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

CITATION: DT & Anor v Department of Justice and Attorney-General – Industry Licensing Unit & Anor [2015] QCAT 228 PARTIES: DT (Applicant) v Department of Justice and Attorney-General – Industry Licensing Unit (First Respondent) The Commissioner, Ian Stewart (Second Respondent) APPLICATION NUMBER: OCR158-14 PARTIES: ET (Applicant) v Department of Justice and Attorney-General – Industry Licensing Unit (First Respondent) The Commissioner of Police, Ian Stewart (Second Respondent) APPLICATION NUMBER: OCR159-14 MATTER TYPE: Occupational regulation matters HEARING DATE: 13 April 2015 HEARD AT: Brisbane DECISION OF: Senior Member O’Callaghan Member Favell DELIVERED ON: 12 June 2015 DELIVERED AT: Brisbane ORDERS MADE: 1. The information exhibited to the affidavit of Superintendent Waker dated 29 September 2014 is correctly categorised as criminal intelligence reports, or other criminal information mentioned in s 20(3) of the Tattoo Parlours Act 2013 (s 20(3) material). 2. The parties file in the Tribunal two (2) copies and give to each other one (1) copy -- 1 of 11 -- 2 all of the material (apart from s 20(3) material) they intend to rely on at the hearing of the review of the making of the adverse security determination by 4:00pm on 17 July 2015. 3. The Hearing of the review of the adverse security determination will be set down on a date to be advised. 4. The publication of the contents of the affidavit of Superintendent Waker to any party other than the Second Respondent and his representatives is prohibited. 5. The publication of any information that may enable the applicants to be identified is prohibited. 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 Police Commissioner in making an adverse security determination correctly categorised as a 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 criminal information’ considered Tattoo Parlours Act 2013 (Qld), s 15, s 17, s 20, s 22, s 54, s 56, s 57, Schedule 1 Queensland Civil and Administrative Tribunal Act 2009 (Qld) Security Industry Act 1997 (NSW), s 15(6) DT and Another v Department of Justice and Attorney General, Industry Licensing and Another [2014] QCAT 694 AVS Group of Companies Pty Ltd v Commissioner of Police [2010] NSWCA 81 AVS Group Australia Pty Ltd v Commissioner of Police (No. 2) [2014] NSWCATAP 53 Kioa v West (1985) 159 CLR 550 Warren Wurridgal v The Commonwealth (2009) 237 CLR 309 APPEARANCES: The hearing was conducted in the absence of the applicants and the first respondent -- 2 of 11 -- 3 SECOND RESPONDENT: The Commissioner of Police, Ian Stewart REPRESENTATIVES: SECOND RESPONDENT: The Commissioner of Police, Ian Stewart represented by Mr M Nicholson of Counsel instructed by Legal Services, Public Safety Business Agency REASONS FOR DECISION [1] DT and ET wish to conduct a tattoo parlour. They made application for the relevant licences under the Tattoo Parlours Act 2013 (Qld) (‘TP Act’). Their applications were refused after an adverse security determination was made about them. [2] The TP Act requires body art tattooing businesses to be licenced, body art tattooists to be licenced and employed body art tattooists to be licenced. The TP Act allows for two types of licences to be granted and held namely an operator licence or a tattooist licence. It allows for licence conditions to be imposed on the licence. [3] Any application for a licence must be made to the chief executive. The chief executive must refer the application along with any supporting information to the commissioner of police for an investigation and determination and a report to the chief executive as to either or both of the following: a) whether the applicant is a fit and proper person to be granted the licence; b) whether it would be contrary to the public interest for the licence to be granted.1 [4] A negative determination by the commissioner on either of these matters is referred to in the TP Act as ‘an adverse security determination’.2 [5] Under s 20(3) of the TP Act3 the commissioner in making the determination as to whether the applicant is fit and proper and whether granting of the licence is contrary to the public interest, may have regard to a criminal intelligence report or other criminal information held in relation to the applicant or a close associate to the applicant that:  is relevant to the business or procedures carried on or performed or proposed to be carried on or performed under the licence; or 1 TP Act s 20(1). 2 Ibid, Schedule 1. 3 Ibid, s 20(3)(a)-(c). -- 3 of 11 -- 4  causes the commissioner to conclude improper conduct is likely to occur if the applicant is granted a licence or the licensee continues to hold a licence; or  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. [6] The chief executive may after considering an application for a licence and the determination of the commissioner, decide to grant the licence or refuse to grant the licence. The chief executive however must decide to refuse to grant the licence if an adverse security determination has been made by the commissioner about the applicant.4 [7] The commissioner is not under the TP Act or another law required to give reasons for determining a matter under s 20 if the giving of the reasons would disclose the existence or content of a criminal intelligence report or other criminal information mentioned in s 20(3). [8] Similarly the chief executive is not required to give reasons for not granting a licence on the basis of an adverse security determination made by the commissioner about the person if the giving of the reasons would disclose a criminal intelligence report or other criminal information mentioned in s 20(3).5 [9] Section 56 of the TP Act allows a person to apply to QCAT for a review of a decision of the chief executive to refuse to grant a licence to the person. That application must be made as provided under the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’). [10] DT and ET have applied to review the chief executive’s decision. [11] The decision of the chief executive is directed by s 17 of TP Act to be a refusal in circumstances where an adverse security determination has been made by the commissioner. Accordingly in exercising its review jurisdiction and having all of the functions of the decision maker the Tribunal is constrained to affirm the decision when an adverse security determination has been made by the commissioner. [12] Section 57 of the TP Act however makes provision for a review by the Tribunal of the adverse security determination.6 It is noted that s 57 does not actually require QCAT (as part of the review of the chief executive decision) to review the making of the adverse security determination. [13] In an earlier preliminary determination in this matter7 the Tribunal accepted the submission by both parties that a Tribunal review of the adverse security 4 Ibid, s 17(2). 5 Ibid, s 22. 6 Ibid, s 57(3)(a). 7 DT and Another v Department of Justice and Attorney General, Industry Licensing and Another [2014] QCAT 694. -- 4 of 11 -- 5 determination undertaken pursuant to s 57(3)(a) is a merits review conducted in accordance with the provisions of the QCAT Act. Accordingly in that review the Tribunal stands in the shoes of the commissioner and makes the decision afresh. [14] The Tribunal accepted that: It is appropriate and contemplated by the legislature that in circumstances where the Chief Executive must refuse the application if an adverse security determination is made that the making of that adverse security determination is part of the “reviewable decision”.8 [15] The Tribunal agreed with the respondents submission that: [t]he Commissioner in these circumstances becomes “the decision maker for the reviewable decision” as provided for in s 19 of the QCAT Act. The Tribunal, in accordance with s 19 of the QCAT Act has the functions of the decision maker and must hear and determine the review of the making of the adverse security determination by way of a fresh hearing on the merits.9 [16] Section 57 of the TP Act provides for confidentiality of criminal intelligence in proceedings if a person is seeking to review a refusal to grant a licence made on the grounds of an adverse security determination by the commissioner. [17] In such a proceeding the commissioner is a party to the proceeding and must give QCAT a copy of the report of the adverse security determination.10 If QCAT reviews the making of the adverse security determination it may, as it considers appropriate to protect the confidentiality of a criminal intelligence report or other criminal information relied on by the commissioner, receive evidence and hear argument about the information in the absence of parties to the proceedings and their representatives and take evidence consisting of the information by way of affidavit of a police officer of at least the rank of superintendent.11 [18] If QCAT considers information has been incorrectly categorised by the commissioner as a criminal intelligence report or other criminal information mentioned in s 20(3), the commissioner may withdraw the information from consideration by QCAT and information that is withdrawn by the commissioner must not be disclosed to any person or taken into consideration by QCAT. [19] The Tribunal in this case has proceeded on the basis that DT and ET want the Tribunal to conduct a review of the adverse security determination as part of the review of the chief executive’s decision. The commissioner submits that the information put before the commissioners’ delegate in making the adverse security determination about DT and ET is material that is correctly categorised as criminal intelligence. The Tribunal elected to 8 Ibid, at [20]. 9 Ibid, at [22]. 10 Ibid, s 57(2). 11 Ibid, s 57(3). -- 5 of 11 -- 6 receive evidence and hear argument about the information in the absence of DT and ET and their representatives and to take evidence consisting of the information by way of affidavit of Superintendent Waker. [20] During the course of the hearing of this evidence and argument the Tribunal requested the commissioner to file further submissions dealing with a number of issues namely:  the ownership and confidentiality of the various computer databases referred to in the documents forming the adverse security determination;  what consequences, if any, arise should the tribunal determine the material was correctly categorised as a criminal intelligence report or other criminal information, however was not satisfied the confidentiality applied to the document; and  what does the term “incorrectly categorised” mean for the purpose of s 57(4) of the TP Act. [21] Those submissions have been filed. [22] Upon further consideration, in our view, 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. [23] If there is a correctly categorised criminal intelligence report or other criminal information, confidentiality is assumed.12 If QCAT decides that information has been incorrectly categorised as a criminal intelligence report or other criminal information the consequence is the commissioner may withdraw the information from consideration by QCAT and if that occurs that information must not be disclosed to any person or taken into consideration by QCAT. [24] The commissioner submits that the intention of s 57(4) is to ensure the confidentiality of records and that the departure from the ordinary conventions of procedural fairness and natural justice only applies to documents which have been properly categorised as criminal intelligence reports or other criminal information. That submission is persuasive. [25] The Tribunal is given the power to review the materials and make an objective assessment of the information to ensure that only documents that fall within “criminal intelligence reports or other criminal information” are protected from disclosure to the other parties. If the records, information or documents are not properly categorised as such they would not be afforded 12 See TP Act, s 57(3)(b). -- 6 of 11 -- 7 the protection of confidentiality in the proceedings and would be returned to the commissioner at his discretion. [26] In an affidavit sworn 29 September 2014 Superintendent Waker says:  pursuant to Instrument of Delegation D134.1 he was delegated to make security determinations under s 20(1) of the TP Act 2013.  he made adverse security determinations in respect to the applications of ET and DT.  the determinations were made after due consideration of the intelligence reports submitted to him by a Detective Senior Sergeant and a Detective Senior Constable.  he discussed the intelligence and its application to the TP Act with the Detective Senior Sergeant who subsequently provided a report on that discussion. [27] Superintendent Waker exhibited these reports to his affidavit. [28] The commissioner says all of the reports exhibited are criminal intelligence reports or other criminal information. [29] As any obligation to protect the confidentiality of information only arises when the information is a criminal intelligence report or other criminal information referred to in s 20(3), it is necessary to determine whether or not the reports have been correctly categorised by the commissioner. Is the information exhibited to Superintendent Wakers affidavit – “criminal intelligence reports” or “other criminal information” mentioned in s 20(3) [30] Neither of those phrases have been defined in the TP Act. Those phrases or similar have found their way into other legislation.13 [31] The Australian edition of the Oxford dictionary relevantly includes in the definition of “intelligence” the following “the collection of information especially of military or political value and information.” It defines “criminal” as “of involving or concerning crime.” [32] It defines “report” as “an account given or an opinion formally expressed after an investigation or consideration or the giving of an account i.e. review of information and collation.” 13 Weapons Act 1990 (Qld); Criminal Organisation Act 2009 (Qld); Tow Truck Act 1973 (Qld); Securities Provider Act 1993 (Qld); Second Hand Dealers and Pawn Brokers Act 2003 (Qld); Motor Deal and Auctioneers Act 2014 (Qld); Corrective Services Act 2006 (Qld); and Racing Act 2002 (Qld). -- 7 of 11 -- 8 [33] The commissioner submits that the term “criminal intelligence” should be given a broad interpretation which meets the objectives of “eliminating and preventing criminal infiltration of the Queensland tattoo industry.”14 [34] The Tribunal has been referred to NSW authorities namely the decision of the Supreme Court of NSW Court of Appeal in AVS Group of Companies Pty Ltd v Commissioner of Police15 and the decision of the NSW Civil and Administrative Tribunal Appeal Panel in AVS Group Australia Pty Ltd v Commissioner of Police (No. 2),16 to provide assistance on the question of categorisation of criminal intelligence and other criminal information. [35] The legislation being considered in the NSW cases is the Security Industry Act 1997 (NSW). That Act has similar provisions to the TP Act in that it authorises the police commissioner when determining whether an appellant is a fit and proper person and whether it is in the interests of the public for the applicant to hold a licence, to have regard to any criminal intelligence report or other criminal information that is ‘held in relation to the applicant’ who is applying for a security licence.17 [36] It is correct to say (as was said by the NSW Tribunal at first instance in AVS Group Australian v Commissioner of Police)18 that a broad approach to the construction of the expression “criminal intelligence report and other criminal information” is necessary to promote the objects of the Act. Further, we accept the Tribunal’s proposition that the separation between the concepts of “criminal intelligence report” and “other criminal information” is that one informs the other. They explained: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. [37] The NSW Appeal Tribunal Panel20 referred to the findings of the Tribunal at first instance that the expression “criminal information” included information about: (1) criminal activity, (2) the circumstances in which criminal activity may occur or has occurred, (3) the identity of those involved in criminal activity, (4) the identity of those with whom the individuals involved in criminal activity associate. [38] The Appeal Panel accepted the submission from the applicant in relation to (2) that if “‘the circumstances in which criminal activity ... may occur’, meant the circumstances in which such activity might possibly occur, this would 14 Explanatory notes of the bill – page 1 – first paragraph below “achievement of policy objectives.” 15 [2010] NSWCA 81. 16 [2014] NSWCATAP 53. 17 Security Industry Act 1997 (NSW) s 15(6). 18 AVS Group Australian v Commissioner of Police [2012] NSWADT 1 at [43]. 19 Ibid, at [43]. 20 AVS Group Australian v Commissioner of Police (No2) [2014] NSWCATAP 53 at [59]. -- 8 of 11 -- 9 extend unduly the concept of Criminal Information”. The Appeal Panel instead stated they “would regard information about the circumstances in which criminal activity is highly likely to occur as falling at least potentially within the range of Criminal Information”.21 [39] We agree with this approach. We find 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. [40] Under s 20(3) in order for the criminal information to attract the protection of confidentiality it must in addition be information held in relation to the applicant or a “close associate” of the applicant that is relevant to the business or procedures carried on or performed or proposed to be carried on or performed; or causes the commissioner to conclude improper conduct is likely to occur if the applicant is granted the licence; or causes the commissioner to not have confidence improper conduct will not occur if the applicant is granted the licence. [41] The information about DT set out in the reports exhibited to Superintendent Waker’s affidavit22 is as follows: [not for publication] [42] We are satisfied this information is criminal information. [43] [not for publication]. [44] The reports containing this information is as defined in the Oxford dictionary (see [32]) a collation of the criminal information. The reports are criminal intelligence reports which relate to DT. [45] We are satisfied that the information is:  Relevant to the business proposed to be carried on or performed under the licence;  Could cause the commissioner to conclude improper conduct is likely to occur if DT is granted the licence; and  Could cause the commissioner not to have confidence improper conduct will not occur if DT is granted the licence. [46] Accordingly we are satisfied that the reports annexed to Superintendent Waker’s affidavit referring to DT have been correctly categorised as criminal intelligence reports mentioned in s 20(3). 21 Ibid, at [62]. 22 Submissions of Second Respondent dated 13 April 2015 at [11]. -- 9 of 11 -- 10 [47] ET does not have a criminal record. [not for publication]. [48] A person is a ‘close associate’ of an applicant for a licence if the person holds or will hold a relevant financial interest … in the business of the applicant that is to be carried on under the licence.23 [49] The relevant financial interest is defined to include: An entitlement to receive any income derived from the business, or to receive another financial benefit or financial advantage from carrying on of the business whether the entitlement arises at law or in equity or otherwise.24 [50] [not for publication]. [51] [not for publication]. [52] [not for publication]. [53] We accept that in itself this information is not criminal information however read together with the criminal information about DT it is information about the circumstances in which criminal activity is highly likely to occur. It is collated into reports and we are satisfied the reports are criminal intelligence reports. [54] We are also satisfied that at the very least the information could cause the commissioner not to have confidence that improper conduct will not occur if ET is granted the licence. [55] Therefore we find that the information has been correctly categorised as a criminal intelligence report mentioned in s 20(3). What next in these proceedings? [56] We have found that the information exhibited to Superintendent Waker’s report is correctly categorised as criminal intelligence reports. As such, notwithstanding that such information founded the decision that is adverse to the applicants, the applicants are not to know of the existence or content of the information. It need not be disclosed in these review proceedings. [57] Accordingly, to that extent, the obligation of the Tribunal to apply the principles of natural justice25 is overtaken by the TP Act. [58] We note that the commissioner has accepted that 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. 23 TP Act s 4(1). 24 Ibid, s 4(4)(b). 25 QCAT Act s 28(3)(a). -- 10 of 11 -- 11 [59] The next step is for the Tribunal to conduct the review of the adverse security determination. This assumes that DT and ET wish to continue with the review of the adverse security determination. [60] We direct that both parties file submissions and other material upon which they intend to rely at the hearing of the adverse security determination within 21 days of this order. The hearing of that review will be set down on a date to be advised to the parties. Non-Publication Orders [61] Having found that the exhibits to Superintendent Waker’s affidavit are criminal intelligence reports or other criminal information it is appropriate that orders be made pursuant to s 66 of the QCAT Act prohibiting the publication of: a) the contents of those documents to any person other than the second respondent and his representatives; and b) any information that may enable the applicant to be identified. [62] We consider these orders necessary to avoid the publication of confidential information and which would be contrary to the public interest. [63] It is for this reason that two sets of reasons will be delivered in this matter. One set to the second respondent and a redacted set to the other parties and for publication. -- 11 of 11 --