Capper v Office of Fair Trading [2022] QCAT 407

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: Capper v Office of Fair Trading [2022] QCAT 407 PARTIES: DAVID BRYAN CAPPER (applicant) v OFFICE OF FAIR TRADING – INDUSTRY LICENSING UNIT (respondent) APPLICATION NO/S: OCR261-21 MATTER TYPE: Occupational regulation matters DELIVERED ON: 11 November 2022 HEARING DATE: 8 August 2022 HEARD AT: Brisbane DECISION OF: Member Howe ORDERS: Application dismissed CATCHWORDS: PROFESSIONS AND TRADES – OTHER OCCUPATIONS - where an applicant for a tattoo licence had an extensive criminal history though no custodial sentences – where the applicant faced current unresolved and serious criminal charges – where the legislation required charges levelled and convictions recorded to be considered in determining whether the applicant was a fit and proper person to hold a licence – where the applicant was found not to be a fit and proper person for a licence given the criminal history and no period of demonstration that further offending would not occur Tattoo Industry Act 2013 (Qld) s 6, s 7, s 12 Australian Broadcasting Tribunal v Bond (1990) HCA 33 Petracaro v Commissioner of Consumer Affairs (1994) 62 SASR 387 APPEARANCES & REPRESENTATION: Applicant: Self-represented Respondent: Self-represented by P Rashford REASONS FOR DECISION [1] On 22 April 2021 Mr Capper applied to the Office of Fair Trading for a tattooist’s licence. -- 1 of 6 -- 2 [2] His application was refused on the basis that he was not a fit and proper person to hold a licence and that it would be contrary to the public interest for him to be granted such. [3] Mr Capper has applied to the Tribunal to review that decision. The review is by way of fresh hearing on the merits that apply as at date of determination by the Tribunal. The legislation [4] The licensing of tattooists is provided for by the Tattoo Industry Act 2013 (Qld) (‘the Act’) which provides: S 6 Body art tattooing businesses to be licensed (1) A person must not carry on a body art tattooing business, whether on the person’s own behalf or on behalf of another person, at premises unless the person is authorised to do so by an operator licence. … S 7 Body art tattooists to be licensed (1) An individual must not perform a body art tattooing procedure for fee or reward unless authorised to do so by a tattooist licence. … S 12 Criteria for granting application (1) The chief executive may grant an application for a licence only if the chief executive is satisfied— (a) (a) the application is properly made; and (b) (b) the applicant is a fit and proper person to hold the licence; and (c) (c) it would not be contrary to the public interest for the licence to be granted. (2) In deciding whether the applicant is a fit and proper person to hold the licence, the chief executive must have regard to the following— (a) (a) the criminal history of the applicant; (b) (b) in dealings in which the person has been involved, whether the person has— (i) shown dishonesty or lack of integrity; or (ii) used harassing tactics; (c) (c) information about the person that indicates— (i) the person is a risk to public safety; or (ii) the holding of a licence by the person would be contrary to the public interest; … (h) anything else relevant to the person’s suitability to hold the licence. [5] The legislation was introduced in 2013 as the Tattoo Parlours Act 2013. The explanatory notes to the legislation said the policy objective was to introduce a -- 2 of 6 -- 3 licensing regime which would eliminate and prevent the tattoo industry in Queensland being infiltrated by criminal organisations, including criminal motor cycle gangs and their associates. An aim of the legislation was to provide the community with assurance that people authorised to operate tattoo parlours and to do work as body art tattooists would be subject to rigorous identification and probity requirements. Criminal history [6] Mr Capper has an extensive criminal history. [7] As at date of hearing he also had additional charges pending in the Magistrates Court. The criminal history tendered recorded 18 separate counts of supply of a dangerous drug over the period 24 April 2020 to 31 July 2020. There was also a charge of trafficking in dangerous drugs, as well as other charges: possession of property suspected of being the proceeds of an offence under the Drugs Misuse Act; possessing anything used in commission of a crime; contravening an order about information necessary to access information stored electronically; possessing property suspected of having been used in connection with the commission of a drug offence; unlawful possession of a weapon category D/H/R; breach of a bail condition. [8] Section 12(2)(a) of the Act requires regard being paid to an applicant’s criminal history. Criminal history is defined in Schedule 1 of the Act to include every charge made against the person for an offence in Queensland or elsewhere. [9] The limitation on reference to convictions following expiry of the rehabilitation period set by the Criminal Law (Rehabilitation of Offenders) Act 1986 (Qld) does not apply to the scrutiny of a person’s criminal history required under the Act in association with an application for a tattooist’s licence. [10] The extensive range of outstanding charges, approximately 26, was put to Mr Capper at hearing. He claimed that he had been informed by his legal representative that many of the charges were no longer to be pursued by police, including the trafficking charge, but conceded that there would remain 5 or 6 counts of supply of a dangerous drug to be dealt with. [11] The respondent was directed to obtain and file an updated criminal history. That has been supplied and states the criminal history as at 17 August 2022. [12] The updated criminal history paints a very different picture to that portrayed by Mr Capper at hearing. Only one of the 26 charges mentioned in the previous criminal record has been finalised, the charge of breach of bail condition. In respect of that matter a conviction has been recorded and Mr Capper has been fined $300. [13] In the updated criminal history the following charges were listed for further mention in the Brisbane Magistrates Court on 9 September 2022: Possession of property suspected of being the proceeds of an offence under the Drugs Misuse Act; Possession of property suspected of having been used in connection with the commission of a drug offence; unlawful possession of a weapon category D/H/R [14] The following charges have been remitted to the Supreme Court at Brisbane and were listed for mention on 30 September 2022: Trafficking in dangerous drugs; 18 counts of supplying dangerous drugs, possessing something used in commission of a crime; contravening an order -- 3 of 6 -- 4 about information necessary to access information stored electronically; and possessing relevant substances or things. [15] The Tribunal has not been informed of the outcome of the mention in the Brisbane Magistrates Court on 9 September 2022 or the mention in the Supreme Court on 30 September 2022. [16] Mr Capper’s criminal history discloses many appearances in various Magistrates Courts from his late teenage years to present time. He is presently 36 years old. [17] Many of the charges (and convictions) concern drug offences. He was also convicted of fraud - dishonestly obtaining property from another, in 2015, and fined $1,000. He has convictions for stealing and possession of a knife in a public place or a school in 2020, and also in 2020 a conviction for another charge of unlawful possession of a weapon. Medical evidence [18] Mr Capper provided medical reports in support of his claim to the effect that he has sought assistance to help him overcome the substance abuse issues in his life. [19] He has provided a medical report from Lives Lived Well, an alcohol and other drug service. The report, dated 8 April 2022, is provided by a counsellor employed at the service stating Mr Capper has been provided counselling services since 8 September 2020 and that Mr Capper has attended and completed a number of other treatment/counselling services through to 12 January 2021. [20] There is also a report from a treating psychologist dated 8 April 2022. Mr Capper commenced treatment with the psychologist in August 2021 and as at time of writing the report he had attended 15 sessions. The psychologist noted that since February 2017 he been treated by another psychiatrist and then his care transferred to a general practitioner. [21] The report referred to Mr Capper’s problems with depression, anxiety and stress. It states Mr Capper had been highly traumatised when his pet dog had been seized by the Council and suffered decline in health whist impounded, which caused him to self- medicate with methamphetamine at the time. [22] The report continued that despite ongoing multiple traumatic stressors, Mr Capper had reported to the psychologist that he had not engaged in any illicit drug use since July 2020. The psychologist opines that grant of a tattooist licence would likely improve Mr Capper’s mental health and wellbeing by providing him with a more structured daily routine, a sense of meaningful contribution to the community and reduce the distress of his struggle to meet financial obligations. In his opinion grant of a tattooist’s licence would not represent a risk to public safety, particularly given none of Mr Capper’s previous offending was in the context of his work as a tattooist or at a tattoo parlour. [23] Mr Capper said at hearing he was still consulting with the psychologist on a fortnightly basis. -- 4 of 6 -- 5 Fit and proper person [24] As remarked by Toohey and Gaudron JJ in Australian Broadcasting Tribunal v Bond:1 The expression "fit and proper person", standing alone, carries no precise meaning. It takes its meaning from its context, from the activities in which the person is or will be engaged and the ends to be served by those activities. The concept of "fit and proper" cannot be entirely divorced from the conduct of the person who is or will be engaging in those activities. However, depending on the nature of the activities, the question may be whether improper conduct has occurred, whether it is likely to occur, whether it can be assumed that it will not occur, or whether the general community will have confidence that it will not occur. The list is not exhaustive but it does indicate that, in certain contexts, character (because it provides indication of likely future conduct) or reputation (because it provides indication of public perception as to likely future conduct) may be sufficient to ground a finding that a person is not fit and proper to undertake the activities in question.2 (emphasis added) [25] Mr Capper has clearly engaged in improper conduct in the past. His criminal record speaks to that. [26] The question is, is the improper conduct likely to occur again, and with what confidence can the general community conclude that it will not? [27] I note, whilst Mr Capper has had many convictions recorded, none to date have resulted in him suffering actual custodial confinement. Rather he has been granted a number of good behaviour bonds, a number of probation orders and he has been fined many times. [28] The current charges he faces in the Supreme Court are yet to be decided and are by far the most serious he has had to face to date, and if found guilty may result in a custodial sentence. [29] The main purpose of the Act is to minimise the risk of criminal activity in the tattoo industry.3 [30] The Act provides in s 12 that the chief executive may grant an application for a licence only if the chief executive is satisfied, amongst other things, that the applicant is a fit and proper person to hold the licence, and that it would not be contrary to the public interest that the licence be granted. [31] In deciding whether the applicant is a fit and proper person to hold a licence the chief executive must have regard to the criminal history of the applicant and consider dealings in which the applicant has been involved as to whether the applicant has shown dishonesty or lack of integrity. [32] Rather surprisingly, what is permitted for consideration as part of an applicant’s criminal history are not only convictions recorded, regardless of date, but also charges of any type brought against an applicant. Indeed I am required to take such expanded criminal history into account in assessing whether he is a fit and proper person to hold a licence. 1 (1990) HCA 33. 2 Toohey and Gaudron JJ [36]. 3 s 3 the Act. -- 5 of 6 -- 6 [33] I do so and find he is not a fit and proper person to hold a licence and it would be contrary to the public interest to grant such. [34] There is little explanation offered by Mr Capper about his prior convictions. His extensive criminal history to date is a factor which suggests a general disregard for the law. [35] A number of his previous convictions involve dishonesty and lack of integrity. Similarly there have been a number of charges and convictions concerning both possession of a knife in a public place or a school and unlawful possession of a weapon. That is suggestive, to my mind, of some element of societal disconnect on the part of Mr Capper. [36] Information about the circumstances of the current charges Mr Capper faces is scant. He is entitled, given the charges remain extant, not to offer that information, but the charges he currently faces in the Supreme Court are serious and cannot be ignored. [37] At hearing he endeavoured to minimise the number of supply of a dangerous drug charges proceeding against him and suggested he would not face the charge of trafficking. That was clearly wrong given the updated criminal history provided after hearing. [38] In Petracaro v Commissioner of Consumer Affairs4 Olsson J referred to an applicant for a contractor’s licence there being required to demonstrate some significant period of good behaviour following relevant convictions before being entitled to be given a licence. I concur and find that applies here too. [39] Whilst the medical evidence offered in support of Mr Capper obtaining a licence is encouraging in so far as it suggests some acceptance of responsibility for his past actions and demonstrates motivation to rebuild a positive and meaningful life, I determine it will not be until all current charges against him have been finalised, penalties (if any) imposed and satisfied, and then a demonstrative (and perhaps significant) period of good behaviour following that, that he will be entitled to a licence. [40] At the present time he is not. The application is refused. 4 (1994) 62 SASR 387, 391. -- 6 of 6 --