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Commissioner of Police v Sleiman & AVS Group of Companies Pty Ltd & Ors [2011] NSWCA 21 (21 February 2011)
Last Updated: 25 May 2011
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Case Title:
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Commissioner of Police v Sleiman & AVS Group of
Companies Pty Ltd & Ors |
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Medium Neutral Citation:
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Hearing Date(s):
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20 October, 21 October 2010 |
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Decision Date:
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Jurisdiction:
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Before:
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Allsop P at 1; Handley AJA at 2; Sackville AJA at
3 |
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Decision:
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CA 2009/298022 (Appeal and
Cross-Appeal) 1. Grant leave to the Commissioner to appeal from the
decision of Schmidt J on 26 February 2010. 2. Direct the Commissioner to
file within seven days an amended notice of appeal which incorporates a claim
for an order setting aside
Declaration 1 made by Schmidt J on 26 February 2010.
3. Allow the appeal. 4. Set aside the declarations and orders made by
Schmidt J on 26 February 2010. 5. In lieu thereof, order that: (a) The
proceedings be dismissed. (b) AVS pay the Commissioner's costs of the
proceedings. 6. Order AVS to pay the Commissioner's costs of the appeal
(including the application for leave to appeal). 7. Grant leave to AVS to
cross-appeal from the decision of Schmidt J on 26 February 2010. 8. Direct
AVS to file its amended notice of cross-appeal within seven days. 9. Dismiss
the cross-appeal. 10. Order AVS to pay the Commissioner's costs of the
cross-appeal (including the application for leave to cross-appeal). 11. AVS,
if otherwise qualified, to have a certificate under the Suitors Fund Act
1951 (NSW) in respect of the appeal. SC 2010/110137
(Removed Proceedings) 1. Dismiss the summons filed by AVS on 4
May 2010. 2. Order AVS to pay the Commissioner's costs of the summons.
Grant leave in all matters to the parties to file within fourteen days short
minutes of any further orders they consider appropriate
to deal with any interim
orders that may still be in force. [Note: The Uniform Civil Procedure
Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a
judgment or order is taken to be entered when it is recorded in the Court's
computerised
court record system. Setting aside and variation of judgments or
orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in
particular note the time limit of fourteen days in Rule 36.16.]
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Catchwords:
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ADMINISTRATIVE LAW - revocation of security
licence by Commissioner of Police - application for review of decision to the
Administrative
Decisions Tribunal ("ADT") - ADT required by s 29(3) of
Securities Industries Act 1997 (NSW) ("SI Act") to ensure that it does not
disclose the existence or content of "criminal intelligence" without approval of
the Commissioner - Commissioner relied on criminal
intelligence - whether ADT
bound or empowered to adopt a "special advocate" procedure to represent the
review applicant's interests
- whether the Commissioner's refusal to approve
disclosure of the criminal intelligence was amenable to judicial review -
whether
the Commissioner was bound to consider the review applicant's request
for approval to disclosure - powers and duties of the ADT to
afford procedural
fairness in face of confidentiality regime.
CONSTITUTIONAL LAW - whether s 29(3) of the SI Act is unconstitutional
because it purports to deny the supervisory jurisdiction of
the Supreme Court -
whether the constitutional issue is premature - application of principles in
Kirk (2010) 239 CLR 531 - difficulties facing applicant for judicial review do
not establish a denial of the supervisory jurisdiction |
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Legislation Cited:
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Cases Cited:
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Texts Cited:
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Category:
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Parties:
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Police Commissioner of New South Wales
(Appellant/Cross-respondent) Peter Sleiman (First
Respondent/Cross-appellant) AVS Group of Companies Pty Ltd (Second
respondent/Cross-appellant) Attorney General of New South Wales
(Intervening) |
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Representation
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Counsel: Dr J Griffiths SC and Mr T Lynch for
the Commissioner of Police Mr TEF Hughes QC & Mr K Oliver for Peter
Sleiman and the AVS Group of Companies Pty Ltd Dr J Griffiths SC and Mr J
Hutton for the Attorney-General |
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- Solicitors:
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Solicitors: Mr I V Knight, Crown Solicitor, for
the Commissioner of Police Mr Steffano Laface, AJL Legal, for Peter Sleiman
and the AVS Group of Companies Pty Ltd |
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File number(s):
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CA 2009/298022 SC 2010/110137 |
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Decision Under Appeal
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- Court / Tribunal:
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- Date of Decision:
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- Citation:
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AVS Group of Companies Pty Limited and Ors v
Commissioner of Police and Anor [2010] NSWSC 109 |
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- Court File Number(s)
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Publication Restriction:
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JUDGMENT
- ALLSOP
P: I agree with Sackville AJA .
- HANDLEY
AJA: I agree with Sackville AJA.
- SACKVILLE
AJA: The Court has heard two matters together. Both arise out of the
revocation by the Commissioner of Police (" Commissioner ") of licences
granted under the Security Industry Act 1997 (NSW) (" SI Act ").
The licences were held by AVS Group of Companies Pty Ltd, a related corporation
and by Mr Peter Sleiman, a person involved in
AVS's operations. For simplicity,
I shall refer to the licence holders collectively as " AVS ".
- The
licences held by AVS entitled the holders to carry on certain security
activities such as patrolling or guarding property, installing
security
equipment and acting as crowd controllers. A delegate of the Commissioner
revoked the licences pursuant to s 26(1A) of the
SI Act , by a notice of
revocation dated 15 July 2009. The notice was served on AVS on 23 July 2009, as
required by s 26(2) and (3) of the
SI Act . Revocation of a licence takes
effect from the date the notice is served: s 26(3).
- The
notice of revocation gave the following reasons for revocation of the licences:
"I am of the opinion that you are no longer a fit and proper person
to hold a security licence.
I consider that it is not in the public interest for you to continue to hold
a licence."
The only ground now relied on by the Commissioner to support revocation of
the licences is that the holders are not fit and proper
persons to hold the
licences.
- On
30 July 2009, AVS sought review of the Commissioner's revocation decision in the
Administrative Decisions Tribunal (" ADT "), pursuant to s 29(1)(a) of
the SI Act . On 13 August 2009, after several hearings in the ADT
([26]-[28] below, an order was made " staying " the revocation decision
pending determination of AVS's application for review.
- The
ADT hearing has been delayed as a result of no fewer than five separate
proceedings being filed in the Supreme Court, either by
AVS or the Commissioner.
One of these proceedings has resulted in a decision of this Court: AVS Group
of Companies Pty Ltd v Commissioner of Police [2010] NSWCA 81 (" AVS No 1
"). In that case, Basten JA set out part of the procedural history (at
[5]-[9]) and commented on the " procedural anomalies " that should not
have been allowed to occur in the various proceedings (at [27]-[34]). His Honour
was particularly critical (at [27])
of the attempt by AVS to undertake merits
review in the ADT and contemporaneously seek judicial review of the
Commissioner's decision.
- In
a judgment delivered on 26 February 2010, a Judge of the Common Law Division
(Schmidt J) made orders on the application of AVS
in relation to a so-called "
special advocate " procedure which, according to AVS, the ADT should
adopt when it hears the application to review the Commissioner's revocation
decision:
AVS Group of Companies Pty Ltd v Commissioner of Police [2010]
NSWSC 109. (The " special advocate " procedure is explained later (at
[24])). Schmidt J made some, but not all the declarations and orders sought by
AVS in the proceedings.
- The
first matter before the Court is the Commissioner's application for leave to
appeal against the decision of Schmidt J. The view
has been taken that leave is
required because the orders made by her Honour do not involve a matter at issue
or a claim amounting
to the value of $100,000 or more: Supreme Court Act
1970 (NSW), s 101(2)(r).
- In
the course of argument on the first day of the hearing of the Commissioner's
application (20 October 2010), it was suggested that
some of AVS's contentions
might require it to file an application for leave to cross-appeal. On the second
day of the hearing (21
October 2010), AVS was granted leave to file a
cross-summons seeking leave to cross-appeal from the decision of the primary
Judge.
The Commissioner did not object to AVS being granted leave to file the
cross-summons and ultimately did not object to the Court granting
leave to AVS
to cross-appeal.
- The
second matter before the Court is a summons filed by AVS in the Common Law
Division seeking, among other things, declaratory and
other relief in relation
to the orders made earlier by Schmidt J. The proceedings commenced by AVS were
removed to this Court on
the application of the Commissioner. I refer to them as
the " removed proceedings ". Since the removed proceedings were heard
with the leave applications, the Court directed that evidence in one proceeding
should
be evidence in the others.
- In
keeping with the complex and lengthy procedural history of this litigation, the
two day hearing did not conclude the argument.
AVS filed written submissions in
support of its application for leave to appeal on 28 October 2010. On 4 November
2010, the Commissioner
filed written submissions in response. In those
submissions, the Commissioner confirmed that he consented to AVS being granted
leave
to cross-appeal, but submitted that the cross-appeal should be dismissed.
AVS filed written submissions in reply on 13 November 2010.
- In
the meantime, a constitutional issue arose, or at least was foreshadowed. On the
second day of the hearing, AVS submitted that
the Commissioner's construction of
s 29(3) of the SI Act required an inferior tribunal, namely the ADT, to
publish misleading reasons for its decision, unless an executive officer of the
State, namely the Commissioner, approved otherwise. The reasons would be
misleading, so it was argued, because the ADT would be prohibited
from
disclosing the true reasons which might, in particular cases, reveal
jurisdictional error. It was said to follow that s 29(3)
of the SI Act is
capable of operating so as to prevent the Supreme Court exercising its
supervisory jurisdiction to review jurisdictional error
by the ADT and is
therefore repugnant to the requirements of Chapter III of the Constitution
.
- When
the constitutional argument was raised, the Court directed AVS to serve notice
on the Attorneys-General of the Commonwealth and
the States of a constitutional
matter, as required by s 78B(1) of the Judiciary Act 1903 (Cth) ("
Judiciary Act "). In response to the notice, the Attorney General of New
South Wales indicated that that he wished to intervene in the proceedings
pursuant to s 78A(1) of the Judiciary Act .
- The
Attorney General filed written submissions on the constitutional issue on 12
November 2010, contending that the constitutional
issue said by AVS to arise was
" hypothetical and premature ". If, however, the Court was minded to
address the constitutional issue, the Attorney General submitted that s 29(3) of
the SI Act was valid as it did not purport to abrogate, directly or
indirectly, the Supreme Court's constitutionally protected judicial review
jurisdiction.
- On
30 November 2010, AVS filed lengthy written submissions on the constitutional
validity of s 29(3) of the SI Act . AVS submitted that the constitutional
question was neither hypothetical nor premature and that, on the Commissioner's
construction,
s 29(3) was invalid.
- In
this judgment, I shall first consider the arguments raised by the parties
independently of the constitutional question. I shall
then address the challenge
to the constitutional validity of s 29(3) of the SI Act .
Key Provisions of the Legislation
- Reference
will be made in due course to a number of provisions in the SI Act and
the Administrative Decisions Tribunal Act 1997 (NSW) (" ADT Act
"). The key provisions, however, are ss 15(6), (7) and 29(3) of the SI
Act , which establish a non-disclosure regime for criminal intelligence
reports or other criminal information relied on by the Commissioner
to refuse to
grant or to revoke a licence (" Criminal Intelligence "). In order to
understand the orders sought or made in the two matters now before the Court, it
is convenient to set out these provisions
at this point and to explain briefly
the legislative history. A full account of the legislative history, including
relevant extracts
from the Parliamentary Debates, is given in Commissioner of
Police v Gray [2009] NSWCA 49; [2009] NSWCA 49; 74 NSWLR 1, at 19-22 [63]-[73], per McColl JA
(with whom Giles and Tobias JJA agreed). The brief account below ([19]-[22]) is
derived from McColl
JA's judgment.
- Subsections
(6) and (7) of s 15 of the SI Act provide as follows:
"15 ...
(6) For the purpose of determining whether an applicant is a fit and proper
person to hold the class of licence sought by the applicant,
the Commissioner
may have regard to any criminal intelligence report or other criminal
information held in relation to the applicant
that:
(a) is relevant to the activities carried out under the class of licence
sought by the applicant, or
(b) causes the Commissioner to conclude that improper conduct is likely to
occur if the applicant were granted the licence, or
(c) causes the Commissioner not to have confidence that improper conduct will
not occur if the applicant were granted the licence.
(7) The Commissioner is not, under this or any other Act or law, required to
give any reasons for not granting a licence if the giving
of those reasons would
disclose the existence or content of any criminal intelligence report or other
criminal information as referred
to in subsection (6)."
- Subsections
(6) and (7) of s 15 were inserted into the SI Act by the Security
Industry Amendment Act 2002 (NSW). The insertion of s 15(6) into the SI
Act was designed, in part, to make it clear that the Commissioner could
refuse a licence on the ground that the applicant was not a "
fit and proper
person " even though the applicant had neither been charged with nor
convicted of an offence. The Second Reading Speech included the following
passage:
"...the current security licensing system allows persons who are
not fit and proper persons, because they are suspected but not charged
or
convicted of criminal or terrorist links, access to sensitive information and
premises as a result of being granted a security
licence.
The difficulty from a licensing perspective is that such persons of concern
have not been subjected to a charge which would automatically
preclude them from
obtaining a security licence.
This may be due to the fact that victims are afraid to lay charges against
the person, or that they withdraw charges following threats
against them. The
only basis the [C]ommissioner could refuse a security licence under these
circumstances would therefore be on the
grounds that the applicant is 'not fit
and proper' or it is 'not in the public interest' that he/she receive a
licence."
NSW Parl Deb, Leg Ass, 12 November 2002, at 6547 (Mr Gaudry MLA,
speaking on behalf of the Minister). No reference was made in the Second Reading
Speech to the purpose of s 15(7).
- In
2004, the Minister of Police conducted a review of the SI Act : Review
Report: Security Industry Act 1997 and Security Industry Regulations 1998
(October 2004). The Review Report included Recommendation 11, as follows:
"Section 15 be amended to ensure that any information provided to a
reviewing Court or Tribunal in respect of a decision not to grant
a security
licence based on subsection 15(6) of the Act, is on a strictly confidential
basis and is protected from further dissemination
or release."
- The
Security Industry Amendment Act 2005 (NSW) was based on the Review
Report and, among other amendments, inserted s 29(3) into the SI Act.
This provides as follows:
"29 ...
(3) In determining an application for a review of any decision to refuse to
grant a licence or to revoke a licence that was made on
the ground of the
applicant not being a fit and proper person, the Administrative Decisions
Tribunal:
(a) is to ensure that it does not, in the reasons for its decision or
otherwise, disclose the existence or content of any criminal
intelligence report
or other criminal information referred to in section 15(6) without the approval
of the Commissioner, and
(b) in order to prevent the disclosure of any such report or other criminal
information, is to receive evidence and hear argument
in the absence of the
public, the applicant for review, the applicant's representative and any other
interested party, unless the
Commissioner approves otherwise."
The amending legislation did not define " criminal investigation report
" or criminal information ".
- In
introducing the legislation, the Minister's representative explained the
amendment in the following passage:
"When the Commissioner relies on police intelligence to refuse a
licence application, the bill will also protect that intelligence
from being
released to unsuccessful applicants if they appeal to the Administrative
Decisions Tribunal [ADT]. This provision is not designed to circumvent the
appeals process or hinder the ADT or the courts in the exercise of their review
functions.
These bodies will still have the same opportunity to consider and
weigh the probative value of the intelligence the commissioner has
relied on to
make his decision. However, the bill will prevent the release of intelligence
directly to the person to whom the intelligence
relates. This will protect the
safety of police informants and prevent the disclosure of police information
holdings and the details
of police methodology." (Emphasis added.)
NSW Parl Deb, Leg Ass, 21 June 2005, at 17117 (Mr Stewart MLA, on
behalf of the Minister).
Matters Before The Court
The Leave Applications
Special Advocate Procedure
- AVS's
claim for relief before Schmidt J was based on its contention that adoption by
the ADT of the " special advocate " procedure is necessary if it is to
have a fair opportunity to address Criminal Intelligence upon which the
Commissioner intends
to rely in the ADT proceedings. AVS submitted to Schmidt J
that, in the absence of the " special advocate " procedure, neither it
nor its legal representatives would be entitled under s 29(3) of the SI Act
to see the evidence relied on by the Commissioner to support his decision to
revoke the licences. According to AVS, such a situation
would produce manifest
unfairness which a court would be astute to avoid.
- AVS
explained to Schmidt J that the special advocate procedure has its origins in
the Special Immigration Appeals Commission Act 1997 (UK). This
legislation prevents the Home Secretary from relying, in proceedings in the
Special Immigration Appeals Commission
(" SIAC "), on material which
cannot be disclosed on national security grounds, unless a special advocate is
appointed. Her Honour quoted
(at [13]) the description of the statutory
procedure in M v Secretary of State for the Home Department [2004] EWCA
Civ 324; [2004] 2 All ER 863, at [13], per curiam :
"... individuals who appeal to SIAC are undoubtedly under a grave
disadvantage. So far as it is possible this disadvantage should
be avoided or,
if it cannot be avoided, minimised. However, the unfairness involved can be
necessary because of the interests of
national security. The involvement of a
special advocate is intended to reduce (it cannot wholly eliminate) the
unfairness which
follows from the fact that an appellant will be unaware at
least as to part of the case against him. Unlike the appellant's own lawyers,
the special advocate is under no duty to inform the appellant of secret
information. That is why he can be provided with closed material
and attend
closed hearings. As this appeal illustrates, a special advocate can play an
important role in protecting an appellant's
interests before SIAC. He can seek
further information. He can ensure that evidence before SIAC is tested on behalf
of the appellant.
He can object to evidence and other information being
unnecessarily kept from the appellant. He can make submissions to SIAC as to
why
the statutory requirements have not been complied with. In other words he can
look after the interests of the appellant, in so
far as it is possible for this
to be done without informing the appellant of the case against him and without
taking direct instructions
from the appellant."
Background to the Primary Decision
- A
hearing took place in the ADT on 30 July 2009, immediately following the filing
of AVS's application for review of the revocation
decision. AVS sought what it
described as a " stay " of the revocation decision, which was refused. It
is common ground that at this hearing counsel for the Commissioner disclosed
that
Criminal Intelligence existed and invited the ADT to take it into account.
The intelligence was in fact taken into account by the
ADT in refusing the stay
application.
- On
11 August 2009, the Appeal Panel of the ADT granted AVS's application for leave
to appeal and allowed the appeal: AVS Group of Companies Pty Ltd v
Commissioner of Police (NSW) [2009] NSWADTAP 48. The Appeal Panel held that
s 29(3) of the SI Act did not require the ADT to admit the Criminal
Intelligence as a confidential exhibit which was not to be revealed to AVS,
without
first considering the fairness to AVS of this procedure. The Appeal
Panel remitted the so-called stay application to the General
Division of the
ADT.
- On
12 August 2009, the Commissioner sought judicial review of the Appeal Panel's
decision of 11 August 2009.
- On
13 August 2009, Deputy President Hennessy reheard the stay application. The
application was opposed by the Commissioner, but he
did not tender any evidence
in support of his opposition. The ADT granted a " stay " of the
revocation decision.
- On
2 September 2009, AVS applied to the ADT for orders, among others, that a
special advocate procedure be adopted. The application
was refused, on the
ground that s 29(3) of the SI Act requires the Commissioner to approve
any such procedure. Accordingly, the ADT held that it lacked power to direct
that AVS be represented
by a special advocate.
- By
a letter dated 10 September 2009, the solicitors for AVS asked the Commissioner
to approve draft orders that would enable AVS's
interests to be represented by a
special advocate. AVS suggested that the special advocate should be Mr A P
Whitlam QC, a former
Judge of the Federal Court of Australia and a former
President of the Federal Police Disciplinary Tribunal. There has been no dispute
in these proceedings that Mr Whitlam is a person who can be expected to adhere
strictly to any requirement that he not disclose information
to other persons,
including AVS.
- The
orders proposed by AVS to the Commissioner were as follows:
" THE COURT :
(1) DIRECTS pursuant to sections 70, 73(1) and 73(2) of the Administrative
Decisions Tribunal Act 1997 that at any closed session of the final hearing
in these proceedings, the interests of the applicants are to be represented by a
'special
advocate' in accordance with these orders and otherwise as the Tribunal
may direct from time to time.
(2) APPOINTS Mr Antony Whitlam QC as 'special advocate' , such
appointment to take effect from the time of first commencement of any closed
session of the final hearing in these proceedings.
(3) NOTES that, prior to the time when the appointment of the special
advocate takes effect, Mr Whitlam QC will be retained and instructed in the
capacity of counsel for the applicants .
(4) ORDERS pursuant to sections 73(1) and 75(2)(d) of the Administrative
Decisions Tribunal Act 1997 that at and after the time when his appointment
takes effect, the special advocate:
(a) is to assist the Tribunal in relation to these proceedings in accordance
with the directions of the Tribunal from time to time;
(b) is to receive in relation to these proceedings no further instructions
as counsel for the applicants ; and
(c) is forever prohibited, save as compellable by law and subject to further
order of the Tribunal, from disclosing to any person:
(i) any documentary or other evidence received by the Tribunal;
(ii) any argument heard by the Tribunal; or'
(iii) the existence or content of any criminal intelligence report or other
criminal information of which the existence or content
shall have been disclosed
to the special advocate;
in the course of any closed session of the Tribunal held in relation to these
proceedings and at which the special advocate shall
have been present.
(5) NOTES that, without prejudice to any rights that the applicants may have
pursuant to section 88 of the Administrative Decisions Tribunal Act 1997
, all costs arising from the appointment of the special advocate will in the
first instance be paid by the applicants." (Emphasis
added.)
Schmidt J referred in her judgment and orders to AVS's suggested orders as "
the proposed special advocate procedure ". I shall do the same.
- On
9 October 2009, the Crown Solicitor replied in cryptic terms to the proposal
made by AVS's solicitors, as follows:
"[The Commissioner] does not propose to engage in a 'special
advocate' procedure."
- On
22 October 2009, AVS commenced proceedings in the Common Law Division
Administrative Law List. The relief sought by AVS included:
- a declaration
that the ADT is empowered in its lawful discretion to adopt the proposed special
advocate procedure without the approval
of the Commissioner or, alternatively,
subject to the approval of the Commissioner under s 29(3) of the SI Act ;
- a declaration
that the Commissioner is required under s 29(3) of the SI Act to consider
and determine, according to law, any proposal made by AVS or the ADT for his
approval of the proposed special advocate
procedure: and
- orders in the
nature of prerogative relief setting aside the Commissioner's decision refusing
AVS's application and ordering the Commissioner
to consider the application
according to law.
- On
16 December 2009, Rothman J quashed the decision of the Appeal Panel made on 11
August 2009 and remitted the appeal to the ADT:
Commissioner of Police v AVS
Group of Companies Pty Ltd [2009] NSWSC 1408. AVS subsequently sought leave
to appeal from Rothman J's decision.
- The
hearing of AVS's application in relation to the proposed special advocate
procedure took place on 17 December 2009. In her judgment
delivered on 26
February 2010, Schmidt J rejected AVS's claim to a declaration that the ADT
could adopt the special advocate procedure
without the Commissioner's approval.
However, her Honour held that the Commissioner was bound to consider AVS's
request that he approve
of the proposed special advocate procedure and, in
particular, to consider whether the procedure adequately protected the
confidentiality
of the criminal information on which the Commissioner wished to
rely. Her Honour also found, on the basis of the Commissioner's cryptic
response
of 9 October 2009 (at [33] above), that the Commissioner had failed to consider
whether the proposal adequately protected
confidentiality.
- Accordingly,
Schmidt J made the following declarations and orders:
"1. A declaration that the proposed 'special advocate' procedure is
a procedure that the [ADT] is empowered in its lawful discretion
to adopt for
the hearing of the pending [ADT] proceedings, subject to the special advocate
being appointed by [AVS] and the approval of disclosure of the confidential
exhibit to the special advocate being given by the [the Commissioner] pursuant
to s 29(3) of the [ SI Act ] 1997.
2. A declaration that the [Commissioner] is required by law to consider and
determine according to law any application or proposal
for his approval,
pursuant to s 29(3) of the [ SI Act ], of the proposed 'special advocate'
procedure that has been made, or shall at any time be made, in connection with
the pending [ADT]
proceedings by or on behalf of [AVS].
4. [An order that] the [Commissioner] consider [AVS's] application for the
disclosure of the confidential exhibit to the special advocate
under the
provisions proposed by [AVS], according to law." (Emphasis added.)
The numbering or the orders is that used by her Honour.
Draft Notice of Appeal
- On
26 March 2010, the Commissioner filed a notice of intention to appeal against
the decision of Schmidt J. On 26 May 2010, the Commissioner
filed a summons
seeking leave to appeal from her Honour's decision. A draft notice of appeal was
filed in advance of the hearing.
- The
Commissioner's draft notice of appeal does not challenge Order 1 made by the
primary Judge, the effect of which is to declare
that the ADT, subject to the
Commissioner approving disclosure of the confidential exhibit and to AVS
appointing the special advocate,
may adopt the special advocate procedure. The
draft notice of appeal challenges Orders 2 and 4 on the basis that her Honour
erred
in:
holding that the Commissioner's decision of 9 October 2010 not to
approve the disclosure by the ADT of Criminal Intelligence to a
" special
advocate " (" 9 October Decision ") was amenable to judicial review;
finding that s 29(3) of the SI Act required the Commissioner to
consent to the proposed special advocate procedure, if satisfied that the
procedure would preserve the
confidentiality of the material to which s 29(3)
applies;
finding that the absence of any reasons by the Commissioner for the 9 October
Decision justified an inference that he had no good
reasons for the Decision;
and
finding that the 9 October Decision had been made without considering whether
confidentiality had been adequately protected and for
an improper purpose,
namely obtaining a forensic advantage in the ADT proceedings.
- The
draft notice of appeal seeks orders setting aside Declarations 2 and 4 made by
Schmidt J and in lieu thereof seeks an order that
the proceedings be dismissed.
Since the Commissioner does not expressly challenge Declaration 1 made by
Schmidt J, presumably it
is intended that Order 1 remain on foot and that the
balance of the proceedings be dismissed.
Draft Notice of Cross-Appeal
- I
have explained the circumstances in which AVS sought leave to cross-appeal from
Schmidt J's decision. AVS's amended draft notice
of cross-appeal ("
cross-appeal ") is a lengthy document. The grounds in the cross-appeal
include the following:
"1 Her Honour erred in holding (at paragraphs [28], [35] and [36]
of the reasons for judgment) that the procedure for appointment
by the [ADT] of
a 'special advocate' in proceedings 093202 (the ' pending Tribunal
proceedings ') that was proposed by [AVS] to the [Commissioner] in
correspondence dated 10 September 2009 (the ' proposed special advocate
procedure ') was a procedure for 'representation' of [AVS] within the
meaning of s 71 of the ADT Act. Her Honour should have held that the
proposed special advocate procedure was a procedure whereby a 'special advocate'
would, when
acting in that capacity, assist the [ADT] by informing it concerning
matters relevant to the interests of [AVS], but without providing
'representation' to [AVS] within the meaning of s 71 of the ADT Act .
2. Her Honour erred in holding (in paragraphs [32]. [36] and [39] of the
reasons for judgment) that the [ADT] has no power by which
to cause itself to be
informed concerning matters relevant to the interests of a party to proceedings
before it, otherwise than by
'representation' of that party within the meaning
of s 71 of the ADT Act . Her Honour should have held that the powers
conferred upon the [ADT]:
a. by s 73(1) of the ADT Act , subject to the ADT Act and the
rules of the [ADT], to determine its own procedure; and/or
b. by s 73(2) of the ADT Act , to inquire into and inform itself on
any matter in such manner as it thinks fit, subject to the rules of natural
justice,
empower the [ADT], amongst other things, to appoint a special advocate
pursuant to the proposed special advocate procedure, and to
conduct proceedings
in accordance with the proposed special advocate procedure, and that s 71 of the
ADT Act does not, in its express terms or otherwise, operate to limit
those powers."
...
4. Her Honour erred in holding (paragraph [45] of the reasons for judgment)
that s 29(3)(a) of the SI Act impliedly repeals s 75(2)(d) of the [
ADT Act ] to the extent to which it would otherwise operate to empower
the [ADT] to make, without the [Commissioner's] consent, orders restricting
disclosure of the existence or content of any relevant criminal intelligence.
(Emphasis in original.)
- Among
the eleven declarations sought (either as primary relief or in the alternative)
are the following:
"2. A declaration that s 29(3)(a) of the SI Act , on its
proper construction:
a. requires the [ADT] unless the [Commissioner] approves otherwise, to
refrain from disclosing the existence or content of any criminal
intelligence
report or other criminal information referred to in s 15(6) of the SI Act
(" relevant criminal intelligence "), if such disclosure is for a
purpose, or to a person who it were reasonable to suppose might employ that
relevant criminal intelligence
for a purpose, other than the [ADT's]
determination of the application for review to which that criminal intelligence
is relevant;
and
b. does not otherwise prohibit the [ADT] for disclosing the existence or
content of relevant criminal intelligence.
3 A declaration that the proposed special advocate procedure is a procedure
that the [ADT] is empowered in its lawful discretion to
adopt for the hearing of
the pending [ADT] proceedings, and that for the purposes of that procedure the
[ADT] is empowered to disclose
the existence and content of relevant criminal
intelligence to the special advocate proposed thereunder, and to do so without
any
requirement for the approval of the [Commissioner] pursuant to s 29(3) of
the [ SI Act ] or any other approval of the [Commissioner] whatsoever.
4. Alternatively to (3), declarations:
a. that the proposed special advocate procedure is a procedure that the [ADT]
is empowered in its lawful discretion to adopt for the
hearing of the pending
[ADT] proceedings, and that for the purposes of that procedure the [ADT] is
empowered to disclose the existence
and content of relevant criminal
intelligence to the special advocate proposed thereunder, subject to the
approval of the [Commissioner]
pursuant to s 29(3) of the SI Act ;
b. that the [Commissioner] is bound to consider and determine according to
law any request from the [ADT] for his approval, pursuant
to s 29(3) of the
SI Act , of the proposed special advocate procedure that shall at any
time be made to him by the [ADT] in connection with the pending [ADT]
proceedings, and whether such request shall have been made by the [ADT] of its
own motion, or on the application of [AVS];
c. that any decision by the [ADT], in response to any application from [AVS],
whether to request the Commissioner's approval of the
special advocate procedure
in relation to the pending [ADT] proceedings, is:
i. a 'decision or ruling, made by the [ADT] that relates to' the pending
[ADT] proceedings within the meaning of s 73(4)(b) of the ADT Act ; and
ii. an 'original decision' of the [ADT] within the meaning of s 7 and s 89(1)
of the ADT Act;
5. Further, or alternatively, declarations:
a. that the ADT Act , and/or in particular s 73(2) thereof, authorises
the [ADT], subject to the rules of natural justice, in determining any
application for review pursuant to s 29(1)
of the SI Act , to inquire
into, and inform itself on, representations as to any matter of fact or law that
competent counsel would make, or advise
to be made, to the [ADT] on behalf of,
or otherwise in the interests of, any person who has made to the [ADT] that
application for
review (' relevant applicant '), being representations in
respect of, or otherwise arising by reason of, or in connection with the
existence or content of, any
criminal intelligence report or other criminal
information, the existence or content of which s 29(3) of the SI Act
requires the [ADT] to refrain from disclosing to the relevant applicant, or
to the relevant applicant's representative (' material representations
'), and to do so either on the application of the relevant applicant, or of
its own motion.
b. that the ADT Act , and/or in particular s 73(2) thereof, authorizes
the [ADT], subject to the rules of natural justice and to s 29(3) of the SI
Act , so to inquire and inform itself by means that include (but are not
necessarily limited to) receiving material representations from
counsel
(howsoever designated) chosen or approved by the [ADT] for that purpose
(howsoever designated) (' counsel confidentially assisting ')". (Emphasis
in original.)
- It
will be seen that draft Declaration 3 is framed by reference to the proposed
special advocate procedure that was the subject of
debate before Schmidt J.
Draft Declaration 5, by contrast, is not so framed, but refers to the powers
available to the ADT to inform
itself as to any matter of fact or law that a
competent counsel would make on behalf of or otherwise in the interests of an
applicant seeking review of a revocation decision.
The Removed Proceedings
Background
- On
3 March 2010, following Schmidt J's decision, AVS's solicitors again asked the
Commissioner to approve the proposed special advocate
procedure in the ADT. The
application attached draft orders in substantially the same terms as those
previously submitted, with one
exception. The exception was that the orders had
been amended to accommodate Schmidt J's ruling that the special advocate was to
be appointed by the party whose interests were to be represented, not by the
ADT.
- On
21 April 2010, AVS's application for review of the Commissioner's revocation
decision was fixed for hearing in the ADT, commencing
on 14 July 2010.
- On
15 April 2010, the Court of Appeal delivered judgment on the application for
leave to appeal from the decision of Rothman J: AVS Group of Companies Pty
Ltd v Commissioner of Police [2010] NSWCA 81. the Court affirmed Rothman J's
decision that s 29(3) of the SI Act applies to applications for a "
stay " of a revocation decision made by the Commissioner. Armed with the
Court of Appeal's decision, the Commissioner applied to the ADT
for an order
discharging the stay order made on 13 August 2009.
- On
23 April 2010, the Commissioner's solicitors sent a letter to AVS's legal
representatives stating that, pursuant to Order 4 made
by Schmidt J (at [37]
above), the Commissioner had considered AVS's proposal made on 3 March 2010. The
Commissioner's response was
as follows:
"[The Commissioner] is not prepared to approve disclosure of the
evidence
3. to which s.29(3) [ SI Act ] applies, and
4. upon which he intends to rely,
to a 'special advocate' at the final hearing of [AVS's] application. [AVS]
have requested reasons for that decision.
As previously advised [the Commissioner] is of the opinion that you are not
entitled to reasons.
However, I have been instructed to advise the above decision was made having
regard to
5. the circumstances in which the s.29(3) [ SI Act ]
material was obtained by [the Commissioner], and
6. the protection intended to be afforded to such material by s.29(3) [
SI Act ] ." (Numbering in original; emphasis added.)
- On
4 May 2010, AVS filed a summons in the Common Law Division of the Supreme Court.
The relief sought by AVS included the following:
"1 A declaration that the [Commissioner's] refusal, in
correspondence dated 23 April 2010, to approve the 'special advocate' procedure
proposed by the plaintiffs in correspondence dated 3 March 2010 (the ' 23
April decision '), is contrary to law.
2. A declaration that the 23 April decision was not compliant with the
Court's order made ... by her Honour Justice Schmidt ...
3 An order in the nature of certiorari setting aside the 23 April decision.
4 A declaration that the [Commissioner] is bound, as a matter of law, to
approve pursuant to s 29(3) of the Security Industry Act 1997 :
(a) disclosure to the special advocate to be appointed by [AVS], namely, Mr
Antony Whitlam QC, of the confidential exhibit referred
to in paragraph 75(2)
(sic) of the reasons for judgment of ... Justice Schmidt ... and
(b) the presence and participation of that special advocate at any closed
hearing that may be conducted by the [ADT] ..." (Emphasis
in original.)
- The
" confidential exhibit " noted in par 4 of the orders sought by AVS is in
fact referred to in para 75(4) (not para 75(2)) of Schmidt J's judgment, which
sets out the terms of Order 4 made by her Honour. The confidential exhibit
contains the material relied on by the Commissioner which
is said to be a "
criminal investigation report " or " criminal information " for
the purposes of s 15(6) of the SI Act .
- On
13 May 2010, Davies J made orders in the Common Law Division proceedings on an
urgent application by AVS: AVS Group of Companies Pty Ltd v Commissioner of
Police [2010] NSWSC 447. His Honour restrained the ADT from hearing any
application by the Commissioner to revoke what was described as a " stay
order " made by the ADT on 13 August 2009 in relation to the revocation
decision, until the hearing of AVS's summons. His Honour also restrained
the
Commissioner from filing or prosecuting any application to revoke the " stay
order " until the summons was heard. The effect of the so-called " stay
order " was to preserve the licences held by AVS pending the ADT's
determination of AVS's application to review the Commissioner's revocation
decision.
- On
26 May 2010, the Commissioner filed a summons seeking leave to appeal from the
orders made by Schmidt J on 26 February 2010.
- On
18 June 2010, Price J, on the Commissioner's application, ordered, pursuant to
Uniform Civil Procedure Rules (" UCPR ") r 28.2, that the
following question be heard and determined separately in the proceedings:
"On a proper construction of s. 29(3) of the Security Industry
Act 1997 and having regard to the events that have occurred, is the
Commissioner ... obliged to approve [AVS's] proposal that they be represented
by
a 'Special Advocate' in the proceedings in the [ADT]"
- His
Honour directed, pursuant to UCPR r 1.21, that the proceedings instituted
by AVS in the Common Law Division be removed to the Court of Appeal. His Honour
further directed
that the final hearing of AVS's application for review in the
ADT be stayed until the final determination by this Court of the removed
proceedings and of the application for leave to appeal from the decision of
Schmidt J: AVS Group of Companies v Commissioner of Police [2010] NSWSC
659.
Legislation
- 54In
order to resolve the issues before this Court, it is necessary to read the
relevant provisions of the SI Act with those of the ADT Act . The
SI Act was enacted shortly after the ADT Act and it has been held
that the former, to some extent, effects an implied repeal of the latter:
Commissioner of Police v Gray [2009] NSWCA 49; 74 NSWLR 1. Accordingly,
each enactment is not necessarily entirely consistent with the other. One of the
issues in these proceedings is to determine
the extent to which s 29(3) of the
SI Act is inconsistent with the ADT Act , in particular s 73.
SI Act
- The
SI Act prohibits a person carrying on a " security activity ", or
employing or providing persons to carry on security activities, unless that
person holds one of the various classes of licence
that can be issued under the
SI Act : s 7. An application for a licence is to be made to the
Commissioner: s 14(1).
- Section
15(1) of the SI Act provides that the Commissioner must refuse to
grant an application for a licence if the Commissioner is satisfied, relevantly,
that the applicant:
"(a) is not a fit and proper person to hold the class of licence
sought by the applicant ..."
In certain circumstances, the Commissioner may refuse to grant an
application for a licence: s 15(2),(3). These circumstances include where the
Commissioner " considers that the grant of the licence would be contrary to
the public interest ": s 15(3).
- Sub-sections
15(6) and (7) are important. They have been set out above (at [19]).
- On
receiving an application for a licence, the Commissioner may carry out all such
investigations and inquiries as the Commissioner
considers necessary to enable
the application to be considered properly: s 18(1). The Commissioner may require
an applicant to provide
additional information of certain kinds: s 20(1).
- The
Commissioner, after considering an application, may grant or refuse to grant a
licence: s 21(1). The Commissioner may also grant
a licence subject to
conditions and may impose conditions on a licence after it has issued: s
21(3)(a). In general, a licence remains
in force for a period of five years from
the date on which it comes into force: s 24(1).
- Section
26 of the SI Act deals with revocation of a licence. Section 26(1)
provides that a licence may be revoked for certain specified reasons and "
for any other reason prescribed by the regulations " (s 26(1)(d)). Clause
29 of the Security Industry Regulations 2007 states that a licence may be
revoked on the ground that revocation of the licence is in the public interest.
- Section
26(1A) of the SI Act is as follows:
"The Commissioner must revoke a licence where the Commissioner is
satisfied that, if the licensee were applying for a new licence,
the application
would be required by this Act to be refused."
- A
person may apply to the ADT for a review, among other things, of the
Commissioner's refusal to grant a licence or the revocation
of that person's
licence: s 29(1). Applications made under s 29 of the SI Act are to be
determined by one member of the General Division of the ADT who is a Judicial
Member: ADT Act , Sch 2, Part 4, cl 8.
- Section
29(3) of the SI Act is critical to the resolution of the issues before
this Court. It, too, has been set out earlier (at [22]).
ADT Act
- A
person may apply to the ADT for a review of a " reviewable decision " and
the ADT has jurisdiction to review the decision: ss 38(1), 55(1). A "
reviewable decision " is a decision of an administrator that the ADT has
jurisdiction under an enactment to review: s 8(1). There is no dispute in the
present case that the Commissioner is an " administrator " (s 9) and that
by reason of s 29(1) of the SI Act, the Commissioner's decision to revoke
the licences held by AVS was a reviewable decision.
- If
an administrator makes a reviewable decision, an interested person may request
the administrator to give reasons: s 49(1). In the
event of a request, the
administrator is to prepare, as soon as practicable, a written statement of
reasons: s 49(2). Section 49
did not apply to the Commissioner's refusal to
approve the special advocate procedure since that refusal, on any view, was not
a
reviewable decision for the purposes of the ADT Act . However, subject
to s 29(3) of the SI Act , the Commissioner was bound to comply with s 49
of the ADT Act in relation to his revocation decision.
- An
administrator whose reviewable decision is subject to an application for review
to the ADT must lodge material documents with the
ADT. The obligation includes
lodging a copy of the administrator's statement of reasons (s 58(1)(a)) and a
copy of every document in the administrator's possession or control that the
administrator considers to be relevant to the
determination of the application
by the ADT.
- The
Registrar of the ADT is to grant reasonable access to the applicant in the
proceedings to the documents lodged by the administrator:
s 58(5). However, the
administrator is entitled to apply to the ADT for an order that he or she not be
required to lodge a copy of a document
with the ADT: s 59(1). The ADT may make
such an order if, for example, it is satisfied that the document is privileged
under certain provisions of the Evidence Act 1955 (NSW) or it considers
that, if an application were made under s 75(2) of the ADT Act , it would
be appropriate to make an order prohibiting or restricting publication or
disclosure of the document.
- Section
60 of the ADT Act deals with the effect of pending decisions on
reviewable applications. It relevantly provides as follows:
"(1) Subject to this section, an application to the Tribunal for a
review of a reviewable decision does not affect the operation of
the decision
under review or prevent the taking of action to implement that decision.
(2) On the application of any party to proceedings for an application for a
review of a reviewable decision, the Tribunal may make
such orders staying or
otherwise affecting the operation of the decision under review as it considers
appropriate to secure the effectiveness
of the determination of the
application."
- Section
63 of the ADT Act provides as follows:
"(1) In determining an application for a review of a reviewable
decision, the Tribunal is to decide what the correct and preferable
decision is
having regard to the material then before it, including the following:
(a) any relevant factual material,
(b) any applicable written or unwritten law.
(2) For this purpose, the Tribunal may exercise all of the functions that are
conferred or imposed by any relevant enactment on the
administrator who made the
decision.
(3) In determining an application for the review of a reviewable decision,
the Tribunal may decide:
(a) to affirm the reviewable decision, or
(b) to vary the reviewable decision, or
(c) to set aside the reviewable decision and make a decision in substitution
for the reviewable decision it set aside ..."
- Section
67 of the ADT Act identifies the parties to proceedings before the ADT.
Section 67(2) provides as follows:
"The parties to proceedings before the Tribunal for a review of a
reviewable decision are:
(a) any person who, being entitled to do so, has duly applied to the Tribunal
for a review of the decision, and
(b) the administrator who made the decision, and
(c) if the Attorney General intervenes in the proceedings under section 69 -
the Attorney General, and
(d) any other person who has been made a party to the proceedings by the
Tribunal in accordance with subsection (4), and
(e) any person specified by or under any enactment as a party to the
proceedings."
- Section
67(4) of the ADT empowers the ADT to make a person or party to the proceedings
if the ADT
"considers that the person ought to have been joined as a party or
is a person where joinder is necessary to the determination of
all matters in
dispute in the proceedings".
- Section
68(1) of the ADT Act provides that, if it is necessary for the purposes
of any Act to decide whether the interests of a person are affected, or likely
to be affected by a decision, the question is to be decided by the ADT. A
decision that a person's interests are so affected is conclusive
and cannot be
the subject of an appeal to an Appeal Panel: s 68(2).
- Section
70 of the ADT Act provides as follows:
"The Tribunal must ensure that every party to proceedings before
the Tribunal is given a reasonable opportunity:
(a) to present the party's case (whether at a hearing or otherwise), and
(b) to make submissions in relation to the issues in the proceedings."
- A
party to proceedings before the ADT may appear without representation or may be
represented by an Australian legal practitioner:
s 71(1). A person who is not an
Australian legal practitioner may, with the consent of a party, apply to the ADT
for leave to represent the
party as the party's agent in the proceedings: s
71(2). If a party is an " incapacitated person " (as defined in s 71(7)),
the ADT may appoint any other person it thinks fit to represent that party: s
71(4).
- Section
73 of the ADT Act deals with the procedure of the Tribunal. It relevantly
provides as follows:
"(1) The Tribunal may, subject to this Act and the rules of the
Tribunal, determine its own procedure.
(2) The Tribunal is not bound by the rules of evidence and may inquire into
and inform itself on any matter in such manner as it thinks
fit, subject to the
rules of natural justice.
(3) The Tribunal is to act with as little formality as the circumstances of
the case permit and according to equity, good conscience
and the substantial
merits of the case without regard to technicalities or legal forms.
(4) The Tribunal is to take such measures as are reasonably practicable:
(a) to ensure that the parties to the proceedings before it understand the
nature of the assertions made in the proceedings and the
legal implications of
those assertions, and
(b) if requested to do so - to explain to the parties any aspect of the
procedure of the Tribunal, or any decision or ruling made
by the Tribunal, that
relates to the proceedings, and
(c) to ensure that the parties have the fullest opportunity practicable to be
heard or otherwise have their submissions considered
in the proceedings.
(5) The Tribunal:
(a) ...
(b) is to ensure that all relevant material is disclosed to the Tribunal so
as to enable it to determine all of the relevant facts
in issue in any
proceedings, and
..."
- Proceedings
before the ADT are to be open to the public: s 75(1). Nonetheless, the ADT has
power, if satisfied that it is desirable
to do so by reason of the confidential
nature of any evidence or matter or for any other reason, to order that the
hearing be conducted
wholly or partly in private or that publication of any
evidence given before the ADT or contained in any documents lodged with the
ADT
be prohibited or restricted: s 75(2)(a), (c). The ADT also has power to make an
order prohibiting or restricting the disclosure
to some or all of the parties of
evidence given before the ADT, or the contents of any document lodged with it or
received in evidence,
in relation to the proceedings: s 75(2)(d).
- The
ADT is empowered in any proceedings to call any witnesses of its own motion: s
83(1)(a). The ADT also may examine any witness
on oath or affirmation and may
examine or cross-examine any witness to such extent as it thinks proper " in
order to elicit information relevant to the exercise of the functions of the
[ADT] in any proceedings ": s 83(1)(c). If the ADT decides to call a person
as a witness under s 83(1), it may direct the Registrar to issue a summons to
compel
that person to attend: s 83(2)(b). A person who, without reasonable
excuse, fails to comply with a summons is guilty of an offence:
s 84(4).
- The
ADT Act provides for the Minister to appoint assessors of the ADT: s
29(1). If proceedings are pending, the ADT or the President may, with the
consent of the parties, direct a single assessor to inquire into
an issue and
report to the ADT: s 33(1),(2). The ADT, in determining proceedings, may be
assisted by one or more assessors, but they are not to adjudicate in any matter
before the ADT: s 35(1),(2).
- The
ADT is obliged to give a party a statement in writing of the reasons for the
ADT's decision on an application for review of a
reviewable decision if the
party requests reasons: s 89(3). The written reasons must set out findings on
material questions of fact, the ADT's understanding of the applicable law and "
the reasoning processes that lead the [ADT] to the conclusions it made ":
s 89(5).
- A
party to proceedings in which an " appealable decision " of the ADT is
made may appeal to the ADT constituted by an Appeal Panel: s 113(1). An "
appealable decision " includes a decision of the ADT made in proceedings
for review of a reviewable decision: s 112(1). An appeal to the Appeal Panel may
be made on any question of law and, with the leave of the Appeal Panel, may
extend to a review
of the merits of the appealable decision: s 113(2). If an
appeal extends to a review of the merits of an appealable decision, the Appeal
Panel is to decide what the correct and preferable
decision is having regard to
the material then before it: s 115(1). Section 89 applies to a decision of the
Appeal Panel under s 115 in the same way as it applies to decisions determining
an application for review of a reviewable decision: s 117(3). Since an Appeal
Panel is the ADT differently constituted (s 24(1)), s 29(3) of the SI Act
applies to the Appeal Panel as it does to the ADT constituted by one or more
Division members.
- A
party to proceedings before an Appeal Panel may appeal to the Supreme Court on a
question of law against any decision of the Appeal
Panel: s 119(1). However,
subject to one exception, nothing in the ADT Act affects the power of the
Supreme Court, in the exercise of its original jurisdiction to review decisions
of the ADT: s 122. The exception is that the Supreme Court is given an express
discretionary power to refuse to grant an application if adequate provision
is
made for alternative review of the decision: s 123(1).
- Section
125(1) of the ADT Act relevantly provides as follows:
"(1) Nothing in this Act requires the disclosure of a document if
the Tribunal or President is satisfied that evidence of the document
could not
be adduced in proceedings before a NSW court by reason of the operation of any
of the following provisions of the Evidence Act 1995 :
(a) section 9 (Application of common law and equity), but only to the extent
that it preserves any privilege against the adducing of evidence,
...
(c) Part 3.10 (Privileges) of Chapter 3.
(2) In this section:
disclosure of a document includes the following:
(a) the provision of copies of the document,
(b) the granting of access to the document,
(c) the disclosure of the contents of the document.
...
NSW court has the same meaning as it has in the Evidence Act 1995.
"
The relevant definition of " NSW court " is set out below (at [88]).
- Section
128 of the ADT Act imposes obligations of confidentiality on members and
staff of the ADT. It provides as follows:
"If:
(a) a provision of an Act (other than this Act) prohibits the disclosure,
whether absolutely, in certain circumstances only or subject
to conditions, of
information by persons who:
(i) are included in a particular class of persons, and
(ii) acquired the information in the course of their duties under the Act,
and
(b) a person who is or has been a member, an assessor, an officer of the
Tribunal or a member of the staff of the Tribunal has acquired
or acquires any
such information in the course of his or her duties as such a member, assessor,
officer or member of the staff,
that provision applies to the person as if he or she were included in the
particular class of persons and acquired the information
in the course of duties
under that Act."
- Section
131(1) of the ADT Act provides that the ADT may report certain matters to
the Supreme Court, including the following:
"(h) if a person publishes, or permit or allows to be published,
any evidence given before the Tribunal or any of the contents of
a document
produced at a hearing that the Tribunal has ordered not to be published, or
(i) if a person publishes, or permits or allows to be published, any evidence
given before the Tribunal at a hearing held in private
or any of the contents of
a document produced at a hearing held in private, except to an officer of the
Tribunal or as permitted
by the Tribunal or by the regulations, or
(j) if a person does any other thing that, if the Tribunal were a court of
law having power to commit for contempt, would be contempt
of that court."
- If
the ADT reports a matter to the Supreme Court under s 131(1), the Supreme Court
may deal with the matter as if it were a contempt of that Court: s 131(2).
Evidence Act
- Reference
was made in argument to the principles governing the circumstances in which
governments or their agencies may claim public
interest immunity. In New South
Wales, the principles have been restated in s 130 of the Evidence Act 1995
(NSW) (" Evidence Act "). In addition, s 9(1) of the Evidence Act
does not affect the operation of a principle or rule of common law or equity
in relation to evidence in a proceeding to which the
Act applies, except insofar
as the Act provides otherwise: s 9(1).
- Section
130 of the Evidence Act provides as follows:
"(1) If the public interest in admitting into evidence information
or a document that relates to matters of state is outweighed by
the public
interest in preserving secrecy or confidentiality in relation to the information
or document, the court may direct that
the information or document not be
adduced as evidence.
(2) The court may give such a direction either on its own initiative or on
the application of any person (whether or not the person
is a party).
(3) In deciding whether to give such a direction, the court may inform itself
in any way it thinks fit.
(4) Without limiting the circumstances in which information or a document may
be taken for the purposes of subsection (1) to relate
to matters of state, the
information or document is taken for the purposes of that subsection to relate
to matters of state if adducing
it as evidence would:
...
(e) disclose, or enable a person to ascertain, the existence or identity of a
confidential source of information relating to the enforcement
or administration
of a law of the Commonwealth or a State; or
(f) prejudice the proper functioning of the government of the Commonwealth or
a State.
(5) Without limiting the matters that the court may take into account for the
purposes of subsection (1), it is to take into account
the following matters:
(a) the importance of the information or the document in the proceeding;
...
(c) the nature of the offence, cause of action or defence to which the
information or document relates, and the nature of the subject
matter of the
proceeding;
(d) the likely effect of adducing evidence of the information or document,
and the means available to limit its publication;
...".
- The
expression " court " is defined in the Dictionary to the Evidence Act
to include " NSW court ". That expression is defined to mean:
"(a) the Supreme Court, or
(b) any other court created by Parliament,
and includes any person or body (other than court) that, in exercising a
function under the law of the State, is required to apply
the laws of evidence.
"
- Section
131A of the Evidence Act extends the operation of Part 3.10, Div 3 (which
includes s 130) as follows:
"(1) If:
(a) a person is required by a disclosure requirement to give information, or
to produce a document, which would result in the disclosure
of a communication,
a document or its contents or other information of a kind referred to in
Division 1 ..., and
(b) the person objects to giving that information or providing that document,
the court must determine the objection by applying the provisions of this
Part ... with any necessary modifications as if the objection
to giving
information or producing the document were an objection to the giving or
adducing of evidence.
(2) In this section, disclosure requirement means a process or order
of a court that requires the disclosure of information or a document ...
(Emphasis in original.)
- Section
133 of the Evidence Act provides that if a question arises under Part
3.10 in relation to a document, the court may order the document to be produced
and may inspect it for the purpose of determining the
question.
The Primary Judgment
- Schmidt
J noted (at [3]) that AVS had applied to the ADT for an order staying the
Commissioner's revocation decision. The Commissioner
had tendered documents in
opposition to the stay application which were identified as a " criminal
intelligence report or other criminal information " for the purposes of s
15(6) of the SI Act . The ADT had admitted the documents as a
confidential exhibit and had considered them in a closed hearing from which AVS
and its
legal representatives had been excluded. Her Honour also noted (at [6])
that the Commissioner proposed to rely on the confidential
exhibit at the ADT's
hearing of the review application, without AVS or its representatives being
given access to the documents or
an opportunity to respond to their contents.
- Schmidt
J referred (at [8]) to an application made by AVS in which it sought directions
from the ADT that its interests be represented
by a special advocate on the
hearing of the review application. That application had been declined by
Judicial Member Moloney, on
the ground that s 29(3) of the SI Act
required the Commissioner's approval for such a procedure. This decision had
prompted AVS's application to the Commissioner for his
approval to the proposed
special advocate procedure which had been refused on 9 October 2009 (see [33]
above).
- Since
the Commissioner had refused AVS's application, the result (at [9]) was that
unless the relief sought by AVS was granted, it
would have no opportunity for
any submissions to be made on its behalf in relation to " material which is
undoubtedly crucial to the issues which the [ADT] will have to determine in the
proceedings ".
- Schmidt
J recorded (at [10]) that the Commissioner had identified the following issues
for determination:
"(1) Whether the procedural discretions conferred upon the [ADT] by
the ADT Act empower the [ADT], in appropriate circumstances, to adopt a
hearing procedure involving participation by a 'special advocate' of the
kind
proposed by [AVS];
(2) If the answer to question (1) is Yes (as [AVS] contend[s]):
whether, as held by the [ADT] on 2 September 2009, the Commissioner's
approval is, on a proper construction of s 29(3) of the SI Act , a
necessary precondition for the [ADT] to adopt such a hearing procedure in the
circumstances of the present case;
(3) If, contrary to [AVS's] submission, the answer to question (2) is Yes,
then:
(a) Is the Commissioner compellable to consider and determine whether to
exercise his discretion to approve the 'special advocate'
procedure?
(b) If the Commissioner is so compellable, has the Commissioner in the
represent case in fact engaged in such a consideration and
determination bona
fide for the purposes for which the discretion was conferred?"
Questions 1 and 2
- Schmidt
J first considered the interaction between s 29(3) of the SI Act and the
ADT Act . She expressed the view (at [18]) that s 29(3), which involves a
significant departure from the rules of natural justice, limits the ADT's powers
under s 73(1) and (2) of the ADT Act to determine its own procedure to
inquire into and inform itself on any matters in such manner as it thinks fit.
Her Honour also considered
that s 29(3) of the SI Act qualifies other
obligations under the ADT Act , such as the requirement under s 73(4)(a)
to ensure that the parties understand the nature of the assertions made in the
proceedings.
- Schmidt
J pointed out (at [20]) that in Commissioner of Police (NSW) v Gray
[2009] NSWCA 49; 74 NSWLR 1, McColl JA (with whom Giles and Tobias JJA
agreed) held (at [111]) that s 73 of the ADT Act , to the extent that it
contradicts the requirement in s 29(3) of the SI Act that neither the
existence nor content of s 15(6) materials be disclosed by the ADT, " cannot
stand with s 29(3) ". It followed, so her Honour held (at [21]), that any
procedures the ADT chooses to adopt under s 73 of the ADT Act must adhere
to the requirements of s 29(3) of the SI Act .
- No
issue arose as to the existence of the confidential intelligence report,
since the Commissioner had already disclosed its existence to AVS. The question
(at [22])
was whether the ADT could disclose the contents of the report
to the proposed special advocate without the Commissioner's consent.
- Schmidt
J noted (at [23]) that the proposed special advocate procedure was not expressly
envisaged by the ADT Act , in particular by s 128. AVS had submitted that
the appointment of a special advocate was not prohibited because such an
advocate was not the " public ", the " applicant for review ", the
" applicant's representative " or an " interested party " for the
purposes of s 29(3) of the SI Act . Her Honour rejected the submission.
- Her
Honour reasoned as follows (at [28]-[39]):
"28 The real crux of [AVS's] argument, it seems to me, was that
under the orders which it was proposed that the [ADT] make, the special
advocate
would not be 'the applicant's representative', but would rather represent
[AVS's] interests'. The result was that the [ADT]
did not require the
Commissioner's consent under s 29(3)(b) of the [ SI Act ], before the
confidential exhibit was disclosed to the special advocate. In my view, as well
as overlooking what s 29(3)(a) requires
of the [ADT], the distinction which
[AVS] seek[s] to draw between representing [AVS], as opposed to representing
[its] interests,
has no force. A party which is represented in proceedings
before the [ADT], of necessity engages that person to represent its interests.
There is no other purpose for such representation.
...
32 AVS's] case was that what was proposed could be ordered by the [ADT] under
Section 73 of the [ ADT Act ]. That section is concerned with how the
[ADT] is to conduct the proceedings brought before it, not with the
representation of the
parties or their interests in those proceedings. That is a
matter expressly dealt with elsewhere, in s 71 of the Act. It follows
that in
determining whether there is a statutory basis for a special advocate process in
proceedings before the [ADT], consideration
must be given to what ss 67 and 71
provide.
...
35 It was argued for [AVS] that the special advocate would not truly be
representing [it] in the proceedings, but only their interests.
Section 71 does
not provide for representation of a party's 'interests', separately from
representation of the party itself. In my
view, the true effect of what is
proposed in the context of this statutory scheme, is that different
representatives would appear
for [AVS] in relation to different aspects of the
proceedings.
36 While s 71 does not preclude such different representation at different
stages of proceedings, what it does require is that any
representative must be
engaged by the party whose interests they represent. The Act does not
contemplate that a representative could
be engaged or appointed by anyone else
...
37 [AVS's] proposal is that the special advocate be a nominated Queens
Counsel, initially engaged and briefed by [AVS]. That accords
with the provision
made in s 71(1)(b) for representation by a legal representative. It is then
intended that the [ADT] appoint the
nominated counsel to the position of special
advocate, who would then represent [AVS's] interests in relation to the
confidential
exhibit. That, it seems to me, is the role of a representative of
the party whose interests are being represented. Under this statutory
scheme,
with the exceptions mentioned, anyone engaged by a party to represent that
party, or its interests, must be given the party's
authority to appear in the
proceedings and once so engaged to appear, can appear to do nothing other than
to represent that party's
interests, when so appearing.
38 Undoubtedly the legislature could have drawn a distinction between
representation of a party and representation of a party's interests
and could
have empowered the [ADT] to make an appointment in respect of such interests.
The legislature has not done so.
39 It is in this context that the proposed orders appear to me to run into
difficulty. It is proposed that the special advocate would
initially be engaged
and briefed by [AVS] and ultimately would be paid by them. Appointment to the
position would be by the [ADT].
That is not contemplated by s 71, or any other
provisions of the Act and is not merely a matter of the procedure to be adopted
by
the [ADT] in the proceedings."
- Schmidt
J observed (at [44]) that the effect of the proposed special advocate procedure
would be to place the special advocate in
a similar position to a representative
instructed by AVS, who is given access to a confidential exhibit to which AVS
itself is not
given access. Such a procedure is expressly envisaged by s
75(2)(d) of the ADT Act . However, s 29(3)(a) of the SI Act
prohibits the ADT from disclosing the contents of the confidential exhibit
without the Commissioner's consent. In her Honour's view
(at [45]), s 29(3)(a)
of the SI Act had impliedly repealed s 75(2)(d) of the ADT Act ,
since the latter provision empowered the ADT to make an order under the latter
provision without the consent of a party.
- Schmidt
J pointed out (at [51]) that parts of the orders proposed by AVS suggested a
role for the special advocate " somewhat akin to that of an amicus curiae
". But this was not what was proposed. The role envisaged for the special
advocate was quite different from that of an amicus, since
the special advocate
was not to have a neutral role, but was to advance AVS's case (at [52]).
- Her
Honour answered (at 55]) Questions 1 and 2 as follows:
"I am satisfied for these reasons that the first question posed by
[AVS], whether a special advocate process could be adopted in proceedings
before
the [ADT], must be answered yes, on the basis that such an advocate would appear
as a representative of [AVS] in that part
of the proceedings from which [AVS]
and [its] other representatives were excluded. Such an advocate must be
appointed by a party
to the proceedings. As to the second question, whether a
special advocate process could be adopted without the Commissioner's consent,
it
must be answered in the negative. Absent such consent, disclosure of the
confidential exhibit to the proposed special advocate,
is precluded by s
29(3)(a) of the [ SI Act ]."
Question 3
- Schmidt
J stated (at [62]) that the purpose of s 15(6) of the SI Act is to
prevent disclosure of the existence or contents of any criminal intelligence
report or other criminal information in proceedings
conducted before the ADT
unless the Commissioner consents. Contrary to the Commissioner's submissions,
the sub-section was not concerned
with giving the Commissioner a forensic
advantage in the ADT proceedings.
- Her
Honour rejected (at [64]) the Commissioner's submission that AVS was entitled
only to receive advice of the Commissioner's refusal
of consent and that no
adverse inferences could be drawn against him from the failure to give any
reasons for the refusal. In her
Honour's view (at [64]):
"[a]ny explanation of why the Commissioner would not consent to the
proposed special advocate procedure, could not conceivably have
required any
disclosure of what the criminal intelligence itself was."
Schmidt J continued as follows (at [67]-[68]):
"67 In this case there is evidence of a request to consent to disclosure on a
basis which seeks to ensure that the confidentiality
of the information which
the Security Industry Act seeks to protect, will be maintained. Section
29(3) gives the Commissioner a discretion to agree to the proposed procedure. It
seems clear that the section contemplates that consent
would be forthcoming, if
the Commissioner were satisfied that what is proposed would preserve the
confidentiality of the criminal
intelligence which the section is designed to
protect. The Commissioner's response to the request for consent was that he
would not
engage in such a process. There was no suggestion that the refusal was
based on any view that the procedure was an inadequate way
of ensuring that the
confidentiality of the material was maintained. There was also no response to
the request for advice as to any
alteration to what was proposed, which would
result in consent being given, although in these proceedings it became apparent
that
if the special advocate was to be appointed by the Attorney General, the
Commissioner would not have an objection to the process.
68 I am satisfied that the inference that the Commissioner failed to consider
whether the proposal adequately protected the confidentiality
of the
confidential information is fairly open on the evidence ..."
- Her
Honour also rejected (at [70]) the Commissioner's argument that the Court should
refuse relief because s 29(3) of the SI Act merely conferred on the
Commissioner a " private right " to consent to disclosure of the criminal
information. The Commissioner's powers related to a matter of significant public
interest
and the giving or refusing of consent could have very significant
consequences. Her Honour considered (at [72]) that:
" Section 29(3) contemplates, as [AVS] argued, the Commissioner's
active consideration of a request for approval of disclosure of
criminal
intelligence protected by the Act, not a blanket refusal to engage in the
process proposed in order to maintain a forensic advantage in Tribunal
proceedings . The section requires consideration to be given to whether the
discretion should be exercised having in mind the purpose for which
the
discretion is granted under the statutory scheme. The grant of the discretion
comprehends a duty that it be exercised for a valid
and proper purpose."
(Emphasis added.)
Orders
- Schmidt
J made declarations and orders set out earlier (at [37]) in order to give effect
to her conclusions that (at [73]-[74]:
the ADT could not appoint a special advocate under the statutory
scheme, but AVS could;
with the Commissioner's consent the confidential exhibit could be disclosed
to the special advocate; and
the SI Act required the Commissioner to give AVS's proposal
consideration.
Submissions
- The
parties filed written submissions at various times before and after the hearing.
At no stage did the parties consolidate their
submissions. For this reason, it
is convenient to summarise the submissions by reference to the three matters
before the Court:
the Commissioner's application for leave to
appeal from the decision of Schmidt J;
AVS's application for leave to cross-appeal from the same decision; and
AVS's claim for relief in the removed proceedings.
- Perhaps
not surprisingly given the very wide range of issues canvassed by the parties
and the differences in the timing of submissions,
the parties' positions were
not always entirely internally consistent. The Commissioner, for example,
asserted in written submissions
in the removed proceedings that his right to
grant or withhold approval under s 29(3) of the SI Act to the disclosure
of intelligence is a " true discretion ". In subsequent submissions on
his application for leave to appeal, the Commissioner maintained that s 29(3)
was not a source of
power for him to grant or withhold approval and that his
approval was merely a precondition to the ADT taking a particular course
of
action. It is not necessary, however, to analyse the submissions for the purpose
of identifying any inconsistencies.
Application for Leave to Appeal
Commissioner's Submissions
- The
Commissioner advanced three arguments in support of his application for leave to
appeal from the decision of Schmidt J, although
the first argument had two
branches.
- Dr
Griffiths, who appeared with Mr Lynch on behalf of the Commissioner, first
submitted that the purpose and effect of s 29(3) of
the SI Act is to
apply a modified concept of public interest immunity to a review by the ADT of a
revocation decision under the SI Act . In the absence of legislation, so
Dr Griffiths argued, the Commissioner would be able to claim public interest
immunity in respect
of criminal intelligence adduced in evidence in ADT
proceedings. This was said to follow from s 125 of the ADT Act ([82]
above).
- According
to Dr Griffiths, the effect of s 29(3) of the SI Act is to permit the
Commissioner to waive public interest immunity as against the ADT itself and to
adduce in evidence the documents
to which immunity would otherwise attach. At
the same time, s 29(3) allows the Commissioner to maintain public interest
immunity
as against the classes of persons identified in s 29(3)(b) of the SI
Act . The expressions " without the approval of the Commissioner "
and " unless the Commissioner approves otherwise " in s 29(3) simply
recognise the availability of the immunity to the Commissioner and his or her
ability to waive it. On its true
construction, s 29(3) does not confer any
relevant power or duty in the Commissioner, but merely preserves a non-statutory
entitlement
to a privilege. Dr Griffiths also argued that it is inconsistent
with the nature of the privilege that its assertion or waiver should
be amenable
to judicial review.
- As
the oral argument developed, the Commissioner's first submission seemed to
divide into two branches. The first was that s 29(3)
of the SI Act , as a
matter of construction, does not confer a discretion, power or duty on the
Commissioner. In support of this contention, Dr
Griffiths pointed to the
structure of the sub-section, which directs the ADT what to do if the
Commissioner does not approve the
disclosure of criminal intelligence. He
contended that the sub-section is simply intended to preserve the Commissioner's
right to
insist on the confidentiality of criminal intelligence.
- The
second branch of the argument was that if s 29(3) of the SI Act (contrary
to the Commissioner's submissions) is a source of power for the Commissioner to
grant or withhold approval to the disclosure
of a report or information, it is
nonetheless not appropriate for a court to exercise the power to review the
Commissioner's decision.
This follows, so Dr Griffiths argued, from judicial
descriptions of the Commissioner's power as " unreviewable " or as a
power in respect of which the Commissioner " has the final say ": AVS
(No 1) , at [24], per Basten JA; at [153], per Campbell JA.
- Dr
Griffiths also supported the unreviewability of the Commissioner's power by
analogy with cases such as Stewart v Ronalds [2009] NSWCA 277; [2009] NSWCA 277; 76 NSWLR
99. There it was held that the decisions by the Premier and Lieutenant Governor
to withdraw the commission of the plaintiff as a Minister
were not amenable to
judicial review. While the Commissioner's decision did not involve political
processes, according to Dr Griffiths
the information was likely to be very
sensitive and to warrant the exercise of judicial restraint where the Court was
invited to
review the decision.
- The
Commissioner's second argument was that, assuming that his decision was amenable
to judicial review, the primary Judge had misconstrued
s 29(3) of the SI Act
. Dr Griffiths submitted that her Honour had mistakenly held that s 29(3)
required the Commissioner to approve the proposed special
advocate procedure if
the Commissioner was satisfied that the procedure would preserve the
confidentiality of any criminal intelligence
report or other criminal
information to which s 29(3) applies.
- Dr
Griffiths submitted that her Honour had overlooked that the proposed special
advocate procedure did not preserve the confidentiality
of Criminal Intelligence
as contemplated by s 29(3). Her Honour had incorrectly assumed that the only
object of s 29(3) of the SI Act was to limit the disclosure of Criminal
Intelligence. However, the sub-section was also intended to allow the
Commissioner to take
into account the circumstances in which the intelligence
was obtained, including any undertakings given to other agencies supplying
relevant information.
- Thirdly,
the Commissioner submitted that the primary Judge incorrectly inferred from the
absence of reasons given by the Commissioner
for his decision not to approve
disclosure of the criminal information that the Commissioner simply wished to
preserve his unfair
forensic advantage. Dr Griffiths contended that the
Commissioner was not obliged to give reasons and that no adverse inference could
be drawn from the absence of any reasons. There was no other evidence that would
support a finding that the Commissioner had an improper
purpose in refusing to
approve disclosure of the information. Insofar as her Honour took into account
submissions made to her by
the Commissioner's counsel, she had misconstrued them
and, in any event, they were incapable of establishing any facts about the
conduct of the Commissioner.
AVS's Submissions
- AVS
submitted that the Commissioner's contentions as to the unreviewability of the
Commissioner's decisions were based on misconceptions
about the nature of public
interest immunity. The right to claim public interest immunity, so it was
argued, does not belong exclusively
to any one person, but can be invoked by any
party, by a witness or by the court itself as a basis for excluding otherwise
relevant
evidence. Moreover if a court holds that the immunity precludes
disclosure of particular evidence, the immunity cannot be waived.
Accordingly,
the Commissioner was incorrect to characterise public interest immunity as his
own privilege. Furthermore, contrary
to the Commissioner's submissions, s 29(3)
of the SI Act cannot be regarded as simply a restatement or modification
of the principles of public interest immunity.
- AVS
disputed the Commissioner's contention that s 29(3) of the SI Act does
not confer power on the Commissioner to grant or withhold approval to the ADT to
disclose criminal information. Mr Hughes QC,
who appeared with Mr Oliver for
AVS, submitted that s 29(3) confers on the Commissioner a power to dispense with
an otherwise absolute
prohibition on the ADT, or anyone in connection with ADT
proceedings, disclosing the existence or content of Criminal Intelligence.
Since
the Commissioner has a statutory power to approve disclosure of Criminal
Intelligence, the Supreme Court must retain a supervisory
jurisdiction over the
exercise of or refusal to exercise that statutory power. If it were otherwise,
constitutional issues would
arise.
- Mr
Hughes submitted that her Honour had correctly construed s 29(3) of the SI
Act as conferring a power that required the Commissioner to approve the
proposed special advocate procedure if satisfied that the proposal
would
preserve the confidentiality of any Criminal Intelligence to which s 29(3)
applies. There would be no useful purpose in giving
the Commissioner a power to
grant approval (that is, to dispense with an otherwise blanket prohibition)
unless Parliament contemplated
that there would be circumstances in which the
Commissioner would be obliged to grant approval.
- This
conclusion was supported by:
- the evident
purpose of the SI Act to promote the correct application in individual
cases of the licensing criteria prescribed by the legislation;
- the purpose of
the amending legislation introducing s 29(3) into the SI Act , which was
to avoid the mischief of public disclosure of sensitive police intelligence, yet
to make that intelligence available to
the ADT in cases where the Commissioner
might otherwise be reluctant to do so; and
- the objects of
the ADT Act , which include ensuring that ADT proceedings are fair (s
3(b)).
- AVS
further argued that the primary Judge was clearly right to infer that the
Commissioner had no good reason to refuse to approve
the proposed special
advocate procedure. The Commissioner had not given any reason and there could
hardly be any doubt as to the
integrity of the proposed special advocate or as
to his compliance with a confidentiality regime.
- Similarly,
AVS argued that the primary Judge was entitled to infer that the Commissioner
had refused to approve the proposed special
advocate procedure without
considering whether the procedure adequately protected the confidentiality of
any relevant criminal intelligence
and for the improper purpose of obtaining an
unfair forensic advantage over AVS.
- For
these reasons, AVS submitted that the Commissioner should be refused leave to
appeal from the decision of the primary Judge. If,
however, leave to appeal was
granted, AVS submitted that the appeal should be dismissed.
The Cross-Appeal
- As
has been noted, the Commissioner consented to AVS being granted leave to
cross-appeal from the orders made by the primary Judge
to the extent those
orders were challenged in the draft notice of cross-appeal. The submissions
summarised below relate to the merits
of the cross-appeal.
AVS's Submissions
- AVS
challenged the primary Judge's holding that a special advocate had to be
appointed by AVS, rather than by the ADT with AVS's consent.
AVS also challenged
her Honour's holding that the ADT could not adopt any form of special advocate
procedure except with the approval
of the Commissioner.
- AVS
submitted as follows:
(i) Sections 73(1) and 73(2) of the ADT Act are sufficiently
broad to enable the ADT to obtain assistance from " confidential counsel
", including one designated as a special advocate. These provisions reflect
the fact that the ADT, subject to affording the parties
procedural fairness, is
free to instigate proactive inquiries not available to a court. It can undertake
these inquiries through
confidential counsel (however described).
(ii) A person appointed by the ADT as confidential counsel is not the "
applicant's representative " within the meaning of s 29(3)(b) of the
SI Act . This is so because such a person does not represent a particular
party in the proceedings merely because the matters on which he
or she assists
the ADT might be in the interests of that party. Moreover, the duties of
non-disclosure to which confidential counsel
would be subject are wholly
inconsistent with the relationship between legal practitioner and client.
(iii) Sections 75(2) and 131(1)(j) of the ADT Act ([76], [84], above)
empower the ADT to receive undertakings from a person it appoints as
confidential counsel and to make orders requiring
such counsel not to disclose
the existence or content of relevant Criminal Intelligence without the approval
of the Commissioner.
(iv) Disclosure of relevant criminal intelligence to a person appointed by
the ADT as confidential counsel is not disclosure to a
person or class of
persons referred to in s 29(3)(b) of the SI Act .
(v) Alternatively to (iv), the " disclosure " forbidden by s 29(3) of
the SI Act is limited to disclosure:
"for any purpose, or to a person who might employ it for any purpose, other
than the [ADT's] determination of the relevant applicant
for review."
Thus disclosure by the ADT to confidential counsel of the existence or
content of any relevant criminal intelligence will not be disclosure
of the kind
prohibited by s 29(3) of the SI Act .
Commissioner's Submissions
- The
Commissioner submitted that s 29(3) of the SI Act prohibits the ADT
disclosing to anyone the existence or content of material to which the
sub-section applies. It follows, so Dr Griffiths
argued, that AVS's consent to
the appointment of a special advocate cannot be required, since the process of
obtaining consent would
necessarily disclose to it the existence of the material
to which s 29(3) applies.
- The
Commissioner accepted that the language of s 29(3) perhaps suggests that there
may be a distinction between representation of
a party and representation to
advance the interests of a party. However, Dr Griffiths submitted that s 73 of
the ADT Act does not empower the ADT to appoint either a representative
of a party or a representative of a party's interests. He argued that
s 29(3) of
the SI Act , insofar as it applies to proceedings, circumscribes the
entirety of the right of a party to be present or represented. For present
purposes, therefore, there is no difference between representing a party and
representing that party's interests. Accordingly, the
ADT's responsibilities
under provisions such as ss 73(4) and 73(5)(b) of the ADT Act have to
give way to the restrictions imposed by s 29(3) of the SI Act . This is a
consequence, so Dr Griffiths submitted, of s 29(3) impliedly repealing pro
tanto those provisions of the ADT Act which require the ADT to
facilitate a party's participation in and understanding of proceedings.
- Dr
Griffiths stressed that the procedure proposed by AVS contemplated that the
special advocate would represent AVS's interests. In
such circumstances, the
special advocate would never cease to be the representative of the party from
whom he or she receives initial
instructions and whose interests the special
advocate is to advance.
- The
Commissioner expressly accepted that a person appointed by the ADT to assist it,
as distinct from advocating a party's interests,
is not engaged in the "
representation " of a party for the purposes of the ADT Act .
However, Dr Griffiths submitted that AVS had never sought the appointment of
such a person. In any event, so he contended, the ADT Act did not
contemplate the appointment of a person to act in a role analogous to that of
counsel assisting the ADT.
- Dr
Griffiths pointed out that the ADT Act authorised the ADT to utilise
assessors to advise it in the discharge of its functions and that assessors,
like members of the ADT,
are subject to the confidentiality regime established
by ss 127-129 of the ADT Act . These provisions indicate that the
legislation does not contemplate the appointment of a counsel assisting the ADT
or a special
advocate, particularly as such a person would not be bound by the
statutory confidentiality regime.
- Finally,
Dr Griffiths submitted that s 29(3)(a) of the SI Act should be construed
as prohibiting the disclosure of relevant criminal intelligence to anyone
without the approval of the Commissioner. He pointed out that the classes of
persons identified in s 29(3)(b) include neither representatives
of interested
persons (other than the applicant) nor witnesses. He contended that it could not
have been the legislative intention
to exclude the specified classes of persons
from hearings in which Criminal Intelligence is revealed (unless the
Commissioner approves
their presence), yet to deny the Commissioner the right to
ensure that Criminal Intelligence is not revealed to witnesses or legal
representatives of interested parties.
Removed Proceedings
AVS's submissions
- 134AVS
submitted that it is entitled to a final hearing before the ADT that complied
with the principles of procedural fairness, to
the fullest extent to which those
principles are compatible with s 29(3) of the SI Act . AVS further
submitted that if secret evidence is to be received by the ADT in that hearing,
the Commissioner is bound to approve
their application to be represented by a
special advocate.
- 135According
to AVS, the ADT's duty to accord procedural fairness is recognised by provisions
such as ss 60, 73(2) and 73(4) of the ADT Act . Section 29(3) impliedly
repeals these provisions only to the extent that the specific duty of
non-disclosure cannot stand with the performance
of its duty to accord
procedural fairness.
- 136AVS
submitted that the Commissioner is obliged, in determining whether or not to
grant approval under s 29(3) of the SI Act to the disclosure of
intelligence, to take into account an applicant's entitlement to procedural
fairness. He is also obliged to take
into account the purposes of the
legislation. These include the objective of enabling review proceedings in the
ADT to be conducted
as fairly as practicable, but without compromising the
public interest in maintaining the confidentiality of Criminal Intelligence
referred to in s 29(3).
- 137The
proposed special advocate procedure involves no risk of public disclosure of
sensitive intelligence and no risk that the information
will be employed for any
purpose other than the ADT's determination of the review application. The
evidence supports an inference
that the Commissioner is satisfied that there are
no such risks. In these circumstances, the Commissioner is obliged to exercise
his power so as to grant the approval sought. Moreover, the Court is justified
in concluding that the Commissioner must have refused
(and maintained his
refusal) to approve AVS's request by reason of factors irrelevant to the lawful
exercise of his statutory power
and duty.
- 138According
to Mr Hughes, s 65 of the Supreme Court Act empowers the Court to order
the Commissioner to consider and determine AVS's application in accordance with
law. Mr Hughes went further
and submitted that where, as here, the power could
be exercised only in one way, the Court could order the Commissioner to approve
AVS's proposal.
Commissioner's Submissions
- 139The
Commissioner contended that AVS's submissions could not be accepted for three
reasons:
the Commissioner's decision whether or not to grant approval under
s 29(3) of the SI Act was not amenable to judicial review;
s 29(3) of the SI Act , on its proper construction, confers a true
power or discretion on the Commissioner whether or not to grant approval and
does not
impose any duty on him to grant approval; and
the circumstances relied on by AVS to support its claim that the Commissioner
was bound to approve AVS's request that the ADT adopt
the proposed special
advocate procedure were inconsistent with the Commissioner's stated reason for
refusing approval, namely the
circumstances in which the criminal intelligence
had been obtained.
Reasoning
- The
Commissioner's application for leave to appeal from the decision of the primary
Judge raises issues of general importance that
are clearly arguable. It is
therefore appropriate that the Court grant the Commissioner leave to appeal. As
has been noted, the Commissioner
consented to the Court granting AVS leave to
cross appeal and it is also appropriate to grant that leave.
- It
is convenient to deal first with the issues arising on the Commissioner's
appeal. However, in doing so, it is necessary to consider
some matters which
arise on the cross-appeal or which are not the subject of direct challenge
either on the appeal or the cross-appeal.
Recent Decisions
- Section
29(3) of the SI Act has been the subject of close analysis in two
decisions of this Court: Gray and AVS (No 1). In Gray , the
issue was whether s 29(3) of the SI Act precluded the ADT from making an
order directing the Commissioner to provide particulars to the applicant on the
basis of which his
application for a security licence had been rejected. McColl
JA, with whom Giles and Tobias JJA agreed, held (at [124]) that it was
impossible in practice for the Commissioner to provide particulars of the
applicant's conduct without referring to the content of
confidential Criminal
Information relied on by the Commissioner. Accordingly, a requirement to give
such particulars contravened
the direction in s 29(3).
- McColl
JA pointed out (at [77]), that public interest immunity provides " some
context " for the scheme established by s 29(3) of the SI Act. As her
Honour noted, where a claim of public interest immunity is upheld, the evidence
is not available to be taken into account in
determining the outcome of
proceedings: see Evidence Act 1995 (NSW), s 130. Her Honour stated (at
[79]) that, against this background, it was:
"apparent that [s 29(3)] 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 s 58(1)(b) and s 63 of the [ ADT Act ].
See, too, AVS (No 1) at [139]-[140]), where Campbell JA, in endorsing
McColl JA's comments, observed that public interest immunity can attach to
evidence
concerning the identity of police informers or revealing the contents
of internal police documents.
- Four
propositions relevant to the present case emerge from McColl JA's judgment in
Gray . None was challenged in this Court, although there may be questions
as to the precise scope or application of some of them.
- First,
although there is no definition of the statutory expressions " criminal
intelligence " or " criminal information " in the SI Act ,
whether information falls within s 15(6) (and therefore within s 29(3)) is
capable of objective determination (at [95]). It follows
that when a claim is
made under s 29(3) of the SI Act (it may be more accurate to say when an
issue arises under s 29(3) of the SI Act ), it is necessary for the ADT
to be satisfied that the information the Commissioner seeks to cloak with
non-disclosure is properly
classified as either " criminal intelligence "
or " criminal information" and comes within one or other of the
categories of criminal intelligence or criminal information identified in s
15(6)(a)-(c) of the
SI Act. See also AVS (No 1), at [156], per
Campbell JA.
- It
also follows that the Supreme Court has jurisdiction to correct any error of law
made by the Commissioner or the ADT in construing
the statutory expressions.
That jurisdiction might be exercised by a grant in the nature of prerogative
relief under s 69 of the Supreme Court Act 1970 (NSW) or by way of an
appeal to the Supreme Court on a question of law (from a decision of an Appeal
Panel) under s 119(1) of the ADT Act.
- Secondly,
s 15(7) of the SI Act gives the Commissioner an immunity from disclosing
Criminal Intelligence when giving reasons for not granting a licence (at [103]).
This is to be taken as a legislative indication, early in the application
process, that the SI Act is intended to modify the rules of procedural
fairness insofar as they ordinarily entitle persons to know the case against
them (at
[103]).
- Thirdly,
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
ADT in the case of an external review (at [104]). Prima facie, therefore,
s 58(5) of the ADT Act requires the Registrar of the ADT to grant the
review applicant reasonable access to those documents. That step is, however,
precluded
if the Commissioner invokes s 59 of the SI Act and foreshadows
an application under s 75 to prohibit or restrict disclosure of the contents of
the documents. The scheme thus created
(at [105]):
"ensures that the existence of confidential materials comes to the
notice of the [ADT], but gives the Commissioner the opportunity
to make a s
29(3) non-disclosure claim....
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 [ADT] is required by s 63 to take it into account in its
deliberations."
- Fourthly,
s 29(3) of the SI Act and s 73 of the ADT Act , to the extent that
s 73 contradicts the s 29(3) requirement that neither the existence nor content
of s 15(6) confidential information can be disclosed by the ADT, cannot stand
together (at [111]). Section 29(3) therefore impliedly repeals s 73:
"to the extent that 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 [112]).
See, too, AVS (No 1), at [145], per Campbell JA.
- The
issue in AVS (No 1) was whether the obligation under s 29(3) of the SI
Act, which applies " in determining an application for review ",
governed the hearing of an application under s 60 of ADT Act for what had
been described as a " stay " pending the hearing of the review
application: at [47], per Campbell JA. As members of the Court pointed out, this
description was
not apposite, as the effect of the so-called " stay " was
to reinstate AVS's licences pending the hearing in the ADT: at [16], [18], per
Basten JA; at [95]-[96], [105], [110], per Campbell
JA. Nonetheless, the Court
held the ADT had power under s 60(2) of the ADT Act to make an order
having that effect.
- The
Court also held that the obligations imposed by s 29(3) of the SI Act
apply to an application for a stay or for the reinstatement of a licence
pending a hearing by the ADT. Basten JA pointed out that
an application for a
stay or similar order is a step in the process of determining the subject matter
of the review. Accordingly,
to exclude interlocutory hearings from the
protection accorded by s 29(3) would " tend to subvert the purpose of the
provision ": at [21]. His Honour identified that purpose as to " maintain
the non-disclosure of the existence and content of identified information ".
Campbell JA, with whom Handley AJA agreed, held that the process of reviewing a
decision commences with the filing of the application
for review and that
everything done thereafter can legitimately be described as actions carried out
" in determining an application for a review ": at [128]-[132].
- Campbell
JA reinforced (at [70]) the comments made in Gray about the impact of s
29(3) of the SI Act on procedural fairness:
"In Commissioner of Police v Gray, McColl JA recognised, at
[75], that 's 29(3) impinges upon ordinary principles of natural justice
'. That is, if I may say so respectfully, a very restrained way of putting
it. The effect of section 29(3) is that, in those activities
of the Tribunal
concerning which it applies, the Tribunal is required to make a decision that
may well affect an applicant for review
in a serious way and result in the
applicant losing his or her livelihood, without the existence or contents of
some of the evidence
against the applicant being disclosed to the applicant, and
hence without the applicant having any opportunity to test, counter or
qualify
that evidence, or to make submissions about its significance."
- However,
Campbell JA in AVS (No 1) also explained (at [144]) that the right
conferred by s 29 of the SI Act to seek review in the ADT of a decision
to revoke a licence conferred on the licence holder an avenue for review that
had not previously
existed. The prior legislation conferred a right of appeal to
a magistrate. However, it was a matter for the Commissioner to determine
whether
to place confidential material before the magistrate and, if access was sought
by the appellant, to determine whether to
claim public interest immunity over
the material. If the claim succeeded, the appeal would be decided on evidence
not including the
confidential information. His Honour continued (at [145]) as
follows:
"The nature of a right of review in the Tribunal of a decision to
revoke a licence is quite different to the previous right of appeal
to a
magistrate. There is a statutory obligation on the Commissioner, pursuant to
section 58 ADT Act, to provide the Tribunal with all relevant information
(unless excused from that obligation under section 59). That has the effect of
altering the situation that had existed under the previous appeal system, where
an appeal might be decided
with highly relevant information not taken into
account. To the extent that the Commissioner in making the original decision
could
take into account section 15(6) information without disclosing it to the
licensee, so the Tribunal is placed in a position to do the same. Further, even
if the Commissioner
had an obligation, arising from the laws of natural justice,
to disclose the substance of troubling information to the licensee and
seek
submissions about it before deciding to revoke the licence (a matter which I
expressly decline to decide), section 29(3) makes clear that the Tribunal is not
subject to any such obligation in determining an application for review. To that
extent, section 29(3) effects an implied partial repeal of the Tribunal's
obligation to act in accordance with natural justice, arising under section
73(2) ADT Act: Commissioner of Police v Gray at 29, [111]-[112].
Observations Concerning the Legislative Scheme
- A
number of observations should be made about the legislative scheme governing the
use of Criminal Intelligence in licence revocation
decisions by the Commissioner
and, on review, by the ADT.
- First,
the power conferred by s 15(6) on the Commissioner is to have regard to any
Criminal Intelligence that satisfies one or more of the criteria stated in
subpars (a)-(c),
for the purpose of determining whether the applicant is a
fit and proper person to hold the class of licence he or she seeks . Section
15(6) does not in terms apply to the revocation of a licence by the
Commissioner. However, s 26(1A) of the SI Act requires the Commissioner
to revoke a licence if he or she is satisfied that, if the licensee were
applying for a new licence,
the SI Act would require the application to
be refused. It is clear enough that this provision is intended to allow the
Commissioner to have
regard to Criminal Intelligence in determining whether to
revoke a licence in the same manner as Criminal Intelligence can be taken
into
account by the Commissioner in deciding whether to grant a licence.
- On
this basis, the effect of s 63(2) of the ADT Act (which provides that the
ADT may exercise all functions conferred or imposed by statute on the original
decision-maker) is that, on
an application to the ADT to review a revocation
decision, all references to " the Commissioner " in ss 15(6) and 26(1A)
of the SI Act are replaced by references to the ADT: AVS (No 1) at
[155], per Campbell JA. When read with s 29(3) of the SI Act , these
provisions appear to be sufficient to enable the ADT to take into account
Criminal Intelligence in reviewing a decision of
the Commissioner to revoke a
licence on the ground that the holder is not a fit and proper person to hold the
licence.
- Secondly,
as has already been noted, s 15(6) does not define the expressions " criminal
intelligence report " or " criminal information ". In this respect,
it differs from similar legislation in other jurisdictions, such as the
Liquor Licensing Act 1997 (SA) considered by the High Court in
K-Generation Pty Ltd v Liquor Licensing Court [2009] HCA 4; 237 CLR 501:
see the definition in s 4 of the Liquor Licensing Act 1997 (SA) and the
analysis of K-Generation in Commissioner of Police v Gray [2009]
NSWCA 49; 74 NSWLR 1, at 24-26 [88]-[94], per McColl JA. One consequence, as Dr
Griffiths acknowledged in argument, is that the statutory expressions,
on their
proper construction, might cover intelligence or information going beyond
material that would found a legitimate public
interest immunity claim.
- Thirdly,
s 15(7) of the SI Act makes it plain that the Commissioner is not,
whether under the SI Act or any other Act or law , required to give any
reasons for not granting a licence if to do so would disclose the existence
or content of any Criminal Intelligence. Section 15(7) of the SI
Act clearly qualifies what would otherwise be the obligation of the
Commissioner, when refusing an application for a licence, to give
reasons if
requested to do so: cf ADT Act , s 49(1), (2), (3).
- Fourthly,
s 15(7) of the SI Act does not, in terms, apply to the Commissioner's
obligation to give reasons for revoking a licence. Campbell JA observed
(at [141]) in AVS (No 1), that this omission might be less significant than it
seems because the SI Act was enacted against the background that an
officer is not under any duty at common law to give reasons and therefore need
not do so
save to the extent that legislation imposes such a duty: Public
Service Board (NSW) v Osmond [1986] HCA 7; 159 CLR 656. However, it must be
remembered that s 49 of the ADT Act requires an " administrator "
who makes a " reviewable decision " to give reasons if requested to do
so.
- There
does not appear to have been any dispute in the present case that, despite the
limitations in the language of s 15(7), the Commissioner is not required to give
reasons for revoking a licence if to do so would reveal the existence or content
of Criminal
Intelligence. It would certainly be odd if it were otherwise, as the
Commissioner's obligation to give reasons for refusing to grant
a licence and
the ADT's obligations to give reasons on an application to cancel a revocation
decision are clearly subject to the
qualification that the reasons are not to
disclose the existence or content of Criminal Intelligence (by ss 15(7) and
29(3) of the
SI Act, respectively). (Section 29(3) of the SI Act
applies to the ADT's determination of an application for review of the
decision to refuse to grant or to revoke a licence on the ground that the
applicant for review is not a fit and proper person. Unlike s 15(7), for
example, s 29(3) is not
in terms confined to a decision relating to the grant of
a licence.)
- Fifthly,
s 29(3) of the SI Act is drafted as a directive to the ADT. The
sub-section provides that the ADT:
- is to ensure
that it does not, in its reasons for decision or otherwise, disclose the
existence or content of Criminal Intelligence
without the Commissioner's
approval (s 29(3))(a)); and
- in order to
prevent the disclosure of Criminal Intelligence, is to receive evidence and hear
argument in the absence of certain categories
of persons (s 29(3)(b)).
- Section
29(3) takes a somewhat different form than s 76(2) of the Corruption and
Crime Commission Act 2003 (WA) (" CCC Act ") the constitutionality of
which was considered by the High Court in Gypsy Jokers Motorcyle Club Inc v
Commissioner of Police [2008] HCA 4; 234 CLR 532. Section 76(2) of the
CCC Act provided that the Commissioner of Police could identify certain
information for the purposes of judicial review of a decision to issue
a "
fortification removal notice " and the:
"information so identified is for the court's use only and is not
to be disclosed to any other person ... or publicly disclosed in
any way".
The majority judgment pointed out that the sub-section was cast in the
passive voice and did not make clear to whom the direction
applied (at [35],
[40], [44], per Gummow, Hayne, Heydon and Kiefel JJ. Section 29(3) of the SI
Act , by contrast, takes the form of an express directive to the ADT.
(Compare s 28A(5) of the Liquor Licensing Act 1997 (SA), the validity of
which was upheld in K-Generation Pty Ltd v Liquor Licensing Court [2009]
HCA 4; 237 CLR 501. Section 28A(5) required the Licensing Court and the Supreme
Court to " take steps " to maintain the confidentiality of information
classified by the Commissioner of Police as criminal intelligence.)
- In
this respect, the structure of s 29(3) of the SI Act is very similar to
that of a number of provisions in the ADT Act. For example, the ADT:
- is to take such
measures as are reasonably practicable to ensure that the parties have the
fullest opportunity to be heard or otherwise
have their submissions considered
in the proceedings (s 73(4)(c)); and
- is to ensure
that all relevant material is disclosed to the ADT so as to enable it to
determine all of the relevant facts in issue in any proceedings (s
73(5)(b)).
- Sixthly,
the directions to the ADT are expressed in apparently mandatory terms. In
K-Generation , the legislative direction to the Licensing Court and the
Supreme Court was construed as conferring on the Courts a degree of flexibility
as to the steps to be taken to maintain the confidentiality of criminal
intelligence; at [76], per French CJ; at [147], per Gummow,
Hayne, Heydon,
Crennan and Kiefel JJ. By contrast, s 29(3)(a) of the SI Act states that
the ADT is " to ensure that it does not, in the reasons for its decision or
otherwise, disclose the existence or content of " Criminal Intelligence,
without the Commissioner's approval. Section 29(3)(b) uses less emphatic
language but appears to require
the ADT to receive evidence and hear argument in
the absence of the specified classes of persons if this is required " in
order to prevent the disclosure of " Criminal Intelligence.
- Seventhly,
the direction in s 29(3)(b) of the SI Act , does not in terms require the
ADT to receive evidence and hear argument in the absence of any person
other than the Commissioner or the Commissioner's representative. The ADT is
required to exclude only four specified categories of
persons, namely:
- the public;
- the applicant
for review;
- the applicant's
representative; and
- any "interested
party".
- This
limitation on the scope of s 29(3)(b) of the SI Act may be significant
for present purposes if the ADT has power, for example, to appoint a person to
perform functions analogous to those
performed by an amicus curiae in
proceedings heard by a court. If the ADT has such a power, s 29(3)(b) of the
SI Act does not prevent the ADT exercising the power if the person so
appointed is not within one of the categories identified in s 29(3)(b).
- It
will be remembered that the Commissioner submitted that s 29(3)(a) of the SI
Act should be construed as preventing the ADT disclosing Criminal
Intelligence to any person, including a person performing functions
analogous to those of an amicus curiae. That argument will need to be
addressed. But if it is not correct, s 29(3) does not have the effect of
imposing a blanket prohibition
on the disclosure of Criminal Intelligence to
anyone at all.
- Eighthly,
s 29(3) of the SI Act raises a question of construction that was not the
subject of submissions. Section 29(3)(a) directs the ADT to ensure that it does
not, in its reasons or otherwise, disclose the existence or content of
any Criminal Intelligence. It is not clear whether if the ADT indicated in its
reasons that it had taken into account
material not identified in the reasons,
that would reveal the " existence " of Criminal Intelligence. No doubt s
29(3)(a) prevents the ADT identifying a specific report or particular
criminal information " which it has taken into account. However, merely
indicating in general terms that the ADT has taken into account material not
disclosed
in the reasons may not necessarily " disclose the existence "
of Criminal Intelligence for the purposes of s 29(3)(a) of the SI Act .
Is the Commissioner Obliged to Consider an Application for
Approval of the Proposed special Advocate Procedure?
The ADT Cannot Appoint the Proposed Special Advocate
- The
relief sought by AVS in the proceedings heard by Schmidt J has been summarised
above (at [34]). All the relief claimed related
to the proposed special advocate
procedure proposed in AVS's letter of 10 September 2009 (at [31] above), which
the Commissioner
had refused to approve in his letter of 9 October 2009 (at [33]
above). The critical declaration sought by AVS was that the Commissioner
is
required by law to consider and determine any application for his approval,
pursuant to s 29(3) of the SI Act, of the special advocate procedure,
whether the application is made by AVS or the ADT itself.
- The
proposed special advocate procedure has the following characteristics:
- the special
advocate is to represent the interests of AVS in the review proceedings before
the ADT;
- the special
advocate (Mr Whitlam QC) has been selected by AVS and, from the time his
appointment takes effect, is to be retained and
instructed in the capacity of
counsel for AVS;
- the special
advocate is to assist the ADT in the proceedings in accordance with the ADT's
directions and is to receive no further
instructions as counsel for AVS;
- the special
advocate is to represent the interests of AVS at any closed session of the
proceedings in the ADT;
- the special
advocate is forever prohibited, save as compellable by law and subject to
further order of the ADT, from revealing any
Criminal Intelligence or other
evidence received by the ADT in the closed session; and
- in the first
instance, without prejudice to its rights to apply for a costs order under s 88
of the ADT Act , AVS will pay all costs arising from the appointment of
the special advocate.
- The
proposed special advocate procedure therefore expressly contemplates that the
advocate will be retained, instructed and paid for
by AVS and will represent
AVS's interests in the review proceedings in the ADT. In my opinion, the
proposed special advocate is clearly
" the applicant's representative "
for the purposes of s 29(3)(b) of the SI Act. The fact that the special
advocate cannot receive further instructions from AVS does not alter the fact
that he or she is representing
a party to the ADT proceedings ( ADT Act,
s 71(1)(b)).
- It
follows that the ADT itself cannot appoint a special advocate to perform the
functions proposed by AVS without the Commissioner's
approval. If the ADT did so
and permitted the special advocate to participate in the proceedings in order to
represent AVS in relation
to the Criminal Intelligence relied on by the
Commissioner, the ADT would contravene the direction in s 29(3)(b) of the SI
Act. It is no doubt for this reason that AVS chose to approach the question
of securing effective representation in the ADT proceedings
by arguing that the
Commissioner is bound to consider and determine AVS's application for his
approval to the disclosure of Criminal
Intelligence.
The Commissioner's Approval and Public Interest Immunity
- The
starting point for AVS's submissions in the Commissioner's appeal from Schmidt
J's decision is that s 29(3) of the SI Act confers a dispensing power on
the Commissioner. As a matter of language, as I have pointed out (at [161]), s
29(3) is framed as a
directive to the ADT not to disclose the existence or
content of Criminal Intelligence. It is released from its obligation to maintain
this degree of confidentiality only if the Commissioner approves the disclosure.
- 174The
reference in s 29(3) of the SI Act to the Commissioner's approval to the
disclosure of Criminal Intelligence must be understood in the context of the
statutory scheme
as a whole. As Campbell JA pointed out in AVS (No 1), at
[144]-[145], s 29(1) of the SI Act confers a novel right of review on a
licence holder wishing to challenge a revocation decision. The licence holder
can now apply to
the ADT for a review of the revocation decision. However,
following the 2005 amendments of the SI Act, the review is to be
conducted on the basis that the ADT is precluded from disclosing the existence
or content of Criminal Intelligence
in any of the ways specified in s 29(3).
- This
contrasts with the previous entitlement of a licence holder to appeal to a
magistrate against a revocation decision. On such
an appeal, if the Commissioner
wished to rely on sensitive criminal intelligence, he or she ran the risk, under
the principles of
public interest immunity or the regime established by s 130 of
the Evidence Act, that the magistrate could require the material to be
disclosed to the appellant or the appellant's legal representatives. (There
might
have been circumstances in which a magistrate would permit the use of
criminal intelligence without it being revealed to the appellant,
but the
Commissioner had no entitlement to a confidentiality regime of this kind: cf
Amer v Minister for Immigration, Local Government and Ethnic Affairs (Fed
Ct, Lockhart J, 18 December 1989, unreported); Nicopoulos v Commissioner for
Corrective Services [2004] NSWSC 562; 148 A Crim R 74; Hussain v Minister
for Foreign Affairs (2008) FCAFC 128; 169 FCR 241, at [139], per curiam.
)
- It
is no doubt correct to say, as McColl JA did in Gray, at [77]-[79], that
s 29(3) of the SI Act is intended to modify the application of public
interest immunity principles to a review by the ADT of a revocation decision.
However,
the statutory regime is very different from the principles governing
public interest immunity. The legislation must be construed
by reference to the
language Parliament has used and not as though it is simply a branch of the law
of public interest immunity (as
the argument sometimes seemed to suggest).
- The
differences between the regime established by s 29(3) of the SI Act and
the principles of public interest immunity include the following:
- Section 29(3)
applies to any " criminal intelligence report " and to " other
criminal information ". These legislatively undefined categories are not
necessarily co-extensive with the categories of information that attract public
interest immunity, such as the identity of informers or intelligence about
planned crime or its perpetrators: cf D v National Society for the Prevention
of Cruelty to Children [1977] UKHL 1, [1978] AC 171, at 232, per Lord Simon;
Cain v Glass (No 2) (1985) 3 NSWLR 230, at 246-248, per McHugh JA.
Indeed, Dr Griffiths accepted that not all information or material within s
15(6) of the SI Act will necessarily be sensitive.
- Under the
statutory regime, the ADT is not permitted to disclose Criminal Intelligence to
a party or the party's legal representatives
without the Commissioner's
approval. The ADT is not permitted to engage in the balancing exercise that is
required by the principles
of public interest immunity and by s 130(1) of the
Evidence Act.
- The statutory
regime clearly contemplates that the Commissioner can rely on Criminal
Intelligence in review proceedings in the ADT,
even though the information would
otherwise be subject to public interest immunity. By contrast, under common law
principles, a court
is obliged to prevent the disclosure of a document the
production of which would be contrary to the public interest, even if no
Minister
or responsible official makes a claim: Sankey v Whitlam [1978]
HCA 43; 142 CLR 1, at 44, per Gibbs ACJ; at 58-59, per Stephen J.
The ADT's Powers Where the Commissioner Relies on
Criminal Intelligence
- It
is important to appreciate that the ADT is not bound to accept or act upon
Criminal Intelligence on which the Commissioner relies
in review proceedings and
which the Commissioner declines to disclose to the applicant or the applicant's
representatives. It is
also important to appreciate that, although s 29(3) of
the SI Act impliedly repeals s 73 of the ADT Act to the extent of
any inconsistency between the two provisions, that does not mean that s 73 is
wholly repealed. There will be considerable scope for the operation of the rules
of " natural justice " to which the ADT is expressly made subject (s
73(2)). There will also be considerable scope for the ADT to give effect to the
obligations imposed upon it by provisions such as s 73(4) (giving the parties
the fullest practicable opportunity to be heard) and s 73(5) (ensuring that all
relevant material is disclosed to the ADT).
- Where
the Commissioner relies on Criminal Intelligence the existence or content of
which has not been disclosed to the applicant,
the ADT has power and, in certain
circumstances, an obligation to do a number of things. Without being exhaustive,
they include the
following.
- First,
as McColl JA held in Gray (see at [145] above), the ADT must satisfy
itself that the information the Commissioner seeks to withhold is in truth "
criminal intelligence " or " criminal information " of the kind
identified in s 15(6) of the SI Act . While those terms are undefined,
that does not mean that the ADT (and the Supreme Court on an appeal on a
question of law or on
an application for judicial review) cannot give the terms
their proper construction.
- Secondly,
the ADT can ask the Commissioner to approve disclosure of Criminal Intelligence
on which the Commissioner relies in the review proceedings.
This is not purely
of formal significance. A request by the ADT will carry weight with the
Commissioner. More importantly, the ADT
may come to the view that the Criminal
Intelligence relied on by the Commissioner appears to be incomplete or possibly
flawed. For
that reason, the ADT may consider that it would be unsafe or
inappropriate to rely on the Criminal Intelligence unless the applicant
or his
representatives have an opportunity to see and make submissions on the material.
A request to the Commissioner in such circumstances
is likely to carry
particular weight.
- Thirdly,
the ADT is not bound to act on Criminal Intelligence upon which the Commissioner
relies. It is entitled and, indeed, obliged to
form its own view of the cogency
of the material. There is also nothing in the legislative scheme which prevents
the ADT from taking
into account the fact that the applicant has not been able
to test the Criminal Intelligence or to adduce evidence in answer to it:
cf
K-Generation , at [76], per French CJ.
- Fourthly,
the ADT's powers include, in my opinion, appointing a legal practitioner to
perform functions analogous to those performed by an
amicus curiae in
court proceedings.
- A
court may permit an amicus curiae to make submissions on law or fact:
Levy v Victoria [1997] HCA 31; 189 CLR 579, at 604, per Brennan CJ. The
court takes into account whether the party whose cause the amicus seeks
to support is unable to unwilling to protect his or her own interests, or is
unable to assist the court in arriving at the correct
determination: Kruger v
Commonwealth, transcript of 12 February 1996, at 12 cited by Brennan CJ in
Levy v Victoria, at 604. For example, an amicus curiae may be
permitted to make submissions on behalf of an infant or other disadvantaged
person whose interests might not otherwise be protected:
United States
Tobacco Co v Minister for Consumer Affairs [1988] FCA 213; (1988) 20 FCR 520, at 535, per
curiam.
- In
Wurridjal v The Commonwealth [2009] HCA 2; 237 CLR 309, the High Court
emphasised the role of an amicus curiae in assisting the Court to take a "
larger view of the matter before it than the parties are able or willing to
offer ": at 312, per French CJ (for the majority) (emphasis added). The
functions of the ADT are, of course, different from those of the
High Court. But
the ADT may need greater assistance in a particular case than the parties are
able or willing (for whatever reason)
to provide.
- In
determining the scope of the ADT's powers, it is necessary to take into account
s 73(2) of the ADT Act . This provides that the ADT is not bound by the
rules of evidence and may inform itself on any matter in such manner as it sees
fit,
subject to the rules of natural justice. Provisions of this kind are very
common in legislation and have generally received a broad
interpretation.
- In
Weinstein v Medical Practitioners Board of Victoria (2008) VSCA 193, the
question was whether the Board had power to conduct a " Google search "
of a person whose expert opinion was relevant to allegations made against a
medical practitioner. The relevant legislation included
a counterpart to s 73(2)
of the ADT Act. Maxwell P, with whom Neave and Weinberg JJA agreed,
observed (at [28]) that the words " may inform itself ..." have a meaning
and purpose quite distinct from the meaning and purpose of the words " not
bound by rules of evidence " . His Honour continued (at [30]):
"By giving the panel power to inform itself 'in any way it thinks
fit', Parliament has clearly differentiated the panel's conduct
of a formal
hearing from the judicial paradigm. Whereas the judicial function is essentially
passive - in the sense that the court
relies on the adversarial parties to
present the evidence and define the issues for decision - the panel's work is
thus stamped with
an inquisitorial character. ...[T]he panel's role as
investigator is envisaged as being active, not passive. As the Court noted in
Macedon Ranges Shire Council v Romsey Hotel Pty Ltd [2008] VSCA 45, at
[71]], the essence of inquisitorial adjudication lies in the active
participation of an impartial investigator from the earliest
stages of the
proceedings. The investigator has primary responsibility for defining the issues
and is able to supervise the gathering
of evidence."
- In
my opinion, s 73(2) of the ADT Act provides ample power for the ADT to
appoint counsel to assist it in evaluating Criminal Intelligence relied on by
the Commissioner
in review proceedings. Counsel's role can include (but would
not necessarily be limited to) making submissions in relation to the
cogency and
reliability of the Criminal Intelligence. Counsel's submissions could include
arguments of the kind that the review applicant
might have been expected to put
if he or she had been made aware of the existence and content of the Criminal
Intelligence.
- In
referring to counsel assisting, I have in mind someone neither selected nor
appointed by the review applicant. Such a counsel,
unlike the proposed special
advocate, would not be retained or instructed by the review applicant and, of
course, would not communicate
with the review applicant during the hearing
(since to do so would disclose the Criminal Intelligence). In this manner, the
ADT could
cause itself to be informed so as to minimise the procedural
unfairness flowing from the secrecy attending the Criminal Intelligence.
- Although
s 73(2) of the ADT Act provides a sufficient source of power for the ADT
to appoint a counsel to assist it, that conclusion receives support from other
provisions.
Section s 73(3) of the ADT Act, which requires the ADT to act
according to the substantial merits of the case and without regard to legal
technicalities, has its
antecedents in English statutes of the early seventeenth
century: see N Rees, "Procedure and Evidence in 'Court Substitute' Tribunals"
(2006) 28 Aust Bar Rev 41, at 60-61. While such legislation does not
allow an administrative body to depart from the substantive law, it is intended
to be
facultative and to free tribunals from some of the constraints applicable
to courts: Minister for Immigration and Multicultural Affairs v Eshetu
[1999] HCA 21; 197 CLR 611, at [49], per Gleeson CJ and McHugh J.
- If
the ADT considers it necessary or desirable to appoint counsel to assist it to
act according to the substantial merits of the case,
s 73(3) of the ADT Act
authorises the ADT to take that course. It is, after all, but a short step
from a court granting leave to an amicus curiae to take
on the role of a
contradictor for the ADT to appoint counsel to assist it by analysing evidence
and advancing arguments that otherwise
might not be put.
- In
my opinion, nothing in s 29(3) of the SI Act prevents the ADT from
appointing counsel to assist it on an application to review a revocation
decision where the Commissioner relies
on confidential Criminal Intelligence. It
will be recalled that s 29(3)(b) directs the ADT in such circumstances 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.
Counsel appointed by the ADT to assist it in the manner I have described is not
within any of the categories identified in
s 29(3)(b). Counsel appointed to
assist the ADT clearly would not be " the public " or " the applicant
for review " for the purposes of s 29(3)(b) of the ADT Act. Nor would
counsel be " the applicant's representative ", since he or she would be
selected and appointed by the ADT and would not receive or be bound by
instructions from the applicant.
The SI Act does not define "
interested party ". However, the legal practitioner appointed to assist
the ADT would have no personal or financial interest in the outcome of the
review proceedings. On that basis, in my opinion he or she could not be
described as a " party interested " for the purposes of s 29(3)(b) of the
SI Act.
- The
Commissioner argued that s 29 of the SI Act prevents the ADT from
appointing a counsel to assist it on an application to review a revocation
decision because s 29(3)(a) prohibits
the disclosure of Criminal Intelligence to
anyone without the Commissioner's approval. This construction would render s
29(3)(b)
otiose. There would be no point in directing the ADT, in order to
prevent disclosure of Criminal Intelligence, to receive evidence
and hear
argument in the absence of specified classes of persons, if the ADT was already
obliged to ensure that it did not, by any
means, disclose the Criminal
Intelligence to anyone.
- In
my opinion, s 29(3)(a) of the SI Act is intended to prohibit the ADT from
disclosing Criminal Intelligence in its reasons for judgment or any other
publication of its
rulings, decisions or proceedings. Section 29(3)(b) is
directed to the separate issue of the manner in which the ADT is to conduct
its
hearings where Criminal Intelligence is to be relied on by the Commissioner. The
direction in s 29(3)(b) therefore does not require
the ADT to ensure that
Criminal Intelligence is not revealed to counsel assisting the ADT in the manner
I have described.
- It
should be noted that the ADT Act confers power on the ADT to give
directions to ensure that counsel assisting maintains the confidentiality of
Criminal Intelligence.
Section 75(2)(d) of the ADT Act provides that if
the ADT 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
make an order prohibiting the disclosure to some or all of the parties of
evidence or of the contents
of a document lodged with the ADT or received in
evidence. Section 75(2)(c) empowers the ADT to prohibit the publication of
evidence or of the contents of documents lodged with it. These powers can be
exercised
to impose a confidentiality regime on counsel assisting the ADT.
Conclusions
- It
is necessary to construe s 29(3) of the SI Act, insofar as it refers to
the approval of the Commissioner to the disclosure of Criminal Intelligence,
within the framework I have outlined.
The statutory regime does not remove
entirely the obligation of the ADT to afford natural justice or procedural
fairness to a review
applicant. Even though the ADT may not disclose or permit
disclosure of Criminal Intelligence to the review applicant or the applicant's
legal representatives, there are measures which it can and should take to ensure
that procedural unfairness is minimised. In essence,
the legislation gives the
ADT responsibility, within the limitations imposed by s 29(3), to accord
procedural fairness to a review
applicant.
- Section
29(3) of the SI Act, as I have noted, directs the ADT how it is to act in
relation to the non-disclosure of Criminal Intelligence, unless the Commissioner
approves a different course. As AVS submitted, the words " approval " and
" approves " in s 29(3) envisage a request to the Commissioner, to which
the Commissioner responds by granting or withholding approval. In my
opinion,
however, the sub-section envisages that any request to the Commissioner will be
made, not by the review applicant, but by
the ADT.
- This
conclusion reflects the form of s 29(3): the ADT is to act in a certain way
unless the Commissioner approves the ADT acting in
a different way. But it must
also be remembered that it is for the Commissioner to determine whether the
review applicant (or anyone
else mentioned in s 29(3)(b)) is to know of the
existence or content of the Criminal Intelligence.
- In
the present case, as events transpired, AVS learned of the existence of Criminal
Intelligence at an early stage of the ADT proceedings.
However, a review
applicant or his or her representatives may not know of the existence of
Criminal Intelligence. Yet the ADT will
know in every case if the Commissioner
relies on such Intelligence. In such cases, any request for the Commissioner's
approval to
disclose the existence or content of the Criminal Intelligence can
only be made by the ADT itself.
- There
is nothing to prevent a review applicant asking the Commissioner whether he or
she intends to rely on Criminal Intelligence
and, if so, requesting that the
Criminal Intelligence be disclosed. The critical question, however, is not who
might make a request
to the Commissioner but whether s 29(3) of the SI Act
requires the Commissioner to respond substantively to any such request.
- In
my opinion, the Commissioner does not have to do so. To hold otherwise would
mean that, in a case where the existence of Criminal
Intelligence had not been
disclosed to the review applicant, the Commissioner would be bound to reveal the
very matter that the legislation
contemplates need not be disclosed to the
review applicant. I do not think that the legislation requires a different
result where
the review applicant has been told that the Commissioner relies on
Criminal Intelligence. The legislation cannot have a differential
construction
depending on whether or not the review applicant happens to have learned of the
existence of Criminal Intelligence.
- Section
29(3) assumes that any request to the Commissioner, which requires a response
will be made by the ADT. The ADT will be entitled
to ask the Commissioner to
give reasons in confidence for any refusal, to evaluate any such reasons and to
bring any doubts or misgivings
about the refusal to the Commissioner's
attention.
- The
foundations for AVS's case in the proceedings determined by Schmidt J were
wanting. The Commissioner was not bound to consider
a response to AVS's request
that he approve the proposed special advocate procedure. Since the Commissioner
was not bound to respond
to AVS's request, there is no basis for AVS's further
proposition that the Commissioner, if satisfied that the nominated special
advocate would maintain confidentiality, was bound to approve disclosure of the
Criminal Intelligence in the special advocate.
- I
should add that even if there was a basis for contending that the Commissioner
was bound to consider a request by AVS for approval
of the proposed special
advocate procedure, there would be serious obstacles in the path of concluding
that the Commissioner was
obliged to approve the request. Among other things,
the Commissioner's legitimate concerns, as stated in his letter of 23 April
2010,
include the circumstances in which the Criminal Intelligence was obtained
and the possibility that disclosure, even to a special
advocate subject to
confidentiality obligations, would breach undertakings given to those who have
provided the Intelligence.
- The
conclusion I have reached has the advantage of minimising the opportunities for
interlocutory disputation before the ADT hears
and determines an application for
review of a revocation decision. It is difficult to accept that the legislation
introducing the
confidentiality regime for Criminal Intelligence was intended to
open the way for elaborate and expensive pre-hearing applications
which can
prevent the attainment of the statutory objectives of quick action by the ADT (s
73(5)(c)) in accordance with the substantial
merits of the case (s 73(3)).
Constitutional Issues
Section 78B Notice
- The
constitutional issue identified by AVS in its notice under s 78B of the
Judiciary Act is as follows:
"2 The question is whether s 29(3) of the [ SI Act ] is
constitutionally invalid for the reason that it:
a. requires an inferior tribunal, namely the [ADT], unless an executive
officer of the State of New South Wales, namely the Commissioner
of Police,
approves otherwise, to publish reasons for decisions made by it and affecting
legal rights, that are misleading as to
the true reasons for such decisions, by
reason of the non-disclosure in such published reasons of the existence of
matters that may
in particular cases be matters giving rise to jurisdictional
error by the Tribunal in reaching such decisions; and therefore
b. is capable of operating so as to prevent in particular cases the effective
exercise by the Supreme Court of New South Wales of
the supervisory jurisdiction
to review jurisdictional error on the part of the [ADT]; and
c. is to that extent repugnant to the requirements of Chapter III of the
Commonwealth Constitution; and
d. is incapable of being read down so as to operate only in a manner that
avoids that repugnancy.
3. Section 29(3) of the SI Act purports to prohibit the [ADT], in
determining any application for review by it of a decision of the Commissioner
to revoke a statutory
licence issued pursuant to the SI Act , from
disclosing the existence of any criminal intelligence report or other criminal
information that the Commissioner considers
relevant to the determination of
that application for review, unless the Commissioner approves such disclosure.
The Commissioner
contends that, on the proper construction of s 29(3) of the
SI Act , he is under no duty to consider and determine a request for such
approval, at least in a case where, his doing so would necessarily
disclose that
matter, which the [ADT] is prohibiting from disclosing without his approval.
[AVS says] that if the construction for
which the Commissioner contends is
correct, section 29(3) of the SI Act necessarily has the operation
specified in paragraph (2) above, and is consequently wholly invalid." (Emphasis
added.)
Submissions
AVS's Submissions
- AVS
submitted that the effect of s 29(3) of the SI Act is that the ADT cannot
effectively perform its duty under the ADT Act to give reasons if those
reasons would disclose the existence or content of Criminal Intelligence without
the Commissioner's approval.
(The obligation to give reasons is imposed on the
ADT by s 89 of the ADT Act and on an Appeal Panel by s 117 of the ADT
Act .) It follows, so Mr Hughes argued, that s 29(3) of the SI Act
requires the ADT, where it has had regard to Criminal Intelligence, to
publish reasons that are, at best, incomplete and, at worst,
positively
misleading. In all cases where the existence of Criminal Intelligence is
not known to the review applicant, the reasons must be misleading because the
ADT is forced to conceal
the fact that the reasons are incomplete.
- The
significance of this, from a constitutional perspective, is said to be that the
unpublished reasons of the ADT may disclose a
jurisdictional error, for example
an erroneous classification of material as " criminal information " for
the purposes of s 29(3). Mr Hughes submitted that it would be impossible to
invoke the supervisory jurisdiction of the Supreme
Court in relation to a
decision by the ADT if the only published record of the ADT's reasons conceals
the basis for asserting the
existence of jurisdictional error. If a review
applicant sought judicial review in the Supreme Court without a basis for
establishing
jurisdictional error, the proceedings would be an abuse of process.
- Accordingly,
on the Commissioner's construction, s 29(3) of the SI Act prevents a
review applicant from invoking the powers of the Supreme Court to review an ADT
decision for jurisdictional error, except
at the absolute and unreviewable
discretion of the Commissioner. This positively impairs and perverts an
essential characteristic
of the Supreme Court, namely the power to grant relief
on account of jurisdictional error. Section 29(3) of the SI Act therefore
impairs a defining characteristic of the Supreme Court as it existed when the
Constitution came into force. Such a law is unconstitutional: Kirk v
Industrial Court (NSW) [2010] HCA 1; 239 CLR 531, at [99], per French CJ,
Gummow, Hayne, Crennan, Kiefel and Bell JJ.
The Attorney General's Submissions
- The
Attorney General submitted that the constitutional issue raised by AVS was "
hypothetical and premature ". Dr Griffiths SC, who appeared with Mr
Hutton for the Attorney General, pointed out that AVS's submissions concentrated
on the impact
of s 29(3) of the SI Act on the exercise of the Supreme
Court's constitutionally entrenched jurisdiction to review administrative
decisions for jurisdictional
error. The constitutional issue was premature
because the ADT had not yet received any Criminal Intelligence, had not yet made
a
decision and had not yet given any reasons for a decision. Moreover, no
application had been (or could be) made to the Supreme Court
for judicial review
of the ADT's final decision. It was therefore not necessary to resolve the
constitutional issue for the purposes
of the proceedings.
- If
the Court nonetheless decided to consider the constitutional question, the
Attorney General submitted that s 29(3) of the SI Act was not invalid.
The sub-section, so Dr Griffiths argued, does not prevent disclosure of the
ADT's full reasons to the Appeal Panel
of the ADT. Nor does s 29(3) prevent the
Appeal Panel from disclosing to the Supreme Court the full reasons for rejecting
an application
for review. Moreover, s 29(3) does not purport to prohibit
disclosure of Criminal Intelligence to the Supreme Court. An applicant
seeking
judicial review could ask the Supreme Court to issue a subpoena or notice to
produce requiring the ADT (or the Appeal Panel)
to produce to the Court a copy
of the full reasons. Issues of confidentiality could then be addressed when
orders were sought for
access to the documents produced to the Court.
- The
Attorney General further submitted that even if s 29(3) of the SI Act
deprives the Supreme Court of the ADT's full reasons for the decision, the
sub-section would not impinge on the Kirk principle. The reasoning in
Kirk is that the jurisdiction to issue prerogative relief in respect of
jurisdictional error by an administrative tribunal was a " defining
characteristic " of State Supreme Courts at federation. The High Court held
that it was not open to abrogate that constitutionally entrenched jurisdiction
by a privative clause.
- Dr
Griffiths argued that to derive from Kirk a further implied
constitutional requirement that State Supreme Courts, on every application for
judicial review of an administrative
decision, be furnished with complete
reasons would " turn the reasoning in Kirk on its head ". At
common law, there is no right to reasons for an administrative decision:
Public Service Board (NSW) v Osmond [1986] HCA 7; 159 CLR 656. The
absence of reasons for an administrative decision does not prevent the Supreme
Court of a State exercising a power of judicial
review in relation to that
decision. It would therefore be surprising if any statutory qualification to a
purely statutory right
to reasons was unconstitutional.
Reasoning
The Kirk Principles
- In
Kirk , the joint judgment of six members of the High Court propounded
five propositions of significance for the present case:
- Chapter III of
the Constitution , in particular s 73, requires that there be a body
fitting the description of " the Supreme Court of a State " (at [96]);
- it is beyond the
legislative power of a State so to alter the constitution or character of its
Supreme Court that it ceases to meet
the constitutional description (at [96]),
citing Forge v Australian Securities and Investments Commission [2006]
HCA 44; 228 CLR 45, at [63], per Gummow, Hayne and Crennan JJ;
- the supervisory
jurisdiction of each Supreme Court at Federation entitled it to issue a writ of
certiorari to any inferior court and
that jurisdiction could not be denied by a
statutory privative provision (at [97]);
- that supervisory
jurisdiction was at Federation and remains the mechanism for determining and
enforcing the limits of State executive
and judicial power by bodies other than
the Supreme Court and was and is " a defining characteristic of these courts
" at [98]; and
- the limit on the
power of a State legislature to curtail the supervisory jurisdiction of a
Supreme Court is marked by the distinction
between " jurisdictional " and
" non-jurisdictional " error, it being open to a State Parliament to deny
relief for non-jurisdictional error of law, but not for jurisdictional error
(at
[100]).
- The
High Court did not directly apply these principles in Kirk itself, since
the Court was able to construe the privative clause in issue (s 179 of the
Industrial Relations Act 1996 (NSW)) as not precluding judicial review
for jurisdictional error. The principles were, however, applied by the High
Court to a more
widely drawn privative clause in South Australia v Totani
[2010] HCA 39: at; [128], per Gummow J; [193], per Hayne J at [268], per
Heydon J (dissenting, but not on this point); at [415], per Crennan and
Bell JJ.
Is the Constitutional Issue Premature?
- AVS
does not suggest that s 29(3) of the SI Act is constitutionally invalid
because it requires the ADT to adopt unfair procedures. Its contention is that s
29(3) is invalid because
it could prevent the Supreme Court effectively
exercising its supervisory jurisdiction to review jurisdictional error by the
ADT.
AVS also says that s 29(3) cannot be read down so as not to contravene the
principles stated in Kirk .
- The
Attorney General cited observations made by Gavan Duffy, Rich and Starke JJ in
James v South Australia [1927] HCA 32; 40 CLR 1 in support of his
argument that AVS's challenge to the validity of s 29(3) of the SI Act
was premature. Their Honours there said (at 38) that:
"The jurisdiction of the Court to declare a statute or parts of a
statute in contravention of the Constitution can be invoked only when it is
found necessary to secure and protect the rights of a party before it against
unwarranted exercise
of legislative power to his prejudice ..."
In James v South Australia , there had been no exercise of legislative
power that had affected the interests of the plaintiff. His concern was merely
that he
might be injured in the future if powers conferred by the impugned
legislation were exercised.
- The
present case is different. Unless AVS's challenge to the constitutionality of s
29(3) is determined, the ADT will hear AVS's review application subject to the
procedural and evidentiary constraints mandated by the sub-section.
It is true
that AVS may yet succeed on its review application regardless of those
constraints. It is also true that deferring a ruling
on the constitutional
challenge would provide a more complete factual context in which to consider the
operation of the legislation.
Nonetheless, if AVS's constitutional argument is
correct, it will be required to pursue its review application in the ADT under a
statutory regime that disadvantages it and (by hypothesis) that is invalid.
Accordingly, I do not think that the constitutional challenge
is premature.
Consideration
- The
principles articulated in Kirk are concerned with legislation denying the
supervisory jurisdiction of the Supreme Court of a State in respect of
jurisdictional error.
A somewhat broader formulation is that the Parliament of a
State does not have authority to enact a law which impairs one of the
defining
characteristics of its Supreme Court: Totani , at [68], per French CJ.
The principles in Kirk do not, however, lead to the conclusion that State
legislation which creates practical difficulties for an applicant seeking
judicial
review for jurisdictional error will necessarily fall foul of Chapter
III of the Constitution .
- In
South Australia v Totani it was argued that State legislation rendered a
decision by the Attorney-General to declare an organisation a risk to public
safety
and order unreviewable by the Supreme Court of South Australia. As has
been noted, the privative clause was held to be ineffective
to preclude exercise
of the Supreme Court's jurisdiction to grant relief in respect of jurisdictional
error by the Attorney-General
as the decision-maker.
- Hayne
J recognised (at [195]) that any challenge would face " very large "
forensic difficulties. His Honour continued as follows:
"Those difficulties would be compounded if, as may well be the
case, not all of the information before the Attorney-General could
be inspected
by the party seeking judicial review. To the extent to which the
Attorney-General acted upon criminal intelligence,
[the legislation] would
appear, on its face, to preclude a court from making that material available to
the applicant for judicial
review. In addition, the Attorney-General may act
upon information in respect of which it would be proper for the Attorney to
claim
public interest immunity from production. In such circumstances, for an
applicant for judicial review to show that the Attorney-General's
decision was
affected by some mistake of law, or that the Attorney-General took some
extraneous reason into consideration, or excluded
from consideration a factor
which should affect the determination, would be very difficult. But the decision
is not unexaminable
for jurisdictional error." (Citation omitted.)
French CJ expressly agreed (at [27]) with this passage. Crennan and Bell JJ
agreed (at [415]) with Hayne J's reasoning on the reviewability
issue,
indicating that their Honours also endorsed Hayne J's reasoning in the quoted
passage.
- Heydon
J took a similar approach to the forensic obstacles confronting an applicant
seeking judicial review of the Commissioner's
decision. His Honour said (at
[269]):
"It is true that invoking judicial review is not made easy: the
Attorney-General is not required to give reasons for the declaration
(s 13(1)),
criminal intelligence supplied by the Commissioner to the Attorney-General
cannot be made available to the claimant for review (s 13(2)) and public
interest immunity may be claimable by the Attorney-General for other material.
The absence of a duty on the Attorney-General
to give reasons scarcely deprives
the Magistrates Court of institutional integrity: in this respect s 13(1) of the
impugned Act simply follows the common law. The duty of the Attorney-General to
preserve criminal intelligence may create
difficulties in relation to a subpoena
seeking material capable of being tendered in evidence to demonstrate a lack of
jurisdiction
in the Attorney-General. But the rule restricting access to
criminal intelligence overlaps with similar common law rules of public
interest
immunity. The general problem exists in many fields in relation to documents for
which public interest immunity may be claimed
without depriving the court of
capacity to entertain administrative law challenges. Section 13(2), like s 21(1)
and (2)(a), considered
below, is simply an illustration of the difficulty
created by the existence of immunities or privileges from production."
(Citations
omitted.)
- There
is nothing in s 29(3) of the SI Act , or any other provision of the
Act , that denies the power of the Supreme Court to grant relief in
respect of a jurisdictional error by the ADT (including by the Appeal
Division).
Neither the SI Act nor the ADT Act contains a privative clause
which purports to render a decision of the ADT immune from judicial review. On
the contrary, the ADT Act provides that a party to proceedings may appeal
to the Supreme Court on a question of law against any decision of an Appeal
Panel
(s 119) and explicitly preserves the power of the Supreme Court, in the
exercise of its original jurisdiction, to review decisions of the
ADT (s 122).
(The latter provision is subject only to a statutory power to refuse to grant an
application in specified circumstances (s 123)).
- Section
29(3) of the SI Act does not prevent the ADT preparing reasons which set
out fully the extent to which it has taken Criminal Intelligence into account
in
rejecting an application for review of a revocation decision. No such submission
was made by AVS. On the contrary, its submissions
assumed that there would be
unpublished reasons prepared by the ADT which might, upon scrutiny, reveal that
the ADT had made a jurisdictional
error.
- AVS
did not submit that s 29(3) of the SI Act , or any other legislation,
prevents the Supreme Court requiring the ADT to produce to the Court the full
reasons for decision. Nor
did AVS submit that the ADT was excused from complying
with any such requirement.
- In
my view, the difficulties facing an applicant who wishes to invoke the
supervisory jurisdiction of the Supreme Court to challenge
a decision of the ADT
based wholly or partly on Criminal Intelligence are not necessarily any greater
than those facing an applicant
who has been given no reasons for an
administrative decision. In each case, the difficulties may prove substantial,
but they do not
deny the Supreme Court power to grant relief in respect of
jurisdictional error and do not substantially impair the exercise of that
power.
In each case, the Court may draw such inferences as to the decision-maker's
reasons as are appropriate on the material before
it. If the Supreme Court has
the full reasons for the decision, even if they are confidential, it will be in
a better position to
identify jurisdictional error than if it has no reasons
- AVS
submitted that the requirements of the Uniform Civil Procedure Rules ("
UCPR ") make it " impossible " to invoke the Court's jurisdiction
to review administrative decisions for jurisdictional error if the only
published record of the
administrative proceedings is one that conceals the true
basis for the decision. Mr Hughes pointed to UCPR , Pt 6, r 12A, which
requires a summons under s 69 of the Supreme Court Act 1970 (NSW) to
review an administrative decision to:
- briefly state
the grounds relied on in support of the claim (r 12A(b)); and
- annex a copy of
the reasons for the decision (if any) (r 12A(c)).
According to Mr Hughes, a summons invoking the
jurisdiction of the Supreme Court to review, for example, for error of law,
where the
applicant did not know what had occurred, would be an abuse of
process.
- This
submission overlooks two important points. First, it may be obvious or at least
a reasonable inference that the reasons given
by the ADT are not the full
reasons for a decision unfavourable to the review applicant. In these
circumstances, the applicant may
well have a reasonable basis for contending
that the ADT has fallen into jurisdictional error. If, for example, all the
evidence
referred to in the reasons supports the applicant's case and no cogent
reason is given for rejecting that evidence, there may be
an arguable case that
the decision is affected by jurisdictional error.
- Secondly,
the submission does not take account of provisions in the Civil Procedure Act
2005 (NSW) (" CP Act ") and the UCPR that give the Supreme
Court power to dispense with strict compliance with the Rules. The overriding
purpose of the CP Act and of the UCPR is " to facilitate the
just, quick and cheap resolution of the real issues in proceedings ": CP
Act , s 56(1). The Court is bound to give effect to this overriding purpose
when it interprets any provision of the CP Act or any rule of Court: s
56(2). The Court is given express power to make such directions as it thinks
fit, whether or not consistent with rules of Court, for the
speedy determination
of the real issues: s 61(1). In addition UCPR , Pt 2, r 2.1, empowers the
Court to give such directions and to make such orders for the conduct of the
proceedings as appear convenient,
whether or not inconsistent with rules of
Court, for the just, quick and cheap disposal of the proceedings.
- It
cannot be assumed that the Supreme Court will allow procedural requirements to
frustrate the exercise of its jurisdiction to review
for jurisdictional error.
It is incorrect to suggest that r 12A renders it impossible for the Supreme
Court to exercise that jurisdiction.
- For
these reasons, the constitutional challenge fails.
- AVS
submitted in the alternative that s 29(3) of the SI Act deprived the
Court of an essential incident of the judicial function and distorted its
institutional integrity as a Chapter III court:
cf International Finance
Trust Co Ltd v New South Wales Crime Commission [2009] HCA 49; 240 CLR 319,
at 355 [56], per French CJ. However, this submission rests on the same grounds
as AVS's primary submission and must be rejected
for the same reasons.
ORDERS
- For
the reasons given, Declarations 2 and 4 made by the primary Judge ([37] above)
cannot stand. The Commissioner is not bound to
consider the proposed special
advocate procedure put to him by AVS for approval. Nor is the Commissioner bound
to consider AVS's
application for the disclosure of Criminal Intelligence on
which the Commissioner intends to rely.
- Although
Declaration 1 was not specifically challenged by the Commissioner, it cannot
stand in its present form. The ADT, with the
approval of the Commissioner, can
adopt the proposed special advocate procedure (or some similar procedure), but
its power to do
so is not dependent on the special advocate being appointed by
AVS. Declaration 1 is inconsistent with the reasoning that has led
to the
Commissioner's appeal against Declarations 2 and 4 succeeding.
- The
appropriate course is to direct the Commissioner to file an amended notice of
appeal within seven days incorporating a claim to
an order setting aside
Declaration 1. Subject to compliance with that direction, Declaration 1 should
be set aside.
- None
of the orders sought in AVS's notice of cross-appeal should be made.
Declarations 2 and 3 ([42] above) wrongly assume that the
ADT can adopt the
proposed special advocate procedure without the approval of the Commissioner.
- Declaration
4(a) as sought has little utility. There is no dispute that the Commissioner can
approve the proposed special advocate
procedure if he wishes and that, if he
does, the ADT may adopt that procedure. The real controversy is whether, as AVS
argued, the
Commissioner is bound to consider and determine AVS's request that
he approve the proposed special advocate procedure. For the reasons
I have
given, he is not so bound.
- The
other Declarations sought by AVS in its notice of cross-appeal relate to the
powers of the ADT in conducting AVS's application
for review of the revocation
decision. That application has not yet been heard.
- I
have expressed certain views about the scope of the ADT's powers and duties.
However, it is not appropriate to make declarations
as to the powers of the ADT
before the hearing on AVS's review application. The ADT has not yet made any
final ruling on the scope
of its powers and it is not known what applications,
if any, will be made to the ADT or their factual basis.
- If
AVS wishes to challenge any rulings or orders made by the ADT on the review
application, it will have the opportunity to do so.
In the meantime, the much
delayed review application should take its course.
- AVS
is not entitled to any of the relief it seeks in the Removed Proceedings. Its
claims depend on the proposition, which I have rejected,
that the Commissioner
was bound to consider and determine AVS's request that he approve the proposed
special advocate procedure.
- The
following orders should therefore be made.
The Appeal and Cross-Appeal
1. Grant leave to the Commissioner to appeal from the decision of Schmidt J
on 26 February 2010.
2. Direct the Commissioner to file within seven days an amended notice of
appeal which incorporates a claim for an order setting aside
Declaration 1 made
by Schmidt J on 26 February 2010.
3. Allow the appeal.
4. Set aside the declarations and orders made by Schmidt J on 26 February
2010.
5. In lieu thereof, order that:
(a) The proceedings be dismissed.
(b) AVS pay the Commissioner's costs of the proceedings.
6. Order AVS to pay the Commissioner's costs of the appeal (including the
application for leave to appeal).
7. Grant leave to AVS to cross-appeal from the decision of Schmidt J on 26
February 2010.
8. Direct AVS to file its amended notice of cross-appeal within seven days.
9. Dismiss the cross-appeal.
10. Order AVS to pay the Commissioner's costs of the cross-appeal (including
the application for leave to cross-appeal).
11. AVS, if otherwise qualified, to have a certificate under the Suitors
Fund Act 1951 (NSW) in respect of the appeal.
Removed Proceedings
1. Dismiss the summons filed by AVS on 4 May 2010.
2. Order AVS to pay the Commissioner's costs of the summons.
- The
parties should have leave to file within fourteen days short minutes of any
further orders they consider appropriate to deal with
any interim orders that
may still be in force.
**********
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