AVS Group Australia Pty Ltd v Commissioner of Police

74 NSWLR 1 Ekermawi v Administrative Decisions Tribunal [2009] NSWSC 143 Federal Commissioner of Taxation v Citibank Ltd (1989) 20 FCR 404; 85 ALR 588 Foster v Federal Commissioner of Taxation [1951] HCA 18; 82 CLR 606 Gypsy Jokers Motor Cycle Club Incorporated v Commissioner of Police [2008] HCA 4; 234 CLR 532 Jones v Ekermawi [2009] NSWCA 388 K-Generation Pty Ltd v Liquor Licensing Court [2009] HCA 4; 237 CLR 501 Kirk v Industrial Court (NSW) [2010] HCA 1; 239 CLR 531 Kyriakou v Long [2014] NSWCA 308 Nakhl Nasr v New South Wales [2007] NSWCA 101 Naylor v Commissioner of Police, NSW Police Force [2014] NSWCATOD 43 Pratt v Hawkins (1991) 32 NSWLR 319 Public Service Board v Osmond (1986) 159 CLR 656 QR v Commissioner of Police, New South Wales Police [2005] NSWADT 122 QR v Commissioner of Police, New South Wales Police (GD) [2005] NSWADTAP 59 Smith v Chadwick (1884) 9 App Cas 187 Smith & Anor v Collings Homes Pty Ltd & Anor [2004] NSWCA 75 South Australia v Totani [2010] HCA 39; 242 CLR 1 South Western Sydney Area Health Service v Edmonds [2007] NSWCA 16 Sunol v Collier [2012] NSWCA 14 Wainohu v State of New South Wales [2011] HCA 24; 243 CLR 181 Wajnberg v Raynor & Melbourne Board of Works [1971] VR 665 Whalley v Commissioner of Police [2003] NSWSC 273 Wray v Wray [2007] NSWSC 164 Texts Cited: Macquarie Dictionary Pearce & Geddes, Statutory Interpretation in Australia (7th edn, 2011) Shorter Oxford Dictionary (3rd edition) Category: Principal judgment Parties: (129003) AVS Group Australia Pty Ltd (First Appellant) Tony Sleiman (Second Appellant) Commissioner of Police (Respondent)

(129004) AVS Group of Companies Pty Ltd (First Appellant) Peter Sleiman (Second Appellant) Commissioner of Police (Respondent) Representation: Counsel K Oliver (Appellants) T Lynch SC (Respondents) Logan Fox Lawyers Pty Ltd (Appellant) Crown Solicitor's Office (Respondents) File Number(s): 129003, 129004 Publication restriction: Section 75(2) of the Administrative Decisions Tribunal Act 1997 applies to those paragraphs of these reasons identified as '[not for publication]'. Those paragraphs are not to be released to the public. Decision under appeal Citation: AVS Group Australia Pty Limited v Commissioner of Police, NSW Police Force [2012] NSWADT 1 Date of Decision: 2012-01-10 00:00:00 Before: General Division File Number(s): 093202, 093216

Introduction 1In these appeal proceedings, two groups of appellants have appealed against a decision of the Administrative Decisions Tribunal ('the ADT' or 'the Tribunal') affirming decisions of the Respondent, the Commissioner of Police, to revoke licences that the Commissioner had granted under the Security Industry Act 1997 ('the SI Act'). 2The Appellants in one of the appeals (129003) are AVS Group Australia Pty Ltd (hereafter 'AVSGA') and Tony Sleiman. Their appeal concerns a Master Security Licence that had been issued to AVSGA on 21 October 2006, with Tony Sleiman as the 'nominated person'. The date of expiry shown on this licence was 21 October 2011. 3The Appellants in the other appeal (129004) are AVS Group of Companies Pty Ltd (hereafter 'AVSGC') and Peter Sleiman. Their appeal concerns a Master Security Licence that had been issued to AVSGC, with Peter Sleiman as the 'nominated person', and a personal licence that had been issued to Peter Sleiman. The licence to AVSGC was issued on 28 April 2007, with the date of expiry shown to be 28 April 2012. 4Tony and Peter Sleiman are brothers. Henceforth, we will refer to them, as the ADT did, as Tony and Peter respectively. We intend no disrespect through so doing. 5The Commissioner's notice revoking the licences held by AVSGC and Peter were served on 23 July 2009. His notice revoking AVSGA's licence was served on 13 August 2009. Each of these two notices bore the date 15 July 2009. 6The application by AVSGC and Peter to the Tribunal for review of the Commissioner's decision to revoke their licences was filed on 30 July 2009 (file 093202). The application by AVSGA and Tony for review of the decision to revoke AVSGA's licence was filed on the date on which it had been served, 13 August 2009 (file 093216). 7On 13 August 2009, being the day on which the notice of revocation of AVSGA's licence was served, the Tribunal, constituted by Deputy President Hennessy, granted a stay of the notice of revocation of the licences held by AVSGC and by Peter (see AVS Group of Companies Pty Ltd v Commissioner of Police, NSW Police Force [2009] NSWADT 223 at [2]). Subsequently, the revocation of AVSGA's licence was also stayed. 8Before the substantive hearings of the parties' applications commenced, there were several more interlocutory hearings in the Tribunal and a number of appellate or review proceedings in the Supreme Court or the Court of Appeal. Further relevant aspects of these intervening proceedings are outlined below. 9The substantive hearings in the Tribunal took place between 8 March 2011 and 30 June 2011. Mr Oliver of counsel, and on some occasions Mr Hughes QC, appeared for the applicants. Mr Lynch SC appeared for the Commissioner. Until the last two hearing days, 29 and 30 June 2011, the two applications were heard separately. 10Open hearings took place on eighteen days. During parts of the hearings on those days, members of the public were excluded. During other parts of those hearings, and also during hearings set down on other days, the applicants and their legal representatives were excluded, for reasons that will be explained. On occasions when the latter exclusion applied, Mr Higgins appeared as counsel assisting the Tribunal. 11The Tribunal's decision affirming the Commissioner's decisions to revoke the three licences (AVS Group Australia Pty Limited v Commissioner of Police, NSW Police Force [2012] NSWADT 1) was delivered on 10 January 2012. 12The two Notices of Appeal instituting these appeal proceedings were filed on 23 January 2012. 13On 26 May 2012, an Appeal Panel of the ADT, constituted by its President, Judge K P O'Connor, sitting alone, heard an application by the Respondent Commissioner for AVSGA's appeal to be summarily dismissed, on the ground that AVSGA's master licence had expired on 26 October 2011. In a decision delivered on 13 May 2012 (AVS Group Australia Pty Limited & Tony Sleiman v Commissioner of Police, NSW Police Force (Respondent's Application) [2012] NSWADTAP 24), the Appeal Panel dismissed this application. Referring to evidence that AVSGA had recently applied for a new licence under the SI Act, with Tony as its nominee, the Appeal Panel held that this continuing interest on their part in operating in the security industry provided sufficient grounds for permitting these appeal proceedings to run their course. 14On 1 January 2014, the ADT was abolished and its functions were taken over by the Civil and Administrative Tribunal of New South Wales ('NCAT'). The appeal proceedings thereupon became 'unheard proceedings' as defined in clause 6(1) of Schedule 1 of the Civil and Administrative Tribunal Act 2013. Clauses 7(1) and 7(3)(b) of this Schedule stipulate that such proceedings are to be heard by NCAT, but are to be determined as if that Act had not been enacted. 15The hearing of the appeals occurred over six days, between 14 February and 25 August 2014. Mr Oliver appeared for the Appellants and Mr Lynch SC for the Commissioner. 16On the first of the hearing days, Mr Oliver handed up Further Amended Notices of Appeal setting out the final versions of the grounds of appeal. The parties furnished written outlines of their submissions in chief in the appeals and, pursuant to directions given by the Appeal Panel, Mr Oliver filed written submissions in reply on the Appellants' behalf. 17The appeal hearings on all but the final day took place in open court (except for a few brief periods when members of the public were excluded) and were before the full Appeal Panel (Principal Member Chesterman, Senior Member Fitzgerald and General Member Bolt). Pursuant to provisions of the SI Act that have featured prominently in this litigation, the hearing on 25 August 2014 (which was previously set down for 22 July, but had to be postponed) took place in camera, and in the absence of the Appellants and their legal representatives. This hearing was concerned only with clarifying aspects of a number of exhibits, tendered by the Commissioner, that the Tribunal, on grounds that will be explained shortly, had identified as not to be disclosed to the Appellants without the Commissioner's approval. Since it involved no more than the exercise of an 'interlocutory function', the Panel was constituted by Principal Member Chesterman, sitting alone (see ADT Act, section 24A(2)(a)). 18We have decided, after careful consideration, that these appeals must be dismissed. In our lengthy reasons, we canvass a significant number of questions of principle, most of which have to do with the meaning of key provisions of the SI Act. Paragraph [44] contains a table of contents listing these questions and the numbers of the paragraphs at which they are discussed.

The licences 19As indicated above, the licences held by AVSGA and AVSGC were 'master licences' and the licence held by Peter was a 'personal' licence. 20At all material times, the classification of licences was the subject of sections 10 to 12 of the SI Act. Only a master licence authorised the holder to employ individuals to carry on security activities. Any person so employed was required to hold a personal licence. Different species of master licence authorised the employment of different numbers of people. The licence issued to AVSGA authorised the employment of 51 or more people. The licence issued to AVSGC, however, authorised its engagement in security industry activities as a 'sole trader' only.

Relevant legislation 21The notices of revocation referred to a number of provisions of the SI Act and the Security Industry Regulation 2007 ('the SI Regulation'). In the context of this litigation, the most important of these are sections 15(6), 15(7) and 29(3) of the SI Act. A further group of provisions of this Act and of the SI Regulation are also of considerable significance: namely, sections 5, 15(1), 15(3), 15(5), 26(1)(b)(i) and (iii), 26(1)(d), 26(1A), 29(1) and 30 of the Act and clauses 13, 29 and 34 of the Regulation. 22At the relevant time, these provisions of the SI Act were in the following terms:- 5 Meaning of "close associate" (1) For the purposes of this Act, a person is a close associate of an applicant for, or the holder of, a licence if the person: (a) holds or will hold any relevant financial interest, or is or will be entitled to exercise any relevant power (whether in his or her own right or on behalf of any other person), in the business of the licence applicant or holder, and by virtue of that interest or power is or will be able (in the opinion of the Commissioner) to exercise a significant influence over or with respect to the conduct of that business, or (b) holds or will hold any relevant position, whether in his or her own right or on behalf of any other person, in the business of the licence applicant or holder. (2) In this section: relevant financial interest in relation to a business means: (a) any share in the capital of the business, or (b) any entitlement to receive any income derived from the business, whether the entitlement arises at law or in equity or otherwise. relevant position means the position of director, manager, and other executive positions and secretary, however those positions are designated, and such other positions as may be prescribed by the regulations for the purposes of this definition. relevant power means any power, whether exercisable by voting or otherwise and whether exercisable alone or in association with others: (a) to participate in any directorial, managerial or executive decision, or (b) to elect or appoint any person to any relevant position. 15 Restrictions on granting licence-general suitability criteria (1) The Commissioner must refuse to grant an application for a licence if the Commissioner is not satisfied that the applicant: (a) is a fit and proper person to hold the class of licence sought by the applicant... (3) The Commissioner may refuse to grant an application for a licence if the Commissioner considers that the grant of the licence would be contrary to the public interest. (5) Except as provided by the regulations, a reference in this section to an applicant includes, in the case of an application for a master licence, a reference to each close associate of the applicant. (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). 26 Revocation of licence (1) A licence may be revoked:... (b) if the licensee:... (i) supplied information that was (to the licensee's knowledge) false or misleading in a material particular in, or in connection with, the application for the licence... (iii) contravenes any condition of the licence... (d) for any other reason prescribed by the regulations. (1A) 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. 29 Right to seek review from Administrative Decisions Tribunal (1) A person may apply to the Administrative Decisions Tribunal for a review under the Administrative Decisions Tribunal Act 1997 of the following decisions: (a) the refusal or failure by the Commissioner to grant a licence to the person (other than by operation of section 24 (3)), (b) a condition imposed by the Commissioner on a licence granted to the person, (c) the revocation or suspension of a licence granted to the person. (3) In determining an application for an administrative review of any decision to refuse to grant a licence, to renew 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 the administrative review, the applicant's representative and any other interested party, unless the Commissioner approves otherwise. Note. Section 15 (7) of this Act provides that the Commissioner is not, under this or any other Act or law, required to give any reasons for not granting a licence if the giving of those reasons would disclose the existence or content of any criminal intelligence report or other criminal information referred to in section 15 (6). Accordingly, Part 2 of Chapter 5 of the Administrative Decisions Tribunal Act 1997 does not apply to any decision to refuse to grant a licence based on such information to the extent that it would require disclosure of the existence or content of any criminal intelligence report or other criminal information. 30 Contravention of licence conditions A licensee must not contravene any condition of the licence. Maximum penalty: (a) in the case of a corporation - 200 penalty units, or (b) in the case of an individual - 100 penalty units or imprisonment for six months, or both. 23Clause 13, 29 and 34 of the SI Regulation stated, so far as relevant: - 13 Information and particulars to accompany licence application: section 14 (2) (b) (3) Master licences-corporations For the purposes of section 14 (2) (b) of the Act, an application for a master licence that is made by a corporation (other than a government agency or public authority) must include the following information: (a) the name of the applicant... (c) the nominated person for the licence, being an individual who is: (i) an Australian citizen or permanent Australian resident, and (ii) a close associate of the applicant, and (iii) involved in the day-to-day conduct of the applicant's security activities, (d) the name, date and place of birth and residential address of each of the applicant's close associates, 29 Revocation of licence-additional reasons: section 26 (1) (d) For the purposes of section 26 (1) (d) of the Act, a licence may be revoked if the Commissioner considers that it is not in the public interest for the person to whom it is granted to continue to hold it. 34 Requirement to notify changes relating to close associates It is a condition of a master licence that the licensee must notify the Commissioner in writing of any change in the particulars relating to the close associates of the licensee within 14 days after the change occurs. 24The predecessor to the SI Regulation was the Security Industry Regulation 1998. For the purposes of the present decision, it is sufficient to note that clause 8(2)(e) of that regulation was in similar terms to clause 13(3)(d) of the SI Regulation, and clause 23 required notification of any change in the particulars relating to close associates 'as soon as practicable'. 25The notices of revocation also referred to the provisions of the Administrative Decisions Tribunal Act 1997 ('the ADT Act') governing review by the Tribunal of decisions of the Commissioner's decisions made under the SI Act. 26A number of provisions of the ADT Act, in the form that they took at the relevant time, may usefully be quoted here. They are sections 4 (part), 38(1), 49(1)-(3), 58(1), 58(2), 58(5), 58(7), 59, 63(1)-(2), 73(1)-(5) (parts), 75(1)-(2), 89(1)-(3) and 89(5):- 4 Definitions... "function" includes a power, authority or duty. 38 Conferral of jurisdiction to review reviewable decisions (1) Conferral of review jurisdiction The Tribunal has jurisdiction under an enactment to review a decision (or a class of decisions) if the enactment provides that applications may be made to it for a review of any such decision (or class of decisions) made by an administrator: (a) in the exercise of functions conferred or imposed by or under the enactment, or (b) in the exercise of any other functions of the administrator identified by the enactment. 49 Duty of administrator to give reasons on request (1) If an administrator makes a reviewable decision, an interested person may make a written request to the administrator for the reasons for the decision. (2) As soon as practicable (and in any event within 28 days) after receiving such a request, the administrator is to prepare a written statement of reasons for the decision and provide it to the person who requested the reasons. (3) The statement of reasons is to set out the following: (a) the findings on material questions of fact, referring to the evidence or other material on which those findings were based, (b) the administrator's understanding of the applicable law, (c) the reasoning processes that led the administrator to the conclusions the administrator made. 58 Duty of administrator to lodge material documents with Tribunal where decision reviewed (1) An administrator whose reviewable decision is the subject of an application for review to the Tribunal must, within 28 days after receiving notice of the application, lodge with the Tribunal: (a) a copy of any statement of reasons given to the applicant under section 49 (or, if no such statement was given to the applicant, a statement of reasons setting out the matters referred to in section 49 (3))... and (b) a copy of every document or part of a document that is in the possession, or under the control, of the administrator that the administrator considers to be relevant to the determination of the application by the Tribunal. (2) If the applicant has not been given a statement of reasons under section 49, the Tribunal may direct that a copy of the statement of reasons lodged with the Tribunal under subsection (1) (a) be given to the applicant within such period or periods as the Tribunal directs. (5) The Registrar of the Tribunal is to grant reasonable access to the applicant in the proceedings to any copy of a document lodged under this section by an administrator. Reasonable access includes, but is not limited to, enabling the applicant to make a photocopy of a document during ordinary business hours. (7) Nothing in this section requires the disclosure of, or the granting of access to, any document (or a copy of a document) in contravention of any of the following: (a) an order made under section 59 (Objections to lodgment), (b) an order made under section 75 (Proceedings on hearing to be conducted in public), (c) section 124 (Effect of Government Information (Public Access) Act 2009 ), (d) section 125 (Privileged documents). 59 Objections to lodgment (1) An administrator may apply to the Tribunal before the expiry of the period referred to in section 58 (1) for an order that the administrator not be required to lodge a copy of a document under section 58. (2) On any such application, the Tribunal may make an order that a copy of a document not be lodged with the Tribunal if: (a) it is satisfied that section 125 operates so as not to require the disclosure of the document, or (b) it considers that, if an application were made under section 75 (2), it would be appropriate to make an order under that subsection prohibiting or restricting the publication or disclosure of evidence of the document. 63 Determination of review by Tribunal (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. 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... (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:... (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... 75 Proceedings on hearing to be conducted in public (1) If proceedings before the Tribunal are to be determined by holding a hearing, the hearing is to be open to the 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: (a) an order that the hearing be conducted wholly or partly in private, (b) an order prohibiting or restricting: (i) the disclosure of the name, address, picture or any other material that identifies, or may lead to the identification of, any person (whether or not a party to proceedings before the Tribunal or a witness summoned by, or appearing before, the Tribunal), or (ii) the doing of any other thing that identifies, or may lead to the identification of, any such person, (b1) an order prohibiting or restricting the publication or broadcast of any report of proceedings before the Tribunal, (c) an order prohibiting or restricting the publication of evidence given before the Tribunal, whether in public or in private, or of matters contained in documents lodged with the Tribunal or received in evidence by the Tribunal, (d) an order prohibiting or restricting the disclosure to some or all of the parties to the proceedings of evidence given before the Tribunal, or of the contents of a document lodged with the Tribunal or received in evidence by the Tribunal, in relation to the proceedings. 89 Tribunal to give decision determining application (1) If the Tribunal makes an original decision or determines an application for the review of a reviewable decision, the Tribunal is to cause a copy of its decision to be served on each party to the proceedings for the decision. (2) The Tribunal may give reasons either orally or in writing for its decision. (3) If the Tribunal does not give reasons in writing for its decision: (a) a party to the proceedings may, within 28 days after the day on which a copy of the decision of the Tribunal is served on that party, request the Tribunal to give the party a statement in writing of the reasons of the Tribunal for its decision, and (b) the Tribunal must, within 28 days after receiving the request, give the party such a statement. (5) If the Tribunal gives the reasons for its decision in writing under subsection (3), the written reasons are to set out the following: (a) the findings on material questions of fact, referring to the evidence or other material on which those findings were based, (b) the Tribunal's understanding of the applicable law, (c) the reasoning processes that lead the Tribunal to the conclusions it made.

The notices of revocation 27The notice revoking the licences held by AVSGC and by Peter. This notice was addressed to Peter, AVSGC and to a second company, ASET Security and Training Pty Ltd. Peter was the nominated person for a licence then held by this company. Because its revocation was not the subject of any review proceedings in the Tribunal, we do not need to refer to it again. 28The notice commenced as follows:- Pursuant to Section 26 of the Security Industry Act, 1997, notice is hereby given that your Class 1ABC2ABC security licence and Master security licences issued in the name of A.V.S. Group of Companies Pty Ltd and ASET Security and Training Pty Ltd have been revoked. REASON FOR REVOCATION: (Provided under sections 49 and 53(2)(d)(ii) of the Administrative Decisions Tribunal Act 1997): 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 29The notice then provided a summary of the terms of sections 26(1A), 15(1)(a), 15(6), 15(7) and 26(1)(d) of the SI Act, together with clause 29 of the SI Regulation. All of these are quoted above. It then pointed out that under section 21 of the Interpretation Act 1987 a reference in any Act or instrument to a 'person' includes an individual, a corporation and a body corporate or politic. It drew attention to the provisions in section 53 of the ADT Act and section 29 of the SI Act conferring a right to apply to the ADT for review of the decision to revoke the licences. 30The notice then stated that the recipients were 'no longer authorised to engage in any security activity in respect of the class of licence revoked', that the licences must be surrendered to police on service of the notice and that failure to do this constitutes an offence under section 31 of the SI Act. 31The notice revoking the licence held by AVSGA. This notice was addressed to Tony and to AVSGA. It commenced as follows:- Pursuant to Section 26 of the Security Industry Act, 1997, notice is hereby given that the Master security licence issued in the name of AVS Group Australia Pty Ltd has been revoked. REASON FOR REVOCATION: (Provided under sections 49 and 53(2)(d)(ii) of the Administrative Decisions Tribunal Act 1997): I AM SATISFIED THAT A CONDITION OF THE LICENCE HAS BEEN CONTRAVENED (failure to disclose particulars of a close associate - Peter SLEIMAN) I AM OF THE OPINION THAT A CLOSE ASSOCIATE OF AVS GROUP AUSTRALIA PTY LTD IS NOT A FIT AND PROPER PERSON TO HOLD A SECURITY LICENCE. (Peter Sleiman) I CONSIDER THAT IT IS NOT IN THE PUBLIC INTEREST FOR YOU TO CONTINUE TO HOLD THE LICENCE 32The notice then provided a summary of the terms of sections 26(1)(b)(iii), 26(1A), 15(1)(a), 15(6), 15(7) and 26(1)(d) of the SI Act, together with clauses 29 and 34 of the SI Regulation. Like the notice just described, it then referred to section 21 of the Interpretation Act 1987, to the provisions in section 53 of the ADT Act and section 29 of the SI Act regarding review, and to the obligations of the recipient to cease any engagement in any security activity in respect of the class of licence revoked and to surrender its licence. 33It will be observed that, contrary to some passing observations in the Tribunal's decision, there was no revocation of any licence held by Tony. His role in these proceedings was only as the nominated person for the licence that had been issued to AVSGA.

The Tribunal's decision 34The Tribunal's decision was accompanied by two sets of reasons. One of these was made available to all the parties and to the public. The other was provided to the Commissioner only, because it included passages falling within the scope of section 29(3)(a) of the SI Act. 35The Tribunal held that the Commissioner's decision in the AVSGC proceedings, revoking both the master security licence held by AVSGC and Peter's personal licence, should be affirmed. As stated in its decision at [237], this conclusion was based upon its finding that Peter was not a fit and proper person to hold a licence under the SI Act. 36The Tribunal also held that the Commissioner's decision in the AVSGA proceedings, revoking the master security licence held by AVSGA, should be affirmed. As stated in its decision at [235 - 236], this conclusion was based upon two grounds: (a) that AVSGA had had a close associate whom it had failed to disclose to the Commissioner, in breach of a condition attached to its licence; and (b) that this close associate (Peter) was not a fit and proper person to hold a licence under the SI Act. 37Although both notices of revocation included a further ground of revocation - namely, that the Commissioner considered that it was not in the public interest for the licence holder(s) to continue to hold a licence - the Tribunal did not determine whether this ground had been made out. Documentary material put before us in the appeal proceedings indicated that during the proceedings before the Tribunal the Commissioner had sought to withdraw this ground.

The approach taken in these reasons 38As indicated earlier, the material handed up to us during the hearing of the appeals included Further Amended Notices of Appeal setting out the final versions of the Grounds of Appeal and written outlines of the submissions of the parties. 39Since parts of the Appellants' submissions were marked 'Confidential' , we have determined under section 75(2) of the ADT Act that certain sections of the ensuing reasons should not be released to the public. 40In these reasons, we have not dealt with the Grounds of Appeal in the terms or indeed the order in which they were set out in the Further Amended Notices. The reasons for this are as follows. The 'questions of law' which these Notices identify (in conformity with section 113(2)(a) of the ADT Act) as 'arising from the Tribunal's decision' are formulated in a manner which we have found to be both unduly lengthy, occasionally repetitive and, at times, not easily susceptible of interpretation. There are in fact 26 numbered Grounds of Appeal in AVSGC's appeal and 27 in that of AVSGA. Within a significant proportion of these numbered Grounds, there are sub-paragraphs (in one instance, as many as 19 sub-paragraphs) raising or purporting to raise distinct questions of law. In addition, we have been unable to discern any rationale underlying the order in which the questions of law are listed. A further feature of the Further Amended Notices that has made them difficult to deal with is the fact that while most of the Grounds set out are common to both appeals, some are applicable to one only of the two appeals. This has the consequence that some 'common' Grounds have been given different numbers in the two Notices. Finally, there is no simple cross-referencing between the Grounds of Appeal and the 404 paragraphs of the Appellants' submissions in chief. One can ascertain from the submissions which paragraphs apply to each Ground of Appeal, but it is a laborious exercise. 41On account of these considerations, we have chosen not to deal seriatim with each of the questions of law formulated in the Further Amended Notices. After carefully considering the lengthy submissions (written and oral) that were put before us, we have formulated, in our own terms and in an order that we find preferable, the questions of law that we understand to have been raised by the Appellants. In our discussion of each question, we have listed the numbered Ground or Grounds of Appeal in which (on our reading of the Further Amended Notices) the question was raised and we have indicated whether, and if so to what extent, each such Ground has been made out. 42Our reasons are unusually lengthy. In part, this is because, as just indicated, the Grounds of Appeal and the submissions supporting them were unusually lengthy. But it is also attributable in large measure to the fact that the provisions of the SI Act on which the dispute between the parties has principally focused - namely, sections 15(6), 15(7) and 29(3) and (to a lesser extent) section 5 - lack clarity in a number of important respects. The first three of these provisions have the effect of preventing the Tribunal from affording complete procedural fairness to licence applicants or holders who apply for review of a decision by the Commissioner denying them a licence or revoking a licence that they already hold. These parties are denied the opportunity to know the case being brought against them and to put evidence and argument in response before the Tribunal. 43So long as the extent to which these provisions restrict the Tribunal's capacity to ensure procedural fairness remains a matter of uncertainty and controversy, long-running and expensive legal battles such as these proceedings exemplify to a high degree are likely to take place. In our respectful opinion, the public interest would benefit significantly from a review of sections 15(6), 15(7) and 29(3) of the SI Act, conducted with the prime objective of ensuring that any future inroads made by this Act on the principles of natural justice are clearly defined. 44We turn now to the substantive issues arising in these appeals. Because they are so numerous and our reasons relating to them are so lengthy, we provide here a brief table of contents. The numbers provided are paragraph numbers:- 45 - 50: The Commissioner's powers and the Tribunal's obligations with regard to 'Criminal Information' 51 - 64: The meaning and scope of 'Criminal Information' 65 - 92: The criteria for determining whether Criminal Information is 'held in relation to' a licence applicant or holder 93 - 96: Whether the Tribunal's obligations regarding the concealment of information apply to 'putative' section 15(6) material 97 - 113: Whether the Tribunal's obligations regarding the concealment of relevant Criminal Information can apply only to Information in this category to which the Commissioner actually had regard 114 - 118: Whether section 15(6) material can include material whose existence and content have been known at all relevant times to the applicant 119 - 145: Whether, and if so in what circumstances, material bearing on the question of 'close association' may be section 15(6) material 146 - 188: Whether section 15(6) material falls within section 15(7) and/or section 29(3) when the purpose of its use is not that of determining whether a licence applicant or holder is fit and proper to hold a licence 189 - 198: Whether questions put to a delegate of the Commissioner should have been disallowed 199 - 233: The meaning of 'disclose the existence of' in section 29(3) 234 - 262: Whether any of the Tribunal's classifications of material as section 15(6) material were incorrect in law 263 - 323: The constitutional validity of section 29(3) 324 - 363: The meaning of 'holds... any relevant position' in the definition of 'close associate' 364 - 392: Whether certain evidence on the 'close association' question should have been ruled inadmissible 393 - 424: Whether the Tribunal's finding that Peter Sleiman 'continued' to hold a 'relevant position' in the business of AVSGA was available to it on the open evidence that it could properly take into account 425 - 472: Further questions of procedural fairness 473 - 476: Conclusions

The Commissioner's powers and the Tribunal's obligations with regard to 'Criminal Information' 45It was accepted in the appeal proceedings that by virtue of the operation of section 26(1A), sections 15(6) and 15(7) of the SI Act were to be construed as applying to determinations by the Commissioner as to the revocation of a licence as well as to the granting of a licence. 46In broad terms, sections 15(6), 15(7) and 29(3), when read in conjunction with sections 15(5) and 26(1A), had the following effect: (a) they defined a category of material, which we will call 'relevant Criminal Information', to which the Commissioner might have regard for the purpose of determining whether a licence applicant or holder or (in the case of an application for a master licence) a 'close associate' of an applicant or holder was a fit and proper person to hold a licence under the Act; (b) they entitled the Commissioner to decline to give reasons for refusing or revoking a licence if the act of so doing would 'disclose the existence or content' of any relevant Criminal Information to which he had had regard for this purpose; and (c) they imposed two obligations on the Tribunal that applied when the Tribunal was determining an application for 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. 47These obligations were that, in the absence of approval by the Commissioner, the Tribunal (i) was not to 'disclose the existence or content' of any 'criminal intelligence report or other criminal information referred to in section 15(6)' in the reasons for its decision 'or otherwise' and (ii) was required, in order to prevent the disclosure of any such report of other criminal information, to 'receive evidence and hear argument in the absence of the public, the applicant for administrative review, the applicant's representative and any other interested party'. 48The statutory description of the material to which we are giving the shorthand name 'relevant Criminal Information' appears in section 15(6) of the SI Act. It comprises the phrase that commences with the words 'criminal intelligence report or other criminal information' and concludes at the end of section 15(6). We will use the broader phrase 'Criminal Information' to mean any 'criminal intelligence report or other criminal information'. 49According to this terminology, 'Criminal Information' is not 'relevant Criminal Information' unless it satisfies the following criteria:- 1. It is held in relation to the licence applicant or holder; and 2. It either - (a) is relevant to the activities carried out under the relevant class of licence, or (b) causes the Commissioner to conclude that improper conduct is likely to occur if the licence is not refused or revoked, or (c) causes the Commissioner not to have confidence that improper conduct will not occur if the licence is not refused or revoked. 50In line with terminology employed in the Appellants' submissions, we reserve the phrase 'section 15(6) material' for relevant Criminal Information that satisfies a further criterion stated in section 15(6): namely, that it is material to which 'the Commissioner' may have regard for the 'section 15(6) purpose' of 'determining whether an applicant is a fit and proper person to hold the class of licence sought by the applicant'. (In this statement, our reasons for putting 'the Commissioner' in quotation marks will be explained shortly.)

The meaning and scope of 'Criminal Information' 51As McColl JA observed in her judgment in Commissioner of Police New South Wales v Gray [2009] NSWCA 49; 74 NSWLR 1 (hereafter 'Gray') at [95], the SI Act contains no definition of the statutory concept which we have labelled 'Criminal Information' - that is of the phrase 'criminal intelligence report or other criminal information' where it appears in sections 15(6), 15(7) and 29(3). Earlier in this judgment, however, she expressed the opinion (at [80]) that the 'scheme' established by section 29(3) 'bears some similarity' to those considered by the High Court in two constitutional cases, Gypsy Jokers Motor Cycle Club Incorporated v Commissioner of Police [2008] HCA 4; 234 CLR 532 and K-Generation Pty Ltd v Liquor Licensing Court [2009] HCA4; 237 CLR 501. 52The issue in the second of these two cases was the validity of section 28A of the Liquor Licensing Act 1997 (SA). This provided that, in determining whether a person was fit and proper to hold an entertainment venue licence, the Liquor and Gambling Commissioner, the Licensing Court and the Supreme Court were obliged to maintain the confidentiality of any information provided by the Commissioner of Police which this Commissioner had classified as 'criminal intelligence'. In section 4 of this Act, 'criminal intelligence' was defined as follows:- ... information relating to actual or suspected criminal activity (whether in this State or elsewhere) the disclosure of which could reasonably be expected to prejudice criminal investigations, or to enable the discovery of the existence or identity of a confidential source of information relevant to law enforcement. 53In a passage in their joint judgment in K-Generation at [143] (quoted by McColl JA in Gray at [91]), Gummow, Hayne, Heydon, Crennan and Kiefel JJ pointed out at [143] that 'the definition of "criminal intelligence" in s 4 is so drawn that had a challenge been presented by the appellants it would have been for the Licensing Court to be satisfied that facts existed sufficient to found the expectation of the prejudicial consequences spelt out in the definition; or, that the classification was "objectively correct"'. 54McColl JA made the following further observations at [93 - 95]:- 93 Thus the joint judgment emphasised that s 28A did not render information classified by the Commissioner of Police as criminal intelligence immune from scrutiny. Rather, in case of doubt, the Commissioner would have to satisfy the Court that the information was properly so classified. Even where that premise was established, the Court had to determine what weight could be placed upon it where the applicant had not had the opportunity to challenge it. 94 Kirby J (at [257]) also emphasised the entitlement, indeed obligation, of a court before which s 28A(5) was invoked, "to demand ... that all ... procedural preconditions, [i.e. those in s 28A(5)(b) and (6)] have been met". 95 There is no definition of "criminal intelligence" or "criminal information" in the SI Act, nor were counsel able to refer the Court to any case where the expression had been considered. However, as the appellant accepted, whether information over which a s 29(3) non-disclosure claim is made falls within s 15(6) is capable of objective determination. Courts are accustomed through the assessment of public interest immunity claims to resolving the question whether the information the subject of such claims falls within a category to which immunity attaches. Whether intelligence is "relevant to security" can be objectively determined even though "security is a concept with a fluctuating content": Church of Scientology v Woodward [1982] HCA 78; (1982) 154 CLR 25 (at 59 - 61) per Mason J. Each case must turn on the facts. 55In AVS Group of Companies Pty Ltd v Commissioner of Police [2010] NSWCA 81; 78 NSWLR 302 (hereafter 'AVSGC (Court of Appeal)'), Campbell JA (with whom Handley JA agreed) explained as follows the policy underlying the special treatment given to Criminal Information in the SI Act:- 139 The purpose of section 29(3) can be inferred from other provisions of the SI Act, and from information about the context in which the SI Act would operate. One relevant aspect of the context, of which Parliament could be taken to be aware, is that the Commissioner is the administrative head of a large governmental organisation, that in the ordinary course of its operation comes across a wide variety of information concerning criminal activities, the sorts of circumstances in which criminal activities can arise, and the identity of people involved in criminal activities and the associates of those people. Another is that police investigation of criminal activities, particularly organised criminal activities, can take extended periods of time, and involve making a mosaic of information drawn from various sources. Another is that, while there are varied types of work that people engaged in security activities carry out, much of it is related to prevention or detection of crime, and thus might provide the opportunity for participation in or facilitation of crime. Another relevant part of the context is the pre-existing law concerning public interest immunity. Such immunity can attach to evidence of the identity of police informers and police internal documents. In particular there can be a public interest immunity concerning disclosure of documents that could reasonably be thought to jeopardise the operation of the police force... 56It is appropriate to quote here the following additional passage (at [154]) from Campbell JA's judgment:- 154 I said there was a qualification on the Commissioner's final say on whether information is made available to an applicant for review. If, in proceedings in the Tribunal, a contention is raised that section 29(3) dictates the manner in which the Tribunal must deal with a particular piece of evidence, the Tribunal must satisfy itself [emphasis in the original] about whether section 29(3) attaches to that particular piece of evidence. That in turn requires the Tribunal to decide whether an item of evidence tendered is section 15(6) information. In Gray, McColl JA, at [96] said that: "... when a s 29(3) claim is made, it is necessary for the Tribunal to be satisfied that the information the appellant seeks to cloak with s 29(3) non-disclosure is properly classified as either 'criminal intelligence' or 'criminal information', is held in relation to the applicant and falls within one or other of s 15(6)(a)-(c). If any of these preconditions is not satisfied, s 29(3) does not apply." 57None of the parties to these appeals questioned the applicability of these dicta in these proceedings or the significance of the principle that the question whether any report or information is or is not section 15(6) material is 'capable of objective determination' and falls to be determined by the Tribunal if any claim based on section 29(3) is made. 58The Appellants maintained, however, in Appeal Ground 8(a) that a description given by the Tribunal of the potential scope of Criminal Information demonstrated that its view of this concept was unduly broad. 59The relevant passage in the Tribunal's decision is at [42 - 45]:- 42 The Commissioner's view must be considered in light of the fact that the Act confers coercive powers on the Commissioner and generally should be construed restrictively. I am conscious of the views expressed in FCT v Citibank Ltd (1989) 20 FCR 404 at 433; 85 ALR 588 at 614-15, where French J adverted to the interrelationship between the presumptions of common law rights and the will of the legislature: The nature of this society, and its tradition of respect for individual freedoms, will support an approach to construction which requires close scrutiny and a strict reading of statutes which would otherwise remove or encroach upon those freedoms. But where the natural meaning of the words is clear, the will of Parliament must be respected. 43 However, in my view the close scrutiny and strict reading of the statute supports the Commissioner's submission that a broad approach to the construction of the expression "criminal intelligence report and other criminal information" is necessary to promote the objects of the Act. Nevertheless, in my view the Applicants have correctly identified the separation between the concepts of "criminal intelligence report" and "other criminal information". One informs the other. For example, information might be gathered from a number of sources which appear to be unrelated but which take on a different character and greater significance when analysed and brought together in a report. 44 If a broad approach is adopted in regard to the meaning of the expression 'criminal information', the purpose to which the Commissioner refers is met. 45 I agree with the Commissioner that the expression includes information about the following: (1) criminal activity, (2) the circumstances in which criminal activity may occur or has occurred, (3) the identity of those involved in criminal activity, (4) the identity of those with whom the individuals involved in criminal activity associate. 60Mr Oliver submitted that the Tribunal's inclusion of the second item in this list was erroneous. He maintained in his written submissions (at paragraphs 297-298) that the Tribunal's definition of Criminal Information was 'capable of encompassing any information at all'. He added that because criminality was a characteristic of conduct, not of circumstances in which conduct occurs, the Tribunal should instead have directed itself that information was Criminal Information 'if, and only if, it is information about actual or alleged conduct that, regardless of the circumstances in which it actually or allegedly occurs, is criminal conduct'. 61In opposing this argument, Mr Lynch cited the following extract from the passage in Campbell JA's judgment in AVSGC (Court of Appeal) at [139] that we have just reproduced:- 139... One relevant aspect of the context, of which Parliament could be taken to be aware, is that the Commissioner is the administrative head of a large governmental organisation, that in the ordinary course of its operation comes across a wide variety of information concerning criminal activities, the sorts of circumstances in which criminal activities can arise, and the identity of people involved in criminal activities and the associates of those people... 62We agree with Mr Oliver that if the Tribunal, when including 'the circumstances in which criminal activity... may occur', meant the circumstances in which such activity might possibly occur, this would extend unduly the concept of Criminal Information. Although in the extract just quoted, Campbell JA employed a similarly broad phrase - 'the sorts of circumstances in which criminal activities can arise' - his Honour was not at this point engaged in formulating a definition of Criminal Information. On the other hand, we would regard information about the circumstances in which criminal activity is highly likely to occur as falling at least potentially within the range of Criminal Information. 63When reviewing the Tribunal's determinations as to whether specific items of evidence constituted section 15(6) material, we have paid attention to whether this error in describing the scope of Criminal Information had any impact on these determinations. 64To this extent, Appeal Ground 8(a) is made out.

The criteria for determining whether Criminal Information is 'held in relation to' a licence applicant or holder 65As stated above at [49], one of the criteria to be satisfied if Criminal Information is to qualify as 'relevant Criminal Information' (in the sense in which we are using this term) and therefore potentially as section 15(6) material is that it must be 'held in relation to' the licence applicant or holder. 66The Appellants claimed that each of three separate rulings by the Tribunal regarding the scope of the phrase 'held in relation to' was erroneous. 67First, in Appeal Ground 8(b), they challenged the correctness of the Tribunal's ruling that Criminal Information includes information about 'the identity of those with whom the individuals involved in criminal activity associate'. This was item 4 in the list set out in paragraph [45] (which we have just quoted). 68In his written submissions at [294], Mr Oliver argued as follows. Information that an applicant for or holder of a licence (A) associates with another person (B) is information that is 'held in relation to A' by any person (such as X) who 'holds' it. But the mere fact that B is known or reasonably suspected by X to engage in criminal activity is not enough to warrant classifying the information about his association with A as Criminal Information 'held' by X 'in relation to A'. If this were the case, information held by X to the effect (for instance) that B entrusted the servicing of his motor vehicle to A, a garage owner, would be enough to substantiate a determination that information about B's known or suspected criminal activities was Criminal Information 'held in relation to A'. What mattered in this context, Mr Oliver submitted, was the 'character' of the association between A and B, not the mere fact that some sort of association existed. 69In response, Mr Lynch relied again on the passage from Campbell JA's judgment in AVSGC (Court of Appeal) that we have just quoted. This passage included the phrase 'the identity of people involved in criminal activities and the associates of those people' in its description of the kinds of information that the Commissioner commonly acquires. 70As with Ground 8(a), our view is that the Tribunal's use of the phrase 'the identity of those with whom the individuals involved in criminal activity associate' in its account of Criminal Information 'held' in relation to an applicant extended the range of this concept unduly. The 'character' (as Mr Oliver submitted), quality or context of the 'association' must also be taken into account. Criminal Information in relation to an applicant for or holder of a licence (A) can, in our opinion, include the identity of a person involved in criminal activity (B) with whom A associates, if one or more of the additional conditions are satisfied; (a) the association exists in contexts where criminal activity has occurred or is likely to occur; (b) the association has continued on a regular basis over a significant period of time; or (c) there is reason to believe that A maintains the association even after having become aware of the criminal activity in which B has engaged. 71When reviewing the Tribunal's determinations as to whether specific items of evidence constituted section 15(6) material, we have paid attention to whether this error in describing the scope of Criminal Information had any impact on these determinations. 72To this extent, Appeal Ground 8(b) is made out. 73Secondly, in Appeal Ground 9 the Appellants claimed that the Tribunal erred through accepting (at [65]) a submission by the Commissioner which it had summarised as follows at [58 - 59]:- 58 ... the Commissioner argues that Information that he obtained about an applicant's associations with others is information 'held in relation to' the applicant. Further, that or other information held by the Commissioner may suggest that those associates either: (1) engage in criminal activity, or (2) are themselves associates of persons who engage in or are associated with criminal activity. 59 The Commissioner submits that if that were the case, then the information held by the Commissioner is "criminal information held in relation to ... " the applicant because of his association with those persons. 74Mr Oliver's argument in his written submissions (at paragraph 292) commenced by acknowledging once more that information that a licence applicant (A) associates with another person (B) is information that is 'held in relation to A' by any person (such as X) who 'holds' it. But he maintained that additional information that B associates with a third person (C) is not information that has any objective connection with A. Accordingly, information regarding that C engages in or is 'associated with' any criminal activity is not Criminal Information 'held' by X 'in relation to A', even if X does 'hold' the information that B associates with C and also associates with A. 75Mr Lynch argued that, as will appear below, this ruling by the Tribunal was not one of general application to the proceedings. Instead, it was made in the context of the Tribunal's determination that material bearing on the question whether Peter was a 'close associate' of AVSGA could be section 15(6) material in the AVSGA proceedings. He claimed that in that particular context the ruling was correct. 76Our decision on this matter is that, once again, a statement of principle by the Tribunal as to the scope of 'relevant Criminal Information' is unduly broad. 77When reviewing the Tribunal's determinations as to whether specific items of evidence constituted section 15(6) material, we have paid attention to whether this error in describing the scope of Criminal Information had any impact on these determinations. 78To this extent, Appeal Ground 9 has been made out. 79The third matter to be considered under this general heading bore upon a different aspect of the phrase 'held in relation to the applicant' in section 15(6). In Appeal Ground 7, the Appellants claimed that any material 'in respect of which (a) the Commissioner's discretion to disclose the existence or content was subject to the direction and/or approval of any other person or agency, or (b) the Commissioner for any other reason did not enjoy an unfettered discretion to disclose the existence or content, was not material "referred to in section 15(6)" within the meaning of s 29(3) of the SI Act'. 80Although some of the arguments advanced on this topic were in a confidential section of Mr Oliver's written submissions, both Appeal Ground 7 itself and Mr Oliver's submissions in reply (which referred briefly to this Ground at paragraphs 579-580) were not confidential documents. Having regard to this, and to the fact that the error of law alleged was one of general principle arising from the terms of a provision of the SI Act, we do not believe that section 29(3) or any other law requires to us to ensure confidentiality for the ensuing discussion of this ground of appeal. 81Mr Oliver submitted that the legislature's use of the term 'held' in section 15(6) implied that if any Criminal Information is to be classified as relevant Criminal Information, rendering possible a further classification as 'section 15(6) material', the Commissioner must have an independent and unfettered discretion to determine whether or not its existence or content may be disclosed. In so submitting, he relied on Campbell JA's use of the term 'final say' in the following passage (at [153]) of his Honour's judgment in AVSGC (Court of Appeal):- 153 I recognise that section 29(3) does not impose on the Tribunal an obligation never to disclose or to permit the disclosure of section 15(6) information. Rather, the obligation is one that does not apply if the Commissioner approves otherwise. This has the effect that it is the Commissioner, not the Tribunal, who (subject to a qualification I will soon discuss) has the final say about whether such information should be disclosed. This is understandable policy, as the Commissioner may be in a position to know, when the Tribunal does not, that a piece of information that seems innocuous on its face could have detrimental consequences when viewed in conjunction with other information. 82In response, Mr Lynch argued that nothing in the SI Act stated or implied that Criminal Information would not be 'held' within the meaning of section 15(6) if the Commissioner's use of that information was subject to the direction or approval of a third party. He suggested that what Campbell JA described as the conferral on the Commissioner of the 'final say' as to the release of information held by him might well have been intended to encourage third parties to supply information to him through permitting him to be able to ensure them that it would not be further disseminated. It would, Mr Lynch submitted, be 'nonsensical' for the legislature to confer upon an authority a general power to control the release of specified information that it held, while simultaneously enacting that it should not have this power when it had acquired the information from a third party on the basis that this party would control any further release of it. 83Mr Lynch also referred to two paragraphs in the judgement of Sackville AJA (with whom Allsop P and Handley AJA agreed) in Commissioner of Police v Sleiman and AVS Group of Companies Pty Ltd [2011] NSWCA 21; 78 NSWLR 340 (hereafter 'Sleiman (Court of Appeal)'). In this case the Court of Appeal rejected an application for the appointment of a 'special advocate' to represent the interests of the Appellants in the present proceedings at Tribunal hearings from which they were excluded by virtue of section 29(3)(b) of the SI Act. The Court held however that the Tribunal could appoint counsel to assist it in evaluating any Criminal Information relied on at such hearings by the Commissioner. 84At [47], Sackville AJA referred to a letter dated 23 April 2010, in which the Commissioner's solicitors, in the course of advising the Appellants' solicitors that the Commissioner had decided not to approve the appointment of a special advocate, stated that one of the reasons was 'the circumstances in which the section 29(3) material was obtained by' the Commissioner. 85At [204], his Honour said:- 204 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. 86Mr Lynch contended that in this passage Sackville AJA clearly contemplated that section 15(6) material could include material that the Commissioner had obtained from a third party subject to undertakings not to disclose it other than in accordance with conditions prescribed by the third party. 87In his submissions in reply, Mr Oliver maintained that this passage was strictly obiter and that the point now in issue had not been argued in the Court of Appeal. 88In our opinion, the restriction on the scope of section 15(6) material for which Mr Oliver argued is not supported by the language of this provision or of any other part of the SI Act. As Sackville AJA's observations indicate, the term 'held' does not bear the weight that Mr Oliver sought to put on it. We would add that the existence of the Commissioner's right to approve the disclosure of section 15(6) material that he has acquired from a third party is entirely compatible with this outcome, because he would be obliged, in considering whether to grant any such approval, to take full account of any restrictions on disclosure imposed by his obligations to the third party. Finally, the policy arguments advanced by Mr Lynch are persuasive, in our opinion. 89For these reasons, Appeal Ground 7 has not been made out. 90Two further Appeal Grounds - 6A(o) (AVSGC) and 6A(q) (AVSGA) - were associated with Ground 7. The question raised in them was whether the Tribunal had erred in law, and consequently denied the Appellants procedural fairness, through failing to inform them whether it had classified as section 15(6) material any relevant Criminal Information of which the Commissioner's discretion to disclose the existence or content was subject to the direction and/or approval of any other agency. 91In the light of our conclusion with regard to Appeal Ground 7, we do not see why the Tribunal should be under any such duty. We have decided that the distinction between material that the Commissioner can freely disclose and material whose disclosure is conditional on the approval of a third party is irrelevant for the purpose of deciding whether it is section 15(6) material. We fail to see why the Tribunal should nonetheless have been under a duty to advise the Appellants whether or not it had classified any material within the latter category as section 15(6) material. 92For this reason, Appeal Grounds 6A(o) (AVSGC) and 6A(q) (AVSGA) have not been made out.

Whether the Tribunal's obligations regarding the concealment of information apply to 'putative' section 15(6) material 93By 'putative' section 15(6) material, we mean evidentiary material which the Commissioner has claimed to be section 15(6) material but which has not yet been the subject of a ruling to this effect. This question was raised in Appeal Ground 17 and, with reference to a specific exhibit (C18), in Appeal Ground 6A(i). 94Mr Oliver argued that at any time when the Tribunal exercised the interlocutory function of determining whether new evidence was relevant Criminal Information which it might have to withhold from the applicant, it was not using, or 'having regard to', this evidence for the section 15(6) purpose: i.e., 'the purpose of determining whether an applicant is a fit and proper person to hold the class of licence sought by the applicant'. At this stage, the material was accordingly not section 15(6) material. It therefore did not fall under section 29(3) either, with the consequence that the Tribunal was bound by its obligation of ensuring procedural fairness to disclose it to the applicant. 95In our opinion, this submission directly contradicts well-established principles and practices with regard to claims of confidentiality made in legal proceedings. While deciding whether a claim of this nature is well founded, a court or tribunal must preserve the subject-matter of the claim by ensuring that the material in question remains confidential until a decision about it is reached. To do otherwise is to foreclose the issue adversely against the party making the claim of confidentiality without having investigated the merits of this claim. In our opinion, this conclusion receives support from the following passage (cited by Mr Lynch) in the judgment of Campbell JA in AVSGC (Court of Appeal) at [170]:- 170 In the rare circumstance of the Tribunal needing to decide whether a particular item of information fell within section 15(6)(b) or (c), that decision would be made, like any decision made for an interlocutory purpose, on a prima facie basis... 96For the foregoing reasons, Appeal Grounds 6A(i) and 17 have not been made out.

Whether the Tribunal's obligations regarding the concealment of relevant Criminal Information can apply only to Information in this category to which the Commissioner actually had regard 97Appeal Grounds 6A(j) and 10 raised this matter in different ways. Stated broadly, the question arising from them was whether the Tribunal erred in law, and consequently denied the Appellants procedural fairness, in proceeding on the basis that sections 15(6) and/or 29(3) of the SI Act, properly construed, could require it (unless the Commissioner approved otherwise) to (i) receive what we will call any 'new evidence' tendered by the Commissioner in the absence of the appellants and their legal representatives, (ii) classify this evidence as section 15(6) material and (iii) conceal it in the manner required by section 29(3). 98By 'new evidence', we mean any evidence, whether documentary or given viva voce, to which the Commissioner had previously not had regard for the section 15(6) purpose or at all. 99The Tribunal operated on the basis that (a) the evidence that should be classified as section 15(6) material and concealed in the manner required by section 29(3) could include 'new evidence'; and (b) the period during which it should withhold such evidence from the Appellants should include the period when it was considering whether the evidence was in fact section 15(6) material. 100In Appeal Ground 10, it was claimed that a passage in the Tribunal's decision provided an instance of its erroneous approach. The 'C6B documents' to which the Tribunal referred in this passage constituted part of a confidential exhibit. These documents were disclosed to the Appellants with the approval of the Commissioner. 101The passage in question (at [72 - 75]) was as follows:- 72 It is submitted on behalf of the Applicants that the Commissioner did not have regard to the C6B documents in deciding that Peter was not a fit and proper person to hold a security licence. The Commissioner accordingly has not used the subject documents in a manner that brings them within the scope of reference of section 15(6) of the Act. Further, the Tribunal has not had regard to the C6B documents, and may never have regard to them, for the purpose of determining whether Peter is a fit and proper person to hold a security licence. The Tribunal accordingly has not used the subject documents in a manner that brings them within the scope of reference of section 15(6) of the Act. 73 It is submitted that since the C6B documents have not been used for a purpose to which section 15(6) of the Act refers, they cannot at the present time be documents "referred to in section 15(6)" within the meaning of section 29(3) of the Act. 74 I do not agree with that narrow construction of the Act. At the time the issue arose for consideration by the Tribunal, it was open to the Commissioner to place the C6B documents before the Tribunal for consideration for "the purpose of determining whether an applicant is a fit and proper person to hold the class of licence sought by the applicant". It became necessary to form an opinion with respect to whether the C6B documents comprised "criminal intelligence report or other criminal information held in relation to the applicant". I in fact formed the view that the C6B documents met that description. In doing so, I adopted the view that a broad approach should be taken to the construction of the expression "held in relation to the applicant". 75 In my view, the C6B documents are relevant to the particular purpose for which section 15(6) authorizes use of the material... 102The Appellants' submissions. During the hearing on 14 February 2014, Mr Oliver succinctly summarised the Appellants' argument on this question as follows (Transcript, p 53, lines 48-49):- The Tribunal must not disclose what the Commissioner need not disclose and has not disclosed, that is the effect of s 29(3) in a nutshell. 103This meant, according to Mr Oliver, that any new evidence received by the Tribunal from the Commissioner could not fall within the ambit of section 29(3), even if it would have constituted section 15(6) material if it had been 'held' by the Commissioner at the time when the decision under review was made. 104In seeking to establish this proposition, Mr Oliver invoked subsections (1) and (2) of section 63 of the ADT Act, together with the definition of 'function' in section 4(1) of this Act. He argued that when the operation of section 63(2) was 'notionally read into' section 15(6) of the Act, the result was that the scope of any relevant Criminal Information that could be 'held' by the Tribunal, pursuant to its exercise of the Commissioner's 'functions', was limited to information that the Commissioner 'held'. Furthermore, any evidence that might constitute relevant Criminal Information which the Tribunal received through the exercise of its powers (under section 83 of the ADT Act) to compel witnesses to attend hearings or to answer questions on oath or affirmation could not be section 15(6) material, because no such powers were conferred on the Commissioner. Since such evidence could not be section 15(6) material, it could not be caught by the phrase 'criminal intelligence report or other criminal information referred to in section 15(6)' appearing in section 29(3). 105In support of this line of argument, Mr Oliver cited the following extracts from the judgment of Campbell JA in AVSGC (Court of Appeal) at [154 - 155]:- 154... If, in proceedings in the Tribunal, a contention is raised that section 29(3) dictates the manner in which the Tribunal must deal with a particular piece of evidence, the Tribunal must satisfy itself [emphasis in the original] about whether section 29(3) attaches to that particular piece of evidence. That in turn requires the Tribunal to decide whether an item of evidence tendered is section 15(6) information... 155 When the Tribunal was deciding those matters for itself, it is the effect of section 63(2) ADT Act that all references to "the Commissioner" in section 15(6) SI Act are replaced by references to "the Tribunal". 106The Commissioner's submissions. Mr Lynch argued that the phrase 'criminal intelligence report or other criminal information referred to in section 15(6)', as used in section 29(3), covered any information of the kind outlined in section 15(6), not merely information of that kind to which the Commissioner had in fact had regard for the purpose described in section 15(6). In his submission, nothing stated or implied in either of these two provisions required the scope of section 29(3) to be restricted in the manner for which Mr Oliver contended. 107Mr Lynch, like Mr Oliver, cited Campbell JA's judgment in AVSGC (Court of Appeal) in support of his argument on this matter. He claimed that the passage on which Mr Oliver relied (at [154 - 155]) was in fact favourable to his own argument. 108Discussion and conclusions. We are not persuaded by Mr Oliver's submissions, for the following reasons. 109During the hearing, we put it to Mr Oliver that if his interpretation of section 63(2) of the ADT Act were correct, it would follow that the powers possessed by the ADT, in the exercise of the extensive review jurisdiction that was conferred on it by numerous statutes, would in every case be limited to the powers of the administrator whose decision it was reviewing. The powers conferred on it by its own governing legislation, the ADT Act - for example, the power under section 83(1) to examine any witness on oath or affirmation - would have no role to play in any proceedings in which it was exercising its review jurisdiction. The flaw in reasoning along these lines is that the phrase 'the Tribunal may exercise all of the functions' within section 63(2) is treated as meaning 'the Tribunal may only exercise the functions'. The natural meaning of this phrase is however that the 'functions' of the administrator are conferred on the Tribunal in addition to the 'functions' conferred on it by the ADT Act. 110Mr Oliver's response to this question from the Bench was that it was only in the specific context of sections 15(6) and 29(3) that limitations of this kind on the powers of the Tribunal would exist. But he did not explain why this exception should exist to the general principle that the Tribunal, in reviewing the decision of an administrator, should have available to it the powers expressly conferred on it by the ADT Act. 111We agree with Mr Lynch that the passage quoted by Mr Oliver from Campbell JA's judgment in AVSGC (Court of Appeal) does not, on a careful reading, provide support for Mr Oliver's submissions. According to our interpretation, his Honour made the following two points in this passage: (a) when the Commissioner claims that a piece of evidence put before the Tribunal is 'a criminal intelligence report or other criminal information referred to in section 15(6)', the Tribunal - not the Commissioner - must determine whether this claim is made out; and (b) in so doing, it must operate on the basis that the word 'Tribunal' is substituted for 'Commissioner' throughout this provision. It follows from this that the relevant Criminal Information to which it may have regard comprises information held 'in relation to the applicant' by the Tribunal - not by the Commissioner - that satisfies any one of the criteria stated in paragraphs (a), (b) and (c). This proposition appears to be at odds with the proposition advanced by the Appellants. 112The question whether 'after-acquired' Criminal Information - i.e., information of this nature acquired by the Commissioner after the making of the decision under review - can be section 15(6) material was in fact decided adversely to the Appellants by an Appeal Panel of the Tribunal in AVS Group Australia Pty Limited v Commissioner of Police, New South Wales Police Force (GD) [2010] NSWADTAP 26 (hereafter 'AVSGA (Appeal Panel)'). This decision was not the subject of an appeal. At [63 - 68], the Panel said:- 63 Whether s 29(3) applicable to information that post-dates the Commissioner's decision. The other issue canvassed in this case related to whether s 29(3) had any effect on 'after-acquired' information, i.e. information acquired by the Commissioner after the making by the Commissioner of the revocation decision. The interpretation for which the appellants contend places a strict temporal limitation on the word 'held', a past participle, in s 15(6) and consequently limits s 29(3)'s constraints to information so 'held'. The submissions referred, in illustration of the argument to a US case, Florida Department of Revenue v Piccadilly Cafeterias (2008) 128 S Ct 2326. 64 [The Panel then quoted the text of subsections (1) and (2) of section 63 of the ADT Act.] 65 It is well accepted that the relevant material can include any material that has come into existence, or discovered, after the date of the administrator's decision: Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577. 66 The appellants' submission is that the Tribunal would not be constrained in any way by s 29(3), and the ordinary notice requirements would apply to so much of a s 59 application as involves after-acquired information. 67 Such an interpretation would strain the interaction between ss 29(3) and 15(6) in a way which would defeat the obvious objective of those provisions. The Parliament is, we think, unlikely to have intended that the restriction imposed by s 29(3) did not continue to apply to information of the same character that came into existence after the making of the decision. The provisions should be read together, and in a way that allows them to operate harmoniously. 68 In our view, the words 'referred to in section 15(6)' should be read in the way the Commissioner submits, as being concerned with information of the kind to which s 15(6) refers, including information that comes into existence before the Tribunal, which stands in the shoes of the Commissioner for this purpose, and makes its decision. (To the extent that the US case may be seen as an analogy, our view is similar to the approach taken by the minority judges there.) 113For these reasons, Appeal Grounds 6A(j) and 10 have not been made out.

Whether section 15(6) material can include material whose existence and content have been known at all relevant times to the applicant 114Appeal Grounds 13 and (indirectly) 6A(m) raised the question whether the Tribunal erred in law, at paragraph [78], in failing to disclose to the Appellants its reasons for classifying as section 15(6) material 'an exhibit, the existence and content of which were at all material times known to the Appellants'. 115The Tribunal did not in fact refer to this matter in any way at [78]. At [75], however, it made the following observations, with reference to an exhibit (identified by it as Exhibit C6B) which it had held to constitute section 15(6) material but which had been disclosed in part to the Appellants with the Commissioner's approval:- 75 In my view, the C6B documents are relevant to the particular purpose for which section 15(6) authorizes use of the material. I do not agree with the Applicants' submission that information provided by an applicant necessarily falls outside the scope of reference of section 15(6) of the Act. In my view, information need not be detrimental to an applicant's case to fall within the scope of the section. 116We interpret this Appeal Ground, which received little attention in the submissions, as incorporating a claim that material whose existence and content were at all relevant times known to a review applicant could not be section 15(6) material. A claim to this effect is ruled out, in our opinion, by the following dicta of McColl JA in Gray at [102]:- 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... 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). 117As we have indicated, Appeal Ground 13 maintained that the Tribunal erroneously failed to disclose to the Appellants its reasons for classifying as section 15(6) material 'an exhibit, the existence and content of which were at all material times known to the Appellants'. The submissions relating to this Ground suggested that either Exhibit C6B (part of which was disclosed to the Appellants) or Exhibit C18 (all of which was disclosed) was the exhibit referred to. At [71 - 78], the Tribunal in fact gave such reasons in relation to each of these exhibits. 118Accordingly, Appeal Grounds 6A(m) and 13 are not made out.

Whether, and if so in what circumstances, material bearing on the question of 'close association' may be section 15(6) material 119This issue arose in the context of each of the two grounds of revocation of AVSGA's master licence on which the Commissioner explicitly relied during the Tribunal proceedings. It will be recalled that one of these was that because Peter was both a close associate of AVSGA and not fit and proper to hold a licence under the SI Act, AVSGA itself was not a fit and proper person and its licence was accordingly subject to mandatory revocation under sections 15(1), 15(5) and 26(1A) of the SI Act - i.e., on what we will call a 'fitness ground'. The other was that Tony, by not advising the Commissioner that Peter was a close associate of AVSGA, had contravened a condition of AVSGA's licence requiring disclosure of the particulars of any close associate, with the consequence that this licence was subject to revocation under section 26(1)(b)(iii) at the discretion of the Commissioner. 120During the proceedings, the Commissioner successfully argued to the Tribunal that relevant Criminal Information bearing upon the question whether Peter was a close associate of AVSGA was section 15(6) material and that any such material that the Commissioner tendered to the Tribunal fell within the prohibitions on disclosure imposed by section 29(3). 121Appeal Grounds 14(a) and 14(b) challenged the correctness of the Tribunal's endorsement of this proposition and claimed that this error on its part prompted certain further errors in its handling of the proceedings. 122In its decision at [48 - 69], the Tribunal summarised the parties' submissions on this proposition and stated its conclusions. This passage was preceded by the following important statement of the meaning that the Tribunal would attribute to the phrase 'section 15(6) material':- 47 In the remainder of these reasons, unless the context requires otherwise, I will refer to 'criminal intelligence report or other criminal information' collectively as 'section 15(6) material'. 123It will be noted that this definition differs from the definition that we have adopted in these reasons. As indicated above at [50], we reserve the phrase 'section 15(6) material' for a narrower range of material, namely, relevant Criminal Information to which the Commissioner or the Tribunal may have regard for the 'section 15(6) purpose' of 'determining whether an applicant is a fit and proper person to hold the class of licence sought by the applicant'. 124The following extracts from paragraphs [48] to [69] of the Tribunal's decision should be quoted:- The Applicants' submission 48 The Applicants contend that neither the Commissioner, nor the Tribunal, is authorised to have regard to any section 15(6) material for any purpose other than "determining whether the applicant is a fit and proper person" to hold a relevant class of licence. It is submitted that neither the Commissioner, nor the Tribunal, has authority to have regard to section 15(6) material for the purpose of determining generally whether a security licence should be granted or refused. Therefore, so long as the existence of the alleged close association remains to be determined, use of any section 15(6) material for the purpose of determining its existence would neither be, nor be deemed to be, use "for the purpose of determining whether an applicant is a fit and proper person" and hence would not be authorised by section 15(6). 49 It is further submitted that the section confers such authority only for the purpose of determining a specific question, which, if determined adversely to an applicant, is a mandatory ground for refusal... 51 The Applicants contend that in the present case, the purposive limitation on the function that section 15(6) confers must be construed in the relevant context of sections 15(7) and 29(3) of the Act. It is submitted that this leads to the construction that section 15(6) material cannot be used for the purpose of determining the existence of the alleged close association. The Commissioner's submission 52 The Commissioner contends that Tony's fitness and propriety to be and remain the holder of his licence is to be determined by reference to the fitness and propriety of his "close associates" to be such a licensee. 53 It is submitted that in assessing the suitability of a master licence holder, sub-section 15(5) permits the Commissioner to consider a wider scope of materials to better enable the Commissioner to assess whether an applicant is influenced, as a consequence of his/her association, by another. 54 The Commissioner argues that the proper intent of the provision is to enable the Commissioner to inform himself from information relevant to the suitability of the applicant for a master licence. It is consistent with this legislative purpose that the proper construction of sub-section 15(5) is to permit the use of section 15(6) material in the assessment of whether a person is a close associate of an applicant. It is submitted that to construe otherwise would mean that there is no purpose achieved by extending the application of the term 'applicant' to include 'each close associate of the applicant'. 57 Alternatively, the Commissioner submits that section 15(5) can be viewed as making each close associate of the nominal applicant itself a notional joint applicant for the licence sought. The Commissioner contends that on either approach, Tony's fitness and propriety to be the holder of a licence is to be determined by reference to the fitness and propriety of his "close associates" to be such a licensee. 58 In support of that view, the Commissioner argues that Information that he obtained about an applicant's associations with others is information 'held in relation to' the applicant. Further, that or other information held by the Commissioner may suggest that those associates either: (1) engage in criminal activity, or (2) are themselves associates of persons who engage in or are associated with criminal activity. 59 The Commissioner submits that if that were the case, then the information held by the Commissioner is "criminal information held in relation to ... " the applicant because of his association with those persons. 60 Further, the Commissioner submits that as reports and information about an association between persons will very commonly, but to varying degree, be informative as to the nature and purpose of the association it is "improbable" that section 15(6) was not intended to permit recourse to reports and information (1) for the purpose of identifying the fact an applicant's associations with those who engage in criminal activity, but (2) not for the purpose of identifying the nature and purpose of the association, which may be innocent or sinister. 61 If it is accepted that reports and information may be used as evidence of the nature and purpose of an association between an applicant and another, then there is no reason why that information cannot be used in determining whether the association is a "close association" for the purposes of section 15(6). 64 In summary, the Commissioner contends that, as the fitness and propriety of an applicant holding his master licence is to be decided by reference to the fitness and propriety of his close associates, (1) evidence of his association with another individual is material held in relation to him because he is its direct subject, and (2) evidence held about any close associate is evidence held in relation to him for the purposes of section 15(6) because, although he may not be the or a subject of that material, his close associate is, and The terms of section 15(6) do not require that any putative close association be proved only by material which is not "criminal intelligence report or other criminal information". Discussion 65 I agree with the Commissioner in regard to this issue. In my view, that construction is consistent with the legislative intent of section 15. 67 Section 15 prescribes criteria for suitability of a licence holder. Specifically, in assessing the suitability of a master licence holder, section 15(5) permits the Commissioner to consider a wider scope of materials to better enable the Commissioner to assess whether an applicant is influenced, as a consequence of his/her association, by another. 68 The proper intent of the provision is to enable the Commissioner to inform himself from information relevant to the suitability of the applicant for a master licence. It is consistent with this legislative purpose that the proper construction of section 15(5) is to permit section 15(6) material in the assessment of whether a person is a close associate of the applicant. To construe otherwise would mean that no purpose is achieved by extending the application of the term 'applicant' to include 'each close associate of the applicant'. 69 In my view, material, if any, tendered on the issue of Peter's fitness and propriety, and material, if any, which comes within section 29(3) of the Act may be relied upon in the determination of the issue of "close association". The use of material, if any, relevant to Peter's fitness and propriety does not eliminate the operation of section 29(3) the Act. 125The Appellants' submissions. Mr Oliver's submissions acknowledged that in a case, such as the present, where a master licence is revoked, pursuant to sections 15(1), 15(5) and 26(1A), on a fitness ground, Criminal Information that is held by the Commissioner or by the Tribunal ('standing in the shoes of the Commissioner', pursuant to section 63(2) of the ADT Act) in relation to a close associate may be section 15(6) material if two conditions are satisfied. The first of these was that the material falls within one or more of paragraphs (a), (b) and (c) of this provision. The second was that it must be material to which the Commissioner had regard for the purpose of determining whether the close associate was fit and proper to hold a licence. 126Mr Oliver denied, however, that Criminal Information would be section 15(6) material if the purpose for which the Commissioner had regard to it was that of resolving what he called the requisite 'antecedent inquiry' into whether the 'putative' close associate of the licensee was in fact a close associate of the licensee. He argued that it could only be after the Commissioner had made such a determination on reasonable grounds that it could be said that one of the defining requirements of section 15(6) material - namely that the material was 'held in relation to' the licensee - was satisfied. In support of this reasoning, he submitted that the phrase 'each close associate' in section 15(5) should not be interpreted so widely as to include, for example, 'each possible close associate', 'each prospective close associate' or 'each suspected close associate'. 127A further contention raised by Mr Oliver relied on the following specific aspect of the SI Act that Mr Lynch did not contest. Revocation of a licence on a fitness ground - i.e., that the licensee, or a close associate of it, is not fit and proper to hold a licence - is mandatory under section 15(1) (when read with sections 15(5) and 26(1A)). On the other hand, revocation on the ground that the licensee has failed to comply with a condition of the licence requiring disclosure of the particulars of a close associate is a matter left to the discretion of the Commissioner, conferred under section 26(1)(b)(iii). 128Mr Oliver argued that 'revocation cannot at the same time be mandatory and discretionary'. It followed, he said, that failure to disclose a close associate could not, without more, be a sufficient reason for satisfaction that a master licensee was not fit and proper to hold a licence. It further followed (if the Tribunal's view expressed at [68] was correct) that the Tribunal, when dealing with an application for review of a revocation of a master licence on a fitness ground, might (a) find this ground unproven, (b) decide nevertheless that the revocation was justifiable on the discretionary ground that the licensee failed to disclose a close associate and (c) in reaching the latter conclusion, have regard to material which it took to be section 15(6) material (and therefore withheld from the applicant) because it had regard to this material when considering the question of fitness and propriety. Such material could not, however, have been withheld from the licensee by the Commissioner under section 15(7) if the sole ground for the Commissioner's revocation of the licence had been the discretionary ground of failure to disclose a close associate. 129The Commissioner's submissions. Mr Lynch's written submissions contained the following propositions: (a) evidence to the effect that a licensee associates (in the vernacular sense) with another person (X) is information 'held in relation to' the licensee; (b) relevant Criminal Information about X would or might be relevant to determining whether the licensee was fit and proper to hold a licence; (c) it must therefore be the case that any such Criminal Information that bears upon the question whether X is in fact a close associate of the licensee is relevant in determining whether the licensee is fit and proper to hold a licence; and (d) in any event, failure by a licensee to disclose a close associate is itself a matter going directly to the fitness and propriety of the licensee. 130Discussion and conclusions. In our opinion, the general question canvassed in these submissions requires separate discussion depending on which ground or grounds underpin the revocation of a master licence. 131It is useful, in fact, to conduct separate investigations of this question within each of two hypothetical situations: (a) that the sole ground of revocation of AVSGA's licence was a fitness ground (i.e., that Peter, being a close associate of AVSGA, was not fit and proper to hold a licence); and (b) that the sole ground of revocation of AVSGA's licence was that it contravened a condition of its licence by failing to provide particulars of a close associate (Peter) to the Commissioner. 132Within the first of these hypothetical scenarios, the Commissioner's finding of the two essential matters - Peter's being a close associate and his being not fit and proper to hold a licence - would lead to mandatory revocation of AVSGA's licence under sections 15(1), 15(5) and 26(1A) of the SI Act. 133As we have indicated, the principal proposition in Mr Oliver's argument was that the question whether Peter was a 'close associate' was an 'antecedent inquiry', to which a positive answer was required before it could be said that any Criminal Information in the Commissioner's possession was 'held in relation to the applicant' (i.e., AVSGA). This followed, he said, from the drafting of subsections (5) and (6) of section 15, including particularly the use of the phrase 'each close associate' in the latter subsection. 134We do not see why this should be the case. It appears to us that any evidentiary material in the Commissioner's possession (whether or not it was Criminal Information) that bore on the question whether Peter was a close associate of AVSGA was material 'held in relation to' AVSGA. As we indicated above at [68], Mr Oliver appeared to concede as much in another part of his submissions. Such material would also, of course, be material 'held in relation to' Peter, but that is not relevant here. 135No doubt, the incidence of overlap between the concept of Criminal Information and the evidentiary material relevant to determining the issues (such as the 'holding' of a financial interest or of a 'relevant position') that determine whether a person is a 'close associate' as defined in section 5 may not be very great in practice. But there is no logical reason why such evidentiary material could not be Criminal Information. As the present case demonstrates, evidence tending to show that a particular person is a close associate of a licence holder may also be evidence tending to show that a criminal offence has been committed by the licence holder, being the offence, created by section 30 of the SI Act, of breaching a condition of the licence through failing to disclose the existence of a close associate. 136On this footing, the Criminal Information to which the Commissioner might 'have regard', 'for the purpose of determining whether the applicant' (AVSGA) was 'a fit and proper person' under section 15(1) to hold a master licence, could include material bearing on the question of whether Peter was a 'close associate' of AVSGA. It was not limited to material relating solely to the accompanying question of whether Peter was 'a fit and proper person' to hold a licence. 137This line of reasoning, which we put before both counsel at the appeal hearing, is consistent with parts of the passage from the Tribunal's decision - notably paragraph [67] and the first two sentences of [68] - that we have quoted above. 138Our conclusion, therefore, is that if the sole ground of revocation of AVSGA's licence had been that Peter was both a close associate of AVSGA and not fit and proper to hold a licence, Criminal Information bearing on the question of whether Peter was in fact a close associate could be section 15(6) material and could therefore fall within sections 15(7) and 29(3). 139We turn now to the second hypothetical situation. This is that the sole ground of revocation of AVSGA's licence was that Tony, by not advising the Commissioner that Peter was a close associate of AVSGA, contravened a condition of AVSGA's licence requiring disclosure of the particulars of any close associate. In consequence, this licence was subject to revocation, at the discretion of the Commissioner, under section 26(1)(b)(iii). 140Mr Lynch's submission that failure by a licensee to disclose a close associate is itself a matter going directly to the fitness and propriety of the licensee was, it seems, designed to support the following proposition: any relevant Criminal Information to which the Commissioner had regard in determining the question of 'close association' in this context would be material to which he might have regard for the purpose of determining whether AVSGA was a fit and proper person to hold a licence, and would therefore be section 15(6) material. 141We are not persuaded by this proposition. It appears to us that the holder of a master licence whose conduct was in every other way exemplary would not cease to be a fit and proper person to hold the licence merely because it failed, in breach of a condition attached to the licence, to disclose particulars of a close associate to the Commissioner within the relative brief prescribed period of 14 days. There might be a reasonable excuse for this failure (which, as just pointed out, is a criminal offence under section 30 of the SI Act). 142More importantly, the purpose of any inquiry preceding exercise of the discretionary power of revocation of a licence under section 26(1)(b)(iii) is that of determining whether the licensee has 'contravened any condition of the licence', not the purpose expressly delineated in section 15(6), i.e., determining whether the licensee is a fit and proper person to hold a licence of the relevant class. For these reasons, we would classify the former ground of revocation as a 'non-fitness ground', not (as Mr Lynch seemed to be arguing) as a fitness ground. 143It follows that in this second hypothetical situation, relevant Criminal Information relating to the question whether Peter was a close associate of AVSGA, to which the Commissioner had regard for the purpose of determining whether AVSGA contravened a condition of its licence, would not be section 15(6) material. It would therefore fall outside the scope of sections 15(7) and 29(3). 144We observe that the divergence between the outcomes in these two different situations could be said to reflect the distinction, which Mr Oliver emphasised, between the mandatory ground of revocation in section 15(1) (coupled with section 26(1A)) and the discretionary ground in section 26(1)(b)(iii). Our conclusions on this matter were not, however, based on the fact that this distinction exists. We would add, indeed, that we are not persuaded by Mr Oliver's argument that 'revocation cannot be both mandatory and discretionary'. We see no reason why the same factual situation could not provide the basis for revocation of a licence on both a mandatory ground and a discretionary ground. 145Our reasoning thus far provides some support for the contention set out in Appeal Grounds 14(a) and 14(b). But it does not establish this Ground, because the Ground is framed in relation to cases, like these proceedings, where both 'fitness' and 'non-fitness' grounds of revocation were relied upon.

Whether section 15(6) material falls within section 15(7) and/or section 29(3) when the purpose of its use is not that of determining whether a licensee is fit and proper to hold a licence 146The question that we will now consider is whether and if so to what extent, in the circumstances of this case (involving the Commissioner's revocation of AVSGA's licence on both of the grounds that we have been discussing) the provisions of sections 15(7) and 29(3) would apply to any relevant Criminal Information in the Commissioner's possession bearing on the question whether Peter was a close associate of AVSGA. 147This question is far from easy to answer for the following reasons: (a) we have held that such relevant Criminal Information would have been section 15(6) material if the sole ground of revocation had been a fitness ground; (b) we have also held that it would not have been section 15(6) material if the sole ground of revocation had been a non-fitness ground (i.e., that AVSGA had contravened a condition of its licence under which it was obliged, in the circumstance, to disclose that Peter was a close associate); and (c) the basis of the Commissioner's decision to revoke AVSGA's licence was, or included, both of these grounds. 148We will also consider this question with reference to revocation on both a fitness ground and a further non-fitness ground of revocation which (to use a neutral phrase) 'came into play' at certain stages of this case: namely, that the Commissioner considered that it was not in the public interest for AVSGA to continue to hold the licence (see the SI Act, section 16(1)(d) and the SI Regulation, clause 29). This Ground was also asserted against AVSGC. 149In addition to Appeal Grounds 14(a) and (b), these issues of principle arose directly or indirectly in Appeal Grounds 5A(a), 6A(a), 6A(n), 6A(o), 6A(p) (AVSGA), 12(c) (AVSGA), 14(c), 14(d) (AVSGA), 16, 18, 19 and 20 (AVSGA). 150In this latter group of Appeal Grounds, the Appellants' complaint was that the Tribunal failed, in breach of its duty to ensure procedural fairness to them to the fullest extent possible, to direct under section 58(2) of the ADT Act that they should receive a redacted copy of the Commissioner's reasons for revoking their licences which, with respect to the two 'non-fitness' grounds, complied fully with section 49(3) of that Act. 151Grounds 14(a) and 14(b), as we understand them, focused instead on the Tribunal's evident willingness to take account of undisclosed section 15(6) material bearing on the close association question when considering whether or not the non-fitness revocation ground of failing to disclose a close associate was established against AVSGA. 152The parties' submissions. The starting-point of Mr Oliver's submissions on this topic was that the question whether any relevant Criminal Information was or was not section 15(6) material must depend, inter alia, on how this Information was used. In this connection, he cited the following dicta of McColl JA in Gray at [101 - 102]:- 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... which reflects the criteria the common law accepted as attracting public interest immunity... 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). 153This meant, Mr Oliver argued, to the extent that any section 15(6) material was used for a purpose other than a 'section 15(6) purpose' - i.e. for a purpose other than determining whether a licence applicant or holder was a fit and proper person to hold a licence - it would not have the status of section 15(6) material. 154Mr Oliver submitted that two important consequences followed from this, relating respectively to section 15(7) and section 29(3). We will treat these separately. 155The situation under section 15(7). According to Mr Oliver, relevant Criminal Information that had been used by the Commissioner for the purpose of determining the fitness and propriety of a licensee and would therefore be section 15(6) material would not fall within the exemption from disclosure in section 15(7), to the extent that he had regard to that Information in deciding to revoke the licence on any non-fitness ground. In fulfilling his obligation to provide reasons for his decision on this ground under section 49 of the ADT Act, the Commissioner would therefore have to disclose any such Information. A course of action available to him in this situation, though not required of him, would be to exclude or redact from the statement of reasons supplied to the licensee under section 49 those reasons that applied solely to his decision to revoke the licence on the fitness ground. 156In this context, Mr Oliver relied on a statement in the Tribunal's decision in AVS Group of Companies Pty Ltd v Commissioner of Police, NSW Police Force [2009] NSWADT 223. This is a decision of the ADT given early in the AVSGC proceedings by Deputy President Hennessy. It will be recalled that in the Notice of Revocation of the licences held by the applicants in those proceedings (AVSGC, Security and Training Pty Ltd and Peter), the Commissioner had given two reasons: that they were not fit and proper persons to hold a licence and that it was in the public interest that they should cease to hold their licences. The Commissioner admitted that this statement of reasons did not comply with the requirements of section 49(3) of the ADT Act, adding by way of justification that sections 15(6) and 15(7) excused him from compliance. The applicants applied for a direction under section 58(2) of the ADT Act that the Commissioner should provide them with a copy of the statement of reasons that he had lodged in the Tribunal pursuant to section 58(1)(a). 157In its decision at [3], the Tribunal stated:- 3 The questions that arise for consideration and the answers I have given to those questions are as follows:

Whether questions put to a delegate of the Commissioner should have been disallowed 189The Tribunal's disallowance of certain questions put in cross-examination to Mr Cameron Smith was the subject of Appeal Grounds 6A(f), 14(d) (AVSGC), 14(e) (AVSGA), 20(a) (AVSGC) and 21(a) (AVSGA). Mr Smith was the Registrar of the Security Industry Registry. 190These Grounds are conveniently dealt with at this stage of our reasons because one of the questions underlying them - to which we have recently given a positive answer - is whether material relating to Peter's alleged position as a close associate of AVSGA could be section 15(6) material. 191During the Tribunal hearing on 31 March 2011, in the course of cross-examination by counsel for AVSGA (Mr Hughes QC), Mr Smith stated that he had conducted enquiries before 7 August 2009 on the question of a close association between Peter and AVSGA, but had not recorded the results of these inquiries in a document. When he was asked where they were recorded, counsel for the Commissioner (Mr Lynch) objected to this question. As Mr Oliver did in his written submissions, we will refer henceforth to this question as 'the first disputed question'. 192Mr Lynch appeared to accept that Mr Smith had indicated that the results of these inquiries were recorded in a database, but maintained his objection to further questioning. Mr Hughes then argued that if indeed these results were recorded in a database, AVSGA would be entitled to apply for a summons for production of a printout of them, to be added to the documents filed in the Tribunal under section 58 of the ADT Act. Mr Lynch responded that any such application would be resisted on the ground of public interest immunity. He also applied for a hearing, in the absence of the Appellants and their representatives, at which he could put before the Tribunal the Commissioner's reasons for objecting to the questions being put to Mr Smith. After this hearing took place, the Tribunal indicated to both parties, in open court, that it would disallow the first disputed question and its reason for so deciding was 'not public interest immunity'. 193During the hearing on 6 April 2011, Mr Hughes put to Mr Smith two further questions, which Mr Oliver in his submissions labelled the second and the third 'disputed questions'. They sought answers as to (a) whether Mr Smith believed that if, when investigating the matter of an undisclosed close association between Peter and AVSGA, he had regard to any Criminal Information, the Commissioner would not be required to disclose its existence or content; and (b) whether, in satisfying himself that there had been a breach of a condition of AVSGA's licence by reason of failure to disclose this alleged close association, he had had regard to material that the Commissioner had not provided to the Tribunal pursuant to section 58 of the ADT Act. 194Following objections by Mr Lynch, the Tribunal disallowed each of these questions, on the ground that they fell within the scope of its earlier ruling on the first disputed question. 195In his submissions to us, Mr Oliver argued that it could be inferred that the Tribunal's disallowance of the first disputed question was based on a finding that this question sought the disclosure of section 15(6) material, which would be in breach of section 29(3). The grounds for this inference were, he said, that the Tribunal indicated that this disallowance was not based on public interest immunity and that, if section 75(2) of the ADT Act had been relied on, the Appellants would have been given the opportunity to make submissions on the matter. 196Mr Oliver submitted in relation to each of the three disputed questions that the material to which each question referred could not have been section 15(6) material and was therefore subject to section 29(3), because the context in which Mr Smith was being asked about its use was not that of determining whether AVSGA was a fit and proper person to hold a licence. 197This submission must fail because, for reasons that we have just outlined, Criminal Information bearing on the question whether Peter was a close associate of AVSGA was capable of being section 15(6) material. This follows from the consideration that the question whether AVSGA was fit and proper to hold a licence was dependent, in part, on whether or not such a 'close association' existed. 198For these reasons, Appeal Grounds 6A(f), 14(d) (AVSGC), 14(e) (AVSGA), 20(a) (AVSGC) and 21(a) (AVSGA) have not been made out.

The meaning of 'disclose the existence of' in section 29(3) 199At certain stages of the proceedings at first instance, the Tribunal made procedural rulings resulting in the concealment of specific information from the Appellants, on the ground that to provide this information would or might result in the 'existence' of section 15(6) material being 'disclosed' to them in breach of section 29(3) of the SI Act. 200The Appellants claimed that this was the apparent basis of the following actions on the Tribunal's part: (a) at a hearing on 3 May 2010 in both proceedings, it refused to direct that they be provided with partially redacted copies of the Commissioner's statement of reasons for the revocation of the Appellants' licences; (b) at the hearing on 6 April 2011 to which we have just referred, it declined to give any reasons for disallowing the three 'disputed questions' put to Mr Smith; and (c) it conducted hearings on 19, 20 and 21 April 2011 at which the Commissioner, but not the Appellants, were present, without directing that the Appellants should be notified that these hearings were to take place. 201These matters were raised in Appeal Grounds 6A(b), 12 (AVSGC) and 12(a), (b) and (d) (AVSGA). 202The Appellants claimed that the Tribunal erred through not ruling as follows: (i) at the time of these events, both of the Appellants had become aware that there existed material which the Commissioner claimed to be section 15(6) material 'held' by the Tribunal; (ii) it was accordingly impossible that any step taken by the Tribunal would constitute 'disclosure' of the 'existence' of this material, such as would be prohibited by section 29(3); and (iii) each of the three actions outlined in the preceding paragraph constituted a breach by the Tribunal of its obligation under section 73(2) of the ADT Act to adhere to the rules of natural justice. 203The parties' submissions. Mr Oliver contended that at the relevant times the applicants in the AVSGC proceedings were aware of the existence of material claimed to be section 15(6) material within those proceedings because the Commissioner had made this known to them at an interlocutory hearing in July 2009. Mr Lynch did not dispute this. 204Mr Oliver claimed that for three reasons the applicants in the AVSGA proceedings were also aware at the relevant times of the existence of material claimed to be section 15(6) material within those proceedings. These reasons were as follows: (1) the notice of revocation of AVSGA's licence was drafted in a manner that would cause these applicants to infer that this was the case; (2) because none of the documents filed by the Commissioner under section 58 of the ADT Act 'went to the substance of' the Commissioner's case based on Peter being both a close associate and not fit and proper to hold a licence, the same inference would be drawn; and (3) at an open interlocutory hearing before the Tribunal on 14 August 2009, counsel for the Commissioner made a statement that gave good grounds for this inference to be drawn. 205This statement by counsel (Mr Lynch) was as follows: 'I don't intend to replicate the application I made yesterday, so at this stage we have no evidence to offer.' The application that he had made on the preceding day was an application in the AVSGC proceedings for certain material to be classified as section 15(6) material. 206Mr Oliver argued that in consequence of the applicants in both proceedings having been made aware of the existence of material claimed to be section 15(6) material, none of the three actions by the Tribunal of which the Appellants claimed could constitute a 'disclosure' under section 29(3)(b). His underlying proposition was, in essence, that it is not possible to 'disclose' to a person information of which that person has already been made aware. 207In support of this proposition, Mr Oliver cited three provisions from New South Wales statutes - the Independent Commission Against Corruption Act 1988, section 114(1)(b); the New South Wales Crime Commission Act 1985, section 29A(4)(b) and the Police Integrity Commission Act 1996, section 54(4)(b) - each of which appeared under the heading 'Disclosures prejudicing investigations' and was in the following terms:- A reference in this section to the disclosure of any information about a notice or summons includes a reference to:... (b) a disclosure of any information to a person from which the person could reasonably be expected to infer the existence or nature of the notice or summons or of the investigation to which it relates. 208He added that in section 29B(6) of the Australian Crime Commission Act 2002 (Cth), a similar provision could be found. Citing Pearce & Geddes, Statutory Interpretation in Australia (7th edn, 2011) at para [3.36], he submitted that all these provisions relating to the meaning of 'disclose' should be treated as relevant to the construction of this term in section 29(3) of the SI Act. 209Mr Oliver also relied on the following passage in Foster v Federal Commissioner of Taxation [1951] HCA 18; 82 CLR 606 at [11], relating to a provision of Commonwealth tax legislation requiring full and true disclosure of material facts by a taxpayer:- 11... In the present case it is urged for the commissioner that the taxpayer did not disclose to the commissioner the facts that the appeal was pending and that the company succeeded upon the appeal. But the commissioner, as the taxpayer must have known, was already aware of those facts and he was aware of them as facts having a direct relation to the assessment of the company in which the taxpayer was a shareholder. In my opinion it is not possible, according to the ordinary use of language, to "disclose" to a person a fact of which he is, to the knowledge of the person making a statement as to the fact, already aware. There is a difference between "disclosing" a fact and stating a fact. Disclosure consists in the statement of a fact by way of disclosure so as to reveal or make apparent that which (so far as the "discloser" knows) was previously unknown to the person to whom the statement was made. Thus the taxpayer could not add anything to the commissioner's knowledge with respect to the appeal. In my opinion in these circumstances it should be held that the failure of the taxpayer to repeat to the commissioner what he already knew did not constitute a failure to disclose material facts. 210Mr Lynch's written submissions included the contentions that the 'knowledge' of the 'existence' of material claimed to be section 15(6) material that the AVSGA applicants claimed to possess at the relevant times was 'more correctly described as a belief'; that the formation of such a 'belief', occurring through a process of inference, was irrelevant to the operation of section 29(3); and that the existence of any such belief by the applicants was insufficient to entitle the Tribunal to make any disclosure prohibited by section 29(3) without the approval of the Commissioner. He argued also that the passage cited by Mr Oliver from Foster was not applicable to the construction of the term 'disclose' in section 29(3) because the question before the High Court was whether the appellant taxpayer had made 'full and true' disclosure as required by the taxing statute. 211In his written submissions, Mr Lynch also argued that if the AVSGA applicants were correct in maintaining that at the relevant times they had sufficient knowledge of the existence of section 15(6) material to relieve the Tribunal of its obligation under section 29(3) not to disclose such material's existence, then the Tribunal's insistence that it should not make any order indicating that such material did exist inflicted no prejudice on them. Such an order would only have communicated to them a fact that they already knew. 212In oral submissions, Mr Lynch argued that in any case involving revocation of a licence in which an applicant for review received from the Tribunal (under section 58(2) of the ADT Act) a copy of reasons for the revocation that were patently inadequate and inferred from this that the Commissioner had claimed that section 15(6) material existed, this could not of itself constitute 'disclosure' under section 29(3) of the fact that such material existed, thereby enabling the Tribunal to take further steps acknowledging this fact without contravening section 29(3). The reason, he said, was that section 29(3) was premised on the fact that in this situation, inadequate reasons would have to be provided to an applicant. 213On this specific matter, Mr Lynch further submitted that a copy of a letter dated 17 September 2009 from the Crown Solicitor to the Registrar showed that in the AVSGA proceedings the Commissioner had taken the step that Mr Oliver argued for. He had both lodged in the Tribunal and served on the AVSGA applicants copies of the reasons relating to the revocation of AVSGA's licence that he did not claim to fall within section 15(6) and had lodged in the Tribunal a further statement of reasons for this revocation which he did claim to include section 15(6) material. 214After the appeal hearings, we confirmed from the Tribunal's file that the Commissioner had indeed taken these steps. 215In response to Mr Oliver's submission that the Tribunal should have given notice to the AVSGA applicants of the fact that hearings from which they would be excluded were to be held, and also of the dates of these hearings, Mr Lynch argued that even if this submission were correct, it could not be said that the applicants had suffered any prejudice through not having received notice. 216Both parties referred us to three authorities on the interpretation of section 29(3) itself: Gray, AVSGA (Appeal Panel) and Sleiman (Court of Appeal). 217In Gray, the relevant passages in McColl JA's judgment are at [103 - 106]:- 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. 218In AVSGA (Appeal Panel), this matter received extended discussion. The question to be determined was whether the Tribunal, in the AVSGA proceedings, erred at a directions hearing on 2 October 2009 in refusing to grant an application by the applicants for the following directions:- That the respondent by 5 pm on 7 October serve the applicant with a written notice: (a) Confirming the date or dates upon which any application was made by the respondent to the Tribunal for orders in these proceedings under s 59 of the Administrative Decisions Tribunal Act 1997 ('the Act'). (b) Further or alternatively, confirming the date or dates upon which any such application was made by the respondent to the Tribunal on or after 10 September 2009. (c) Confirming that the Tribunal has not in these proceedings made in respect of any document that was not held by the respondent on or before 15 July 2009, any order under s 59 of the Administrative Decisions Tribunal Act 1997 that the respondent not be required to lodge under section 58 of the Act a copy of that document. (d) Confirming that the Tribunal has not in these proceedings made in respect of any document that was not held by the respondent on or before 13 August 2009, any order under s 59 of the Administrative Decisions Tribunal Act 1997 that the respondent not be required to lodge under section 58 of the Act a copy of that document. 219It will be recalled that under section 59 of the ADT Act, an administrator may apply to the Tribunal for an order that he or she should not be required to lodge a copy of a document under section 58. 220We have already referred to the Appeal Panel's determination against the applicants on one matter raised in this application: namely whether material put before the Tribunal that the Commissioner did not 'hold' at the time of revocation of AVSGA's licence could be section 15(6) material. 221On the issue as to what constitutes 'disclosure' under section 29(3), the Appeal Panel summarised the Commissioner's argument at [36]:- 36 The Commissioner's submission both below and before the Appeal Panel is that the making of a s 59 application is in the nature of a confidential procedure available to the administrator and is not to be revealed to the review applicant, unless the administrator allows it. The submission is seen as reinforced by s 29(3) of the SI Act. Consequently the Tribunal must deal with any objection under s 59 without informing the review applicant. Directions that subvert that position are not permissible. 222The Panel's conclusions were set out at [48 - 62]:- 48 Meaning to be given to Section 29(3). Section 29(3) protects from 'disclosure' 'the existence' of the information protected by the provision. Neither of these words is defined. They should be given their natural meaning. 49 'Disclosure', ordinarily, connotes the revelation of information that is otherwise not known to the recipient. Campbell JA (Beazley JA, Hodgson JA concurring) said in Nakhl Nasr v New South Wales [2007] NSWCA 101 at [127]: 127 ... The essence of disclosure of information is making known to a person information that the person to whom the disclosure is made did not previously know: R v Skeen & Freeman (1859) Bell 97; 169 ER 1182 ("uncovering ... discovering ... revealing ... imparting of what was secret ... [or] telling that which had been concealed"); Foster v Federal Commissioner of Taxation (1951) 82 CLR 606 at 614-5 ("... a statement of fact by way of disclosure so as to reveal or make apparent that which (so far as the "discloser" knows) was previously unknown to the person to whom the statement was made"); R v Gidlow [1983] 2 Qd R 557 at 559 ("telling that which has been kept concealed"); Dun & Bradstreet (Australia) Pty Ltd v Lyle (1977) 15 SASR 297 at 299; A-G v Associated Newspapers Ltd [1994] 2 AC 238 at 248 ("to open up to the knowledge of others"); Real Estate Opportunities Limited v Aberdeen Asset Managers Jersey Limited [2007] EWCA Civ 197 at [78] ("the revelation of information for the first time"). 50 'Existence' is a word with a broad meaning. It is 'the state or fact of existing; being' (Macquarie Dictionary, 4th ed. 2005). 51 In our view the words 'disclose' and 'existence', when read in context, are limited by the object of those words, i.e. 'any criminal intelligence or other criminal history information'. The command in s 29(3) is addressed to whether any conduct of the Tribunal might reveal something of a substantive nature about the holding of information of that kind, or its contents. In our opinion, read together, and adopting some of the language used in the case-law, the words 'disclose ... the existence of [the specified information]', connotes the revealing or making apparent to the recipient of the fact that the Commissioner holds information of the specified type in connection with the review applicant in circumstances where that has not been made known already. 52 The express words do not go so far as to command the Tribunal not to make known a s 59 application. In our view, the actual words used should not be read so widely as to give rise to an 'implied repeal' of the ordinary requirements of procedural fairness. 53 In our view, the fact of the making of a s 59 application, its date, and whether the application was granted or refused (or otherwise dealt with) does not fall into the area of the implied repeal effected by s 29(3). 54 On the other hand, it follows (and is in line with Gray's case) that any possibility of substantive disclosure of the actual existence of protected information (or the nature of its contents) is controlled by s 29(3). 55 Accordingly, were the review applicant to move for disclosure of any particulars of the application, the Commissioner would have to be given the opportunity to indicate his attitude... 56 As will be seen, as a matter of law we do not think that s 29(3) applies to the Tribunal's ordinary practice of giving basic details of its proceedings such as the making of an ex parte application, the date of the application and its outcome. Issues such as these are, in our view, ordinarily to be dealt with by way of a case-specific suppression application under s 75(2). 57 Commissioner's Construction Not Applicable to this Case. If we are wrong in this conclusion, and the wider construction pressed by the Commissioner is correct, we do not think that this case is one which on its facts fits within that wider construction of s 29(3). 58 The difficulty in this case is whether any 'disclosure' of the 'existence' of the protected information has taken place. The Tribunal below, in its reasons, did not refer in this regard to the content of the statements of reasons, especially the first one. 59 That statement, which accompanied the notice of revocation, has been set out earlier in these reasons. The statement began by referring to the heads of power being exercised, most importantly ss 26(1A) and 15(1) (which together impose the duty to revoke if not a fit and proper person). Then, it referred to the power of the Commissioner to have regard to criminal intelligence information and other criminal history, setting out the material text of ss 15(6) and 15(7). 60 In our view, any notice of revocation that is silent in relation to the allegations it relies upon but then in its terms refers to ss 15(6) and (7) would be likely to be understood by the recipient as indicating that the Commissioner must have had regard to information of the kind to which ss 15(6) and 15(7) refer. The recipient would be likely to conclude that it was for that reason that no further particulars were given explaining the adverse assessment of character and reputation. 61 Furthermore, where there is a limited filing of material under s 58 that is silent in relation to the allegations it relies upon but then in its terms refers to ss 15(6) and (7), a review applicant in a security licensing setting would be likely to infer that information that is protected from disclosure is being relied upon, i.e. the kind of information to which ss 15(6) and (7) refer. 62 In our view, therefore, even on the Commissioner's construction the Tribunal would not be breaching the provision in simply informing a review applicant that a s 59 application has been received, and giving basic procedural information about the application. 223The Panel allowed the appeal and ordered as follows:- Direct the Registrar, once 42 days from the delivery of this decision has expired or earlier if the Commissioner agrees, to inform the applicants for review of the making of any application by the Commissioner for an order under s 59 and its date, and whether there has been an order and its date. 224This decision by the Appeal Panel, on which Mr Oliver placed significant reliance, was not the subject of any further appeal. 225In Sleiman (Court of Appeal), the relevant passages in the judgment of Sackville AJA are at [168], [193 - 194], [197 - 198] and [200 - 201]:- 168... 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 [emphasis in the original] 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 . 193 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. 194 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. 197 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. 198 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 [emphasis in the original] or content of the Criminal Intelligence. 200 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. 201 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. 226Discussion and conclusions. In our opinion, it is useful to consider first the proposition that disclosure, in the context of section 29(3), may as a matter of law be taken to have occurred solely by virtue of events from which an applicant for review could reasonably be expected to infer that the Commissioner has made a claim for the classification of material held by the Tribunal as section 15(6) material. 227In our opinion, the arguments and authorities that Mr Oliver put before us in support of this general proposition are to be preferred. Despite a submission to the contrary by Mr Lynch, we take this to be an important component of the decision in AVSGA (Appeal Panel), particularly in view of what the Panel said at [60 - 62]. 228We have scrutinised carefully the observations relevant to this proposition in Sackville AJA's judgment in AVSGA (Court of Appeal). The second sentence of paragraph [201] would appear to support it. But the last two sentences of paragraph [168] contemplate that events 'merely indicating in general terms' that the Tribunal is in possession of material not disclosed to an applicant 'may not necessarily "disclose the existence" of Criminal Intelligence for the purposes of s 29(3)(a) of the SI Act'. Neither this decision nor any other decision to which we were referred, except for AVSGA (Appeal Panel), addresses directly the proposition relating to section 29(3) that we are now considering. 229The question now to be resolved concerns the implications for the AVSGA proceedings of our acceptance of this general proposition. The authority on which this acceptance is principally based, AVSGA (Appeal Panel), was a decision in those proceedings. We treat is as establishing that the factors that it identified at [60] and [61] resulted in a 'disclosure' to the AVSGA applicants of a claim by the Commissioner that some of the material on which he relied fell within section 15(6). These factors were the service of a notice of revocation on AVSGA and the filing of material under s 58 following AVSGA's application for review, in circumstances where both the notice and the filed material were silent in relation to the allegations relied on and made reference to sections 15(6) and 15(7) of the SI Act. 230In consequence, any subsequent action by the Tribunal amounting to disclosure of this limited scope would not have been prohibited by section 29(3). To the extent that the Tribunal refused or failed to take such action out of concern not to infringe the prohibition in section 29(3), it erred in law. To this extent, Appeal Grounds 6A(b), 12 (AVSGC) and 12(a), (b) and (d) (AVSGA) have been made out. 231The question remains, however, whether a finding is warranted that the Tribunal denied procedural fairness to the AVSGA applicants, furnishing grounds for setting aside the Tribunal's decision in their proceedings. 232On this question, we endorse the position taken by Mr Lynch. Mr Oliver did not point to any specific prejudice suffered by the AVSGA applicants. In determining whether procedural unfairness has occurred, it is important to view the decision-making process 'in its entirety': see e.g. Kyriakou v Long [2014] NSWCA 308 at [18]. Having come to realise that the Commissioner must have claimed that section 15(6) material existed, the AVSGA applicants were in a position to make appropriate adjustments to the manner in which they conducted their case. 233They were able to infer, as Mr Oliver's submissions acknowledged, that the disallowance of the questions to Mr Smith was based on a conclusion that the answers would reveal what the Tribunal believed - in our view, correctly - to be section 15(6) material. Although, as we have concluded, the Tribunal should have informed the Appellants that hearings from which they would be excluded were to be held and indeed notified them of the dates of these hearings, it could not be said that they suffered any material prejudice through not having received this information. We have already mentioned the Commissioner's filing of redacted and unredacted reasons in the AVSGA proceedings. Accordingly, we are not persuaded that any unfairness occurred.

Whether any of the Tribunal's classifications of material as section 15(6) material were incorrect in law 234Appeal Ground 11, as we interpret it, raised this broad question. In its formulation, specific reference was made to Confidential Exhibits C6B (to the extent that it was disclosed to the Appellants) and C18 (which was disclosed in full). 235We agree with the Appellants that this is a question with which we must deal in this appeal. The Commissioner submitted that because we are bound by section 29(3)(b) of the SI Act, any hearing at which the content of material that the Tribunal had held to fall within section 15(6) would be given consideration should take place (unless he approved otherwise) in the absence of the Appellants, their representatives and the public. The Appellants assented to this proposition. On 25 August 2014, a hearing of this nature took place. 236In determining whether the items of documentary material that were tendered by the Commissioner, admitted into evidence by the Tribunal, classified as section 15(6) material and accordingly not disclosed to the Appellants (except, as just mentioned, for parts of Exhibit C6B and for Exhibit 18) were correctly so classified, we have taken into account the rulings regarding the following aspects of section 15(6) and 29(3) set out earlier in this decision: (a) the meaning and scope of 'Criminal Information'; (b) the criteria for determining whether Criminal Information is 'held in relation to' a licence applicant or holder; (c) whether section 29(3) can apply only to material to which the Commissioner actually had regard in making his determination: (d) whether, and if so in what circumstances, material bearing on the question of 'close association' may be section 15(6) material. 237In our judgment, two such items, each of which formed part of Exhibit C6B but was not included in the disclosed part, should not have been so classified. Because we have reached this conclusion, section 29(3) of the SI Act does not require us to conceal their content. We will identify them in a similar manner to that employed in order to identify the items within this exhibit for which the Commissioner approved disclosure to the Appellants. 238The first of them (in point of time) is a report headed New South Wales Police Service and dated 7 October 2000. The last three digits of its number are 181. It contains a police officer's description of a fight between intoxicated persons seeking to gain entry to a named hotel in Sydney and security officers barring entry. Two of these officers are labelled 'victims'. In its only references to Peter Sleiman, the report identifies him as a witness to the fight. None of the other Appellants is mentioned. The event reported predates by several years the events of primary significance in this case. Even though the participants in the fight may have engaged in criminal activity, we do not see how this information about Peter's involvement as a witness only could be said to be Criminal Information 'held in relation to' him within the meaning of section 15(6). 239The second of these items is a report also headed New South Wales Police Service and dated 25 January 2006. The last three digits of its number are 154. It contains an account of a police officer's discussion with Peter regarding his ownership of a named hotel, his engagement of a named firm to provide security services at the hotel and the relationship (which included the sharing of premises) between this firm and 'AVS'. No allegation of criminal activity is made and there is nothing to suggest that the owner of (or anyone else involved with) this firm was engaged in or suspected of criminal activity. While Peter and 'AVS' are referred to, there is no mention of Tony. Again, we do not see how the information contained in this report could be characterised as Criminal Information 'held in relation to' Peter, AVSGA or AVSGC. 240For these reasons, both of these items of admitted evidence should have been disclosed to the Appellants. But in our judgment this error on the Tribunal's part is insufficient to justify appellate interference. Our reasons are as follows: (a) this evidentiary material does not cast any light on the questions at issue in these proceedings; (b) no reference was made to it in the Tribunal's reasons; (c) accordingly, the Appellants did not suffer any prejudice on account of its having been admitted into evidence without being disclosed to them. 241We turn now to the Appellants' arguments based on the content of the material within Confidential Exhibit C6B that was disclosed to the Appellants, despite being held to be section 15(6) material, following approval of disclosure by the Commissioner. Because these arguments were made within a section of the Appellants' written submissions marked 'Confidential', it is appropriate that the ensuing discussion of them should be the subject of an order under section 75(2) of the ADT Act prohibiting its release to the public. 242[Not for publication]. 243[Not for publication]. 244[Not for publication]. 245[Not for publication]. 246[Not for publication]. 247[Not for publication]. 248[Not for publication]. 249[Not for publication]. 250For the foregoing reasons, the Appellants' arguments relating to the disclosed part of Exhibit C6B do not establish grounds for appellate interference with the Tribunal's decision. 251The final item of evidence to be considered in the present context is Confidential Exhibit C18. As with Exhibit C6B, the Appellants' arguments were made within a section of their written submissions marked 'Confidential'. It is therefore appropriate again that the ensuing discussion of them should be the subject of an order under section 75(2) of the ADT Act prohibiting its release to the public. 252[Not for publication]. 253[Not for publication]. 254[Not for publication]. 255[Not for publication]. 256[Not for publication]. 257[Not for publication]. 258[Not for publication]. 259[Not for publication]. 260[Not for publication]. 261For the foregoing reasons, the Appellants' arguments relating to Exhibit C18 do not establish grounds for appellate interference with the Tribunal's decision. 262Our decision with regard to Appeal Ground 11 is therefore that while it has been made out to a limited extent, it does not provide a basis for disturbing the Tribunal's decision.

The constitutional validity of section 29(3) 263We have reserved this topic for discussion at a relatively late stage of these reasons because the issues arising are more easily understood after specific aspects of section 29(3) have been investigated and explained. 264The Court of Appeal decision. In the case that we have called Sleiman (Court of Appeal), at [206 - 232], Sackville AJA discussed and rejected an argument by the applicants in the AVSGC proceedings that section 29(3) of the SI Act was constitutionally invalid. In his judgment, his Honour referred to these appellants collectively as 'AVS'. 265At [206], he set out the terms of paragraphs 2 and 3 of the notice under section 78B of the Judiciary Act 1903 (Cth) that those appellants had filed:- 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.) 266At [207 - 209], his Honour summarised the key ingredients of the appellants' argument on this matter as follows:- 207 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 Information 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 Information, to publish reasons that are, at best, incomplete and, at worst, positively misleading. In all cases where the existence of Criminal Information 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. 208 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. 209 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. 267At [214], Sackville AJA formulated 'five propositions of significance' deriving from the High Court's judgments in Kirk v Industrial Court (NSW):- 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]). 268Having rejected (at [218]) a contention by the Attorney General (intervening on this constitutional question) that the question was 'premature', Sackville AJA ruled at [219] that 'The principles in Kirk do not... 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 support of this proposition, he cited dicta from the judgments of Hayne and Heydon JJ in South Australia v Totani [2010] HCA 39; 242 CLR 1 at [195] and [269]. At [223], he pointed out (a) that nothing in section 29(3) or in any other provision of the SI Act or the ADT Act denied the power of the Supreme Court to grant relief in respect of jurisdictional error by the Tribunal (including its Appeal Panel) and (b) that the ADT Act in fact both conferred a right of appeal from decisions of the Appeal Panel to the Supreme Court and explicitly preserved the Court's power, in the exercise of its original jurisdiction, to review decisions of the Tribunal. 269His Honour's observations in the next two paragraphs ([224] and [225]) provided the basis on which Mr Oliver, in the present appeal, argued that we should not treat the Court of Appeal's decision as binding upon us:- 224 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 Information 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. 225 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. 270His Honour then gave (at [226 - 231]) the following reasons for rejecting the appellants' claim of constitutional invalidity:- 226 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 Information 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 227 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. 228 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. 229 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. 230 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. 231 For these reasons, the constitutional challenge fails. 271The parties' submissions. In the present proceedings, the Appellants raised the following questions of law in their Notices of Appeal:- (1) whether the Tribunal erred in law in failing to hold that section 29(3) exceeded the legislative power of the NSW Parliament, either generally or in its application in particular circumstances (Ground 3); (2) whether by virtue of such error it treated this provision as requiring it to disregard its duty of procedural fairness in a number of specified respects (Ground 3A, as it appeared in different formulations in the two Further Amended Notices of Appeal); and (3) if the question in Ground 3 was answered to any extent in the affirmative, whether, and if so to what extent, it was permissible and necessary to read down section 29(3) so as to modify or repeal the Tribunal's duties and discretionary powers in determining an application for review of a decision by the Commissioner to revoke a licence under the SI Act (Ground 4). 272Mr Oliver advanced the following line of argument:- (a) In determining an application for review of a decision by the Commissioner revoking a licence under the SI Act, the Tribunal was required by section 29(3) to determine whether any evidentiary material placed before it was section 15(6) material. (b) Since the existence and content of any material that it held to fall in this category had to be withheld from the review applicant under section 29(3), the making of such a ruling (unless the Commissioner approved disclosure) would bring about a denial of procedural fairness. (c) Any unlawful denial of procedural fairness amounted to jurisdictional error (as was held, for instance, in Re Refugee Tribunal; Ex parte Aala [2000] HCA 57; 204 CLR 82 at [59], [170] and [210]). (d) Since (unless the Commissioner approved disclosure) the Tribunal's published statement of reasons would necessarily omit any reference to the existence or content of any material that had been classified as section 15(6) material, it would conceal any error on the Tribunal's part in making such a classification. (e) In addition, such a statement might give the impression that it contained all of the Tribunal's reasons, when this was not the case. (f) Assuming the validity of section 29(3), the Supreme Court, if called on to review the Tribunal's decision for jurisdictional error, would therefore have to base its review on an incomplete, if not also positively false and misleading, statement of the ADT's reasons. 273Relying on a line of authority stemming from the decision in Kirk, Mr Oliver contended that this outcome was impermissible under the Constitution. The reasons for this were that section 29(3) gave rise to an 'impairment' of the Supreme Court's statutory power and inherent jurisdiction to grant relief for jurisdictional error by the Tribunal and 'enlisted' this Court to affirm decisions of the Tribunal in a manner that was 'incompatible with the institutional integrity that is one of the Supreme Court's defining characteristics'. 274Mr Oliver's explanation as to why we should not consider ourselves to be bound on this matter by the decision in Sleiman (Court of Appeal) stemmed from two paragraphs in that decision - [224] and [225] - to which we have already drawn attention. He said that in the present proceedings AVSGC and AVSGA were making three submissions (outlined in those two paragraphs) that according to Sackville AJA the appellants in the Court of Appeal proceedings did not make. 275These three submissions now being made were as follows: (1) in a case in which the Tribunal had taken section 15(6) material into account in rejecting an application for review of a revocation decision and therefore did not publish full reasons, it could not be assumed that the Tribunal would necessarily prepare unpublished reasons which might, upon scrutiny, reveal that it had made a jurisdictional error; (2) in such a case, section 29(3) would prevent the Supreme Court from requiring the Tribunal to produce to the Court the full reasons for its decision; and (3) if the Court sought to impose such a requirement, the Tribunal would be excused from complying with it. 276In seeking to substantiate these three submissions, Mr Oliver argued that the only provisions in the ADT Act imposing a duty on the Tribunal to give reasons for its decisions were sections 89(3) and 117. Because the latter provision was applicable only to decisions of an Appeal Panel, it was not relevant in circumstances where a party sought review for jurisdictional error of a first instance decision. Under the former provision, only a party could require written reasons for such a decision to be provided and any application for this to be done had to be made within 28 days of the party's receipt of notice of the decision. In addition, section 127(3) of the ADT Act, stated that members and former members of the Tribunal could not be required to give evidence to a court in relation to any proceedings in the Tribunal. 277The following consequences ensued, according to Mr Oliver:- (a) when a first instance decision affirming the revocation of a licence under the SI Act was based to any degree on material that the Tribunal had classified as section 15(6) material, the review applicant could not obtain a full set of reasons under section 89(3) unless the Commissioner consented to disclosure of this material; (b) after 28 days had elapsed following notification of the decision to the parties, neither of them could apply for written reasons (redacted or otherwise); (c) if no such application was made, the Tribunal might never prepare reasons (redacted or otherwise) because it would not be subject to any duty to do so; (d) on account of section 127(3) of the ADT Act, the member(s) of the Tribunal responsible for the decision could not be compelled to give evidence about the reasons for it; and (e) accordingly, the Supreme Court, having no independent power to require that a full set of reasons be prepared and supplied to it, would be left in the position of having to conduct its review for jurisdictional error on the basis of reasons that might be incomplete, even if they appeared to be complete. This was a distinctly less satisfactory situation, because of the misleading nature of such reasons, than one in which the decision-maker was not bound to furnish reasons and in fact did not furnish any reasons at all. 278The reference, in Mr Oliver's submissions, to the unconstitutionality of 'enlisting' a Court to affirm the decisions of the Tribunal was based on the High Court's use of this terminology in South Australia v Totani [2010] HCA 39; 242 CLR 1. It is sufficient here to quote the following extract from a passage in French CJ's judgment (at [82]) that Mr Oliver cited:- [The relevant legislation] impairs the decisional independence of the Magistrates Court from the executive in substance and in appearance in areas going to personal liberty and the liability to criminal sanctions which lie at the heart of the judicial function. I agree with the conclusion of Gummow J, Crennan and Bell JJ and Kiefel J that s 14(1) authorises the executive to enlist the Magistrates Court to implement decisions of the executive in a manner incompatible with that Court's institutional integrity. I agree also with the conclusion reached by Hayne J about the operation of s 14(1) in permitting the executive to enlist the Magistrates Court for the purpose of applying special restraints to particular individuals identified by the executive as meriting application for a control order and the repugnancy of that function to the institutional integrity of the Court. 279In response to the proposition that a failure by the Tribunal to prepare full reasons for a decision of this nature and to supply such reasons to the Commissioner was highly unlikely, Mr Oliver maintained that the mere possibility that the Tribunal might not prepare or supply reasons was sufficient to render section 29(3) unconstitutional. He relied on dicta of the High Court in Wainohu v State of New South Wales [2011] HCA 24; 243 CLR 181. Here the High Court, by majority, struck down NSW legislation requiring declarations as to whether an organisation was a 'declared organisation' (on grounds of engaging in criminal activities) to be made by an 'eligible judge' of the Supreme Court, without there being any requirement for reasons to be given. The majority held that on account of the absence of this requirement, the legislation purported to confer on the judges of a State court administrative functions that substantially impaired its essential and defining characteristics as a court. 280The dicta on which Mr Oliver relied were as follows:- The fact that the eligible judge might choose to provide reasons for his or her decision does not answer the constitutional question raised by the Act. (French CJ and Kiefel J, at [69]) The significance to be attached to the Act's denial of a duty to give reasons for deciding whether to make or revoke a declaration is not reduced by attempting some prediction of whether, despite the language of s 13(2), judges would nonetheless be likely to give reasons. Because there is no duty to do so, the possibility that a declaration would be made or revoked and no reasons given for the decision is not to be dismissed from consideration as some remote or fanciful possibility. (Gummow, Hayne, Crennan and Bell JJ, at [103]) 281In responding, Mr Lynch argued first that we should not entertain this claim of constitutional invalidity, at least without first granting leave, because it had not been raised before the Tribunal or determined by it in either of the decisions under appeal. 282In reply, Mr Oliver pointed out that at the time of the Tribunal hearing, the Tribunal appeared to lack jurisdiction to rule upon any question as to the validity, under the Commonwealth Constitution, of a NSW statutory provision. This was by virtue of the Court of Appeal's decision in Attorney General (NSW) v Radio 2UE Sydney Pty Ltd [2006] NSWCA 349. But in a more recent decision, Sunol v Collier [2012] NSWCA 14, the Court adopted a different view. At [20], Basten JA, delivering the judgment of the Court, said:- 20 Contrary to the suggestion in Radio 2UE at [76], a decision of the Tribunal in respect of a particular matter may depend upon a view about the constitutional validity of State legislation, but that opinion is not registered as a judgment, nor is it enforceable as such against any person. If the opinion led the Tribunal to decline to make an order, the unsuccessful party might challenge that result by seeking in the Supreme Court an order in the nature of mandamus, or a declaration as to the constitutional validity of the law sought to be enforced. If the Tribunal makes an order, on the basis that the law was indeed valid, the other party, being unsuccessful, could challenge the order by seeking to have it set aside on the ground that the law which supported it was constitutionally invalid. In each case, the Tribunal acted on the basis of an opinion as to the validity of the law in question, but its decision was not in any legal sense determined by that opinion. It did not have jurisdiction to determine the question: the validity of the order will depend upon the conclusion of the Supreme Court (and if challenged, the High Court) as to the correct answer to the constitutional question. 283Mr Oliver relied also on a dictum of Basten JA in another decision of the Court of Appeal, B & L Linings Pty Ltd v Chief Commissioner of State Revenue [2008] NSWCA 187; 74 NSWLR 48, at [125]. With reference to section 119 of the ADT Act, which provided for a right of appeal on a question of law from an Appeal Panel of the Tribunal to the Supreme Court, his Honour said:- 125 The third step required by s 119 is to identify any "question of law" upon which the appeal is brought. It is not necessary that the answer to the question of law constitutes the ultimate decision of the Tribunal, so long as it is a question material to the decision: see Health Care Complaints Commission v Karalasingham [2007] NSWCA 267 at [14]-[16]. 284A second preliminary submission by Mr Lynch was that the Court of Appeal's ruling on constitutionality in Sleiman (Court of Appeal) was res judicata between the parties to these appeals and created an issue estoppel between them. 285In reply, Mr Oliver pointed out that two of the present appellants, AVSGA and Tony, were not parties to the appeal proceedings in Sleiman (Court of Appeal) and therefore could not be affected by the doctrine of res judicata. He argued also that because the 'concessions' of the appellants in those proceedings that Sackville AJA outlined at [225] (see above at [269]) were not made in the present proceedings, there was also no issue estoppel against AVSGC. 286Mr Lynch referred also to the fact that AVSGC and Peter had applied unsuccessfully for special leave to appeal to the High Court against the Court of Appeal's ruling on the constitutionality of section 29(3) (see AVS Group of Companies Pty Limited & Anor v Commissioner of Police & Anor [2011] HCATrans 239). Mr Oliver's response was that a refusal of special leave by the High Court did not constitute a determination that the point sought to be agitated was without merit. 287A further submission of Mr Lynch was that because an applicant for judicial review of a decision of the Tribunal will inevitably seek written reasons under section 89(3) of the ADT Act, such reasons will, from a practical point of view, be prepared in each case and made available to the applicant. 288Mr Oliver pointed out, however, in his submissions in reply that by virtue of the express reference to reasons in section 29(3)(a), any such reasons could not include section 15(6) material in the absence of approval by the Commissioner. 289Mr Lynch relied also on the existence of two subordinate provisions relating to judicial review proceedings in the Supreme Court of a decision by a 'public authority' or 'public body': namely, paragraph 23 of Practice Notice SC CL 3 and rule 59.9 of the Uniform Civil Procedure Rules ('the UCPR'). These respectively provided for the Court to order, or a notice to be served, on the authority or body requiring it to furnish to the plaintiff a statement of its reasons for the decision. 290In this context, Mr Lynch cited a Supreme Court case, Whalley v Commissioner of Police [2003] NSWSC 273. The Court there held that because a then existing practice note containing a provision comparable to paragraph 23 of SC CL 3 was based on sections of the Supreme Court Act 1970 such as section 76A (which empowered the Court to 'give directions... for the speedy determination of the real questions between the parties'), its validity was not open to challenge. 291Mr Oliver's arguments in reply were as follows: (a) since once more the party receiving the reasons under paragraph 23 or rule 59.9 would be the applicant for review, no section 15(6) material could be included in them; (b) it could not be assumed that the Tribunal was a 'public authority' or 'public body' within the meaning of these provisions; and (c) the decision in Whalley did not go so far, understandably, as to rule that a practice note could override a specific statutory prohibition such as section 29(3) imposed. 292Discussion and conclusions. In accordance with the principles stated by Basten JA in Sunol v Collier [2012] NSWCA 14, the ADT did not, and the Civil and Administrative Tribunal does not, have jurisdiction to determine the validity of section 29(3) of the SI Act under the Commonwealth Constitution. But our decision in these appeal proceedings should, as we understand his Honour's exposition, take account of our opinion on this question. The correctness of this decision may (to quote from this exposition) 'depend upon the conclusion of the Supreme Court (and if challenged, the High Court) as to the correct answer to the constitutional question'. 293We agree with Mr Oliver, for the reasons advanced by him, that (a) we should deal with this question (without any necessity of first granting leave) even though it was not raised before the Tribunal and (b) the principles of res judicata and issue estoppel do not preclude its being argued before us by AVSGA and by Tony. We do not need to decide whether AVSGC and Peter are barred by these principles. 294We have concluded, however, that insufficient grounds have been advanced to warrant acting on an opinion contrary to that expressed by the Court of Appeal. 295Our principal reason for so concluding is that, as we interpret Sackville AJA's judgment, he did not treat the appellants' 'concessions' described by him at [224] and [225] as essential to his ruling. At [229 - 230], his Honour rejected their contention (summarised at [227]) that by virtue of r 6.12A (which has since been repealed, with its contents absorbed into r 59) of the UCPR, the Supreme Court could obtain only an incomplete version of the Tribunal's reasons in any case in which it had taken account of section 15(6) material and the Commissioner had not approved disclosure of this material. The gist of his Honour's response to this contention was that r 6.12A did not provide the only means whereby the Court might obtain access to the reasons for decision. This was because, under both the Civil Procedure Act 2005 ('the CP Act') and the UCPR the Court had express powers to make such orders and give such directions as it thought fit 'to facilitate the just [our emphasis], quick and cheap resolution of the real issues in the proceedings', whether or not these orders and directions were consistent with the Rules. 296On account of these considerations, Sackville AJA made the following emphatic pronouncement at [230]:- It cannot be assumed that the Supreme Court will allow procedural requirements to frustrate the exercise of its jurisdiction to review for jurisdictional error. 297A further important aspect of Sackville AJA's reasoning on this topic is that in the last sentence of paragraph [226] he envisaged receipt by the Supreme Court of 'full reasons... even if they are confidential'. 298One immediate implication of these statements by his Honour is that r 59.9, to which Mr Lynch adverted, cannot be regarded as setting out the full scope of the Court's powers to require that reasons be prepared and furnished by a tribunal or other body whose decision is the subject of review. That rule, as Mr Oliver pointed out, envisages provision of reasons to the applicant for review, not to the Court. It may also be - though we are doubtful about this - that he was correct in submitting that the Tribunal is not a 'public authority' within the scope of the Rule. But if in the circumstances the order that will best give effect to the 'just' exercise by the Court of its jurisdiction to review is an order or direction to the Tribunal both to prepare reasons (if it has not already done so) and provide them to the Court (though not the applicant), such an order is clearly within its broad powers. The legitimacy of such an order is all the more manifest because by virtue of r 59.4 of the UCPR the Tribunal will be a party to the review proceedings. 299Furthermore, the Court may, according to Sackville AJA, receive those reasons under conditions of confidentiality. This observation by him implies clearly that in his opinion the provision of full reasons to the Court by the Tribunal would not offend section 29(3), even if the Commissioner's approval to the disclosure of any section 15(6) material within them was not forthcoming. 300These features of Sackville AJA's reasoning are sufficient, in our opinion, to justify our conclusion that there are no proper grounds for treating his decision on this matter as distinguishable in the present proceedings, even though certain 'concessions' made by the appellants in the Court of Appeal were not made in these proceedings. 301In the remainder of this discussion, we will refer to three cases that were not cited by the parties in the present context or at all, but which operate, in our opinion, to confirm this conclusion. 302The first of these, QR v Commissioner of Police, New South Wales Police (GD) [2005] NSWADTAP 59, is a decision by an Appeal Panel of the ADT. Mr Oliver relied on this decision, but not in the course of making submissions on constitutionality. It involved an application for review of a decision by the Commissioner refusing to grant a licence under the SI Act to the applicant, 'QR'. The Commissioner, relying on sections 15(1)(a) and 15(3), based his refusal on his opinion that the appellant was not a fit and proper person to hold a licence and that a grant of the licence would be contrary to the public interest. At the time, this Act contained section 15(6) and (7), but not section 29(3). 303The Tribunal, relying on section 75(2) of the ADT Act, conducted two hearings in QR's absence. QR was not aware that the second of these hearings took place until he read the Tribunal's decision. At those two hearings, the Tribunal received evidence from the Commissioner which it held to be section 15(6) material and ruled that this evidence should not be disclosed. 304The Tribunal explained the basis of this ruling as follows (QR v Commissioner of Police, New South Wales Police [2005] NSWADT 122 at [10]):- 10 Section 15(7) of the Act states that the Commissioner is not 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) of the Act. After considering the evidence presented by each party, I consider that this provision is relevant to QR's application. As the Tribunal stands in the shoes of the Commissioner, it follows that the Tribunal similarly has no obligation to provide reasons in those circumstances. It is my view that in the circumstances of this matter no such reasons should be given. 305In its decision affirming the Commissioner's refusal to grant a licence to QR, the Tribunal outlined certain grounds of refusal that had been ventilated in the open hearing and referred to the existence of the other grounds that it had dealt with in the closed hearings. 306One of the grounds of QR's appeal was the Tribunal's omission to give full reasons. In its decision, the Appeal Panel described this omission as follows (at [11]):- 11 As can be seen, the Tribunal relied on material withheld from the appellant and evidence taken in his absence in reaching its decision but has provided no reasons for doing so or explaining the weight that was given to it, either by means of published, generally available reasons or by means of confidential reasons, made available only to the Commissioner and lodged confidentially on the Tribunal file. 307The Appeal Panel's discussion of this ground of appeal included the following passages (at [16], [23 - 24], [29 - 30]):- 16 Closed Hearings. We agree that the Tribunal should, in reviewing the Commissioner's exercise of discretion, adopt an approach which maintains the confidentiality of any information upon which the Commissioner has relied if that is the wish of the Commissioner... It is the case that the provision also dispenses the Commissioner from the requirement to give reasons. While, generally speaking, the Tribunal 'stands in the shoes' of the Commissioner when engaged in the task of merits review, it does not follow that the Tribunal is also dispensed from the obligation to give reasons. 23 Adequacy of Reasons. It will be necessary, as the above exploration of the authorities reflects, for courts and tribunals sometimes to receive evidence on a restricted or confidential basis. The fact that a hearing is held in camera does not of itself justify a decision, or the reasons for it, being withheld from disclosure: David Syme Co Limited v General Motors-Holden's Limited [1984] 2 NSW LR 294 at 299-300. 24 Often it will be possible for the Tribunal to expose the entirety of its reasoning process to all parties even though some material has been received confidentially, that is with one party excluded from the process. On other occasions, it may not be possible to deal with the material received in closed session without exposing that material to some extent. 29 In David Syme at 301 the Court of Appeal also noted that if it is not possible for a Tribunal to give reasons without breaching the confidentiality which it sought to protect through receiving evidence in closed session, it should at least identify the confidential material "by some neutral description and set out in a document directed to be sealed up with an appropriate endorsement and placed with the papers". Once a decision is made to exclude a party from a hearing and admit confidential material, the obligation to provide reasons heightens and the probative force of that evidence must be particularly cogent if it is to be acted on: see Pochi [Pochi v Minister for Immigration and Ethnic Affairs (1979) 26 ALR 247] at 274. 30 Conclusions. It is clear, we consider, that the Tribunal erred in law in the following respects:... (b) Its only reasons were the published, public reasons. They do not explain why the material taken into account justified the Commissioner's decision, making it the correct and preferable one. The Tribunal clearly explains its reasons for not adopting the course of including its reasons in the public decision. Nonetheless its duty to expose its reasoning process remained. Where it is appropriate to preserve the confidentiality of material before the Tribunal, this should be done through a confidential set of reasons, committed to the file of the Tribunal and made available to the administrator, in this case the Commissioner. One of the reasons for creating an external review tribunal of the kind this Tribunal represents is to assist in fostering a culture of good administrative decision-making. The administrator is always assisted by having reasons from the Tribunal which expose its way of evaluating material which will often be the same material considered by the administrator. This is consistent with the objects of the Tribunal Act as set out in section 3(f) and (g). 308We regard these aspects of the Appeal Panel's decision as contradicting Mr Oliver's proposition that the only duty imposed on the Tribunal to provide reasons for a decision at first instance under the SI Act in which it has taken account of section 15(6) material is the duty expressly imposed by section 89(3) of the ADT Act when a party has requested reasons within the specified period of 28 days. The Appeal Panel in QR treated as an error of law the Tribunal's failure to prepare confidential reasons, in addition to those that it made available to both the parties and the public, and to place them in a file to which the Commissioner would have access. It described the duty to prepare confidential reasons as a 'heightened' duty. 309Support for this decision is provided, at a more general level, by the Court of Appeal case of Campbelltown City Council v Vegan [2006] NSWCA 284; 67 NSWLR 372. We refer particularly to a lengthy discussion by Basten JA, at [102 - 120], of the circumstances in which an administrative tribunal, or other administrative body, might be subject to an implied duty to give reasons, despite the existence of a common law principle (confirmed by the High Court in Public Service Board v Osmond (1986) 159 CLR 656) that these bodies were under no such duty. 310The facts of the case were outlined in the headnote as follows:- Mrs Vegan, employed by the Appellant, Campbelltown City Council, was injured in the course of her employment as a child-care worker. She was assessed by an approved medical specialist, appointed under the Workplace Injury Management and Workers Compensation Act 1998 (NSW) and provided with a medical assessment certificate. An Appeal Panel revoked the certificate and issued a new certificate which assessed her percentage of permanent loss at a higher rate. The Council brought proceedings for judicial review of the Appeal Panel's decision which Wood CJ at CL dismissed. The Council appealed against this decision. 311An issue arising in the appeal was whether the Appeal Panel was under a duty to give reasons for its decision. The Workplace Injury Act imposed an express duty of this nature on the medical specialist who provided the initial assessment, but not on the Appeal Panel. In allowing the appeal, the Court of Appeal held that the Panel was under an implied duty to give reasons and that its failure to do so constituted an error on the face of the record, providing grounds for its decision to be set aside on judicial review. 312The following extracts from the judgment of Basten JA (with whom McColl JA agreed) are relevant to the present context:- 104 The differential treatment of the exercise of judicial, as opposed to administrative, power (like the constrained bases for judicial review of administrative action) reflects the separation of powers, even within the State constitutional system. If the efficacy of subsequent legal processes were the test of the need for reasons, the distinction between a right of appeal and a right of judicial review might not be decisive. Indeed, at least if the appeal is by way of rehearing, a different logic might apply. Thus in Osmond v Public Service Board of New South Wales [1984] 3 NSWLR 447, in this Court, Priestley JA, who accepted an obligation to provide reasons, distinguished the earlier decision of the Court in Taylor v Public Service Board [1975] 2 NSWLR 278; (1976) 137 CLR 208 on the basis that Mr Taylor had a right of appeal by rehearing, whereas Mr Osmond did not: at 485. His Honour stated: "It is the fact that this is the only (and limited) way of testing the administrative decision made against him that is one of the necessary factors in my coming to the conclusion that natural justice requires the furnishing of reasons to him. Where a right of appeal exists as in Taylor's case it may well be that natural justice, as the law has so far developed, does not require reasons to be given as the officer concerned is not debarred from a further hearing of his case in which the absence of reasons will be immaterial." 105 Nevertheless, the current position, often restated, is that the justification for an obligation to give reasons is derived from the right of appeal granted in relation to an exercise of judicial power: see Pettitt v Dunkley, supra at [22]. Reliance is sometimes also placed on the principle "that justice must not only be done but it must be seen to be done": Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 278E (McHugh JA), and also Housing Commission of NSW v Tatmar Pastoral Co Pty Ltd [1983] 3 NSWLR 378 at 386C (Mahoney JA). Why a breach of this obligation constitutes an appellable error, rather than (in appropriate cases) permitting an order in the nature of mandamus has not been fully explored, but it may be analogous to a breach of procedural fairness in an administrative law context. In any event, this principle gives only limited assistance with respect to the distinction between judicial and administrative decision-making. There are well-known policy reasons in favour of reasoned administrative decisions: see, eg, Osmond v Public Service Board [1984] 3 NSWLR 447 at 463 (Kirby P); and see Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Palme (2003) 216 CLR 212 at [105] (Kirby J). 106 It is clear that the High Court in Osmond treated the general law principle as covering not merely administrative officers, but also administrative tribunals: 159 CLR, 662-663. Although the authorities upon which Gibbs CJ relied in Osmond may no longer be as definitive as they once were (see, eg, R v Secretary of State for the Home Department; Ex parte Doody [1994] 1 AC 531), Osmond remains the law in this country. The difficulties which arise when pursuing judicial review in the absence of reasons, articulated by Dixon J in Avon Downs Pty Ltd v Federal Commissioner of Taxation (1949) 78 CLR 353 at 360, cannot, by themselves, provide a justification for implying an obligation to give reasons. The classification of the functions of the tribunal as administrative or judicial therefore remains an important element in the exercise. 107 The Workers Compensation Commission was held not to be a "court of a State" for the purposes of the conferral of judicial power pursuant to s 39(2) of the Judiciary Act 1903 (Cth) in Orellana-Fuentes v Standard Knitting Mills Pty Ltd (2003) 57 NSWLR 282, [111]-[114] (Ipp JA, Spigelman CJ and Handley JA agreeing). 108 To similar effect, in Trust Company of Australia Ltd v Skiwing Pty Ltd [2006] NSWCA 185, this Court held that the Administrative Decisions Tribunal was not a "court of the State" for the purposes of a conferral of Commonwealth judicial power pursuant to s 86(2) of the Trade Practices Act 1974 (Cth). However, the Chief Justice noted that a different categorisation may be appropriate in different contexts. In Skiwing the context required attention to the scope of Commonwealth judicial power under Chapter III of the Constitution: Spigelman CJ at [17]. For the purposes of State law, a blurring of the edges and the possibility of different categorizations for different purposes may be accepted. Thus, a number of State tribunals have been held to be "courts" for the purposes of the Suitors' Fund Act 1951 (NSW): see, eg, Australian Postal Commission v Dao (No. 2) (1986) 6 NSWLR 497. Ultimately the question must be approached as one of statutory construction, always acknowledging that the principle of Osmond has not been abandoned or diminished. 109 There are two reasons for thinking that Osmond does not apply in the present circumstances. First, Osmond concerned administrative decision-making and not to the exercise of judicial power. As will be noted further below, the assessment of permanent impairment undertaken by the Appeal Panel involves the application of a statutory test, by which legal rights as between an employee and employer are determined. Accordingly, it is an exercise in the nature of a judicial function, whatever the precise name or status of the Appeal Panel itself: see e.g., in a constitutional context, the indicia of judicial power discussed in Brandy v Human Rights and Equal Opportunity Commission (1995) 183 CLR 245 at 256-259 (Mason CJ, Brennan and Toohey JJ) and 267-269 (Deane, Dawson, Gaudron and McHugh JJ); and see Luton v Lessels (2002) 210 CLR 333 at [21]-[24] (Gleeson CJ, McHugh J agreeing), [63]-[76] (Gaudron and Hayne JJ), [123]-[131] (Kirby J) and [189] (Callinan J); and in this Court, Trust Company of Australia Ltd v Skiwing Pty Ltd [2006] NSWCA 185 at [18]-[29] (Spigelman CJ, Hodgson and Bryson JJA agreeing). 110 Secondly, the principle in Osmond, being concerned with the general law, is always subject to statutory modification. The areas in which administrative decision-makers are required to give reasons for the exercise of statutory power are growing steadily, sometimes by way of specific legislation and sometimes by way of more general provision... 111 Between 1984 and 2004 disputes under the Workers Compensation Act could be resolved in the Compensation Court. The obligation of judges in that Court to give reasons was clearly identified as an attribute of the judicial process in which they were engaged.... 117 In the absence of challenge to the principles established in Soulemezis, it should be accepted that the Appeal Panel was subject to an implied statutory obligation to give reasons. That conclusion follows from the foregoing analysis of the statutory context and from an understanding of the nature of the functions imposed on the Appeal Panel. Those functions might not constitute an exercise of judicial power for the purposes of the federal Constitution, but they are functions properly characterised as judicial in nature, for the purposes of determining their incidents. 313At [20 - 31], Handley JA reached the same conclusion on this question, referring amongst other things to the fact that the Appeal Panel had a 'power and duty' to correct error and that the exercise, by the court or the Workers Compensation Commission, of a statutory power to order a further medical assessment would be 'hindered' if the Appeal Panel gave no reasons. 314We attach particular significance to Basten JA's observations (at [108] and [109]) regarding the characterisation of the ADT, in Trust Company of Australia Ltd v Skiwing Pty Ltd [2006] NSWCA 185, as exercising, in some contexts at least, a power 'in the nature of a judicial function'. We note also that this Honour regarded it as relevant that the functions performed by the Appeal Panel under the Workplace Injury Act were previously undertaken by the Compensation Court, whose judges were obliged to give reasons. In AVSGC (Court of Appeal) at [144], Campbell JA pointed out that in the period before the ADT acquired jurisdiction to review decisions by the Commissioner under the SI Act, the mode of challenge of those decisions was an appeal to a Magistrates Court. 315The two authorities that we have just examined lend support to our opinion that an essential component of Mr Oliver's argument on this topic - namely, that the Tribunal's only duty to prepare and furnish reasons for a decision at first instance under the SI Act is the duty stated in section 89(3) of the ADT Act - is incorrect. The existence of an additional implied duty, in the particular circumstances of review proceedings under the SI Act during which section 15(6) material has been admitted in a closed hearing, appears clear to us. 316The third and final authority that we shall consider bears on a different element of Mr Oliver's argument. This is the proposition that any reasons furnished by the Tribunal to the Supreme Court for the purposes of judicial review of a decision of the Tribunal under the SI Act would be incomplete, in the absence of approval by the Commissioner, to the extent that any aspect of them fell within the prohibition in section 29(3). 317As we said above, we interpret Sackville AJA's judgment as rejecting this proposition. But in case there is some doubt as to this, we are of the opinion that by virtue of the Supreme Court's wide powers under the CP Act and the UCPR to make orders and give directions to achieve a just outcome when reviewing Tribunal decisions, it could order the Commissioner to approve disclosure to it - not to the review applicant or to any other person - of those parts of the Tribunal's reasons that fell within the scope of the prohibition in section 29(3). 318This opinion is based on a Supreme Court case, Wray v Wray [2007] NSWSC 164. The judgment of Gzell J in this case commenced as follows:- 1 I have before me an application by the plaintiff in substantive proceedings involving a claim under the Family Provision Act 1982 for an order that the defendant executrix sign an authority addressed to Centrelink and the Social Security Appeals Tribunal authorising them to produce files to the solicitors for the plaintiff. 319His Honour then quoted section 207 of the Social Security (Administration) Act 1999 (Cth), which imposed the following broad prohibition:- An officer must not, except for the purposes of the social security law or the Farm Household Support Act 1992, be required: (a) to produce any document in his or her possession; or (b) to disclose any matter or thing of which he or she had notice; because of the performance or exercise of his or her duties, functions or powers under the social security law or the Farm Household Support Act 1992, to: (c) a court; or (d) a tribunal; or (e) an authority; or (f) a person; having power to require the production of documents or the answering of questions. 320Having observed (at [5]) that an approach by a third party to Centrelink was unlikely to elicit a response, his Honour continued:- 6 The plaintiff referred to two decisions in which this problem has been considered. In Merkuloff v Yalisheff [2003] NSWSC 1183, Young CJ in Eq, in an application by a defendant for Centrelink information, adverted to the provision to which I have referred, observed that there must be some doubt as to whether the power of the Commonwealth was sufficiently wide to prohibit the matters in that section, but formed the view that the defendant could obtain the information by an order in personam against the plaintiff that the plaintiff's proceedings be stayed until the plaintiff forwarded to the defendant the required information. 7 The other decision to which reference was made was Attard v Hore [2002] QSC 437 in which Dutney J, again on an application by a defendant, made an order that the plaintiff execute an authority addressed to Centrelink provided to her by the solicitors for the defendants. 321At [13 - 15], Gzell J gave the following reasons for concluding that he had power to order that the defendant sign the authority that the plaintiff sought:- 13 The next objection is that the above authorities were cases in which defendants sought access to plaintiffs' files and in each case the judge had said that when one comes to court one is under an obligation to assist the court in coming to a fair conclusion. 14 While that is a point of distinction from the instant circumstances, it does not seem to me that the principle underlying the in personam orders in those cases should be different in the case of a plaintiff seeking information from Centrelink with respect to a defendant. A defendant is also obliged to act with candour and assist the Court. The Civil Procedure Act 2005, s 56(3) places a duty on all parties, plaintiffs and defendants, to assist the court to further the overriding purpose of facilitating the just, quick and cheap resolution of the real issues in proceedings. 15 In the circumstances it appears to me that a foundation has been made for an order that the defendant sign an authority addressed to Centrelink and the Social Security Appeals Tribunal. 322As stated in this extract, his Honour based his decision on section 56(3) of the CP Act. Section 56 was one of the provisions expressly relied on by Sackville AJA in Sleiman (Court of Appeal). If the broad powers conferred on the Supreme Court by this section were sufficient to support the order made by Gzell J to the defendant to authorise Centrelink to release information to the plaintiff, they would surely be sufficient to support an order, if this were necessary, requiring the Commissioner to approve release by the Tribunal to the Supreme Court of reasons that would otherwise be prohibited from disclosure by section 29(3) of the SI Act. It may be relevant, though not (we think) necessary, to add that the Commissioner is bound to comply with the standards laid down for model litigants. 323For all of these reasons, Appeal Grounds 3 has not been made out and Grounds 3A and 4 do not arise.

The meaning of 'holds... any relevant position' in the definition of 'close associate' 324We have already reproduced (at [22]) the text of the definition of 'close associate' in section 5 of the SI Act at the relevant time. 325The Tribunal's interpretation. The Tribunal ruled that Peter did not hold a 'relevant financial interest', and was not 'entitled to exercise any relevant power', in the business of AVSGA and therefore did not fall within the scope of section 5(1)(a). 326It decided, however, that Peter held a 'relevant position' in the business of this company, and was therefore a 'close associate' of it under section 5(1)(b). 327The passages in the Tribunal's decision containing discussion of the meaning of 'close associate' and of the specific concept of 'relevant position' were at paragraphs [97] to [110] and [216]:- 97 The Commissioner argues that there is no basis for importing the requirement of "entitlement" into section 5(1)(b). If the Commissioner's submission is correct, the scope of the provision could extend to a circumstance where an individual was able to influence a person with that legally enforceable entitlement. If the further submission is correct, the phrase in section 5 (1)(b) "and other executive position" is to be given an expansive construction such that it includes an individual acting in a role approximating a managerial role in the business. The Commissioner contends that such a construction promotes the purpose of the Act to prevent persons who are not fit and proper to hold a licence from acting on behalf of a security business. 98 Section 9 of the Corporations Act defines director as: "director" of a company or other body means: (a) a person who: (i) is appointed to the position of a director; or (ii) is appointed to the position of an alternate director and is acting in that capacity; regardless of the name that is given to their position; and (b) unless the contrary intention appears, a person who is not validly appointed as a director if: (i) they act in the position of a director; or (ii) the directors of the company or body are accustomed to act in accordance with the person's instructions or wishes. Subparagraph (b)(ii) does not apply merely because the directors act on advice given by the person in the proper performance of functions attaching to the person's professional capacity, or the person's business relationship with the directors or the company or body. 99 The Applicants argue that if the Act was intended to include de facto directors or shadow directors within the ambit of "close associates" of a security business, it would have enacted provisions comparable to section 9(b)(i) or (b)(ii) of the Corporations Act. It did not do so. 100 I agree with that submission insofar as it relates to the position of directors. However, in my view the standpoint in regard to the proper construction of the expression "and other executive position" is not so clear. 104 The Applicants referred to Cockerell v Fry (1967) LGRA 164 in which McInerney J held at 178 that holding office is ordinarily regarded as following appointment; not the exercise of its functions without having been formally appointed. 105 It is submitted that the Commissioner must establish, directly or inferentially, that Peter "held" the position of a director, manager, executive or secretary in the AVS GA business in the legally relevant sense of being duly appointed to one or more of those positions, and consequently entitled to exercise the privileges that such appointment conferred. Further, it is submitted that the evidence in these proceedings could not reasonably satisfy the Tribunal that Peter, at any time after October 2006, "held", in that legally relevant sense, any "relevant position" in the business of AVS GA. 106 In my view, circumstances exist in this matter that take it out of the ordinary. I consider that the circumstances in which an individual with a legally enforceable entitlement permits an individual without such an entitlement to exercise a significant influence over or with respect to the conduct of that business permit the departure from the usual situation referred to in Cockerell v Fry. 107 In the circumstances of a family business arrangement, directors commonly are formally appointed. However, it is less likely that individuals will be formally appointed to other roles within a family business than in the wider commercial sphere. 108 In my view, the close scrutiny and a strict reading urged by French J in FCT v Citibank Ltd [(1989) 20 FCR 404] supports the Commissioner's contention. The use of the words "manager, and other executive positions and secretary, however those positions are designated" in section 5 of the Act suggests to me that the legislature intended that an official title is not conclusive of the issue. The actual role played by an individual must be considered to determine whether or not the duties can reasonably considered as falling within the scope of one or more of those positions. 109 It is not necessary that the Commissioner establish that Peter "held" a "relevant position" in the business of AVS GA in the legally relevant sense. It is sufficient if the Commissioner establishes that Peter exercised the functions of such a position without having been formally appointed. 110 That construction of the provision promotes the purpose of the Act to prevent persons who are not fit and proper to hold a licence from acting on behalf of a security business. 216 A person is a close associate of an applicant under section 5 if that person holds a position of "director, manager, and other executive positions and secretary, however those positions are designated, and such other positions as may be prescribed by the regulations for the purposes of this definition." The Macquarie Dictionary On-Line defines "manager" - noun 1. someone who manages. 2. a person charged with the management or direction of an institution, a business or the like 328The Appellants' submissions. In Appeal Ground 1, the Appellants claimed that the Tribunal's finding that Peter was a person who 'holds' a 'relevant position' in AVSGA and was therefore a 'close associate' of this company was not open to it on the facts that it had found. 329In seeking to make good this claim, Mr Oliver argued that the Tribunal's construction of the phrase 'holds... any relevant position... in the business of' in section 5(1)(b) of the SI Act was erroneous. He made the following four criticisms of the Tribunal's approach. 330First, the Tribunal took no or no sufficient account of the term 'designated' in the definition of 'relevant position' in section 5(2). Mr Oliver cited the Macquarie Dictionary's definition of the verb 'designate', which is as follows:- 1. to mark or point out; indicate; show; specify. 2. to name; entitle; style. 3. to nominate or select for a duty, office, purpose, etc.; appoint; assign. 331He also quoted the following definition from the Shorter Oxford Dictionary (3rd edition):- 1. Trans. To point out, indicate; to specify 1801. 2. To point out by a name or description; to name, denominate 1818. 3. To appoint, nominate for duty or office; to destine for a purpose or fate 1791. 332Mr Oliver submitted that in determining whether particular facts fell within the definition of 'relevant position' in section 5(2) of the SI Act, the actual 'designation' of a position was not conclusive, but the existence or occurrence of some sort of 'designation' was necessary. It followed, he said, that if a person merely assumed or usurped managerial authority within a business, there was no 'designation' of a position within the business and no assumption or usurpation of a position that had been 'designated'. 333Secondly, the Tribunal took insufficient account of the requirement in the definition that the putative close associate 'holds or will hold' the 'relevant position'. Mr Oliver cited in this context the following passages in the judgment of McInerney J in a case to which the Tribunal referred, Cockerell v Fry (1967) 15 LGRA 164, at 178:- ...nowadays a person may ordinarily be regarded as "holding" an office once he has been appointed to it and has become entitled to exercise its functions and enjoy its privileges... It certainly cannot be universally affirmed that a person "holds" an office where he has merely exercised the functions of that office - without having been formally appointed thereto. 334These dicta showed, according to Mr Oliver, that the word 'hold', in relation to a 'position', connotes not merely the exercise de facto of the functions and powers of that position, but an entitlement to exercise those powers and functions by virtue of having been appointed to it. 335Thirdly, the Tribunal, having apparently accepted this interpretation of the phrase 'holds... any relevant position' in its 'legally relevant sense', erred in holding that it was not applicable to Peter's relationship to AVSGA, on the ground that 'circumstances exist in this matter which take it out of the ordinary'. In taking this view, it erred because, as Mr Oliver expressed it, 'the proper construction of a statutory provision cannot vary according to the circumstances of the particular case to which the provision is applied'. It followed, he said, that that 'the statutory phrase "holds... any relevant position" must have a single objective meaning that does not vary from case to case'. The Tribunal should not have ruled that this phrase could be construed otherwise than in accordance with its 'legally relevant sense'. 336Fourthly, the Tribunal should have held that section 5(1)(b), when construed in its 'legally relevant sense', calls for the application of a 'categorical test of objective current or future entitlement', not an 'impressionistic assessment of the extent and degree of past influence'. 337According to Mr Oliver, support for this view is to be found in Avilion Group Pty Ltd v Commissioner of Police (No 2) (GD) [2010] NSWADTAP 56. In this case, an Appeal Panel of the ADT held that section 5(1)(a) of the SI Act imposed a 'categorical test' of this nature. A further consideration of importance was, in his submission, that the holders of licences are subject to 'categorical obligations to declare "close associates" from time to time', breach of which can lead to revocation of their licence and/or criminal penalties under section 26(1(b) of the SI Act and cl 34 of the SI Regulation. 338It was by virtue of these errors, Mr Oliver maintained, that the Tribunal incorrectly held Peter to be a 'close associate' of AVSGA even though (i) he had never been formally appointed to any position in the business of this company and (ii) the de facto position in this business which the Tribunal found to be 'held' by him did not correspond to any position that was 'designated' within the business at any material time. 339The Commissioner's submissions. In opposing the contention that some sort of 'designation' of the position claimed to be 'held' by a putative close associate was an essential element of the definition of 'close associate' in sections 5(1)(b) and 5(2), Mr Lynch argued that any such requirement would be 'surprising'. 340The reasons for this, he said, were as follows: (a) this definition was clearly concerned with the substance, not the form, of the relationship between the putative 'close associate' and the relevant business; (b) any such 'formal requirement' would not need, according to the terms of the definition, to be 'a true reflection of the substance of the position' with which it was concerned; and (c) the use of the phrase 'however designated' indicated that 'designation' was immaterial to the operation of the definition. 341In disputing Mr Oliver's submissions on the construction of the word 'hold' in section 5(1)(b), Mr Lynch pointed out that its primary meaning (for instance, as given in the Macquarie Dictionary) was simply 'have'. Nothing in section 5 itself, he said, or in its statutory context gave any grounds for attributing a special meaning to this word. He added that the case cited by Mr Oliver, Cockerell v Fry (1967) 15 LGRA 164, was not relevant to this question because it dealt with the circumstances in which a person could be found to 'hold' a statutory office, such as an office established under local authority legislation. 342In the alternative, Mr Lynch argued that if the word 'hold' was held to require some form of 'appointment' to a position within a licence-holder's business, the Tribunal's finding (at [223]) that Peter 'exercised executive authority' in AVSGA's business 'with Tony's approval - either tacit or implicit' was sufficient to satisfy this requirement. 343Like Mr Oliver, Mr Lynch placed reliance on Avilion Group Pty Ltd v Commissioner of Police (No 2) (GD) [2010] NSWADTAP 56. He pointed out that in this decision (at [83]) the Appeal Panel construed section 5(1)(a) (in so far as it based the definition of 'close associate' on an entitlement to exercise a 'relevant power') as referring to a de jure entitlement or legal right, whether or not that any exercise of that entitlement or right had actually occurred or would occur in the future. 344From this starting-point, he argued that both section 5(1)(a) and section 5(1)(b) were concerned with 'directorial, managerial and executive functions'. But they differed, he said, in so far as the former provision stipulated that an 'entitlement' to exercise such functions must exist, whereas in the latter this requirement was conspicuously absent. In contrast to 5(1)(a), section 5(1)(b) was concerned to address the 'de facto' position. If it was not interpreted with this in mind, a 'surprising' result would ensue: namely, that the concept of 'close associate' would include people who were entitled to exert significant influence over the conduct of a licensee, but did not in fact do this, but would leave out people who in fact exercised such influence while possessing no legal entitlement to do so. On the other hand, the correct interpretation of section 5(1)(b) would ensure that these two provisions complemented each other, thereby advancing the 'statutory purpose and object' underlying both of them. 345Finally, Mr Lynch argued that the construction of section 5(1)(b) advanced by Mr Oliver would permit easy avoidance of the provisions of the SI Act through ensuring that a person who de facto exercised managerial control or influence over the operations of a licensee was never formally 'appointed to' any 'designated' position. He referred in this context to the Appeal Panel's rejection in Avilion of a submission that because section 6(3) of the Act, cl 6 of the SI Regulation and Item 20 of Schedule 1 of this Regulation, when read in combination, conferred an exemption 'from the operation of this Act' on any person who was employed in a security business but did not perform any 'security activities', such a person could not be a 'close associate' of the business. 346In rejecting this argument, the Appeal Panel said, at [71 - 72]:- 71... The natural meaning of a statement that a person is 'exempt from the operation of' a statute is, in our opinion, that the person is exempt from obligations that would otherwise be imposed upon him/her by the statute. But the characterisation of a person... as a 'close associate' of the holder of a Master Licence... does not bring him within the scope of any obligations imposed by the Act. By contrast, the Act imposes numerous obligations on licence holders, as also on persons who perform 'security activities' within the definition in section 4. To construe clause 6 as stating that any person defined in Item 20 (or indeed any other Item) in Schedule 1 is in some sense 'invisible' to the Act goes well beyond the natural meaning of the clause. 72 In so determining, we agree with a submission by [counsel for the Commissioner] that the interpretation urged by [counsel for the applicant] would seriously jeopardise the evident aim of the provisions whereby the fitness and propriety of any 'close associate' of a licence applicant or holder are matters to be taken into account in determining whether or not a licence should be granted or continued (as the case may be). If this interpretation were correct, the licence applicant or holder could evade the operation of these provisions by merely engaging the 'close associate' as an employee while ensuring that he or she did not perform any 'security activities'. It would have the ludicrous consequence that the holder of a substantial 'relevant financial interest', such as a controlling shareholding in the business of the licence holder or applicant, could cease to be a 'close associate' under section 5 by the simple expedient of obtaining limited part-time employment of this nature within the business. 347Discussion and conclusions. This question of interpretation is, in our opinion, a difficult one. 348The linguistic features of section 5(1)(b) and the definition of 'relevant position' in section 5(2) lend significant support to Mr Oliver's argument. They do indeed suggest that the 'position' occupied by a putative close associate must have some sort of 'designation'. 349The fact, however, that two of the alternative definitions of 'designate' that Mr Oliver quoted used the word 'appoint' cannot be taken to mean that some sort of 'appointment' must take place. This is because each of these definitions provided a meaning for 'designate' in the context of designating a person. By contrast, the word 'designated' in section 5(2) refers to the designation of 'positions'. The quoted dictionary definitions of this word when so used employ terms such as 'specify' and 'name', not 'appoint'. 350We agree with Mr Lynch that, for the reason that he gave, the decision in Cockerell v Fry (1967) 15 LGRA 164 does not provide useful guidance on the meaning of the word 'hold' in section 5(1)(b). But in association with 'position' this word does, we believe, suggest that some form of possession or occupation is contemplated. 351The definition of 'position' in the Macquarie Dictionary, which was drawn to our attention, includes a number of words, such as 'post', that denote a position of a formal nature within an organisation. It also includes some words with a broader connotation, such as 'situation'. A common feature of most of the synonyms listed in the definition is that they suggest some degree of continuous occupation of a 'place', whether physical or metaphorical. 352As the Tribunal pointed out, the term 'director' is commonly associated with a formal role within a company: namely, membership of the board of directors. But no such formal role is associated with the term 'manager', or indeed with the phrase 'other executive positions'. In determining whether a person engaged in the activities of a company or other organisation can properly be called a 'manager', or as holding any 'executive position', one must often look to the range of functions that he or she performs with some degree of continuity, not to the question whether an act signifying formal recognition of his or her status as 'manager' or as the holder of an 'executive position' has occurred. 353On the matter of the legislative policy underlying the Act's adoption of the concept of 'close associate', we regard Mr Lynch's submissions as persuasive. To invoke the terminology of section 33 of the Interpretation Act 1987, the construction of section 5 for which he contends is one that would 'promote the purpose or object underlying the Act'. As he pointed out, it produces the outcome that both a person who is 'entitled' to participate in the management of the business of a license applicant or holder (irrespective of whether he or she does in fact participate) and a person who in fact occupies an 'executive position' in such a business (irrespective of whether he or she has an 'entitlement' to do so) fall within the definition of 'close associate'. The most important consequence of this is that if in the opinion of the Commissioner they are not fit and proper to hold a licence under the Act, the entity of which they are a 'close associate' will be refused a licence or will lose a licence previously granted. 354By contrast, the interpretation for which Mr Oliver argued leaves significant scope for evasion of the 'purpose or object underlying the Act'. It also gives rise to anomalies. According to this interpretation, if a person who de facto exercises managerial control over the business of the holder of a master licence is regularly referred to as 'the manager' or even (it would seem) 'the boss', this 'designation' brings him or her within the definition in section 5(1)(b) and section 5(2). But if such 'designations' are studiously avoided in all relevant contexts (such as the firm's internal documents and its communications, documentary and oral, with outsiders), the person will not be a 'close associate'. 355On the particular matters of construction on which the parties' submissions were in conflict - i.e. in essence, the significance of the terms 'hold', 'position' and 'designated' in section 5 - we have not been able to obtain direct guidance from any past cases. We agree with Mr Lynch that the Appeal Panel's decision in Avilion Group Pty Ltd v Commissioner of Police (No 2) (GD) [2010] NSWADTAP 56 is at least compatible with his position and may be read as providing some support for it. The same may be said of the relevant passage (paragraphs [77] to [80]) in the decision under appeal in that case (Avilion Group Pty Ltd v Commissioner of Police, NSW Police [2010] NSWADT 129). 356It is appropriate that we mention here a decision in the Occupational Division of NCAT that was delivered on 2 May 2014, after the hearing of these appeals had concluded. In Naylor v Commissioner of Police, NSW Police Force [2014] NSWCATOD 43, the Tribunal affirmed a decision of the Commissioner, made by a notice dated 11 March 2013, to revoke a master licence under the SI Act held by a company called Essential Security Pty Ltd. The Applicant, Jasmin Naylor, was the nominated holder and licensee of this master licence. The decision to revoke the company's licence was made on three grounds: (a) that Muhammad Farooq, who had a disqualifying conviction, was a close associate of the company and of Ms Naylor; (b) that a condition of the master licence had been breached by the company's failure to disclose that Mr Farooq was a close associate; and (c) that it was in the public interest that the master licence be revoked. 357The Tribunal affirmed the Commissioner's decision on the second and third grounds. It found that at the date of the revocation Mr Farooq was a close associate of the company by virtue of being a director, an 'equal shareholder' (along with Ms Naylor) and the company's manager. It also found, however, that on 19 April 2013 he both ceased to be a director and transferred his shareholding to Ms Naylor. On account of these events, the Tribunal concluded that by the time of its decision he was no longer a close associate and that for this reason the first ground of the revocation was not established. 358For present purposes, the relevant passages in its discussion of these matters are at [63 - 69]:- 63 The issue that then arises is whether Mr Farooq is now a close associate of the company. He is no longer a shareholder and does not presently hold a relevant financial interest in the company, as a result of transfer of his shares to Ms Naylor. There therefore is no evidence that enables me to positively conclude that he will hold a relevant financial interest in the company in the future. 64 While I am satisfied that he is now managing the business of the company, the evidence is insufficient to conclude that he now exercises a similar role within the company, or will do so in the future. He is no longer a director of the company. As I result I am not satisfied that he now holds or will hold a relevant position in the company itself. 65 The evidence points to Mr Farooq having exercised considerable power in the company prior to his most recent removal as a director, and the transfer of his shareholding. Since then he has exercised power over the business undertaking of the company, as the person managing and running that business. He does so under an arrangement with Ms Naylor the terms of which are unclear, and not as a result of a directorship or shareholding in the company. 66 In Avilion Group Pty Ltd v Commissioner of Police, NSW Police (GD) (No 2) [2010] NSWADTAP 56 the Appeal Panel considered what was necessary to demonstrate that a person is entitled to exercise a relevant power with respect to a corporate licensee... [The Tribunal then quoted paragraphs [83] and [84] of Avilion]. 67 Applying that decision to the question of whether Mr Farooq holds a relevant power it is clear that he no longer holds any legally enforceable entitlement to exercise a relevant power in the company. He did hold such a power up until the time he ceased being a director, and his shareholding in the company was transferred to Ms Naylor, on 19 April 2013. 68 As a consequence of all the above I find that until 19 April 2013 held a financial interest, was entitled to exercise a relevant power, and held a relevant position in the corporate licensee. He was therefore a close associate of the company. 69 After that date he did not hold a relevant financial interest and was not entitled to exercise a relevant power. While he was the manager of the business from that time on, the evidence is insufficient to enable me to positively conclude that he did so as the holder of a relevant position in the company. As a result I am not satisfied that after 19 April 2013 he was a close associate of the company. 359In our respectful opinion, the Tribunal erred in this part of its reasoning. Its determination that Mr Farooq was not a close associate of the company after 19 April 2013 depended on its having found that after this date he did not hold a 'relevant position' in 'the company'. But the Tribunal also found that after this date Mr Farooq continued to be the manager of the 'business undertaking of' the company. It appears to us that, according to the express terms of section 5, he therefore continued to be a close associate. The Tribunal seems to have overlooked the fact that, according to section 5(1)(b), a person is a close associate of the holder of a licence if he or she holds any 'relevant position' in 'the business of the licence... holder' (our emphasis). It is not necessary that the 'relevant position' is a position in the corporate body which owns this business. Under section 2, 'relevant position' includes 'the position of... manager'. 360Contrary to a submission by Mr Oliver, we do not think that the Tribunal in the present proceedings, when stating at [106] that 'circumstances exist in this matter that take it out of the ordinary', meant that in these proceedings it believed that the interpretation of section 5 should differ from what would normally be appropriate. As the Tribunal explained in the sentence following and in the ensuing paragraphs, the unusual nature of these circumstances permitted departure from the 'usual situation referred to in Cockerell v Fry'. Instead of investigating whether a formal appointment (such as this case envisaged) to a position such as that of director had occurred, the question to be answered was whether Peter's 'actual role' in AVSGA was that of a manager or the holder of some other executive position. According to the interpretation of section 5 to be applied in both of these situations, 'an official title' was not, as the Tribunal said at [108], 'conclusive of the issue'. 361For the foregoing reasons, our conclusion is that the Appellants have not shown any error in the Tribunal's interpretation of section 5(1)(b) of the SI Act or of the definition of 'relevant position' in section 5(2). 362In separate grounds of appeal, which we will now discuss, it was claimed that the Tribunal erred in admitting, on this question whether Peter was a close associate of AVSGA, affidavit evidence that it should have disallowed. The validity or otherwise of these grounds does not bear on the specific questions raised in Appeal Ground 1. 363It follows that Appeal Ground 1 has not been made out.

Whether certain evidence on the 'close association' question should have been ruled inadmissible 364In Appeal Grounds 21 (AVSGC) and 22 (AVSGA), the Appellants claimed that the Tribunal erred in having regard, and/or giving weight, to certain passages, to which the Appellants had objected during the Tribunal hearing, within the affidavits of three of the Commissioner's witnesses. 365These witnesses were Cameron Smith, the Registrar of the Security Industry Registry; Constable Randal Wood, of the State Technical Investigation Branch of the NSW Police; and Ralph Guderjan, the Group Operations Manager of J & J O'Brien Hoteliers. Their affidavits were respectively dated 25 August 2009, 16 December 2009 and 22 August 2010 and admitted as Exhibits R2, R5 and R7. 366We will discuss each of these affidavits separately. 367Mr Smith's affidavit. The passages in this affidavit to which the Appellants objected unsuccessfully during the Tribunal hearing were the underlined passages in the following extracts from paragraphs 7, 8, 12 - 16 and 18 - 20:- 7. [Referring to a meeting on 29 January 2008 attended by Mr Smith, Scott Taylor (who introduced himself as the 'National Manager' for 'AVS Group of Companies), Peter Sleiman and two others] 'The topic of discussion during the meeting was the impact of 1 September 2007 legislative amendments to the SI Act on the security industry and particularly to AVS companies. At no stage did any participant make any distinction between different AVS companies, referring only to "AVS". The particular issues discussed included the requirements for employers to provide prescribed levels of supervision for "provisional licensees" and employment of guards...' 8. 'There was no mention of Tony Sleiman at this meeting. Scott Taylor frequently deferred to Peter Sleiman when discussing AVS's operations and implications of the legislative changes for AVS... It was apparent to me that Peter Sleiman was the leader of AVS' operations.' 12. [Referring to a meeting on 12 November 2008 attended by Mr Smith, Mr Taylor, Mr Peter Sleiman and Joe Nasr (whose role, if any, in the AVS group of companies was not disclosed to Mr Smith)] 'There was no mention of Tony Sleiman during this meeting. Again, given the responses of Peter Sleiman, it was clear to me that Peter Sleiman was leading AVS' operations.' 13. [Referring to a meeting on 22 June 2009 attended by Mr Smith, Mr Taylor, Mr Peter Sleiman and Mr Nasr] 'There was no specific reason for this meeting other than that Peter Sleiman wished to catch up with me again.' 14 'One significant issue discussed [at this meeting] was again AVS' difficulty in finding quality guards to employ...' 15. 'There was also considerable discussion about the general culture of the security industry and the actions of AVS' competitors. In this regard, Peter Sleiman said to me words to the effect: Peter Sleiman: "I have formed a group of like-minded security providers who had decided it was time to address the industry culture where price rather than quality was the determining factor in who won security contracts..."' 16. 'There was no mention of Tony Sleiman during this meeting. Again, it was clear to me from the response of Peter Sleiman that he was leading the AVS operations. With regard to his comments about the group of "like-minded" providers, it was clear that Peter Sleiman considered that he alone represented AVS in that group.' 18 'In hindsight, after looking at Peter Sleiman's licence status, I was surprised that Peter Sleiman could speak so knowledgeably about AVS operations when the issue of employment of guards was raised directly or inferentially during all three meetings, since he held only a nil-employees Master Security Licence. This licence precluded him or the particular company to which the licence related (AVS Group of Companies Pty Ltd) from employing or engaging other security guards.' 19. 'The registered business address of AVS Group of Companies Pty Ltd ("AVS Group"), which I understand Peter Sleiman is a director and sole shareholder of, is 15-17 Cowper Street Granville, NSW. The registered business address of AVS Group Australia Pty Ltd ("AVS Australia"), of which Tony Sleiman is a director, is 88 Parramatta Road, Granville 2142 NSW. Upon conducting some inquiries, I ascertained that the registered business address for AVS Group is in fact the back of the building registered as AVS Australia's business address, and a car park adjacent to that site.' 21. [Referring to a search of the AVS Group website that Mr Smith conducted on 7 August 2009]. 'The purpose of my inquiries was to determine whether there was any delineation between AVS Group and AVS Australia. I looked at every web page on the site. I did not find any such delineation. Instead, there was a general reference to "AVS" and "AVS Group Australia".' 368The objections to the underlined statements quoted from paragraphs 7, 8, 12 - 16 and 18 of the affidavit were said at the Tribunal hearing to be objections as to 'form'. An accompanying explanation of this argument, apparently applying to all these objections, was that each statement was neither direct nor indirect evidence of the terms of a conversation, but instead amounted to a 'mere conclusion or an inadmissible opinion as to the effect of those terms'. On these grounds, it was argued to the Tribunal that each statement should be 'excluded on the basis that it is inadmissible and/or unfairly prejudicial to' the Appellants. 369With regard to the underlined statement quoted from paragraphs 19 and 21, the basis of the objections at the Tribunal hearing was that evidence as to the addresses and directorships of AVSGC and AVSGA should have been given by adducing extracts from the ASIC register, that the statement as to the proximity of these addresses was 'hearsay' and that evidence as to the content of 'every page' of the AVS Group's website could not properly be given in the manner that Mr Smith had adopted. 370In dismissing these objections, the Tribunal stated as follows (Transcript, 31 March 2011, p 13, lines 38-43):- I think that any prejudice that flows to the applicant from admitting this material can be addressed by cross-examining Mr Smith. I appreciate the arguments and technically I don't disagree with them but I think that, as Mr Lynch has argued, the primary considerations are going to be relevance and natural justice and it seems to me that this is material that is relevant and the cross-examination can address any prejudice and natural justice. 371In the ensuing cross-examination of Mr Smith, counsel for the Appellants did not, however, ask him to identify the specific factual matters on which the statements quoted from paragraphs 7, 8, 12 - 16 and 18 were based. In oral submissions at the appeal hearing, Mr Oliver said that counsel 'took the view at this stage that this was an appeal point and that we were not going to do as the Tribunal suggested' (Transcript, 11 March 2014, p 32, lines 34-35). 372Mr Oliver's argument to us, in common with the argument put on the applicants' behalf at the Tribunal hearing, took into account the fact that under section 73(2) of the ADT Act, the Tribunal was 'not bound by the rules of evidence' and could 'inquire into and inform itself on any matter in such manner as' it thought fit. He maintained however that the Tribunal, being bound to abide by the rules of natural justice (see again section 73(2)) was obliged, in the exercise of 'its evidentiary discretion', to disallow any evidence that, by virtue of being no more than a conclusion or an opinion, could not be regarded as relevant to the matters to be found by it. Mr Oliver referred also to the provision in section 63(1) of the ADT Act that the Tribunal, in determining an application for review of a reviewable decision, is to have regard, inter alia, to any 'relevant factual material'. 373In support of this argument, Mr Oliver relied on the judgment of McInerney J, in the Supreme Court of Victoria, in Wajnberg v Raynor & Melbourne Board of Works [1971] VR 665. This case concerned a decision of an Appeals Tribunal established under the Town and Country Planning Act 1961 (Vic). At 678-679, his Honour said:- The directions given to the Appeals Tribunal under s21(1) of the Town and Country Planning Act are that it should "act according to equity and good conscience and the substantial merits of the case". It is so to act "without regard to technicalities or legal forms", it is not to be "bound by the rules of evidence", "but subject to the requirements of justice may inform itself on any matter in such manner as it thinks fit". The first two injunctions are designed to ensure that the tribunal is not fettered by legal technicalities or legal forms. It is to decide according to the substantial merits of the case, but it must act "according to equity and good conscience". It is, therefore, not free to act capriciously or unconscionably. The direction that the tribunal should not be "bound by the rules of evidence" but that it may "inform itself on any matter as it thinks fit" obviously frees the tribunal from many of the restrictions imposed on ordinary courts by the rules of evidence. Some of those restrictions are directed to the medium of proof of facts, e.g. the rule against hearsay evidence will be found when analysed to prohibit a certain medium of proof of the existence of some fact or facts. Plainly the Appeals Tribunal is not similarly limited. Again in so far as the rules of evidence embody restrictions based on some policy of the law, such as common law privileges of witnesses from disclosing certain facts, or in so far as they insist on a particular mode of proof, e.g. the "best evidence" rule, the Appeals Tribunal would, as it seems to me, be free to disregard such restrictions. But the provisions of s21(1) do not entitle the tribunal to act without evidentiary material or to draw inferences which do not follow fairly and reasonably from the material before it. Its power to inform itself on any matter "in such manner as it thinks fit" is expressly made "subject to the requirements of justice". Accordingly, it would not be at liberty to receive evidence from one party in the absence of the other, or, at all events, without notifying that absent party and giving him the opportunity of answering the evidence so received. In short, the tribunal must observe the requirements of natural justice... It is one thing to say that the tribunal is not to be bound by the rules of evidence and quite another thing to say that the tribunal can act without evidence or that it can act in disregard of evidence. When the evidence is conflicting, the tribunal must endeavour to weigh the evidence judicially and fairly. It is not entitled, in so doing, to disregard probabilities or logic. When it exercises its powers to "inform itself on any matter in such manner as it thinks fit", "the requirements of justice" to which that power is subject entail that the evidentiary material on which the tribunal acts should have been acquired in a fashion which takes account of the requirements of what may be termed natural justice. The parties concerned should be informed of the material with which the tribunal proposes to inform its mind and they should be given the opportunity to make such submissions or adduce such countervailing evidence in respect thereto as may be appropriate. 374Mr Oliver also cited the judgment of McColl JA, with whom Giles and Tobias JJA agreed, in South Western Sydney Area Health Service v Edmonds [2007] NSWCA 16. This related to a decision given by an Arbitrator of the Workers Compensation Commission, in which reliance was placed on the expert evidence of a medical practitioner, Dr Rivett, who had examined the applicant. It is sufficient in the present context to quote paragraphs [127] to [129] and [132] of her Honour's judgment:- 127 While the Commission may inform itself on any matter in such manner as it thinks appropriate and as the proper consideration of the matter before it permits (s 354(2)), r 70 of the Workers Compensation Commission Rules 2003 provides that when informing itself on any matter, the Commission is to bear in mind the principles that evidence should be logical and probative, should be relevant to the fact in issue and the issues in dispute, that evidence "based on speculation or unsubstantiated assumption is unacceptable" and that "unqualified opinions are unacceptable". 128 Rule 70 broadly reflects fundamental principles of the common law concerning admissibility of evidence. Indeed, in Aluminium Louvres & Ceilings Pty Ltd v Zheng [2004] NSWWCCPD 26 (at [24]) Deputy President Fleming said: "Where the rules of evidence do not apply, the conduct of proceedings will be a matter to be determined according to principles of fairness, taking into account the nature of the proceedings, the legislative requirements and the demands of the instant case. The Commission may have regard to evidence that would not be admissible in a court in accordance with the rules of evidence. Fairness must guide the weight to be given to this evidence." 129 Where the rules of evidence do not apply, in order to find error of law based on absence of evidence there must be an absence of material, whether strictly admissible according to the rules of evidence or not: Smith & Anor v Collings Homes Pty Ltd & Anor [2004] NSWCA 75 at [32] per Mason P (Handley JA and Campbell J agreeing). 132 In my view Dr Rivett's statement that "in general all the problems are work-related" which the Arbitrator accepted in concluding that the respondent's duties were sufficient to cause her injury... amounted to a bare ipse dixit. It was not probative of the issue before the Arbitrator. 375With specific reference to the decision of counsel for the applicants at the Tribunal hearing not to cross-examine Mr Smith on the alleged basis for his statements claimed to amount only to 'conclusions' or 'opinions', Mr Oliver pointed out first that, as the Tribunal's decision had acknowledged (at [24]), the Commissioner bore the onus of proof. It followed, he said, that if the applicants chose not to put questions relating to the factual basis of these statements during their cross-examination of a potentially hostile witness, it was not open to the Tribunal to draw inferences adverse to them. He maintained that the Tribunal's approach to the matter was inconsistent with two important rules formulated in the case-law as follows:- (a) 'Inferences cannot be drawn in favour of a party that calls a witness who could have given direct evidence on a matter when that party refrained from asking the crucial question': Pratt v Hawkins (1991) 32 NSWLR 319 at 333 (Young J). (b) Where the evidence in chief adduced by a party to civil proceedings has not 'made a prima facie case which required affirmative proof of an answer', the opposing party need not 'choose on cross-examination to risk bringing out of a hostile witness evidence which his own counsel has not brought out in chief': Smith v Chadwick (1884) 9 App Cas 187 at 200 (Lord Blackburn). 376In response, Mr Lynch argued that because section 73(2) of the ADT Act excluded the Tribunal from the operation of the 'rules of evidence', evidence tendered to the Tribunal could not properly be characterised as 'inadmissible'. Instead, the sole criterion that the Tribunal should apply when determining whether to take account of any such evidence was whether it was relevant. 377With specific reference to the contested passages in paragraphs 7 and 8 of Mr Smith's affidavit, Mr Lynch made the following oral submissions: (i) the first of them, relating to the topics discussed at a meeting on 29 January 2008 was not ipse dixit or a matter of pure opinion, but was a shorthand summary of these topics; (ii) the second ('Scott Taylor frequently deferred to Peter Sleiman when discussing AVS's operations and implications of the legislative changes for AVS...') had significant factual content; and (iii) the third, to the effect that Peter Sleiman appeared to be the leader of AVS's operations, 'made perfect sense' in the light of what preceded it. 378Mr Lynch also made the following submissions: (a) it was incorrect to claim that the Tribunal's decision to admit statements by Mr Smith summarising his conclusions as to Peter's role in AVSGA and AVSGC and to suggest that the Appellants could cross-examine Mr Smith about these statements caused the onus of proof to shift to the Appellants, particularly since appropriate witnesses called by the Appellants, including Peter and Tony Sleiman, could and did give evidence seeking to undermine these conclusions; (b) even if individual statements of this nature should not have been given any weight at all by the Tribunal, the Appellants could not claim that the Tribunal's findings on the issue of close association were erroneous in law unless they could show that they were not supported by any logically probative evidence; and (c) the Tribunal had in fact based its findings on a significant quantity of evidence, tendered at open hearings, in addition to the testimony of Mr Smith. 379In our opinion, the Appellants' challenge to the Tribunal's decision to admit the underlined statements in paragraphs 7, 8, 12 - 16 and 18 must fail, broadly for the reasons advanced by Mr Lynch. We add the following observations. 380We do not see why, in a tribunal where the rules of evidence do not apply, testimony regarding events occurring at a meeting should be discounted as wholly irrelevant simply because it took the form of a shorthand summary. 381As to the statements by Mr Smith that were criticised as being merely conclusions drawn by him, it is important that other parts of his affidavit (to which Mr Oliver did not refer) contained statements of primary fact that could well be regarded as lending support to these conclusions. In paragraph 6, for example, he testified that he believed that at the commencement of the meeting on 29 January 2008, Mr Taylor introduced Peter Sleiman as 'our director'. In paragraphs 8, 12 and 16, he stated (as indicated above) that there was 'no mention of Tony Sleiman' at any of the three meetings described by him. In paragraph 15, he quoted the statement by Peter Sleiman from which we have reproduced an extract. It is not the case, therefore, that the statements claimed to be 'conclusions' were 'mere conclusions'. In paragraph 18, he supplied the reason why he was 'surprised' at Peter's knowledge about AVS's operations when the issue of employment of guards was raised: namely that the licence held by Peter was a 'nil-employees' Master Security Licence. Accordingly, each of these contested passages explaining a conclusion drawn by Mr Smith was supported by specific factual statements, on which he was open to cross-examination. 382We do not accept Mr Oliver's claim that a 'reversal of onus' occurred. Even if, contrary to what we have just said, these 'conclusions' in Mr Smith's affidavit had been mere conclusions, nothing prevented the applicants from arguing to the Tribunal that this was the case and that they should therefore be given no weight at all. The applicants could make this argument without having to cross-examine Mr Smith as to the specific matters on which he based these conclusions. If in the alternative they had chosen to address these matters in their cross-examination of him, the Tribunal would have been obliged to take account of his answers, to grant leave to the applicants (if so requested) to put on evidence by way of rebuttal and to take account of any such further evidence. But the question of close association would still be one on which the Commissioner bore the onus of proof. 383With regard to the underlined statements quoted from paragraphs 19 and 21, the applicants' objections taken at trial were inappropriate, in our opinion, in a tribunal which is not bound by the rules of evidence and may inform itself in such manner as it thinks fit. The disallowance of these objections was not an error of law on the Tribunal's part. 384Constable Wood's affidavit. Constable Wood stated that between April 2007 and June 2009, he worked at The Rocks Local Area Command in the licensing area. At the Tribunal hearing, the applicants objected to the following underlined passages in paragraphs 3, 4 and 6 of his affidavit:- 3. [Under the heading 'April 2007 - May 2008'] 'During this period, we [Constable Wood and Sergeant Thompson] had extensive dealings with a company I knew as "AVS" or "Australian Venue Security" as they held a number of security contracts with licensed premises in The Rocks Command. I was introduced personally to Peter Sleiman early on as the owner of AVS. Throughout the next year Peter Sleiman was the point of contact for AVS and many meetings were held where Sgt. Thompson and I would discuss issues regarding the company with Peter Sleiman. At no time do I recall him indicating that he was anything other than the owner and manager of AVS.' 4. [Under the heading 'May 2008 - June 2009'] 'During this period I again had occasion to contact AVS, but by this stage David Nassif had assumed the contact role previously conducted by Peter Sleiman' 6. [Under the heading 'General observations'] 'The meetings with AVS that I attended while I worked at The Rocks were generally attended by Peter Sleiman as the representative of AVS. Peter Sleiman and David Nassif never suggested in respect to any of the licensed premises that they were not acting for AVS.' 385The parties' submissions to us on the question whether the applicants' objections to these underlined passages should have been upheld by the Tribunal were effectively the same as had been directed to the contested passages in paragraphs 7, 8, 12 - 16 and 18 of Mr Smith's affidavit. 386For reasons similar to those that we have just outlined, we reject Mr Oliver's submissions relating to the admission of these passages in Constable Wood's affidavit. Specifically, we regard the contested statements in paragraphs 3 and 4 regarding Peter Sleiman as allegations of material fact, not 'mere conclusions', and the statement in paragraph 6 as a conclusion for which the basis was laid in the preceding paragraphs of the affidavit. 387Mr Guderjan's affidavit. In his capacity as the Group Operations Manager of J & J O'Brien Hoteliers, Mr Guderjan organised, or at least participated in the organisation of, security services for a hotel called Jackson's on George. 388At the Tribunal hearing, the applicants objected to the passages underlined in the following extracts from paragraphs 5 and 6 of his affidavit:- 5. Jackson's on George continue to use AVS for security services. Up until recently Scott Taylor was the person from AVS, my general manager or I would contact in respect of routine business issues such as rostering of security guards. I have been informed that Scott Taylor has left AVS and David Nassif is now the contact at AVS for such issues. 6. In respect of any core issues or high level issues concerning the relationship between AVS and Jackson's on George, I would speak directly with Peter Sleiman. While I have not spoken to Peter Sleiman of late, I have not been informed nor do I have reason to believe that Peter Sleiman is no longer running AVS and hence the appropriate contact person for such high level matters. 389Once again, the parties' submissions to us were along the same lines as had been advanced with respect to Mr Smith's affidavit. 390We would agree that, as was argued to the Tribunal, the underlined phrase in para 5 constituted hearsay and should therefore have been identified as evidence carrying little or no weight. But its content was of no significance in the proceedings. 391On the other hand, the underlined phrases in the second sentence of paragraph 6 do not constitute a 'mere conclusion' or statement of opinion . They amounted instead to a further elaboration of the following evidence given by him in paragraphs 2 and 7:- 2. On 21 October 2009 I had a telephone conversation with Nadia Rosenman from the NSW Crown Solicitor's Office. Ms Rosenman requested information relating to security services in relation to Jackson's on George. We had a conversation to the following effect: Ms Rosenman: "Did you sign a contract with AVS for your security services?" Me: "I'm not sure if there's a contract. It is more a verbal engagement. I'd say we made an agreement orally, with the Principal, Peter Sleiman." 7. I note that it was Peter Sleiman (along with Scott Taylor) who pitched for the business (i.e. AVS obtaining the contract for provision of security services for Jackson's on George) more than 10 years ago. 392For the foregoing reasons, Appeal Grounds 21 (AVSGC) and 22 (AVSGA) are not made out.

Whether the Tribunal's finding that Peter Sleiman 'continued' to hold a 'relevant position' in the business of AVSGA was available to it on the open evidence that it could properly take into account. 393This question was posed in Appeal Ground 2(b). Grounds 2(a) and 2(c) contained alternative formulations. 394Relevant passages in the Tribunal's reasons. The Tribunal discussed at length the evidence put before it in public hearings on Peter's relationship with AVSGA. In so far as this discussion bore on the question whether Peter held a 'relevant position' in AVSGA's business, it occupied paragraphs [125] to [210] and [214] to [229]. In the intervening paragraphs, [211] to [213], the Tribunal briefly discussed and rejected the Commissioner's claim that Peter held a 'relevant financial interest' or was 'entitled to exercise any relevant power' in AVSGA's business and was for this reason a 'close associate'. 395The Tribunal's discussion included summaries of the evidence given by a number of the Commissioner's witnesses (including the three whose affidavits we have just discussed - Mr Smith, Constable Wood and Mr Guderjan), summaries of evidence given by Peter and Tony Sleiman (this included evidence of what the Tribunal called 'the intensity of the relationships' between members of the Sleiman family) and assessments of the credibility of these two witnesses. 396At [217 - 218], the Tribunal recorded the following findings:- 217 On Peter's and Tony's own evidence I am satisfied that Peter played an executive role in the business of AVS GA up until October 2006. As such he was a close associate within the meaning of section 5. 218 Their evidence also supports the finding that Peter also played an executive role in the business at some time in at least 2007. I am satisfied that Peter was performing the role of a manager in the business. He made operational decisions as needed, liaised with and advised clients and dealt with the rostering of personnel. 397The Tribunal then indicated that according to both Peter and Tony, Peter ceased to perform an executive role in AVSGA's business 'after that date' and that it was therefore necessary to determine, on the basis of the Commissioner's evidence, whether he continued to be a close associate. 398The Tribunal's finding that he did so continue was based on the following observations (at [221 - 231]):- 221... in my view significant weight should be given to the evidence concerning Peter's dealings with Dean Martin and Ralph Guderjan. I do not accept the Applicants' explanation of those dealings. I agree with the submissions made on behalf of the Commissioner in regard to the interpretation to be given to that evidence. 222 When the evidence from routine police activity is considered along with that of Mr Martin and Mr Guderjan, it can be readily inferred that Peter has continued to play an executive role in the business of AVS GA. 223 In my view Peter exercised executive authority in the business of AVS GA and he did so with Tony's approval - either tacit or explicit. Peter represented the interests of AVS GA at meetings with the regulator and discussed employing security guards. Tony never attended such meetings. Scott Taylor attended in an apparent subordinate capacity to Peter. Peter exercised managerial or controlling function over AVS GA in respect of the conduct of security activities concerning a number of venues and generally. 224 It is probable that Peter was able to maintain that role because of his position in the family. I am satisfied that through that arrangement Peter was effectively charged with the management of the core business of AVS GA. Regardless of whether he was officially appointed to the position, he was a manager and the holder of an executive position in the business of AVS GA. As such he was a close associate within the meaning of section 5. 225 I do not accept the evidence given by Peter and Tony to the effect that Peter no longer has any role with the AVS GA. In my opinion, Peter continues to be able to exercise a significant influence over and with respect to AVS GA's business, as he has in the past. 226 I am satisfied that Tony is not a person with the ability or experience to manage the business of AVS GA. He has engaged the management skills of others to perform that role. The need for that assistance has allowed Peter's participation in the executive and managerial decisions of the business of AVS GA to continue. Despite Tony's assurances that he is operating the business free of the influence of Peter, I do not accept that this is the case. 227 The inclusion of the words "holds or will hold any relevant position" in the section 5 definition of "close associate" suggests that the relevant time at which that finding must be reached is at the time of the decision. That is, to be a close associate Peter must hold a relevant position at the time the question of whether he is a close associate is determined or alternatively it must be found that he will hold such a position. 228 I am satisfied that Peter held a relevant position in the business of AVS GA as at 2010. However, there is no evidence that Peter continues to carry out that role. For practical purposes where a person is found to hold a position de facto despite their denials of doing so, it would be rare case in which a finding that the person "holds or will hold" the relevant position at the time of the decision. Of necessity the finding must be one made by inference. 229 In this matter, given my finding that Peter held a relevant position in the business of AVS GA as at 2010 and that I did not accept his denials that that was the case, any suggestion that Peter no longer holds a relevant position in the business of AVS GA lacks force. The inference must be drawn that that he continues to hold a relevant position and I therefore find as a fact that Peter holds a relevant position in the business of AVS GA. In my view he is a close associate within the meaning of section 5. The Consequences of Peter being a close associate 230 Tony has not notified the Commissioner that Peter is a close associate in the business of AVS GA. The failure to do so was a breach of a condition of the licence. If Peter had been declared as a close associate at the time the application for master licence was made, the effect of section 15(5) would have been to require the Commissioner to determine whether Peter was a fit and proper person to hold a master licence. If he were not a fit and proper person to hold the licence the Commissioner would have been required to refuse to grant the licence. 231 Section 26(1A) of the Act provides that the Commissioner must revoke a licence if satisfied that, were the licensee applying for a new licence, the Act would require that the application be refused. If Peter has been and continues to be a close associate of the business of AVS GA and if he is not fit and proper to hold a master licence, the Commissioner is bound to revoke the master licence. 399It should be added that at [70] the Tribunal had stated that it did not propose to indicate whether or not it had referred to section 15(6) material in the assessment of whether Peter was a close associate of AVSGA. 400The parties' submissions. Mr Oliver's argument on this matter was, in essence, that the Tribunal should have ruled that the passages to which the Appellants had objected in the affidavits of Mr Smith, Constable Wood and Mr Guderjan were inadmissible for the reasons explained above and that the remaining evidence admitted at the public hearings was not capable of sustaining a rational inference that Peter held a 'relevant position' in the business of AVSGA at any time after 14 August 2009. He identified this date as significant because neither of the witnesses whose testimony was expressly given 'significant weight' by the Tribunal - Mr Martin and Mr Guderjan - maintained explicitly that they had had dealings with Peter purportedly representing AVSGA at any time after this date. It followed, Mr Oliver submitted, that there was clearly no evidentiary basis for the Tribunal's inferences (at [228 - 229] that Peter held a relevant position at any time after 14 August 2009. 401This summary of Mr Oliver's submissions implies that if, as has turned out to be the case, we were to reject his claim that the contested passages in the three affidavits should not have been admitted, he would no longer maintain that the evidence on close association admitted at open hearings was incapable of sustaining a rational inference that Peter held a 'relevant position' after 14 August 2009. This is how Mr Lynch, in his written submissions, interpreted Mr Oliver's argument. The relevant passage in Mr Oliver's written submissions was as follows (paragraph 88):- To the extent that the Appeal Panel is satisfied that the Tribunal's exercise of its evidentiary discretion was contrary to law, Question 2(b) in each appeal raises for determination the Appellants' contention that, if the material that was before the Tribunal for the purpose of determining the close association [question] was limited to material that had been disclosed to the appellants, the Tribunal's finding on the close association question was not open on the material that, but for its unlawful exercise of evidentiary discretion, would have been the only material before it. 402Even though our rejection of Mr Oliver's claim that there was an unlawful exercise of evidentiary discretion could be regarded as undermining a basic premise of Ground 2(c), we will still discuss the question posed in this Ground. 403As Mr Oliver acknowledged, when an internal appeal in the Tribunal is confined to questions of law, a finding of fact in the decision under appeal can only be set aside on the ground of insufficient support from the evidence if the Appeal Panel concludes that there was no logically probative evidence on which it might be based. The Court of Appeal made this clear in a dictum (see Smith & Anor v Collings Homes Pty Ltd & Anor [2004] NSWCA 75 at [32]) quoted in a later authority (see South Western Sydney Area Health Service v Edmonds [2007] NSWCA 16 at [129]) on which Mr Oliver relied:- 32 Where the rules of evidence do not apply, in order to find error of law based on absence of evidence there must be an absence of material, whether strictly admissible according to the rules of evidence or not. 404An associated question that received some attention during the hearing of the appeals was the time or times at which the existence of a close association was relevant. Mr Lynch's submissions on this question included two propositions. 405The first of these, according with an observation of the Tribunal (at [227]), was that when considering whether the revocation of AVSGA's master licence should be reaffirmed on the ground that Peter, being a close associate, was not fit and proper to hold a licence, the Tribunal should determine whether, as at the time of its own decision, Peter was indeed a close associate. This followed, Mr Lynch said, from the provision in section 63(1) of the ADT Act that the Tribunal should decide what is 'the correct and preferable decision... having regard to the material then before it'. 406Mr Lynch's second proposition was however that when the Tribunal was considering the alternative ground that AVSGA contravened a condition of its licence through failing to disclose particulars of a close associate (i.e., Peter), the relevant time was the time when such disclosure should have been made. 407Mr Oliver appeared to agree with the first of these two propositions. He made no comment on the second proposition. 408Discussion and conclusion. It is useful to begin this discussion by dealing with the specific question just outlined. 409In our opinion, the underlying basis of Mr Lynch's first proposition is correct. It has been held more than once - see for example, Assadourian v Roads and Maritime Services (GD) [2013] NSWADTAP 46 at [56 - 60] and Naylor v Commissioner of Police, NSW Police Force [2014] NSWCATOD 43 - that the effect of section 63(1) of the ADT Act is to require the Tribunal to 'stand in the shoes of' the administrator whose decision is under review. The Tribunal is obliged to take into consideration not just the material on which the administrator's decision was founded, but all of the material that it has itself admitted into evidence. This may include material that is 'new'; i.e., that did not form part of the evidence taken into account by the administrator. Such 'new' material may be highly significant. The Tribunal may reach the conclusion that the administrator's decision was entirely correct having regard to the evidence on which it was based, but that the 'new' evidence calls for the administrator's decision to be set aside and a different decision substituted. 410Contrary to the first proposition as elaborated by Mr Lynch, however, we believe that in the particular circumstances of this case the relevant date is not the date of the Tribunal's decision (10 January 2012). There are two reasons for this. 411The first is that, as mentioned near the commencement of these reasons, the date of expiry shown on AVSGA's licence was 21 October 2011. The question whether Peter was a close associate of AVSGA after that date could not be important in determining whether its licence was subject to revocation. 412Secondly, a significant period of time - more than six months - elapsed between the final day of the Tribunal hearing (30 June 2011) and the date of its decision (10 January 2012). On the assumption (which as far as we can tell is correct) that no further evidence was received by the Tribunal after the final day of hearing, it seems correct to us to regard this final day as the date on which the scope of the 'material then before it' should be assessed. It was always open to a party to seek leave to adduce further evidence at a later stage. If leave had been granted and the evidence had been admitted, the date of admission of this further evidence would, or at least might, have become the relevant date as at which Peter's status vis-à-vis AVSGA - i.e., whether or not he was a close associate - would have had to be determined. 413The outcome of this reasoning is that, in relation to the revocation of AVSGA's licence on the ground that Peter was both a close associate and not fit and proper to hold a licence, the time as at which these matters should be assessed is 30 June 2011. 414We agree with Mr Lynch's second proposition. It follows that if Peter was a close associate of AVSGA at the time when this should have been disclosed to the Commissioner, it would be irrelevant that he might have ceased to be a close associate by the time of the Tribunal's decision. This change in the situation would have no impact on the fact that a contravention of the licence, providing discretionary grounds for revocation, had previously taken place. 415We turn now to the Appellants' claim that the evidence given in open court was inadequate to the extent that the Tribunal's findings on the question of 'close associate' should be held erroneous in law. 416In our opinion, there was clearly evidence on which a finding that Peter was a 'close associate' of AVSGA until 14 August 2009 (being the date singled out in Mr Oliver's submissions) could rationally be based. 417For the reasons that we have just given, this is sufficient to support the conclusion that the Commissioner was entitled, in his discretion, to revoke AVSGA's licence on the ground that it had failed to disclose, providing relevant particulars, that Peter was a close associate. Such disclosure should have been made during 2007, since during that year the Tribunal found (at [218]) that Peter performed 'the role of a manager in the business'. According to the Tribunal, he 'made operational decisions as needed, liaised with and advised clients and dealt with the rostering of personnel'. 418The open evidence supporting the Tribunal's findings that he held a relevant position 'as at 2010' (see the first sentence of [228]) and that he continued to hold such a position until 10 January 2012, the date of the Tribunal's decision (see [229], read in conjunction with the first sentence of [227] and the third sentence of [228]), is distinctly weaker. This is the case even when the contested passages in the affidavits of Mr Smith, Constable Wood and Mr Guderjan are taken into consideration. Mr Smith's and Constable Wood's affidavits were dated 25 August 2009 and 16 December 2009 respectively and Mr Guderjan acknowledged, in his affidavit dated 20 August 2010, that he had not spoken to Peter 'of late'. 419Furthermore, with reference to the period after 2010, the Tribunal itself said, at [228], that 'there is no evidence that Peter continues to carry out that role'. Its finding, in the next paragraph, that he nonetheless continued to hold a 'relevant position' is an inference, based particularly on the Tribunal's refusal to 'accept his denials' that he held such a position during 2010. 420For reasons that we have just given, when the revocation of AVSGA's licence on the mandatory ground that Peter was both a close associate and not fit and proper to hold a licence is under consideration, the time as at which these conditions must be satisfied is 30 June 2011 (or at the latest, 21 October 2011), not 10 January 2012. This may not make much difference, since the evidence as to Peter's continuing to be a close associate until any of these dates was not strong. 421The criterion to be applied by us, however, is whether there was an absence of logically probative evidence supporting the Tribunal's finding. Only if this is shown can the Tribunal be said to have erred in law. 422After careful consideration, we have come to the conclusion that this criterion has not been met. As the Tribunal said, the question whether Peter continued beyond 2009 to play a managerial or executive role in the business of AVSGA must be resolved in the light of such inferences as may be drawn from the evidence. The basis for the inference drawn by the Tribunal is not just that it did not accept Peter's denial of playing any such role. It also involves the Tribunal's being satisfied that Tony, the owner and sole director of AVSGA, had neither the capacity nor the experience required to manage the business. There was in our view some probative evidence tending to support the Tribunal's finding of Peter's continuation as a close associate. 423For these reasons, we reject the Appellants' claim that the Tribunal's finding of a close association between Peter and AVSGA involved an error of law because it lacked any proper evidentiary basis. It follows that Appeal Ground 2 has not been made out. 424If our conclusion that there was a proper evidentiary basis were incorrect, the Tribunal's finding of a close association during and after 2010 would have to be set aside. This would entail also the setting aside of the Tribunal's affirmation of the revocation of AVSGA's licence on the ground of Peter being both a close associate and not fit and proper to hold a licence. But it would not affect the revocation in so far as it was based on AVSGA's failure to disclose to the Commissioner that Peter was a close associate. This disclosure should have been made during 2007, at which time his status as a close associate is not challengeable in these proceedings because the Tribunal's finding relating to this period was clearly based on logically probative evidence.

Questions of procedural fairness 425Appeal Grounds 5, 5A, 6, 6A raised, both in general terms and with reference to specific aspects of the procedures adopted by the Tribunal, the question whether it had denied procedural fairness to the Appellants by taking insufficient account of the requirements in this regard imposed by subsections (1), (2), (3), 4(a), 4(c) and 5(b) of section 73 of the ADT Act. 426In the ensuing discussion, we will refer to these provisions collectively as 'the procedural fairness requirements of the ADT Act'. 427Mr Oliver argued that while section 29(3) of the SI Act, when applicable, clearly prevented the Tribunal from adopting procedures that were unfair to any applicant seeking review of a decision to revoke a licence, this provision still left considerable scope for the operation of a 'residual duty of procedural fairness', stemming particularly from sections 73(2) and 73(4) of the ADT Act. In support of this proposition, he cited the following passage in the judgment of Sackville AJA in Sleiman (Court of Appeal) at [178]:- 178 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). 428In Appeal Ground 6, the question raised was whether the Tribunal erred in law by operating on the basis that section 29(3) of the SI Act disentitled the Appellants from procedural fairness and/or from the benefits of the procedural fairness requirements of the ADT Act, 'to the extent and/or in the circumstances that the Tribunal held it did, or to any extent or in any circumstances at all'. 429Mr Oliver did not identify, and we have been unable to locate, any passage in the Tribunal's decision indicating or implying that in its opinion section 29(3) operated to 'disentitle' the Appellants from common law or statutory requirements of procedural fairness. For this reason and because this Ground did not allege any specific instances of denial of procedural fairness by the Tribunal, we conclude that it has not been made out. 430Appeal Ground 5, as developed in oral argument, raised the general question whether, in the light of authorities such as the passage quoted above from Sleiman (Court of Appeal), the Tribunal was required, in proceedings where section 29(3) was applicable, to seek to ameliorate the unfairness occasioned by this provision by considering itself to be subject to a 'heightened' duty of procedural fairness mandating it to take 'proactive' steps for the benefit of the Appellants. 431Mr Oliver relied here on principles stated by the Supreme Court in Ekermawi v Administrative Decisions Tribunal [2009] NSWSC 143 at [70 - 72] and by the Court of Appeal (upholding this decision) in Jones v Ekermawi [2009] NSWCA 388 at [37], [41 - 47]. 432Once again, this is not an issue that the Tribunal addressed in its decision. 433We agree with Mr Oliver that the Ekermawi decisions usefully demonstrate that if in any proceedings the ADT became aware that a party to proceedings had not had an adequate opportunity to address some aspect of the opposing case, the procedural fairness requirements of the ADT Act might require it to take what might be called 'proactive' steps. These could comprise or include, by way of example, relisting the matter for the purpose of allowing the party in question to present further argument. 434To this extent, it may be said that Ground 5 is made out. But because the Tribunal's decision did not include any statement at odds with the proposition stated in this Ground, the Appellants have not established any error of law on its part. 435In the numerous sub-paragraphs of Appeal Grounds 5A and 6A (and also in Grounds 20(b) and (c) (AVSGC) and 21(b) and (c) (AVSGA)), the Appellants listed instances of specific procedural measures that, in their submission, the Tribunal either adopted improperly or failed to adopt despite being under a duty to do so. Their argument was that in each of these instances the Tribunal was in breach of its residual duty of procedural fairness through failing to comply with one or more of the procedural requirements of the ADT Act. 436We have already dealt with and rejected some of these specific claims of procedural unfairness, on the ground that they were based on interpretations of specific provisions of the SI Act that we have held to be incorrect. This is the case with Appeal Grounds 5A(a), 6A(b), 6A(f), 6A(i), 6A(j), 6A(m), 6A(n), 6A(o), 6A(p) (AVSGA) and 6A(q) (AVSGA). 437We will now consider in turn each of the remaining instances. A number of them appeared to us to be raised in more than one of the sub-paragraphs of Grounds 5A and 6A. 438Grounds 5A(b) and 6A(l). The question raised in these two Grounds was whether the Tribunal erred by failing to direct the Commissioner to file copies of any criminal intelligence report or other criminal information (including criminal history) held by him in relation to any person who was an informant, or otherwise a source, of any criminal intelligence report or other criminal information held in relation to any of the Appellants that the Commissioner had or might in due course put before the Tribunal. 439At an interlocutory hearing on 29 April 2010, the Tribunal declined to give a direction along these lines. It held that in the Tony proceedings section 29(3) of the SI Act precluded any such direction and that in the Peter proceedings such a direction would be inappropriate even though 'probably' within its power. Our review of the transcripts of the Tribunal hearings from which the Appellants and their legal representatives were excluded indicates that the Tribunal did not give any directions along these lines. 440In his submissions to us, Mr Oliver argued that directions of this kind, being authorised by sections 73(2) and 73(5)(b) of the ADT Act, constituted a lawful and reasonably practical means of alleviating the forensic disadvantages affecting the Appellants and discharging the Tribunal's residual duty of procedural fairness. 441We do not share the Tribunal's doubts as to whether it had the power to give such directions. But the question whether it was under a duty to act in this way, such that its failure to do so was an error of law giving grounds for appellate intervention, raises distinctly different issues. Mr Oliver did not cite any authority bearing on this specific question, nor indeed did he deal with it at any length. We are not satisfied that such a duty exists. 442For these reasons, Appeal Grounds 5A(b) and 6A(l) are not made out. 443Grounds 5A(c) and 6A(k). These raised the question whether the Tribunal, in the absence of the Appellants and their legal representatives, heard submissions on questions of law from the Commissioner that were not directed to the content of material that the Tribunal considered to be section 15(6) material. The Appellants' argument was that to the extent that this occurred, the Tribunal was under a duty, which it failed to discharge, to advise the Appellants of the substance of these submissions and to give them an opportunity to respond to them. 444We have reviewed the transcripts of the hearings from which the Appellants and their legal representatives were excluded. They indicate that brief submissions of the kind described in these Grounds were made on the Commissioner's behalf at two of these hearings. 445In the first of them, held on 7 June 2011, the submissions dealt with the question of how the Tribunal should deal with an application by the AVSGA applicants for a declaration that the Commissioner did not rely on any section 15(6) material. Since in the appeal proceedings these parties have argued successfully that well before June 2011 there had been implicit disclosure of the existence of such material, we do not regard their exclusion from the relevant part of the hearing on 7 June 2011 as prejudicial to them. 446At the second hearing, held on 22 June 2011, the legal issues with which these submissions dealt were (a) whether the Tribunal's obligations under section 29(3) of the SI Act regarding the concealment of information are applicable to 'putative' section 15(6) material and (b) whether these obligations apply only to relevant Criminal Information to which the Commissioner has actually had regard. On both of these issues, counsel for the Appellants presented arguments to the Tribunal. In addition, they were the subject of competing submissions (on which we have delivered rulings) in these appeal proceedings. The content of the brief submissions put on the Commissioner's behalf at the hearing on 22 June 2011 formed part of his argument on these topics during the appeal. 447Accordingly, we do not consider that any prejudice was occasioned to the Appellants by their exclusion from the relevant part of the Tribunal hearing on 22 June 2011. 448Grounds 5A(d), 6A(p) (AVSGC) and 6A(r) (AVSGA). The claim in these Grounds was that the Tribunal was under a duty, which it failed to discharge, to inform the Appellants in relation to the following matters: (i) whether it considered the disclosed part of Confidential Exhibit C6B, the contents of seven other confidential exhibits (C2, C12, C13, C14, C18, C21 and C22) and the contents of 15 non-confidential exhibits (A12, A13 and A27 to A39) to be relevant to the 'fitness and propriety question' and/or to the question whether Peter was a close associate of AVSGA; (ii) if so, how much of that evidence it accepted; and (iii) what weight it attached to the evidence that it accepted. 449In its non-confidential reasons, the Tribunal did not provide any particulars of the evidence on which it relied in determining that Peter was not a fit and proper person to hold a security licence. It simply stated as follows at [234]:- 234... I have considered both the open and confidential evidence presented by the Commissioner that is the basis for the assertion that Peter is not a fit and proper person to be the holder of a licence under the Act. I agree with the Commissioner's assessment of that material. I have weighed the material provided by the Applicants against that of the Commissioner and, in my view, the evidence supports the contention that Peter is not a fit and proper person to be the holder of a licence under the Act. 450We have already outlined the Tribunal's description of the open evidence on which it relied in deciding that Peter was a close associate of AVSGA. 451If these had been proceedings in which all the admitted evidence had been disclosed to all the parties, we would be sympathetic to the argument that a bald statement of preference (such as appears in paragraph [234] of the Tribunal's decision) for the evidence tendered by the successful party would not satisfy the requirements regarding reasons for decisions that apply at common law or are set out in section 89(5) of the ADT Act. But since in this case the Tribunal took account of section 15(6) material that it was obliged to conceal from the Appellants, it could not include in its non-confidential reasons an outline of all the evidence that it accepted and the weight that it gave to the various parts of this evidence. 452We agree with Mr Oliver that, consistently with the requirements of section 29(3), it could have provided an outline of this nature relating to the non-confidential evidence. It did so in its discussion of the 'close associate' question but not when determining the 'fitness and propriety' question. 453We are not persuaded, however, that any such lacuna in the Tribunal's reasons is such as to justify appellate interference. Even if these reasons had disclosed, with regard to the non-confidential evidence on the 'fitness and propriety' question, the matters which (in the Appellants' submission) it should have disclosed, this would not have materially assisted any argument by them that the Tribunal's ruling on this question should be set aside. They would still encounter the obstacle that the confidential evidence on this question on which the Tribunal relied might provide ample justification for its ruling. 454Grounds 5A(e), 6A(q) (AVSGC) and 6A(s) (AVSGA). The general question raised in these Grounds of Appeal was whether the Tribunal failed, in any way not identified in the other Grounds, to take procedural steps open to it to ameliorate the procedural unfairness occasioned to the Appellants by the operation of section 29(3) of the SI Act. 455As Mr Lynch submitted in responding to Grounds 5 and 6, these particular sub-paragraphs of Grounds 5A and 6A are expressed at a high level of abstraction and generality. It is not open to an appellant, in our opinion, to seek from an Appeal Panel an order overturning a Tribunal decision on the ground of any error, not referred to in the Notice of Appeal or the appellant's submissions, that the Panel might itself discern in the decision. 456Grounds 6A(c), 6A(d) and 15. In these Grounds, the Appellants claimed that the Tribunal breached its residual duty to ensure procedural fairness by failing (i) to disclose to them, prior to the publication of its reasons, whether it considered that material relating to the question whether Peter was a close associate of AVSGA could be section 15(6) material and (ii) to disclose to them, in its non-confidential reasons or otherwise, whether it had in fact had regard to such material in determining this question. 457As we understand Mr Oliver's submissions, the basis for both of these claims was the proposition that material bearing on the question whether Peter was a close associate of AVSGA could not be section 15(6) material. 458We have already held to the contrary. For the reasons outlined above at [130 - 138], our view is that one of the matters on which AVSGA's fitness to hold a master licence depended was whether or not Peter was its close associate and that accordingly material bearing on this question could be section 15(6) material. 459It could be argued that even if this view is correct, the Tribunal should still have advised the Appellants, before the proceedings before it were completed, that it adhered to this view, and should also have indicated in its published reasons whether or not it actually took account of section 15(6) material in determining the close association question. 460It seems to us that the Tribunal could have adopted the first of these measures without breaching section 29(3). But we do not consider that its failure to do so caused any material prejudice to the Appellants. It is clear from the Tribunal's non-confidential reasons that they were provided with, and availed themselves of, a sufficient opportunity to tender their own evidence on the close association question and to contest the non-confidential evidence adduced in this context by the Commissioner. Since they could not (except with the Commissioner's approval) ascertain the content of any additional material adduced in confidence by the Commissioner and held by the Tribunal to be section 15(6) material, we do not see how they could have been assisted by knowing, during the course of the hearing, that the Tribunal was prepared to accept that material relating to the close association question could be section 15(6) material. For much the same reason, we do not discern any material prejudice to the Appellants by virtue of the Tribunal's failure to adopt the second measure. Without being aware of the content of any section 15(6) material relied on by the Tribunal in this context, they could not benefit significantly from being informed in its reasons that it did rely on such material. 461It follows that Grounds 6A(c), 6A(d) and 15 have not been made out. 462Grounds 6A(e), (g) and (h); 20(b) and (c) (AVSGC); 21(b) and (c) (AVSGA). These Grounds all related to the Tribunal's disallowance, on 6 April 2011, of the three 'disputed questions' that counsel for the Appellants put to Mr Cameron Smith, the Registrar of the Security Industry Registry (see [189 - 198] above). 463The matters raised in these Grounds can be summarised in the following way as four related claims. The Tribunal failed to discharge its residual duty of procedural fairness by virtue of the following aspects of its conduct of the proceedings: (i) it did not give due notice to the Appellants of any grounds on which it proposed to disallow these questions; (ii) it did not give them an opportunity to address these grounds; (iii) it did not provide them with reasons for the disallowance, despite being requested to do so; and (iv) it did not inform them, in its published decision or otherwise, why it failed to advise them of these reasons. 464In his submissions relating to Grounds 20(b) and (c) (AVSGC); 21(b) and (c) (AVSGA), Mr Lynch argued that these issues did not arise in the AVSGC proceedings, because Mr Smith's evidence was given at a hearing relating to the 'close association' question in the AVSGA proceedings. He argued further that the Tribunal was required, at this stage of these proceedings, not to disclose even the existence (let alone the content) of any material claimed by the Commissioner to be section 15(6) material. It followed, he said, that the Tribunal was prohibited by section 29(3) of the SI Act from indicating to the Appellants that a claim of this nature was being made or (after it had ruled that the three disputed questions were disallowed) that the ground of disallowance stemmed from section 29(3). 465We have already ruled, however, that well before 6 April 2011 the existence of material claimed to be section 15(6) material had been sufficiently 'disclosed' to the applicants in the AVSGA proceedings: see the discussion at [199 - 233] above. 466In our opinion, however, Mr Oliver's claim that the Tribunal breached its residual duty of procedural fairness is significantly weakened by the fact that, as indicated above at [233], the AVSGA applicants were able to infer, at the time of the Tribunal's ruling, that the ground of disallowance was a determination by it that the questions put to Mr Smith sought the disclosure of section 15(6) material. 467In the light of these considerations, our opinion regarding each of the four claims by the Appellants that we have just outlined is as follows. 468As to (i), the Tribunal could and in fact should have indicated to the AVSGA applicants that a ground on which the Commissioner objected to the disputed questions was that they sought the disclosure of section 15(6) material. This would not have involved the disclosure of the 'existence' of such material contrary to section 29(3) because such disclosure had already occurred. But as our ruling regarding claim (ii) demonstrates, this failure on the Tribunal's part did not cause any material prejudice to the applicants. 469We are not persuaded as to claim (ii). In so far as one of the factors affecting the Tribunal's disallowance of the disputed questions was its belief that evidence relating to the close association question could be section 15(6) material, the AVSGA applicants did have an opportunity, of which they availed themselves, to argue that this belief was incorrect. We do not see how the Tribunal could have given them an opportunity to respond to arguments by the Commissioner directed to the content of the answers that Mr Smith would give to the disputed questions, because this would have involved disclosure of the content of material that was claimed to fall within section 15(6). Our earlier ruling relating to disclosure of the content of 'putative' section 15(6) material (see [93 - 96]) is applicable here. 470With regard to claim (iii), we consider that the AVSGA applicants did not suffer any prejudice through not being informed as to the ground of the disallowance. The reason is that, as Mr Oliver maintained in his submissions to us, they were able to infer what this ground was. 471Having regard to our rulings on claims (i) to (iii), the alleged procedural error asserted in claim (iv) could not, in our opinion, occasion any prejudice to the Appellants. 472For the foregoing reasons, the Grounds of Appeal that we have just discussed, set out in a number of subparagraphs of Grounds 5A and 6A, are not made out at all, or to the extent that appellate interference is justified. The same applies to Grounds 20(b) and (c) (AVSGC) and 21(b) and (c) (AVSGA).

Conclusions 473Grounds 22 and 23 (AVSGC) and 23 and 24 (AVSGA) do not arise because they are conditional on the Appellants' claims of certain errors by the Tribunal being upheld. We have not accepted these claims. 474In the AVSGC appeal (129004), we have held that the Grounds of Appeal have not been established or (in the case of some of them) have not been made out to an extent justifying appellate interference with the Tribunal's decision. 475Subject to one qualification, we have reached conclusions to the same effect in the AVSGA appeal (129003). The qualification (explained above at 415 - 424]) is that if we have erred in rejecting the Appellants' claim that there was no proper evidentiary basis for the Tribunal's finding that Peter continued to be a 'close associate' of AVSGA until 30 June 2011, the alternative ground on which the Commissioner revoked AVSGA's licence - namely, failure to disclose a close associate in breach of a condition attached to its licence - remains valid. In its decision at [230] and [235], the Tribunal relied on this ground. There is no reason why this aspect of its decision should be disturbed. 476It follows that both of these appeals must be dismissed.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 23 September 2014