Pending Appeal : Appeal Panel - Internal CITATION: AVS Group of Companies Pty Ltd & Ors v Commissioner of Police, NSW (GD) [2009] NSWADTAP 48 First Appellant: AVS Group of Companies Pty Ltd Second Appellant: ASET Security and Training Pty Ltd PARTIES: Third Appellant: Peter Sleiman Respondent: Commissioner of Police, NSW FILE NUMBER: 099045 HEARING DATES: 10 August 2009 SUBMISSIONS CLOSED: 10 August 2009 DATE OF DECISION: 11 August 2009 BEFORE: Needham J SC - Deputy President; Higgins S - Judicial Member; Antonios Z - Non-Judicial Member CATCHWORDS: Interlocutory applications – stay – use of "criminal intelligence material" purusant to s 15(6) Security Industry Act 1997 in stay application pursuant to s 60(2) of Administrative Decisions Tribunal Act - whether permissible DECISION UNDER APPEAL: AVS G roup of Companies & 2 ors v Commissioner of Police, NSW FILE NUMBER UNDER APPEAL: 093202 DATE OF DECISION UNDER APPEAL: 07/30/2009 Security Industry Act 1997 LEGISLATION CITED : Administrative Decisions Tribunal Act 1997 Interpretation Act 1987 Commissioner of Police v. Gray [2009] NSWCA 49 FAI Insurances Ltd v Registrar of Workers Compensation Commission of NSW [1982] 1 NSWLR 239 CASES CITED: Re Repatriation Commission and Delkou (1985) 8 ALD 454). R v Ireland (1970) 126 CLR 321 Avilion Group Pty Ltd v. Commissioner of Police [2009] NSWCA 93 K-Generation Pty Ltd v. Liquor Licensing Court (2009) 252 ALR 471 Appellant Representative: Mr K Oliver, barrister REPRESENTATION: Respondent Representative: Mr J Clark, barrister 1. Leave to appeal granted ORDERS: 2. Appeal allowed 3. Question of whether to grant a stay of the operation of the decision under review remitted back to Deputy President Hennessy for determination in accordance with law. REASONS FOR DECISION 1 The appellants held licences under the Security Industry Act 1997 ("the SI Act). On 23 July 2009, they were served with notice of a decision made on 15 July 2009 that those licences were to be revoked. 2 On 30 July 2009 the appellants filed and served an application for review of the decision to revoke the licences, and an application for a stay pending the determination of the review by the Tribunal. The review is one under s 63 of the Administrative Decisions Tribunal Act 1997 ("ADT Act"), and is by way of determining the "correct and preferable decision", ie, a process of merits review. 3 On 30 July 2009 Magistrate Hennessy, Deputy President, heard the stay application and declined to grant a stay. Her Honour also set the matter down for a two-day hearing commencing on 17 August 2009. 4 The applicants lodged an appeal on 4 August 2009 and this Appeal Panel was convened at short notice to determine the question of whether leave to appeal should be granted and, if so, to hear the appeal. The matter came on at 2pm on 10 August 2009. 5 Leave to appeal was granted and oral reasons for doing so given on the afternoon of 10 August 2009. While the final hearing in the matter is fast approaching, the fact that the appellants in this matter conducted a business or businesses which are unable to run now that their security licences have been revoked convinced the Appeal Panel that there may be a substantial injustice were leave not to be granted. The extent of the disruption to the businesses overcame the short period for which any stay may be available. 6 In hearing both the leave application and the appeal, the Appeal Panel has not had access to the transcript of the stay hearing, nor to the reasons for decision of the Deputy President. The reason for the absence of the transcript and the reasons for decision is that the applicant was unable to obtain the tapes of the hearing or of the decision without also obtaining the recording of the presentation of material by the Respondent which was done, as authorised by the SI Act, in camera and in the absence of the applicants or their advisers. Quite properly, the applicants were of the view that they should not seek to have the tape transcribed if it could result, even quite accidentally, in a breach of the provisions of the SI Act. The appeal 7 The appeal arises out of the use of "criminal intelligence reports or other criminal information held [by the Commissioner] in relation to the applicant" ("criminal intelligence material") by the Deputy President in determining the leave application. As permitted by s 29(3), that criminal intelligence material was not provided to the appellants, nor were they entitled to know the effect of that material. In the absence of transcript, it was common ground that such material was provided to the Deputy President and that her Honour relied upon that material in reaching her decision not to grant a stay. While counsel for the appellants submitted that the criminal intelligence material was the only reason for the rejection of the stay, in the absence of any transcript or reasons, the Appeal Panel is not in a position to substitute its own decision for the order of the Tribunal below should the appellants be successful (see s 114(2)(c)). The question for the Appeal Panel 8 The question upon which leave was granted can be summarised as follows:- Does s 29(3) of the SI Act apply only to "merits review" proceedings in the Tribunal, or does it apply also to applications which are ancillary to a final determination of the Tribunal, such as those for a stay pending the determination of an application for review under s 60 of the ADT Act ? 9 The appellants argue that the reach of s 29(3) is limited to the hearing of the substantive review, and does not stretch into interlocutory hearings such as the application made by them for a stay pending determination of the review. The respondent argues that both the literal and the purposive approach to interpretation would mandate the protection to the respondent given by s 29(3) of the SI Act to any proceedings in the Tribunal, including interlocutory proceedings. The legislation 10 The applicable legislation is extracted (relevantly) below. 11 Some information about headings of various sections and divisions of the statutes is given in relation to relevant provisions. This is because of the reliance of the appellants on s 35 of the Interpretation Act 1987 which provides that headings are to be taken "to be part of the Act or instrument". 12 Section 15 of the SI Act provides:- "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 ... ... (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)." 13 Section 29 of the SI Act, the only section in Division 4, "Review of licensing Decisions" of Part 2 of the Act, "Licences", provides for a right of review of a decision for (inter alia and relevantly) revocation of a licence as follows- 29 Right to seek review from Administrative Decisions Tribunal (1) A person may apply to the Administrative Decisions Tribunal for a review of the following decisions: (a) the refusal or failure by the Commissioner to grant a licence to the person (other than by operation of section 24 (3)), (b) a condition imposed by the Commissioner on a licence granted to the person, (c) the revocation or suspension of a licence granted to the person. ... (3) In determining an application for a review of any decision to refuse to grant a licence or to revoke a licence that was made on the ground of the applicant not being a fit and proper person, the Administrative Decisions Tribunal: (a) is to ensure that it does not, in the reasons for its decision or otherwise, disclose the existence or content of any criminal intelligence report or other criminal information referred to in section 15 (6) without the approval of the Commissioner, and (b) in order to prevent the disclosure of any such report or other criminal information, is to receive evidence and hear argument in the absence of the public, the applicant for review, the applicant's representative and any other interested party, unless the Commissioner approves otherwise. Note . Section 15 (7) of this Act provides that the Commissioner is not, under this or any other Act or law, required to give any reasons for not granting a licence if the giving of those reasons would disclose the existence or content of any criminal intelligence report or other criminal information referred to in section 15 (6). Accordingly, Part 2 of Chapter 5 of the Administrative Decisions Tribunal Act 1997 does not apply to any decision to refuse to grant a licence based on such information to the extent that it would require disclosure of the existence or content of any criminal intelligence report or other criminal information." 14 Chapter 5 of the ADT Act is entitled "Process for review of reviewable decisions" and Part 3 of that Chapter is headed "Role of the Tribunal". Division 2 is entitled "Effect of pending applications on reviewable decisions" and Division 3 is entitled "Powers on review". 15 Section 63 of the ADT Act, "Determination of review by Tribunal", appears in Division 3, "Powers on review". It provides:- 63 Determination of review by Tribunal (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, or (d) to set aside the reviewable decision and remit the matter for reconsideration by the administrator in accordance with any directions or recommendations of the Tribunal. 16 Section 60, however, appears in Division 2, "Effect of pending applications on reviewable decisions". It provides:- 60 Operation and implementation of decisions pending applications for review (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. (3) The Tribunal may make an order under this section only if it considers that it is desirable to do so after taking into account: (a) the interests of any persons who may be affected by the determination of the application, and (b) any submission made by or on behalf of the administrator who made the decision to which the application relates, and (c) the public interest. (4) While an order is in force under this section (including an order that has previously been varied on one or more occasions under this subsection), the Tribunal may, on application by a party to the proceedings, vary or revoke the order by another order. 17 Finally, s 73(2) of the ADT Act provides:- 73 Procedure of the Tribunal generally (1) The Tribunal may, subject to this Act and the rules of the Tribunal, determine its own procedure. (2) The Tribunal is not bound by the rules of evidence and may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice ... Consideration 18 It was common ground that the statements as to the effect and extent of s 29(3) in Commissioner of Police v. Gray [2009] NSWCA 49 per McColl J were correct and that they bound this Appeal Panel. Her Honour, with whom both Giles and Tobias JJA agreed, said that s 29(3) "impinges upon ordinary principles of natural justice" (at [75]) in such a way as to "operate [so as 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" (Gray at [106]). 19 Section 29(3) of the SI Act therefore "impliedly repeals s 73 of the ADT Act to the extent to which it would otherwise apply to an application for review of any decision to refuse a grant [of] a licence or to revoke a licence that was made on the ground of the applicant not being a fit and proper person" (Gray at [112]). 20 The Appeal Panel was told that the practice of the Tribunal in receiving criminal intelligence material under s 29(3) was for the applicants for review to be excluded from the hearing room and for the evidence to be taken in camera. This would normally be a process repugnant to the principles of procedural fairness but given the terms of the section and the implied repeal of so much of s 73 of the ADT Act as is necessary for s 29(3) to have some effect, that process is appropriate in the circumstances. 21 The primary submission made by the appellants is that, taking the words of s 15(6) and 29(3) of the SI Act¸ the exception to the principles of natural justice in s 29(3) applies only to the determination by the Tribunal in deciding what is the "correct and preferable decision" pursuant to s 63 of the ADT Act, and not to applications under s 60(2) which allow the Tribunal to "make such orders staying or otherwise affecting the operation of the decision under review as it considers appropriate ...". 22 It was submitted that the process of granting a stay, and that of determining a merits review, were quite different. The power to stay is aimed at maintaining, where possible, the status quo so that any successful application by an applicant for a merits review is not rendered a hollow victory (for example, FAI Insurances Ltd v Registrar of Workers Compensation Commission of NSW [1982] 1 NSWLR 239 and Re Repatriation Commission and Delkou (1985) 8 ALD 454). 23 In support of that contention, the appellants pointed to the structure of the ADT Act in separating applications for stays in s 60 in Division 2 of Part 3 of Chapter 5, and applications for merits review in s 63 in Division 3. They also relied upon R v Ireland (1970) 126 CLR 321 at 330.3 per Barwick CJ in which the Chief Justice held that "determining" meant the pronouncement of a final order in proceedings. 24 The respondent submitted that the introductory words of s 63 of the ADT Act "in determining an application for review of any application", shows that the "determining" process is broader than merely a pronouncement or final order, and extends through the entire process from when the Tribunal's jurisdiction to review is enlivened by the filing of an application for review pursuant to s 29 of the SI Act and s 55 of the ADT Act. The respondent said that were the "determination" limited to the end result, "s 29(3) would have very little work to do" in the context of proceedings under the ADT Act. 25 The respondent further submitted that the "granting or refusal of a stay under s 60(2) of the ADT Act is not properly characterised as independent of an application for review". Therefore, it is argued, the stay application is so bound up with the merits review that the provisions of s 29(3) of the SI Act excluding the application of natural justice to criminal intelligence material applies to stay applications as well as to the substantive proceedings. 26 In reply, the appellants pointed to a difference between an interlocutory proceeding – which a stay unarguably is (see Avilion Group Pty Ltd v. Commissioner of Police [2009] NSWCA 93 at [19]), and therefore may only be the subject of an appeal by leave – and proceedings for merits review which is a final decision of the ADT and appellable without a requirement for leave. The appellants submit that to say that a stay application is "part of" a merits review hearing is to do no more than point to the fact that no interlocutory orders can be obtained without primary proceedings to which they can apply. But the differing standards of proof and the considerations to be taken into account on interlocutory proceedings (such as the admissibility of hearsay evidence on information and belief, and the consideration of the balance of convenience) indicate that those two aspects of proceedings which involve both are very different. The appellants submit that "the power to make such an order is certainly not a power that is necessary to be exercised for the purposes of making such a determination [of a merits review application]." 27 It seems to us that, on the proper construction of the sections, the appellants must succeed on their argument that s 29(3) of the SI Act applies only to applications for merits review, and not to ancillary or interlocutory proceedings such as a stay. There are a number of grounds which lead to this conclusion. 28 Firstly, the opening words of s 15(6) of the SI Act limit the use of criminal intelligence material to "the purpose of determining whether an applicant is a fit and proper person to hold the class of licence sought by the applicant ...". Section 63(2) of the ADT Act provides that for the purpose of an application for review of a reviewable decision, the Tribunal may "exercise all of the functions that are conferred or imposed by any relevant enactment on the administrator who made the decision". No such power is given to the Tribunal in relation to stays, because the function of granting a stay is that of a judicial body such as the Tribunal and not a power which may be exercised by the Commissioner. In balancing the factors relevant to a stay, the Tribunal must exercise a judicial discretion (see sub-s 60(3)) and has the power to vary or revoke its order. This is in stark contrast to the final nature of the application for review in s 63(1). In deciding whether or not to grant a stay, the Tribunal is not making a determination as to the character of the appellants, although obviously factors with some relationship to that issue creep into the matter to be considered in subs-s 60(3)(c), "the public interest". 29 The Commissioner, and thus, the Tribunal, may only use the criminal intelligence material in order to determine the fitness and propriety of the appellants to hold the relevant security licences, ie, on a final hearing of the merits review process. It is the view of the Appeal Panel that the exercise undergone in determining whether a stay pending the determination of the review proceedings is appropriate cannot properly be analysed as being a determination within the meaning of s 15(6) of the SI Act. 30 Secondly, the structure of the ADT Act is such that the separation of the provisions relating to stays, in Division 2, and those relating to "Determination of review by Tribunal", in Division 3, points to a separation of the two in a fundamental way. A stay, being interlocutory, is not part of the determination of the review process, although it is an application that may be brought as part of the wider review. As the appellants said in their submissions, "The Court of Appeal in Avilion Group Pty Ltd v Commissioner of Police [2009] NSWCA 93 held that a decision to grant or refuse a stay of a reviewable decision pending its review is a decision that is "made in proceedings for" a review of that reviewable decision within the meaning of s 112(1)(b) of the ADT Act. From that proposition, it obviously does not follow that an interim stay of a reviewable decision is granted or withheld "in determining" an application for review of a reviewable decision. That question of statutory construction did not arise at any point in the Avilion case, because in the Avilion case a stay was initially granted, not refused, and, as Allsop P noted, "[t]here was no argument but that the consequences of [the Court of Appeal's] orders would be to leave in place the stay granted by Magistrate Hennessy": at [33]." 31 Thirdly, much can be gained from the use of the same words ("In determining an application for a review ... ") in s 29 of the SI Act and s 63 of the ADT Act. There is no such parity in the power given to the Tribunal to grant a stay in sub-s 60(2) and (3) of the ADT Act¸ where the relevant decision is referred to as an "order" rather than as an "application for review". 32 Fourthly, it is a rule of construction that where a provision is to be read as abrogating rights which would otherwise accrue to an individual either under common law or statute, the statute limiting those rights should be read strictly. The principles of natural justice are so deeply entrenched in the Australian judicial system, not only by s 73 of the ADT Act but also by reason of the common law, that an encroachment upon those principles should only be made where it is clearly the intention of Parliament that they do so (see, for example, K-Generation Pty Ltd v. Liquor Licensing Court (2009) 252 ALR 471 at [47] per French J). Where the words of s 15(6) of the SI Act restrict the purpose for which criminal intelligence material can be used without provision of it, or even of its effect, to the person against whom it is sought to be used, it cannot be correct that the legislation applies, sotto voce, to other exercises of the Tribunal's power or discretion not mentioned in the SI Act. 33 In conclusion, the learned Deputy President was not entitled to take into account the criminal intelligence material provided to her by the Respondent on the determination of the question of a stay. The ADT Act provides other means for the careful use of such material – see, for example, s 75(2)(d) which allows material to be restricted to "some or all of the parties to the proceedings" which section applies to "proceedings before the Tribunal" rather than merely on "applications for review of a reviewable decision", and thus would, without determining the matter finally, appear to apply to an application for a stay. However, the material was not put forward on that basis, but squarely, we are told, in reliance on s 29(3) of the SI Act. Conclusion 34 Accordingly, the Appeal Panel is of the view that the appeal should be allowed, and that the matter should be remitted back to the Deputy President for consideration according to law. 35 As noted above, in the absence of a transcript, the Appeal Panel is not able to make its own determination of the question of whether a stay should, or should not, be granted. The person who is best placed to undertake that exercise is the Deputy President who heard the totality of the evidence and who can make a determination on the rest of the evidence which was put before her on 30 July 2009. Other grounds 36 There were a number of other grounds argued by both the appellants and the respondent, including the relevance of secondary and extrinsic materials in ascertaining a purposive approach to the interpretation of the section, and the effect of the "approval" of the Commissioner of the use of criminal intelligence material in the context of the SI Act. 37 However, given the decision on the primary submission of the appellants, there is no need to determine those matters. The Appeal Panel considers that they are either unnecessary to determine or that they do not affect the construction of the various relevant Acts as set out above. The Appeal Panel was given the benefit of submissions on all matters, and counsel for the parties was subjected to a degree of Socratic questioning when the matter came on for hearing. The other issues raised were considered but as we have said, it is unnecessary to determine those issues. The urgency of the matter requires that a decision be made as soon as possible and so these reasons for decision are provided to enable the parties to take the next step of having the remitted application for a stay heard by the Deputy President. 38 Should the parties wish to have written reasons for the decision in relation to the other grounds argued in the appeal, they can apply within 28 days of the making of this order for written reasons to be provided pursuant to s 89 of the ADT Act. Orders 1. Leave to appeal granted 2. Appeal allowed 3. Question of whether to grant a stay of the operation of the decision under review remitted back to Deputy President Hennessy for determination in accordance with law. 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.