CITATION: AVS Group of Companies Pty Ltd v Commissioner of Police, NSW Police Force [2009] NSWADT 223 DIVISION: General Division FIRST APPLICANT AVS Group of Companies Pty Ltd SECOND APPLICANT Security and Training Pty Limited PARTIES: THIRD APPLICANT Peter Sleiman RESPONDENT Commissioner of Police, NSW Police Force FILE NUMBER: 093202 HEARING DATES: On the papers SUBMISSIONS CLOSED: 18 August 2009 DATE OF DECISION: 21 August 2009 BEFORE: Hennessy N - Magistrate (Deputy President) CATCHWORDS: Revocation of security licences, request for a statement of reasons for decision, applicability of provisions relating to confidential intelligence information on obligation to provide reasons LEGISLATION CITED : Administrative Decisions Tribunal Act 1997 Security Industry Act 1997 AVS Group of Companies Pty Ltd & Ors v Commissioner of Police, NSW (GD) [2009] NSWADTAP 48 Commissioner of Police NSW v Gray [2009] NSWCA 49 CASES CITED: K-Generation Pty Ltd v Liquor Licensing Court (2009) 252 ALR 471 Twist v Randwick Municipal Council (1976) 136 CLR 106 Plaintiff S157/2000 v Commonwealth (2003) 211 CLR 476 APPLICANT K Oliver, counsel REPRESENTATION: RESPONDENT T Lynch, counsel ORDERS: Within 7 days of the date of this decision, the respondent is to lodge with the Tribunal and serve on the applicants a statement of reasons that complies with s 49(3) of the Administrative Decisions Tribunal Act 1997. In providing those reasons the respondent need not disclose the existence or content of any criminal intelligence report or other criminal information as referred to in s 15(6) of the Security Industry Act 1997. REASONS FOR DECISION Introduction 1 The respondent (the Commissioner of Police) has revoked the security licences of Peter Sleiman, A.V.S Group of Companies Pty Ltd and ASET Security and Training Pty Ltd. The Notice of Revocation gave, as reasons for the decision, that the applicants were no longer fit and proper persons to hold a security licence and it was not in the public interest for them to do so. The respondent also referred to s 15(6) and s 15(7) of the Security Industry Act 1997 (SI Act) which permits him not to give reasons for particular decisions if the giving of those reasons would disclose the existence or content of certain kinds of criminal intelligence information. 2 The applicants applied to the Tribunal for a review of the revocation decisions and for a stay of the decisions, pending a hearing. At the first stay hearing the respondent tendered criminal intelligence information in the absence of the applicants. The Tribunal refused the stay application. That decision was set aside by the Appeal Panel and remitted to the Tribunal for further consideration: AVS Group of Companies Pty Ltd & Ors v Commissioner of Police, NSW (GD) [2009] NSWADTAP 48. On remittal, in accordance with the Appeal Panel's reasons and further rulings, the Tribunal did not have regard to the criminal intelligence information and granted a stay. During that hearing, which took place on 13 August 2009, the applicants sought directions, pursuant to s 58(2) of the Administrative Decisions Tribunal Act 1997 (ADT Act), for the respondent to provide them with a copy of the statement of reasons lodged with the Tribunal pursuant to s 58(1)(a) of the ADT Act. A direction was made that the respondent file and serve submissions in response to that application by 18 August 2009 and that the application be determined on the papers: ADT Act, s 76. Issues 3 The questions that arise for consideration and the answers I have given to those questions are as follows: 1.Does the Tribunal have power to direct the respondent to provide a further statement of reasons at this stage of the proceedings? Yes. 2.Does the Notice of Revocation comply with s 49(3) of the ADT Act? No. 3.To what extent, if at all, in the circumstances of this case, does s 29(3) of the SI Act permit the respondent to provide a statement of reasons that does not comply with section 49(3) of the ADT Act? The effect of s 29(3) is that the respondent need not disclose the existence or content of any criminal intelligence report or other criminal information as referred to in s 15(6) of the Security Industry Act 1997 when providing a statement of reasons that complies with s 49 of the ADT Act. Does the Tribunal have power to direct the respondent to provide a statement of reasons at this stage of the proceedings? 4 On 8 August 2009 the applicants requested the respondent to provide statements of reasons for each of the reviewable decisions, pursuant to s 49 of the ADT Act as soon as practicable and, and in any event, within 28 days. That provision states that: (1) If an administrator makes a reviewable decision, an interested person may make a written request to the administrator for the reasons for the decision. (2) As soon as practicable (and in any event within 28 days) after receiving such a request, the administrator is to prepare a written statement of reasons for the decision and provide it to the person who requested the reasons. (3) The statement of reasons is to set out the following: (a) the findings on material questions of fact, referring to the evidence or other material on which those findings were based, (b) the administrator's understanding of the applicable law, (c) the reasoning processes that led the administrator to the conclusions the administrator made. (4) The regulations may: (a) exclude any class of reviewable decisions from the application of this section, or (b) alter the period within which a statement of reasons under this section must be given. 5 The respondent admitted that because of his reliance on s 15(6) and (7) of the SI Act, the Notice of Revocation does not comply with the requirements for a statement of the reasons set out in s 49(3). 6 The respondent made a reviewable decision (to revoke the applicants' licences) and gave notice of that decision and of the applicants' review rights. The applicants did not request further written reasons for the decision nor did they apply for an internal review. Instead, they applied to the Tribunal for a review of the decision and a stay of the decision. The Tribunal exercised its discretion to deal with the stay application even though the applicants had not applied for an internal review: ADT Act, s 55(3). After the application for review had been lodged, the applicants requested, pursuant to s 49 of the ADT Act, that the respondent provide a statement for reasons for each of the reviewable decisions that are 'adequate statements of reasons' within the meaning of s 52(3) of the ADT Act. The respondent says that the 28 day period to respond to such a request has not expired and, in any event, the applicants cannot request a statement of reasons under s 49 after making an application to the Tribunal for the decisions to be reviewed. Support for that proposition is found, the respondent says, in s 58(1)(a) of the ADT Act: (1) An administrator whose reviewable decision is the subject of an application for review to the Tribunal must, within 28 days after receiving notice of the application, lodge with the Tribunal: (a) a copy of any statement of reasons given to the applicant under section 49 (or, if no such statement was given to the applicant, a statement of reasons setting out the matters referred to in section 49 . . . (2) If the applicant has not been given a statement of reasons under section 49, the Tribunal may direct that a copy of the statement of reasons lodged with the Tribunal under subsection (1) (a) be given to the applicant within such period or periods as the Tribunal directs. 7 The respondent submitted that he is not obliged to provide the applicants with a statement of reasons pursuant to s 49 of the ADT Act because a statement of reasons under that provision has been overtaken by the applicants commencing these proceedings. The respondent's reasoning is based on the words in s 58(1)(a) of the ADT Act, that is, if there is an extant application for review but no s 49 statement of reasons, then "An Administrator . . must . . .lodge. . a statement of reasons setting out the matters referred to in s 49(3). . ." According to the respondent there is no scope for the operation of s 49 because its requirements have been superseded by those in s 58(1). 8 Section 52 is also relevant: (1) If an interested person has requested a statement of reasons under section 49 but has not received it within the period specified by or under that section, the Tribunal may (on the application of the person) order the administrator concerned to provide the statement of reasons within such time as may be specified in the order. (2) If an interested person who requested a statement of reasons under section 49 is given an inadequate statement of reasons, the Tribunal may (on the application of the person) order the administrator concerned to provide an adequate statement of reasons within such time as may be specified in the order. (3) For the purposes of this section, a statement of reasons is an adequate statement of reasons only if it sets out the matters referred to in section 49 (3). 9 Reading Chapter 5 of the ADT Act (Process for Reviewing Reviewable Decisions) as a whole, it is apparent that any request under s 49 for a statement of reasons is overtaken by the administrator's obligation to provide a statement of reasons that complies with s 49(3) within 28 days after receiving notice of the application: ADT Act, s 58(1)(a). Since the respondent has purported to provide a statement of reasons in accordance with s 58(1)(a), there is no utility in the applicants requesting a statement of reasons under s 52 or in the Tribunal directing that such a statement be provided pursuant to that provision. 10 The applicants also sought directions pursuant to section 58 (2) of the ADT Act which states that: If the applicant has not been given a statement of reasons under section 49, the Tribunal may direct that a copy of the statement of reasons lodged with the Tribunal under subsection (1) (a) be given to the applicant within such period or periods as the Tribunal directs. 11 The respondent submitted that s 58(2) does not authorise the Tribunal to make a direction to provide a statement of reasons. I agree. The power in s 58(2) is confined to the documents in fact provided to the Tribunal under section 58(1). The applicants appeared to agree with that proposition when they said that if the only statement of reasons that has been filed with the Tribunal is a copy of the original Notice of Revocation, then an order under s 58(2) would not be effective to rectify the deficiencies they say that Notice has. 12 As the only document filed by the respondent pursuant to s 58 which could be regarded as a statement of reasons, is the Notice of Revocation, there is no utility in the Tribunal making a direction to provide the applicants with a copy of that document pursuant to s 58. 13 Even though there is no utility in the Tribunal making a direction to provide a statement of reasons under either s 52(2) or s 58(2), it is my view that the Tribunal nevertheless has power to make a direction that the respondent provide a statement of reasons that complies with s 49(3) if it forms the view that it has not done so. It is apparent from the terms of s 49, 52 and 58 that an applicant is entitled to have a statement of reasons that complies with s 49 before the Tribunal reviews the decision. While s 58 does not expressly empower the Tribunal to do so, the Tribunal has such a power because it is able to determine its own procedure and give directions as to the steps to be taken in the proceedings: ADT Act: s 73(1), ADT Rules 1998, cl 19. Does the Notice of Revocation comply with s 49(3) of the ADT Act? 14 The applicants submitted that the Notice does not comply with the requirements of 49(3) in certain respects. When listing those matters on which the applicants relied, I have omitted any reference to "close associates" as there is no mention of associates in the Notice. The applicants submitted that: (a) the notice does not make clear whether the licences of each, or only of some (and if so which) of the three named licensees has been revoked on either or both of public interest grounds or fitness and propriety grounds; (b) the notice does not set out the evidence or other material upon which the respondent has been satisfied that any one or more of the licensees is not a fit and proper person to hold a security licence; (c) the notice does not set out the evidence or other material upon which the respondent has been satisfied that it is contrary to the public interest for one or more of the licensees to continue to hold a security licence; (d) the notice does not set out the respondent's understanding of what is relevantly denoted by the statutory expression "fit and proper person" in the context of the Security Industry Act 1997 (e) the notice does not set out the respondents understanding of what is relevantly denoted by the statutory expression "contrary to the public interest" in the context of the Security Industry Act 1997; (f) the notice does not set out the reasoning process that led the respondent to form the opinion that, on the basis of the material evidence of unfitness, each licensee is not a fit and proper person; (g) the notice does not set out the reasoning process that led to the respondent to form the opinion that, on the basis of the material evidence, it would be contrary to the public interest for each of the licensees to continue to hold a security licence. 15 The reasoning in the Notice of Revocation is limited to the expression of an opinion that the applicants are no longer fit and proper persons to hold a security licence and it is not in the public interest for them to continue to do so. I am satisfied that the Notice does not comply with the requirements in s 49(3) in the respects outlined by the applicants and set out above. As s 15(6) and s 29(3) only apply to a decision that an applicant is not a fit and proper person to hold a particular class of licence, those provisions cannot excuse the respondent from providing the information sought at (a), (c), (d), (e) and (g) above. I accept the applicants' submission that the respondent's failure to articulate clearly whether any or all of the reviewable decisions is made solely on public interest grounds is important because s 15(6) and s 15(7) do not apply to a decision that has been based on public interest grounds. To what extent, if at all does s 29(3) of the SI Act permit the respondent to provide a statement of reasons that does not comply with section 49(3) of the ADT Act? 16 Before examining the effect of s 29(3) I will set out the provisions relied on by the respondent in the Notice of Revocation. After giving the brief reasons for the decision, the notice cites s 26(1A) of the SI Act which states that: (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. (Emphasis added) 17 The Notice goes on to refer to s 15(1)(a) of the SI Act which states that: (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 (Emphasis added) 18 The effect of these provisions, in combination, is that the Commissioner must revoke a licence if satisfied that the applicant "is not a fit and proper person to hold the class of licence sought". The Notice then refers to s 15(6) and s 15(7) of the SI Act which state that: (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). 19 It is apparent from the Notice that the respondent had formed the view that the effect of s 26(1A) and s 15(1)(a) was that s 15(6) and s 15(7) apply in circumstances where the respondent makes a decision to revoke a licence and a reason for the revocation is that the applicant is not a fit and proper person to hold the licence. The applicants disagreed with this interpretation saying that s 26(1A) goes solely to the conditions under which revocation must occur and says nothing about the procedural consequences of such a decision. In addition, the respondent said that if Parliament had intended s 15(7) to apply to revocation decisions in the same was as it applies to refusal decisions it could easily have amended the section to make that clear. 20 The respondent submitted that despite the obligations in s 49 of the ADT Act, the effect of s 29(3) of the SI Act is that he is not obliged to provide reasons which disclose the existence or content of any criminal intelligence report or other criminal information as referred to in s 15(6). Section 29(3) states that: 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. 21 Both parties referred to Commissioner of Police NSW v Gray [2009] NSWCA 49. That case involved a decision by the Commissioner of Police to refuse to grant a security licence on the ground that Mr Gray was not a fit and proper person to hold such a licence. As the decision was not a revocation decision, the Court did not need to determine the issue raised in these proceedings. The issue in Gray's case, set out by the Court at [5], was: . . .whether s 29(3) of the SI Act operated to preclude the Tribunal from ordering the applicant to give the first respondent, Mr Byron Gray, particulars of the basis upon which his application for a security industry licence had been rejected. 22 Essentially the issue involved a consideration of whether s 29(3) overrode the Tribunal's obligation to afford parties procedural fairness as outlined in s 73 of the ADT Act. The Court of Appeal examined the relevant provisions at [103] to [106]: [103] Section 15(7) gives the Commissioner immunity from disclosing confidential materials in reasons. That is a legislative indication, at an early stage in the application process, that the SI Act was intended to modify that rule of natural justice entitling a person to know the case made against them. [104] Nothing in the SI Act expressly protects the Commissioner from the obligation in s 58 of the ADT Act to lodge material documents with the Tribunal in the case of an external review. Prima facie s 58(5) of the ADT Act would require the Registrar of the Tribunal to grant reasonable access to those documents to the applicant. However that step would be precluded if the Commissioner invoked s 59 of the ADT Act and foreshadowed an application under s 75. [105] The scheme thus created ensures that the existence of confidential materials comes to the notice of the Tribunal, but gives the Commissioner the opportunity to make a s 29(3) non-disclosure claim. In the event that claim is made, s 29(3) establishes the procedure by which that claim is to be determined. [106] Once the claim is established, s 29(3)(a) operates to disentitle an applicant to knowledge of both the "existence and content" of any s 15(6) material for the purpose of the external review. The applicant is thus denied access to materials which would otherwise be made available pursuant to s 58(5) and/or by the application of the principles of natural justice and procedural fairness in s 73. Nevertheless the Tribunal is required by s 63 to take it into account in its deliberations. 23 That issue in Gray's case was resolved by McColl JA (Giles and Tobias JJA, agreeing) by the following analysis at [111] to [113]: [111]. . . s 29(3) of the SI Act and s 73, to the extent it contradicts the s 29(3) requirement that neither the existence nor content of s 15(6) materials be disclosed by the Tribunal, cannot stand together. The same conclusion may apply to other provisions of the ADT Act such as s 58(5) (reasonable access to the applicant in the proceedings to any copy of a document lodged under s 58 by an administrator), s 75 (proceedings on hearing to be conducted in public) and s 89(5) (content of reasons). No argument was addressed to the interaction of s 29(3) and the latter provisions, and it is unnecessary to reach a conclusion on them. [112] In my view, therefore, s 29(3) of the SI Act impliedly repeals s 73 to the extent to which it would otherwise apply to an application for a review of any decision to refuse to grant a licence or to revoke a licence that was made on the ground of the applicant not being a fit and proper person. [113] There are "strong grounds" for reaching that conclusion — being the legislature's concern to ensure s 15(6) information is not disclosed to applicants for security licences, or those whose licences have been revoked, reflected in the legislature clearly contemplating that s 29(3) would be used as a vehicle to interfere with processes of the Tribunal such as its power to order a party to provide particulars. . . 24 The respondent submitted that the reasoning in Gray's case is indistinguishable from the current case and that to the extent that the obligation to provide reasons under s 58 is inconsistent with s 29(3) of the SI Act, it is repealed. The applicants said that Gray's case was distinguishable on the facts because the conclusion at [103] referring to "an early stage in the application process" is not directed to cases involving revocation decisions, nor are the comments at [104] to [106] directed to the obligation to give reasons pursuant to s 58(1)(a). 25 The elements of s 29(3) of the SI Act can be summarised as follows: a) if there is a reviewable decision before the Tribunal and that decision is to refuse to grant a licence or to revoke a licence on the ground of the applicant not being a fit and proper person; and b) the Tribunal is determining an application for a review of that decision; and c) the Commissioner relies on the existence or content of any criminal intelligence report or other criminal information referred to in s 15(6); d) the Tribunal is to ensure that it does not disclose the existence or content of that information to the applicants or otherwise, without the approval of the Commissioner. 26 The first element is satisfied in this case because there is such a decision before the Tribunal. 27 The respondent submitted that the second element is satisfied because the Tribunal is determining an application for review even though it has before it an interlocutory application for a direction that a compliant statement of reasons be provided. In support of his submission, the respondent pointed out that it was inherent in the decision of Commissioner of Police (NSW) v Gray [2009] NSWCA 49 that directions for particulars to be provided to an applicant was something done in determining an application for review. If that were not the case s 29(3) of the SI Act would not have been engaged and there would have been no inconsistency with s 73 of the ADT Act. I accept that proposition and find that it follows that the Tribunal is determining an application for review when considering whether to direct the respondent to provide a compliant statement of reasons. 28 Implicit in s 29(3) is an assumption that the Commissioner has relied on the existence or content of a criminal intelligence report or other criminal information referred to in s 15(6) when making its decision. The applicants noted that the Tribunal, in the course of the second stay hearing on 13 August 2009, held that the confidential material was material of a type to which s 15(6) applies. The legal basis for that conclusion is now provided. 29 Despite the fact that s 15(6) does not expressly relate to revocation decisions, the words "or to revoke a licence" in s 29(3) should, if possible, be given meaning and effect. Those words would be superfluous if the obligation set out in s 29(3)(a) did not apply to revocation decisions: Commonwealth v Baume (1905) 2 CLR 405 at 414 per Griffith CJ. It is possible to give the words "or to revoke a licence" meaning by concluding that s 15(6) applies to those kinds of decisions. The alternative is not to give those words any meaning or effect. In support of that proposition, the applicants relied on the principle that when constructional choices are open, provisions should be interpreted so as not to encroach on fundamental rights and freedoms at common law, including the right to procedural fairness: K-Generation Pty Ltd v Liquor Licensing Court (2009) 252 ALR 471 per French CJ at [47]. In Plaintiff S157/2000 v Commonwealth (2003) 211 CLR 476 Gleeson CJ said, at 492 [30], that: . . .courts do not impute to the legislature an intention to abrogate or curtail fundamental rights or freedoms unless such an intention is clearly manifested by unmistakable and unambiguous language. General words will rarely be sufficient for that purpose. What courts will look for is a clear indication that the legislature has directed its attention to the rights or freedoms in question, and has consciously decided upon abrogation or curtailment. 30 The applicants also highlighted the following passage from Twist v Randwick Municipal Council (1976) 136 CLR 106 where Barwick CJ said, at 110: The court will approach the construction of the statute with a presumption that the legislature does not intend to deny natural justice to the citizen. Where the legislation is silent on the matter, the court may presume that the legislature has left it to the courts to prescribe and enforce the appropriate procedure to ensure natural justice. 31 I appreciate that giving the words "or to revoke a licence" some meaning and effect, deprives the applicants of procedural fairness. But, in contrast to the situation in Twist's case, the legislature has not been silent on the matter. It has consciously decided to included the words "or to revoke a licence" in s 29(3). The only possible effect of those words is that the Tribunal is prevented from disclosing the existence or content of any criminal intelligence report or other criminal information referred to in s 15(6) without the approval of the Commissioner. 32 The final element of s 29(3) involves determining the scope of the Tribunal's obligations under that provision. If the decision in issue were a decision to refuse to grant a licence, by directing the respondent to provide a statement of reasons that includes reference to information referred to in s 15(6), the Tribunal would be contravening s 29(3). The disclosure, at an interlocutory stage, of the s 15(6) material to the extent required by s 49 of the ADT Act would defeat the protection intended for such material at the final hearing. I have concluded that the same reasoning applies to a decision to revoke a licence. 33 I make the following direction: Within 7 days of the date of this decision, the respondent is to lodge with the Tribunal and serve on the applicants a statement of reasons that complies with s 49(3) of the Administrative Decisions Tribunal Act 1997. In providing that statement of reasons the respondent need not disclose the existence or content of any criminal intelligence report or other criminal information as referred to in s 15(6) of the Security Industry Act 1997. 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.