Zahra v Commissioner of Police, NSW Police Force & NSW Fair Trading

[2014] NSWCATAD 211

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	Zahra v Commissioner of Police, NSW Police Force & NSW Fair Trading [2014] NSWCATAD 211
Hearing dates:	11 July 2014
Decision date:	03 December 2014
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	S Montgomery, Senior Member
Decision:	The decision under review is affirmed.
Catchwords:	tattoo operator licence - jurisdiction - fit and proper person - public interest
Legislation Cited:	Tattoo Parlours Act 2012 Tattoo Parlours Regulation 2013 Civil and Administrative Tribunal Act 2013 Administrative Decisions Review Act 1997
Cases Cited:	Smith v Commissioner of Police NSW Police Force & NSW Fair Trading [2014] NSWCATAD 184
Category:	Principal judgment
Parties:	Paul Zahra (Applicant) NSW Fair Trading (First Respondent) Commissioner of Police, NSW Police Force (Second Respondent)
Representation:	John Stonham & Co, Lawyers (Applicant) Crown Solicitors Office (First and Second Respondents)
File Number(s):	141223
Publication restriction:	Section 64 of the Civil And Administrative Tribunal Act 2013 applies to those paragraphs of these reasons identified as [not for publication]. Those paragraphs are not to be released to either the Applicant or to the public

reasons for decision

1. This is an application for review of a determination to refuse the Applicant's application for a Tattoo - Operator Licence. The decision to refuse the licence application was taken by the Director-General of Fair Trading ("the Director-General") under section 16 (1) of the Tattoo Parlours Act 2012 ("the Act"). The Commissioner of Police ("the Commissioner") made an adverse security determination under section 19(2) of the Act, to the effect that it would be contrary to the public interest for the Applicant to be granted a licence and that the Applicant is not a fit and proper person to hold the licence sought. Pursuant to section 27(3) of the Act, the Commissioner is a party to these proceedings.

The licensing regime

1. The Act introduced licensing requirements for operators of body art tattoo parlours and tattooists. The regime came into force in November 2013. The licensing regime imposes a test of whether the person is "fit and proper" and whether it would be "contrary to public interest" to grant the licence or allow it to continue in force. It is an offence to carry on a body art tattooing business without an operator licence: section 6 of the Act.

1. Pursuant to Part 2 of the Act, body art tattooing businesses, body art tattooists and employed body art tattooists are to be licenced. It is an offence for those businesses or individuals, as the case may be, to fail to have the requisite licence: sections 6 - 7 of the Act. Businesses that only undertake cosmetic and medical tattooing procedures do not need a licence.

1. Pursuant to section 9 of the Act, there are two kinds of licence that 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 organisation. Sole operators only require an operator licence.

1. A person may apply to the Director-General for a tattooist licence pursuant to section 11 of the Act. Sections 12 - 13 of the Act provide for an application to be accompanied by a written statement in respect of close associates of applicants and for the fingerprinting and palm printing of applicants.

1. Pursuant to section 14(b) of the Act, upon receiving an application for a licence, the Director-General is 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.

1. Section 19 provides that the Commissioner is to inquire into and determine, and report to the Director-General on those issues. Subsection 19(3) provides that, 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.

1. Pursuant to section 20, neither the Commissioner nor the Director-General are required to give any reasons for the determination or for not granting the licence, if such reasons would disclose any criminal intelligence report or other criminal information.

1. The Director General has a discretion whether to grant a licence in some circumstances, however, a licence must not be granted if the Commissioner makes an adverse security determination in relation to the applicant: section 16(3)(c).

1. The Commissioner provided a report under section 19 (1) of the Act ("the section 19 report") in relation to the Applicant. A delegate of the Commissioner reported that:

(i)   the delegate had inquired into the application; and

(ii)   the delegate had determined that it would be contrary to the public interest for the licence to be granted for the reason that the applicant is a member of the Rebels Outlaw Motorcycle Gang (OMCG); alternatively

(iii)   the delegate had determined that the applicant was not a fit and proper person to be granted the licence for the reason that the applicant is a member of the Rebels Outlaw Motorcycle Gang (OMCG).

1. As is anticipated by the provisions of section 20 of the Act, the reasons for the determination that were provided to the Applicant were brief. They stated:

The reasoning process that led the administrator to the conclusions the administrator made

An adverse security determination has been made by a delegate of the Commissioner of Police about the applicant.

The Act provides that the Director-General must not grant a licence where an adverse security determination has been made by the Commissioner of Police about the applicant.

As an adverse security determination has been made by a delegate of the Commissioner of Police about the applicant, the application is refused.

1. The Applicant was subsequently given a redacted copy of the section 19 report.

The Tribunal's Jurisdiction

1. I discussed the nature of the Tribunal's Jurisdiction under the Act in my recent decision in Smith v Commissioner of Police NSW Police Force & NSW Fair Trading [2014] NSWCATAD 184 ("Smith v Commissioner of Police"). In that matter I indicated my view that the Tribunal has jurisdiction to make a fresh determination on the basis of the material placed before it. The Tribunal is not confined to the grounds relied upon by the Commissioner in making the adverse security determination.

1. The Tribunal may make its decision on any other lawful, discretionary basis. In doing so there is no need to revisit the adverse security determination.

1. Pursuant to section 27(3)(a) of the Act the Commissioner is a party to the proceedings. In this matter, both the Commissioner and the Director-General were represented separately. However, the Commissioner took a far more active role in the proceedings than did the Director-General.

1. Section 49 of the Civil and Administrative Tribunal Act 2013 ("the NCAT Act") provides that proceedings of the Tribunal are to be conducted in public, but sub-section (2) provides that the Tribunal can make an order that a hearing be conducted wholly or partly in private if it is satisfied that it is desirable to do so by reason of the confidential nature of any evidence or matter or for any other reason.

1. Section 64 of the NCAT Act provides:

64 Tribunal may restrict disclosures concerning proceedings

(1) If the Tribunal is satisfied that it is desirable to do so by reason of the confidential nature of any evidence or matter or for any other reason, it may (of its own motion or on the application of a party) make any one or more of the following orders:

(a) an order prohibiting or restricting the disclosure of the name of any person (whether or not a party to proceedings in the Tribunal or a witness summoned by, or appearing before, the Tribunal),

(b) an order prohibiting or restricting the publication or broadcast of any report of proceedings in the Tribunal,

(c) an order prohibiting or restricting the publication of evidence given before the Tribunal, whether in public or in private, or of matters contained in documents lodged with the Tribunal or received in evidence by the Tribunal,

(d) an order prohibiting or restricting the disclosure to some or all of the parties to the proceedings of evidence given before the Tribunal, or of the contents of a document lodged with the Tribunal or received in evidence by the Tribunal, in relation to the proceedings.

...

1. The hearing was mostly conducted openly however the Commissioner presented some material on a confidential basis and the Applicant was excluded from that part of the proceedings. I do not propose to discuss any material that was presented on a confidential basis in open reasons. Those parts of the reasons that are not to be disclosed are identified as "[not for publication]".

The Applicant's Case

1. The Applicant relies on his own evidence. He filed affidavits and also appeared at the hearing, gave evidence and was cross-examined.

1. The Applicant has operated a tattoo business ("the business") in Batemans Bay since 2008. The business operated from premises owned by the Applicant under the trading name "Studio Ink". There are four staff who work at the Tattoo shop on a subcontractor basis, paying a commission to the Applicant. The business has average weekly takings in the vicinity of $1,500.

1. The Applicant stated that he has never had any trouble with the authorities directly related to the operation of the business. He is aware that some members of the Police have frequented the tattoo shop as clients of the tattooists.

1. Following the introduction of the Act the Applicant applied for an Operator's licence in relation to the business. The determination of that application is the subject of these proceedings.

1. The Applicant conceded that in 1977 he was charged and convicted in relation to the malicious wounding offence, in 2007 he was fined on a charge of open/keep/use premises for selling liquor when unlicensed and he is currently defending charges of Cultivate Prohibited Plant.

1. The Applicant stated that he joined the Rebels Motorcycle Club ("the Rebels") in about 1974. He considers himself to be a retired member of the Rebels but stated that he maintains the friendships that he made in the club, meets other members of the club socially and occasionally goes on rides to socialise with friends from the club. He said that he has not been actively involved in the decision making processes of the Rebels for about seventeen years.

1. He said that he retired from the club because he had bought a fishing trawler and was often away so he was not able to put the time into the club, attend meetings or go on runs. He spoke to the President of the club's Batemans Bay chapter, Shane Vidlar, who agreed that he could retire but that he could go on club runs if invited. He was able to keep his jacket. He agreed that he participated in a national run to Canberra in 2012 and that he had also attended other runs and parties with the club. He did not agree that he had attended every run since he retired. He agreed that on 26 June 2014 he had attended the funeral of Simon Rasic, a senior member of the Rebels.

1. The Applicant stated that he occasionally visits the Batemans Bay chapter's clubhouse. He said that he doesn't need an invitation to be able to attend. He agreed that he is trusted and that occasionally he has had the key to the clubhouse. He agreed that he has two vests - one that he wears and one that was given to him as a gift in about 2013. He did not agree that he had been given the gift because he had been a member of the club for 40 years. He accepted that the vest displays 30 year and 40 year member patches. He said that he joined the Rebels in 1974 but denied that he was a foundation member.

1. Under cross-examination the Applicant was shown a video title "Rebels Pride Part 2" which was apparently made on 29 March 2003 to commemorate the 30 year anniversary of the foundation of the Sydney chapter of the Rebels. The Applicant appeared in the video and Alex Vella, President of Rebels, Australia referred to the Applicant as one of the original members of the club and as still being with the club after 30 years.

1. The Applicant did not agree that he had been a foundation member of the club. He agreed that he had gone to the 30 year anniversary function even though he was no longer an active member.

1. He also agreed that he wears club patches. However, he denied that the year patches indicate how long the wearer has been a member of the club. He said that the patches indicate when the wearer first joined the club. He said that the significance of the 40 year patch is that the club had been going for 40 years, not that he had been a member for 40 years. However, he agreed that not everyone who was a member of the club on the occasion of the 40 year anniversary received a 40 year patch.

1. The Applicant agreed that patches are important for cohesion amongst club members and that patches are controlled by the club.

1. When asked why he was given club colours in 2003 when he was not a member, the Applicant explained that those were the colours that the club rides with and that he would not be permitted to ride without the colours.

1. The Applicant was referred to the club constitution. He said that he was aware of the constitution but had not previously seen it. He said that there were some things in the constitution that were surprising to him for example the statement that any person joining the club will "join once and leave only once, never to join another club".

1. The Applicant was referred to the provision in the constitution that states:

Any member who decides to leave is fully obligated to hand in his own leather vest with colours in tact and any other club properties.

1. He agreed that the club considers colours to be its property and also that he was not required to hand back his vest. He explained that he was retired but that he had never left the club.

1. Similarly, in relation to the requirement of the club constitution that:

"if an ex - rebel has a club tattoo of any sort and is no longer part of the club the tattoo must be with eraced immediately from the time he is no longer a member"

the Applicant explained that he has one Rebels tattoo and that it has not been blacked out.

1. The Applicant agreed that he has been associated with the Rebels for 40 years and that he never broke that association. He also agreed that no-one else associated with the club's Batemans Bay chapter has had that level of association. However, he did not accept that he still has the privileges of membership of the club. He said that he cannot wear the club colours if not on a run.

The Applicant's submissions

1. Counsel for the Applicant submitted that the Applicant has never denied that he was a member of Rebels or that he possesses club vests, associates with club members and attends club rides. However, he has maintained that he has retired from the club. He moved to Batemans Bay for a lifestyle change and he is not involved on a day-to-day basis with the club.

1. He submitted that since the Applicant took over the business there have been no issues with the authorities related to the operation of the business. There have been no breaches of health regulations and no issues with other tattoo parlours. Members of the Police force are clients of the business.

1. Consequently, the Tribunal should have no concerns that the Applicant would not comply with any obligations imposed on him as a licensee under the Act. The licence should therefore be granted.

The Commissioner's Case

1. The Director-General did not take an active role in the proceedings. The case for the Respondents was undertaken by the Commissioner.

1. Under 16(3)(c) of the Act, the Director-General must refuse to grant a licence if the Commissioner gives an adverse security determination about an applicant. In this case, the Commissioner made an adverse security determination under section 19(1) of the Act in regard to the Applicant, finding that it is not in the public interest that the Applicant be granted the licence and further, that he is not a fit and proper person to be granted the licence, for the reason that he is a member of the Rebels.

1. The Commissioner relies on the contents of the section 19 report. A redacted copy of the section 19 report was provided to the Applicant. An unredacted copy of the report has been provided to the Tribunal. I have made an order under Section 64 of the NCAT Act in relation to the redacted parts of the section 19 report.

1. The Commissioner also relies on an affidavit of Senior Constable Scott Carland annexing photographs of the Applicant's vests.

1. Part of the proceedings was conducted in the absence of the Applicant and his representatives. The Applicant was aware of the fact that he was excluded from the confidential hearing. I have made an order under Section 64 of the NCAT Act in relation to the material presented by the Commissioner in the confidential hearing.

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1. The Commissioner contends that the Applicant is a current member of the Rebels. He was seen participating in the Rebels National Run in October 2012, wearing a 20 year life member patch of the Rebels.

1. The Commissioner further contends that the Rebels are recognised by law enforcement agencies in all jurisdictions across Australia as an organised crime network and that the crime threat posed by the Rebels is considered to be nationally significant.

1. The Commissioner points to the Second Reading Speeches made when the Tattoo Parlours Bill was introduced to parliament as guidance to the public interest issue associated with the Rebels involvement in the industry and the relevance of the Applicant's continued involvement with the Rebels.

1. In his Second Reading Speech Mr Anthony Roberts observed that the bill did not seek to define or particularise the meaning of what would be against the public interest in this regulatory regime. It is "deliberately broad to allow the police commissioner sufficient scope to get crime gangs out of this industry and keep them out". 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. Mr Roberts further noted that "Applicants who are part of this criminal world can and should be refused a licence on public interest grounds." Further, "...if the commissioner has credible evidence of their links to bikie gangs, under this scheme he may refuse or revoke their licence."

1. The Commissioner further contends that the Applicant has engaged in criminal activities on behalf of the Rebels and that his continued active association with the Rebels and its members and with other individuals who have violent criminal histories raises doubt about his conduct in the future.

1. For these reasons the Commissioner submits that the determination under review should be affirmed.

Consideration

1. In my reasons for decision in Smith v Commissioner of Police I considered the meaning of the expressions "fit and proper person" and the 'public interest' in the context of the Act. I will not repeat that discussion here.

1. I also discussed the focus of the Act with the intention to rid the industry of any criminal or otherwise undesirable element and the avoidance of improper conduct.

1. In his second reading speech on the introduction of the Bill to Parliament, the Minister for Police and Emergency Services Mr Gallacher noted that the Act was introduced in response to gang crime in NSW. It aims to break the stranglehold that outlaw motorcycle gangs have over the tattoo industry. It was anticipated that removing bikies from the tattoo industry will reduce the reasons for rival gangs to fight turf wars, because these businesses will no longer be symbols of a gang's territory.

1. On the material before me, I am satisfied that the Applicant has continued his involvement with the Rebels. He does not dispute this fact but maintains that he is a retired member. The evidence suggests otherwise.

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1. It is clear that the Applicant has continued his associations with the Rebels and other club members. He has been permitted to retain his vest and has continued to receive updated patches. He has retained a club tattoo. He has continued to participate in club activities while wearing club colours.

1. I accept that the Applicant has not continued the level of involvement with the Rebels that he had shown in the past. For example he no longer attends regular club meetings. However, this lessened level of participation does not alter the fact of his continued associations. Nor does it alter the fact that he continues to be accepted by the Rebels as a member of the club. This fact is evidenced by the patches that he has received.

1. On the material before me I am satisfied that the Rebels are recognised as an organised crime network and that the club poses a significant threat to the public interest.

1. It is clear that the Act establishes a regime that is intended to remove the influence of outlaw motorcycle gangs from the industry. In my view, the Applicant's continued involvement with the Rebels provides an opportunity for the Rebels to exercise a significant influence over the Applicant's business and a reason to be involved in the industry in order to benefit the Applicant's business. This is not in the public interest or in the interest of the industry.

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1. In my view, the Applicant's failure to acknowledge the full extent of his relationship with the Rebels indicates that he does not accept the potential threat posed by that involvement. For this reason, I agree that it would be contrary to the public interest for the Applicant to be granted a licence and that the Applicant is not a fit and proper person to hold the licence that he is seeking.

1. The public would not expect that a person with the Applicant's background and associations would be granted such a licence. Until such time as he fully disassociates himself from the Rebels, this risk will remain and he should not be granted the licence.

1. It follows, in my view, that the decision to refuse the Applicant's licence application was the correct and preferable one. It should therefore be affirmed.

Order

The decision under review is affirmed.

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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: 03 December 2014