Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Holdstock v Department of Fair Trading [2018] NSWCATOD 200 Hearing dates: 9 July 2018 Date of orders: 21 December 2018 Decision date: 21 December 2018 Jurisdiction: Occupational Division Before: S Montgomery, Senior Member Decision: 1. The decision by the Department of Fair Trading to refuse to grant the Applicant a tattooist licence is set aside. 2. In substitution the decision is made that the application for a tattooist licence is granted. Catchwords: ADMINISTRATIVE LAW – adverse security determination –Tattooist's licence – fit and proper person – public interest Legislation Cited: Tattoo Parlours Act 2012 Tattoo Parlours Regulation 2013 Civil and Administrative Tribunal Act 2013 Administrative Decisions Review Act 1997 Cases Cited: Austin v Commissioner of Fair Trading and Commissioner of Police [2016] NSWCATAP 179 Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 Commissioner for ACT Revenue v Alphaone Pty Ltd (1994) 49 FCR 589 DLY v Commissioner for Fair Trading [2018] NSWCATAD 125 at [26] Hughes and Vale Pty Ltd v New South Wales (No 2) [1955] HCA 28; (1955) 93 CLR 127 In Sobey v Commercial and Private Agents Board (1979) 22 SASR 70 Moore v Commissioner for Fair Trading and Commissioner of Police [2016] NSWCATAD 80 Mumby v Commissioner for Fair Trading [2017] NSWCATAD 27 at [21] Smith v Commissioner of Police, NSW Police Force & NSW Fair Trading [2014] NSWCATAD 184 Category: Principal judgment Parties: Luke Holdstock (Applicant) Department of Fair Trading (First Respondent) Commissioner of Police, NSW Police Force (Second Respondent) Representation: L Holdstock (Applicant in person) Counsel: M Kalyk (Respondents) Solicitors: Crown solicitor (Respondents) File Number(s): 2018/00114467 Publication restriction: Pursuant to section 64(1)(d) of the Civil and Administrative Tribunal Act 2013 any confidential evidence filed with the Tribunal is not to be disclosed without further order of the Tribunal. ​ Reasons for Decision Introduction 1. Mr Holdstock ("the Applicant") has applied for administrative review of the decision made by the Department of Fair Trading to refuse his application for a tattooist licence under the Tattoo Parlours Act 2012 ("the Act"). A tattooist licence authorises the licensee to perform body art tattooing procedures in accordance with the Act and the conditions of the licence. 2. His application for a tattooist licence was refused after the Commissioner of Police made a security determination under section 19(1) of the Act. The Second Respondent determined that: 1. The Applicant was not a fit and proper person to be granted the licence; 2. It would be contrary to the public interest for the Applicant to be granted the licence. 1. The refusal was on the basis that an adverse security determination had been made by the Commissioner of Police and the Commissioner for Fair Trading must not grant a licence where an adverse security determination has been made by the Commissioner of Police about the Applicant. 2. An unredacted copy of the adverse security determination has been filed with the Tribunal on a confidential basis. That information is subject to an order under section 64(1) of the Civil and Administrative Tribunal Act 2013. 3. The Respondents submit that the decision to refuse the Applicant a tattooist licence should be affirmed, on the two grounds identified in the security determination. Applicable legislation 1. Section 7(1) of the Act creates an offence of an individual performing any body art tattooing procedure for fee or reward unless authorized to do so by a tattooist licence. Section 9 provides for the granting of tattooist licences. A licence authorises the licensee to perform body art tattooing procedures in accordance with the Act and the conditions of the licence. 2. Section 16(1) of the Act confers on the Chief Executive a general power to deal with licence applications and to grant or refuse a licence. Section 16(3), provides that the Chief Executive must not grant a licence if an adverse security determination has been made by the Commissioner about the Applicant. Issues for consideration 1. The issues in the present case are thus (a) whether the Applicant is a fit and proper person to be granted a tattooist licence, or (b) whether it would be contrary to the public interest for the licence to be granted, or both. The evidence 1. The Respondents rely on the Applicant's criminal record and the adverse security determination. Mr Kalyk provided written submissions on behalf of the Respondents. 2. The Applicant relies on his own evidence and that of Dr Kathy Dynon, Clinical Psychologist and Dr Damian Smith, general practitioner. 3. Both Dr Dynon and Dr Smith provided reports and gave evidence at the hearing and were cross-examined. 4. A further report from Dr Peter Stoker, a clinical psychologist, was in evidence. That report was prepared in March 2015 for tender to the Court in relation to the Applicant's sentencing on fraud charges. 5. The Applicant also relies on a number of written references. These include references from his mother and step-father, his father and step-mother, his partner, his sister, his uncle and several friends and acquaintances. The Respondents' Cases 1. It is common ground that the Applicant has a long history of offending. In addition to his criminal record he has a long history of traffic infringements. 2. Mr Kalyk summarised the Applicant's history of offending as follows (citations removed). First, the Applicant has a history of dishonesty offending. The Applicant has been convicted of some 96 offences between 2009 and 2015, including offences in both NSW and Queensland. The offences show a consistent pattern of dishonesty with an increasing level of seriousness. Most recently, the Applicant was sentenced on 23 March 2015 to 2 1/2 years' imprisonment with a non-parole period of 8 months. This history of offending may be summarised as follows: a. First, on 28 January 2009, the Applicant was convicted of 12 offences of larceny and one offence of using a false instrument. The offending involved stealing some 12 cheques from the cheque book of the Applicant's mother and step-father between 1 December 2007 and 23 January 2008. The Applicant then was alleged to have proceeded to draw from these 12 cheques nearly $20,000 out of the account of his mother and step-father. The conviction appears to relate to the depositing of only one of these 12 cheques for reasons that are not apparent from the face of the file. The Applicant was given a section 10 bond with a 12 month period of supervised probation with a direction obey all directions as to mental health assessment and gambling counselling. b. Secondly, on 28 April 2009, the Applicant was convicted of entering enclosed land without lawful excuse. The Applicant did so with the apparent purpose of filming a skateboarding video. c. Thirdly, on 23 March 2015, the Applicant was convicted of 105 charges of dishonestly obtaining property from another. The Applicant was sentenced to 2 1/2 years' imprisonment with a non-parole period of 8 months. d. Fourthly, also on 23 March 2015, the Applicant was convicted for breaching his bail conditions and failing to appear in accordance with an undertaking provided. The Applicant was convicted of the offences. Secondly, the Applicant appears to have engaged in conduct that gives rise to a concern that further dishonesty offending may have been committed. Between March and June 2013, the Applicant is alleged to have attended certain Officeworks stores and certain Big W stores for the apparent purpose of seeking a refund for purchased goods. While receipts were apparently presented and a refund often supplied, the representatives of Officeworks and Big W both provided evidence to NSW Police that suggested the goods had been stolen. In the case of Officeworks, the same pink 'Filofax' brand folder was sought to be returned at various different Officeworks stores across a period of a few days. In the case of Big W, the items returned were logged in the system as being short in stock. Thirdly, the Applicant has exhibited a disregard of the licensing scheme under the TP Act by engaging in tattooing work without a licence. The Applicant made his application for a tattooist licence on 2 May 2017. While the TP Act includes transitional provisions that allow applicants who had previously been tattooing prior to the commencement of the Act to continue tattooing, such provisions apply only where an application was lodged prior to 1 October 2013. The Applicant stated in his application for a tattooist licence that he had been employed by "BodyCraft Tattoo" since 1 November 2016. Customer reviews posted on the BodyCraft Tattoo website make clear that the Applicant has in fact been working as tattooist and performing tattooing work for reward. Accordingly, the Applicant performing tattooing work for BodyCraft Tattoo since 1 November 2016 was an offence under s 7(1) of the TP Act. Fourthly, the Applicant has a history of traffic offences. Since 2006, the Applicant has committed 8 traffic offences, the most recent being in January 2018. These offences were comprised of speeding and driving without a current licence (January 2018), speeding (February 2017, June 2013, April 2011, June 2010 and July 2006) and negligent driving (September 2011, June 2010). 1. The Respondents argue that these matters evidence a person with a material history of dishonesty offending and a history of disregarding his obligations both under the general law and under the Act. 2. They submit that the Applicant's criminal record is a strong prima facie indicator that he is not a fit and proper person under the Act. The Applicant was most recently sentenced to a term of imprisonment in 2015. The Respondents contend that insufficient time has elapsed since the Applicant's criminal offending for him to demonstrate that he has rehabilitated and left his criminal past behind him. They contend that while the Applicant gave evidence that he is working hard and genuinely trying to turn his life around, he has not put forward sufficient evidence to demonstrate that he has in fact rehabilitated. 3. The Respondents are critical of the Applicant's presentation of his case to the extent that it focuses on the hardship to him if the licence is refused and the benefit to him in obtaining a licence. They submit that the scheme established by the Act is designed to prioritise the public interest over private interests. The fact that being a tattoo artist is a significant part of an applicant's life does not mean that granting a licence will be in the public interest. 4. In regard to the evidence from Dr Dynon that the Applicant is working through his mental health issues and that being able to work as a tattooist would be of significant benefit to his ability to deal with his mental health issues, the Respondents submit that this is not relevant to the question of whether he is a fit and proper person to hold the licence. 5. Nevertheless, the Respondents submit that the Tribunal could not have confidence that the Applicant's psychological or psychiatric issues are resolved. In regard to the Applicant's evidence Mr Kalyk noted in particular: 1. Dr Dynon explained that the Applicant's psychological problems are "complex". She explained that the Applicant's psychological problems are primarily affected by external stressors in the Applicant's life and that they become exacerbated or heightened during times of stress. 2. The Applicant was recently admitted to Wyong Hospital on account of what he described to his general practitioner, Dr Smith, as a mental breakdown. While he attended voluntarily, he was then committed involuntarily in accordance with NSW mental health legislation. While the incident reflects positively on the Applicant's willingness to seek help, it raises concerns that the Applicant has not fully resolved his issues. 3. Despite the psychological report of Dr Stoker tendered at the Applicant's sentencing hearing indicating that the Applicant required ongoing psychiatric treatment, the Applicant is not receiving any ongoing psychiatric care. During the Applicant's recent crisis treatment at Wyong Hospital, the Applicant was prescribed additional mood stabilising medication, presumably by a psychiatrist. On the Applicant's evidence, it is not clear what diagnosis or recommendations for ongoing treatment he received at Wyong Hospital. Further, Dr Dynon stated that it was difficult for her say whether or not the Applicant required ongoing psychiatric care. The Tribunal would have concerns that the Applicant is in fact not receiving the psychiatric care he needs. 4. Despite the report of Dr Stoker indicating that the Applicant required ongoing medication, the Applicant's psychiatric medication is being overseen by Dr Smith - a general practitioner with no psychiatric expertise. Dr Smith stated that his primary focus was the Applicant's pain management and that it was only a further, supplementary part of his role to 'keep an eye on' the Applicant's mental issues. But Dr Smith saw no apparent concerns with the Applicant's mental state and had not received the report of the Applicant's recent attendance at Wyong Hospital. One clear concern was highlighted in that Dr Smith prescribed the Applicant the drug Seroquel without being aware that, as Dr Stoker reported, the Applicant had previously experienced side effects when he was prescribed that particular drug. 1. Mr Kalyk argues that there is evidence that the Applicant's offending have been linked to his mental health issues. Dr Stoker's report suggested that the offending was in part related to his ongoing mental issues. Dr Dynon said that such a conclusion would be consistent with her understanding of the Applicant's psychological issues. One critical component of the Applicant's rehabilitation would therefore seem to be ensuring that his mental health issues are under control. Mr Kalyk submitted that more time is needed for the Applicant to demonstrate that he has rehabilitated. 2. The Respondents also raised issues of the Applicant's compliance with the Act and assert that he was undertaking tattooing work for reward while not holding the required licence. They contend that, at the very least, the Applicant must not have taken sufficient steps to ascertain his obligations under the Act prior to commencing that work. 3. Further, the Respondents submit that the character references that the Applicant has provided should be given little weight in circumstances where the authors do not appear to have any knowledge of the Applicant's offending. 4. Further, the Respondents submit that it is not in the public interest for the Applicant to be granted a licence. They contend that the grant of a licence in the present circumstances is likely to erode public confidence in the scheme and regulatory requirements under the Act, which has as one its objectives the exclusion of persons with criminal tendencies from the tattooing industry, with a view to protecting public safety and cleaning up the tattoo industry. They submit that the Applicant's willingness to break the law makes him and any tattoo parlour he works in vulnerable to the grip of criminal activity. 5. They submit that to allow the Applicant a tattooist licence notwithstanding his actions and the material he has presented to the Tribunal would undercut public confidence in tattoo parlours and, indeed, cause a risk to public safety by allowing a person such as the Applicant to operate. 6. Therefore, the Respondents submit that the Tribunal should affirm the Decision to refuse to grant the licence. The Applicant's Case 1. The Applicant accepts that he has a long history of offending and he is very remorseful. He acknowledged the mistakes in his past but submits that he has served adequate punishment for those mistakes. He was granted parole in November 2015. He stated that he learnt a great deal from living through those experiences. There was no breach of parole. He believes that those issues are in the past and that he will not make those mistakes again. He stated that he has no connections to any outlaw motorcycle gangs and that he is not engaged in any criminal activity. 2. However, he disputes one of the charges of dishonesty. While he accepts that he pleaded guilty to a charge of dishonesty in relation to falsely borrowing $7500 from his former partner he disputes that there was any dishonesty involved. He said that the money was given freely. He agreed that the money was owed but he didn't believe that he had committed an offence. His guilty plea was on the basis of advice that he received at the time. He was charged with 105 fraud offences. He didn't have legal representation. His Legal Aid lawyer didn't appear and he was told that it would be best for him to plead guilty to that offence as well. The solicitor who turned up told him that he would be going to prison and he was trying to accept responsibility and move forward. 3. He concedes that he undertook tattooing work for reward while not holding the required licence. However, he denies that he was performing paid tattooing work for BodyCraft Tattoo from November 2016. He stated that the only paid tattooing work that he undertook was in July and August 2017. He explained the circumstances in which he undertook that work and that he wrongly assumed that he was adhering to the legislative requirements by following the directions provided by his employer. At the time he had no experience within the tattoo industry and he did not have a foundation of knowledge of the requirements. He said that at no point was he aware that he was operating outside of the legislation. 4. He does not dispute that he undertook some paid work but stated that he was predominantly engaged in activities relative to the industry to broaden his skills and was working at the shop free of charge. His initial employment was not performing tattoo procedures but becoming familiar with the surrounding processes. As part of his training he undertook some tattooing work for development purposes, to help build his portfolio as a developing artist. This work was done without obtaining a fee or reward. As his skills progressed he briefly engaged in small commission works as part of general shop work routine. He assumed that was a part of his employment conditions. 5. Up until he lodged his licence application he was not paid for work in the parlour. He undertook some tattooing work in July and August 2017. In about August 2017 he became aware that he was not permitted to undertake tattooing work for payment. 6. He stated that numerous times he attempted to contact Fair Trading attempting to clarify what he was required to do as an apprentice. He did not ever get a formal answer. After further investigation he became aware that he was operating outside of the legislation. For that reason and because of impending surgery, he decided to terminate his employment and cease preforming tattoo work until his licence application had been determined and he had returned to good physical health. 7. He relies on several references. He stated that the statements were provided as support by members of the community and show that he is a respected member in the community who is also greatly valued in the tattoo industry. He had been estranged from his mother and step-father for a long time. They had been victims of some of his fraudulent conduct and had assisted police in the prosecution. He has reconciled with his mother and step-father and they are supportive of his application. 8. In regard to his psychological health, the Applicant relies on reports from Dr Dynon, Dr Smith and Mr Stoker. He has been diagnosed with a number of mental health conditions, including Bipolar Disorder and severe anxiety. 9. Mr Stoker prepared a report in March 2015. That report was prepared for the prosecution and tendered to the Court at the Applicant's sentencing hearing. In his report Mr Stoker observed of the Applicant: It is my opinion that this man is suffering from Bi Polar Affective Disorder … This is a serious psychiatric disorder that requires medication and ongoing psychiatric treatment. This disorder is a congenital condition ... After his grandmother died in 2012 and he separated from his wife and he lost his job, his Bi Polar symptomatology became very pronounced. He had numerous: suicide attempts and incurred psychotic hospitalizations. He also medicated his psychological pain with the use of Cocaine and, what he calls, "legal highs". It was during this period of very fragile psychological health that he engaged in his fraudulent activities. Since he has been consistently using his medication and seeing a psychologist and psychiatrist, his psychological health has improved. Also, since being charged, he is no longer using any illicit drugs. He is also now in a stable relationship and is looking for work. He is remorseful for his offending behaviour. With continued formal psychiatric and psychological treatment, as well as a continued stable lifestyle, if is my opinion that there is little likelihood of this man reoffending. 1. Dr Dynon has been treating the Applicant since June 2016. He has attended sessions for psychological treatment regularly in that time and is committed to ongoing treatment. She stated that he has shown commitment and willingness for change. In her report dated 6 July 2018 she wrote: Luke has been a committed and willing participant in therapy, showing consistent dedication to the process of recovery from past difficulties. Importantly, Luke appears to have been upfront in therapy about his past mistakes and the cost of these to his life and his wellbeing, and has shown consistent desire and commitment to moving forward and contributing to society in a positive way. He has worked hard to address his physical and mental health challenges, which are complex and challenging. Luke has persevered with a variety of medical appointments and procedures in order to get to the bottom of his chronic hand/arm pain, and the last surgery seems to have been successful. Reduction in chronic pain will likely have a positive flow on effect for Luke's mental health. During the time I have known Luke, I have seen him dedicate ongoing time and effort into a number of positive strategies and pursuits in order to get his life on track. He has been building his repertoire of psychological strategies, investing time in his role as a parent, and attempting to move towards stable living conditions and employment. While he still experiences significant anxiety during times of stress, he shows resilience and determination in managing life stressors, and his mental health has been quite stable for some time. 1. Dr Dynon is of the view that the Applicant's conditions are able to be managed in a way that allows him to have a functional, rewarding life. She stated that his condition is reactive to what is happening in his life and episodes can be triggered by stressful life events. She stated that all the evidence available to her indicates that the Applicant is living a settled and law-abiding existence and that there has been no indication that he is a threat to the community in any way. 2. Dr Smith has been the Applicant's GP since November 2017. Since that time he has seen the Applicant on a monthly or more frequent basis. In his report dated 4 July 2018 Dr Smith wrote: In this period, he has undergone treatment for a severe nerve entrapment in the right arm, including the necessary use of regular pain-killers, abstinence from working as a Tattooist, and most recently revision surgery for a previous failed attempt to release the nerve. He has remained extremely diligent with respect to his responsibilities in all aspects of his medical care, while also trying to juggle the burden of his ongoing Tattoo Licence dispute … I have been quite reassured through our regular contacts that he has coped rather well with all the incumbent pressures, and I do not consider his mental health an ongoing concern - merely secondary to his chronic pain, and the duress of your proceedings. … just in this last week, Mr Holdstock has unexpectedly lost his father in Queensland, and has been dealing with the practical and emotional repercussions of this. ... 1. Under cross-examination Dr Smith indicated that the Applicant has been prescribed a significant amount of medication and that this is related to his recent surgery. He stated that there is always the potential for side-effects from the medication but he was not aware that the Applicant had suffered side-effects of the drug Seroquel. He is not aware of whether the Applicant is under psychiatric treatment but understood that a recent admission related to a short period of duress following his father's death. He does not consider that there is anything extraordinary about the medication that has been prescribed. 2. Dr Smith has no ongoing concerns with respect to the Applicant's insight into his circumstances. He has the impression that the Applicant is reflective and insightful and not a risk to himself or to others. 3. The Applicant stated that he now has a solid understanding of the legislation and that the Tribunal can have full confidence that he will abide by all legislative requirements. Relevant caselaw 1. The Tribunal's role is to decide what the correct and preferable decision is having regard to the material before it: Administrative Decisions Review Act, section 63; section 27(3)(c) of the Act. 2. The Tribunal is not bound by the adverse security determination and its task is to make a fresh determination on the licence application according to the criteria set out in section 19(1) of the Act, namely whether the Applicant is a fit and proper person, and/or whether it would be contrary to the public interest for the licence to be granted: Austin v Commissioner of Fair Trading and Commissioner of Police [2016] NSWCATAP 179 at paragraph [37]. The Tribunal may also consider other relevant matters. Fit and proper person 1. The meaning of the expression "fit and proper," in this context, has been considered in numerous matters before this Tribunal. I summarised the case law in Moore v Commissioner for Fair Trading and Commissioner of Police [2016] NSWCATAD 80. I stated at paragraphs [16] to [23]. 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. 1. In [Smith v Commissioner of Police, NSW Police Force & NSW Fair Trading [2014] NSWCATAD 184] at paragraphs [19] - [20] I 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. 1. In the present matter there is no suggestion that the Applicant has had any involvement with outlaw motorcycle gangs. 2. 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." 1. 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. 2. 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. 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." It is generally accepted that the question of whether a person is fit and proper 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: Mumby v Commissioner for Fair Trading [2017] NSWCATAD 27 at paragraph [21]. 1. As Senior Member Lucy, note in DLY v Commissioner for Fair Trading [2018] NSWCATAD 125 at paragraph [26]: A tattooist licence authorises a person "to perform body art tattooing procedures" (Tattoo Parlours Act, s 9(3)). The nature of the activities a person will undertake is body art tattooing. The purpose of those activities is to decorate the body. A person holding a tattooist licence is not required to operate a trust account, or to receive confidential information, or to represent a person's interests before a court or tribunal. For these reasons, a person who is a fit and proper person to hold a tattooist licence may not be a fit and proper person to be a real estate agent or a legal practitioner. 1. Similarly, a person may be possessed of sufficient moral integrity and rectitude of character as to permit him or her to be safely accredited to the public as a person to be entrusted with the sort of work which a tattooist licence entails but they may not be a fit and proper person to be the operator of a tattoo parlour. Public interest 1. The Tribunal must also consider whether it would be contrary to the public interest for the Applicant to be granted a tattooist licence. The question of whether this would be contrary to the public interest is one of fact and degree which requires the exercise of value judgment. 2. In Smith at paragraphs [42] – [47] I referred to a number of authorities that have considered the concept of the "public interest". It is clear from those authorities that it is designed to give the broader interests of the community priority over private interests. Those authorities indicate that: * 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. * 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. * 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. * 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. 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. Consideration 1. The Respondents submit that the Applicant is not a fit and proper person to hold a tattooist licence and that it would be contrary to the public interest for him to do so, because: 1. the Applicant has a long history of criminal offences; 2. the Applicant has a history of general disregard for the law; 3. the Applicant has admitted that he undertook tattoo work for payment without holding the required licence; 4. there is insufficient evidence to suggest that the Applicant is completely rehabilitated. 1. The Applicant's offences are not in dispute. I have set out above the Respondents summary of that history. I agree with the Respondents view that the Applicant's criminal record is a strong prima facie indicator that he is not a fit and proper person to hold the licence that he is seeking. The Applicant was sentenced to a term of imprisonment in 2015 and was released on parole in November of that year after serving eight and a half months of a two and a half year sentence. 2. I agree with the Respondents that at that time he was not a fit and proper person to hold a tattooist licence and that it was not in the public interest for him to do so. 3. However, my decision must focus on the present situation. 4. The evidence suggests that there was a strong link between the Applicant's offences and his mental health. 5. The Applicant was released shortly after the minimum non-parole period. There is no suggestion that he breached any of the conditions of his parole. With the exception of the issue of his undertaking tattoo work without the required licence, there is no suggestion that the Applicant has engaged in any unlawful conduct since his release in November 2015. 6. Since his release he has attended sessions for psychological treatment regularly and he is committed to ongoing treatment. He has very positive reports from his treating psychologist, Dr Dynon and from his GP, Dr Smith. It is apparent that he has followed the recommendation of Mr Stoker insofar as he has continued psychological treatment. He has prescribed medication for his conditions and is apparently following medical advice in relation to his medication. Mr Stoker was of the view that with continued treatment, as well as a continued stable lifestyle, there is little likelihood of his reoffending. The evidence suggests that this was an accurate assessment and that the Applicant is living a settled and law-abiding existence. 7. As noted, the Applicant relies on a number of written references. These references support the view that the Applicant is now living a settled and law-abiding existence. I note that the Applicant's mother and step-father were victims of the Applicant's fraud offences and that they are now supportive of his application. 8. Dr Dynon stated that the Applicant's condition is reactive to what is happening in his life. It is apparent that he found the Tribunal proceedings extremely stressful. Nevertheless, he was able to manage the experience and was able to present his case in a carefully arranged or controlled manner. While it seems that symptoms of his conditions are unlikely to be totally prevented, the conditions appear to be managed in a way that is allowing him to conduct his affairs in this appropriately. 9. I do not agree with the Respondents that the Applicant's most recent admission to hospital is a cause for concern. On the contrary, it is my view that it is a clear indication that he was able to recognise that his condition required outside intervention and that he was able to take control of his circumstances. 10. I also do not agree with the Respondents that Dr Dynon's views on how the Applicant might be affected by the grant of the licence are not relevant to this matter. In my view, factors that could affect the Applicant's mental health will be relevant to the question of whether he is able to continue living a stable, law-abiding life. This will impact on the likelihood that he will adhere to the legislative requirements to be met by a licensee. 11. The Applicant acknowledged his offences and he is remorseful. He maintains that he was not guilty of the offence in relation to borrowing from his former partner but he nevertheless entered a guilty plea in relation to the offence in order to accept responsibility for his conduct and he was sentenced for his offences. He has served his sentence without any issues and his evidence is that he learnt a great deal from living through those experiences. He stated that he has not engaged in any further criminal activity. There is no evidence to contradict that statement. 12. The Tribunal's task is to determine the correct and preferable decision, and there is no legal onus on either party. The Tribunal must consider the evidence given by all parties and decide whether the Applicant is a fit and proper person to hold a tattooist licence and whether this would be contrary to the public interest. The critical question is whether the Applicant has been rehabilitated since his last offence. 13. The Respondents argue that there has not been sufficient time since the Applicant's offences for the Tribunal to be satisfied that he is now a fit and proper person to hold a tattooist licence. I do not agree. Three years have passed since the Applicant was released from prison. I am satisfied that he has changed significantly in those three years. He has taken positive and significant steps to address the underlying psychological and substance issues which were major contributors to his past conduct. He has not engaged in any further criminal activity. I accept that he is now trying to lead a law-abiding life. 14. I am satisfied that that he has been rehabilitated. 15. In my view, neither the Applicant's history of offences nor his mental health should prevent him from obtaining the licence. The remaining issue of concern is the fact that he undertook tattooing work for reward while not holding the required licence. 16. He explained the circumstances in which he undertook that work. I accept that he misunderstood the legislative requirements and that he assumed that he was complying with those requirements by following the directions provided by his employer. I agree that he did not take proper steps to ensure that he complied with licensing requirements and he should have done so. However, I accept that the amount of paid work that he undertook was minimal and that when he realised his misunderstanding he took steps to remove himself from his workplace. He has not undertaken paid tattooing work since then. 17. In the circumstances I do not consider that this failure to adhere to the legislative requirements should prevent him from obtaining the licence. 18. In my view, the Applicant now has 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 a tattooist licence entails. I consider that he is a fit and proper person to hold such a licence. 19. I am also satisfied that the Applicant has made sufficient changes in his life and has sufficiently reformed his character that it is no longer "contrary to the public interest" for the licence to be granted. 20. I do not agree with the Respondents that to allow the Applicant a tattooist licence would undercut public confidence in tattoo parlours or cause a risk to public safety. 21. In my view, the correct and preferable decision is for the Applicant to be granted a tattooist licence. The appropriate order is therefore to set aside the Commissioner for Fair Trading's decision, and to substitute for it a decision granting the Applicant a tattooist licence. Orders 1. The decision to refuse to grant the Applicant a tattooist licence is set aside. 2. In substitution the decision is made that the application for a tattooist licence is granted. ********** 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: 21 December 2018