Queensland Judgments
Authorised Reports & Unreported Judgments
  • sclq logo
  1. Caselaw
  2. QCAT
  3. 2016
  4. KLM v Chief Executive, Department of Justice and Attorney General – Industry Licencing Unit - [2016] QCAT 512

Authorised Reports & Unreported Judgments
Exit Distraction Free Reading Mode
  • Unreported Judgment

KLM v Chief Executive, Department of Justice and Attorney General – Industry Licencing Unit[2016] QCAT 512

KLM v Chief Executive, Department of Justice and Attorney General – Industry Licencing Unit[2016] QCAT 512

CITATION:

KLM v Chief Executive, Department of Justice and Attorney General – Industry Licencing Unit & Anor [2016] QCAT 512

PARTIES:

KLM

(Applicant)

v

Chief Executive, Department of Justice and Attorney General – Industry Licencing Unit

(First Respondent)

The Commissioner of Police

(Second Respondent)

APPLICATION NUMBER:

OCR058-16

MATTER TYPE:

Occupational regulation matters

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Senior Member O'Callaghan

DELIVERED ON:

15 August 2016

DELIVERED AT:

Brisbane

ORDERS MADE:

  1. The affidavit of Detective Superintendent Jon Harold Wacker sworn 15 June 2016 and the exhibits thereto has been correctly categorised as criminal intelligence reports or other criminal information mentioned in s 20(3) of the Tattoo Parlours Act 2013 (Qld) (s 20(3) material).

CATCHWORDS:

GENERAL ADMINISTRATIVE REVIEW – Tattoo Parlours Act 2013 – where review of decision to refuse a licence – preliminary issue – where issue is 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 – where meaning of ‘criminal intelligence report’ and ‘other information’ previously determined by the Tribunal was adopted

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 19, s 66

Tattoo Parlours Act 2013 (Qld), s 15, s 20, s 57, Schedule 1

AVS Group Australian v Commissioner of Police [2012] NSWADT 1

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

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

APPEARANCES:

The hearing was conducted in the absence of the applicant and the respondents.

REASONS FOR DECISION

  1. [1]
    KLM applied to the Chief Executive, Department of Justice and Attorney General – Industry Licencing Unit (‘Chief Executive’) for a tattoo operators licence under the Tattoo Parlours Act 2013 (Qld) (‘TPA’). The application was refused by the Chief Executive after The Commissioner of Police (‘the Commissioner’) made an adverse security determination about KLM.
  2. [2]
    The Chief Executive under the TPA must refer any application for a licence to the Commissioner for an investigation, determination and report as to either of the following:
    1. whether the applicant is a fit and proper person to be granted the licence;
    2. whether it would be contrary to the public interest for the licence to be granted.[1]
  3. [3]
    A negative determination by the Commissioner on either of these matters is referred to in the TPA as ‘an adverse security determination’.[2]
  4. [4]
    In making the adverse security determination the Commissioner under s 20(3) of the TPA
  1. (1)
    … may have regard to a criminal intelligence report or other criminal information held in relation to the applicant or licensee, or a close associate of the applicant or licensee, that
  1. (a)
    is relevant to the business or 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.
  1. [5]
    Whilst the Chief Executive is statutorily obliged to refuse the application if an adverse security determination is made, if an applicant seeks to review the decision to refuse the licence, the Tribunal can conduct a merits review of the Commissioner’s decision to make the adverse security determination.[3]
  2. [6]
    The merits review of that decision is however subject to the modifying provisions of the TPA, being the relevant enabling act.
  3. [7]
    The usual procedure in a merits review is that all material before the decision-maker is before the Tribunal and the applicant. This procedure is modified by s 57 of the TPA. It provides for confidentiality of criminal intelligence reports or other criminal information that the Commissioner had had regard to.
  4. [8]
    QCAT may, as it considers appropriate to protect the confidentiality of that information relied on by the Commissioner, receive evidence and hear argument about the information in the absence of the parties and their representatives and to take evidence consisting of the information by way of affidavit of a police officer of at least the rank of Superintendent.[4]
  5. [9]
    QCAT must consider whether the criminal intelligence report and criminal information has been correctly categorised by the Commissioner in accordance with s 20(3), as it is only if it has been that any obligation to protect the confidentiality of that information arises.
  6. [10]
    The Commissioner has the option to withdraw the information from consideration in the review if the Tribunal decides it is not correctly categorised.[5]
  7. [11]
    The Commissioner has provided a copy of the adverse security determination to the Tribunal together with evidence and information relied on in making that determination in the form of an affidavit of Detective Superintendent Jon Wacker and annexures to that affidavit totalling 604 pages.
  8. [12]
    The Commissioner submits that the affidavit and annexures is correctly categorised as criminal intelligence. He accepts that a document entitled ‘Instrument of Delegation’ (page 1 of Exhibit A) together with documents 17 to 26 (pages 567-595 of Exhibit A being communication between Queensland Police Service and KLM’s lawyers) could be considered open documents and could be disclosed to the applicant.

Is Detective Superintendent Wacker’s affidavit and exhibits criminal intelligence reports or other criminal information mentioned in s 20(3)?

  1. [13]
    Criminal intelligence reports or other criminal information is not defined in the TPA. In other tribunal decisions[6] where the meaning of that phrase in the context of the TPA has been considered, it was decided that the categorisation is to be determined broadly.
  2. [14]
    In DT’s case Member Favell and I decided that the expression ‘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.[7]
  3. [15]
    The Tribunal in that case also commented that the effect of the separation between the concepts of ‘criminal intelligence report’ and ‘other criminal information’ is that one informs the other. The Tribunal accepted the reasoning of the New South Wales Tribunal in AVS Group Australian v Commissioner of Police[8] that:

… 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.[9]

  1. [16]
    To attract the protection of confidentiality the criminal intelligence must be relevant to the business carried on or cause the Commissioner to conclude improper conduct will occur or at least cause the Commissioner not to have confidence that improper conduct will not occur if the licence is granted.
  2. [17]
    The Commissioner submits the affidavit of Detective Superintendent Wacker and the exhibits thereto is correctly categorised as criminal intelligence. He says the information is about the person’s connection with or involvement in criminal activity.
  3. [18]
    The information about KLM in the material which the Commissioner submits is criminal intelligence is as follows:

[not for publication]

  1. [19]
    I am satisfied that the contents of the affidavit and the reports exhibited is a collation of criminal information. It is 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.
  2. [20]
    The information is:
    1. relevant to the business proposed to be carried on under the licence;
    2. could cause the Commissioner to conclude that improper conduct is likely to occur if KLM is granted the licence; and
    3. could cause the Commissioner not to have confidence improper conduct will not occur if KLM is granted the licence.
  3. [21]
    I am satisfied that the affidavit of Detective Superintendent John Harold Wacker and the reports and information annexed have been correctly categorised as criminal intelligence reports or other criminal information mentioned in s 20(3). Because the information has been correctly categorised it is not to be disclosed. The exceptions are the Instrument of Delegation (p 1 of Exhibit A) and p 567 to p 595 being copies of communication between QPS and KLM’s legal representatives, which the Commissioner concedes are not confidential and can be disclosed.

Non-Publication Orders

  1. [22]
    I have found that the confidential affidavit of Detective Superintendent John Harold Wacker including exhibits 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.
  2. [23]
    I consider these orders necessary to avoid the publication of confidential information which would be contrary to the public interest.
  3. [24]
    The Tribunal will deliver and publish two sets of reasons. One set to the second respondent and a redacted set to the other parties and for publication.

Footnotes

[1] TPA, s 15(b).

[2] Ibid, Schedule 1.

[3] Ibid, s 57(3).

[4] Ibid, s 57(3)(b).

[5] Ibid, s 57(3).

[6] DT & Anor v Department of Justice and Attorney General – Industry Licencing Unit & Anor [2015] QCAT 228; MKN v Chief Executive of the Queensland Department of Justice and Attorney General [2015] QCAT 358.

[7] DT, at [39].

[8] [2012] NSWADT 1.

[9] Ibid, at [43]; DT, at [36].

Close

Editorial Notes

  • Published Case Name:

    KLM v Chief Executive, Department of Justice and Attorney General – Industry Licencing Unit & Anor

  • Shortened Case Name:

    KLM v Chief Executive, Department of Justice and Attorney General – Industry Licencing Unit

  • MNC:

    [2016] QCAT 512

  • Court:

    QCAT

  • Judge(s):

    Senior Member O'Callaghan

  • Date:

    15 Aug 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
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

Cases Citing

Case NameFull CitationFrequency
KLM v Chief Executive, Department of Justice and Attorney General – Industry Licencing Unit (No 2) [2016] QCAT 5162 citations
1

Require Technical Assistance?

Message sent!

Thanks for reaching out! Someone from our team will get back to you soon.

Message not sent!

Something went wrong. Please try again.