Commissioner of Police v Sleiman & AVS Group of Companies Pty Ltd & Ors

Draft Notice of Appeal 38On 26 March 2010, the Commissioner filed a notice of intention to appeal against the decision of Schmidt J. On 26 May 2010, the Commissioner filed a summons seeking leave to appeal from her Honour's decision. A draft notice of appeal was filed in advance of the hearing. 39The Commissioner's draft notice of appeal does not challenge Order 1 made by the primary Judge, the effect of which is to declare that the ADT, subject to the Commissioner approving disclosure of the confidential exhibit and to AVS appointing the special advocate, may adopt the special advocate procedure. The draft notice of appeal challenges Orders 2 and 4 on the basis that her Honour erred in: holding that the Commissioner's decision of 9 October 2010 not to approve the disclosure by the ADT of Criminal Intelligence to a " special advocate " (" 9 October Decision ") was amenable to judicial review; finding that s 29(3) of the SI Act required the Commissioner to consent to the proposed special advocate procedure, if satisfied that the procedure would preserve the confidentiality of the material to which s 29(3) applies; finding that the absence of any reasons by the Commissioner for the 9 October Decision justified an inference that he had no good reasons for the Decision; and finding that the 9 October Decision had been made without considering whether confidentiality had been adequately protected and for an improper purpose, namely obtaining a forensic advantage in the ADT proceedings. 40The draft notice of appeal seeks orders setting aside Declarations 2 and 4 made by Schmidt J and in lieu thereof seeks an order that the proceedings be dismissed. Since the Commissioner does not expressly challenge Declaration 1 made by Schmidt J, presumably it is intended that Order 1 remain on foot and that the balance of the proceedings be dismissed.

Draft Notice of Cross-Appeal 41I have explained the circumstances in which AVS sought leave to cross-appeal from Schmidt J's decision. AVS's amended draft notice of cross-appeal (" cross-appeal ") is a lengthy document. The grounds in the cross-appeal include the following: "1 Her Honour erred in holding (at paragraphs [28], [35] and [36] of the reasons for judgment) that the procedure for appointment by the [ADT] of a 'special advocate' in proceedings 093202 (the ' pending Tribunal proceedings ') that was proposed by [AVS] to the [Commissioner] in correspondence dated 10 September 2009 (the ' proposed special advocate procedure ') was a procedure for 'representation' of [AVS] within the meaning of s 71 of the ADT Act. Her Honour should have held that the proposed special advocate procedure was a procedure whereby a 'special advocate' would, when acting in that capacity, assist the [ADT] by informing it concerning matters relevant to the interests of [AVS], but without providing 'representation' to [AVS] within the meaning of s 71 of the ADT Act . 2. Her Honour erred in holding (in paragraphs [32]. [36] and [39] of the reasons for judgment) that the [ADT] has no power by which to cause itself to be informed concerning matters relevant to the interests of a party to proceedings before it, otherwise than by 'representation' of that party within the meaning of s 71 of the ADT Act . Her Honour should have held that the powers conferred upon the [ADT]: a. by s 73(1) of the ADT Act , subject to the ADT Act and the rules of the [ADT], to determine its own procedure; and/or b. by s 73(2) of the ADT Act , to inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice, empower the [ADT], amongst other things, to appoint a special advocate pursuant to the proposed special advocate procedure, and to conduct proceedings in accordance with the proposed special advocate procedure, and that s 71 of the ADT Act does not, in its express terms or otherwise, operate to limit those powers." ... 4. Her Honour erred in holding (paragraph [45] of the reasons for judgment) that s 29(3)(a) of the SI Act impliedly repeals s 75(2)(d) of the [ ADT Act ] to the extent to which it would otherwise operate to empower the [ADT] to make, without the [Commissioner's] consent, orders restricting disclosure of the existence or content of any relevant criminal intelligence. (Emphasis in original.) 42Among the eleven declarations sought (either as primary relief or in the alternative) are the following: "2. A declaration that s 29(3)(a) of the SI Act , on its proper construction: a. requires the [ADT] unless the [Commissioner] approves otherwise, to refrain from disclosing the existence or content of any criminal intelligence report or other criminal information referred to in s 15(6) of the SI Act (" relevant criminal intelligence "), if such disclosure is for a purpose, or to a person who it were reasonable to suppose might employ that relevant criminal intelligence for a purpose, other than the [ADT's] determination of the application for review to which that criminal intelligence is relevant; and b. does not otherwise prohibit the [ADT] for disclosing the existence or content of relevant criminal intelligence. 3 A declaration that the proposed special advocate procedure is a procedure that the [ADT] is empowered in its lawful discretion to adopt for the hearing of the pending [ADT] proceedings, and that for the purposes of that procedure the [ADT] is empowered to disclose the existence and content of relevant criminal intelligence to the special advocate proposed thereunder, and to do so without any requirement for the approval of the [Commissioner] pursuant to s 29(3) of the [ SI Act ] or any other approval of the [Commissioner] whatsoever. 4. Alternatively to (3), declarations: a. that the proposed special advocate procedure is a procedure that the [ADT] is empowered in its lawful discretion to adopt for the hearing of the pending [ADT] proceedings, and that for the purposes of that procedure the [ADT] is empowered to disclose the existence and content of relevant criminal intelligence to the special advocate proposed thereunder, subject to the approval of the [Commissioner] pursuant to s 29(3) of the SI Act ; b. that the [Commissioner] is bound to consider and determine according to law any request from the [ADT] for his approval, pursuant to s 29(3) of the SI Act , of the proposed special advocate procedure that shall at any time be made to him by the [ADT] in connection with the pending [ADT] proceedings, and whether such request shall have been made by the [ADT] of its own motion, or on the application of [AVS]; c. that any decision by the [ADT], in response to any application from [AVS], whether to request the Commissioner's approval of the special advocate procedure in relation to the pending [ADT] proceedings, is: i. a 'decision or ruling, made by the [ADT] that relates to' the pending [ADT] proceedings within the meaning of s 73(4)(b) of the ADT Act ; and ii. an 'original decision' of the [ADT] within the meaning of s 7 and s 89(1) of the ADT Act; 5. Further, or alternatively, declarations: a. that the ADT Act , and/or in particular s 73(2) thereof, authorises the [ADT], subject to the rules of natural justice, in determining any application for review pursuant to s 29(1) of the SI Act , to inquire into, and inform itself on, representations as to any matter of fact or law that competent counsel would make, or advise to be made, to the [ADT] on behalf of, or otherwise in the interests of, any person who has made to the [ADT] that application for review (' relevant applicant '), being representations in respect of, or otherwise arising by reason of, or in connection with the existence or content of, any criminal intelligence report or other criminal information, the existence or content of which s 29(3) of the SI Act requires the [ADT] to refrain from disclosing to the relevant applicant, or to the relevant applicant's representative (' material representations '), and to do so either on the application of the relevant applicant, or of its own motion. b. that the ADT Act , and/or in particular s 73(2) thereof, authorizes the [ADT], subject to the rules of natural justice and to s 29(3) of the SI Act , so to inquire and inform itself by means that include (but are not necessarily limited to) receiving material representations from counsel (howsoever designated) chosen or approved by the [ADT] for that purpose (howsoever designated) (' counsel confidentially assisting ')". (Emphasis in original.) 43It will be seen that draft Declaration 3 is framed by reference to the proposed special advocate procedure that was the subject of debate before Schmidt J. Draft Declaration 5, by contrast, is not so framed, but refers to the powers available to the ADT to inform itself as to any matter of fact or law that a competent counsel would make on behalf of or otherwise in the interests of an applicant seeking review of a revocation decision.

Background 44On 3 March 2010, following Schmidt J's decision, AVS's solicitors again asked the Commissioner to approve the proposed special advocate procedure in the ADT. The application attached draft orders in substantially the same terms as those previously submitted, with one exception. The exception was that the orders had been amended to accommodate Schmidt J's ruling that the special advocate was to be appointed by the party whose interests were to be represented, not by the ADT. 45On 21 April 2010, AVS's application for review of the Commissioner's revocation decision was fixed for hearing in the ADT, commencing on 14 July 2010. 46On 15 April 2010, the Court of Appeal delivered judgment on the application for leave to appeal from the decision of Rothman J: AVS Group of Companies Pty Ltd v Commissioner of Police [2010] NSWCA 81. the Court affirmed Rothman J's decision that s 29(3) of the SI Act applies to applications for a " stay " of a revocation decision made by the Commissioner. Armed with the Court of Appeal's decision, the Commissioner applied to the ADT for an order discharging the stay order made on 13 August 2009. 47On 23 April 2010, the Commissioner's solicitors sent a letter to AVS's legal representatives stating that, pursuant to Order 4 made by Schmidt J (at [37] above), the Commissioner had considered AVS's proposal made on 3 March 2010. The Commissioner's response was as follows: "[The Commissioner] is not prepared to approve disclosure of the evidence 3. to which s.29(3) [ SI Act ] applies, and 4. upon which he intends to rely, to a 'special advocate' at the final hearing of [AVS's] application. [AVS] have requested reasons for that decision. As previously advised [the Commissioner] is of the opinion that you are not entitled to reasons. However, I have been instructed to advise the above decision was made having regard to 5. the circumstances in which the s.29(3) [ SI Act ] material was obtained by [the Commissioner], and 6. the protection intended to be afforded to such material by s.29(3) [ SI Act ] ." (Numbering in original; emphasis added.) 48On 4 May 2010, AVS filed a summons in the Common Law Division of the Supreme Court. The relief sought by AVS included the following: "1 A declaration that the [Commissioner's] refusal, in correspondence dated 23 April 2010, to approve the 'special advocate' procedure proposed by the plaintiffs in correspondence dated 3 March 2010 (the ' 23 April decision '), is contrary to law. 2. A declaration that the 23 April decision was not compliant with the Court's order made ... by her Honour Justice Schmidt ... 3 An order in the nature of certiorari setting aside the 23 April decision. 4 A declaration that the [Commissioner] is bound, as a matter of law, to approve pursuant to s 29(3) of the Security Industry Act 1997 : (a) disclosure to the special advocate to be appointed by [AVS], namely, Mr Antony Whitlam QC, of the confidential exhibit referred to in paragraph 75(2) (sic) of the reasons for judgment of ... Justice Schmidt ... and (b) the presence and participation of that special advocate at any closed hearing that may be conducted by the [ADT] ..." (Emphasis in original.) 49The " confidential exhibit " noted in par 4 of the orders sought by AVS is in fact referred to in para 75(4) (not para 75(2)) of Schmidt J's judgment, which sets out the terms of Order 4 made by her Honour. The confidential exhibit contains the material relied on by the Commissioner which is said to be a " criminal investigation report " or " criminal information " for the purposes of s 15(6) of the SI Act . 50On 13 May 2010, Davies J made orders in the Common Law Division proceedings on an urgent application by AVS: AVS Group of Companies Pty Ltd v Commissioner of Police [2010] NSWSC 447. His Honour restrained the ADT from hearing any application by the Commissioner to revoke what was described as a " stay order " made by the ADT on 13 August 2009 in relation to the revocation decision, until the hearing of AVS's summons. His Honour also restrained the Commissioner from filing or prosecuting any application to revoke the " stay order " until the summons was heard. The effect of the so-called " stay order " was to preserve the licences held by AVS pending the ADT's determination of AVS's application to review the Commissioner's revocation decision. 51On 26 May 2010, the Commissioner filed a summons seeking leave to appeal from the orders made by Schmidt J on 26 February 2010. 52On 18 June 2010, Price J, on the Commissioner's application, ordered, pursuant to Uniform Civil Procedure Rules (" UCPR ") r 28.2, that the following question be heard and determined separately in the proceedings: "On a proper construction of s. 29(3) of the Security Industry Act 1997 and having regard to the events that have occurred, is the Commissioner ... obliged to approve [AVS's] proposal that they be represented by a 'Special Advocate' in the proceedings in the [ADT]" 53His Honour directed, pursuant to UCPR r 1.21, that the proceedings instituted by AVS in the Common Law Division be removed to the Court of Appeal. His Honour further directed that the final hearing of AVS's application for review in the ADT be stayed until the final determination by this Court of the removed proceedings and of the application for leave to appeal from the decision of Schmidt J: AVS Group of Companies v Commissioner of Police [2010] NSWSC 659.

Legislation 54In order to resolve the issues before this Court, it is necessary to read the relevant provisions of the SI Act with those of the ADT Act . The SI Act was enacted shortly after the ADT Act and it has been held that the former, to some extent, effects an implied repeal of the latter: Commissioner of Police v Gray [2009] NSWCA 49; 74 NSWLR 1. Accordingly, each enactment is not necessarily entirely consistent with the other. One of the issues in these proceedings is to determine the extent to which s 29(3) of the SI Act is inconsistent with the ADT Act , in particular s 73.

SI Act 55The SI Act prohibits a person carrying on a " security activity ", or employing or providing persons to carry on security activities, unless that person holds one of the various classes of licence that can be issued under the SI Act : s 7. An application for a licence is to be made to the Commissioner: s 14(1). 56Section 15(1) of the SI Act provides that the Commissioner must refuse to grant an application for a licence if the Commissioner is satisfied, relevantly, that the applicant: "(a) is not a fit and proper person to hold the class of licence sought by the applicant ..." In certain circumstances, the Commissioner may refuse to grant an application for a licence: s 15(2),(3). These circumstances include where the Commissioner " considers that the grant of the licence would be contrary to the public interest ": s 15(3). 57Sub-sections 15(6) and (7) are important. They have been set out above (at [19]). 58On receiving an application for a licence, the Commissioner may carry out all such investigations and inquiries as the Commissioner considers necessary to enable the application to be considered properly: s 18(1). The Commissioner may require an applicant to provide additional information of certain kinds: s 20(1). 59The Commissioner, after considering an application, may grant or refuse to grant a licence: s 21(1). The Commissioner may also grant a licence subject to conditions and may impose conditions on a licence after it has issued: s 21(3)(a). In general, a licence remains in force for a period of five years from the date on which it comes into force: s 24(1). 60Section 26 of the SI Act deals with revocation of a licence. Section 26(1) provides that a licence may be revoked for certain specified reasons and " for any other reason prescribed by the regulations " (s 26(1)(d)). Clause 29 of the Security Industry Regulations 2007 states that a licence may be revoked on the ground that revocation of the licence is in the public interest. 61Section 26(1A) of the SI Act is as follows: "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." 62A person may apply to the ADT for a review, among other things, of the Commissioner's refusal to grant a licence or the revocation of that person's licence: s 29(1). Applications made under s 29 of the SI Act are to be determined by one member of the General Division of the ADT who is a Judicial Member: ADT Act , Sch 2, Part 4, cl 8. 63Section 29(3) of the SI Act is critical to the resolution of the issues before this Court. It, too, has been set out earlier (at [22]).

ADT Act 64A person may apply to the ADT for a review of a " reviewable decision " and the ADT has jurisdiction to review the decision: ss 38(1), 55(1). A " reviewable decision " is a decision of an administrator that the ADT has jurisdiction under an enactment to review: s 8(1). There is no dispute in the present case that the Commissioner is an " administrator " (s 9) and that by reason of s 29(1) of the SI Act, the Commissioner's decision to revoke the licences held by AVS was a reviewable decision. 65If an administrator makes a reviewable decision, an interested person may request the administrator to give reasons: s 49(1). In the event of a request, the administrator is to prepare, as soon as practicable, a written statement of reasons: s 49(2). Section 49 did not apply to the Commissioner's refusal to approve the special advocate procedure since that refusal, on any view, was not a reviewable decision for the purposes of the ADT Act . However, subject to s 29(3) of the SI Act , the Commissioner was bound to comply with s 49 of the ADT Act in relation to his revocation decision. 66An administrator whose reviewable decision is subject to an application for review to the ADT must lodge material documents with the ADT. The obligation includes lodging a copy of the administrator's statement of reasons (s 58(1)(a)) and a copy of every document in the administrator's possession or control that the administrator considers to be relevant to the determination of the application by the ADT. 67The Registrar of the ADT is to grant reasonable access to the applicant in the proceedings to the documents lodged by the administrator: s 58(5). However, the administrator is entitled to apply to the ADT for an order that he or she not be required to lodge a copy of a document with the ADT: s 59(1). The ADT may make such an order if, for example, it is satisfied that the document is privileged under certain provisions of the Evidence Act 1955 (NSW) or it considers that, if an application were made under s 75(2) of the ADT Act , it would be appropriate to make an order prohibiting or restricting publication or disclosure of the document. 68Section 60 of the ADT Act deals with the effect of pending decisions on reviewable applications. It relevantly provides as follows: "(1) Subject to this section, an application to the Tribunal for a review of a reviewable decision does not affect the operation of the decision under review or prevent the taking of action to implement that decision. (2) On the application of any party to proceedings for an application for a review of a reviewable decision, the Tribunal may make such orders staying or otherwise affecting the operation of the decision under review as it considers appropriate to secure the effectiveness of the determination of the application." 69Section 63 of the ADT Act provides as follows: "(1) In determining an application for a review of a reviewable decision, the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it, including the following: (a) any relevant factual material, (b) any applicable written or unwritten law. (2) For this purpose, the Tribunal may exercise all of the functions that are conferred or imposed by any relevant enactment on the administrator who made the decision. (3) In determining an application for the review of a reviewable decision, the Tribunal may decide: (a) to affirm the reviewable decision, or (b) to vary the reviewable decision, or (c) to set aside the reviewable decision and make a decision in substitution for the reviewable decision it set aside ..." 70Section 67 of the ADT Act identifies the parties to proceedings before the ADT. Section 67(2) provides as follows: "The parties to proceedings before the Tribunal for a review of a reviewable decision are: (a) any person who, being entitled to do so, has duly applied to the Tribunal for a review of the decision, and (b) the administrator who made the decision, and (c) if the Attorney General intervenes in the proceedings under section 69 - the Attorney General, and (d) any other person who has been made a party to the proceedings by the Tribunal in accordance with subsection (4), and (e) any person specified by or under any enactment as a party to the proceedings." 71Section 67(4) of the ADT empowers the ADT to make a person or party to the proceedings if the ADT "considers that the person ought to have been joined as a party or is a person where joinder is necessary to the determination of all matters in dispute in the proceedings". 72Section 68(1) of the ADT Act provides that, if it is necessary for the purposes of any Act to decide whether the interests of a person are affected, or likely to be affected by a decision, the question is to be decided by the ADT. A decision that a person's interests are so affected is conclusive and cannot be the subject of an appeal to an Appeal Panel: s 68(2). 73Section 70 of the ADT Act provides as follows: "The Tribunal must ensure that every party to proceedings before the Tribunal is given a reasonable opportunity: (a) to present the party's case (whether at a hearing or otherwise), and (b) to make submissions in relation to the issues in the proceedings." 74A party to proceedings before the ADT may appear without representation or may be represented by an Australian legal practitioner: s 71(1). A person who is not an Australian legal practitioner may, with the consent of a party, apply to the ADT for leave to represent the party as the party's agent in the proceedings: s 71(2). If a party is an " incapacitated person " (as defined in s 71(7)), the ADT may appoint any other person it thinks fit to represent that party: s 71(4). 75Section 73 of the ADT Act deals with the procedure of the Tribunal. It relevantly provides as follows: "(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) ... (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 ..." 76Proceedings before the ADT are to be open to the public: s 75(1). Nonetheless, the ADT has power, if satisfied that it is desirable to do so by reason of the confidential nature of any evidence or matter or for any other reason, to order that the hearing be conducted wholly or partly in private or that publication of any evidence given before the ADT or contained in any documents lodged with the ADT be prohibited or restricted: s 75(2)(a), (c). The ADT also has power to make an order prohibiting or restricting the disclosure to some or all of the parties of evidence given before the ADT, or the contents of any document lodged with it or received in evidence, in relation to the proceedings: s 75(2)(d). 77The ADT is empowered in any proceedings to call any witnesses of its own motion: s 83(1)(a). The ADT also may examine any witness on oath or affirmation and may examine or cross-examine any witness to such extent as it thinks proper " in order to elicit information relevant to the exercise of the functions of the [ADT] in any proceedings ": s 83(1)(c). If the ADT decides to call a person as a witness under s 83(1), it may direct the Registrar to issue a summons to compel that person to attend: s 83(2)(b). A person who, without reasonable excuse, fails to comply with a summons is guilty of an offence: s 84(4). 78The ADT Act provides for the Minister to appoint assessors of the ADT: s 29(1). If proceedings are pending, the ADT or the President may, with the consent of the parties, direct a single assessor to inquire into an issue and report to the ADT: s 33(1),(2). The ADT, in determining proceedings, may be assisted by one or more assessors, but they are not to adjudicate in any matter before the ADT: s 35(1),(2). 79The ADT is obliged to give a party a statement in writing of the reasons for the ADT's decision on an application for review of a reviewable decision if the party requests reasons: s 89(3). The written reasons must set out findings on material questions of fact, the ADT's understanding of the applicable law and " the reasoning processes that lead the [ADT] to the conclusions it made ": s 89(5). 80A party to proceedings in which an " appealable decision " of the ADT is made may appeal to the ADT constituted by an Appeal Panel: s 113(1). An " appealable decision " includes a decision of the ADT made in proceedings for review of a reviewable decision: s 112(1). An appeal to the Appeal Panel may be made on any question of law and, with the leave of the Appeal Panel, may extend to a review of the merits of the appealable decision: s 113(2). If an appeal extends to a review of the merits of an appealable decision, the Appeal Panel is to decide what the correct and preferable decision is having regard to the material then before it: s 115(1). Section 89 applies to a decision of the Appeal Panel under s 115 in the same way as it applies to decisions determining an application for review of a reviewable decision: s 117(3). Since an Appeal Panel is the ADT differently constituted (s 24(1)), s 29(3) of the SI Act applies to the Appeal Panel as it does to the ADT constituted by one or more Division members. 81A party to proceedings before an Appeal Panel may appeal to the Supreme Court on a question of law against any decision of the Appeal Panel: s 119(1). However, subject to one exception, nothing in the ADT Act affects the power of the Supreme Court, in the exercise of its original jurisdiction to review decisions of the ADT: s 122. The exception is that the Supreme Court is given an express discretionary power to refuse to grant an application if adequate provision is made for alternative review of the decision: s 123(1). 82Section 125(1) of the ADT Act relevantly provides as follows: "(1) Nothing in this Act requires the disclosure of a document if the Tribunal or President is satisfied that evidence of the document could not be adduced in proceedings before a NSW court by reason of the operation of any of the following provisions of the Evidence Act 1995 : (a) section 9 (Application of common law and equity), but only to the extent that it preserves any privilege against the adducing of evidence, ... (c) Part 3.10 (Privileges) of Chapter 3. (2) In this section: disclosure of a document includes the following: (a) the provision of copies of the document, (b) the granting of access to the document, (c) the disclosure of the contents of the document. ... NSW court has the same meaning as it has in the Evidence Act 1995. " The relevant definition of " NSW court " is set out below (at [88]). 83Section 128 of the ADT Act imposes obligations of confidentiality on members and staff of the ADT. It provides as follows: "If: (a) a provision of an Act (other than this Act) prohibits the disclosure, whether absolutely, in certain circumstances only or subject to conditions, of information by persons who: (i) are included in a particular class of persons, and (ii) acquired the information in the course of their duties under the Act, and (b) a person who is or has been a member, an assessor, an officer of the Tribunal or a member of the staff of the Tribunal has acquired or acquires any such information in the course of his or her duties as such a member, assessor, officer or member of the staff, that provision applies to the person as if he or she were included in the particular class of persons and acquired the information in the course of duties under that Act." 84Section 131(1) of the ADT Act provides that the ADT may report certain matters to the Supreme Court, including the following: "(h) if a person publishes, or permit or allows to be published, any evidence given before the Tribunal or any of the contents of a document produced at a hearing that the Tribunal has ordered not to be published, or (i) if a person publishes, or permits or allows to be published, any evidence given before the Tribunal at a hearing held in private or any of the contents of a document produced at a hearing held in private, except to an officer of the Tribunal or as permitted by the Tribunal or by the regulations, or (j) if a person does any other thing that, if the Tribunal were a court of law having power to commit for contempt, would be contempt of that court." 85If the ADT reports a matter to the Supreme Court under s 131(1), the Supreme Court may deal with the matter as if it were a contempt of that Court: s 131(2).

Evidence Act 86Reference was made in argument to the principles governing the circumstances in which governments or their agencies may claim public interest immunity. In New South Wales, the principles have been restated in s 130 of the Evidence Act 1995 (NSW) (" Evidence Act "). In addition, s 9(1) of the Evidence Act does not affect the operation of a principle or rule of common law or equity in relation to evidence in a proceeding to which the Act applies, except insofar as the Act provides otherwise: s 9(1). 87Section 130 of the Evidence Act provides as follows: "(1) If the public interest in admitting into evidence information or a document that relates to matters of state is outweighed by the public interest in preserving secrecy or confidentiality in relation to the information or document, the court may direct that the information or document not be adduced as evidence. (2) The court may give such a direction either on its own initiative or on the application of any person (whether or not the person is a party). (3) In deciding whether to give such a direction, the court may inform itself in any way it thinks fit. (4) Without limiting the circumstances in which information or a document may be taken for the purposes of subsection (1) to relate to matters of state, the information or document is taken for the purposes of that subsection to relate to matters of state if adducing it as evidence would: ... (e) disclose, or enable a person to ascertain, the existence or identity of a confidential source of information relating to the enforcement or administration of a law of the Commonwealth or a State; or (f) prejudice the proper functioning of the government of the Commonwealth or a State. (5) Without limiting the matters that the court may take into account for the purposes of subsection (1), it is to take into account the following matters: (a) the importance of the information or the document in the proceeding; ... (c) the nature of the offence, cause of action or defence to which the information or document relates, and the nature of the subject matter of the proceeding; (d) the likely effect of adducing evidence of the information or document, and the means available to limit its publication; ...". 88The expression " court " is defined in the Dictionary to the Evidence Act to include " NSW court ". That expression is defined to mean: "(a) the Supreme Court, or (b) any other court created by Parliament, and includes any person or body (other than court) that, in exercising a function under the law of the State, is required to apply the laws of evidence. " 89Section 131A of the Evidence Act extends the operation of Part 3.10, Div 3 (which includes s 130) as follows: "(1) If: (a) a person is required by a disclosure requirement to give information, or to produce a document, which would result in the disclosure of a communication, a document or its contents or other information of a kind referred to in Division 1 ..., and (b) the person objects to giving that information or providing that document, the court must determine the objection by applying the provisions of this Part ... with any necessary modifications as if the objection to giving information or producing the document were an objection to the giving or adducing of evidence. (2) In this section, disclosure requirement means a process or order of a court that requires the disclosure of information or a document ... (Emphasis in original.) 90Section 133 of the Evidence Act provides that if a question arises under Part 3.10 in relation to a document, the court may order the document to be produced and may inspect it for the purpose of determining the question.

The Primary Judgment 91Schmidt J noted (at [3]) that AVS had applied to the ADT for an order staying the Commissioner's revocation decision. The Commissioner had tendered documents in opposition to the stay application which were identified as a " criminal intelligence report or other criminal information " for the purposes of s 15(6) of the SI Act . The ADT had admitted the documents as a confidential exhibit and had considered them in a closed hearing from which AVS and its legal representatives had been excluded. Her Honour also noted (at [6]) that the Commissioner proposed to rely on the confidential exhibit at the ADT's hearing of the review application, without AVS or its representatives being given access to the documents or an opportunity to respond to their contents. 92Schmidt J referred (at [8]) to an application made by AVS in which it sought directions from the ADT that its interests be represented by a special advocate on the hearing of the review application. That application had been declined by Judicial Member Moloney, on the ground that s 29(3) of the SI Act required the Commissioner's approval for such a procedure. This decision had prompted AVS's application to the Commissioner for his approval to the proposed special advocate procedure which had been refused on 9 October 2009 (see [33] above). 93Since the Commissioner had refused AVS's application, the result (at [9]) was that unless the relief sought by AVS was granted, it would have no opportunity for any submissions to be made on its behalf in relation to " material which is undoubtedly crucial to the issues which the [ADT] will have to determine in the proceedings ". 94Schmidt J recorded (at [10]) that the Commissioner had identified the following issues for determination: "(1) Whether the procedural discretions conferred upon the [ADT] by the ADT Act empower the [ADT], in appropriate circumstances, to adopt a hearing procedure involving participation by a 'special advocate' of the kind proposed by [AVS]; (2) If the answer to question (1) is Yes (as [AVS] contend[s]): whether, as held by the [ADT] on 2 September 2009, the Commissioner's approval is, on a proper construction of s 29(3) of the SI Act , a necessary precondition for the [ADT] to adopt such a hearing procedure in the circumstances of the present case; (3) If, contrary to [AVS's] submission, the answer to question (2) is Yes, then: (a) Is the Commissioner compellable to consider and determine whether to exercise his discretion to approve the 'special advocate' procedure? (b) If the Commissioner is so compellable, has the Commissioner in the represent case in fact engaged in such a consideration and determination bona fide for the purposes for which the discretion was conferred?"

Questions 1 and 2 95Schmidt J first considered the interaction between s 29(3) of the SI Act and the ADT Act . She expressed the view (at [18]) that s 29(3), which involves a significant departure from the rules of natural justice, limits the ADT's powers under s 73(1) and (2) of the ADT Act to determine its own procedure to inquire into and inform itself on any matters in such manner as it thinks fit. Her Honour also considered that s 29(3) of the SI Act qualifies other obligations under the ADT Act , such as the requirement under s 73(4)(a) to ensure that the parties understand the nature of the assertions made in the proceedings. 96Schmidt J pointed out (at [20]) that in Commissioner of Police (NSW) v Gray [2009] NSWCA 49; 74 NSWLR 1, McColl JA (with whom Giles and Tobias JJA agreed) held (at [111]) that s 73 of the ADT Act , to the extent that it contradicts the requirement in s 29(3) of the SI Act that neither the existence nor content of s 15(6) materials be disclosed by the ADT, " cannot stand with s 29(3) ". It followed, so her Honour held (at [21]), that any procedures the ADT chooses to adopt under s 73 of the ADT Act must adhere to the requirements of s 29(3) of the SI Act . 97No issue arose as to the existence of the confidential intelligence report, since the Commissioner had already disclosed its existence to AVS. The question (at [22]) was whether the ADT could disclose the contents of the report to the proposed special advocate without the Commissioner's consent. 98Schmidt J noted (at [23]) that the proposed special advocate procedure was not expressly envisaged by the ADT Act , in particular by s 128. AVS had submitted that the appointment of a special advocate was not prohibited because such an advocate was not the " public ", the " applicant for review ", the " applicant's representative " or an " interested party " for the purposes of s 29(3) of the SI Act . Her Honour rejected the submission. 99Her Honour reasoned as follows (at [28]-[39]): "28 The real crux of [AVS's] argument, it seems to me, was that under the orders which it was proposed that the [ADT] make, the special advocate would not be 'the applicant's representative', but would rather represent [AVS's] interests'. The result was that the [ADT] did not require the Commissioner's consent under s 29(3)(b) of the [ SI Act ], before the confidential exhibit was disclosed to the special advocate. In my view, as well as overlooking what s 29(3)(a) requires of the [ADT], the distinction which [AVS] seek[s] to draw between representing [AVS], as opposed to representing [its] interests, has no force. A party which is represented in proceedings before the [ADT], of necessity engages that person to represent its interests. There is no other purpose for such representation. ... 32 AVS's] case was that what was proposed could be ordered by the [ADT] under Section 73 of the [ ADT Act ]. That section is concerned with how the [ADT] is to conduct the proceedings brought before it, not with the representation of the parties or their interests in those proceedings. That is a matter expressly dealt with elsewhere, in s 71 of the Act. It follows that in determining whether there is a statutory basis for a special advocate process in proceedings before the [ADT], consideration must be given to what ss 67 and 71 provide. ... 35 It was argued for [AVS] that the special advocate would not truly be representing [it] in the proceedings, but only their interests. Section 71 does not provide for representation of a party's 'interests', separately from representation of the party itself. In my view, the true effect of what is proposed in the context of this statutory scheme, is that different representatives would appear for [AVS] in relation to different aspects of the proceedings. 36 While s 71 does not preclude such different representation at different stages of proceedings, what it does require is that any representative must be engaged by the party whose interests they represent. The Act does not contemplate that a representative could be engaged or appointed by anyone else ... 37 [AVS's] proposal is that the special advocate be a nominated Queens Counsel, initially engaged and briefed by [AVS]. That accords with the provision made in s 71(1)(b) for representation by a legal representative. It is then intended that the [ADT] appoint the nominated counsel to the position of special advocate, who would then represent [AVS's] interests in relation to the confidential exhibit. That, it seems to me, is the role of a representative of the party whose interests are being represented. Under this statutory scheme, with the exceptions mentioned, anyone engaged by a party to represent that party, or its interests, must be given the party's authority to appear in the proceedings and once so engaged to appear, can appear to do nothing other than to represent that party's interests, when so appearing. 38 Undoubtedly the legislature could have drawn a distinction between representation of a party and representation of a party's interests and could have empowered the [ADT] to make an appointment in respect of such interests. The legislature has not done so. 39 It is in this context that the proposed orders appear to me to run into difficulty. It is proposed that the special advocate would initially be engaged and briefed by [AVS] and ultimately would be paid by them. Appointment to the position would be by the [ADT]. That is not contemplated by s 71, or any other provisions of the Act and is not merely a matter of the procedure to be adopted by the [ADT] in the proceedings." 100Schmidt J observed (at [44]) that the effect of the proposed special advocate procedure would be to place the special advocate in a similar position to a representative instructed by AVS, who is given access to a confidential exhibit to which AVS itself is not given access. Such a procedure is expressly envisaged by s 75(2)(d) of the ADT Act . However, s 29(3)(a) of the SI Act prohibits the ADT from disclosing the contents of the confidential exhibit without the Commissioner's consent. In her Honour's view (at [45]), s 29(3)(a) of the SI Act had impliedly repealed s 75(2)(d) of the ADT Act , since the latter provision empowered the ADT to make an order under the latter provision without the consent of a party. 101Schmidt J pointed out (at [51]) that parts of the orders proposed by AVS suggested a role for the special advocate " somewhat akin to that of an amicus curiae ". But this was not what was proposed. The role envisaged for the special advocate was quite different from that of an amicus, since the special advocate was not to have a neutral role, but was to advance AVS's case (at [52]). 102Her Honour answered (at 55]) Questions 1 and 2 as follows: "I am satisfied for these reasons that the first question posed by [AVS], whether a special advocate process could be adopted in proceedings before the [ADT], must be answered yes, on the basis that such an advocate would appear as a representative of [AVS] in that part of the proceedings from which [AVS] and [its] other representatives were excluded. Such an advocate must be appointed by a party to the proceedings. As to the second question, whether a special advocate process could be adopted without the Commissioner's consent, it must be answered in the negative. Absent such consent, disclosure of the confidential exhibit to the proposed special advocate, is precluded by s 29(3)(a) of the [ SI Act ]."

Question 3 103Schmidt J stated (at [62]) that the purpose of s 15(6) of the SI Act is to prevent disclosure of the existence or contents of any criminal intelligence report or other criminal information in proceedings conducted before the ADT unless the Commissioner consents. Contrary to the Commissioner's submissions, the sub-section was not concerned with giving the Commissioner a forensic advantage in the ADT proceedings. 104Her Honour rejected (at [64]) the Commissioner's submission that AVS was entitled only to receive advice of the Commissioner's refusal of consent and that no adverse inferences could be drawn against him from the failure to give any reasons for the refusal. In her Honour's view (at [64]): "[a]ny explanation of why the Commissioner would not consent to the proposed special advocate procedure, could not conceivably have required any disclosure of what the criminal intelligence itself was." Schmidt J continued as follows (at [67]-[68]): "67 In this case there is evidence of a request to consent to disclosure on a basis which seeks to ensure that the confidentiality of the information which the Security Industry Act seeks to protect, will be maintained. Section 29(3) gives the Commissioner a discretion to agree to the proposed procedure. It seems clear that the section contemplates that consent would be forthcoming, if the Commissioner were satisfied that what is proposed would preserve the confidentiality of the criminal intelligence which the section is designed to protect. The Commissioner's response to the request for consent was that he would not engage in such a process. There was no suggestion that the refusal was based on any view that the procedure was an inadequate way of ensuring that the confidentiality of the material was maintained. There was also no response to the request for advice as to any alteration to what was proposed, which would result in consent being given, although in these proceedings it became apparent that if the special advocate was to be appointed by the Attorney General, the Commissioner would not have an objection to the process. 68 I am satisfied that the inference that the Commissioner failed to consider whether the proposal adequately protected the confidentiality of the confidential information is fairly open on the evidence ..." 105Her Honour also rejected (at [70]) the Commissioner's argument that the Court should refuse relief because s 29(3) of the SI Act merely conferred on the Commissioner a " private right " to consent to disclosure of the criminal information. The Commissioner's powers related to a matter of significant public interest and the giving or refusing of consent could have very significant consequences. Her Honour considered (at [72]) that: " Section 29(3) contemplates, as [AVS] argued, the Commissioner's active consideration of a request for approval of disclosure of criminal intelligence protected by the Act, not a blanket refusal to engage in the process proposed in order to maintain a forensic advantage in Tribunal proceedings . The section requires consideration to be given to whether the discretion should be exercised having in mind the purpose for which the discretion is granted under the statutory scheme. The grant of the discretion comprehends a duty that it be exercised for a valid and proper purpose." (Emphasis added.)

Orders 106Schmidt J made declarations and orders set out earlier (at [37]) in order to give effect to her conclusions that (at [73]-[74]: the ADT could not appoint a special advocate under the statutory scheme, but AVS could; with the Commissioner's consent the confidential exhibit could be disclosed to the special advocate; and the SI Act required the Commissioner to give AVS's proposal consideration.

Submissions 107The parties filed written submissions at various times before and after the hearing. At no stage did the parties consolidate their submissions. For this reason, it is convenient to summarise the submissions by reference to the three matters before the Court: the Commissioner's application for leave to appeal from the decision of Schmidt J; AVS's application for leave to cross-appeal from the same decision; and AVS's claim for relief in the removed proceedings. 108Perhaps not surprisingly given the very wide range of issues canvassed by the parties and the differences in the timing of submissions, the parties' positions were not always entirely internally consistent. The Commissioner, for example, asserted in written submissions in the removed proceedings that his right to grant or withhold approval under s 29(3) of the SI Act to the disclosure of intelligence is a " true discretion ". In subsequent submissions on his application for leave to appeal, the Commissioner maintained that s 29(3) was not a source of power for him to grant or withhold approval and that his approval was merely a precondition to the ADT taking a particular course of action. It is not necessary, however, to analyse the submissions for the purpose of identifying any inconsistencies.

Commissioner's Submissions 109The Commissioner advanced three arguments in support of his application for leave to appeal from the decision of Schmidt J, although the first argument had two branches. 110Dr Griffiths, who appeared with Mr Lynch on behalf of the Commissioner, first submitted that the purpose and effect of s 29(3) of the SI Act is to apply a modified concept of public interest immunity to a review by the ADT of a revocation decision under the SI Act . In the absence of legislation, so Dr Griffiths argued, the Commissioner would be able to claim public interest immunity in respect of criminal intelligence adduced in evidence in ADT proceedings. This was said to follow from s 125 of the ADT Act ([82] above). 111According to Dr Griffiths, the effect of s 29(3) of the SI Act is to permit the Commissioner to waive public interest immunity as against the ADT itself and to adduce in evidence the documents to which immunity would otherwise attach. At the same time, s 29(3) allows the Commissioner to maintain public interest immunity as against the classes of persons identified in s 29(3)(b) of the SI Act . The expressions " without the approval of the Commissioner " and " unless the Commissioner approves otherwise " in s 29(3) simply recognise the availability of the immunity to the Commissioner and his or her ability to waive it. On its true construction, s 29(3) does not confer any relevant power or duty in the Commissioner, but merely preserves a non-statutory entitlement to a privilege. Dr Griffiths also argued that it is inconsistent with the nature of the privilege that its assertion or waiver should be amenable to judicial review. 112As the oral argument developed, the Commissioner's first submission seemed to divide into two branches. The first was that s 29(3) of the SI Act , as a matter of construction, does not confer a discretion, power or duty on the Commissioner. In support of this contention, Dr Griffiths pointed to the structure of the sub-section, which directs the ADT what to do if the Commissioner does not approve the disclosure of criminal intelligence. He contended that the sub-section is simply intended to preserve the Commissioner's right to insist on the confidentiality of criminal intelligence. 113The second branch of the argument was that if s 29(3) of the SI Act (contrary to the Commissioner's submissions) is a source of power for the Commissioner to grant or withhold approval to the disclosure of a report or information, it is nonetheless not appropriate for a court to exercise the power to review the Commissioner's decision. This follows, so Dr Griffiths argued, from judicial descriptions of the Commissioner's power as " unreviewable " or as a power in respect of which the Commissioner " has the final say ": AVS (No 1) , at [24], per Basten JA; at [153], per Campbell JA. 114Dr Griffiths also supported the unreviewability of the Commissioner's power by analogy with cases such as Stewart v Ronalds [2009] NSWCA 277; 76 NSWLR 99. There it was held that the decisions by the Premier and Lieutenant Governor to withdraw the commission of the plaintiff as a Minister were not amenable to judicial review. While the Commissioner's decision did not involve political processes, according to Dr Griffiths the information was likely to be very sensitive and to warrant the exercise of judicial restraint where the Court was invited to review the decision. 115The Commissioner's second argument was that, assuming that his decision was amenable to judicial review, the primary Judge had misconstrued s 29(3) of the SI Act . Dr Griffiths submitted that her Honour had mistakenly held that s 29(3) required the Commissioner to approve the proposed special advocate procedure if the Commissioner was satisfied that the procedure would preserve the confidentiality of any criminal intelligence report or other criminal information to which s 29(3) applies. 116Dr Griffiths submitted that her Honour had overlooked that the proposed special advocate procedure did not preserve the confidentiality of Criminal Intelligence as contemplated by s 29(3). Her Honour had incorrectly assumed that the only object of s 29(3) of the SI Act was to limit the disclosure of Criminal Intelligence. However, the sub-section was also intended to allow the Commissioner to take into account the circumstances in which the intelligence was obtained, including any undertakings given to other agencies supplying relevant information. 117Thirdly, the Commissioner submitted that the primary Judge incorrectly inferred from the absence of reasons given by the Commissioner for his decision not to approve disclosure of the criminal information that the Commissioner simply wished to preserve his unfair forensic advantage. Dr Griffiths contended that the Commissioner was not obliged to give reasons and that no adverse inference could be drawn from the absence of any reasons. There was no other evidence that would support a finding that the Commissioner had an improper purpose in refusing to approve disclosure of the information. Insofar as her Honour took into account submissions made to her by the Commissioner's counsel, she had misconstrued them and, in any event, they were incapable of establishing any facts about the conduct of the Commissioner.

AVS's Submissions 118AVS submitted that the Commissioner's contentions as to the unreviewability of the Commissioner's decisions were based on misconceptions about the nature of public interest immunity. The right to claim public interest immunity, so it was argued, does not belong exclusively to any one person, but can be invoked by any party, by a witness or by the court itself as a basis for excluding otherwise relevant evidence. Moreover if a court holds that the immunity precludes disclosure of particular evidence, the immunity cannot be waived. Accordingly, the Commissioner was incorrect to characterise public interest immunity as his own privilege. Furthermore, contrary to the Commissioner's submissions, s 29(3) of the SI Act cannot be regarded as simply a restatement or modification of the principles of public interest immunity. 119AVS disputed the Commissioner's contention that s 29(3) of the SI Act does not confer power on the Commissioner to grant or withhold approval to the ADT to disclose criminal information. Mr Hughes QC, who appeared with Mr Oliver for AVS, submitted that s 29(3) confers on the Commissioner a power to dispense with an otherwise absolute prohibition on the ADT, or anyone in connection with ADT proceedings, disclosing the existence or content of Criminal Intelligence. Since the Commissioner has a statutory power to approve disclosure of Criminal Intelligence, the Supreme Court must retain a supervisory jurisdiction over the exercise of or refusal to exercise that statutory power. If it were otherwise, constitutional issues would arise. 120Mr Hughes submitted that her Honour had correctly construed s 29(3) of the SI Act as conferring a power that required the Commissioner to approve the proposed special advocate procedure if satisfied that the proposal would preserve the confidentiality of any Criminal Intelligence to which s 29(3) applies. There would be no useful purpose in giving the Commissioner a power to grant approval (that is, to dispense with an otherwise blanket prohibition) unless Parliament contemplated that there would be circumstances in which the Commissioner would be obliged to grant approval. 121This conclusion was supported by:

• the evident purpose of the SI Act to promote the correct application in individual cases of the licensing criteria prescribed by the legislation;
• the purpose of the amending legislation introducing s 29(3) into the SI Act , which was to avoid the mischief of public disclosure of sensitive police intelligence, yet to make that intelligence available to the ADT in cases where the Commissioner might otherwise be reluctant to do so; and
• the objects of the ADT Act , which include ensuring that ADT proceedings are fair (s 3(b)). 122AVS further argued that the primary Judge was clearly right to infer that the Commissioner had no good reason to refuse to approve the proposed special advocate procedure. The Commissioner had not given any reason and there could hardly be any doubt as to the integrity of the proposed special advocate or as to his compliance with a confidentiality regime. 123Similarly, AVS argued that the primary Judge was entitled to infer that the Commissioner had refused to approve the proposed special advocate procedure without considering whether the procedure adequately protected the confidentiality of any relevant criminal intelligence and for the improper purpose of obtaining an unfair forensic advantage over AVS. 124For these reasons, AVS submitted that the Commissioner should be refused leave to appeal from the decision of the primary Judge. If, however, leave to appeal was granted, AVS submitted that the appeal should be dismissed.

The Cross-Appeal 125As has been noted, the Commissioner consented to AVS being granted leave to cross-appeal from the orders made by the primary Judge to the extent those orders were challenged in the draft notice of cross-appeal. The submissions summarised below relate to the merits of the cross-appeal.

AVS's Submissions 126AVS challenged the primary Judge's holding that a special advocate had to be appointed by AVS, rather than by the ADT with AVS's consent. AVS also challenged her Honour's holding that the ADT could not adopt any form of special advocate procedure except with the approval of the Commissioner. 127AVS submitted as follows: (i) Sections 73(1) and 73(2) of the ADT Act are sufficiently broad to enable the ADT to obtain assistance from " confidential counsel ", including one designated as a special advocate. These provisions reflect the fact that the ADT, subject to affording the parties procedural fairness, is free to instigate proactive inquiries not available to a court. It can undertake these inquiries through confidential counsel (however described). (ii) A person appointed by the ADT as confidential counsel is not the " applicant's representative " within the meaning of s 29(3)(b) of the SI Act . This is so because such a person does not represent a particular party in the proceedings merely because the matters on which he or she assists the ADT might be in the interests of that party. Moreover, the duties of non-disclosure to which confidential counsel would be subject are wholly inconsistent with the relationship between legal practitioner and client. (iii) Sections 75(2) and 131(1)(j) of the ADT Act ([76], [84], above) empower the ADT to receive undertakings from a person it appoints as confidential counsel and to make orders requiring such counsel not to disclose the existence or content of relevant Criminal Intelligence without the approval of the Commissioner. (iv) Disclosure of relevant criminal intelligence to a person appointed by the ADT as confidential counsel is not disclosure to a person or class of persons referred to in s 29(3)(b) of the SI Act . (v) Alternatively to (iv), the " disclosure " forbidden by s 29(3) of the SI Act is limited to disclosure: "for any purpose, or to a person who might employ it for any purpose, other than the [ADT's] determination of the relevant applicant for review." Thus disclosure by the ADT to confidential counsel of the existence or content of any relevant criminal intelligence will not be disclosure of the kind prohibited by s 29(3) of the SI Act .

Commissioner's Submissions 128The Commissioner submitted that s 29(3) of the SI Act prohibits the ADT disclosing to anyone the existence or content of material to which the sub-section applies. It follows, so Dr Griffiths argued, that AVS's consent to the appointment of a special advocate cannot be required, since the process of obtaining consent would necessarily disclose to it the existence of the material to which s 29(3) applies. 129The Commissioner accepted that the language of s 29(3) perhaps suggests that there may be a distinction between representation of a party and representation to advance the interests of a party. However, Dr Griffiths submitted that s 73 of the ADT Act does not empower the ADT to appoint either a representative of a party or a representative of a party's interests. He argued that s 29(3) of the SI Act , insofar as it applies to proceedings, circumscribes the entirety of the right of a party to be present or represented. For present purposes, therefore, there is no difference between representing a party and representing that party's interests. Accordingly, the ADT's responsibilities under provisions such as ss 73(4) and 73(5)(b) of the ADT Act have to give way to the restrictions imposed by s 29(3) of the SI Act . This is a consequence, so Dr Griffiths submitted, of s 29(3) impliedly repealing pro tanto those provisions of the ADT Act which require the ADT to facilitate a party's participation in and understanding of proceedings. 130Dr Griffiths stressed that the procedure proposed by AVS contemplated that the special advocate would represent AVS's interests. In such circumstances, the special advocate would never cease to be the representative of the party from whom he or she receives initial instructions and whose interests the special advocate is to advance. 131The Commissioner expressly accepted that a person appointed by the ADT to assist it, as distinct from advocating a party's interests, is not engaged in the " representation " of a party for the purposes of the ADT Act . However, Dr Griffiths submitted that AVS had never sought the appointment of such a person. In any event, so he contended, the ADT Act did not contemplate the appointment of a person to act in a role analogous to that of counsel assisting the ADT. 132Dr Griffiths pointed out that the ADT Act authorised the ADT to utilise assessors to advise it in the discharge of its functions and that assessors, like members of the ADT, are subject to the confidentiality regime established by ss 127-129 of the ADT Act . These provisions indicate that the legislation does not contemplate the appointment of a counsel assisting the ADT or a special advocate, particularly as such a person would not be bound by the statutory confidentiality regime. 133Finally, Dr Griffiths submitted that s 29(3)(a) of the SI Act should be construed as prohibiting the disclosure of relevant criminal intelligence to anyone without the approval of the Commissioner. He pointed out that the classes of persons identified in s 29(3)(b) include neither representatives of interested persons (other than the applicant) nor witnesses. He contended that it could not have been the legislative intention to exclude the specified classes of persons from hearings in which Criminal Intelligence is revealed (unless the Commissioner approves their presence), yet to deny the Commissioner the right to ensure that Criminal Intelligence is not revealed to witnesses or legal representatives of interested parties.

AVS's submissions 134AVS submitted that it is entitled to a final hearing before the ADT that complied with the principles of procedural fairness, to the fullest extent to which those principles are compatible with s 29(3) of the SI Act . AVS further submitted that if secret evidence is to be received by the ADT in that hearing, the Commissioner is bound to approve their application to be represented by a special advocate. 135According to AVS, the ADT's duty to accord procedural fairness is recognised by provisions such as ss 60, 73(2) and 73(4) of the ADT Act . Section 29(3) impliedly repeals these provisions only to the extent that the specific duty of non-disclosure cannot stand with the performance of its duty to accord procedural fairness. 136AVS submitted that the Commissioner is obliged, in determining whether or not to grant approval under s 29(3) of the SI Act to the disclosure of intelligence, to take into account an applicant's entitlement to procedural fairness. He is also obliged to take into account the purposes of the legislation. These include the objective of enabling review proceedings in the ADT to be conducted as fairly as practicable, but without compromising the public interest in maintaining the confidentiality of Criminal Intelligence referred to in s 29(3). 137The proposed special advocate procedure involves no risk of public disclosure of sensitive intelligence and no risk that the information will be employed for any purpose other than the ADT's determination of the review application. The evidence supports an inference that the Commissioner is satisfied that there are no such risks. In these circumstances, the Commissioner is obliged to exercise his power so as to grant the approval sought. Moreover, the Court is justified in concluding that the Commissioner must have refused (and maintained his refusal) to approve AVS's request by reason of factors irrelevant to the lawful exercise of his statutory power and duty. 138According to Mr Hughes, s 65 of the Supreme Court Act empowers the Court to order the Commissioner to consider and determine AVS's application in accordance with law. Mr Hughes went further and submitted that where, as here, the power could be exercised only in one way, the Court could order the Commissioner to approve AVS's proposal.

Commissioner's Submissions 139The Commissioner contended that AVS's submissions could not be accepted for three reasons: the Commissioner's decision whether or not to grant approval under s 29(3) of the SI Act was not amenable to judicial review; s 29(3) of the SI Act , on its proper construction, confers a true power or discretion on the Commissioner whether or not to grant approval and does not impose any duty on him to grant approval; and the circumstances relied on by AVS to support its claim that the Commissioner was bound to approve AVS's request that the ADT adopt the proposed special advocate procedure were inconsistent with the Commissioner's stated reason for refusing approval, namely the circumstances in which the criminal intelligence had been obtained.

Reasoning 140The Commissioner's application for leave to appeal from the decision of the primary Judge raises issues of general importance that are clearly arguable. It is therefore appropriate that the Court grant the Commissioner leave to appeal. As has been noted, the Commissioner consented to the Court granting AVS leave to cross appeal and it is also appropriate to grant that leave. 141It is convenient to deal first with the issues arising on the Commissioner's appeal. However, in doing so, it is necessary to consider some matters which arise on the cross-appeal or which are not the subject of direct challenge either on the appeal or the cross-appeal.

Recent Decisions 142Section 29(3) of the SI Act has been the subject of close analysis in two decisions of this Court: Gray and AVS (No 1). In Gray , the issue was whether s 29(3) of the SI Act precluded the ADT from making an order directing the Commissioner to provide particulars to the applicant on the basis of which his application for a security licence had been rejected. McColl JA, with whom Giles and Tobias JJA agreed, held (at [124]) that it was impossible in practice for the Commissioner to provide particulars of the applicant's conduct without referring to the content of confidential Criminal Information relied on by the Commissioner. Accordingly, a requirement to give such particulars contravened the direction in s 29(3). 143McColl JA pointed out (at [77]), that public interest immunity provides " some context " for the scheme established by s 29(3) of the SI Act. As her Honour noted, where a claim of public interest immunity is upheld, the evidence is not available to be taken into account in determining the outcome of proceedings: see Evidence Act 1995 (NSW), s 130. Her Honour stated (at [79]) that, against this background, it was: "apparent that [s 29(3)] was intended to modify the application of the principles of public interest immunity as they might otherwise have applied in an external review of a refusal or revocation of a licence. It 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(6) materials pursuant to s 58(1)(b) and s 63 of the [ ADT Act ]. See, too, AVS (No 1) at [139]-[140]), where Campbell JA, in endorsing McColl JA's comments, observed that public interest immunity can attach to evidence concerning the identity of police informers or revealing the contents of internal police documents. 144Four propositions relevant to the present case emerge from McColl JA's judgment in Gray . None was challenged in this Court, although there may be questions as to the precise scope or application of some of them. 145First , although there is no definition of the statutory expressions " criminal intelligence " or " criminal information " in the SI Act , whether information falls within s 15(6) (and therefore within s 29(3)) is capable of objective determination (at [95]). It follows that when a claim is made under s 29(3) of the SI Act (it may be more accurate to say when an issue arises under s 29(3) of the SI Act ), it is necessary for the ADT to be satisfied that the information the Commissioner seeks to cloak with non-disclosure is properly classified as either " criminal intelligence " or " criminal information" and comes within one or other of the categories of criminal intelligence or criminal information identified in s 15(6)(a)-(c) of the SI Act. See also AVS (No 1), at [156], per Campbell JA. 146It also follows that the Supreme Court has jurisdiction to correct any error of law made by the Commissioner or the ADT in construing the statutory expressions. That jurisdiction might be exercised by a grant in the nature of prerogative relief under s 69 of the Supreme Court Act 1970 (NSW) or by way of an appeal to the Supreme Court on a question of law (from a decision of an Appeal Panel) under s 119(1) of the ADT Act. 147Secondly , s 15(7) of the SI Act gives the Commissioner an immunity from disclosing Criminal Intelligence when giving reasons for not granting a licence (at [103]). This is to be taken as a legislative indication, early in the application process, that the SI Act is intended to modify the rules of procedural fairness insofar as they ordinarily entitle persons to know the case against them (at [103]). 148Thirdly , 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 ADT in the case of an external review (at [104]). Prima facie, therefore, s 58(5) of the ADT Act requires the Registrar of the ADT to grant the review applicant reasonable access to those documents. That step is, however, precluded if the Commissioner invokes s 59 of the SI Act and foreshadows an application under s 75 to prohibit or restrict disclosure of the contents of the documents. The scheme thus created (at [105]): "ensures that the existence of confidential materials comes to the notice of the [ADT], but gives the Commissioner the opportunity to make a s 29(3) non-disclosure claim.... 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 [ADT] is required by s 63 to take it into account in its deliberations." 149Fourthly , s 29(3) of the SI Act and s 73 of the ADT Act , to the extent that s 73 contradicts the s 29(3) requirement that neither the existence nor content of s 15(6) confidential information can be disclosed by the ADT, cannot stand together (at [111]). Section 29(3) therefore impliedly repeals s 73: "to the extent that 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]). See, too, AVS (No 1), at [145], per Campbell JA. 150The issue in AVS (No 1) was whether the obligation under s 29(3) of the SI Act, which applies " in determining an application for review ", governed the hearing of an application under s 60 of ADT Act for what had been described as a " stay " pending the hearing of the review application: at [47], per Campbell JA. As members of the Court pointed out, this description was not apposite, as the effect of the so-called " stay " was to reinstate AVS's licences pending the hearing in the ADT: at [16], [18], per Basten JA; at [95]-[96], [105], [110], per Campbell JA. Nonetheless, the Court held the ADT had power under s 60(2) of the ADT Act to make an order having that effect. 151The Court also held that the obligations imposed by s 29(3) of the SI Act apply to an application for a stay or for the reinstatement of a licence pending a hearing by the ADT. Basten JA pointed out that an application for a stay or similar order is a step in the process of determining the subject matter of the review. Accordingly, to exclude interlocutory hearings from the protection accorded by s 29(3) would " tend to subvert the purpose of the provision ": at [21]. His Honour identified that purpose as to " maintain the non-disclosure of the existence and content of identified information ". Campbell JA, with whom Handley AJA agreed, held that the process of reviewing a decision commences with the filing of the application for review and that everything done thereafter can legitimately be described as actions carried out " in determining an application for a review ": at [128]-[132]. 152Campbell JA reinforced (at [70]) the comments made in Gray about the impact of s 29(3) of the SI Act on procedural fairness: "In Commissioner of Police v Gray, McColl JA recognised, at [75], that 's 29(3) impinges upon ordinary principles of natural justice '. That is, if I may say so respectfully, a very restrained way of putting it. The effect of section 29(3) is that, in those activities of the Tribunal concerning which it applies, the Tribunal is required to make a decision that may well affect an applicant for review in a serious way and result in the applicant losing his or her livelihood, without the existence or contents of some of the evidence against the applicant being disclosed to the applicant, and hence without the applicant having any opportunity to test, counter or qualify that evidence, or to make submissions about its significance." 153However, Campbell JA in AVS (No 1) also explained (at [144]) that the right conferred by s 29 of the SI Act to seek review in the ADT of a decision to revoke a licence conferred on the licence holder an avenue for review that had not previously existed. The prior legislation conferred a right of appeal to a magistrate. However, it was a matter for the Commissioner to determine whether to place confidential material before the magistrate and, if access was sought by the appellant, to determine whether to claim public interest immunity over the material. If the claim succeeded, the appeal would be decided on evidence not including the confidential information. His Honour continued (at [145]) as follows: "The nature of a right of review in the Tribunal of a decision to revoke a licence is quite different to the previous right of appeal to a magistrate. There is a statutory obligation on the Commissioner, pursuant to section 58 ADT Act, to provide the Tribunal with all relevant information (unless excused from that obligation under section 59). That has the effect of altering the situation that had existed under the previous appeal system, where an appeal might be decided with highly relevant information not taken into account. To the extent that the Commissioner in making the original decision could take into account section 15(6) information without disclosing it to the licensee, so the Tribunal is placed in a position to do the same. Further, even if the Commissioner had an obligation, arising from the laws of natural justice, to disclose the substance of troubling information to the licensee and seek submissions about it before deciding to revoke the licence (a matter which I expressly decline to decide), section 29(3) makes clear that the Tribunal is not subject to any such obligation in determining an application for review. To that extent, section 29(3) effects an implied partial repeal of the Tribunal's obligation to act in accordance with natural justice, arising under section 73(2) ADT Act: Commissioner of Police v Gray at 29, [111]-[112].

Observations Concerning the Legislative Scheme 154A number of observations should be made about the legislative scheme governing the use of Criminal Intelligence in licence revocation decisions by the Commissioner and, on review, by the ADT. 155First , the power conferred by s 15(6) on the Commissioner is to have regard to any Criminal Intelligence that satisfies one or more of the criteria stated in subpars (a)-(c), for the purpose of determining whether the applicant is a fit and proper person to hold the class of licence he or she seeks . Section 15(6) does not in terms apply to the revocation of a licence by the Commissioner. However, s 26(1A) of the SI Act requires the Commissioner to revoke a licence if he or she is satisfied that, if the licensee were applying for a new licence, the SI Act would require the application to be refused. It is clear enough that this provision is intended to allow the Commissioner to have regard to Criminal Intelligence in determining whether to revoke a licence in the same manner as Criminal Intelligence can be taken into account by the Commissioner in deciding whether to grant a licence. 156On this basis, the effect of s 63(2) of the ADT Act (which provides that the ADT may exercise all functions conferred or imposed by statute on the original decision-maker) is that, on an application to the ADT to review a revocation decision, all references to " the Commissioner " in ss 15(6) and 26(1A) of the SI Act are replaced by references to the ADT: AVS (No 1) at [155], per Campbell JA. When read with s 29(3) of the SI Act , these provisions appear to be sufficient to enable the ADT to take into account Criminal Intelligence in reviewing a decision of the Commissioner to revoke a licence on the ground that the holder is not a fit and proper person to hold the licence. 157Secondly , as has already been noted, s 15(6) does not define the expressions " criminal intelligence report " or " criminal information ". In this respect, it differs from similar legislation in other jurisdictions, such as the Liquor Licensing Act 1997 (SA) considered by the High Court in K-Generation Pty Ltd v Liquor Licensing Court [2009] HCA 4; 237 CLR 501: see the definition in s 4 of the Liquor Licensing Act 1997 (SA) and the analysis of K-Generation in Commissioner of Police v Gray [2009] NSWCA 49; 74 NSWLR 1, at 24-26 [88]-[94], per McColl JA. One consequence, as Dr Griffiths acknowledged in argument, is that the statutory expressions, on their proper construction, might cover intelligence or information going beyond material that would found a legitimate public interest immunity claim. 158Thirdly , s 15(7) of the SI Act makes it plain that the Commissioner is not, whether under the SI Act or any other Act or law , required to give any reasons for not granting a licence if to do so would disclose the existence or content of any Criminal Intelligence. Section 15(7) of the SI 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: cf ADT Act , s 49(1), (2), (3). 159Fourthly , s 15(7) of the SI Act does not, in terms, apply to the Commissioner's obligation to give reasons for revoking a licence. Campbell JA observed (at [141]) in AVS (No 1), that this omission might be less significant than it seems because the SI Act was enacted against the background that an officer is not under any duty at common law to give reasons and therefore need not do so save to the extent that legislation imposes such a duty: Public Service Board (NSW) v Osmond [1986] HCA 7; 159 CLR 656. However, it must be remembered that s 49 of the ADT Act requires an " administrator " who makes a " reviewable decision " to give reasons if requested to do so. 160There does not appear to have been any dispute in the present case that, despite the limitations in the language of s 15(7), the Commissioner is not required to give reasons for revoking a licence if to do so would reveal the existence or content of Criminal Intelligence. It would certainly be odd if it were otherwise, as the Commissioner's obligation to give reasons for refusing to grant a licence and the ADT's obligations to give reasons on an application to cancel a revocation decision are clearly subject to the qualification that the reasons are not to disclose the existence or content of Criminal Intelligence (by ss 15(7) and 29(3) of the SI Act, respectively). (Section 29(3) of the SI Act applies to the ADT's determination of an application for review of the decision to refuse to grant or to revoke a licence on the ground that the applicant for review is not a fit and proper person. Unlike s 15(7), for example, s 29(3) is not in terms confined to a decision relating to the grant of a licence.) 161Fifthly , s 29(3) of the SI Act is drafted as a directive to the ADT. The sub-section provides that the ADT:

• is to ensure that it does not, in its reasons for decision or otherwise, disclose the existence or content of Criminal Intelligence without the Commissioner's approval (s 29(3))(a)); and
• in order to prevent the disclosure of Criminal Intelligence, is to receive evidence and hear argument in the absence of certain categories of persons (s 29(3)(b)). 162Section 29(3) takes a somewhat different form than s 76(2) of the Corruption and Crime Commission Act 2003 (WA) (" CCC Act ") the constitutionality of which was considered by the High Court in Gypsy Jokers Motorcyle Club Inc v Commissioner of Police [2008] HCA 4; 234 CLR 532. Section 76(2) of the CCC Act provided that the Commissioner of Police could identify certain information for the purposes of judicial review of a decision to issue a " fortification removal notice " and the: "information so identified is for the court's use only and is not to be disclosed to any other person ... or publicly disclosed in any way". The majority judgment pointed out that the sub-section was cast in the passive voice and did not make clear to whom the direction applied (at [35], [40], [44], per Gummow, Hayne, Heydon and Kiefel JJ. Section 29(3) of the SI Act , by contrast, takes the form of an express directive to the ADT. (Compare s 28A(5) of the Liquor Licensing Act 1997 (SA), the validity of which was upheld in K-Generation Pty Ltd v Liquor Licensing Court [2009] HCA 4; 237 CLR 501. Section 28A(5) required the Licensing Court and the Supreme Court to " take steps " to maintain the confidentiality of information classified by the Commissioner of Police as criminal intelligence.) 163In this respect, the structure of s 29(3) of the SI Act is very similar to that of a number of provisions in the ADT Act. For example, the ADT:
• is to take such measures as are reasonably practicable to ensure that the parties have the fullest opportunity to be heard or otherwise have their submissions considered in the proceedings (s 73(4)(c)); and
• is to ensure that all relevant material is disclosed to the ADT so as to enable it to determine all of the relevant facts in issue in any proceedings (s 73(5)(b)). 164Sixthly , the directions to the ADT are expressed in apparently mandatory terms. In K-Generation , the legislative direction to the Licensing Court and the Supreme Court was construed as conferring on the Courts a degree of flexibility as to the steps to be taken to maintain the confidentiality of criminal intelligence; at [76], per French CJ; at [147], per Gummow, Hayne, Heydon, Crennan and Kiefel JJ. By contrast, s 29(3)(a) of the SI Act states that the ADT is " to ensure that it does not, in the reasons for its decision or otherwise, disclose the existence or content of " Criminal Intelligence, without the Commissioner's approval. Section 29(3)(b) uses less emphatic language but appears to require the ADT to receive evidence and hear argument in the absence of the specified classes of persons if this is required " in order to prevent the disclosure of " Criminal Intelligence. 165Seventhly , the direction in s 29(3)(b) of the SI Act , does not in terms require the ADT to receive evidence and hear argument in the absence of any person other than the Commissioner or the Commissioner's representative. The ADT is required to exclude only four specified categories of persons, namely:

Is the Commissioner Obliged to Consider an Application for Approval of the Proposed special Advocate Procedure?

The ADT Cannot Appoint the Proposed Special Advocate 169The relief sought by AVS in the proceedings heard by Schmidt J has been summarised above (at [34]). All the relief claimed related to the proposed special advocate procedure proposed in AVS's letter of 10 September 2009 (at [31] above), which the Commissioner had refused to approve in his letter of 9 October 2009 (at [33] above). The critical declaration sought by AVS was that the Commissioner is required by law to consider and determine any application for his approval, pursuant to s 29(3) of the SI Act, of the special advocate procedure, whether the application is made by AVS or the ADT itself. 170The proposed special advocate procedure has the following characteristics:

• the special advocate is to represent the interests of AVS in the review proceedings before the ADT;
• the special advocate (Mr Whitlam QC) has been selected by AVS and, from the time his appointment takes effect, is to be retained and instructed in the capacity of counsel for AVS;
• the special advocate is to assist the ADT in the proceedings in accordance with the ADT's directions and is to receive no further instructions as counsel for AVS;
• the special advocate is to represent the interests of AVS at any closed session of the proceedings in the ADT;
• the special advocate is forever prohibited, save as compellable by law and subject to further order of the ADT, from revealing any Criminal Intelligence or other evidence received by the ADT in the closed session; and
• in the first instance, without prejudice to its rights to apply for a costs order under s 88 of the ADT Act , AVS will pay all costs arising from the appointment of the special advocate. 171The proposed special advocate procedure therefore expressly contemplates that the advocate will be retained, instructed and paid for by AVS and will represent AVS's interests in the review proceedings in the ADT. In my opinion, the proposed special advocate is clearly " the applicant's representative " for the purposes of s 29(3)(b) of the SI Act. The fact that the special advocate cannot receive further instructions from AVS does not alter the fact that he or she is representing a party to the ADT proceedings ( ADT Act, s 71(1)(b)). 172It follows that the ADT itself cannot appoint a special advocate to perform the functions proposed by AVS without the Commissioner's approval. If the ADT did so and permitted the special advocate to participate in the proceedings in order to represent AVS in relation to the Criminal Intelligence relied on by the Commissioner, the ADT would contravene the direction in s 29(3)(b) of the SI Act. It is no doubt for this reason that AVS chose to approach the question of securing effective representation in the ADT proceedings by arguing that the Commissioner is bound to consider and determine AVS's application for his approval to the disclosure of Criminal Intelligence.

The Commissioner's Approval and Public Interest Immunity 173The starting point for AVS's submissions in the Commissioner's appeal from Schmidt J's decision is that s 29(3) of the SI Act confers a dispensing power on the Commissioner. As a matter of language, as I have pointed out (at [161]), s 29(3) is framed as a directive to the ADT not to disclose the existence or content of Criminal Intelligence. It is released from its obligation to maintain this degree of confidentiality only if the Commissioner approves the disclosure. 174The reference in s 29(3) of the SI Act to the Commissioner's approval to the disclosure of Criminal Intelligence must be understood in the context of the statutory scheme as a whole. As Campbell JA pointed out in AVS (No 1), at [144]-[145], s 29(1) of the SI Act confers a novel right of review on a licence holder wishing to challenge a revocation decision. The licence holder can now apply to the ADT for a review of the revocation decision. However, following the 2005 amendments of the SI Act, the review is to be conducted on the basis that the ADT is precluded from disclosing the existence or content of Criminal Intelligence in any of the ways specified in s 29(3). 175This contrasts with the previous entitlement of a licence holder to appeal to a magistrate against a revocation decision. On such an appeal, if the Commissioner wished to rely on sensitive criminal intelligence, he or she ran the risk, under the principles of public interest immunity or the regime established by s 130 of the Evidence Act, that the magistrate could require the material to be disclosed to the appellant or the appellant's legal representatives. (There might have been circumstances in which a magistrate would permit the use of criminal intelligence without it being revealed to the appellant, but the Commissioner had no entitlement to a confidentiality regime of this kind: cf Amer v Minister for Immigration, Local Government and Ethnic Affairs (Fed Ct, Lockhart J, 18 December 1989, unreported); Nicopoulos v Commissioner for Corrective Services [2004] NSWSC 562; 148 A Crim R 74; Hussain v Minister for Foreign Affairs (2008) FCAFC 128; 169 FCR 241, at [139], per curiam. ) 176It is no doubt correct to say, as McColl JA did in Gray, at [77]-[79], that s 29(3) of the SI Act is intended to modify the application of public interest immunity principles to a review by the ADT of a revocation decision. However, the statutory regime is very different from the principles governing public interest immunity. The legislation must be construed by reference to the language Parliament has used and not as though it is simply a branch of the law of public interest immunity (as the argument sometimes seemed to suggest). 177The differences between the regime established by s 29(3) of the SI Act and the principles of public interest immunity include the following:

• Section 29(3) applies to any " criminal intelligence report " and to " other criminal information ". These legislatively undefined categories are not necessarily co-extensive with the categories of information that attract public interest immunity, such as the identity of informers or intelligence about planned crime or its perpetrators: cf D v National Society for the Prevention of Cruelty to Children [1977] UKHL 1, [1978] AC 171, at 232, per Lord Simon; Cain v Glass (No 2) (1985) 3 NSWLR 230, at 246-248, per McHugh JA. Indeed, Dr Griffiths accepted that not all information or material within s 15(6) of the SI Act will necessarily be sensitive.
• Under the statutory regime, the ADT is not permitted to disclose Criminal Intelligence to a party or the party's legal representatives without the Commissioner's approval. The ADT is not permitted to engage in the balancing exercise that is required by the principles of public interest immunity and by s 130(1) of the Evidence Act.
• The statutory regime clearly contemplates that the Commissioner can rely on Criminal Intelligence in review proceedings in the ADT, even though the information would otherwise be subject to public interest immunity. By contrast, under common law principles, a court is obliged to prevent the disclosure of a document the production of which would be contrary to the public interest, even if no Minister or responsible official makes a claim: Sankey v Whitlam [1978] HCA 43; 142 CLR 1, at 44, per Gibbs ACJ; at 58-59, per Stephen J.

The ADT's Powers Where the Commissioner Relies on Criminal Intelligence 178It is important to appreciate that the ADT is not bound to accept or act upon Criminal Intelligence on which the Commissioner relies in review proceedings and which the Commissioner declines to disclose to the applicant or the applicant's representatives. It is also important to appreciate that, although s 29(3) of the SI Act impliedly repeals s 73 of the ADT Act to the extent of any inconsistency between the two provisions, that does not mean that s 73 is wholly repealed. There will be considerable scope for the operation of the rules of " natural justice " to which the ADT is expressly made subject (s 73(2)). There will also be considerable scope for the ADT to give effect to the obligations imposed upon it by provisions such as s 73(4) (giving the parties the fullest practicable opportunity to be heard) and s 73(5) (ensuring that all relevant material is disclosed to the ADT). 179Where the Commissioner relies on Criminal Intelligence the existence or content of which has not been disclosed to the applicant, the ADT has power and, in certain circumstances, an obligation to do a number of things. Without being exhaustive, they include the following. 180First , as McColl JA held in Gray (see at [145] above), the ADT must satisfy itself that the information the Commissioner seeks to withhold is in truth " criminal intelligence " or " criminal information " of the kind identified in s 15(6) of the SI Act . While those terms are undefined, that does not mean that the ADT (and the Supreme Court on an appeal on a question of law or on an application for judicial review) cannot give the terms their proper construction. 181Secondly , the ADT can ask the Commissioner to approve disclosure of Criminal Intelligence on which the Commissioner relies in the review proceedings. This is not purely of formal significance. A request by the ADT will carry weight with the Commissioner. More importantly, the ADT may come to the view that the Criminal Intelligence relied on by the Commissioner appears to be incomplete or possibly flawed. For that reason, the ADT may consider that it would be unsafe or inappropriate to rely on the Criminal Intelligence unless the applicant or his representatives have an opportunity to see and make submissions on the material. A request to the Commissioner in such circumstances is likely to carry particular weight. 182Thirdly , the ADT is not bound to act on Criminal Intelligence upon which the Commissioner relies. It is entitled and, indeed, obliged to form its own view of the cogency of the material. There is also nothing in the legislative scheme which prevents the ADT from taking into account the fact that the applicant has not been able to test the Criminal Intelligence or to adduce evidence in answer to it: cf K-Generation , at [76], per French CJ. 183Fourthly , the ADT's powers include, in my opinion, appointing a legal practitioner to perform functions analogous to those performed by an amicus curiae in court proceedings. 184A court may permit an amicus curiae to make submissions on law or fact: Levy v Victoria [1997] HCA 31; 189 CLR 579, at 604, per Brennan CJ. The court takes into account whether the party whose cause the amicus seeks to support is unable to unwilling to protect his or her own interests, or is unable to assist the court in arriving at the correct determination: Kruger v Commonwealth, transcript of 12 February 1996, at 12 cited by Brennan CJ in Levy v Victoria, at 604. For example, an amicus curiae may be permitted to make submissions on behalf of an infant or other disadvantaged person whose interests might not otherwise be protected: United States Tobacco Co v Minister for Consumer Affairs (1988) 20 FCR 520, at 535, per curiam. 185In Wurridjal v The Commonwealth [2009] HCA 2; 237 CLR 309, the High Court emphasised the role of an amicus curiae in assisting the Court to take a " larger view of the matter before it than the parties are able or willing to offer ": at 312, per French CJ (for the majority) (emphasis added). The functions of the ADT are, of course, different from those of the High Court. But the ADT may need greater assistance in a particular case than the parties are able or willing (for whatever reason) to provide. 186In determining the scope of the ADT's powers, it is necessary to take into account s 73(2) of the ADT Act . This provides that the ADT is not bound by the rules of evidence and may inform itself on any matter in such manner as it sees fit, subject to the rules of natural justice. Provisions of this kind are very common in legislation and have generally received a broad interpretation. 187In Weinstein v Medical Practitioners Board of Victoria (2008) VSCA 193, the question was whether the Board had power to conduct a " Google search " of a person whose expert opinion was relevant to allegations made against a medical practitioner. The relevant legislation included a counterpart to s 73(2) of the ADT Act. Maxwell P, with whom Neave and Weinberg JJA agreed, observed (at [28]) that the words " may inform itself ..." have a meaning and purpose quite distinct from the meaning and purpose of the words " not bound by rules of evidence " . His Honour continued (at [30]): "By giving the panel power to inform itself 'in any way it thinks fit', Parliament has clearly differentiated the panel's conduct of a formal hearing from the judicial paradigm. Whereas the judicial function is essentially passive - in the sense that the court relies on the adversarial parties to present the evidence and define the issues for decision - the panel's work is thus stamped with an inquisitorial character. ...[T]he panel's role as investigator is envisaged as being active, not passive. As the Court noted in Macedon Ranges Shire Council v Romsey Hotel Pty Ltd [2008] VSCA 45, at [71]], the essence of inquisitorial adjudication lies in the active participation of an impartial investigator from the earliest stages of the proceedings. The investigator has primary responsibility for defining the issues and is able to supervise the gathering of evidence." 188In my opinion, s 73(2) of the ADT Act provides ample power for the ADT to appoint counsel to assist it in evaluating Criminal Intelligence relied on by the Commissioner in review proceedings. Counsel's role can include (but would not necessarily be limited to) making submissions in relation to the cogency and reliability of the Criminal Intelligence. Counsel's submissions could include arguments of the kind that the review applicant might have been expected to put if he or she had been made aware of the existence and content of the Criminal Intelligence. 189In referring to counsel assisting, I have in mind someone neither selected nor appointed by the review applicant. Such a counsel, unlike the proposed special advocate, would not be retained or instructed by the review applicant and, of course, would not communicate with the review applicant during the hearing (since to do so would disclose the Criminal Intelligence). In this manner, the ADT could cause itself to be informed so as to minimise the procedural unfairness flowing from the secrecy attending the Criminal Intelligence. 190Although s 73(2) of the ADT Act provides a sufficient source of power for the ADT to appoint a counsel to assist it, that conclusion receives support from other provisions. Section s 73(3) of the ADT Act, which requires the ADT to act according to the substantial merits of the case and without regard to legal technicalities, has its antecedents in English statutes of the early seventeenth century: see N Rees, "Procedure and Evidence in 'Court Substitute' Tribunals" (2006) 28 Aust Bar Rev 41, at 60-61. While such legislation does not allow an administrative body to depart from the substantive law, it is intended to be facultative and to free tribunals from some of the constraints applicable to courts: Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21; 197 CLR 611, at [49], per Gleeson CJ and McHugh J. 191If the ADT considers it necessary or desirable to appoint counsel to assist it to act according to the substantial merits of the case, s 73(3) of the ADT Act authorises the ADT to take that course. It is, after all, but a short step from a court granting leave to an amicus curiae to take on the role of a contradictor for the ADT to appoint counsel to assist it by analysing evidence and advancing arguments that otherwise might not be put. 192In my opinion, nothing in s 29(3) of the SI Act prevents the ADT from appointing counsel to assist it on an application to review a revocation decision where the Commissioner relies on confidential Criminal Intelligence. It will be recalled that s 29(3)(b) directs the ADT in such circumstances 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. Counsel appointed by the ADT to assist it in the manner I have described is not within any of the categories identified in s 29(3)(b). Counsel appointed to assist the ADT clearly would not be " the public " or " the applicant for review " for the purposes of s 29(3)(b) of the ADT Act. Nor would counsel be " the applicant's representative ", since he or she would be selected and appointed by the ADT and would not receive or be bound by instructions from the applicant. The SI Act does not define " interested party ". However, the legal practitioner appointed to assist the ADT would have no personal or financial interest in the outcome of the review proceedings. On that basis, in my opinion he or she could not be described as a " party interested " for the purposes of s 29(3)(b) of the SI Act. 193The Commissioner argued that s 29 of the SI Act prevents the ADT from appointing a counsel to assist it on an application to review a revocation decision because s 29(3)(a) prohibits the disclosure of Criminal Intelligence to anyone without the Commissioner's approval. This construction would render s 29(3)(b) otiose. There would be no point in directing the ADT, in order to prevent disclosure of Criminal Intelligence, to receive evidence and hear argument in the absence of specified classes of persons, if the ADT was already obliged to ensure that it did not, by any means, disclose the Criminal Intelligence to anyone. 194In my opinion, s 29(3)(a) of the SI Act is intended to prohibit the ADT from disclosing Criminal Intelligence in its reasons for judgment or any other publication of its rulings, decisions or proceedings. Section 29(3)(b) is directed to the separate issue of the manner in which the ADT is to conduct its hearings where Criminal Intelligence is to be relied on by the Commissioner. The direction in s 29(3)(b) therefore does not require the ADT to ensure that Criminal Intelligence is not revealed to counsel assisting the ADT in the manner I have described. 195It should be noted that the ADT Act confers power on the ADT to give directions to ensure that counsel assisting maintains the confidentiality of Criminal Intelligence. Section 75(2)(d) of the ADT Act provides that if the ADT is satisfied that it is desirable to do so, by reason of the confidential nature of any evidence or matter or for any other reason, it may make an order prohibiting the disclosure to some or all of the parties of evidence or of the contents of a document lodged with the ADT or received in evidence. Section 75(2)(c) empowers the ADT to prohibit the publication of evidence or of the contents of documents lodged with it. These powers can be exercised to impose a confidentiality regime on counsel assisting the ADT.

Conclusions 196It is necessary to construe s 29(3) of the SI Act, insofar as it refers to the approval of the Commissioner to the disclosure of Criminal Intelligence, within the framework I have outlined. The statutory regime does not remove entirely the obligation of the ADT to afford natural justice or procedural fairness to a review applicant. Even though the ADT may not disclose or permit disclosure of Criminal Intelligence to the review applicant or the applicant's legal representatives, there are measures which it can and should take to ensure that procedural unfairness is minimised. In essence, the legislation gives the ADT responsibility, within the limitations imposed by s 29(3), to accord procedural fairness to a review applicant. 197Section 29(3) of the SI Act, as I have noted, directs the ADT how it is to act in relation to the non-disclosure of Criminal Intelligence, unless the Commissioner approves a different course. As AVS submitted, the words " approval " and " approves " in s 29(3) envisage a request to the Commissioner, to which the Commissioner responds by granting or withholding approval. In my opinion, however, the sub-section envisages that any request to the Commissioner will be made, not by the review applicant, but by the ADT. 198This conclusion reflects the form of s 29(3): the ADT is to act in a certain way unless the Commissioner approves the ADT acting in a different way. But it must also be remembered that it is for the Commissioner to determine whether the review applicant (or anyone else mentioned in s 29(3)(b)) is to know of the existence or content of the Criminal Intelligence. 199In the present case, as events transpired, AVS learned of the existence of Criminal Intelligence at an early stage of the ADT proceedings. However, a review applicant or his or her representatives may not know of the existence of Criminal Intelligence. Yet the ADT will know in every case if the Commissioner relies on such Intelligence. In such cases, any request for the Commissioner's approval to disclose the existence or content of the Criminal Intelligence can only be made by the ADT itself. 200There is nothing to prevent a review applicant asking the Commissioner whether he or she intends to rely on Criminal Intelligence and, if so, requesting that the Criminal Intelligence be disclosed. The critical question, however, is not who might make a request to the Commissioner but whether s 29(3) of the SI Act requires the Commissioner to respond substantively to any such request. 201In my opinion, the Commissioner does not have to do so. To hold otherwise would mean that, in a case where the existence of Criminal Intelligence had not been disclosed to the review applicant, the Commissioner would be bound to reveal the very matter that the legislation contemplates need not be disclosed to the review applicant. I do not think that the legislation requires a different result where the review applicant has been told that the Commissioner relies on Criminal Intelligence. The legislation cannot have a differential construction depending on whether or not the review applicant happens to have learned of the existence of Criminal Intelligence. 202Section 29(3) assumes that any request to the Commissioner, which requires a response will be made by the ADT. The ADT will be entitled to ask the Commissioner to give reasons in confidence for any refusal, to evaluate any such reasons and to bring any doubts or misgivings about the refusal to the Commissioner's attention. 203The foundations for AVS's case in the proceedings determined by Schmidt J were wanting. The Commissioner was not bound to consider a response to AVS's request that he approve the proposed special advocate procedure. Since the Commissioner was not bound to respond to AVS's request, there is no basis for AVS's further proposition that the Commissioner, if satisfied that the nominated special advocate would maintain confidentiality, was bound to approve disclosure of the Criminal Intelligence in the special advocate. 204I should add that even if there was a basis for contending that the Commissioner was bound to consider a request by AVS for approval of the proposed special advocate procedure, there would be serious obstacles in the path of concluding that the Commissioner was obliged to approve the request. Among other things, the Commissioner's legitimate concerns, as stated in his letter of 23 April 2010, include the circumstances in which the Criminal Intelligence was obtained and the possibility that disclosure, even to a special advocate subject to confidentiality obligations, would breach undertakings given to those who have provided the Intelligence. 205The conclusion I have reached has the advantage of minimising the opportunities for interlocutory disputation before the ADT hears and determines an application for review of a revocation decision. 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 ADT (s 73(5)(c)) in accordance with the substantial merits of the case (s 73(3)).

Section 78B Notice 206The constitutional issue identified by AVS in its notice under s 78B of the Judiciary Act is as follows: "2 The question is whether s 29(3) of the [ SI Act ] is constitutionally invalid for the reason that it: a. requires an inferior tribunal, namely the [ADT], unless an executive officer of the State of New South Wales, namely the Commissioner of Police, approves otherwise, to publish reasons for decisions made by it and affecting legal rights, that are misleading as to the true reasons for such decisions, by reason of the non-disclosure in such published reasons of the existence of matters that may in particular cases be matters giving rise to jurisdictional error by the Tribunal in reaching such decisions; and therefore b. is capable of operating so as to prevent in particular cases the effective exercise by the Supreme Court of New South Wales of the supervisory jurisdiction to review jurisdictional error on the part of the [ADT]; and c. is to that extent repugnant to the requirements of Chapter III of the Commonwealth Constitution; and d. is incapable of being read down so as to operate only in a manner that avoids that repugnancy. 3. Section 29(3) of the SI Act purports to prohibit the [ADT], in determining any application for review by it of a decision of the Commissioner to revoke a statutory licence issued pursuant to the SI Act , from disclosing the existence of any criminal intelligence report or other criminal information that the Commissioner considers relevant to the determination of that application for review, unless the Commissioner approves such disclosure. The Commissioner contends that, on the proper construction of s 29(3) of the SI Act , he is under no duty to consider and determine a request for such approval, at least in a case where, his doing so would necessarily disclose that matter, which the [ADT] is prohibiting from disclosing without his approval. [AVS says] that if the construction for which the Commissioner contends is correct, section 29(3) of the SI Act necessarily has the operation specified in paragraph (2) above, and is consequently wholly invalid." (Emphasis added.)

AVS's Submissions 207AVS submitted that the effect of s 29(3) of the SI Act is that the ADT cannot effectively perform its duty under the ADT Act to give reasons if those reasons would disclose the existence or content of Criminal Intelligence without the Commissioner's approval. (The obligation to give reasons is imposed on the ADT by s 89 of the ADT Act and on an Appeal Panel by s 117 of the ADT Act .) It follows, so Mr Hughes argued, that s 29(3) of the SI Act requires the ADT, where it has had regard to Criminal Intelligence, to publish reasons that are, at best, incomplete and, at worst, positively misleading. In all cases where the existence of Criminal Intelligence is not known to the review applicant, the reasons must be misleading because the ADT is forced to conceal the fact that the reasons are incomplete. 208The significance of this, from a constitutional perspective, is said to be that the unpublished reasons of the ADT may disclose a jurisdictional error, for example an erroneous classification of material as " criminal information " for the purposes of s 29(3). Mr Hughes submitted that it would be impossible to invoke the supervisory jurisdiction of the Supreme Court in relation to a decision by the ADT if the only published record of the ADT's reasons conceals the basis for asserting the existence of jurisdictional error. If a review applicant sought judicial review in the Supreme Court without a basis for establishing jurisdictional error, the proceedings would be an abuse of process. 209Accordingly, on the Commissioner's construction, s 29(3) of the SI Act prevents a review applicant from invoking the powers of the Supreme Court to review an ADT decision for jurisdictional error, except at the absolute and unreviewable discretion of the Commissioner. This positively impairs and perverts an essential characteristic of the Supreme Court, namely the power to grant relief on account of jurisdictional error. Section 29(3) of the SI Act therefore impairs a defining characteristic of the Supreme Court as it existed when the Constitution came into force. Such a law is unconstitutional: Kirk v Industrial Court (NSW) [2010] HCA 1; 239 CLR 531, at [99], per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ.

The Attorney General's Submissions 210The Attorney General submitted that the constitutional issue raised by AVS was " hypothetical and premature ". Dr Griffiths SC, who appeared with Mr Hutton for the Attorney General, pointed out that AVS's submissions concentrated on the impact of s 29(3) of the SI Act on the exercise of the Supreme Court's constitutionally entrenched jurisdiction to review administrative decisions for jurisdictional error. The constitutional issue was premature because the ADT had not yet received any Criminal Intelligence, had not yet made a decision and had not yet given any reasons for a decision. Moreover, no application had been (or could be) made to the Supreme Court for judicial review of the ADT's final decision. It was therefore not necessary to resolve the constitutional issue for the purposes of the proceedings. 211If the Court nonetheless decided to consider the constitutional question, the Attorney General submitted that s 29(3) of the SI Act was not invalid. The sub-section, so Dr Griffiths argued, does not prevent disclosure of the ADT's full reasons to the Appeal Panel of the ADT. Nor does s 29(3) prevent the Appeal Panel from disclosing to the Supreme Court the full reasons for rejecting an application for review. Moreover, s 29(3) does not purport to prohibit disclosure of Criminal Intelligence to the Supreme Court. An applicant seeking judicial review could ask the Supreme Court to issue a subpoena or notice to produce requiring the ADT (or the Appeal Panel) to produce to the Court a copy of the full reasons. Issues of confidentiality could then be addressed when orders were sought for access to the documents produced to the Court. 212The Attorney General further submitted that even if s 29(3) of the SI Act deprives the Supreme Court of the ADT's full reasons for the decision, the sub-section would not impinge on the Kirk principle. The reasoning in Kirk is that the jurisdiction to issue prerogative relief in respect of jurisdictional error by an administrative tribunal was a " defining characteristic " of State Supreme Courts at federation. The High Court held that it was not open to abrogate that constitutionally entrenched jurisdiction by a privative clause. 213Dr Griffiths argued that to derive from Kirk a further implied constitutional requirement that State Supreme Courts, on every application for judicial review of an administrative decision, be furnished with complete reasons would " turn the reasoning in Kirk on its head ". At common law, there is no right to reasons for an administrative decision: Public Service Board (NSW) v Osmond [1986] HCA 7; 159 CLR 656. The absence of reasons for an administrative decision does not prevent the Supreme Court of a State exercising a power of judicial review in relation to that decision. It would therefore be surprising if any statutory qualification to a purely statutory right to reasons was unconstitutional.

The Kirk Principles 214In Kirk , the joint judgment of six members of the High Court propounded five propositions of significance for the present case:

• Chapter III of the Constitution , in particular s 73, requires that there be a body fitting the description of " the Supreme Court of a State " (at [96]);
• it is beyond the legislative power of a State so to alter the constitution or character of its Supreme Court that it ceases to meet the constitutional description (at [96]), citing Forge v Australian Securities and Investments Commission [2006] HCA 44; 228 CLR 45, at [63], per Gummow, Hayne and Crennan JJ;
• the supervisory jurisdiction of each Supreme Court at Federation entitled it to issue a writ of certiorari to any inferior court and that jurisdiction could not be denied by a statutory privative provision (at [97]);
• that supervisory jurisdiction was at Federation and remains the mechanism for determining and enforcing the limits of State executive and judicial power by bodies other than the Supreme Court and was and is " a defining characteristic of these courts " at [98]; and
• the limit on the power of a State legislature to curtail the supervisory jurisdiction of a Supreme Court is marked by the distinction between " jurisdictional " and " non-jurisdictional " error, it being open to a State Parliament to deny relief for non-jurisdictional error of law, but not for jurisdictional error (at [100]). 215The High Court did not directly apply these principles in Kirk itself, since the Court was able to construe the privative clause in issue (s 179 of the Industrial Relations Act 1996 (NSW)) as not precluding judicial review for jurisdictional error. The principles were, however, applied by the High Court to a more widely drawn privative clause in South Australia v Totani [2010] HCA 39: at; [128], per Gummow J; [193], per Hayne J at [268], per Heydon J (dissenting, but not on this point); at [415], per Crennan and Bell JJ.

Is the Constitutional Issue Premature? 216AVS does not suggest that s 29(3) of the SI Act is constitutionally invalid because it requires the ADT to adopt unfair procedures. Its contention is that s 29(3) is invalid because it could prevent the Supreme Court effectively exercising its supervisory jurisdiction to review jurisdictional error by the ADT. AVS also says that s 29(3) cannot be read down so as not to contravene the principles stated in Kirk . 217The Attorney General cited observations made by Gavan Duffy, Rich and Starke JJ in James v South Australia [1927] HCA 32; 40 CLR 1 in support of his argument that AVS's challenge to the validity of s 29(3) of the SI Act was premature. Their Honours there said (at 38) that: "The jurisdiction of the Court to declare a statute or parts of a statute in contravention of the Constitution can be invoked only when it is found necessary to secure and protect the rights of a party before it against unwarranted exercise of legislative power to his prejudice ..." In James v South Australia , there had been no exercise of legislative power that had affected the interests of the plaintiff. His concern was merely that he might be injured in the future if powers conferred by the impugned legislation were exercised. 218The present case is different. Unless AVS's challenge to the constitutionality of s 29(3) is determined, the ADT will hear AVS's review application subject to the procedural and evidentiary constraints mandated by the sub-section. It is true that AVS may yet succeed on its review application regardless of those constraints. It is also true that deferring a ruling on the constitutional challenge would provide a more complete factual context in which to consider the operation of the legislation. Nonetheless, if AVS's constitutional argument is correct, it will be required to pursue its review application in the ADT under a statutory regime that disadvantages it and (by hypothesis) that is invalid. Accordingly, I do not think that the constitutional challenge is premature.

Consideration 219The principles articulated in Kirk are concerned with legislation denying the supervisory jurisdiction of the Supreme Court of a State in respect of jurisdictional error. A somewhat broader formulation is that the Parliament of a State does not have authority to enact a law which impairs one of the defining characteristics of its Supreme Court: Totani , at [68], per French CJ. The principles in Kirk do not, however, lead to the conclusion that State legislation which creates practical difficulties for an applicant seeking judicial review for jurisdictional error will necessarily fall foul of Chapter III of the Constitution . 220In South Australia v Totani it was argued that State legislation rendered a decision by the Attorney-General to declare an organisation a risk to public safety and order unreviewable by the Supreme Court of South Australia. As has been noted, the privative clause was held to be ineffective to preclude exercise of the Supreme Court's jurisdiction to grant relief in respect of jurisdictional error by the Attorney-General as the decision-maker. 221Hayne J recognised (at [195]) that any challenge would face " very large " forensic difficulties. His Honour continued as follows: "Those difficulties would be compounded if, as may well be the case, not all of the information before the Attorney-General could be inspected by the party seeking judicial review. To the extent to which the Attorney-General acted upon criminal intelligence, [the legislation] would appear, on its face, to preclude a court from making that material available to the applicant for judicial review. In addition, the Attorney-General may act upon information in respect of which it would be proper for the Attorney to claim public interest immunity from production. In such circumstances, for an applicant for judicial review to show that the Attorney-General's decision was affected by some mistake of law, or that the Attorney-General took some extraneous reason into consideration, or excluded from consideration a factor which should affect the determination, would be very difficult. But the decision is not unexaminable for jurisdictional error." (Citation omitted.) French CJ expressly agreed (at [27]) with this passage. Crennan and Bell JJ agreed (at [415]) with Hayne J's reasoning on the reviewability issue, indicating that their Honours also endorsed Hayne J's reasoning in the quoted passage. 222Heydon J took a similar approach to the forensic obstacles confronting an applicant seeking judicial review of the Commissioner's decision. His Honour said (at [269]): "It is true that invoking judicial review is not made easy: the Attorney-General is not required to give reasons for the declaration (s 13(1)), criminal intelligence supplied by the Commissioner to the Attorney-General cannot be made available to the claimant for review (s 13(2)) and public interest immunity may be claimable by the Attorney-General for other material. The absence of a duty on the Attorney-General to give reasons scarcely deprives the Magistrates Court of institutional integrity: in this respect s 13(1) of the impugned Act simply follows the common law. The duty of the Attorney-General to preserve criminal intelligence may create difficulties in relation to a subpoena seeking material capable of being tendered in evidence to demonstrate a lack of jurisdiction in the Attorney-General. But the rule restricting access to criminal intelligence overlaps with similar common law rules of public interest immunity. The general problem exists in many fields in relation to documents for which public interest immunity may be claimed without depriving the court of capacity to entertain administrative law challenges. Section 13(2), like s 21(1) and (2)(a), considered below, is simply an illustration of the difficulty created by the existence of immunities or privileges from production." (Citations omitted.) 223There is nothing in s 29(3) of the SI Act , or any other provision of the Act , that denies the power of the Supreme Court to grant relief in respect of a jurisdictional error by the ADT (including by the Appeal Division). Neither the SI Act nor the ADT Act contains a privative clause which purports to render a decision of the ADT immune from judicial review. On the contrary, the ADT Act provides that a party to proceedings may appeal to the Supreme Court on a question of law against any decision of an Appeal Panel (s 119) and explicitly preserves the power of the Supreme Court, in the exercise of its original jurisdiction, to review decisions of the ADT (s 122). (The latter provision is subject only to a statutory power to refuse to grant an application in specified circumstances (s 123)). 224Section 29(3) of the SI Act does not prevent the ADT preparing reasons which set out fully the extent to which it has taken Criminal Intelligence into account in rejecting an application for review of a revocation decision. No such submission was made by AVS. On the contrary, its submissions assumed that there would be unpublished reasons prepared by the ADT which might, upon scrutiny, reveal that the ADT had made a jurisdictional error. 225AVS did not submit that s 29(3) of the SI Act , or any other legislation, prevents the Supreme Court requiring the ADT to produce to the Court the full reasons for decision. Nor did AVS submit that the ADT was excused from complying with any such requirement. 226In my view, the difficulties facing an applicant who wishes to invoke the supervisory jurisdiction of the Supreme Court to challenge a decision of the ADT based wholly or partly on Criminal Intelligence are not necessarily any greater than those facing an applicant who has been given no reasons for an administrative decision. In each case, the difficulties may prove substantial, but they do not deny the Supreme Court power to grant relief in respect of jurisdictional error and do not substantially impair the exercise of that power. In each case, the Court may draw such inferences as to the decision-maker's reasons as are appropriate on the material before it. If the Supreme Court has the full reasons for the decision, even if they are confidential, it will be in a better position to identify jurisdictional error than if it has no reasons 227AVS submitted that the requirements of the Uniform Civil Procedure Rules (" UCPR ") make it " impossible " to invoke the Court's jurisdiction to review administrative decisions for jurisdictional error if the only published record of the administrative proceedings is one that conceals the true basis for the decision. Mr Hughes pointed to UCPR , Pt 6, r 12A, which requires a summons under s 69 of the Supreme Court Act 1970 (NSW) to review an administrative decision to:

• briefly state the grounds relied on in support of the claim (r 12A(b)); and
• annex a copy of the reasons for the decision (if any) (r 12A(c)). According to Mr Hughes, a summons invoking the jurisdiction of the Supreme Court to review, for example, for error of law, where the applicant did not know what had occurred, would be an abuse of process. 228This submission overlooks two important points. First, it may be obvious or at least a reasonable inference that the reasons given by the ADT are not the full reasons for a decision unfavourable to the review applicant. In these circumstances, the applicant may well have a reasonable basis for contending that the ADT has fallen into jurisdictional error. If, for example, all the evidence referred to in the reasons supports the applicant's case and no cogent reason is given for rejecting that evidence, there may be an arguable case that the decision is affected by jurisdictional error. 229Secondly, the submission does not take account of provisions in the Civil Procedure Act 2005 (NSW) (" CP Act ") and the UCPR that give the Supreme Court power to dispense with strict compliance with the Rules. The overriding purpose of the CP Act and of the UCPR is " to facilitate the just, quick and cheap resolution of the real issues in proceedings ": CP Act , s 56(1). The Court is bound to give effect to this overriding purpose when it interprets any provision of the CP Act or any rule of Court: s 56(2). The Court is given express power to make such directions as it thinks fit, whether or not consistent with rules of Court, for the speedy determination of the real issues: s 61(1). In addition UCPR , Pt 2, r 2.1, empowers the Court to give such directions and to make such orders for the conduct of the proceedings as appear convenient, whether or not inconsistent with rules of Court, for the just, quick and cheap disposal of the proceedings. 230It cannot be assumed that the Supreme Court will allow procedural requirements to frustrate the exercise of its jurisdiction to review for jurisdictional error. It is incorrect to suggest that r 12A renders it impossible for the Supreme Court to exercise that jurisdiction. 231For these reasons, the constitutional challenge fails. 232AVS submitted in the alternative that s 29(3) of the SI Act deprived the Court of an essential incident of the judicial function and distorted its institutional integrity as a Chapter III court: cf International Finance Trust Co Ltd v New South Wales Crime Commission [2009] HCA 49; 240 CLR 319, at 355 [56], per French CJ. However, this submission rests on the same grounds as AVS's primary submission and must be rejected for the same reasons.

ORDERS 233For the reasons given, Declarations 2 and 4 made by the primary Judge ([37] above) cannot stand. The Commissioner is not bound to consider the proposed special advocate procedure put to him by AVS for approval. Nor is the Commissioner bound to consider AVS's application for the disclosure of Criminal Intelligence on which the Commissioner intends to rely. 234Although Declaration 1 was not specifically challenged by the Commissioner, it cannot stand in its present form. The ADT, with the approval of the Commissioner, can adopt the proposed special advocate procedure (or some similar procedure), but its power to do so is not dependent on the special advocate being appointed by AVS. Declaration 1 is inconsistent with the reasoning that has led to the Commissioner's appeal against Declarations 2 and 4 succeeding. 235The appropriate course is to direct the Commissioner to file an amended notice of appeal within seven days incorporating a claim to an order setting aside Declaration 1. Subject to compliance with that direction, Declaration 1 should be set aside. 236None of the orders sought in AVS's notice of cross-appeal should be made. Declarations 2 and 3 ([42] above) wrongly assume that the ADT can adopt the proposed special advocate procedure without the approval of the Commissioner. 237Declaration 4(a) as sought has little utility. There is no dispute that the Commissioner can approve the proposed special advocate procedure if he wishes and that, if he does, the ADT may adopt that procedure. The real controversy is whether, as AVS argued, the Commissioner is bound to consider and determine AVS's request that he approve the proposed special advocate procedure. For the reasons I have given, he is not so bound. 238The other Declarations sought by AVS in its notice of cross-appeal relate to the powers of the ADT in conducting AVS's application for review of the revocation decision. That application has not yet been heard. 239I have expressed certain views about the scope of the ADT's powers and duties. However, it is not appropriate to make declarations as to the powers of the ADT before the hearing on AVS's review application. The ADT has not yet made any final ruling on the scope of its powers and it is not known what applications, if any, will be made to the ADT or their factual basis. 240If AVS wishes to challenge any rulings or orders made by the ADT on the review application, it will have the opportunity to do so. In the meantime, the much delayed review application should take its course. 241AVS is not entitled to any of the relief it seeks in the Removed Proceedings. Its claims depend on the proposition, which I have rejected, that the Commissioner was bound to consider and determine AVS's request that he approve the proposed special advocate procedure. 242The following orders should therefore be made.

The Appeal and Cross-Appeal

1. Grant leave to the Commissioner to appeal from the decision of Schmidt J on 26 February 2010.
2. Direct the Commissioner to file within seven days an amended notice of appeal which incorporates a claim for an order setting aside Declaration 1 made by Schmidt J on 26 February 2010.
3. Allow the appeal.
4. Set aside the declarations and orders made by Schmidt J on 26 February 2010.
5. In lieu thereof, order that: (a) The proceedings be dismissed. (b) AVS pay the Commissioner's costs of the proceedings.
6. Order AVS to pay the Commissioner's costs of the appeal (including the application for leave to appeal).
7. Grant leave to AVS to cross-appeal from the decision of Schmidt J on 26 February 2010.
8. Direct AVS to file its amended notice of cross-appeal within seven days.
9. Dismiss the cross-appeal.
10. Order AVS to pay the Commissioner's costs of the cross-appeal (including the application for leave to cross-appeal).
11. AVS, if otherwise qualified, to have a certificate under the Suitors Fund Act 1951 (NSW) in respect of the appeal.

Removed Proceedings

1. Dismiss the summons filed by AVS on 4 May 2010.
2. Order AVS to pay the Commissioner's costs of the summons. 243The parties should have leave to file within fourteen days short minutes of any further orders they consider appropriate to deal with any interim orders that may still be in force.

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: 05 August 2011