Avilion Group Pty Ltd v Commissioner of Police

[2010] NSWCA 275

New South Wales

Court of Appeal

CITATION:	Avilion Group Pty Ltd v Commissioner of Police [2010] NSWCA 275
HEARING DATE(S):	22 October 2010
JUDGMENT DATE:	22 October 2010
JUDGMENT OF:	Allsop P at 1; Macfarlan JA at 32; Sackville AJA at 33
EX TEMPORE JUDGMENT DATE:	22 October 2010
DECISION:	1. Appeal dismissed with costs. 2. Order that up until and no later than noon on Monday 25 October 2010 the Master Licence numbered 409215710 granted to the appellant, Avilion Group Pty Ltd be treated as on foot.
CATCHWORDS:	ADMINISTRATIVE LAW - administrative tribunals - procedure - admission of transcript of evidence from hearing before improperly constituted Tribunal - Administrative Decisions Tribunal Act 1997, s 73 - appeal on a question of law pursuant to Administrative Decisions Tribunal Act 1997, s 119 - STATUTES - by-laws and regulations - validity - whether Security Industry Regulations 2007, cl 29 inconsistent with Security Industry Act 1997 - PROFESSIONS AND TRADES - licensing or regulation of security industry - revocation of master licence - Security Industry Act 1997, s 26(1)(d) - Security Industry Regulations 2007, cl 29 - public interest
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 (NSW) ss 73(1), 73(2), 73(3), 79, 83, 118, 119 Security Act Industry Act 1997 (NSW) ss 15, 26(1), 26(1)(d), 26(1A) Security Industry Regulations 2007 cl 29
CATEGORY:	Principal judgment
CASES CITED:	Avilion Group Pty Limited v Commissioner of Police [2009] NSWCA 93; 74 NSWLR 514 Avilion Group Pty Limited v Commissioner of Police [2010] NSWADT 129 Avilion Group Pty Limited v Commissioner of Police (No 2) [2010] NSWADTAP 56 Deputy Commissioner of Taxation v Clark [2003] NSWCA 91; 57 NSWLR 113 Morton v Union Steamship Company of New Zealand [1951] HCA 42; 83 CLR 402 Shanahan v Scott [1957] HCA 4; 96 CLR 245 Stemp v Australian Glass Manufacturers Co Ltd [1917] HCA 29; 23 CLR 226
PARTIES:	Avilion Group Pty Ltd Commissioner of Police
FILE NUMBER(S):	CA 2010/288645
COUNSEL:	W P Lowe (Appellant) J Griffiths SC, I Bourke (Respondent)
SOLICITORS:	David Leamey Solicitor & Barrister (Appellant) Crown Solicitor (Respondent)
LOWER COURT JURISDICTION:	Administrative Decisions Tribunal
LOWER COURT FILE NUMBER(S):	109037
LOWER COURT JUDICIAL OFFICER:	M Chesterman DP; N Isenberg JM; C Blake NJM
LOWER COURT DATE OF DECISION:	19 August 2010
LOWER COURT MEDIUM NEUTRAL CITATION:	Avilion Group Pty Ltd v Commissioner of Police (No 2) [2010] NSWADTAP 56

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

2010/288645

ALLSOP P
MACFARLAN JA
SACKVILLE AJA

AVILION GROUP PTY LIMITED v COMMISSIONER OF POLICE

Judgment

1 ALLSOP P:

This is an appeal on a question of law pursuant to s 119 of the Administrative Decisions Tribunal Act 1997 (NSW) (“the ADT Act”), from the dismissal of an appeal to the Appeal Panel of the ADT from a decision of a judicial member confirming a decision of the Commissioner of Police to revoke the appellant’s master licence under the Security Industry Act 1997 (NSW) (“the Security Act”). The judicial member’s decision can be found as Avilion Group Pty Limited v Commissioner of Police [2010] NSWADT 129 and the Appeal Panel’s decision can be found as Avilion Group Pty Limited v Commissioner of Police (No 2) [2010] NSWADTAP 56.

2 The history of the proceedings is adequately set out in [3]-[18] of the Appeal Panel’s reasons and it is unnecessary to set out those matters in detail. The judicial member confirmed the decision of the Commissioner of Police on the grounds that Mr Dione Blissett was a “close associate” of Avilion within the meaning of the Security Act, s 5, that Mr Blissett was not a fit and proper person to hold a licence under the Security Act and that it was not in the public interest that Avilion retain its licence. The Appeal Panel disagreed with the judicial member’s conclusion on whether Mr Blissett was a “close associate” as defined by the Security Act, s 5, but otherwise confirmed the decision.

3 As to the question of “close associate”, a difference of view arose principally by reference to the phrase “entitled to control” in s 5 as applicable to the facts and by reason of a holding of a relevant position.

4 The correctness of the approach of the Appeal Panel would arise if one or more of the grounds is or are upheld. For the reasons that follow, I am of the view that none of the appeal grounds has merit. It is, therefore, unnecessary to deal with the notice of contention. However, it is appropriate to say this, with respect to the members, that the lack of dealing with the notice of contention should not be taken as my agreement with the Appeal Panel’s approach to the operation of the definition of “close associate”.

5 There are three grounds in the Notice of Appeal falling into two broad categories: grounds 1 and 2 being the first category, which are as follows:

“1. That the Appeal Panel erred in law by concluding that evidence previously adduced on appeal before it and which this Court found had no statutory authority to deal with that appeal (see Avilion Group Pty Ltd v Commissioner of Police (2009) 74 NSWLR 514) was nonetheless admissible in the latter appeal proceedings pursuant to s 73(2) of the Administrative Decisions Tribunal Act 1997 (the Act).

2. That the Appeal Panel erred in law by refusing the request of the Appellant to refer a question of law which arose on the appeal to the Supreme Court pursuant to s 118 of the Act, being a question relating to the consequences of statutory invalidity associated with the decision of this Court in Avilion Group Pty Ltd v Commissioner of Police (2009) 74 NSWLR 514.”

6 These grounds, being the first category, concern the use made by the judicial member of sworn evidence that was taken at an earlier hearing by the President of the Tribunal. At that earlier hearing the President heard an application for leave to appeal from Deputy President Hennessy’s agreeing to a stay. The President allowed the appeal, received fresh evidence and refused a stay.

7 These events are accounted for in the reasons in the judgment of this Court in Avilion Group Pty Limited v Commissioner of Police [2009] NSWCA 93; 74 NSWLR 514 at [1]-[8]. As I said, the President set aside the stay.

8 This Court came to the conclusion that the Tribunal was improperly constituted because only one member, that is, the President, dealt with the appeal proper on the question of stay. The Court set aside the President’s orders.

9 The proceedings thereafter went forward in the Tribunal.

10 The first two grounds of the appeal before this Court today are that because of the orders made in the earlier Court of Appeal matter, it was legally impermissible for the judicial member on the review of the decision of the Commissioner of Police to have regard at all to the material that was before the President on the earlier ill-constituted occasion. The judicial member accepted the tender of the transcript and other material from that earlier hearing. It is said that because the earlier proceedings were without lawful foundation, they were a nullity.

11 It followed, it was submitted, that the evidence was not properly sworn and taken. From this it was submitted that it could not be used in any way as it was by the judicial member.

12 This final conclusion does not follow at all. The Tribunal was not acting as a court, it was exercising executive power and conducting a review of the Commissioner of Police’s decision. Its procedure was regulated by s 73 of the ADT Act which provided in subsections (1) and (2) as follows:

“(1) The Tribunal may, subject to this Act and the rules of the Tribunal, determine its own procedure.

(2) The Tribunal is not bound by the rules of evidence and may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice.”

13 Whether or not the proceedings were flawed, the transcript and the material that was before it was a record of what had physically happened on the day, that is, all of the people who had been asked questions and answered. There is no issue as to the accuracy of that record and there was none in the Tribunal. As long as procedural fairness was afforded, there was no reason why the Tribunal could not have regard to the material if it thought it probative and reliable. There is no suggestion in these proceedings of any lack of procedural fairness.

14 It was submitted that the terms of s 79 of the ADT Act, as well as s 83, operate to restrict how s 73 might be employed by the receipt of this material. With respect to counsel, I do not understand the argument. In my view the general authority given to this important Tribunal by the terms of s 73 amply encompasses what the Tribunal did on this occasion. The terms of reconstitution of the Tribunal set out in s 79 do not impliedly the limit the operation of s 73, nor do the terms of s 83, which deals with the powers to call witnesses.

15 As to ground 2, which is the second part of the first body of issues, there was no requirement to refer a question of law to the Supreme Court and the ADT was not obliged to so refer a question of law under the ADT Act, s 118 and, in any event, the matter has now come before this Court raising the same issue. In my view, the first two grounds of appeal must fail.

16 Ground 3 of the notice of appeal was as follows:

“3. That the Appeal Panel erred in law in determining to revoke the master security licence of the Appellant in the public interest pursuant to s 26(1)(d) of the Security Industry Act 2007 [sic] and clause 29 of the Security Industry Regulation 2007 in circumstances where that particular regulation was inconsistent with the Act and was therefore not a valid enactment.”

Section 26 of the Security Act is in the following terms:


“(1) A licence may be revoked:

(a) (Repealed)

(b) if the licensee:

(i) supplied information that was (to the licensee’s knowledge) false or misleading in a material particular in, or in connection with, the application for the licence, or
(ii) contravenes any provision of this Act or the regulations, whether or not the licensee has been convicted of an offence for the contravention, or
(iii) contravenes any condition of the licence, or


(c) (Repealed)

(d) for any other reason prescribed by the regulations.

(1A) The Commissioner must revoke a licence where the Commissioner is satisfied that, if the licensee were applying for a new licence, the application would be required by this Act to be refused.

(2) The Commissioner may revoke a licence by serving on the licensee, personally or by post, a notice stating that the licence is revoked and the reasons for revoking it.

(3) The revocation of a licence by such a notice takes effect when the notice is served or on a later date specified in the notice.

Note. Section 31 requires the licensee to immediately surrender the licence if the licence is revoked.

(4) The Commissioner may, by serving a further notice on the holder of a licence, cancel a notice revoking a licence before the notice takes effect.”
Paragraphs (a) and (c), now repealed, were, prior to their repeal, in the following terms:

“(1) A licence may be revoked:
(a) for any reason for which the licensee would be required to be refused a licence of that class, or
…
(c) if the Commissioner is of the opinion that the licensee is no longer a fit and proper person to hold a licence, or
Sub-section (1)(a) was repealed by Security Industry Amendment Act 2002 (2002 No 107, Sch 1 [8]-[9], at which time s 26(1A) was added. The repeal was to take effect on 31 January 2003 which was also the date of commencement of s 26(1A) – see GG No 33 of 31 January 2003, p 599.”

Regulation 29 of the Security Industry Regulations 2007 is in the following the terms:


“For the purposes of section 26 (1) (d) of the [Security] Act, a licence may be revoked if the Commissioner considers that it is not in the public interest for the person to whom it is granted to continue to hold it.”

17 As the appellant argued, the Security Act makes a clear distinction between the granting of an application for a security licence and revocation of that licence. Section 15 of the Security Act deals with restrictions on granting a licence; s 15(1) sets out circumstances in which the Commissioner of Police must refuse the grant of an application; subsections (2) and (3) provide circumstances when the Commissioner of Police may refuse to grant an application. One of those provisions, subsection (3), is that the Commissioner may refuse to grant an application for a licence if the Commission considers that the granting of the licence would be contrary to the public interest.

18 Subsection (4) of s 15 provides that the regulations may provide additional mandatory or discretionary grounds for refusing a granting of an application for a licence.

19 Section 26 deals with revocation of licences. I have already set out the terms of that section. Section 26(1A) outlines circumstances when the Commissioner must revoke the licence and they are, of course, the matters which are mandatory upon the Commissioner in the granting provision, s 15.

20 Thus, by s 26(1)(d) and reg 29 (if these are valid exercises of statutory and executive power) the Commissioner of Police is given power but is not required to revoke a licence on the ground of public policy. The consideration of the present issue only need be directed to the Commissioner making the revocation and that decision being confirmed by the two levels of the Tribunal.

21 It is said that reg 29 is invalid because of the suggested inconsistency with the Security Act.

22 It is said that reg 29 deals with a matter (the public interest) that should be dealt with by the Act. The argument appears to include the following: an argument that cl 29 is inconsistent because it provides a discretionary power to revoke a licence on public interest grounds whereas in relation to refusals to grant an application, the Security Act enacts such discretionary grounds in the Act itself. I do not, with respect, accept that this is any basis for inconsistency. If it were the case that from the statute one could devise a parliamentary intention that certain matters were not to be capable of being dealt with by the Executive in regulations, that would raise an inconsistency. I do not accept, however, that the fact that s 15(3) contains a public interest ground in the Act necessarily limits the regulatory power for revocation by limiting that subject matter of public interest.

23 It was submitted that the phrase “any other reason” in s 26(1)(d) was too broad and permissive and would not extend to authorise regulations inconsistent with the Act. That s 26(1)(d) could not authorise a regulation inconsistent with the Act can be accepted. The question is whether the regulation is inconsistent with the Act, and in my view it is not.

24 It was also put that s 26(1)(d) was too broad and had no specific identification of subject matter. However, the concept of public interest is a well-known one. It is a broad concept and is to be construed in its operation and constrained in accordance with the purpose of its context. Here the Security Act deals fundamentally with the regulation of what are seen to be important activities in the community and for the proper regulation and protection of the public.

25 It was submitted that the ground of public interest could only be confined or identified by statute. There is a consistency with the Act as a whole which is able to be identified.

26 The appellant relied upon Shanahan v Scott [1957] HCA 4; 96 CLR 245 at 250, Stemp v Australian Glass Manufacturers Co Ltd [1917] HCA 29; 23 CLR 226 at 234 and Morton v Union Steamship Company of New ZealandLtd [1951] HCA 42; 83 CLR 402 at 410. It was submitted that the Act was silent on public interest and revocation and, therefore, there could be no authority to place such a wide consideration in the regulation. I reject those submissions.

27 In my view, the discretionary consideration of public interest in reg 29 is plainly within the concern of the Act, being the protection of the public. As I have said, there is no inconsistency. The concept in the regulation (and which has been placed in the Act) would be enough, as I have said, in the context in which it appears in the Act.

28 There was another argument that s 26(1)(d) should be read down eiusdem generis by reference to the balance of content of s 26(1). I disagree. It is to be understood as authorising any other reasons conformable with the purpose of the Act that are not inconsistent with the Act. As the Chief Justice said in Deputy Commissioner of Taxation v Clark [2003] NSWCA 91; 57 NSWLR 113 at [127]:

“The process of reading down general words in a statute is a frequently recurring issue in statutory interpretation. (See, for example, the authorities I referred to in R v Young (1999) 46 NSWLR 681 at 689 [23]–[29].) Application of the ejusdem generis rule is a specific example of this process. The application of this rule, in substance, gives the immediate verbal context determinative weight in the process of construing general words. In my opinion, this is rarely justified. Whether or not general words ought be read down is to be determined by the whole of the relevant context, including other provisions of the statute and the scope and purpose of the statute”

29 Here, there is ample foundation for the view that in the light of the whole of the Act and the place in which it is found in the light of the general protective provisions of the Act, the general words of s 26(1)(d) should not be read down.

30 There was ample foundation for the view of the Commissioner that it was not in the public interest for Avilion to continue to hold its licence and that nothing has been put to this Court to the contrary.

31 The appeal should be dismissed with costs.

32 MACFARLAN JA: I agree.

33 SACKVILLE AJA: I also agree.

34 I wish only to draw attention to the observations made by the Appeal Panel as follows:

"...Judicial Member Molony did not accord any special status to the evidence contained in the transcript. He treated it simply as a record of statements made by witnesses (of whom two, including Ms Stankovic, testified again at the hearing before him) on a prior occasion. While these statements, due to the defective nature of the prior hearing, could not be treated as made under a lawful oath or affirmation, this affected at most their weight, not their quality as relevant and logically probative evidence." ( Avilion Group Pty Limited v Commissioner of Police, NSW Police (GD) (No 2) [2010] NSWADTAP 56 at [64]

35 In my opinion, it was clearly within the statutory authority of the Tribunal to deal with the material in this manner: Administrative Decisions Tribunal Act 1997, s 73(1), (2), (3).

36 I agree with the orders proposed by the presiding judge.

I also agree with Justice Sackville. The orders of the Court are that the appeal has been dismissed with costs.

[Short adjournment followed by discussion of the stay of revocation.]

38 ALLSOP P: In this matter the question of the position of the licensee and the establishments for which it provides security guards has been raised.

39 The dismissal of the appeal puts an end, of its own force, to orders that have previously been made by the Court through the mechanism of stays.

40 Justice Basten in an earlier judgment pointed out the difficulties with the notion of a stay in circumstances of the kind that have now arisen. Nevertheless, it accords with the view that as a matter of inherent or implied power in support of the orderly and proper execution of its order, and taking into account the interests of third parties and the safety and convenience of members of the public, the revocation should not take place formally until a period of time to allow the business and other affairs of persons to be properly undertaken with safety.

41 The willingness of the Court to make this order is not to facilitate any application for special leave. If that were the only consideration the order would not be made.

42 For those reasons, the Court makes the following orders in addition to the dismissal of the appeal with costs.

43 The Court orders that up until and no later than noon on Monday 25 October 2010 the Master Licence numbered 409215710 granted to the appellant, Avilion Group Pty Ltd, be treated as on foot and not revoked.

44 Thus, the orders of the Court are:

1. Appeal be dismissed with costs.

2. Order that up until and no later than noon on Monday 25 October 2010 the Master Licence numbered 409215710 granted to the appellant, Avilion Group Pty Ltd, be treated as on foot.

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