Commissioner of Police v AVS Group of Companies Pty Ltd - [2009] NSWSC 1408

No judgment structure available for this case.

CITATION: Commissioner of Police v AVS Group of Companies Pty Ltd; AVS Group of Companies Pty Ltd v Commissioner of Police [2009] NSWSC 1408

HEARING DATE(S): 25 August 2009

JUDGMENT DATE :
16 December 2009

JURISDICTION: Common Law

JUDGMENT OF: Rothman J

DECISION:
(i) To the extent necessary, leave be granted to the Commissioner of Police to appeal the decision of the Administrative Decisions Tribunal, in the appeal by AVS Group of Companies Pty Ltd, ASET Security and Training Pty Ltd, and Mr Peter Sleiman, matter 099045, made on 11 August 2009;
(ii) The decision of the Administrative Decisions Tribunal, in the appeal by AVS Group of Companies Pty Ltd, ASET Security and Training Pty Ltd, and Mr Peter Sleiman, matter 099045, made on 11 August 2009, be quashed;
(iii) The aforesaid appeal be remitted to the Administrative Decisions Tribunal to deal with in accordance with law;
(iv) The proceedings commenced in his Court by AVS Group of Companies Pty Ltd, ASET Security and Training Pty Ltd, and Mr Peter Sleiman, being Case number 30075 of 2009, be dismissed;
(v) Each of AVS Group of Companies Pty Ltd, ASET Security and Training Pty Ltd, and Mr Peter Sleiman, jointly and severally, pay the costs, as agreed or assessed, of the Commissioner of Police, of and incidental to each of the appeal by the Commissioner of Police, being Case number 30071 of 2009, and the proceedings commenced by AVS Group of Companies Pty Ltd, ASET Security and Training Pty Ltd, and Mr Peter Sleiman, being Case number 30075 of 2009;
(vi) Otherwise all proceedings be dismissed.

CATCHWORDS: ADMINISTRATIVE LAW – administrative tribunals – Administrative Decisions Tribunal (NSW) – appeal against decision of Appeal Panel – quashing a refusal of a stay – whether confidential Police intelligence available in stay proceedings without disclosure to other parties - ADMINISTRATIVE LAW – orders in the nature of certiorari – notice of revocation of security licence – multiple-named recipients of notice – alleged ambiguity in notice – alleged inadequacy of reasons – different requirements for reasons under s 26(2) of the Security Industry Act 1997 than under s 49 of the Administrative Decisions Tribunal Act 1997

LEGISLATION CITED: Administrative Decisions Tribunal Act 1997
Interpretation Act 1987
Security Industry Act 1997
Security Industry Amendment Bill 2005
Security Industry Regulation 1998

CATEGORY: Principal judgment

CASES CITED: Avilion Group Pty Ltd v Commissioner of Police [2009] NSWCA 93
Commissioner of Police v Gray [2009] NSWCA 49
Electrolux Home Products Pty Ltd v Australian Workers' Union [2004] HCA 40; 221 CLR 309
Finance Facilities Pty Ltd v Federal Commissioner of Taxation [1971] HCA 12; (1971) 127 CLR 106
International Finance Trust Company Limited v NSW Crime Commission [2008] NSWCA 291
Project Blue Sky Inc & Ors v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355
State of Victoria v Sutton [1998] HCA 56; (1998) 195 CLR 291
Yango Pastoral Company Pty Ltd v First Chicago Australia [1978] HCA 14; (1978) 138 CLR 410

PARTIES:
30071/2009:
Commissioner of Police (Plaintiff)
AVS Group of Companies Pty Ltd (First Defendant)
ASET Security and Training Pty Ltd (Second Defendant)
Peter Sleiman (Third Defendant)
Administrative Decisions Tribunal (Fourth Defendant)
30075/2009:
AVS Group of Companies Pty Ltd (First Plaintiff)
ASET Security and Training Pty Ltd (Second Plaintiff)
Peter Sleiman (Third Plaintiff)
Commissioner of Police (Defendant)

FILE NUMBER(S): SC 30071/2009; 30075/2009

COUNSEL:
30071/2009:
T Lynch / J Clark (Plaintiff)
K Oliver (Defendants)
30075/2009:
K Oliver (Plaintiffs)
T Lynch / J Clark (Defendant)

SOLICITORS:
30071/2009:
Crown Solicitor's Office (Plaintiff)
HPL Lawyers (Defendants)
30075/2009:
HPL Lawyers (Plaintiffs)
Crown Solicitor's Office (Defendant)

LOWER COURT JURISDICTION: Appeal Panel of the Administrative Decisions Tribunal

LOWER COURT FILE NUMBER(S): 099045

LOWER COURT DATE OF DECISION: 11 August 2009

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
ADMINISTRATIVE LAW LIST

ROTHMAN J

16 DECEMBER 2009

30071/2009 Commissioner of Police v AVS Group of Companies Pty Ltd & Ors;
30075/2009 AVS Group of Companies Pty Ltd & Ors v Commissioner of Police
JUDGMENT

1 HIS HONOUR: These proceedings concern the purported revocation of licences held by AVS Group of Companies Pty Ltd (“AVS”), ASET Security & Training Pty Ltd (“ASET”) and Peter Sleiman (collectively these licence holders will be hereinafter referred to as “the appellants”). The Commissioner of Police (“the Commissioner”) purportedly issued a notice revoking the licences on 23 July 2009, through his delegate. No relevant distinction needs to be drawn between the delegate of the Commissioner and the Commissioner and reference will hereinafter be made to the Commissioner.

2 The appellants appealed the revocation to the Administrative Decisions Tribunal (“the Tribunal”) and applied for a stay, which was heard and determined by Magistrate Hennessy, Deputy President of the Tribunal. Her Honour declined to grant the stay. The appellants appealed the decision to refuse a stay and an Appeal Panel of the Tribunal allowed the appeal on the basis that in the initial decision her Honour took account of police intelligence without informing the appellants, which, according to the Appeal Panel, she was not entitled to do. The Commissioner seeks to set aside that decision of the Appeal Panel.

3 In the second set of proceedings the appellants seek to quash the revocation by the Commissioner on the grounds that the revocation notice was invalid, because: it purported to cancel the licence of three persons in one notice; it does not state at all or sufficiently the reasons for revocation, because those reasons are ambiguous; and/or, even if those reasons were not ambiguous, the reasons are inadequate.

4 The Commissioner, while seeking to answer each of the appellants’ contention as to the notice of revocation, submits that the appellants are estopped (by convention) from asserting that the notice of revocation is legally effective, and, alternatively, that as a matter of discretion, the Court would not grant the orders sought by them.

5 Even though the Commissioner’s summons predates the summons filed by the appellants, the Court will deal with the issues raised in the appellants’ summons, before dealing with the issues raised by the Commissioner. Each of the respective proceedings involves a construction of the Security Industry Act 1997, the Security Industry Regulation 1998 and the Administrative Decisions Tribunal Act 1997.

Legislation

6 The most relevant legislative provisions need to be set out in full:

Security Industry Act 1997

9 Classes of licences

10 Master licences

11 Class 1 licences

Firearms Act 1996

12 Class 2 licences

Note:

Firearms (General) Regulation

Firearms Act

15 Restrictions on granting licence-general suitability criteria

26 Revocation of licence

Note:

29 Right to seek review from Administrative Decisions Tribunal

Note:

Administrative Decisions Tribunal Act

Note:

Administrative Decisions Tribunal Act

Administrative Decisions Tribunal Act 1997

8 What is a reviewable decision?

Note:

Privacy and Personal Information Protection Act

49 Duty of administrator to give reasons on request

58 Duty of administrator to lodge material documents with Tribunal where decision reviewed

60 Operation and implementation of decisions pending applications for review

63 Determination of review by Tribunal

64 Application of Government policy

(1) In determining an application for a review of a reviewable decision, the Tribunal must give effect to any relevant Government policy in force at the time the reviewable decision was made except to the extent that the policy is contrary to law or the policy produces an unjust decision in the circumstances of the case. …”

73 Procedure of the Tribunal generally

119 Right of appeal to Supreme Court

Validity of Revocation: Multiple Licence Holders

7 The submission of the appellants on this question relates to the terms of the notification of revocation of licence. The notification is addressed to Peter Sleiman, AVS and ASET at the one address. It gives a date of birth (which presumably relates only to Mr Sleiman) and its opening paragraphs are in the following terms:

“ NOTIFICATION OF REVOCATION OF LICENCE
UNDER THE SECURITY INDUSTRY ACT, 1997

15 July 2009

Peter SLEIMAN

A.V.S Group of Companies Pty Ltd

ASET Security and Training Pty Ltd

[Address Supplied] NSW

[Date Supplied in figures]

I AM OF THE OPINION THAT YOU ARE NO LONGER A FIT AND PROPER PERSON TO HOLD A SECURITY LICENCE.

I CONSIDER THAT IT IS NOT IN THE PUBLIC INTEREST FOR YOU TO CONTINUE TO HOLD A LICENCE.

8 As can be seen from an analysis of s 26 of the Security Industry Act, the Commissioner’s revocation of a licence is performed by serving on the licensee “personally or by post” the revocation notice and the reasons for revoking it. Further, as is clear from that section, it takes effect on service.

9 It is not disputed that the notice was in fact brought to the attention of each of the three appellants and it is conceded that personal service has been effected on each appellant.

10 Essentially, the appellants submit that one notice is not effective to cancel the licence of three persons, because “the language employed” in the legislation, they submit, “is consistently and resolutely singular”. This submission is untenable in light of the provisions of s 8(b) of the Interpretation Act 1987, which defines any word or expression in the singular to include a reference to the word or expression in the plural form, where that word is used in any Act. As a consequence, the singular form used in s 26(2) of the Security Industry Act includes the plural and allows the Commissioner to revoke licences by serving on the licensees notices or a notice stating that the licence is revoked. There is nothing in the provisions of the Security Industry Act, nor in the terms of s 26 thereof, that would create a context in which the Interpretation Act did not apply in that manner.

Ambiguity in Notice

11 The foregoing does not totally answer the submission made by the appellants. They submit, citing the opening substantive paragraph of the revocation notice, recited above, that there exists an ambiguity as to the person to whom notice is being given by the terms of that paragraph.

12 The opening paragraph of the revocation notice refers to “your Class 1ABC2ABD security licence”. As is clear from the provisions of ss 10, 11 and 12 of the Security Industry Act, recited above, that is a reference to a non-corporate person, who holds a licence that allows the person to patrol, protect, watch or guard property while unarmed, to act as a bodyguard, to act as a crowd controller, to act as a consultant, to sell and provide advice in relation to security equipment and to sell services of persons carrying on security activity, and to provide training, assessment or instruction. The only holder of a 1ABC2ABD licence is Mr Sleiman (see Affidavit of Peter Sleiman, 21 August 2009, paragraph 4 and Annexure G).

13 Further, AVS and ASET were the holders of master security licences issued, in the case of AVS on 28 April 2007 (licence number 408499079) and, in the case of ASET, on 11 September 2004 (licence number 408981164). To the extent that it is argued, faintly, that the licence issued to AVS did not render AVS the master licence holder, it does not affect the validity of a notice to AVS that its licence has been revoked. The notice to AVS, obviously, can be operative only to the extent that AVS is a licence holder. But no practical issue results from any such confusion, if there be any. Assuming that the revocation notice was otherwise effective, after it was served AVS did not hold a master licence. One could well imagine a situation where the Commissioner would revoke a licence in circumstances where the licensee was unclear because of some ambiguity in the original grant of the licence.

14 To the extent that a master licence is held in the name of Mr Sleiman then, it seems, the notice has not purported to cancel such a master licence. The notice purports to cancel the master licences held in the name of AVS and ASET only. But it is unnecessary for the Court to determine whether the original licensee was AVS or Mr Sleiman. It would seem, without finally determining the issue, that AVS was the master licence holder and Mr Sleiman was the person whose credentials enabled that master licence to be held.

15 No one has challenged the revocation of any master licence purportedly held by Mr Sleiman and none of the grounds purport to seek a declaration that Mr Sleiman was a licence holder.

Ambiguity of Reasons

16 The submission in relation to the ambiguity of reasons relies on the fact that the revocation notice was addressed to each of the three licensees at one address, which is the principal place of business of ASET but is not an office connected with AVS and its only connection with Mr Sleiman is that it is an address next door to his. Obviously, account must be taken that Mr Sleiman is either a principal or Close Associate of AVS and ASET.

17 As earlier stated, no issue was taken that notice has been given to each of the appellants and personal service has been effected. The issue of the one location, referred to in the revocation notice, is agitated because, it is said, that together with one set of “reasons for revocation” it creates an ambiguity as to why, in the case of each of the appellants, the licence has been revoked.

18 The reasons for the revocation have been recited and extracted above. Given that a “person” includes a corporate entity, there does not seem to be any necessary or reasonably-arising ambiguity. Each of the “reasons for revocation” (namely, that the person has ceased to be fit and proper and that it is not in the public interest) on a proper construction of the revocation notice, applies to each of the licence holders whose licence is purported to be revoked. There is no ambiguity and the ground is untenable.

Inadequacy of Reasons

19 This ground of attack raises a fundamental issue associated with the distinction between the decision that is made and the reasons therefor. The decision that is made by the Commissioner is a decision to revoke the licence pursuant to s 26 of the Security Industry Act. The reasons for the revocation are the formation of the opinion of the Commissioner that the licensees are no longer fit and proper persons and/or that it is not in the public interest for them to continue to hold licences. So much is clear from the terms of the revocation notice.

20 The criticism of the reasons is that the Commissioner does not disclose the basis upon which he formed the opinions described above. Further, although seemingly not raised or pursued with enthusiasm, is that there are necessary steps between the formation of the opinions and the revocation of the licences.

21 Section 15 of the Security Industry Act requires the Commissioner to refuse to grant an application if the applicant is not a fit and proper person and allows the Commissioner to refuse to grant an application if the grant of the licence were to be contrary to public interest. Section 26(1A) of the Security Industry Act requires the Commissioner to revoke a security licence where the Commissioner is satisfied that if the licensee were applying for a new licence the application would be required by the terms of the Security Industry Act to be refused. It also allows the revocation of a licence for a number of other reasons, which are not currently relevant. The satisfaction of the Commissioner that the grant of a licence would be contrary to public interest is a matter derived from s 15(3) of the Act. That provision utilises the term “may refuse”, which would ordinarily be a grant of discretion, especially when compared with the provisions of s 15(1), which refer to the Commissioner refusing an application in terms that he “must refuse” the licence.

22 If the terms of s 15(3) grant a discretionary power, the satisfaction (that a licensee continuing to hold a licence would be contrary to public interest) is not a reason that the application would be required by this Act to be refused. Therefore, if s 15(3) requires an exercise of discretion, the terms of s 26(1A) of the Act are not invoked.

23 One must therefore construe the terms of s 15(3) of the Act. In doing so, the Court adopts the approach to which the High Court of Australia referred to in Project Blue Sky Inc & Ors v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355. In the joint judgment of McHugh, Gummow, Kirby and Hayne JJ, the Court said:

“A legislative instrument must be construed on the prima facie basis that its provisions are intended to give effect to harmonious goals. Where conflict appears to arise from the language of particular provisions, the conflict must be alleviated, so far as possible, by adjusting the meaning of the competing provisions to achieve that result which will best give effect to the purpose and language of those provisions while maintaining the unity of all the statutory provisions. Reconciling conflicting provisions will often require the court ‘to determine which is the leading provision and which the subordinate provision, and which must give way to the other’. Only by determining the hierarchy of the provisions will it be possible in many cases to give each provision the meaning which best gives effect to its purpose and language while maintaining the unity of the statutory scheme.”

24 Further, the joint judgment in Project Blue Sky, supra, referred to a purposive construction derived, ordinarily, from the grammatical meaning of the provision, but not always. It is important to discern the context of the words, the consequences of a literal or grammatical construction and the purpose of the statute, amongst other things: Project Blue Sky at [78]. It is by that process of construction that one determines whether and how a power is to be exercised and the consequences of a failure to exercise it in that way.

25 In discerning the proper construction of s 15(3) of the Act, one must necessarily examine the consequences and the effect of the provision. It is inconceivable that the Commissioner could come to the view that the grant of a licence would be contrary to public interest, yet still grant the licence. As a consequence, the purpose of the legislation can be given effect only by construing s 15(3) as requiring a refusal to grant a licence, if the Commissioner were to come to the opinion there prescribed. This is similar to the process of construction adopted by the High Court of Australia in Finance Facilities Pty Ltd v Federal Commissioner of Taxation [1971] HCA 12; (1971) 127 CLR 106. In that case, the statutory provision provided that the Commissioner (of Taxation) “may allow” a rebate on the satisfaction of certain conditions the last of which was “having regard to all the circumstances, it would be reasonable to allow the further rebate”. The High Court said:

“Dealing with the first point his Honour was naturally impressed by a comparison of s. 46 (3), under which the Commissioner ‘may allow’ a rebate in certain circumstances, with s. 46 (2), under which the taxpayer ‘is entitled’ to a rebate in the circumstances set out in that sub-section, and this is undoubtedly a matter of weight. The difficulty that I have felt in accepting that view lies in the existence of par. (c) in s. 46 (3). Put shortly, the appellant’s argument is that if the Commissioner is satisfied that, having regard to all the circumstances, it would be reasonable to allow a rebate, it cannot be that in the exercise of some further discretion he could refuse to allow that which he is satisfied it would be reasonable to allow, and if he is bound to exercise his power to allow a rebate once par. (c) is satisfied, he must equally be bound to exercise it if the requirements of pars. (a) or (b) are fulfilled. I have come to the conclusion that this submission should be upheld. The words ‘may allow’ are permissive; they empower the Commissioner to do that which he could not otherwise do. But when regard is had to the fact that the sub-section contains par. (c), I am of opinion that, notwithstanding the difference between the wording of s. 46 (2) and that of s. 46 (3), the Commissioner is bound to exercise the power given to him by s. 46 (3) if he is satisfied that the requirements of any one of the three paragraphs are satisfied.”(Per Owen J at 138.)

26 In this case, while there are not alternatives within the particular provisions of s 15(3), the subsection is an alternative criterion and it is impossible to imagine, as earlier stated, that the Commissioner could form that opinion and the purposes of the Act would nevertheless allow the grant of such a licence.

27 As a consequence of the foregoing, the formation of an opinion that the grant of a licence would be contrary to public interest requires the Commissioner to refuse the grant of that licence. That is the proper interpretation of s 15(3) of the Security Industry Act. Different issues, not presently relevant, may arise in relation to s 15(2) of the Act.

28 Therefore, s 26(1A) of that Act requires the Commissioner to revoke a licence, already held, if the Commissioner comes to the view that it would be contrary to the public interest for the licensee to continue to hold it. Further, the express terms of s 15(1) of the Act make it clear that the Commissioner is required to refuse an application for a licence if the applicant is not a fit and proper person (s 15(1)(a) of the Act) and, therefore, s 26(1A) again requires the revocation of a licence, if the Commissioner were to form the opinion that a licensee is not, at the time that the opinion is formed, a fit and proper person to hold a security licence of the kind held.

29 Each of the reasons given for the revocation of the licence require the revocation and the jurisdictional fact that requires revocation is the holding of the opinion by the Commissioner. Once, as a fact, the Commissioner (or relevantly the Commissioner’s delegate) is satisfied or considers that the licensee is not a fit and proper person or the holding of the licence by the licensee would be contrary to public interest, the Commissioner has no alternative but to revoke the licence.

30 That is not to say that the mere statement of the Commissioner’s state of mind is an adequate or appropriate statement of the reasons that the licence has been revoked. The decision maker may be required to explain the process by which the conclusion has been reached. This will include the criteria and material taken into account in the formation of that opinion. Ordinarily, the statement of a conclusion as to the formation of an opinion or the statement of satisfaction would be an insufficient statement of reasons for the action of an officer or administrative tribunal. It is certainly insufficient as a statement of reasons of a court: International Finance Trust Company Limited v NSW Crime Commission [2008] NSWCA 291 (the authority of which, on this point, is not affected by the judgment of the High Court on constitutional issues). But the adequacy of reasons is very much dependent upon the scope of the power being exercised and the nature of the steps available thereafter.

31 The appellants refer to and rely upon the provisions of s 49 of the Administrative Decisions Tribunal Act 1997 (“ADT Act”) and suggest that the reasons provided by the Commissioner are not an adequate statement of the reasons required by s 49(1) of the ADT Act. The purpose of s 49 of the ADT Act is to facilitate the review by the Tribunal, which is required to decide the correct and preferable decision, having regard to the material then before it: s 63 of the ADT Act. From that review, there is an appeal to an Appeal Panel under ss 112 and 113 of the ADT Act. From the determination of the Appeal Panel, with some exceptions, there is a right of appeal, on a question of law, to the Supreme Court. Section 49 of the ADT Act requires, on written request, the provision of reasons. It seems that the reasons to which s 49 of the ADT Act refers are different from the reasons to which s 26(2) of the Security Industry Act refers.

32 Section 26(2) of the Security Industry Act refers to the reasons to which ss 26(1), 26(1A) and 26(2) refer and in turn, relevantly, to the satisfaction of the Commissioner under s 15(1)(a) and s 15(3) of the Security Industry Act.

33 Given the right of review to the Tribunal and the requirements under the ADT Act to provide further reasons, if there were a request in writing, the reasons to which s 26(2) of the Security Industry Act refers are adequately stated by the conclusions, which the Commissioner has, in this case, stated.

34 By that process, the Commissioner indicates the basis of the revocation and allows the licensee to consider whether a challenge will be made to his decision.

35 As a consequence of the foregoing, the statement of opinion and satisfaction in the notice of revocation is sufficient statement for the reasons of revocation as required by s 26(2) of the Security Industry Act. This ground of challenge fails and the notice of revocation was valid. Further, it is at least arguable that the failure to provide reasons, as required by s 26(2) of the Security Industry Act, would not invalidate a notice that was otherwise valid: see State ofVictoria v Sutton [1998] HCA 56; (1998) 195 CLR 291; Yango Pastoral Company Pty Ltd v First Chicago Australia [1978] HCA 14; (1978) 138 CLR 410. The remedy, in that case, if a party were wanting to appeal, may well lie with s 49 of the ADT Act.

Confidential Evidence

36 The only remaining issue arises from the appeal by the Commissioner. At the hearing of the original review by the ADT, her Honour had regard to a criminal intelligence report or other confidential material, which her Honour received and refused to disclose to the appellants. The Appeal Panel determined that, in the course of an interlocutory proceeding relating to a stay, her Honour had no power or ability to take account of material without disclosing its contents.

37 The Appeal Panel, in its decision of 11 August 2009, was required to deal with the submission of the appellants that the provisions of s 29(3) of the Security Industry Act did not apply to ancillary or interlocutory proceedings, such as those for a stay pending the determination of a merit review. The Appeal Panel accepted the submission of the appellants and overturned the decision of her Honour, because she had relied upon such material. The Commissioner appeals that decision.

38 The Appeal Panel recited the provisions of sections 15 and 29 of the Act, before reaching the conclusion that s 15 of the Act applied only to substantive proceedings. The Appeal Panel referred to the judgment of the Court of Appeal in Commissioner of Police v Gray [2009] NSWCA 49 and particularly to the statement that the provisions for confidential evidence impinged upon ordinary principles of natural justice and operated to disentitle an applicant to knowledge of both the existence and content of the material. The Appeal Panel referred to the practice of taking such evidence in camera, although, it would seem, that such a practice would at least disclose the existence of such confidential material, contrary to the provisions in s 29(3).

39 The Appeal Panel referred to the submission that the process of granting a stay and that of determining a merit review were quite different. They recited the submission, seemingly with approval, that a stay is aimed at maintaining, where possible, the status quo, so that the ultimate merits review is not rendered nugatory. The Appeal Panel referred to authority for such a proposition. They also referred to the reasons for judgment of the Court of Appeal in Avilion Group Pty Ltd v Commissioner of Police [2009] NSWCA 93 to the effect that an interlocutory proceeding and the substantive proceeding were significantly different.

40 Lastly, the Appeal Panel construed the opening words of s 15(6), being the words “the purpose of determining whether an applicant is a fit and proper person”, as confining the capacity to use confidential material to the substantive question, rather than any ancillary question. The Appeal Panel held that when the Tribunal was “deciding whether or not to grant a stay, the Tribunal is not making a determination as to the character of the appellants”, which is the only purpose for which the Commissioner may have regard to such criminal intelligence reports.

41 As earlier stated, the modern principles of construction of statutes require the ascertainment, to the extent possible, of uniform goals and the harmonious operation of the statute. In some circumstances, this may require the ascertainment of which of two, otherwise conflicting, provisions is predominant. The Tribunal, with great respect, has correctly outlined an important tool for the construction of provisions, namely, that statutes will be construed so as to accord with fundamental rights and the principles of natural justice. However, such a construction will give way to express statutory provisions and the clear intention of the legislature. Moreover, there is a distinction between the approach to be taken when the legislature has clearly interfered with common-law rights and the task that is before the courts is the determination of the extent to which such rights have been the subject of interference.

42 In Electrolux Home Products Pty Ltd v Australian Workers’ Union [2004] HCA 40; 221 CLR 309, the High Court had occasion to look at this particular principle. His Honour, Gleeson CJ, said:

Electrolux

In this instance, there is a clear and unambiguous curtailment of rights and the only issue is one capable of being resolved by a construction of the legislative text and purpose, rather than resort to presumptions based upon the rule of law: see Electrolux, supra at [20]-[23].

43 The clear and express purpose of s 15(6) of the Security Industry Act is to allow the Commissioner of Police to pay regard to criminal intelligence that the legislature has determined, in the public interest, ought not be shown to an applicant or their representatives. As such, and as the Tribunal makes clear, these provisions impinge significantly on the rules of natural justice. They do so, because the legislature has determined that it is appropriate.

44 The terms of s 29(3) of the Security Industry Act are intended to ensure that the material relied upon by the Commissioner of Police remains confidential. The Tribunal has determined that, because the appeal is against the refusal of a stay, and because her Honour was dealing with a stay, she was not “determining an application for a review of the decision ... to revoke the licence”. The proceedings before her Honour were proceedings being an application for a review of a decision to revoke the licence and the stay was part of that process. The exercise of discretion reposed in the Tribunal by the provisions of s 60(2) of the ADT Act is to grant such stay “as [the Tribunal] considers appropriate to secure the effectiveness of the determination of the application.” As such, the proceedings for a stay form part of the process by which the Tribunal determines an application for a review of the decision to revoke, and the provisions of s 29(3) of the Security Industry Act apply.

45 Moreover, even though an appeal against the decision to stay (or refuse the stay) may not itself be an ancillary or interlocutory process (see Avilion, supra), it is still part of the process by which the Tribunal determines an application for a review of the decision to revoke the licence. In those circumstances, s 29(3) of the Security Industry Act would continue to apply to the appeal and to the proceedings before the Appeal Panel. Both the initial review proceedings, and proceedings before the Appeal Panel, are properly referred to as proceedings of the Administrative Decisions Tribunal, and each are required to operate under the injunction in s 29(3), even at the interlocutory stage or on appeal therefrom.

46 Further, the basis for the formation of the Commissioner’s opinion, and the strength of the material, must be a factor relevant to the grant of the stay and the effect of the Appeal Panel’s construction would be to render nugatory the prohibition in s 29(3) if the material was, as it should be, considered at the grant of the stay.

47 An example, albeit hypothetical, may better explain the problem. Assume police intelligence, accepted by the Tribunal, demonstrated that security licences (and accompanying firearm licences) were to be used for an impending criminal act, e.g. an act of terrorism, or the importation of drugs, but the continuing police investigation would be jeopardised by the disclosure of the intelligence. Also assume that otherwise there was no material on which the revocation opinion could rationally be based.

48 The Appeal Panel’s decision would allow the review by the Tribunal and any internal appeal therefrom to have regard to the material, but no stay proceedings could utilise the material without disclosing it. This must be inconsistent with the purpose of s 29(3) of the Act.

49 This is consistent with the result in Commissioner of Police New South Wales v Gray [2009] NSWCA 49 in which the Court considered the operation of s 29(3) of the Security Industry Act in a slightly different context. At [106] McColl JA, with whom Giles and Tobias JJA agreed said:

“Once the claim is established, s 29(3)(a) operates to disentitle an applicant to knowledge of both the ‘existence and content’ of any s 15(6) material for the purpose of the external review. The applicant is thus denied access to materials which would otherwise be made available pursuant to s 58(5) and/or by the application of the principles of natural justice and procedural fairness in s 73. Nevertheless the Tribunal is required by s 63 to take it into account in its deliberations.”

50 This is also consistent with the purpose outlined by the Minister in the Second Reading Speech to the Security Industry Amendment Bill 2005 in which the Minister said:

“When the Commissioner relies on Police intelligence to refuse a licence application, the Bill will also protect that intelligence from being released to unsuccessful applicants if they appeal to the Administrative Decisions Tribunal.

This provision is not designed to circumvent the appeals process, or hinder the ADT or the Courts in the exercise of their review functions. These bodies will still have the same opportunity to consider and weigh the probative value of the intelligence the Commissioner relied on to make his decision.

Parliamentary Debates

51 Lastly, it is necessary to deal with the submission that leave to appeal is necessary because the decision is an interlocutory decision: s 119(1A) of the ADT Act. The appeal is an appeal against the refusal to grant a stay and the substantive matter before the Appeal Panel was the correctness of that refusal. The Appeal Panel decision was a final decision in relation to the appeal: Avilion Group Pty Ltd v Commissioner of Police [2009] NSWCA 93. If that analysis be wrong, I would grant leave. Error of law is evident in the reasons for decision, which error was determinative of the outcome of the decision and, in the absence of an appeal orders in the nature of certiorari would issue. It is therefore appropriate that leave be granted.

Conclusions

52 On the basis of the foregoing, the notice of revocation of licence by the Commissioner was valid and effective against each of the appellants. In the case of Mr Sleiman, the notice revoked his security licence, and, in the case of AVS and ASET, the notice revoked any master licence held by each or in the name of each.

53 Further, the decision of the Tribunal to quash the stay granted by her Honour, Magistrate Hennessy, is affected by error of law, in that the Tribunal took the view, wrongly, that her Honour was not entitled to take account of (and/or have regard to) confidential material, being police intelligence reports, without disclosing it to the appellants.

54 The Court makes the following orders:

(i) To the extent necessary, leave be granted to the Commissioner of Police to appeal the decision of the Administrative Decisions Tribunal, in the appeal by AVS Group of Companies Pty Ltd, ASET Security and Training Pty Ltd, and Mr Peter Sleiman, matter 099045, made on 11 August 2009;

(ii) The decision of the Administrative Decisions Tribunal, in the appeal by AVS Group of Companies Pty Ltd, ASET Security and Training Pty Ltd, and Mr Peter Sleiman, matter 099045, made on 11 August 2009, be quashed;

(iii) The aforesaid appeal be remitted to the Administrative Decisions Tribunal to deal with in accordance with law;

(iv) The proceedings commenced in his Court by AVS Group of Companies Pty Ltd, ASET Security and Training Pty Ltd, and Mr Peter Sleiman, being Case number 30075 of 2009, be dismissed;

(v) Each of AVS Group of Companies Pty Ltd, ASET Security and Training Pty Ltd, and Mr Peter Sleiman, jointly and severally, pay the costs, as agreed or assessed, of the Commissioner of Police, of and incidental to each of the appeal by the Commissioner of Police, being Case number 30071 of 2009, and the proceedings commenced by AVS Group of Companies Pty Ltd, ASET Security and Training Pty Ltd, and Mr Peter Sleiman, being Case number 30075 of 2009;

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Citations

Commissioner of Police v AVS Group of Companies Pty Ltd [2009] NSWSC 1408

Most Recent Citation

Cases Citing This Decision

6

Commissioner of Police v Sleiman & AVS Group of Companies Pty Ltd & Ors [2011] NSWCA 21

AVS Group of Companies Pty Ltd v Commissioner of Police [2010] NSWCA 81

AVS Group of Companies Pty Ltd & Anor v Commissioner of Police & Anor AVS Group Australia Pty Ltd & Anor v Commissioner of Police & Anor [2010] NSWSC 447

Cases Cited

10

Statutory Material Cited

5

Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28

Amalgamated Society of Engineers v Adelaide Steamship Co Ltd [1920] HCA 54

Finance Facilities Pty Ltd v Federal Commissioner of Taxation [1971] HCA 12

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CITATION:	Commissioner of Police v AVS Group of Companies Pty Ltd; AVS Group of Companies Pty Ltd v Commissioner of Police [2009] NSWSC 1408
HEARING DATE(S):	25 August 2009
JUDGMENT DATE :	16 December 2009
JURISDICTION:	Common Law
JUDGMENT OF:	Rothman J
DECISION:	(i) To the extent necessary, leave be granted to the Commissioner of Police to appeal the decision of the Administrative Decisions Tribunal, in the appeal by AVS Group of Companies Pty Ltd, ASET Security and Training Pty Ltd, and Mr Peter Sleiman, matter 099045, made on 11 August 2009; (ii) The decision of the Administrative Decisions Tribunal, in the appeal by AVS Group of Companies Pty Ltd, ASET Security and Training Pty Ltd, and Mr Peter Sleiman, matter 099045, made on 11 August 2009, be quashed; (iii) The aforesaid appeal be remitted to the Administrative Decisions Tribunal to deal with in accordance with law; (iv) The proceedings commenced in his Court by AVS Group of Companies Pty Ltd, ASET Security and Training Pty Ltd, and Mr Peter Sleiman, being Case number 30075 of 2009, be dismissed; (v) Each of AVS Group of Companies Pty Ltd, ASET Security and Training Pty Ltd, and Mr Peter Sleiman, jointly and severally, pay the costs, as agreed or assessed, of the Commissioner of Police, of and incidental to each of the appeal by the Commissioner of Police, being Case number 30071 of 2009, and the proceedings commenced by AVS Group of Companies Pty Ltd, ASET Security and Training Pty Ltd, and Mr Peter Sleiman, being Case number 30075 of 2009; (vi) Otherwise all proceedings be dismissed.

CATCHWORDS:	ADMINISTRATIVE LAW – administrative tribunals – Administrative Decisions Tribunal (NSW) – appeal against decision of Appeal Panel – quashing a refusal of a stay – whether confidential Police intelligence available in stay proceedings without disclosure to other parties - ADMINISTRATIVE LAW – orders in the nature of certiorari – notice of revocation of security licence – multiple-named recipients of notice – alleged ambiguity in notice – alleged inadequacy of reasons – different requirements for reasons under s 26(2) of the Security Industry Act 1997 than under s 49 of the Administrative Decisions Tribunal Act 1997
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Interpretation Act 1987 Security Industry Act 1997 Security Industry Amendment Bill 2005 Security Industry Regulation 1998
CATEGORY:	Principal judgment
CASES CITED:	Avilion Group Pty Ltd v Commissioner of Police [2009] NSWCA 93 Commissioner of Police v Gray [2009] NSWCA 49 Electrolux Home Products Pty Ltd v Australian Workers' Union [2004] HCA 40; 221 CLR 309 Finance Facilities Pty Ltd v Federal Commissioner of Taxation [1971] HCA 12; (1971) 127 CLR 106 International Finance Trust Company Limited v NSW Crime Commission [2008] NSWCA 291 Project Blue Sky Inc & Ors v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 State of Victoria v Sutton [1998] HCA 56; (1998) 195 CLR 291 Yango Pastoral Company Pty Ltd v First Chicago Australia [1978] HCA 14; (1978) 138 CLR 410
PARTIES:	30071/2009: Commissioner of Police (Plaintiff) AVS Group of Companies Pty Ltd (First Defendant) ASET Security and Training Pty Ltd (Second Defendant) Peter Sleiman (Third Defendant) Administrative Decisions Tribunal (Fourth Defendant) 30075/2009: AVS Group of Companies Pty Ltd (First Plaintiff) ASET Security and Training Pty Ltd (Second Plaintiff) Peter Sleiman (Third Plaintiff) Commissioner of Police (Defendant)
FILE NUMBER(S):	SC 30071/2009; 30075/2009
COUNSEL:	30071/2009: T Lynch / J Clark (Plaintiff) K Oliver (Defendants) 30075/2009: K Oliver (Plaintiffs) T Lynch / J Clark (Defendant)
SOLICITORS:	30071/2009: Crown Solicitor's Office (Plaintiff) HPL Lawyers (Defendants) 30075/2009: HPL Lawyers (Plaintiffs) Crown Solicitor's Office (Defendant)

LOWER COURT JURISDICTION:	Appeal Panel of the Administrative Decisions Tribunal
LOWER COURT FILE NUMBER(S):	099045
LOWER COURT DATE OF DECISION:	11 August 2009