AVS seeks further that the Tribunal proceedings be stayed until the First Defendant has complied with the Orders in respect of which mandamus is sought.
59 No doubt the 2nd order was sought as a precaution because it had been held by the Tribunal in the judgment of Deputy President Hennessy that any request under s 49 for a Statement of Reasons is overtaken by the obligation under s 58(1)(a) where there is an application for review (see para [9]). No appeal was taken against that determination.
60 AVS submits that the duty under s 49 is a duty in very similar terms to that which is found in s 501G of the Migration Act 1958 and which the High Court in Re Minister for Immigration and Multicultural and Indigenous Affairs, Ex Parte Palme [2003] HCA 56; 216 CLR 212 held was susceptible to enforcement by an order for mandamus.
61 Section 501G(1) relevantly provides that if a decision was made to cancel a visa under s 501(2):
"the Minister must give the person a written notice that:
(c) sets out the decision; and
(d) specifies the provision under which the decision was made and sets out the effect of that provision; and
(e) sets out the reasons (other than non-disclosable information) for the decision."
62 The joint judgment of Gleeson CJ, Gummow and Hayden JJ said at [33] that the parties correctly accepted that s 501G imposed upon the Minister a duty or obligation which was susceptible to enforcement by order for mandamus. It may be accepted that the obligation set out in s 49 is relevantly similar and is, prima facie, susceptible to an order for mandamus.
63 It must first be determined, however, whether because AVS sought to review the Commissioner's decision, the Commissioner's obligation under s 49 has been superseded by obligations (whatever they are) under s 58.
64 In my opinion s 49 has been superseded by the Commissioner's obligations under s 58. In her reasons for decision of 21 August 2009 Deputy President Hennessy held (at [9]) that any request under s 49 for a statement of reasons is overtaken by the administrator's obligation to provide a statement of reasons under s 58(1)(a). She held further that since the Commissioner had purported to provide a statement of reasons in accordance with s 58(1)(a) there was no utility in AVS requesting a statement of reasons under s 52 or in the Tribunal directing that such a statement be provided pursuant to the provision.
65 AVS did not in its Notice of Appeal to the Appeal Panel challenge that determination. Since it did not do so, as a matter of discretion I would decline to make an order in the nature of mandamus even if I was otherwise persuaded that the Commissioner had a continuing duty under s 49. However, in my opinion Deputy President Hennessy was correct. On a proper construction of s 58(1)(a) the obligation to provide reasons under s 49 is superseded. That is because s 58(1)(a) provides that where an application for review is made either a copy of any statement of reasons given under s 49 must be lodged with the Tribunal or if there is no such statement "a statement of reasons setting out the matters referred to in s 49(3)". Since in the alternative case there is a fresh obligation to provide reasons there can be no point at all in the Commissioner's continuing to have an earlier, independent but identical duty under s 49 to provide the same reasons. This view is strengthened by sub-s (2) which enables the Tribunal to direct that a copy of the reasons lodged under sub-s (1)(a) be given to the Applicant but does not mention reasons under s 49.
66 In my opinion, therefore, the Commissioner was under no continuing obligation to provide reasons under s 49. Accordingly, there is no duty in that regard to which mandamus will go.
67 The next question is whether an order in the nature of mandamus should be made requiring the Commissioner to comply with his obligations under s 58(1)(a).
68 In the first instance, the duty is an identical duty to that imposed by s 49 in terms of the material that is to be provided, that is, a statement of reasons setting out the matters referred to in s 49(3). The only relevant distinction is that the obligation under s 49 was to provide the statement of reasons to the applicant whereas under s 58(1)(a) it is to be provided to the Tribunal. Given that there is a procedure in s 58(2) and also in s 58(5) for an applicant to obtain a copy of such reasons it seems to me that the duty on the Commissioner is a duty susceptible to enforcement by order for mandamus at the behest of a person in AVS's position.
69 The issue then becomes whether the Commissioner has any right not to provide those reasons. It is at this point that s 15(7) SIA becomes relevant. Although the Court of Appeal in Gray appears to have taken the view that s 29(3) would act to repeal s 58(5) ADTA 2 different factors operated. The first was that the Commissioner was entitled under s 15(7) not to disclose the criminal information because Gray was an applicant for a licence and not an existing licensee. Secondly, the issue arose in Gray as part of the determination of an application for a review of a decision (s 29(3) SIA).
70 In the present case AVS is an existing licensee. Section 15(7) exempts the Commissioner from an obligation to given reasons that would disclose the existence or contents of criminal intelligence where he is otherwise giving reasons "for not granting a licence". Unless those words are construed as including a person in the position of AVS, an existing licensee whose licence has been revoked, the Commissioner has no exemption.
71 The Commissioner argues that because of the provisions of s 26(1A) SIA one should construe s 15(7) as applying to an existing licensee whose licence is revoked. This argument is partly based on the argument put forward by AVS that the effect of s 26(1A) is that there are 2 sorts of applicants for the purpose of s 15. There are applicants for a new licence and there are persons (who were described as notional applicants) who were existing licensees. They were described as notional applicants because s 26(1A) requires at least part of s 15 to be imported into s 26 because of the words "if the licensee were applying for a new licence, the application would be required by this Act to be refused". Section 15(1) sets out the situations where the Commissioner must refuse to grant an application for a new licence and the first such situation is that the applicant is not a fit and proper person. That is the one remaining basis upon which the Commissioner seeks to revoke the licences held by AVS.
72 That has the effect of making s 15(6) directly relevant to the revocation of a licence on the grounds that a person is not fit and proper. In that way it is argued that the word "applicant" in sub-s (6) must be read as including a notional applicant who is really an existing licensee.
73 The Commissioner argues that s 15(7) cannot be understood as referring to the giving of reasons to anyone other than an "applicant" and that, by virtue of s 26(1A), must include a notional applicant.
74 The difficulty with this argument appears to me to lie in what the legislature did in making the various amendments to the Security Industry Act. At the same time as it inserted s 26(1A) it inserted s 15(6) and (7). If the legislature had intended that sub-s (7) was to apply to an existing licensee it could have added after the word "granting" the words "or revoking". Given that s 26(1A) was inserted in 2002 to align the position of revoking a licence with the application for a new licence in a situation where the Act made it mandatory to refuse a new licence, one might have expected s 15(7) which was also inserted at the same time, to have made reference to a decision to revoke a licence. Moreover, Parliament had the further opportunity in 2005, when it made express provision for non-disclosure by the Tribunal in cases of revocation of a licence, to amend s 15(7) to express it in similar terms to s 29(3).
75 In my opinion, sub-s (7) does not give the Commissioner exemption from providing reasons for the revocation of a licence on the basis that the giving of those reasons would disclose the existence or content of any criminal intelligence report or other criminal information.
76 One starts from the position that as a general principle of construction, where a statute takes away or interferes with common law rights it should be given, if possible, a narrow interpretation. Even taking into account any modification of that principle as discussed in Electrolux Home Products Pty Ltd v Australian Workers' Union [2004] HCA 40; 221 CLR 309 at [19]-[22] it is going too far to suggest that the enactment of s 26(1A) somehow overcomes the clear choice of language in s 15(7) and its later non-amendment by using the language in s 29(3), to produce the result for which the Commissioner now contends.
77 The application in Gray fell within the opening words of s 29(3) inasmuch as an application for particulars in relation to an application for a review was part of the determination of that process - see at [106].
78 More recently in Commissioner of Police v AVS Group of Companies Pty Ltd [2009] NSWSC 1408 Rothman J held that an application for a stay was still part of the process by which the Tribunal determines an application for a review of the decision to revoke a licence - see at [45].
79 In contrast, what is being sought here is an order in the nature of mandamus to comply with an obligation that the legislature has imposed on the Commissioner under s 58(1)(a). Section 29(3) is not engaged because it is this Court which is asked to make an order for compliance with that duty. Section 29(3) is addressed only to the Tribunal and not to this or any other court.
80 The Commissioner is, therefore, under a duty susceptible to an order in the nature of mandamus pursuant to s 58(1)(a) ADTA to lodge a statement of reasons setting out the matters referred to in s 49(3) with the Tribunal.