Birch v Commissioner of Fair Trading

[2017] NSWCATAD 166

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	Birch v Commissioner for Fair Trading and Commissioner of Police, New South Wales Police Force [2017] NSWCATAD 166
Hearing dates:	10 May 2017
Date of orders:	25 May 2017
Decision date:	25 May 2017
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	Emeritus Prof G Walker, Senior Member
Decision:	(1)The decision under review is affirmed. (2) Pursuant to s 64(1)(b),(c) and (d) of the CAT Act, the recording and transcript of the confidential hearing on 10 May 2017, confidential exhibit CR 6 and paragraphs 15, 16, 17 and 65 are not for publication or for disclosure to the public, applicant or first respondent.
Catchwords:	TATTOO PARLOURS – licence – fit and proper person – public interest – domestic violence.
Legislation Cited:	Administrative Decisions Review Act 1997 Civil and Administrative Tribunal Act 2013 Crimes Act 1900 Crimes (Domestic and Personal Violence) Act 2007 Tattoo Parlours Act 2012
Cases Cited:	Austin v Commissioner of Fair Trading (CFT) and Commissioner of Police, New South Wales Police Force (CoP) [2016] NSWCATAP 179; Comalco Aluminium (Bell Bay) v O’Connor (1995) 131 ALR 657; CoP v Toleafoa [1999] NSWADTAP 9; Constantin v CoP [2013] NSWADTAP 16; Director-General, Transport New South Wales v AIC (GD) [2011] NSWADTAP 65; Director of Public Prosecutions v Smith (1991) 1 VR 63; Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60; Esterman v CoP [2014] NSWCATOD 70; Health Care Complaints Commission v Do [2014] NSWCA 307; Hughes and Vale Pty Ltd v New South Wales (No. 2) (1995) 93 CLR 127; Moujalli v Roads and Maritime Services [2017] NSWCATAD 11; Naziry v Director-General, Ministry of Transport [2004] NSWADT 40; O’Sullivan v Farrer (1989) 168 CLR 210; Project Blue Sky Inc. v Australian Broadcasting Authority [1998] HCA 28, (1998) 194 CLR 355; Re Prasad and Minister for Immigration and Ethnic Affairs (1994) 35 ALD 780; Smith v CoP and CFT [2014] NSWCATAD 184; Wright v CFT [2017] NSWCATAD 98.
Category:	Principal judgment
Parties:	Adam J Birch (applicant) Commissioner for Fair Trading (first respondent) and Commissioner of Police, New South Wales Police Force (second respondent).
Representation:	Counsel: A Kalyk (respondents)     Solicitors: A Birch (applicant in person) Crown Solicitor’s Office (respondents)
File Number(s):	2016/00378429
Publication restriction:	Pursuant to s 64(1)(b), (c) and (d) of the CAT Act, the recording and transcript of the confidential hearing on 10 May 2017, confidential exhibit CR 6 and paragraphs 15, 16, 17 and 65 of these reasons are not for publication or for disclosure to the applicant.

reasons for decision

1. The applicant Adam Joseph Birch on 18 October 2016 applied to this tribunal for review of a decision made by the first respondent dated 12 July 2016 refusing to grant a tattooist licence to the applicant pursuant to s 16(1) of the Tattoo Parlours Act 2012 (TP Act). He had lodged an application for a tattooist licence with the first respondent on 23 July 2015.

2. The decision was made after the second respondent, the Commissioner of Police, investigated the applicant and on 11 July 2016 made a determination and report pursuant to s 19(1) of the TP Act that the applicant is not a fit and proper person to be granted the licence, on the basis of his criminal history, and that it would be contrary to the public interest for the licence to be granted, again on the basis of his criminal history. In reaching that conclusion, the Commissioner made an adverse security determination (ASD) against the applicant.

3. The Commissioner also noted that the applicant is disqualified from holding certain permits, licenses or authorities, under the Firearms Act 1996, the Security Industry Act 1997 and the Weapons Prohibition Act 1998.

Applicable legislation

4. The legislative scheme under the TP Act is discussed in more detail below. At this point it is necessary to note only that s 7(1) of the TP 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(1)(b) provides for the granting of tattooist operator licenses and tattooist licenses to persons, which authorize the licensee to “perform body art tattooing procedures in accordance with this Act and the conditions of the licence”: s 9(3).

5. When the first respondent’s Chief Executive receives an application for a licence, he or she is required to refer it 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, or whether it would be contrary to the public interest for the licence to be granted, or both: s 14(b)(i).

6. Section 16(1) confers on the Chief Executive a general power to deal with licence applications and to grant or refuse a licence. The general discretion is limited by s 16(3), which provides that “The Chief Executive must not grant a licence if:…(c) an adverse security determination has been made by the Commissioner about the applicant”.

7. Under s 27(1)(a) of the TP Act, a person whose application for a licence has been refused may apply to this tribunal for administrative review under the Administrative Decisions Review Act 1997 (ADR Act). Section 27(3) of the TP Act deals with the nature of the tribunal’s function. It provides as follows:

(3)  If an application for a licence was refused or a licence was suspended or cancelled by the Secretary on the ground of an adverse security determination made by the Commissioner about the applicant for the administrative review:

(a)  the Commissioner (as well as the Secretary) is to be a party to any proceedings in the Civil and Administrative Tribunal for an administrative review of the decision of the Secretary, and

(b)  the Tribunal is to be provided with a copy of the report of the Commissioner’s determination, and

(c)  the Tribunal is not prevented from determining whether the Secretary made the correct and preferable decision regarding the application or the licence concerned merely because of the determination of the Commissioner.

8. The issues in the present case are thus whether the applicant is (a) 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: s 14(b).

Respondents’ evidence

9. The respondents called no oral evidence, but relied on the documentary material, including exhibit R4 (the s 58 documents), the ASD (exhibit R1) and two bundles of further documents, exhibits R2 and R3. Inter alia that evidence showed, the respondents submitted, that the applicant was not a fit and proper person to be granted a tattooist licence because, first, he had a history of offending against the criminal law. On 27 February 2013 he was convicted of a number of offences and sentenced to two terms of imprisonment, one of 15 months with a non-parole period of 3 months, and a second term of 1 month. The convictions arose out of three separate incidents:

1. The applicant was convicted of 7 offences arising out of a domestic incident with his then de facto partner, Gabrielle Hill, in April 2012.

2. In January 2013 he was involved in another incident, involving his brother, mother and father, which resulted in his being convicted of 3 charges of stalking or intimidating, and intending fear of physical or mental harm under the then s 13(1) of the Crimes Act 1900.

3. Following his release from prison, he was convicted of larceny arising out of another domestic incident with Ms Hill in May 2015.

10. Secondly, he was convicted of contravening a prohibition or restriction in an apprehended violence order (AVO) in contravention of s 14(1) of the Crimes (Domestic and Personal Violence) Act 2007 in relation to Ms Hill between January and March 2016. The offence concerned extensive calls and text messages initiated and continued by the parties between 2 January 2016 and 14 March 2016. The text were not offensive, but were in breach of the AVO. The AVO is still in force until its expiry on 16 August 2017.

11. Thirdly, the applicant currently has further charges pending against him. One relates to an assault occasioning actual bodily harm against his son on 6 October 2016. The applicant has pleaded not guilty and the matter is due to come on for hearing on 23 May 2017. The applicant is currently on bail pending the outcome of that hearing.

12. Fourthly, the applicant has a history of AVOs against him. There are currently two in place, one in respect of Ms Hill and expiring on 16 August 2017, and one in respect of his son Maverick Birch, expiring on 22 November 2017. He has had an additional 6 AVOs granted against him in the past, in respect of Ms Hill (2 May 2012 and 6 February 2013), another of his partners, Ms Ella Otton (24 October 2011, 4 May 2013, 10 July 2013, and various family members (27 February 2013).

13. Fifthly, the applicant has a long history of traffic violations. Since 2008, he has committed 28 traffic offences, mainly speeding, but also disobeying traffic lights, negligent driving, and three instances of not displaying “P” plates. The most recent offence was a failure to display “P” plates on 17 February 2017.

14. Finally, the applicant contravened s 7(1) of the TP Act by performing tattooing work for fee or reward. He attempted to explain that offence as resulting from administrative problems with Fair Trading not having received his application and supporting documents, but at all events he had not been granted a licence at the relevant time.

15. [Not for publication].

16. [Not for publication]

17. [Not for publication]

Applicant’s evidence

18. In his oral evidence at the hearing the applicant adopted the undated statement attached to his application in which he stated inter alia that he had absolutely no association with any declared organizations and was not a controlled member of one. He had never associated with, or ever been near or in contact with, any such organizations or persons.

19. He admitted that he had a criminal record on the basis that he suffers from bipolar disorder. At the time he had been unmedicated and had no idea that he suffered from that mental illness. He found himself in a domestic violence situation and was sentenced to stay in the mental health section of a jail, which had the sole purpose of putting him on medication and rehabilitating him. Since then he had been out of that domestic relationship for numerous years and is fully medicated. He has regular visits to his psychologist and doctor and keeps on top of his mental health plan. The offence that took place was not in fact solely his fault, and both parties were punished.

20. He did not believe there was any rule that said an artist could not obtain a licence by reason of having a mental health problem, or that a person must not have a criminal record.

21. He is the father of six children and has lost his means of income to enable him financially to support them. He had since then become homeless and, being unable to work, had lost all his hopes and dreams of being what he spent his whole life wanting to be. That had taken a toll on his mental health. Tattooing is his therapy. It relaxes him and is able to make his mind, which usually runs a thousand miles an hour, slow down.

22. At the hearing the applicant added that the respondents’ objections related to OMCGs, which had nothing to do with him. He wanted only to be a tattoo artist, not an operator. He had undertaken a 10-week domestic violence course at Orange and had moved from Bathurst to Blacktown so that he could continue seeing his doctor, because he found that it helped.

23. He did not like to admit that he had been in jail, much less to boast about it. It had taken him a while to return to Gabrielle, and they now live together at Woodcroft. She had helped his rehabilitation. Previously his problems had been so bad that she would not remain with him. Now she ensures that he takes his medications. Their next appointment will focus on how to notice any signs of problems. He is currently working as a roof plumber with his brother Colin Birch every day.

24. The respondent objected to exhibit A2, to the oral evidence concerning the domestic violence course and the proposition that he was “doing well”. Exhibit A2 did not help the tribunal because it raised unanswered questions that could not be put to the author of the letter, as he had not been made available for cross-examination. It was not clear how the psychiatrist had viewed the bipolar diagnosis. Unless his evidence could be tested, it should be excluded, as should the evidence of the applicant’s regular visits to his general practitioner and his partner’s help in monitoring his medications. The caveat on the second page of the report that the letter was not “a medico-legal document” also raised the question of whether it could be used in the tribunal. I was reluctant to exclude evidence tendered by an unrepresented applicant, however, and admitted it subject to the respondents’ objection and to the question of weight.

25. In cross-examination the applicant conceded that he had received the respondents’ written submissions and had responded to them as he thought he was intended to. He arranged for the victims and people who knew what had happened to make statements. He had disputed everything that he wanted to dispute.

26. In a statement by way of re-examination, Mr Birch said that he could not understand what the respondents were trying to get at. Before 2012 he had had a good record. But then his conduct “went through the roof”.

27. The applicant tendered eight written references (collectively exhibit A1). Gabrielle Hill, the victim in the domestic violence incident that led to his imprisonment, wrote on 19 March 2017 that she has known the applicant for over six years and that they have two four year-old twin daughters [It is not clear who are the mothers of the applicant’s other four children]. At the time of the 2012 assault against her, Ms Hill had just given birth to their daughters 11 weeks prematurely, and they had also both lost their jobs because of having to be rushed to Sydney in the middle of the night to be at a hospital that could properly care for their premature children. They lost their house as they were unable to afford rent, and Adam was also in a head-on collision with a truck when driving back and forth to the hospital to see their daughters. It was an extremely stressful time for both of them and Adam’s mental health deteriorated, and he had a psychotic episode.

28. He has always paid child support on time and never missed the opportunity to be with his children. She feels 100 percent comfortable with him and does not believe that he is a risk to her or her children. She has seen at first hand how tattooing works as a therapy for him. She believes he does not deserve to be punished from his dream job because of a mental breakdown at a very stressful time for them all.

29. A letter dated 16 March 2017 from a general practitioner, Dr Amit Patel, stated that he had been consulted by the applicant on 16 March 2017. His records indicate that he has a diagnosis of bipolar disorder. He sees his GP and psychiatrist regularly and takes medication to control the condition. His mental health is at present stable with the current treatment, such that he is able to live a normal life and carry out usual daily activities. The crimes which led to his criminal record occurred during a period of acute mental illness when he was first diagnosed.

30. The other references are unsigned. One, dated 13 March 2017, is from a client, Leanne Windle, who states that when she entered the Black Widow and Kustom tattoo parlour on 14 February 2016, she was met by the applicant who gave her complete confidence and put her at ease. As a nurse, Ms Windle noted that he carried out cleanup and preparation procedures in an appropriate and correct way. Once the session had begun, he took time to explain every task he was undertaking, and the reasons for it. She observed that he used the aseptic technique when cleaning his hands and ensured he did not touch any surfaces until he put on his gloves to clean the area for the tattoo stencils. He also opened everything fresh and in front of her from the packaging. She then described his careful observance of aseptic procedures at all stages. Throughout the session he was professional, hygienic and discreet, and ensured that she was comfortable as the session progressed.

31. He listened carefully to her explanations of what she wanted and regularly checked that he was completing the work as she had envisaged. He carefully explained the after-care procedures and how to clean the tattoos in an appropriate manner. After giving further details about the conduct of the session, Ms Windle concluded that she would confidently return to him to have further work done.

32. Mr Adrian Reynolds’s letter dated 26 March 2017 states that he has worked with the applicant for over 18 months in the construction industry and has come to know him on both a personal and professional level. He has found him to be “a fantastic mentor who is always willing to lend a helping hand and assist me whenever he can”. The applicant is always the first person on a job site and one of the last to leave. He is always willing to stay back when needed and always completes his work in a timely, organized and efficient manner. He always tackles difficult jobs head-on by thoroughly thinking about the actions and next steps that need to occur and ensuring that plans are well thought out.

33. Mr Reynolds states that the applicant has built a good rapport with his peers by spending a large amount of time helping apprentices and labourers on job sites. He is a valued member of the construction industry but would also be so in any industry he decided to join in the future. He is hard-working and dependable, honest and trustworthy.

34. Ms Beverly White’s letter dated 27 March 2017 notes that the applicant is applying for a tattoo licence and states that he is a responsible and loyal adult who has been working to support his family in any way possible. She has known him since primary school, where he attended the same class as her daughter. While he was there, his passion for art and creative flair showed, and he was encouraged to pursue them as anything he created with his hands always shone. She would recommend him for his licence on the basis of his persistence, integrity and willingness to learn his skills in a mature, responsible, respectful and professional manner.

35. A lengthy letter dated 12 March 2017 from Ms Erika Armstrong states that she owns Black Widow Tattoo and Kustom and is a tattoo artist and operator in New South Wales. Much of the letter consists of a narrative describing the vicissitudes of her application process in a context of changing tattoo industry regulations that in her submission had not been properly explained to applicants. She had been under the impression, as had Mr Birch, that once she had paid the application fee, satisfied the other requirements and obtained an application number, she was entitled to practise, but that was not the case and she had to close her premises, causing her and her staff considerable economic difficulty.

36. Adam Birch, she continued, was not a naturally gifted artist, but of all the people she had encountered in the industry, his enthusiasm, eagerness to learn, dedication and “regimented” perspective made up for his artistic shortfalls. She could teach him methodically to tattoo. He had already undergone some training, and with a few more months she could fine-tune his skills and help him to become a remarkable tattoo artist. She was, and still is, honoured to have worked with such an enthusiastic young man. If and when she recovers, and is able to reopen her professional tattoo and custom shop, Mr Birch is more than welcome to come and join her.

18. The applicant’s elder brother, Mr James Birch, wrote in his letter dated 22 March 2017 that before 2013 he had not been aware of the full extent of Adam’s mental illness. He had worked as a roof plumber for the family business from the age of 16, led a stable yet fast life and was always willing to work as much as possible. Although there might have been suspicions that he was suffering from mental illness, nothing ever triggered him until 2013 when his twin daughters were born 11 weeks early.

19. After Adam was arrested, James had signed his bail and invited him to live in his house. He was extremely down at that time and was not his usual self. After numerous attempts at visiting doctors across the Hunter Valley, they were unable to get help or answers for Adam. That was when the incident involving James occurred. Being Adam’s elder brother, James knew he was not in a right state of mind and visited him regularly in jail, along with his parents. He noticed a significant change in him, as he was coming back to be the Adam they all knew. After his release James took him into his home and helped him to get back on his feet. He showed remorse for his actions and did not deny that he had made the wrong choices. He began working for James’s business as a plumber. James assisted him with funds to pay for his licence application and the equipment he needed.

20. Mr James Birch does not believe that Adam is any longer a threat to himself or anyone else. He believes that Adam found the proper help he needed while in jail and should not still be punished for that. He still occasionally works for the family business, and James would have no hesitation in working alongside him.

21. A letter dated 20 March 2017 from the applicant’s younger brother, Mr Colin Birch, states that they are currently working together after Adam helped him to gain employment with Access Metal Roofing. He spends most days working with Adam and also takes his children to Adam’s home every second weekend to visit. Adam lives a quiet life. He does not drink, smoke or use drugs. When they visit at weekends, Adam is doing arts and crafts or building things with all the children. Mr Colin Birch has at times left his children in his care and had never had to worry. He is the first person to be there if you need help with anything and is always willing to help out, even subtly bringing in an extra lunch or dropping by food to their elder brother, who suffers from chronic pain.

22. Mr Colin Birch believes the applicant deserves to be in the tattoo industry and has gone the right way about everything to make sure he is doing it properly. He personally believes that Adam is a wasted talent while not being allowed to tattoo. He has watched Adam excel during his plumbing career, always making sure he has the right certifications and tickets, so that it is a shame he cannot do the same in tattooing.

23. Exhibit A2 is a letter dated 7 April 2017 from a consultant psychiatrist, Dr Mukesh Kumar, to the applicant’s general practitioner, Dr Patel, reporting on an initial assessment on the applicant that he had conducted that day. Mr Kalyk objected to the tender of the letter on procedural fairness grounds, as Dr Kumar had not been made available for cross-examination and the letter raised a number of questions that needed to be clarified.

24. The second page of the letter bears the following note in bold type: “Please note that this is a clinical letter and not a medico-legal letter and should not be released without our permission”. It is not clear whether that permission has been sought or obtained. In those circumstances I think it would be unfair and inappropriate to rely on the letter as evidence of Mr Birch’s mental state, both now and at the time of the main offences. That is a crucial issue in the present proceedings and relying on the letter without its being properly tested could lead the tribunal into a factual error. The most that can be drawn from it in those circumstances is that the applicant has recently been assessed by a consultant psychiatrist, that he has told the psychiatrist that he has a diagnosis of bipolar disorder and that he is currently on medication, presumably for that condition.

Applicant’s submissions

44. The applicant made some brief oral submissions in which he contended inter alia that the AVOs and related matters mainly concerned his family and he had not used or threatened violence against any random person in the street. The traffic offences mainly dealt with bus lanes and did not involve real negligence. The speeding charges had not been referred to a court.

45. His behaviour was good when he was in the manic phase. The government’s concern with OMCG bikers was not relevant to his case. He had been tattooing since 2011, at which time there had been no licensing requirements. As he had been away from the tattooing industry while in jail, he had been under the impression that if he paid the filing fee and obtained an application number he could engage in tattooing.

46. He had completed a domestic violence course as part of his rehabilitation. The criminal history entry relating to the assault on his son had not given the facts and circumstances of the case. There had been two AVOs in relation to Gabrielle Hill. She would not be living with him now if there were anything wrong with his behaviour. He had not harmed any “civilians”. He could not see any difference between legally practising as a plumber and working as a tattooist.

Consideration

47. Under s 63 of the ADR Act, the tribunal’s role is to determine whether, having regard to the underlying facts in the matter and the applicable law, the respondents’ decision is the correct and preferable one. The tribunal is to review the merits of the original decision and consider the evidence available at that time, together with any other or later material, so as to affirm the original decision, vary it or set it aside: Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60, 77).

The legislative scheme and the tribunal’s approach

48. The applicant has applied for review of a decision taken by the Director-General of Fair Trading under s 27(1)(a) of the TP Act to refuse to grant him a tattoo operator licence. The Commissioner of Police made an adverse security determination (exhibit R1) under s 19(1) of the Act to the effect that the applicant was not a fit and proper person to be granted the licence and that it was not in the public interest for the licence to be granted. Pursuant to s 27(3), the Commissioner is a party to these proceedings. The TP Act introduced licensing requirements for operators of tattoo parlours and tattooists, which came into operation in November 2013. Two kinds of licence may be granted: an operator licence and a tattooist licence. Only an individual can apply for a licence, even where the individual is applying on behalf of an organization: s11. The licensing regime imposes a test of whether the person is “fit and proper” and whether it would be “contrary to the public interest” to grant the licence. It is an offence to perform body art tattooing procedures without a tattooist licence: s 7.

49. A person may apply to the Director-General for a tattooist licence pursuant to s 11. Section 13 provides for the fingerprinting and palm printing of applicants. On receiving an application for a licence, the Director-General is required by s 14(b) to refer the application to the Commissioner for an investigation and determination as to whether the applicant is a fit and proper person to be granted the licence, and whether it would be contrary to the public interest for the licence to be granted.

50. Section 19 requires the Commissioner to enquire into and determine, and report to the Director-General on, those matters. For the purposes of making his determination, the Commissioner may have regard to criminal intelligence reports or other criminal information held in relation to an applicant: s 19(3). The Director-General has a discretion whether or not to grant a licence in some circumstances, but must not grant a licence if the Commissioner makes an adverse security determination in relation to the applicant: s 16(3)(c). Once granted, a licence remains in force for three years; it may not be renewed, but a new application can be made: s 17.

51. Pursuant to s 27(1)(a), a person may apply to this tribunal for review of a refusal or failure by the Director-General to grant a licence. The Act does not expressly confer jurisdiction on the tribunal to review any report or determination made by the Commissioner of Police but does so implicitly, as s 27(3)(c) provides that “the Tribunal is not prevented from determining whether the Director-General made the correct and preferable decision regarding the application of the licence concerned merely because of the determination of the Commissioner”: Smith v Commissioner of Police and Commissioner of Fair Trading [2014] NSWCATAD 184, [22]. Nevertheless, the tribunal is required to take the ASD into account as an essential legally relevant consideration to which weight must be given: id., [24].

52. The assessment of whether an applicant is a fit and proper person rests with the Commissioner of Police, but the Act makes it clear that it is the Director-General’s decision that is under review, not the Commissioner’s determination. Under s 8(2) of the ADR Act, the person or body whose decisions are administratively reviewable is taken to be the only administrator in relation to the making of an administratively reviewable decision, even if some other person or body also had a role in the making of the decision.

53. As with all legislation, the provisions of the TP Act and the powers that it confers must be construed and applied in such a way as to be consistent with the language and purpose of all the provisions of the Act: Project Blue Sky Inc. v Australian Broadcasting Authority [1998] HCA 28: (1998) 194 CLR 355, [69]. The Act contains no objects clause, but the tribunal may have regard to the Minister’s second reading speech to ascertain the purpose of the legislation, the mischief that it was designed to cure. The second reading speech of the TP Act noted that the Act was introduced in response to gang crime in New South Wales. It aimed to break the stranglehold that OMCGs had over the tattoo industry. It was expected that removing bikers from the tattoo industry would reduce the reasons for rival gangs to engage in turf wars, because those businesses would no longer be symbols of a gang’s territory. The Act’s purpose is not, however, limited to eradicating the influence of OMCGs in the industry. The “fit and proper” criterion applied in the Act is of much broader application, as Montgomery SM explained in his comprehensive review of the authorities in Smith, at [38] to [41].

54. In Smith, Montgomery SM set out the approach to be adopted when undertaking a review of a decision to refuse an application for a licence as a result of an ASD (at [24] – [28] and [32] – [37]). Those principles may for present purposes be summarized as follows:

1. As was noted above, the tribunal is required to take the ASD into account as an essential, legally relevant consideration to which weight must be given: at [24].

2. While the ASD does not constitute a prima facie position which the applicant bears the burden of displacing, due weight must be given to it: at [25] – [26].

3. Although the decision under review may be that of the secretary rather than the Commissioner, the tribunal may make a fresh determination as to whether the person is a fit and proper person to be granted a licence and whether it would be contrary to the public interest for the applicant to be granted a licence: at [31] – [32]; and

4. The tribunal is to determine what the correct and preferable decision is on the basis of the material before it and any other lawful, discretionary basis; it is not confined to the grounds relied upon by the Commissioner or the secretary: at [27] – [28], [32] – [33].

Fit and proper person

55. The meaning of the phrase “fit and proper person” in the licensing context has been the subject of a well-known line of cases dating back at least to Hughes and Vale Pty Ltd v New South Wales (No.2) [1955] HCA 28; (1955) 93 CLR 127. The principles laid down in those cases were distilled by the tribunal’s Appeal Panel in Austin v Commissioner of Fair Trading and Commissioner of Police [2016] NSWCATAP 179, following Montgomery SM’s reasons at first instance, as follows:

(1) The very purpose of the words “fit and proper” is to give the widest scope for judgment and for rejection on that ground.

(2) “Fit” with respect to an office is said to involve honesty, knowledge and ability.

(3) 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.

(4) 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 it will not occur, or whether the general community will have confidence that it will not occur.

(5) In certain contexts, character (because it provides indication of likely future conduct) may be sufficient to ground a finding that person is not fit and proper to undertake the activities in question.

(6) The expression meant that an applicant needed to show not only that he has the requisite knowledge of the duties and responsibilities of the holder of the particular licence but also that he is possessed of sufficient moral integrity and rectitude to be accredited to the public as a person to be entrusted with the work the subject of the licence.

56. The Appeal Panel has pointed out that public interest considerations play a role in the assessment of fitness and propriety: Director-General, Transport New South Wales v AIC (GD) [2011] NSWADTAP 65, [37].

57. While there is a definite focus in the legislation and its administration on the involvement of OMCGs in the industry, that is not to the exclusion of other concerns about criminality: “[T]he broader intention [of the TP Act] is to rid the industry of any criminal or otherwise undesirable element and the avoidance of improper conduct”: Smith, [2014] NSWCATAD 184, [20]. The point was specifically made in Wright v Commissioner for Fair Trading [2017] NSWCATAD 98, [118]: “The Applicant had stressed that he had not been involved in gang crime gang crime. Gang crime is not the only consideration of the Act. The Tattoo Parlours Act 2012 is directed at keeping gang crime out of the tattoo parlour industry and also at eliminating general criminal activity, including violence. Unfortunately, violence is a clear feature of the Applicant’s background”.

58. Thus, in Austin, Montgomery SM considered that the applicant’s long criminal record was a “strong prima facie indicator of the Applicant’s lack of fitness and propriety”, and that “The question therefore arises as to whether he has been completely rehabilitated” (at [75]). The tribunal ultimately was not satisfied about the applicant’s rehabilitation and refused the grant of a licence.

59. As has been noted above, the applicant in this case has a significant criminal record. On 27 February 2013, he was convicted of a number of offences and sentenced to two terms of imprisonment, one of 15 months and one of 1 month. The convictions arose out of three separate incidents. The first resulted in conviction of 7 offences, contravening an AVO, assault occasioning actual bodily harm, common assault, false imprisonment and destroying or damaging property. The first incident, on 26 April 2012, consisted of forcibly dragging Ms Hill out of Blacktown Hospital in the course of a visit to their children, forcing her into his car and driving off, kicking down the washroom door at a service station when she was inside and dragging her back to the car, head-butting her in the car and driving her home to their Bathurst residence despite her screams. She contacted police early the next day. Later that month he damaged a number of walls and doors in the apartment where Ms Hill lived.

60. The second incident involved three of his family members to whom he said “When you will go to sleep I am going to slit your throats” and “You’re all going to die tonight and none of youse are going to wake up tomorrow”. He was convicted on three charges of stalking or intimidating and intending fear of harm under the then s 13(1) of the Crimes Act.

61. After his release from prison, the applicant was convicted of larceny following another domestic incident with Ms Hill in May 2015. In the course of a dispute in which he behaved in a rowdy manner, attempted to force his way into her house, took her car keys and refused to return them. He was also convicted of contravening an AVO in respect of his then partner (Ms Hill) between January and March 2016. The offence concerned extensive calls and text messages initiated by both parties. While the texts were not offensive, they were in breach of the AVO, which is still in force.

62. The applicant is currently on bail awaiting trial on a further offence, of assaulting his son, occasioning actual bodily harm, on 6 October 2016. The prosecution alleges that the applicant caused very significant bruising to his son in an apparent attempt to discipline him for behaving in what he considered to be a sexually inappropriate manner with a sibling. That charge has led to the issuance of a further AVO in respect of the applicant’s son, which expires on 22 November 2017. The applicant has also had 6 other AVOs granted against him in the past, between October 2011 and July 2013.

63. The applicant also has a very poor traffic record, having accumulated 28 traffic offences since 2008. The majority are speeding offences (including in a school zone), but there are also offences of disobeying traffic lights, negligent driving and three instances of not displaying “P” plates, most recently on 17 February 2017. His driving licence has been suspended on no fewer than 14 occasions and he has never managed to graduate to holding an unrestricted licence.

64. The applicant also performed tattooing work for reward without a licence, at a time when he was not covered by any transitional provision. He had applied for the licence on 23 July 2015, paid the fee and satisfied the other requirements, and had assumed, apparently along with his then employer, Ms Armstrong of Black Widow Tattoo and Kustom, that he was entitled to practise. He attributed this contravention to a misunderstanding of the new legislation and to administrative errors by the first respondent, who he said had been dilatory and had lost his application and other documents at one stage. There is no evidence, however, of any failure to comply with health requirements or of any misconduct towards customers. Indeed, the evidence in that regard is supportive. It may be noted in his favour that none of his offences otherwise relate to his tattooing work.

65. [Not for publication]

66. In the circumstances I do not think the last-mentioned contravention counts heavily against Mr Birch’s application, even though it clearly infringed s 7(1) of the TP Act. The same cannot be said of his traffic record, however, which indicates an irresponsible, and almost reckless, attitude to public safety on the roads. His explanation that the offences were mostly bus lane contraventions is incorrect, and his argument that none of the speeding offences led to a court hearing is specious.

67. Even more serious is his demonstrated propensity towards violence, together with a general disregard for the law and for the safety and well-being of others. His record includes repeated offences of violence, threatened violence or conduct of a threatening or intimidating nature. He has contravened AVOs and appears to have significant mental health problems. He argues that none of his offences of violence or intimidation were directed at “random” persons, but towards members of his family or close associates, as if that were a mitigating circumstance. That is far from the case. He also points out that he has no connection with OMCGs or organized crime, and that he does not drink, smoke or use prohibited drugs, all of which appears to be true but, as was noted above, that in no way diminishes the gravity of his record of violence, especially as he appears not to accept responsibility for it.

56. The applicant points out that he had a good record up until 2012, when his bipolar condition was triggered. And, as the tribunal pointed out in Wright (at [120]), “Being a fit and proper person to perform tattooing does not necessarily require an applicant to have led a life of unblemished rectitude”. On the other hand, a history of good qualities can be outweighed by a single serious incident: Re Prasad and Minister for Immigration and Ethnic Affairs (1994) 35 ALD 780, 781. The fact that the applicant incurred a custodial sentence for a first offence is an indication of the seriousness with which the sentencing court viewed his conduct.

57. The applicant attributes his offences of violence to the exacerbation of his bipolar condition in 2012, and claims to have been rehabilitated. But there have been offences since then, in January 2013, May 2015 and January to March 2016, thus including a number occurring after he had completed his prison sentence. He is currently on bail awaiting trial on a charge of assaulting his son, occasioning actual bodily harm, on 6 October 2016 and is still subject to two AVOs that do not expire until August and November 2017. While he has not been found guilty of the pending aggravated assault charge, the tribunal is entitled to consider evidence of criminal behaviour even if no conviction has resulted: Joseph v Commissioner of Police, New South Wales Police Force [2017] NSWCA 31, [62] – [64]. It is the conduct rather than the conviction that is of concern to the tribunal: Esterman v Commissioner of Police, New South Wales Police Force [2014] NSWCATOD 70, [30].

58. Mr Birch has tendered what appears to be a letter from Ms Hill to the effect that she does not believe the applicant is a risk to herself or her children, and in view of the history of the matter, that is very supportive. Her evidence might have been more persuasive if she had given oral evidence, or if her statement had been sworn, but for present purposes the discussion below will take the statements in her letter at face value.

59. Beyond those statements, however, there is little cogent evidence of rehabilitation. The applicant says that he had completed anger management and domestic violence courses at Orange, but there is no corroborating information about that. He appears to have seen a consultant psychiatrist, Dr Kumar, but the evidence of that, or of the psychiatrist’s assessment, could not be tested. There is a reference to a diagnosis of bipolar disorder, but no indication of how far, if at all, that condition might have contributed to his violent behaviour, of the applicant’s treatment regime or of a prognosis about his likely future behaviour.

60. Ms Hill’s letter contains a reference to a “psychotic episode”, which she blames for his violent offending, but there is no indication of whether that condition has been the subject of a professional diagnosis. If it has, the tribunal would need to hear expert evidence about it, especially as regards his probable future behaviour. The history of the matter raises concerns about Ms Hill’s longer-term welfare, as might, incidentally, the Australian sociological evidence showing a higher incidence of domestic violence in de facto relationships than in marriages: G H Starbuck, Karen Lundy, Families in Context: Sociological Perspectives, Routledge, 3rd edn. 2015, 245. The criminal convictions for violence and intimidation and the multiple AVOs are the primary concern, however. Further, the respondents submitted that the lack of adequate evidence about the applicant’s mental health creates a number of potential complications:

• The applicant’s disorder may not be as serious as he suggests, which would raise concerns about the way in which it has been used by him to explain away and justify serious criminal conduct.

• The disorder may be as serious as suggested, which raises concerns about the extent and effect of any treatment and medication he is taking.

• Or, the applicant may have been incorrectly diagnosed, such that there are other issues that are not being dealt with, such as psychosis or related mental health conditions, which raises the concern that any such problem is not being treated.

73. In my view those possibilities are logical implications from the state of the evidence. The references, apart from Ms Hill’s, also do little to support the applicant’s case. Most of them are unsigned and the referees appear either to be unaware of the entirety of the applicant’s criminal record or are members of his family. Especially as the applicant is currently on bail awaiting trial for an offence of violence allegedly committed as recently as October 2016, the applicant would need to produce clear evidence of rehabilitation and of a satisfactory mental health condition before the tribunal could conclude that he could safely be issued with a licence.

74. I therefore find that the applicant is not a fit and proper person to hold a tattooist licence under the TP Act.

Public interest

75. The phrase “public interest” is not defined in the TP Act or the regulations. In O’Sullivan v Farrer (1989) 168 CLR 210, [13], the High Court held that the “public interest” imported a discretionary value judgment to be made by reference to undefined factual matters, confined only insofar as the subject matter and the scope and purpose of the legislation might require. In Commissioner of Police v Toleafoa [1999] NSWADTAP 9, [25], the Appeal Panel described the public interest ground in the relevant Act in the following terms:

[A]n inherently broad concept giving the [Commissioner] the ability to have regard to a wide variety of factors in choosing whether to exercise a discretion adversely to an individual. As the possibility of refusing an application on the ground of character is dealt with elsewhere in the same section, it is reasonable to infer that the Parliament intended that the public interest discretion operate in areas to which the character ground was not relevant or, possibly, in circumstances where an objection on character grounds would not be sufficient in its own right to warrant refusal.

76. The concept does include standards acknowledged to be for “the good order of society and for the well-being of its members”: Director of Public Prosecutions v Smith (1991) 1 VR 63. In Comalco Aluminium (Bell Bay) Ltd v O’Connor (1995) 131 ALR 657, 681, the High Court 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.

77. The issue of public interest allows for matters going beyond the applicant’s character to be taken into account. They include public protection, public safety and public confidence in the administration of the licensing system: Constantin v Commissioner of Police, New South Wales Police Force [2013] NSWADTAP 16, [33].

78. The evidence raises a number of matters relevant to the public interest in the context of legislation designed to break the hold of OMCGs and criminality generally in the tattooing industry. One is the fact that over a period of years the applicant has been convicted of multiple offences and has repeatedly demonstrated a willingness to engage in violent or intimidating conduct and to disregard the law. He is currently awaiting trial on a charge of assault occasioning actual bodily harm and has been the subject of numerous AVOs, several of which he has disobeyed. He is still subject to two current AVOs. He has an egregious record of traffic violations, including 14 licence suspensions, which he appears to dismiss on the irrelevant ground that they did not involve court appearances.

79. In his favour is the fact that none of his offences or apprehended offences have involved customers or his tattooing work generally. He appears to be well regarded as a competent and careful tattooist who scrupulously observes health standards. Fellow-workers in the construction industry also appear to hold him in high esteem. Importantly, though, there is insufficient evidence of rehabilitation or of his current mental health status. Without properly tested expert evidence, the tribunal cannot be satisfied about the relationship of his psychiatric condition to his conduct, the steps he is taken to deal with those problems and the effect of any such steps on his likely future conduct. Consequently, it cannot know whether, and if so to what extent, the applicant presents a potential risk to the public.

80. Legislation such as the TP Act serves the public interest in ways that go beyond guarding against misconduct by an individual licensee. Licence refusals and other orders serve the public interest by establishing a regulatory structure for an industry that not only protects the public from harm, but also helps to preserve public confidence in that industry and its members by signalling that those whose activities or facilities do not meet the required standards will not be permitted to operate in the industry: Health Care Complaints Commission v Do [2014] NSWCA 307, [34] – [39]; Moujalli v Roads and Maritime Services [2017] NSWCATAD 141, [52] – [53].

81. That objective must implicitly be one of the purposes of this legislative scheme and is relevant to the interpretation of its provisions. As the tribunal pointed out in Naziry v Director-General, Ministry of Transport [2004] NSWADT 40 in the context of taxicab licensing, decision-makers must so far as possible place themselves in the position of a member of the public who might use the applicant’s services and ask whether that member of the public, knowing of the applicant’s record, would object to the applicant as the driver of the taxi.

82. Given the present state of the evidence, I cannot conclude that the applicant is fully rehabilitated and can be trusted to abide by the law. A potential customer knowing the full facts, particularly a woman, might not, in my view, feel confident about having tattooing services performed by him or that the regulatory scheme was providing proper protection for members of the public.

83. I therefore find that the applicant is not a fit and proper person to hold a tattooist licence and that it is not in the public interest for him to do so. The decision under review must be affirmed.

Orders

84. (1) The decision under review is affirmed.

85. (2) Pursuant to s 64(1)(b), (c) and (d) of the CAT Act, the recording and transcript of the confidential hearing on 10 May 2017, confidential exhibit CR 6 and paragraphs 15, 16, 17 and 65 of these reasons are not for publication or for disclosure to the public, applicant or first respondent.

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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

Decision last updated: 25 May 2017