KZT v Weapons Licensing Unit – Queensland Police Service
[2015] QCAT 502
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- Unreported Judgment
- KZT v Weapons Licensing Unit – Queensland Police Service[2015] QCAT 502
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KZT v Weapons Licensing Unit – Queensland Police Service[2015] QCAT 502
KZT v Weapons Licensing Unit – Queensland Police Service[2015] QCAT 502
CITATION: | KZT v Weapons Licensing Unit – Queensland Police Service & Commissioner of Police [2015] QCAT 502 |
PARTIES: | KZT (Applicant) |
v | |
Weapons Licensing Unit – Queensland Policie Service Commissioner of Police (Respondents) |
APPLICATION NUMBER: | GAR365-14 |
MATTER TYPE: | General Administrative Review Matter |
HEARING DATE: | On the papers |
HEARD AT: | Brisbane |
DECISION OF: | Member Browne, Presiding Member Favell |
DELIVERED ON: | 2 December 2015 |
DELIVERED AT: | Brisbane |
ORDERS MADE: |
THE TRIBUNAL DIRECTS THAT:
4:00 pm on 23 December 2015
4:00 pm on 13 January 2016
|
CATCHWORDS: | GENERAL ADMINISTRATIVE REVIEW – Weapons Act 1990 (Qld) – where review of decision to cancel firearms licence – preliminary issue – where issue is whether information relied on by the Commissioner of Police is correctly categorised as ‘criminal intelligence’ for the purposes of s 142A of the Weapons Act 1990 (Qld) Criminal Code (Criminal Organisations) Regulation 2013 (Qld), s 2 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 19, s 66 Vicious Lawless Association Disestablishment Act 2013 (Qld), s 4 Weapons Act 1990 (Qld), s 10B, s 30, s 142, s 142A, s 143, sch 2 AVS Group Australia Pty Limited v Commissioner of Police, NSW Police Force [2012] NSWADT 1 DT & Anor v Department of Justice and Attorney-General – Industry Licensing Unit & Anor [2015] QCAT 228 MKN v Chief Executive of the Queensland Department of Justice and Attorney-General [2015] QCAT 358 TS v Department of Justice and Attorney General - Industry Licensing Unit [2015] QCAT 357 |
APPEARANCES and REPRESENTATION (if any):
This matter was heard and determined on the papers pursuant to s 32 Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act).
REASONS FOR DECISION
- [1]KZT wants to review a decision to revoke his Firearms Licence numbered XXXXXXXX and XXXXXXXX (the licence) issued pursuant to the Weapons Act 1990 (Qld) (the Weapons Act).
- [2]The issue to be determined by the Tribunal, on review, is whether KZT is an identified participant in a criminal organisation under s 10B(2A) of the Weapons Act.[1]
- [3]The decision to revoke the licence was made by an authorised officer for Weapons Licensing the Queensland Police Service on 11 June 2014.
- [4]The authorised officer issued an ‘information notice’ to KZT advising him of the decision. The authorised officer ‘noted’ that KZT has recently been a member of the Rebels Motorcycle Club. That Club is declared to be a criminal organisation pursuant to s 2 of the Criminal Code (Criminal Organisations) Regulation 2013 (Qld).
- [5]The authorised officer also noted the Vicious Lawless Association Disestablishment Act 2013 (Qld) and the meaning of ‘participant’ which states that a person is a ‘participant in the affairs’ if they have by words or conduct or in any other way, assert, declare, or advertise his or her membership of, or association with, the association.[2]
- [6]The authorised officer stated in the information notice that he is ‘satisfied’ that KZT by his conduct ‘declared or advertised’ his membership of a declared criminal organisation and that it is not in the ‘public interest’ for a person who is a member of a criminal organisation to hold a weapons licence.
- [7]Although the authorising officer’s decision is based upon KZT’s ‘membership’ (as found) of a declared criminal organisation and the ‘public interest’ by reason of his ‘membership’, KZT is deemed not to be a fit and proper person to hold a licence if it is determined that he is an ‘identified participant in a criminal organisation,’ pursuant to s 10B(2A) of the Weapons Act.
- [8]In this case the authorised officer who made the decision to revoke the licence also relied on information that has now been identified for the purposes of the review proceedings as ‘criminal intelligence’ as defined under s 142A of the Weapons Act.
- [9]Because KZT has been identified as a participant in a criminal organisation, the Commissioner of police becomes a party to the review proceedings and must give the Tribunal a statement of reasons about the identification of ‘the person’ or an associate of the person as an ‘identified participant in a criminal organisation’.[3]
- [10]The Tribunal now proceeds on the basis that KZT wants to review the identification by the Commissioner of Police of KZT being a person as an ‘identified participant in a criminal organisation’.[4]
- [11]The Tribunal has already determined that the review of the identification of KZT as a participant of a criminal organisation pursuant to s 143(2) of the Weapons Act is a merits review conducted pursuant to the provisions of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act) subject to the modified procedure prescribed in s 143(3) of the Weapons Act. [5]
- [12]It is now necessary for the Tribunal to determine whether the statement of reasons prepared by the Commissioner of Police contains information that has been correctly categorised by the Commissioner as ‘criminal intelligence’.[6]
- [13]KZT does not know of the nature or content of the information categorised as ‘criminal intelligence’ because that information is afforded protection under the Weapons Act. Section 142A relevantly provides that in order to prevent the ‘disclosure’ of the criminal intelligence the Tribunal must ‘receive evidence and hear argument in the absence of the public’, the applicant and the applicant’s lawyer or representative.
- [14]The Tribunal ‘must ensure’ it does not ‘disclose’ the content of any ‘criminal intelligence’ on which the Tribunal’s decision is based.[7] The Commissioner may withdraw the information ‘from consideration’ by the Tribunal, if in reviewing the decision, the Tribunal considers the information has been ‘incorrectly categorised’ by the Commissioner of Police as ‘criminal intelligence’.[8]
- [15]In this case, the Commissioner of Police relies on information exhibited to the confidential affidavit of Acting Detective Superintendent Katherine Louise Innes sworn 8 April 2015. The Commissioner of Police has given to the Tribunal a copy of the confidential affidavit and exhibits.
Is the information exhibited to the confidential affidavit ‘criminal intelligence’ mentioned in s 142A of the Weapons Act?
- [16]Relevantly s 142A defines ‘criminal intelligence’ to mean:
…criminal intelligence or other information of the kind mentioned in section 10B(1)(ca) or 10C(1) that could, if disclosed, reasonably be expected—
- (a)to prejudice the investigation of a contravention or possible contravention of this Act; or
- (b)to enable the existence or identity of a confidential source of information, in relation to the enforcement or administration of this Act, to be ascertained; or
- (c)to endanger a person’s life or physical safety; or
- (d)to prejudice the effectiveness of a lawful method or procedure for preventing, detecting, investigating or dealing with a contravention or possible contravention of this Act; or
- (e)to prejudice the maintenance or enforcement of a lawful method or procedure for protecting public safety.
- [17]Schedule 2 of the Weapons Act further defines ‘criminal intelligence’ in relation to a person to include ‘any information about the person’s connection with or involvement in criminal activity…that a person is:
- (a)an identified participant in a criminal organisation; or
- (b)a criminal organisation.’[9]
- (a)
- [18]Schedule 2 also defines ‘identified participant’ in a criminal organisation as:
…a person who is identified by the Commissioner as a participant in the organisation within the meaning of the Criminal Code, section 60A(3).
- [19]It was previously determined in DT & Anor v Department of Justice and Attorney-General – Industry Licensing Unit & Anor[10] that the categorisation of either criminal intelligence information or other criminal information is to be determined broadly.
- [20]In DT’s case the Tribunal on review was required to determine whether information had been correctly categorised as ‘criminal intelligence reports, or other criminal information’ mentioned in s 20(3) of the Tattoo Parlours Act 2013 (Qld).
- [21]The Tribunal found in DT’s case that ‘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.[11]
- [22]In DT’s case the Tribunal cited the decision in AVS Group Australia v Commissioner of Police[12] that said the separation between the concepts of ‘criminal intelligence report’ and ‘other information’ is that one informs the other. The relevant passage from the AV’s case also sighted in DT’s 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.[13]
- [23]In this case the information contained in the confidential affidavit was [redacted].
- [24]The information about KZT contained in the confidential affidavit and exhibits is as follows:
[redacted]
- [25]We are satisfied the information contained in and exhibited to the confidential affidavit is ‘criminal intelligence’ because it is information about [redacted].
- [26]We are satisfied the information is a collation of confidential information gathered from different sources and is therefore criminal intelligence which relates to KZT. The information when read collectively [redacted].
- [27]The Tribunal is satisfied for the purposes of s 142A of the Weapons Act that if the criminal intelligence or other information is disclosed it is reasonable to expect that such disclosure could:
- prejudice the investigation of a contravention or possible contravention of the Weapons Act; and
- prejudice the effectiveness of a lawful method or procedure for preventing, detecting, investigating or dealing with a contravention or possible contravention of the Weapons Act; and
- prejudice the maintenance or enforcement of a lawful method or procedure for protecting public safety.
- [28]This is because the confidential affidavit attaches information that contains criminal intelligence information collected by law enforcement agencies from various sources. The Queensland Police Service will utilise information collated and exchange information with other partner law enforcement agencies such as the Crime and Corruption Commission, the Australian Crime Commission and other state agencies and bodies to undertake strategic intelligence assessments, identify and develop potential targets and undertake crime trend analysis.
- [29]We are satisfied that the information exhibited to the confidential affidavit has been correctly categorised as ‘criminal intelligence’ for the purposes of s 142A and should not be disclosed.
Conclusion
- [30]We have found that the reports and information exhibited to the confidential affidavit is correctly categorised as ‘criminal intelligence’. Because of our finding, KZT is not to know of the existence or content of the information even though the decision to revoke his licence relies on the reports and information because KZT was found to BE an identified participant in a criminal organisation. The confidential affidavit and the reports and information exhibited to the confidential affidavit should not be disclosed because we have found it contains criminal intelligence reports and other information.
- [31]The next step for the Tribunal is to conduct a review of the decision by the Commissioner of Police to identify KZT as a participant in a criminal organisation. KZT and the Commissioner of Police should be given an opportunity to prepare and file any material to be relied upon at the oral hearing and we will make those directions accordingly.
Non-publication orders
- [32]We have found that the reports and information exhibited to the confidential affidavit are ‘criminal intelligence’. It is therefore appropriate that the Tribunal make 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 Respondent, the Commissioner of Police; and
- Any information that may enable KZT to be identified.
- [33]We consider these orders necessary to avoid the publication of confidential information which must not be disclosed.
- [34]The Tribunal will deliver and publish two sets of reasons. One set to the Respondent, the Commissioner of Police and a redacted set to the other party and for publication.
Footnotes
[1]Directions made by consent on 4 March 2015.
[2]Vicious Lawless Association Disestablishment Act 2013 (Qld), s 4.
[3]Weapons Act, s 143, see also definition of ‘Commissioner’ under Schedule 2.
[4]For the purposes of s 10B (2A) of the Weapons Act and as defined under Schedule 2.
[5]Decision dated 30 June 2015.
[6]Decision dated 30 June 2015.
[7]Weapons Act, s 142A.
[8]Weapons Act, s 143(4), see also, s 143(5) that provides the information withdrawn by the Commissioner must not be ‘disclosed’.
[9]Ibid, Schedule 2.
[10][2015] QCAT 228. Also applied in MKN v Chief Executive of the Queensland Department of Justice and Attorney-General [2015] QCAT 358 and TS v Department of Justice and Attorney General - Industry Licensing Unit [2015] QCAT 357.
[11]DT & Anor v Department of Justice and Attorney-General – Industry Licensing Unit & Anor [2015] QCAT 228, [39].
[12][2012] NSWADT 1.
[13]AVS Group Australia v Commissioner of Police [2012] NSWADT 1 at [43], see DT’s case at [36].