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LGV v Inspector Smith, Weapons and Licensing Branch, Queensland Police Service[2016] QCAT 394

LGV v Inspector Smith, Weapons and Licensing Branch, Queensland Police Service[2016] QCAT 394

CITATION:

LGV v Inspector Smith, Weapons and Licensing Branch, Queensland Police Service & Anor [2016] QCAT 394

PARTIES:

LGV

(Applicant)

v

Inspector Andrew Smith, Weapons and Licensing Branch, Queensland Police Service (Inspector Smith)

The Commissioner of Police

(Respondents)

APPLICATION NUMBER:

GAR152-16

MATTER TYPE:

General administrative review matters

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member Browne

DELIVERED ON:

24 October 2016

DELIVERED AT:

Brisbane

ORDERS MADE:

  1. The information contained in the affidavit of Anthony Paul Fleming sworn 12 August 2016 and the exhibits to the affidavit numbered ‘APF1’ through to ‘APF9’ is correctly categorised as ‘criminal intelligence’ for the purposes of s 142A and/or s 143 of Weapons Act 1990 (Qld).
  1. The hearing of the application GAR152-16 listed in Brisbane on 31 October 2016 commencing at 9:30am is confirmed.
  1. Publication is prohibited as follows:
  1. (i)
    The information contained in the affidavit of Anthony Paul Fleming sworn 12 August 2016 and the exhibits numbered ‘APF1’ through to ‘APF9’ to the affidavit may not be disclosed to any person other than the Commissioner of Police;
  2. (ii)
    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 cancel 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

Weapons Act 1990 (Qld), s 10B, s 10B(2A), s 14, s 18(4B), s 30, s 142, s 142A, s 143, Schedule 2

AVS Group Australia Pty v Commissioner of Police [2012] NSWADT 1, cited

DT & Anor v Department of Justice and Attorney-General – Industry Licensing Unit & Anor [2015] QCAT 228, cited

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

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

PYI v Queensland Police Service [2016] QCAT 157, cited

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

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]
    LGV wants to review a decision to revoke his Firearms Licence numbered XXXXXXXX (the licence) issued pursuant to the Weapons Act 1990 (Qld) (the Weapons Act).
  2. [2]
    The decision to revoke LGV’s licence was made by an authorised officer for Weapons Licensing on 6 June 2016. The authorised officer determined that LGV is not a fit and proper person to hold a licence due to it not being in the public interest; and LGV is an identified participant in a criminal organisation.[1]
  3. [3]
    The review of the decision to revoke LGV’s licence because he is an identified participant in a criminal organisation is a merits review conducted pursuant to the provisions of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) subject to the modified procedure prescribed by the Weapons Act.[2]
  4. [4]
    The Tribunal on review must ultimately decide whether LGV is a fit and proper person to hold a licence under s 10B of the Weapons Act. Section s 10B(2A) of the Act provides that a person who is an ‘identified participant in a criminal organisation’ is not a fit and proper person to hold a licence.
  5. [5]
    The issue before the Tribunal now is whether information relied upon by the authorised officer has been correctly categorised as ‘criminal intelligence’.[3]
  6. [6]
    This is because the authorised officer relied on information that a determination had been made on 17 November 2015 that LGV is an identified participant in a criminal organisation. The Commissioner of Police (the Commissioner) is a party to the proceeding for the review of the decision and relies on information contained in confidential material filed in the proceedings.
  7. [7]
    LGV 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 ‘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.
  8. [8]
    The Tribunal on review ‘must ensure’ that it does not disclose the content of any criminal intelligence on which the Tribunal’s decision is based.[4] Under s 143(4), 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’ as criminal intelligence.[5]
  9. [9]
    In this case the information relevant to the determination of LGV as an identified participant in a criminal organisation is contained in the confidential affidavit of Detective Superintendent Anthony Paul Fleming, State Intelligence Group, Intelligence, Counter Terrorism and Major Events Command, Queensland Police Service.
  10. [10]
    The Commissioner has given to the Tribunal a copy of the confidential affidavit and exhibits together with written submissions. The Commissioner submits that the affidavit and the exhibits are information which is properly categorised as ‘criminal intelligence’ as defined by the Weapons Act and the information should be kept confidential in these proceedings.

Is the information contained in and exhibited to the confidential affidavit ‘criminal intelligence’ mentioned in s 142A and/or s 143 of the Weapons Act?

  1. [11]
    Section 142A of the Weapons Act provides that the tribunal must ensure it does not disclose the content of any criminal intelligence.[6] 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
  2. (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
  3. (c)
    to endanger a person’s life or physical safety; or
  4. (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
  5. (e)
    to prejudice the maintenance or enforcement of a lawful method or procedure for protecting public safety.
  1. [12]
    Section 143 of the Weapons Act, relevant to reviewing a decision that an individual is an ‘identified participant in a criminal organisation’ provides additional confidentiality requirements and further defines ‘criminal intelligence’ as follows:

criminal intelligence means—

  1. (a)
    advice given by the commissioner to the authorised officer under section 14(3A), 18(4B) or 30(1C) that a person is—
  1. (i)
    an identified participant in a criminal organisation; or
  1. (ii)
    a criminal organisation; and
  1. (b)
    information held by the commissioner that is relevant to whether the person is—
  1. (i)
    an identified participant in a criminal organisation; or
  1. (ii)
    a criminal organisation.
  1. [13]
    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’, (other than advice given by the commissioner to an authorised officer under specified sections[7] of the Weapons Act), that a person is:
  1. (a)
    an identified participant in a criminal organisation; or
  1. (b)
    a criminal organisation.
  1. [14]
    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. [15]
    It was previously determined by the Tribunal in DT & Anor v Department of Justice and Attorney-General – Industry Licensing Unit & Anor[8] that the categorisation of either criminal intelligence information or other criminal information is to be determined broadly.
  2. [16]
    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).
  3. [17]
    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.[9]
  4. [18]
    In DT’s case the Tribunal cited the decision in AVS Group Australia v Commissioner of Police[10] 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:[11]

…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.

  1. [19]
    In KZT v Weapons Licensing Unit- Queensland Police Service & Commissioner of Police[12] the Tribunal considered the provisions of the Weapons Act that are also relevant in this matter. The Tribunal, in KZT’s case, cited DT’s case and accepted the approach taken by the Tribunal for the purposes of determining whether information had been correctly categorised as criminal intelligence in the Weapons Act.
  2. [20]
    In this case the information contained in the confidential affidavit was collected by [redacted].
  3. [21]
    The information about LGV contained in the confidential affidavit and exhibits is as follows:

[redacted]

  1. [22]
    I am satisfied the information contained in and exhibited to the confidential affidavit is ‘criminal intelligence’ because it is information about [redacted].
  2. [23]
    I am satisfied the information is a collation of confidential information gathered from different sources and is therefore criminal intelligence which relates to LGV. The information when read collectively [redacted].
  3. [24]
    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:
    1. prejudice the investigation of a contravention or possible contravention of the Weapons Act; and
    2. 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
    3. prejudice the maintenance or enforcement of a lawful method or procedure for protecting public safety.
  4. [25]
    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, where appropriate and lawful, 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.
  5. [26]
    I am satisfied that the information contained in and exhibited to the confidential affidavit has been correctly categorised as ‘criminal intelligence’ for the purposes of s 142A and/or s 143 of the Weapons Act and should not be disclosed.

Conclusion

  1. [27]
    I have found that the information contained in and exhibited to the confidential affidavit is correctly categorised as ‘criminal intelligence’. Because of our finding, LGV is not to know of the existence or content of the information even though the decision to revoke his licence relies on the information because LGV was found to an identified participant in a criminal organisation. The confidential affidavit and the information exhibited to the confidential affidavit should not be disclosed because we have found it contains criminal intelligence reports and other information.
  2. [28]
    The next step for the Tribunal is to conduct a review of the decision to identify LGV as a participant in a criminal organisation. Directions have been made by the Tribunal for the parties including LGV and the Commissioner to prepare and file any material to be relied upon at the oral hearing that has been listed in Brisbane on 31 October 2016.[13]

Non-publication orders

  1. [29]
    I have found that the information contained in and 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:
    1. The contents of those documents to any person other than the second named respondent, the Commissioner of Police; and
    2. Any information that may enable LGV to be identified.
  2. [30]
    I consider these orders necessary to avoid the publication of confidential information which must not be disclosed.
  3. [31]
    The Tribunal will deliver and publish two sets of reasons. One set to the second named respondent, the Commissioner of Police and a redacted set to the applicant and for publication.

Footnotes

[1]See Schedule 2 of the Weapons Act and s 2 of the Criminal Code (Criminal Organisations) Regulation 2013 (Qld).

[2]QCAT Act s 6, s 7, s 19, s 20, s 24.

[3]QCAT Directions made on 1 July 2016. See s 142A and s 143 of the Weapons Act.

[4]Weapons Act s 142A.

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

[6]Weapons Act s 142A.

[7]See s 14(3A), s 18(4B) and s 30(1C).

[8][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.

[9]DT & Anor v Department of Justice and Attorney-General – Industry Licensing Unit & Anor [2015] QCAT 228, [39].

[10][2012] NSWADT 1.

[11]AVS Group Australia v Commissioner of Police [2012] NSWADT 1 at [43], see DT’s case at [36].

[12][2015] QCAT 502. See also PYI v Queensland Police Service [2016] QCAT 157.

[13]QCAT Directions made on 23 August 2016.

Close

Editorial Notes

  • Published Case Name:

    LGV v Inspector Andrew Smith, Weapons and Licensing Branch, Queensland Police Service and The Commissioner of Police

  • Shortened Case Name:

    LGV v Inspector Smith, Weapons and Licensing Branch, Queensland Police Service

  • MNC:

    [2016] QCAT 394

  • Court:

    QCAT

  • Judge(s):

    Member Browne

  • Date:

    24 Oct 2016

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
4 citations
Jump To
Cite 1 - [2015] QCAT 228
Cite 2 - [2015] QCAT 228
Cite 3 - [2015] QCAT 228
Cite 4 - [2015] QCAT 228
KZT v Weapons Licensing Unit – Queensland Police Service [2015] QCAT 502
2 citations
Jump To
Cite 1 - [2015] QCAT 502
Cite 2 - [2015] QCAT 502
MKN v Chief Executive of the Queensland Department of Justice and Attorney-General [2015] QCAT 358
2 citations
Jump To
Cite 1 - [2015] QCAT 358
Cite 2 - [2015] QCAT 358
PYI v Queensland Police Service [2016] QCAT 157
2 citations
Jump To
Cite 1 - [2016] QCAT 157
Cite 2 - [2016] QCAT 157
TS v Department of Justice and Attorney General – Industry Licensing Unit [2015] QCAT 357
2 citations
Jump To
Cite 1 - [2015] QCAT 357
Cite 2 - [2015] QCAT 357

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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