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  4. MKN v Chief Executive of the Queensland Department of Justice and Attorney-General - [2015] QCAT 358

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MKN v Chief Executive of the Queensland Department of Justice and Attorney-General[2015] QCAT 358

MKN v Chief Executive of the Queensland Department of Justice and Attorney-General[2015] QCAT 358

CITATION:

MKN v Chief Executive of the Queensland Department of Justice and Attorney-General [2015] QCAT 358

PARTIES:

MKN

(Applicant)

v

Chief Executive of the Queensland Department of Justice and Attorney-General

Commissioner of the Queensland Police Service

(Respondents)

APPLICATION NUMBER:

OCR052-15

MATTER TYPE:

Occupational regulation matters

HEARING DATE:

26 August 2015

HEARD AT:

Brisbane

DECISION OF:

Senior Member O'Callaghan

Member Browne

DELIVERED ON:

9 September 2015

DELIVERED AT:

Brisbane

ORDERS MADE:

  1. The information exhibited to the affidavit of Detective Superintendent Jon Harold Wacker sworn 26 May 2015 is correctly categorised as criminal intelligence reports or other criminal information mentioned in s 20(3) of the Tattoo Parlours Act 2013 (s 20(3) material).

CATCHWORDS:

GENERAL ADMINISTRATIVE REVIEW – Tattoo Parlours Act 2013 – where review of decision to refuse a licence – preliminary issue – where issue is whether information relied on by the Commissioner of Police in making an adverse security determination is correctly categorised as criminal intelligence report or other criminal information mentioned in s 20(3) of the Tattoo Parlours Act 2013 – where meaning of ‘criminal intelligence report’ and ‘other information’ previously determined by the Tribunal was adopted

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 19, s 66

Tattoo Parlours Act 2013 (Qld), s 4, s 20, s 22, s 57

AVS Group Australian v Commissioner of Police [2012] NSWADT 1; cited

DT & Anor v Department of Justice and Attorney-General – Industry Licencing Unit & Anor [2015] QCAT 228; applied

APPEARANCES:

The hearing was conducted in the absence of the applicant and the respondents.

REASONS FOR DECISION

  1. [1]
    MKN wants a licence to conduct a tattoo parlour. MKN’s application for a licence under the Tattoo Parlours Act 2013 (Qld) (TP Act) was refused. This is because the Commissioner of the Queensland Police Service (QPS) made an adverse security determination about MKN.
  2. [2]
    Because the Commissioner made an adverse security determination, the Commissioner is a party to the proceeding and becomes the decision-maker for the reviewable decision as provided in s 19 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act).
  3. [3]
    The Commissioner has given to the Tribunal a copy of a report of the adverse security determination together with the evidence in accordance with s 57(3)(b)(ii) of the TP Act. The material provided includes information that has been categorised as criminal intelligence reports or other criminal information for the purposes of s 20(3) of the TP Act.
  4. [4]
    The Tribunal now proceeds on the basis that MKN wants to review the adverse security determination as part of the review of the Chief Executive’s decision to refuse MKN’s licence under the TP Act. The Commissioner submits that the material consisting of criminal intelligence reports or other criminal information annexed to the confidential affidavit of Superintendent Jon Harold Wacker sworn 26 May 2015 has been correctly categorised under s 20(3) of the TP Act. Criminal intelligence reports or criminal information mentioned in s 20(3) is afforded protection because under s 22 the Commissioner is not required to give reasons for determining a matter if the giving of the reasons would disclose the ‘existence or content of a criminal intelligence report or other criminal information’ mentioned in s 20(3).
  5. [5]
    The Tribunal has in this case determined that the making of the adverse security determination pursuant to s 57(3) of the TP Act is a merits review conducted pursuant to the provisions of the QCAT Act subject to the modified procedure prescribed in s 57(3) of the TP Act.
  6. [6]
    It is now necessary for the Tribunal to determine whether or not the reports and information exhibited to the Superintendent’s confidential affidavit has been correctly categorised by the Commissioner.

Is the information exhibited to the Superintendent’s confidential affidavit criminal intelligence reports or other criminal information mentioned in s 20(3)?

  1. [7]
    It was determined in DT & Anor v Department of Justice and Attorney-General – Industry Licencing Unit & Anor[1] that the categorisation of either criminal intelligence information or other criminal information is to be determined broadly.
  2. [8]
    In DT’s case the Tribunal found that the expression ‘criminal information’ includes information about criminal activity, the circumstances in which criminal activity is highly likely to occur or has occurred, the identity of those involved in criminal activity and the identity of those with whom the individuals involved in criminal activity associate.[2]
  3. [9]
    In DT’s case the Tribunal considered the meaning of a report as defined in the Oxford Dictionary to be ‘an account given or an opinion formally expressed after an investigation or consideration or the giving of account i.e. review of information and collation’.[3] In DT’s case the Tribunal cited the decision in AVS Group Australian v Commissioner of Police[4] that said the separation between the concepts of ‘criminal intelligence report’ and ‘other criminal information’ is that one informs the other. The relevant passage from the AVS’ case is as follows:

… information might be gathered from a number of sources which appear to be unrelated but which take on a different character and greater significance when analysed and brought together in a report.[5]

  1. [10]
    The Tribunal said in DT’s case, that criminal information will attract the protection of confidentiality if in addition it is information held in relation to the applicant or a ‘close associate’ of the applicant, that is relevant to the business or procedures carried on or performed or proposed to be carried on or performed or causes the Commissioner to conclude improper conduct is likely to occur if the licence was granted. The Tribunal said:

Under s 20(3) in order for the criminal information to attract the protection of confidentiality it must in addition be information held in relation to the applicant or a “close associate” of the applicant that is relevant to the business or procedures carried on or performed or proposed to be carried on or performed; or causes the commissioner to conclude improper conduct is likely to occur if the applicant is granted the licence; or causes the commissioner to not have confidence improper conduct will not occur if the applicant is granted the licence.[6]

  1. [11]
    We adopt the findings made by the Tribunal in DT’s case in relation to the test to be applied in determining whether the material exhibited to the confidential affidavit is correctly categorised as criminal intelligence reports or other criminal information.
  2. [12]
    In this case the information about MKN contained in the material exhibited to the Superintendent’s confidential affidavit is as follows:

[not for publication]

  1. [13]
    [not for publication] It is information, for the purposes of s 20(3) of the TP Act about circumstances in which criminal activity is highly likely to occur.
  2. [14]
    We are satisfied the reports exhibited to the confidential affidavit is a collation of the criminal information and is therefore criminal intelligence reports which relate to MKN.
  3. [15]
    The reports contain information that when read collectively, as said in AVS’ case, ‘take on a different character and greater significance when analysed and brought together’. We are satisfied that the information is:
  • Relevant to the business proposed to be carried on or performed under the licence;
  • Could cause the Commissioner to conclude improper conduct is likely to occur if MKN is granted the licence; and
  • Could cause the Commissioner not to have confidence improper conduct will not occur if MKN is granted the licence.
  1. [16]
    We are therefore satisfied that the reports and information annexed to the confidential affidavit have been correctly categorised as criminal intelligence reports or other criminal information mentioned in s 20(3).

Conclusion

  1. [17]
    We have found that the reports and information exhibited to the confidential affidavit is correctly categorised as criminal intelligence reports or other criminal information. Because of our finding, the applicant is not to know of the existence or content of the information even though the adverse security determination was made on the basis of the reports and information. The Commissioner says that it has disclosed pages numbered 1 to 53 (inclusive) of the material exhibited to the confidential affidavit. We find that the remainder of the documents being page numbers 54 to 164 (inclusive) should not be disclosed because we have found it contains criminal intelligence reports and other criminal information.
  2. [18]
    The next step for the Tribunal is to conduct a review of the adverse security determination. Directions were made for the parties to file relevant material in the Tribunal before the hearing of that review set down on 21 October 2015.[7]

Non-Publication Orders

  1. [19]
    We have found that the exhibits to the confidential affidavit are criminal intelligence reports or other criminal information. It is therefore appropriate that the Tribunal make an order pursuant to s 66 of the QCAT Act prohibiting the publication of:
    1. The contents of those documents to any person other than the second respondent and his representatives; and
    2. Any information that may enable the applicant to be identified.
  2. [20]
    We consider these orders necessary to avoid the publication of confidential information which would be contrary to the public interest.
  3. [21]
    The Tribunal will deliver and publish two sets of reasons. One set to the second respondent and a redacted set to the other parties and for publication.

Footnotes

[1] [2015] QCAT 228.

[2] Ibid, [39].

[3] Ibid, [31].

[4] [2012] NSWADT 1.

[5] AVS Group Australian v Commissioner of Police [2012] NSWADT 1 at [43], see DT & Anor v Department of Justice and Attorney-General – Industry Licencing Unit & Anor [2015] QCAT 228 at [36].

[6] DT & Anor v Department of Justice and Attorney-General – Industry Licencing Unit & Anor [2015] QCAT 228 at [40].

[7] Directions made on 4 August 2015.

Close

Editorial Notes

  • Published Case Name:

    MKN v Chief Executive of the Queensland Department of Justice and Attorney-General and Commissioner of the Queensland Police Service

  • Shortened Case Name:

    MKN v Chief Executive of the Queensland Department of Justice and Attorney-General

  • MNC:

    [2015] QCAT 358

  • Court:

    QCAT

  • Judge(s):

    Senior Member O'Callaghan, Member Browne

  • Date:

    09 Sep 2015

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

Case NameFull CitationFrequency
AVS Group Australian v Commissioner of Police [2012] NSWADT 1
3 citations
Jump To
Cite 1 - [2012] NSWADT 1
Cite 2 - [2012] NSWADT 1
Cite 3 - [2012] NSWADT 1
DT v Department of Justice and Attorney-General – Industry Licensing Unit; ET v Department of Justice and Attorney-General – Industry Licensing Unit [2015] QCAT 228
6 citations
Jump To
Cite 1 - [2015] QCAT 228
Cite 2 - [2015] QCAT 228
Cite 3 - [2015] QCAT 228
Cite 4 - [2015] QCAT 228
Cite 5 - [2015] QCAT 228
Cite 6 - [2015] QCAT 228

Cases Citing

Case NameFull CitationFrequency
ECX v Office of Fair Trading, Industry Licensing Unit [2016] QCAT 4108 citations
KLM v Chief Executive, Department of Justice and Attorney General – Industry Licencing Unit [2016] QCAT 5122 citations
KZT v Weapons Licensing Unit – Queensland Police Service [2015] QCAT 5022 citations
LGV v Inspector Smith, Weapons and Licensing Branch, Queensland Police Service [2016] QCAT 3942 citations
MKN v Chief Executive of the Queensland Department of Justice (No 2) [2015] QCAT 4524 citations
Powell v Queensland Police Service [2019] QCAT 4182 citations
PYI v Queensland Police Service [2016] QCAT 1572 citations
TS v Department of Justice and Attorney General - Industry Licensing Unit (No 2) [2015] QCAT 5051 citation
1

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