Nastav v Commissioner of Police, NSW Police

[2006] NSWADT 215

CITATION:	Nastav v Commissioner of Police, NSW Police [2006] NSWADT 215
DIVISION:	General Division
PARTIES:	APPLICANT Stephen Nastav RESPONDENT Commissioner of Police, New South Wales Police
FILE NUMBER:	063162
HEARING DATES:	10/05/2006
SUBMISSIONS CLOSED:	05/10/2006
DATE OF DECISION:	07/28/2006
BEFORE:	Higgins S - Judicial Member
CATCHWORDS:	Application that the hearing be conducted wholly or partly in private
MATTER FOR DECISION:	Preliminary matter
LEGISLATION CITED:	Administrative Appeals Tribunal Act 1975 (Cth) Administrative Decisions Tribunal Act 1997 Freedom of Information Act 1989 Security Industry Act 1997 Security Industry Regulation 1998
CASES CITED:	arratt v Commissioner of Police for New South Wales MU v Commissioner of Police, NSW Police [2004] NSWADT 197 Pochi v Minister for Immigration and Ethnic Affairs (1979) 26 ALR 247 Q R v Commissioner of Police, NSW Police (GD) [2005] NSWADT AP 59
REPRESENTATION:	APPLICANT Q Nguyen, barrister RESPONDENT W Pisani, agent
ORDERS:	1.The respondent’s application for orders under s.75 of the Administrative Decisions Tribunal Act 1997 in respect to the respondent’s material contained in the first bundle of confidential documents and those documents in the second bundle of confidential documents that are specified in the confidential appendix to this decision is dismissed; 2. The matter listed for further directions at 9.30 am on 24 August 2006

Background

1 This is an application by Stephen Nastav (“the applicant”) seeking review of a decision by a delegate of the Commissioner of Police, NSW Police (“the respondent”) to revoke his class 1ABC, class 2B and Master Security Licence that had been issued by the respondent pursuant to the Security Industry Act 1997 (“the SI Act”). The respondent’s decision was based on two grounds, namely:

(a) that the applicant was no longer a fit and proper person to hold a security licence: s.26(1)(c) of the SI Act; and

(b) that it was not in the public interest for the applicant to hold a security licence: s.26(1)(d) of the SI Act and cl.18 of the Security Industry Regulation 1998.

2 In making his determination, the respondent, took into consideration a number of police intelligence reports pursuant to s.15(6) of the SI Act. However, in his reasons for decision, the respondent declined to provide the applicant with any information in regard to the contents of these reports in accordance with s.15(7) of the SI Act.

3 The applicant remains unaware of the content of these police intelligence reports and the respondent continues to rely on them for the purposes of this application. At the same time, the respondent continues to press the confidentiality of this material and has made an application that the hearing of this application, insofar as it relates to this material, should be held in confidence and also in the absence of the applicant and his legal representative. The applicant has opposed such an application and it was agreed between the parties that the Tribunal should determine this preliminary issue before the matter is to proceed any further.

4 The respondent has provided the Tribunal with a copy of the material in question on a confidential basis. That material is contained in two envelopes and the applicant has not been provided with any details of the nature of the documents that are contained therein.

5 For the reasons set out below, I have determined that, with some exceptions, it would be contrary to the principles of natural justice for the Tribunal to hear and consider the matters referred to in these police intelligence reports, in the absence of the applicant and his legal representative. I have left open the question as to whether orders should be made in respect to the proceedings otherwise being held in confidence when the matter next comes before the Tribunal.

6 Notwithstanding my determination the confidentiality of the contents of the relevant police intelligence reports have been maintained in order to preserve the respondent’s appeal rights, should he wish to exercise these. Accordingly, for completeness I have attached to these reasons for decision a confidential appendix, which is to be provided to the respondent and not to be disclosed to the applicant or any other person and not to be disclosed by way of the Tribunal’s internet site.

Relevant legislation

7 Although the respondent relied on two grounds to revoke the applicant’s security licences, for the purposes of this preliminary determination, it is only necessary to refer to the grounds that are set out in s.26(1)(c) of the SI Act. That section provides as follows:

“26(1) A licence may be revoked:
(b) …

(c) If the Commissioner is of the opinion that the licensee is no longer a fit and proper person to hold a licence.”

8 As mentioned above, the Commissioner relied on the provisions of s.15(6) of the SI Act which provides 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 be granted the licence, or

(c) causes the Commissioner not to have confidence that the proper 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).”

9 As can be seen from the express words of s.15(6) and (7) of the SI Act these provisions apply in circumstances where a person is making an application for a security licence and they only apply where the respondent is considering the fitness and propriety of that applicant to hold such a licence.

10 There has been no argument about the proper construction of the relationship between s.15(6) and (7) and s.26(1)(c) of the SI Act so I have assumed that for the purposes of this preliminary determination that s.15(6) and (7) of the SI Act equally applies to s.26(1)(c).

11 However, I do note that s.26(1A) of the SI Act provides that 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 that Act to be refused. In this regard s.15(1)(a) of the SI Act provides that the respondent must refuse to issue a licence to an applicant who he finds to be not fit and proper to hold such a licence. It is noted that in the internal review determination, the respondent stated at para. [11] that reliance was not placed on s.26(1A) of the SI Act even though this was a ground which had been relied on in the initial determination. In any event, it would appear that s.15(6) and (7) have no application to a decision based on the public interest grounds.

Procedure of the Tribunal

12 S.73 of the Administrative Decisions Tribunal Act 1997 (“ADT Act”) sets out the procedure of the Tribunal generally. That section, so far as is relevant provides as follows:

“73(2) The Tribunal is not bound by the rules of evidence and may inquire into and inform itself of any matter in such manner as it thinks fit, subject to the rules of natural justice.

…

(4) The Tribunal is to take such measures as are reasonably practicable …

(c) To ensure that the parties have the fullest opportunity practicable to be heard or otherwise have their submissions considered in the proceedings.
…”

13 The other relevant provision in respect to proceedings before the Tribunal are those that are contained in s.75 of the ADT Act. Subsection (1) provides that proceedings before the Tribunal are to be determined by holding a hearing, the hearing is to be open to the public. Subsection (2) of that section goes on to provide the Tribunal with power to make orders that the hearing is to be conducted wholly or partly in private, or orders prohibiting or restricting the publication or disclosure of material that would identify a particular person, or an order prohibiting or restricting the publication or broadcast of any evidence given before it or matters contained in any document that is lodged with the Tribunal.

14 Unlike s.55 of the Freedom of Information Act 1989 there is no provision in the SI Act which requires the Tribunal in determining a review application to ensure that it does not disclose criminal intelligence reports or criminal information that has been relied on pursuant to s.15(6) of the SI Act and which has not been disclosed to the applicant. However, the respondent relies on s.128 of the ADT Act which provides as follows:

128 Application of confidentiality provisions in other Acts

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 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.

15 The respondent submitted that s.128 of the ADT Act puts the Tribunal in the same position as the respondent. That is, by reason of this section the Tribunal can/must also exercise the powers vested in the respondent under s.15(6) and (7) of the SI Act, which meant that the Tribunal was also not required to disclose criminal intelligence or other criminal information relied on by the respondent.

16 The respondent also relied on the following statement of Gleeson CJ in Jarratt v Commissioner of Police for New South Wales (2005) 221 ALR 98 at paragraph [24]:

“Section 51 of the Act [ Police Act 1990 (NSW)] confers upon public officials … a power to remove the applicant from public office, and thereby prejudice the applicant’s rights and interests. … In Annetts v McCann it was said that it can now be “taken as settled” that the rules of natural justice regulate the exercise of such power “unless they are excluded by plain words of necessary intendment.”

17 It was the respondent’s contention that s.15(7) of the SI Act was a provision which evidenced an intention by Parliament that in circumstances where the respondent relied on criminal intelligence or criminal information that an applicant for or the holder of a security licence was to be deprived of procedural fairness to the extent of being informed of the contents of that material.

18 The principal submission of the applicant was that, in the circumstances where the decision under review related to the applicant’s livelihood, to deny the applicant access to the material in question, would amount to a denial of natural justice, as the applicant would be given no opportunity to respond to the allegations contained therein. He relied on the decision of the Appeal Panel in QR v Commissioner of Police, NSW Police (GD) [2005] NSWADT AP 59, in which the Appeal Panel held that cogent materials needed to be put before the Tribunal which necessitated the preserving of confidentiality over the right to procedural fairness.

19 The applicant went on to submit that if the Tribunal were to determine that the material in question was to remain confidential, then the Tribunal was required to thoroughly test that material given the significant consequences for the applicant and those whom he employs. In this regard the applicant relied on the decision in MU v Commissioner of Police, NSW Police [2004] NSWADT 197.

Assessment

20 It is necessary to make a preliminary finding as to whether the documents contained in the two bundles of confidential material are “criminal intelligence report(s) or other criminal information” coming within the terms of s.15(6) of the SI Act. Without such a finding s.15(7) of the SI Act does not apply. In my opinion, having regard to the content of the documents, they do come within the terms of that subsection.

21 The decision of the Appeal Panel in QR is directly relevant to this application. In that decision the Appeal Panel considered the role of the Tribunal in an application for review of a decision made pursuant to the SI Act and where that decision was based on a criminal intelligence report or other criminal information and the contents of these reports and information had not been disclosed to the applicant pursuant to s.15(7) of the SI Act.

22 In this regard, at para. [16] the Appeal Panel held that when reviewing the respondent’s exercise of discretion pursuant to the SI Act, the Tribunal should adopt an approach which maintained the confidentiality of any information upon which the respondent had relied on if that was the wish of the respondent. The Appeal Panel also stated that the principle objective of s.15(7) of the SI Act was the maintenance of confidentiality of sensitive information. However, it went on to state at paras. [19] to [21] that where the Tribunal proposes to exercise its statutory powers as set out in s.75(2) of the ADT Act, it must do so only if and when there was a public interest supporting the use of these powers which outweighed the public interest in the implementation of the fundamental principles of open justice and procedural fairness: see para. [20].

23 In this regard the Appeal Panel stated the following at para. [19]:

“A person whose interests are likely to be affected by an exercise of power must be given an opportunity to deal with relevant matters adverse to his interests which the repository of the power proposes to take into account in deciding upon its exercise: Kioa v West (1985) 159 CLR 550. (Other citations omitted). Natural justice is a fundamental aspect of the judicial process: Western Australia v Ward (1997) 76 FCR 492 at 496-7. In a recent decision, Bennett & Co v DPP (WA) [2005] WASCA 141, the Full Court of the Supreme Court of Western Australia confirmed at paragraph 43:
‘Natural justice requires that each party should have an equivalent right to be heard. This means that if one party wishes to place evidence or persuasive material before the tribunal, the other party or parties must have an opportunity to see that material and, if they wish, to submit counter material and, in any event, to address the tribunal about the material. One party must not make secret communications to the Court (emphasis supplied): Pamplin v Express Newspapers Ltd [1985] 1 WLR 689 at 691, see also Giannarelli v Wraith (No 2) (1991) 171 CLR 592 at 605 per McKew J’."

24 The Appeal Panel also adopted the principles set out by Brennan J in Pochi v Minister for Immigration and Ethnic Affairs (1979) 26 ALR 247 at page 272-273. The comments of Brennan J were made in the context of s.35(2) of the Administrative Appeals Tribunal Act 1975 (Cth), the terms of which have a similar effect to those set out in s.75(2) of the ADT Act. Those principles were described by Brennan J as follows:

“Yet the powers conferred upon this Tribunal by s.35(2) are not intended to lie dormant – they are there to be exercised, or bight sparingly. The purpose of their exercise is to secure the tribunal the availability of as much relevant information as possible, without violating the confidentiality which a party, a witness or the public is properly entitled to preserve (though a proper entitlement to confidentiality is not likely established). A court may be constrained to violate that confidentiality in order to conduct its proceedings in public; but the tribunal’s Power are intended to facilitate the flow of relevant information to it, and if the exclusion of the public or even of a party is essential to reserve the proper confidentiality of the information needed to determine the application, that is a price which has to be paid, however reluctantly.
An order excluding the public may be justified more readily than an order excluding a party, but strict criteria govern the making of such an order. There must appear a “real possibility of doing an injustice to, or inflicting a serious disadvantage upon” a party, a witness or a person giving information if the proceedings were in public; or it must clearly appear that publication of the proceedings would be contrary to the public interest …

To exclude a party, a further criteria must be satisfied. As it must appear that the exclusion of the party is essential to preserve the proper confidentiality of the information needed to determine the application, it is necessary to show that the information is of such importance and cogency that justice is more likely to be done by receiving the information in confidence, and denying the party access to it, than by refusing an order to exclude the party. The criteria is not easy to satisfy because an Appellant’s interest in a hearing fair to him can be overridden only by another and superior interest, and then only when reconciliation of the two interests is impossible. But the criterion may be satisfied when a public interest in confidentiality clearly appears. …” (emphasis added)

25 Although the decision in QR related to the question as to whether the applicant in that case should have been made aware of the Tribunal holding a hearing in confidence, prior to that hearing taking place, and not as to whether the material to be relied on at that hearing should be disclosed to the applicant, in my opinion the principles enunciated in that decision in respect to procedural fairness equally applies to such circumstances.

26 As a general rule it is accepted that procedural fairness, requires the substance of any credible, relevant or significant document to be disclosed to a party whose interests are affected: see Ansell v Wells (1982) 43 ALR 41; Pilbara Aboriginal Land Council Aboriginal Corporation Inc v Minister for Aboriginal and Torres Strait Islander Affairs [2000] FCA 113 at 557. Lord Denning set down the general rule, in R v Gaming Board for Great Britain ex parte Benaim and Khaida [1970] 2 QB 417 at 430 at 431:

“Seeing the evils that have led to this legislation [the Gaming Act, 1968 (UK)], the ... [Gaming Board] can and should investigate the credentials of those who make application to them. They can and should receive information from the police in this country or abroad who know something of them. They can, and should, receive information from any other reliable source. Much of it will be confidential. But that does not mean that the applicants are not to be given a chance of answering it. They must be given the chance, subject to this qualification: I do not think they need tell the applicant the source of their information, if that would put their informant in peril or otherwise be contrary to the public interest.”

27 However, it is also accepted that this is not an absolute requirement and that its content must be “appropriate and adapted to the circumstances of the particular case.” (Kioa v West (1985) 159 CLR 550 per Mason J at 585.) Exceptional circumstances, such as the potential to harm a person or the public interest, may justify a departure from this requirement: see Chu v Minister for Immigration, Local Government and Ethnic Affairs (1993) 45 FCR 540 and Arcadia Amusements and Vending Pty Ltd v Gaming Commissioner (WA) [1999] WASC 4. Even where it is established that exceptional circumstances exist, the person whose interests and rights may be affected as a result of allegations in confidential information are given details of the essence of the allegation so that they are able to respond to them.

28 I will firstly deal with the contentions of the respondent as these are matters of construction and if accepted then the question of procedural fairness will not arise.

29 In my opinion the respondent’s construction of s.128 of the ADT Act and s.15(7) of the SI Act are misconceived. In my opinion, s.128 of the ADT Act, has no application to the current proceedings. I agree that this section has the effect of prohibiting the Tribunal from disclosing material that has come to its attention, where the disclosure of that material is prohibited under an Act other than the ADT Act. Consequently, in order for this section to come into operation there must be a provision in another Act, which prohibits the disclosure, either completely or subject to specified circumstances, of specified information. In my opinion, s.15(7) of the SI Act on its proper construction is not such a provision. The effect of that provision is to give the respondent a discretion to refuse to disclose the information coming within the terms of s15(6). It is not a prohibition on the respondent disclosing that information. If it was then s.128 of the ADT Act would apply, prohibiting the Tribunal from disclosing the information.

30 Nor, for the purpose of a review application before the Tribunal, can s.15(7) of the SI Act be construed to come within the exception referred to by Gleeson CJ in Jarratt in respect to an applicant’s right to procedural fairness before the Tribunal. It is arguable that on its proper construction it is an exception to the right of procedural fairness so far as the original and internal review decision of the respondent is concerned, but there is nothing in the wording of the subsection or any other section of that Act or another Act including the ADT Act, which expressly states that where the respondent has relied on this provision in making the decision that is the subject of review, that the Tribunal is bound by that determination of the respondent. As pointed out by the Appeal Panel in QR, s.75(1)(a) of the ADT Act suggests the contrary. However, the fact that the respondent has relied on s.15(6) and (7) of the SI Act will be an important factor in determining whether the Tribunal should make an order under s.75(2) of the ADT Act which preserves the confidentiality of the material relied on by the respondent, even to the extent of not making the information available to the applicant or his/her legal advisers.

31 Accordingly, the remaining question is whether, in this case, there is a superior public interest in the circumstances of this application, which override the public interest of the applicant’s right to natural justice in being able to respond to those matters contained in the material in question.

32 In general there is undoubtedly a strong public interest that criminal intelligence or other criminal information held by the respondent is not disclosed. However, in an application such as this application, that public interest must be weighed against the public interest of the applicant being afforded procedural fairness as provided for in s.75(1)(a) of the ADT Act and as described by Brennan J in Pochi.

33 In my opinion, having regard to the contents of the confidential material and the purpose for which it is to be relied on, for the reasons set out in the confidential appendix to these reasons, I find that in respect to the documents contained in the first bundle of documents and those documents in the second bundle of documents that are specified in the confidential appendix to this decision, the public interest in the applicant being afforded procedural fairness over-rides the public interest in the retention of the confidentiality of their contents. In regard to this material, I accept the conclusion of the Appeal Panel in QR that s.15(7) of the SI Act is directed towards the protection of particularly sensitive material obtained and held by the respondent. However, I find that there is nothing sensitive in these documents, which would justify an order under s.75(2) of the ADT Act. In making my findings I have had also had regard to the fact that a decision to revoke an existing security licence prejudices a licence holder’s existing rights and interests. Indeed it has far greater consequences than a decision not to grant a licence to someone who is not an existing security licence holder as it effectively of deprives the licence holder of his/her livelihood.

34 In respect to the remaining material in the second bundle of documents, it is a matter for the respondent to determine whether, in light of this decision, he will continue to rely on that material and seek to press the orders sought. If reliance is to be placed on this material I can indicate that the Tribunal would be inclined to make the orders sought and it will consider this material in light of those matters set out in MU (supra).

35 For the reasons set out above, the Tribunal dismisses the respondent’s application for orders under s.75(2) of the ADT Act in respect to the respondent’s material contained in the first bundle of documents and those documents in the second bundle of documents that are specified in the confidential appendix to this decision. In light of my findings it is appropriate that the matter be re-listed for further directions in order to determine how the matter is to proceed.