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  4. AG v Chief Executive, Department of Justice and Attorney-General – Industry Licensing Unit - [2016] QCAT 459

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AG v Chief Executive, Department of Justice and Attorney-General – Industry Licensing Unit[2016] QCAT 459

AG v Chief Executive, Department of Justice and Attorney-General – Industry Licensing Unit[2016] QCAT 459

CITATION:

AG v Chief Executive, Department of Justice and Attorney-General – Industry Licensing Unit & Anor [2016] QCAT 459

PARTIES:

AG

(Applicant)

v

Chief Executive, Department of Justice and Attorney-General

The Commissioner of Police

(Respondents)

APPLICATION NUMBER:

OCR065-16

MATTER TYPE:

Occupational regulation matters

HEARING DATE:

13 September 2016

HEARD AT:

Brisbane

DECISION OF:

Senior Member O'Callaghan

DELIVERED ON:

29 November 2016

DELIVERED AT:

Brisbane

ORDERS MADE:

  1. The information exhibited to the affidavit of Detective Superintendent Wacker is correctly categorised as criminal intelligence reports or other criminal information under the Tattoo Parlours Act 2013 (Qld).
  1. The applications for miscellaneous matters are dismissed.
  1. Pursuant to s 66 of the Queensland Civil and Administrative Tribunal Act publication of the following is prohibited:
  1. The contents of the confidential affidavit of Detective Superintendent Wacker to any person other than the second respondent and his representatives; and
  2. Any information that may enable the applicant to be identified.

CATCHWORDS:

PROFESSIONS AND TRADES – LICENSING OR REGULATION OF OTHER PROFESSIONS, TRADES OR CALLINGS – Tattoo Parlours – where review of decision to refuse operator licence – preliminary issue –whether information relied on by the Commissioner of Police in making an adverse security determination is correctly categorised as criminal intelligence report or other criminal information mentioned in s 20(3) of the Tattoo Parlours Act 2013

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 19, s 20, s 21, s 24

Tattoo Parlours Act 2013 (Qld), s 15(b), s 17(2)(b), s 20(3), s 57(2), s 57(3), s 57(4), s 58, Schedule 1

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

ET v Department of Justice and Attorney-General – Industry Licencing Unit & Anor [2014] QCAT 694

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

APPEARANCES :

 

APPLICANT:

Alistair McDougall of Counsel, instructed by Hannay Lawyers appeared for the Applicant

FIRST RESPONDENT:

Peter Rashford, Principal Probity Review Officer, Industry Licensing Unity, Department of Justice and Attorney-General appeared for the First Respondent

SECOND RESPONDENT:

Michael Nicolson of Counsel, instructed by the Queensland Police Legal Unit appeared for the Second Respondent

REASONS FOR DECISION

  1. [1]
    AG applied to the Chief Executive, Department of Justice and Attorney-General for a tattoo operator’s licence under the Tattoo Parlours Act 2013 (Qld) (‘TPA’).
  2. [2]
    In accordance with the requirements of the TPA,[1] the application was referred to the Commissioner of Police (‘the commissioner’) to enquire into, determine and report to the chief executive on:
    1. Whether AG was a fit and proper person to be granted a licence; and
    2. Whether it would be contrary to the public interest for the licence to be granted.
  3. [3]
    A negative determination by the commissioner on either of those matters is referred to in the TPA as ‘an adverse security determination’.[2]
  4. [4]
    Under s 20(3) of the TPA, the commissioner, in making the determination, 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. Is relevant to the business procedures carried on or performed, or proposed to be carried on or performed under the licence; or
    2. Causes the commissioner to conclude improper conduct is likely to occur if the applicant is granted the licence; or
    3. Causes the commissioner not to have confidence that improper conduct will not occur if the applicant is granted the licence.
  5. [5]
    The commissioner made an adverse security determination about AG.
  6. [6]
    The chief executive refused AG’s application for a licence as he was obliged to do under the TPA once he was advised that an adverse security determination had been made.[3] It is noted that the chief executive does not receive an adverse security report about AG. He is simply advised that the determination has been made.[4]
  7. [7]
    AG has applied to the Tribunal to review the decision to refuse the licence.
  8. [8]
    In conducting a review of the chief executive’s decision, the Tribunal having the functions of the decision maker would be bound to confirm the decision to refuse the licence when an adverse security determination is made.
  9. [9]
    Section 57 of the TPA, however, provides AG with the opportunity to have the Tribunal review the decision of the commissioner to make the adverse security determination. This is done as a preliminary determination prior to the review of the chief executive’s decision.
  10. [10]
    It has been determined by QCAT in other cases that this preliminary review  is a merits review conducted in accordance with the provisions of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’) subject to any modified procedure in the TPA.[5]
  11. [11]
    It has previously been determined by the Tribunal that s 57(3) of the TPA modifies the general provisions in the QCAT Act for conducting merits reviews.[6]
  12. [12]
    Section 57 provides for the Tribunal in conducting the review of the adverse security determination, to conduct the review ‘as it considers appropriate to protect the confidentiality of a criminal intelligence report or other criminal information referred to in s 20(3)’. The Tribunal may:

(i) receive evidence and hear argument about the information in the absence of parties to the proceeding and their representatives; and

(ii) take evidence consisting of the information by way of affidavit of a police officer of at least the rank of superintendent.[7]

  1. [13]
    This provision modifies the usual requirement for the Tribunal to grant procedural fairness to an applicant in ensuring they have access to all of the documents which may be relevant to the Tribunal’s review of the decision. In reviewing the adverse security determination, to the extent that the Tribunal considers those documents have been correctly categorised by the commissioner as a criminal intelligence report or other criminal information, they are not to be disclosed.
  2. [14]
    It also follows that the applicant is not afforded the usual procedural fairness of having access to relevant material in the Tribunal’s preliminary determination as to whether that information is correctly categorised.
  3. [15]
    In this case upon the application to review being filed, the Tribunal issued directions to the parties relevantly, as follows:
    • The commissioner was to file in the Tribunal a copy of the adverse security determination, together with evidence by way of a criminal intelligence report and other criminal information relied on to make the adverse security determination;
    • That evidence was to be provided in a sealed envelope to be opened only by the Tribunal constituted to consider whether the criminal intelligence report or other criminal information had been correctly categorised;
    • The commissioner was to file submissions about whether the information was correctly categorised;
    • The determination of whether the information or report had been correctly categorised was to be made by the Tribunal at a closed hearing based on the information in submissions from the commissioner.
  4. [16]
    Prior to the determination by the Tribunal in accordance with that direction, AG filed two miscellaneous applications. The first sought orders that:
    • He be entitled to make submissions about the adverse security determination.

The second that:

  • An oral hearing take place to determine the first miscellaneous application; and
  • The commissioner was to produce a copy of the adverse security determination.
  1. [17]
    An oral hearing took place to consider the applications. In essence, AG was seeking orders that he be provided with a copy of the adverse security determination, or at the least particulars of the determination.

Should AG be given a copy of the adverse security determination?

  1. [18]
    In his written submissions, AG argued that a jurisdictional error had been made by the commissioner in denying procedural fairness in not providing AG with the basis of the adverse security determination. He said a review under the Judicial Review Act 1991 (Qld) was appropriate in that s 58 of the TPA says ‘a review under Part 4 of the Judicial Review Act only applies where there has been a jurisdictional error’.
  2. [19]
    That is not a matter for determination by this Tribunal. The Tribunal has no power to conduct a judicial review. Section 58 makes it clear that only the Supreme Court can decide whether the decision is affected by jurisdictional error.
  3. [20]
    The Tribunal, as set out above, has previously determined that the usual requirement to provide procedural fairness has been modified by the TPA. If the adverse security determination is based on a criminal intelligence report or other criminal information, that information cannot be disclosed to AG.
  4. [21]
    The commissioner, in his submissions[8] refers the Tribunal to the explanatory notes to the TPA which explains the intended confidentiality over the adverse security determination.
  5. [22]
    The explanatory notes to the Tattoo Parlours Bill 2013 provides:

In addition, the provisions allowing for non-disclosure of the details of adverse security determinations are necessary to protect the integrity and effectiveness of criminal intelligence acquired by police in relation to the operations of organised crime in Queensland.[9]

  1. [23]
    As was said by the Tribunal in the case of DT & Anor v Department of Justice and Attorney-General – Industry Licensing Unit & Anor:

It is not necessary for the Tribunal to determine whether confidentiality applied to the documents once the tribunal is satisfied that there was an appropriately categorised “criminal intelligence report” or “other criminal information” as mentioned in s 20(3) TP Act. That is because the Act makes it clear that at the discretion of the commissioner the existence or content of a criminal intelligence report or other criminal information mentioned in s 20(3) should remain confidential.[10]

Further, the Tribunal commented ‘if there is a correctly categorised criminal intelligence report or other criminal information, confidentiality is assumed.’[11]

  1. [24]
    Accordingly, the contents of the adverse security determination report cannot be disclosed to AG to the extent that it contains criminal information report or other criminal information.
  2. [25]
    At the time of the oral hearing of the miscellaneous applications the Tribunal was yet to make the determination as to whether the information was correctly categorised.
  3. [26]
    It is appropriate to make that determination before considering what information can be provided to AG. Even if it is determined that the information is not correctly categorised, the commissioner has the option to withdraw the information from QCAT’s consideration without disclosure to AG.[12]

Has the commissioner correctly categorised information as a ‘criminal intelligence report’ or ‘other criminal information’?

  1. [27]
    The commissioner filed a confidential affidavit of Detective Superintendent Wacker. That affidavit exhibits information which formed the basis of the commissioner’s decision to make an adverse security determination.
  2. [28]
    The commissioner submits that the documents annexed to the affidavit are criminal intelligence reports or other criminal information.
  3. [29]
    The terms ‘criminal intelligence report’ and ‘other criminal information’ are not defined in the TPA.
  4. [30]
    It was determined by the Tribunal in DT[13] that the categorisation of either a criminal intelligence report or other criminal information is to be determined broadly. 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.[14]

  1. [31]
    In that case, the Tribunal considered the meaning of a report as defined in the Oxford dictionary to be ‘an account given or an opinion formally expressed after an investigation or consideration or the giving of an account, that is, review of information and collation’. The Tribunal cited the decision of AVS Group Australia v Commissioner of Police,[15] in which it was said that the separation between the concepts of ‘criminal intelligence reports’ and ‘other criminal information’ is one that informs the other. The Tribunal cited the following passage from that case:

…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.[16]

  1. [32]
    I accept this broad approach should be adopted in determining whether the material exhibited to the confidential affidavit in this case is correctly categorised as criminal intelligence reports or other criminal information.
  2. [33]
    The information exhibited to the affidavit is as follows:

[redacted]

  1. [34]
    This material contains the following information:

[redacted]

  1. [35]
    I am satisfied that this information contains information about AG’s connection with, or involvement in criminal activity. It is information which would cause the commissioner to conclude improper conduct is likely to occur if AG is granted a licence or would cause the commissioner not to have confidence improper conduct will not occur if AG is granted a licence.[17]
  2. [36]
    I find that the information exhibited to the affidavit is correctly categorised as a criminal intelligence report or other criminal information.
  3. [37]
    I also accept the commissioner’s concession that some of the documents exhibited to the affidavit (whilst forming part of the matrix of criminal intelligence) are also, when considered separately, not confidential and those documents should be disclosed. These are:
    • The instrument of delegation;
    • AG’s criminal record;
    • AG’s traffic record;
    • Communications between the QPS and Irish Bentley Lawyers (AG’s former solicitors).
  4. [38]
    These documents should be produced to AG as part of the next stage of these proceedings, namely the merits review of the commissioner’s decision to make the adverse security determination.
  5. [39]
    In summary, I find that the information attached to Superintendent Wacker’s confidential affidavit upon which the adverse security determination was based consists of criminal intelligence reports and other criminal information and cannot (save for the exceptions referred to above) be provided to AG.

Should AG be given better particulars of the basis for the adverse security determination?

  1. [40]
    AG submitted at the oral hearing of the miscellaneous applications that if the adverse security report could not be provided, at the very least he was entitled to more particulars for the reasons for decision.
  2. [41]
    I asked the parties to provide further written submissions on the issue of whether the commissioner should provide reasons for his decision.
  3. [42]
    In his lawyers submissions in support of the application for particulars of the determination, AG refers to a number of authorities where various Courts have made findings that particulars of allegations should be provided in order to provide procedural fairness, even if there was a claim for privilege with respect to intelligence information which supported the allegations.[18]
  4. [43]
    The difference between these authorities and the present case is that (unlike the TPA) there was no statutory prohibition on disclosure of the information.
  5. [44]
    It is noted that Jackson J of the Queensland Supreme Court in one of the cases[19] said (emphasis added):

Still, resolution of any question as to the existence of the obligation to accord procedural fairness and the content of any obligation to give notice of or to disclose material to be taken into account in relation to an administrative decision made under an enactment starts with the provisions of the enactment.

  1. [45]
    The TPA provisions expressly prohibit the provision of particulars of the basis for the decision which would disclose criminal intelligence.
  2. [46]
    In relation to whether a statement of reasons for the decision should be provided, I accept the commissioner’s submission that he is expressly excused by the TPA[20] from doing so, if to do so would disclose the existence or the content of a criminal intelligence report or other criminal information. As I have found that the information exhibited to Superintendent Wacker’s affidavit upon which the decision to make the adverse security determination was based is a criminal intelligence report or other criminal information, reasons which would disclose that information are not required.
  3. [47]
    I accept that such findings modify the usual rules of procedural fairness, however the Tribunal is constrained by the terms of the enabling Act.
  4. [48]
    I note that AG has been put on notice through communication with his previous lawyers that central to the commissioner’s concerns was that AG had ‘been identified as a participant associated with the Rebels Motorcycle Club’.[21]
  5. [49]
    AG has the opportunity at the next stage in these proceedings to present evidence and make submissions to address this issue in the Tribunal’s review of the decision that he is not fit and proper or it is not in the public interest for him to hold a tattoo licence. In that regard I will issue directions for the future conduct of these proceedings.
  1. [50]
    In summary I order that:
    1. The information exhibited to the affidavit of Superintendent Wacker is correctly categorised as criminal intelligence reports or other criminal information.
    2. The applications for miscellaneous matters are dismissed.
  2. [51]
    I have found that the exhibits to the confidential affidavit are criminal intelligence reports or other criminal information. 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 respondent and his representatives; and
    2. Any information that may enable the applicant to be identified.
  3. [52]
    I consider these orders necessary to avoid the publication of confidential information which would be contrary to the public interest.
  4. [53]
    The Tribunal will deliver and publish two sets of reasons. One set to the second respondents and a redacted set to the other parties and for publication.

Footnotes

[1] TPA, s 15(b).

[2] TPA, Schedule 1.

[3] TPA, s 17(2)(b).

[4] Submissions of the Commissioner of Police dated 25 August 2016, para [22].

[5] DT & Anor v Department of Justice and Attorney-General – Industry Licensing Unit & Anor [2015] QCAT 228; ET v Department of Justice and Attorney-General – Industry Licencing Unit & Anor [2014] QCAT 694; TS v Department of Justice and Attorney-General – Industry Licencing Unit [2015] QCAT 357.

[6] See QCAT Act, s 19, s 20, s 21, s 24.

[7] TPA, s 57(3)(b).

[8] Dated 25 August 2016, at para [14].

[9] Submissions of the Commissioner of Police dated 25 August 2016, para [14].

[10] DT & Anor v Department of Justice and Attorney-General – Industry Licensing Unit & Anor [2015] QCAT 228 at [22].

[11] DT & Anor v Department of Justice and Attorney-General – Industry Licensing Unit & Anor [2015] QCAT 228 at [23].

[12] TPA, s 57(4).

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

[14] Ibid at para [39].

[15] [2012] NSWADT 1.

[16] AVS Group Australian v Commissioner of Police [2012] NSWADT 1 at [43].

[17] TPA, s 20(3).

[18] See applicant’s submissions dated 20 September 2016, paras [10]-[15].

[19] McLaren v Rallings [2015] 1 Qd R 438, at [42].

[20] TPA, s 22(1).

[21] Correspondence between Irish Bentley Lawyers and Kevin Andrews, dated 1 September 2015; Further submissions of Commissioner of Police in response to the Tribunal’s query in respect to further and better particulars, [11]-[13].

Close

Editorial Notes

  • Published Case Name:

    AG v Chief Executive, Department of Justice and Attorney-General – Industry Licensing Unit & Anor

  • Shortened Case Name:

    AG v Chief Executive, Department of Justice and Attorney-General – Industry Licensing Unit

  • MNC:

    [2016] QCAT 459

  • Court:

    QCAT

  • Judge(s):

    Senior Member O'Callaghan

  • Date:

    29 Nov 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
2 citations
Jump To
Cite 1 - [2012] NSWADT 1
Cite 2 - [2012] NSWADT 1
DT & Anor v Department of Justice & Attorney-General, Industry Licensing Unit & Anor [2014] QCAT 694
2 citations
Jump To
Cite 1 - [2014] QCAT 694
Cite 2 - [2014] QCAT 694
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
6 citations
Jump To
Cite 1 - [2015] QCAT 228
Cite 2 - [2015] QCAT 228
Cite 3 - [2015] QCAT 228
Cite 4 - [2015] QCAT 228
Cite 5 - [2015] QCAT 228
Cite 6 - [2015] QCAT 228
McLaren v Rallings[2015] 1 Qd R 438; [2014] QSC 68
1 citation
Jump To
Cite 1 - [2015] 1 Qd R 438
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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