AVS Group of Companies Pty Ltd v Commissioner of Police [2009] NSWSC 1391 (18 December 2009)

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AVS Group of Companies Pty Ltd v Commissioner of Police [2009] NSWSC 1391 (18 December 2009)

Last Updated: 21 December 2009

NEW SOUTH WALES SUPREME COURT

CITATION:
AVS Group of Companies Pty Ltd v Commissioner of Police [2009] NSWSC 1391


JURISDICTION:


FILE NUMBER(S):
30096/2009

HEARING DATE(S):
6 November 2009 and 27 November 2009

JUDGMENT DATE:
18 December 2009

PARTIES:
AVS Group of Companies Pty Ltd (First Plaintiff)
ASET Security and Training Pty Ltd (Second Plaintiff)
Peter Sleiman (Third Plaintiff)
Commissioner of Police (First Defendant)
Administrative Decisions Tribunal of NSW (Second Defendant)

JUDGMENT OF:
Davies J

LOWER COURT JURISDICTION:
Not Applicable

LOWER COURT FILE NUMBER(S):
Not Applicable

LOWER COURT JUDICIAL OFFICER:
Not Applicable



COUNSEL:
K Oliver (Plaintiffs)
T Lynch (First Defendant)
Submitting appearance filed (Second Defendant)

SOLICITORS:
HPL Lawyers (Plaintiffs)
Crown Solicitor's Office (Defendants)


CATCHWORDS:
ADMINISTRATIVE LAW - administrative tribunals -
Administrative Decisions Tribunal (NSW) - appeal against the refusal of leave by an Appeal Panel - revocation of licences under Security Industry Act - confidential police intelligence - whether Commissioner of Police under a duty to disclose - whether Tribunal can disclose intelligence information - effect and operation of s 29(3) Security Industry Act 1997 on provisions in Administrative Decisions Tribunal Act 1997 - implied repeal.
ADMINISTRATIVE LAW - orders in the nature of mandamus - whether internal review procedures should have been followed - discretionary reasons to refuse order - futility of order.

LEGISLATION CITED:
Administrative Decisions Tribunal Act 1997
Migration Act 1958
Security Industry Act 1997
Security Industry Amendment Act 2002
Security Industry Amendment Act 2005

CATEGORY:
Principal judgment

CASES CITED:
Australian Alliance Assurance Co Ltd v Attorney-General (QLD) [1916] St R Qd 135
Commissioner of Police v AVS Group of Companies Pty Ltd [2009] NSWSC 1408
Commissioner of Police (NSW) v Gray [2009] NSWCA 49
Electrolux Home Products Pty Ltd v Australian Workers’ Union [2004] HCA 40; 221 CLR 309
Finance Facilities v Federal Commissioner of Taxation [1971] HCA 12; (1971) 127 CLR 106
In Re Holden [1957] TASStRp 1; [1957] TAS SR 16
Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355
Re Minister for Immigration and Multicultural and Indigenous Affairs, Ex Parte Palme [2003] HCA 56; 216 CLR 212

TEXTS CITED:


DECISION:
(1) The appeal is dismissed. (2) The Amended Summons is otherwise dismissed. (3) The Plaintiffs are to pay the First Defendant’s costs of the proceedings.



JUDGMENT:

- 21 -

IN THE SUPREME COURT

OF NEW SOUTH WALES

COMMON LAW DIVISION

DAVIES J

18 DECEMBER 2009

30096/2009 AVS GROUP OF COMPANIES PTY LTD & 2 ORS v COMMISSIONER OF POLICE & ANOR

JUDGMENT

1 On 15 July 2009 the Commissioner of Police revoked the security licence and master security licences issued in the name of AVS Group of Companies Pty Ltd, ASET Security and Training Pty Ltd and Peter Sleiman (collectively called “AVS”). The 2 reasons given for doing so were that he was of the opinion that AVS was no longer a fit and proper person to hold a security licence and, secondly, that it was not in the public interest for it to continue to hold a licence.

2 On 29 July 2009 AVS applied to stay the decision of the Commissioner. On 13 August 2009 the Administrative Decisions Tribunal granted a stay of the decision pending the hearing of the application for review of the decision.

3 In the meantime, on 11 August 2009 AVS had applied to the Commissioner for a statement of reasons pursuant to s 49 Administrative Decisions Tribunal Act 1997.

4 During the course of the preparation for the final hearing AVS applied to the Tribunal under s 58(2) ADTA for a direction that the Commissioner provide AVS with a copy of the statement of reasons lodged with the Tribunal pursuant to s 58(1)(a) of the ADTA. AVS wanted a statement of reasons in a form that was compliant with s 49(3) ADTA.

5 On 21 August 2009 Deputy President Hennessy made 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 s 15(6) of the Security Industry Act 1997.”

6 AVS filed a Notice of Appeal against Deputy President Hennessy’s decision. Leave to appeal was needed because the decision was interlocutory (s 113(2A) ADTA).

7 The application for leave to appeal was heard by Deputy President Needham and on 21 September 2009 she refused leave to appeal on the basis that there was not sufficient doubt attending the decision to require consideration by an Appeal Panel. In doing so, she held that the decision of the Court of Appeal in Commissioner of Police (NSW) v Gray [2009] NSWCA 49 was not relevantly distinguishable.

8 AVS now seeks leave to appeal from the decision of Deputy President Needham. Leave is needed because her decision was an interlocutory one – see s 119(1A)(a) ADTA.

9 The issue involves the interplay of ss 15, particularly sub-ss (6) and (7), 26 and 29, particularly sub-s (3), of the Security Industry Act 1997 and also the relationship of those provisions with ss 49, 50, 51, 52 and 58 ADTA.

The legislative provisions

10 Section 26 SCI deals with the revocation of a licence. It relevantly provides:

“(1) A licence may be revoked:

(a) (Repealed)

(b) if the licensee:

(i) supplied information that was (to the licensee’s knowledge) false or misleading in a material particular in, or in connection with, the application for the licence, or

(ii) contravenes any provision of this Act or the regulations, whether or not the licensee has been convicted of an offence for the contravention, or

(iii) contravenes any condition of the licence, or

(c) (Repealed)

(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.

...”

It is to be noted that sub-s (1A) was inserted into the section by the Security Industry Amendment Act 2002.

11 The situations where an application would be required to be refused if it was an application for new licence are contained in s 15. That section deals generally with the restrictions on granting licences. It relevantly provides:

“(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

...

(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.

...

(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).”

Sub-sections (6) and (7) were also inserted into the Act by the Security Industry Amendment Act 2002.

12 Section 29 enables a person whose licence has been revoked to apply to the Tribunal for a review of that decision. Section 29 (1) provides:

“(1) A person may apply to the Administrative Decisions Tribunal for a review of the following decisions:

(a) the refusal or failure by the Commissioner to grant a licence to the person (other than by operation of section 24 (3)),

(b) a condition imposed by the Commissioner on a licence granted to the person,

(c) the revocation or suspension of a licence granted to the person.”

13 Under the ADTA s 8 defines a reviewable decision as a decision of an administrator that the Tribunal has jurisdiction under an enactment to review. Section 9 provides that an administrator is the person or body that makes or is taken to have made the decision under the enactment. In the present case the Commissioner of Police is the administrator because he is the person who makes the decision to revoke the licence under s 26(1A) SCI. Since s 29(1) SCI enables a person whose licence has been revoked to apply to the Tribunal for a review of that decision the decision is, by virtue of s 8, a reviewable decision.

14 Section 49 ADTA deals with the duty of an administrator to give reasons. It provides:

“(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.”

15 Section 50 provides the circumstances where an administrator may refuse to provide reasons. Sub-section (1) provides:

“(1) An administrator may refuse to prepare and provide a statement of reasons requested by a person under this Division if:

(a) the administrator is of the opinion that the person is not entitled to be given the statement, or

(b) in the case of a decision the terms of which were recorded in writing and set out in a document that was provided to the person - the request was not made within 28 days after the person was provided with the document, or

(c) in any other case—the request was not made within a reasonable time after the decision was made.”

16 The Tribunal is given power with respect to the refusal by the administrator to provide reasons. Section 51 provides:

“(1) The Tribunal may, on the application of a person who has been refused a statement of reasons under section 50 (1) (a), make an order declaring that the person was, or was not, entitled to make the request to which the notice relates.

(2) The Tribunal may, on the application of a person who has been refused a statement of reasons under section 50 (1) (c) on the basis that the person did not make the request within a reasonable time, make an order declaring that the person did make the request within a reasonable time.”

17 Section 52 deals with where there has simply been a failure to provide the reasons. It provides:

“(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).”

18 Section 58 deals with the duty of an administrator to lodge a statement of reasons with the Tribunal where his decision is being reviewed. That section relevantly provides:

“(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 (3)), and

(1A) ...

(b) copy of every document or part of a document that is in the possession, or under the control, of the administrator that the administrator considers to be relevant to the determination of the application by the Tribunal.

(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.

(3) If the Tribunal or President considers that a party to the proceedings would or might suffer hardship if the period of 28 days provided by subsection (1) is not shortened or extended, the Tribunal or President may, at the request of the party, make an order directing that the copies referred to in that subsection be lodged with the Tribunal within such shorter or extended period as is specified in the order.

(4) ...

(5) The Registrar of the Tribunal is to grant reasonable access to the applicant in the proceedings to any copy of a document lodged under this section by an administrator. Reasonable access includes, but is not limited to, enabling the applicant to make a photocopy of a document during ordinary business hours.

(6) If a party to proceedings before the Tribunal seeks a summons under section 84 against an administrator for the production of any document and a copy of that document has been lodged with the Tribunal under subsection (1) or (4), the Tribunal may (on such conditions as it considers appropriate) direct the Registrar to grant the party access to its copy of the document instead of issuing a summons if access to the document could lawfully be required by the issue of a summons.

...”

19 It was in the course of the hearing for a stay of the decision before the Tribunal that AVS sought directions under s 58(2) that the Commissioner provide them with a copy of the Statement of Reasons lodged with the Tribunal.

20 The legislative provision most essential to this application and appeal is s 29(3) SIA. That sub-s provides:

“(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.” (emphasis added)

This sub-s was inserted into s 29 by the Security Industry Amendment Act 2005.

Chronology of events

21 A short chronology is necessary to understand the decisions made by the Commissioner and the determinations made by the Tribunal.

15 July 2009 Date of notice given pursuant to s 26 SIA to revoke licence on 2 grounds, (a) licensee no longer a fit and proper person, (b) not in the public interest for the licensee to hold a licence.

23 July 2009 Service of notice.

29 July 2009 AVS applies to the Tribunal to review the Commissioner’s decision and to stay the decision pending a determination of the review.

11 August 2009 Solicitors for AVS request pursuant to s 49 ADTA statement of reasons for decision.

13 August 2009 Hearing before Deputy President Hennessy.

21 August 2009 Decision and order of Deputy President Hennessy – “within 7 days of the date of this decision, the Respondent is to the 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.”

25 August 2009 AVS files Notice of Appeal to Appeal Panel.

28 August 2009 Commissioner provides statement of reasons and abandons reliance on public interest ground as a ground for revocation of any of the licences.

7 September 2009 Hearing of application for leave to appeal before Deputy President Needham.

21 September 2009 Reasons for decision of Deputy President Needham refusing leave to appeal.

Decision of Deputy President Hennessy

22 As noted earlier, during a hearing for a stay application before Deputy President Hennessy on 13 August 2009 AVS sought directions pursuant to s 58(2) ADTA for the Commissioner to provide it with a copy of the statement of reasons lodged with the Tribunal pursuant to s 58(1)(a) ADTA. As noted in the Chronology, AVS had requested a statement of reasons pursuant to s 49 on 11 August 2009 but no statement had been provided by 13 August.

23 Deputy President Hennessy made the following determinations:

“(a) It is apparent that any request under s 49 for a statement of reasons is overtaken by the Commissioner’s obligation under s 58(1)(a) to lodge reasons with the Tribunal (para [9]).

(b) The Tribunal has power to make a direction that the Commissioner provide a statement of reasons that complies with s 49(3) if it forms the view that the Commissioner has not done so (para 13).

(c) The Notice of Revocation (which the Commissioner asserted contained the reasons within the meaning of s 49) did not comply with the requirements of s 49(3) (para 15).

(d) The Tribunal is determining an application for review (within the meaning of s 29(3)) when considering whether to direct the Commissioner to provide a compliant statement of reasons (para 27).

(e) A combination of ss 29(3) and 15(6) brings about the result that the Tribunal must ensure that it does not disclose the existence of any criminal intelligence report or information within the meaning of s 15(6) on an application to revoke a licence as with an application to grant a licence (paras 29 and 32).

24 It is also clear, although the Deputy President does not expressly say so, that she accepted the applicability of the Court of Appeal’s decision in Commissioner of Police (NSW) v Gray [2009] NSWCA 49 to the matter she had to determine.

25 AVS filed a Notice of Appeal which sought leave to appeal from Deputy President Hennessy’s decision. On the day of the hearing AVS filed a further Amended Notice of Appeal where the sole of question of law for consideration on the appeal was said to be this:

“Does s 29(3) of the Security Industry Act 1997 operate:

(a) To limit the scope of the Commissioner’s duty pursuant to s 58(1)(a) of the Administrative Decisions Tribunal Act 1997 to provide an adequate statement of reasons for revocation of a security licence pursuant to s 26 of the Security Industry Act 1997; and /or

(b) To require or empower the Tribunal to exempt the Commissioner wholly or in part from performance of that duty in accordance with its terms in circumstances where such exemption results in procedural unfairness for the parties seeking review?

26 In her determination Deputy President Needham said that many of the issues could be resolved by determining whether Gray was distinguishable from the case at hand. She relevantly said:

“[48] The crucial paragraph of Gray, however, is paragraph [112]. In that paragraph, McColl JA says:-

“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”.

...

[50] ... [I]t is clear that McColl JA and the other members of the Court of Appeal considered that the powers of the Tribunal relating to the provision of evidence, including those under s 58, were proceedings within the process of determination of an application for review. This is clear from the context and effect of s 58, as well as its location in a section entitled “Applications for review”.

[51] Having found that Gray is not relevantly distinguishable from the current factual circumstances, it appears to me to be clear that the application for leave to appeal should be refused on the basis that there is not sufficient doubt attending the decision to require reconsideration by an Appeal Panel.

[52] The submission of the respondent, adopting the words of her Honour in the Tribunal below, as to the purpose and intent of the legislation, as well as the expressed interference with procedural fairness, is a powerful one in the terms of s 29(3). While such sections must be interpreted strictly so that their impact does not extend beyond that which was intended, it seems to me that in this case, where I am bound by Gray to find that the determination of the application for review has commenced, there are no prospects of success for the appellant’s interpretation of s 29(3).”

The decision in Gray

27 Mr Gray applied for a security licence under the SIA. The delegate of the Commissioner was satisfied that Mr Gray was not a fit and proper person to hold a security licence and that the grant of it would be contrary to the public interest. The application was refused. The Notification for Refusal gave reasons for the refusal purportedly pursuant to s 49 and s 53(2)(d)(ii) ADTA. The document set out the substance of s 15(1)(a) SIA (refusal on the fit and proper person ground), s 15(3) (refusal on the public interest ground, s 15(6) and s 15(7) and then stated:

“... As a result of the operation of the legislative requirement described above, I have refused to grant your application.”

28 After an internal review was unsuccessful Mr Gray applied to the Tribunal to review the decision to refuse his application. The Commissioner then abandoned his reliance on the public interest ground for refusing the application. Mr Gray made application that the Commissioner provide him with particulars of alleged past conduct that was identified as the reason for the refusal. The Tribunal directed the provision of the particulars requested relying on the obligations under s 73 ADTA to apply the rules of natural justice. The Tribunal held that s 29(3) SIA should not be construed in such a way that it circumvented the appeals process or hindered the Tribunal in the exercise of its review functions. Because s 73 required the observance of the rules of natural justice there was no unequivocal expression by Parliament in s 29(3) to exclude the rules of natural justice operating.

29 The essence of the Court of Appeal’s decision is to be found in the following paragraphs:

“[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.

The effect of the enactment of s 29(3) on the ADT Act

[107] The Judicial Member and Malpass AsJ reached the contrary conclusion, in part because of the procedural fairness s 73 of the ADT Act obliged the Tribunal to exercise. In my view, in so doing they misapprehended the effect the enactment of s 29(3) had on the ADT Act.

[108] It is apparent from the legislative history that the enactment of s 29(3) post-dated the enactment of the ADT Act.

[109] Later statutory provisions may impliedly repeal earlier statutory provisions or earlier statutory provisions may be excluded from operation where they would operate inconsistently with later statutory provisions in their application to particular cases: Goodwin v Phillips [1908] HCA 55; (1908) 7 CLR 1 (at 7) per Griffith CJ. That doctrine “requires that actual contrariety be clearly apparent and that the later of the two provisions be not capable of sensible operation if the earlier provision still stands”: Minister for Immigration and Multicultural and Indigenous Affairs v Nystrom [2006] HCA 50; (2006) 228 CLR 566 (at [48]) per Gummow and Hayne JJ; see also Gleeson CJ (at [2]).

[110] While “the legislature may, by necessary implication, manifest an intention” that a later statutory regime should apply to the exclusion of the first, “partial repeal of an earlier statute by a later statute will only be inferred on ‘very strong grounds’ ”: Ferdinands v Commissioner for Public Employment [2006] HCA 5; (2006) 225 CLR 130 (at [4]) per Gleeson CJ referring with approval to Saraswati v R [1991] HCA 21; (1991) 172 CLR 1 (at 17) per Gaudron J. Gummow and Hayne JJ (at [18]) also referred to the “general presumption that the legislature intended that both provisions should operate”: Saraswati (at 17) per Gaudron J. Their Honours added that “deciding whether there is such inconsistency, (‘contrariety’ or ‘repugnancy’) that the two cannot stand or live together (or cannot be ‘reconciled’) requires the construction of, and close attention to, the particular provisions in question”, a topic they addressed further (at [47] – [49]) in terms to which it is unnecessary to refer.

[111] I have set out the provisions of the legislative schemes established by the SI Act and the ADT Act. Both the Judicial Member (at [36] – [38]) and Malpass AsJ (at [20])-[21]) were of the view that particulars could be ordered to give effect to the Tribunal’s statutory obligations under s 73. In my view, however, 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”: see the Second Reading Speech to Security Industry Amendment Bill 2005; cf Malpass AsJ (at [30]), subject, of course, to the appellant’s obligation to satisfy the procedural preconditions for a successful s 29(3) claim.” (emphasis added)

The appeal to this Court

30 The appeal comes to this Court pursuant to s 119 ADTA but because the decision of the Appeal Panel of the Tribunal was an interlocutory decision leave is required under sub-s (1A). In any event, the appeal can only be on a question of law (sub-s (1)).

31 Section 120 ADTA provides:

“(1) The Supreme Court is to hear and 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 Supreme Court on appeal include (but are not limited to):

(a) an order affirming or setting aside the decision of the Appeal Panel, and

(b) an order remitting the case to be heard and decided again by the Appeal Panel (either with or without the hearing of further evidence) in accordance with the directions of the Supreme Court.”

32 The appeal was originally framed in the Summons and the appeal grounds identified 4 grounds of appeal. They can be summarised as follows:

(1) Contrary to the Appeal Panel’s determination Gray was distinguishable;

(2) The reasons of Deputy President Hennessy were attended with sufficient doubt because the Tribunal should have distinguished between the Commissioner complying with a pre-existing statutory duty to disclose information and the situation where the Tribunal exercising its discretion directs particulars to be provided;

(3) The Tribunal provided no or inadequate reasons for not drawing the distinction referred to in (2) above and in adopting the interpretation it did of s 29(3) SIA contrary to the rule of construction articulated by the High Court in Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355;

(4) The Appeal Panel erred by asserting that the “other main point argued by the Appellant” concerning the enlivening of s 29(3) SIA was in fact the main point and the Appeal Panel failed to consider the Appellant’s arguments on the main point which was the distinction in (2) above, so that the Appellant was not given a genuine hearing.

33 At the outset of the hearing before me AVS sought to file and move on a Notice of Motion seeking leave to file an Amended Summons which, in substance, claimed as an alternative to the orders sought on the appeal, orders in the nature of mandamus that the Commissioner provide to AVS pursuant to s 49(2) ADTA a written statement of reasons and/or that the Commissioner lodge pursuant to s 58(1)(a) ADTA a statement of reasons.

34 This application was opposed by the Commissioner on the basis that he was not in a position to meet the alternative case where mandamus was sought. As matters transpired the hearing of the appeal did not, as expected, conclude in 1 day. By the time the matter resumed some 3 weeks later the Commissioner was in a position to meet the alternative case and full argument proceeded on the Amended Notice of Appeal.

35 The difficulty raised by the issue in the present case results from the fact that when Parliament amended s 29 by adding sub-s (3) in 2005 it did not similarly amend s 15(7). Section 29(3) makes it tolerably clear that the Tribunal is to ensure that it does not disclose the existence or content of any criminal intelligence on a review of any decision to refuse to grant a licence or to revoke a licence. On the other hand, s 15(7) on its face exempts the Commissioner from his obligation to give reasons where those reasons would disclose the existence or content of any criminal intelligence only when the decision is one not to grant a licence.

36 The issue becomes, therefore, whether the absence in s 15(7) of any reference to the revocation of a licence produces the result in the present case that the Commissioner is obliged to give the reasons that ss 49 and 58 ADTA require.

37 AVS submitted that the obligation to provide reasons on the Commissioner’s part was an obligation imposed by the legislature under ss 49 and 58 ADTA. In that regard, Gray is distinguishable because there was no pre-existing obligation in Gray to disclose anything. It was a matter of Mr Gray invoking a purely a discretionary power of the Tribunal to have particulars ordered. Because there is a pre-existing obligation it is not the Tribunal which is doing the disclosing under s 29(3) but the Commissioner and he obtains no right from s 15(7) not to comply with ss 49 or 58.

38 AVS further submitted that under s 52(1) and s 58(2) the Tribunal did not have a discretion not to make the orders and directions provided for in those provisions despite the use of the word “may” in each provision. This is because there was already an obligation in the legislation for the provision of reasons to an interested person or an applicant for review before the Tribunal. In this regard AVS relies on what was said in Finance Facilities v Federal Commissioner of Taxation [1971] HCA 12; (1971) 127 CLR 106 at 134.

39 AVS further submitted that s 29(3) was a statutory restriction on what the Tribunal was empowered to direct. It could not be extrapolated from that that it provided an exemption from a duty imposed on someone in the Commissioner’s position to perform an obligation wholly independent of the Tribunal’s directions. AVS complained that this was the main point that the Appeal Panel did not consider.

40 AVS submitted that the statement of reasons ought to have been lodged pursuant to s 58(1)(a) and nothing in s 29(3) could be used to justify the failure of the Commissioner to comply with that obligation. Since those reasons ought to have been lodged and the obligation was independent of an order of the Tribunal, the Tribunal should have made an order under s 58(2) as sought by AVS. The power in s 58(2) is simply a power to direct compliance with a pre-existing statutory duty. Therefore, it cannot fall foul of s 29(3) because the Tribunal, by ordering compliance with s 58(2) is not itself disclosing anything.

41 That construction of s 58(2) is said to be supported by the power under s 52(1). Section 29(3) cannot apply to an order under s 52(1) because a Tribunal that makes an order under s 52(1) is not engaged in determining an application for a review of any decision. It is simply making an order to enforce a pre-existing statutory obligation, namely, the obligation to provide reasons under s 49. It is not necessary that there be an application for a review of the decision at the time an order is sought under s 52(1). Accordingly, if s 29(3) does not apply to an order under s 52(1) it similarly cannot apply to one under s 58(1)(a).

42 AVS relies in this regard on the principle from Project Blue Sky at [70] that a legislative instrument must be construed on the prima facie basis that its provisions are intended to give effect to harmonious goals. That picked up what Cooper CJ had said in Australian Alliance Assurance Co Ltd v Attorney-General (QLD) [1916] St R Qd 135 at 161 that it was the Court’s duty to give the words of the statute the construction “that produces the greatest harmony and the least inconsistency”.

43 AVS submits that Gray is to be distinguished because Gray was a case concerned with applying for a new licence and not with a case of the revocation of a licence where s 15(7) has no application.

44 Because of the procedural history of the matter I will consider separately the appeal under s 119 ADTA and the orders in the nature of mandamus.

(1) The appeal

45 In my opinion, Deputy President Needham made no error in coming to the view that the appeal was not attended with sufficient doubt to require consideration by the Appeal Panel for the following reasons.

46 The Deputy President was correct in taking the view that Gray was not relevantly distinguishable in the present case. The 2 points of distinction between the present case and Gray are that:

(a) the present case concerns the revocation of a licence whereas Gray concerned an application for a new licence, and

(b) Gray concerned discretionary powers of the Tribunal to order particulars under s 73 whereas the present case concerned an application for a direction by the Tribunal under s 58 for the Commissioner to comply with a pre-existing statutory duty.

47 Neither of those matters seems to me to be significant in a determination of whether the reasoning in Gray should apply to the present case. This is because the key legislative provision is s 29(3) SIA. That is the key provision because AVS invokes the Tribunal’s powers to make the orders that it seeks. Once it does that and once it is accepted that the application under s 58 ADTA brings the matter within the meaning of the phrase “in determining an application for a review of any decision” in s 29(3) the restriction on the Tribunal’s powers contained in s 29(3) operate to effect an implied repeal of s 58(2) ADTA in the same way as it was held in Gray they effected a repeal of the powers contained in s 73.

48 Whether or not the order under s 58(2) is simply an order to comply with a pre-existing legislative command or whether it involves a discretionary of the Tribunal is not to the point. Section 29(3) prevents the Tribunal from disclosing the existence or content of any criminal intelligence. That sub-section does not distinguish between different sources or bases of the Tribunal’s powers to make orders. It is enough that an applicant invokes the assistance of the Tribunal in one form or another to obtain either particulars (in Gray’s case) or reasons which are required to be provided under the ADTA (as in the present case) for s 29(3) to operate on the Tribunal’s decision.

49 McColl JA (with whom the other members of the Court of Appeal agreed) made specific reference to s 29(3)’s operation on s 58(5) at [106] and [111] and there is nothing in s 58(2) which would suggest that her views in relation to s 58(5), or for that matter s 73, did not equally apply to s 58(2).

50 In that way it can be seen that the other point of distinction of Gray (revocation of licence versus application for new licence) is an irrelevant distinction because s 29(3) expressly operates equally on either situation. Section 15(7) SIA is simply not to the point when one considers what AVS sought in the present case. Even if one accepts that the Commissioner had no right from s 15(7) not to provide reasons based on criminal intelligence because this was an application to revoke a licence, the invocation of the Tribunal’s powers to compel compliance with s 58 bring into play the provisions of s 29(3).

51 It cannot make any difference whether the word “may” in s 58(2) means “must” or “may” in the discretionary sense. If the Tribunal must make an order that would still be an order which would result in a contravention of s 29(3) and, therefore, cannot be made.

52 I do not think it is an answer to this conclusion about s 29(3) and its effect on s 58(2) to invoke the similarity of the provision contained in s 52(1) nor to point to the anomaly that s 29(3) does not impact on the obligation under s 49 ADTA. AVS says in that regards that a licensee who does not seek a review of the Commissioner’s decision to revoke is in a better position than one who does because the Commissioner is not excused under s 15(7) from providing a s 49 statement of reasons. AVS says that an applicant in its position could apply to the Tribunal under s 52(1) or (2) ADTA and that s 29(3) would not operate to prevent the Tribunal making such an order because the Tribunal would not be “determining an application for a review of any decision” of the Commissioner.

53 In this regard AVS draws attention to the principle of harmonious construction referred to in Project Blue Sky. I accept that s 49 and an application in respect of it under s 52 is unaffected by s 29(3) (unless s 15(7) is read as including a licensee whose licence is being revoked), but that is not a sufficient reason to read down the effect that s 29(3) has on s 58. That may have been a stronger consideration prior to the Court of Appeal’s decision in Gray. However, in the light of my conclusion that the reasoning in Gray governs the position in the present case, and because in any event s 29(3) is couched widely and applies to existing licensees whose licence is revoked, the Project Blue Sky principle cannot operate here. The anomaly remains simply because of the failure of the legislature to amend s 15(7) to include existing licensees.

54 AVS draws particular attention to what is said in Gray at [111] that no argument was addressed to the interaction of s 29(3) and other provisions of the ADTA and it was unnecessary to reach a conclusion in relation to them. There are, I think, are few answers to that submission. First, McColl JA expressed in the immediately preceding sentence the view that the same conclusion about s 29(3)’s impact may apply to other provisions which she gave as an example s 58(5). Secondly, at [106] she expressly referred to the fact that the Applicant was denied access to materials which would otherwise be made available pursuant to s 58(5). Thirdly, if s 29(3) impliedly repeals s 73 it is difficult to see why it would not impliedly repeal any of the other provisions of the ADTA which would be otherwise inconsistent with it. Those provisions would have to be any that would otherwise require the Tribunal itself or by others to disclose the existence or content of any criminal intelligence where there is an application for a review of a decision to refuse to grant or to revoke a licence.

55 The principle that an existing licence holder is to be viewed differently from a new applicant (In Re Holden [1957] TASStRp 1; [1957] Tas SR 16 at 17-18) can be accepted but where s 29(3) clearly aligns those 2 classes of persons, there does not seem to me to be any further room for the principle to operate as a matter of construction.

56 Even if it is accepted that s 15(7) was the starting point for the Court of Appeal in Gray (see para [103]), the reasoning about s 29(3)’s effect is not dependent on that starting point. That is because (in the words of para [105]) the Commissioner has the opportunity to make a s 29(3) non-disclosure claim where there is either an applicant for a licence seeking review or an existing licensee seeking review where its licence has been revoked. As McColl JA makes clear (in para [106]) once the non-disclosure claim is established s 29(3) operates on s 58(5) since that is the section that provides for disclosure to the applicant in the proceedings. It is inevitable that the same conclusion must be reached in relation to s 58(2) because that section also provides for disclosure whether the Tribunal is obliged to do it (as AVS maintains) or it has a discretion to do it as the word “may” would suggest, and as the Commissioner argues.

57 In my opinion, not only was Deputy President Needham’s conclusion that the appeal was not attended with sufficient doubt correct, but her conclusion that Gray was indistinguishable was also correct. The appeal, therefore, fails.

(2) Mandamus

(a) Is the duty established?

58 AVS in its Amended Summons seeks 2 orders in the form of mandamus as follows:

“(a) that the first defendant do provide to the plaintiffs pursuant to s 49(2) of the Administrative Decisions Tribunal Act 1997, a written statement of the reasons for the revocation of their security licences by notice dated 15 July 2009, setting out in relation to that revocation the matters referred to in s 49(3) of that Act; and/or

(b) that the first defendant do lodge with the Administrative Decisions Tribunal, pursuant to s 58(1)(a) of the Administrative Decisions Tribunal Act 1997, a statement of reasons setting out in relation to the decision that is the subject of Administrative Decisions Tribunal proceedings No 93202, the matters referred to in section 49(3) of that Act.”

AVS seeks further that the Tribunal proceedings be stayed until the First Defendant has complied with the Orders in respect of which mandamus is sought.

59 No doubt the 2^nd order was sought as a precaution because it had been held by the Tribunal in the judgment of Deputy President Hennessy that any request under s 49 for a Statement of Reasons is overtaken by the obligation under s 58(1)(a) where there is an application for review (see para [9]). No appeal was taken against that determination.

60 AVS submits that the duty under s 49 is a duty in very similar terms to that which is found in s 501G of the Migration Act 1958 and which the High Court in Re Minister for Immigration and Multicultural and Indigenous Affairs, Ex Parte Palme [2003] HCA 56; 216 CLR 212 held was susceptible to enforcement by an order for mandamus.

61 Section 501G(1) relevantly provides that if a decision was made to cancel a visa under s 501(2):

“the Minister must give the person a written notice that:

(c) sets out the decision; and

(d) specifies the provision under which the decision was made and sets out the effect of that provision; and

(e) sets out the reasons (other than non-disclosable information) for the decision.”

62 The joint judgment of Gleeson CJ, Gummow and Hayden JJ said at [33] that the parties correctly accepted that s 501G imposed upon the Minister a duty or obligation which was susceptible to enforcement by order for mandamus. It may be accepted that the obligation set out in s 49 is relevantly similar and is, prima facie, susceptible to an order for mandamus.

63 It must first be determined, however, whether because AVS sought to review the Commissioner’s decision, the Commissioner’s obligation under s 49 has been superseded by obligations (whatever they are) under s 58.

64 In my opinion s 49 has been superseded by the Commissioner’s obligations under s 58. In her reasons for decision of 21 August 2009 Deputy President Hennessy held (at [9]) that any request under s 49 for a statement of reasons is overtaken by the administrator’s obligation to provide a statement of reasons under s 58(1)(a). She held further that since the Commissioner had purported to provide a statement of reasons in accordance with s 58(1)(a) there was no utility in AVS requesting a statement of reasons under s 52 or in the Tribunal directing that such a statement be provided pursuant to the provision.

65 AVS did not in its Notice of Appeal to the Appeal Panel challenge that determination. Since it did not do so, as a matter of discretion I would decline to make an order in the nature of mandamus even if I was otherwise persuaded that the Commissioner had a continuing duty under s 49. However, in my opinion Deputy President Hennessy was correct. On a proper construction of s 58(1)(a) the obligation to provide reasons under s 49 is superseded. That is because s 58(1)(a) provides that where an application for review is made either a copy of any statement of reasons given under s 49 must be lodged with the Tribunal or if there is no such statement “a statement of reasons setting out the matters referred to in s 49(3)”. Since in the alternative case there is a fresh obligation to provide reasons there can be no point at all in the Commissioner’s continuing to have an earlier, independent but identical duty under s 49 to provide the same reasons. This view is strengthened by sub-s (2) which enables the Tribunal to direct that a copy of the reasons lodged under sub-s (1)(a) be given to the Applicant but does not mention reasons under s 49.

66 In my opinion, therefore, the Commissioner was under no continuing obligation to provide reasons under s 49. Accordingly, there is no duty in that regard to which mandamus will go.

67 The next question is whether an order in the nature of mandamus should be made requiring the Commissioner to comply with his obligations under s 58(1)(a).

68 In the first instance, the duty is an identical duty to that imposed by s 49 in terms of the material that is to be provided, that is, a statement of reasons setting out the matters referred to in s 49(3). The only relevant distinction is that the obligation under s 49 was to provide the statement of reasons to the applicant whereas under s 58(1)(a) it is to be provided to the Tribunal. Given that there is a procedure in s 58(2) and also in s 58(5) for an applicant to obtain a copy of such reasons it seems to me that the duty on the Commissioner is a duty susceptible to enforcement by order for mandamus at the behest of a person in AVS’s position.

69 The issue then becomes whether the Commissioner has any right not to provide those reasons. It is at this point that s 15(7) SIA becomes relevant. Although the Court of Appeal in Gray appears to have taken the view that s 29(3) would act to repeal s 58(5) ADTA 2 different factors operated. The first was that the Commissioner was entitled under s 15(7) not to disclose the criminal information because Gray was an applicant for a licence and not an existing licensee. Secondly, the issue arose in Gray as part of the determination of an application for a review of a decision (s 29(3) SIA).

70 In the present case AVS is an existing licensee. Section 15(7) exempts the Commissioner from an obligation to given reasons that would disclose the existence or contents of criminal intelligence where he is otherwise giving reasons “for not granting a licence”. Unless those words are construed as including a person in the position of AVS, an existing licensee whose licence has been revoked, the Commissioner has no exemption.

71 The Commissioner argues that because of the provisions of s 26(1A) SIA one should construe s 15(7) as applying to an existing licensee whose licence is revoked. This argument is partly based on the argument put forward by AVS that the effect of s 26(1A) is that there are 2 sorts of applicants for the purpose of s 15. There are applicants for a new licence and there are persons (who were described as notional applicants) who were existing licensees. They were described as notional applicants because s 26(1A) requires at least part of s 15 to be imported into s 26 because of the words “if the licensee were applying for a new licence, the application would be required by this Act to be refused”. Section 15(1) sets out the situations where the Commissioner must refuse to grant an application for a new licence and the first such situation is that the applicant is not a fit and proper person. That is the one remaining basis upon which the Commissioner seeks to revoke the licences held by AVS.

72 That has the effect of making s 15(6) directly relevant to the revocation of a licence on the grounds that a person is not fit and proper. In that way it is argued that the word “applicant” in sub-s (6) must be read as including a notional applicant who is really an existing licensee.

73 The Commissioner argues that s 15(7) cannot be understood as referring to the giving of reasons to anyone other than an “applicant” and that, by virtue of s 26(1A), must include a notional applicant.

74 The difficulty with this argument appears to me to lie in what the legislature did in making the various amendments to the Security Industry Act. At the same time as it inserted s 26(1A) it inserted s 15(6) and (7). If the legislature had intended that sub-s (7) was to apply to an existing licensee it could have added after the word “granting” the words “or revoking”. Given that s 26(1A) was inserted in 2002 to align the position of revoking a licence with the application for a new licence in a situation where the Act made it mandatory to refuse a new licence, one might have expected s 15(7) which was also inserted at the same time, to have made reference to a decision to revoke a licence. Moreover, Parliament had the further opportunity in 2005, when it made express provision for non-disclosure by the Tribunal in cases of revocation of a licence, to amend s 15(7) to express it in similar terms to s 29(3).

75 In my opinion, sub-s (7) does not give the Commissioner exemption from providing reasons for the revocation of a licence on the basis that the giving of those reasons would disclose the existence or content of any criminal intelligence report or other criminal information.

76 One starts from the position that as a general principle of construction, where a statute takes away or interferes with common law rights it should be given, if possible, a narrow interpretation. Even taking into account any modification of that principle as discussed in Electrolux Home Products Pty Ltd v Australian Workers’ Union [2004] HCA 40; 221 CLR 309 at [19]- [22] it is going too far to suggest that the enactment of s 26(1A) somehow overcomes the clear choice of language in s 15(7) and its later non-amendment by using the language in s 29(3), to produce the result for which the Commissioner now contends.

77 The application in Gray fell within the opening words of s 29(3) inasmuch as an application for particulars in relation to an application for a review was part of the determination of that process – see at [106].

78 More recently in Commissioner of Police v AVS Group of Companies Pty Ltd [2009] NSWSC 1408 Rothman J held that an application for a stay was still part of the process by which the Tribunal determines an application for a review of the decision to revoke a licence – see at [45].

79 In contrast, what is being sought here is an order in the nature of mandamus to comply with an obligation that the legislature has imposed on the Commissioner under s 58(1)(a). Section 29(3) is not engaged because it is this Court which is asked to make an order for compliance with that duty. Section 29(3) is addressed only to the Tribunal and not to this or any other court.

80 The Commissioner is, therefore, under a duty susceptible to an order in the nature of mandamus pursuant to s 58(1)(a) ADTA to lodge a statement of reasons setting out the matters referred to in s 49(3) with the Tribunal.

(b) Discretionary factors

81 I turn then to consider whether there are discretionary matters that mean such an order should not be made.

82 The Commissioner first submits that because the arguments used in support of an order in the nature of mandamus were abandoned in the appeal application to the Appeal Panel they ought not to be allowed to be put in this Court.

83 In the Notice of Appeal first filed the question of law arising from the Tribunal’s decision was said to be this:

“Whether the operation of s 15(7) of the Security Industry Act 1997 is extended by s 26(1A) and/or s 29(3) of the Security Industry Act 1997, or by any other law to a decision by the Commissioner of Police to revoke a security industry licence, so as partially to exempt the Commissioner of Police from compliance with the duty to provide an adequate statement of reasons for such a decision pursuant to s 49 of the Administrative Decisions Tribunal Act 1997.”

84 Subsequently an amended Notice of Appeal was filed that stated the question of law as being:

“Whether s 15(7), s 26(1A) or s 29(3) of the Security Industry Act 1997 or any other law operates, in respect of a decision to revoke a security licence pursuant to s 26 of the Security Industry Act 1997, partially to exempt the Commissioner of Police from compliance with the statutory duty to provide an adequate statement of reasons for such a decision pursuant to s 49 and/or s 58(1)(a) of the Administrative Decisions Tribunal Act 1997 or otherwise disempowers the Tribunal from directing, or empowers the Tribunal to refrain from directing, full compliance with that duty in accordance with its terms.”

85 When the matter was before Deputy President Needham for argument a Further Amended Notice of Appeal was filed setting out the question of law as set out in para 25 above. The question of law as ultimately formulated omitted references to s 15(7) and s 26(1A).

86 AVS in its written submissions asserted that the transcript of the hearing before the Appeal Panel discloses that it was at the insistence of the Commissioner that all reference to the operation of s 15(7) be deleted from the question of law that went to the Appeal Panel. It is not clear to me, even from a reading of the transcript of proceedings before Deputy President Needham, how the Commissioner was in a position to, or did, insist on a reformulation of the question of law when it was AVS who was the Appellant.

87 Nevertheless, the fact that issues concerning s 26(1A) and s 15(7) were not part of the appeal or were abandoned does not mean that as a matter of discretion an order for mandamus should not be made. It is no secret that the orders in the nature of mandamus have been asked for in the alternative in case the strict appeal is unsuccessful. The reason it may not have been successful was precisely the reason I have found that it will fail, namely, that s 29(3) has a wide reach when a review process is initiated. The width of that has, as noted, been confirmed by Rothman J in Commissioner of Police v AVS.

88 The Commissioner’s argument can only be part of a more general argument that is made that where there are internal review procedures provided by legislation they, ordinarily, should be followed before judicial review is sought. However, that principle may have less weight where what is trying to be achieved can only be done through a judicial review process and not through the internal review process. Once the internal review process was commenced AVS was always going to have to confront the width of s 29(3) as I have held. That section effectively precludes it obtaining full reasons from the Commissioner no matter what internal review process was followed.

89 On the other hand, what may be a legislative oversight in the wording of s 15(7) otherwise entitles AVS to obtain the reasons it seeks but only by an order in the nature of mandamus. To suggest that an internal review process which would inevitably lead to failure should be followed as a discretionary reason for refusing mandamus seems to me to be entirely unjustifiable.

90 However, there seems to me to be a more fundamental reason why as a matter of discretion an order in the nature of mandamus should be refused. Section 58 has 2 points of distinction from s 49. The obligation under s 49 is to provide the reasons to the applicant and s 49 operates at a time prior to an application for review. From the point of view of discretionary factors affecting the granting of mandamus those 2 distinctions are critical.

91 All that s 58(1)(a) requires is that the Commissioner provide the requisite statement of reasons by lodging them with the Tribunal. That would avail AVS nothing. For AVS to obtain a copy of those reasons it needs to make application to the Tribunal either under s 58(2) or s 58(5). Given that AVS has already made application for review of the Commissioner’s decision to revoke the licence and that s 58 is only engaged after such an application is made, any orders that the Tribunal made under s 58(2) or (5) would be “determining an application for a review”, and it would thereby be prevented under s 29(3) from disclosing the existence or content of any criminal intelligence report.

92 An order in the nature of mandamus would not, therefore, have any utility because AVS would never be able to obtain access to the criminal intelligence that formed the basis for any decision of the Commissioner. The Tribunal would not be assisted by any order in the nature of mandamus because it would be able to have access to the material in any event by invoking powers such as those contained in s 75 ADTA as happened in Gray (see at [32]).

93 The result is, therefore, that once an applicant in AVS’s position has sought a review of the decision to revoke its licence, any benefit it might have had prior to that time by virtue of the wording of s 15(7) SIA and its rights to obtain reasons under s 49 is lost. That is because the obligation of the Commissioner to provide reasons ceases to be an obligation to an applicant and becomes an obligation to provide the reasons to the Tribunal. Thereafter, s 29(3) will act to protect the disclosure of those reasons to an applicant.

94 AVS also seeks a declaration in an Amended Summons that neither s 29(3) SIA nor any other provision of that Act operates to exempt the Commissioner or to require the Tribunal to exempt the Commissioner from compliance with s 58(1)(a) ADTA in relation to the Commissioner’s decision to revoke AVS’s licence. AVS submits that such a declaration should be made to give guidance to the Tribunal in the event that the appeal is upheld. Because the appeal is to be dismissed any need for the declaration no longer obtains.

Conclusion

95 I make the following orders:

(1) The appeal is dismissed.

(2) The Amended Summons is otherwise dismissed.

(3) The Plaintiffs are to pay the First Defendant’s costs of the proceedings.

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LAST UPDATED:
18 December 2009