context, was said by the Full Court of the Federal Court in Commissioner for ACT Revenue v Alphaone Pty Ltd (1994) 49 FCR 589 at 389, per Northrop, Miles and French JJ, to "give wide scope for judgement and allow broad bases for rejection. 21. In Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321, Chief Justice Mason explained that, at 380: 'The question whether a person is fit and proper is one of value judgment. In that process, the seriousness or otherwise of particular conduct is a matter for evaluation by the decision maker. So too is the weight, if any, to be given to matters favouring the person whose fitness and propriety are under consideration.' 22. Toohey and Gaudron JJ said at 380: "The expression "fit and proper person", standing alone, carries no precise meaning. It takes its meaning from its context, from the activities in which the person is or will be engaged and the ends to be served by those activities. The concept of "fit and proper" cannot be entirely divorced from the conduct of the person who is or will be engaging in those activities. However, depending on the nature of the activities, the question may be whether improper conduct has occurred, whether it is likely to occur, whether it can be assumed that it will not occur, or whether the general community will have confidence that it will not occur. 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." 23. 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. This Tribunal draws the following principles from Senior Member Montgomery's analysis: * Fitness and propriety must be considered in the light of the particular calling for which the Applicant is seeking a licence and the statutory intention of the relevant Act; * Issues of the Applicant's character are relevant; * Past conduct is a relevant guide to future conduct; * Fitness and propriety includes issues of honesty, knowledge of the calling and ability in the skills of the calling; and * The decision maker should consider all information both "for and against" when determining fitness and propriety. Case law on the '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 [2014] NSWCATAD 184 Senior Member Montgomery set out a number of authorities in which the concept of the public interest has been considered (at [42-47]). In Roberts v Commissioner for Fair Trading [2016] NSWCATAD 218 Senior Member Montgomery said that the authorities referred to in Smith indicated that: (a) The 'public interest' is a term embracing matters, among others, of standards of human conduct and of the functioning government and government instrumentalities. The interest is therefore the interest of the public as distinct from the interest of an individual or individuals. (b) 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. (c) An Applicant's personal interests in retaining his licence cannot outweigh the public interest in having full confidence in the professionalism of people involved in the security industry. (d) The "public interest" allows 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. 1. He went onto say: "Public confidence in the scheme and regulatory requirements under the Act is a public interest consideration. In the Second Reading Speech, Mr Roberts stated that the public interest test under the Act "is designed to address the criminal matters currently surrounding the industry, such as ... personal violence". The scheme has as one its objectives the exclusion of persons with criminal tendencies from the tattooing industry, with a view to protecting public safety." Findings of fact 1. Where the Tribunal in this matter needs to be satisfied of a fact in this matter, the Tribunal does so on the civil proceedings standard of proof set out below in section 140 of the Evidence Act 1995. 140 Civil proceedings: standard of proof (1) In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities. (2) Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account: (a) the nature of the cause of action or defence, and (b) the nature of the subject-matter of the proceeding, and (c) the gravity of the matters alleged. Membership of Life and Death 1. Mr White told the Tribunal that he has been a member of Life and Death commencing as a "nom" in February 2013. He continues to be a member of Life and Death. Lodgement of application for a tattooist licence 1. The Tribunal is satisfied that the Respondent has no available record of Mr White having lodged an application for a tattooist licence prior to the cut-off date of 1 October 2013. The Tribunal accepts that the first application available in the Respondent's records is an application made by Mr White on 19 December 2013. Based on documentary evidence, the Tribunal is satisfied that Mr White was tattooing without a licence and without interim authority to do so, from 1 October 2013 until January 2017, when he ceased once advised of the refusal of his licence. 2. Both Mr Smart and Mr White were adamant that Mr White took action to lodge an application for a tattooist licence in August 2013 and prior to 1 October 2013, the cut-off date for obtaining an interim licence while his substantive application was being processed. Neither were shaken in their evidence about this. There were discrepancies between Mr White's and Mr Smart's evidence on the sequence of events and the dates and details about re-submission of documents. The Tribunal is satisfied on balance, however, that Mr White thought that he had done what was necessary to apply before the 1 October 2013 cut-off date and that he could lawfully continue tattooing until his application was determined. The Tribunal is not satisfied that Mr White was knowingly tattooing without a licence contrary to law between 1 October 2013 and January 2017 when he was advised that his application had been unsuccessful. 3. In these circumstances, the Tribunal does not consider that Mr White has demonstrated a lack of compliance with and respect for regulation under the Act. Lack of respect for regulation 1. The Tribunal notes that Mr White has no criminal record. 2. The Tribunal notes that Mr White was subject to 2 noise abatement infringements by police in 2012, when he was 20/21 years of age. Mr White is now 25 years old. There have been no further such incidents. 3. Mr White's explanation of his traffic infringement matters demonstrates some insight into these issues. The Tribunal does not consider that this record as a whole demonstrates, a lack of respect for regulation which would cause the Tribunal to consider Mr White as not fit and proper to be licensed as a tattooist or for it to be contrary to the public interest for him to be licensed. Intimidatory behaviour 1. Mr White's own account of what occurred in the tattoo parlour workplace, prompting the taking of an AVO against him, raises concern about violence in the industry. Mr White's threat was conditional to his female victim – "If you were a bloke, I'd knock your block off." Inherent in this statement is both menace to his victim and the conclusion that he "would knock the block off" of a male colleague. This is not acceptable behaviour in a workplace. It is also specifically contrary to the intention of the Act to eradicate criminal and violent behaviour from the tattoo parlour industry. Mr White told the Tribunal he did not think what he had said was a threat. 2. Mr White did not recall nor contradict his alleged comments to police attending near the Life and Death clubhouse on 30 November 2013 that Life and Death "looked after this area". The Tribunal understands this to mean that Life and Death claimed the territory exclusively from other gangs and that there was a readiness to defend that territory from others by threat of violence. The Tribunal is satisfied that the attending police felt intimidated by Mr White's approach to their vehicle and his statements. 3. [Not for Publication] 4. [Not for Publication] 5. [Not for Publication] 6. [Not for Publication] 7. [Not for Publication] 8. [Not for Publication] Findings on Fit and Proper 1. There are factors in Mr White's favour as to his fitness and propriety to be licensed as a tattooist. The Tribunal is not aware of any complaints about his tattooing skills. Mr White does not have a criminal record. His traffic record is modest. 2. Mr White is a motor bike enthusiast and he enjoys socialising with other enthusiasts. None of these factors are against Mr White obtaining a tattoo licence. 3. The Tribunal understands that Mr Smart thinks well of Mr White's tattooing skills. Mr White wishes to make tattooing his career. Despite the impact a licence refusal may have on Mr White, any financial hardship that will be occasioned by the decision is not relevant to the assessment of a person's fitness and propriety (Austin v Commissioner for Fair Trading & Commissioner of Police [2016] NSWCATAP 179 at [73]; Lal v Director-General, Department of Transport [2001] NSWADT 74 at [47]). 4. Mr White remains a committed member of Life and Death. The following statement made by Senior Member Walker in Mielczarek v Commissioner of Police, New South Wales Police Force and Commissioner for Fair Trading [2016] NSWCATAD 34 at [138] is applicable in the current circumstances (although reference in that decision is to the Rebels OMCG and not the Life and Death Club): "In the present context, the correct position seems to be that membership of an OMCG such as the Rebels is a major factor in the consideration of fitness and propriety and may come close to establishing a prima facie case, but that other factors, such as the Applicant's criminal history or lack of one, and his or her other known activities or qualities, may prevent, or alternatively reinforce, an inference of lack of fitness or propriety." 1. The Tribunal does not consider that Mr White's membership of an outlaw motorcycle gang, in itself, renders him not fit and proper to be licensed as a tattooist. 2. Fitness and propriety should be determined in the context of the role that Mr White seeks to undertake. The Tribunal is satisfied that Mr White's willingness to engage in intimidatory behaviour in the tattoo parlour workplace, prompting the AVO, demonstrate his lack of fitness and propriety for the specific role of a tattooist. Further the Second Reading speeches make it clear that the Act specifically aims to eradicate intimidation and violence from the industry. 3. As indicated by the Tribunal in Saadieh, (see Saadieh v Director General, Department of Transport [1999] NSWADT 68) the Tribunal may take into account steps taken by an Applicant to change past behaviours when considering whether to grant a licence. Mr White showed no insight into the concerns that his version of the matters leading to the AVO raised in giving evidence to the Tribunal. He was cross-examined about the incident. He denied that what he had said was a threat. He had the opportunity to reflect and commit himself to a different course of behaviour in the future. He did not do so. 4. The Tribunal notes that on Mr White's evidence he had undertaken the dealing with the workmate which included the threatening behaviour to the workmate, at the behest of Mr Smart – a man he holds in high esteem. 5. Mr White's statement to police that "we look after this area" demonstrates a willingness to engage in behaviour threatening violence to defend the Life and Death club's territory. While this was not directly connected to a tattoo parlour – a willingness to engage in violence in an unlawful context contradicts Mr White's assertion of fitness and propriety. Again, Mr White had an opportunity to reflect on this behaviour when the incident was put to him. While he stated he could not recall it, he might also have offered that it was not behaviour he would engage in in the future. He did not do so. The public interest 1. Mr White's willingness to engage in intimidatory behaviour, is also contrary to the public interest in ensuring that criminal behaviour and violence are eradicated from the tattoo parlour industry. 2. Mr White was prepared to put himself forward to intervene on behalf of the club, to protect territory, when police approached the Life and Death Clubhouse on 30 November 2013. 3. [Not for Publication] 4. [Not for Publication] 5. The Tribunal is satisfied, considering the above factors, that it is not in the public interest for Mr White to hold a tattooist licence. Decision 1. The Tribunal finds that Mr White is not fit and proper to be licensed as a tattooist. 2. The Tribunal finds that it is not in the public interest for Mr White to be licensed as a tattooist. Orders 1. The decision of the Respondent to refuse the licence 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: 27 July 2017