ECX v Office of Fair Trading, Industry Licensing Unit & Anor [2016] QCAT 410

CITATION: ECX v Office of Fair Trading, Industry Licensing Unit & Anor [2016] QCAT 410 PARTIES: ECX (Applicant) v Chief Executive, Department of Justice and Attorney-General--Industry Licensing Unit (First Respondent) The Commissioner of Police (Second Respondent) APPLICATION NUMBER: OCR082-16 MATTER TYPE: Occupational regulation matters HEARING DATE: On the papers and oral hearing on 29 September 2016 HEARD AT: Brisbane DECISION OF: Member Howard DELIVERED ON: 31 October 2016 DELIVERED AT: Brisbane ORDERS MADE: 1. The information exhibited to the affidavit of Detective Superintendent Jon Harold Wacker sworn 25 July 2016, other than the Instrument of Delegation D134.1, is correctly categorised as criminal intelligence reports or other criminal information under the Tattoo Parlours Act 2013 (Qld); 2. (i) Publication is prohibited to any party other than the Commissioner of Police and his representatives of the contents of the affidavit of Detective Superintendent Wacker, except as specified in order (ii); (ii) The non-publication order does not apply to Instrument of Delegation No D134.1. CATCHWORDS: GENERAL ADMINISTRATIVE REVIEW- Tattoo Parlours Act 2013 (Qld) - where review of decision to refuse a licence- preliminary issue - -- 1 of 7 -- 2 whether information is correctly categorised as criminal intelligence reports or other criminal information Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 6, s 7, s 19, s 20, s 24 Tattoo Parlours Act 2013 (Qld), s 4, s 15, s 17(2), s 20(3), s 22(1), s 57, s 68, Schedule 1 AVS Group Australia v Commissioner of Police [2012] NSWADT 1 DT & Anor v Department of Justice & Attorney- General & Anor [2014] QCAT 694 DT & Anor v Department of Justice and Attorney- General – Industry Licensing Unit & Anor [2015] QCAT 228 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: Mr O’Brien, in-house lawyer appeared for the Commissioner of Police. The proceeding was conducted in the absence of ECX and the Chief Executive, Department of Justice & Attorney-General, Industry Licensing Unit. REASONS FOR DECISION [1] This proceeding is before me for determination of a preliminary issue, namely whether the Commissioner of Police has correctly categorised information as ‘a criminal intelligence report or other criminal information’. The Background [2] ECX applied to the Chief Executive, Department of Justice and Attorney- General--Industry Licensing Unit (the Chief Executive) for a tattoo operator’s licence under the Tattoo Parlours Act 2013 (Qld) (the TP Act). [3] The application was referred to the Commissioner of Police (the Commissioner) as required by s 15(b) of the TP Act for an investigation and determination as to whether ECX is, either or both, a fit and proper person to be granted the licence sought; and whether it is contrary to the public interest for the licence to be granted. The Commissioner made an adverse security determination about ECX. An adverse security determination, in relation to a person seeking a licence, is defined as a determination by the Commissioner that the person is, either or both, not a fit and proper person -- 2 of 7 -- 3 to be granted a licence; and/or that it would be contrary to the public interest for the applicant to be granted a licence.1 Under the TP Act, the Commissioner is not required to give reasons for a determination if it would disclose the existence or content of a criminal intelligence report or other criminal information mentioned in s 20(3). [4] The Chief Executive then refused the licence on the basis of the adverse security determination. ECX has applied to the Tribunal for review of the decision to refuse to grant the licence. Because the basis for the refusal of the licence is an adverse security determination, the Commissioner is a party to the proceeding.2 Legislative framework [5] Section 17(2) of the TP Act provides that the Chief Executive must decide to refuse to grant a licence if an adverse security determination has been made by the commissioner about the applicant. The Tribunal has previously determined that in a review which engages s 57 of the TP Act, it is entitled to review the adverse security determination as part of the review.3 [6] The general procedure for conducting review proceedings is set out in the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act).4 However, QCAT Act provisions may be modified by an enabling Act, 5 such as the TP Act. The TP Act contains provisions which vary or exclude provisions of the QCAT Act. In particular, as explained in the following paragraphs, by excluding the usual requirement for the Tribunal to accord procedural fairness to ECX in determining whether information is ‘a criminal intelligence report or other criminal information’. [7] Section 57 applies when review of a refusal to grant a licence is sought and the decision was made on the ground of the commissioner’s adverse security determination.6 The commissioner must give QCAT a copy of the report of the adverse security determination.7 [8] In the proceeding, QCAT may review the adverse security determination8 in such manner ‘as it considers appropriate to protect the confidentiality of a criminal intelligence report or other criminal information referred to in s 20(3)’ as prescribed.9 In particular, QCAT may receive evidence and hear argument about the information in the absence of the parties and their representatives, and take evidence consisting of the information by way of affidavit from a police officer who is at least the rank of superintendent.10 If 1 TP Act, Schedule 1, ‘adverse security determination.’ 2 TP Act s 57(2)(a). 3 DT & Anor v Department of Justice & Attorney-General & Anor [2014] QCAT 694, at [15]-[22]. 4 QCAT Act, see especially s 19, s 20, s 24. 5 QCAT Act, s 6, s 7. 6 TP Act s 57(1). 7 TP Act s 57(2)(b). 8 TP Act s 57(3)(a). 9 TP Act s 57(3)(a) and (b). 10 TP Act s 57(3)(b). -- 3 of 7 -- 4 the tribunal determines that information is incorrectly categorised by the commissioner as a criminal intelligence report or other criminal information, the commissioner may withdraw it from the tribunal’s consideration.11 Information withdrawn by the commissioner must not be disclosed to any person or considered by the tribunal.12 The preliminary issue [9] Before the proceeding can proceed to final determination of the review, the preliminary issue about whether the information is properly categorised as ‘a criminal intelligence report or other criminal information’ must be determined. Following that determination, the Commissioner may then elect to withdraw any information which the Tribunal determines is not properly categorised and then the final hearing may proceed. [10] ECX does not know the nature or content of the evidence that the Commissioner says is a criminal intelligence report or other criminal information because of the confidentiality which the TP Act affords it. It must not be disclosed to him. Accordingly, the Tribunal directed that this preliminary determination be conducted as a closed hearing and that unless otherwise ordered, publication of the Commissioner’s submissions concerning the preliminary hearing is prohibited.13 [11] The Commissioner relies upon an affidavit of Detective Superintendent Jon Harold Wacker, which has a number of attachments. The attachments include: [Redacted]. [12] The Commissioner submits, in essence, that all of the documents are criminal intelligence reports or criminal information, while acknowledging that the delegation instrument could be considered an open document. He submits that any information held by Queensland Police Service relating to criminal activity, the circumstances in which it occurred or is likely to occur, the identity of the participants and others with whom an individual associates, should properly be categorised as criminal intelligence or other criminal information. What is a criminal intelligence report or other criminal information? [13] The terms, ‘a criminal intelligence report’ and ‘other criminal information’ are not defined, either separately or together in the TP Act. [14] Under s 20(3), in making a security determination, the commissioner may have regard to a criminal intelligence report or other criminal information held in relation to the applicant (or a close associate14 of the applicant), that: 11 TP Act s 57(4). 12 TP Act, s 57(5). 13 Directions 1 July 2016 and 16 September 2016. 14 TP Act s 4 defines the meaning of close associate. -- 4 of 7 -- 5 (a) is relevant to the business or procedures carried on or performed, or proposed to be carried on or performed, under the licence; or (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 (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. [15] The commissioner is not required to give reasons for making a determination under s 20, under either the TP Act or another law, ‘if the giving of reasons would disclose the existence or content of a criminal intelligence report or other criminal information.’15 [16] The Tribunal determined in DT & Anor v Department of Justice and Attorney-General – Industry Licensing Unit & Anor16 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’.17 [17] In DT’s case, the Tribunal referred to the decision in AVS Group Australia v Commissioner of Police18 in which it was held that the separation between the concepts of ‘criminal intelligence report’ and ‘other information’ is that one informs the other. A passage from the AV’s case also cited in DT’s case is as follows: 19 …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. [18] In DT,20 the Tribunal further said that if there is a correctly categorised criminal intelligence report or other criminal information, confidentiality is assumed under s 57(3)(b).21 If it is not correctly categorised, the Commissioner may withdraw it. 15 TP Act s 22(1). 16 [2015] QCAT 228, applied by the Tribunal 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. 17 DT & Anor v Department of Justice and Attorney-General – Industry Licensing Unit & Anor [2015] QCAT 228, [39]. 18 [2012] NSWADT 1. 19 AVS Group Australia v Commissioner of Police [2012] NSWADT 1 at [43], see DT’s case at [36]. 20 [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. 21 [2015] QCAT 228, at [22]-[23]. -- 5 of 7 -- 6 [19] It later noted that the Commissioner accepted that: 22 the criminal record of DT, although correctly categorised as criminal intelligence, is on the public record and as such will be disclosed in these proceedings. [20] In that case, orders were then made prohibiting publication of the contents of the confidential affidavit other than to the Commissioner or his representatives. [21] In the later decision of MKN v Chief Executive of the Queensland Department of Justice and Attorney-General,23 the Tribunal followed DT’s approach to determining whether the information was criminal intelligence reports or other criminal information. It found (and made orders declaring) that all of the reports and information annexed to the confidential affidavit were correctly categorised as criminal intelligence reports or other criminal information.24 [22] Nevertheless, it noted the Commissioner’s submission that it had disclosed certain pages of the attachments.25 It then said that the remainder of the pages should not be disclosed because it contains criminal intelligence reports or information and other criminal information,26 but went on to make non-publication orders prohibiting publication of all of the exhibits to the confidential affidavit, except to the Chief Executive.27 [23] I accept that a broad approach should be taken as the types of documents which may comprise a criminal intelligence report or other criminal information. [24] However, as the Commissioner conceded in DT, it seems to me that documents which are on the public record, such as an applicant’s criminal history, ought properly to be disclosed in the proceedings. Here, the Commissioner’s representative conceded at the oral hearing on 29 September 2016, documents on the public record are different in character, from other reports which will generally be considered to be properly categorised as a criminal intelligence report or other criminal information. Is the information about ECX correctly categorised? [25] As identified earlier, Detective Superintendent Wacker’s affidavit attaches a copy of the Instrument of Delegation and [redacted]. [26] The Commissioner concedes that the Instrument of Delegation is not criminal intelligence, but submits that all other information in and exhibited to Superintendent Wacker’s affidavit, viewed together, is correctly categorised as either a criminal intelligence report or other criminal 22 [2015] QCAT 228, at [58]. 23 [2015] QCAT 358. 24 Ibid, at [16]. 25 Ibid, at [17]. 26 Ibid, at [17]. 27 Ibid, at [19]. -- 6 of 7 -- 7 information. He argues that it does not matter whether information is on the public record, in determining whether it is correctly categorised as a criminal intelligence report or other criminal information. Further, he submits that the information here is relevant to the business proposed to be carried out; caused the Commissioner to conclude improper conduct was likely to occur if ECX is granted a licence; and caused the Commissioner not to have confidence that improper conduct will not occur if it is granted. [27] Taking the broad approach enunciated in DT, I declare that the attachments exhibited to Detective Superintendent Wacker’s affidavit, except the Instrument of Delegation, are correctly categorised as criminal intelligence reports or other criminal information. [Redacted]. Non-publication order [28] The criminal intelligence reports and other criminal information are confidential. They must not be disclosed to any party other than the Commissioner or his representatives. Accordingly, I make non-publication orders concerning non-publication of the affidavit and exhibits except the Instrument of Delegation. -- 7 of 7 --