AVS Group of Companies Pty Limited and Ors v Commissioner of Police and Anor [2010] NSWSC 109 (26 February 2010)

Last Updated: 1 March 2010

NEW SOUTH WALES SUPREME COURT

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


JURISDICTION:


FILE NUMBER(S):
30102/2009

HEARING DATE(S):
17 December 2009

JUDGMENT DATE:
26 February 2010

PARTIES:
First Plaintiff - AVS Group of Companies Pty Ltd
Second Plaintiff - ASET Security and Training Pty Limited
Third Plaintiff - Peter Sleiman
First Defendant - Commissioner of Police
Second Defendant - Administrative Decisions Tribunal of NSW

JUDGMENT OF:
Schmidt J

LOWER COURT JURISDICTION:
Not Applicable

LOWER COURT FILE NUMBER(S):
Not Applicable

LOWER COURT JUDICIAL OFFICER:
Not Applicable



COUNSEL:
Plaintiffs - Mr PW Gray SC with Mr KG Oliver, counsel
First Defendant - Mr T Lynch, counsel

SOLICITORS:
Plaintiffs - HPL Lawyers
First Defendant - IV Knight, Crown Solicitor


CATCHWORDS:
ADMINISTRATIVE LAW - administrative tribunals - Administrative Decisions Tribunal (NSW) - declaratory relief - challenge to the revocation of licences under the Security Industry Act 1997 - confidential exhibit not disclosed to plaintiffs pursuant to s 29(3) of the Security Industry Act 1997 - whether proposed special advocate procedure could be adopted under the Administrative Decisions Tribunal Act 1997 - section 29(3) of the Security Industry Act 1997 and its interaction with the Administrative Decisions Tribunal Act 1997 - special advocate must be appointed by plaintiffs - whether there was power to disclose confidential exhibit to proposed special advocate without consent of Commissioner of Police - consent required - whether Police Commissioner's discretion under s 29(3) of the Security Industry Act 1997 exercised validly - discretion not validly exercised - declarations and orders made

LEGISLATION CITED:
Administrative Decisions Tribunal Act 1997
National Security Information (Criminal and Civil Proceedings) Act 2004 (Cth)
NSW Trustee and Guardian Act 2009
Guardianship Act 1987
Prevention of Terrorism Act 2005 (UK)
Security Industry Act 1997
Special Immigration Appeals Commission Act 1997
Supreme Court Act 1970

CATEGORY:
Principal judgment

CASES CITED:
Abernathy v Deitz (1996) 39 NSWLR 701
AVS Group of Companies Pty Ltd v Commissioner of Police [2009] NSWSC 1391
Cameron North Sydney Investments Pty Ltd v The Owners Strata Plan No 50411 and Ors [2002] NSWSC 726
Commissioner of Police v AVS Group of Companies Pty Ltd [2009] NSWSC 1408
Commissioner of Police v Gray [2009] NSWCA 49
Gypsy Jokers Motorcycle Club Inc v Commissioner of Police [2007] WASCA 49
John Fairfax and Sons Limited v Australian Telecommunications Commission [1977] 2 NSWLR 400
M v Secretary of State for the Home Department [2004] EWCA Civ 324; (2004) 2 ALL ER 863
Secure Funding Pty Limited v Coughlin [2009] NSWSC 384
Secretary of State for the Home Department v Rehman [2000] 3 All ER 778
R v H; R v C [2004] UKHL 3; (2004) 2 AC 134; [2004] 1 ALL ER 1269
R v Khazaal [2006] NSWSC 1061
R v Lodhi [2006] NSWSC 586
R v Trebilco; ex parte FS Falkiner & Sons Ltd [1936] HCA 63; (1936) 56 CLR 20
Stubbs v NRMA Insurance Ltd (1997) 42 NSWLR 550
Woodside Energy Ltd v Alinta Sales Pty Ltd [2009] WASC 147

TEXTS CITED:


DECISION:




JUDGMENT:

- 35 -

IN THE SUPREME COURT

OF NEW SOUTH WALES

COMMON LAW DIVISION

ADMINISTRATIVE LAW LIST

SCHMIDT J

FRIDAY, 26 FEBRUARY 2010

30102/09 AVS GROUP OF COMPANIES PTY LIMITED & ORS v COMMISSIONER OF POLICE & ANOR

JUDGMENT

1 HER HONOUR: By summons filed in October 2009, the plaintiffs seek declaratory relief in relation to a ‘special advocate’ process which they seek to have adopted in proceedings which they have brought in the Administrative Decisions Tribunal. In those proceedings, the plaintiffs seek to challenge the revocation of licenses which they hold under the Security Industry Act 1997, for the provision of certain security services.

2 At the hearing the plaintiffs pressed declarations that:

(a) a declaration that the Tribunal has power in its discretion to adopt the proposed 'special advocate' procedure, without any requirement for the approval of the Commissioner (prayer 3 of the summons); or alternatively

(b) a declaration that the Tribunal may adopt such a procedure with the Commissioner's approval (prayer 4 of the summons), together with further declaratory or prerogative relief confirming and enforcing the Commissioner's duty to properly consider, and determine in accordance with law, the application for such approval (prayers 5, 6, and 7).

3 The defendant Commissioner of Police revoked the plaintiffs' licences pursuant to s 26(1A) of the Security Industry Act in July 2009 on grounds which included that the plaintiffs were not fit and proper persons to hold the licences (see s 15). The plaintiffs applied to the Tribunal for review of those decisions pursuant to s 29 of the Security Industry Act and s 55 of the Administrative Decisions Tribunal Act 1997. A stay of the revocation decisions was also sought.

4 During the course of the hearing of the stay application, documents were tendered for the Commissioner which were identified as documents to which s 15(6) of the Security Industry Act applied, that is documents comprising a ‘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.’

5 The documents were admitted as a confidential exhibit and considered by the Tribunal in a closed hearing from which the plaintiffs and their legal representatives were excluded. The contents of the confidential exhibit have not been disclosed to the plaintiffs, s 29(3) of the Security Industry Act requiring that:

(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.

6 The Commissioner proposes to rely on the confidential exhibit at the hearing of the plaintiffs’ review applications, without the plaintiffs or their representatives being given access to the documents, or being given any opportunity to respond to their contents, which remain unknown to them.

7 The stay application was refused by the Tribunal and an Appeal Panel upheld an appeal from that decision on 11 August 2009. On 16 December 2009, Rothman J upheld an appeal brought by the Commissioner from that decision and also refused declarations sought by the plaintiffs that the revocation notices were nullities. (See Commissioner of Police v AVS Group of Companies Pty Ltd [2009] NSWSC 1408). On 17 December 2009, Davies J gave judgment in another appeal arising out of the same review proceedings before the Tribunal, concerning a direction given under s 58(2) of the Administrative Decisions Tribunal Act that the Commissioner provide a statement of reasons for the decisions under review. (See AVS Group of Companies Pty Ltd v Commissioner of Police [2009] NSWSC 1391).

8 In the meantime, the plaintiffs sought directions from the Tribunal that their interests at the hearing of their review applications be represented by a special advocate, to whom the confidential exhibit would be disclosed. The application was declined by Judicial Member Montgomery on 2 September 2009, it being concluded that s 29(3) of the Security Industry Act required the Commissioner’s approval for such a process. The proceedings were adjourned to enable such approval to be sought. That application was made to the Commissioner on 10 September 2009. On 9 October 2008, the Crown Solicitor advised that the Commissioner "does not propose to engage in a ‘special advocate procedure’". No reasons for that refusal were given.

9 The result is that Commissioner has refused to exercise his discretion under s 29(3) to approve disclosure of the confidential exhibit to the plaintiffs, or to the special advocate they propose be appointed to represent their interests in relation to the confidential exhibit at the review hearing. Unless the relief sought is granted, the plaintiffs will have no opportunity to have any submissions made on their behalf in relation to the contents of the confidential exhibit, material which is undoubtedly crucial to the issues which the Tribunal will have to determine in the proceedings.

The questions raised

10 It was submitted for the plaintiffs that the questions raised for the Court to consider were:

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

(2) If the answer to question (1) is Yes (as the plaintiffs contend): whether, as held by the Tribunal 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 Tribunal to adopt such a hearing procedure in the circumstances of the present case;

(3) If, contrary to the plaintiffs' 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?

11 The Commissioner’s position was that as to the first question, the Tribunal did have power to adopt the special advocate procedure, with the Commissioner’s consent. Otherwise the questions posed must be answered in the negative, given the provisions of s 29(3) of the Security Industry Act, which required that his consent be obtained, before the confidential exhibit was disclosed. He could not be compelled to give that consent.

The proposed special advocate procedure under the Administrative Decisions Tribunal Act

12 The orders which the plaintiffs asked the Commissioner of Police to agree to, provided:

With the approval of the respondent pursuant to s 29(3) of the Security Industry Act 1997, and by consent of all parties, the Tribunal:

(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.

13 It was explained for the plaintiffs that the proposed special advocate process had its origins in United Kingdom legislation, the Special Immigration Appeals Commission Act 1997. That legislation prevents the Home Secretary from relying on material which it is claimed cannot be disclosed on national security grounds, in proceedings before the Commission, unless a special advocate has been appointed. A similar scheme operates in respect of other legislation such as the Prevention of Terrorism Act 2005 (UK). The statutory procedure was described in M v Secretary of State for the Home Department [2004] EWCA Civ 324; (2004) 2 ALL ER 863 at [13]:

"[13] In this situation 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."

14 In Australia, there is no such statutory procedure, but the inherent jurisdiction of superior courts to adopt such a process has been considered. (See for example R v Lodhi [2006] NSWSC 586 at [16]; R v Khazaal [2006] NSWSC 1061; and Woodside Energy Ltd v Alinta Sales Pty Ltd [2009] WASC 147.)

15 The plaintiffs’ case was that the Administrative Decisions Tribunal Act also permitted the adoption of the proposed special advocate procedure in the review proceedings on foot before the Tribunal, given the provisions of s 73 of the Act, which provides:

"73 Procedure of the Tribunal generally

(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) is to act as quickly as is practicable, and

(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

(c) may require evidence or argument to be presented in writing and decide on the matters on which it will hear oral evidence or argument, and

(d) in the case of a hearing—may require the presentation of the respective cases of the parties before it to be limited to the periods of time that it determines are reasonably necessary for the fair and adequate presentation of the cases, and

(e) may require a document to be served outside the State, and

(f) may adjourn proceedings to any time and place (including for the purpose of enabling the parties to negotiate a settlement), and

(g) may dismiss at any stage any proceedings before it in any of the following circumstances:

(i) if the applicant (or, if there is more than one applicant, each applicant) withdraws the application to which the proceedings relate,

(ii) if the Tribunal considers that the proceedings are frivolous or vexatious or otherwise misconceived or lacking in substance,

(iii) if the applicant (or, if there is more than one applicant, each applicant) has failed to appear in the proceedings,

(iv) if the Tribunal considers that there has been a want of prosecution of the proceedings, and

(h) may reinstate proceedings that have been dismissed because of an applicant’s failure to appear if the Tribunal considers that there is a reasonable explanation for that failure.

(6) A judicial member may:

(a) hold a directions hearing in relation to any proceedings before the Tribunal, or

(b) authorise a non-judicial member, the Registrar or a Deputy Registrar to hold a directions hearing in relation to any proceedings before the Tribunal."

16 The power to make non-publication orders under s 75(2)(c) of the Administrative Decisions Tribunal Act and to restrict disclosure of evidence under s 75(2)(d) were also relied upon to support the special advocate procedure which the plaintiffs proposed. They provide:

"75 Proceedings on hearing to be conducted in public

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

...

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

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

17 The Commissioner’s position was that s 29(3) of the Security Industry Act had impliedly repealed s 73 of the Administrative Decisions Tribunal Act, to the extent that it would otherwise apply to the review proceedings before the Tribunal (see Commissioner of Police v Gray [2009] NSWCA 49 at [111] - [112]). The disclosure of the confidential exhibit to the proposed special advocate required the Commissioner’s consent under s 29(3), which had not been given.

Section s 29(3) of the Security Industry Act and its interaction with the Administrative Decisions Tribunal Act

18 There can be no question that the provisions of s 29(3) of the Security Industry Act involve a significant departure from what the rules of natural justice ordinarily require be observed in proceedings brought before the Tribunal, as s 73(2) of the Administrative Decisions Tribunal Act expressly requires. Section 29(3) of the Security Industry Act limits the Tribunal’s power under s 73(1) to determine its own procedure and under s 73(2), to ‘inquire into and inform itself on any matter in such manner as it thinks fit’. It is unarguable, given the Court of Appeal's judgment in Gray, that the Tribunal must adhere to what s 29(3) of the Security Industry Act imposes upon it. That also requires departures from other obligations imposed by s 73, such as the obligation to ensure that the parties ‘understand the nature of the assertions made in the proceedings’ (s 73(4)(a)).

19 In Gray McColl JA (with whom Giles and Tobias JJA agreed) held as to the purpose of the ss 15 and 29 of the Security Industry Act, that:

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

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

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

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

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

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

20 The interaction between s 29(3) of the Security Industry Act and s 73 of the Administrative Decisions Tribunal Act was also considered in Gray, which concerned proceedings reviewing a decision by the Commissioner to refuse, rather than to revoke a security license. McColl JA held:

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

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

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

21 In my view, it undoubtedly follows that any procedures which the Tribunal chooses to adopt under s 73, in proceedings before it to which s 29(3) of the Security Industry Act applies, must adhere to what s 29(3)(a) requires of it. The Tribunal's procedures must ensure that the Tribunal:

‘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’.

22 In this case, it is not the existence of a confidential intelligence report which is in issue. That has been disclosed by the Commissioner. It is whether the Tribunal may disclose the content of such 'a report or other confidential information' to the proposed special advocate without the Commissioner's consent. Section 29(3)(b) makes further provision as to how such disclosure is to be prevented, by obliging the Tribunal to receive evidence and hear argument in the absence of those identified, namely the public, the applicant, the applicant's representative and any other interested party. It is in the light of all of those modifications to s 73 of the Administrative Decisions Tribunal Act, that the proposed special advocate process must be considered.

23 It is proposed that the special advocate be expressly prohibited from disclosing the confidential exhibit to which access is to be granted. Such an order would be necessary to be made, because a special advocate is not envisaged under this legislative scheme and so is not dealt with in s 128 of the Administrative Decisions Tribunal Act, which provides:

"128 Application of confidentiality provisions in other Acts

If:

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

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

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

(b) a person who is or has been a member, an assessor, an officer of the Tribunal or a member of the staff of the Tribunal has acquired or acquires 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."

24 The plaintiffs, nevertheless, argue that the proposed process would not offend s 29(3) of the Security Industry Act, because a special advocate was not one of the specified classes of person required to be excluded from the Tribunal hearing under s 29(3)(b), unless the Commissioner otherwise approved. This followed because a special advocate was not a member of the public, the applicant, or its representative, or another interested party. Exclusion of such persons from a hearing was imposed by the Security Industry Act, in order to prevent disclosure of the criminal intelligence dealt with in the confidential exhibit. Given the procedure proposed, exclusion of the special advocate from the hearing was not necessary to achieve that objective, given the secrecy provisions in s 128 of the Administrative Decisions Tribunal Act and the power to make non-disclosure orders under s 75(2).

25 I cannot see the force of those submissions. They overlook, it seems to me, the requirements of s 29(3)(a) of the Security Industry Act and the terms of s 128 of the Administrative Decisions Tribunal Act itself.

26 The effect of the proposed process is that the special advocate would be appointed by the Tribunal, but would be briefed and paid by the plaintiffs as to the nature of their case. Once in possession of the confidential exhibit, the special advocate would then not act on the instructions of the plaintiffs, but rather would act to assist the Tribunal and to represent the ‘interests’ of the plaintiffs, rather than to act ‘for’ the plaintiffs themselves.

27 This procedure, the plaintiffs argued, while not ‘ideally fair’, was one not precluded by s 29(3) of the Security Industry Act and was permitted by s 73 of the Administrative Decisions Tribunal Act, as meeting the Tribunal’s obligations to ensure procedural fairness, in so far as s 29(3) permitted. While s 29(3) empowered the Commissioner to withhold approval of certain disclosure, it did not authorise the Commissioner to withhold approval of procedural fairness as such. What was proposed accorded with the approach taken in Gypsy Jokers Motorcycle Club Inc v Commissioner of Police [2007] WASCA 49 at [35]:

"[35] It appears, therefore, that both the European Court of Human Rights and the courts of the United Kingdom accept that there will be circumstances in which the normal requirements of procedural fairness must yield to the public interest in protecting the confidentiality of investigative material. They do so, however, on condition that there are judicial safeguards in place to protect the fairness of the proceedings. Section 76 of the CCC Act does not expressly provide any such judicial safeguards. The prohibition in s 76(2) upon disclosure of the confidential information to any other person inhibits, but does not entirely exclude, the adoption of judicial procedures which could improve the fairness of the proceedings. Similarly, there could be a direction that the Commissioner of Police provide the applicant for review with a general statement of the grounds upon which he acted, but which do not condescend to disclosure of the confidential information. Because the legislature has reposed the review jurisdiction created by the section in the Supreme Court, it is reasonable to infer that it was intended that the court would adopt whatever procedures are necessary to ensure procedural fairness, subject to the express constraints of s 76(2), and to construe the section accordingly. The Full Court of the Supreme Court of South Australia took this approach to the construction of legislation dealing with the same subject matter in Osenkowski v Magistrates Court of South Australia [2006] SASC 345 at [33] per Doyle CJ, Nyland and Anderson JJ concurring."

28 The real crux of the plaintiffs' argument, it seems to me, was that under the orders which it was proposed that the Tribunal make, the special advocate would not be ‘the applicant’s representative’, but would rather represent the plaintiffs' ‘interests’. The result was that the Tribunal did not require the Commissioner’s consent under s 29(3)(b) of the Security Industry 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 Tribunal, the distinction which the plaintiffs seek to draw between representing the plaintiffs, as opposed to representing their interests, has no force. A party which is represented in proceedings before the Tribunal, of necessity engages that person to represent its interests. There is no other purpose for such representation.

29 Indeed, so much was recognised by the plaintiffs themselves in the proceedings below. While they distanced themselves from these questions at the hearing in this Court, the ‘Interlocutory Questions to be determined’ by Montgomery J/M on 2 September 2009’ pressed for the plaintiffs at the Tribunal hearing included:

"9. Whether the Tribunal can or should permit the applicants to be represented by "special counsel" at any hearing of a section 59 application in closed session.

10. Whether the Tribunal can or should permit such representation if the Commissioner approves.

12. Whether the Tribunal is empowered/should permit the applicants to be represented in any closed session of the final hearing by "special counsel" either with or without the Commissioner's approval. "

30 Those questions, it seems to me, correctly identified that the real purpose of the appointment of the proposed special advocate would be to represent the plaintiffs in that part of the proceedings from which the plaintiffs and their other legal representatives would be excluded by operation of s 29(3) of the Security Industry Act.

31 The Commissioner accepted that with his consent, a special advocate procedure could be adopted, even though the Administrative Decisions Tribunal Act does not expressly provide for such a process. There is no suggestion that the Tribunal would have any inherent power to make such an appointment. Nor does the Act provide that a special advocate might appear as a party or as an intervenor in the proceedings, as is provided in the case of the Attorney General in s 69. The Tribunal’s power to appoint such an advocate must be found elsewhere in the legislation.

32 The plaintiffs’ case was that what was proposed could be ordered by the Tribunal under Section 73 of the Administrative Decisions Tribunal Act. That section is concerned with how the Tribunal 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 Tribunal, consideration must be given to what ss 67 and 71 provide.

33 Section 67 of the Administrative Decisions Tribunal Act specifies who are to be parties in proceedings brought before the Tribunal. Relevantly, it provides:

"(2) 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."

34 It is apparent from s 67 that a special advocate would not be a party to the proceedings. Section 71 specifies who may represent a party such as the plaintiffs in the proceedings. It provides:

"71 Representation of parties

(1) A party to proceedings before the Tribunal may:

(a) appear without representation, or

(b) be represented by an Australian legal practitioner, or

(b1) with the leave of the Tribunal given under subsection (2), be represented by an agent who is not an Australian legal practitioner, or

(c) if the party is an incapacitated person—be represented by such other person as may be appointed by the Tribunal under subsection (4).

(2) A person who is not an Australian legal practitioner may, with the consent of a party to proceedings, apply to the Tribunal for leave to represent the party as the party’s agent in the proceedings or in part of the proceedings.

(3) The Tribunal may:

(a) grant or refuse leave on an application made under subsection (2), and

(b) revoke any leave that has been granted.

(3A) The rules of the Tribunal may make provision for or with respect to the following matters:

(a) the circumstances in which it is, or is not, appropriate for the Tribunal to grant leave for an agent to represent a party,

(b) the circumstances in which it is, or is not, appropriate for the Tribunal to revoke any such leave.

Note. Section 91A provides that the President may issue practice notes for the Tribunal in relation to any matter with respect to which rules may be made.

(4) If it appears to the Tribunal that a party is an incapacitated person, the Tribunal may appoint any other person the Tribunal thinks fit to represent the party.

(4A) Without limiting subsections (1) and (4), the Tribunal may:

(a) in the case of an external appeal made under section 67A of the Guardianship Act 1987—appoint any person the Tribunal thinks fit to represent a party to the proceedings who:

(i) is a protected person within the meaning of that Act, or

(ii) is a person in respect of whom a guardianship order (within the meaning of that Act) has been made or in respect of whom an application for such an order has been refused, and

(b) in the case of an external appeal made under section 50 of the NSW Trustee and Guardian Act 2009—appoint any person the Tribunal thinks fit to represent a party to the proceedings who is a protected person within the meaning of that Act.

(5) (Repealed)

(6) Any person appearing before the Tribunal may use the services of an interpreter unless the person can understand and speak the English language sufficiently to enable the person to understand, and to make an adequate reply to, questions that may be put to the person.

(7) In this section:

incapacitated person means:

(a) a minor, or

(b) a person who is totally or partially incapable of representing himself or herself in proceedings before the Tribunal because the person is intellectually, physically, psychologically or sensorily disabled, of advanced age, a mentally incapacitated person or otherwise disabled, or

(c) any other person of a class prescribed by the regulations for the purposes of this paragraph.

interpreter includes a person who interprets signs or other things made or done by a person who cannot speak adequately for the purposes of giving evidence in proceedings."

35 It was argued for the plaintiffs that the special advocate would not truly be representing them 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 the plaintiffs 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, unless the situation is one contemplated by s 71(4) or (4A). In the former case, where ‘it appears to the Tribunal that a party is an incapacitated person’, in which event ‘the Tribunal may appoint any other person the Tribunal thinks fit to represent the party’. In the latter, where external appeals are brought under the Guardianship Act 1987 or the NSW Trustee and Guardian Act 2009, in which event the Tribunal may also appoint a person to represent the persons who are there specified. That is not this case and the Tribunal is given no other power elsewhere in the legislation, permitting it to appoint anyone to represent a party, or its interests.

37 The plaintiffs’ proposal is that the special advocate be a nominated Queens Counsel, initially engaged and briefed by the plaintiffs. That accords with the provision made in s 71(1)(b) for representation by a legal representative. It is then intended that the Tribunal appoint the nominated counsel to the position of special advocate, who would then represent the plaintiffs’ 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 Tribunal 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 the plaintiffs and ultimately would be paid by them. Appointment to the position would be by the Tribunal. 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 Tribunal in the proceedings.

40 In this respect this statutory scheme is to be contrasted with that considered in M v Secretary of State, which empowered a law officer ‘to appoint a person to represent the interests of an appellant in any proceedings ... from which the appellant and any legal representative of his are, unlike the provision made in respect of incapacitated persons, excluded’ (see at 868). Under the Administrative Decisions Tribunal Act the Tribunal is given no express power to make such an appointment.

41 The consent orders to which the Commissioner’s agreement was sought, were crafted so as to attract the consent required of the Commissioner under s 29(3) of the Security Industry Act. Now it is argued that the consent is not required, because s 73 of the Administrative Decisions Tribunal Act permits the Tribunal to appoint the special advocate, even without such consent. Even accepting for the sake of the argument that s 73 could permit such a course, as I have explained, in the context of the proceedings on foot before the Tribunal, the plaintiffs’ case pays insufficient attention to the impact of the implied repeal of s 73, by the enactment of s 29(3) and particularly, the requirements of s 29(3)(a).

42 The effect of the order proposed is that after being retained, briefed and receiving instructions from the plaintiffs as to the nature of their case and then being given access to the confidential exhibit, the special advocate would be precluded from disclosing the contents of the exhibit to the plaintiffs and from taking further instructions from them in relation to that exhibit and the submissions to be advanced in respect of whatever it might contain. The difficulties with such a course are obvious, but it is one for which the plaintiffs contend, as preferable to the alternative of not being able to make any submissions at all in relation to such material. That can readily be understood, given the drastic consequences of s 29(3).

43 The plaintiffs would thus brief the special advocate at the outset with relevant material and instructions and would pay the special advocate, but once provided with the confidential exhibit, the special advocate would have to act as he or she judged best, without disclosing the confidential exhibit to anyone and without receiving any further instruction from the plaintiffs or their other representatives, the Tribunal or anyone else.

44 So understood it becomes apparent that under the proposed orders the special advocate would be in a somewhat similar position to a representative instructed by the plaintiffs to appear in the proceedings, who was given access to a confidential exhibit, to which the plaintiffs themselves were not given access. Section 75(2)(d) of the Administrative Decisions Tribunal Act itself makes express provision for such an order, empowering the Tribunal to make:

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

...

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

45 The effect of s 29(3)(a) of the Security Industry Act is, however, to prohibit the Tribunal from disclosing the contents of the confidential exhibit which it has received, without the Commissioner’s consent. It must be concluded that to that extent, s 29(3) has not only impliedly repealed the aspects of s 73 of the Administrative Decisions Tribunal Act on which the plaintiffs rely, which would ordinarily require the Tribunal to ensure that such access was granted to a party. Of necessity, it has also impliedly repealed s 75(2)(d), which would not ordinarily require the Commissioner’s consent, if orders were made by the Tribunal permitting a party’s representative access to a confidential exhibit, while precluding its disclosure to the party itself.

46 That there are difficulties with accepting the distinction which the pleadings urge between representing a party and representing their interest is reinforced when consideration is given to certain of the observations made in the authorities to which the parties referred. In R v H; R v C [2004] UKHL 3; (2004) 2 AC 134; [2004] 1 ALL ER 1269, 150-51 per Lord Bingham said at 1280:

“...The courts have recognised the potential value of a special advocate even in situations for which no statutory provision is made. Thus the Court of Appeal invited the appointment of a special advocate when hearing an appeal against a decision of the Special Immigration Appeals Commission in Secretary of State for the Home Department v Rehman [2003] 1 AC 153, paragraphs 31-32, and in R v Shayler [2002] UKHL 11, [2003] 1 AC 247 paragraph 34, the House recognised that this procedure might be appropriate if it were necessary to examine very sensitive material on an application for judicial review by a member or former member of a security service.”

47 Further at 1280 - 1281, his Lordship said:

“There is as yet little express sanction in domestic legislation or domestic legal authority for the appointment of a special advocate or special counsel to represent, as an advocate in PII matters, a defendant in an ordinary criminal trial, as distinct from proceedings of the kind just considered. But novelty is not of itself an objection, and cases will arise in which the appointment of an approved advocate as special counsel is necessary, in the interests of justice, to secure protection of a criminal defendant's right to a fair trial. Such an appointment does however raise ethical problems, since a lawyer who cannot take full instructions from his client, nor report to his client, who is not responsible to his client and whose relationship with the client lacks the quality of confidence inherent in any ordinary lawyer-client relationship, is acting in a way hitherto unknown to the legal profession. While not insuperable, these problems should not be ignored, since neither the defendant nor the public will be fully aware of what is being done. The appointment is also likely to cause practical problems: of delay, while the special counsel familiarises himself with the detail of what is likely to be a complex case; of expense, since the introduction of an additional, high-quality advocate must add significantly to the cost of the case; and of continuing review, since it will not be easy for a special counsel to assist the court in its continuing duty to review disclosure, unless the special counsel is present throughout or is instructed from time to time when need arises. Defendants facing serious charges frequently have little inclination to co-operate in a process likely to culminate in their conviction, and any new procedure can offer opportunities capable of exploitation to obstruct and delay. None of these problems should deter the court from appointing special counsel where the interests of justice are shown to require it. But the need must be shown. Such an appointment will always be exceptional, never automatic; a course of last and never first resort. It should not be ordered unless and until the trial judge is satisfied that no other course will adequately meet the overriding requirement of fairness to the defendant. In the Republic of Ireland, whose legal system is, in many respects, not unlike that of England and Wales, a principled but pragmatic approach has been adopted to questions of disclosure and it does not appear that provision has been made for the appointment of special counsel: see Director of Public Prosecutions v Special Criminal Court [1999] I IR 60.”

48 Clearly Lord Bingham envisaged that in the circumstances of the case which he had under consideration, a special advocate would need to be ‘instructed from time to time when need arises’, presumably by the defendant who had appointed that counsel, there in a criminal trial. In the context of the statutory scheme under consideration in M v Secretary of State, it was envisaged that such a special advocate would not be so instructed, but would still appear to protect the appellant’s interests as an advocate appearing on his behalf, to test evidence and make submissions.

49 In R v Lodhi, Whealy J took the view, at [29], that appointment of a special advocate was permitted under s 29(2) of the National Security Information (Criminal and Civil Proceedings) Act 2004 (Cth), as falling ‘within the ambit of the expression “any legal representative of the defendant” and that:

"The role of special counsel, however, is to represent the interests of an accused person in relation to the issue of disclosure. It does not and need not go further. Special counsel may have a role to play on appeal but again it is a limited role and relates to a grievance arising from an unsuccessful disclosure submission. In all these circumstances, it could not be said other than that special counsel is representing the accused albeit on a limited and special basis. The very fact of appointment of special counsel carries with it the need to promote, in the interests of justice, the protection of a criminal defendant’s right to a fair trial (Lord Bingham again in R v H; R v C at para 22)."

50 As the plaintiffs acknowledged, this conclusion did not assist them in their case, given their argument that a special advocate would not be their legal representative, the statutory provision under which the special advocate process was found to be available by Whealy J. The plaintiffs sought to distance themselves from that approach here, arguing that there was an available distinction between representing a party and that parties’ interests. Like Whealy J, I cannot see that such a distinction is available to be drawn in this statutory scheme.

51 While parts of the proposed order suggested a role for the special advocate somewhat akin to that of an amicus curiae, that was not what was proposed. An amicus has quite a different function to that of a special counsel, as Lord Woolfe’s consideration of the role in Secretary of State for the Home Department v Rehman [2000] 3 All ER 778 reveals at 788:

"The court also was initially of the opinion that it would be appropriate for Mr Blake to act as an amicus. Accordingly the Attorney General was invited to appoint him in that capacity. However, for understandable reasons the Attorney General did not feel this would be appropriate because a special advocate is not neutral but intended to advance the case of the absent party. The Attorney General therefore instructed Mr Ian Macdonald QC to appear as amicus and we are grateful to the Attorney General for enabling both Mr Blake and Mr Macdonald to appear. We were greatly assisted by Mr Macdonald's argument. In the event we were able to conduct the appeal in public in the ordinary way and so it was not necessary for Mr Blake to address us. We did however have the advantage of his written submissions. Mr Sales' arguments before us on behalf of the Secretary of State can be considered under four heads which we will deal with in turn."

52 Other aspects of the role here proposed for the special advocate are quite different to that of an amicus. The special advocate is not to have a neutral role, but to advance the plaintiffs’ case. Whether or not s 29(3)(a) of the Security Industry Act would preclude disclosure even to an amicus, without the Commissioner’s consent, need not be decided. Arguably, given the structure of s 29(3), disclosure to anyone is precluded, absent such consent. As was submitted for the Commissioner in construing s 29(3)(b), the provisions of s 29(3)(a) may not be overlooked.

53 For the Commissioner it was explained that one of the distinguishing features of the orders here proposed, to those considered in the cases relied upon by the plaintiffs, was that in those cases appointment of a special advocate had been made by the Attorney General or a law officer, not the party whose interests were to be protected.

54 It appeared from the submissions advanced for the Commissioner that there would be no objection to disclosure were the Attorney General to appoint an amicus or special advocate, thereby satisfying the consent requirements of s 29(3). That proposal is not one which has apparently been pursued, however and thus requires no further consideration at this point.

55 I am satisfied for these reasons that the first question posed by the plaintiff, whether a special advocate process could be adopted in proceedings before the Tribunal, must be answered yes, on the basis that such an advocate would appear as a representative of the plaintiffs in that part of the proceedings from which the plaintiffs and their 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 Security Industry Act.

Was the power to give or refuse approval of disclosure to the proposed special advocate exercised bona fide?

56 I turn then to the matters raised by the third question posed. It was argued for the plaintiffs that the Commissioner had a duty to consider and determine an application for approval under s 29(3) of the Security Industry Act. The Commissioner had himself disclosed the existence of the documents which comprised the confidential exhibit in the proceedings before the Tribunal. As a result, there was an unfair disadvantage which flowed against the plaintiffs in the proceedings, which the disclosure to the proposed special advocate sought to ameliorate.

57 It was submitted that the purpose of s 29(3) is to prevent disclosure of the criminal intelligence contained in the exhibit for any purpose other than the proper review of the Commissioner’s decision to revoke the plaintiff’s license. The Commissioner’s discretion to approve a departure from the default procedure imposed by s 29(3), had to be exercised by reference to that purpose. The Commissioner had been asked to exercise that discretion, by agreeing to a procedure which could not risk any improper disclosure of the criminal intelligence contained in the confidential exhibit and which enhanced the procedural fairness of the review hearing before the Tribunal and thereby, the confidence that the hearing will result in the appropriate decision.

58 For the Commissioner to withhold approval of the special advocate process, in order to preserve an unfair forensic advantage which flowed from the procedure established by s 29(3) of the Security Industry Act, would not be to exercise the s 29(3) discretion bona fide and for proper purpose. It followed that an order lay under s 65 of the Supreme Court Act 1970 in the nature of mandamus, requiring the Commissioner to give proper consideration to the question of whether the approval sought should be given.

59 The Commissioner had not give any reasons for the refusal to agree to disclosure to the proposed special advocate. The nature of the answer which was given, gave rise, however, both to the inference that the necessary consideration had not been given to the request, and that the reasons for the refusal, if provided, would not have assisted in establishing the validity of the decision.

60 While there was no positive obligation on the Commissioner to provide reasons for refusing the request, it had to be considered that the Commissioner had also been asked to suggest any amendments to the orders proposed, which would provide a basis for him giving his consent under s 29(3). There had been no response to that request, merely advice that the Commissioner did not proposed to engage in a special advocate procedure. The result was an inference that the Commissioner simply wanted to preserve the overwhelmingly unfair forensic advantage which flowed from the refusal to agree to disclosure under s 29(3), even though what was proposed ensured that the purpose of the confidentiality provided for by the section, could thereby be achieved.

61 The Commissioner did not dispute the inference which it was argued by the plaintiffs flowed from the advice of his refusal of consent. To the contrary, it was argued that the forensic advantage enjoyed by the Commissioner in the review proceedings before the Tribunal, if approval of disclosure of the confidential exhibit under s 29(3) of the Security Industry Act was refused, was the very object of the section.

62 I am unable to accept that view of the legislation. The section itself makes clear that its purpose is to prevent disclosure of the existence or content of any criminal intelligence report or other criminal information referred to in s 15(6) of the Security Industry Act, in proceedings conducted before the Tribunal, unless the Commissioner consents to such disclosure. The section is unconcerned with forensic advantage, or disadvantage which might flow in such proceedings, if consent is granted or refused. That is merely the by product of the protection given by ss 15(6) of the Security Industry Act, to criminal intelligence. It provides:

"(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."

63 Nevertheless, it was further argued that no adverse inferences could flow against the Commissioner, given the refusal to consent to the process proposed by the plaintiffs and that there was no evidence which could lead to the conclusions for which they urged. Advice of the Commissioner's refusal of consent was all that the plaintiffs were entitled to receive. Unless the Commissioner's consideration was vitiated by some improper purpose, the orders sought would not be made. It followed that neither orders in the nature of certiorari nor mandamus were available in relation to the Commissioner’s request. The plaintiffs had not sought reasons for the refusal given, nor alleged that there was any particular reason for the refusal. Absence of reasons of itself was not a sufficient basis for the orders sought. One explanation might be that reasons would have disclosed something about the existence or content of the criminal intelligence, on which the decision to revoke the licenses rested.

64 I am unable to accept that submission. Any 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.

65 In R v Trebilco; ex parte FS Falkiner & Sons Ltd [1936] HCA 63; (1936) 56 CLR 20, Dixon J considered how a discretion is to be exercised when no legislative directions are given to the decision maker. His Honour observed at 32:

"The authority is to absolve the subject from a liability to taxation imposed upon all alike whose property is of the taxable description. The degree of relief is left to the board in express terms. A power given by the word "may" in such a provision must, I think, be understood as discretionary. It confers a discretion to release, or not to release, the taxpayer according to the board's opinion of the justice of the case. Except for implications or inferences from the three paragraphs prescribing the conditions precedent, the sub-section gives no information as to the considerations by which an exercise of the discretion is to be guided. The nature of those considerations must be gathered from the scope and object of the provision."

66 In Abernathy v Deitz (1996) 39 NSWLR 701 consideration was given to a decision maker not putting on evidence as to the reasons for a decision. It was observed at 706:

"... where an officer elects to give no evidence upon such a matter, it may in the context of the case be open and proper to infer that he could give no evidence of any reasons which would assist his contention that the exercise of the power was valid."

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. The submission that s 29(3) was intended to give the Commissioner a forensic advantage in proceedings before the Tribunal reinforces that conclusion. That is not the purpose of the section. The Commissioner acting on such an understanding could not involve a proper and valid exercise of the discretion granted by the section.

69 For the Commissioner it was also submitted that the relief sought would be refused because s 29(3) gave the Commissioner power of disclosure of criminal intelligence. That was a private right resting in the Commissioner as a party to the proceedings before the Tribunal, not a public power amenable to judicial review. The plaintiffs had no right to the Commissioner’s agreement to the disclosure sought. (See John Fairfax and Sons Limited v Australian Telecommunications Commission [1977] 2 NSWLR 400.)

70 I am unable to accept this argument, having in mind s 29(3) of the Security Industry Act and the provision made in s 65 of the Supreme Court Act, which provides:

"65 Order to fulfil duty

(1) The Court may order any person to fulfil any duty in the fulfilment of which the person seeking the order is personally interested.

(2) The Court may, on terms, make an interlocutory order under subsection (1) in any case where it appears to the Court just or convenient so to do.

(3) The powers of the Court under this section are in addition to any other powers of the Court."

71 Section 29(3) of the Security Industry Act is not merely concerned with the Commissioner’s position as a party to proceedings before the Tribunal. Rather, it is concerned with the disclosure of criminal intelligence in such proceedings. That is undoubtedly a matter of significant public interest, for reasons discussed in Gray. The purpose of the discretions granted the Commissioner in s 29(3) are also undoubtedly an important part of the statutory scheme, especially given the disadvantage which can flow to parties who are denied access to information on which the Commissioner acts to their detriment under s 15 of the Security Industry Act. The Commissioner’s discretions provide a basis upon which such disadvantage may be ameliorated, by agreement, when the statutory purpose of the protection of criminal intelligence will not be undermined by the consent given.

72 The giving or refusing of the consent sought has very significant consequences, which may not simply be regarded as the consequence of the exercise of a private right. Section 29(3) contemplates, as the plaintiffs 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.

73 As to s 65 of the Supreme Court Act, the argument that it is of limited scope, as the Commissioner contended, may in my view also not be accepted. The section concerns itself with ‘any duty in the fulfilment of which the person seeking the order is personally interested’. In its terms it is not confined to ‘public’ duties (see Cameron North Sydney Investments Pty Ltd v The Owners Strata Plan No 50411 and Ors [2002] NSWSC 726 at [18] - [19]; Secure Funding Pty Limited v Coughlin [2009] NSWSC 384 at [27] - [35]; Stubbs v NRMA Insurance Ltd (1997) 42 NSWLR 550; and the discussion in Judicial Review of Administrative Action, (M Aronson, B Dyer, M Groves) 4^th ed (2009), Thomson Reuters at [13.125[.)

74 In the circumstances, it is appropriate to make certain but not all of the orders and declarations proposed for the plaintiffs. I am satisfied that the Tribunal may not appoint a special advocate, under this statutory scheme, but the plaintiffs may. With the Commissioner's consent, the confidential exhibit maybe disclosed to the special advocate. The Commissioner must give the plaintiffs' proposal consideration, as the Security Industry Act requires.

Orders

75 For the reasons given, I make the following declarations and orders:

1. A declaration that the proposed 'special advocate' procedure is a procedure that the Administrative Decisions Tribunal is empowered in its lawful discretion to adopt for the hearing of the pending Tribunal proceedings, subject to the special advocate being appointed by the plaintiff and the approval of disclosure of the confidential exhibit to the special advocate being given by the first defendant pursuant to s 29(3) of the Security Industry Act 1997.

2. A declaration that the first defendant 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 Security Industry Act 1997, of the proposed 'special advocate' procedure that has been made, or shall at any time be made, in connection with the pending Tribunal proceedings by or on behalf of the plaintiffs, or any of them.

4. That the first defendant consider the plaintiffs' application for the disclosure of the confidential exhibit to the special advocate under the provisions proposed by the plaintiffs, according to law.

5. That the first defendant pay the plaintiffs' costs of the proceedings.

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LAST UPDATED:
26 February 2010