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PYI v Queensland Police Service[2016] QCAT 157

PYI v Queensland Police Service[2016] QCAT 157

CITATION:

PYI v Queensland Police Service [2016] QCAT 157

PARTIES:

PYI

(Applicant)

 

v

 

Queensland Police Service

Commissioner of the Queensland Police Service

(Respondents)

APPLICATION NUMBER:

GAR301-15

MATTER TYPE:

General administrative review matters

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member Howard

DELIVERED ON:

17 May 2016

DELIVERED AT:

Brisbane

ORDERS MADE:

  1. The information contained in the affidavit of Detective Superintendent Anthony Paul Fleming sworn 24 March 2016 and the exhibits to the affidavit numbered APF3 through to APF35 is correctly categorised as criminal intelligence for the purposes of section 142A and/or 143 of the Weapons Act 1990 (Qld).
  1. The review of the Commissioner of Police’s identification of PYI as an identified participant in a criminal organisation and the review of the decision to revoke his Firearms Licence are listed for an oral Hearing in Brisbane on a date to be advised by the Tribunal.
  1. Publication is prohibited as follows:

    (i) The information contained in the affidavit of Detective Superintendent Anthony Paul Fleming sworn 24 March 2016 and the exhibits to the affidavit numbered APF3 through to APF35 may not be disclosed to any person other than the Commissioner of Police;

(ii)  Any information that may identify PYI; and

(iii)  Other than to the Commissioner of Police, the reasons for this decision may only be published to the parties with all references to the criminal intelligence redacted.

CATCHWORDS:

GENERAL ADMINISTRATIVE REVIEW – Weapons Act 1990 (Qld) – where review of decision to revoke firearms licence – preliminary issue – whether information relied on by the Commissioner of Police is correctly categorised as criminal intelligence for the purposes of s 142A and s 143 of the Weapons Act 1990 (Qld)

Criminal Code (Criminal Organisations) Regulation 2013 (Qld), s 2

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 6, s 7, s 19, s 20, s 24, s 66

Vicious Lawless Association Disestablishment Act 2013 (Qld), s 4

Weapons Act 1990 (Qld), s 10B, s 10B(2A), s 30, s 142, s 142A, s 143, Schedule 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

KZT v Weapons Licensing Unit-Queensland Police Service & Commissioner of Police [2015] QCAT 502

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:

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act).

REASONS FOR DECISION

  1. [1]
    This is a preliminary hearing in a review proceeding which concerns a decision to revoke a weapons licence. The only issue for me to determine is whether certain information, filed in the review, is correctly categorised as criminal intelligence. If it is, its confidentiality must be protected. If it is not, the Commissioner of Police may, in his discretion, withdraw it from the Tribunal’s consideration in the review.

Background

  1. [2]
    PYI has applied to review a decision to revoke his Firearms Licence numbered XXXXXXXX (the licence) issued pursuant to the Weapons Act 1990 (Qld) (the Weapons Act). The decision to revoke the licence was made on 12 November 2015 by Inspector Andrew Smith, an authorised officer for Weapons Licensing, Queensland Police Service. PYI has been identified as a participant in a criminal organisation by (the delegate of) the Commissioner of Police (the Commissioner).
  2. [3]
    The general procedure for conducting review proceedings is set out in the QCAT Act.[1] However, QCAT Act provisions may be modified by an enabling Act, such as the Weapons Act.[2] The Weapons Act contains provisions which vary or exclude provisions of the QCAT Act in circumstances that a person is an identified participant in a criminal organisation. In due course, in deciding the review proceeding, the Tribunal may review whether PYI is correctly categorised as an identified participant in a criminal organisation in accordance with s 143 of the Weapons Act.[3] It must then decide in determining the review, whether he is a fit and proper person to hold a licence under s 10B of the Weapons Act 1990 (Qld) (Weapons Act).[4] Under s 10B(2A), a person who is an identified participant in a criminal organisation is deemed not to be a fit and proper person.
  3. [4]
    Because PYI has been identified by the Commissioner as an identified participant in a criminal organisation, the Commissioner is a party to the proceeding for the review of the decision to revoke his weapons licence: s 143(1) and (2). Where this is the case, the Commissioner 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: s 143(2)(b). The Tribunal may review the identification of a person as an identified participant in a criminal organisation: s 143(3)(a)(i). In doing so, it may receive evidence consisting of criminal intelligence (by way of affidavit of a police officer of at least the rank of superintendent) and argument about the criminal intelligence: s 143(3)(b).  In this process, the Tribunal considers whether information has been incorrectly categorised as criminal intelligence: s 143(4).

The preliminary Issue

  1. [5]
    Therefore, before this review application can proceed further, the Tribunal must determine whether the statement of reasons and evidence relied upon by the Commissioner of Police is information which is correctly categorised as criminal intelligence.
  2. [6]
    PYI does not know of the nature or content of the information which the Commissioner says is criminal intelligence because that information is afforded confidentiality under the Weapons Act. Section 142A relevantly provides that the Tribunal must ‘receive evidence and hear argument in the absence of the public’, the applicant and the applicant’s lawyer or representative.[5] Section 143 makes similar provision as it relates to review of information about the identification of individuals as identified participants in criminal organisations: s 143(3)(b).
  3. [7]
    The Tribunal must not disclose the content of criminal intelligence on which its decision is based.[6] The Commissioner may withdraw information ‘from consideration’ by the Tribunal, if the Tribunal considers the information has been ‘incorrectly categorised’ by the Commissioner of Police as ‘criminal intelligence’.[7]
  4. [8]
    Here, the Commissioner of Police relies on information contained in and exhibited to a confidential affidavit of Detective Superintendent Anthony Paul Fleming sworn on 24 March 2016. He submits that the affidavit and the exhibits are information which is properly categorised as criminal intelligence.

What is ‘criminal intelligence’ for the purposes of the Weapons Act?

  1. [9]
    Section 142A of the Weapons Act makes provision for confidentiality of criminal intelligence. 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—

  1. (a)
    to prejudice the investigation of a contravention or possible contravention of this Act; or
  1. (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
  1. (c)
    to endanger a person’s life or physical safety; or
  1. (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
  1. (e)
    to prejudice the maintenance or enforcement of a lawful method or procedure for protecting public safety.
  1. [10]
    Section 143 of the Weapons Act (which provides for review of the Commissioner’s decision that an individual is an identified participant in a criminal organisation) provides additional confidentiality requirements. It relevantly provides that the Tribunal may, as it considers it appropriate to protect the confidentiality of criminal intelligence, receive evidence and hear argument about the criminal intelligence in the absence of the parties (s 143(3)(b)) in considering whether the information has been correctly categorised as criminal intelligence by the Commissioner: s 143(4).
  2. [11]
    Criminal intelligence is further defined in s 143 as follows:

(6) In this section—

criminal intelligence means—

(a) advice given by the commissioner to the authorised officer under section 14(3A), 18(4B) or 30(1C) that a person is—

(i) an identified participant in a criminal organisation; or

(ii) a criminal organisation; and

(b) information held by the commissioner that is relevant to whether the person is—

(i) an identified participant in a criminal organisation; or

(ii) a criminal organisation.

  1. [12]
    Schedule 2 of the Weapons Act also relevantly defines criminal intelligence in relation to a person to include any information about the person’s connection with or involvement in criminal activity, (other than advice given by the commissioner to an authorised officer under specified sections[8] of the Weapons Act), that a person is:[9]

(a) an identified participant in a criminal organisation; or

(b) a criminal organisation.

  1. [13]
    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).

  1. [14]
    The Tribunal 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. In DT’s case, the Tribunal determined whether information was correctly categorised as ‘criminal intelligence reports, or other criminal information’ within s 20(3) of the Tattoo Parlours Act 2013 (Qld). The Tribunal found 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]
  2. [15]
    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 cited 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]

  1. [16]
    In KZT v Weapons Licensing Unit- Qld Police,[14] the Tribunal considered the provisions of the Weapons Act that are relevant in this preliminary hearing. DT was referred to with apparent approval, even though the terms and definitions used in the Weapons Act, are not identical to the terminology used in the Tattoo Parlours Act.
  2. [17]
    In this case, the confidential affidavit sets out [redacted].
  3. [18]
    The information contained in the exhibits to the confidential affidavit is as follows: [redacted].
  4. [19]
    I am satisfied the information contained in and exhibited to the confidential affidavit in exhibits APF3 through to APF35 is ‘criminal intelligence’ (within the definitions contained in Schedule 2 of the Weapons Act) because [redacted].
  5. [20]
    However, Exhibits APF1 and APF2 do not contain information which is criminal intelligence. APF1 is a document [redacted]. APF 2 is a copy of [redacted]. The information in these documents does not fall within the definition of criminal intelligence.
  6. [21]
    I am further satisfied the information contained in the affidavit and in exhibits APF3 through to APF35 is information held by the Commissioner that is relevant to whether the PYI is an identified participant [redacted]. It is therefore criminal intelligence for the purposes of s 143 of the Weapons Act. The information when read collectively informs the question [redacted].
  7. [22]
    I am 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:
    1. 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
    2. prejudice the maintenance or enforcement of a lawful method or procedure for protecting public safety.
  8. [23]
    This is because the confidential affidavit and exhibits AFP3 to APF35 contain information collected by the Queensland police for tactical operational and strategic decision-making. The Queensland Police Service, where appropriate and lawful, exchanges 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.
  9. [24]
    I am satisfied that the information contained in the confidential affidavit and exhibits APF3 through to APF35 has been correctly categorised as ‘criminal intelligence’ for the purposes of s 142A and s 143 and should not be disclosed.

Orders

  1. [25]
    Accordingly, I make a declaration that the information is properly categorised as criminal intelligence.
  2. [26]
    The next step is for the Tribunal is hear the review. Directions have already been made by the Tribunal (on 23 February 2016) for the filing of further material after this preliminary decision. I direct that the review be listed for hearing on a date to be fixed.

Non-publication orders

  1. [27]
    The Tribunal made an order on 23 February 2016 to the effect that, unless otherwise ordered, publication of the documents and submissions filed by the Commissioner of Police about the identification of PYI as an identified participant of a criminal organisation is prohibited.
  2. [28]
    I have found that information in the confidential affidavit and exhibits APF3 through to APF35 is criminal intelligence. It is therefore appropriate to make orders, pursuant to s 66 of the QCAT Act, prohibiting publication of:
    1. The contents of those documents to any person other than the Commissioner of Police;
    2. Any information that may enable PYI to be identified;
    3. Other than to the Commissioner, these reasons for decision may only be published to the parties with all references to the information that is criminal intelligence redacted.
  3. [29]
    I am satisfied that these orders are necessary to avoid the publication of confidential information which must not be disclosed under the Weapons Act.

Footnotes

[1]  QCAT Act, see especially ss 19 - 20, 24.

[2]  QCAT Act, ss 6, 7.

[3]  In the review of a decision to revoke a weapons licence, the Tribunal may review a decision of the Commissioner that a person is an identified participant in a criminal organisation: s 143(3)(a) of the Weapons Act.

[4]  Review of a decision revoking a licence is provided for in s 142 of the Weapons Act

[5]  Weapons Act, s 142A(2)(b) and s 143(3)(b).

[6]  Weapons Act, s 142A(2)(a).

[7]  Weapons Act, s 143(4), see also, s 143(5) that provides the information withdrawn by the commissioner must not be ‘disclosed’.

[8]  In particular, ss 14(3A), 18(4B) and 30(1C).

[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].

[14]  [2015] QCAT 502.

Close

Editorial Notes

  • Published Case Name:

    PYI v Queensland Police Service

  • Shortened Case Name:

    PYI v Queensland Police Service

  • MNC:

    [2016] QCAT 157

  • Court:

    QCAT

  • Judge(s):

    Member Howard

  • Date:

    17 May 2016

Appeal Status

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

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