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TS v Department of Justice and Attorney General - Industry Licensing Unit (No 2)[2015] QCAT 505

TS v Department of Justice and Attorney General - Industry Licensing Unit (No 2)[2015] QCAT 505

CITATION:

TS v Department of Justice and Attorney General - Industry Licensing Unit & Anor (No 2) [2015] QCAT 505

PARTIES:

TS

(Applicant)

 

v

 

Department of Justice and Attorney General -Industry Licensing Unit

Commissioner of the Queensland Police Service

(Respondents)

APPLICATION NUMBER:

OCR050-15

MATTER TYPE:

Occupational regulation matters

HEARING DATE:

7 December 2015

HEARD AT:

Brisbane

DECISION OF:

Senior Member O'Callaghan

Member Browne

DELIVERED ON:

18 December 2015

DELIVERED AT:

Brisbane

ORDERS MADE:

  1. The decision of the second respondent to make an adverse security determination about TS is confirmed.
  2. TS must advise the Tribunal and the respondents in writing within 14 days from the date of this order as to whether he wants to continue with the application to review the decision of the first respondent to refuse his licence application.

CATCHWORDS:

GENERAL ADMINISTRATIVE REVIEW – Tattoo Parlours Act 2013 (Qld) – where review of decision to refuse licence – where review of making adverse security determination by second respondent – whether fit and proper person and 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

Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321; cited

AJO v Director-General Department of Transport [2012] NSWADT 101; cited

Commissioner for ACT Revenue v Alphaone Pty Ltd (1994) 49 FCR 589; cited

Hughes and Vale Pty Ltd v New South Wales (No. 2) [1995] HCA 28; (1955) 93 CLR 127; cited

MKN v Chief Executive of the Queensland Department of Justice and Attorney-General Commissioner of the Queensland Police Service (No 2) [2015] QCAT 452; cited

Smith v Commissioner of Police, NSW Police Force and Anor  [2014] NSWCATAD 184; cited

Sobey v Commercial and Private Agents Board 20 SASR 70

TS v Department of Justice and Attorney General - Industry Licensing Unit [2015] QCAT 357

Zahra v Commissioner of Police, NSW Police Force and Anor [2014] NSWCATAD 211; cited

REPRESENTATIVES:

APPLICANT:

TS, self-represented

RESPONDENT:

Department of Justice and Attorney General - Industry Licensing Unit represented by Mr P Rashford

Commissioner of the Queensland Police Service represented by Mr M Nicholson of Counsel instructed by Public Safety Business Agency

REASONS FOR DECISION

  1. [1]
    TS is a tattooist so he applied for a licence under the Tattoo Parlours Act 2013 (Qld) (TPA). This is because effective from 1 July 2014 all operators of tattoo parlours and tattoo artists must be licensed.
  2. [2]
    As required under the TPA, TS’ application for a licence was referred 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:
    1. a)
      whether the applicant is a fit and proper person to be granted the licence;
    1. b)
      whether it would be contrary to the public interest for the licence to be granted.
  3. [3]
    TS was subsequently notified that his licence was refused because the Commissioner made an adverse security determination about him.[2]
  4. [4]
    The Commissioner is not required to give reasons for determining a matter under s 20, in this case that TS is not a fit and proper person and 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]
  5. [5]
    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:
    1. a)
      is relevant to the business procedures carried on or performed, or proposed to be carried on or performed, under the licence; or
    1. b)
      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
    1. c)
      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.
  6. [6]
    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 the applicant was not a fit and proper person and it would not be in the public interest to grant the licence to TS.
  7. [7]
    TS now seeks a review of the adverse security determination and the licence refusal decision.
  8. [8]
    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]
  9. [9]
    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, TS 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]
  10. [10]
    The Tribunal must now determine whether the decision made by the Commissioner to make an adverse security determination about TS is the correct and preferable decision.[7] The issue before the Tribunal is whether TS is a fit and proper person to hold a licence and 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?

  1. [11]
    The TPA does not define the meaning of ‘fit and proper person’ and the ‘public interest’ in the context of determining an applicant’s suitability to hold a licence.
  2. [12]
    In Smith v Commission of Police, NSW Police Force and Anor[8] Senior Member Montgomery said ‘fitness and propriety’ is a question of fact to be determined objectively based on all of the evidence.[9] In Smith’s case reference was made to AJO v Director-General Department of Transport[10] because it provides an overview of relevant authorities that have considered the meaning of ‘fit and proper’. Some of the cases referred to in AJO’s case are now summarised:
  • Whether a person is fit and proper is ‘one of value judgment. In that process the seriousness or otherwise of particular conduct is a matter for evaluation by the decision maker. So too is the weight, if any, to be given to matters favouring the person whose fitness and propriety are under consideration’.[11]
  • The concept of ‘fit and proper’ must be looked at in the context of the activities that the person is or will be engaged. ‘…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 public will have confidence that it will not occur’. Although not an exhaustive list, character (indication of ‘likely future conduct’) or reputation (indication of public perception as to ‘likely future conduct’) may be ‘sufficient’ to find a person is not ‘fit and proper’ to undertake certain activities.[12]
  • The expression ‘fit and proper’ must be given the ‘widest scope;’ and determined upon its own circumstances.[13]
  • The applicant must show not only that he is ‘possessed of a requisite knowledge of the duties and responsibilities evolving upon him’ as the holder of a particular licence but must also show he has ‘sufficient moral integrity and rectitude of character as to permit him to be safely accredited to the public…’.[14]
  • ‘Fitness and propriety are flexible concepts’. It involves an assessment of the person’s ‘knowledge, honesty and ability in the context of the role they are seeking to undertake…’.[15]
  • The discretion vested in determining whether a person is ‘fit and proper’ must be exercised to ‘give wide scope for judgement and allow broad bases for rejection’.[16]
  1. [13]
    The meaning of ‘public interest’ was also considered in Smith’s case. Senior Member Montgomery said the concept of the ‘public interest’ is ‘not confined’ except by the scope and purpose of the legislation (in this case the TPA).[17]  Senior Member Montgomery said the ‘public interest’ is designed to give the ‘broader interests of the community priority’ over the private interests.[18]
  2. [14]
    In an earlier decision, MKN v Chief Executive of the Queensland Department of Justice and Attorney-General Commissioner of the Queensland Police Service (No 2),[19] this Tribunal summarised relevant ‘public interest’ cases referred to in Smith’s case. The Tribunal relies on that summary in considering the meaning of ‘public interest’ in this case.[20]
  3. [15]
    TS refers to his personal background, ‘tattoo background’ and ‘livelihood’ in written submissions.[21] TS says in his earlier years (before 2001) he did have a ‘substance abuse problem’ and he rode motorcycles and ‘joined a club’.[22] TS says after 2001 he ‘settled down’ with his wife and daughter.
  4. [16]
    TS submits he has relevant certificates in sterilization and cleaning and will ‘treat’ clients with ‘respect and courtesy’. TS submits he would not ‘jeopardise’ his family’s future if he was granted a licence. TS submits he is finding it hard to find work and has ‘complied with everything’ he has been asked to do by ‘all authorities’.[23]
  5. [17]
    At the oral hearing, TS indicated by telephone that he was not available to attend the hearing in person or on the telephone. TS told the Tribunal (by telephone) that he would like the hearing to continue in his absence.
  6. [18]
    The Tribunal has carefully considered TS’ written submission 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 the submissions made by the applicant.
  7. [19]
    In this case, the Tribunal is satisfied that TS is not a fit and proper person to hold a licence and it would be contrary to the public interest to grant an operator licence to TS.  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 TS may have in relation to his application for a licence.
  8. [20]
    The TPA requires all body art tattooists to be licensed. The TPA also requires the chief executive decision maker to refer any applications to the Commissioner for an ‘investigation and determination’.[24] 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.
  9. [21]
    TS says that he did ride motorcycles and ‘join a club’. TS says he had a discussion with a Detective in the Bundaberg CIB about severing ties to motorcycle clubs and members. TS says that he does ‘receive social calls from a couple of friends’ and that he (TS) wants to be with his family and grandchildren.[25]
  10. [22]
    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 TS is a fit and proper person and whether it would be contrary to the public interest to grant a licence to TS. The material is protected by s 22 of the TPA so TS 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).
  11. [23]
    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 TS personally in deriving income as a tattooist and his clients who may benefit from TS’ work as a tattooist.
  12. [24]
    We are satisfied having considered all material and evidence (including confidential material) that the correct and preferable decision is that TS is not a fit and proper person and it is not in the public interest to grant TS a licence. We confirm the decision made by the Commissioner to make an adverse security determination about TS.

Conclusion

  1. [25]
    TS seeks a review of the decision to refuse his application for a licence under the TPA.
  2. [26]
    The Tribunal has determined that the correct and preferable decision is to confirm the Commissioner’s decision to make an adverse security determination about TS.
  3. [27]
    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. TS should, however, be given an opportunity to decide whether he wants to continue with the substantive review application in light of this decision and we will make orders accordingly.

Non-publication order

  1. [28]
    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.[26]
  2. [29]
    It is therefore appropriate that the Tribunal in these reasons de-identify the name of the applicant.

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]TS v Department of Justice and Attorney General - Industry Licensing Unit [2015] QCAT 357.

[5]TS v Department of Justice and Attorney General - Industry Licensing Unit [2015] QCAT 357.

[6]  The Commissioner disclosed pages 1 to 20 (inclusive) of the material exhibited to the confidential affidavit of Detective Superintendent Jon Harold Wacker sworn 26 May 2015, marked Exhibit 2. The Tribunal determined that pages 21 to 190 (inclusive) should not be disclosed because it contains criminal intelligence reports and other criminal information, see TS v Department of Justice and Attorney General - Industry Licensing Unit [2015] QCAT 357.

[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’s case, [40].

[10]  [2012] NSWADT 101.

[11]Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 at 380.

[12]Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321, at 380.

[13]Hughes and Vale Pty Ltd v New South Wales (No. 2) [1995] HCA 28; (1955) 93 CLR 127, at 156-7.

[14]Sobey v Commercial and Private Agents Board 20 SASR 70, see Smith’s case at [39].

[15]AJO’s case at 28.

[16]Commissioner for ACT Revenue v Alphaone Pty Ltd (1994) 49 FCR 589 at 389.

[17]Smith v Commissioner of Police, NSW Police Force and Anor [2014] NSWCATAD 184, [43]. See MKN v Chief Executive of the Queensland Department of Justice and Attorney-General Commissioner of the Queensland Police Service (No 2) [2015] QCAT 452.

[18]  Ibid, [42].

[19]  [2015] QCAT 452.

[20]  Ibid, see [14].

[21]  Exhibit 1.

[22]  Ibid.

[23]  Ibid.

[24]  TPA, s 15.

[25]  Exhibit 1.

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

Close

Editorial Notes

  • Published Case Name:

    TS v Department of Justice and Attorney General - Industry Licensing Unit & Anor (No 2)

  • Shortened Case Name:

    TS v Department of Justice and Attorney General - Industry Licensing Unit (No 2)

  • MNC:

    [2015] QCAT 505

  • Court:

    QCAT

  • Judge(s):

    Senior Member O'Callaghan, Member Browne

  • Date:

    18 Dec 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
ACT Revenue v Alphaone Pty Ltd (1994) 49 FCR 589
2 citations
Jump To
Cite 1 - (1994) 49 FCR 589
Cite 2 - (1994) 49 FCR 589
AJO v Director-General Department of Transport [2012] NSWADT 101
3 citations
Jump To
Cite 1 - [2012] NSWADT 101
Cite 2 - [2012] NSWADT 101
Cite 3 - [2012] NSWADT 101
Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321
3 citations
Jump To
Cite 1 - (1990) 170 CLR 321
Cite 2 - (1990) 170 CLR 321
Cite 3 - (1990) 170 CLR 321
Australian Broadcasting Tribunal v Bond (1990) HCA 33
3 citations
Jump To
Cite 1 - (1990) HCA 33
Cite 2 - (1990) HCA 33
Cite 3 - (1990) HCA 33
Hughes & Vale Pty. Ltd. v New South Wales (No. 2) (1955) 93 CLR 127
2 citations
Jump To
Cite 1 - (1955) 93 CLR 127
Cite 2 - (1955) 93 CLR 127
MKN v Chief Executive of the Queensland Department of Justice (No 2) [2015] QCAT 452
4 citations
Jump To
Cite 1 - [2015] QCAT 452
Cite 2 - [2015] QCAT 452
Cite 3 - [2015] QCAT 452
Cite 4 - [2015] QCAT 452
MKN v Chief Executive of the Queensland Department of Justice and Attorney-General [2015] QCAT 358
1 citation
Jump To
Cite 1 - [2015] QCAT 358
Smith v Commissioner of Police NSW and Ors [2014] NSWCATAD 184
4 citations
Jump To
Cite 1 - [2014] NSWCATAD 184
Cite 2 - [2014] NSWCATAD 184
Cite 3 - [2014] NSWCATAD 184
Cite 4 - [2014] NSWCATAD 184
Sobey v Commercial Agents Board (1979) 22 SASR 70
4 citations
Jump To
Cite 1 - (1979) 22 SASR 70
Cite 2 - (1979) 22 SASR 70
Cite 3 - (1979) 22 SASR 70
Cite 4 - (1979) 22 SASR 70
TS v Department of Justice and Attorney General – Industry Licensing Unit [2015] QCAT 357
4 citations
Jump To
Cite 1 - [2015] QCAT 357
Cite 2 - [2015] QCAT 357
Cite 3 - [2015] QCAT 357
Cite 4 - [2015] QCAT 357
Vale Pty Ltd v New South Wales (No. 2) [1995] HCA 28
2 citations
Jump To
Cite 1 - [1995] HCA 28
Cite 2 - [1995] HCA 28
Zahra v Commissioner of Police [2014] NSWCATAD 211
2 citations
Jump To
Cite 1 - [2014] NSWCATAD 211
Cite 2 - [2014] NSWCATAD 211

Cases Citing

Case NameFull CitationFrequency
Aitchison v Queensland Police Service – Weapons Licensing [2024] QCAT 92 citations
Brown v Queensland Police Service [2021] QCAT 2932 citations
Dyball v Queensland Police Service [2017] QCAT 201 citation
ELS v Queensland Police Service – Weapons Licensing (No 2) [2022] QCAT 3352 citations
FGH v Queensland Police Service – Weapons Licensing [2016] QCAT 4782 citations
KZT v Weapons Licensing Unit - Queensland Police Service [2016] QCAT 494 citations
Lawler v Queensland Police Service [2022] QCAT 3092 citations
Powell v Queensland Police Service [2019] QCAT 4182 citations
Stretton v Queensland Police - Weapons Licensing [2016] QCAT 2192 citations
1

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