Gray v Commissioner of Police, New South Wales Police [2004] FCAFC 66 | Case summary

REASONS FOR DECISION 1 Mr Gray applied for a Class 1 AC security licence under the Security Industry Act 1997 ("the Act"). The application was refused on the basis that the Commissioner's delegate considered that Mr Gray is not a fit and proper person to hold a security licence and that it is not in the public interest for a licence to be granted. Mr Gray requested an internal review of the decision and the refusal was affirmed. 2 Mr Gray has applied to the Tribunal for external review of the refusal of his application. 3 The Commissioner no longer relies on the public interest ground. The Commissioner seeks to rely on material ("the confidential material") concerning what is alleged to be Mr Gray's past conduct and which the Commissioner says supports the contention that Mr Gray is not a fit and proper person within the meaning of section 15(1)(a) of the Act. That material has not been provided to Mr Gray. 4 At the hearings on 30 August 2007 I indicated that I propose to have regard to the confidential material and further evidence adduced during in camera hearings held on that day. I made orders pursuant to section 75(2)(d) of the Administrative Decisions Tribunal Act 1997 (NSW) ("the ADT Act") excluding Mr Gray from having access to that material. 5 Mr Lenehan, counsel for Mr Gray, sought an order that the Commissioner provide Mr Gray with particulars of any alleged past conduct, being precise details of the time at which, place at which and manner in which it is alleged that the conduct took place. That application is to be determined as a preliminary issue. I stood the matter over to allow the parties to make submissions in relation to the extent to which the confidential provisions of the Act and the ADT Act apply to the current application. Each of the parties has provided submissions and I have taken them into account. 6 I subsequently became aware of the decision in K-Generation Pty Ltd & Anor v Liquor Licensing Court & Anor [2007] SASC 319 ("K-Generation") and invited the parties to make further submissions in regard to any relevance that decision may have to these proceedings. 7 In VEAL v Minister for Immigration and Multicultural and Indigenous Affairs [2005] 225 CLR 88 the High Court considered whether the Refugee Review Tribunal had denied an applicant for a protection visa procedural fairness. The Tribunal received a letter that made adverse allegations about the applicant. The author of the letter requested the Tribunal not to disclose the information. The Tribunal did not disclose either the existence or the content of the allegations to the applicant, and affirmed the decision under review. In its reasons for decision, the Tribunal stated that it placed no weight on the information contained in the letter, and that the information did not form part of the reasons for refusing the visa. The High Court held that procedural fairness required the Tribunal to inform the applicant of the existence of the letter and the substance of the allegations. 8 In K-Generation, the Full Court of the Supreme Court of South Australia considered section 28A of the Liquor Licensing Act 1997 (SA) which provides that material that is classified by the Commissioner of Police as "criminal intelligence" and provided to the Liquor and Gambling Commissioner and Licensing Court must be taken into account by the Commissioner and Court, cannot be disclosed to applicants for, or holders of, licences, and that the Commissioner and Court need not give reasons for its decision. The Court held that the approach adopted by the High Court in VEAL could not be applied because section 28A of the Liquor Licensing Act extinguished the aspect of the right to procedural fairness that affords a party the right of access to all the material relied upon by the court. 9 Each of the parties has provided submissions in response to the invitation to comment in regard to any relevance that K-Generation may have to these proceedings and I have also taken those submissions into account. Relevant legislation 10 Section 15 of the Act provides in part: "15. Restrictions on granting licence - general suitability criteria (1) The Commissioner must refuse to grant an application for a licence if the Commissioner is satisfied that the applicant: (a) is not a fit and proper person to hold the class of licence sought by the applicant, or … (6) For the purpose of determining whether an applicant is a fit and proper person to hold the class of licence sought by the applicant, the Commissioner may have regard to any criminal intelligence report or other criminal information held in relation to the applicant that: (a) is relevant to the activities carried out under the class of licence sought by the applicant, or (b) causes the Commissioner to conclude that improper conduct is likely to occur if the applicant were granted the licence, or (c) causes the Commissioner not to have confidence that improper conduct will not occur if the applicant were granted the licence. (7) The Commissioner is not, under this or any other Act or law, required to give any reasons for not granting a licence if the giving of those reasons would disclose the existence or content of any criminal intelligence report or other criminal information as referred to in subsection (6)." 11 Section 29 of the Act provides: "29. Right to seek review from Administrative Decisions Tribunal (1) A person may apply to the Administrative Decisions Tribunal for a review of the following decisions: (a) the refusal or failure by the Commissioner to grant a licence to the person (other than by operation of section 24 (3)), … (3) In determining an application for a review of any decision to refuse to grant a licence or to revoke a licence that was made on the ground of the applicant not being a fit and proper person, the Administrative Decisions Tribunal: (a) is to ensure that it does not, in the reasons for its decision or otherwise, disclose the existence or content of any criminal intelligence report or other criminal information referred to in section 15 (6) without the approval of the Commissioner, and (b) in order to prevent the disclosure of any such report or other criminal information, is to receive evidence and hear argument in the absence of the public, the applicant for review, the applicant's representative and any other interested party, unless the Commissioner approves otherwise. ..." 12 Section 73 of the ADT Act sets out the procedure of the Tribunal generally. That section, so far as is relevant provides as follows: "73. Procedure of the Tribunal generally … (2) The Tribunal is not bound by the rules of evidence and may inquire into and inform itself of any matter in such manner as it thinks fit, subject to the rules of natural justice. … (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 … (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: … (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 …" 13 So far as is relevant, section 75 of the ADT Act provides as follows: 75. Proceedings on hearing to be conducted in public (1) If proceedings before the Tribunal are to be determined by holding a hearing, the hearing is to be open to the public. (2) However, if the Tribunal 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 (of its own motion or on the application of a party) make any one or more of the following orders: (a) an order that the hearing be conducted wholly or partly in private, (b) an order prohibiting or restricting: (i) the disclosure of the name, address, picture or any other material that identifies, or may lead to the identification of, any person (whether or not a party to proceedings before the Tribunal or a witness summoned by, or appearing before, the Tribunal), or (ii) the doing of any other thing that identifies, or may lead to the identification of, any such person, (b1) an order prohibiting or restricting the publication or broadcast of any report of proceedings before the Tribunal, (c) an order prohibiting or restricting the publication of evidence given before the Tribunal, whether in public or in private, or of matters contained in documents lodged with the Tribunal or received in evidence by the Tribunal, (d) an order prohibiting or restricting the disclosure to some or all of the parties to the proceedings of evidence given before the Tribunal, or of the contents of a document lodged with the Tribunal or received in evidence by the Tribunal, in relation to the proceedings. ... Mr Gray's submissions 14 Mr Lenehan provided written submissions in support of Mr Gray's application. He contends that the Commissioner has revealed the existence "of any criminal intelligence report or other criminal information". He says that there is no question that the provision of particulars would disclose the "content" of any police intelligence report or criminal information which has been adduced as evidence in the proceedings by the respondent because Mr Gray has specifically stated that he does not seek those contents. Accordingly Mr Lenehan he says that the provisions of section 29(3) of the Act do not apply in the circumstances of this matter. He submits that to deny Mr Gray access to the material he seeks would amount to a denial of natural justice. 15 He relies upon the Full Federal Court's decision in Applicant S214 of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 66 ("S214 of 2002"). That decision relates to orders made by the Administrative Appeals Tribunal that protected the confidentiality of evidence of, and suppressed the identities of, a number of witnesses. The evidence apparently related to war crimes or crimes against humanity alleged to have been committed by the applicant. The Tribunal directed the respondent to provide precise details as to the time at which, place at which and manner in which it was alleged that each crime was committed. 16 The Full Federal Court endorsed a distinction drawn by Emmett J at first instance between the provision of particulars of allegations and the disclosure of evidence intended to be adduced to establish those allegations. Their Honours also endorsed the proposition that providing such particulars will not, except in special circumstances, constitute a disclosure of the underlying evidence. However, their Honours accepted that such a disclosure may result from the giving of particulars where, for example, one is considering a crime committed in private with no witnesses except for the accused and the victim. In such a case it was possible that the mere furnishing of particulars would indirectly reveal the source of an allegation, which would therefore involve disclosure of the protected material. 17 The Full Court said that unless such circumstances applied, there would necessarily be a denial of procedural fairness if particulars were not supplied. 18 Mr Lenehan submitted the Parliamentary intention underlying section 29(3) of the Act is the prevention of the direct disclosure to an applicant of the sensitive material which is adduced as evidence of the particular allegations, being the police intelligence material said to support such allegations. The rationale for protecting that material is similar to that identified in S214 of 2002 as underlying the confidentiality order considered in that case - that is, to protect the safety of informants and the integrity of the systems developed by police to gather intelligence. However, as was observed in S214 of 2002, those objects are unaffected by the provision of particulars of the nature sought in this case except in limited circumstances. 19 He further submitted that the object of seeking particulars is to allow Mr Gray to consider, inter alia, whether he might seek to lead evidence that would demonstrate that he was not involved in any alleged misconduct. 20 Moreover, Mr Lenehan submitted that, if there were any substance to the allegations advanced by the Commissioner, the provision of the particulars sought would involve no more than the disclosure of what Mr Gray already knows. He would be aware of the nature of the alleged conduct and the time and location at which it took place. 21 Mr Lenehan argued that the fundamental principles of procedural fairness and open justice require that section 29(3) be construed narrowly: QR v Commissioner of Police [2005] NSWADTAP 59 at paragraph [20] and TP v TR [2006] NSWADTAP 7 at paragraph [6]. He says that if the particulars sought are not provided, then Mr Gray will be denied procedural fairness. 22 Mr Lenehan further submitted that K-Generation does not govern the outcome of Mr Gray's application for particulars. Mr Gray does not assert that he is entitled to those particulars on the basis of the decision in VEAL. Rather, he relies upon a distinctly different argument based upon the Full Federal Court's decision in S214 of 2002. The Court in K-Generation did not consider S214 of 2002. That decision has not been overruled or criticized. 23 Mr Lenehan referred to the observation of Gray J observed in K-Generation at paragraph [128]: 128. The obligation to afford procedural fairness is not readily susceptible to being reduced to statements of bright line rules. It is chameleon-like in nature, adapting to the circumstances of each case. A court or tribunal's duty to afford procedural fairness adapts to the different constraints that the court or tribunal is placed under by the statutory framework that underpins it. The overriding concern of a court of review is to examine whether the applicant received a fair hearing. 24 He submitted that nothing short of express words of necessary intendment can operate to exclude an aspect of the common law hearing rule: K-Generation per Gray J at [132]. See also Duggan J at [42] and [45] and the authorities there cited. He argues that the provision of particulars in circumstances such as the present is an aspect of the rules of procedural fairness. The obligation to provide such particulars therefore continues until Parliament excludes it in clear terms. Section 29(3) speaks only to the disclosure of the police intelligence reports and associated evidence. It does not purport to prevent the Tribunal from ordering particulars of the nature ordered in S214 of 2002 . 25 Mr Lenehan contends that the Court in K-Generation was correct to conclude that VEAL was distinguishable, but that where particulars of the relevant allegations are sought, as they are in this case, it is also necessary to consider whether it is possible to provide those particulars without disclosing the material which is the subject of the statutory non-disclosure obligation. He says that, except perhaps in rare cases, the provision of such particulars will be possible in applications such as the present one and that this will be so notwithstanding the effect of a provision such as section 29(3) of the Act. He concedes the exception that particulars could not be ordered if they would indirectly reveal the source of an allegation or otherwise reveal the content of the underlying material. 26 Mr Lenehan argued that S214 of 2002 is clear authority for the proposition that Mr Gray is entitled to the particulars he seeks. The Commissioner has not identified any basis for distinguishing that decision. The particulars sought should therefore be provided. The Commissioner's submissions 27 Mr Pisani appeared as solicitor for the Commissioner at the hearing on 30 August 2007 and provided written submissions on behalf of the Commissioner. Ms Weis provided subsequent submissions in relation to the decision in K-Generation. Mr Pisani referred to the history of the inclusion of section 29(3) into the Act. In particular he referred to the decision in Nastav v Commissioner of Police, NSW Police [2006] NSWADT 215 in which Judicial Member Higgins considered the approach that the Tribunal should adopt in the exercise of discretion pursuant to the Act in order to maintain the confidentiality of sensitive information. Judicial Member Higgins observed that where the Tribunal proposes to exercise powers as set out in section 75(2) of the ADT Act, it must do so only if and when there was a public interest supporting the use of these powers which outweighed the public interest in the implementation of the fundamental principles of open justice and procedural fairness. She determined that, with some exceptions, it would be contrary to the principles of natural justice for the Tribunal to hear and consider the matters referred to in the police intelligence reports, in the absence of the applicant and his legal representative. 28 Mr Pisani submitted that the inclusion of section 29(3) into the Act addressed the concerns referred to in Nastav. He contends that the Tribunal is precluded from disclosing the confidential material to Mr Gray and also that even revealing the substance or nature of the confidential material would constitute a breach of the relevant legislation by virtue of its particular wording. 29 Mr Pisani referred to the approach adopted by the Appeal Panel in QR v Commissioner of Police. In QR the Appeal Panel remitted the application for redetermination subject to a number of directions that it had formulated. These required the Tribunal to reconsider whether any of the confidential evidence should be exposed to QR and, if it were decided that it was evidence that should be exposed to QR, to allow the Commissioner to withdraw any evidence and not rely on that evidence. In the present matter, Mr Pisani submitted that in the event the Tribunal is of the opinion that Mr Gray should be made aware of the substance or nature of the confidential material in relation to the ground of 'fit and proper', the Respondent should be permitted to withdraw his reliance upon it as provided for in QR. In the alternative Mr Pisani submitted that if the Tribunal is of the view that the confidential material cannot be withdrawn, and that Mr Gray should be made aware of its substance or nature, the Commissioner should be allowed a period of 28 days to comply with any such order. Ms Weis repeated these submissions. 30 Ms Weis made written submissions in relation to the decision in K-Generation. In her submissions Ms Weis observed that section 28A(1) of the Liquor Licensing Act 1997 (SA) bears a great similarity to that of section 29(3) of the Act. She asserts that Parliament may remove the requirement for a court to apply the rules of procedural fairness and that in abiding by that law the court does not breach the common law rules. She submits that the South Australia Supreme Court held there was no denial of natural justice in the implementation of s28A of the Liquor Licensing Act as that Act did not afford the plaintiffs the right to receive adverse evidence and reasons for the decision. Similarly, she argues, there would be no denial of natural justice to Mr Gray as a result of the withholding of criminal intelligence. In support of that submission she referred to the following comments in the decision of Martin CJ in Gypsy Jokers Motorcycle Club Inc v Commissioner of Police [2007] WASCA 49: "56. No Australian authority has been cited in support of the proposition that unrestricted access by a party to all the information upon which a court relies for its adjudication of the case before it, is an essential or indispensable aspect of a fair trial. My review of the decisions of the European Court of Human Rights, and the courts of the United Kingdom, New Zealand, Canada and the United States leads me to conclude that the courts in those jurisdictions have not concluded that the right of a party to have unrestricted access to all the information, upon which a court relies, is an essential or indisputable component of a fair trial. 57. Rather, my review of those jurisdictions leads me to conclude that in each of the jurisdictions, it has been acknowledged that the content of the requirements of procedural fairness or fundamental justice will depend upon the particular circumstances of the case and cannot be prescribed in the abstract. Further, in each jurisdiction, it has been expressly recognised that the ordinary requirements of procedural fairness, including the ability of a party to know the case that he or she has to meet, must sometimes yield to a countervailing public interest in the protection of the confidentiality of evidentiary material, even as against a party to the proceedings. In some jurisdictions with particular statutory charters of human rights, that conclusion has depended upon the provision of legislative safeguards against the abuse of such powers. However, even in those jurisdictions, the courts have generally, but not invariably, shown an inclination to leave the striking of the appropriate balance to the legislature rather than usurp that function themselves. 58. This review therefore supports the conclusion that in Australia, a legislative provision, apparently enacted in the protection of a legitimate public interest in maintaining the confidentiality of investigative information empowering a court to act upon that information, even though it not be disclosed to a party to the proceedings cannot, for that reason only necessarily be said to be unfair, and therefore cannot, for that reason only, be said to compromise the institutional integrity of the court concerned. This is not, of course, to say that all provisions which have the effect that a court must act upon information which one party to the proceedings will not have disclosed to the other, will necessarily fall within the legislative power of a state. Rather, the question of validity may turn upon the particular circumstances and context of the legislative provision, including the public interest in the maintenance of confidentiality, the subject matter of the curial proceedings, the procedures to be adopted and so on." 31 Ms Weis submitted that as a consequence of section 29(3) of the Act the Tribunal is precluded from disclosing the confidential material to Mr Gray. It is submitted that even revealing the substance or nature of the confidential material would constitute a breach of the relevant legislation by virtue of its particular wording. Findings 32 The object of the inclusion of section 29(3) in the Act is apparent from the second reading speech on the introduction of the Security Industry Amendment Bill 2005 into the NSW Legislative Assembly Hansard on 21 June 2005. Mr Tony Stewart, on behalf of Mr Carl Scully, stated: When the Commissioner relies on police intelligence to refuse a licence application, the bill will also protect that intelligence from being released to unsuccessful applicants if they appeal to the Administrative Decisions Tribunal [ADT]. This provision is not designed to circumvent the appeals process or hinder the ADT or the courts in the exercise of their review functions. These bodies will still have the same opportunity to consider and weigh the probative value of the intelligence the commissioner has relied on to make his decision. However, the bill will prevent the release of intelligence directly to the person to whom the intelligence relates. This will protect the safety of police informants and prevent the disclosure of police information holdings and the details of police methodology. 33 It is generally accepted that the rules of natural justice provide for a party's right to know what that party has been charged with, the right to know what evidence has been put against that party, and the right to know a court's reasons for its decision. However, as is clear from authorities such as K-Generation and Gypsy Jokers Motorcycle Club Inc v Commissioner of Police, referred to above, that Parliament may remove the requirement for a court to apply the rules of natural justice. However, this can only be done by unequivocal legislation. It should not be implied. 34 I agree that the provisions of section 29(3) are to be interpreted narrowly, however in my view, Parliament intended that section 29(3) of the Act would preclude the Tribunal disclosing the confidential material to Mr Gray. I am also satisfied that section 29(3) would preclude the Tribunal disclosing the substance of the allegations against Mr Gray. 35 However, Mr Gray does not seek to have the confidential material disclosed. Nor is he seeking the disclosure of the substance of the allegations against him. The question then remains as to whether section 29(3) would preclude the Tribunal ordering the disclosure of particulars of the nature ordered in S214 of 2002. 36 Significantly, it is apparent from the second reading speech that section 29(3) 'is not designed to circumvent the appeals process' or to hinder the Tribunal in the exercise of its review functions. It is also apparent from section 73 of the ADT Act that the exercise the Tribunal's review functions are subject to the rules of natural justice. I agree with Mr Lenehan's contention that in circumstances such as the present the provision of particulars of the nature ordered in S214 of 2002 is an aspect of the rules of natural justice. The obligation to provide such particulars therefore continues until Parliament excludes it in unequivocal terms. 37 The power to order the provision of such particulars is consistent with the obligation on the Tribunal to take such measures as are reasonably practicable to ensure that the parties to the proceedings before it understand the nature of the assertions made in the proceedings. To provide an applicant with particulars might afford them the opportunity to obtain evidence to demonstrate that they were not involved in any alleged misconduct. To deny the particulars could hinder the exercise of the Tribunal's review functions and this should only occur where it is clearly the intent of Parliament. 38 In my view, it is not clear from the words of section 29(3) that Parliament intended to prevent the Tribunal from ordering particulars of the nature sought. It follows that to deny Mr Gray access to the particulars he seeks would amount to a denial of natural justice. I do not consider that the power to order the provision of such particulars extends to the power to order the provision of the content of any criminal intelligence report or other criminal information contained in the confidential material. 39 I note that the Commissioner has indicated that in the event that the Tribunal is of the opinion that Mr Gray should be made aware of the substance or nature of the confidential material, he should be permitted to withdraw his reliance upon it as provided for in QR. In my view there must be some doubt as to whether or not the Commissioner is entitled to withdraw his reliance upon material that formed the basis of his determination. Section 73(5)(b) of the ADT Act provides that the Tribunal is to ensure that all relevant material is disclosed to it so as to enable it to determine all of the relevant facts in issue in any proceedings. 40 In Chand v Rail Corporation of New South Wales (EOD) [2007] NSWADTAP 54 the Appeal Panel stated: 56. The obligation in s 73(5)(b) varies depending on whether the Tribunal is making an original decision (as in this case) or reviewing a reviewable decision. In cases in the Equal Opportunity Division, the Tribunal ordinarily allows the applicant to define the scope of the complaint and adduce relevant evidence: KO & anor -v- Commissioner of Police, New South Wales Police (GD) [2004] NSWADTAP 21. While the Tribunal has power to summons witnesses of its own motion under s 84 of the Tribunal Act, it will not have made an error of law if it fails to do so. That is the case even if that witnesses' evidence would assist in determining an issue in dispute. 41 It seems to me that it is highly likely that any criminal intelligence report or other criminal information that formed the basis of a determination to refuse an application would be 'relevant material' for the purposes of section 73(5)(b) of the ADT Act. If that were the case, the Tribunal should ensure that it is disclosed. 42 Nevertheless, it is clear from the decision in QR that the Appeal Panel considered that the Commissioner is entitled to withdraw his reliance upon material that formed the basis of his determination, rather than to disclose it to an applicant. This approach was also adopted in Nastav v Commissioner of Police. Normally the Tribunal at first instance will not reopen a prior, considered ruling on the same question, in the interests of comity, consistency and predictability. Accordingly, I propose to follow the approach taken in QR and Nastav. 43 In the circumstances, the Commissioner should be allowed a period of 28 days to advise both Mr Gray and the Tribunal whether or not he seeks to withdraw his reliance upon the confidential material. If he proposes to continue to rely on the confidential material, the Commissioner is to provide Mr Gray with the particulars that he seeks within a further 14 days of providing the notice of his intention to do so. The matter is to be listed for further directions after that date. Orders 1. Mr Gray's application for orders that the Commissioner is to provide him with the particulars of any alleged conduct that the Commissioner says supports the contention that Mr Gray is not a fit and proper person to hold a security licence is granted. 2. Within 28 days of the date of these orders, the Commissioner is to advise both Mr Gray and the Tribunal whether or not he seeks to withdraw his reliance upon the material that he has put before the Tribunal on a confidential basis. 3. If the Commissioner proposes to continue to rely on the material that he has put before the Tribunal on a confidential basis, he is to provide Mr Gray with the particulars of the time at which, place at which and manner in which it is alleged that the conduct, that the Commissioner says supports the contention that Mr Gray is not a fit and proper person to hold a security licence, took place. Those particulars are to be provided within 42 days of the date of these orders. 4. The matter is set down for further directions on 11 March 2008 at 2.00 PM.

Gray v Commissioner of Police, New South Wales Police

At a glance

Court

Decision date

Catchwords

Source

Catchwords

Judgment (10 paragraphs)

Parties

Legislation Cited (2)

Cases Cited (2)

Cited By (10)