Appeal Panel - Internal CITATION: Avilion Group Pty Ltd v Commissioner of Police, NSW Police (GD) (No 2) [2010] NSWADTAP 56 APPELLANT Avilion Group Pty Ltd PARTIES: RESPONDENT Commissioner of Police, NSW Police FILE NUMBER: 109037 HEARING DATES: 2 and 3 August 2010 SUBMISSIONS CLOSED: 3 August 2010 DATE OF DECISION: 18 August 2010 BEFORE: Chesterman M - Deputy President; Isenberg N - Judicial Member; Blake C - Non-Judicial Member CATCHWORDS: Security Industry Act – revocation of master licence –admission of transcript of evidence from hearing before improperly constituted Tribunal – 'close associate' – public interest DECISION UNDER APPEAL: Avilion Group Pty Ltd v Commissioner of Police, NSW Police [2010] NSWADT 129 FILE NUMBER UNDER APPEAL: 093008 Administrative Appeals Tribunal Act 1975 (Cth) Administrative Decisions Tribunal Act 1997 Commonwealth Constitution LEGISLATION CITED : Evidence Act 1995 Interpretation Act 1987 Judiciary Act 1903 (Cth) Security Industry Act 1997 Security Industry Regulation 2007 Attorney General of New South Wales v World Best Holdings Ltd (2005) 63 NSWLR 557; [2005] NSWCA 261 Avilion Group Pty Ltd v Commissioner of Police (2009) 74 NSWLR 514; [2009] NSWCA 93 Avilion Group Pty Ltd v Commissioner of Police [2009] NSWSC 196 Avilion Group Pty Ltd v Commissioner of Police, NSW Police [2010] NSWADT 129 Avilion Group Pty Ltd v Commissioner of Police, NSW Police (GD) [2010] NSWADTAP 46 Avilion Group Pty Ltd v Commissioner of Police, NSW Police Force [2009] NSWADT 37 Blissett v Commissioner of Police; Web Protection v Commissioner of Police [2006] NSWADT 114 Commissioner of Police v Toleafoa [1999] NSWADTAP 9 Commissioner of Police, New South Wales Police Force v Avilion Group Pty Ltd (GD) [2009] NSWADTAP 18 Commissioner of Police v Toleafoa [1999] NSWADTAP 9 Commonwealth Banking Corporation v Percival (1988) 82 ALR 54 CASES CITED: Deveigne v Askar [2007] NSWCA 45 Ibrahim v Commissioner of Police [2009] NSWADT 245 K-Generation Pty Ltd v Liquor Licensing Court (2009) 237 CLR 501; [2009] HCA 4 Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51 Re Kilnoore Ltd (in liquidation); Unidare plc v Cohen [2005] 3 All ER 730; [2005] EWHC 1410 (Ch) Little v Registrar of High Court of Australia (1991) 101 ALR 247 MacFoy v United Africa Co Ltd [1962] AC 152 Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 200 CLR 597; [2002] HCA 11 O'Neill v Commissioner of Police [2005] NSWADT 130 Pelechowski v Registrar, Court of Appeal (NSW) (1999) 198 CLR 435 R v Lloyd (1887) 19 QB 213 Saraswati v R (1991) 100 ALR 193 APPELLANT A Bellanto QC, with P Lowe, barrister REPRESENTATION: RESPONDENT I Bourke, barrister 1. The appeal is dismissed ORDERS: 2. The stay order granted by the Appeal Panel on 11 June 2010 is continued for a period of fourteen (14) days after the delivery of this decision and is then dissolved 3. No order as to costs. REASONS FOR DECISION Introduction 1 This is an appeal by the Appellant, Avilion Group Pty Ltd ('Avilion'), against a decision of the Tribunal delivered on 28 May 2010 (Avilion Group Pty Ltd v Commissioner of Police, NSW Police [2010] NSWADT 129). 2 In its decision, the Tribunal confirmed, with effect from 11 June 2010, the revocation of Avilion's Master Security Licence under the Security Industry Act 1997 ('the SI Act') by the Respondent, who is the Commissioner of Police, NSW Police (hereafter 'the Commissioner'). History of these proceedings 3 On 12 November 2005, Avilion, trading as United Venue Protection, was granted a five-year Master Security Licence under the SI Act. Ms Alexandra Stankovic, who is and remains the sole shareholder and director of Avilion, was nominated as the licensee. 4 During January 2009, the Commissioner revoked this licence. Counsel for Avilion conceded at the appeal hearing that there were two grounds for this decision, while indicating that he was 'not sure' regarding the second of them. These two grounds were (a) that Avilion, in breach of a condition in the licence, had failed to notify the Commissioner that Mr Dione Blissett, who was not a fit and proper person to hold such a licence, was a 'close associate' of Avilion and (b) that it was not in the public interest for Avilion to continue to hold the licence. 5 On behalf of Avilion, Ms Stankovic applied to the Tribunal for a review of the revocation decision and an interim order under section 60 of the Administrative Decisions Tribunal Act 1997 ('the ADT Act') staying its operation until the Tribunal had reviewed it. 6 On 16 January 2009, being the day on which the revocation notice was formally served, the Tribunal, constituted by Magistrate Hennessy, Deputy President, heard the application for a stay. It granted a stay, over the opposition of the Commissioner. It also dispensed with the ordinary requirement for an internal review. 7 Deputy President Hennessy gave short oral reasons for these decisions, but was constrained by the fact that the evidence adduced by the Commissioner included confidential criminal intelligence to which she could not refer in the presence of Ms Stankovic or her representative. Written reasons for her decision were published on 19 February 2009, pursuant to a request by the Commissioner (Avilion Group Pty Ltd v Commissioner of Police, NSW Police Force [2009] NSWADT 37). 8 The Commissioner appealed. On 20 February 2009, the Appeal Panel, constituted by the President sitting alone, granted leave for the appeal to proceed. Near the beginning of the hearing on that day, Mr Rumore, appearing for Avilion, briefly suggested that a three-member panel would be required to hear the appeal if leave were granted. The President indicated, however, that on account of recent amendments to the ADT Act, he could determine the appeal sitting alone. 9 On 11 March 2009, at the end of four further days of hearing, the Appeal Panel, still constituted by the President only, allowed the appeal and set aside the stay order (Commissioner of Police, New South Wales Police Force v Avilion Group Pty Ltd (GD) [2009] NSWADTAP 18). 10 During the hearing of the application for leave to appeal and of the appeal itself, the Appeal Panel admitted fresh evidence. This included some material tendered by the Commissioner during a confidential session from which Avilion and its representatives were excluded. In its decision, the Panel stated at [11] that its decision to grant leave to appeal was made 'on the basis of' some of this material. As the Panel pointed out at [13], its ruling that this fresh evidence could be admitted had the effect of extending the appeal to the merits, with the consequence that the Panel was required under section 115 of the ADT Act to reach its own decision as to whether the revocation should be stayed. At [33], it indicated that in deciding to set aside the stay previously ordered by the Tribunal it had 'not found it necessary to give close regard to the confidential evidence and submissions of the Commissioner'. 11 Avilion and Ms Stankovic then filed a summons in the Supreme Court seeking the reversal of the Appeal Panel's order setting aside the stay decision. On 24 March 2009, Rothman J ordered that the Appeal Panel's orders should be stayed and that the proceedings before him should be removed to the Court of Appeal (Avilion Group Pty Ltd v Commissioner of Police [2009] NSWSC 196). 12 On 1 May 2009, the Court of Appeal allowed this appeal (Avilion Group Pty Ltd v Commissioner of Police (2009) 74 NSWLR 514; [2009] NSWCA 93), on the ground that the Appeal Panel was not properly constituted to determine the Commissioner's appeal against the stay order made by the Tribunal. As a result, this stay order was revived. The Court of Appeal also discharged the undertakings that had been given in the hearing before Rothman J. 13 On 23 July 2009, the Tribunal, constituted by Judicial Member Molony, ruled at a directions hearing, over opposition from Avilion, that the transcript of the non-confidential evidence given before the Appeal Panel at the hearing in February-March 2009 should be admitted at the forthcoming substantive hearing of Avilion's application for review. The Judicial Member's note of his ruling was as follows: 'Determine to admit as ev[idence] the transcript of non-confidential evidence given before O'Connor DCJ'. The proceedings at this directions hearing in July 2009 were not recorded. 14 The substantive hearing of Avilion's application for review took place before Judicial Member Molony over seven days during October and December 2009. Near the commencement, the Judicial Member admitted this transcript from the Appeal Panel hearing. 15 As indicated at paragraph [97] of the Tribunal's decision ((Avilion Group Pty Ltd v Commissioner of Police, NSW Police [2010] NSWAT 129), the evidence on which the Commissioner relied in the hearing before Judicial Member Molony included confidential criminal information that was provided to the Tribunal, but not to Avilion or its representatives, pursuant to section 26(6) of the SI Act. The Tribunal heard evidence relating to that information in a confidential hearing conducted under section 75(2) of the ADT Act, in the absence of Avilion and its representatives. With respect to eleven paragraphs ([109 – 118] and [120]) of its decision, it made an order under the latter provision that they should not be disclosed to Avilion or its representatives and should not be published. The relevant parts of these two statutory provisions are set out below. 16 The Tribunal's decision, delivered on 28 May 2010, confirmed the Commissioner's revocation of Avilion's master licence with effect from 11 June 2010. 17 Avilion appealed against this decision (hereafter 'the Tribunal's decision') and also applied for it to be stayed pending the disposition of the appeal. The application for a stay was heard on 11 June 2010 by an Appeal Panel constituted by Deputy President Chesterman. Because the Tribunal's order confirming revocation of Avilion's master licence was about to come into operation, the Panel granted a stay pending further order of the Appeal Panel. 18 In a reserved decision delivered on 25 June 2010 (Avilion Group Pty Ltd v Commissioner of Police, NSW Police (GD) [2010] NSWADTAP 46), the Appeal Panel held that Avilion had put forward sufficient grounds for the stay to be continued until the appeal had been heard and determined. It made an order continuing the stay order granted at the hearing on 11 June 2010 until further order of the Appeal Panel. Relevant legislation 19 Both the SI Act and the Security Industry Regulation 2007 (hereafter 'the Regulations') contain provisions governing the grant and revocation of licences under the Act. 20 Section 15 of the SI Act provides, so far as relevant:- (1) The Commissioner must refuse to grant an application for a licence if the Commissioner is satisfied that the applicant: (a) is not a fit and proper person to hold the class of licence sought by the applicant, or (b)... (3) The Commissioner may refuse to grant an application for a licence if the Commissioner considers that the grant of the licence would be contrary to the public interest…. (5) Except as provided by the regulations, a reference in this section to an applicant includes, in the case of an application for a master licence, a reference to each close associate of the applicant. (6) For the purpose of determining whether an applicant is a fit and proper person to hold the class of licence sought by the applicant, the Commissioner may have regard to any criminal intelligence report or other criminal information held in relation to the applicant that: (a) is relevant to the activities carried out under the class of licence sought by the applicant, or (b) causes the Commissioner to conclude that improper conduct is likely to occur if the applicant were granted the licence, or (c) causes the Commissioner not to have confidence that improper conduct will not occur if the applicant were granted the licence. (7) The Commissioner is not, under this or any other Act or law, required to give any reasons for not granting a licence if the giving of those reasons would disclose the existence or content of any criminal intelligence report or other criminal information as referred to in subsection (6). 21 In section 5 of the SI Act, 'close associate' is defined as follows:- (1) For the purposes of this Act, a person is a close associate of an applicant for, or the holder of, a licence if the person: (a) holds or will hold any relevant financial interest, or is or will be entitled to exercise any relevant power (whether in his or her own right or on behalf of any other person), in the business of the licence applicant or holder, and by virtue of that interest or power is or will be able (in the opinion of the Commissioner) to exercise a significant influence over or with respect to the conduct of that business, or (b) holds or will hold any relevant position, whether in his or her own right or on behalf of any other person, in the business of the licence applicant or holder. (2) In this section: relevant financial interest in relation to a business means: (a) any share in the capital of the business, or (b) any entitlement to receive any income derived from the business, whether the entitlement arises at law or in equity or otherwise. relevant position means the position of director, manager, and other executive positions and secretary, however those positions are designated, and such other positions as may be prescribed by the regulations for the purposes of this definition. relevant power means any power, whether exercisable by voting or otherwise and whether exercisable alone or in association with others: (a) to participate in any directorial, managerial or executive decision, or (b) to elect or appoint any person to any relevant position. 22 Section 6(3) provides:- (3) The regulations may exempt any person or class of persons from the operation of this Act in such circumstances, and subject to such conditions, as may be specified in the regulations. Any such regulation may create offences in relation to a failure to comply with a condition prescribed in relation to an exemption. 23 Clause 6 of the Regulations states:- 6 For the purposes of section 6 (3) of the Act, the persons or classes of persons specified in Schedule 1 are, to the extent specified in that Schedule, exempt from the operation of the Act. 24 Item 20 of Schedule 1 is as follows: 'Persons who are employed in a security business but who do not perform any security activities.' 25 Section 4(1) of the SI Act defines 'security activities'. It commences as follows: 'For the purposes of this Act, a person carries on a security activity if the person carries on any one or more of the following activities in the course of conducting a business or in the course of the person's employment'. It then lists a wide variety of activities, such as 'acting as a body guard, or providing close personal protection…' (paragraph (a)) and 'patrolling, protecting, watching or guarding any property…' (paragraph (c)). 26 So far as relevant, section 26 of this Act states:- (1) A licence may be revoked: … (d) for any other reason prescribed by the regulations. (1A) 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. 27 Clause 29 of the Regulations states:- For the purposes of section 26 (1) (d) of the Act, a licence may be revoked if the Commissioner considers that it is not in the public interest for the person to whom it is granted to continue to hold it. 28 Section 29(3) of the SI Act is the section which under which both the Appeal Panel (in the hearing conducted during February and March 1009) and the Tribunal (at the substantive hearing) received evidence in the absence of Avilion and its representatives. So far as relevant here, section 29 states:- (1) A person may apply to the Administrative Decisions Tribunal for a review of the following decisions: … (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. 29 In addition, six sections of the ADT Act bear upon this appeal: sections 73, 79, 81, 83, 114 and 118. So far as relevant, these state:- 73 Procedure of the Tribunal generally (1) The Tribunal may, subject to this Act and the rules of the Tribunal, determine its own procedure. (2) The Tribunal is not bound by the rules of evidence and may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice. (3) The Tribunal is to act with as little formality as the circumstances of the case permit and according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms. 79 Reconstitution of Tribunal during hearing (1) The President may replace the member, or one of the members, constituting the Tribunal after the consideration of a matter by the Tribunal has commenced if: (a) the member becomes unavailable for any reason, or ceases to be a member, before the matter is determined, and (b) the parties consent. (2) The Tribunal as so reconstituted is to have regard to the evidence and decisions in relation to the matter that were given or made before the Tribunal was reconstituted. (3) If one or more of the parties do not consent to the reconstitution of the Tribunal under this section, the proceedings are to be reconsidered by the Tribunal constituted in accordance with this Act. (4) If proceedings are reconsidered by the Tribunal, the Tribunal may, for the purposes of the proceedings, have regard to any record of the proceedings before the Tribunal as previously constituted including a record of any evidence taken in the proceedings. 81 Amendments and irregularities (1) The Tribunal may, in any proceedings before it, make any amendments to the proceedings that the Tribunal considers to be necessary in the interests of justice. (2) Any such amendment may be made: (a) at any stage of the proceedings (including the commencement or purported commencement of proceedings), and (b) on such terms as the Tribunal thinks fit (including, if it can award costs in the proceedings, terms as to costs). (3) If this Act, the regulations or a rule of the Tribunal is not complied with in relation to the commencement (or purported commencement) of proceedings or conduct of proceedings before the Tribunal, the failure to comply is to be treated as an irregularity and does not nullify the proceedings, any step taken in the proceedings or any decision in the proceedings. (4) For the purposes of subsection (3), the Tribunal may wholly or partly set aside the proceedings, a step taken in the proceedings, or a decision in the proceedings. 83 Powers in relation to witnesses (1) The Tribunal may: (a) call any witness of its own motion in any proceedings, and (b) examine any witness on oath or affirmation, or by use of a statutory declaration, in any proceedings,… 114 Appeals on questions of law (1) If an appeal under this Part is restricted to questions of law, the Appeal Panel is to determine the appeal and may make such orders as it thinks appropriate in light of its decision. (2) The orders that may be made by the Appeal Panel on any such appeal include, but are not limited to, any of the following: (a) an order affirming or setting aside the decision of the Tribunal (as originally constituted), (b) an order remitting the whole or any part of the case to be heard and decided again by the Tribunal (as originally or similarly constituted), either with or without the hearing of further evidence, in accordance with the directions of the Appeal Panel, (c) an order made in substitution for an order made by the Tribunal. 118 References of questions of law to Supreme Court (1) An Appeal Panel determining an appeal under this Part may, of its own motion or at the request of a party, refer a question of law arising in the appeal to the Supreme Court for the opinion of the Court. The Tribunal's decision 30 In its lengthy and detailed reasons, the Tribunal gave consideration to a number of matters that, according to the Commissioner, required or justified revocation of Avilion's master licence under various provisions of the SI Act. It did not accept every ground of revocation urged by the Commissioner. In its published reasons, it set out two grounds that it found persuasive, each of which stemmed from what it found to be a continuing involvement of the person identified by the Commissioner in the notice of revocation – Mr Dione Blissett – in Avilion's operations. 31 In its decision at [17], the Tribunal formulated as follows the matters to be considered:- The substantive issue was whether the Commissioner's decision to revoke the [Corporate Master Licence] should be varied, set aside or confirmed. This required a consideration of: - Whether Mr Blissett is or was a close associate of Avilion? - If so: - whether Mr Blissett is a fit and proper person to hold a licence under the SIA? - whether Avilion has notified the Commissioner that Mr Blissett is a close associate? - Whether the public interest requires that Avilion be revoked? - Whether Avilion's licence should be revoked on ground that it would be refused a master licence under s 15(6) on the basis that Mr Blissett as a close associate is not fit and proper? - Whether Avilion has been convicted of an offence against the Act of Regulations and had committed at least 3 offences against the SIA, arising from separate circumstances, in the two years preceding the hearing, in which the Act requires that the licence be revoked? - Whether the penalty notices which have been served on Avilion point [to] the conclusion that the licence should be revoked on discretionary grounds due to contraventions of the Act and Regulation. 32 At [19 – 22], the Tribunal recorded the following findings regarding Mr Blissett:- 19 Mr Blissett held a class 1ABC licence and operated a security business known as "Web Protection Australia Pty Ltd" ("Web Protection"), for which he was the licensee. He was the sole director of the company. Web Protection's master licence and, and Mr Blissett's personal licence, were revoked by the Commissioner in February 2005. The ground of revocation was that Mr Blissett was not a fit and proper person, and that it was not in the public interest for him to hold the licences. 20 Mr Blissett reviewed ( sic ) that determination in this Tribunal. On 19 April 2006, the Tribunal (Fitzgerald JM) found that Mr Blissett was not a fit and proper person, and affirmed the Commissioner's revocation: Blissett v Commissioner of Police; Web Protection v Commissioner of Police [2006] NSWADT 114. The Tribunal found, at [30]-[34]: "Mr Blissett has a history of criminal and traffic offences including damage to property and assault. Mr Blissett is currently serving an order for periodic detention for driving while disqualified and it is not the first time that he has been convicted of that offence although only the current conviction post-dates the issuance of the security licence. The fact that periodic detention was requested by Mr Blissett as an alternative to home detention does not take away from the seriousness of the offence or that fact that a period of incarceration was ordered. While the evidence of his rehabilitation and the observations of Mr Cannon are relevant they are outweighed in these circumstances. There was no evidence of Mr Blissett offending during the 9 month period prior to the hearing but this is an insufficient time period to have elapsed since his last offence in light of his history…. Mr Blissett's personal interest in retaining his licence cannot outweigh the public interest in having confidence in people involved in the security industry. This view does not mean that Mr Blissett should be prevented from re-entering the security industry at some time in the future if he does not re-offend as his efforts at rehabilitation are to be commended. However, at this time he is not a fit and proper person to hold a security licence and it is not in the public interest for him to do so. It follows that the stay ordered previously in these proceedings be revoked." 21 Mr Blissett's criminal record and traffic record accumulated between October 2000 and February 2005 is indeed extensive. His repeated conviction for driving while disqualified points to a lack of respect for the law. The circumstances of the assault are of considerable concern. The statement of facts demonstrates a violent and vicious assault. While there is no evidence of him being convicted of offences since the Tribunal found him not to be a fit and proper person under the SIA, that alone is not sufficient to demonstrate that he is now fit and proper, due to the expiration of time. 22 I am satisfied that he is not a fit and proper person to hold a licence under the SIA in accordance with the earlier findings of the Tribunal. 33 At [29], the Tribunal stated that early in 2009 Avilion had nearly 150 employees and provided security guards for around 50 venues. The security guards were and are employed on a casual basis and the number of them fluctuates regularly. But as the President stated in the Appeal Panel's judgment of 11 March 2009 at [5], Avilion 'has a major presence in the security industry'. 34 The Tribunal discussed the nature of Mr Blissett's involvement with Avilion in a lengthy section of its reasons (paragraphs [23] to [75]). In the ensuing summary of its principal findings, the paragraphs at which these findings were recorded are indicated:- (a) At the commencement of its operations in November 2005, Avilion, pursuant to a suggestion made by Mr Blissett to Ms Stankovic, its sole director and shareholder, acquired as a gift from him a security business previously carried on by Web Protection Australia Pty Ltd, a company owned by him. The business continued to operate from the same premises. ([26 – 27]) (b) Since 2006, if not earlier, Mr Blissett and Ms Stankovic have lived together in a de facto relationship. ([38 – 39]) (c) Between November 2005 and November or December 2008, Mr Blissett was employed by Avilion as its manager, being responsible for its major operational decisions. His role included rostering security staff, providing quotes to potential customers, representing Avilion at a meeting with licensing police on 30 October 2008 and managing the operations of the business after hours. This last aspect of his work was of particular significance, because much of the business involved providing security and crowd control for licensed venues after hours. A guard employed by Avilion referred to Mr Blissett as 'his boss'. ([46], [49], [51], [71]) (d) After the meeting with licensing police, Ms Stankovic and Mr Blissett decided that there was 'a need for him to distance himself from the company in order to protect Avilion's licence'. ([60], and see also [72]) (e) In December 2008, Mr Thana Phabmixay took over from Mr Blissett as the operations manager of Avilion. But Mr Blissett remained in Avilion's employment, and indeed on a list of employees that it maintained, despite evidence to the contrary from Ms Stankovic. His mobile phone number was on Avilion's website as the contact point for potential customers, and he was engaged in activities such as seeking customers, providing quotes and collecting cheques for Avilion. ([35 – 37], [41 – 43], [45], [52 – 55], [58 – 59]) (f) On a number of questions, notably the employment of Mr Blissett by Avilion after December 2008, the evidence given by Ms Stankovic was false or unreliable. ([42 – 43], [50], [59]) 35 In the course of arriving at these conclusions, the Tribunal noted, at [70], that Mr Blissett was not called to give evidence on Avilion's behalf. 36 In two important paragraphs ([73] and [74]) near the end of this section of its decision, the Tribunal summed up a number of these findings and came to the conclusion that even after December 2008 Mr Blissett had 'substantial, but surreptitious control over and influence on the operations of the company':- 73 The evidence of Mr Corsi and Mr Amante [who were customers of Avilion during 2009] demonstrates that, despite his claimed termination of employment, Mr Blissett continued to be involved with Avilion, as does the company's web-site. He collected cheques in payment for its services and looked for work for it. The level of that involvement is less clear. When I consider all the evidence surrounding the formation and growth of Avilion; Ms Stankovic's transformation from receptionist at Web Protection to owner and licensee of Avilion; Ms Stankovic's total lack of experience in the security industry; the rapid growth of Avilion; Mr Blissett's experience and history; Mr Blissett's central role in Avilion's operations and management up till October 2008; the evidence of his continued association with the company; and, the demonstrated unreliability of Ms Stankovic inconsistent and variable evidence, I am satisfied that the claims of Mr Blissett's employment being terminated are false. I am satisfied that retains substantial, but surreptitious control over and influence on the operations of the company. 74 Ms Stankovic gave evidence as to the current employees who exercise control over the company. These are Mr Hunt, Ms Nelson and Ms Correra. The two men she variously referred to as operations managers and area managers. When I sought to identify precisely what their duties and roles were, Ms Stankovic was unable to provide clear answers. Ms Correra appears to have an administrative and human resources role. Ms Stankovic's lack of clarity about the roles of people she maintains are her principal managers is entirely at odds with what one would expect of the young, but highly successful, chief executive of a busy security company. This, once again, points to their being some other controlling mind influencing the company's operations. 37 The first of the two publicly explained grounds on which the Tribunal confirmed the revocation of Avilion's licence stemmed from a finding that Mr Blissett was a 'close associate' of Avilion within the definition in section 5 of the SI Act. The Tribunal stated at [76] that there was no evidence to indicate that he held a 'relevant financial interest' in Avilion. It went on to find, however, at [77 – 80] that until December 2008, since he was the 'operations manager', he held a 'relevant position'. 38 Since these four paragraphs in the Tribunal's decision, together with a number of paragraphs immediately following, were the subject of detailed argument at the hearing of the appeal, they should be set out in full:- 77 On Ms Stankovic's own evidence I am satisfied that from the commencement of Avilion's operation until Thana Phabmixay took over as operations manager Mr Blissett acted as the operations manager of Avilion. Given Ms Stankovic's uncertain evidence as to when Mr Phabmixay took on the role of operations manager, and Mr Phabmixay's clear evidence before the President that this occurred in December 2008, I accept that he commenced as operation manager in December 2008. 78 The duties Mr Blissett performed included making operational decisions as needed, rostering of the company's personnel, liaising with and advising clients and providing them with quotes. He was a manager in the company and exercised executive authority. 79 A person is a close associate of an applicant under s 5 if that person holds a position of "director, manager, and other executive positions and secretary, however those positions are designated, and such other positions as may be prescribed by the regulations for the purposes of this definition." The Macquarie Dictionary On-Line defines "manager" – noun 1. someone who manages. 2. a person charged with the management or direction of an institution, a business or the like. 80 I am satisfied that, as the operations manager of Avilion, Mr Blissett was charged with the management of the core business of the company. He was therefore a manager and the holder of an executive position in Avilion. As such he was a close associate within the meaning of s.5. 39 In the succeeding five paragraphs ([81 – 85]), the question whether Mr Blissett 'exercised a relevant power' was discussed. These paragraphs are as follows:- 81 I am further satisfied that from the time Avilion commenced its operations to date and continuing, Mr Blissett, by virtue of his relationship with Ms Stankovic, has exercised a relevant power over and participated in the executive decisions of the company. In my view, the history of the growth of the corporation, together with the evidence as to the nature of Mr Blissett's relationship with Ms Stankovic, Ms Stankovic's inexperience and her poor command of details concerning the operations of the company, point to her not being the controlling mind behind the evolution and growth of Avilion. Rather, the circumstances of Avilion's creation, the fact that it took over the contracts of Web Protection, Ms Stankovic's role as a receptionist at Web Protection and her subsequent emergence as the sole director of Avilion, her intimate personal relationship with Mr Blissett, and his acknowledged role in the establishment and operations of Avilion, all point to him being the true controlling mind behind the company. That control has been and continues to be exercised by virtue of his relationship with Ms Stankovic. 82 While Ms Stankovic maintains that Mr Blissett no longer has any role with the company, I have already rejected her evidence and have found that he has an ongoing, albeit now surreptitious, role. This explains his collection of cheques and his seeking work for Avilion from Hugo's. Mr Blissett and Ms Stankovic remain a couple. In my opinion, by virtue of his relationship with Ms Stankovic, he continues to be able to exercise a significant influence over and with respect Avilion's business, as he has in the past. 83 Section 5 of the SIA provides that a person will be a close associate if the person "is or will be entitled to exercise any relevant power (whether in his or her own right or on behalf of any other person), in the business of the licence applicant or holder, and by virtue of that … power is or will be able (in the opinion of the Commissioner) to exercise a significant influence over or with respect to the conduct of that business." 84 To be close associate on the basis that one is able to exercise a relevant power, s 5 requires that a number of requirements be satisfied. First, it has to be established that the person is or will be entitled to exercise any relevant power (whether in his or her own right or on behalf of any other person), in the business of the licence applicant. Relevant power is defined in sub-section (2) as meaning any power whether exercisable by voting or otherwise and whether exercisable alone or in association with others to participate in executive and managerial decisions etc. Secondly, the Commissioner needs to be of the opinion that by virtue of that power the person will be or to exercise a significant influence over or with respect to the conduct of that business. 85 This provision has not been previously considered by the Tribunal. I have reached the conclusion that Mr Blissett has, is and will be able to exercise a relevant power in Avilion. That power is exercisable through and by virtue of his relationship with Ms Stankovic who is the sole director and shareholder of the company. It enables him now, as it has in the past, to participate in the executive and managerial decisions of Avilion. While, when the company was initially formed and later, he also exercised those powers by virtue of the fact that he held a managerial position, I am of the view that all of the evidence points to him always having exercised such a power as the controlling mind behind the incarnation and the growth of Avilion. 40 The Tribunal then explained, at [86 – 89], why its conclusion that Mr Blissett was a 'close associate' led to the further conclusion that the Commissioner's decision to revoke Avilion's Master Licence must be confirmed:- 86 Mr Blissett is not a fit and proper person to hold a licence under the SIA and has been found to be a close associate of Avilion. Ms Stankovic has not notified the Commissioner that he is a close associate. 87 If he had been declared as a close associate at the time the application for master licence was made, the effect of s 15(5) would have been to require the Commissioner to refuse to grant the master licence on the ground that Mr Blissett, a close associate, was not a fit and proper person to hold a master licence. 88 Section 26(1A) provides that the Commissioner must revoke a licence if satisfied that, were the licensee applying for a new licence, the Act would require that the application be refused. This is the case here. Mr Blissett, a person who is not fit and proper to hold a master licence, has been and continues to be a close associate of Avilion. In those circumstances the Commissioner is bound to revoke its master licence. 89 On this ground alone I consider that the Commissioner's decision to revoke Avilion master licence should be confirmed. 41 The second ground on which the Tribunal held that the revocation of Avilion's licence should be confirmed was that revocation was in the public interest. This ground stems from section 26(1)(d) of the SI Act and clause 29 of the Regulations. 42 At [92], the Tribunal quoted and expressed agreement with a passage in Ibrahim v Commissioner of Police [2009] NSWADT 245 at [45 – 47], in which the concept of 'public interest' was discussed with reference to the grant of a licence under the SI Act. The passage quoted from Ibrahim is as follows:- 45 The Tribunal has considered the concept of 'the public interest' in a number of decisions. In Commissioner of Police v Toleafoa [1999] NSWADTAP 9 at paragraph [25] the Appeal Panel stated in regard to a decision to refuse to issue a security industry licence: "25 The "public interest" is an inherently broad concept giving the appellant the ability to have regard to a wide range of factors in choosing whether to exercise a discretion adversely to an individual. As the possibility of refusing an application on the ground of character is dealt with elsewhere in the same section, it is reasonable to infer that the Parliament intended that the public interest discretion operate in areas to which the character ground was not relevant or, possibly, in circumstances where an objection on character grounds would not be sufficient in its own right to warrant refusal." 46 'Public interest' embraces standards acknowledged to be 'for the good order of society and for the well being of its members': Director of Public Prosecutions v Smith (1991) 1 VR 63. The purpose of a reference in legislation to 'the public interest' is 'to ensure that private interests are not the only matters taken into account; to make clear that the interests of the whole community are matters for the [decision-maker's] consideration': Comalco Aluminium (Bell Bay) Ltd v O'Connor and Ors (1995) 131 ALR 657 (at page 681). The relevant interest is therefore the interest of the public, as distinct from the interest of an individual or individuals: Director of Public Prosecutions v Smith . 47 The discretion to issue a licence must be exercised keeping in mind the activities that the person will be engaged in if the licence is granted. Accordingly, the objects and purposes of the Act are relevant i.e. the regulation of the security industry to maintain public safety and to ensure that those who are licensed to operate in the industry are appropriately qualified and persons of integrity: O'Neill v Commissioner of Police, NSW Police [2005] NSWADT 130. The security industry has a special role in ensuring that public order is maintained, in safeguarding community assets and private property and in ensuring that the public and public venues are safe: Haining v Commissioner of Police [1999] NSWADT 6. 43 The Tribunal then stated at [93 – 96]:- 93 I agree with Montgomery JM's analysis of the objects of the Act, and of the public interest to be served in exercising the discretion to revoke a licence on public interest grounds. 94 I consider that it is not in the public interest that Avilion retain its licence. The evidence before the Tribunal demonstrates that since that licence was first granted Avilion has been subject to the direction and control if ( sic ) Mr Blissett, a person with a substantial criminal record, who is not a fit and proper person to hold a master licence. 95 While Ms Stankovic has always been the nominated license holder, I am satisfied that she is not a person with the ability or experience to manage that role, and has done so as a front for Mr Blissett. Despite her assurances that she is now operating the company free of the influence of Mr Blissett (an influence she has always denied) I do not accept that this is the case. The public interest requires that this no longer continue. 96 I will confirm the decision to revoke Avilion's licence on public interest grounds. 44 In addition to these two grounds explained in its published reasons, the Tribunal stated as follows in the paragraph (para [121]) immediately following the last of the confidential paragraphs of the decision:- 121As a consequence I am satisfied that were Avilion now applying for a master licence, the Commissioner would be obliged to refuse that application under s 15(1)(a). As a result s 26(1A) requires that Avilion's master licence be revoked. 45 It is useful at this point to reproduce a passage (at [59 – 61]) from the Appeal Panel's decision on 25 June 2010 (Avilion Group Pty Ltd v Commissioner of Police, NSW Police (GD) [2010] NSWADTAP 46) granting a stay of the Tribunal's decision:- 59 At this stage of his argument, Mr Bourke [counsel for the Commissioner] submitted that it was necessary for me, in determining the present application, to read these confidential paragraphs. They demonstrated, he said, that even allowing for what the Tribunal stated at [121], it placed very little weight on the confidential criminal information in deciding that the revocation of Avilion's licence should be confirmed. In reply, Mr Lowe [counsel for Avilion] raised no objection to my reading these paragraphs. 60 On its face, [paragraph [121] of the Tribunal's reasons] appears to conflict with what Mr Bourke said about the Tribunal's use of the criminal information. Paragraph [121] records a finding by the Tribunal that 'as a consequence' – a phrase apparently referring back to matters stated in the confidential paragraphs – Avilion, if it were now applying for a master licence, would be unsuccessful because the Commissioner would be obliged to refuse the application under s 15(1)(a) of the SI Act. It goes on to say that this provides a ground for revocation of Avilion's current licence under section 26(1A). 61 Having read the confidential paragraphs, I can indicate that they provide some support for Mr Bourke's submission regarding the weight placed by the Tribunal on the criminal information…. The grounds of the appeal 46 The Notice of Appeal filed by Avilion set out four grounds of appeal, each of which involved a claim that in its substantive decision the Tribunal had erred in law. There was no application under section 113(2)(b) of the ADT Act for leave for the appeal to extend to a review of the merits of the Tribunal's decision. 47 It is convenient to discuss the four grounds of appeal separately. We will deal with them in the order in which counsel addressed them at the appeal hearing. This involves reversing the order of what were Grounds 2 and 3 in the Notice of Appeal and in written submissions filed in advance of the hearing. Admission of evidence previously admitted by an improperly constituted Appeal Panel. 48 As indicated above at [13], the Tribunal, in the face of an objection by Avilion, admitted into evidence the transcript of the non-confidential evidence at the proceedings before the Appeal Panel, constituted by the President, O'Connor DCJ, during February and March 2009. The first ground of appeal contained in the Notice of Appeal was that the Tribunal erred in so doing. 49 The written submissions filed for Avilion before the hearing of this appeal stated that at the directions hearing on 23 July 2009 Judicial Member Molony also admitted the non-confidential exhibits that had been admitted by the Appeal Panel at the earlier hearing. The Judicial Member's note of his decision, however, does not bear this out. In fact, as Mr Bourke (counsel for the Commissioner) pointed out, these exhibits were admitted by the Judicial Member at or near the commencement of the substantive hearing. They were either tendered by Avilion or admitted on the Commissioner's tender with no objection from Avilion. 50 In the Tribunal's decision, reference was made to the transcript of the earlier hearing in six paragraphs. In four of them (paragraphs [28], [30], [35] and [69]), the Tribunal drew attention to conflicts between statements made by Ms Stankovic at the earlier hearing and her testimony at the substantive hearing. These conflicts were treated by the Tribunal as part of the basis for its conclusion that some of this testimony was false or unreliable. In the remaining paragraphs ([33] and [71]), the Tribunal pointed to conflicts between Mr Phabmixay's evidence at the earlier hearing and that of Ms Stankovic at the substantive hearing, relating specifically to the time when Mr Phabmixay took over from Ms Stankovic as Avilion's operations manager. 51 Mr Bellanto QC, who appeared in this appeal for Avilion together with Mr Lowe, contended that because the Appeal Panel had been held by the Court of Appeal to have been improperly constituted, its proceedings were a 'nullity'. It followed, he maintained, that the Tribunal should have wholly disregarded these proceedings and the evidence tendered in them. It should have required all the evidence that the Commissioner sought to adduce to be put before the Tribunal in the normal way. 52 Mr Bellanto pointed out that the President had granted leave for the Commissioner's appeal against the stay granted by Deputy President on the first day (20 February 2009) on which the matter came before him. His authority to do so was not questioned in Avilion's subsequent appeal to the Court of Appeal. What were successfully challenged in the Court of Appeal were the President's actions in hearing and determining the appeal itself. It was the transcript of non-confidential evidence given during the hearing of the appeal, not the hearing of the application for leave, that Judicial Member Molony decided to admit. 53 Mr Bellanto stressed that the Court of Appeal had formulated its decision regarding the appeal against the stay (see Avilion Group Pty Ltd v Commissioner of Police (2009) 74 NSWLR 514; [2009] NSWCA 93 at [31] per Allsop P) in the following terms: 'For these reasons, the President had no statutory authority to deal with the appeal other than by granting leave to appeal.' This meant, Mr Bellanto said, that the President's decision was a 'nullity'. He cited in this connection the judgment of Spigelman CJ in Attorney General of New South Wales v World Best Holdings Ltd (2005) 63 NSWLR 557; [2005] NSWCA 261. In dealing with a similar instance of a decision being made by this Tribunal when improperly constituted, the Chief Justice said (at [97]): 'This is a jurisdictional error of a fundamental kind. It is not a procedural irregularity.' 54 Mr Bellanto referred also to a number of authorities describing the effect of a decision or judgment being characterised as a 'nullity'. These included the following passage, quoted with approval by the Court of Appeal in Deveigne v Askar [2007] NSWCA 45 at [127], from the judgment of Lord Denning in MacFoy v United Africa Co Ltd [1962] AC 152 at 160:- The defendant here sought to say, therefore, that the delivery of the statement of claim in the long vacation was a nullity and not a mere irregularity. This is the same as saying that it was void and not merely voidable. The distinction between the two has been repeatedly drawn. If an act is void, then it is in law a nullity. It is not only bad, but incurably bad. There is no need for an order of the court to set it aside. It is automatically null and void without more ado, though it is sometimes convenient to have the court declare it to be so. And every proceeding which is founded on it is also bad and incurably bad. You cannot put something on nothing and expect it to stay there. It will collapse. 55 The authorities on which Mr Bellanto relied also included the following:- (a) Pelechowski v Registrar, Court of Appeal (NSW) (1999) 198 CLR 435, where the High Court held that the effect of a District Court's order being held a 'nullity' because the Court had no power to make it was that the order could not found a proceeding in contempt. (b) Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 200 CLR 597; [2002] HCA 11, where the High Court held that because a tribunal's failure to accord procedural fairness to a party when arriving at a decision amounted to jurisdictional error, the decision was 'one that lacks legal foundation and is properly regarded, in law, as no decision at all' (per Gaudron and Gummow JJ at [51]). The result was that the tribunal could then proceed validly to rehear and redetermine the matter. (c) Ex parte Nolan; Re Mayger (1947) 48 SR (NSW) 143, in which Davidson J, in the Supreme Court, held at 147-148 that when a tribunal purported to exercise jurisdiction that it did not possess, the matter would 'invariably' have to be reheard. (d) R v Lloyd (1887) 19 QB 213, where the judgments of the Court of Crown Cases Reserved, setting aside a conviction for perjury based on evidence given by the accused before an improperly constituted court, included the following dictum by Stephen J at 217: 'It should be clearly understood that evidence taken under such circumstances is not evidence at all.' 56 The consequences of the Appeal Panel's decision being a 'nullity' included the following, according to Mr Bellanto: (a) it was not 'saved' by section 81(3) of the ADT Act, because this section was concerned only with procedural irregularities; and (b) the Appeal Panel, when conducting the hearing, lacked the power to take evidence on oath or affirmation under section 83(1)(b) of this Act or to give to Ms Stankovic (as it had purported to do) a certificate under section 128 of the Evidence Act 1995. 57 Mr Bellanto's submissions also contained the following two propositions: (i) the present situation was not covered by a provision in the ADT Act – section 79 – that did permit the Tribunal to admit evidence adduced at an earlier hearing (though significantly this required the consent of the parties); and (ii) since dismissal of this ground of appeal by us might well conflict with the scope and nature of the Court of Appeal's decision regarding the constitution of the Appeal Panel at the earlier hearing, we should resolve the potential contradiction by referring it as a question of law to the Supreme Court under section 118 of the ADT Act. 58 Mr Bellanto's contentions that the Appeal Panel's decision was a 'nullity' and that its status as such had the specific consequences outlined in the above authorities cannot be gainsaid. But none of these consequences is sufficient to produce the result urged by him. None of the authorities cited by him stands for the proposition that a transcript of the oral evidence given at the hearing before the Appeal Panel must be deemed inadmissible on the ground only that the Panel, as then constituted, was subsequently held to have had no statutory authority to deal with the appeal. 59 We agree with Mr Bourke's submission that this evidence, which witnesses called by one or other of the parties had furnished in the appeal proceedings on the footing that the Appeal Panel had lawful authority to deal with the appeal, was appropriately treated by Judicial Member Molony as reliable and admissible irrespective of the fact (of which he was well aware) that these proceedings were vitiated by a defect in the constitution of the Appeal Panel. 60 The foundation for this ruling is subsection (2) of section 73 of the ADT Act. This states that 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'. 61 We were not referred to any exegesis of this provision, either in case law or in academic texts. But a closely similar provision regulating the Administrative Appeals Tribunal ('the AAT'), section 33(1)(c) of the Administrative Appeals Tribunal Act 1975 (Cth), is usefully discussed in D Pearce, Administrative Appeals Tribunal Act, 2nd edn, 2007, at paras 7.10 to 7.36. In describing section 33(1)(c) at 7.10, Professor Pearce cites the following dictum of Gleeson CJ and McHugh J in the High Court in Minister for Immigration v Eshetu (1999) 162 ALR 577 at 588:- [Such provisions] are intended to be facultative, not restrictive. Their purpose is to free tribunals, at least to some degree, from constraints otherwise applicable to courts of law, and regarded as inappropriate to tribunals. 62 Also at para 7.10, Professor Pearce writes:- The duty of the AAT is to review an administrative decision to determine whether it, or some other decision, is the right decision in all the circumstances. The AAT accordingly must follow the procedures that are best suited to achieving this goal:… To this end, evidence which might not be admitted in a court can be taken into account by the AAT. Statutory limitations on the evidence admissible in a court do not apply to the AAT: Re Pouki and Australian Telecommunications Commission (1984) 6 ALD 324. The test has been said to be whether the evidence is 'logically probative' and relevant to the issues before the AAT: Re Pochi and Minister for Immigration and Ethnic Affairs (1979) 2 ALD 33; 26 ALR 247. 63 In the ensuing discussion, Professor Pearce outlines a number of exceptions (for example, legal professional privilege) to the general principle that evidence that is 'logically probative' and relevant is admissible in AAT proceedings. None of these exceptions is formulated in terms of evidence given in prior proceedings that were later found to be a 'nullity'. 64 As Mr Bourke pointed out, Judicial Member Molony did not accord any special status to the evidence contained in the transcript. He treated it simply as a record of statements made by witnesses (of whom two, including Ms Stankovic, testified again at the hearing before him) on a prior occasion. While these statements, due to the defective nature of the prior hearing, could not be treated as made under a lawful oath or affirmation, this affected at most their weight, not their quality as relevant and logically probative evidence. 65 We agree also with four further submissions made by Mr Bourke in response to Mr Bellanto's argument. These were as follows:- (a) Section 79 of the ADT Act gives no guidance on the particular question to be resolved, other than to illustrate (in subsection (4)) that recourse by the Tribunal to the transcript of a prior hearing may be permissible. (b) Section 83(1)(b) is not relevant to this situation, because even if this paragraph relates to witnesses called by the parties as well as those called by the Tribunal under paragraph (a), the important consideration is that the witnesses in question actually gave evidence, in circumstances where they believed on reasonable grounds that the Appeal Panel had lawful authority to receive this evidence. (c) The dictum in R v Lloyd (1887) 19 QB 213 on which Mr Bellanto relied is not in point because it concerned a specific requirement of the offence of perjury under consideration: namely, that the evidence of the accused, alleged to have been false to his knowledge, had been given 'before the Registrar' of the relevant court. The statement by Stephen J that this was 'not evidence at all' was made with this specific concept of 'evidence' in mind. (d) There are no grounds for referring to the Supreme Court any question of law arising from this aspect of Avilion's appeal. 66 For the foregoing reasons, we conclude that Avilion has not established that the Tribunal committed any error of law in determining that the transcript of the non-confidential evidence given at the Appeal Panel hearing in February and March 2009 should be admitted at the substantive hearing of Avilion's application for review. We accordingly reject this ground of appeal. The conclusion that Mr Blissett was a 'close associate' of Avilion 67 This ground of appeal comprised an assertion by Avilion that the Tribunal erred in law in concluding, in its decision at [86], that Mr Blissett was a 'close associate' of Avilion. 68 In lengthy written submissions on this matter, which were supplemented by oral submissions at the hearing, Mr Bellanto put forward two matters in support of this assertion. We will deal with them separately. 69 Exemption from the operation of the SI Act. The structure of Mr Bellanto's argument on this matter was as follows. The Tribunal found that Mr Blissett remained an employee of Avilion after December 2008. It did not find, however, that Mr Blissett performed any activity falling within the list of 'security activities' in section 4 of the SI Act. Accordingly, Mr Blissett belonged within the category of persons defined in Item 20 of Schedule 1 of the Regulations ('Persons who are employed in a security business but who do not perform any security activities') and was therefore 'exempt from the operation of' the SI Act under section 6 of the Act and clause 6 of the Regulations. It followed that, contrary to the Tribunal's conclusion, Mr Blissett could not be a 'close associate' of Avilion under the definition in section 5 of the Act. 70 In support of this argument, Mr Bellanto quoted the following definition of 'exempt' from the Concise Oxford Dictionary: '1. Freed (from taxation, risk, duty, control, failings, etc; not subject to risk etc from. 2. Person exempted, esp. from tax.' With reference specifically to the interpretation of 'security activity' in section 4 of the SI Act, he submitted, citing the judgment of French CJ in K-Generation Pty Ltd v Liquor Licensing Court (2009) 237 CLR 501; [2009] HCA 4 at [84], that because this Act encroached on fundamental rights and freedoms at common law, the approach taken to interpretation of any of its provisions must be 'conservative'. 71 We do not accept this interpretation of clause 6 of the Regulations. The natural meaning of a statement that a person is 'exempt from the operation of' a statute is, in our opinion, that the person is exempt from obligations that would otherwise be imposed upon him/her by the statute. But the characterisation of a person (such as Mr Blissett) as a 'close associate' of the holder of a Master Licence (such as Avilion) does not bring him within the scope of any obligations imposed by the Act. By contrast, the Act imposes numerous obligations on licence holders, as also on persons who perform 'security activities' within the definition in section 4. To construe clause 6 as stating that any person defined in Item 20 (or indeed any other Item) in Schedule 1 is in some sense 'invisible' to the Act goes well beyond the natural meaning of the clause. 72 In so determining, we agree with a submission by Mr Bourke that the interpretation urged by Mr Bellanto would seriously jeopardise the evident aim of the provisions whereby the fitness and propriety of any 'close associate' of a licence applicant or holder are matters to be taken into account in determining whether or not a licence should be granted or continued (as the case may be). If this interpretation were correct, the licence applicant or holder could evade the operation of these provisions by merely engaging the 'close associate' as an employee while ensuring that he or she did not perform any 'security activities'. It would have the ludicrous consequence that the holder of a substantial 'relevant financial interest', such as a controlling shareholding in the business of the licence holder or applicant, could cease to be a 'close associate' under section 5 by the simple expedient of obtaining limited part-time employment of this nature within the business. 73 For these reasons, we reject this basis for Avilion's claim that the Tribunal erred in ruling that Mr Blissett was a 'close associate'. 74 Lack of any 'entitlement' to exercise a 'relevant power'. The submissions put on both sides in this connection focused chiefly on the following phrase within paragraph (1)(a) of the definition of 'close associate' in section 5 of the SI Act: 'is or will be entitled to exercise any relevant power (whether in his or her own right or on behalf of any other person), in the business of the licence applicant or holder'. 75 The argument put by Mr Bellanto was, in a nutshell, that in reaching the conclusion (at paragraphs [81 – 86] of its decision) that Mr Blissett was a 'close associate' by virtue of exercising a 'relevant power' in Avilion, the Tribunal erred in law through failing to take account of the requirement in section 5(1)(a) of a present or future 'entitlement' to exercise such a power. This argument focused on the fact that whereas the Tribunal's outline of the contents of this provision in paragraphs [83] and [84] of its decision referred to the need to identify an 'entitlement', the finding that it made about Mr Blissett in paragraph [85] omitted this element and was immediately followed by a determination (at [86]) that he was a 'close associate'. 76 The Tribunal's formulation of this important finding at [85] commences with the sentence 'I have reached the conclusion that Mr Blissett has (sic), is and will be able to exercise a relevant power in Avilion'. The next sentence reads: 'That power is exercisable through and by virtue of his relationship with Ms Stankovic who is the sole director and shareholder of the company.' The remainder of the paragraph contains no mention of a finding that Mr Blissett was 'entitled' to exercise such a power. 77 In contending that ambit of the term 'entitled' in section 5(1)(a) of the SI Act should be confined to entitlements that were enforceable at law, Mr Bellanto referred again to the judgment of French CJ in K-Generation Pty Ltd v Liquor Licensing Court (2009) 237 CLR 501; [2009] HCA 4 at [84]. He argued that since this provision of the Act formed part of legislation restricting the scope of a fundamental right – that is, the right to work – it should be given a conservative interpretation. 78 Mr Bourke's response was to submit that this component of the definition in section 5 should not be interpreted in an unduly legalistic fashion. He also submitted that the Tribunal, when using the terms 'able' and 'enables' in paragraph [85], was evidently describing an 'entitlement', particularly since it had used the word 'entitled' in each of the two preceding paragraphs. 79 As the Tribunal noted in the first sentence of [85], the Tribunal had not previously given consideration to section 5. Neither Mr Bellanto nor Mr Bourke could point to any authorities relating directly to the interpretation of the phrase 'is or will be entitled to'. 80 Mr Bellanto and Mr Bourke each handed up a number of dictionary definitions of 'entitle'. In the Oxford Dictionaries Online, the relevant part of the definition reads: '(often be entitled to) give (someone) a legal right or a just claim to receive or do something. The Macquarie Dictionary (3rd edn) says '1 a (usu. foll. by to) give (a person etc) a just claim. b (foll. by to + infin.) give (a person etc) a right.' 81 Mr Bourke also handed up the entry on 'entitled' in Words and Phrases Legally Defined (4th edn, LexisNexis) at 813. But it appears to us that the extracts from judgments quoted here support Mr Bellanto's argument. In two extracts, for instance, from a case on English insolvency legislation (Re Kilnoore Ltd (in liquidation); Unidare plc v Cohen [2005] 3 All ER 730; [2005] EWHC 1410 (Ch) at [31], [58 –59]), the phrase 'entitled to exercise, or control the exercise of, one third or more of the voting power of the company…' was discussed in a manner that implied that only legal rights or 'entitlements' are in issue. In a further extract from a case (Little v Registrar of High Court of Australia (1991) 101 ALR 247 at 255), dealing with the provision in section 49(1) of the Judiciary Act 1903 (Cth) that any person 'entitled' as a barrister or solicitor or both in any state shall have 'the like right' to practise in any federal court, the Full Federal Court said:- Its sense [i.e. the meaning of the 'entitlement' created by this provision] is to be derived from the ordinary meaning of the word "entitle" which is "to give a rightful claim to anything": Shorter Oxford English Dictionary . In that ordinary sense it attaches only to a practitioner who has satisfied all conditions necessary to establish the rightful claim to practise. And most telling in the immediate context of these proceedings is the fact that the second reading speech which introduced the 1966 amendments proceeded upon the express assumption that the entitlement to practise would be conditioned upon the holding of a current practising certificate. 82 Further submissions put by Mr Bourke on this matter included the following:- (a) The term 'entitled' in section 5(1)(a), being open to more than one interpretation, should be construed in a manner that promoted the purposes or objects of the SI Act, as required by section 33 of the Interpretation Act 1987 and explained by McHugh J in the High Court in Saraswati v R (1991) 100 ALR 193 at 207. (b) The evident aim of the 'close associate' provisions was to pierce the 'corporate veil' and deal with 'shady' arrangements like the arrangement between Mr Blissett and Avilion. (c) A number of the dictionary definitions of 'entitle' extend beyond legal 'rights' to include 'claims'. (d) The definition of 'relevant financial interest' in section 5(2) of the SI Act includes, in paragraph (b), 'any entitlement to receive any income derived from the business, whether the entitlement arises at law or in equity or otherwise'. The concluding words 'or otherwise' indicate that the term 'entitlement' in this paragraph includes entitlements that are not legally enforceable. A similar extension of the term 'entitled' beyond legal rights should be taken to apply to this term as used in section 5(1)(a). (e) Mr Blissett's position as the 'true controlling mind' behind Avilion (see the Tribunal's decision at [81]) and Avilion's role as little more than a 'front' for him should be taken to have conferred on him an 'entitlement', as a matter of practical reality, to exercise a 'relevant power'. 83 This question of the scope of the term 'entitled' in section 5(1)(a) of the SI Act is not an easy one. Our conclusion with regard to it is that, despite the force of some of the arguments put by Mr Bourke, the intention of the Act is that the term should be confined to 'entitlements' that are capable of enforcement by legal means. We base this conclusion on the following considerations:- (i) The dictionary definitions cited to us, together with the dicta described above, delineate a concept that embraces legal rights and 'just claims' but stops short of de facto powers. (ii) In section 5(1)(a), the phrase 'is or will be entitled to exercise any relevant power' is followed immediately by a phrase suggesting legal entitlement – i.e., 'whether in his or her own right or on behalf of any other person'. (iii) To characterise as an 'entitlement' the form of 'surreptitious' controlling influence that the Tribunal found Mr Blissett to be able to exercise over Avilion takes the term 'entitlement' a long way outside the realm of legal rights and 'just claims'. (iv) There are a number of forms of legal entitlement – for example, a purely contractual right, enforceable through an action for damages – under which a person might participate in the management decisions of a company without being formally appointed to a recognised position within the company, such as that of director or manager. For this reason, restricting 'entitlement' in section 5(1)(a) to legal entitlements does not narrow the scope of 'relevant power' to the extent that it is effectively synonymous with 'relevant position'. (v) If the legislature had wished, in this part of the definition of 'close associate', to refer to situations where a person actually exercises – as opposed to being entitled to exercise – a significant influence over decisions made by a license applicant or holder, it could very easily have used language that made this clear. (vi) As the Tribunal's decision illustrates, the 'public interest' ground on which it separately based its decision to confirm the Commissioner's revocation of Avilion's licence may, in appropriate circumstances, cover the situation where an unsuitable person exercises a significant influence over the conduct of the business of a licence holder, but has no 'entitlement' to exercise such influence. (vii) The legislature's use of the term 'entitled' actually brings within the ambit of 'close associate' persons who at the relevant time do not exercise such influence, but are merely 'entitled' to do so. The task of proving that a person is 'entitled' to exercise a 'relevant power' and for that reason is or will be 'able' to exercise a significant influence over the conduct of the business of the licence applicant or holder may sometimes be easier than proving that he/she does in fact exercise such influence. 84 As a result of this ruling on the meaning of 'entitlement', our conclusion on this ground of appeal is that the Tribunal did err in law in deciding that because Mr Blissett 'has [been], is and will be able to exercise a relevant power in Avilion' (to quote its words in [85]) he was, as stated at [86], a 'close associate'. The criterion that the Tribunal applied, being whether Mr Blissett was or would be 'able' to exercise a relevant power, was incorrect. It should have determined whether Mr Blissett possessed a legally enforceable 'entitlement' to do this. 85 The Commissioner's claim that Mr Blissett held a 'relevant position' at all material times. Mr Bourke submitted that even if the Tribunal erred in its interpretation of section 5(1)(a) for the reasons that we have just outlined, it nonetheless reached the correct conclusion that Mr Blissett held a 'relevant position' in Avilion and was therefore a 'close associate' under section 5(1)(b). 86 Mr Bourke based this contention on the following matters: (a) the Tribunal's findings to the effect that Mr Blissett was 'the true controlling mind' behind Avilion; (b) its finding in the last sentence of [85] that 'when the company was initially formed and later, he also exercised those powers [i.e., a 'relevant power'] by virtue of the fact that he held a managerial position'; and (c) the statement in the definition of 'relevant position' in section 5(2) of the SI Act that this concept includes the positions of director, manager, secretary and other executive positions, 'however those positions are designated'. 87 We agree, however, with a submission by Mr Bellanto that the relevant paragraphs in the Tribunal's decision do not contain a finding that Mr Blissett, after ceasing in November 2008 to be the operations manager, continued to hold a 'relevant position'. At a number of points in the decision, the Tribunal was careful to indicate that, although after this date Mr Blissett remained in Avilion's employment, his position was not officially that of a manager, nor was it necessarily to be equated with that of a manager. 88 At [46], for instance, the Tribunal said that 'from the time Avilion commenced operations until November 2008 Mr Blissett was actively involved in the management and operational control of Avilion's business', but in the very next paragraph it referred to Mr Blissett's 'ongoing involvement' in Avilion's business activities, 'including involvement after November 2008'. At [59], it stated: 'The evidence as to the nature of Mr Blissett's role in the company after December 2008 is less clear than that before then.' 89 Most importantly in the present context, we read paragraphs [77 – 80] of the decision (quoted above at [38]) as setting out the Tribunal's conclusions as to 'relevant position', whereas paragraphs [81 – 85] (quoted at [39]) contain its conclusions as to 'relevant power'. The former group of paragraphs include the finding, at [77], that Mr Phabmixay took over the role of operations manager from Mr Blissett in December 2008. The conclusion, at [80], that he was 'a manager and the holder of an executive position in Avilion' and was accordingly a 'close associate' was explicitly based on his having occupied the position of 'operations manager' and must therefore be limited to the period up to December 2008. 90 While in the latter group of paragraphs there are a number of references to the concept of 'relevant power', resulting in a finding that Mr Blissett did exercise such a power, there is only one reference to his having held a 'managerial position'. At the beginning of the final sentence of [85], he is said to have held such a position 'when the company was initially formed and later' (our emphasis). In the light of our reading of paragraphs [77 – 80], we do not think that the Tribunal intended, solely by using the noticeably vague phrase that we have italicised, to extend beyond December 2008 the time frame of its earlier finding that Mr Blissett held a 'relevant position'. 91 Mr Bourke argued that if, as we foreshadowed at the hearing, we interpreted these parts of the Tribunal's decision in the manner just outlined, we should nevertheless make our own determination that after December 2008 Mr Blissett continued to hold a 'relevant position'. He maintained that the Tribunal's findings regarding the level of control retained by Mr Blissett during this period amply warranted the conclusion that the criteria in section 5(2) were satisfied. Mr Blissett, he said, was still a 'manager', even though his position was not 'designated' as such. 92 If leave had been granted under section 113(2)(b) of the ADT Act for this appeal to extend to the merits, a ruling such as this, following consideration of all the available evidence, might have been warranted. But since, for the reasons just explained, we believe that the Tribunal was careful not to make this ruling, we are also not prepared to do so, in the context of an appeal that is 'restricted to questions of law' within the meaning of section 114. 93 Our conclusion on this matter is, we believe, supported by the following passage, cited in Avilion's submissions, in a judgment of the Full Federal Court relating to appeals from the AAT. In Commonwealth Banking Corporation v Percival (1988) 82 ALR 54 at 60, the Court said:- If, on the reading of such reasons, an error of law appears, either by express statement or by necessary implication and if that error of law affected the decision reached, then the decision must be set aside. If a material error of law is so identified, it is of no consequence that the decision reached could have been supported on a different basis, that there was evidence, which, if accepted, would have justified the ultimate decision. 94 Revocation of the licence in the 'public interest'. In conjunction with his arguments regarding 'close associate', Mr Bellanto submitted that the Tribunal erred in determining that Avilion's licence should be revoked on the ground of 'public interest'. The reasons that he put forward were (a) that it was not clear whether the Tribunal's determination was based on section 26(1A) of the SI Act – which provides for mandatory revocation if a 'close associate' of a licence holder is not a 'fit and proper person' to hold a licence – or on section 26(1)(d) of the Act and clause 29 of the Regulations – which establishes a discretionary ground of revocation on considerations of public interest. 95 If the Tribunal's determination was based on section 26(1A), it would be liable to be set aside on account of our conclusion that the Tribunal erred in holding that Mr Blissett was a 'close associate'. But as we indicated at the hearing, it is in our opinion clear from the Tribunal's decision at [93 – 96] (these paragraphs are quoted above at [43]) that it also acted under section 26(1)(d) of the Act and clause 29 of the Regulations. At [93], for instance, it referred to 'the public interest to be served in exercising the discretion to revoke a licence on public interest grounds' (emphasis added). 96 Mr Bellanto also argued that the Tribunal did not sufficiently spell out its reasons for ruling that revocation of the licence was in the public interest. Its explanation of these reasons, at [94 – 95], is indeed brief. But implicitly they draw on the detailed factual analysis contained in the preceding sections of the decision. 97 Most importantly, the reasoning adopted by the Tribunal does not depend upon its prior determination that Mr Blissett was a 'close associate'. They refer instead to the following findings by it: (a) that he had a 'substantial criminal record'; (b) that he was not a fit and proper person to hold a master licence; (c) that he had 'direction and control' of Avilion; (d) that Ms Stankovic lacked the ability and experience to manage the role of license holder; and (e) that she occupied this role as a 'front' for Mr Blissett. The evidence on which each of these findings was based was amply explained in the preceding paragraphs of the Tribunal's decision. It did not need to be repeated. 98 We have given consideration to a question that the Appeal Panel raised and tentatively answered in Commissioner of Police v Toleafoa [1999] NSWADTAP 9 at [25]. This case concerned the grounds for refusing an application for a licence under section 15 of the SI Act. These grounds include (a) that the applicant is not a 'fit and proper person' (a mandatory ground) and (b) the 'public interest' (a discretionary ground). In the relevant passage, which is quoted above at [42], the Panel said that the public interest discretion might 'possibly' operate in circumstances where 'an objection on character grounds would not be sufficient in its own right to warrant refusal'. Subsequently, the Tribunal held in O'Neill v Commissioner of Police [2005] NSWADT 130 (also a case under section 15) that an application that was subject to mandatory refusal on the ground that the applicant was not 'fit and proper' could also be refused on the discretionary ground that to grant it would be contrary to the public interest. 99 In our opinion, these decisions, notably the latter, provide support for the proposition that where (as here) the reasons advanced for revoking a licence are based on relevant considerations of 'character' but do not fall within the relevant provisions of the SI Act, the alternative ground of revocation on grounds of public interest may still be applicable. The ruling that Mr Blissett was not a fit and proper person to hold a Master Licence 100 This ground was formulated as follows in the Notice of Appeal: 'The presiding judicial member fell into error in that he denied the appellant procedural fairness in determining that Dione Blisset was not a fit and proper person to hold a Master Licence (at 94).' Paragraph [94] of the Tribunal's decision falls within the passage, just discussed, in which it held that Avilion's licence should be revoked on the ground that revocation was in the public interest. 101 In Avilion's written submissions on this ground, which Mr Bellanto addressed only briefly at the hearing, it was argued first that having regard to the outline of issues contained in the Tribunal's decision at [17] (quoted above at [31]), the question whether Mr Blissett was a 'fit and proper person' only arose if he was a 'close associate'. But since the Tribunal erred in holding that he was a 'close associate', it should not have dealt with the question whether he was a 'fit and proper person'. 102 This argument is untenable in our opinion. It suffices for us to say that, as just indicated, the Tribunal's finding, based on an earlier decision by the Tribunal, that Mr Blissett was not a 'fit and proper person' was an essential element of its conclusion that the revocation of Avilion's licence on public interest grounds should be confirmed. It is simply not the case that the issue of Mr Blissett's fitness and propriety was irrelevant if he were not a 'close associate'. 103 A second argument contained in the written submissions was that in these circumstances the Tribunal should not have invoked against Mr Blissett the principle in Jones v Dunkel (1959) 101 CLR 298 (which it did at [70]) in the course of concluding (at [71]) that at the meeting between Mr Blissett, Ms Stankovic and officers of the licensing police on 30 October 2008, Mr Blissett 'effectively represented the interest of Avilion'. 104 We do not see how this aspect of the decision related to the finding that Mr Blissett was not a 'fit and proper person' or involved any error on the part of the Tribunal. 105 The remaining parts of the written submissions relating to this ground of appeal did not clearly specify any alleged error of law. It was evident from Mr Bellanto's handling of this ground at the hearing that it was not strongly pressed. Infringement of the Kable principle 106 The fourth and final ground stated in the Notice of Appeal was that section 29(3), being the provision under which the Tribunal may consider and base its decisions on confidential criminal information that is not disclosed to the opposing party, 'offends the principle in' Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51 and is therefore 'ultra vires'. 107 The written submissions relating to this ground, which Mr Lowe prepared, explained that the question at stake was whether section 29(3) was invalid under Chapter III of the Commonwealth Constitution because it purported to require the Tribunal to exercise a power that was incompatible with its status as a 'court of a State' on which federal jurisdiction might be conferred under section 77(iii) of the Constitution. 108 Because this ground, as so formulated, put forward a matter arising under the Constitution or involving its interpretation, Avilion filed a Notice of a Constitutional Matter under section 78B of the Judiciary Act 1903 (Cth) on 21 July 2010 and served copies on the Attorneys General of the Commonwealth, the States and the Territories. 109 At the hearing, Mr Bellanto conceded, however, that by virtue of recent Court of Appeal decisions this Tribunal had no jurisdiction to determine this matter of federal constitutional law and that in any event this ground could not by itself justify upholding the appeal if the other grounds were rejected. He added that this did not mean that the ground of appeal was abandoned. 110 In these circumstances, this ground need not be addressed here. The outcome of the appeal 111 In the foregoing reasons, we have upheld one ground of the appeal, relating to the Tribunal's finding that Mr Blissett was a 'close associate' of Avilion, but dismissed or not dealt with the other grounds. 112 The consequence of upholding this ground is that one of the bases on which the Tribunal confirmed the Commissioner's revocation of Avilion's licence – namely that if Avilion were now applying for a licence, the Commissioner would be obliged to refuse it – is not sustainable. This is the ground deriving from section 26(1A) of the SI Act. 113 The Tribunal decided, however, that the licence was subject to revocation on public interest grounds under section 26(1)(d) of the Act and clause 29 of the Regulations. For the reasons set out above at [94 – 99], we rejected the relatively limited contentions that Avilion put forward by way of challenge to this wholly separate component of the Tribunal's decision. We can discern no error of law by the Tribunal in reaching this conclusion. 114 We take account at this point of the passage, quoted above at [93], from Commonwealth Banking Corporation v Percival (1988) 82 ALR 54 at 60. We do not thinks that this passage applies because while the error of law in the Tribunal's reasons affects one aspect of the decision that it reached, this decision is independently justified by other matters. 115 For these reasons, the appeal is dismissed. 116 At the hearing, both counsel indicated that their client did not seek costs. We accordingly make no order regarding costs. 117 In its decision at [147], the Tribunal stated that its confirmation of the Commissioner's decision to revoke Avilion's licence should not have immediate operation because it would 'have a significant effect on Avilion's employees and clients'. The Tribunal therefore postponed the operation of its decision for fourteen days. 118 The same approach should, in our opinion, be adopted here. We accordingly order that the stay granted by the Appeal Panel on 21 June 2010 is to continue for a period of fourteen days from the date of this decision, but is then dissolved. 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.