MKN v Chief Executive of the Queensland Department of Justice (No 2)
[2015] QCAT 452
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- Unreported Judgment
- MKN v Chief Executive of the Queensland Department of Justice (No 2)[2015] QCAT 452
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MKN v Chief Executive of the Queensland Department of Justice (No 2)[2015] QCAT 452
MKN v Chief Executive of the Queensland Department of Justice (No 2)[2015] QCAT 452
CITATION: | MKN v Chief Executive of the Queensland Department of Justice and Attorney-General Commissioner of the Queensland Police Service (No 2) [2015] QCAT 452 |
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: | 21 October 2015 |
HEARD AT: | Brisbane |
DECISION OF: | Senior Member O'Callaghan Member Browne |
DELIVERED ON: | 20 November 2015 |
DELIVERED AT: | Brisbane |
ORDERS MADE: |
|
CATCHWORDS: | GENERAL ADMINISTRATIVE REVIEW – Tattoo Parlours Act 2013 (Qld) – where review of decision to refuse operator licence – where review of making adverse security determination by second respondent – whether it would be contrary to the public interest for the licence to be granted Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 20 Tattoo Parlours Act 2013 (Qld), s 15, s 17, s 20, s 22, s 57 Blissett v Commissioner of Police, New South Wales; Webb Protection Australia Pty Ltd v Commissioner of Police, New South Wales Police [2006] NSWADT 114; cited Commissioner of Police v Toleafoa [1999] NSWADTAP 9; cited Constantin v Commissioner of Police, NSW Police Force (GD) [2013] NSWADTAP 16 Director of Public Prosecutions v Smith (1991) 1 VR 63; cited MKN v Chief Executive of the Queensland Department of Justice and Attorney-General [2015] QCAT 358 Smith v Commissioner of Police, NSW Police Force and Anor [2014] NSWCATAD 184; cited Zahra v Commissioner of Police, NSW Police Force and Anor [2014] NSWCATAD 211; cited |
REPRESENTATIVES:
APPLICANT: | MKN represented by Mr A Hallewell, Solicitor, Hallewell Law |
RESPONDENT: | Chief Executive of the Queensland Department of Justice and Attorney-General represented by Mr P Rashford, Queensland Department of Justice and Attorney-General Commissioner of the Queensland Police Service represented by Mr M Nicholson of Counsel instructed by Mr I Fraser, Public Safety Business Agency |
REASONS FOR DECISION
- [1]On 1 July 2014 a licensing and regulatory scheme was introduced that required all operators of tattoo parlours and tattoo artists to be licensed.
- [2]MKN was in the business of tattooing so she applied for an operator licence under the Tattoo Parlours Act 2013 (Qld) (TPA).
- [3]As required under the TPA, the Chief Executive decision-maker referred MKN’s application for a licence to the Commissioner of the Queensland Police Service (QPS) for ‘investigation’ and determination.[1] Relevantly s 20 requires the commissioner to ‘inquire into and determine’, and report to the chief executive on, either or both of the following-
- whether the applicant is a fit and proper person to be granted the licence;
- whether it would be contrary to the public interest for the licence to be granted.
- [4]The Chief-Executive decision-maker subsequently notified MKN that her licence is refused because the Commissioner made an adverse security determination about her.[2]
- [5]The Commissioner is not required to give reasons for determining a matter under s 20, in this case that it would be contrary to the public interest for the licence to be granted, if giving the reasons would disclose the ‘existence or content of a criminal intelligence report or other criminal information’ as mentioned in s 20(3).[3]
- [6]Under s 20(3) the commissioner in making the determination as to whether the applicant is fit and proper and whether granting of the licence is contrary to the public interest, may have regard to a ‘criminal intelligence report or other criminal information’ held in relation to the applicant or a close associate of the applicant that-
- is relevant to the business procedures carried on or performed, or proposed 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 the licence or the licensee continues to hold the 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.
- [7]In this case, the Commissioner did have regard to criminal intelligence reports or other criminal information mentioned in s 20(3). The Commissioner determined that ‘it would be contrary to the public interest for the licence to be granted’ to MKN.
- [8]MKN now seeks a review of the adverse security determination and the licence refusal decision.
- [9]The Tribunal has already determined that a review of the adverse security determination pursuant to s 57(3) of the TPA is a merits review conducted pursuant to the provisions of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act) subject to the modified procedure prescribed in s 57(3) of the TPA.[4]
- [10]The Tribunal has already determined that information relied on by the Commissioner had been correctly categorised as criminal intelligence mentioned in s 20(3) of the TPA.[5] Because there is criminal intelligence reports or other criminal information relied upon by the Commissioner, MKN does not know of the existence or content of the information, apart from the documents that have been disclosed, even though the adverse security determination was made on the basis of the reports and information.[6]
- [11]The Tribunal must now determine whether the decision made by the Commissioner to make an adverse security determination about MKN is the correct and preferable decision.[7] It is common ground that the issue before the Tribunal is whether it would be contrary to the public interest for the licence to be granted.
Review of the adverse security determination - what is the correct and preferable decision?
- [12]The TPA does not define the meaning of the ‘public interest’ in the context of determining an applicant’s suitability to hold a licence.
- [13]
- [14]In Smith’s case, Senior Member Montgomery said that the ‘public interest’ is designed to give the ‘broader interests of the community priority’ over the private interests.[10] Senior Member Montgomery summarised relevant cases from courts and tribunals that have considered the concept of the ‘public interest’. Some of those cases are now summarised as follows:
- The ‘public interest’ is ‘a term embracing matters, among others, of standards of human conduct and of the functioning government and government instrumentalities.... The interest is therefore the interest of the public as distinct from the interest of an individual or individuals’.[11]
- The ‘public interest’ is ‘an inherently broad concept giving the appellant the ability to have regard to a wide range of factors in choosing whether to exercise a discretion adversely to an individual’.[12]
- An applicant’s personal interests ‘in retaining his licence cannot outweigh the public interest in having full confidence in the professionalism of people involved in the security industry’.[13]
- The “public interest” allows…for issues going beyond the character of the applicant to be taken into account. These may include concerns in relation to public protection, public safety and public confidence in the administration of the licensing system’.[14]
- [15]MKN submits that it would not be contrary to the public interest for her to be granted an operator licence. MKN submits that it would advance the public interest for a person such as her to be granted an operator licence because she is experienced, qualified and responsible tattooist available to perform body art tattooing services.[15]
- [16]MKN submits that the business that she wants to pursue serves not just her interests but also the suppliers of the business, and the wider public through the payment of income tax and profit made by the business.[16]
- [17]At the oral hearing, MKN relied on her own affidavit and her sworn oral evidence. She also relied on the affidavit of her husband and his sworn oral evidence.
- [18]MKN says that she has been married to her husband, since 1984 and they have two children. One of their children has diagnosed schizophrenia and lives with MKN and her husband.
- [19]
- [20]MKN and her husband operate the business together from their family home. MKN says that although her husband is a partner, his only ‘active role’ in the business is to do ‘book work’.[19]
- [21]MKN says she is not involved in any criminal activity; she has no involvement nor any connection with any ‘bikies’; and there is no ‘bikie activity connected with [the] business’.[20]
- [22]At the oral hearing, MKN gave sworn evidence in chief about a ‘standover’ incident that occurred approximately three years ago. MKN said that ‘some people’ came along and tried to ‘intimidate me’. MKN said they (the people) were asking her ‘something about renting sheds’. She said that she did not know who the ‘other people’ were or what they wanted.
- [23]MKN was cross-examined at the hearing about whether she has had police involvement at her house. MKN agreed that there had been police involvement with her son and husband. MKN said that this was for ‘cannabis’. MKN agreed that police had executed a search warrant and located drugs and utensils in her house. MKN denied any knowledge or involvement (when questioned) about the ‘cannabis’. When questioned about why she did not tell police that her son and husband were ‘possessing cannabis’, MKN said she ‘didn’t know’.
- [24]MKN’s husband works as a meat inspector and is a partner with MKN in the business trading as ‘Piercing Images’. MKN’s husband said that he completed a ‘close associate form’ as part of his wife’s (MKN) application for an operator licence.
- [25]MKN’s husband says that he is not involved in any criminal activity; there is no criminal activity connected with the business; and he has no connection with, nor any association with any ‘bikie gang’, nor with any ‘bikies’.[21]
- [26]At the oral hearing, MKN’s husband was cross-examined about the execution of a search warrant at his home in 2010. MKN’s husband accepted that cannabis was found and accepted (when questioned) that he made admissions to smoking cannabis ‘at that time’ (when the search warrant was executed).
- [27]MKN’s husband was questioned about whether his wife (MKN) was aware of his ‘smoking’ (of cannabis). MKN’s husband stated that his wife was not aware. MKN’s husband was questioned about whether he smoked cannabis after 2010. He said ‘no’.
- [28]MKN’s husband was also questioned at the hearing about his son’s smoking (of cannabis). He said that his son told him he smoked. MKN’s husband said he was not aware if his son smoked cannabis after 2010 (after the search warrant). During re-examination, he said that he paid a fine with no conviction recorded for the criminal charge of possession of cannabis in 2010.
- [29]The Tribunal has carefully considered the evidence and written submissions prepared and filed. The Tribunal must arrive at the correct and preferable decision having considered all of the material that was before the respondents as the decision maker including the criminal intelligence reports or other criminal information before the Commissioner; and the material including evidence relied upon by the applicant.
- [30]In this case, the Tribunal is not satisfied that it would not be contrary to the public interest to grant an operator licence to MKN. In arriving at this decision the Tribunal has considered the broader interests of the community that, as held in Smith’s case, take priority over ‘private interests’ meaning any interests that MKN may have in relation to her application for an operator licence.
- [31]The TPA requires all body art tattooists including an operator of a tattooing business to be licensed. The TPA also requires the chief executive decision maker to refer any applications to the commissioner for an ‘investigation and determination’.[22] The commissioner may have regard to a criminal report or other criminal information relating to the applicant or a close associate of the applicant that is, as defined under s 20(3), relevant to a range of matters including (amongst others) - the business proposed to be carried on; or causes the commissioner to conclude improper conduct is likely to occur if the licence is granted; or causes the commissioner not to have confidence improper conduct will not occur if the applicant is granted the licence.
- [32]MKN wants to conduct her tattooing business with her husband as a partner, from her home where she lives with him and their son (the son). MKN’s husband and the son have a criminal history involving the use of cannabis. Police found the cannabis belonging to MKN’s husband and the son during the execution of search warrant in 2010 in MKN’s home where the tattoo business will be conducted. MKN’s husband and the son continue to reside in the house with MKN where the proposed tattooing business is to be conducted.
- [33]It is MKN’s evidence that she is not involved in any criminal activity; and there is no criminal activity of ‘any kind’ connected with the business she proposes to conduct with her husband in her home.[23] It is MKN’s evidence that she had no knowledge of her husband or son consuming cannabis in her home.
- [34]There is also material before the Tribunal that has been categorised as criminal intelligence reports or other criminal information, relevant to the issue of whether it would be contrary to the public interest to grant an operator licence to MKN. The material is protected by s 22 of the TPA so MKN cannot know about the material that has been considered by the Tribunal. The Tribunal has already determined that the material is correctly categorised as criminal intelligence reports or other information mentioned in s 20(3).
- [35]In this case the ‘public interest’ requires the full confidence in the regulation of the tattooing industry and the public confidence in the professionalism of the people proposing to conduct the business. The ‘public interest’ must not be outweighed by any benefit that may be gained by private interests such as other businesses seeking to profit from MKN’s proposed business or MKN personally by reason of granting the operator licence.[24]
- [36]We are satisfied having considered all material and evidence (including confidential material) that the correct and preferable decision is that it is not in the public interest to grant MKN an operator licence. We confirm the decision made by the Commissioner to make an adverse security determination about MKN.
Conclusion
- [37]MKN seeks a review of the decision to refuse her application for an operator licence under the TPA.
- [38]The Tribunal has determined that the correct and preferable decision is to confirm the Commissioner’s decision to make an adverse security determination about MKN.
- [39]Under the TPA, the chief executive must decide to refuse to grant the licence if an adverse security determination is made by the commissioner of police. In those circumstances, the Tribunal standing in the shoes of the decision maker must on review confirm the decision to refuse to grant the licence. MKN should, however, be given an opportunity to decide whether she wants to continue with the substantive review application in light of this decision and we will make orders accordingly.
Non-publication order
- [40]The Tribunal has previously found that material relied upon by the Commissioner in making the adverse security determination is intelligence reports or other criminal information as mentioned in s 20(3) of the TPA. The Tribunal made an order pursuant to s 66 of the QCAT Act prohibiting the publication of the contents of those documents to any person other than the second respondent and his representatives; and any information that may enable the applicant to be identified.[25]
- [41]It is therefore appropriate that the Tribunal in these reasons de-identify the names of the applicant, her husband and the business where MKN proposes to conduct her tattooing business so that the applicant cannot be identified.
Footnotes
[1] TPA, s 15(b).
[2] Under s 17(2)(b) the chief executive must decide to refuse to grant the licence if an adverse security determination has been made by the commissioner about the applicant.
[3] TPA, ss 20 and 22.
[4] MKN v Chief Executive of the Queensland Department of Justice and Attorney-General [2015] QCAT 358.
[5] Ibid.
[6] The Commissioner disclosed pages 1 to 53 (inclusive) of the material exhibited to the confidential affidavit sworn 26 May 2015, marked Exhibit 1. The Tribunal determined that pages 54 to 164 (inclusive) should not be disclosed because it contains criminal intelligence reports and other criminal information, see MKN v Chief Executive of the Queensland Department of Justice and Attorney-General [2015] QCAT 358.
[7] QCAT Act s 20.
[8] [2014] NSWCATAD 184. See also Zahra v Commissioner of Police, NSW Police Force and Anor [2014] NSWCATAD 211.
[9] Smith v Commissioner of Police, NSW Police Force and Anor [2014] NSWCATAD 184, [43].
[10] Ibid, [42].
[11] Director of Public Prosecutions v Smith (1991) 1 VR 63, see Smith’s case, [44].
[12] Commissioner of Police v Toleafoa [1999] NSWADTAP 9, see Smith’s case, [45].
[13] Blissett v Commissioner of Police, New South Wales; Webb Protection Australia Pty Ltd v Commissioner of Police, New South Wales Police [2006] NSWADT 114, [32]; see Smith’s case, [46].
[14] Constantin v Commissioner of Police, NSW Police Force (GD) [2013] NSWADTAP 16, see Smith’s case, [47].
[15] The applicant’s final submissions filed on 4 November 2015, [29].
[16] Ibid.
[17] Exhibit 2, [22].
[18] Ibid, [23], [24].
[19] Exhibit 2, [29].
[20] Ibid, [60] to [63].
[21] Exhibit 3, [8] to [24].
[22] TPA, s 15.
[23] Exhibit 2, [61].
[24] Blissett v Commissioner of Police, New South Wales; Webb Protection Australia Pty Ltd v Commissioner of Police, New South Wales Police [2006] NSWADT 114, [32]; see Smith’s case, [46].
[25] See MKN v Chief Executive of the Queensland Department of Justice and Attorney-General [2015] QCAT 358.