Gray v Commissioner of Police, NSW Police [2010] NSWADT 9

CITATION: Gray v Commissioner of Police, NSW Police [2010] NSWADT 9

DIVISION: General Division

Applicant: Byron Gray PARTIES: Respondent: Commissioner of Police, NSW Police

FILE NUMBER: 073198

HEARING DATES: 12 June 2009

SUBMISSIONS CLOSED: 7 August 2009

DATE OF DECISION: 11 January 2010

BEFORE: Montgomery S - Judicial Member

CATCHWORDS: Security Industry Act - security industry licence -grant of licence

LEGISLATION CITED : Administrative Decisions Tribunal Act 1997 Security Industry Act 1997

Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 Commissioner of Police NSW v Gray [2009] NSWCA 49 Commissioner of Police v Gray [2008] NSWSC 414 CASES CITED: Gray v Commissioner of Police, New South Wales Police [2008] NSWADT 29 Howell v Macquarie University [2008] NSWCA 26 Hughes and Vale Pty Ltd v State of New South Wales [1955] HCA 28; (1955) 93 CLR 127 Pochi v Minister for Immigration and Ethnic Affairs (1979) 26 ALR 247 Sawires v Commissioner of Police [2010] NSWADT 4

Applicant Representative: G Donnellan, barrister REPRESENTATION: Respondent Representative: A Johnson, solicitor

ORDERS: The decision under review is affirmed.

REASONS FOR DECISION 1 Mr Gray applied for a Class 1 AC security licence under the Security Industry Act 1997 ("the Act"). The application was refused on the basis that the Commissioner's delegate considered that Mr Gray is not a fit and proper person to hold a security licence and that it is not in the public interest for a licence to be granted. Mr Gray requested an internal review of the decision and the refusal was affirmed. 2 The matter was initially heard on 30 August 2007. Confidential material and further evidence was adduced during in camera hearings. I agreed with the Commissioner's request that the Tribunal not disclose the confidential information to Mr Gray: section 29(3) of the Act. 3 A preliminary issue concerning provision of particulars was the subject of my decision in Gray v Commissioner of Police, New South Wales Police [2008] NSWADT 29 and subsequently in the Supreme Court decision in Commissioner of Police v Gray [2008] NSWSC 414 and the Court of Appeal decision in Commissioner of Police NSW v Gray [2009] NSWCA 49 ("the Court of Appeal decision"). 4 The Commissioner relies on material ("the confidential material") concerning what is alleged to be Mr Gray's past conduct and which the Commissioner says supports the contention that Mr Gray is not a fit and proper person within the meaning of section 15(1)(a) of the Act. Consistent with the Court of Appeal decision that the Tribunal was not entitled to order the Commissioner to provide Mr Gray with particulars of the criminal intelligence information relied on, the confidential material has not been provided to Mr Gray. 5 The matter was finally heard on 12 June 2009. The earlier part of the hearing was held in the presence of Mr Gray. The later part of the hearing was held in Mr Gray's absence. Each party made submissions. Confidential hearing 6 Generally, Tribunal hearings are held in public. However, under section 75 of the Administrative Decisions Tribunal Act 1997, the Tribunal has the power to order that a hearing be conducted either wholly or partly in private and to make an order prohibiting or restricting the disclosure of evidence given before the Tribunal to some or all parties. The Commissioner sought to have a confidential hearing in this matter and I agreed to that request. In the absence of Mr Gray, I heard from Ms Johnson as to the nature of the material she wished to put before the Tribunal. Having heard submissions in relation to the material that the Commissioner wished to tender to the Tribunal on a confidential basis, I formed the view that the confidential information is 'of such importance and cogency that justice is more likely to be done by receiving the information in confidence and denying the party access to it than by refusing an order to exclude the party.' Pochi v Minister for Immigration and Ethnic Affairs (1979) 26 ALR 247. 7 I determined to proceed on that basis and advised Mr Gray accordingly. Consequently Mr Gray was not made aware of the material that was tendered on a confidential basis. 8 I have given weight to this confidential material and any reference to that material is deleted from the published reasons. 9 Mr Gray has a number of convictions and matters that led to contact with police more than 10 years before his application. It is not in dispute that Mr Gray's record is unblemished for the period between 1994 and 2006. The Commissioner acknowledges that Mr Gray's criminal record would not justify refusing him a Class 1AC licence. However, Ms Johnson submits that the other information available to the Commissioner, and which is discussed in the confidential material, properly leads the Tribunal to the view that Mr Gray is not a fit and proper person to hold a licence. 10 Those parts of the decision where the confidential material is discussed are identified as "Subject to suppression order". 11 The confidential material tendered to the Tribunal included: a confidential statement by Andrew Vezos a confidential report confidential submissions Relevant Legislation 12 Section 15 of the Act provides: 15 Restrictions on granting licence—general suitability criteria