Commissioner of Police New South Wales v Gray [2009] NSWCA 49 (16 March 2009)

Last Updated: 18 March 2009

NEW SOUTH WALES COURT OF APPEAL

CITATION:
Commissioner of Police New South Wales v Gray [2009] NSWCA 49
This decision has been amended. Please see the end of the judgment for a list of the amendments.

FILE NUMBER(S):
40162 of 2008

HEARING DATE(S):
2 February 2009

JUDGMENT DATE:
16 March 2009

PARTIES:
Commissioner of Police New South Wales - Appellant
Byron Gray - First Respondent
Administrative Decisions Tribunal, NSW - Second Respondent

JUDGMENT OF:
Giles JA Tobias JA McColl JA

LOWER COURT JURISDICTION:
Supreme Court

LOWER COURT FILE NUMBER(S):
SC 10619 of 2008

LOWER COURT JUDICIAL OFFICER:
Malpass AsJ

LOWER COURT DATE OF DECISION:
9 May 2008

LOWER COURT MEDIUM NEUTRAL CITATION:
[2008] NSWSC 414

COUNSEL:
M Leeming SC and I Bourke - Appellant
N J Williams SC and G A Donnellan - First Respondent

SOLICITORS:
I V Knight, Crown Solicitor - Appellant
S O'Connor - Legal Aid NSW - First Respondent
Second Respondent - no appearance

CATCHWORDS:
STATUTES – acts of parliament – interpretation – effect and operation of s 29(3) Security Industry Act 1997 - implied repeal - Administrative Decisions Tribunal Act 1997, s73
ADMINISTRATIVE LAW – judicial review – procedure and evidence – challenge to dismissal of appeal from decision of Administrative Decisions Tribunal that appellant provide respondent with particulars as to why application for security licence refused
ADMINISTRATIVE LAW – judicial review at common law – administrative decisions — original jurisdiction of court — application for judicial review of appealable decision where Administrative Decisions Tribunal Appeal Panel bypassed — exercise of discretion — Administrative Decisions Tribunal Act 1997, ss 113, 122, 123.

LEGISLATION CITED:
Administrative Decisions Tribunal Act 1997
Administrative Decisions Legislation Amendment Act 1997
Evidence Act 1995
Freedom of Information Act 1989
Firearms Act 1996
Interpretation Act 1987
Security Industry Act 1997
Security Industry Amendment Act 2002
Supreme Court Act 1970
Administrative Appeals Tribunal Act 1975 (Cth)
Migration Act 1958 (Cth)
Corruption and Crime Commission Act 2003 (WA)
Liquor Licensing Act 1997 (SA)

CATEGORY:
Principal judgment

CASES CITED:
Ackroyd v Whitehouse (1985) 2 NSWLR 239
Applicant S214 of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 66
Applicant S214 of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1039
Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 72; (2005) 225 CLR 88
Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321
Bropho v State of Western Australia [1990] HCA 24; (1990) 171 CLR 1
Church of Scientology v Woodward [1982] HCA 78; (1982) 154 CLR 25
CIC Insurance Ltd v Bankstown Football Club Ltd [1997] HCA 2; (1997) 187 CLR 384
Commissioner of Police NSW v Gray [2008] NSWSC 414
Commissioner of Police v Tanos [1958] HCA 6; (1958) 98 CLR 383
Conway v Rimmer [1968] UKHL 2; [1968] AC 910
D v National Society for the Prevention of Cruelty to Children [1977] UKHL 1; [1978] AC 171
Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission [2002] HCA 49, (2002) 213 CLR 543
David v Commissioner of Police, NSW Police [2008] NSWADT 223
FD v Commissioner of Police, New South Wales Police [2008] NSWADT 88
Ferdinands v Commissioner for Public Employment [2006] HCA 5; (2006) 225 CLR 130
Goodwin v Phillips [1908] HCA 55; (1908) 7 CLR 1
Gray v Commissioner of Police, New South Wales Police [2008] NSWADT 29
Gypsy Jokers Motorcycle Club Inc v Commissioner of Police [2008] HCA 4; (2008) 234 CLR 532
Gypsy Jokers Motorcycle Club Ltd v Commissioner of Police [2007] WASCA 49; (2007) 33 WAR 245
Hope v Bathurst City Council [1980] HCA 16; (1980) 144 CLR 1
Jedrasiak v Commissioner of Police, New South Wales Police Service [2001] NSWADT 208
Kable v Director of Public Prosecutions (NSW) [1996] HCA 24; (1996) 189 CLR 51
K-Generation Pty Ltd & Anor Liquor Licensing Court & Anor [2007] SASC 319; (2007) 99 SASR 58
K-Generation Pty Ltd v Liquor Licensing Court [2009] HCA 4; (2009) 252 ALR 471
Lloyds v Veterinary Surgeons Investigating Committee & Anor [1999] NSWCA 68
Minister for Immigration and Multicultural and Indigenous Affairs v Nystrom [2006] HCA 50; (2006) 228 CLR 566
Nastav v Commissioner of Police, NSW Police [2006] NSWADT 215
Neilson v Commissioner of Police, NSW Police Force [2008] NSWADT 186
NSW Breeding & Racing Stables Pty Ltd v Administrative Decisions Tribunal of New South Wales [2001] NSWSC 494; (2001) 53 NSWLR 559
Potter v Minahan [1908] HCA 63; (1908) 7 CLR 277
Project Blue Sky v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355
R v Australian Broadcasting Tribunal; Ex parte Hardiman [1980] HCA 13; (1980) 144 CLR 13
Sankey v Whitlam [1978] HCA 43; (1978) 142 CLR 1
Saraswati v R [1991] HCA 21; (1991) 172 CLR 1
Sims v Wran [1984] 1 NSWLR 317
Smith, Ferguson, Forti, Grimshaw & Coburn v R [1994] HCA 60; (1994) 181 CLR 338
Trust Company of Australia Ltd v Skiwing Pty Ltd [2006] NSWCA 387; (2006) 68 NSWLR 366
Vetter v Lake Macquarie City Council [2001] HCA 12; (2001) 202 CLR 439

TEXTS CITED:
Review Report: Security Industry Act 1997 and Security Industry Regulations 1998, (October 2004)
D C Pearce and R Geddes, Statutory Interpretation in Australia (2006), Australia, LexisNexis
F A R Bennion, Statutory Interpretation 5th ed (2008) LexisNexis

DECISION:
1. Grant leave to appeal. 2. Notice of appeal to be filed within seven (7) days. 3. Appeal allowed. 4. Set aside the orders of Malpass AsJ made on 9 May 2008 and in lieu thereof: (a) Set aside the order for particulars made by the Administrative Decisions Tribunal on 15 January 2008; (b) Make no order as to costs, to the intent that each party bear their own costs. 5. Remit the matter to the Tribunal for further hearing in accordance with law.



JUDGMENT:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40162/08

Giles JA

Tobias JA

McColl JA

16 March 2009

Commissioner of Police New South Wales v Gray & Anor

HEADNOTE

[This headnote is not to be read as part of the judgment]

Byron Gray, the respondent, applied for a Class 1 AC security licence under the Security Industry Act 1997 (the “SI Act”). The appellant, the Commissioner of Police, by his delegate, refused the application on the basis, relevantly, that the respondent was not a fit and proper person to hold a security licence, a decision affirmed by a second delegate on internal review. The reasons given on the internal review disclosed that in affirming the first decision, the second delegate had taken into consideration “criminal intelligence report or other criminal information” within the meaning of s 15(6) of the SI Act (the “confidential materials”).

The respondent sought an external review of the Commissioner’s decision in the Administrative Decisions Tribunal. The appellant sought to resist that application relying, in part, upon the confidential materials. Section 29(3) of the SI Act provides that in an external review the Tribunal is to ensure that it does not not, in its reasons or otherwise, disclose the existence or content of any criminal intelligence report or other criminal information referred to in s 15 (6) without the approval of the Commissioner. The Tribunal made orders pursuant to s 75(2)(d) of the Administrative Decisions Tribunal Act 1997 (the “ADT Act”) excluding the respondent from having access to the confidential materials.

The respondent then sought an order that the appellant provide him with particulars of “any alleged past conduct” on which the refusal of his licence application was based, specifically, “precise details of the time at which, place at which and manner in which it is alleged that the conduct took place”. The critical issue was whether s 29(3) operated to preclude the Tribunal from ordering the applicant to provide those particulars. The Tribunal drew a distinction between the giving of particulars and evidence. It also held that s 73 of the ADT Act required the application of the principles of natural justice in deciding the external review application. It ordered the appellant to provide the particulars sought.

The appellant sought relief pursuant to s 69 of the Supreme Court Act 1970 in respect of the Tribunal’s orders. The primary judge affirmed the Tribunal’s decision, finding that the provision of particulars as ordered by the Tribunal would not disclose the content of the criminal intelligence reports or other criminal information on which the decision was based.

The appellant sought leave to appeal.

Held, granting leave to appeal and allowing the appeal (per McColl JA, Giles and Tobias JJA agreeing):

1 The Judicial Member erred in law in failing to give effect to the statutory command in s 29(3). On the facts disclosed in the Judicial Member’s reasons, the only conclusion open was that provision of particulars in accordance with these orders would contravene that command: (at [126]).

Hope v Bathurst City Council [1980] HCA 16; (1980) 144 CLR 1; Vetter v Lake Macquarie City Council [2001] HCA 12; (2001) 202 CLR 439 applied

2 The prohibition on disclosure s 29(3) commands is a blanket one which leaves no room for a distinction between particulars and evidence: (at [97], [121]).

Gypsy Jokers Motorcycle Club Inc v Commissioner of Police [2008] HCA 4; (2008) 234 CLR 532; K-Generation Pty Ltd v Liquor Licensing Court [2009] HCA 4; (2009) 252 ALR 471 considered

Applicant S214 of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1039; Applicant S214 of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 66 distinguished.

Sims v Wran [1984] 1 NSWLR 317 referred to

3 Section 29(3) impliedly repealed s 73 to the extent to which it would otherwise apply to an application for a review of any decision to refuse to grant a licence or to revoke a licence that was made on the ground of the applicant not being a fit and proper person: (at [107], [111], [112]).

Goodwin v Phillips [1908] HCA 55; (1908) 7 CLR 1; Minister for Immigration and Multicultural and Indigenous Affairs v Nystrom [2006] HCA 50; (2006) 228 CLR 566; Ferdinands v Commissioner for Public Employment [2006] HCA 5; (2006) 225 CLR 130 applied.

Orders

(1) Grant leave to appeal.

(2) Notice of appeal to be filed within seven (7) days.

(3) Appeal allowed.

(4) Set aside the orders of Malpass AsJ made on 9 May 2008 and in lieu thereof:

(a) Set aside the order for particulars made by the Administrative Decisions Tribunal on 15 January 2008;

(b) Make no order as to costs, to the intent that each party bear their own costs.

(5) Remit the matter to the Tribunal for further hearing in accordance with law.

*********************

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40162/08

SC 10619/08

Giles JA

Tobias JA

McColl JA

Monday 16 March 2009

Commissioner of Police New South Wales v Gray & Anor
Judgment

1 GILES JA: I agree with McColl JA.

2 TOBIAS JA: I agree with McColl JA.

3 McCOLL JA: The applicant, the New South Wales Commissioner of Police, seeks leave to appeal from a decision of Malpass AsJ dismissing the applicant’s summons seeking relief pursuant to s 69 of the Supreme Court Act 1970 in respect of orders for the giving of particulars made by the Administrative Decisions Tribunal: Commissioner of Police NSW v Gray [2008] NSWSC 414; Gray v Commissioner of Police, New South Wales Police [2008] NSWADT 29 (the “ADT decision”). The applicant complains that the Tribunal’s orders, and Malpass AsJ’s affirmation of them, contravene s 29(3) of the Security Industry Act 1997 (the “SI Act”). Shortly stated, s 29(3) precludes the Tribunal from disclosing the existence or content of any criminal intelligence report or other criminal information.

4 Leave to appeal is required because the decision under challenge is a final judgment of this Court which does not satisfy the monetary limitations in s 101(2)(r) of the Supreme Court Act. The application for leave was heard on the basis that, if successful, the argument on the leave application would stand as the argument in the appeal. If successful the applicant does not seek costs against the respondent, whether of the proceedings in this Court or before the Tribunal.

5 The critical issue is whether s 29(3) of the SI Act operated to preclude the Tribunal from ordering the applicant to give the first respondent, Mr Byron Gray, particulars of the basis upon which his application for a security industry licence had been rejected. The Tribunal has been joined as the second respondent. It does not appear from the papers that it has filed a submitting appearance. The first respondent is properly the only effective respondent (R v Australian Broadcasting Tribunal; Ex parte Hardiman [1980] HCA 13; (1980) 144 CLR 13 (at 36)) and, for convenience, I will refer to him as the respondent.

6 Since the decision in this case there have been several cases in the Tribunal in which the ambit of s 29(3) has been considered: FD v Commissioner of Police, New South Wales Police [2008] NSWADT 88; David v Commissioner of Police, NSW Police [2008] NSWADT 223 at [31]- [32] and Neilson v Commissioner of Police, NSW Police Force [2008] NSWADT 186 at [42]- [45]. Those decisions indicate there are conflicting views in the Tribunal as to the proper construction of s 29(3). This raises an important issue of principle making it appropriate, in my view, to grant leave to appeal. I shall, accordingly, refer to the applicant as the appellant in the balance of these reasons.

Legislative framework

7 Pursuant to s 7(2) of the SI Act, as in force at the date of the Tribunal decision, a person must not carry on a security activity (other than employing or providing persons to carry on security activities) unless that person holds a class 1 licence, class 2 licence or provisional licence that authorises the person to carry on the security activity. Section 4 sets out an extensive definition of “security activity”. Relevantly to the respondent’s application, those activities include:

“(b) acting as a crowd controller, venue controller or bouncer, or acting in a similar capacity, by physical or electronic means,

(c) patrolling, protecting, watching or guarding any property, by physical means (which may involve the use of patrol dogs or the possession or use of firearms) or by electronic means, in any one or more of the following circumstances:

(i) carrying on control room operations,

(ii) carrying on monitoring centre operations,

(iii) carrying on retail loss prevention,

(iv) patrolling, protecting, watching or guarding cash (including cash in transit) or other valuables,

(v) patrolling, protecting, watching or guarding an airport or any other infrastructure...”

8 Among the other activities caught by the definition of “security activity” are activities in relation to the installation, maintenance, repair or servicing and the sale of “security equipment”. “Security equipment” is defined in s 3 to mean, inter alia, “any type of safe or vault” and “any mechanical, electronic, acoustic or other equipment designed or adapted to provide or enhance security or for the protection or watching of any property”.

9 Licences may be of 4 classes: s 9. A “master licence” (s 9(1)(A)) is divided into a number of sub-classes (s 10), three of which permit the holder to employ people to carry on security activities. Section 11 divides class 1 licences into sub-classes. Class 1A authorises the licensee to patrol, protect, watch or guard any property while unarmed (and whether while static or mobile): s 11(1)(a). Class 1C authorises the licensee to act as a crowd controller, venue controller or bouncer or to act in a similar capacity: s 11(1)(c). More than one subclass may be endorsed on a class 1 licence: s 11(2). A class 1B licence authorises the licensee to act as a bodyguard or to provide close personal protection. Class 1D authorises the licensee to patrol, protect, watch or guard any property with a dog, while class 1E authorises the licensee to perform the same duties while carrying on monitoring centre functions. A class 1F licence authorises the holder to patrol etc. property while armed, but only under the authority of a licence permit issued under the Firearms Act 1996.

10 Section 12 deals with class 2 licences, which, like class 1 licences, are divided into subclasses. It is unnecessary to detail them. It is sufficient to observe that the subclasses variously entitle the licence holder to carry out activities in connection with security risks, security activities and electronic security equipment. Finally there is a class of provisional licences (s 12A) whose holders may only carry out security activities while directly supervised by the holder of a class 1A licence: s 29A.

11 Section 14 permits a person to apply to the Commissioner for the grant of a licence. Pursuant to s 21 the Commissioner may, after considering an application, either grant a licence or refuse to grant a licence to the person making the application. The matters the Commissioner may consider in determining a licence application appear in ss 15 – 17.

12 Section 15 relevantly provides:

15 Restrictions on granting licence-general suitability criteria

(1) The Commissioner must refuse to grant an application for a licence if the Commissioner is satisfied that the applicant:

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

...

(3) The Commissioner may refuse to grant an application for a licence if the Commissioner considers that the grant of the licence would be contrary to the public interest.

(4) The regulations may provide additional mandatory or discretionary grounds for refusing the granting of an application for a licence.

...

(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).

13 Section 16 requires the Commissioner to refuse to grant an application for a licence on various grounds, one of which is if the Commissioner is satisfied that the applicant has within various periods set out in s 16 been convicted in New South Wales or elsewhere of an offence prescribed by the regulations in relation to the class of licence sought; or been found guilty (but with no conviction being recorded) by a court in New South Wales or elsewhere of an offence prescribed by the regulations in relation to the class of licence sought, whether or not the offence is an offence under New South Wales law; or had a civil penalty imposed by a court or tribunal in New South Wales or elsewhere, being a civil penalty prescribed by the regulations in relation to the class of licence sought or has been removed or dismissed from the NSW Police Force or from the police force of any other jurisdiction (whether in Australia or overseas) on the ground of the applicant’s integrity as a police officer. The Commissioner must also refuse to grant an application for a licence if the Commissioner is of the opinion that the applicant is not suitable to hold a licence because the applicant has been involved in corrupt conduct: s 16(3).

14 The Commissioner is empowered to carry out such investigations and inquiries as he thinks necessary to consider a licence application: s 18(1). He is given extensive powers to do so, including requiring the applicant to have his or her fingerprints taken to confirm identity (s 18(2)(a)) or to be photographed again to confirm identity (s 18(3)). The Commissioner may require the applicant to provide further information, including information verified by statutory declaration and including authorities and consents which will enable the Commissioner to make third party inquiries concerning the applicant and his or her associates or relations: s 20(1).

15 An unsuccessful applicant may apply for an internal review of the Commissioner’s decision to refuse to grant a licence. This right arises under the Administrative Decisions Tribunal Act 1997 (the “ADT Act”). The route is a trifle circuitous however. In short, if an administrator makes a “reviewable decision” an interested person may apply for it to be internally reviewed: s 53(1). A “reviewable decision” is a decision of an administrator the Tribunal has jurisdiction to review under an enactment: s 8. The Tribunal has jurisdiction under an enactment to review a decision if the enactment provides that applications may be made to it for a review of any such decision made by an administrator in the exercise of function conferred, imposed, or identified under the enactment: s 38. An interested person may only apply to the Tribunal for a review of a reviewable decision if, inter alia, an internal review is taken to have been finalised under s 53(9): s 55(1)(b).

16 Section 29 of the SI Act meets the criteria under s 38 of the ADT Act. It relevantly reads:

“29 Right to seek review from Administrative Decisions Tribunal

(1) A person may apply to the Administrative Decisions Tribunal for a review of the following decisions:

(a) the refusal or failure by the Commissioner to grant a licence to the person (other than by operation of section 24 (3)),

...

(c) the revocation or suspension of a licence granted to the person.

...

(3) In determining an application for a review of any decision to refuse to grant a licence or to revoke a licence that was made on the ground of the applicant not being a fit and proper person, the Administrative Decisions Tribunal:

(a) is to ensure that it does not, in the reasons for its decision or otherwise, disclose the existence or content of any criminal intelligence report or other criminal information referred to in section 15 (6) without the approval of the Commissioner, and

(b) in order to prevent the disclosure of any such report or other criminal information, is to receive evidence and hear argument in the absence of the public, the applicant for review, the applicant’s representative and any other interested party, unless the Commissioner approves otherwise.

Note: Section 15 (7) of this Act provides that the Commissioner is not, under this or any other Act or law, required to give any reasons for not granting a licence if the giving of those reasons would disclose the existence or content of any criminal intelligence report or other criminal information referred to in section 15 (6). Accordingly, Part 2 of Chapter 5 of the Administrative Decisions Tribunal Act 1997 does not apply to any decision to refuse to grant a licence based on such information to the extent that it would require disclosure of the existence or content of any criminal intelligence report or other criminal information.”

The right conferred by s 29 is commonly referred to as an “external review”.

17 Section 58 of the ADT Act sets out the duty of the relevant administrator, the appellant in this case, in the event of an external review:

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

(1) An administrator whose reviewable decision is the subject of an application for review to the Tribunal must, within 28 days after receiving notice of the application, lodge with the Tribunal:

(a) a copy of any statement of reasons given to the applicant under section 49 (or, if no such statement was given to the applicant, a statement of reasons setting out the matters referred to in section 49 (3)), and

(a1) a copy of any statement of reasons for a decision in an internal review conducted in respect of the reviewable decision, and

(b) a copy of every document or part of a document that is in the possession, or under the control, of the administrator that the administrator considers to be relevant to the determination of the application by the Tribunal.

(2) If the applicant has not been given a statement of reasons under section 49, the Tribunal may direct that a copy of the statement of reasons lodged with the Tribunal under subsection (1) (a) be given to the applicant within such period or periods as the Tribunal directs.

...

(4) If the Tribunal or President considers that other particular documents (or that other documents included in a particular class of documents) may be relevant to the determination of the application, it may cause a notice in writing to be served on the administrator:

(a) stating that the Tribunal or President is of that opinion, and

(b) directing the administrator concerned to lodge with the Tribunal, before a date specified in the notice, a copy of each of those other documents that is in the possession, or under the control, of the administrator.

(5) The Registrar of the Tribunal is to grant reasonable access to the applicant in the proceedings to any copy of a document lodged under this section by an administrator. Reasonable access includes, but is not limited to, enabling the applicant to make a photocopy of a document during ordinary business hours.

(6) If a party to proceedings before the Tribunal seeks a summons under section 84 against an administrator for the production of any document and a copy of that document has been lodged with the Tribunal under subsection (1) or (4), the Tribunal may (on such conditions as it considers appropriate) direct the Registrar to grant the party access to its copy of the document instead of issuing a summons if access to the document could lawfully be required by the issue of a summons.

(7) Nothing in this section requires the disclosure of, or the granting of access to, any document (or a copy of a document) in contravention of any of the following:

(a) an order made under section 59 (Objections to lodgment),

(b) an order made under section 75 (Proceedings on hearing to be conducted in public),

(c) section 124 (Application of Act to exempt documents under Freedom of Information Act 1989 ),

(d) section 125 (Privileged documents).

(8) For the purposes of this section, a reference to a document in the possession of an administrator includes a reference to a document to which the administrator has an immediate right of access.”

18 Section 59 provides:

“59 Objections to lodgment

(1) An administrator may apply to the Tribunal before the expiry of the period referred to in section 58(1) for an order that the administrator not be required to lodge a copy of a document under section 58.

(2) On any such application, the Tribunal may make an order that a copy of a document not be lodged with the Tribunal if:

(a) it is satisfied that section 125 operates so as not to require the disclosure of the document, or

(b) it considers that, if an application were made under section 75 (2), it would be appropriate to make an order under that subsection prohibiting or restricting the publication or disclosure of evidence of the document.”

19 Section 125 is concerned with privileged documents, that is, documents of which evidence may not be adduced in proceedings before a New South Wales court by reason of the operation of certain provisions of the Evidence Act 1995. Section 75(2), which is set out a little later in these reasons, is concerned with hearings in private and non-disclosure orders.

20 Section 63 relevantly requires the Tribunal, in determining an application for a review of a reviewable decision, to decide what the correct and preferable decision is having regard to the material then before it, including any relevant factual material: s 63(1).

21 If the decision of the Tribunal varies, or is made in substitution for, an administrator’s decision, it is taken to be the decision of the administrator (other than for the purposes of a review under Chapter 5 of the ADT Act): s 66.

22 Chapter 6 deals with the procedure of the Tribunal. Section 73 empowers the Tribunal to determine its own procedure. In Trust Company of Australia Ltd v Skiwing Pty Ltd [2006] NSWCA 387; (2006) 68 NSWLR 366 (at [54]) Basten JA (Handley JA and McDougall J agreeing) concluded that the power so conferred was broad and discretionary, but that it should be inferred that the Tribunal must act in a procedurally fair way as between the parties. That inference finds ample support in s 73(2) which enables the Tribunal to “inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice” and s 73(4)(c) which requires the Tribunal “to take such measures as are reasonably practicable ... to ensure that the parties have the fullest opportunity practicable to be heard or otherwise have their submissions considered in the proceedings”.

23 Section 75(1) requires any hearing conducted by the Tribunal to be open to the public. However s 75(2) provides:

“(2) However, if the Tribunal is satisfied that it is desirable to do so by reason of the confidential nature of any evidence or matter or for any other reason, it may (of its own motion or on the application of a party) make any one or more of the following orders:

(a) an order that the hearing be conducted wholly or partly in private,

(b) an order prohibiting or restricting:

(i) the disclosure of the name, address, picture or any other material that identifies, or may lead to the identification of, any person (whether or not a party to proceedings before the Tribunal or a witness summoned by, or appearing before, the Tribunal), or

(ii) the doing of any other thing that identifies, or may lead to the identification of, any such person,

(b1) an order prohibiting or restricting the publication or broadcast of any report of proceedings before the Tribunal,

(c) an order prohibiting or restricting the publication of evidence given before the Tribunal, whether in public or in private, or of matters contained in documents lodged with the Tribunal or received in evidence by the Tribunal,

(d) an order prohibiting or restricting the disclosure to some or all of the parties to the proceedings of evidence given before the Tribunal, or of the contents of a document lodged with the Tribunal or received in evidence by the Tribunal, in relation to the proceedings.”

24 Section 89 requires the Tribunal to give reasons, whether written or oral which comply with s 89(5). That subsection reads:

“(5) If the Tribunal gives the reasons for its decision in writing under subsection (3), the written reasons are to set out the following:

(a) the findings on material questions of fact, referring to the evidence or other material on which those findings were based,

(b) the Tribunal’s understanding of the applicable law,

(c) the reasoning processes that lead the Tribunal to the conclusions it made.”

25 Chapter 7 of the ADT Act deals with appeals. A party to proceedings in which an appealable decision of the Tribunal is made may appeal to the Tribunal constituted by the Appeal Panel (s 113(1)) but only with leave in the case of an interlocutory decision (s 113(2A)). A party to proceedings before an Appeal Panel of the Tribunal may appeal to the Supreme Court, on a question of law, against any decision of the Appeal Panel in those proceedings: s 119(1) but only with leave, inter alia, in the case of an interlocutory decision: s 119(1A).

26 Sections 122 and 123 deal with the inter-relationship between the Supreme Court and the Tribunal. Except as set out in s 123, nothing in the ADT Act affects the power of the Supreme Court, in the exercise of its original jurisdiction, to review the decisions of the Tribunal, including an “original decision”. It may be that the Tribunal’s decision fell within the meaning of “original decision” in s 123(1)(a), being a decision “the Tribunal made in relation to a matter over which it has jurisdiction under an enactment to act as the primary decision-maker” (s 7), the order for particulars having been made pursuant to s 73. Section 123(1) confers a discretion on the Supreme Court to refuse to grant an application for the review of various decisions of the Tribunal. Section 123(2) sets out various factors the Supreme Court may take into account in deciding whether to refuse an application for the review. “Review” includes a review by way of the grant of a prerogative or statutory writ: s 123(3).

27 No argument was addressed to the application of s 123. Rather, to the extent the respondent sought to raise a discretionary issue in opposition to the grant of relief, he relied upon the general principle that the Court will not exercise supervisory jurisdiction until available appellate processes have been exhausted: see the helpful discussion by Barrett J of the principles in NSW Breeding & Racing Stables Pty Ltd v Administrative Decisions Tribunal of New South Wales [2001] NSWSC 494; (2001) 53 NSWLR 559. I will return to this issue.

Statement of the case

28 On 12 March 2007 the respondent applied for a Class 1 AC security licence under the SI Act. The appellant delegated the task of considering the application. The delegate was satisfied that the respondent was not a fit and proper person to hold a security licence and that the grant of the licence would be contrary to the public interest. Accordingly the application was refused. The Notification of Refusal addressed to the respondent dated 21 May 2007 gave reasons for the refusal purportedly pursuant to s 49 and s 53(2)(d)(ii) of the ADT Act. The document set out the substance of s 15(1)(a) (refusal on the fit and proper person ground), s 15(3) (refusal on the public interest ground), s 15(6) and s 15(7), then stated:

“...As a result of the operation of the legislative requirement [sic, should be “requirements”] described above, I have refused to grant your application.”

It then set out the respondent’s options for seeking a review.
29 The respondent requested an internal review of the decision. The appellant again delegated the task of conducting the internal review. The second delegate was also not satisfied that it would be in the interest of the public for the respondent to hold a security licence and was of the opinion that the respondent was not a fit and proper person to be granted a security licence. Accordingly the second delegate affirmed the original decision.

30 The second delegate’s Statement of Reasons dated 31 May 2007 included the following:

“B. MATERIAL FINDINGS OF FACT

2. In arriving at my decision in this matter I have examined the following documents:

§ Application form for a Class 1 AC security licence received 20 April 2007
§ Print-outs from the Computerised Operational Policing System
§ Print-outs from the Integrated Licensing System

...

D. REASONING PROCESS

...

14 I have taken into consideration a number of Police reports and in accordance with Section 15(7) of the Security Industry Act 1997, as inserted by the Security Industry Amendment Act 2002 I decline to provide you with further information regarding these reports.”

Administrative Decisions Tribunal: External Review

31 The respondent applied to the Tribunal for external review of the decision to refuse his application for a security licence. The matter came before Judicial Member Montgomery. The appellant abandoned his reliance on the public interest ground for refusing the respondent’s application. He maintained his opposition based on the fit and proper person ground. He sought to make good that ground by relying on material (the “confidential materials”) concerning what he alleged was the respondent’s past conduct: ADT decision (at [3]). It is of passing interest to observe that, on the appellant’s argument, the reference to “conduct” in par [3] of the ADT decision may have contravened s 29(3). Neither party made any point of this.

32 It appears that the Judicial Member conducted an in camera hearing on 30 August 2007 for the purpose of determining whether he should make an order in respect of the confidential materials pursuant to s 75(2)(d) of the ADT Act. The confidential materials and other evidence were adduced during that hearing from which it is apparent the respondent and his legal advisers were excluded. Having conducted that hearing the Judicial Member made orders pursuant to s 75(2)(d) “excluding the respondent from having access to that material”. The Judicial Member also indicated that he proposed to have regard to the confidential materials and also to the evidence adduced during the in camera hearing, presumably in determining the external review: ADT decision (at [4]).

33 The 30 August orders were not in the material provided to the Court. Although as the Judicial Member described them, they only excluded the respondent from having access to the confidential materials, it is apparent they extended to his legal advisers.

34 It was common ground before the Judicial Member that the confidential materials the subject of the 30 August orders fell within the terms of s 15(6) and s 29(3) of the SI Act.

35 The respondent then sought an order that the appellant provide him with “particulars of any alleged past conduct, being precise details of the time at which, place at which and manner in which it is alleged that the conduct took place”. The Judicial Member determined the question whether the respondent was entitled to those particulars as a preliminary issue.

36 In the course of setting out the parties’ submissions on the preliminary issue, the Judicial Member said:

“14 Mr Lenehan provided written submissions in support of Mr Gray’s application. He contends that the Commissioner has revealed the existence ‘of any criminal intelligence report or other criminal information’. He says that there is no question that the provision of particulars would disclose the ‘content’ of any police intelligence report or criminal information which has been adduced as evidence in the proceedings by the respondent because Mr Gray has specifically stated that he does not seek those contents. Accordingly Mr Lenehan says that the provisions of section 29(3) of the Act do not apply in the circumstances of this matter. He submits that to deny Mr Gray access to the material he seeks would amount to a denial of natural justice. ...

25 Mr Lenehan contends that ... where particulars of the relevant allegations are sought ... it is also necessary to consider whether it is possible to provide those particulars without disclosing the material which is the subject of the statutory non-disclosure obligation. He says that, except perhaps in rare cases, the provision of such particulars will be possible in applications such as the present one and that this will be so notwithstanding the effect of a provision such as section 29(3) of the Act. He concedes the exception that particulars could not be ordered if they would indirectly reveal the source of an allegation or otherwise reveal the content of the underlying material.” (emphasis added)

37 In making these submissions, Mr Lenehan relied upon Applicant S214 of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 66. The Judicial Member dealt with that case as follows:

“15 ...That decision relates to orders made by the Administrative Appeals Tribunal that protected the confidentiality of evidence of, and suppressed the identities of, a number of witnesses. The evidence apparently related to war crimes or crimes against humanity alleged to have been committed by the applicant. The Tribunal directed the respondent to provide precise details as to the time at which, place at which and manner in which it was alleged that each crime was committed.

16 The Full Federal Court endorsed a distinction drawn by Emmett J at first instance between the provision of particulars of allegations and the disclosure of evidence intended to be adduced to establish those allegations. Their Honours also endorsed the proposition that providing such particulars will not, except in special circumstances, constitute a disclosure of the underlying evidence. However, their Honours accepted that such a disclosure may result from the giving of particulars where, for example, one is considering a crime committed in private with no witnesses except for the accused and the victim. In such a case it was possible that the mere furnishing of particulars would indirectly reveal the source of an allegation, which would therefore involve disclosure of the protected material.

17 The Full Court said that unless such circumstances applied, there would necessarily be a denial of procedural fairness if particulars were not supplied.” (emphasis added)

38 The Tribunal held that the respondent was entitled to the particulars he sought substantially for the following reasons:

“33 It is generally accepted that the rules of natural justice provide for a party’s right to know what that party has been charged with, the right to know what evidence has been put against that party, and the right to know a court’s reasons for its decision. However, as is clear from authorities such as K-Generation and Gypsy Jokers Motorcycle Club Inc v Commissioner of Police,** referred to above, that Parliament may remove the requirement for a court to apply the rules of natural justice. However, this can only be done by unequivocal legislation. It should not be implied.

34 I agree that the provisions of section 29(3) are to be interpreted narrowly, however in my view, Parliament intended that section 29(3) of the Act would preclude the Tribunal disclosing the confidential material to Mr Gray. I am also satisfied that section 29(3) would preclude the Tribunal disclosing the substance of the allegations against Mr Gray.

35 However, Mr Gray does not seek to have the confidential material disclosed. Nor is he seeking the disclosure of the substance of the allegations against him. The question then remains as to whether section 29(3) would preclude the Tribunal ordering the disclosure of particulars of the nature ordered in S214 of 2002.

36 Significantly, it is apparent from the second reading speech that section 29(3) ‘is not designed to circumvent the appeals process’ or to hinder the Tribunal in the exercise of its review functions. It is also apparent from section 73 of the ADT Act that the exercise the Tribunal’s review functions are [sic, as in original] subject to the rules of natural justice. I agree with Mr Lenehan’s contention that in circumstances such as the present the provision of particulars of the nature ordered in S214 of 2002 is an aspect of the rules of natural justice. The obligation to provide such particulars therefore continues until Parliament excludes it in unequivocal terms.

37 The power to order the provision of such particulars is consistent with the obligation on the Tribunal to take such measures as are reasonably practicable to ensure that the parties to the proceedings before it understand the nature of the assertions made in the proceedings. To provide an applicant with particulars might afford them the opportunity to obtain evidence to demonstrate that they were not involved in any alleged misconduct. To deny the particulars could hinder the exercise of the Tribunal’s review functions and this should only occur where it is clearly the intent of Parliament.

38 In my view, it is not clear from the words of section 29(3) that Parliament intended to prevent the Tribunal from ordering particulars of the nature sought. It follows that to deny Mr Gray access to the particulars he seeks would amount to a denial of natural justice. I do not consider that the power to order the provision of such particulars extends to the power to order the provision of the content of any criminal intelligence report or other criminal information contained in the confidential material.” (emphasis added)

**Gypsy Jokers Motorcycle Club Ltd v Commissioner of Police [2007] WASCA 49; (2007) 33 WAR 245; K-Generation Pty Ltd & Anor Liquor Licensing Court & Anor [2007] SASC 319; (2007) 99 SASR 58.

39 The Judicial Member ordered:

“1. Mr Gray’s application for orders that the Commissioner is to provide him with the particulars of any alleged conduct that the Commissioner says supports the contention that Mr Gray is not a fit and proper person to hold a security licence is granted.

2. Within 28 days of the date of these orders, the Commissioner is to advise both Mr Gray and the Tribunal whether or not he seeks to withdraw his reliance upon the material that he has put before the Tribunal on a confidential basis.

3. If the Commissioner proposes to continue to rely on the material that he has put before the Tribunal on a confidential basis, he is to provide Mr Gray with the particulars of the time at which, place at which and manner in which it is alleged that the conduct, that the Commissioner says supports the contention that Mr Gray is not a fit and proper person to hold a security licence, took place. Those particulars are to be provided within 42 days of the date of these orders... .”

40 It is apparent from the Judicial Member’s recitation of the limitations Mr Lenehan placed on the respondent’s application for particulars, from his treatment of S214 of 2002 and from the last sentence in his par [38], which I have explained in [37] above, that the Judicial Member contemplated the particulars which should be given, consistent with the decision in S214 of 2002, would not disclose the content of the confidential materials. However the orders the Judicial Member made did not express any such limitation.

Supreme Court: Prerogative relief

41 The Tribunal’s orders were made on 15 January 2008. The originating Summons in this Court was filed on 12 February 2008. On 25 February 2008 the orders for particulars were stayed by consent.

42 Before the Summons was heard the respondent’s solicitors advised the appellant’s solicitor that they would advise him to consent to the “appeal” being heard in the Supreme Court on the condition that if the appellant was successful, he would not seek a costs order against the respondent.

43 Consistent with that advice, the respondent made no submission before Malpass AsJ on the issue whether the appellant should have first sought leave to appeal to the Appeal Panel. However his Honour raised that issue as relevant to the discretion to be exercised under s 69 of the Supreme Court Act. I will return to the significance of this discretionary point.

44 Before Malpass AsJ the appellant made it clear that he did not intend to abandon his reliance on the confidential materials (cf the Tribunal’s second order). He argued that the Tribunal’s orders (Malpass AsJ (at [23])):

“...if complied with by the Commissioner, would have the effect of disclosing the ‘existence or content’ of criminal intelligence reports or other criminal information, being the very information that the Commissioner seeks to keep confidential.

29 The Plaintiff submits that in making the order for particulars, the ADT acted contrary to s 29(3)(a) of the Security Industry Act, in that it failed to comply with the direction in that subsection that it ‘ensure’ that it not disclose the existence or content of any criminal intelligence report or other criminal information.

30 Compliance by the Commissioner with the order for particulars would necessarily have the effect of disclosing the ‘existence or content’ of criminal intelligence or other criminal information held by the Commissioner, and would frustrate the purposes sought to be achieved by s 29(3) and s 15(7).”

45 Malpass AsJ noted (at [8]) that the submissions the respondent made before the Tribunal included the following:

“6 Although the applicant is unaware of the nature and content of the material before the Tribunal, the applicant understands that it relates to allegations concerning the applicant’s past conduct, said to support the contention that the applicant is not a fit and proper person within the meaning of s 15(1)(a) of the Security Industry Act.

7 The applicant seeks an order that the respondent provide particulars of the alleged past conduct, being precise details of the time at which, place at which and manner in which it is alleged that the conduct took place. It is that application which is the subject of these submissions.

...

13 The only question raised by the respondent’s submissions is whether the provision of particulars would disclose the ‘content’ of any police intelligence report of criminal information which has been adduced as evidence in the proceedings by the respondent.

14 The applicant, as he made clear in his oral submissions on 20 August 2007, does not seek the disclosure of the content of any such material.” (emphasis added)

46 In Malpass AsJ’s view (at [20]), s 29(3) had to be “viewed in the context of, inter alia, other legislation (including provisions of the ADT Act such as .... s 73) and the general law (including the principles of natural justice)”. He identified (at [21]) the “area of dispute” as lying in the extent to which s 29(3) modified or excluded the latter principles.

47 Malpass AsJ accepted (at [27]) that s 29(3) in terms operated as a prohibition on the Tribunal disclosing in the reasons for its decision or otherwise the existence or content of any prescribed criminal intelligence report or other criminal information. However he doubted (at [30]):

“... that it was ever contemplated by the draftsman that the statutory provision would be used as a vehicle to interfere with processes of the Tribunal such as its power to order a party to provide particulars. It seems to me that the intention was restricted to the disclosure of information and that the statutory provision states what must be done by the Tribunal to prevent disclosure. Certainly, I do not consider that it was intended that it would be used to deprive a party of an entitlement to particulars of the case that it was expected to meet in the review and so largely render nugatory that right of review. This may be the consequence in the present case if the first defendant is not entitled to particulars of the nature of the case he has to meet in such review.”

His Honour appears to have taken comfort (at [31]) in reaching this conclusion from the passage he extracted from the Second Reading Speech to the Security Industry Amendment Bill 2005, the vehicle by which subsection (3) was inserted in s 29 (NSW Legislative Assembly, Parliamentary Debates (Hansard) 21 June 2005 at 17117):

“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.”

48 His Honour discussed (at [32] – [33]) the distinction between particulars and evidence, referring, inter alia, to Hunt J’s statement in Sims v Wran (1984) 1 NSWLR 317 (at 322), that “ordinarily speaking particulars are concerned with the nature of the case which is to be made by way of evidence ...”. He then said:

“34 What the order for particulars made in this case requires the plaintiff to do is to provide his allegations as to time, place and manner of what is restricted to ‘conduct’ relied on to support the contention that the first defendant is not a fit and proper person to hold a security licence. The order is not framed in terms that require the disclosure of the existence or content of any confidential information.

35 I consider that the purport of the seeking of particulars was not to force a disclosure of content of the confidential material. Rather, it was to require the plaintiff to identify the nature of the case that it intended to argue before the Tribunal by reason of the tender of the confidential material (how it is contended that the first defendant is not a fit and proper person to hold the licence sought by him). The question of whether or not the order that was made will achieve that result is not a matter that needs to be addressed in this Court.”

49 Although the appellant expressly eschewed any reliance in opposing the order for particulars on the fact that he had not been obliged to give reasons for his original decision (s 15(7), SI Act), Malpass AsJ observed (at [36]) that presentation of the second delegate’s decision:

“...is one of providing reasons for the decision and of a refusal to disclose content of the reports in such circumstances. The effect of such presentation is a voluntary disclosure of the existence of confidential material which renders content thereof as a basis for the reasoning process for the decision.

37 It may be added that in such a case what was given could hardly be regarded as an adequate disclosure of whatever reasoning process was adopted by the plaintiff. I mention that matter because in this case it may be that it is a full disclosure of the reasoning process that will lead to an identification of the case that the first defendant has to meet.

38 The existence of past conduct as the foundation for the plaintiff’s case may be a matter for surmise and it may be that a response to the order does not require the making of allegations involving incidents of past conduct. There is certainly no evidence from the plaintiff to the effect that the providing of the particulars would involve disclosure of the content of confidential material and the submissions made to the Judicial Member do not assist on this matter (it seems that the plaintiff adopted a misconceived stance that the particulars required disclosure of the substance or nature of the confidential material).

39 The probability is that the delegate made a decision having regard to and founded upon matters evidenced by the confidential material (and perhaps also to other material). If that be so, the particulars merely require, by way of allegation, an identification of the matters of past conduct and would not constitute a disclosure of content of the confidential material. A response can be so framed without any mention of the content and the particulars sought do not have the consequence of disclosure of that which was the subject of comment in the Second Reading Speech. (emphasis added)

50 Malpass AsJ concluded (at [40]) that the appellant had failed to discharge the onus of demonstrating a relevant and material error that justified disturbing the Tribunal’s decision. He added (at [42] – [45]) that having regard to the discretionary nature of prerogative relief, the fact that by pursuing that relief the appellant had “chosen to bypass” the avenue for relief afforded by his right to seek leave to appeal to the Administrative Decisions Tribunal Appeal Panel and that the application concerned an interlocutory matter concerning the practice or procedure of the Tribunal, meant that even if a different view had been taken on the question at issue, there were “powerful discretionary considerations for the refusal of the relief sought by the plaintiff”.

51 His Honour dismissed the Summons with costs and discharged the stay of the orders for particulars.

52 The papers do not reveal any stay of the Tribunal orders has been made subsequently. I assume the parties have agreed that compliance with them should abide the outcome of this appeal.

Grounds of Appeal

53 The appellant relies on the following grounds of appeal:

1. The Court below erred in its construction of s 29(3) of the SI Act.

2. The Court below erred in concluding that s 29(3) of the SI Act permitted the Administrative Decisions Tribunal to order the appellant to provide particulars of confidential criminal intelligence reports or other criminal information referred to in s 29(3) of the SI Act.

3. The Court below erred in failing to find that the provision of particulars as ordered by the Administrative Decisions Tribunal in order 3 made on 15 January 2008 would disclose the content of the criminal intelligence reports or other criminal information on which the decision was based, and so was contrary to s 29(3) of the SI Act.

Submissions

54 Mr M Leeming of Senior Counsel, who appeared for the appellant on appeal but not below, submitted that the Tribunal’s orders would require the appellant to disclose details of the actions the respondent was alleged to have carried out and the time and place where those actions were alleged to have taken place. He argued that giving such particulars would require the appellant to disclose the content of any criminal intelligence report or other criminal information. Thus he contended that the Tribunal had failed to comply with its s 29(3)(a) obligation to “ensure”, which he accepted extended to “cause to ensure”, that it did not disclose, relevantly, the content of s 15(6) material. He argued that s 29(3) was a legislative command squarely and expressly directed to imposing obligations on the Tribunal as to the manner in which its review was conducted.

55 Mr Leeming first contended that the orders offended the express terms of s 29(3). He argued that the true construction of s 29(3) was as follows:

(a) s 29(3) applies to information referred to in s 15(6);

(b) s 15(6) of the Act identifies a class of documents being “criminal intelligence report or other criminal information”;

(c) To fall within s 15(6) that class must also satisfy requirements that they must be “in relation to the applicant” and fall within any of s 15(6)(a) – (c);

(d) In respect of documents within that class, s 15(7) creates an immunity on the part of the Commissioner not to be required to give reasons which disclose, relevantly, the contents of those documents.

(e) Section 29(3) imposes two duties upon the Tribunal in respect of documents within that class: (i) not to disclose, relevantly, the contents of those documents, either in its reasons or otherwise, and (ii) to receive evidence and hear argument in the absence of the applicant. The Commissioner has the right to discharge the Tribunal from either duty by giving his or her approval.

(f) Thus once the Tribunal is satisfied that the documents fall within the s 15(6) class, the s 29(3) prohibitions are engaged.

56 Secondly, Mr Leeming argued that the Judicial Member and Malpass AsJ erred in concluding s 29(3) left room for the operation of the principles of natural justice envisaged by, in particular, s 73 of the ADT Act. He argued that s 29(3) was expressly directed to the processes of the Tribunal and the content of the hearing rule and, being a later provision, impliedly repealed the ADT Act provisions which might otherwise apply to cases such as the present.

57 Thirdly, Mr Leeming submitted that both the Judicial Member and Malpass AsJ drew a false distinction between giving particulars and evidence which was not available on the proper construction of s 29(3). He argued that the word “content” in s 29(3) should be given its ordinary meaning and, accordingly, applied to any information within a report including information as to the nature of the alleged conduct, the date it occurred, where it occurred and so on. He contended that guidance as to the meaning of “content” in s 29(3) could be gained from the fact that that subsection also extended to protect disclosure of the mere “existence” of confidential information, thus demonstrating the breadth of the statutory protection conferred upon s 15(6) information.

58 Fourthly, Mr Leeming argued that the Court ought not decline relief on any discretionary basis, both because the respondent had consented to the matter not going first to the Appeal Panel and, in any event, because Malpass AsJ had not held he would have declined relief on that basis even if the appellant had satisfied him the Tribunal had erred in law.

59 Finally, Mr Leeming submitted that to the extent the second delegate disclosed the existence of the confidential materials, that did not amount to a waiver of the appellant’s right to rely on s 29(3) for the purposes of a “content” claim. The respondent did not contend to the contrary.

60 Mr N Williams of Senior Counsel, who appeared for the respondent on appeal but not below, contended that s 29(3) did not operate to exclude entirely the rules of procedural fairness or modify those rules to the extent for which the appellant contended. He argued that whether s 29(3) operated to prevent the Tribunal from ordering particulars of the matters relied upon by the applicant depended upon the facts of the case and, in particular, on the nature of the criminal intelligence reports or other criminal information in question. He strenuously contended that there would be cases, of which the present was one, in which the essential allegation could be disclosed by the giving of particulars without disclosing confidential sources, the identity of informers or police methodology and that s 29(3) did not preclude such disclosure. He thus argued that his construction as to the manifest purpose of the s 29(3) exclusion was supported by the passage from the Second Reading Speech to which both the Judicial Member and Malpass AsJ referred to: see [71] below.

61 Next, Mr Williams submitted that there was no evidence before Malpass AsJ that the Tribunal framed its orders in a manner that would disclose the content of the confidential materials. Rather he contended that Malpass AsJ’s inference that the Tribunal considered that the particulars could be given without doing so was justified. In the absence of evidence that giving the particulars would disclose the content of the confidential materials, Mr Williams submitted the sole issue for this Court was whether procedural fairness had, as a matter of statutory construction, been entirely excluded. Such a finding, he contended, would render the review process nugatory and frustrate the purpose of the statutory scheme.

62 Finally, Mr Williams submitted that where the appellant sought to rely in Tribunal proceedings on material he asserted was protected from disclosure, he was obliged to establish “in the ordinary way that it is immune from production as disclosing such matters as secret sources, capabilities or methodology.”

Legislative History

63 Subsections 15(6) and (7) were inserted into the SI Act by the Security Industry Amendment Act 2002 in order to clarify the grounds on which a licence could be refused on the basis that the applicant is not a “fit and proper person”, in particular, to make clear that such grounds extend to circumstances where a person has neither been charged nor convicted of a criminal offence. Mr Gaudry MLA, a Parliamentary Secretary, speaking on behalf of Mr lemma, the relevant Minister, on the Second Reading of the Security Industry Amendment Bill 2002 set out the defect to be remedied as follows (Second Reading Speech, New South Wales Legislative Assembly, Parliamentary Debates (Hansard) 12 November 2002, 6544 at 6547:

“Currently, section 15(1) of the Security Industry Act provides that the Commissioner of Police must refuse a security licence application if the Commissioner is satisfied that the applicant is not a fit and proper person to hold the class of licence which is being sought. However, there is no definition of ‘fit and proper person’ in the legislation.

As a result, 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 commissioner 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.

...

The Deputy President of the Administrative Decisions Tribunal has also held that there should be some 'nexus' between the conduct complained of and the activities to which the licence relates. This would apply, for example, in the case of a security guard who is reported to be associated with criminals with convictions for the armed robbery of banks. It is therefore considered that there is insufficient direction within the Security Industry Act to ensure that the balance is maintained between the interests of public safety in ensuring a crime free security industry, and the interests of individual licence holders in retaining their licences to work within the industry.

To this end, it is proposed to clarify the definition of ‘fit and proper person’ in section 15 of the Act such that it can be clearly seen to include, but is not limited to, circumstances where:

criminal intelligence is held on a licence applicant-holder which has a relationship to the duties performed under the licence applied for/held;

which cause the Commissioner of Police to conclude that improper conduct is likely to occur if the person were to be granted/continue holding a security licence; or

which cause the Commissioner of Police to not have confidence that improper conduct will not occur if the person were granted/continued to hold a security licence.

Clearly, it is in the public interest that persons thought by police to present a public safety or a criminal risk are not given special access to premises, persons or goods under the security licensing system. This should apply even where the person has yet to be charged with a specific criminal offence.”

64 The Tribunal decision to which the Parliamentary Secretary referred was Jedrasiak v Commissioner of Police, New South Wales Police Service [2001] NSWADT 208. Jedrasiak concerned the question whether the revocation of a firearms licence held pursuant to the Firearms Act could be sustained, inter alia, on the basis that the holder was no longer a “fit and proper person” to hold such a licence. Deputy President Hennessy applied dicta of Toohey and Gaudron JJ in Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 (at 380) to the effect that the concept of “fit and proper” must be understood in the context of the conduct of the person whose activities are under consideration. In so doing, she concluded there was a “clear nexus” between the conduct of a person who was affected by alcohol when undertaking security duties while carrying a firearm which was relevant to her ultimate determination.

65 The Second Reading Speech gave no insight into the mischief to which s 15(7) was directed.

66 The 2002 amendments to the SI Act bear some resemblance to amendments made to the Firearms Act in June 2002 by the Firearms Amendment (Public Safety) Bill. That Bill inserted subsections (5A) and (5B) into s 11, subsection (3A) into s 29 and subsections (4) and (5) into s 75 of the Firearms Act. Under the new provisions the Commissioner of Police was empowered to refuse to issue a licence (s 11(3A)) or permit (s 29(3A)) under the Firearms Act if of the opinion, having regard to any criminal intelligence report or other criminal information held in relation to the person, that the person was a risk to public safety, and issuing the licence would be contrary to the public interest. The Commissioner was not required to give reasons for any such decision: ss 11(3B) and 29(3B). A person could seek a review of the decision to refuse a permit before the Tribunal (s 75(1)), but the new s 75(5) was in substantially the same terms as what in 2005 came to be s 29(3) of the SI Act, with two exceptions. It of course cross-referenced s 11 and s 29 of the Firearms Act. More importantly, unlike s 29(3) of the SI Act it did not contain any provision permitting the Commissioner to approve disclosure of the criminal intelligence or agreeing to evidence about such issues not being heard in private session.

67 Ms R Meagher MLA, a Parliamentary Secretary speaking on behalf of Mr lemma on the Second Reading of the Firearms Amendment (Public Safety) Bill (Second Reading Speech, New South Wales Legislative Assembly, Parliamentary Debates (Hansard) 26 June 2002 at 3891 explained the purpose of the new ss 11(3A) and 29(3A) as being to allow the Commissioner to refuse a licence or permit if satisfied the applicant had committed, or was about to commit, violent crimes. Subsection 75(5) was explained as enabling the Commissioner and the Tribunal not to release the reasons for refusal and the criminal intelligence on which it was based to avoid jeopardising police operations.

68 As required by s 52 of the SI Act, the Minister for Police conducted a review of the SI Act 1997 and the Security Industry Regulation 1998: Review Report: Security Industry Act 1997 and Security Industry Regulations 1998, (October 2004) (the “Review Report”). Recommendation 11, which appears to have prompted the introduction of s 29(3), was 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.”

69 The Review Report referred (at 35) to a submission of the NSW Police that attention should be given to the inclusion of a provision exempting the Commissioner from complying with any subpoena or other process (including summons, Freedom of Information Application etc) that would permit a person to be able to force the Commissioner to provide criminal intelligence information or disclose the existence of it by other means. The authors concluded:

“The inclusion of a broad amendment is considered necessary to ensure that the Commissioner could not be summonsed or subpoenaed for the information, and likewise, Registry staff could not be required to give evidence about the contents of the reports they have read in preparation of their decision.

In addition, the Commissioner should be able to refrain from giving any documents to a court until such time [sic, as in original] orders prohibiting disclosure have been made. This will ensure that a court cannot release any confidential materials and they will remain confidential.” (emphasis added)

70 In tabling the Review Report, the Minister for Police, John Watkins MLA, noted (New South Wales Legislative Assembly, Parliamentary Debates (Hansard) 20 October 2004 at 11702):

“We will ensure that unsuccessful licence applicants who appeal to the Administrative Appeals Tribunal to challenge police advice about their licence suitability or criminal past cannot obtain information that would expose police sources and undercover operatives.”

71 The Security Industry Amendment Bill 2005 which inserted subsection (3) into s 29 of the SI Act was based on the Review Report. In the passage referred to both by the Tribunal and Malpass AsJ, Mr Stewart MLA, the Parliamentary Secretary speaking on behalf, the then relevant Minister, of Mr C Scully MLA, explained (Second Reading Speech, New South Wales Legislative Assembly, Parliamentary Debates (Hansard) 21 June 2005 at 17116) that:

“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)

The respondent placed particular reliance upon this last sentence (see [60] above).

72 Subsection 29 (3) commenced on 1 June 2007: see s 2 and New South Wales Government Gazette, No 72, 1 June 2007, at 3050. It might be inferred that its 2007 commencement occurred because of the decision in Nastav v Commissioner of Police, NSW Police [2006] NSWADT 215 in which Judicial Member Higgins rejected an application by the Commissioner under s 75(2) of the ADT for a private hearing, from which the applicant and his legal advisers would be excluded, in respect of police intelligence reports relied upon in revoking the applicant’s security industry licence. In so determining the Judicial Member noted (at [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.”

73 Section 55 of the Freedom of Information Act 1989 was inserted in that Act by the Administrative Decisions Legislation Amendment Act 1997. It required the Tribunal, in determining a review of a decision made to refuse access to “exempt matter”, to ensure that it did not “in the reasons for its decision or otherwise, disclose any exempt matter” and where in its opinion it was necessary to do so “in order to prevent the disclosure of any exempt matter, receive evidence and hear argument in the absence of the public, the review applicant and the applicant’s representative”.

Construction of s 29(3)

74 The question whether the Tribunal committed an error of law on the face of the record replicated by Malpass AsJ in confirming that decision, turns in the first instance on the construction of s 29(3) of the SI Act. In undertaking the construction exercise, it is appropriate to have regard to the context in which s 29(3) appears, bearing in mind that context includes the existing state of the law and the mischief s 29(3) was intended to remedy: CIC Insurance Ltd v Bankstown Football Club Ltd [1997] HCA 2; (1997) 187 CLR 384 (at 408) per Brennan CJ, Dawson, Toohey and Gummow JJ. Section 29(3) must also be construed so it is consistent with the language and purpose of all of the provisions of the SI Act: Project Blue Sky v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 (at [69]) per McHugh, Gummow, Kirby and Hayne JJ.

75 Both the Judicial Member (at [33]) and Malpass AsJ (at [30], [32]) were acutely conscious of the fact that s 29(3) impinges upon ordinary principles of natural justice. The respondent submits that s 29(3) does not operate to exclude entirely the rules of procedural fairness, or modify them to the extent the appellant contends. This submission finds support in the proposition that “it is ... improbable that the legislature would overthrow fundamental principles, infringe rights, or depart from the general system of law, without expressing its intention with irresistible clearness”: Potter v Minahan [1908] HCA 63; (1908) 7 CLR 277 (at 304); Bropho v State of Western Australia [1990] HCA 24; (1990) 171 CLR 1 (at 18), Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission [2002] HCA 49, (2002) 213 CLR 543 (at [11], [43]).

76 In Commissioner of Police v Tanos [1958] HCA 6; (1958) 98 CLR 383 (at 396), Dixon CJ and Webb J said that an intention on the part of the legislature to exclude the application of the rules of natural justice was not to be assumed nor spelled out from “indirect references, uncertain inferences or equivocal considerations”. In Gypsy Jokers Motorcycle Club Inc v Commissioner of Police [2008] HCA 4; (2008) 234 CLR 532 (at [182]), Crennan J (with whom Gleeson CJ agreed) said “Parliament can validly legislate to exclude or modify the rules of procedural fairness provided there is ‘sufficient indication’ that ‘they are excluded by plain words of necessary intendment’”. As her Honour also observed, the High Court recognised in Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 72; (2005) 225 CLR 88 (at [24]) that even in the common law context, courts “mould their procedures to accommodate what has become known as public interest immunity.”

77 The public interest immunity to which Crennan J referred provides some context for the scheme established by s 29(3) of the SI Act. It is the general rule at common law “that the court will not order the production of a document, although relevant and otherwise admissible, if it would be injurious to the public interest to disclose it”: Sankey v Whitlam [1978] HCA 43; (1978) 142 CLR 1 at 38-39 per Gibbs CJ. Where a claim of public interest immunity is upheld, the information the subject of the immunity is not available as evidence to be taken into account in deciding the outcome of the proceedings: Gypsy Jokers (at [5]) per Gleeson CJ, see also Gummow, Hayne, Heydon and Kiefel JJ (at [23] - [24], [36]). Sections 129 – 131 of the Evidence Act 1995 also deal with evidence excluded in the public interest. It is unnecessary to consider those provisions.

78 The categories of public interest immunity at common law are said never to be closed: D v National Society for the Prevention of Cruelty to Children [1977] UKHL 1; [1978] AC 171 (at 230) per Lord Hailsham of St. Marylebone. Two recognised categories are whether the disclosure of the information might enable the discovery of the existence or identity of an informer or prejudice the authorities’ functions in combating criminal activities: Conway v Rimmer [1968] UKHL 2; [1968] AC 910 (at 942, 953 - 954) per Lord Reid; K-Generation Pty Ltd v Liquor Licensing Court [2009] HCA 4; (2009) 252 ALR 471 (at [256]) per Kirby J.

79 Section 29(3) was enacted against this common law background. It is apparent that it was intended to modify the application of the principles of public interest immunity as they might otherwise have applied in an external review of a refusal or revocation of a licence. It ensured that a successful s 29(3) claim did not, as would a successful public interest immunity claim, preclude the Tribunal from considering relevant s 15(6) materials pursuant to ss 58(1)(b) and 63 of the ADT Act.

80 The scheme s 29(3) establishes bears some similarity to those considered recently by the High Court in Gypsy Jokers and K-Generation. Both cases involved unsuccessful challenges on the basis of the principles in Kable v Director of Public Prosecutions (NSW) [1996] HCA 24; (1996) 189 CLR 51 to the constitutional validity of powers conferred on State courts. The discussion in those cases is of assistance in explaining the proper construction of s 29(3).

81 Gypsy Jokers concerned a challenge to s 76 of the Corruption and Crime Commission Act 2003 (WA) (the “CCC Act”). Section 76 established a procedure for the review of a Fortification Removal Notice issued by the Commissioner of Police pursuant to the CCC Act. Section 76(2) provided that on such review:

“(2) The Commissioner of Police may identify any information provided to the court for the purposes of the review as confidential if its disclosure might prejudice the operations of the Commissioner of Police, and information so identified is for the court’s use only and is not to be disclosed to any other person, whether or not a party to the proceedings, or publicly disclosed in any way.” (emphasis added)

82 The High Court by majority (Gleeson CJ, Gummow, Hayne, Heydon, Crennan and Kiefel JJ, Kirby J dissenting) held that that s 76(2) was valid.

83 Gleeson CJ agreed (at [1]) that the appeal should be dismissed for the reasons given by Crennan J. His Honour added (at [4] – [5])) that s 76 provided a limited form of judicial review of Fortification Removal Notices issued by the Commissioner of Police, which review would be frustrated if, by virtue of a successful claim for public interest immunity, confidential information, including information that would reveal the identity of police informers or compromise current police investigations, could not be considered so that the application for review may be bound to fail.

84 In their joint judgment Gummow, Hayne, Heydon and Kiefel JJ (at [25]) observed that the scheme created by s 76 displaced “what otherwise might have been a claim to public interest immunity by the Commissioner of Police”.

85 Their Honours concluded (at [36]) that the preferable construction of the second phrase emphasised in s 76(2) (above) was to “deny what otherwise would be any standing or entitlement of parties and non-parties under the usual processes of the Supreme Court in civil litigation to obtain any order or relief whether by way of discovery, subpoena or otherwise, which would entail disclosure of the information.” Thus, they held (at [36]):

“ ... the operation of this legislative regime has an outcome comparable with that of the common law respecting public interest immunity, but with the difference that the Court itself may make use of the information in question.”

86 The joint judgment (at [40]) drew an analogy between the restriction in s 76(2) on the information identified being publicly disclosed in any way and the necessary effect that would have on the contents of any reasons for judgment delivered upon a review application, and “the practice which from time to time sees the courts restrict the publication of portions of reasons for judgment and to formulate the balance of the reasons to accommodate the restriction”.

87 Crennan J (at [178] – [181]) also referred to the similarities between the s 76 scheme and a claim for public interest immunity. Her Honour concluded (at [183]) that the “statutory modification of procedural fairness achieved by s 76(2) (including any effect on the giving of reasons) is indistinguishable from the modification of procedural fairness which can arise from the application of the principles of public interest immunity”.

88 In K-Generation the High Court (French CJ, Gummow, Kirby, Hayne, Heydon, Crennan and Kiefel JJ) unanimously rejected a challenge to the constitutional validity of s 28A of the Liquor Licensing Act 1997 (SA) (the “LL Act”). Section 28A relevantly provided:

“(1) No information provided by the Commissioner of Police to the Commissioner* may be disclosed to any person (except the Minister, a court or a person to whom the Commissioner of Police authorises its disclosure) if the information is classified by the Commissioner of Police as criminal intelligence.

...

(5) In any proceedings under this Act, the Commissioner, the Court or the Supreme Court—

(a) must, on the application of the Commissioner of Police, take steps to maintain the confidentiality of information classified by the Commissioner of Police as criminal intelligence, including steps to receive evidence and hear argument about the information in private in the absence of the parties to the proceedings and their representatives; and

(b) may take evidence consisting of or relating to information classified by the Commissioner of Police as criminal intelligence by way of affidavit of a police officer of or above the rank of superintendent.”

* The Liquor and Gambling Commissioner: see s 4.

89 “Criminal intelligence” was defined in s 4 to mean:

“... information relating to actual or suspected criminal activity (whether in this State or elsewhere) the disclosure of which could reasonably be expected to prejudice criminal investigations, or to enable the discovery of the existence or identity of a confidential source of information relevant to law enforcement.”

90 The proceedings arose in circumstances where the Commissioner of Police had intervened in proceedings before the Liquor Commissioner to make representations on the question whether the second appellant, the sole director of K-Generation, and one other person, were fit and proper persons to occupy positions of authority in an entertainment venue licence for which K-Generation had applied under s 35 of the LL Act. The Liquor and Gambling Commissioner refused the application after the Police Commissioner provided what was classified as “criminal intelligence” within the meaning of s 28A: K-Generation (at [106]).

91 In their joint judgment Gummow, Hayne, Heydon, Crennan and Kiefel JJ (at [143]) made the following points about s 28A(5):

“143. It is convenient now to turn to matters of construction of s 28A(5), which arose in the course of submissions to this Court. There are seven points to be made at the threshold. First, s 28A(5) imposes a requirement upon not only the Liquor Commissioner, but also upon the Licensing Court and the Supreme Court. Secondly, it does so only in any proceedings under the Act. Thirdly, the requirement is enlivened only upon the application of the Commissioner of Police. Fourthly, the subject matter of the maintenance of confidentiality must be information classified by the Police Commissioner as ‘criminal intelligence’. Fifthly, the definition of ‘criminal intelligence’ in s 4, is so drawn that had a challenge been presented by the appellants it would have been for the Licensing Court to be satisfied that facts existed sufficient to found the expectation of the prejudicial consequences spelt out in the definition; or, that the classification was ‘objectively correct’. Sixthly, it is unnecessary for present purposes to decide which construction should be preferred respecting this ‘trigger’ to the operation of s 28A(5). Finally, nothing in s 28A at this stage modifies the powers conferred upon the Licensing Court by s 24 with respect to witnesses and evidence or the provisions of s 25 for legal representation”

92 After observing (at [144] – [145]) that the decision of the Commissioner of Police to classify material as “criminal intelligence” was open to “collateral attack”, the their Honours said that if any such collateral attack was withstood:

“146. Thereafter, and upon application by the Commissioner of Police, the Licensing Court is required to take steps towards a particular outcome. That outcome is the maintenance of the confidentiality of the information. The Licensing Court is not directed as to which particular steps may be taken, nor is it denied the assistance of submissions by the legal representatives of parties other than the Police Commissioner as to what those steps should be. The steps taken may be provisional in the sense that they may be varied, added to or subtracted from, as the exigencies of the litigation in the Licensing Court progressively appear and as submissions are made to the Licensing Court.

147. The steps which are taken may go so far as to involve the reception of evidence and the hearing of argument by the Licensing Court in private and in the absence of the parties and their representatives. However, the phrase ‘including steps’ in par (a) of s 28A(5) does not mandate the taking of such steps. Rather, the phrase appears in s 28A(5) to mark out the limits of the range within which the Licensing Court may act in particular cases when determining how to maintain the confidentiality of the information.

148. Further, the Licensing Court is not bound to accept in its terms the ‘criminal intelligence’ upon which the Police Commissioner relies. The Court itself may question the evidence in closed session. Evidence led by other parties, and any limited form of cross-examination on the affidavits supplied under par (b) of s 28A(5), must be taken into account. The potential that the s 28A(5) procedure has for injurious effects is reduced by the fact that a decision by the Police Commissioner to make a s 28A(5)(a) application itself may greatly reduce the chance of the ‘criminal intelligence’ being decisive, because, in at least some cases, the Licensing Court may feel disinclined to place weight on material which the Police Commissioner's application has prevented the applicant for a licence being able to test, or even see.” (emphasis added)

93 Thus the joint judgment emphasised that s 28A did not render information classified by the Commissioner of Police as criminal intelligence immune from scrutiny. Rather, in case of doubt, the Commissioner would have to satisfy the Court that the information was properly so classified. Even where that premise was established, the Court had to determine what weight could be placed upon it where the applicant had not had the opportunity to challenge it.

94 Kirby J (at [257]) also emphasised the entitlement, indeed obligation, of a court before which s 28A(5) was invoked, “to demand ... that all ... procedural preconditions, [i.e. those in s 28A(5)(b) and (6)] have been met”.

95 There is no definition of “criminal intelligence” or “criminal information” in the SI Act, nor were counsel able to refer the Court to any case where the expression had been considered. However, as the appellant accepted, whether information over which a s 29(3) non-disclosure claim is made falls within s 15(6) is capable of objective determination. Courts are accustomed through the assessment of public interest immunity claims to resolving the question whether the information the subject of such claims falls within a category to which immunity attaches. Whether intelligence is “relevant to security” can be objectively determined even though “security is a concept with a fluctuating content”: Church of Scientology v Woodward [1982] HCA 78; (1982) 154 CLR 25 (at 59 – 61) per Mason J. Each case must turn on the facts.

96 Thus, as the appellant accepted, when a s 29(3) claim is made, it is necessary for the Tribunal to be satisfied that the information the appellant seeks to cloak with s 29(3) non-disclosure is properly classified as either “criminal intelligence” or “criminal information”, is held in relation to the applicant and falls within one or other of ss 15(6)(a) – (c). If any of these preconditions is not satisfied, s 29(3) does not apply.

97 However, if the preconditions are established, s 29(3) in terms prohibits the disclosure even of the existence of the s 15(6) information and, for more abundant caution no doubt, of its content. As the appellant submits, it does not draw a fine distinction between particulars and evidence. The prohibition on disclosure it directs is a blanket one.

98 The respondent argued that whether s 29(3) operated to prevent the Tribunal from ordering particulars of the matters relied upon by the appellant depended upon the facts of the case and, in particular, on the nature of the criminal intelligence reports or other criminal information in question. That construction does not find support in the express terms of s 29(3). Nor in my view can it be implied from the legislative context to which I now turn.

99 It is significant to note, at the outset, that the SI Act reposes the security licence granting power in the Commissioner of Police. This no doubt reflects the fact that many holders of licences under the SI Act carry out duties and perform functions in some respects similar to those of members of the Police Force.

100 It is apparent from the definition of “security activity” in s 4 that the holder of a licence under the SI Act carries out significant duties in relation to safeguarding members of the community and is afforded considerable privileges in relation to access to other people’s property. Further, some licence holders may be armed while discharging their functions. The licences they hold to carry firearms are issued under the Firearms Act, which, as I have explained, contains similar non-disclosure provisions where a licence or permit to carry a firearm is refused to those found in the SI Act.

101 As one might expect, the SI Act creates a scheme intended to ensure that the Commissioner grants licences only to persons who, in the Commissioner’s opinion, are of the utmost integrity. This emerges from the various bases on which the Commissioner may refuse to grant an application for a licence which range from the straightforward conviction grounds (s 16), to those involving the Commissioner forming the opinion referred to in s 15, in particular s 15(1) and s 15(3). Section 15(6) information is relevant only to the determination whether the applicant is a fit and proper person to hold a licence.

102 It might be inferred that the Commissioner may come into possession of information in the course of exercising his powers of investigation (s 18) which is relevant to the formation of his s 15(1) opinion. Such information will not rise as high as conviction information because a conviction is a ready basis for refusal under s 16. The information will, accordingly, be information, for example, of the nature of that described in s 4 of the LL Act, which reflects the criteria the common law accepted as attracting public interest immunity: K-Generation (at [256]) per Kirby J. It is possible some of that information may include the sort of material the respondent claimed could not be classified as confidential, for example, public information, a newspaper article relating to the applicant. Whether or not such information would fall within s 15(6) would depend on how it was used, and could be the subject of examination in the Tribunal in the in camera hearing contemplated by s 29(3)(b).

103 Section 15(7) gives the Commissioner immunity from disclosing confidential materials in reasons. That is a legislative indication, at an early stage in the application process, that the SI Act was intended to modify that rule of natural justice entitling a person to know the case made against them.

104 Nothing in the SI Act expressly protects the Commissioner from the obligation in s 58 of the ADT Act to lodge material documents with the Tribunal in the case of an external review. Prima facie s 58(5) of the ADT Act would require the Registrar of the Tribunal to grant reasonable access to those documents to the applicant. However that step would be precluded if the Commissioner invoked s 59 of the ADT Act and foreshadowed an application under s 75.

105 The scheme thus created ensures that the existence of confidential materials comes to the notice of the Tribunal, but gives the Commissioner the opportunity to make a s 29(3) non-disclosure claim. In the event that claim is made, s 29(3) establishes the procedure by which that claim is to be determined.

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

The effect of the enactment of s 29(3) on the ADT Act

107 The Judicial Member and Malpass AsJ reached the contrary conclusion, in part because of the procedural fairness s 73 of the ADT Act obliged the Tribunal to exercise. In my view, in so doing they misapprehended the effect the enactment of s 29(3) had on the ADT Act.

108 It is apparent from the legislative history that the enactment of s 29(3) post-dated the enactment of the ADT Act.

109 Later statutory provisions may impliedly repeal earlier statutory provisions or earlier statutory provisions may be excluded from operation where they would operate inconsistently with later statutory provisions in their application to particular cases: Goodwin v Phillips [1908] HCA 55; (1908) 7 CLR 1 (at 7) per Griffith CJ. That doctrine “requires that actual contrariety be clearly apparent and that the later of the two provisions be not capable of sensible operation if the earlier provision still stands”: Minister for Immigration and Multicultural and Indigenous Affairs v Nystrom [2006] HCA 50; (2006) 228 CLR 566 (at [48]) per Gummow and Hayne JJ; see also Gleeson CJ (at [2]).

110 While “the legislature may, by necessary implication, manifest an intention” that a later statutory regime should apply to the exclusion of the first, “partial repeal of an earlier statute by a later statute will only be inferred on ‘very strong grounds’ ”: Ferdinands v Commissioner for Public Employment [2006] HCA 5; (2006) 225 CLR 130 (at [4]) per Gleeson CJ referring with approval to Saraswati v R [1991] HCA 21; (1991) 172 CLR 1 (at 17) per Gaudron J. Gummow and Hayne JJ (at [18]) also referred to the “general presumption that the legislature intended that both provisions should operate”: Saraswati (at 17) per Gaudron J. Their Honours added that “deciding whether there is such inconsistency, (‘contrariety’ or ‘repugnancy’) that the two cannot stand or live together (or cannot be ‘reconciled’) requires the construction of, and close attention to, the particular provisions in question”, a topic they addressed further (at [47] – [49]) in terms to which it is unnecessary to refer.

111 I have set out the provisions of the legislative schemes established by the SI Act and the ADT Act. Both the Judicial Member (at [36] – [38]) and Malpass AsJ (at [20])-[21]) were of the view that particulars could be ordered to give effect to the Tribunal’s statutory obligations under s 73. In my view, however, s 29(3) of the SI Act and s 73, to the extent it contradicts the s 29(3) requirement that neither the existence nor content of s 15(6) materials be disclosed by the Tribunal, cannot stand together. The same conclusion may apply to other provisions of the ADT Act such as s 58(5) (reasonable access to the applicant in the proceedings to any copy of a document lodged under s 58 by an administrator), s 75 (proceedings on hearing to be conducted in public) and s 89(5) (content of reasons). No argument was addressed to the interaction of s 29(3) and the latter provisions, and it is unnecessary to reach a conclusion on them.

112 In my view, therefore, s 29(3) of the SI Act impliedly repeals s 73 to the extent to which it would otherwise apply to an application for a review of any decision to refuse to grant a licence or to revoke a licence that was made on the ground of the applicant not being a fit and proper person.

113 There are “strong grounds” for reaching that conclusion – being the legislature’s concern to ensure s 15(6) information is not disclosed to applicants for security licences, or those whose licences have been revoked, reflected in the legislature clearly contemplating that s 29(3) “would be used as a vehicle to interfere with processes of the Tribunal such as its power to order a party to provide particulars”: see the Second Reading Speech to Security Industry Amendment Bill 2005; cf Malpass AsJ (at [30]), subject, of course, to the appellant’s obligation to satisfy the procedural preconditions for a successful s 29(3) claim.

114 Both the Judicial Member and Malpass AsJ took comfort in reaching their conclusions from that part of the Second Reading Speech to the Security Industry Bill 2005 which stated the Bill was “not designed to circumvent the appeals process or to hinder the Tribunal in the exercise of its review functions”. Two points may be made about the invocation of that sentence.

115 First, the Judicial Member could only have recourse to extrinsic material such as the Second Reading Speech to confirm that the meaning of s 29(3) was the ordinary meaning conveyed by its text or to determine its meaning if it was ambiguous or obscure or if the ordinary meaning the text conveyed led to a result that was manifestly absurd or unreasonable: s 34, Interpretation Act 1987. The Judicial Member did not suggest that either of the pre-conditions in s 34(1)(b) obtained. Nor, in my view, could it be said that the Second Reading Speech, at least to the extent he referred to it, confirmed that the meaning of s 29(3) was its ordinary meaning. Malpass AsJ did refer (at [31]) to having recourse to the Second Reading Speech “if there is any ambiguity as to the intention of Parliament” a phrase which did not invoke the terms of s 34(1)(b) of the Interpretation Act. His Honour did not, however, identify any ambiguity in the meaning of s 29(3) which would permit use of the Second Reading Speech and in my view there is none.

116 Secondly, even assuming contrary to what I have just said, that recourse could be had to the Second Reading Speech, it stated that the Bill would “prevent a release of intelligence directly to the person to whom the intelligence relates”. That supports the ordinary meaning of s 29(3): s 34(1)(a), Interpretation Act. The passage of the Second Reading Speech both the Judicial Member and Malpass AsJ relied upon was qualified by the statement that bodies exercising a review function “will still have the same opportunity [as required by s 63 of the ADT Act] to consider and weigh the probative value of the intelligence the commissioner has relied on to make his decision”, albeit that that intelligence would not be released to the applicant, thus “protect[ing] the safety of police informants and prevent[ing] the disclosure of police information holdings and the details of police methodology”. The Second Reading Speech, in my view, supports the conclusion that s 29(3) was directed to addressing, and modifying, the operation of the common law principles of public interest immunity to which I have referred.

117 Mr Leeming did not address any argument to whether the question of statutory construction might be approached by application of the maxim that where there is a conflict between general and specific provisions, the specific provision prevails (generalia specialibus non derogant). Consideration of that maxim usually arises in the context of provisions in the same statute, but may arise as between provisions in separate statutes: Smith, Ferguson, Forti, Grimshaw & Coburn v R [1994] HCA 60; (1994) 181 CLR 338 (at 348) per Mason CJ, Dawson, Gaudron and McHugh JJ. Many texts on statutory interpretation treat the maxim as applying where the specific provision is earlier in time than the general provision (see D C Pearce and R Geddes, Statutory Interpretation in Australia (2006), Australia, LexisNexis at [7.18]; F A R Bennion, Statutory Interpretation 5th ed (2008) LexisNexis at Section 88) although there are respected judicial observations which do not apply that limitation: see Goodwin v Phillips (at 14) per O'Connor J. Having regard to the conclusions I have reached on the implied repeal point it is unnecessary to consider this issue further.

Was there room for a particulars – evidence distinction?

118 The Judicial Member concluded he could accede to the respondent’s application for particulars because of the distinction Emmett J drew between the provision of particulars of allegations and the disclosure of evidence intended to be adduced to establish those allegations in Applicant S214 of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1039 (at [81] – [82]). In my view, Applicant S214 of 2002 casts little to no light on the issue which arises in the present case. It did not concern a legislative scheme which bore any similarity to the SI Act. It concerned the extent to which the Minister could be ordered to give particulars of the matters upon which he intended to rely in resisting S214’s application for a protection visa under Pt 2 of the Migration Act 1958 (Cth) in circumstances where the Deputy President of the Administrative Appeals Tribunal made a confidentiality order pursuant to s 35 of the Administrative Appeals Tribunal Act 1975 (Cth) (the “AAT Act”).

119 To the extent S214 of 2002 is of any utility, it does not assist the respondent. Thus after observing (at [81]) that there was “a clear distinction between particulars of allegations, on the one hand, and the evidence intended to be relied upon in order to establish those allegations”, Emmett J added that “if furnishing particulars of allegations would disclose part of the contents of a document in respect of which an order had been made under s 35(2), that would be prohibited by the order”. His Honour also envisaged (at [82]) “circumstances whereby the giving of particulars of an allegation would involve a disclosure of the evidence by which the facts alleged in the particulars are to be established.” Both these qualifications were, in my view, more apposite to the application the Judicial Member was considering than the distinction upon which he relied.

120 Malpass AsJ also relied upon the distinction, which he acknowledged (at [33]) can be elusive, between particulars and the evidence.

121 The distinction both the Judicial Member and Malpass AsJ drew between particulars and evidence finds no support in the language of s 29(3) of the SI Act. That section does not distinguish between “particulars” and “evidence”. It proscribes disclosure, relevantly, of the “content” of the information referred to. A requirement to give particulars which discloses any of that “content” contravenes the statutory direction.

Whether the order for particulars required the disclosure of the contents of the confidential materials

122 This brings me to the Judicial Member’s conclusion that making the order for particulars the respondent sought would not contravene s 29(3). It is difficult, with respect, to see how he reached that conclusion.

123 The application for particulars proceeded on the premise that the confidential materials concerned the respondent’s past conduct: ADT decision (at [3]). That statement itself in the Judicial Member’s reasons was arguably a breach of s 29(3), but neither party made any point of that. It was that conduct of which the respondent sought particulars. Although the Judicial Member accepted (at [34]) that s 29(3) precluded the Tribunal from disclosing the confidential materials to the respondent and, further, from disclosing the substance of the allegations against him, he concluded that s 73 of the ADT Act required him to order the appellant to provide particulars which, by their very nature and terms, could not do otherwise than disclose the content of the confidential materials.

124 While the Judicial Member reiterated (at [38]) that he did not consider “the power to order the provision of such particulars extends to the power to order the provision of the content of any criminal intelligence report or other criminal information contained in the confidential material”, that was, with respect, an exercise in sophistry. The confidential materials referred to the respondent’s conduct. The particulars order required the appellant to disclose “any alleged conduct that the Commissioner says supports the contention that Mr Gray is not a fit and proper person to hold a security licence”. It was impossible in practice for the appellant to provide the particulars of the respondent’s conduct the subject of the Tribunal’s orders without referring to the content of the confidential materials.

125 In my view Malpass AsJ also erred in concluding there was no “evidence” that the Tribunal orders required the appellant to disclose the content of the confidential materials. As I have explained (at [123] it is apparent from the Judicial Member’s reasons (which are part of the record: s 69(4), Supreme Court Act) that the confidential materials concerned the respondent’s past conduct. Accordingly any particulars of the conduct on which the appellant relied to support his contention that the respondent was not a fit and proper person to hold a security licence would require the disclosure of the content of the confidential materials and thus contravene s 29(3).

126 In my view the Judicial Member erred in law in failing to give effect to the statutory command in s 29(3): Hope v Bathurst City Council [1980] HCA 16; (1980) 144 CLR 1 (at 7) per Mason J (with whom Gibbs, Stephen, Murphy and Aickin JJ agreed). On the facts disclosed in the Judicial Member’s reasons, the only conclusion open was that provision of particulars in accordance with these orders would contravene that command: Hope v Bathurst City Council (at 9); see also Vetter v Lake Macquarie City Council [2001] HCA 12; (2001) 202 CLR 439 (at [24] – [27]) per Gleeson CJ, Gummow and Callinan JJ. Malpass AsJ erred in reaching the contrary conclusion.

Discretionary issues

127 The respondent submitted that even if he were unsuccessful on the issue of statutory interpretation, the Court should conclude that Malpass AsJ had also held that the Summons should be dismissed because the appellant had failed first to seek relief before the Appeal Panel. He contended the Court would not lightly interfere with that discretionary conclusion. In my view while Malpass AsJ adverted to the possibility of refusing the relief the appellant sought as a discretionary exercise because of that failure, he did not decide the case on that basis.

128 However this Court must also consider whether, having found error of law, it should grant relief having regard to the alternative avenue for appeal which was open to the appellant. In my view it should. While there is a sensible rule, reflected in s 123 of the ADT Act, not to grant discretionary relief in the nature of the prerogative writs where the facility of internal appeal has not been utilised, “the rule is neither inflexible nor universal [but] simply a sensible principle of restraint, allowing for the efficient and proper use of judicial time and of the remedies involved”: Ackroyd v Whitehouse (1985) 2 NSWLR 239 (at 248) per Kirby P; approved Lloyds v Veterinary Surgeons Investigating Committee & Anor [1999] NSWCA 68 (at [13]) per Priestley JA (with whom Mason P and Stein JA agreed).

129 The case raised an important question of principle on which Members of the Tribunal are divided. It concerned the construction of legislation not hitherto considered by this Court. It was, in my view, appropriate for the appellant to seek to have the issue of the proper construction of s 29(3) determined by this Court rather than require him first to exhaust the avenue of seeking leave to appeal pursuant to s 113(2A) of the ADT Act. That the respondent apparently concurred in that course, in return for a potential costs benefit, provides some small support to recognising that it is appropriate.

Orders
130 I propose the following orders:

(1) Grant leave to appeal.

(2) Notice of appeal to be filed within seven (7) days.

(3) Appeal allowed.

(4) Set aside the orders of Malpass AsJ made on 9 May 2008 and in lieu thereof:

(a) Set aside the order for particulars made by the Administrative Decisions Tribunal on 15 January 2008;

(b) Make no order as to costs, to the intent that each party bear their own costs.

(5) Remit the matter to the Tribunal for further hearing in accordance with law.

**********- 1 -

AMENDMENTS:


16/03/2009 - Counsel: N J Williams
Sims v Wran [1984] 1 NSWLR - Paragraph(s) cover sheet


LAST UPDATED:
16 March 2009