Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Collins v Department of Fair Trading [2019] NSWCATAP 199 Hearing dates: 28 June 2019 Date of orders: 06 August 2019 Decision date: 06 August 2019 Jurisdiction: Appeal Panel Before: Cole DCJ, Deputy President J Kearney, Senior Member Decision: 1. Leave to appeal on the merits is refused. 2. The appeal on the questions of law is dismissed. 3. The operation of order 3 made on 27 July 2018 (the stay order) will cease 14 days after the publication of this decision. Catchwords: ADMINISTRATIVE LAW – administrative tribunals - Civil and Administrative Tribunal (NSW) – Appeal Panel – procedural fairness – leave to appeal other than on a question of law Legislation Cited: Administrative Decisions Review Act 1997 (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Tattoo Parlours Act 2012 (NSW) Cases Cited: Bronze Wing International Pty Ltd v SafeWork NSW [2017] NSWCA 41 Collins v Urban [2014] NSWCATAP 17 Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576; (1994) 49 FCR 576 Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57 Minister for Immigration and Multicultural and Indigenous Affair v QAAH of 2004 (2006) 231 CLR 1 Muin v Refugee Tribunal (2002) 190 ALR 601 Re Holbrook and Australian Postal Commission (1983) 5 ALN N 46 Warkworth Mining Limited v Bulga Milbrodale Progress Association Inc [2014] NSWCA 105 Category: Principal judgment Parties: Brett Andrew Collins (Appellant) Department of Fair Trading (First Respondent) Commissioner of Police, NSW Police Force (Second Respondent) Representation: Counsel: J K Raftery (Appellant) A Douglas-Baker (Respondent) Solicitors: Skinner & Associates (Appellant) Crown Solicitor (Respondents) File Number(s): AP 19/17227 Publication restriction: unrestricted Decision under appeal Court or tribunal: Civil and Administrative Tribunal of New South Wales Jurisdiction: Occupational Division Citation: [2019] NSWCATOD 36 Date of Decision: 12 March 2019 Before: Emeritus Prof G D Walker, Senior Member File Number(s): 2018/00228335 REASONS FOR DECISION Introduction 1. Mr Collins ('the applicant') applied for an operator licence under the Tattoo Parlours Act 2012 (NSW). The Secretary for Fair Trading ('the Secretary'), by a delegate, refused to grant the licence. The basis for the refusal was a determination that the applicant is not a fit and proper person to be granted an operator licence and that it would not be in the public interest to grant the applicant an operator licence. 2. The applicant applied to the Tribunal for a review of that decision under s 27 of the Tattoo Parlours Act 2012 and the Administrative Decisions Review Act 1997 (NSW). The Tribunal determined that, although the applicant is a fit and proper person to be granted an operator licence, it would not be in the public interest to grant the applicant an operator licence. The decision of the Secretary to refuse to grant the licence was affirmed. The applicant has now appealed to the Appeal Panel of the Tribunal under s 80 of the Civil and Administrative Tribunal Act 2013 (NSW). In these reasons, we will refer to the Tribunal at first instance as 'the Tribunal' and to the Appeal Panel of the Tribunal as 'the Appeal Panel'. 3. Prior to making a decision in relation to the application, the Secretary referred the matter to the Commissioner of Police for investigation under s 14 of the Tattoo Parlours Act 2012. The Commissioner of Police made an adverse security determination under s 19(1) of the Tattoo Parlours Act 2012 with respect to the questions of whether the applicant is a fit and proper person to hold an operator licence under the Tattoo Parlours Act 2012 and whether it would be contrary to the public interest for an operator licence to be granted to the applicant. 4. The Commissioner is a party to this matter pursuant to s 27(3) of the Tattoo Parlours Act 2012. 5. The tattoo parlour the subject of the decision is in Albury and has been conducted by the applicant for about 7 years. Prior to the hearing before the Tribunal, the applicant sought a stay of the Secretary's decision, the effect of which would be, under the transitional provisions of the Tattoo Parlours Act 2012, that he could continue to operate the business until further order. A hearing was conducted in the Tribunal before Deputy President Hennessy and the stay was granted. Background 1. The applicant gave evidence before the Tribunal. He said that he had opened a tattoo business in Wodonga, Victoria, 25 years ago. He subsequently moved to Wangaratta, Victoria, and then, 7 years ago, to Albury, New South Wales. 2. The applicant has two tattoo parlours; one in Albury and one in Wodonga. He calls his businesses Twin City Tattoo. The businesses are owned by Lumpy Holdings Pty Ltd as trustee for the Brett Collins Family Trust, the beneficiaries of which are the applicant and his children. Up to six people are employed in the tattoo parlours. 3. The applicant founded a chapter of the Gypsy Joker Motorcycle Club (the Gypsy Joker MC) in Wodonga in about 1994. The Gypsy Joker MC is an outlaw motorcycle gang ("OMCG"). 4. By 1996, and perhaps before that, the applicant was the President of the Wodonga chapter of the Gypsy Joker MC. 5. There was evidence before the Tribunal that members of OMCGs wear a jacket or vest specific to their club, displaying a '1%' patch, a three piece patch signifying their particular organisation and perhaps other patches. These jackets or vests are referred to as 'colours'. 6. The '1%' patch is a reference to the OMCG's identification as being outside of the general obligation to obey the law. Gypsy Joker MC identifies as an outlaw gang, and its members wear a '1%' patch. 7. The applicant, in his evidence, distinguished between the Wodonga Gypsy Joker OMCG and the Gypsy Jokers OMCG. The police evidence was that there is no such distinction. The Tribunal at first instance rejected the suggestion of a distinction. Submissions made on behalf of the applicant by his counsel to the Victorian County Court in 2013 support the Tribunal's finding. 8. Some time ago, the applicant obtained a restricted Victorian Liquor Licence for the Wodonga chapter of the Gypsy Joker MC. He also helped to facilitate the purchase of premises for the Gypsy Joker MC in Wodonga, Victoria, in the course of which he became a director of North East Investments Victoria Pty Ltd ('North East Investments'), which at one point owned the land for the premises. In 2012/2013, the applicant helped the Gypsy Joker MC obtain planning approval for its clubhouse in an appeal to the Victorian Civil and Administrative Tribunal. The applicant said that the clubhouse was never completed because the financier withdrew. The applicant remained a director of North East Investments Pty Ltd until 2018, although he said in evidence that he had not realised that he was still a director in the latter years. 9. In his application under the Tattoo Parlours Act 2012 in 2013, the applicant disclosed his interest in Lumpy Holdings Pty Ltd, but did not mention North East Investments Pty Ltd. In evidence, before the Tribunal at first instance, the applicant said that his accountant had filled out the application form, although he had signed it. This was his explanation for the omission to disclose his directorship of North East Investments Pty Ltd in the application. 10. Business records show that the applicant was a director of North East Investments from October 2002 to November 2003, May 2006 to January 2007 and July 2011 to July 2018. He was the sole secretary for the company from July 2011 to July 2018. From October 2002 to July 2006, he was one of six shareholders of the company, and, by 2017, he had increased his shareholding to 3 shares of the 6 issued. 11. The applicant said, in evidence before Deputy President Hennessy, that he had participated in OMCG rides until about 3 years before the hearing. He indicated that he stopped participating because of the association laws passed at about that time. 12. The applicant agreed that he may have been in South Australia in 2001 with other members of the Gypsy Joker MC on a national run, and he also agreed that he was in Gilgandra with two other Gypsy Joker MC members in full colours in January 2012. 13. Police records say that the applicant was driving a VW van as a support vehicle for the Gypsy Joker MC in Narrandera in August 2016, that he was in full colours and that he spoke to police. The applicant denies that he was driving a support van or in Narrandera in August 2016. 14. At the time of the hearing before the Tribunal, the applicant owned three Harley Davidson motor cycles. 15. The applicant gave evidence that he had ceased being a member of the Gypsy Joker OMCG about 10 to 12 years before because his life and his interests had changed. He had work commitments and three children. 16. Detective Senior Constable McLean is a police officer, with 16 years' experience, who is an expert on OMCGs. DSC McLean gave detailed evidence of the customary rules and practices of OMCGs. On the basis of that information, the police consider it to be unlikely that the applicant has resigned from, or otherwise left, the Gypsy Joker MC. OMCG membership is usually a lifelong commitment. 17. In evidence before the Tribunal, the applicant said that he retains a good relationship with members of the Gypsy Joker MC. DSC McLean's evidence was that it was doubtful that this could be the case if the applicant has left the club. DSC McLean believes that the applicant is still a member of the Gypsy Joker MC. 18. The applicant has the following criminal history: * 18 June 2004 – convicted of trafficking in amphetamine. Sentenced to 12 months imprisonment, with 8 months suspended, and fined $10,000. (NB the applicant believes that this conviction was actually for possession of a trafficable quantity of amphetamine). * 18 June 2004 – convicted of possession of an unregistered and unlicensed handgun – fined $2,500. * 21 May 2003 – convicted of possession of cannabis and fined $200. * 6 May 1997 – convicted of selling liquor without a licence and fined $2,000. * 2 July 1996 – convicted of possession of an unregistered and unlicensed firearm and fined $1,000. * 12 September 1988 – convicted of driving with more than the prescribed quantity of alcohol in his blood and fined and disqualified from driving for a period of time. * 10 December 1986 – convicted of driving with more than the prescribed quantity of alcohol in his blood and fined and disqualified from driving for a period of time. The applicant was also fined $250 on 14 August 2012 for being in possession of protected wildlife. This related to a diamond python for which, he said, he had held a licence which he overlooked renewing The Tattoo Parlours Act 2012 1. When the Secretary received the applicant's application for an operator licence under the Tattoo Parlours Act 2012, the Secretary referred the application to the Commissioner of Police ('the Commissioner') under s 14(1)(b) of the Tattoo Parlours Act 2012, which states: (1) If the Secretary receives an application for a licence or for the renewal of a licence, the Secretary: … (b) is to refer any application that the Secretary considers to have been duly made (along with any supporting information) to the Commissioner for an investigation and determination as to any one or more of the following: (i) whether the applicant is a fit and proper person, (ia) whether a close associate of the applicant is a fit and proper person, (ii) whether it would be contrary to the public interest for the licence to be granted or renewed. 1. The Commissioner made an adverse security determination in respect of the applicant, concluding that he was not a fit and proper person to hold an operator licence and that it would be contrary to the public interest for the licence to be granted. 2. The Secretary, under s 16 of the Tattoo Parlours Act 2012, then considered the applicant's application for an operator licence, together with the Commissioner's determination under s 14(1)(b). The Tattoo Parlours Act 2012, in s 16(3), provides: (3) The Secretary must not grant or renew a licence if: … (c) an adverse security determination has been made by the Commissioner about the applicant. 1. The Secretary refused to grant the applicant an operator licence. 2. The applicant appealed against the Secretary's decision pursuant to s 27 of the Tattoo Parlours Act 2012. The Secretary's decision was stayed by the Tribunal, on 27 July 2018, until further order. Appeal to the Tribunal 1. The Tribunal correctly identified that the issues before it were whether the applicant is a fit and proper person to hold an operator's licence under the Tattoo Parlours Act 2012 and whether it is in the public interest for an operator's licence to be granted to him (see Collins v Department of Fair Trading [2019] NSWCATOD 36 at [3]). 2. The Tribunal said, at [129], [130] and [135]: 129 It may also be noted that the applicant has no history of violence, or of threatening violence, and there appear to have been no complaints about his tattoo parlours or about any breaches of health or other standards, or of any improper dealings with client funds. He said that he supports local charities and helps bolster the local economy. The respondents pointed to the lack of evidence to support those claims. Supporting local charities is, however, a common practice among businesses in country centres and for present purposes I accept that they are correct. 130 In my view the lapse of time since his significant 2004 drug conviction suffices to enable the tribunal to conclude that his character and conduct are now such as to warrant licensing him to conduct a tattoo operator business. He is now an established businessman who holds a real estate licence and, as he contended, he would appear to have nothing to gain from being a secret biker. That, however, still leaves the question of a possible continuing association with an OMCG. … 135 If clearly established, the Narrandera observation of his acting as a spokesman for the group could, in view of its recency, have been viewed as significant evidence of a continuing association with an OMCG. As the precise facts of that interactions are unclear, however, it would be inadvisable to place great weight on it. I therefore conclude that the evidence against the applicant on the fitness and propriety issue is insufficient to warrant a finding adverse to him, and I so find. That still leaves the question of whether issuing an operator licence to the applicant would be contrary to the public interest. 1. The Tribunal accepted that the applicant was a fit and proper person to hold an operator licence. Not surprisingly, the applicant has not appealed from that determination. However, the respondents, in their reply, pleaded that the participation of the applicant in the club run at Narrandera had been established on the balance of probabilities and ought to have formed the basis of a determination by the Tribunal that the applicant is not a fit and proper person to hold an operator's licence. 2. The Tribunal discussed the question of whether the issuing of an operator's licence to the applicant would be contrary to the public interest from [136] to [166]. 3. The Tribunal correctly directed itself as to the meaning and purpose of the public interest test at [136]–[140]. This is not the subject of any challenge. 4. The Tribunal said, at [142]: 142. The legislation's main object is to rid the tattoo industry of influence and infiltration by other criminal elements. In the context of the present application, therefore, the issue is whether the granting of an operator licence to Mr Collins would tend to permit or strengthen OMCG influence on, and infiltration into, his Albury tattoo parlour business. 1. The Tribunal set out the evidence as to the applicant's history with the Gypsy Joker OMCG, finding that the Wodonga Chapter was part of the overarching Gypsy Joker OMCG and that the Gypsy Jokers OMCG and the Gypsy Joker OMCG were the same entity. The applicant was the President of the Wodonga Chapter of the Gypsy Joker OMCG for about 10 years, and it was conceded on behalf of the applicant, in proceedings in the Victorian County Court in 2003, that, during that time, he had duties within the Gypsy Jokers OMCG throughout Australia. 2. The Tribunal outlined the applicant's involvement with North East Investments, finding it credible that the applicant had forgotten that he was a director. The Tribunal also described the applicant's role in the VCAT proceedings regarding the Gypsy Joker clubhouse at Wodonga. 3. The Tribunal said: 146 The consideration set out above of whether the applicant retains an association with Gypsy Jokers OMCG that is relevant for the purposes of deciding the fit and proper person issue also assists the tribunal in resolving the public interest question. A number of points merit emphasis in the present context, however. 147 First, I accept DS/C McLean's evidence that Gypsy Jokers is an OMCG that has engaged in criminal activities and still represents a threat to public safety and order. For the reasons given above, I also prefer his testimony that Gypsy Jokers and the Wodonga-based Gypsy Joker Motorcycle Club Inc. co-founded by the applicant are part of the same overarching entity. 148 The applicant, however, has steadfastly maintained throughout the proceedings that the Wodonga-based Gypsy Joker club was entirely separate from the Gypsy Jokers organization. For example, at the stay hearing before Hennessy ADCJ he said he was a member of a club in Victoria called "Gypsy Joker MC which is a completely different entity, separate entity to Gypsy Jokers which is a New South Wales one" (exhibit R8, p 8). 149 Later he said, "I was never in the Gypsy Jokers, I was in the Gypsy Joker, it was a Victorian club a long time ago" (id. p 13) and that a reference in the VCAT decision to Gypsy Jokers was incorrect, a mistake (id. pp 14 – 15). Notwithstanding his emphasis on strict observance of that nomenclature, his own signed submissions filed on 23 January 2019, when referring to his former presidency of the Wodonga group, stated that "I ceased to be a member of Gypsy Jokers OMCG years ago". 150 [Not for publication] 151 In that connexion I also note the admissions made by the applicant's counsel, Mr P Chadwick, at the Victorian County Court venue hearing. He said, "It will be impossible to conduct the defence without identifying that Mr Collins was the president of the Wodonga chapter, he had duties within the Gypsy Joker Motorcycle Club fraternity throughout Australia. Your Honour will understand that whilst the Gypsy Jokers was a motorcycle club, there is an umbrella organisation, there are chapters in various locations including Sydney, Albury/Wodonga, South Australia, Western Australia and Mr Collins is involved with the Wodonga chapter as the president for some ten years" (exhibit R10, p 18, my emphasis). 152 At the same time, the applicant averred that he had had only occasional contacts with Gypsy Jokers members (not members of the Wodonga chapter), in the course of club rallies and rides, and that Gypsy Jokers did not in practice control the activities of his Wodonga group. There is little evidence to contradict his claim as regards control, nor his assertion that he has never been president of Gypsy Jokers OMCG. 153 From 2002 to 2018 he had served (though perhaps not continuously) as a director, shareholder and sole secretary of North East Investments. He said he had forgotten that he was still a director and had stepped down in 2018 only after only after becoming aware of that fact at the stay hearing in these proceedings. That would appear to be credible, as it would be consistent with his rather careless attitude to administrative matters, which is apparent inter alia from his disregard of Hennessy ADCJ's case management directions made at that hearing. 154 In 2013 he had taken an active role in a planning appeal to VCAT by North East concerning a permit to build what was intended to be partly a Gypsy Joker clubhouse at Wodonga. He agreed that North East was associated with the Wodonga chapter but denied that it had any connexion with the Gypsy Jokers OMCG and maintained that the chapter had never dealt in drugs. Again, on the last-mentioned point, there was no direct evidence to contradict him. 155. Det. S/C McLean's evidence drew attention to a number of points that he thought indicated continuing membership by the applicant of the club. They included the fact that he had not been charged an exit fee, that he had retained his club colours and that he had a tattoo similar to those worn by Gypsy Joker members (rather than resembling a "lethal threat" surfing tattoo). He also continued to wear a loop earring in his left ear like Gypsy Joker members. Mr Collins agreed that the earring was similar to those worn by Gypsy Joker members as part of their insignia, but endeavoured to explain it as being a gift from a business partner when he opened his first shop. That would not, however, necessarily be inconsistent with its being part of club insignia. I am satisfied that the applicant was permitted to retain his club colours, tattoos and earring and was not charged an exit fee but, as Det. McLean acknowledged, that might have been because of his record and standing in the organization. 156. Det. McLean also expressed the view that such circumstances as retaining his club colours and tattoos, and not being required to pay an exit fee suggested that the applicant was still a member, or at least was sympathetic to the organization. Life members were permitted to transfer from one chapter to another, and while the applicant might have resigned from the Wodonga group, he could have transferred to a Sydney chapter, for example. That proposition, while plausible, is speculative. 157 The applicant claimed to have resigned 10 or 12 years ago but that he had thereafter continued to take part in some club rides. He said he had, however, ceased to have anything to do with Gypsy Joker in recent years as he did not wish to jeopardize his real estate licence. He variously estimated the time when he broke off all contact as being between two years ago and four years ago. But, especially in relation to events in the immediate past, there is a considerable difference between two years and four years and it is not enough merely to say, as the applicant did repeatedly, that he is "bad at dates". 158 He has repeatedly been sighted in the company of Gypsy Joker or Jokers members. He acknowledged that on 9 January 2012 he had been seen with two other Gypsy Joker members in full colours and had been spoken to by police at Gilgandra and had identified himself as a chapter president. He was also sighted by police at Narrandera in August 2016, possibly driving a VW support van, but for reasons given above I do not regard that incident as being fully established. … 162 In view of the evidence showing his past, long-term and active association with a known OMCG, the applicant needed to adduce cogent evidence to show that granting him a tattoo operator licence would not run counter to the public interest by opening the way for OMCG influence on, or infiltration into, his Albury business. The probability that, as Det. McLean opined, he is at least still sympathetic to the Gypsy Joker organization might not be decisive, but he needed to be able to show the Commissioner, and by derivation the tribunal, that he is not vulnerable to pressure to engage in, or support, its nefarious activities. His prominent involvement with Gypsy Joker has been too long-standing and recent to permit a favourable decision on his application. 163 He is undoubtedly aware of Gypsy Jokers' sulphurous reputation and he needed to establish that he has effected a complete and enduring rupture with the club for an extended period and is not vulnerable to pressure or influence from it. For the reasons given above, he has failed to do so. Instead, he is vague about when he ceased to be a member, giving the time lapse variously as "some years ago", or "10 or 12 years ago" and equally vague about when he last participated in a club ride. 164 He regrets that he feels he must now refrain from meeting former associates for a beer. He acknowledges that he was allowed to keep his Gypsy Joker colours after leaving the club, but states that he simply "gave them away" at some stage, without any further detail or explanation. Det. McLean's expert evidence as to the supreme importance that OMCGs attach to their colours suggests that giving away a set of those colours might be likely to provoke a violent reaction from the club. 165 On the basis of all the evidence before the tribunal, I therefore find that it is not in the public interest for the applicant to hold a tattoo operator licence. The decision under review is thus affirmed. 1. The Tribunal affirmed the Secretary's decision not to grant the applicant's application for an operator's licence. Grounds of appeal 1. The ground of appeal from the Tribunal's decision, as set out in the notice of appeal was: The Tribunal erred in finding that: (a) it was not in the public interest for the appellant to hold a tattoo operator licence. (b) the appellant may be vulnerable to pressure to engage in or support an OMCG. (c) the appellant had recent involvement in an OMCG. 1. The applicant, in his submissions, set out the following additional grounds: Mr Collins submits that the Tribunal made the following errors: i. erred in law in holding that Mr Collins bore the onus of establishing that he was not vulnerable to influence, infiltration or pressure to engage in nefarious activities of an OMCG and that he had not effected a complete and enduring rupture with the OMCG for an extended period (Onus); ii. erred in failing to afford Mr Collins procedural fairness in finding (to the extent that the finding was made) that Mr Collins was vulnerable to influence, infiltration or pressure to engage in nefarious activities of an OMCG and that he had not effected a complete and enduring rupture with the OMCG for an extended period without those matters being put to him during cross-examination (procedural fairness); iii. erred in law in finding (to the extent that the finding was made), without any evidence, that Mr Collins was vulnerable to influence, infiltration or pressure to engage in nefarious activities of an OMCG and that he had not effected a complete and enduring rupture with the OMCG for an extended period (no evidence to support factual finding); iv. when all the relevant findings of fact are examined, it was not reasonably open to draw an inference that Mr Collins was vulnerable to influence, infiltration or pressure to engage in nefarious activities of an OMCG and that he had not effected a complete and enduring rupture with the OMCG for an extended period (unavailable inference). 1. We will treat the grounds set out in the applicant's outline of submissions as grounds of appeal (see s 36 and s 38(4) of the Civil and Administrative Tribunal Act 2013). 2. The grounds for the application for leave to appeal, as set out in the notice of appeal are: (a) the appellant has suffered an injustice as a result of the judgment and findings; (b) the Tribunal unreasonably arrived at the findings that the appellant may be vulnerable to pressure to engage in or support an OMCG and that the appellant had a recent involvement with an OMCG. 1. The first three grounds of appeal in the applicant's submissions each raise questions of law. There is an appeal as of right to the Appeal Panel from a decision of the Tribunal in appeals against a licensing decision under the Tattoo Parlours Act 2012 on a question of law (see s 80(2)(b) of the Civil and Administrative Tribunal Act 2013). 2. The fourth ground of appeal relates to the question of whether the conclusion that the applicant was vulnerable to influence, infiltration or pressure to engage in nefarious activities was available to the Tribunal on the evidence. This ground does not raise a question of law and leave is required (see s 80(2)(b), see also Bronze Wing International Pty Ltd v SafeWork NSW [2017] NSWCA 41 at [22]). Consideration Onus 1. The applicant argued that the following words from paragraph [162] of the Tribunal's decision showed that the Tribunal had imposed an onus of proof upon the applicant: In view of the evidence showing his past, long-term and active association with a known OMCG, the applicant needed to adduce cogent evidence to show that granting him a tattoo operator licence would not run counter to the public interest by opening the way for OMCG influence on, or infiltration into, his Albury business….he needed to be able to show the Commissioner, and by derivation the tribunal, that he is not vulnerable to pressure to engage in , or support, its nefarious activities. 1. The Tribunal's task, under s 63 of the Administrative Decisions Review Act 1997, was to decide what the correct and preferable decision was, having regard to the material before it, including any relevant factual material and any applicable law. 2. It is well established that, in undertaking its task, the Tribunal must consider the matter afresh, and neither party bears an onus of proof, though there will be occasions on which one party is in a better position than the other to address a specific factual matter. (see Minister for Immigration and Multicultural and Indigenous Affair v QAAH of 2004 (2006) 231 CLR 1 at [39]-[40]. There is a practical onus on the party who raises a specific fact for consideration to prove the existence of that fact (see Re Holbrook and Australian Postal Commission (1983) 5 ALN N 46). 3. The whole of paragraph 162 of the Tribunal's decision is set out in paragraph 37, above, together with the paragraphs before and after it, which give it context. 4. We do not consider that the paragraphs of the Tribunal's decision set out in [37] above, on a fair reading, indicate that the Tribunal imposed an onus of proof on the applicant. In paragraph 146, the Tribunal indicates that it is about to emphasise aspects of the analysis it has already undertaken concerning whether the applicant retains an association with the Gypsy Jokers OMCG in the context of deciding the 'fit and proper' issue and make use of that analysis in the context of deciding the 'public interest' issue. The Tribunal then sets out the evidence as to the criminal nature of the Gypsy Jokers OMCG and the applicant's involvement with it. The Tribunal rejects the applicant's attempt to draw a distinction between the Gypsy Jokers and the Gypsy Joker, and prefers DSC McLean's evidence that the two names refer to the same entity. The applicant's Presidency of the Wodonga chapter of the Gypsy Joker OMCG is noted, and the submission by the applicant's counsel to the Victorian County Court in 2003 that the applicant had duties within the club nationally was repeated. The applicant's directorship of North East Investments is noted, and the Tribunal accepts that the applicant forgot about that directorship until 2018, for a period of time which was not defined. The Tribunal says that the applicant's evidence was that he resigned from the OMCG 'some 10 or 12 years ago' but that he had continued to take part in some club rides until two to four years ago. The Tribunal comments that there is a considerable difference between two and four years and says that it 'is not enough merely to say, as the applicant did repeatedly, that he was 'bad at dates'. The Tribunal notes that the applicant has been repeatedly sighted in the company of Gypsy Joker/s OMCG members. The Tribunal says that it does not regard the allegation regarding the incident at Narrandera to have been 'fully established', which we take to mean that it does not take it into account. The Tribunal then characterises the applicant's past association with the Gypsy Jokers as long term and active. It is in this context that the Tribunal says that the applicant 'needed to adduce cogent evidence to show that granting him a tattoo operator licence would not run counter to the public interest by opening the way for OMCG influence on, or infiltration into, his Albury business'. The Tribunal goes on to say that the applicant said that he was allowed to keep his colours, and that he then 'gave them away' but gave the Tribunal no detail or explanation. This was contrasted with DSC McLean's evidence about the importance of colours, and the likelihood that giving colours away would provoke a violent reaction from the OMCG. The applicant's evidence that he regrets that he must now refrain from meeting former Gypsy Joker OMCG associates for a beer is mentioned by the Tribunal. 5. In summary, the Tribunal is saying that the respondent and, indeed, the applicant, gave it sufficient evidence to raise a serious concern that the applicant's relationship with the Gypsy Joker OMCG, even after he had ceased contact, was still such that it rendered him and his Albury tattoo business vulnerable to influence on, or infiltration by, the Gypsy Joker OMCG. Rather than placing an onus upon the applicant, the Tribunal, in paragraph 162, is observing that the applicant did not provide evidence to displace the inference available to the Tribunal on the evidence before it as to the future vulnerability of the Albury tattoo business on account of the past relationship between the applicant and the Gypsy Joker OMCG and the mutual regard with which the two parties apparently parted. 6. This ground of appeal has not been made out. Procedural fairness 1. The applicant argued that he had been denied procedural fairness in the manner described in Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57, Muin v Refugee Tribunal (2002) 190 ALR 601 and Warkworth Mining Limited v Bulga Milbrodale Progress Association Inc [2014] NSWCA 105 at [40], in that information was used by the Tribunal in a way that could not reasonably have been expected by the applicant, and the applicant was not given an opportunity to respond to that use. 2. The applicant argued that it was not put to him that he was vulnerable to influence, infiltration or pressure to engage in nefarious activities of an OMCG and nor was it put to him that he had not effected a complete and enduring rupture with the OMCG. It was conceded that it was put to the applicant in cross-examination that, in 2016, he continued to be trusted by the Gypsy Jokers, and that, in 2016, the Gypsy Jokers would have regarded him as one of them. 3. Reasons for the decision of the Secretary dated 23 July 2018 were provided to the applicant. They state, among other things: It would be contrary to the public interest for Brett Andrew Collins to be granted the licence, because of his membership of the Gypsy Jokers OMCG and his criminal history. 1. The issue of the effect of the relationship between the applicant and the Gypsy Joker/s OMCG upon the resolution of the issue of whether the grant of an operator licence to the applicant would be contrary to the public interest has been a prominent part of the pleadings, submissions and proceedings at every stage of these proceedings, from the notice of appeal to the stay application, to the hearing before the Tribunal and on the appeal. A significant quantity of material was provided to the applicant in relation to the issue prior to the hearing before the Tribunal, and the applicant had the opportunity to answer that evidence in the presentation of his case. The transcript for the stay applications discloses that Deputy President Hennessy told the applicant that he should prepare a statement for the hearing before the Tribunal, 'especially about your involvement with the motor cycle gang'. 2. We are satisfied that it must have been plain to the applicant from the time that he received the reasons for the Secretary's decision, that his membership of the Gypsy Joker OMCG had given rise to an inference that it would be contrary to the public interest to grant his application for an operator's licence. 3. A redacted copy of the Commissioner's adverse security determination, which informed the Secretary's decision, was provided to the applicant before the hearing at first instance. That document contains the second reading speech for the legislation the subject of these proceedings. The second reading speech on 23 May 2012 begins: I am pleased to introduce the Tattoo Parlours Bill 2012. This bill is part of the Government's continued response to gang crim in New South Wales. … The Tattoo Parlours Bill 2012 aims to break the stranglehold that outlaw motorcycle gangs have over the tattoo industry in New South Wales. … 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. The fatal brawl between members of the Comancheros and Hells Angels at the Sydney Domestic Airport Terminal in March 2009 has been linked to the Hells Angels opening a tattoo parlour on what the Comancheros considered was their 'turf'. When tattoo parlours are no longer controlled by bikies, they will not be so closely associated with serious acts of violence, such as shootings and fire bombings. Bikies will no longer feel that they 'own' the industry – that they have the right to stand over, and extort, owners of tattoo businesses who are unaffiliated with outlaw motorcycle gangs. Nor will tattoo parlours be able to provide a means for organised criminals to launder the proceeds of crime. 1. In his adverse security determination, the Commissioner explored, in some detail, the issue of the public interest, quoting extensively from the second reading speeches, including the above extracts and the following: The public interest is not intended to be focused on issues particular to the art of tattooing or to concern itself with the competence of those performing the service. It is designed to address the criminal matters currently surrounding the industry, such as extortion, money laundering, personal violence, firearms crime, illicit drug offences, arson and so on. 1. Evidence of the applicant's relationship with the Gypsy Joker OMCG was provided to him prior to the hearing before the Tribunal, and he was questioned about it in cross-examination. 2. In the Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576; (1994) 49 FCR 576 at [30], the Full Federal Court said: Where the exercise of a statutory power attracts the requirement for procedural fairness, a person likely to be affected by the decision is entitled to put information and submissions to the decision-maker in support of an outcome that supports his or her interests. That entitlement extends to the right to rebut or qualify by further information, and comment by way of submission, upon adverse material from other sources which is put before the decision-maker. It also extends to require the decision-maker to identify to the person affected any issue critical to the decision which is not apparent from its nature or the terms of the statute under which it is made. The decision-maker is required to advise of any adverse conclusion which has been arrived at which would not obviously be open on the known material. Subject to these qualifications however, a decision-maker is not obliged to expose his or her mental processes or provisional views to comment before making the decision in question. 1. It was not necessary for a specific question to be put to the applicant in the terms that the Tribunal ultimately wrote in its reasons. It was plain to the applicant from the earliest stages of his appeal that his history with the Gypsy Joker OMCG had given rise to a perception that there may be some on-going involvement of the OMCG, or an opportunity for that involvement, with the tattoo parlour. The applicant had ample opportunity to respond to that. 2. The applicant was not denied procedural fairness. No evidence to support a factual finding 1. The applicant submitted that the Tribunal had made a finding that the applicant would be open to influence or infiltration by the Gypsy Joker OMCG, and that he would be vulnerable to pressure to engage in, or support, the Gypsy Joker OMCG's nefarious activities. The applicant argued that there was no evidence to support this finding, and that the finding was therefore an error of law. 2. Paragraph 162 of the Tribunal's determination, which is set out above at paragraph 37, contains the part of the Tribunal's decision which is complained of. The decision that the applicant may be vulnerable to pressure to engage in, or support, the activities of the Gypsy Joker OMCG, and that the Gypsy Joker OMCG may, on account of the applicant's history with it, have an opportunity to influence or infiltrate the Albury tattoo parlour is an opinion about a present and future risk which the Tribunal formed on the basis of factual information, evidence of which was before it, about the past. 3. The purpose of the provisions of the Act with which these proceedings are concerned is to reduce risk, and the Commissioner, and the Tribunal when it reviews the decision which followed from the Commissioner's adverse security determination, is required to make an assessment of present and future risk. That assessment was made by the Tribunal on the basis of the evidence before it, including the evidence of DSC McLean, which is set out above and which adequately supports the assessment arrived at. Unavailable inference 1. This ground amounts to an argument that the assessment described in paragraph 65 was an inference which was not supported by the facts. 2. Curiously, the applicant, in his submission on this ground, asserted that the Appeal Panel would find that the applicant had had no association with the Gypsy Joker OMCG since 2012. That is contrary to the applicant's own evidence before Deputy President Hennessy on 27 July 2018, where he said: Q: Can I ask you this Mr Collins, when was the last time you went out for a ride with members of the club that you term the Gypsy Joker Motor Cycle Club to the best of your recollection? A. I can't even remember. I know it's over three years ago, two or three years ago. 1. The facts recited by the Tribunal in the extract from its decision set out in paragraph 37 above adequately support the assessment made by the Tribunal in relation to the public interest. 2. The Tribunal's explanation of its understanding of what is meant by the term 'public interest' in the Tattoo Parlours Act 2012 was not the subject of any challenge. Merits 1. The applicant seeks to have the Appeal Panel review the Tribunal's decision on its merits. The applicant requires the leave of the Appeal Panel to appeal on a ground which does not raise a question of law (Civil and Administrative Tribunal Act 2013). 2. In Collins v Urban [2014] NSWCATAP 17, a previous Appeal Panel set out the principles to be applied in a consideration of whether leave to appeal should be given: 84 The general principles derived from these cases can be summarised as follows: (1) In order to be granted leave to appeal, the applicant must demonstrate something more than that the primary decision maker was arguably wrong in the conclusion arrived at or that there was a bona fide challenge to an issue of fact: BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [19] and the authorities cited there, Nakad v Commissioner of Police, NSW Police Force [2014] NSWCATAP 10 at [45]; (2) Ordinarily it is appropriate to grant leave to appeal only in matters that involve: (a) issues of principle; (b) questions of public importance or matters of administration or policy which might have general application; or (c) an injustice which is reasonably clear, in the sense of going beyond merely what is arguable, or an error that is plain and readily apparent which is central to the Tribunal's decision and not merely peripheral, so that it would be unjust to allow the finding to stand; (d) a factual error that was unreasonably arrived at and clearly mistaken; or (e) the Tribunal having gone about the fact finding process in such an unorthodox manner or in such a way that it was likely to produce an unfair result so that it would be in the interests of justice for it to be reviewed, BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [20] and the authorities cited there, SAB v SEM [2013] NSWSC 253 at [8] and [9] and the authorities cited there, Nakad v Commissioner of Police, NSW Police Force [2014] NSWCATAP 10 at [45]; 1. None of the factors set out in Collins v Urban are present in this matter. The Tribunal had a firm and accurate grasp of the evidence. There is no basis for a grant of leave to appeal. Most of the matters raised in the applicant's submissions under the heading 'Merits' amount to a submission that the Tribunal's decision in relation to the public interest was against the weight of the evidence, and we have dealt with that argument, and rejected it, above. 2. The applicant relied on the absence of evidence that the Albury tattoo parlour had been involved in nefarious activities in the past. This is a relevant factor, but it is by no means decisive. There was a considerable weight of evidence, set out above, which supported the Tribunal's conclusion as to the public interest. 3. Leave to appeal on the merits is refused. 4. In view of our decision with respect to the applicant's appeal, it is not necessary for us to consider the respondent's contention that the question of whether the applicant is a fit and proper person to hold an operator's licence should be reviewed. Orders 1. The orders of this Appeal Panel will be: 1. Leave to appeal on the merits is refused. 2. The appeal on the questions of law is dismissed. 3. The operation of order 3 made on 27 July 2018 (the stay order) will cease 14 days after the publication of this decision. ********** 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: 06 August 2019