Borg v Commissioner of Police, NSW Police Force

NCAT Occupational|2025-02-12

REASONS FOR DECISION

Troy Borg has held a security licence under the Security Industry Act 1997 since November 2012. His licence was revoked by the Commissioner of Police, NSW Police Force (the Commissioner) on 6 September 2024 on the basis that it is contrary to the public interest for him to hold a licence and he is not a fit and proper person to hold the licence. The revocation followed Mr Borg being convicted of a criminal offence. Mr Borg has sought administrative review of the revocation decision following an internal review which affirmed that decision.
Section 29(1)(c) of the Security Industry Act permits a person to apply to the Tribunal for administrative review under the Administrative Decisions Review Act 1997 (ADR Act) of a decision to revoke a licence. Under s 58 of the ADR Act the Commissioner is required to lodge certain documents with the Tribunal, including a copy of documents she considers to be relevant to the determination of the application by the Tribunal (the s 58 documents). Section 58(5) obliges the Principal Registrar of the Tribunal to give an applicant reasonable access to documents provided to the Tribunal in accordance with s 58. As a matter of practice, the respondent to an administrative review application provides a copy of the s 58 documents to the applicant.
Under s 59 of the ADR Act, however, an administrator may apply to the Tribunal for an order that the administrator not be required to lodge a copy of a document under s 58. On any such application, the Tribunal may make an order that a copy of a document not be lodged with the Tribunal if it considers that the document is privileged within the meaning of s 67 of the Civil and Administrative Tribunal Act 2013 (NCAT Act), or, if an application were made under s 64 of the NCAT Act, it would be appropriate to make an order under that section prohibiting or restricting the publication or disclosure of evidence of the document: s 59(2)(b). In certain circumstances the Tribunal may also make an order under s 64 of the NCAT Act restricting the disclosure or publication of information.

Modification of rules of natural justice

In AVS No 2 the Court of Appeal stated that s 15(7) of the Security Industry Act clearly qualifies what would otherwise be the obligation of the Commissioner, when refusing an application for a licence, to give reasons if requested to do so: at [157]. In Gray at [103] the Court stated that the fact that s 15(7) of the Security Industry Act gives the Commissioner immunity from disclosing confidential materials in his or her reasons is a legislative indication, at an early stage in the application process, that the Security Industry Act was intended to modify that rule of natural justice entitling a person to know the case made against them.
The Court of Appeal also noted that s 29(3) of the Security Industry Act is drafted "as a directive" to the Tribunal which is mandatory in its terms: AVS No 2 at [161] - [164]. In these circumstances, if it is established that information is criminal intelligence or other criminal information, s 29(3) in terms prohibits the disclosure even of the existence of the information and its content. The prohibition on disclosure it directs is a blanket one: Gray at [97].
Once it is established that the material is criminal intelligence or other criminal information, s 29(3)(a) operates to disentitle an applicant to knowledge of both the "existence and content" of any of that material for the purpose of the review by the Tribunal. 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 38 of the NCAT Act. Nevertheless the Tribunal is required by s 63 of the ADR Act to take that material into account in its deliberations: Gray at [106].
In Gray McColl JA, with whom Giles JA and Tobias JA agreed, stated at [111] that s 29(3) of the Security Industry Act and s 73 of the ADT Act (the equivalent of s 38 of the NCAT Act), to the extent it contradicts the s 29(3) requirement that neither the existence nor content of criminal intelligence or other criminal information be disclosed by the Tribunal, cannot stand together. In her view, therefore, s 29(3) of the Security Industry Act impliedly repealed the natural justice requirements in s 73 of the ADT Act (or s 38 of the NCAT Act) 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: at [112]. This view was also reached by the Court in AVS No 1 at [145].

The interaction between s 59 ADR Act and s 29(3) Security Industry Act

In Gray, after noting that nothing in the Security Industry Act expressly allows the Commissioner and the Tribunal to not comply with their respective obligations under what is now s 58 of the ADR Act, McColl JA stated that that step would be precluded if the Commissioner invoked s 59 of the ADT Act and foreshadowed an application under s 75 of the ADT Act for confidentiality orders: at [104]. The equivalent provisions relating to this Tribunal are s 59 of the ADR Act and s 64 of the NCAT Act. It seems that this statement may have led to the current procedure whereby the Commissioner makes such an application to the Tribunal.
AVS No 1 was decided by the Court Appeal about a year after Gray. In AVS No 1 at [173]-[174] the Court of Appeal makes clear the distinction between s 59 of the ADT Act (now s 59 of the ADR Act) and s 29(3) of the Security Industry Act. The Court noted that s 59 is directed to the circumstances in which an administrator can seek to be excused from the obligation under s 58 to lodge a statement of reasons and relevant documents with the Tribunal, within 28 days of an application for review being initiated. The effect of a successful s 59 objection by an administrator is that any document to which it applies is not made available in that way to the Tribunal for the purpose of making its final decision. The Court stated that the outcome of the operation of s 59 is different to the outcome of the operation of s 29(3) of the Security Industry Act. Section 29(3) proceeds on the basis that the document in question is available to the Tribunal for the purpose of making its final determination, though access to that document and its contents has been restricted.
In this matter the Commissioner is willing, and in fact has, lodged with the Tribunal the material to which she says s 29(3) of the Security Industry Act applies. The Commissioner intends that that material be available to the Tribunal ultimately hearing the case as material relevant to its decision whether the decision of the Commissioner to revoke Mr Borg's security licence is the correct and preferable one. The lodgement of the material is in accordance with the Commissioner's obligations under s 58 of the ADR Act.
I agree with the Commissioner that s 59 of the ADR Act has no room to operate in the current circumstances. As to the Registrar's obligation under s 58(5) of the ADR Act to provide the applicant with access to the material, s 29(3) of the Security Industry Act imposes a mandatory requirement on the Tribunal concerning the disclosure of such information as contained in the documents which prevents the Registrar from granting the applicant access to those documents.
The next question to answer is whether the Tribunal should make a s 64 confidentiality order over the material and, in particular, whether that should be done at an interlocutory stage. Before deciding that question, however, it is important to understand the nature of the Tribunal's powers and obligations with respect to material that is criminal intelligence or criminal information and to determine whether the material is criminal intelligence or criminal information.

The Tribunal's powers with respect to the s 29(3) material

Section 29(3) imposes an obligation on the Tribunal to not disclose "the existence or content" of the relevant information. A threshold issue which was not argued before me is whether the material does in fact come within s 29(3) as its existence has in fact been disclosed to Mr Borg who has been provided with the Commissioner's submissions and open evidence in this matter. Mr Borg also attended the open session of the hearing before me and is well aware that the Commissioner argues that the content of certain information held by the Commissioner should not be disclosed to him.
In Gray, the Commissioner had disclosed to the applicant before the Tribunal the existence of material which was considered to come within s 29(3) of the Security Industry Act, but had not disclosed the content of that material. While this was not an issue before the Court of Appeal, at [59] McColl JA noted that it was not contended that disclosure of the existence of the material amounted to a "waiver" of the Commissioner's right to rely on s 29(3) for the purposes of a "content" claim.
In my view, to not permit the Commissioner to rely upon a s 29(3) claim with respect to the content of the information in circumstances where, for whatever reason, the existence of the material had been disclosed to an applicant would undermine the purpose of the section and would unduly restrict the information which could be put before the Tribunal that is relevant to its decision. I note that in both the AVS matters which were dealt with by the ADT and the Court of Appeal the existence of s 29(3) material was known to the applicant at all times. No issue was taken with respect to whether s 29(3) applied to the content of that material.
Under s 29(3) the Tribunal is obliged not to disclose the information caught by the section unless the Commissioner approves otherwise. In AVS No 1 at [153] Campbell JA stated: 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."
The qualification referred to by the Court is that, in proceedings in which a contention is raised that s 29(3) prohibits the Tribunal from disclosing particular information, the Tribunal must satisfy itself that the information in question is in fact criminal intelligence or criminal information to which the provision applies.
I referred above at [7] to the fact that s 29(3) now reads that the Tribunal is to ensure that it does not "disclose the existence or content of any criminal intelligence report or other criminal information without the approval of the Commissioner". The section had previously referred to "any criminal intelligence report or other criminal information referred to in s 15(6)". Under the previous section, in order for the material to fall within s 29(3), the Tribunal was required to not only to be satisfied that the information was properly classified as either "criminal intelligence" or "criminal information", but also that it was held in relation to the applicant and fell within one or other of ss 15(6)(a) - (c): Gray at [96]; AVS No 1 at [157].
The words "referred to in s 15(6)" were omitted from s 29(3) by the Security Industry Amendment Act 2017. As was made clear in the explanatory notes to the Security Industry Amendment Bill 2017, the amendment was made to ensure that protection against disclosure of criminal intelligence reports or other criminal information would apply in relation to any criminal intelligence report or other criminal information that the Commissioner is relying on in relation to the reviewable decision, which may include material in addition to what was used in making the reviewable decision In identifying whether information falls within s 29(3) the Tribunal therefore does not also have to consider whether the material meets the requirements in s 15(6) before it can be regarded as criminal intelligence or other criminal information. The matters in s 15(6), however, are relevant to the Tribunal's ultimate decision in the substantive matter.
There is no definition of "criminal intelligence" or "criminal information" in the Security Industry Act. In Gray at [95] the Court of Appeal said that whether information over which a s 29(3) non-disclosure claim is made falls within those terms is capable of objective determination. Each case must turn on the facts. Whether or not the information is criminal intelligence or criminal information could be the subject of the confidential hearing contemplated by s 29(3)(b) of the Security Industry Act: Gray at [102].
In AVS Group Australian v Commissioner of Police [2012] NSWADT 1, the Tribunal considered the meaning of the phrases in the context of s 15(6) of the Security Industry Act and concluded (at [43]-[45]): … 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. 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. 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.
On appeal, the Appeal Panel generally approved this passage, but accepted the submission from the applicant in relation to (2) that if "the circumstances in which criminal activity ... may occur", meant "the circumstances in which such activity might possibly occur", then this would extend unduly the concept of "criminal information". However, the Appeal Panel instead stated they "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": AVS Group Australia Pty Ltd v Commissioner of Police (No 2) [2014] NSWCATAP 53 at [62].
The Commissioner submits in this matter that the core category to which the composite phrase applies includes, but is not necessarily limited to, any report obtained or produced, or information held, by the NSW Police Force in connection with the investigation, prevention or monitoring of actual or suspected criminal activity, other than reports or other documents produced expressly for the purposes of public dissemination, or that have in fact been publicly disseminated, and information contained in such reports or documents.
I agree with this summation of what is encompassed within the meaning of "any criminal intelligence report or other criminal information". I also agree with the Commissioner that this includes records of information provided to police other than on a confidential basis, or obtained by police from publicly available sources, in circumstances where the record itself reveals that police have sought, received or recorded the information in question for the purposes of investigating, preventing or monitoring actual or suspected criminal activity. As McColl J stated in Gray, information that the Commissioner may come into possession of in the course of exercising her powers of investigation may include material that could not be classified as confidential, for example, a newspaper article relating to the applicant. Whether such information would fall within s 29(3) would depend on how it was used: at [102]. Such information may include material the existence and content of which were at all material times known to the applicant: AVS Group Australia Pty Ltd v Commissioner of Police (No 2) [2014] NSWCATAP 53 at [114] - [118].
In general terms, therefore, what might be encompassed within the term "any criminal intelligence report or other criminal information" is very broad.
If the Tribunal finds that the material is not caught by s 29(3), this does not mean, however, that the applicant thereby gains access to the material. In these circumstances it is up to the Commissioner to determine whether she wishes to withdraw that information from consideration by the Tribunal: s 29(4). If the material is withdrawn, it must not be disclosed to any person or taken into account by the Tribunal: s 29(5). Thus, the Tribunal's decision would be based on other material before it to the exclusion of the s 29(3) material.
It should be borne in mind that the Tribunal, when determining the substantive application before it, is not bound to agree with the Commissioner's assessment of the importance in the case of material which comes within s 29(3). The Tribunal is able to question the Commissioner about the material in a confidential hearing and make its own assessment when weighing that information against other information before it in order to arrive at the correct and preferable decision.

Does the material fall within s 29(3)?

I was asked to determine at the hearing which was scheduled to deal with the (erroneous) s 59 application whether the information is criminal intelligence or criminal information and is thus prevented from disclosure by s 29(3). To that end I viewed the material and was able to question the Commissioner's representative about it. I also had the benefit of open and confidential statements by Senior Assessment Officer Richard Esho from the Assessment Team of the Security Licensing and Enforcement Directorate of the NSW Police Force about the nature of the information to which the prohibition against disclosure in s 29(3) is claimed to apply.
At the hearing Mr Borg argued that he believes some of the information relates to charges against him which were withdrawn and, as such, are irrelevant to the issue of whether he is a fit and proper person to hold a security licence. Mr Borg, like any other applicant in his circumstances, is clearly at a disadvantage as he can only guess at what the information might be that is held by the Commissioner.
I am satisfied that the information sought to be withheld is criminal intelligence or other criminal information, at least as it applies to that information which has not in fact been released to Mr Borg in the other open s 58 documents lodged with the Tribunal and provided to Mr Borg. There was some confusion at the hearing as some information was included in both bundles. I accept the explanation that the full document was included in the s 29(3) materials for the sake of completeness. The information, that is the content, which has been released to Mr Borg cannot be said to be information to which s 29(3) applies as, clearly, the Commissioner has consented to its release.
Being conscious that both parties would have an expectation of an outcome from the hearing on 12 February 2025, I have determined at an interlocutory level the material is criminal intelligence or other criminal information and thus is afforded the protection of s 29(3) against disclosure. I am of the view, however, that, in general, the most appropriate time for determination of this question is at the hearing of the substantive matter when the Tribunal member hearing the matter has a greater understanding of the context and circumstances relating to the information claimed to be caught by s 29(3). However, to delay such a finding in this matter would not be in keeping with the guiding principle in s 36 of the NCAT Act that in exercising its powers the Tribunal is to facilitate the just, quick and cheap resolution of the real issues in the proceedings.
I am also cognisant of the approach to the procedures of the Tribunal taken by the Court of Appeal in AVS No 2, which is to prefer a construction of the Tribunal's powers and procedures that "[minimises] the opportunities for interlocutory disputation before the [Tribunal] hears and determines an application for review". Sackville AJA (Allsop P and Handley AJA agreeing) commented at [205] that: It is difficult to accept that the legislation introducing the confidentiality regime for Criminal Intelligence was intended to open the way for elaborate and expensive pre-hearing applications which can prevent the attainment of the statutory objectives of quick action by the [Tribunal] in accordance with the substantial merits of the case.
The references to the Tribunal were to the ADT, but are equally applicable to this Tribunal.
In my view there is no need for the Tribunal to determine on an interlocutory basis whether the material comes within s 29(3) of the Security Industry Act. I note that equivalent provisions are found in the Firearms Act 1996, the Tattoo Industry Act 2012, the Paintball Act 2018, the Combat Sports Act 2013 and the Explosives Act 2003 and similar considerations may apply to the relevant provisions in those Acts. That will need to be decided on another occasion taking into account the specific nature of the relevant provisions in those Acts.

Should the Tribunal make an order under s 64 of the NCAT Act?

The final issue in this case is whether additional orders ought to be made under s 64 of the NCAT Act to protect the confidentiality of the s 29(3) material. Section 64 provides that the Tribunal can make a range of orders, including prohibiting or restricting the publication or broadcast of any report of the proceedings, prohibiting or restricting the publication of evidence or matters contained in documents, and prohibiting or restricting disclosure to some or all of the parties to the proceedings of evidence or the contents of documents.
The Commissioner argues that such an order is not necessary as s 29(3) directs the Tribunal not to disclose the existence or content of the s 29(3) material. The making of any further order would therefore be otiose. I disagree.
Section 29(3), as stated by the Court of Appeal in Gray and AVS No 2, "directs" the Tribunal not to disclose the existence or content of material falling within in its terms. Section 64 of the NCAT Act is, in my view, the mechanism by which the Tribunal is able to ensure it complies with the direction in s 29(3)(a). The making of orders under s 64 has both a legal and practical effect. The making of the orders under s 64 means that these orders are in fact orders of the Tribunal and any breach of those orders may be subject to the Tribunal's enforcement jurisdiction. At a practical level, it enables the material to be readily identified by the Tribunal's Registry to prevent inadvertent release.
A direction under s 49(2) of the NCAT, where applicable, also ensures the Tribunal complies with the direction in s 29(3)(b) of the Security Industry Act concerning evidence and argument in relation to criminal intelligence or other criminal information being conducted in private.
Orders under s 64 and s 49 if required can be made at the time the s 29(3) material is considered by the Tribunal or at the time its decision is delivered. In that regard, I note the comments of Sackville AJA in AVS No 2 about whether, if the Tribunal indicated in its reasons that it had taken into account material not identified in the reasons, that would reveal the "existence" of criminal intelligence. Sackville JA was of the view that s 29(3)(a) prevents the Tribunal identifying a specific report or particular "criminal information" which it has taken into account. However, merely indicating in general terms that the Tribunal has taken into account material not disclosed in the reasons may not necessarily "disclose the existence" of criminal intelligence or other criminal information for the purposes of s 29(3)(a) of the Security Industry Act: at [168]. While not of direct relevance here as Mr Borg is aware of the existence of the material, as were the applicants in AVS No 2, this is no doubt a matter which will arise in other proceedings before the Tribunal.
In this matter I make relevant orders under ss 49 and 64 of the NCAT Act.

Orders 1. Pursuant to s 49 of the Civil and Administrative Tribunal Act 2013 the hearing of this application, insofar as it relates to the content of the Confidential Material filed by the respondent and the Confidential Statement of Senior Assessment Officer Richard Esho, be conducted in the absence of the applicant and the public. 2. Pursuant to s 64(1)(c) of the Civil and Administrative Tribunal Act 2013, until further order of the Tribunal, the publication of the Confidential Material filed by the respondent and the Confidential Statement of Senior Assessment Officer Richard Esho or matters contained in the Confidential Material filed by the respondent and the Confidential Statement of Senior Assessment Officer Richard Esho is prohibited. 3. Pursuant to s 64(1)(d) of the Civil and Administrative Tribunal Act 2013, until further order of the Tribunal, the disclosure of the Confidential Material filed by the respondent and the Confidential Statement of Senior Assessment Officer Richard Esho or matters contained in the Confidential Material filed by the respondent and the Confidential Statement of Senior Assessment Officer Richard Esho is restricted to the respondent, the respondent's legal representatives and the Tribunal. 4. Pursuant to ss 64(1)(b) and 64(1)(c) of the Civil and Administrative Tribunal Act 2013, until further order of the Tribunal, the publication or reporting of the hearing of this application, including any evidence given in the hearing, is prohibited.

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: 10 March 2025

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