AVS Group of Companies Pty Ltd v Commissioner of Police, New South Wales Police Force

CATCHWORDS: Application for leave to appeal - s 29(3) Securities Industry Act 1997 and its effect on the requirement to provide a statement of reasons under s 58(1)(a) in the course of determining an application for review - whether Tribunal entitled to direct that any statement of reasons exclude disclosing the existence and content or any criminal intelligence material relied upon in the making of a decision to revoke a security industry licence.

DECISION UNDER APPEAL: AVS Group of Companies Pty Ltd v. Commissioner of Police, [2009] NSWADT 223

LEGISLATION CITED : Administrative Decisions Tribunal Act 1997 Security Industry Act 1997

Commissioner of Police (NSW) v. Gray [2009] NSWCA 49 Brilliant Digital Entertainment Pty Ltd v. Universal Music Australia Pty Ltd [2004] FCAFC 270 CASES CITED: Commissioner of Police (NSW) v. Gray [2009] NSWCA 49 Twist v. Randwick Municipal Council (1976) 136 CLR 106 AVS & Ors v. Commissioner of Police [2009] ADTAP 48 Plaintiff S157/2000 v Commonwealth (2003) 211 CLR 476

APPELLANT K Oliver, barrister REPRESENTATION: RESPONDENT T Lynch, barrister

ORDERS: Leave to appeal refused.

1 The appellants seek leave to appeal against part of an order made by Magistrate Deputy President Hennessy in AVS Group of Companies Pty Ltd v Commissioner of Police, NSW Police Force [2009] NSWADT 223 which direction ("the disputed direction") reads: "Within 7 days of the date of this decision, the respondent is to lodge with the Tribunal and serve on the applicants a statement of reasons that complies with s 49(3) of the Administrative Decisions Tribunal Act 1997. In providing those reasons the respondent need not disclose the existence or content of any criminal intelligence report or other criminal information as referred to in s 15(6) of the Security Industry Act 1997 ". The disputed portion, from which the application for leave to appeal arises, is in bold italics.

2 A short background of the litigation between the parties is as follows.

3 The appellants held security licences pursuant to the Security Industry Act 1997 ("the SI Act"). Those licences were revoked pursuant to s 26 of the SI Act by the respondent, the Commissioner of Police ("the Commissioner" or "the respondent"), notice of which was served on the appellants on 23 July 2009. The notice specified that the reason for revocation was that the appellants were no longer fit and proper persons to hold a security licence.

4 The appellants sought a review of the revocation pursuant to s 29 of the SI Act, which application was filed on 30 July 2009. The application sought a stay pending determination of the application for review.

5 On 30 July 2009 Magistrate Deputy President Hennessy heard the stay application and declined to grant a stay. That refusal was on the basis of a confidential tender of "criminal intelligence report or other criminal information" within the meaning of s 15(6) of the SI Act.

6 An Appeal Panel heard the application for leave to appeal, and the appeal itself, from that interlocutory decision, on 10 August 2009. On 11 August 2009 the Appeal Panel delivered reasons which were published as AVS Group of Companies Pty Ltd v. Commissioner of Police, NSW Police Force [2009] NSWADTAP 48, allowing the appeal and referring the matter back to Her Honour. Her Honour, on the rehearing, granted a stay.

7 On 21 August her Honour determined an application by the appellants in which the questions sought to be determined were set out in the section of the decision entitled "Issues". They were as follows:- "3 The questions that arise for consideration and the answers I have given to those questions are as follows: 1.Does the Tribunal have power to direct the respondent to provide a further statement of reasons at this stage of the proceedings? Yes. 2.Does the Notice of Revocation comply with s 49(3) of the ADT Act ? No. 3.To what extent, if at all, in the circumstances of this case, does s 29(3) of the SI Act permit the respondent to provide a statement of reasons that does not comply with section 49(3) of the ADT Act ? The effect of s 29(3) is that the respondent need not disclose the existence or content of any criminal intelligence report or other criminal information as referred to in s 15(6) of the Security Industry Act 1997 when providing a statement of reasons that complies with s 49 of the ADT Act ."

8 In accordance with the third issue, the disputed direction was made. In paragraph [29] of her decision, her Honour recognised that to do so was to deprive the appellants of procedural fairness. However, her Honour considered that she was required to do so by the terms of s 29(3) of the SI Act and that the combined provisions of ss 15 and 29 of that Act overrode the requirement of procedural fairness afforded to persons by s 73 of the Administrative Decisions Tribunal Act 1997 ("ADT Act").

9 Absent the disputed direction, the respondent would be required, by the effect of s 58(1)(a) of the ADT Act, to provide and to file with the Tribunal reasons for the decision to revoke the appellants' licences which must include the facts upon which the Commissioner based his decision, including the existence and content of the criminal intelligence material which was brought before Magistrate Deputy President Hennessy in the original stay application.

10 It is that direction from which the appellants seek leave to appeal.

Principles relating to a grant of leave 11 The relevant principles are those set out in Brilliant Digital Entertainment Pty Ltd v. Universal Music Australia Pty Ltd [2004] FCAFC 270 at [3] per Black CJ and Stone J. Essentially they are that the applicant for leave to appeal must show that it would both suffer a substantial injustice were leave to appeal not be granted , and establish that the decision is attended by sufficient doubt to warrant it being considered by a Full Court.

12 The appellant frames the substantial injustice as being deprived of procedural fairness; that is, of knowing the case which he has to meet in the form of the material upon which the respondent based its decision.

13 The appellants made a number of arguments as to the doubt which attends, in their submissions, the disputed direction. In summary they are:- a) s 15(7) of the SI Act does not exempt the Commissioner from the general duty to provide reasons for a decision to revoke a licence, rather than to grant one; b) there is a difference in the natural justice considerations between those which attend the granting of a licence to a new applicant, and those which attend the revocation of a licence which enables the holder to engage in a business or has some other valuable right attached; c) s 29(3) of the SI Act does not require the Tribunal to make directions restricting the scope of the reasons statutorily required to be provided pursuant to s 49 and/or s 58(1)(a) of the ADT Act; and d) the duty to give reasons can only be overridden in the context of the determination of an application for review by the Tribunal. An order under s 49 or under s 58(1)(a) is not part of the process of "determination of an application for review".

14 The summaries given above are mine, and not the words of the appellant.

15 The respondent contends that the question of law identified in the Notice of Appeal did not arise from the decision below. In order to meet this submission, the appellants sought and were granted leave to abandon the reliance on s 49 of the SI Act, and to restrict the application for leave to the effect of s 58(1)(a) of the ADT Act.

16 A Further Amended Notice of Appeal was filed on 7 September. The sole question of law identified as being the basis of the appeal:- "Does s 29(3) of the Security Industry Act 1997 operate:- a) to limit the scope of the Commissioner's duty pursuant to s 58(1)(a) of the Administrative Decisions Tribunal Act 1997 to provide an adequate statement of reasons for revocation of a security licence pursuant to s 26 of the Security Industry Act 1997; and/or b) to require or empower the Tribunal wholly or in part from performance of that duty in accordance with its terms in circumstances where such exemption results in procedural unfairness to the party seeking review?"

Relevant Legislation 17 The following provisions are relevant. Sections which will be referred to in detail are noted in bold italics. a) SI Act 15 Restrictions on granting licence - general suitability criteria (1) The Commissioner must refuse to grant an application for a licence if the Commissioner is satisfied that the applicant: (a) is not a fit and proper person to hold the class of licence sought by the applicant, or (b) is not of or above the age of 18, or (c) in the case of application for a licence other than a provisional licence - does not have the competencies and experience prescribed by the regulations in respect of the class of licence sought by the applicant, or (d) is not competent to carry on the security activity to which the proposed licence relates, or (e) is not an Australian citizen or a permanent Australian resident. (2) The Commissioner may refuse to grant an application for a licence if the Commissioner is satisfied that the applicant: (a) in the case of an application for a class 1 licence: (i) has not, for at least 12 months, held a provisional licence authorising the applicant to carry on the security activity to which the proposed licence relates, or (ii) has not previously been authorised by a licence (other than a provisional licence) to carry on the security activity to which the proposed licence relates, or (b) in the case of an application for a provisional licence - has not completed, to the satisfaction of the Commissioner, an approved security industry training course that is relevant to the class of licence sought, or (c) in the case of an application for a class 1 licence where the applicant has previously been authorised by a licence to carry on the security activity to which the proposed licence relates: (i) has failed to demonstrate active participation or employment in the security industry for a significant period of the previous licence, after taking into account any actual experience or offered work or contracts, or (ii) has not been engaged in the security activity authorised by the previous licence for a significant period, or (iii) has failed to demonstrate continuing knowledge and competency in relation to the security activity authorised by the previous licence. (3) The Commissioner may refuse to grant an application for a licence if the Commissioner considers that the grant of the licence would be contrary to the public interest. (4) The regulations may provide additional mandatory or discretionary grounds for refusing the granting of an application for a licence. (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: (a) (Repealed) (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, or (ii) contravenes any provision of this Act or the regulations, whether or not the licensee has been convicted of an offence for the contravention, or (iii) contravenes any condition of the licence, or (c) (Repealed) (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. (2) The Commissioner may revoke a licence by serving on the licensee, personally or by post, a notice stating that the licence is revoked and the reasons for revoking it. (3) The revocation of a licence by such a notice takes effect when the notice is served or on a later date specified in the notice. Note. Section 31 requires the licensee to immediately surrender the licence if the licence is revoked. (4) The Commissioner may, by serving a further notice on the holder of a licence, cancel a notice revoking a licence before the notice takes effect.

29 Right to seek review from Administrative Decisions Tribunal (1) A person may apply to the Administrative Decisions Tribunal for a review of the following decisions: (a) the refusal or failure by the Commissioner to grant a licence to the person (other than by operation of section 24 (3)), (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. (2) For the purposes of this section, an application for the grant of a licence is taken to have been refused if the licence is not granted within 60 days after the application is made in accordance with this Act. Note. Under the Administrative Decisions Tribunal Act 1997, if the ADT has reviewed a "reviewable decision" (such as a decision referred to in the above section), a party to the proceedings may appeal to an Appeal Panel of the ADT. An appeal on a question of law may then lie to the Supreme Court. (3) In determining an application for a review of any decision to refuse to grant a licence or to revoke a licence that was made on the ground of the applicant not being a fit and proper person, the Administrative Decisions Tribunal: (a) is to ensure that it does not, in the reasons for its decision or otherwise, disclose the existence or content of any criminal intelligence report or other criminal information referred to in section 15 (6) without the approval of the Commissioner, and (b) in order to prevent the disclosure of any such report or other criminal information, is to receive evidence and hear argument in the absence of the public, the applicant for review, the applicant's representative and any other interested party, unless the Commissioner approves otherwise. Note. Section 15 (7) of this Act provides that the Commissioner is not, under this or any other Act or law, required to give any reasons for not granting a licence if the giving of those reasons would disclose the existence or content of any criminal intelligence report or other criminal information referred to in section 15 (6). Accordingly, Part 2 of Chapter 5 of the Administrative Decisions Tribunal Act 1997 does not apply to any decision to refuse to grant a licence based on such information to the extent that it would require disclosure of the existence or content of any criminal intelligence report or other criminal information. a) ADT Act. 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. (4) The regulations may: (a) exclude any class of reviewable decisions from the application of this section, or (b) alter the period within which a statement of reasons under this section must be given. 58 Duty of administrator to lodge material documents with Tribunal where decision reviewed

(1) An administrator whose reviewable decision is the subject of an application for review to the Tribunal must, within 28 days after receiving notice of the application, lodge with the Tribunal: (a) a copy of any statement of reasons given to the applicant under section 49 (or, if no such statement was given to the applicant, a statement of reasons setting out the matters referred to in section 49 (3)) , and (a1) a copy of any statement of reasons for a decision in an internal review conducted in respect of the reviewable decision, and (b) a copy of every document or part of a document that is in the possession, or under the control, of the administrator that the administrator considers to be relevant to the determination of the application by the Tribunal. (2) If the applicant has not been given a statement of reasons under section 49, the Tribunal may direct that a copy of the statement of reasons lodged with the Tribunal under subsection (1) (a) be given to the applicant within such period or periods as the Tribunal directs. (3) If the Tribunal or President considers that a party to the proceedings would or might suffer hardship if the period of 28 days provided by subsection (1) is not shortened or extended, the Tribunal or President may, at the request of the party, make an order directing that the copies referred to in that subsection be lodged with the Tribunal within such shorter or extended period as is specified in the order. (4) If the Tribunal or President considers that other particular documents (or that other documents included in a particular class of documents) may be relevant to the determination of the application, it may cause a notice in writing to be served on the administrator: (a) stating that the Tribunal or President is of that opinion, and (b) directing the administrator concerned to lodge with the Tribunal, before a date specified in the notice, a copy of each of those other documents that is in the possession, or under the control, of the administrator. (5) The Registrar of the Tribunal is to grant reasonable access to the applicant in the proceedings to any copy of a document lodged under this section by an administrator. Reasonable access includes, but is not limited to, enabling the applicant to make a photocopy of a document during ordinary business hours. (6) If a party to proceedings before the Tribunal seeks a summons under section 84 against an administrator for the production of any document and a copy of that document has been lodged with the Tribunal under subsection (1) or (4), the Tribunal may (on such conditions as it considers appropriate) direct the Registrar to grant the party access to its copy of the document instead of issuing a summons if access to the document could lawfully be required by the issue of a summons. (7) Nothing in this section requires the disclosure of, or the granting of access to, any document (or a copy of a document) in contravention of any of the following: (a) an order made under section 59 (Objections to lodgement), (b) an order made under section 75 (Proceedings on hearing to be conducted in public), (c) section 124 (Application of Act to exempt documents under Freedom of Information Act 1989) , (d) section 125 (Privileged documents). (8) For the purposes of this section, a reference to a document in the possession of an administrator includes a reference to a document to which the administrator has an immediate right of access. 73 Procedure of the Tribunal generally (1) The Tribunal may, subject to this Act and the rules of the Tribunal, determine its own procedure. (2) The Tribunal is not bound by the rules of evidence and may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice. (3) The Tribunal is to act with as little formality as the circumstances of the case permit and according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms. (4) The Tribunal is to take such measures as are reasonably practicable: (a) to ensure that the parties to the proceedings before it understand the nature of the assertions made in the proceedings and the legal implications of those assertions, and (b) if requested to do so - to explain to the parties any aspect of the procedure of the Tribunal, or any decision or ruling made by the Tribunal, that relates to the proceedings, and (c) to ensure that the parties have the fullest opportunity practicable to be heard or otherwise have their submissions considered in the proceedings. ....

The decision of the Tribunal 18 The scope of difference between the parties is, as can be seen, of a small compass. This does not mean that the matter is unimportant, merely that much of her Honour's decision in the Tribunal below is uncontroversial.

19 Her Honour ultimately found as per the issues set out in paragraph 7 above. Her Honour held (at [9]) that once an application for review had been filed, any request for reasons under s 49 of the ADT Act was overtaken by the administrator's requirement to provide a statement of reasons pursuant to s 58(1)(a).

20 Her Honour found (at [14] ff) and it was agreed on the hearing of the application for leave, that the notice of revocation did not comply with the requirements of s 49(3) of the ADT Act.

21 At paragraph [18], her Honour found that the basis of the revocation was that the appellants were not "fit and proper persons" to hold a licence. That finding, she held, brought into play sub-s 15(6) and (7) of the SI Act.

22 In paragraph [20] of the decision her Honour dealt with the submissions that s 29(3) of the SI Act meant that, despite the requirements of s 49(3), the Commissioner was not required to provide reasons which disclosed the existence or content of criminal intelligence material. And in paragraph [22], her Honour cited Commissioner of Police (NSW) v. Gray [2009] NSWCA 49 and said:- "Essentially the issue [ in Gray's case ] involved a consideration of whether s 29(3) overrode the Tribunal's obligation to afford parties procedural fairness as outlined in s 73 of the ADT Act".

23 The decision then went on to discuss whether Gray's case could be distinguished from the current facts or whether it was substantively similar. Her Honour held that it was applicable, given that the Court of Appeal in Gray held that "directions for particular to be provided to an applicant was something done in determining an application for review" (at [27]). Her Honour went on to say that she found that "the Tribunal is determining an application for review when considering whether to direct the respondent to provide a compliant statement of reasons". 24 Once her Honour had made that finding, the finding that s 29(3)(a) applied to applications for review of decisions to revoke licences followed at [29].

25 Her Honour at [136] cited Twist v. Randwick Municipal Council (1976) 136 CLR 106 per Barwick CJ at 110, where the Chief Justice said:- "The court will approach the construction of the statute with a presumption that the legislature does not intend to deny natural justice to the citizen. Where the legislation is silent on the matter, the court may presume that the legislature has left it to the courts to prescribe and enforce the appropriate procedure to ensure natural justice".

26 Her Honour was mindful of the fact that applying s 29(3) of the SI Act to the requirement for provision of a statement of reasons would be to "deprive ... the appellants of procedural fairness" (at [31]). However, her Honour noted that, in contrast to Twist¸ the legislature had been anything but silent in its intention to deprive persons applying for and being refused, or holding security licences which have been revoked, of natural justice. Her Honour referred to the words "or to revoke a licence" in s 29(3) of the SI Act and said:- "The only possible effect of those words is that the Tribunal is prevented from disclosing the existence or content of any criminal intelligence report or other criminal information referred to in s 15(6) without the approval of the Commissioner" (at [31]).

27 Finally, her Honour held that the purpose of s 29(3) would be defeated were the criminal intelligence material to be provided at an interlocutory stage by way of compliance with s 49(3) or s 58(1)(a). Her Honour said (at [32]):- "I have concluded that the same reasoning applies to a decision to revoke a licence". Submissions of the Parties 28 The appellants' arguments, set out above in paragraph 13 above, rely in essence on the interplay between s 58(1)(a) of the ADT Act and ss 15(6) and 29(3) of the SI Act. Those sub-sections in their fuller context of the whole sections in which they appear are set out above.

29 The appellants submit that s 15(7) of the SI Act does not exempt the Commissioner from the giving of reasons for a decision. What it does is exempt the Commissioner, in the very limited circumstances set out in sub-s (6), ie, "for the purpose of determining whether an applicant is a fit and proper person to hold the class of licence sought by the applicant", from giving reasons "for not granting a licence" which would disclose the existence or content of any criminal intelligence material or reports.

30 The appellants argue that s 58(1)(a) (and, prior to the filing of an application for review, s 49(3)) of the ADT Act requires a decision-maker to give reasons setting out factors, inter alia, "the findings on material questions of fact, referring to the evidence or other material on which those findings were based". It was strongly argued that s 15(7) of the SI Act should be read only to chip away at the statutory command to an administrator to provide reasons, on request or as part of the review process in the Tribunal, to the extent necessary to comply with s 15(7). And s 15(7), it is argued, applies only to reasons for "not granting a licence", rather than revocation of a licence.

31 In discussing the impact of the Court of Appeal decision on the restrictions of natural justice by the SI Act, the appellants sought to differentiate the case of Gray (supra), on the basis that Gray's case was one in which the Commissioner had refused to grant a licence, not revoked one, and thus was squarely within 15(7). It was argued that given the law on the different consequences of refusal and revocation of licences, a differentiation about the giving of reasons including confidential material for refusals (as in Gray, to which it was argued that s 15(7) applied) and for revocations was not only understandable but likely. "The obvious point of distinction is that an existing licensee, unlike a new applicant for a licence, has an interest in the continuity of his business or employment of which he should not be deprived without the fairest hearing that the law can permit" - see appellant's submissions, p 7, citing De Smith, Woolf & Jowell, Judicial Review of Administrative Action (5th edition 1995) at para [8-021]-[8-028].

32 The other main point argued by the appellant was that her Honour erred in holding that s 29(3) of the SI was enlivened, and thus entitled her Honour to make the disputed direction, because the Tribunal was engaged "in the determining an application for review of [a] decision ... to revoke a licence that was made on the ground of the applicant not being a fit and proper person" (at [20] of the decision).

33 Section 29(3) of the SI Act requires the Tribunal "to ensure that it [ie, the Tribunal] does not, in the reasons for its decision or otherwise, disclose the existence or content of any criminal intelligence report or other criminal information referred to in section 15 (6) without the approval of the Commissioner". It was pointed out by the appellant that the existence of the criminal intelligence material had already been disclosed to the appellants during the stay application, and so the sub-section, if it applies, can only apply to the content of that material. It was submitted that s 29(3) seeks to ensure that the Tribunal does not make any disclosure which has not in fact already occurred.

34 The appellants took issue with whether, in making directions as to the provision of reasons, the Tribunal was in fact "determining an application for review". In AVS & Ors v. Commissioner of Police [2009] ADTAP 48, the Appeal Panel held that the provisions of s 15(6) and 29(3) did not apply to an application for a stay (which power is found in s 60 of the ADT Act). It should be noted that this decision is currently under appeal to the Supreme Court and judgment has been reserved. Quite properly, no submissions were made by either party as to the likely outcome of that appeal.

35 The respondent argued that the request for reasons was made in the course of the application for review, thus invoking the powers of s 58(1)(a) rather than s 49(3) of the ADT Act, and that the decision of her Honour was made only on the basis of s 29(3), and not 15(7), of the SI Act.

36 The practical upshot of this submission is the questions set out in the Amended Notice of Appeal do not arise from the decision, and therefore the application for leave should be refused. This submission was overtaken, of course, by the filing of the Further Amended Notice of Appeal.

37 The respondent further argued that Gray was not distinguishable from the current circumstances, and thus the conclusions as to the effect of s 29(3) of the SI Act were binding on this Tribunal. Gray's case involved a direction by the Tribunal member for provision of particulars of the basis of upon which a licence had been rejected, rather than reasons for the decision for a revocation. But the respondent says that is a distinction without a difference, as the power relied upon to restrict the provision of criminal intelligence material was relevantly 29(3) and thus the conclusions reached by the Court of Appeal in that case are "substantively identical" to the current case.

38 It was argued by the respondent that the direction of the Tribunal below was something done "In ... determining and application for review" for the purposes of s 29(3), and thus the restriction on disclosure of criminal intelligence material applied to revocations of, as well as refusals to grant a licence.

Consideration of the application for a grant of leave 39 It appears to me that the application for leave does involve a question of substantial injustice. It is clear that the provisions of the SI Act are intended to override the provisions of the clear right to procedural fairness otherwise enshrined in the ADT Act - see Gray at [103].

40 The impact of not knowing the case which a person is entitled to meet is certainly, if not authorised by relevant legislation, a significant one on the rights that person would otherwise have. Her Honour was alive to this issue and quoted at paragraph [29] of her decision from Plaintiff S157/2000 v Commonwealth (2003) 211 CLR 476 Gleeson CJ said, at 492 [30], as follows: . . .courts do not impute to the legislature an intention to abrogate or curtail fundamental rights or freedoms unless such an intention is clearly manifested by unmistakable and unambiguous language. General words will rarely be sufficient for that purpose. What courts will look for is a clear indication that the legislature has directed its attention to the rights or freedoms in question, and has consciously decided upon abrogation or curtailment. 41 Accepting that, if there were no authorisation in the relevant legislation for the disputed direction, a substantial injustice would result, does sufficient doubt attend the decision to warrant it being referred to an Appeal Panel for reconsideration?

42 Many of the issues in this matter can be resolved by determining whether Gray is distinguishable from the present case, or not.

43 In Gray, McColl JA, with whom Giles and Tobias JJA agreed, examined in quite some detail the construction of s 29(3) (see pars [74] ff). In par [79] her Honour says:- "[Section 29(3)] ensured that a successful s 29(3) claim did not, as would a successful public interest immunity claim, preclude the Tribunal from considering relevant s 15(5) materials pursuant to ss 58(1)(b) and 63 of the ADT Act". 44 In par [103], McColl JA, said:- "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 against him".

45 This paragraph was relied upon by the respondent to ground the submissions summarised above.

46 And in par [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 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. ... [106] ... 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 fairness in s 73".

47 This passage was relied upon by both parties for various purposes.

48 The crucial paragraph of Gray, however, is paragraph [112]. In that paragraph, McColl JA says:- "In my view, therefore, s 29(3) of the SI Act impliedly repeals s 73 to the extent to which it would otherwise apply to an application for a review of any decision to refuse to grant a licence or to revoke a licence that was made on the ground of the applicant not being a fit and proper person".

49 It was this paragraph that was distinguished by the Appeal Panel in AVS [2009] ADTAP 48, in that those proceedings involved determination of a stay, being an interlocutory proceeding which did not involve the same questions or process as that involved in a determination of an application for review.

50 However, in this case, it is clear that McColl JA and the other members of the Court of Appeal considered that the powers of the Tribunal relating to the provision of evidence, including those under s 58, were proceedings within the process of determination of an application for review. This is clear from the context and effect of s 58, as well as its location in a section entitled "Applications for review".

51 Having found that Gray is not relevantly distinguishable from the current factual circumstances, it appears to me to be clear that the application for leave to appeal should be refused on the basis that there is not sufficient doubt attending the decision to require reconsideration by an Appeal Panel.

52 The submission of the respondent, adopting the words of her Honour in the Tribunal below, as to the purpose and intent of the legislation, as well as the expressed interference with procedural fairness, is a powerful on in the terms of s 29(3). While such sections must be interpreted strictly so that their impact does not extend beyond that which was intended, it seems to me that in this case, where I am bound by Gray to find that the determination of the application for review has commenced, there are no prospects of success for the appellant's interpretation of s 29(3).

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