Bartley v Department of Fair Trading - Industry Licensing Unit [2015] QCAT 450

CITATION: Bartley v Department of Fair Trading – Industry Licensing Unit [2015] QCAT 450 PARTIES: Bernard Bartley v Department of Fair Trading – Industry Licensing Unit (First Respondent) Commissioner of Police Ian Stewart (Second Respondent) APPLICATION NUMBER: OCR158-14 PARTIES: Veronica Edith Bartley v Department of Fair Trading – Industry Licensing Unit (First Respondent) Commissioner of Police Ian Stewart (Second Respondent) APPLICATION NUMBER: OCR159-14 MATTER TYPE: Occupational regulation matters HEARING DATE: 19 August 2015 HEARD AT: Brisbane DECISION OF: Senior Member O’Callaghan Member Favell DELIVERED ON: 9 November 2015 DELIVERED AT: Brisbane ORDERS MADE: 1. The decisions of the second Respondent to make adverse security determinations about Veronica Edith Bartley and Bernard Bartley are confirmed. 2. Veronica Edith Bartley and Bernard Bartley advise the Tribunal and the Respondents in writing within 14 days as to whether they want to continue with the application to review the decisions of the first Respondent to refuse their license applications. -- 1 of 8 -- 2 CATCHWORDS: General Administrative Review – Tattoo Parlours Act 2013 – where review of decision to refuse licence – where review of making adverse security determination by second respondent Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 20 Tattoo Parlours Act 2013 (Qld), s 15, s 17, s 20, s 57, sch 1 Australian Broadcasting Tribunal v Bond (1990) 170 CLR DT & Anor v Department of Justice & Attorney- General, Industry Licensing Unit & Anor; ET v Department of Justice & Attorney-General, Industry Licensing Unit & Anor [2014] QCAT 694 DT & Anor v Department of Justice & Attorney General – Industry Licencing Unit & Anor [2015] QCAT 228. Hughes & Vale Pty Ltd v New South Wales (No. 2) (1955) 93 CLR 127 Smith v Commissioner of Police, NSW Police Force & Anor [2014] NSWCATAD 184 Zahra v Commission of Police, NSW Police Force & Anor [2014] NSWCATAD 211. APPEARANCES and REPRESENTATION (if any): APPLICANT: J. Crowley instructed by Bosscher Lawyers FIRST RESPONDENT: Mr Peter Reinhold SECOND RESPONDENT: Mr M.D Nicholson instructed by Public Safety Business Agency REASONS FOR DECISION [1] Bernard Douglas Bartley seeks a review of a refusal of a tattooist licence and Veronica Edith Bartley seeks a review of a refusal of a tattoo operator licence. [2] Both refusal decisions were made by the chief executive on 1 July 2014 and received by the applicants on 4 July 2014. [3] The Tattoo Parlours Act 2013 (Qld) (‘the TPA’) establishes a licensing and regulatory scheme which requires operators of tattoo parlours and tattoo artists to be licenced from 1 July 2014. -- 2 of 8 -- 3 [4] The TPA allows for two types of licences to be granted and held namely, an operator licence or a tattooist licence. It allows for licence conditions to be imposed on the licence. [5] Under the licencing regulatory scheme any application for a licence must be made to the chief executive. The chief executive must refer the application along with any supporting information to the Commissioner of Police for an investigation and determination and a report to the chief executive as to either or both of the following: (a) Whether the applicant is a fit and proper person to be granted the licence; (b) Whether it would be contrary to the public interest for the licence to be granted. [6] A negative determination by the commissioner in either of those matters is referred to in the TPA as “an adverse security determination”.1 [7] The chief executive may after considering the application for a licence and the determination of the commissioner, decide to grant the licence or refuse to grant the licence. The chief executive however must decide to refuse to grant the licence if an adverse security determination has been made by the commissioner about the applicant.2 [8] Mr and Mrs Bartley applied for the appropriate licences and on receipt of the application the chief executive as required under the TPA3 referred the application by the applicants to the commissioner of police to be investigated. [9] The commissioner of police was required to determine whether the applicants were fit and proper persons to be granted a licence and/or whether it would be contrary to the public interest for the licences to be granted.4 [10] The commissioner of police made adverse security determinations about Mr and Mrs Bartley. He reported to the chief executive that it would not be in the public interest to grant the Bartleys a licence and further that Mr Bartley was not a fit and proper person to be granted a licence under the tattoo parlours regime. The chief executive, as he was required to do under the TPA5, refused the applications on the basis of the adverse security determination. [11] Under section 20(3) of the TPA the commissioner in making the determination as to whether the applicant is fit and proper and whether granting of the licence is contrary to public interest, may have regard to a 1 TPA, schedule 1. 2 Ibid, s 17(2). 3 Ibid, s 15(b). 4 Ibid, s 15(b)(i) and (ii). 5 Ibid, s 17(2). -- 3 of 8 -- 4 criminal intelligence report or other criminal information held in relation to the applicant or a close associate to the applicant that:  Is relevant to the business procedures carried on or perform or supposed to be carried on or performed under the licence; or  Causes the Commissioner to conclude improper conduct is likely to occur if the applicant is granted a licence or the licensee continues to hold a licence; or  Causes the Commissioner not to have confidence improper conduct will not occur if the applicant is granted the licence or the licensee continues to hold the licence. [12] Section 57 of the TPA makes provision for a review by the Tribunal of the adverse security determination.6 In an earlier decision in the matter7 the Tribunal found that a review of the adverse security determination is a merits review conducted pursuant to the provisions in the Queensland Civil and Administrative Tribunal Act 2009 (Qld) subject to the modified procedure prescribed in s 57(3)(b) of the TPA. [13] Section 57(3)(b) of the TPA provides for confidentiality of criminal intelligence in proceedings if a person is seeking to review a refusal to grant a licence made on the grounds of an adverse security determination by the Commissioner. [14] In an earlier decision8 the Tribunal determined that information relied on by the commissioner had been correctly categorised as a criminal intelligence report mentioned in section 20(3). [15] Because of this decision and notwithstanding that the criminal intelligence report founded the decision that is adverse to the applicants, the Bartleys were not to know of the existence or content of the information, apart from the criminal intelligence that was on the public record, namely Mr Bartley’s criminal record. This Proceeding – Review of Adverse Security Determination [16] The issue for determination in these proceedings is whether the decisions of the commissioner of police to make adverse security determinations about Veronica Edith Bartley and Bernard Bartley are the correct and preferable decisions.9 The Bartleys submit it is not contrary to the public 6 Section 57(3)(a). 7 DT & Anor v Department of Justice & Attorney-General, Industry Licensing Unit & Anor; ET v Department of Justice & Attorney-General, Industry Licensing Unit & Anor [2014] QCAT 694. 8 DT & Anor v Department of Justice & Attorney General – Industry Licencing Unit & Anor [2015] QCAT 228. 9 QCAT Act s 20. -- 4 of 8 -- 5 interest to grant them a license and that Bernard Bartley is a fit and proper person to hold a license. [17] At the hearing of this application Mr Crowley, for Mrs Bartley, relied on the contents of an affidavit of Veronica Edith Bartley10 and a number of references11 as well as various correspondence sent by Ms Bartley to various persons including the Premier. [18] Mr Bartley who represented himself also relied on that material relied on including an affidavit of his own12. [19] Mr Bartley deposed that he owned and operated Gallery Ink in Rockhampton with his wife. He was a tattooist employed there. He applied for a tattooist licence on the 26th of February 2014 and received notification from the Department of Fair Trading on 4 July 2014 that he had been refused a licence on the grounds that it would be against the public interest. He acknowledged that the evidence used to make the decision was an adverse security determination issued by the commissioner. [20] He contends that since he has been refused the licence Gallery Ink has not been operating. He had been a tattooist for over 30 years and said that he had never had his integrity, confidence and skill come into question. He says that he is unable to work in any other industry and he will be deprived of his capacity to earn a living, support himself or pay taxes and that he would become reliant on social security to survive. [21] He says that as a result of the tattoo parlour being closed his wife and he were left with significant amounts of debt with little or no income to satisfy their outstanding obligations. He says that he and his wife will be forced to sell Gallery Ink in the event that they do not receive a tattooist licence for him and operator licence for his wife. [22] The references relied on we are told were given with the knowledge that they were to be used in these proceedings. Both references are favourable to Mr Bartley. [23] Prior to the hearing the commissioner of police provided the Tribunal with a bundle of documents which included Mr Bartley’s criminal history and the contents of a number of QP9 documents which purported to set out summaries of allegations that had been made against Mr Bartley. Mr Bartley in his submissions acknowledged that he had a criminal history. Those documents became Exhibit 1. [24] Mrs Bartley gave evidence during the hearing. Her evidence covered the same as included in her correspondence with the Premier and included in the material that had already been filed. 10 Exhibit 2. 11 Exhibits 9 and 10. 12 Exhibit 3. -- 5 of 8 -- 6 [25] She had been working as a support worker for Endeavour on the basis of 7 days on and 7 days off. She gave evidence of the prior operation of Gallery Ink and said that it had employed up to three girls and Mr Bartley. [26] She gave evidence that she is the owner of the property in which the business is located and if given a licence would intend to operate it with her husband. She has no criminal history. [27] She acknowledged that her husband had a lot of say in running the business and if granted a licence would continue to do so. She acknowledged that they had contact with two people in the Rebels Motorcycle gang known as Obi and Slim. They still have contact with both of those persons. [28] Mrs Bartley gave evidence that she knew that her husband had a sexual criminal conviction as a tattooist but pointed out that conviction was over a decade ago. [29] Mr Bartley did not give evidence but chose to make submissions. [30] Mr Bartley, although he did not give evidence contested the correctness of the information contained on the QP9 which involved an initial allegation of rape but was changed to indecent assault on a 16 year old girl. The respondents rely in part on that information. [31] The allegation was that in April of 2005 a 16 year old girl attended at the tattoo studio to have a tattoo drawn on her left hipbone. She was the daughter of an acquaintance of Mr Bartley. At the time she was wearing a skirt and Mr Bartley asked her to remove her skirt and partially pull down her underwear below her hipbone so he could sketch the tattoo in the right area. Once the stencilling of the tattoo was completed Mr Bartley had a discussion about body piercing with the girl and he asked her if she ever thought about getting genital piercing. It was alleged that he then brushed his hand across the front of her vagina over the top of her underwear and whilst he was showing her a folder containing pictures of genital piercing he pulled her underwear half way down her thigh and then proceeded to touch her around her clitoris and then inserted one finger into her vagina. After she told him to stop and had pulled her underwear up Mr Bartley told her “let’s keep this our secret”. [32] Mr Bartley denies that allegation but chose not to give evidence. He said he pleaded guilty to the lesser charge because he could not afford legal fees. [33] The commissioner of police whose submissions are adopted by the chief executive submits that the evidence shows that both applicants have a connection and a joint financial interest. They submit that Mrs Bartley does not attest to having any experience as an operator of tattoo parlours and because of Mr Bartley’s experience it is likely that he would be the prime operator if a licence was granted. -- 6 of 8 -- 7 [34] They point out that contrary to Mr Bartley’s contention that his integrity, competence and skill have never come into question he has a criminal history including one related to a serious sexual offence of a minor occurring in the context of employment as a tattooist. [35] The respondents submit that the assessment of whether a person is “fit and proper” to be the holder of a licence is different to an assessment of whether the person is of good character13. [36] They submit that the question whether a person is “fit and proper” is one of value judgment14 and the persons fitness is to be gauged in the light of the nature and purpose of the activities that person will undertake15. We accept those submissions to be correct. [37] We consider that there is a public interest in the public having full confidence in the regulation of the tattoo parlour industry. [38] The respondents submit that the conduct resulting in the conviction for a sexual assault of a minor although it is over 10 years old is relevant and it demonstrates that Mr Bartley is not a fit and proper person to possess a licence. [39] Further, they say that he has not presented any evidence sufficient to demonstrate that he is a fit and proper person to hold a licence. [40] The Tribunal is of the view that not only is there a public interest in the proper regulation of the tattoo industry pursuant to the relevant legislation but that the protection of the public is an important factor to be taken into account along with public safety and public confidence in the administration of the licencing regime. [41] We have reviewed all of the material in the confidential criminal intelligence reports and do not regard that material in itself as requiring an adverse determination. [42] However, the circumstances surrounding the criminal conviction of sexual assault on a 16 year old whilst receiving a tattoo from Mr Bartley even though it is 10 years old weighs in favour of a finding that Mr Bartley is not a fit and proper person. [43] We are of the view that Mr Bartley is not a fit and proper person to hold a licence and it would be contrary to the public interest for a licence to be given to Mr Bartley. [44] Because of the demonstrated financial link and family link between the applicants and because of the finding we have made in respect of Mr 13 Smith v Commissioner of Police, NSW Police Force & Anor [2014] NSWCATAD 184; Zahra v Commission of Police, NSW Police Force & Anor [2014] NSWCATAD 211. 14 Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at [380]. 15 Hughes & Vale Pty Ltd v New South Wales (No. 2) (1955) 93 CLR 127. -- 7 of 8 -- 8 Bartley we are of the view that it would be contrary to the public interest for the licence sought by Mrs Bartley to be granted. [45] In those circumstances we confirm the decisions of the commissioner of police to make adverse security determinations about Mr and Mrs Bartley. The Substantive Review [46] Mr and Mrs Bartley’s substantive reviews are reviews under s 56 of the TPA of the decisions of the chief executive to refuse to grant the license. [47] As discussed above, the TPA provides16 that the chief executive must decide to refuse to grant the licence if an adverse security determination is made by the commissioner of police. The Tribunal has confirmed the decisions to make the adverse security determinations. [48] In those circumstances, the Tribunal, standing in the shoes of the decision maker must on review confirm the decision to refuse to grant the licenses. We consider at this point that Mr and Mrs Bartley should be given the opportunity to decide whether they wish to continue with the substantive review in light of this decision. We order accordingly. 16 TPA s 17(2). -- 8 of 8 --