DT v Department of Justice & Attorney-General, Industry Licensing Unit & Anor; ET v Department of Justice & Attorney-General, Industry Licensing Unit & Anor [2014] QCAT 694

CITATION: DT & Anor v Department of Justice & Attorney- General, Industry Licensing Unit & Anor [2014] QCAT 694 PARTIES: DT (Applicant/Appellant) v Department of Justice & Attorney-General, Industry Licensing Unit The Commissioner of Police, Ian Stewart (Respondent) APPLICATION NUMBER: OCR158-14 PARTIES: ET (Applicant/Appellant) v Department of Justice & Attorney-General, Industry Licensing Unit The Commissioner of Police, Ian Stewart (Respondent) APPLICATION NUMBER: OCR159-14 MATTER TYPE: Occupational regulation matters HEARING DATE: 29 September 2014 HEARD AT: Brisbane DECISION OF: Senior Member O’Callaghan DELIVERED ON: 24 December 2014 DELIVERED AT: Brisbane ORDERS MADE: 1. The review of the adverse security determination pursuant to s 57(3)(a) of the TPA is a merits review conducted pursuant to the provisions in the QCAT Act subject to the modified procedure prescribed in s 57(3)(b) of the TPA. 2. The applicants will file in the Tribunal and give to the respondents submissions on:  The appropriate source/professional -- 1 of 12 -- 2 body from which any independent person should be appointed  The precise role and function of that person  Who should bear the costs of the person if the person were appointed by: 4:00pm on 9 January 2015. 3. The respondents will file in the Tribunal and give to the applicants any submissions in response by: 4:00pm on 30 January 2015. 4. The application to appoint an independent person will be determined by the Tribunal on the papers. CATCHWORDS: GENERAL ADMINISTRATIVE REVIEW – Tattoo Parlours Act 2013 (Qld) – where review of decision to refuse a license – preliminary issues – where scope and nature of review and adverse security determination considered – where consideration of whether independent monitor should be appointed to assist Tribunal in consideration of criminal intelligence Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 4, 6, 7, 19, 20, 28 Tattoo Parlours Act 2013 (Qld) ss 15, 17, 20, 22, 54, 56, 57 Kioa v West (1985) 159 CLR 550 Commissioner of Police V Sleiman and AVS Group of Companies Pty Ltd & Ors (2011) NSW CA 21 Warren Wurridgal v the Commonwealth (2009) 237 CLR 309 APPEARANCES and REPRESENTATION (if any): APPLICANT RW Summers, Solicitor of Irish Bentley Lawyers RESPONDENT M Nicolson of counsel instructed by Public Safety Business Agency -- 2 of 12 -- 3 REASONS FOR DECISION [1] ET and DT (the applicants) owned and operated a tattoo parlour in Queensland. In 2013 the Tattoo Parlours Act 2013 (Qld) was introduced (“TPA”). The TPA establishes a licensing and regulatory scheme which requires operators of tattoo parlours and tattoo artists to be licensed as from 1 July 2014. [2] The applicants applied for the appropriate licenses. [3] Upon receipt of the application the Chief Executive, as he was required to do under the TPA,1 referred the application to the Commissioner of Police to be investigated and for the Commissioner to determine whether the applicants were “fit and proper people” to be granted a license and/or “whether it would be contrary to the public interest for the licenses to be granted”.2 [4] The Police Commissioner determined and reported to the Chief Executive that it would not be in the public interest to grant the applicants a license and further that DT was not a fit and proper person to be granted a license. [5] These determinations by the Police Commissioner are referred to in the TPA as an “adverse security determination”.3 [6] Upon receipt of an adverse security determination s 17(2) of the TPA required the Chief Executive to make the decision to refuse the applicants application. [7] The applicants have applied to QCAT to review that decision. [8] The review provisions in the TPA make provision for QCAT as part of the review application to “review the making of the adverse security determination by the Commissioner”4 and in doing so to hear evidence and receive argument “in the absence of parties” about any criminal intelligence reports or other criminal information that the Commissioner had regard to.5 [9] The applicants applications are the first applications of this kind to be considered by the Tribunal. [10] When the matter came on for a hearing two preliminary issues were identified which required determination by the Tribunal prior to the review hearing proceeding namely: 1 Section 15(b). 2 TPA s 15(b)(i) and (ii). 3 See definition of adverse security determination – Schedule 1, TPA. 4 Section 57(3)(a) TPA. 5 Section 57(3)(b)(i) and (ii). -- 3 of 12 -- 4 a) What is the scope and nature of the review of the making of the adverse security determination as part of the review of the decision to refuse the application for licenses? b) Should the Tribunal, on the application of the applicants, appoint “an independent monitor” to be present at the hearing of the review of the making of the adverse security determination? [11] All parties have provided written submissions in relation to these questions. The legislative scheme [12] It is useful to set out the licensing process to appreciate the provision in the Act for the review of the adverse security determination.  Section 15 provides for the procedure upon receiving an application by the Chief Executive. It requires the Chief Executive to refer every application to the Police Commissioner to consider whether the applicant is a fit and proper person to be granted a license and/ or whether it would be contrary to the public interest for the license to be granted.  Section 20 provides for the Commissioner’s role upon the referral. He must inquire into and determine (a) whether the applicant is a fit and proper person to be granted the licence; and (b) whether it would be contrary to the public interest for the licence to be granted.  Section 20(3) provides that in making this determination the Commissioner 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: (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.  Section 22 provides for the confidentiality of the criminal intelligence report or information. It says that the Police Commissioner is not required to give reasons for the making of an adverse security determination nor the Chief Executive required to give reasons in refusing an application for a license on the basis of an adverse security determination, if the giving of reasons would disclose the -- 4 of 12 -- 5 existence or content of a criminal intelligence report or other criminal information. [13] The review provisions are contained in section 56 and 57 of the TPA.  Section 56 lists the decisions of the Chief Executive that are reviewable by QCAT. Relevantly, they include a decision to refuse to grant a license.  Section 56(2) says the application must be made as provided under the QCAT Act. [14] Section 57 is headed “confidentiality of criminal intelligence in proceedings” and is the section which provides for the review by the Tribunal of the adverse security determination. It says – (1) This section applies if— (a) a person seeks a review of any of the following decisions made by the chief executive— (i) a refusal to grant a licence; … (b) the decision is made on the ground of an adverse security determination made by the commissioner. (2) For a proceeding relating to an application for review of the decision by QCAT or a proceeding about the decision in the Supreme Court— (a) the commissioner is a party to the proceeding; and (b) the commissioner must give QCAT or the Supreme Court a copy of the report of the adverse security determination. (3) For a proceeding mentioned in subsection (2), QCAT or the Supreme Court may— (a) review the making of the adverse security determination by the commissioner; and (b) as it considers appropriate to protect the confidentiality of a criminal intelligence report or other criminal information mentioned in section 20(3)— (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. (4) If QCAT … considers information has been incorrectly categorised by the commissioner as a criminal intelligence report or other criminal information mentioned in section 20(3), the commissioner may withdraw the information from consideration by QCAT. (5) Information that is withdrawn by the commissioner under subsection (4) must not be— (a) disclosed to any person; or (b) taken into consideration by QCAT -- 5 of 12 -- 6 1. The nature of the review of the making of the adverse security determination [15] The TPA does not specify the nature of the review of the making of the adverse security determination. The adverse security determination is not listed as a “reviewable decision” and as such the question arises as to whether the Tribunal’s review of the making of the adverse security determination should be conducted as a merits review in accordance with the provisions in the QCAT Act. [16] Section 19 of the QCAT Act provides that: In exercising its review jurisdiction, the tribunal— (a) must decide the review in accordance with this Act and the enabling Act under which the reviewable decision being reviewed was made; and (b) may perform the functions conferred on the tribunal by this Act or the enabling Act under which the reviewable decision being reviewed was made; and (c) has all the functions of the decision-maker for the reviewable decision being reviewed. [17] Section 20 sets out the nature of the review (1) The purpose of the review of a reviewable decision is to produce the correct and preferable decision. (2) The tribunal must hear and decide a review of a reviewable decision by way of a fresh hearing on the merits. [18] The parties are in agreement on this issue. They submit that the Tribunal’s review of the adverse security determination undertaken pursuant to s 57(3)(a) is a merits review conducted in accordance with the provisions of the QCAT Act. [19] I agree with that submission. [20] 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”. [21] This view is supported by provisions in the TPA which require the Commissioner to be a party to the proceeding if a review is made of a decision based on an adverse security determination and for the Commissioner to give the Tribunal a copy of the report.6 [22] I agree with the respondents submission that the 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 6 Section 57(2)(a) and (b). -- 6 of 12 -- 7 hear and determine the review of the making of the adverse security determination by way of a fresh hearing on the merits. 2. The proceeding to review the making of the adverse security determination – how is it conducted – should an independent monitor be appointed? [23] Whilst it is accepted that the review of the adverse security determination is a full merits review under the QCAT Act it is clear that the legislature has modified the conduct of the proceedings in order to protect the confidentiality of any criminal intelligence that may have formed the basis of the Commissioner’s determination. [24] The QCAT Act makes provision for modification by an enabling Act. [25] Section 6(4) of the QCAT Act provides that an enabling Act which confers review jurisdiction on the tribunal may “state the tribunal’s functions in the jurisdiction, which may add to, otherwise vary, or exclude functions stated in this Act.” This is called a modifying provision. [26] Section 7 provides that the modifying provision prevails over the provisions of the QCAT Act to the extent that there are any inconsistencies between them. [27] The respondents submit that s 57 of the TPA has modified the Tribunal’s procedures applying to review proceedings where the decision under the review is the refusal of a license on the grounds of an adverse security determination. I agree with that submission. [28] The modifying provision is s 57(3)(b) and (4) and (5). [29] Section 57(3) provides that: (b) as it considers appropriate to protect the confidentiality of a criminal intelligence report or other criminal information mentioned in section 20(3)— (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. [30] Subsections 4 and 5 have been accurately paraphrased by the second respondent as follows:7  In the event that the Tribunal, after receiving the adverse security determination of the second respondent and receiving the evidence and arguments identified in s 57(3)(b), determines that the information considered as part of the adverse security determination has been incorrectly categorised by the Commissioner as a criminal intelligence report or other criminal information, the Police 7 Second Respondents submissions dated 24 October 2013. -- 7 of 12 -- 8 Commissioner may withdraw the information from consideration by the Tribunal. [31] I accept that the usual review procedure has been modified in that certain information on which the original decision maker (the Commissioner) relied on in making the determination is to remain confidential and not to be disclosed to the applicant unless the Tribunal considers that such information has not been correctly classified as criminal intelligence and the Commissioner does not elect to withdraw it under s 57(4). [32] The second respondent has referred the Tribunal to the explanatory notes to the TPA in support of the position that the need to maintain confidentiality of the criminal intelligence has meant that the usual procedure of making all information available to the applicant has been modified. [33] The notes state: “In addition, the provisions of 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.”8 [34] The respondents submit that the provisions of s 57 set up a 2 stage process in the review of the adverse security determination. [35] The first stage is the review of the criminal intelligence report or other criminal information. [36] They say this requires the Tribunal to consider the information that is the basis of the Commissioner’s determination and decide whether in the Tribunal’s view that information is correctly classified as criminal intelligence or other criminal information. [37] They say it is clearly intended this is to be done in the absence of the applicant or their legal representatives. It is submitted that if any party other than that Police Commissioner had access to the information it would make it unnecessary for the Tribunal to make a determination about whether the material was properly classified or for the Commissioner to decide to withdraw it if the Tribunal decides it was not properly classified.9 [38] I agree that the review of the adverse security determination involves this initial consideration of the criminal intelligence and decision as to whether it is correctly classified. [39] The applicants submit that the use of the word “may” in s 54(3)(b) makes the exclusion of the parties in this part of the proceeding discretionary. 8 Second Respondents submissions para 25. 9 Section 57(3)(iv) and (v). -- 8 of 12 -- 9 [40] They submit that QCAT could be satisfied that the disclosure of information to their legal representatives would be sufficient protection of the information given the lawyers obligations to the Tribunal. They say adopting this course would ensure they are afforded procedural fairness.10 [41] I do not accept that submission. In my view the discretion is around whether the Tribunal considers it needs to take any evidence at all about the criminal information if it decides to review the adverse security determination as part of the review of the decision to refuse the license. [42] I agree with the Commissioner’s submission that the express provision in s 57(3)(b)(i) which permits the Tribunal to “receive evidence and hear arguments in the absence of parties for the legal proceedings and their representatives (my emphasis), shows a clear intention on the part of the legislature to exclude legal representatives from any hearing considering the criminal information. [43] The applicants say that if they or their legal representatives are denied access to any consideration of the criminal information forming the basis of the adverse security determination then the Tribunal should appoint “an independent monitor” to ensure procedural fairness. [44] They submit:11  The Tribunal has an obligation to observe the rules of natural justice (s 28(3)(a) of the QCAT Act).  Natural justice requires that a person whose interests are likely to be affected by an exercise of power must be given an opportunity to deal with relevant matters adverse to their interests which is in possession of the decision maker.12  It is accepted that the duty to disclose can be limited for example if the information is confidential but they should still be afforded procedural fairness.  If they are unable to respond to and test the reliability of the criminal intelligence then the appointment of an independent monitor would go some way to ensuring their procedural fairness.  The independent monitor would effectively appear as an amicus curiae to assist the Tribunal in its consideration of the criminal intelligence. [45] The respondents say that the appointment of an independent monitor or amicus curiae to review the criminal intelligence report or other criminal information is unnecessary. 10 Applicants submissions 13 October 2014 para 38. 11 Applicants submissions 13 October 2014 paras 48 – 68. 12 They refer to Kioa v West (1985) 159 CLR 550 at 615. -- 9 of 12 -- 10 [46] They say the Tribunal itself is the independent body able to independently review the criminal information to determine whether the information has been properly classified. [47] They also submit that sections 4(f) and (g) of the QCAT Act require the Tribunal to maintain specialist knowledge, expertise and experience of members and that the President in choosing the member or members to constitute the Tribunal to hear this matter must consider the nature of the matter and the need for the Tribunal hearing the matter to have appropriate special knowledge, expertise or experience. [48] The parties have referred the Tribunal to the decision of the Supreme Court in NSW Court of Appeal in Commissioner of Police V Sleiman and AVS Group of Companies Pty Ltd & Ors (2011) NSW CA 21. [49] In that case the NSW Court of Appeal considered the powers and duties of the Administrative Decisions Tribunal (ADT) in NSW to afford procedural fairness when criminal intelligence was being considered by the Tribunal and could not be disclosed to the applicant for the review. [50] The Court commented13 that where the original decision maker relied on criminal intelligence the existence or content of which had not been disclosed to the applicant, the Tribunal had power “to appoint a legal practitioner to perform functions analogous to those performed by an amicus curiae in Court proceedings.” [51] The Court said14 that “the role of a amicus curiae is to assist the Court in taking a “larger view of the matter before it than the parties are able or willing to offer”. They commented that the ADT in such a case as the one before it may need greater assistance than the parties are able or willing to provide. [52] In that case the power to appoint “counsel to assist” was found in the relevant Act which provided that the Tribunal was not bound by the rules of evidence and may inquire into and inform itself on any matter and in such a manner as it thinks fit subject to the rules of natural justice.15 [53] QCAT has a similar power in s 28(3)(b) and (c) of the QCAT Act in that QCAT “may inform itself in any way it considers appropriate”. [54] This provision would in my view empower the Tribunal to appoint an independent person to assist the Tribunal if it was appropriate to do so. [55] The applicants ask for orders that I appoint an independent monitor to be present at the review hearing of the making of the adverse security determination and that I set out the purposes, roles and functions of the proposed independent monitor. 13 At 179-183. 14 Wurridgal v the Commonwealth (2009) 237 CLR 309. 15 Section 73(2) ADT Act 1997 NSW. -- 10 of 12 -- 11 [56] If I were minded to appoint an independent person to assist the Tribunal it would be only be to attend any hearing at which the Tribunal receives evidence and hears argument about the criminal information as contemplated by s 57(3)(b). Once a decision is made as to whether the information is correctly categorised as criminal intelligence then the applicants and their legal representatives could attend and make submissions at a subsequent hearing to review the adverse security determination. The ultimate question for the Tribunal being whether the adverse security determination that it is not in the public interest to grant the licenses and further that DT is not a fit and proper person to hold a license, is the correct and preferable decision.16 [57] I do not however consider it is for the Tribunal to make that appointment, even if it was inclined to do so, without further assistance from the parties, particularly the applicant. [58] The applicant needs to make submissions to the Tribunal as to: 1. The source or professional body from which such a person could be appointed. 2. Precisely what that persons role and functions would be. 3. Who would bear the costs of the person attending the hearing. [59] The respondent should then be given an opportunity to make any submissions in response. Summary [60] I find that: 1. The review of the adverse security determination pursuant to s 57(3)(a) of the TPA is a merits review conducted pursuant to the provisions in the QCAT Act subject to the modified procedure prescribed in s 57(3)(b) of the TPA. 2. The applicants will file in the Tribunal and give to the respondents submissions on:  The appropriate source/professional body from which any independent person should be appointed  The precise role and function of that person  Who should bear the costs of the person if the person were appointed by: 4:00pm on 9 January 2015. 16 QCAT Act s 20(1). -- 11 of 12 -- 12 3. The respondents will file in the Tribunal and give to the applicants any submissions in response by: 4:00pm on 30 January 2015. 4. The application to appoint an independent person will be determined by the Tribunal on the papers. 5. I consider that the matter should then proceed as follows:  It be listed on a date to be fixed and communicated only to the second respondent (and an independent monitor if appointed) to consider the criminal intelligence report and other information.  The Tribunal will then make a decision and communicate to the second respondent its decision as to whether the information has been correctly categorised by the second respondent as criminal intelligence report or other criminal information mentioned in s 20(3).  The parties will then be directed to file and serve any material including statements of evidence and submissions that they intend to rely on the hearing of the review of the adverse security determination.  The matter will then be set down for a directions hearing on a date to be advised.  The hearing of the review of the making of the adverse security determination would then take place. -- 12 of 12 --