AVS Group Australia Pty Ltd v Commissioner of Police, New South Wales Police Force (GD)
[2010] NSWADTAP 26
•20 April 2010
Appeal Panel - Internal
CITATION: AVS Group Australia Pty Ltd v Commissioner of Police, New South Wales Police Force (GD) [2010] NSWADTAP 26
This decision has been amended. Please see the end of the decision for a list of the amendments.PARTIES: FIRST APPELLANT
AVS Group Australia Pty LtdSECOND APPELLANT
RESPONDENT
Tony Sleiman
Commissioner of Police, New South Wales Police ForceFILE NUMBER: 099067 HEARING DATES: 24 March 2010 SUBMISSIONS CLOSED: 24 March 2010
DATE OF DECISION:
20 April 2010BEFORE: O'Connor K - DCJ (President); Fitzgerald K - Judicial Member; Bolt M - Non-Judicial Member CATCHWORDS: PROCEDURE – Application for review of reviewable decision – Administrator’s statutory obligation to lodge all relevant documents – Whether review applicant entitled to be informed of application for order excusing administrator from lodgment, and of associated details – Revocation of security industry master licence for lack of fitness – Whether right to notice ousted by Security Industry Act, s 29(3) – Extent of repeal of procedural fairness effected by s 29(3) – Held no ouster as to basic procedural information – Appeal allowed – Administrative Decisions Tribunal Act 1997, ss 58, 59, 73 – Security Industry Act 1997, ss 15(5), 15(6), 29(3) DECISION UNDER APPEAL: AVS Group Australia Pty Ltd and Tony Sleiman v Commissioner of Police, unreported, 2 October 2009 FILE NUMBER UNDER APPEAL: 093216 DATE OF DECISION UNDER APPEAL: 10/02/2009 LEGISLATION CITED: Administrative Decisions Tribunal Act 1997
Freedom of Information Act 1989
Interpretation Act 1987
Security Industry Act 1997
Security Industry Regulation 2007CASES CITED: A-G v Associated Newspapers Ltd [1994] 2 AC 238
Australian Securities and Investments Commissioner v P Dawson Nominees [2008] FCAFC 123; (2008) 169 FCR 227
AVS Group of Companies Pty Limited and Ors v Commissioner of Police and Anor [2010] NSWSC 109
AVS Group of Companies Pty Ltd v Commissioner of Police [2010] NSWCA 81
Commissioner of Police New South Wales v Gray [2009] NSWCA 49
Director of Public Prosecutions v Vu (2006) 14 VR 249
Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577
Dun & Bradstreet (Australia) Pty Ltd v Lyle (1977) 15 SASR 297
Florida Department of Revenue v Piccadilly Cafeterias (2008) 128 S Ct 2326
Foster v Federal Commissioner of Taxation (1951) 82 CLR 606
Hussain v Minister for Foreign Affairs [2008] FCAFC 128
Nakhl Nasr v New South Wales [2007] NSWCA 101
Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476
R v Gidlow [1983] 2 Qd R 557
R v Skeen & Freeman (1859) Bell 97; 169 ER 1182
Real Estate Opportunities Limited v Aberdeen Asset Managers Jersey Limited [2007] EWCA Civ 197REPRESENTATION: FIRST AND SECOND APPELLANTS:
RESPONDENT
K G Oliver, counsel / S Laface, HPL Lawyers
T Lynch, counsel / S Sivarajah, Crown Solicitor's OfficeORDERS: 1. Appeal allowed.
2. Direct the Registrar, once 42 days from the delivery of this decision has expired or earlier if the Commissioner agrees, to inform the applicants for review of the making of any application by the Commissioner for an order under s 59 and its date, and whether there has been an order and its date.
1 This is an interlocutory appeal brought by applicants for review of a decision of the Commissioner of Police revoking a master licence issued under s 10(1)(d) of the Security Industry Act 1997 (SI Act). The applicants are the licensee, Mr Tony Sleiman, and the company that carried on the business permitted by the master licence, AVS Group Australia Pty Ltd (the appellants).
2 The Commissioner’s statements of reasons for decision, and documents formally lodged by the Commissioner with the Tribunal, contain no information as to why the decision was reached that Mr Tony Sleiman was not a fit and proper person to hold a licence.
3 After receiving notice of an application for review, an administrator is obliged within 28 days to lodge with the Tribunal all documents seen as relevant to the decision. The Registrar is obliged to give the review applicant reasonable access to copies of these documents. See generally, Administrative Decisions Tribunal Act 1997 (ADT Act), s 58 esp. (1) and (5). An administrator may apply to the Tribunal for an order that the administrator may not be required to lodge a document under s 58: s 59(1).
4 The review applicants’ appeal relates to the refusal of the Tribunal to give directions to the Commissioner to disclose any application to the Tribunal for an order allowing him not to lodge relevant documents, and related particulars of any such application.
5 As the appeal is interlocutory, it requires leave (ADT Act, s 113(2A)). Leave has been granted. This decision deals with the substance of the appeal.
BACKGROUND
6 In this case the Commissioner revoked the licence on three bases, only two of which are now relied upon. The first basis is the power to revoke because the licensee has contravened a condition: see SI Act, s 26(1)(b)(iii). The Commissioner asserts that, in breach of the condition imposed under cl 34 of the Security Industry Regulation 2007, Mr Sleiman failed to notify the Commissioner in writing of any change in the particulars relating to the close associates of the licensee within 14 days after the change occurs, i.e. that Mr Peter Sleiman was a close associate.
7 The second basis is the main ground relied upon. Under s 26(1A) of the SI Act the Commissioner must revoke a licence where he is satisfied that, if the licensee were applying for a new licence, that application would be required by this Act to be refused. Section 15(1) and (5) provide:
(1) The Commissioner must refuse to grant an application for a licence if the Commissioner is satisfied that the applicant:
(a) is not a fit and proper person to hold the class of licence sought by the applicant …
(5) Except as provided by the regulations, a reference in this section to an applicant includes, in the case of an application for a master licence, a reference to each close associate of the applicant.
8 An administrator is obliged, if requested, to provide a person affected with a statement of reasons for a reviewable decision: ADT Act, s 49. The requirement is mandatory where a decision is made in response to an application for internal review made under s 53. In this case the delegate of the Commissioner supplied reasons as part of the primary decision. There has been no internal review. Instead the applicants bypassed the internal review stage, and applied directly to the Tribunal: as to which, see ADT Act, s 55. The statement of reasons ‘is to set out the following’ (s 49(3); s 53(7)):
(a) the findings on material questions of fact, referring to the evidence or other material on which those findings were based,
(b) the administrator’s understanding of the applicable law,
(c) the reasoning processes that led the administrator to the conclusions the administrator made.
9 The Commissioner’s notice is dated 15 July 2009. It was served on 13 August 2009, and thus took effect on that date (SI Act, s 26(3)). The notice was as follows:
NOTIFICATION OF REVOCATION OF LICENCE
UNDER THE SECURITY INDUSTRY ACT 1997
15 July 2009
TO: Tony SLEIMAN
AVS Group Australia Pty Ltd
ADDRESS: 88 Parramatta Road, Granville NSW
DATE OF BIRTH: [not reproduced by Tribunal]
Pursuant to Section 26 of the Security Industry Act, 1997, notice is hereby given that the Master security licence issued in the name of AVS Group Australia Pty Ltd has been revoked.
REASON FOR REVOCATION: (Provided under Sections 49 and 53(2)(d)(ii) of the Administrative Decisions Tribunal Act 1997):
I AM SATISFIED THAT A CONDITION OF THE LICENCE HAS BEEN CONTRAVENED.
(Failure to disclose particulars of close associate – Peter SLEIMAN)
I AM SATISFIED THAT A CLOSE ASSOCIATE OF AVS GROUP AUSTRALIA PTY LTD IS NOT A FIT AND PROPER PERSON TO HOLD A SECURITY LICENCE. (Peter SLEIMAN)
I CONSIDER THAT IT IS NOT IN THE PUBLIC INTEREST FOR YOU TO CONTINUE TO HOLD THE LICENCE.
Section 26(1)(b)(iii) of the Security Industry Act 1997 prescribes that the licence may be revoked if the licensee contravenes any condition of the licence.
For the purposes of Section 26(1)(b)(iii) of the Act, Clause 34 of the Security Industry Regulation 2007 provides that it is a condition of a master licence that the licensee must notify the Commissioner in writing of any change in the particulars relating to the close associates of the licensee within 14 days after the change occurs.
Section 26(1A) of the Security Industry Act 1997 provides that the Commissioner must revoke a licence where he is satisfied that, if the licensee were applying for a new licence, that application would be required by this Act to be refused.
Section 15(1)(a) of the Security Industry Act 1997 provides that the Commissioner must refuse to grant an application for a licence if the Commissioner is satisfied that the applicant is not a fit and proper person to hold the class of licence sought by the applicant.
For the purposes of Section 26(1A) and Section 15(1)(a) of the Act, Section 15(6) of the Security Industry Act 1997 provides that for the purpose of determining whether an applicant is a fit and proper person to hold the class of licence sought by the applicant, the Commissioner may have regard to any criminal intelligence report or other criminal information held in relation to the applicant that:
(a) is relevant to the activities carried out under the class of licence sought by the applicant, or
(b) causes the Commissioner to conclude that improper conduct is likely to occur if the applicant were granted the licence, or
(c) causes the Commissioner not to have confidence that improper conduct will not occur if the applicant were granted the licence.
LICENCE HOLDER
Further, Section 15(7) of the Act states that the Commissioner is not, under this or any other law, required to give any reasons for not granting a licence if the giving of those reasons would disclose the existence or content of any criminal intelligence report or other criminal information as referred to in subsection (6).
Section 15(5) of the Security Industry Act 1997 prescribes that except as provided by the regulations, reference in this section to an applicant includes, in the case of an application for a master licence, a reference to each close associate of the applicant.
Section 26(1)(d) of the Security Industry Act 1997 prescribes a licence may be revoked for any other reason prescribed by the regulations.
Clause 29 of the Security Industry Regulation 2007 provides that a licence may be revoked if the Commissioner considers that it is not in the public interest for the person to whom it was granted to continue to hold it.
Section 21 of the Interpretation Act 1987 provides that in any Act or instrument, person includes an individual, a corporation and a body corporate or politic.
The Commissioner has delegated his functions under the Security Industry Act 1997 to me. As a result of the operation of the legislative requirement as described above, I have revoked your licences.
The options available to you, should you wish to seek a review of this decision, are provided for in Section 53 of the Administrative Decisions Tribunal Act 1997 and Section 29 of the Security Industry Act 1997 (see overleaf).
The revocation of a licence means that you are no longer authorised to engage in any security activity in respect of the class of licence revoked.
Your licence must be surrendered to police upon service of this notice. Failure to do so constitutes an offence under Section 31 of the Security Industry Act 1997. If your licence is not returned, action will be taken to issue an infringement notice for the offence of “Fail to surrender suspended/revoked licence” – Penalty amount $1,100 for an individual and $2,200 for a corporation.
Any enquiries should be directed to the Security Industry Registry on telephone numbers ……...
SIGNED: (Sgd)
DELEGATE OF COMMISSIONER OF POLICE
DATE SERVED: 13/8/09
BY: (Sgd)
10 It will be seen that the notice refers to ss 15(6) and (7) of the SI Act. These provisions deal with: the power of the Commissioner to rely on criminal intelligence reports or other criminal information held in relation to the applicant; and the extent of the Commissioner’s obligation to disclose this material in the statement of reasons:
(6) For the purpose of determining whether an applicant is a fit and proper person to hold the class of licence sought by the applicant, the Commissioner may have regard to any criminal intelligence report or other criminal information held in relation to the applicant that:
(a) is relevant to the activities carried out under the class of licence sought by the applicant, or
(b) causes the Commissioner to conclude that improper conduct is likely to occur if the applicant were granted the licence, or
(c) causes the Commissioner not to have confidence that improper conduct will not occur if the applicant were granted the licence.
(7) The Commissioner is not, under this or any other Act or law, required to give any reasons for not granting a licence if the giving of those reasons would disclose the existence or content of any criminal intelligence report or other criminal information as referred to in subsection (6).
11 The appellants lodged their application for review with the Tribunal on the date that the revocation took effect, 13 August 2010. They gave notice of the application to the Commissioner the same day.
Lodgment Requirements
12 An administrator must lodge with the Tribunal all documents relevant to the decision, subject to any order for non-lodgment: ADT Act, ss 58 and 59.
13 The following provisions in s 58 are directly relevant to the issues raised in this appeal:
(1) An administrator whose reviewable decision is the subject of an application for review to the Tribunal must, within 28 days after receiving notice of the application, lodge with the Tribunal:
(a) a copy of any statement of reasons given to the applicant under section 49 (or, if no such statement was given to the applicant, a statement of reasons setting out the matters referred to in section 49 (3)), and
(a1) a copy of any statement of reasons for a decision in an internal review conducted in respect of the reviewable decision, and
(b) a copy of every document or part of a document that is in the possession, or under the control, of the administrator that the administrator considers to be relevant to the determination of the application by the Tribunal.
…
(3) If the Tribunal or President considers that a party to the proceedings would or might suffer hardship if the period of 28 days provided by subsection (1) is not shortened or extended, the Tribunal or President may, at the request of the party, make an order directing that the copies referred to in that subsection be lodged with the Tribunal within such shorter or extended period as is specified in the order.
…
(7) Nothing in this section requires the disclosure of, or the granting of access to, any document (or a copy of a document) in contravention of any of the following:
(a) an order made under section 59 (Objections to lodgment),
(b) an order made under section 75 (Proceedings on hearing to be conducted in public),
(c) section 124 (Application of Act to exempt documents under Freedom of Information Act 1989),
(d) section 125 (Privileged documents).
14 Section 59 relevantly provides:
59 Objections to lodgment
(1) An administrator may apply to the Tribunal before the expiry of the period referred to in section 58 (1) for an order that the administrator not be required to lodge a copy of a document under section 58.
(2) On any such application, the Tribunal may make an order that a copy of a document not be lodged with the Tribunal if:
(a) it is satisfied that section 125 operates so as not to require the disclosure of the document, or
(b) it considers that, if an application were made under section 75 (2), it would be appropriate to make an order under that subsection prohibiting or restricting the publication or disclosure of evidence of the document.
15 The Tribunal is obliged to observe the requirements of natural justice. There is reference in the appeal grounds to s 73 of the ADT Act, which imposes obligations on the Tribunal in relation to procedural fairness. Two sub-sections are referred to, sub-sections (2) and (4):
(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.
(4) The Tribunal is to take such measures as are reasonably practicable:
(a) to ensure that the parties to the proceedings before it understand the nature of the assertions made in the proceedings and the legal implications of those assertions, and
(b) if requested to do so—to explain to the parties any aspect of the procedure of the Tribunal, or any decision or ruling made by the Tribunal, that relates to the proceedings, and
(c) to ensure that the parties have the fullest opportunity practicable to be heard or otherwise have their submissions considered in the proceedings.
16 The Commissioner lodged the s 58 documents on 17 September 2009. The documents consist of formal material, such as ASIC company searches and director searches relating to AVS Group and Mr Tony Sleiman, and the Security Registry’s file documents relating to the application for the master licence including material submitted by the applicant in support, such as testimonials.
17 The lodgment included a revised statement of reasons. The revised statement of reasons withdrew the third ground relied upon in the original statement of reasons. The revised statement is as follows:
AVS Group of Australia Pty Ltd & Anor v Commissioner of Police
ADT proceedings no: 093216
Statement of Reasons
A. Licence revoked under the Revocation Notice dated 15 July 2009
Master Security Licence (licence no. 409404756)
- issued to Tony Sleiman (“licensee”)
- Class MD – Authorises the holder to employ or provide more than 50 persons to carry on security activities, each of whom must be the holder of a class 1 licence, class 2 licence or provisional licence
- stated close associates: nil.
B. Grounds for revoking the above licence
1. The Master Security Licence is revoked on the bases that:
(a) the licensee is not a fit a proper person to be the holder of a licence in that Peter Sleiman, being a close associate of the licensee, is not a fit and proper person to hold a licence; and
(b) the licensee did not disclose the existence of Peter Sleiman as a close associate of the licensee.
2. The Commissioner does not rely upon the “public interest” ground as a ground for revocation of this licence.
C. Reasoning
1. The Commissioner being satisfied as to the existence of each of the grounds in B(1) (above), the terms of s.26(1A) required the revocation of the licence.
(Sgd)
Delegate of the Commissioner
Date: 17/9/09
18 It will be seen that neither of the statements of reasons give any substantive information as to why Mr Peter Sleiman is a ‘close associate’ and, more importantly, why he is to be regarded as not a fit and proper person, and, by attribution (SI Act, s 15(5)), Mr Tony Sleiman is to be regarded as not a fit and proper person.
The Proposed Directions
19 At a directions hearing on 2 October 2009, the Tribunal refused the appellants’ application for the following directions:
That the respondent by 5 pm on 7 October serve the applicant with a written notice:
(a) Confirming the date or dates upon which any application was made by the respondent to the Tribunal for orders in these proceedings under s 59 of the Administrative Decisions Tribunal Act 1997 (‘the Act’).
(b) Further or alternatively, confirming the date or dates upon which any such application was made by the respondent to the Tribunal on or after 10 September 2009.
(c) Confirming that the Tribunal has not in these proceedings made in respect of any document that was not held by the respondent on or before 15 July 2009, any order under s 59 of the Administrative Decisions Tribunal Act 1997 that the respondent not be required to lodge under section 58 of the Act a copy of that document.
(d) Confirming that the Tribunal has not in these proceedings made in respect of any document that was not held by the respondent on or before 13 August 2009, any order under s 59 of the Administrative Decisions Tribunal Act 1997 that the respondent not be required to lodge under section 58 of the Act a copy of that document.
20 As already noted, 15 July 2009 is the date of the written notice of decision; and 13 August 2009 is the date of service, the date of revocation and the date of lodgment of the application to the Tribunal for review. Finally, 10 September 2009 is the date of expiry of the 28 day period after lodgement of the application for review, and, therefore, the final date for filing of documents under s 58(1), unless an extension of time has been granted, and the final date for the filing of any objections pursuant to s 59(1).
21 The Commissioner opposed the proposed directions. The Commissioner relied on s 29(3) of the ADT Act which requires the Tribunal not to disclose in its reasons for decision ‘or otherwise’ the existence or content of any criminal intelligence report or other criminal information referred to in s 15(6) without the approval of the Commissioner. Section 29(3) provides:
(3) In determining an application for a review of any decision to refuse to grant a licence or to revoke a licence that was made on the ground of the applicant not being a fit and proper person, the Administrative Decisions Tribunal:
(a) is to ensure that it does not, in the reasons for its decision or otherwise, disclose the existence or content of any criminal intelligence report or other criminal information referred to in section 15 (6) without the approval of the Commissioner, and
(b) in order to prevent the disclosure of any such report or other criminal information, is to receive evidence and hear argument in the absence of the public, the applicant for review, the applicant’s representative and any other interested party, unless the Commissioner approves otherwise.
Note. Section 15 (7) of this Act provides that the Commissioner is not, under this or any other Act or law, required to give any reasons for not granting a licence if the giving of those reasons would disclose the existence or content of any criminal intelligence report or other criminal information referred to in section 15 (6). Accordingly, Part 2 of Chapter 5 of the Administrative Decisions Tribunal Act 1997 does not apply to any decision to refuse to grant a licence based on such information to the extent that it would require disclosure of the existence or content of any criminal intelligence report or other criminal information.
Tribunal Decision
22 The Tribunal refused to make the directions on the ground that the existence or otherwise of any documents in respect of which any application pursuant to s 59 of the ADT Act might have been made was not a fact that had at any time previously been “disclosed” to the appellants so that the Tribunal could not make any of the directions sought by the appellant without breaching s 29(3) of the SI Act.
23 The Tribunal considered that s 29(3) is to be read as restricting the disclosure of criminal intelligence reports or other criminal information held in relation to the review applicant. It ruled that reports and information “held” in relation to an applicant or notional applicant for a security licence within the meaning of s 15(6) of the SI Act includes all reports or information held by the Commissioner at any time. This was so, regardless of whether the Commissioner did in fact have or could in fact have had, regard to that information for the purpose of determining whether such applicant or notional applicant was a fit and proper person to hold a relevant licence, at the time when the Commissioner did in fact so determine, within the meaning of s 15(6) of the SI Act.
THE APPEAL
24 An appeal may be made in relation to a ‘question of law’ and, may, with the leave of the Appeal Panel, extend to the merits: ADT Act, s 113. The notice of appeal filed 30 October 2009 sets out various questions of law, and applies for leave to extend the appeal to the merits.
25 The following is a summary of the questions of law which, in the appellants’ submission, the Tribunal answered erroneously:
(1) Whether the making of the directions sought would have caused the Tribunal to ‘disclose’ any information within the meaning of s 29(3)(a) of the SI Act so that the Tribunal should be prevented from directing the agency to inform the applicants of any application made by the agency for orders pursuant to s 59 of the ADT Act, and the date or dates of those applications.
(2) Whether the Tribunal was required by s 73(2) or 73(4) of the ADT Act, to inform the applicants of any s 59 application made by the agency, to afford the applicants an opportunity to be heard in relation to a s 59 application before determining that application and/or to inform the applicants of the Tribunal’s decision or any reasons for decision in relation to a s 59 application.
(3) Whether the prohibition on disclosure of criminal intelligence reports or other criminal information in s 29(3)(b) of the SI Act is limited to reports or other information held by the agency at the time that the Commissioner determines that the holder of a security licence is not a fit and proper person to hold such a licence pursuant to s 15(6) or s 26(1A) of the SI Act. In the applicants submission, the prohibition does not extend to such reports and information held by the Commissioner at any time, including times that are subsequent to the time of decision.
(4) Whether the period within which s 59(1) of the ADT Act permits an administrator to make an application for an order that the administrator not be required to lodge a copy of a document under s 58 is limited to the period of 28 days after receiving notice of an application for review of the reviewable decision specified in s 58(1), or whether it includes such time as the Tribunal may direct pursuant to s 58(3).
(5) Whether the fact that an administrator will be unable to make an application within time is capable of being considered by the Tribunal a matter by reason of which an administrator may “suffer hardship” within the meaning of s 58(3).
(6) In a case where the agency makes an application for an order pursuant to s 58(3) extending time for lodgement of documents pursuant to s 58(1) of the ADT Act, whether it is lawful for the Tribunal to conceal the application from the review applicant.
The Submissions
26 The appellants’ basic submission is that these provisions should be interpreted in a way that preserves to the extent practical the ordinary principles of natural justice. Most fundamentally, people are entitled to know the nature of the accusations made against them and have an opportunity to respond to them. Section 73 of the ADT Act, it is said, reinforces the obligation of the Tribunal to accord parties procedural fairness.
27 In another master licence revocation case based on lack of fitness, the review applicant applied for information as to the allegations made against him. The Tribunal acceded to a degree to the application. It directed the Commissioner to furnish ‘particulars’ of the matters that led to revocation of the master licence. The Tribunal did not require provision of the evidence itself. The Court of Appeal set aside the Tribunal’s decision: Commissioner of Police New South Wales v Gray [2009] NSWCA 49.
28 The Commissioner’s primary submissions were summarised as follows:
54 [The Commissioner] … submitted that the Tribunal’s orders would require the appellant to disclose details of the actions the respondent was alleged to have carried out and the time and place where those actions were alleged to have taken place. He argued that giving such particulars would require the appellant to disclose the content of any criminal intelligence report or other criminal information. Thus he contended that the Tribunal had failed to comply with its s 29(3)(a) obligation to “ensure”, which he accepted extended to “cause to ensure”, that it did not disclose, relevantly, the content of s 15(6) material. He argued that s 29(3) was a legislative command squarely and expressly directed to imposing obligations on the Tribunal as to the manner in which its review was conducted.
29 The Court endorsed this submission. The following extract from the headnote to the case sufficiently describes its reasoning for present purposes:
1 The Judicial Member erred in law in failing to give effect to the statutory command in s 29(3). On the facts disclosed in the Judicial Member’s reasons, the only conclusion open was that provision of particulars in accordance with these orders would contravene that command.
2 The prohibition on disclosure s 29(3) commands is a blanket one which leaves no room for a distinction between particulars and evidence.
3 Section 29(3) impliedly repealed s 73 to the extent to which it would otherwise apply to an application for a review of any decision to refuse to grant a licence or to revoke a licence that was made on the ground of the applicant not being a fit and proper person.
30 As noted, Gray’s case went to particulars of evidence.
31 Here the appellants are seeking procedural information. They do not seek any particulars of evidence. They distinguish Gray’s case on that basis.
32 They submit the Tribunal must, as a matter of procedural fairness, ensure that the terms of s 59 are strictly applied. One, it must ensure that any application being made ‘before the expiry of the period referred to in section 58 (1)’ (28 days), and therefore in this case not later than 10 September 2009. Two, in dealing with the application, it must apply the criteria set out in sub-section (2). Further, they submit that the disclosure of these matters does not infringe the restriction imposed by s 29(3).
33 Further, they argue that s 29(3) is inapplicable to information of the kind to which ss 15(6) and (7) apply if it has come into existence since the making by the Commissioner of the revocation decision. This construction is said to flow from the terms of s 29(3)(a) and s 15(6). Section 29(3)(a) prohibits the ADT from disclosing the existence or content of any criminal intelligence report or other criminal information ‘referred to in section 15(6)’. Section 15(6), it is said, confines its operation to information held by the Commissioner at the time of the Commissioner’s decision. This follows, it is said, from the following words: ‘the Commissioner may have regard to any criminal intelligence report or other criminal information held in relation to the applicant’. The word ‘held’, it is said, imposes a temporal limitation.
34 The result, therefore, is that the ADT is not constrained in any way by s 29(3) in relation to ‘after-acquired’ information, i.e. information with the relevant characteristics (‘criminal intelligence report’, ‘other criminal information’) upon which the Commissioner proposes to rely which post-dates the Commissioner’s decision.
35 The ordinary scheme of the Act applies, they submit, in regard to after-acquired information.
36 The Commissioner’s submission both below and before the Appeal Panel is that the making of a s 59 application is in the nature of a confidential procedure available to the administrator and is not to be revealed to the review applicant, unless the administrator allows it. The submission is seen as reinforced by s 29(3) of the SI Act. Consequently the Tribunal must deal with any objection under s 59 without informing the review applicant. Directions that subvert that position are not permissible.
Consideration
37 Procedural Fairness. Section 75(1) requires that ‘If proceedings before the Tribunal are to be determined by holding a hearing, the hearing is to be open to the public’.
38 The Tribunal would ordinarily give to interested persons notice of any hearing in connection with the determination of an application for review and publicise it in the daily law list.
39 The obligation to furnish relevant documents (s 58) subject to exclusions effected by the administrator (s 58(7)) or objections allowed by the Tribunal (s 59(2)) is a key aspect of the process of determination of an application for review. The issue in this case concerns the degree of notice and disclosure that the Tribunal should give in relation to a s 59 application.
40 The Commissioner, in effect, argues that he is entitled to make a secret, ex parte application to the Tribunal for an order under s 59 of the ADT Act in cases to which the restriction in s 29(3) of the SI Act applies. The Commissioner submits that no information about that occurrence is ever to be supplied by the Tribunal to the review applicant without the Commissioner’s approval.
41 Such an interpretation would give rise to a major transgression of a review applicant’s right to procedural fairness, offends the principle of ‘open justice’ reflected in s 75(1), and should not lightly be adopted.
42 In Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476 at [30], Gleeson CJ said:
… [C]ourts do not impute to the legislature an intention to abrogate or curtail fundamental rights or freedoms unless such an intention is clearly manifested by unmistakable and unambiguous language. General words will rarely be sufficient for that purpose. What courts will look for is a clear indication that the legislature has directed its attention to the rights or freedoms in question, and has consciously decided upon abrogation or curtailment … [I]n the absence of express language or necessary implication, even the most general words are taken to be "subject to the basic rights of the individual".
43 The question of whether ex parte applications can be made in secret by a government administrator has arisen in applications under criminal assets confiscation legislation and for the making of public interest immunity claims in response to discovery notices or subpoenas: see, for example, Australian Securities and Investments Commissioner v P Dawson Nominees [2008] FCAFC 123; (2008) 169 FCR 227, esp at [53]-[64] (public interest immunity); Director of Public Prosecutions v Vu (2006) 14 VR 249; and Hussain v Minister for Foreign Affairs [2008] FCAFC 128 (confiscation). The Courts have shown great reluctance to deprive the affected party of any notice of the application.
44 In Hussain, Weinberg J, on behalf of the Full Court, said after reviewing the relevant authorities:
What emerges from the relevant authorities is that courts are cautious in denying any party to a judicial proceeding the opportunity to be heard or to know the case against that party. Nonetheless, there are circumstances in which requirements of natural justice can be overridden.
45 The present appeal raises the question of the scope of the command in s 29(3) in respect of the Tribunal’s notice procedures.
46 While this decision was reserved, the Court of Appeal delivered judgment in another case involving the present parties, AVS Group of Companies Pty Ltd v Commissioner of Police [2010] NSWCA 81 (15 April 2010). Campbell JA referred to the relationship between s 58 and s 59, and their connection to s 29(3) of the SI Act. His Honour contrasted the present review scheme with that which applied when security industry licensing appeals went to the Local Court, and said:
145 The nature of a right of review in the Tribunal of a decision to revoke a licence is quite different to the previous right of appeal to a magistrate. There is a statutory obligation on the Commissioner, pursuant to section 58 ADT Act, to provide the Tribunal with all relevant information (unless excused from that obligation under section 59). That has the effect of altering the situation that had existed under the previous appeal system, where an appeal might be decided with highly relevant information not taken into account. To the extent that the Commissioner in making the original decision could take into account section 15(6) information without disclosing it to the licensee, so the Tribunal is placed in a position to do the same. Further, even if the Commissioner had an obligation, arising from the laws of natural justice, to disclose the substance of troubling information to the licensee and seek submissions about it before deciding to revoke the licence (a matter which I expressly decline to decide), section 29(3) makes clear that the Tribunal is not subject to any such obligation in determining an application for review. To that extent, section 29(3) effects an implied partial repeal of the Tribunal’s obligation to act in accordance with natural justice, arising under section 73(2) ADT Act: Commissioner of Police v Gray at [111]-[112], 29.
47 The question that we have to consider goes to whether the ‘implied partial repeal of the Tribunal’s obligation to act in accordance with natural justice’ precludes the Tribunal from giving notice of the making of a s 59 application for lodgment, and associated procedural information.
48 Meaning to be given to Section 29(3). Section 29(3) protects from ‘disclosure’ ‘the existence’ of the information protected by the provision. Neither of these words is defined. They should be given their natural meaning.
49 ‘Disclosure’, ordinarily, connotes the revelation of information that is otherwise not known to the recipient. Campbell JA (Beazley JA, Hodgson JA concurring) said in Nakhl Nasr v New South Wales [2007] NSWCA 101 at [127]:
127 … The essence of disclosure of information is making known to a person information that the person to whom the disclosure is made did not previously know: R v Skeen & Freeman (1859) Bell 97; 169 ER 1182 ( “uncovering … discovering … revealing … imparting of what was secret … [or] telling that which had been concealed” ); Foster v FederalCommissioner of Taxation (1951) 82 CLR 606 at 614-5 ( "... a statement of fact by way of disclosure so as to reveal or make apparent that which (so far as the "discloser" knows) was previously unknown to the person to whom the statement was made" ); R v Gidlow [1983] 2 Qd R 557 at 559 ( “telling that which has been kept concealed” ); Dun & Bradstreet (Australia) Pty Ltd v Lyle (1977) 15 SASR 297 at 299; A-G v Associated Newspapers Ltd [1994] 2 AC 238 at 248 (“ to open up to the knowledge of others” ); Real Estate Opportunities Limited v Aberdeen Asset Managers Jersey Limited [2007] EWCA Civ 197 at [78] ( “the revelation of information for the first time” ).
50 ‘Existence’ is a word with a broad meaning. It is ‘the state or fact of existing; being’ (Macquarie Dictionary, 4th ed. 2005).
51 In our view the words ‘disclose’ and ‘existence’, when read in context, are limited by the object of those words, i.e. ‘any criminal intelligence or other criminal history information’. The command in s 29(3) is addressed to whether any conduct of the Tribunal might reveal something of a substantive nature about the holding of information of that kind, or its contents. In our opinion, read together, and adopting some of the language used in the case-law, the words ‘disclose … the existence of [the specified information]’, connotes the revealing or making apparent to the recipient of the fact that the Commissioner holds information of the specified type in connection with the review applicant in circumstances where that has not been made known already.
52 The express words do not go so far as to command the Tribunal not to make known a s 59 application. In our view, the actual words used should not be read so widely as to give rise to an ‘implied repeal’ of the ordinary requirements of procedural fairness.
53 In our view, the fact of the making of a s 59 application, its date, and whether the application was granted or refused (or otherwise dealt with) does not fall into the area of the implied repeal effected by s 29(3).
54 On the other hand, it follows (and is in line with Gray’s case) that any possibility of substantive disclosure of the actual existence of protected information (or the nature of its contents) is controlled by s 29(3).
55 Accordingly, were the review applicant to move for disclosure of any particulars of the application, the Commissioner would have to be given the opportunity to indicate his attitude. It may be that the parties could be encouraged to discuss between themselves the use of the special advocate procedure. As to which, see AVS Group of Companies Pty Limited and Ors v Commissioner of Police and Anor [2010] NSWSC 109 (Schmidt J) at [74].
56 As will be seen, as a matter of law we do not think that s 29(3) applies to the Tribunal’s ordinary practice of giving basic details of its proceedings such as the making of an ex parte application, the date of the application and its outcome. Issues such as these are, in our view, ordinarily to be dealt with by way of a case-specific suppression application under s 75(2).
57 Commissioner’s Construction Not Applicable to this Case. If we are wrong in this conclusion, and the wider construction pressed by the Commissioner is correct, we do not think that this case is one which on its facts fits within that wider construction of s 29(3).
58 The difficulty in this case is whether any ‘disclosure’ of the ‘existence’ of the protected information has taken place. The Tribunal below, in its reasons, did not refer in this regard to the content of the statements of reasons, especially the first one.
59 That statement, which accompanied the notice of revocation, has been set out earlier in these reasons. The statement began by referring to the heads of power being exercised, most importantly ss 26(1A) and 15(1) (which together impose the duty to revoke if not a fit and proper person). Then, it referred to the power of the Commissioner to have regard to criminal intelligence information and other criminal history, setting out the material text of ss 15(6) and 15(7).
60 In our view, any notice of revocation that is silent in relation to the allegations it relies upon but then in its terms refers to ss 15(6) and (7) would be likely to be understood by the recipient as indicating that the Commissioner must have had regard to information of the kind to which ss 15(6) and 15(7) refer. The recipient would be likely to conclude that it was for that reason that no further particulars were given explaining the adverse assessment of character and reputation.
61 Furthermore, where there is a limited filing of material under s 58 that contains no material going to the substance of the case against the review applicant, a review applicant in a security licensing setting would be likely to infer that information that is protected from disclosure is being relied upon, i.e. the kind of information to which ss 15(6) and (7) refer.
62 In our view, therefore, even on the Commissioner’s construction the Tribunal would not be breaching the provision in simply informing a review applicant that a s 59 application has been received, and giving basic procedural information about the application.
63 Whether s 29(3) applicable to information that post-dates the Commissioner’s decision. The other issue canvassed in this case related to whether s 29(3) had any effect on ‘after-acquired’ information, i.e. information acquired by the Commissioner after the making by the Commissioner of the revocation decision. The interpretation for which the appellants contend places a strict temporal limitation on the word ‘held’, a past participle, in s 15(6) and consequently limits s 29(3)’s constraints to information so ‘held’. The submissions referred, in illustration of the argument to a US case, Florida Department of Revenue v Piccadilly Cafeterias (2008) 128 S Ct 2326.
64 Section 63 of the ADT Act provides relevantly:
63 Determination of review by Tribunal
(1) In determining an application for a review of a reviewable decision, the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it, including the following:
(a) any relevant factual material,
(b) any applicable written or unwritten law.
(2) For this purpose, the Tribunal may exercise all of the functions that are conferred or imposed by any relevant enactment on the administrator who made the decision.
65 It is well accepted that the relevant material can include any material that has come into existence, or discovered, after the date of the administrator’s decision: Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577.
66 The appellants’ submission is that the Tribunal would not be constrained in any way by s 29(3), and the ordinary notice requirements would apply to so much of a s 59 application as involves after-acquired information.
67 Such an interpretation would strain the interaction between ss 29(3) and 15(6) in a way which would defeat the obvious objective of those provisions. The Parliament is, we think, unlikely to have intended that the restriction imposed by s 29(3) did not continue to apply to information of the same character that came into existence after the making of the decision. The provisions should be read together, and in a way that allows them to operate harmoniously.
68 In our view, the words ‘referred to in section 15(6)’ should be read in the way the Commissioner submits, as being concerned with information of the kind to which s 15(6) refers, including information that comes into existence before the Tribunal, which stands in the shoes of the Commissioner for this purpose, and makes its decision. (To the extent that the US case may be seen as an analogy, our view is similar to the approach taken by the minority judges there.)
Conclusion
69 The position, therefore, is that, insofar as the Tribunal below considered that it did not have power to make the directions sought, or that it could not give some of the information sought of its own volition, it was in error. In these circumstances, it is appropriate to extend leave to the merits.
Disposition of Appeal
70 The issues addressed by this case have been strongly contested. Our judgment upholds the appeal, though we do not see it as necessary to achieve the result sought by the appellants by way of directions to the respondent. The information can be provided directly by the Registrar of the Tribunal or the Tribunal itself as part of the Tribunal’s responsibility to ensure fairness in its procedures.
71 In our view, the appellants are entitled to the information sought in respect of item (a) of the proposed directions, i.e. the date of any application by the respondent for orders under s 59. The giving of that information makes superfluous the request under item (b).
72 Items (c) and (d) fall into a different category. Impliedly they seek information as to whether any order has been made, and then ask expressly for information as to whether the documents came into existence before or after certain dates.
73 In our view, in the ordinary course, a review applicant is entitled to be informed that an order has issued under s 59, and its date. Whether any further information should be given is a matter upon which the administrator should be heard.
74 We propose the following order. We will defer its operation for the appeal period, 28 days, in case the Commissioner wishes to appeal.
Order
1. Appeal allowed.
2. Direct the Registrar, once 42 days from the delivery of this decision has expired or earlier if the Commissioner agrees, to inform the applicants for review of the making of any application by the Commissioner for an order under s 59 and its date, and whether there has been an order and its date.
20/05/2010 - Order 2 of the Appeal Panel made 20 April 2010 was varied on 17 May 2010 to extend time and to substitute for '28', '42'. - Paragraph(s) Cover sheet and order 2
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