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

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Commissioner of Police v Sleiman & AVS Group of Companies Pty Ltd & Ors [2011] NSWCA 21
Hearing dates: 20 October, 21 October 2010
Decision date: 21 February 2011
Before: Allsop P at 1; Handley AJA at 2; Sackville AJA at 3
Decision:
CA 2009/298022
(Appeal and Cross-Appeal)
1. Grant leave to the Commissioner to appeal from the decision of Schmidt J on 26 February 2010.
2. Direct the Commissioner to file within seven days an amended notice of appeal which incorporates a claim for an order setting aside Declaration 1 made by Schmidt J on 26 February 2010.
3. Allow the appeal.
4. Set aside the declarations and orders made by Schmidt J on 26 February 2010.
5. In lieu thereof, order that:
(a) The proceedings be dismissed.
(b) AVS pay the Commissioner's costs of the proceedings.
6. Order AVS to pay the Commissioner's costs of the appeal (including the application for leave to appeal).
7. Grant leave to AVS to cross-appeal from the decision of Schmidt J on 26 February 2010.
8. Direct AVS to file its amended notice of cross-appeal within seven days.
9. Dismiss the cross-appeal.
10. Order AVS to pay the Commissioner's costs of the cross-appeal (including the application for leave to cross-appeal).
11. AVS, if otherwise qualified, to have a certificate under the Suitors Fund Act 1951 (NSW) in respect of the appeal.
SC 2010/110137
(Removed Proceedings)
1. Dismiss the summons filed by AVS on 4 May 2010.
2. Order AVS to pay the Commissioner's costs of the summons.
Grant leave in all matters to the parties to file within fourteen days short minutes of any further orders they consider appropriate to deal with any interim orders that may still be in force.
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords:
ADMINISTRATIVE LAW - revocation of security licence by Commissioner of Police - application for review of decision to the Administrative Decisions Tribunal ("ADT") - ADT required by s 29(3) of Securities Industries Act 1997 (NSW) ("SI Act") to ensure that it does not disclose the existence or content of "criminal intelligence" without approval of the Commissioner - Commissioner relied on criminal intelligence - whether ADT bound or empowered to adopt a "special advocate" procedure to represent the review applicant's interests - whether the Commissioner's refusal to approve disclosure of the criminal intelligence was amenable to judicial review - whether the Commissioner was bound to consider the review applicant's request for approval to disclosure - powers and duties of the ADT to afford procedural fairness in face of confidentiality regime.
CONSTITUTIONAL LAW - whether s 29(3) of the SI Act is unconstitutional because it purports to deny the supervisory jurisdiction of the Supreme Court - whether the constitutional issue is premature - application of principles in Kirk (2010) 239 CLR 531 - difficulties facing applicant for judicial review do not establish a denial of the supervisory jurisdiction
Legislation Cited: The Constitution
Judiciary Act 1903 (Cth)
Administrative Decisions Tribunal Act 1997 (NSW)
Civil Procedure Act 2005 (NSW)
Evidence Act 1955 (NSW)
Industrial Relations Act 1996 (NSW)
Security Industry Act 1997 (NSW)
Security Industry Amendment Act 2002 (NSW)
Security Industry Amendment Act 2005 (NSW)
Suitors Fund Act 1951 (NSW)
Supreme Court Act 1970 (NSW)
Security Industry Regulations 2007 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)
Liquor Licensing Act 1997 (SA)
Corruption and Crime Commission Act 2003 (WA)
Special Immigration Appeals Commission Act 1997 (UK)
Cases Cited: Amer v Minister for Immigration, Local Government and Ethnic Affairs (Fed Ct, Lockhart J, 18 December 1989, unreported)
AVS Group of Companies Pty Ltd v Commissioner of Police [2009] NSWADTAP 48
AVS Group of Companies Pty Ltd v Commissioner of Police [2010] NSWSC 109
AVS Group of Companies Pty Ltd v Commissioner of Police [2010] NSWSC 659
AVS Group of Companies Pty Ltd v Commissioner of Police [2010] NSWCA 81 ("AVS No 1")
AVS Group of Companies Pty Ltd v Commissioner of Police [2010] NSWSC 447
Cain v Glass (No 2) (1985) 3 NSWLR 230
Commissioner of Police v AVS Group of Companies Pty Ltd [2009] NSWSC 1408
Commissioner of Police v Gray [2009] NSWCA 49; 74 NSWLR 1
D v National Society for the Prevention of Cruelty to Children [1977] UKHL 1, [1978] AC 171
Forge v Australian Securities and Investments Commission [2006] HCA 44; 228 CLR 45
Gypsy Jokers Motorcycle Club Inc v Commissioner of Police [2008] HCA 4; 234 CLR 532
Hussain v Minister for Foreign Affairs (2008) FCAFC 128; 169 FCR 241
International Finance Trust Co Ltd v New South Wales Crime Commission [2009] HCA 49; 240 CLR 319
James v South Australia [1927] HCA 32; 40 CLR 1
K-Generation Pty Ltd v Liquor Licensing Court [2009] HCA 4; 237 CLR 501
Kirk v Industrial Court (NSW) [2010] HCA 1; 239 CLR 531
Kruger v Commonwealth [1997] HCA 27; (1997) 190 CLR 1
Levy v Victoria [1997] HCA 31; 189 CLR 579
M v Secretary of State for the Home Department [2004] EWCA Civ 324; [2004] 2 All ER 863
Minister for Immigration and Multicultural Affairs v Eshetu [1998] HCA 21; 197 CLR 611
Nicopoulos v Commissioner for Corrective Services [2004] NSWSC 562; 148 A Crim R 74
Public Service Board (NSW) v Osmond [1986] HCA 7; 159 CLR 656
Sankey v Whitlam [1978] HCA 43; 142 CLR 1
South Australia v Totani [2010] HCA 39
Stewart v Ronalds [2009] NSWCA 277; 76 NSWLR 99
United States Tobacco Co v Minister for Consumer Affairs (1988) 20 FCR 520
Weinstein v Medical Practitioners Board of Victoria (2008) VSCA 193
Wurridjal v The Commonwealth [2009] HCA 2; 237 CLR 309
Texts Cited: N Rees, "Procedure and Evidence in 'Court Substitute' Tribunals" (2006) 28 Aust Bar Rev 41
New South Wales, Minister for Police, SI Act: Review Report: Security Industry Act 1997 and Security Industry Regulations 1998, (October 2004)
Category: Principal judgment
Parties: Police Commissioner of New South Wales (Appellant/Cross-respondent)
Peter Sleiman (First Respondent/Cross-appellant)
AVS Group of Companies Pty Ltd (Second respondent/Cross-appellant)
Attorney General of New South Wales (Intervening)
Representation: Counsel:
Dr J Griffiths SC and Mr T Lynch for the Commissioner of Police
Mr TEF Hughes QC & Mr K Oliver for Peter Sleiman and the AVS Group of Companies Pty Ltd
Dr J Griffiths SC and Mr J Hutton for the Attorney-General
Solicitors:
Mr I V Knight, Crown Solicitor, for the Commissioner of Police
Mr Steffano Laface, AJL Legal, for Peter Sleiman and the AVS Group of Companies Pty Ltd

File Number(s): CA 2009/298022 SC 2010/110137
Decision under appeal

Citation:

AVS Group of Companies Pty Limited and Ors v Commissioner of Police and Anor [2010] NSWSC 109

Date of Decision:

2010-02-26 00:00:00

Before:

Schmidt J

File Number(s):

SC 30102/2009

JUDGMENT

ALLSOP P: I agree with Sackville AJA .

HANDLEY AJA: I agree with Sackville AJA.

SACKVILLE AJA: The Court has heard two matters together. Both arise out of the revocation by the Commissioner of Police (" Commissioner ") of licences granted under the Security Industry Act 1997 (NSW) (" SI Act "). The licences were held by AVS Group of Companies Pty Ltd, a related corporation and by Mr Peter Sleiman, a person involved in AVS's operations. For simplicity, I shall refer to the licence holders collectively as " AVS ".

The licences held by AVS entitled the holders to carry on certain security activities such as patrolling or guarding property, installing security equipment and acting as crowd controllers. A delegate of the Commissioner revoked the licences pursuant to s 26(1A) of the SI Act , by a notice of revocation dated 15 July 2009. The notice was served on AVS on 23 July 2009, as required by s 26(2) and (3) of the SI Act . Revocation of a licence takes effect from the date the notice is served: s 26(3).

The notice of revocation gave the following reasons for revocation of the licences:

"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."

The only ground now relied on by the Commissioner to support revocation of the licences is that the holders are not fit and proper persons to hold the licences.

On 30 July 2009, AVS sought review of the Commissioner's revocation decision in the Administrative Decisions Tribunal (" ADT "), pursuant to s 29(1)(a) of the SI Act . On 13 August 2009, after several hearings in the ADT ([26]-[28] below, an order was made " staying " the revocation decision pending determination of AVS's application for review.

The ADT hearing has been delayed as a result of no fewer than five separate proceedings being filed in the Supreme Court, either by AVS or the Commissioner. One of these proceedings has resulted in a decision of this Court: AVS Group of Companies Pty Ltd v Commissioner of Police [2010] NSWCA 81 (" AVS No 1 "). In that case, Basten JA set out part of the procedural history (at [5]-[9]) and commented on the " procedural anomalies " that should not have been allowed to occur in the various proceedings (at [27]-[34]). His Honour was particularly critical (at [27]) of the attempt by AVS to undertake merits review in the ADT and contemporaneously seek judicial review of the Commissioner's decision.

In a judgment delivered on 26 February 2010, a Judge of the Common Law Division (Schmidt J) made orders on the application of AVS in relation to a so-called " special advocate " procedure which, according to AVS, the ADT should adopt when it hears the application to review the Commissioner's revocation decision: AVS Group of Companies Pty Ltd v Commissioner of Police [2010] NSWSC 109. (The " special advocate " procedure is explained later (at [24])). Schmidt J made some, but not all the declarations and orders sought by AVS in the proceedings.

The first matter before the Court is the Commissioner's application for leave to appeal against the decision of Schmidt J. The view has been taken that leave is required because the orders made by her Honour do not involve a matter at issue or a claim amounting to the value of $100,000 or more: Supreme Court Act 1970 (NSW), s 101(2)(r).

In the course of argument on the first day of the hearing of the Commissioner's application (20 October 2010), it was suggested that some of AVS's contentions might require it to file an application for leave to cross-appeal. On the second day of the hearing (21 October 2010), AVS was granted leave to file a cross-summons seeking leave to cross-appeal from the decision of the primary Judge. The Commissioner did not object to AVS being granted leave to file the cross-summons and ultimately did not object to the Court granting leave to AVS to cross-appeal.

The second matter before the Court is a summons filed by AVS in the Common Law Division seeking, among other things, declaratory and other relief in relation to the orders made earlier by Schmidt J. The proceedings commenced by AVS were removed to this Court on the application of the Commissioner. I refer to them as the " removed proceedings ". Since the removed proceedings were heard with the leave applications, the Court directed that evidence in one proceeding should be evidence in the others.

In keeping with the complex and lengthy procedural history of this litigation, the two day hearing did not conclude the argument. AVS filed written submissions in support of its application for leave to appeal on 28 October 2010. On 4 November 2010, the Commissioner filed written submissions in response. In those submissions, the Commissioner confirmed that he consented to AVS being granted leave to cross-appeal, but submitted that the cross-appeal should be dismissed. AVS filed written submissions in reply on 13 November 2010.

In the meantime, a constitutional issue arose, or at least was foreshadowed. On the second day of the hearing, AVS submitted that the Commissioner's construction of s 29(3) of the SI Act required an inferior tribunal, namely the ADT, to publish misleading reasons for its decision, unless an executive officer of the State, namely the Commissioner, approved otherwise. The reasons would be misleading, so it was argued, because the ADT would be prohibited from disclosing the true reasons which might, in particular cases, reveal jurisdictional error. It was said to follow that s 29(3) of the SI Act is capable of operating so as to prevent the Supreme Court exercising its supervisory jurisdiction to review jurisdictional error by the ADT and is therefore repugnant to the requirements of Chapter III of the Constitution .

When the constitutional argument was raised, the Court directed AVS to serve notice on the Attorneys-General of the Commonwealth and the States of a constitutional matter, as required by s 78B(1) of the Judiciary Act 1903 (Cth) (" Judiciary Act "). In response to the notice, the Attorney General of New South Wales indicated that that he wished to intervene in the proceedings pursuant to s 78A(1) of the Judiciary Act .

The Attorney General filed written submissions on the constitutional issue on 12 November 2010, contending that the constitutional issue said by AVS to arise was " hypothetical and premature ". If, however, the Court was minded to address the constitutional issue, the Attorney General submitted that s 29(3) of the SI Act was valid as it did not purport to abrogate, directly or indirectly, the Supreme Court's constitutionally protected judicial review jurisdiction.

On 30 November 2010, AVS filed lengthy written submissions on the constitutional validity of s 29(3) of the SI Act . AVS submitted that the constitutional question was neither hypothetical nor premature and that, on the Commissioner's construction, s 29(3) was invalid.

In this judgment, I shall first consider the arguments raised by the parties independently of the constitutional question. I shall then address the challenge to the constitutional validity of s 29(3) of the SI Act .

Key Provisions of the Legislation

Reference will be made in due course to a number of provisions in the SI Act and the Administrative Decisions Tribunal Act 1997 (NSW) (" ADT Act "). The key provisions, however, are ss 15(6), (7) and 29(3) of the SI Act , which establish a non-disclosure regime for criminal intelligence reports or other criminal information relied on by the Commissioner to refuse to grant or to revoke a licence (" Criminal Intelligence "). In order to understand the orders sought or made in the two matters now before the Court, it is convenient to set out these provisions at this point and to explain briefly the legislative history. A full account of the legislative history, including relevant extracts from the Parliamentary Debates, is given in Commissioner of Police v Gray [2009] NSWCA 49; 74 NSWLR 1, at 19-22 [63]-[73], per McColl JA (with whom Giles and Tobias JJA agreed). The brief account below ([19]-[22]) is derived from McColl JA's judgment.

Subsections (6) and (7) of s 15 of the SI Act provide as follows:

"15 ...

(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)."

Subsections (6) and (7) of s 15 were inserted into the SI Act by the Security Industry Amendment Act 2002 (NSW). The insertion of s 15(6) into the SI Act was designed, in part, to make it clear that the Commissioner could refuse a licence on the ground that the applicant was not a " fit and proper person " even though the applicant had neither been charged with nor convicted of an offence. The Second Reading Speech included the following passage:

"...the current security licensing system allows persons who are not fit and proper persons, because they are suspected but not charged or convicted of criminal or terrorist links, access to sensitive information and premises as a result of being granted a security licence.

The difficulty from a licensing perspective is that such persons of concern have not been subjected to a charge which would automatically preclude them from obtaining a security licence.

This may be due to the fact that victims are afraid to lay charges against the person, or that they withdraw charges following threats against them. The only basis the [C]ommissioner could refuse a security licence under these circumstances would therefore be on the grounds that the applicant is 'not fit and proper' or it is 'not in the public interest' that he/she receive a licence."

NSW Parl Deb, Leg Ass, 12 November 2002, at 6547 (Mr Gaudry MLA, speaking on behalf of the Minister). No reference was made in the Second Reading Speech to the purpose of s 15(7).

In 2004, the Minister of Police conducted a review of the SI Act : Review Report: Security Industry Act 1997 and Security Industry Regulations 1998 (October 2004). The Review Report included Recommendation 11, as follows:

"Section 15 be amended to ensure that any information provided to a reviewing Court or Tribunal in respect of a decision not to grant a security licence based on subsection 15(6) of the Act, is on a strictly confidential basis and is protected from further dissemination or release."

The Security Industry Amendment Act 2005 (NSW) was based on the Review Report and, among other amendments, inserted s 29(3) into the SI Act. This provides as follows:

"29 ...

(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."

The amending legislation did not define " criminal investigation report " or criminal information ".

In introducing the legislation, the Minister's representative explained the amendment in the following passage:

"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 [ADT]. 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 has relied on to make his decision. However, the bill will prevent the release of intelligence directly to the person to whom the intelligence relates. This will protect the safety of police informants and prevent the disclosure of police information holdings and the details of police methodology." (Emphasis added.)

NSW Parl Deb, Leg Ass, 21 June 2005, at 17117 (Mr Stewart MLA, on behalf of the Minister).

Matters Before The Court

The Leave Applications

Special Advocate Procedure

AVS's claim for relief before Schmidt J was based on its contention that adoption by the ADT of the " special advocate " procedure is necessary if it is to have a fair opportunity to address Criminal Intelligence upon which the Commissioner intends to rely in the ADT proceedings. AVS submitted to Schmidt J that, in the absence of the " special advocate " procedure, neither it nor its legal representatives would be entitled under s 29(3) of the SI Act to see the evidence relied on by the Commissioner to support his decision to revoke the licences. According to AVS, such a situation would produce manifest unfairness which a court would be astute to avoid.

AVS explained to Schmidt J that the special advocate procedure has its origins in the Special Immigration Appeals Commission Act 1997 (UK). This legislation prevents the Home Secretary from relying, in proceedings in the Special Immigration Appeals Commission (" SIAC "), on material which cannot be disclosed on national security grounds, unless a special advocate is appointed. Her Honour quoted (at [13]) the description of the statutory procedure in M v Secretary of State for the Home Department [2004] EWCA Civ 324; [2004] 2 All ER 863, at [13], per curiam :

"... individuals who appeal to SIAC are undoubtedly under a grave disadvantage. So far as it is possible this disadvantage should be avoided or, if it cannot be avoided, minimised. However, the unfairness involved can be necessary because of the interests of national security. The involvement of a special advocate is intended to reduce (it cannot wholly eliminate) the unfairness which follows from the fact that an appellant will be unaware at least as to part of the case against him. Unlike the appellant's own lawyers, the special advocate is under no duty to inform the appellant of secret information. That is why he can be provided with closed material and attend closed hearings. As this appeal illustrates, a special advocate can play an important role in protecting an appellant's interests before SIAC. He can seek further information. He can ensure that evidence before SIAC is tested on behalf of the appellant. He can object to evidence and other information being unnecessarily kept from the appellant. He can make submissions to SIAC as to why the statutory requirements have not been complied with. In other words he can look after the interests of the appellant, in so far as it is possible for this to be done without informing the appellant of the case against him and without taking direct instructions from the appellant."

Background to the Primary Decision

A hearing took place in the ADT on 30 July 2009, immediately following the filing of AVS's application for review of the revocation decision. AVS sought what it described as a " stay " of the revocation decision, which was refused. It is common ground that at this hearing counsel for the Commissioner disclosed that Criminal Intelligence existed and invited the ADT to take it into account. The intelligence was in fact taken into account by the ADT in refusing the stay application.

On 11 August 2009, the Appeal Panel of the ADT granted AVS's application for leave to appeal and allowed the appeal: AVS Group of Companies Pty Ltd v Commissioner of Police (NSW) [2009] NSWADTAP 48. The Appeal Panel held that s 29(3) of the SI Act did not require the ADT to admit the Criminal Intelligence as a confidential exhibit which was not to be revealed to AVS, without first considering the fairness to AVS of this procedure. The Appeal Panel remitted the so-called stay application to the General Division of the ADT.

On 12 August 2009, the Commissioner sought judicial review of the Appeal Panel's decision of 11 August 2009.

On 13 August 2009, Deputy President Hennessy reheard the stay application. The application was opposed by the Commissioner, but he did not tender any evidence in support of his opposition. The ADT granted a " stay " of the revocation decision.

On 2 September 2009, AVS applied to the ADT for orders, among others, that a special advocate procedure be adopted. The application was refused, on the ground that s 29(3) of the SI Act requires the Commissioner to approve any such procedure. Accordingly, the ADT held that it lacked power to direct that AVS be represented by a special advocate.

By a letter dated 10 September 2009, the solicitors for AVS asked the Commissioner to approve draft orders that would enable AVS's interests to be represented by a special advocate. AVS suggested that the special advocate should be Mr A P Whitlam QC, a former Judge of the Federal Court of Australia and a former President of the Federal Police Disciplinary Tribunal. There has been no dispute in these proceedings that Mr Whitlam is a person who can be expected to adhere strictly to any requirement that he not disclose information to other persons, including AVS.

The orders proposed by AVS to the Commissioner were as follows:

" THE COURT :

(1) DIRECTS pursuant to sections 70, 73(1) and 73(2) of the Administrative Decisions Tribunal Act 1997 that at any closed session of the final hearing in these proceedings, the interests of the applicants are to be represented by a 'special advocate' in accordance with these orders and otherwise as the Tribunal may direct from time to time.

(2) APPOINTS Mr Antony Whitlam QC as 'special advocate' , such appointment to take effect from the time of first commencement of any closed session of the final hearing in these proceedings.

(3) NOTES that, prior to the time when the appointment of the special advocate takes effect, Mr Whitlam QC will be retained and instructed in the capacity of counsel for the applicants .

(4) ORDERS pursuant to sections 73(1) and 75(2)(d) of the Administrative Decisions Tribunal Act 1997 that at and after the time when his appointment takes effect, the special advocate:

(a) is to assist the Tribunal in relation to these proceedings in accordance with the directions of the Tribunal from time to time;

(b) is to receive in relation to these proceedings no further instructions as counsel for the applicants ; and

(c) is forever prohibited, save as compellable by law and subject to further order of the Tribunal, from disclosing to any person:

(i) any documentary or other evidence received by the Tribunal;

(ii) any argument heard by the Tribunal; or'

(iii) the existence or content of any criminal intelligence report or other criminal information of which the existence or content shall have been disclosed to the special advocate;

in the course of any closed session of the Tribunal held in relation to these proceedings and at which the special advocate shall have been present.

(5) NOTES that, without prejudice to any rights that the applicants may have pursuant to section 88 of the Administrative Decisions Tribunal Act 1997 , all costs arising from the appointment of the special advocate will in the first instance be paid by the applicants." (Emphasis added.)

Schmidt J referred in her judgment and orders to AVS's suggested orders as " the proposed special advocate procedure ". I shall do the same.

On 9 October 2009, the Crown Solicitor replied in cryptic terms to the proposal made by AVS's solicitors, as follows:

"[The Commissioner] does not propose to engage in a 'special advocate' procedure."

On 22 October 2009, AVS commenced proceedings in the Common Law Division Administrative Law List. The relief sought by AVS included:

a declaration that the ADT is empowered in its lawful discretion to adopt the proposed special advocate procedure without the approval of the Commissioner or, alternatively, subject to the approval of the Commissioner under s 29(3) of the SI Act ;
a declaration that the Commissioner is required under s 29(3) of the SI Act to consider and determine, according to law, any proposal made by AVS or the ADT for his approval of the proposed special advocate procedure: and
orders in the nature of prerogative relief setting aside the Commissioner's decision refusing AVS's application and ordering the Commissioner to consider the application according to law.

On 16 December 2009, Rothman J quashed the decision of the Appeal Panel made on 11 August 2009 and remitted the appeal to the ADT: Commissioner of Police v AVS Group of Companies Pty Ltd [2009] NSWSC 1408. AVS subsequently sought leave to appeal from Rothman J's decision.

The hearing of AVS's application in relation to the proposed special advocate procedure took place on 17 December 2009. In her judgment delivered on 26 February 2010, Schmidt J rejected AVS's claim to a declaration that the ADT could adopt the special advocate procedure without the Commissioner's approval. However, her Honour held that the Commissioner was bound to consider AVS's request that he approve of the proposed special advocate procedure and, in particular, to consider whether the procedure adequately protected the confidentiality of the criminal information on which the Commissioner wished to rely. Her Honour also found, on the basis of the Commissioner's cryptic response of 9 October 2009 (at [33] above), that the Commissioner had failed to consider whether the proposal adequately protected confidentiality.

Accordingly, Schmidt J made the following declarations and orders:

"1. A declaration that the proposed 'special advocate' procedure is a procedure that the [ADT] is empowered in its lawful discretion to adopt for the hearing of the pending [ADT] proceedings, subject to the special advocate being appointed by [AVS] and the approval of disclosure of the confidential exhibit to the special advocate being given by the [the Commissioner] pursuant to s 29(3) of the [ SI Act ] 1997.

2. A declaration that the [Commissioner] is required by law to consider and determine according to law any application or proposal for his approval, pursuant to s 29(3) of the [ SI Act ], of the proposed 'special advocate' procedure that has been made, or shall at any time be made, in connection with the pending [ADT] proceedings by or on behalf of [AVS].

4. [An order that] the [Commissioner] consider [AVS's] application for the disclosure of the confidential exhibit to the special advocate under the provisions proposed by [AVS], according to law." (Emphasis added.)

The numbering or the orders is that used by her Honour.

Draft Notice of Appeal

On 26 March 2010, the Commissioner filed a notice of intention to appeal against the decision of Schmidt J. On 26 May 2010, the Commissioner filed a summons seeking leave to appeal from her Honour's decision. A draft notice of appeal was filed in advance of the hearing.

The Commissioner's draft notice of appeal does not challenge Order 1 made by the primary Judge, the effect of which is to declare that the ADT, subject to the Commissioner approving disclosure of the confidential exhibit and to AVS appointing the special advocate, may adopt the special advocate procedure. The draft notice of appeal challenges Orders 2 and 4 on the basis that her Honour erred in:

holding that the Commissioner's decision of 9 October 2010 not to approve the disclosure by the ADT of Criminal Intelligence to a " special advocate " (" 9 October Decision ") was amenable to judicial review;

finding that s 29(3) of the SI Act required the Commissioner to consent to the proposed special advocate procedure, if satisfied that the procedure would preserve the confidentiality of the material to which s 29(3) applies;

finding that the absence of any reasons by the Commissioner for the 9 October Decision justified an inference that he had no good reasons for the Decision; and

finding that the 9 October Decision had been made without considering whether confidentiality had been adequately protected and for an improper purpose, namely obtaining a forensic advantage in the ADT proceedings.

The draft notice of appeal seeks orders setting aside Declarations 2 and 4 made by Schmidt J and in lieu thereof seeks an order that the proceedings be dismissed. Since the Commissioner does not expressly challenge Declaration 1 made by Schmidt J, presumably it is intended that Order 1 remain on foot and that the balance of the proceedings be dismissed.

Draft Notice of Cross-Appeal

I have explained the circumstances in which AVS sought leave to cross-appeal from Schmidt J's decision. AVS's amended draft notice of cross-appeal (" cross-appeal ") is a lengthy document. The grounds in the cross-appeal include the following:

"1 Her Honour erred in holding (at paragraphs [28], [35] and [36] of the reasons for judgment) that the procedure for appointment by the [ADT] of a 'special advocate' in proceedings 093202 (the ' pending Tribunal proceedings ') that was proposed by [AVS] to the [Commissioner] in correspondence dated 10 September 2009 (the ' proposed special advocate procedure ') was a procedure for 'representation' of [AVS] within the meaning of s 71 of the ADT Act. Her Honour should have held that the proposed special advocate procedure was a procedure whereby a 'special advocate' would, when acting in that capacity, assist the [ADT] by informing it concerning matters relevant to the interests of [AVS], but without providing 'representation' to [AVS] within the meaning of s 71 of the ADT Act .

2. Her Honour erred in holding (in paragraphs [32]. [36] and [39] of the reasons for judgment) that the [ADT] has no power by which to cause itself to be informed concerning matters relevant to the interests of a party to proceedings before it, otherwise than by 'representation' of that party within the meaning of s 71 of the ADT Act . Her Honour should have held that the powers conferred upon the [ADT]:

a. by s 73(1) of the ADT Act , subject to the ADT Act and the rules of the [ADT], to determine its own procedure; and/or

b. by s 73(2) of the ADT Act , to inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice,

empower the [ADT], amongst other things, to appoint a special advocate pursuant to the proposed special advocate procedure, and to conduct proceedings in accordance with the proposed special advocate procedure, and that s 71 of the ADT Act does not, in its express terms or otherwise, operate to limit those powers."

...

4. Her Honour erred in holding (paragraph [45] of the reasons for judgment) that s 29(3)(a) of the SI Act impliedly repeals s 75(2)(d) of the [ ADT Act ] to the extent to which it would otherwise operate to empower the [ADT] to make, without the [Commissioner's] consent, orders restricting disclosure of the existence or content of any relevant criminal intelligence. (Emphasis in original.)

Among the eleven declarations sought (either as primary relief or in the alternative) are the following:

"2. A declaration that s 29(3)(a) of the SI Act , on its proper construction:

a. requires the [ADT] unless the [Commissioner] approves otherwise, to refrain from disclosing the existence or content of any criminal intelligence report or other criminal information referred to in s 15(6) of the SI Act (" relevant criminal intelligence "), if such disclosure is for a purpose, or to a person who it were reasonable to suppose might employ that relevant criminal intelligence for a purpose, other than the [ADT's] determination of the application for review to which that criminal intelligence is relevant; and

b. does not otherwise prohibit the [ADT] for disclosing the existence or content of relevant criminal intelligence.

3 A declaration that the proposed special advocate procedure is a procedure that the [ADT] is empowered in its lawful discretion to adopt for the hearing of the pending [ADT] proceedings, and that for the purposes of that procedure the [ADT] is empowered to disclose the existence and content of relevant criminal intelligence to the special advocate proposed thereunder, and to do so without any requirement for the approval of the [Commissioner] pursuant to s 29(3) of the [ SI Act ] or any other approval of the [Commissioner] whatsoever.

4. Alternatively to (3), declarations:

a. that the proposed special advocate procedure is a procedure that the [ADT] is empowered in its lawful discretion to adopt for the hearing of the pending [ADT] proceedings, and that for the purposes of that procedure the [ADT] is empowered to disclose the existence and content of relevant criminal intelligence to the special advocate proposed thereunder, subject to the approval of the [Commissioner] pursuant to s 29(3) of the SI Act ;

b. that the [Commissioner] is bound to consider and determine according to law any request from the [ADT] for his approval, pursuant to s 29(3) of the SI Act , of the proposed special advocate procedure that shall at any time be made to him by the [ADT] in connection with the pending [ADT] proceedings, and whether such request shall have been made by the [ADT] of its own motion, or on the application of [AVS];

c. that any decision by the [ADT], in response to any application from [AVS], whether to request the Commissioner's approval of the special advocate procedure in relation to the pending [ADT] proceedings, is:

i. a 'decision or ruling, made by the [ADT] that relates to' the pending [ADT] proceedings within the meaning of s 73(4)(b) of the ADT Act ; and

ii. an 'original decision' of the [ADT] within the meaning of s 7 and s 89(1) of the ADT Act;

5. Further, or alternatively, declarations:

a. that the ADT Act , and/or in particular s 73(2) thereof, authorises the [ADT], subject to the rules of natural justice, in determining any application for review pursuant to s 29(1) of the SI Act , to inquire into, and inform itself on, representations as to any matter of fact or law that competent counsel would make, or advise to be made, to the [ADT] on behalf of, or otherwise in the interests of, any person who has made to the [ADT] that application for review (' relevant applicant '), being representations in respect of, or otherwise arising by reason of, or in connection with the existence or content of, any criminal intelligence report or other criminal information, the existence or content of which s 29(3) of the SI Act requires the [ADT] to refrain from disclosing to the relevant applicant, or to the relevant applicant's representative (' material representations '), and to do so either on the application of the relevant applicant, or of its own motion.

b. that the ADT Act , and/or in particular s 73(2) thereof, authorizes the [ADT], subject to the rules of natural justice and to s 29(3) of the SI Act , so to inquire and inform itself by means that include (but are not necessarily limited to) receiving material representations from counsel (howsoever designated) chosen or approved by the [ADT] for that purpose (howsoever designated) (' counsel confidentially assisting ')". (Emphasis in original.)

It will be seen that draft Declaration 3 is framed by reference to the proposed special advocate procedure that was the subject of debate before Schmidt J. Draft Declaration 5, by contrast, is not so framed, but refers to the powers available to the ADT to inform itself as to any matter of fact or law that a competent counsel would make on behalf of or otherwise in the interests of an applicant seeking review of a revocation decision.

The Removed Proceedings

Background

On 3 March 2010, following Schmidt J's decision, AVS's solicitors again asked the Commissioner to approve the proposed special advocate procedure in the ADT. The application attached draft orders in substantially the same terms as those previously submitted, with one exception. The exception was that the orders had been amended to accommodate Schmidt J's ruling that the special advocate was to be appointed by the party whose interests were to be represented, not by the ADT.

On 21 April 2010, AVS's application for review of the Commissioner's revocation decision was fixed for hearing in the ADT, commencing on 14 July 2010.

On 15 April 2010, the Court of Appeal delivered judgment on the application for leave to appeal from the decision of Rothman J: AVS Group of Companies Pty Ltd v Commissioner of Police [2010] NSWCA 81. the Court affirmed Rothman J's decision that s 29(3) of the SI Act applies to applications for a " stay " of a revocation decision made by the Commissioner. Armed with the Court of Appeal's decision, the Commissioner applied to the ADT for an order discharging the stay order made on 13 August 2009.

On 23 April 2010, the Commissioner's solicitors sent a letter to AVS's legal representatives stating that, pursuant to Order 4 made by Schmidt J (at [37] above), the Commissioner had considered AVS's proposal made on 3 March 2010. The Commissioner's response was as follows:

"[The Commissioner] is not prepared to approve disclosure of the evidence

3. to which s.29(3) [ SI Act ] applies, and

4. upon which he intends to rely,

to a 'special advocate' at the final hearing of [AVS's] application. [AVS] have requested reasons for that decision.

As previously advised [the Commissioner] is of the opinion that you are not entitled to reasons.

However, I have been instructed to advise the above decision was made having regard to

5. the circumstances in which the s.29(3) [ SI Act ] material was obtained by [the Commissioner], and

6. the protection intended to be afforded to such material by s.29(3) [ SI Act ] ." (Numbering in original; emphasis added.)

On 4 May 2010, AVS filed a summons in the Common Law Division of the Supreme Court. The relief sought by AVS included the following:

"1 A declaration that the [Commissioner's] refusal, in correspondence dated 23 April 2010, to approve the 'special advocate' procedure proposed by the plaintiffs in correspondence dated 3 March 2010 (the ' 23 April decision '), is contrary to law.

2. A declaration that the 23 April decision was not compliant with the Court's order made ... by her Honour Justice Schmidt ...

3 An order in the nature of certiorari setting aside the 23 April decision.

4 A declaration that the [Commissioner] is bound, as a matter of law, to approve pursuant to s 29(3) of the Security Industry Act 1997 :

(a) disclosure to the special advocate to be appointed by [AVS], namely, Mr Antony Whitlam QC, of the confidential exhibit referred to in paragraph 75(2) (sic) of the reasons for judgment of ... Justice Schmidt ... and

(b) the presence and participation of that special advocate at any closed hearing that may be conducted by the [ADT] ..." (Emphasis in original.)

The " confidential exhibit " noted in par 4 of the orders sought by AVS is in fact referred to in para 75(4) (not para 75(2)) of Schmidt J's judgment, which sets out the terms of Order 4 made by her Honour. The confidential exhibit contains the material relied on by the Commissioner which is said to be a " criminal investigation report " or " criminal information " for the purposes of s 15(6) of the SI Act .

On 13 May 2010, Davies J made orders in the Common Law Division proceedings on an urgent application by AVS: AVS Group of Companies Pty Ltd v Commissioner of Police [2010] NSWSC 447. His Honour restrained the ADT from hearing any application by the Commissioner to revoke what was described as a " stay order " made by the ADT on 13 August 2009 in relation to the revocation decision, until the hearing of AVS's summons. His Honour also restrained the Commissioner from filing or prosecuting any application to revoke the " stay order " until the summons was heard. The effect of the so-called " stay order " was to preserve the licences held by AVS pending the ADT's determination of AVS's application to review the Commissioner's revocation decision.

On 26 May 2010, the Commissioner filed a summons seeking leave to appeal from the orders made by Schmidt J on 26 February 2010.

On 18 June 2010, Price J, on the Commissioner's application, ordered, pursuant to Uniform Civil Procedure Rules (" UCPR ") r 28.2, that the following question be heard and determined separately in the proceedings:

"On a proper construction of s. 29(3) of the Security Industry Act 1997 and having regard to the events that have occurred, is the Commissioner ... obliged to approve [AVS's] proposal that they be represented by a 'Special Advocate' in the proceedings in the [ADT]"

His Honour directed, pursuant to UCPR r 1.21, that the proceedings instituted by AVS in the Common Law Division be removed to the Court of Appeal. His Honour further directed that the final hearing of AVS's application for review in the ADT be stayed until the final determination by this Court of the removed proceedings and of the application for leave to appeal from the decision of Schmidt J: AVS Group of Companies v Commissioner of Police [2010] NSWSC 659.

Legislation

In order to resolve the issues before this Court, it is necessary to read the relevant provisions of the SI Act with those of the ADT Act . The SI Act was enacted shortly after the ADT Act and it has been held that the former, to some extent, effects an implied repeal of the latter: Commissioner of Police v Gray [2009] NSWCA 49; 74 NSWLR 1. Accordingly, each enactment is not necessarily entirely consistent with the other. One of the issues in these proceedings is to determine the extent to which s 29(3) of the SI Act is inconsistent with the ADT Act , in particular s 73.

SI Act

The SI Act prohibits a person carrying on a " security activity ", or employing or providing persons to carry on security activities, unless that person holds one of the various classes of licence that can be issued under the SI Act : s 7. An application for a licence is to be made to the Commissioner: s 14(1).

Section 15(1) of the SI Act provides that the Commissioner must refuse to grant an application for a licence if the Commissioner is satisfied, relevantly, that the applicant:

"(a) is not a fit and proper person to hold the class of licence sought by the applicant ..."

In certain circumstances, the Commissioner may refuse to grant an application for a licence: s 15(2),(3). These circumstances include where the Commissioner " considers that the grant of the licence would be contrary to the public interest ": s 15(3).

Sub-sections 15(6) and (7) are important. They have been set out above (at [19]).

On receiving an application for a licence, the Commissioner may carry out all such investigations and inquiries as the Commissioner considers necessary to enable the application to be considered properly: s 18(1). The Commissioner may require an applicant to provide additional information of certain kinds: s 20(1).

The Commissioner, after considering an application, may grant or refuse to grant a licence: s 21(1). The Commissioner may also grant a licence subject to conditions and may impose conditions on a licence after it has issued: s 21(3)(a). In general, a licence remains in force for a period of five years from the date on which it comes into force: s 24(1).

Section 26 of the SI Act deals with revocation of a licence. Section 26(1) provides that a licence may be revoked for certain specified reasons and " for any other reason prescribed by the regulations " (s 26(1)(d)). Clause 29 of the Security Industry Regulations 2007 states that a licence may be revoked on the ground that revocation of the licence is in the public interest.

Section 26(1A) of the SI Act is as follows:

"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."

A person may apply to the ADT for a review, among other things, of the Commissioner's refusal to grant a licence or the revocation of that person's licence: s 29(1). Applications made under s 29 of the SI Act are to be determined by one member of the General Division of the ADT who is a Judicial Member: ADT Act , Sch 2, Part 4, cl 8.

Section 29(3) of the SI Act is critical to the resolution of the issues before this Court. It, too, has been set out earlier (at [22]).

ADT Act

A person may apply to the ADT for a review of a " reviewable decision " and the ADT has jurisdiction to review the decision: ss 38(1), 55(1). A " reviewable decision " is a decision of an administrator that the ADT has jurisdiction under an enactment to review: s 8(1). There is no dispute in the present case that the Commissioner is an " administrator " (s 9) and that by reason of s 29(1) of the SI Act, the Commissioner's decision to revoke the licences held by AVS was a reviewable decision.

If an administrator makes a reviewable decision, an interested person may request the administrator to give reasons: s 49(1). In the event of a request, the administrator is to prepare, as soon as practicable, a written statement of reasons: s 49(2). Section 49 did not apply to the Commissioner's refusal to approve the special advocate procedure since that refusal, on any view, was not a reviewable decision for the purposes of the ADT Act . However, subject to s 29(3) of the SI Act , the Commissioner was bound to comply with s 49 of the ADT Act in relation to his revocation decision.

An administrator whose reviewable decision is subject to an application for review to the ADT must lodge material documents with the ADT. The obligation includes lodging a copy of the administrator's statement of reasons (s 58(1)(a)) and a copy of every document in the administrator's possession or control that the administrator considers to be relevant to the determination of the application by the ADT.

The Registrar of the ADT is to grant reasonable access to the applicant in the proceedings to the documents lodged by the administrator: s 58(5). However, the administrator is entitled to apply to the ADT for an order that he or she not be required to lodge a copy of a document with the ADT: s 59(1). The ADT may make such an order if, for example, it is satisfied that the document is privileged under certain provisions of the Evidence Act 1955 (NSW) or it considers that, if an application were made under s 75(2) of the ADT Act , it would be appropriate to make an order prohibiting or restricting publication or disclosure of the document.

Section 60 of the ADT Act deals with the effect of pending decisions on reviewable applications. It relevantly provides as follows:

"(1) Subject to this section, an application to the Tribunal for a review of a reviewable decision does not affect the operation of the decision under review or prevent the taking of action to implement that decision.

(2) On the application of any party to proceedings for an application for a review of a reviewable decision, the Tribunal may make such orders staying or otherwise affecting the operation of the decision under review as it considers appropriate to secure the effectiveness of the determination of the application."

Section 63 of the ADT Act provides as follows:

"(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.

(3) In determining an application for the review of a reviewable decision, the Tribunal may decide:

(a) to affirm the reviewable decision, or

(b) to vary the reviewable decision, or

(c) to set aside the reviewable decision and make a decision in substitution for the reviewable decision it set aside ..."

Section 67 of the ADT Act identifies the parties to proceedings before the ADT. Section 67(2) provides as follows:

"The parties to proceedings before the Tribunal for a review of a reviewable decision are:

(a) any person who, being entitled to do so, has duly applied to the Tribunal for a review of the decision, and

(b) the administrator who made the decision, and

(c) if the Attorney General intervenes in the proceedings under section 69 - the Attorney General, and

(d) any other person who has been made a party to the proceedings by the Tribunal in accordance with subsection (4), and

(e) any person specified by or under any enactment as a party to the proceedings."

Section 67(4) of the ADT empowers the ADT to make a person or party to the proceedings if the ADT

"considers that the person ought to have been joined as a party or is a person where joinder is necessary to the determination of all matters in dispute in the proceedings".

Section 68(1) of the ADT Act provides that, if it is necessary for the purposes of any Act to decide whether the interests of a person are affected, or likely to be affected by a decision, the question is to be decided by the ADT. A decision that a person's interests are so affected is conclusive and cannot be the subject of an appeal to an Appeal Panel: s 68(2).

Section 70 of the ADT Act provides as follows:

"The Tribunal must ensure that every party to proceedings before the Tribunal is given a reasonable opportunity:

(a) to present the party's case (whether at a hearing or otherwise), and

(b) to make submissions in relation to the issues in the proceedings."

A party to proceedings before the ADT may appear without representation or may be represented by an Australian legal practitioner: s 71(1). A person who is not an Australian legal practitioner may, with the consent of a party, apply to the ADT for leave to represent the party as the party's agent in the proceedings: s 71(2). If a party is an " incapacitated person " (as defined in s 71(7)), the ADT may appoint any other person it thinks fit to represent that party: s 71(4).

Section 73 of the ADT Act deals with the procedure of the Tribunal. It relevantly provides 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.

(3) The Tribunal is to act with as little formality as the circumstances of the case permit and according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms.

(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.

(5) The Tribunal:

(a) ...

(b) is to ensure that all relevant material is disclosed to the Tribunal so as to enable it to determine all of the relevant facts in issue in any proceedings, and

..."

Proceedings before the ADT are to be open to the public: s 75(1). Nonetheless, the ADT has power, if satisfied that it is desirable to do so by reason of the confidential nature of any evidence or matter or for any other reason, to order that the hearing be conducted wholly or partly in private or that publication of any evidence given before the ADT or contained in any documents lodged with the ADT be prohibited or restricted: s 75(2)(a), (c). The ADT also has power to make an order prohibiting or restricting the disclosure to some or all of the parties of evidence given before the ADT, or the contents of any document lodged with it or received in evidence, in relation to the proceedings: s 75(2)(d).

The ADT is empowered in any proceedings to call any witnesses of its own motion: s 83(1)(a). The ADT also may examine any witness on oath or affirmation and may examine or cross-examine any witness to such extent as it thinks proper " in order to elicit information relevant to the exercise of the functions of the [ADT] in any proceedings ": s 83(1)(c). If the ADT decides to call a person as a witness under s 83(1), it may direct the Registrar to issue a summons to compel that person to attend: s 83(2)(b). A person who, without reasonable excuse, fails to comply with a summons is guilty of an offence: s 84(4).

The ADT Act provides for the Minister to appoint assessors of the ADT: s 29(1). If proceedings are pending, the ADT or the President may, with the consent of the parties, direct a single assessor to inquire into an issue and report to the ADT: s 33(1),(2). The ADT, in determining proceedings, may be assisted by one or more assessors, but they are not to adjudicate in any matter before the ADT: s 35(1),(2).

The ADT is obliged to give a party a statement in writing of the reasons for the ADT's decision on an application for review of a reviewable decision if the party requests reasons: s 89(3). The written reasons must set out findings on material questions of fact, the ADT's understanding of the applicable law and " the reasoning processes that lead the [ADT] to the conclusions it made ": s 89(5).

A party to proceedings in which an " appealable decision " of the ADT is made may appeal to the ADT constituted by an Appeal Panel: s 113(1). An " appealable decision " includes a decision of the ADT made in proceedings for review of a reviewable decision: s 112(1). An appeal to the Appeal Panel may be made on any question of law and, with the leave of the Appeal Panel, may extend to a review of the merits of the appealable decision: s 113(2). If an appeal extends to a review of the merits of an appealable decision, the Appeal Panel is to decide what the correct and preferable decision is having regard to the material then before it: s 115(1). Section 89 applies to a decision of the Appeal Panel under s 115 in the same way as it applies to decisions determining an application for review of a reviewable decision: s 117(3). Since an Appeal Panel is the ADT differently constituted (s 24(1)), s 29(3) of the SI Act applies to the Appeal Panel as it does to the ADT constituted by one or more Division members.

A party to proceedings before an Appeal Panel may appeal to the Supreme Court on a question of law against any decision of the Appeal Panel: s 119(1). However, subject to one exception, nothing in the ADT Act affects the power of the Supreme Court, in the exercise of its original jurisdiction to review decisions of the ADT: s 122. The exception is that the Supreme Court is given an express discretionary power to refuse to grant an application if adequate provision is made for alternative review of the decision: s 123(1).

Section 125(1) of the ADT Act relevantly provides as follows:

"(1) Nothing in this Act requires the disclosure of a document if the Tribunal or President is satisfied that evidence of the document could not be adduced in proceedings before a NSW court by reason of the operation of any of the following provisions of the Evidence Act 1995 :

(a) section 9 (Application of common law and equity), but only to the extent that it preserves any privilege against the adducing of evidence,

...

(c) Part 3.10 (Privileges) of Chapter 3.

(2) In this section:

disclosure of a document includes the following:

(a) the provision of copies of the document,

(b) the granting of access to the document,

(c) the disclosure of the contents of the document.

...

NSW court has the same meaning as it has in the Evidence Act 1995. "

The relevant definition of " NSW court " is set out below (at [88]).

Section 128 of the ADT Act imposes obligations of confidentiality on members and staff of the ADT. It provides as follows:

"If:

(a) a provision of an Act (other than this Act) prohibits the disclosure, whether absolutely, in certain circumstances only or subject to conditions, of information by persons who:

(i) are included in a particular class of persons, and

(ii) acquired the information in the course of their duties under the Act, and

(b) a person who is or has been a member, an assessor, an officer of the Tribunal or a member of the staff of the Tribunal has acquired or acquires any such information in the course of his or her duties as such a member, assessor, officer or member of the staff,

that provision applies to the person as if he or she were included in the particular class of persons and acquired the information in the course of duties under that Act."

Section 131(1) of the ADT Act provides that the ADT may report certain matters to the Supreme Court, including the following:

"(h) if a person publishes, or permit or allows to be published, any evidence given before the Tribunal or any of the contents of a document produced at a hearing that the Tribunal has ordered not to be published, or

(i) if a person publishes, or permits or allows to be published, any evidence given before the Tribunal at a hearing held in private or any of the contents of a document produced at a hearing held in private, except to an officer of the Tribunal or as permitted by the Tribunal or by the regulations, or

(j) if a person does any other thing that, if the Tribunal were a court of law having power to commit for contempt, would be contempt of that court."

If the ADT reports a matter to the Supreme Court under s 131(1), the Supreme Court may deal with the matter as if it were a contempt of that Court: s 131(2).

Evidence Act

Reference was made in argument to the principles governing the circumstances in which governments or their agencies may claim public interest immunity. In New South Wales, the principles have been restated in s 130 of the Evidence Act 1995 (NSW) (" Evidence Act "). In addition, s 9(1) of the Evidence Act does not affect the operation of a principle or rule of common law or equity in relation to evidence in a proceeding to which the Act applies, except insofar as the Act provides otherwise: s 9(1).

Section 130 of the Evidence Act provides as follows:

"(1) If the public interest in admitting into evidence information or a document that relates to matters of state is outweighed by the public interest in preserving secrecy or confidentiality in relation to the information or document, the court may direct that the information or document not be adduced as evidence.

(2) The court may give such a direction either on its own initiative or on the application of any person (whether or not the person is a party).

(3) In deciding whether to give such a direction, the court may inform itself in any way it thinks fit.

(4) Without limiting the circumstances in which information or a document may be taken for the purposes of subsection (1) to relate to matters of state, the information or document is taken for the purposes of that subsection to relate to matters of state if adducing it as evidence would:

...

(e) disclose, or enable a person to ascertain, the existence or identity of a confidential source of information relating to the enforcement or administration of a law of the Commonwealth or a State; or

(f) prejudice the proper functioning of the government of the Commonwealth or a State.

(5) Without limiting the matters that the court may take into account for the purposes of subsection (1), it is to take into account the following matters:

(a) the importance of the information or the document in the proceeding;

...

(c) the nature of the offence, cause of action or defence to which the information or document relates, and the nature of the subject matter of the proceeding;

(d) the likely effect of adducing evidence of the information or document, and the means available to limit its publication;

...".

The expression " court " is defined in the Dictionary to the Evidence Act to include " NSW court ". That expression is defined to mean:

"(a) the Supreme Court, or

(b) any other court created by Parliament,

and includes any person or body (other than court) that, in exercising a function under the law of the State, is required to apply the laws of evidence. "

Section 131A of the Evidence Act extends the operation of Part 3.10, Div 3 (which includes s 130) as follows:

"(1) If:

(a) a person is required by a disclosure requirement to give information, or to produce a document, which would result in the disclosure of a communication, a document or its contents or other information of a kind referred to in Division 1 ..., and

(b) the person objects to giving that information or providing that document,

the court must determine the objection by applying the provisions of this Part ... with any necessary modifications as if the objection to giving information or producing the document were an objection to the giving or adducing of evidence.

(2) In this section, disclosure requirement means a process or order of a court that requires the disclosure of information or a document ... (Emphasis in original.)

Section 133 of the Evidence Act provides that if a question arises under Part 3.10 in relation to a document, the court may order the document to be produced and may inspect it for the purpose of determining the question.

The Primary Judgment

Schmidt J noted (at [3]) that AVS had applied to the ADT for an order staying the Commissioner's revocation decision. The Commissioner had tendered documents in opposition to the stay application which were identified as a " criminal intelligence report or other criminal information " for the purposes of s 15(6) of the SI Act . The ADT had admitted the documents as a confidential exhibit and had considered them in a closed hearing from which AVS and its legal representatives had been excluded. Her Honour also noted (at [6]) that the Commissioner proposed to rely on the confidential exhibit at the ADT's hearing of the review application, without AVS or its representatives being given access to the documents or an opportunity to respond to their contents.

Schmidt J referred (at [8]) to an application made by AVS in which it sought directions from the ADT that its interests be represented by a special advocate on the hearing of the review application. That application had been declined by Judicial Member Moloney, on the ground that s 29(3) of the SI Act required the Commissioner's approval for such a procedure. This decision had prompted AVS's application to the Commissioner for his approval to the proposed special advocate procedure which had been refused on 9 October 2009 (see [33] above).

Since the Commissioner had refused AVS's application, the result (at [9]) was that unless the relief sought by AVS was granted, it would have no opportunity for any submissions to be made on its behalf in relation to " material which is undoubtedly crucial to the issues which the [ADT] will have to determine in the proceedings ".

Schmidt J recorded (at [10]) that the Commissioner had identified the following issues for determination:

"(1) Whether the procedural discretions conferred upon the [ADT] by the ADT Act empower the [ADT], in appropriate circumstances, to adopt a hearing procedure involving participation by a 'special advocate' of the kind proposed by [AVS];

(2) If the answer to question (1) is Yes (as [AVS] contend[s]): whether, as held by the [ADT] on 2 September 2009, the Commissioner's approval is, on a proper construction of s 29(3) of the SI Act , a necessary precondition for the [ADT] to adopt such a hearing procedure in the circumstances of the present case;

(3) If, contrary to [AVS's] submission, the answer to question (2) is Yes, then:

(a) Is the Commissioner compellable to consider and determine whether to exercise his discretion to approve the 'special advocate' procedure?

(b) If the Commissioner is so compellable, has the Commissioner in the represent case in fact engaged in such a consideration and determination bona fide for the purposes for which the discretion was conferred?"

Questions 1 and 2

Schmidt J first considered the interaction between s 29(3) of the SI Act and the ADT Act . She expressed the view (at [18]) that s 29(3), which involves a significant departure from the rules of natural justice, limits the ADT's powers under s 73(1) and (2) of the ADT Act to determine its own procedure to inquire into and inform itself on any matters in such manner as it thinks fit. Her Honour also considered that s 29(3) of the SI Act qualifies other obligations under the ADT Act , such as the requirement under s 73(4)(a) to ensure that the parties understand the nature of the assertions made in the proceedings.

Schmidt J pointed out (at [20]) that in Commissioner of Police (NSW) v Gray [2009] NSWCA 49; 74 NSWLR 1, McColl JA (with whom Giles and Tobias JJA agreed) held (at [111]) that s 73 of the ADT Act , to the extent that it contradicts the requirement in s 29(3) of the SI Act that neither the existence nor content of s 15(6) materials be disclosed by the ADT, " cannot stand with s 29(3) ". It followed, so her Honour held (at [21]), that any procedures the ADT chooses to adopt under s 73 of the ADT Act must adhere to the requirements of s 29(3) of the SI Act .

No issue arose as to the existence of the confidential intelligence report, since the Commissioner had already disclosed its existence to AVS. The question (at [22]) was whether the ADT could disclose the contents of the report to the proposed special advocate without the Commissioner's consent.

Schmidt J noted (at [23]) that the proposed special advocate procedure was not expressly envisaged by the ADT Act , in particular by s 128. AVS had submitted that the appointment of a special advocate was not prohibited because such an advocate was not the " public ", the " applicant for review ", the " applicant's representative " or an " interested party " for the purposes of s 29(3) of the SI Act . Her Honour rejected the submission.

Her Honour reasoned as follows (at [28]-[39]):

"28 The real crux of [AVS's] argument, it seems to me, was that under the orders which it was proposed that the [ADT] make, the special advocate would not be 'the applicant's representative', but would rather represent [AVS's] interests'. The result was that the [ADT] did not require the Commissioner's consent under s 29(3)(b) of the [ SI Act ], before the confidential exhibit was disclosed to the special advocate. In my view, as well as overlooking what s 29(3)(a) requires of the [ADT], the distinction which [AVS] seek[s] to draw between representing [AVS], as opposed to representing [its] interests, has no force. A party which is represented in proceedings before the [ADT], of necessity engages that person to represent its interests. There is no other purpose for such representation.

...

32 AVS's] case was that what was proposed could be ordered by the [ADT] under Section 73 of the [ ADT Act ]. That section is concerned with how the [ADT] is to conduct the proceedings brought before it, not with the representation of the parties or their interests in those proceedings. That is a matter expressly dealt with elsewhere, in s 71 of the Act. It follows that in determining whether there is a statutory basis for a special advocate process in proceedings before the [ADT], consideration must be given to what ss 67 and 71 provide.

...

35 It was argued for [AVS] that the special advocate would not truly be representing [it] in the proceedings, but only their interests. Section 71 does not provide for representation of a party's 'interests', separately from representation of the party itself. In my view, the true effect of what is proposed in the context of this statutory scheme, is that different representatives would appear for [AVS] in relation to different aspects of the proceedings.

36 While s 71 does not preclude such different representation at different stages of proceedings, what it does require is that any representative must be engaged by the party whose interests they represent. The Act does not contemplate that a representative could be engaged or appointed by anyone else ...

37 [AVS's] proposal is that the special advocate be a nominated Queens Counsel, initially engaged and briefed by [AVS]. That accords with the provision made in s 71(1)(b) for representation by a legal representative. It is then intended that the [ADT] appoint the nominated counsel to the position of special advocate, who would then represent [AVS's] interests in relation to the confidential exhibit. That, it seems to me, is the role of a representative of the party whose interests are being represented. Under this statutory scheme, with the exceptions mentioned, anyone engaged by a party to represent that party, or its interests, must be given the party's authority to appear in the proceedings and once so engaged to appear, can appear to do nothing other than to represent that party's interests, when so appearing.

38 Undoubtedly the legislature could have drawn a distinction between representation of a party and representation of a party's interests and could have empowered the [ADT] to make an appointment in respect of such interests. The legislature has not done so.

39 It is in this context that the proposed orders appear to me to run into difficulty. It is proposed that the special advocate would initially be engaged and briefed by [AVS] and ultimately would be paid by them. Appointment to the position would be by the [ADT]. That is not contemplated by s 71, or any other provisions of the Act and is not merely a matter of the procedure to be adopted by the [ADT] in the proceedings."

Schmidt J observed (at [44]) that the effect of the proposed special advocate procedure would be to place the special advocate in a similar position to a representative instructed by AVS, who is given access to a confidential exhibit to which AVS itself is not given access. Such a procedure is expressly envisaged by s 75(2)(d) of the ADT Act . However, s 29(3)(a) of the SI Act prohibits the ADT from disclosing the contents of the confidential exhibit without the Commissioner's consent. In her Honour's view (at [45]), s 29(3)(a) of the SI Act had impliedly repealed s 75(2)(d) of the ADT Act , since the latter provision empowered the ADT to make an order under the latter provision without the consent of a party.

Schmidt J pointed out (at [51]) that parts of the orders proposed by AVS suggested a role for the special advocate " somewhat akin to that of an amicus curiae ". But this was not what was proposed. The role envisaged for the special advocate was quite different from that of an amicus, since the special advocate was not to have a neutral role, but was to advance AVS's case (at [52]).

Her Honour answered (at 55]) Questions 1 and 2 as follows:

"I am satisfied for these reasons that the first question posed by [AVS], whether a special advocate process could be adopted in proceedings before the [ADT], must be answered yes, on the basis that such an advocate would appear as a representative of [AVS] in that part of the proceedings from which [AVS] and [its] other representatives were excluded. Such an advocate must be appointed by a party to the proceedings. As to the second question, whether a special advocate process could be adopted without the Commissioner's consent, it must be answered in the negative. Absent such consent, disclosure of the confidential exhibit to the proposed special advocate, is precluded by s 29(3)(a) of the [ SI Act ]."

Question 3

Schmidt J stated (at [62]) that the purpose of s 15(6) of the SI Act is to prevent disclosure of the existence or contents of any criminal intelligence report or other criminal information in proceedings conducted before the ADT unless the Commissioner consents. Contrary to the Commissioner's submissions, the sub-section was not concerned with giving the Commissioner a forensic advantage in the ADT proceedings.

Her Honour rejected (at [64]) the Commissioner's submission that AVS was entitled only to receive advice of the Commissioner's refusal of consent and that no adverse inferences could be drawn against him from the failure to give any reasons for the refusal. In her Honour's view (at [64]):

"[a]ny explanation of why the Commissioner would not consent to the proposed special advocate procedure, could not conceivably have required any disclosure of what the criminal intelligence itself was."

Schmidt J continued as follows (at [67]-[68]):

"67 In this case there is evidence of a request to consent to disclosure on a basis which seeks to ensure that the confidentiality of the information which the Security Industry Act seeks to protect, will be maintained. Section 29(3) gives the Commissioner a discretion to agree to the proposed procedure. It seems clear that the section contemplates that consent would be forthcoming, if the Commissioner were satisfied that what is proposed would preserve the confidentiality of the criminal intelligence which the section is designed to protect. The Commissioner's response to the request for consent was that he would not engage in such a process. There was no suggestion that the refusal was based on any view that the procedure was an inadequate way of ensuring that the confidentiality of the material was maintained. There was also no response to the request for advice as to any alteration to what was proposed, which would result in consent being given, although in these proceedings it became apparent that if the special advocate was to be appointed by the Attorney General, the Commissioner would not have an objection to the process.

68 I am satisfied that the inference that the Commissioner failed to consider whether the proposal adequately protected the confidentiality of the confidential information is fairly open on the evidence ..."

Her Honour also rejected (at [70]) the Commissioner's argument that the Court should refuse relief because s 29(3) of the SI Act merely conferred on the Commissioner a " private right " to consent to disclosure of the criminal information. The Commissioner's powers related to a matter of significant public interest and the giving or refusing of consent could have very significant consequences. Her Honour considered (at [72]) that:

" Section 29(3) contemplates, as [AVS] argued, the Commissioner's active consideration of a request for approval of disclosure of criminal intelligence protected by the Act, not a blanket refusal to engage in the process proposed in order to maintain a forensic advantage in Tribunal proceedings . The section requires consideration to be given to whether the discretion should be exercised having in mind the purpose for which the discretion is granted under the statutory scheme. The grant of the discretion comprehends a duty that it be exercised for a valid and proper purpose." (Emphasis added.)

Orders

Schmidt J made declarations and orders set out earlier (at [37]) in order to give effect to her conclusions that (at [73]-[74]:

the ADT could not appoint a special advocate under the statutory scheme, but AVS could;

with the Commissioner's consent the confidential exhibit could be disclosed to the special advocate; and

the SI Act required the Commissioner to give AVS's proposal consideration.

Submissions

The parties filed written submissions at various times before and after the hearing. At no stage did the parties consolidate their submissions. For this reason, it is convenient to summarise the submissions by reference to the three matters before the Court:

the Commissioner's application for leave to appeal from the decision of Schmidt J;

AVS's application for leave to cross-appeal from the same decision; and

AVS's claim for relief in the removed proceedings.

Perhaps not surprisingly given the very wide range of issues canvassed by the parties and the differences in the timing of submissions, the parties' positions were not always entirely internally consistent. The Commissioner, for example, asserted in written submissions in the removed proceedings that his right to grant or withhold approval under s 29(3) of the SI Act to the disclosure of intelligence is a " true discretion ". In subsequent submissions on his application for leave to appeal, the Commissioner maintained that s 29(3) was not a source of power for him to grant or withhold approval and that his approval was merely a precondition to the ADT taking a particular course of action. It is not necessary, however, to analyse the submissions for the purpose of identifying any inconsistencies.

In my opinion, the Commissioner does not have to do so. To hold otherwise would mean that, in a case where the existence of Criminal Intelligence had not been disclosed to the review applicant, the Commissioner would be bound to reveal the very matter that the legislation contemplates need not be disclosed to the review applicant. I do not think that the legislation requires a different result where the review applicant has been told that the Commissioner relies on Criminal Intelligence. The legislation cannot have a differential construction depending on whether or not the review applicant happens to have learned of the existence of Criminal Intelligence.

Section 29(3) assumes that any request to the Commissioner, which requires a response will be made by the ADT. The ADT will be entitled to ask the Commissioner to give reasons in confidence for any refusal, to evaluate any such reasons and to bring any doubts or misgivings about the refusal to the Commissioner's attention.

The foundations for AVS's case in the proceedings determined by Schmidt J were wanting. The Commissioner was not bound to consider a response to AVS's request that he approve the proposed special advocate procedure. Since the Commissioner was not bound to respond to AVS's request, there is no basis for AVS's further proposition that the Commissioner, if satisfied that the nominated special advocate would maintain confidentiality, was bound to approve disclosure of the Criminal Intelligence in the special advocate.

I should add that even if there was a basis for contending that the Commissioner was bound to consider a request by AVS for approval of the proposed special advocate procedure, there would be serious obstacles in the path of concluding that the Commissioner was obliged to approve the request. Among other things, the Commissioner's legitimate concerns, as stated in his letter of 23 April 2010, include the circumstances in which the Criminal Intelligence was obtained and the possibility that disclosure, even to a special advocate subject to confidentiality obligations, would breach undertakings given to those who have provided the Intelligence.

The conclusion I have reached has the advantage of minimising the opportunities for interlocutory disputation before the ADT hears and determines an application for review of a revocation decision. It is difficult to accept that the legislation introducing the confidentiality regime for Criminal Intelligence was intended to open the way for elaborate and expensive pre-hearing applications which can prevent the attainment of the statutory objectives of quick action by the ADT (s 73(5)(c)) in accordance with the substantial merits of the case (s 73(3)).

Constitutional Issues

Section 78B Notice

The constitutional issue identified by AVS in its notice under s 78B of the Judiciary Act is as follows:

"2 The question is whether s 29(3) of the [ SI Act ] is constitutionally invalid for the reason that it:

a. requires an inferior tribunal, namely the [ADT], unless an executive officer of the State of New South Wales, namely the Commissioner of Police, approves otherwise, to publish reasons for decisions made by it and affecting legal rights, that are misleading as to the true reasons for such decisions, by reason of the non-disclosure in such published reasons of the existence of matters that may in particular cases be matters giving rise to jurisdictional error by the Tribunal in reaching such decisions; and therefore

b. is capable of operating so as to prevent in particular cases the effective exercise by the Supreme Court of New South Wales of the supervisory jurisdiction to review jurisdictional error on the part of the [ADT]; and

c. is to that extent repugnant to the requirements of Chapter III of the Commonwealth Constitution; and

d. is incapable of being read down so as to operate only in a manner that avoids that repugnancy.

3. Section 29(3) of the SI Act purports to prohibit the [ADT], in determining any application for review by it of a decision of the Commissioner to revoke a statutory licence issued pursuant to the SI Act , from disclosing the existence of any criminal intelligence report or other criminal information that the Commissioner considers relevant to the determination of that application for review, unless the Commissioner approves such disclosure. The Commissioner contends that, on the proper construction of s 29(3) of the SI Act , he is under no duty to consider and determine a request for such approval, at least in a case where, his doing so would necessarily disclose that matter, which the [ADT] is prohibiting from disclosing without his approval. [AVS says] that if the construction for which the Commissioner contends is correct, section 29(3) of the SI Act necessarily has the operation specified in paragraph (2) above, and is consequently wholly invalid." (Emphasis added.)

Submissions

AVS's Submissions

AVS submitted that the effect of s 29(3) of the SI Act is that the ADT cannot effectively perform its duty under the ADT Act to give reasons if those reasons would disclose the existence or content of Criminal Intelligence without the Commissioner's approval. (The obligation to give reasons is imposed on the ADT by s 89 of the ADT Act and on an Appeal Panel by s 117 of the ADT Act .) It follows, so Mr Hughes argued, that s 29(3) of the SI Act requires the ADT, where it has had regard to Criminal Intelligence, to publish reasons that are, at best, incomplete and, at worst, positively misleading. In all cases where the existence of Criminal Intelligence is not known to the review applicant, the reasons must be misleading because the ADT is forced to conceal the fact that the reasons are incomplete.

The significance of this, from a constitutional perspective, is said to be that the unpublished reasons of the ADT may disclose a jurisdictional error, for example an erroneous classification of material as " criminal information " for the purposes of s 29(3). Mr Hughes submitted that it would be impossible to invoke the supervisory jurisdiction of the Supreme Court in relation to a decision by the ADT if the only published record of the ADT's reasons conceals the basis for asserting the existence of jurisdictional error. If a review applicant sought judicial review in the Supreme Court without a basis for establishing jurisdictional error, the proceedings would be an abuse of process.

Accordingly, on the Commissioner's construction, s 29(3) of the SI Act prevents a review applicant from invoking the powers of the Supreme Court to review an ADT decision for jurisdictional error, except at the absolute and unreviewable discretion of the Commissioner. This positively impairs and perverts an essential characteristic of the Supreme Court, namely the power to grant relief on account of jurisdictional error. Section 29(3) of the SI Act therefore impairs a defining characteristic of the Supreme Court as it existed when the Constitution came into force. Such a law is unconstitutional: Kirk v Industrial Court (NSW) [2010] HCA 1; 239 CLR 531, at [99], per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ.

The Attorney General's Submissions

The Attorney General submitted that the constitutional issue raised by AVS was " hypothetical and premature ". Dr Griffiths SC, who appeared with Mr Hutton for the Attorney General, pointed out that AVS's submissions concentrated on the impact of s 29(3) of the SI Act on the exercise of the Supreme Court's constitutionally entrenched jurisdiction to review administrative decisions for jurisdictional error. The constitutional issue was premature because the ADT had not yet received any Criminal Intelligence, had not yet made a decision and had not yet given any reasons for a decision. Moreover, no application had been (or could be) made to the Supreme Court for judicial review of the ADT's final decision. It was therefore not necessary to resolve the constitutional issue for the purposes of the proceedings.

If the Court nonetheless decided to consider the constitutional question, the Attorney General submitted that s 29(3) of the SI Act was not invalid. The sub-section, so Dr Griffiths argued, does not prevent disclosure of the ADT's full reasons to the Appeal Panel of the ADT. Nor does s 29(3) prevent the Appeal Panel from disclosing to the Supreme Court the full reasons for rejecting an application for review. Moreover, s 29(3) does not purport to prohibit disclosure of Criminal Intelligence to the Supreme Court. An applicant seeking judicial review could ask the Supreme Court to issue a subpoena or notice to produce requiring the ADT (or the Appeal Panel) to produce to the Court a copy of the full reasons. Issues of confidentiality could then be addressed when orders were sought for access to the documents produced to the Court.

The Attorney General further submitted that even if s 29(3) of the SI Act deprives the Supreme Court of the ADT's full reasons for the decision, the sub-section would not impinge on the Kirk principle. The reasoning in Kirk is that the jurisdiction to issue prerogative relief in respect of jurisdictional error by an administrative tribunal was a " defining characteristic " of State Supreme Courts at federation. The High Court held that it was not open to abrogate that constitutionally entrenched jurisdiction by a privative clause.

Dr Griffiths argued that to derive from Kirk a further implied constitutional requirement that State Supreme Courts, on every application for judicial review of an administrative decision, be furnished with complete reasons would " turn the reasoning in Kirk on its head ". At common law, there is no right to reasons for an administrative decision: Public Service Board (NSW) v Osmond [1986] HCA 7; 159 CLR 656. The absence of reasons for an administrative decision does not prevent the Supreme Court of a State exercising a power of judicial review in relation to that decision. It would therefore be surprising if any statutory qualification to a purely statutory right to reasons was unconstitutional.

Reasoning

The Kirk Principles

In Kirk , the joint judgment of six members of the High Court propounded five propositions of significance for the present case:

Chapter III of the Constitution , in particular s 73, requires that there be a body fitting the description of " the Supreme Court of a State " (at [96]);
it is beyond the legislative power of a State so to alter the constitution or character of its Supreme Court that it ceases to meet the constitutional description (at [96]), citing Forge v Australian Securities and Investments Commission [2006] HCA 44; 228 CLR 45, at [63], per Gummow, Hayne and Crennan JJ;
the supervisory jurisdiction of each Supreme Court at Federation entitled it to issue a writ of certiorari to any inferior court and that jurisdiction could not be denied by a statutory privative provision (at [97]);
that supervisory jurisdiction was at Federation and remains the mechanism for determining and enforcing the limits of State executive and judicial power by bodies other than the Supreme Court and was and is " a defining characteristic of these courts " at [98]; and
the limit on the power of a State legislature to curtail the supervisory jurisdiction of a Supreme Court is marked by the distinction between " jurisdictional " and " non-jurisdictional " error, it being open to a State Parliament to deny relief for non-jurisdictional error of law, but not for jurisdictional error (at [100]).

The High Court did not directly apply these principles in Kirk itself, since the Court was able to construe the privative clause in issue (s 179 of the Industrial Relations Act 1996 (NSW)) as not precluding judicial review for jurisdictional error. The principles were, however, applied by the High Court to a more widely drawn privative clause in South Australia v Totani [2010] HCA 39: at; [128], per Gummow J; [193], per Hayne J at [268], per Heydon J (dissenting, but not on this point); at [415], per Crennan and Bell JJ.

Is the Constitutional Issue Premature?

AVS does not suggest that s 29(3) of the SI Act is constitutionally invalid because it requires the ADT to adopt unfair procedures. Its contention is that s 29(3) is invalid because it could prevent the Supreme Court effectively exercising its supervisory jurisdiction to review jurisdictional error by the ADT. AVS also says that s 29(3) cannot be read down so as not to contravene the principles stated in Kirk .

The Attorney General cited observations made by Gavan Duffy, Rich and Starke JJ in James v South Australia [1927] HCA 32; 40 CLR 1 in support of his argument that AVS's challenge to the validity of s 29(3) of the SI Act was premature. Their Honours there said (at 38) that:

"The jurisdiction of the Court to declare a statute or parts of a statute in contravention of the Constitution can be invoked only when it is found necessary to secure and protect the rights of a party before it against unwarranted exercise of legislative power to his prejudice ..."

In James v South Australia , there had been no exercise of legislative power that had affected the interests of the plaintiff. His concern was merely that he might be injured in the future if powers conferred by the impugned legislation were exercised.

The present case is different. Unless AVS's challenge to the constitutionality of s 29(3) is determined, the ADT will hear AVS's review application subject to the procedural and evidentiary constraints mandated by the sub-section. It is true that AVS may yet succeed on its review application regardless of those constraints. It is also true that deferring a ruling on the constitutional challenge would provide a more complete factual context in which to consider the operation of the legislation. Nonetheless, if AVS's constitutional argument is correct, it will be required to pursue its review application in the ADT under a statutory regime that disadvantages it and (by hypothesis) that is invalid. Accordingly, I do not think that the constitutional challenge is premature.

Consideration

The principles articulated in Kirk are concerned with legislation denying the supervisory jurisdiction of the Supreme Court of a State in respect of jurisdictional error. A somewhat broader formulation is that the Parliament of a State does not have authority to enact a law which impairs one of the defining characteristics of its Supreme Court: Totani , at [68], per French CJ. The principles in Kirk do not, however, lead to the conclusion that State legislation which creates practical difficulties for an applicant seeking judicial review for jurisdictional error will necessarily fall foul of Chapter III of the Constitution .

In South Australia v Totani it was argued that State legislation rendered a decision by the Attorney-General to declare an organisation a risk to public safety and order unreviewable by the Supreme Court of South Australia. As has been noted, the privative clause was held to be ineffective to preclude exercise of the Supreme Court's jurisdiction to grant relief in respect of jurisdictional error by the Attorney-General as the decision-maker.

Hayne J recognised (at [195]) that any challenge would face " very large " forensic difficulties. His Honour continued as follows:

"Those difficulties would be compounded if, as may well be the case, not all of the information before the Attorney-General could be inspected by the party seeking judicial review. To the extent to which the Attorney-General acted upon criminal intelligence, [the legislation] would appear, on its face, to preclude a court from making that material available to the applicant for judicial review. In addition, the Attorney-General may act upon information in respect of which it would be proper for the Attorney to claim public interest immunity from production. In such circumstances, for an applicant for judicial review to show that the Attorney-General's decision was affected by some mistake of law, or that the Attorney-General took some extraneous reason into consideration, or excluded from consideration a factor which should affect the determination, would be very difficult. But the decision is not unexaminable for jurisdictional error." (Citation omitted.)

French CJ expressly agreed (at [27]) with this passage. Crennan and Bell JJ agreed (at [415]) with Hayne J's reasoning on the reviewability issue, indicating that their Honours also endorsed Hayne J's reasoning in the quoted passage.

Heydon J took a similar approach to the forensic obstacles confronting an applicant seeking judicial review of the Commissioner's decision. His Honour said (at [269]):

"It is true that invoking judicial review is not made easy: the Attorney-General is not required to give reasons for the declaration (s 13(1)), criminal intelligence supplied by the Commissioner to the Attorney-General cannot be made available to the claimant for review (s 13(2)) and public interest immunity may be claimable by the Attorney-General for other material. The absence of a duty on the Attorney-General to give reasons scarcely deprives the Magistrates Court of institutional integrity: in this respect s 13(1) of the impugned Act simply follows the common law. The duty of the Attorney-General to preserve criminal intelligence may create difficulties in relation to a subpoena seeking material capable of being tendered in evidence to demonstrate a lack of jurisdiction in the Attorney-General. But the rule restricting access to criminal intelligence overlaps with similar common law rules of public interest immunity. The general problem exists in many fields in relation to documents for which public interest immunity may be claimed without depriving the court of capacity to entertain administrative law challenges. Section 13(2), like s 21(1) and (2)(a), considered below, is simply an illustration of the difficulty created by the existence of immunities or privileges from production." (Citations omitted.)

There is nothing in s 29(3) of the SI Act , or any other provision of the Act , that denies the power of the Supreme Court to grant relief in respect of a jurisdictional error by the ADT (including by the Appeal Division). Neither the SI Act nor the ADT Act contains a privative clause which purports to render a decision of the ADT immune from judicial review. On the contrary, the ADT Act provides that a party to proceedings may appeal to the Supreme Court on a question of law against any decision of an Appeal Panel (s 119) and explicitly preserves the power of the Supreme Court, in the exercise of its original jurisdiction, to review decisions of the ADT (s 122). (The latter provision is subject only to a statutory power to refuse to grant an application in specified circumstances (s 123)).

Section 29(3) of the SI Act does not prevent the ADT preparing reasons which set out fully the extent to which it has taken Criminal Intelligence into account in rejecting an application for review of a revocation decision. No such submission was made by AVS. On the contrary, its submissions assumed that there would be unpublished reasons prepared by the ADT which might, upon scrutiny, reveal that the ADT had made a jurisdictional error.

AVS did not submit that s 29(3) of the SI Act , or any other legislation, prevents the Supreme Court requiring the ADT to produce to the Court the full reasons for decision. Nor did AVS submit that the ADT was excused from complying with any such requirement.

In my view, the difficulties facing an applicant who wishes to invoke the supervisory jurisdiction of the Supreme Court to challenge a decision of the ADT based wholly or partly on Criminal Intelligence are not necessarily any greater than those facing an applicant who has been given no reasons for an administrative decision. In each case, the difficulties may prove substantial, but they do not deny the Supreme Court power to grant relief in respect of jurisdictional error and do not substantially impair the exercise of that power. In each case, the Court may draw such inferences as to the decision-maker's reasons as are appropriate on the material before it. If the Supreme Court has the full reasons for the decision, even if they are confidential, it will be in a better position to identify jurisdictional error than if it has no reasons

AVS submitted that the requirements of the Uniform Civil Procedure Rules (" UCPR ") make it " impossible " to invoke the Court's jurisdiction to review administrative decisions for jurisdictional error if the only published record of the administrative proceedings is one that conceals the true basis for the decision. Mr Hughes pointed to UCPR , Pt 6, r 12A, which requires a summons under s 69 of the Supreme Court Act 1970 (NSW) to review an administrative decision to:

briefly state the grounds relied on in support of the claim (r 12A(b)); and
annex a copy of the reasons for the decision (if any) (r 12A(c)).

According to Mr Hughes, a summons invoking the jurisdiction of the Supreme Court to review, for example, for error of law, where the applicant did not know what had occurred, would be an abuse of process.

This submission overlooks two important points. First, it may be obvious or at least a reasonable inference that the reasons given by the ADT are not the full reasons for a decision unfavourable to the review applicant. In these circumstances, the applicant may well have a reasonable basis for contending that the ADT has fallen into jurisdictional error. If, for example, all the evidence referred to in the reasons supports the applicant's case and no cogent reason is given for rejecting that evidence, there may be an arguable case that the decision is affected by jurisdictional error.

Secondly, the submission does not take account of provisions in the Civil Procedure Act 2005 (NSW) (" CP Act ") and the UCPR that give the Supreme Court power to dispense with strict compliance with the Rules. The overriding purpose of the CP Act and of the UCPR is " to facilitate the just, quick and cheap resolution of the real issues in proceedings ": CP Act , s 56(1). The Court is bound to give effect to this overriding purpose when it interprets any provision of the CP Act or any rule of Court: s 56(2). The Court is given express power to make such directions as it thinks fit, whether or not consistent with rules of Court, for the speedy determination of the real issues: s 61(1). In addition UCPR , Pt 2, r 2.1, empowers the Court to give such directions and to make such orders for the conduct of the proceedings as appear convenient, whether or not inconsistent with rules of Court, for the just, quick and cheap disposal of the proceedings.

It cannot be assumed that the Supreme Court will allow procedural requirements to frustrate the exercise of its jurisdiction to review for jurisdictional error. It is incorrect to suggest that r 12A renders it impossible for the Supreme Court to exercise that jurisdiction.

For these reasons, the constitutional challenge fails.

AVS submitted in the alternative that s 29(3) of the SI Act deprived the Court of an essential incident of the judicial function and distorted its institutional integrity as a Chapter III court: cf International Finance Trust Co Ltd v New South Wales Crime Commission [2009] HCA 49; 240 CLR 319, at 355 [56], per French CJ. However, this submission rests on the same grounds as AVS's primary submission and must be rejected for the same reasons.

ORDERS

For the reasons given, Declarations 2 and 4 made by the primary Judge ([37] above) cannot stand. The Commissioner is not bound to consider the proposed special advocate procedure put to him by AVS for approval. Nor is the Commissioner bound to consider AVS's application for the disclosure of Criminal Intelligence on which the Commissioner intends to rely.

Although Declaration 1 was not specifically challenged by the Commissioner, it cannot stand in its present form. The ADT, with the approval of the Commissioner, can adopt the proposed special advocate procedure (or some similar procedure), but its power to do so is not dependent on the special advocate being appointed by AVS. Declaration 1 is inconsistent with the reasoning that has led to the Commissioner's appeal against Declarations 2 and 4 succeeding.

The appropriate course is to direct the Commissioner to file an amended notice of appeal within seven days incorporating a claim to an order setting aside Declaration 1. Subject to compliance with that direction, Declaration 1 should be set aside.

None of the orders sought in AVS's notice of cross-appeal should be made. Declarations 2 and 3 ([42] above) wrongly assume that the ADT can adopt the proposed special advocate procedure without the approval of the Commissioner.

Declaration 4(a) as sought has little utility. There is no dispute that the Commissioner can approve the proposed special advocate procedure if he wishes and that, if he does, the ADT may adopt that procedure. The real controversy is whether, as AVS argued, the Commissioner is bound to consider and determine AVS's request that he approve the proposed special advocate procedure. For the reasons I have given, he is not so bound.

The other Declarations sought by AVS in its notice of cross-appeal relate to the powers of the ADT in conducting AVS's application for review of the revocation decision. That application has not yet been heard.

I have expressed certain views about the scope of the ADT's powers and duties. However, it is not appropriate to make declarations as to the powers of the ADT before the hearing on AVS's review application. The ADT has not yet made any final ruling on the scope of its powers and it is not known what applications, if any, will be made to the ADT or their factual basis.

If AVS wishes to challenge any rulings or orders made by the ADT on the review application, it will have the opportunity to do so. In the meantime, the much delayed review application should take its course.

AVS is not entitled to any of the relief it seeks in the Removed Proceedings. Its claims depend on the proposition, which I have rejected, that the Commissioner was bound to consider and determine AVS's request that he approve the proposed special advocate procedure.

The following orders should therefore be made.

The Appeal and Cross-Appeal

1. Grant leave to the Commissioner to appeal from the decision of Schmidt J on 26 February 2010.

2. Direct the Commissioner to file within seven days an amended notice of appeal which incorporates a claim for an order setting aside Declaration 1 made by Schmidt J on 26 February 2010.

3. Allow the appeal.

4. Set aside the declarations and orders made by Schmidt J on 26 February 2010.

5. In lieu thereof, order that:

(a) The proceedings be dismissed.

(b) AVS pay the Commissioner's costs of the proceedings.

6. Order AVS to pay the Commissioner's costs of the appeal (including the application for leave to appeal).

7. Grant leave to AVS to cross-appeal from the decision of Schmidt J on 26 February 2010.

8. Direct AVS to file its amended notice of cross-appeal within seven days.

9. Dismiss the cross-appeal.

10. Order AVS to pay the Commissioner's costs of the cross-appeal (including the application for leave to cross-appeal).

11. AVS, if otherwise qualified, to have a certificate under the Suitors Fund Act 1951 (NSW) in respect of the appeal.

Removed Proceedings

1. Dismiss the summons filed by AVS on 4 May 2010.

2. Order AVS to pay the Commissioner's costs of the summons.

The parties should have leave to file within fourteen days short minutes of any further orders they consider appropriate to deal with any interim orders that may still be in force.

**********

Decision last updated: 05 August 2011

Medium Neutral Citation:	Commissioner of Police v Sleiman & AVS Group of Companies Pty Ltd & Ors [2011] NSWCA 21
Hearing dates:	20 October, 21 October 2010
Decision date:	21 February 2011
Before:	Allsop P at 1; Handley AJA at 2; Sackville AJA at 3
Decision:	CA 2009/298022 (Appeal and Cross-Appeal) 1. Grant leave to the Commissioner to appeal from the decision of Schmidt J on 26 February 2010. 2. Direct the Commissioner to file within seven days an amended notice of appeal which incorporates a claim for an order setting aside Declaration 1 made by Schmidt J on 26 February 2010. 3. Allow the appeal. 4. Set aside the declarations and orders made by Schmidt J on 26 February 2010. 5. In lieu thereof, order that: (a) The proceedings be dismissed. (b) AVS pay the Commissioner's costs of the proceedings. 6. Order AVS to pay the Commissioner's costs of the appeal (including the application for leave to appeal). 7. Grant leave to AVS to cross-appeal from the decision of Schmidt J on 26 February 2010. 8. Direct AVS to file its amended notice of cross-appeal within seven days. 9. Dismiss the cross-appeal. 10. Order AVS to pay the Commissioner's costs of the cross-appeal (including the application for leave to cross-appeal). 11. AVS, if otherwise qualified, to have a certificate under the Suitors Fund Act 1951 (NSW) in respect of the appeal. SC 2010/110137 (Removed Proceedings) 1. Dismiss the summons filed by AVS on 4 May 2010. 2. Order AVS to pay the Commissioner's costs of the summons. Grant leave in all matters to the parties to file within fourteen days short minutes of any further orders they consider appropriate to deal with any interim orders that may still be in force. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
Catchwords:	ADMINISTRATIVE LAW - revocation of security licence by Commissioner of Police - application for review of decision to the Administrative Decisions Tribunal ("ADT") - ADT required by s 29(3) of Securities Industries Act 1997 (NSW) ("SI Act") to ensure that it does not disclose the existence or content of "criminal intelligence" without approval of the Commissioner - Commissioner relied on criminal intelligence - whether ADT bound or empowered to adopt a "special advocate" procedure to represent the review applicant's interests - whether the Commissioner's refusal to approve disclosure of the criminal intelligence was amenable to judicial review - whether the Commissioner was bound to consider the review applicant's request for approval to disclosure - powers and duties of the ADT to afford procedural fairness in face of confidentiality regime. CONSTITUTIONAL LAW - whether s 29(3) of the SI Act is unconstitutional because it purports to deny the supervisory jurisdiction of the Supreme Court - whether the constitutional issue is premature - application of principles in Kirk (2010) 239 CLR 531 - difficulties facing applicant for judicial review do not establish a denial of the supervisory jurisdiction
Legislation Cited:	The Constitution Judiciary Act 1903 (Cth) Administrative Decisions Tribunal Act 1997 (NSW) Civil Procedure Act 2005 (NSW) Evidence Act 1955 (NSW) Industrial Relations Act 1996 (NSW) Security Industry Act 1997 (NSW) Security Industry Amendment Act 2002 (NSW) Security Industry Amendment Act 2005 (NSW) Suitors Fund Act 1951 (NSW) Supreme Court Act 1970 (NSW) Security Industry Regulations 2007 (NSW) Uniform Civil Procedure Rules 2005 (NSW) Liquor Licensing Act 1997 (SA) Corruption and Crime Commission Act 2003 (WA) Special Immigration Appeals Commission Act 1997 (UK)
Cases Cited:	Amer v Minister for Immigration, Local Government and Ethnic Affairs (Fed Ct, Lockhart J, 18 December 1989, unreported) AVS Group of Companies Pty Ltd v Commissioner of Police [2009] NSWADTAP 48 AVS Group of Companies Pty Ltd v Commissioner of Police [2010] NSWSC 109 AVS Group of Companies Pty Ltd v Commissioner of Police [2010] NSWSC 659 AVS Group of Companies Pty Ltd v Commissioner of Police [2010] NSWCA 81 ("AVS No 1") AVS Group of Companies Pty Ltd v Commissioner of Police [2010] NSWSC 447 Cain v Glass (No 2) (1985) 3 NSWLR 230 Commissioner of Police v AVS Group of Companies Pty Ltd [2009] NSWSC 1408 Commissioner of Police v Gray [2009] NSWCA 49; 74 NSWLR 1 D v National Society for the Prevention of Cruelty to Children [1977] UKHL 1, [1978] AC 171 Forge v Australian Securities and Investments Commission [2006] HCA 44; 228 CLR 45 Gypsy Jokers Motorcycle Club Inc v Commissioner of Police [2008] HCA 4; 234 CLR 532 Hussain v Minister for Foreign Affairs (2008) FCAFC 128; 169 FCR 241 International Finance Trust Co Ltd v New South Wales Crime Commission [2009] HCA 49; 240 CLR 319 James v South Australia [1927] HCA 32; 40 CLR 1 K-Generation Pty Ltd v Liquor Licensing Court [2009] HCA 4; 237 CLR 501 Kirk v Industrial Court (NSW) [2010] HCA 1; 239 CLR 531 Kruger v Commonwealth [1997] HCA 27; (1997) 190 CLR 1 Levy v Victoria [1997] HCA 31; 189 CLR 579 M v Secretary of State for the Home Department [2004] EWCA Civ 324; [2004] 2 All ER 863 Minister for Immigration and Multicultural Affairs v Eshetu [1998] HCA 21; 197 CLR 611 Nicopoulos v Commissioner for Corrective Services [2004] NSWSC 562; 148 A Crim R 74 Public Service Board (NSW) v Osmond [1986] HCA 7; 159 CLR 656 Sankey v Whitlam [1978] HCA 43; 142 CLR 1 South Australia v Totani [2010] HCA 39 Stewart v Ronalds [2009] NSWCA 277; 76 NSWLR 99 United States Tobacco Co v Minister for Consumer Affairs (1988) 20 FCR 520 Weinstein v Medical Practitioners Board of Victoria (2008) VSCA 193 Wurridjal v The Commonwealth [2009] HCA 2; 237 CLR 309
Texts Cited:	N Rees, "Procedure and Evidence in 'Court Substitute' Tribunals" (2006) 28 Aust Bar Rev 41 New South Wales, Minister for Police, SI Act: Review Report: Security Industry Act 1997 and Security Industry Regulations 1998, (October 2004)
Category:	Principal judgment
Parties:	Police Commissioner of New South Wales (Appellant/Cross-respondent) Peter Sleiman (First Respondent/Cross-appellant) AVS Group of Companies Pty Ltd (Second respondent/Cross-appellant) Attorney General of New South Wales (Intervening)
Representation:	Counsel: Dr J Griffiths SC and Mr T Lynch for the Commissioner of Police Mr TEF Hughes QC & Mr K Oliver for Peter Sleiman and the AVS Group of Companies Pty Ltd Dr J Griffiths SC and Mr J Hutton for the Attorney-General Solicitors: Mr I V Knight, Crown Solicitor, for the Commissioner of Police Mr Steffano Laface, AJL Legal, for Peter Sleiman and the AVS Group of Companies Pty Ltd
File Number(s):	CA 2009/298022 SC 2010/110137
Decision under appeal	Citation: AVS Group of Companies Pty Limited and Ors v Commissioner of Police and Anor [2010] NSWSC 109 Date of Decision: 2010-02-26 00:00:00 Before: Schmidt J File Number(s): SC 30102/2009