Commissioner of Police v AVS Group of Companies Pty Ltd; AVS Group of Companies Pty Ltd v Commissioner of Police

Commissioner of Police v AVS Group of Companies Pty Ltd; AVS Group of Companies Pty Ltd v Commissioner of Police - [2009] NSWSC 1408 - NSWSC 2009 case summary — Zoe

[16]

JUDGMENT 1 HIS HONOUR: These proceedings concern the purported revocation of licences held by AVS Group of Companies Pty Ltd ("AVS"), ASET Security & Training Pty Ltd ("ASET") and Peter Sleiman (collectively these licence holders will be hereinafter referred to as "the appellants"). The Commissioner of Police ("the Commissioner") purportedly issued a notice revoking the licences on 23 July 2009, through his delegate. No relevant distinction needs to be drawn between the delegate of the Commissioner and the Commissioner and reference will hereinafter be made to the Commissioner. 2 The appellants appealed the revocation to the Administrative Decisions Tribunal ("the Tribunal") and applied for a stay, which was heard and determined by Magistrate Hennessy, Deputy President of the Tribunal. Her Honour declined to grant the stay. The appellants appealed the decision to refuse a stay and an Appeal Panel of the Tribunal allowed the appeal on the basis that in the initial decision her Honour took account of police intelligence without informing the appellants, which, according to the Appeal Panel, she was not entitled to do. The Commissioner seeks to set aside that decision of the Appeal Panel. 3 In the second set of proceedings the appellants seek to quash the revocation by the Commissioner on the grounds that the revocation notice was invalid, because: it purported to cancel the licence of three persons in one notice; it does not state at all or sufficiently the reasons for revocation, because those reasons are ambiguous; and/or, even if those reasons were not ambiguous, the reasons are inadequate. 4 The Commissioner, while seeking to answer each of the appellants' contention as to the notice of revocation, submits that the appellants are estopped (by convention) from asserting that the notice of revocation is legally effective, and, alternatively, that as a matter of discretion, the Court would not grant the orders sought by them. 5 Even though the Commissioner's summons predates the summons filed by the appellants, the Court will deal with the issues raised in the appellants' summons, before dealing with the issues raised by the Commissioner. Each of the respective proceedings involves a construction of the Security Industry Act 1997, the Security Industry Regulation 1998 and the Administrative Decisions Tribunal Act 1997. Legislation 6 The most relevant legislative provisions need to be set out in full: Security Industry Act 1997

[21]

" 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)."

[23]

" 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."

[30]

" 73 Procedure of the Tribunal generally (1) The Tribunal may, subject to this Act and the rules of the Tribunal, determine its own procedure. (2) The Tribunal is not bound by the rules of evidence and may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice. (3) The Tribunal is to act with as little formality as the circumstances of the case permit and according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms. (4) The Tribunal is to take such measures as are reasonably practicable: (a) to ensure that the parties to the proceedings before it understand the nature of the assertions made in the proceedings and the legal implications of those assertions, and (b) if requested to do so-to explain to the parties any aspect of the procedure of the Tribunal, or any decision or ruling made by the Tribunal, that relates to the proceedings, and (c) to ensure that the parties have the fullest opportunity practicable to be heard or otherwise have their submissions considered in the proceedings. (5) The Tribunal: (a) is to act as quickly as is practicable, and (b) is to ensure that all relevant material is disclosed to the Tribunal so as to enable it to determine all of the relevant facts in issue in any proceedings, and (c) may require evidence or argument to be presented in writing and decide on the matters on which it will hear oral evidence or argument, and (d) in the case of a hearing-may require the presentation of the respective cases of the parties before it to be limited to the periods of time that it determines are reasonably necessary for the fair and adequate presentation of the cases, and (e) may require a document to be served outside the State, and (f) may adjourn proceedings to any time and place (including for the purpose of enabling the parties to negotiate a settlement), and (g) may dismiss at any stage any proceedings before it in any of the following circumstances: (i) if the applicant (or, if there is more than one applicant, each applicant) withdraws the application to which the proceedings relate, (ii) if the Tribunal considers that the proceedings are frivolous or vexatious or otherwise misconceived or lacking in substance, (iii) if the applicant (or, if there is more than one applicant, each applicant) has failed to appear in the proceedings, (iv) if the Tribunal considers that there has been a want of prosecution of the proceedings, and (h) may reinstate proceedings that have been dismissed because of an applicant's failure to appear if the Tribunal considers that there is a reasonable explanation for that failure. (6) A judicial member may: (a) hold a directions hearing in relation to any proceedings before the Tribunal, or (b) authorise a non-judicial member, the Registrar or a Deputy Registrar to hold a directions hearing in relation to any proceedings before the Tribunal."

[35]

I CONSIDER THAT IT IS NOT IN THE PUBLIC INTEREST FOR YOU TO CONTINUE TO HOLD A LICENCE. " 8 As can be seen from an analysis of s 26 of the Security Industry Act, the Commissioner's revocation of a licence is performed by serving on the licensee "personally or by post" the revocation notice and the reasons for revoking it. Further, as is clear from that section, it takes effect on service. 9 It is not disputed that the notice was in fact brought to the attention of each of the three appellants and it is conceded that personal service has been effected on each appellant. 10 Essentially, the appellants submit that one notice is not effective to cancel the licence of three persons, because "the language employed" in the legislation, they submit, "is consistently and resolutely singular". This submission is untenable in light of the provisions of s 8(b) of the Interpretation Act 1987, which defines any word or expression in the singular to include a reference to the word or expression in the plural form, where that word is used in any Act. As a consequence, the singular form used in s 26(2) of the Security Industry Act includes the plural and allows the Commissioner to revoke licences by serving on the licensees notices or a notice stating that the licence is revoked. There is nothing in the provisions of the Security Industry Act, nor in the terms of s 26 thereof, that would create a context in which the Interpretation Act did not apply in that manner. Ambiguity in Notice 11 The foregoing does not totally answer the submission made by the appellants. They submit, citing the opening substantive paragraph of the revocation notice, recited above, that there exists an ambiguity as to the person to whom notice is being given by the terms of that paragraph. 12 The opening paragraph of the revocation notice refers to "your Class 1ABC2ABD security licence". As is clear from the provisions of ss 10, 11 and 12 of the Security Industry Act, recited above, that is a reference to a non-corporate person, who holds a licence that allows the person to patrol, protect, watch or guard property while unarmed, to act as a bodyguard, to act as a crowd controller, to act as a consultant, to sell and provide advice in relation to security equipment and to sell services of persons carrying on security activity, and to provide training, assessment or instruction. The only holder of a 1ABC2ABD licence is Mr Sleiman (see Affidavit of Peter Sleiman, 21 August 2009, paragraph 4 and Annexure G). 13 Further, AVS and ASET were the holders of master security licences issued, in the case of AVS on 28 April 2007 (licence number 408499079) and, in the case of ASET, on 11 September 2004 (licence number 408981164). To the extent that it is argued, faintly, that the licence issued to AVS did not render AVS the master licence holder, it does not affect the validity of a notice to AVS that its licence has been revoked. The notice to AVS, obviously, can be operative only to the extent that AVS is a licence holder. But no practical issue results from any such confusion, if there be any. Assuming that the revocation notice was otherwise effective, after it was served AVS did not hold a master licence. One could well imagine a situation where the Commissioner would revoke a licence in circumstances where the licensee was unclear because of some ambiguity in the original grant of the licence. 14 To the extent that a master licence is held in the name of Mr Sleiman then, it seems, the notice has not purported to cancel such a master licence. The notice purports to cancel the master licences held in the name of AVS and ASET only. But it is unnecessary for the Court to determine whether the original licensee was AVS or Mr Sleiman. It would seem, without finally determining the issue, that AVS was the master licence holder and Mr Sleiman was the person whose credentials enabled that master licence to be held. 15 No one has challenged the revocation of any master licence purportedly held by Mr Sleiman and none of the grounds purport to seek a declaration that Mr Sleiman was a licence holder. Ambiguity of Reasons 16 The submission in relation to the ambiguity of reasons relies on the fact that the revocation notice was addressed to each of the three licensees at one address, which is the principal place of business of ASET but is not an office connected with AVS and its only connection with Mr Sleiman is that it is an address next door to his. Obviously, account must be taken that Mr Sleiman is either a principal or Close Associate of AVS and ASET. 17 As earlier stated, no issue was taken that notice has been given to each of the appellants and personal service has been effected. The issue of the one location, referred to in the revocation notice, is agitated because, it is said, that together with one set of "reasons for revocation" it creates an ambiguity as to why, in the case of each of the appellants, the licence has been revoked. 18 The reasons for the revocation have been recited and extracted above. Given that a "person" includes a corporate entity, there does not seem to be any necessary or reasonably-arising ambiguity. Each of the "reasons for revocation" (namely, that the person has ceased to be fit and proper and that it is not in the public interest) on a proper construction of the revocation notice, applies to each of the licence holders whose licence is purported to be revoked. There is no ambiguity and the ground is untenable. Inadequacy of Reasons 19 This ground of attack raises a fundamental issue associated with the distinction between the decision that is made and the reasons therefor. The decision that is made by the Commissioner is a decision to revoke the licence pursuant to s 26 of the Security Industry Act. The reasons for the revocation are the formation of the opinion of the Commissioner that the licensees are no longer fit and proper persons and/or that it is not in the public interest for them to continue to hold licences. So much is clear from the terms of the revocation notice. 20 The criticism of the reasons is that the Commissioner does not disclose the basis upon which he formed the opinions described above. Further, although seemingly not raised or pursued with enthusiasm, is that there are necessary steps between the formation of the opinions and the revocation of the licences. 21 Section 15 of the Security Industry Act requires the Commissioner to refuse to grant an application if the applicant is not a fit and proper person and allows the Commissioner to refuse to grant an application if the grant of the licence were to be contrary to public interest. Section 26(1A) of the Security Industry Act requires the Commissioner to revoke a security licence where the Commissioner is satisfied that if the licensee were applying for a new licence the application would be required by the terms of the Security Industry Act to be refused. It also allows the revocation of a licence for a number of other reasons, which are not currently relevant. The satisfaction of the Commissioner that the grant of a licence would be contrary to public interest is a matter derived from s 15(3) of the Act. That provision utilises the term "may refuse", which would ordinarily be a grant of discretion, especially when compared with the provisions of s 15(1), which refer to the Commissioner refusing an application in terms that he "must refuse" the licence. 22 If the terms of s 15(3) grant a discretionary power, the satisfaction (that a licensee continuing to hold a licence would be contrary to public interest) is not a reason that the application would be required by this Act to be refused. Therefore, if s 15(3) requires an exercise of discretion, the terms of s 26(1A) of the Act are not invoked. 23 One must therefore construe the terms of s 15(3) of the Act. In doing so, the Court adopts the approach to which the High Court of Australia referred to in Project Blue Sky Inc & Ors v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355. In the joint judgment of McHugh, Gummow, Kirby and Hayne JJ, the Court said: "A legislative instrument must be construed on the prima facie basis that its provisions are intended to give effect to harmonious goals. Where conflict appears to arise from the language of particular provisions, the conflict must be alleviated, so far as possible, by adjusting the meaning of the competing provisions to achieve that result which will best give effect to the purpose and language of those provisions while maintaining the unity of all the statutory provisions. Reconciling conflicting provisions will often require the court 'to determine which is the leading provision and which the subordinate provision, and which must give way to the other'. Only by determining the hierarchy of the provisions will it be possible in many cases to give each provision the meaning which best gives effect to its purpose and language while maintaining the unity of the statutory scheme." 24 Further, the joint judgment in Project Blue Sky, supra, referred to a purposive construction derived, ordinarily, from the grammatical meaning of the provision, but not always. It is important to discern the context of the words, the consequences of a literal or grammatical construction and the purpose of the statute, amongst other things: Project Blue Sky at [78]. It is by that process of construction that one determines whether and how a power is to be exercised and the consequences of a failure to exercise it in that way. 25 In discerning the proper construction of s 15(3) of the Act, one must necessarily examine the consequences and the effect of the provision. It is inconceivable that the Commissioner could come to the view that the grant of a licence would be contrary to public interest, yet still grant the licence. As a consequence, the purpose of the legislation can be given effect only by construing s 15(3) as requiring a refusal to grant a licence, if the Commissioner were to come to the opinion there prescribed. This is similar to the process of construction adopted by the High Court of Australia in Finance Facilities Pty Ltd v Federal Commissioner of Taxation [1971] HCA 12; (1971) 127 CLR 106. In that case, the statutory provision provided that the Commissioner (of Taxation) "may allow" a rebate on the satisfaction of certain conditions the last of which was "having regard to all the circumstances, it would be reasonable to allow the further rebate". The High Court said: "Dealing with the first point his Honour was naturally impressed by a comparison of s. 46 (3), under which the Commissioner 'may allow' a rebate in certain circumstances, with s. 46 (2), under which the taxpayer 'is entitled' to a rebate in the circumstances set out in that sub-section, and this is undoubtedly a matter of weight. The difficulty that I have felt in accepting that view lies in the existence of par. (c) in s. 46 (3). Put shortly, the appellant's argument is that if the Commissioner is satisfied that, having regard to all the circumstances, it would be reasonable to allow a rebate, it cannot be that in the exercise of some further discretion he could refuse to allow that which he is satisfied it would be reasonable to allow, and if he is bound to exercise his power to allow a rebate once par. (c) is satisfied, he must equally be bound to exercise it if the requirements of pars. (a) or (b) are fulfilled. I have come to the conclusion that this submission should be upheld. The words 'may allow' are permissive; they empower the Commissioner to do that which he could not otherwise do. But when regard is had to the fact that the sub-section contains par. (c), I am of opinion that, notwithstanding the difference between the wording of s. 46 (2) and that of s. 46 (3), the Commissioner is bound to exercise the power given to him by s. 46 (3) if he is satisfied that the requirements of any one of the three paragraphs are satisfied."(Per Owen J at 138.) 26 In this case, while there are not alternatives within the particular provisions of s 15(3), the subsection is an alternative criterion and it is impossible to imagine, as earlier stated, that the Commissioner could form that opinion and the purposes of the Act would nevertheless allow the grant of such a licence. 27 As a consequence of the foregoing, the formation of an opinion that the grant of a licence would be contrary to public interest requires the Commissioner to refuse the grant of that licence. That is the proper interpretation of s 15(3) of the Security Industry Act. Different issues, not presently relevant, may arise in relation to s 15(2) of the Act. 28 Therefore, s 26(1A) of that Act requires the Commissioner to revoke a licence, already held, if the Commissioner comes to the view that it would be contrary to the public interest for the licensee to continue to hold it. Further, the express terms of s 15(1) of the Act make it clear that the Commissioner is required to refuse an application for a licence if the applicant is not a fit and proper person (s 15(1)(a) of the Act) and, therefore, s 26(1A) again requires the revocation of a licence, if the Commissioner were to form the opinion that a licensee is not, at the time that the opinion is formed, a fit and proper person to hold a security licence of the kind held. 29 Each of the reasons given for the revocation of the licence require the revocation and the jurisdictional fact that requires revocation is the holding of the opinion by the Commissioner. Once, as a fact, the Commissioner (or relevantly the Commissioner's delegate) is satisfied or considers that the licensee is not a fit and proper person or the holding of the licence by the licensee would be contrary to public interest, the Commissioner has no alternative but to revoke the licence. 30 That is not to say that the mere statement of the Commissioner's state of mind is an adequate or appropriate statement of the reasons that the licence has been revoked. The decision maker may be required to explain the process by which the conclusion has been reached. This will include the criteria and material taken into account in the formation of that opinion. Ordinarily, the statement of a conclusion as to the formation of an opinion or the statement of satisfaction would be an insufficient statement of reasons for the action of an officer or administrative tribunal. It is certainly insufficient as a statement of reasons of a court: International Finance Trust Company Limited v NSW Crime Commission [2008] NSWCA 291 (the authority of which, on this point, is not affected by the judgment of the High Court on constitutional issues). But the adequacy of reasons is very much dependent upon the scope of the power being exercised and the nature of the steps available thereafter. 31 The appellants refer to and rely upon the provisions of s 49 of the Administrative Decisions Tribunal Act 1997 ("ADT Act") and suggest that the reasons provided by the Commissioner are not an adequate statement of the reasons required by s 49(1) of the ADT Act. The purpose of s 49 of the ADT Act is to facilitate the review by the Tribunal, which is required to decide the correct and preferable decision, having regard to the material then before it: s 63 of the ADT Act. From that review, there is an appeal to an Appeal Panel under ss 112 and 113 of the ADT Act. From the determination of the Appeal Panel, with some exceptions, there is a right of appeal, on a question of law, to the Supreme Court. Section 49 of the ADT Act requires, on written request, the provision of reasons. It seems that the reasons to which s 49 of the ADT Act refers are different from the reasons to which s 26(2) of the Security Industry Act refers. 32 Section 26(2) of the Security Industry Act refers to the reasons to which ss 26(1), 26(1A) and 26(2) refer and in turn, relevantly, to the satisfaction of the Commissioner under s 15(1)(a) and s 15(3) of the Security Industry Act. 33 Given the right of review to the Tribunal and the requirements under the ADT Act to provide further reasons, if there were a request in writing, the reasons to which s 26(2) of the Security Industry Act refers are adequately stated by the conclusions, which the Commissioner has, in this case, stated. 34 By that process, the Commissioner indicates the basis of the revocation and allows the licensee to consider whether a challenge will be made to his decision. 35 As a consequence of the foregoing, the statement of opinion and satisfaction in the notice of revocation is sufficient statement for the reasons of revocation as required by s 26(2) of the Security Industry Act. This ground of challenge fails and the notice of revocation was valid. Further, it is at least arguable that the failure to provide reasons, as required by s 26(2) of the Security Industry Act, would not invalidate a notice that was otherwise valid: see State of Victoria v Sutton [1998] HCA 56; (1998) 195 CLR 291; Yango Pastoral Company Pty Ltd v First Chicago Australia [1978] HCA 14; (1978) 138 CLR 410. The remedy, in that case, if a party were wanting to appeal, may well lie with s 49 of the ADT Act. Confidential Evidence 36 The only remaining issue arises from the appeal by the Commissioner. At the hearing of the original review by the ADT, her Honour had regard to a criminal intelligence report or other confidential material, which her Honour received and refused to disclose to the appellants. The Appeal Panel determined that, in the course of an interlocutory proceeding relating to a stay, her Honour had no power or ability to take account of material without disclosing its contents. 37 The Appeal Panel, in its decision of 11 August 2009, was required to deal with the submission of the appellants that the provisions of s 29(3) of the Security Industry Act did not apply to ancillary or interlocutory proceedings, such as those for a stay pending the determination of a merit review. The Appeal Panel accepted the submission of the appellants and overturned the decision of her Honour, because she had relied upon such material. The Commissioner appeals that decision. 38 The Appeal Panel recited the provisions of sections 15 and 29 of the Act, before reaching the conclusion that s 15 of the Act applied only to substantive proceedings. The Appeal Panel referred to the judgment of the Court of Appeal in Commissioner of Police v Gray [2009] NSWCA 49 and particularly to the statement that the provisions for confidential evidence impinged upon ordinary principles of natural justice and operated to disentitle an applicant to knowledge of both the existence and content of the material. The Appeal Panel referred to the practice of taking such evidence in camera, although, it would seem, that such a practice would at least disclose the existence of such confidential material, contrary to the provisions in s 29(3). 39 The Appeal Panel referred to the submission that the process of granting a stay and that of determining a merit review were quite different. They recited the submission, seemingly with approval, that a stay is aimed at maintaining, where possible, the status quo, so that the ultimate merits review is not rendered nugatory. The Appeal Panel referred to authority for such a proposition. They also referred to the reasons for judgment of the Court of Appeal in Avilion Group Pty Ltd v Commissioner of Police [2009] NSWCA 93 to the effect that an interlocutory proceeding and the substantive proceeding were significantly different. 40 Lastly, the Appeal Panel construed the opening words of s 15(6), being the words "the purpose of determining whether an applicant is a fit and proper person", as confining the capacity to use confidential material to the substantive question, rather than any ancillary question. The Appeal Panel held that when the Tribunal was "deciding whether or not to grant a stay, the Tribunal is not making a determination as to the character of the appellants", which is the only purpose for which the Commissioner may have regard to such criminal intelligence reports. 41 As earlier stated, the modern principles of construction of statutes require the ascertainment, to the extent possible, of uniform goals and the harmonious operation of the statute. In some circumstances, this may require the ascertainment of which of two, otherwise conflicting, provisions is predominant. The Tribunal, with great respect, has correctly outlined an important tool for the construction of provisions, namely, that statutes will be construed so as to accord with fundamental rights and the principles of natural justice. However, such a construction will give way to express statutory provisions and the clear intention of the legislature. Moreover, there is a distinction between the approach to be taken when the legislature has clearly interfered with common-law rights and the task that is before the courts is the determination of the extent to which such rights have been the subject of interference. 42 In Electrolux Home Products Pty Ltd v Australian Workers' Union [2004] HCA 40; 221 CLR 309, the High Court had occasion to look at this particular principle. His Honour, Gleeson CJ, said: "Reliance was placed in argument upon what was said to be a general principle of construction that, where a statute takes away or interferes with common law rights, then it should be given, if possible, a narrow interpretation. The generality of that assertion of principle requires some qualification. It is true that 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. It is also true that there is a presumption, relevant for example to the construction of privative clauses, that the legislature does not intend to deprive the citizen of access to the courts, other than to the extent expressly stated or necessarily to be implied." ( Electrolux , supra, per Gleeson CJ at [19].) In this instance, there is a clear and unambiguous curtailment of rights and the only issue is one capable of being resolved by a construction of the legislative text and purpose, rather than resort to presumptions based upon the rule of law: see Electrolux, supra at [20]-[23]. 43 The clear and express purpose of s 15(6) of the Security Industry Act is to allow the Commissioner of Police to pay regard to criminal intelligence that the legislature has determined, in the public interest, ought not be shown to an applicant or their representatives. As such, and as the Tribunal makes clear, these provisions impinge significantly on the rules of natural justice. They do so, because the legislature has determined that it is appropriate. 44 The terms of s 29(3) of the Security Industry Act are intended to ensure that the material relied upon by the Commissioner of Police remains confidential. The Tribunal has determined that, because the appeal is against the refusal of a stay, and because her Honour was dealing with a stay, she was not "determining an application for a review of the decision ... to revoke the licence". The proceedings before her Honour were proceedings being an application for a review of a decision to revoke the licence and the stay was part of that process. The exercise of discretion reposed in the Tribunal by the provisions of s 60(2) of the ADT Act is to grant such stay "as [the Tribunal] considers appropriate to secure the effectiveness of the determination of the application." As such, the proceedings for a stay form part of the process by which the Tribunal determines an application for a review of the decision to revoke, and the provisions of s 29(3) of the Security Industry Act apply. 45 Moreover, even though an appeal against the decision to stay (or refuse the stay) may not itself be an ancillary or interlocutory process (see Avilion, supra), it is still part of the process by which the Tribunal determines an application for a review of the decision to revoke the licence. In those circumstances, s 29(3) of the Security Industry Act would continue to apply to the appeal and to the proceedings before the Appeal Panel. Both the initial review proceedings, and proceedings before the Appeal Panel, are properly referred to as proceedings of the Administrative Decisions Tribunal, and each are required to operate under the injunction in s 29(3), even at the interlocutory stage or on appeal therefrom. 46 Further, the basis for the formation of the Commissioner's opinion, and the strength of the material, must be a factor relevant to the grant of the stay and the effect of the Appeal Panel's construction would be to render nugatory the prohibition in s 29(3) if the material was, as it should be, considered at the grant of the stay. 47 An example, albeit hypothetical, may better explain the problem. Assume police intelligence, accepted by the Tribunal, demonstrated that security licences (and accompanying firearm licences) were to be used for an impending criminal act, e.g. an act of terrorism, or the importation of drugs, but the continuing police investigation would be jeopardised by the disclosure of the intelligence. Also assume that otherwise there was no material on which the revocation opinion could rationally be based. 48 The Appeal Panel's decision would allow the review by the Tribunal and any internal appeal therefrom to have regard to the material, but no stay proceedings could utilise the material without disclosing it. This must be inconsistent with the purpose of s 29(3) of the Act. 49 This is consistent with the result in Commissioner of Police New South Wales v Gray [2009] NSWCA 49 in which the Court considered the operation of s 29(3) of the Security Industry Act in a slightly different context. At [106] McColl JA, with whom Giles and Tobias JJA agreed said: "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." 50 This is also consistent with the purpose outlined by the Minister in the Second Reading Speech to the Security Industry Amendment Bill 2005 in which the Minister said: "When the Commissioner relies on Police intelligence to refuse a licence application, the Bill will also protect that intelligence from being released to unsuccessful applicants if they appeal to the Administrative Decisions Tribunal.

[37]

However, the Bill will prevent the release of intelligence directly to the person to whom the intelligence relates. This will protect the safety of Police informants, and prevent the disclosure of Police information holdings and the details of Police methodology." (New South Wales, Parliamentary Debates , Legislative Council, 23 June 2005, p 17437 (The Hon. Tony Kelly, Minister for Rural Affairs, Minister for Local Government, Minister for Emergency Services, Minister for Lands, and Minister Assisting the Minister for Natural Resources).) 51 Lastly, it is necessary to deal with the submission that leave to appeal is necessary because the decision is an interlocutory decision: s 119(1A) of the ADT Act. The appeal is an appeal against the refusal to grant a stay and the substantive matter before the Appeal Panel was the correctness of that refusal. The Appeal Panel decision was a final decision in relation to the appeal: Avilion Group Pty Ltd v Commissioner of Police [2009] NSWCA 93. If that analysis be wrong, I would grant leave. Error of law is evident in the reasons for decision, which error was determinative of the outcome of the decision and, in the absence of an appeal orders in the nature of certiorari would issue. It is therefore appropriate that leave be granted. Conclusions 52 On the basis of the foregoing, the notice of revocation of licence by the Commissioner was valid and effective against each of the appellants. In the case of Mr Sleiman, the notice revoked his security licence, and, in the case of AVS and ASET, the notice revoked any master licence held by each or in the name of each. 53 Further, the decision of the Tribunal to quash the stay granted by her Honour, Magistrate Hennessy, is affected by error of law, in that the Tribunal took the view, wrongly, that her Honour was not entitled to take account of (and/or have regard to) confidential material, being police intelligence reports, without disclosing it to the appellants. 54 The Court makes the following orders:

At a glance

Court

Decision date

Before

Source

Judgment (44 paragraphs)

Cases Cited (12)

Cited By (4)