CITATION: Hutt v Commissioner of Police, NSW Police [2009] NSWADT 19 DIVISION: General Division APPLICANT Annamaire Hutt PARTIES: RESPONDENT Commissioner of Police, NSW Police FILE NUMBER: 083148 HEARING DATES: 24 June 2008 SUBMISSIONS CLOSED: 4 July 2008 EXTEMPORE DECISION DATE: 27 January 2009 BEFORE: Montgomery S - Judicial Member CATCHWORDS: Security Industry Act - security industry licence -grant of licence - Application for provision of particulars LEGISLATION CITED : Administrative Decisions Tribunal Act 1997 Security Industry Act 1997 CASES CITED: Commissioner of Police v Gray [2008] NSWSC 414 APPLICANT M Bateman, barrister REPRESENTATION: RESPONDENT G De Courcey, solicitor 1. The Applicant's application for orders that the Commissioner is to provide her with the particulars of any alleged conduct or other matters that the Commissioner says supports the contention that the Applicant 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 the Applicant 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 ORDERS: 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 the Applicant with the particulars of (a) 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 the Applicant is not a fit and proper person to hold a security licence, took place; and/or (b) the other matter or matters that the Commissioner says supports the contention that the Applicant is not a fit and proper person to hold a security licence.Those particulars are to be provided within 35 days of the date of these orders 4. The matter is set down for further directions on 9 March 2009 at 10.00 am. REASONS FOR DECISION Background 1 The Applicant has held security licence under the Security Industry Act 1997 ("the Act"). She was issued a Class 1ABC security licence in May 2006 and a Class 2B security licence in January 2008. In February 2008 a delegate of the Commissioner of Police ("the Commissioner") determined that the Applicant's licences should be revoked, as she was considered not a fit and proper person to hold a security licence. 2 The Applicant sought an internal review of that determination. The internal review affirmed the original determination to revoke the Applicant's Class 1ABC and 2B security licence The internal review 3 The statement of reasons provided to the Applicant in regard to the internal review determination stated, in part: "15. In reviewing your client's case I have taken into consideration a report provided by Police and I decline to provide you with further information regarding this report, in accordance with Section 15(7) of the Security Industry Act 1997, as inserted by the Security Industry Amendment Act, 2002. 16. In summary, it is my submission that there is Police information that would indicate that Ms Hutt is not a fit and proper person to hold a security licence. Furthermore, I would find it difficult to convince the public that your client holds the necessary attributes consistent with the standard of behaviour and integrity required to hold a security licence. 17. Taking this report into consideration and in the context of the security industry regulatory legislation, I have weighed these factors against your client's need to hold a security licence and I am satisfied that your client is no longer a fit and proper person to hold a security licence at this time, and accordingly affirm the decision of the delegate of the Commissioner to revoke your client's security licence." The external review 4 The Applicant applied to the Tribunal for review of the Commissioner's determination. The matter was first listed before the Tribunal's Deputy President in early June 2008. At that time the Applicant's Legal Representative became aware that the Commissioner had submitted material ("the Confidential Material") to the Tribunal on a confidential basis and that the Confidential Material was not available to the Applicant. 5 In these reasons any information that would reveal the content of the Confidential Material is not to be published or made available to the Applicant. Those paragraphs that contain that information are marked with the words 'Non-Publication Order'. The preliminary issue 6 The Applicant has raised the preliminary issue of whether she has the right to receive from the Commissioner, the Confidential Material or particulars of the Applicant's alleged conduct or other matter which the Commissioner relies upon in asserting that the Applicant is not a fit and proper person to hold a security licence. 7 The Commissioner advised that pursuant to section 15(6) of the Act he has had regard to criminal intelligence reports held in relation to the Applicant for the purpose of determining whether she is a fit and proper person to hold a security licence. However, the Commissioner did not disclose reasons for the decision to revoke the Applicant's licence in reliance on section 15(7) of the Act. The Commissioner has informed the Applicant of the existence of Police Intelligence Reports but not of the content of those Reports. 8 At the hearing, Mr De Courcey, for the Commissioner, submitted that section 75(2)(d) of the Administrative Decisions Tribunal Act 1997 ("the ADT Act") would enable the Confidential Material to be considered by the Tribunal but not disclosed to the Applicant. 9 Mr De Courcey made an application under section 75(2) of the ADT Act for the Tribunal to hear submissions from the Commissioner in private and for an order prohibiting publication of any report of those proceedings. Having satisfied myself that it was desirable to do so by reason of the confidential nature of the evidence and the Commissioner's submissions concerning that evidence, I made the requisite orders prohibiting the disclosure of the Confidential Material to the Applicant. 10 I reserved my decision on the issue of whether the Commissioner should provide the Applicant with the particulars sought. Relevant legislation 11 Section 26(1A) of the Act provides that the Commissioner must revoke a licence where he is satisfied that, if the licensee were applying for a new licence, the application would be required by this Act to be refused. 12 Section 15(1)(a) of the Act requires that the Commissioner must refuse to grant the application for a licence if he is satisfied that the Applicant is not a fit and proper person to hold the class of licence sought by the Applicant. 13 Section 15(6) and section 15(7) of the Act provide: (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). 14 Section 75 of the ADT Act provides in part: 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 anyone or more of the following orders: (a) an order that the hearing be conducted wholly or partly in private, (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. The Commissioner's Confidential Submissions 15 Mr De Courcey, for the Commissioner, provided confidential submissions with respect to the Confidential Material. 16 Non-Publication Order 17 Non-Publication Order 18 Non-Publication Order 19 Non-Publication Order The Commissioner's Open Submissions 20 The Commissioner submitted that the decision of Associate Justice Malpass in Commissioner of Police v Gray [2008] NSWSC 414 is under appeal to the Court of Appeal but in any event it should not be considered as binding because of its own particular circumstances. 21 Mr De Courcey submits that non-disclosure of the information sought does not prevent the Applicant filing material with the Tribunal and running the case to show that she is a fit and proper person to hold a licence. He submits that in these circumstances the request should be denied. The Applicant's case 22 Ms Bateman, counsel for the Applicant, referred to the Supreme Court decision in Commissioner of Police v Gray [2008] NSWSC 414 ('Gray'), where Associate Justice Malpass found that that an order made by the Tribunal for the Commissioner to provide details of any alleged conduct that supported the contention that Mr Gray was not a fit and proper person to hold a security licence, did not involve the disclosure of the content of confidential material contrary to section 15(7) of the Act. 23 Ms Bateman raised as a preliminary issue the Applicant's lack of knowledge as to why her security licence was revoked. She submitted that the only matters advanced against the Applicant are contained in reports not available to her. However, it appears likely that the Respondent's concerns relate to an incident at Botany on 10 January 2004. She contends that the onus should not be placed on the Applicant to prove her case n circumstances where she does not know the case against her. 24 Ms Bateman submitted that a substantial amount of material has been provided to the Applicant already, the Applicant has presumed that the material available to her is the basis of the Commissioner's decision. She is aware of police surveillance in regard to a number of individuals. She is also aware that information has been given to police in regard to the explosion of a vehicle at Botany in January 2004. She is aware that John James Taylor and Wendy Fay Mayall have provided information relating to the incident at Botany and the content of that information. 25 Ms Bateman provided written submissions in support of her assertion that pursuant to the decision in Gray, the Applicant has the right to receive particulars of the alleged conduct. She submitted: 3.1 Particulars are in the nature of allegations. The function of particulars is to enable the Applicant to know the nature of the case which is to be advanced against the Applicant. It is not to identify evidence which is to be relied upon to prove allegations or to enlighten the Applicant as to the true facts of the case. Accordingly, the particulars, which are sought by the Applicant, are to require the Respondent to identify the nature of the case which it intends to argue before the Tribunal by reason of the tender of the Confidential Material. The Applicant should be provided with what is necessary to guard the Applicant against a surprise ( Sims v Wran (1984) 1 NSWLR 317 (at 321 - 322). This is said to be the starting point. (See Associate Justice Malpass in Commissioner of Police v Gray [2008] NSWSC 414 (9 May 2008). 3.2 As particulars can be framed without any mention of the content of the Confidential Material, thus the provision of particulars do not have the consequence of disclosure of the Confidential Material, and as Judicial Member Montgomery is bound by the decision of Associate Justice Malpass in Commissioner of Police v Gray [2008] NSWSC 414 (9 May 2008), in the Applicant's factual scenario, Judicial Member Montgomery is bound to order that the Respondent is to provide the Applicant with the particulars of the time at which, place at which and manner in which it is alleged that the conduct took place and/or particulars of the other matter or matters, if any, for example, the association of the Applicant with one or more specified individuals, which the Respondent relies on in supports the contention that the Applicant is not a fit and proper person to hold a security licence. The order need not be framed in terms which require the disclosure of the Confidential Material. 3.3 A form of order which would be consistent, with the binding decision of Commissioner of Police v Gray [2008] NSWSC 414 (9 May 2008), is: "Save that the Respondent is not required to provide particulars to the Applicant which disclose the Confidential Material, within 28 days the Respondent shall provide the Applicant with the particulars of: "(a) the time at which, the place at which and the manner in which it is alleged that the conduct took place, and/or "(b) the other matter or matters, if any, for example, the association of the Applicant with one or more specified individuals, "which the Respondent relies upon in support of the contention that the Applicant is not a fit and proper person to hold a security licence." 3.4 The form of order, set out in paragraph 3.3 above, would have the effect of not depriving the Applicant of particulars of the case which the Applicant is expected to meet in the review and so not largely render nugatory that right of review. 4. CONCLUSION 4.1 The Applicant respectfully submits that a form of order which would be consistent, with the binding decision of Commissioner of Police v Gray [2008] NSWSC 414 (9 May 2008), and would not require the disclosure of the Confidential Material, is: "Save that the Respondent is not required to provide particulars to the Applicant which disclose the Confidential Material, within 28 days the Respondent shall provide the Applicant with the particulars of: "(a) the time at which, the place at which and the manner in which it is alleged that the conduct took place, and/or "(b) the other matter or matters, if any, for example, the association of the Applicant with one or more specified individuals, "which the Respondent relies upon in support of the contention that the Applicant is not a fit and proper person to hold a security licence." Accordingly, the Applicant respectfully submits that the ADT make such order. Findings 26 I have reviewed the report on which the Commissioner's based the decision that the Applicant's licences should be revoked. I have also considered the submissions made on behalf of each party. 27 Non-Publication Order 28 I agree with Ms Bateman's submissions in relation to the decision in Gray. In my view, the Applicant has the right to receive particulars of the alleged conduct or other matters on which the Commissioner relies. I agree generally with the form of orders set out in Ms Bateman's submissions. The Commissioner is not required to provide particulars to the Applicant that discloses the Confidential Material. Decision 1. The Applicant's application for orders that the Commissioner is to provide her with the particulars of any alleged conduct or other matters that the Commissioner says supports the contention that the Applicant 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 the Applicant 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 the Applicant with the particulars of (a) 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 the Applicant is not a fit and proper person to hold a security licence, took place; and/or (b) the other matter or matters that the Commissioner says supports the contention that the Applicant is not a fit and proper person to hold a security licence. Those particulars are to be provided within 35 days of the date of these orders 4. The matter is set down for further directions on 9 March 2009 at 10.00 am. 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.