Ainsworth & Anor v Criminal Justice Commission

[1991] HCATrans 158

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4

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Brisbane No Bl of 1991

B e t w e e n -

LEONARD HASTINGS AINSWORTH and

AINSWORTH NOMINEES PTY LIMITED

Appellants

and

CRIMINAL JUSTICE COMMISSION

Respondent

MASON CJ
BRENNAN J
DAWSON J
TOOHEY J

GAUDRON J

Ainsworth(2) 26/6/91

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON WEDNESDAY, 26 JUNE 1991, AT 9.49 AM

(Continued from 25/6/91)

Copyright in the High Court of Australia

MASON CJ: Yes, Mr Keane.

MR KEANE:  Your Honours, before proceeding - to try to pick

up the threads where we left off yesterday - can we

give Your Honours, without comment, the citation to some other authorities in relation to reputation as

an interest sufficient to attract the presumption

of natural justice. Perhaps we might add these

usefully to paragraph l(b) of our outline.

The first is Fisher v Keane,

(1878) 11 Ch D 353, particularly 362 to 363 - it is

case No 2 in our list of authorities, volume 1.

The next is case No 3 in our list of authorities,

volume 1 - Clough v Leahy, (1904-1905) 2 CLR 139,

especially at page 157. The last is Lewis v

Hefter, (1978) 1 WLR 1061, especially at 1078
and 1079 in the judgment of

Lord Justice Geoffrey Lane. That case is No 8 in

our supplementary list of authorities.

Your Honours, the court below dealt with the question of reputation in the judgment of

Mr Justice McPherson at page 220 of the record,

lines 10 to 25, where His Honour said the evidence:

does not show ..... that any such reputation or

goodwill has been placed in jeopardy by the

Report of the Commission ..... If, despite,

their best efforts, the prosecutors have so

far failed to demonstrate any discernible

impact, beyond their bare assertion, on their

existing reputation in Queensland, it can

scarcely be expected that the Commission would

be astute to devise means of protecting it.

Mr Justice Lee made remarks to similar effect at

page 233 of the record in the last line going over

to 234, the first five lines, where he spoke of

the:

business reputation which the prosecutors may

now enjoy in this State has not been shown to

have yet been adversely affected by the report

of the Commission under attack.

Mr Justice Mackenzie dealt with the matter at

page 262, lines 10 and following, where His Honour

said:

Any effect of the report upon the prosecutors' business reputation insofar as it relates to their prospects of carrying on business in the

poker machine industry in Queensland is quite

speculative. In addition the evidence before

us does not establish anything more than a

transient immediate inconvenience to the

Ainsworth(2) 41 26/6/91

prosecutors as a result of the publication of

the report.

We have not referred Your Honours to the

evidence that was there before Their Honours which

His Honour Mr Justice McPherson characterized as

"bare assertion". But may we submit, with respect,

that in approaching the question in that way - that

is to say, ex post facto - the Full Court was, in

our respectful submission, approaching the matter
as if we were seeking damages for defamation rather

than contending that the prospect of harm engages

the requirements of fairness. In that respect, we

submit, it is the potential for harm which is

relevant to the need to act fairly and, in our

respectful submission, that view accords with the

approach of all the members of the court in
Annetts.

Your Honours, we submit further that the court

erred in failing to appreciate that the
publication, on the occasion where it attracted the

immunities that it attracts, was apt and, indeed,

as Sir Max Bingham frankly conceded, was

appreciated as being likely to be detrimental to
reputation and business.

Your Honours, can we mention briefly the decision of Mr Justice Hunt in Bickel v John

Fairfax, (1981) 2 NSWLR 474 at pages 482 to 483.

Your Honours, that is case No 10 in our

supplementary list of authorities, volume 1. In

that case His Honour refers to the earlier

authorities and concludes at pages 482 to 483 that:

" ... the law presumes that some damage will

flow ..... from the mere invasion of the

plaintiff's rights ..... " -

to one's reputation, to one's good name.

Finally, Your Honours, as we said in the

course of exchanges with Your Honours yesterday, we
submit, the court below erred in failing to
appreciate the prospect of further business
dealings is an ordinary incident of our livelihood

to which our client's business reputation is

integral.

Your Honours, if we can summarize what we

endeavoured to say in the course of exchanges

yesterday in relation to business interest, the

court below held that our client's business

interest was a mere hope and not of sufficient

interest to attract a necessity for a fair hearing.

Your Honours will see that in the judgment of

Mr Justice McPherson, at page 216 lines 26 and

Ainsworth(2) 42 26/6/91

following, and in the judgment of

Mr Justice Mackenzie, at page 259 lines 36 and

following.

Your Honours, at the risk of repetition, may we state our submission that the prospects of

dealings in the future, such as the sale of

machines, is an incident of our reputation and our

business and, as we said yesterday, the nature of

that business is such that close regulation is a

fact of life and we have referred Your Honours to

the Gaming Machine Act 1991, in particular

section 6.16.

Your Honours, the third consideration which weighed with the court in denying an implication of

natural justice was the possibility that the

implication of a requirement to act fairly would

cause inconvenience to the discharge of the

Commission in its functions. Mr Justice McPherson,

with whom Mr Justice Lee agreed generally, said at

page 222, lines 13 to 30:

To require that as an inflexible rule the

Commission should, before furnishing its

report in accordance withs. 2.18(1), first

provide those affected by its conclusions or

recommendations with an advance opportunity of

knowing what was going to be said about them

and the information on which it was based, as

well as of making representations to the

Commission on the subject, will certainly tend

to promote delay and may indirectly

circumscribe the debate in Parliament. Having

regard to the range of criminal activities

that the Commission is required to keep under

review, insisting on such a course could be

expected not only to close off useful sources

of information otherwise available to the discharge of its statutory functions and

responsibilities.

Your Honours, we have mentioned that in this case

there could have been no such inconvenience, no

such frustrating of the responsibilities of the

Commission, no circumstances of urgency impelled or

compelled the production of this report without

giving us an opportunity to be heard. We gave

Your Honours the references to the evidence in that regard.

More importantly, Your Honours, as a point of general principle, in our respectful submission, in

so far as the Commission is engaged in functions of

research and investigation of a general nature, we

make no complaint. In so far as it is engaged in

Ainsworth(2) 43 26/6/91

functions of research and investigation of a

confidential nature without a view to publishing a

report, those matters can be kept confidential, see

section 2.19(2).

Your Honours, further, it is at the point of

reporting that fairness, in our respectful

submission, it must be accorded. And,

Your Honours, can we take you to the authorities

which recognize the distinction between the

occasions of private inquiry and information

provision, on the one hand, and public reporting

and condemnation, on the other, and the differing

requirements of fairness appropriate to those

occasions.

Your Honours, the first of those authorities

is Re Pergamon Press, (1971) Ch 388, which is in

volume 1 of our list of authorities. It is in
volume 2 of our list of authorities as No 19 -

page 249 of the volume - and can we give

Your Honours the references by reference to the

page numbers of the report: at page 399, in the

judgment of Lord Denning, Master of the Rolls,

commencing just above the letter F and concluding
on page 400 at the letter F; and in the judgment

of Lord Justice Sachs, at page 405 at the letter D

and going over the page to 406 at the letter B;

and in the judgment of Lord Justice Buckley, at
page 407 commencing just above the letter E, where

His Lordship says:

What disclosure will be necessary for

this purpose must depend upon the

circumstances of the particular case.

He concludes, above the letter F:

Until an inspector has reached a stage at

which he thinks that he will, or, at least,

may have to report adversely on a director or

officer, it will be premature for him to

decide what, if anything, he should do to give
the director or officer a fair chance of

explaining the matter.

Your Honours, the judgment of

Lord Justice Geoffrey Lane in Lewis v Heffer,

(1978) 1 WLR 1061, in the passage we have already

given Your Honours - that is case No 8 in our

supplementary list of authorities. The relevant

passage commences on the left-hand side of page 109

of our supplementary volume just above the

letter G:

So far as the rules of natural justice

are concerned, it is suggested that before the

Ainsworth(2) 44 26/6/91

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NEC suspended the committees and officers they should have been heard, and the fact that they wre not heard was a breach of the rules of

natural justice sufficient to invalidate the

suspension.

I will not read the following passage until just

above the letter H:

In most types of investigation there is in the

early stages a point at which action of some

sort must be taken and must be taken firmly in

order to set the wheels of investigation in

motion. Natural justice will seldom if ever

at that stage demand that the investigator

should act judicially in the sense of having

to hear both sides.	No one's livelihood or
reputation at that stage is in danger.	But

the further the proceedings go and the nearer

they get to the imposition of a penal sanction

or to damaging someone's reputation or to

inflicting financial loss on someone the more

necessary it becomes to act judicially, and

the greater the importance of observing the

maxim audi alteram partem.

Your Honours, the distinction is also

recognized in the judgment in the Privy Council in

Furnell v Whangarei High Schools Board,

(1973) AC 660 and that is in our supplementary list

of authorities - it is case No 6; it commences at

page 73 of the volume. The relevant passage, for

the purpose of pointing up the distinction between

private investigation research and public

condemnation, appears at page 83 of our booklet

which is 681 of the report. The relevant passage

commences just below the letter Bon the left-hand

side of page 83 of the booklet. Just above the

letter B there is a reference to Re H.K. (An

Infant) and then Their Lordships go on:

The case of In re Pergamon Press ..... related

to - a role materially different -

from that of the sub-committee in the present

case. Their function -

that is, to say, the investigators -

was inquisitorial and they could if they

thought fit make findings of fact. They were

under a duty to report to the Board of Trade
and were obliged to send a copy of their
report to the company concerned. In the

result the report might be made public and on

Ainsworth(2) 45 26/6/91

the basis of it proceedings against a director

might be instituted.

Then there is a citation from a passage of

Lord Denning which we have already read, or

referred to. Their Lordships then go on to say:

By comparison the sub-committee in cases such as the present one do not either condemn or

criticise. They merely report in regard to a

complaint -

they report to a board of education -

and if at a later stage there follows a charge

the code -

that is the relevant education Acts that are

applicable in New Zealand -

lays down specifically when and how the

teacher has opportunity to deal with the

charge.

TOOHEY J:  Mr Keane, this aspect of the case depends very

much on the question of construction of

section 3.21 of the Criminal Justice Act, does it

not? If, in fact, what the Commission was engaged

in was an investigation or if what was involved was

a proceeding, then there is a statutory obligation

to act fairly and that might be thought on one view

to be the beginning and end of it.

MR KEANE: Quite, Your Honour.

TOOHEY J: So, all this assumes or, I suppose, it is a sort

of backup position in the event that section 3.21
is held not to be applicable to what the Commission

did in this particular case.

MR KEANE: That is so. That is correct, Your Honour.

Your Honour, we mentioned yesterday, in the course

of the exchanges with the Bench, that we had a

submission that proceedings should not be read in

the narrow way that the Full Court read it but

rather in the broader way which His Honour
Mr Justice McPherson recognized might be available.

That is to say, you might read it as being any of the proceedings of the Commission as one might

speak of the proceedings of a company. We will

come to that submission, Your Honours, with

hopefully no undue delay. We simply wish to deal

with the other matters which the Full Court

considered denied the availability of natural

justice.

Ainsworth(2) 46 26/6/91

MASON CJ:  Mr Keane, you have referred to page 222 where

Mr Justice McPherson deals with the context of the duty to act fairly and also, it seems, with the

possible existence of a common law duty. At the

top of 223 - the bottom of 222 - His Honour relies

on News Corporation for, as it were, whittling down

or paring back what might be thought to arise from

the common law considerations. Does News

Corporation support that point of view?

MR KEANE:  Your Honour, in our submission, not.

MASON CJ: Because, after all, News Corporation recognized

that there was such a duty to accord natural

justice in the circumstances of that case.

MR KEANE:  Yes, indeed, and the court was at pains, in our

respectful submission, to emphasize that the court

was there not concerned - though recognizing the

need to accord natural justice for the purposes of

the Commission's investigation, the court was at

pains to emphasize that the content of natural

justice that might be afforded the party under an

investigation might vary with the use that might be

made of the investigation; the court being at

pains to say that it was no part of the

Commission's function to report. That that is so
is apparent from the judgments in that case. That case is No 6 in our list of authorities, volume 1.

Can we take Your Honours to it: list of

authorities, volume 1, commencing at page 81.

First of all, Your Honours, in the judgment of the Chief Justice at page 312, which is page 89 of

our bundle. On page 312, Your Honours, we refer,

firstly, to the passage at the top of the page

where His Honour refers to the variable content of

the rules of natural justice and there is the

reference to the judgment of Mr Justice Stephen in

Salemi v MacKellar, upon which we rely. We would

read, if Your Honours please, to the end of the

sentence after the reference to Salemi v MacKellar.

In answer to Your Honour the Chief Justice's

question, can we draw Your Honours' attention to

the passage that comences in the next paragraph:

In my opinion the Commission has

misconceived the extent of its functions in
thinking that the powers conferred bys. 16A
of the Companies Act ..... entitle it to publish

a report of the result of its investigations -

and we will not read, but we invite Your Honours'

attention to the balance of that paragraph.

There is, on the next page of the bundle -

that is to say, page 90 of the bundle - reference

Ainsworth(2) 47 26/6/91

by the then Chief Justice to Mahon v Air New

Zealand which, in our respectful submission, has

been recognized in Annetts as one of the cases that

has displaced the approach in Testro v Tait. And

the then Chief Justice concluded his discussion of

Mahon v Air New Zealand, on page 315 of the CLR

report - which is on the right-hand side of page 90

of the bundle - saying, having evidently approved
of the passage in the judgment of the Privy Council
set out immediately before:

These statements will not be applicable to a hearing before the Commission if, as I have

held, it is normally no part of its function

to make any findings or any report and if none

are to be made in the present case. However,

assuming their applicability, the requirement

to which they refer is satisfied by the

procedure which the Commission has suggested,

namely, that if, at the conlusion of the

hearing, the Commission proposes to publish
any matter adverse to or critical of any

person it will afford him or it an opportunity

to be heard and call evidence.

Now, Your Honours, with respect, that passage is

quite inconsistent, in our respectful submission,

with the use which Mr Justice McPherson made of it.

We would refer Your Honours as well to the

passage, that commences in the last sentence at the

bottom of page 315 and concludes at page 316, in

the joint judgment of Your Honour the Chief Justice

and Justices Wilson and Dawson. Can we take you

first of all, please, to page 93 of our bundle,
which is 320 of the CLR report? Can we take you to
the reference to Furnell v Whangarei, a little

earlier than half-way down the page on the

left-hand side. Then, there is the reference to

Salemi v MacKellar which is the passage to which

Sir Harry Gibbs had earlier referred. And if we

can take Your Honours over then to page 325 of the
CLR, which is 95 of the bundle.	Can we take

Your Honours to the sentence which commences at

about point 2; it commences at the end of a line:

But where the purpose of undertaking an

investigation by way of a hearing is to

determine whether the Commission should make

certain applications to the Supreme Court, and

that hearing is conducted in private, the

subsequent publication by the Commission of

the evidence given in that hearing and of the

Commission's views upon it may not be

appropriate. Part VI of the Act, although
dealing in detail with the subject of

hearings, does not expressly authorize the

Ainsworth(2) 48 26/6/91

Commission to publish a report of a hearing.

Certainly, if the hearing is to be followed by

an application to the Court then any prior

publicaiton would seem to be distinctly unwise

if not positively unlawful.

Then, finally, Your Honours, in relation to

this case, may we take Your Honours over the page to the judgment of Your Honour Justice Brennan at

page 326 of the CLR report, page 96 of our bundle,

and could we take Your Honours to the passage in

the second sentence of Your Honour's judgment:

Once it is clear that it is no part of the

Commission's function to publish adverse findings, conclusions or evidence after hearing of the kind proposed in the present case, it is unnecessary to consider what the

rules of natural justice might require if such

publication were one of its functions.

Your Honour reserved consideration of that

question. In our respectful submission, this case

throws up that question for determination and, we

submit, it should be answered affirmatively for

natural justice.

MASON CJ:	Mr Keane, you have not referred to the passage in the joint judgment at 323 to 324 which seems to me
probably the passage which Mr Justice McPherson
relied upon in support of the proposition that he
enunciated at the foot of 322: there is considerable force in the Commission's claim, going
over to the top of the next page.

MR KEANE:  Yes, Your Honour. In relation to that passage,

it is our submission that, consistently with the

authorities, one must look at the particular case

as well as the particular statutory structure. If

one looks at the particular case, one can, with

respect, not identify any way in which the

functions of the Commission - performed as they

were in this case over a period of months from the date on which the Commission agreed to provide its

views - could possibly have been frustrated by

informing our clients of its tentative views and of

what it was minded to report to Parliament and

inviting us to comment on those views and on the

information on which those views were based.

MASON CJ: But the important thing is that in the remainder

of the paragraph, at the top of page 324, the

judgment goes on to recognize, notwithstanding the

force of those considerations, that there will be a

duty to accord natural justice - - -

MR KEANE:  Yes.

Ainsworth(2) 49 26/6/91

MASON CJ: - - - and His Honour seems to not have taken that

into account.

MR KEANE:  No, Your Honours, that would be our submission.

The passage:

it would clearly be a denial of natural

justice if the Commission in the present

hearing received evidence adverse to News

Corporation without providing an opportunity

to News Corporation to be heard.

Your Honours, we adopt, with respect, Your Honour's

observation.

TOOHEY J: Is it part of your case, Mr Keane, that your

clients were entitled to participate in the

investigation or only that once the investigation

had been concluded and it was proposed to report

adversely to them that you are entitled to be

heard?

MR KEANE:  Your Honour, our case is as we set it out in

paragraph l(c) of our outline. We might, with

respect, invite Your Honour to look at that, where

we state that, in our submission, the exercise of
the power was conditioned on those two

considerations.

TOOHEY J: So, it arises, really, at the end of the

investigation and before the report is furnished.

MR KEANE:  Your Honour, consistently, in our respectful

submission, with the views expressed in Lewis v

Heffer and in Whangarei where, before we are

condemned, we are entitled to have the tentative -

hopefully, tentative - adverse views put to us with
the information on which they are based and an

opportunity given to debunk them, if we may.

TOOHEY J: Yes, I understand, thank you.
MR KEANE:	We will not elaborate further, Your Honours, on

our submission in relation to the variable content

of natural justice in our reference to Salemi's

case.

Your Honours, the Full Court considered that the scheme of the Act provided the possibility of overall procedural fairness on the basis that the

Commission's report is only one stage of an

extensive and continuing process culminating in

parliamentary debate which Mr Justice McPherson

said at page 223 line 26 and following -

is calculated to secure procedural fairness to

the prosecutors and others similarly placed.

Ainsworth(2) 26/6/91

Mr Justice Lee made remarks to similar effect at

page 234,lines 5 to 12.

Your Honours, as we have been endeavouring to

submit, this is not a case of private investigation

and research or even indeed, private recommendation

to a possible prosecuting authority where

circumstances of urgency might be apparent. This

is not a case where the Commission makes no

criticism or condemnation. This is a case where

the Commission's function is to report publicly and

with immunity, and it has done that.

BRENNAN J: What is the situation with respect to the

exercise of the power to report if the report is

required urgently and there is no time to call upon

an affected party_ to be heard?

MR KEANE:  Indeed, Your Honour, in this case the situation

was that the report was required as soon as

possible, but there was no particular consideration

that led to it happening earlier than six months

after it had been requested.

BRENNAN J: 

Was there any evidence or finding that related

to the expediency of getting the report out without
giving your client an opportunity either pro or

con?

MR KEANE:  Your Honour, there is some evidence in the

cross-examination of	Sir Max Bingham, and I take
Your Honour to that.	It is at page 174 commencing
at line 20:

We will come to that. I think you agree

with hindsight there would have been time to

call for public submission; is that correct?

And the witness hesitates because he thought -

it would have been a close run thing -

whether there would have been time.	He was not
sure:

Certainly to embark upon any large scale

programme of hearing would have been quite

impractical.

"Could you have called for submissions?" The

answer at just below line 30 is:

Yes, that could have been done.

At line 37:

Ainsworth(2) 51 26/6/91

What was so critical about making it

immediately available to the Speaker?---I was given to understand that it was regarded as a

matter of some urgency of the Parliamentary

Committee, the Committee chaired by

Mr Beattie.

You knew Sir Max - did you not - well before

1 June - that the report was going to be

critical for my clients?---Yes.

But notwithstanding that you knew it was going to be very critical of them you gave them no

opportunity at all ..... to be heard?---That is

so, because that was a function of the

Committee as we had agreed.

At page 175, line 55:

And there was absolutely nothing to stop you well before the delivery of the report to The

Speaker, nothing to stop you from at least

acquainting my client with the substance of

the allegations against him and inviting him

to make submissions in relation to these

matters?---That could have been done but it

seems unnecessary in view of the arrangement

so far as the Committee was concerned.

MASON CJ: What did that refer to - a hearing before the

committee?

MR KEANE:  That refers to an arrangement about which Sir Max

gave evidence which appears at page 172 just below

line 20, Your Honours:

Let me put it again. There was abundant time,

I suggest, within which to invite public

submissions in relation to the subject matter

of the report?---Perhaps if I could answer

your question more fully it would be to say

this: by arrangem~nt between the Chairman of

the Parliamentary Committee and myself, the

Commission was tasked with producing two

reports, this one and the one about

homosexuality, as quickly as possible, with

very, very limited resources indeed, and on
the expectation that the task of the

Commission was to provide that report so that

the Committee could then conduct hearings.

Now, as we said yesterday in answer to questions

posed by Your Honour Mr Justice Toohey, it may well

have been that no one, or no one on the

parliamentary committee side, expected a report of

this specificity and kind to emerge rather than

something dealing with the general concerns about

Ainsworth(2) 52 26/6/91

;I

implementing a policy of legalizing gaming machines

in Queensland.

TOOHEY J: There may be some support for that suggestion,

Mr Keane, on page 174, the last three lines. There

is a reference to producing a paper -

and if that was then thought desirable that

there should be hearings, they would be

conducted by the Committee.

MR KEANE:  Yes, Your Honour, that is the further evidence

that Sir Max Bingham gave about the nature of the

agreement:

My understanding arising from conversations

between myself and Mr Beattie was that we

should produce a paper, and if that was then

thought desirable that there should be

hearings, they would be conducted by the

Committee.

And on the next page he is asked:

You knew that on production of the report it

would be immediately widely disseminated, did

you not?

And Sir Max said he was not surprised that that

would be so, and he knew that that would be under a

cloak of privilege as appears at page 175, line 10.

Your Honours, I should say Your Honours will

appreciate as well that from the evidence of

Sir Max Bingham in his affidavit he was actually

first asked to produce such a report, as a result

of which the Commission determined to do so in

January 1990, the report being produced on 1 June

and tabled the next day. That it was requested and

put in train on 11 January 1990 appears from

page 81, paragraphs 2 and 3, and the following page

at paragraph 4.

BRENNAN J:  I am not sure how you are putting this,

Mr Keane. Is it if the function was going to be

simply that of producing a paper, then there would

not have been any need for hearings, would there,

if there was simply a description of the risks that

were to be apprehended?

MR KEANE: In general terms.

BRENNAN J: Well then, how do you put the argument - as a

dilemma, as it were?

MR KEANE: Well, Your Honour, we put it that while it may

not have been expected - and, in our submission, it

Ainsworth(2) 53 26/6/91

..

could never reasonably have been expected that the

parliamentary committee would resolve matters of

hotly disputed fact; it simply does not have that

function, and the material file shows its members

recognize that it does not and we will take

Your Honours to that later - but for present

purposes we put this on the basis that while it may

not have been intended by the chairman of the

committee that a document of this kind making

findings or drawing conclusions about our conduct

and making adverse recommendations about our

position should be produced, it was what the

Commission produced. Over a period of six months,

having produced it, it was tabled the next day
without any reference to us in circumstances which,

to go back to Your Honour's question earlier, there really is absolutely no basis for thinking in one's

wildest dreams that any function of the Commission could have been frustrated or impeded by giving us an opportunity to be heard.

We put it as an answer to the consideration on

which the Full Court acted, that giving us a hearing in relation to the findings that the

Commission were minded to make, could not possibly have impeded, much less frustrated, their functions

of reporting.

BRENNAN J: Is there any statutory provision which bore upon

the question of the time limited for the report?

MR KEANE:  No, Your Honour.

BRENNAN J: Well then, is it right that it falls within the

statutory function of the Commission to produce a

report of a general kind without reference to

particular desirable or undesirable aspects of an

individual?

MR KEANE:	Your Honour, in our submission it falls within the function of the Commission to produce a report
either of that general kind or indeed, of a more
specific kind. Your Honour, we would submit that
reports of either kind are within the language of
section 2.14(2)(c) and, particularly in relation to
the more general type of report, 2.lS(e) where the
responsibilities of the Commission are said to
include:

researching, generating and reporting on

proposals for reform of the criminal law and the law and practice relating to enforcement

of, or administration of, criminal justice,

including assessment of relevant initiatives

and systems outside the State.

Ainsworth(2) 26/6/91

\

Your Honour, 2.14(2)(c) is apt to deal with any

report with respect to -

any matter that concerns the administration of

criminal justice -

when the Commission thinks it appropriate to do so.

Section 2.14(2)(b) would be similarly

appropriate to afford a basis for either a general or a particular report. It does not apply in this case because there was no evidence of an

instruction from the parliamentary committee to do so. The basis upon which the Commission acted was

that, one infers, having received the request from

the government and having determined to act upon

it, it was then acting pursuant to 2.14(2)(c).

BRENNAN J: Is this the way you put the case: that the

Commission has power to produce a report which will

be published. It may be of either a general kind

or of a kind which is specific as to the character

or reputation of an individual. If the former, there is no need for a hearing. If the latter, then there is?

MR KEANE:  Yes. If the latter, then there is the need to

afford the opportunity.

BRENNAN J: Yes.

MR KEANE:  The reason we put that qualification is we do not

assert there should be a full hearing, simply the

opportunity to be told of the possible findings

adverse and of a chance to answer them.

TOOHEY J:  And it is conceivable that what is proposed to be

furnished in the report contains an error of fact

which could be corrected simply by a letter, and

therefore not require a hearing or even attendance

before the Commission.

MR KEANE:  Your Honour, that is exactly the sort of example

that was mentioned in an exchange that occurred

between members of the parliamentary committee and

one of the people who appeared before it. That is,

in our respectful submission, quite correct. It is

possible it could be corrected by a letter.

Your Honours, may we say briefly in relation to the possibility that the activities of the

parliamentary committee may afford us overall
procedural fairness. Your Honours, it is our

submission that the functions of the parliamentary committee are not to open, review or deal with the

conclusions, findings, however one characterizes

them, of the Commission. In that sense, in our

Ainsworth(2) 55 26/6/91

;,.

respectful submission, the review function of the

parliamentary committee under section 4.8(1) of the procedural fairness.

Your Honours, we rely upon the decision of

this Court in Twist v Randwick Municipal Council.

The proposition is that the availability of an

appeal will not necessarily cure a want of natural

justice below. In our respectful submission, this

case is a fortiori that proposition. As a matter

of the statutory scheme, that type of review is not

the function. Review of those conclusions of fact

is not the function of the parliamentary committee

and, in fact, Your Honours will see, if one reads

the material that our learned friends read by leave

yesterday, that simply has not happened, and is not

apt to happen.

May we refer Your Honours very briefly to

exhibit Min the affidavit to Mr Woodyatt which is
in volume 2 of the material that our learned

friends read by leave yesterday.

BRENNAN J:	Why do you wish to go to this, Mr Keane?
MR KEANE:	Simply to draw Your Honours' attention to the

fact that one of the members of the committee

themselves found difficulty with the notion that

was expressed in the Full Court that the

parliamentary committee might see things right or

to correct perceived wrongs or imbalances in the

CJC hearings or investigations. One of the members

of the committee themselves said they found

difficulty with that proposition.	We submit,
perfectly correctly.	We submit that as a matter of

law it is relevant, in our respectful submission,

to our learned friends' arguments that we are

likely to get some procedural remedy from the

activities of this Commission, because when one

looks at what they have said it is quite apparent

that they are dismayed too at the suggestion that	they might fix up what has happened.
So may we take Your Honours to that passage. That is at page 324 of the second volume. It is
page 60 of that exhibit M. The relevant question
was asked by a Mr Foley. It appears from earlier
in the material that Mr Foley presented general
submissions on the role of the CJC. Mrs Edmond,
one of the members of the committee, says half-way
down the page:

I am somewhat concerned that there seems to be

an acceptance or reliance on the committee, as

it were - and I think this was brought out in

the Full Court decision on Ainsworth - to see

Ainsworth(2)	56	26/6/91
\

things right, to correct perceived wrongs or

imbalances in CJC hearings or investigations.

I must confess I have some difficulty with

that.

Mr Foley seemed to have some difficulty with it

too.

MASON CJ:  Was Mr Foley's role that of assisting the

Commission?

MR KEANE:  No, Your Honour. Mr Foley actually attended and

made a submission as a witness before the

Commission. We rely upon this statement by a

member of the committee which occurred in an

interchange with Mr Foley about his general

submission.

TOOHEY J: But you are in a bit of a difficulty in referring

to that sort of statement, Mr Keane, to advance the

appeal. I can see that it might have some

relevance to Mr Hampson's motion for revocation of

special leave, but that is a different question.

MR KEANE:  Yes, Your Honour.

BRENNAN J: It is a good bit of emotional makeweight anyway,

Mr Keane.

MR KEANE: Well, Your Honour, if we are going to talk about

that we would simply refer Your Honours without

comment to the statement of dismay that fell from

Mr Schwarten, another member of the committee, at

page 22, - 286 of the volume, Your Honour, 22 of

exhibit M - the interchange between Mr Schwarten

and Mr Ainsworth which commences half-way down the

page:

So the fact that you were surprised would be

an understatement, when you obtained a copy of

the report, to find the bucket you copped in

there?

Your Honours, apropos of the special leave

question, while we have - - -

MASON CJ: Yes, I can understand why you did not object to

the reading, Mr Keane.

MR KEANE:  No, Your Honours. And apropos of the special

leave question, can we take Your Honours to another

passage in this document which appears at page 17,

which is 281 of the volume, the passage which our

learned friends read I think with some relish in

relation to their application for the rescission of

special leave, the passage which commences in the

Ainsworth(2) 57 26/6/91

•

statement of the chairman a little earlier than

half-way down, the second last sentence:

Naturally you have explained your case in

terms of your second leg - you have referred

to your reputation - and that's fine.	I am
sure you understand that we are not in a position to be pursuing those police
officers -

these are the police officers about whom

Mr Ainsworth says reliance was pl~ced without

giving him an opportunity to address their

evidence -

in any investigatory sense because we do not

have that power.

Having said that, I might go around the table.

Are there any questions, Mr Gunn?

Mr Gunn says:

Not really. I would like to also study the

submission, and then I believe, Mr Chairman,

there is a High Court decision to come down

and I would like to look at that.

DAWSON J:  What was the precise function of the committee in

this instance?

MR KEANE: 

As best one can glean, one may say that it was at

least intended to be a review of the various
general questions which might arise as to the
desirability of permitting the supply and operation
of gaming machines in Queensland, and of the type

of legal constraints that should be imposed in

legislation to address the possible abuses that
might be identified.

DAWSON J: 

So it really was not a monitoring of the functions of the CJC in this instance?

MR KEANE: 

The answer to Your Honour's question is that is

correct, but Your Honour will look in vain in
exhibit J to Mr Woodyatt's affidavit which are
extracts from the document said by the other side

to be relevant, being the parliamentary committee's

report which was tabled on the gaming issue.
Your Honours will look in vain in that document for

any review of this report of the CJC, and similarly

Your Honours will look in vain at exhibit M for any

review.

DAWSON J: Well, the committee seems to have thought its

function was a review of the discharge of the

functions of the Criminal Justice Commission, or at

Ainsworth(2)	58	26/6/91
\

least the chairman does because that appears from

his comments on page 263. But, in fact, that was

not so. What the committee was doing was not

looking back at what had been done but looking

prospectively to the form of legislation which

would be appropriate.

MR KEANE:  Yes, and indeed, in some of the passage to which

we have taken Your Honours, reflecting some concern

as to the general nature of the manner in which the

CJC, the Commission, conducts itself. But in

relation to the particular report with which it was

dealing it did not touch upon the conclusions, the

corrections of the conclusions that were made, save

to permit Mr Ainsworth to assert his denials of the

accuracy of those conclusions. It itself makes no

decision, and effects to make no decision about the

conclusions and recommendations in the CJC report.

Indeed, as the Chairman of the committee said -

DAWSON J:  So in other words, what you are saying is the

report, despite the deliberations of the committee,

stood.

MR KEANE:  Yes, indeed, and as the chairman of the committee

said, "You understand Mr Ainsworth, we have no

powers to pursue these investigations". The report

of the committee stands, and because it stands,

entirely unaffected by anything that has happened

or is likely to happen or, indeed, one may say

properly might happen under the parliamentary

committee's powers, because that is the case the

report of this body with its most important

statutory functions stands against us.

DAWSON J:  Can I just follow it through, what has happened

now is there legislation in place?

MR KEANE:  Your Honours were told yesterday, and, indeed,

Your Honours were given the evidence, that in

Mr Hall's affidavit the Gaming Machine Act has now

been proclaimed in the law - that is the Gaming

Machine Act 1991 - - -

DAWSON J: It does not exclude the appellant in this case?

MR KEANE: There is no particular retainer provision

directed to him.

DAWSON J: There is a procedure for giving licences?

MR KEANE:  Your Honour, there is a procedure for giving

licences, and as we said yesterday, one of the

considerations that has to be taken into account in

doing that under section 6.16 - - -

DAWSON J: Is the reputation.

Ainsworth(2) 26/6/91

,,

MR KEANE:  - - - is general reputation and character.

DAWSON J: Yes.

MR KEANE:  And as we said yesterday, it is difficult to see

how, while the report of this body stands, the

authority charged with performing those functions

can be expected to perform them and ignore it, or

without, indeed, regarding it.

DAWSON J:	But to complete it, presuming there are hearings or maybe hearings, in order to determine who should
be granted a licence and the answer to what is
contained in the report can be put forward at that
stage.  You say not effectively, but - - -
MR KEANE:	Your Honour, we say not effectively because the relevant criteria in section 6.16 of the Gaming
Machines Act is not earned reputation. It is
general reputation.  How is one known? No doubt,
because of a perceived public interest that
whatever the private truth of matters may be, it is not in the public interest to have people whose
general reputation is unsavory being given these
licences, or being accepted as tenderers.

So, that in our respectful submission, an

investigation as to our general reputation does not

afford us the opportunity to effectively answer the

effect of the report, the statements that are made

in the report, the conclusions that are drawn.

DAWSON J: Exactly.

MR KEANE:  Your Honours, that really is what we wish to

submit in relation to the question of overall

procedural fairness. In relation to the express

provisions of the Act to which Your Honour

Mr Justice Toohey was trying to direct us earlier,

the Full Court held that the Criminal Justice

Commission, when investigating and meeting to

settle the terms of the report and reporting, was

not discharging functions in proceedings which

attracted the obligation imposed by

section 3.21(2)(a). That appears in the judgment

of Mr Justice McPherson at page 211 lines 15 to 27

and in the judgment of Mr Justice Mackenzie at

page 254 lines 10 and following, where His Honour

concluded that the duty under 3.21(2)(a) arose only

on:

occasions when the Commission, or an

organisational unit of the Commission -

was involved in proceedings involving Division 2 of

Part III, and:

Ainsworth(2)	60	26/6/91
\

conducts hearings involving the hearing of

witnesses and the taking of evidence in

circumstances analogous to the sitting of a

tribunal.

And they referred to the headings of the various

parts of the Act, investigations, procedures for

taking evidence, powers to assist the collection

and presentation of evidence, and the term

"proceeding" itself, and having done so preferred a

narrow view of what might be meant by proceedings.

Your Honours, in our respectful submission,

there is good reason why a narrow view should not

be taken, that is, the proposition for which we rely upon the Commissioner of Police v Tanos to

which we referred Your Honours yesterday. But it

is not a proper approach to construction to permit

a party charged with observance of natural justice

in the performance of its functions to avoid that

obligation by discharging its functions in another

manner that does not attract those obligations.

Your Honours, we would also submit, that a

narrow view of the term "proceedings" is really,

with respect, not warranted by the materials upon
which Their Honours relied, particularly, the

division headings and the part headings.

"Proceedings" is a term apt, in our respectful

submission, to encompass the performance of the

functions of the Commission's responsibility when

it so acts as the Commission or as an

organizational unit to do so.

May we draw Your Honours attention, for

example, to section 3.18. Now, Your Honours, under section 14(4) of the Queensland Acts Interpretation

Act, the introductory words at the beginning of the

section are not part of the Act.	We do not rely
upon those introductory words.	We simply draw

Your Honours' attention to the content of

section 3.18 and submit that that provision

concerned with the Commission making findings and

reporting:

on the basis of all evidence -

being authorized, notwithstanding changes in

Constitution, identifies the possibility of making findings and reporting by the Commission as a discharge of one of its functions, which is naturally apt - which is apt as a matter of

ordinary language to be described as proceedings

and, indeed, the term is used in 3.18(b).

Your Honours, similarly, we submit that though

the term "proceedings" is not used in section 3.29,

Ainsworth(2) 61 26/6/91

,

a section not Division 2 of Part III, Your Honours

will see the term "proceedings" is not used in the

operative part of the section. We would submit

that where the Commission, or a person conducting a

misconduct tribunal, is engaged in discharging his

duties so as to attract the relevant immunity, is

engaged in proceedings and as a matter of natural

language may be said that that is so.

And, Your Honours, interestingly, in our

respectful submission, section 2.17, which once

again is not in Part III, much less Division 2 of

Part III, is the provision which authorizes the

conduct of hearings and that, in our respectful

submission, does not reflect the hard and fast

categorization the erection of barriers to the

provision of section 3.17 which says that 3.21 is
to apply to all proceedings of the Commission. The

fact that 2.17 appears in Division 2 rather, in our respectful submission, suggests the obligations to:

act independently, impartially, fairly, and in

the public interest -

apply as well to the Commission conducting hearings

under 2.17 as they do in respect of the Commission

fulfilling some investigative function under

Division 2 of Part III.

The other submission we wish to make in

relation to the express provisions of the Act, 3.21

- the other submission we wish to make to that is

that with the great respect to the Full Court, to

suggest that this report was an exercise in private

research is simply, with respect, a flight from

reality.

BRENNAN J:  Mr Keane, how far does the argument based on

3.29 go? What does one say about the Commission's

in-house policeman who goes out to interview a

witness or take a statement, is he subject to those

immunities or protected by those immunities and is

he obliged therefore to:

act independently, impartially, fairly, and in

a public interest -

and so forth under 3.21?

MR KEANE:  Your Honour, his position is probably dealt with

under 3.30. Section 3.30(l)(a):

an officer of the Commission ..... does not

render -

him -

Ainsworth(2)	62	26/6/91
\

liable to any claim, demand ..... if the act is

done ..... in good faith and without negligence. Section 3.29 appears to be directed more to the

Commission or:

a person constituting a Misconduct Tribunal

engaged -

in that formal sense rather than an officer of the

Commission. Section 3.29 appears to be directed to

the Commission discharging its functions and that,

we submit, is the case here. The report is the

report of the Commission. It is not the report of

Mr Dickie, it is the report of the Commission and

it is signed by the commissioners.

And, Your Honours, finally, as a straw in the

wind, we would submit, that section 2.14(l)(b),
where (b) secondly appears:

In discharging its functions the Commission

shall -

(b) in its report thereon, shall present a

fair view of all submissions and

recommendations made to it -

that rather reflects the appreciation of the

legislature that all sides will be heard. The

Full Court's response to a submission that relied

upon that provision was to say, "Well, there

weren't any submission taken here so it cannot

matter". We rely upon it, simply, to reflect the

intention of the legislature that all sides should

be heard. That the legislature proceeds on the

footing that 2.14(b) cannot be avoided by the

choice, the free unfettered choice of the

Commission.

the matters of relief: certiorari, mandamus and Your Honours, may we then go on to deal with

declarations and the problems posed as the

Full Court thought by issues of parliamentary

privilege? Your Honours, the Full Court held that

a declaration should not be made because it would
not achieve any purpose, it was of no practical use

and would produce no foreseeable consequences.

The first view that it would not achieve any

purpose was that of Mr Justice McPherson at 226,

lines 25 and following; Mr Justice Lee at 236,

lines 2 and following. Your Honours, it is our

submission that a declaration would not lack

utility if the Court concludes that the appellants

have been wrongly dealt with unfairly by the report

- a report, we would submit, is not worthy of the

Ainsworth(2) 63 26/6/91

,.

name - the Court should declare that to be the

position. Such a course was taken by the House of

Lords, Your Honours, in the Chief Constable v

Evans, (1982) 1 WLR 1155. Can we take Your Honours

to that case? It is in our supplementary list of

authorities, it is No 4. It commences at page 49

of the bundle. The first passage we wish to take

Your Honours to is at page 1166 which is at page 55

of the bundle.

Before reading Your Honours that passage we

put the matter in context. This was a case where a
police constable was confronted with the choice of

resignation or dismissal on the basis of a view

formed by the chief constable in circumstances

where the court concluded that the constable had

been denied a fair hearing. The position was the

constable had resigned rather than be dismissed. Some years later he sought reinstatement; it was refused and he sought mandamus to compel

reinstatement. The House of Lords held that to

accede to that claim would not be permissible

because it would involve the court in exercising

the discretion as to employment that was really a

discretion vested in the chief constable.	It went
on, though, to make a declaration as to the unlawfulness of his dismissal.

Now, we take Your Honours, firstly, to the

passage in the judgment in the opinion speech of

Lord Bridge which appears at page 55 of that

bundle, on the left-hand side of the bundle page,

at the letter B:

I am reluctantly driven to the conclusion

that the best service we can render to the

respondent - and indeed this is the least we
should do - is to make clear to the North

Wales police force or indeed to any other police force he may now seek to join that he

emerges from this litigation with his

reputation wholly untarnished, that nothing

has ever been proved against him to show that

he is unlikely to become an efficient and well

conducted constable, but that, on the
contrary, all the formal reports on his work

and training during the period ..... were highly

favourable to him.

The declaration that the House of Lords made

appears in the speech of Lord Brightman at

page 1175, page 59 of our bundle, on the right-hand

side - - -

MASON CJ: But did the declaration have any consequences in

terms of rights and entitlements for the

individual?

Ainsworth(2)	64	26/6/91
\

MR KEANE:  Not beyond achieving the result that Lord Bridge

spoke of of leaving him with his reputation
untarnished, and the position is that there was an

express disavowal of any claim for monetary

compensation.

At page 1175 below the letter D, that is on

the right-hand side of page 59 of our bundle,

Your Honours will see that Lord Brightman concludes

that mandamus is not available but that there

should be a declaration to the effect:

that the chief constable acted unlawfully and
in breach of his duty under regulation 16 in
threatening to dispense with the respondent's

services unless he resigned -

His Lordship said -

That having been established, the respondent

is, in my view, entitled at least to a

declaration to that effect.

He then said:

One must know what are the consequences.

He refers then to the consequences and having

considered the choice of remedies concludes on the

following page:

I feel that the choice of remedy is a

difficult one. It is a matter of discretion.

From the point of view of the respondent who

has been wronged in a matter so vital to his

life, an order of mandamus is the only

satisfactory remedy. I have been much tempted

to suggest to Your Lordships that it would in

the circumstances -

of this case - be a remedy proper to be granted. But it is

unusual, in a case such as the present, for

the court to make an order of mandamus -

for the reasons which we outlined to Your Honours

earlier.

With some reluctance and hesitation, I feel

that the respondent will have to content

himself with the less satisfactory declaration

that I have outlined.

And then Your Honours will see the declaration at the bottom of the page between the letters F and H.

Ainsworth(2) 65 26/6/91

,.

MASON CJ: But the very form of the declaration suggests

that it was not directed only to vindication of

reputation.

MR KEANE:  Well, no, Your Honour. We mentioned earlier that

in fact the police constable had expressly
disclaimed any monetary compensation. That that is

so appears in the judgment of Lord Hailsham at

page 53 of our bundle, commencing on the left-hand

side of our bundle:

Like my noble and learned friend, I find

much more difficulty in deciding the order

which it is appropriate for the House to make

in a case such as the present. In Ridge

v Baldwin, (1964) AC 40, a majority of the

House, in not dissimilar circumstances,
granted a declaration that the decision of the

chief constable was "void."

He then goes on to consider the consequences of

that and in relation to the point we mentioned that
there was no claim for money, on the right-hand
side of page 53 at the letter F:

The respondent has not sought damages, which, in my view, might well have approved

substantial, and, though the appellant stated

to us that he would be prepared to pay

compensation if the appeal went against him on

the merits, even in the face of this, through

his counsel, the respondent firmly stated that

he was not interested in money and simply

wanted "reinstatement" whatever that might

mean.

TOOHEY J:  One of the things it might mean would be

seniority?

MR KEANE:	Re-employment.
TOOHEY J: Yes, but on the basis that he had been unlawfully

dismissed and, therefore, his position should be

viewed as if he continued in service.

MR KEANE:	Yes.
TOOHEY J:	And that may be the sort of thing that is

envisaged by the declaration when it speaks of

rights and remedies, not directly reflected in a

monetary amount but at least bearing upon the

applicant's position in the police force.

MR KEANE:  But it would only matter, Your Honour, if he got

his mandamus to be reinstated, and that was what

the court refused to grant because to do so would

have been to exercise the discretion rather than to

Ainsworth(2)	66	26/6/91
\

pass upon whether the discretion had been properly

exercised. He did not get his mandamus.

BRENNAN J:  But if the discretion were exercised by

reinstating him then the declaration would operate

upon that to restore his seniority.

MR KEANE:  Yes, that is so, with respect, we adopt that.

And, in our respectful submission, there were

simply no prospect of that.

BRENNAN J: But here your argument is that the function of

reporting is, having regard to the terms of the

statute, a power to report and that that power was

not exercised in accordance with the statute by

reason of the absence of natural justice. So your

declaration would be that the Commission had no

power to make the report adverse to the reputation

of your client in the passages to which you have

drawn attention?

MR KEANE:  Yes, and that in so far as it did so it was not a

report of the Commission.

BRENNAN J:	I am not too sure what that means in terms of the operation of the Act on an instrument which
purports to be a report.
MR KEANE:	Your Honour, the tabling of the report in the

Parliament does not make it other than a report of the Commission, any more than the laying on the table of the House of delegated legislation for the requisite period of days before it can become a force in effect, confers upon it an immunity from challenge in the courts for want of power or want

of natural justice. It is, in our respectful

submission, an Act of an authority authorized by

statute to do certain things and just as an

authority authorized to make delegated legislation

gets no immunity or extra power from having its

delegated legislation laid on the table of the

House, neither does this document require any

sacrosanctity - - -

BRENNAN J: But to take your argument to its logical

conclusion, the order by the speaker for

publication of matter defamatory of your client is

actionable because there was no statutory

protection for it.

MR KEANE:  Not the speaker, because the speaker will be

protected by the ordinary protections of officers

of Parliament in the conduct of their affairs - - -

BRENNAN J: That is in the chamber?

MR KEANE:  Yes.

Ainsworth(2) 67 26/6/91

,,

BRENNAN J:  But here there is an exercise of a statutory

power by the speaker to order publication, and on

your argument there was no instrument in respect of

which that power might properly have been exercised

so far as the instrument consists of material

damaging to your reputation?

MR KEANE:  Yes.

BRENNAN J: It seems to me to be a large step to say that the protection which is given to the exercise of

such a statutory power by the speaker is one which

is capable of being avoided by reason of the

absence of natural justice on the part of the

Commission.

MR KEANE:  It is a step that involves the speaker being in

precisely the same position as any other citizen

would be.

BRENNAN J: Precisely.

MR KEANE:  And he may well have good defences to any action

for defamation. The question is simply, where an

authority is authorized to damn or condemn and with
immunity, whether the rules of natural justice
condition its power to do so, and a conclusion that

it is not so permitted to do so may have

consequences that reduce the officials engaged in

that activity to the same position as other

citizens.

TOOHEY J: Is it necessary for your case that the

declaration extend to rendering the report void

which is the language used in the grounds of

appeal?

MR KEANE:  Or invalid. The preferable course, we would

submit, is that it should be quashed, and we asked

originally for certiorari. A difficulty was said

to arise in relation to that because the report was

to grant certiorari would be to infringe the now in the hands of Parliament and it was said that privileges of Parliament. We submit, that the

preferable course would be to grant certiorari to
quash the proceedings of the Commission leading to

the report and to put the Commission in the

position where it should be required to perform its

function correctly by hearing us, then, no doubt,

producing a report and sending that to the

Parliament. That is our primary relief.

TOOHEY J: Yes, I understand that, but would be the position

from your point of view if the Court made a

declaration in the terms sought but stopped short

of the words "so rendering the report void", in

other words, declared that there had been a failure

Ainsworth(2)	68	26/6/91
\.

to accord natural justice to your clients in the

furnishing of the report. Does that leave you any

worse off than if the Court were to declare the

report void?

MR KEANE:  What that would not do, Your Honour, which

certiorari and mandamus would do, would be to
afford us the opportunity to be heard by the body

which has condemned us.

TOOHEY J:  Would it not? You see, it may be one thing to

declare that the Commission had acted contrary to
the provisions of the Act or contrary to the

provisions of natural justice. It is another step

to then go on to say, in the declaration, that that

failure thereby renders the report void, because

that has a number of consequences which is probably

difficult to -

MR KEANE:  Track down.

TOOHEY J: - - - track down, that is right. It may be that

a declaration, in those terms, would require then

the Commission to hear you on those aspects.

MR KEANE:  Your Honour, that may be so and, indeed, on

reflection, one would expect, if the Court declared

that that had occurred, the Commission to take

cognizance of that and act in conformity with that

declaration.

TOOHEY J: Could I just ask you - it is a question but I do

not want you to elaborate, Mr Keane, but the

declaration sought in the ground of appeal which is at pages 282 to 283, seems to accord precisely with

what appears on page 226 in a suggestion made by

Mr Callinan as to what declaration might be made,

except in paragraph 2 which speaks of, in the body

of the judgment:

submission from the builder -

and that is omitted in the ground of appeal. If

nothing turns on it I do not want to pursue it with

you. It reads a bit oddly.

MR KEANE:  It does, indeed, Your Honours. I think it

probably should read "prosecutor".

GAUDRON J:  Or "the public". A section of the Act suggested

it might be submissions from the public, does it

not?

MR KEANE: It does, Your Honour.

TOOHEY J: At any rate, I take it you do not attach any

importance to what appears on page 226?

Ainsworth(2) 69 26/6/91

,

MR KEANE:  No, Your Honour, I am afraid I cannot explain why

it does appear there. Your Honours, as to

certiorari, the Full Court held that even if the

Commission had acted in contravention of the

requirements of natural justice, no relief should

be ordered and, in particular,

Mr Justice McPherson, at page 225 line 6 and

following, took the view that certiorari should not

issue on the footing that the writ commands the
delivery up of proceedings upon pain of punishment

for contempt and a copy of:

The Report is presumably now in the possession

of the Speaker, or ..... the Clerk of

Parliament -

and -

For the Court to order a writ to issue against either the Speaker or the Clerk of Parliament

would be accounted a gross breach of

privilege.

Your Honours, as we submitted, Parliament has not

adopted this report as its own; it remains the Act

of the statutory authority in question. It has

achieved no greater authority than it had as a

report sent to the Parliament just as a piece of

delegated legislation receives no greater authority

or immunity from challenge.

Your Honour, further, this reasoning proceeds

on the assumption that the order will be directed

to the speaker or the chairman of the committee or the premier. The order that is sought does not do

that. As appears from the form of the order which

Mr Justice McPherson read out, the order is

directed to, as indeed it could only be directed to

the Commission and requires it to deliver up the

proceedings so far as they remain in its hands. In

relation to that, it is our submission that,

historically, the purpose of certiorari was to

inform the Crown, sitting in the Court of King's

Bench, of the events involved, it is effective

regardless of whether the proceedings have been

destroyed, or even if they never existed. It is

for the supervisory court to decide what material

should be produced in answer to the writ.

Your Honours, in that regard we refer to

Commissioner of Motor Transport v Kirkpatrick which - - -

BRENNAN J: Before you go to that, so we can appreciate it

better, what do you say is to be quashed. This

notion of quashing by certiorari a finding in a

report is something I find novel. Do you suggest

that some exercise of a statutory power to produce

Ainsworth(2)	70	26/6/91
\

a report should be quashed?	What is it that is
being quashed?

MR KEANE:  What we seek to have quashed is the report in so

far as it refers to us and we seek a mandamus to

compel the Commission to act in accordance with the

law and hear us before reporting adversely to us.

BRENNAN J:  I do not understand a notion of quashing a

report so far as it refers to your client.	What
does that mean?

MR KEANE:	Your Honour, if it was not for the fact that the report also referred to other persons for whom we
have no brief and no interest, we could simply say,
"Quash the report."

BRENNAN J: All of it, every word of it?

MR KEANE:  Yes.

BRENNAN J:	And what, the publication of it, the transmission of it?	How do you quash a piece of
paper or a document?

MR KEANE:  Your Honour, I suppose one could ask the same

question rhetorically, with respect, to any piece

of delegated legislation or any decision - - -

DAWSON J: But that is the point, you see, quashing does not

mean that it ceases to exist, it means that it

ceases to have legal effect but if the thing does not have legal effect any way there is nothing to

quash.

MR KEANE: Quite, Your Honour, and indeed as appears from

the last case in our supplementary volume,

Ex parte Thomas, the court can order a record to

have been deemed to have been brought into

existence and quash it instanter.

DAWSON J: But that still does not answer the question.

There is a report in existence; it has no legal

effect. If you quash it, you are purporting to

quash its legal effect?

MR KEANE:	Yes.
DAWSON J:	You are doing nothing because it does not have

any.

MR KEANE:  It does have this effect, Your Honour: it has

effect as the report of this Commission.

BRENNAN J:  I cannot frame in my own mind the form of a writ

which quashes a report. I can frame the way in

Ainsworth(2) 71 26/6/91

which a quashing of a decision or an exercise of a

power is effected, but not quashing a report.

MR KEANE:  If one looks at the contents and if one concerns

oneself with the contents one is concerned with

what, on their face, are conclusions of fact and

recommendations adverse to our interest. If one

spoke of quashing the legal effect of those

conclusions and recommendations then, in our

respectful submission, the difficulty which

Your Honour adverts to is no longer a difficulty,

because one is directing one's attention to

findings and recommendations.

BRENNAN J: That is different; in other words, you quash the

finding and the recommendation?

MR KEANE:  Yes, Your Honour.

BRENNAN J: That is contained in the report?

MR KEANE:  Contained in the report. To deny them of legal

effect as an exercise of what we submit is the

power of the Commission.

BRENNAN J: That raises another question, does it not, and

that is whether the making of the finding, the

making of a recommendation, is itself an exercise

of a statutory power or whether the only relevant
statutory power is the embodying of a finding or

recommendation made otherwise in a report?

MR KEANE:  Your Honour, our submission in response to that

would be to regard the making of the report, the

embodying of the findings and the recommendations

in the report, entirely for the purpose of

publication - for no other purpose - to seek to

segregate them and see them as different activities

is to draw too fine a distinction because in this

case the power to make findings and report are two

sides of the one coin. They are one integrated

appears to be recognized in section 3.18 where the function, as indeed, in our respectful submission, legislature says:

The Commission may make findings and report.

As we have said, this is not a case where what was

produced was produced by way of internal

information. What was produced was produced for

the purposes of the report that ultimately emerged.

BRENNAN J:  I will not delay you further except to ask, what

are the terms of the writ of certiorari which you

seek?

Ainsworth(2)	72	26/6/91
\

MR KEANE:	Your Honour, to quash the findings and recommendations concerning the prosecutors
contained in the report.

Your Honour, can we conclude our submissions

on that point by drawing the court's attention to
the circumstance that the Court, in

Annetts v Mccann, did not need to consider the

position which would have arisen if the coroner in

that case had proceeded to deliver his report
without staying his hand and without hearing the

relevant parties.

If he had made findings adverse to the

reputation of the deceased we would submit that the

appropriate course for the Court to take would have

been to quash those findings, as we say the Court

did not need to pass upon that question.

We submit that in this case it would be an

affront to justice if powers conditioned on fair

play could be exercised entirely with impunity

because of the gross nature of the want of

fairness.

In Annetts' case the parties applying for the

relevant relief knew the proceedings were on foot
were able to ask for a stay. That stay was granted

by the proper conduct of the coroner. In this

case, because of what we submit was the gross

nature of the want of fairness, we had no notice of

what was going to happen to us. In our respectful

submission, it cannot be the case that the grosser

the affront to natural justice the greater the

immunity afforded by putting the party at fault

beyond the reach of certiorari.

Your Honours, the only other thing we wanted

to mention was that decision in Commissioner for

Motor Transport v Kirkpatrick, the decision on

certiorari, simply to draw Your Honours' attention

without comment to the passage in the judgment of
Mr Justice Priestley at 390 to 392.	Your Honours,

we understand that case is contained in a loose form in the back of the supplementary volume of

Your Honours' authorities. It is (1988) 13 NSWLR

368 at pages 390 to 392.

Those are our submissions, unless Your Honour

has anything further - - -

BRENNAN J:	What do you say about mandamus?
MR KEANE:	Your Honours, we submit that if mandamus goes as

Mr Justice McPherson appreciated, if we have

eliminated the findings and conclusions adverse to

us then that is something we must do to get to

Ainsworth(2) 73 26/6/91

mandamus, and we submit that mandamus should then

go to compel the Commission to afford us the

opportunities, which we have identified in

paragraph l{c) of our outline.

BRENNAN J:  But why? Why should the report not stand shorn

of its findings and recommendations?

MR KEANE:  Because, Your Honour, in our submission, what

should happen is that having embarked upon the

exercise of this function, the Commission should be

compelled to complete it and to complete it

properly involves hearing us and addressing our

position properly, having heard us.

BRENNAN J:  What is the statutory duty of the Commission

that is to be compelled by the writ of mandamus?

MR KEANE:	To report fairly in relation to the matters upon which it reports, or the matters with which it
deals.
BRENNAN J:	On the relief that you have thus far got, you have got a vacuum so far as you are concerned.
Where is the statutory duty to report on you?

MR KEANE:  What Your Honour says is correct. We make the

submission that the appropriate course is that the

Commission, having embarked upon a course which

involves - as it will still do if the findings

against us are quashed - having embarked upon a

course of dealing with the fitness of particular

individuals to be considered, the report that

remains does that. That being the course the

Commission has embarked upon in making its findings
and reporting, it should be compelled to do that
and do it properly.

Your Honours, the only other matter we should mention is that Your Honours will appreciate there

was some question as to whether the whole of what

is Document A in the appeal book - that is the

document that commences at page 2, Document 1 in

the appeal book - the affidavit of Mr Sloan was not

reproduced in the appeal book. We had it. It

appears from that affidavit that the totality of

the document marked A is the document entitled "The

Report on Gaming Machines" issued by the CJC. That

was the evidence before the Full Court, and not

contradicted. Those are our submissions, Your

Honour.

BRENNAN J: Thank you, Mr Keane. Mr Hampson.

MR HAMPSON:  I hand up our outlines, if it please the Court.

TOOHEY J: Yes, Mr Hampson.

Ainsworth(2)	74	26/6/91
\
MR HAMPSON:	Thank you.	The Court will appreciate that the

schedule of facts at the back is really designed to

deal with the ruling of the Full Court rejecting

certain evidence as being inadmissible, that is

all.

Before I actually start on the matter in full,

could I answer a question which His Honour

Mr Justice Dawson asked about the role of the

parliamentary committee at its recent sitting.

It emerges, in our submission, quite clearly

from the affidavit that was read, if one looks at volume 1 of the affidavit at page 7, Mr Woodyatt,

he says that there was a report - this is in

paragraph 6 - in fact he exhibits a part of it with

the letter J:

'Report of the Committee relating to the

Report of the Criminal Justice Commission

entitled "Report on Gaming Machine Concerns and Regulations" dated 3rd September, 1990.

Now that report - - -

TOOHEY J:	I am sorry, Mr Hampson, I am a bit lost.
MR HAMPSON:	It is the volume with the index on it,

Your Honour. This is the volume of the affidavits,

the two volume affidavits. At page 7 of that, that

is down in the bottom right-hand corner, you find

paragraphs 4 and 6 - 6 is the one I was dealing

with - of the affidavit, and in that he exhibits

the letter J, an extract from the report of the -

Committee relating to the Report of the

Criminal Justice Commission entitled "Report

on Gaming Machine Concerns and Regulations"

dated 3rd September 1990,. where the Committee

explains its procedure.

So, it is just that part of the report that they

delivered on that date which set out the procedure.

If you look back at paragraph 4 you will see

that the appellant's original submission to the
parliamentary committee was dated 31st July 1990.
So at the time when the report of the committee

went in they had received his written submission of

31 July 1990.

They had received other materials, of

course, as a result of the public notice and the

like, to which I gave the Court references

yesterday, which had been published and so on, but
they had not had the benefit of his appearance,

even though they had invited him to do so. The

Ainsworth(2) 75 26/6/91

Court will remember that he declined that

invitation until the proceedings were finished.

That is the situation. When one comes to

volume 2 and sees what the chairman, in effect,

does. At page 265:

The Committee commenced at 9.15 am. The chairman declared it open:

The purpose of this hearing is twofold.

First, the committee is conducting the hearing

today and next Friday, 31 May 1991 as part of

its broad task of monitoring and reviewing the

discharge of the functions of the Criminal

Justice Commission. Second, the committee

will be hearing this morning evidence from a

number of persons and organisations who were

adversely named in the Criminal Justice

Commission's "Report on Gaming Machine

Concerns and Regulations". After tabling of this report in June 1990, the committee -

that is, the Commission's report -

invited all persons who were adversely named

in it to appear before the committee to give

oral evidence under privilege and in this

public forum so that they would have an

opportunity to deal with the material

contained in the commission's report. The

persons who are appearing today did not attend

in July last year, for various reasons but

have now accepted another invitation from the

committee to appear here before this

committee.

And he goes on to say that it is in the view of

interest that they should be able to address these

issues and give them the maximum opportunity to

defend themselves under the privilege of

Parliament, and it will be on the same conditions

as last year, as he says there. He goes on:

The committee tabled in Parliament its

report on gaming machines on 1 September

1990 - that is, the committee's report. It

should be noted - and I stress this - that the

committee's recommendations in the report do

not exclude from Queensland any gaming machine

manufacturer. It should also be noted that

all gaming machine submissions were tabled in

Parliament on 27 February 1991.

Now the importance of that is pretty obvious, that

the first report, which had the benefit of the

Ainsworth(2) 76 26/6/91

-

submission by the appellants here, has gone to

Parliament and it did not recommend the exclusion of any operator at all. Secondly, that all the

submissions received were also tabled in Parliament

at a later date, namely 27 February 1991.

The public has therefore had an

opportunity to scrutinize those submissions.

I should point out that all those appearing

today, not just those in relation to the

gaming machine report, have made detailed

written submissions.

This also is important:

All submissions will be taken into

consideration along with today's oral

submissions when the committee formulates its

final report to Parliament. This afternoon

and next Friday we will be taking evidence

from others who have contributed to the

committee's general review of its monitoring

and reviewing role.

Monitoring and reviewing role. There is not yet

evidence of the presentation to Parliament of that

final report and it is part of the committee's role

under the Criminal Justice Act, Part IV, 4.8 it is:

(1) The functions of the Parliamentary

Committee are -

(a) to monitor and review the discharge of the

functions of the Commission as a whole -

and under (c):

to examine the annual report and other reports

of the Commission and report to the

Legislative Assembly on any matter appearing

on that date was obviously a twofold procedure and	So the procedure that they were precisely involved in or arising out of any such report.	it is best understood, obviously, in relation to
what had gone before; the report that they had
already put in and also the pendency of a final
report which, on the material here, has not yet
gone in.

Returning to the outline of submissions, we

have given the Court certain references before as

to the chronology of things that have happened, and

our learned friends have done the same. We would

just start off with the reference to two cases,

really - we do not propose to read them - and that

Ainsworth(2) 77 26/6/91

is what was said in South Australia v O'Shea,

(1987) 163 CLR 378 at 389 and also in

Haoucher v Minister for Immigration and Ethnic

Affairs, (1990) 169 CLR 648, by Justice Dawson at

page 660 and 661 and also at 663; and by

Justice Gaudron at 672 and 676.

They are in the book that we have handed up,

Nos 1 and 12 respectively, and the significance is

that they are concerned with the continuity - if

one may put it - of a multi-stage type of operation

in the process of decision making. It is our

submission here, of course, that no decision was

ever made, really, until the matter got to

Parliament. No decision was made in the form of

legislation and no decision was made on who the

licensed people will be. According to Mr Hall, no

decision has yet been made on that, and that is

going to be made under the legislation under

particular sections of the legislation which I

would like to touch on again at a later point of

time.

We say that, in fact, it is not fanciful; it

is the fact that the Commission, in this particular

instance, acted as a research agency for the
parliamentary committee. The evidence before the

Full Court shows that the original request to the

chairman of the Commission was one from the deputy
premier - a rather informal sort of sub-Cabinet
meeting, he was told, or Cabinet committee - that
"Could you give us some assistance because it is

now our policy to introduce gaming machines, poker

machines?" and that he said, "Yes", he would

endeavour to do so, see what could be done. At that time, he says that the staff was very

limited. In fact, they had one - not all the

commissioners were appointed and the parliamentary
committee itself had not been appointed at that

time and they had one person who was able to

undertake the work of researching this. At a later

point of time, by about March, he had discussions

with the chairman of the parliamentary committee

and he said that then there was this - he puts it

as an agreement - an arrangement made that, in the

preparation of the two reports - and it is

important to remember that he was researching two

reports: one on homosexuality as well as this one

on the gaming machine - would be presented to the

speaker and to the parliamentary committee for

their use because they proposed to have public

hearings in relation to each of those particular

topics.

One has only to look at the report, which is

in evidence, and you will see that it is a document

Ainsworth(2) 78 26/6/91

which is sourced. My learned friend talks about it

making findings and things of this particular kind,

but when one looks at the document one sees that the continual use of numbers - I have one of the

pages where he made an objection to, that was page

43, at the bottom of that my learned friend said:

Most of the examples of these practices spelt out below relate to either the Bally or

Ainsworth groups of companies.

This is at page 26 of the appeal book at the foot

of that page:

Apart from illustrating what can go on in this

industry examples of Bally transgressions are

most likely to be only of historical interest.

The Ainsworth group might suffer some

disproportionate attention because it is long

established and well studied. However there

is also real cause for concern in view of the

Ainsworth group's long and often questionable lobbying for the introduction of poker

machines into this State.

Then are the facts, as it were - the things that

are set out as facts - and you will see in relation to each of them there is a quotation or a reference

number: 70. There is material taken from the

Moffitt Commission, and that is 70.	The next one
is 72.	New South Wales Ombudsman, Mr Masterman QC,

has made some findings and they are 71, in fact,

and 72; there are two sources there.

They also conducted campaigns to have poker

machines introduced into Queensland. A proposal

for that and so forth was there, and that is 73.

Elsewhere in the report the author points out that

evidence of this kind was given to what was called

the commission of inquiry in the legislation,

otherwise known as the Fitzgerald Inquiry; that

they took evidence with relation to that, and it is

important to remember that the Criminal Justice

Commission by statute is the continuation of the

Fitzgerald Inquiry. That again is sourced at 73; the campaign to have them introduced in Queensland,

74.     There it is referred to:

according to evidence before the Commission of

Inquiry -

That is a reference to the Fitzgerald Inquiry, and

the illegal side, 75 and so on.

Now for some reason - I do not know why - when

the report was put into evidence, the man whose

affidavit put it into evidence - his affidavit is

Ainsworth(2) 79 26/6/91

not available - but for some reason there has been

left off the end of the report - the Court will see

that the report ends at page 96 and there are no

footnotes. The footnotes in the report, in fact,

go on from pages 97 to 105 inclusive. Just in case

the Court thought that - I am sorry. I was not in

the Full Court. My learned junior tells me that in the Full Court the full report was before the court

including all the footnotes. What has happened in

this material here, for some reason, there has been

an exclusion of the footnotes.

If one saw those footnotes, of course, if you

had all that, as the Full Court did, and you are
looking at the report in the way that I am

suggesting that one does, it emerges as clear as

crystal that the author has not had any hearings,

he has not called anybody to give evidence or

anything of that kind at all. It is all done on

the basis of written documents that he has looked

at. He traces the history, through these different reports, interstate and so forth.

Indeed, that is one of the things, under the

statute, that the research division has to look at.

One of the things is that they must look at

interstate and other inquiries of that particular

kind to avoid duplication.

It is quite clear, in our submission, that

that is what has been done, and as a result, if one

looks at appendix 1, page 71, that is page 40 of

the appeal book:

In April 1990 the State Department of Administrative Service called for expressions of interest ... Expressions of interest closed on 100590 -

and so on.

This commission has not had the time or	resources to make any more than a brief
initial check of the suitability of these
companies and individuals. The companies and
the results of these initial checks are set out below in the order in which their expressions of interest were received.

And that is when the particular matter is attacked.

So far as Ainsworth is concerned, Ainsworth has

been discussed in the main body of this report.

But Ainsworth is discussed in the main body of this

report in terms of what now Mr Justice Wilcox said

about him, or these other persons who conducted

reports at that time.

Ainsworth(2) 80 26/6/91

TOOHEY J:  Mr Hampson, can I just ask you two questions

about that. The first is, is it possible to say

that there is nothing in the report which purports

to express a view by the compiler of the report, as

opposed to simply drawing the Committee's attention

to what royal commissions or other authorities have

found?

MR HAMPSON: Well, he does say it, Your Honour - - -

TOOHEY J:  I put the recommendation to one side for the

moment.

MR HAMPSON:  I will put the recommendation to one side.

What he says - often he seems to give the balance

of some doubt on occasion - for example - I would

certainly say yes. I am trying to go beyond

Your Honour's question, I am trying to say that in

some cases he reports what has been said by
somebody else and puts in some ameliorating factor

and says, "Well maybe that is a long time ago and

something else might have happened", that type of

thing. But nowhere does he, in fact, say, "Look I

have formed my own opinion from material I have got

that is outside all these documents and things that

I am talking about".

GAUDRON J: Pages 21 and 22 is a little bit closer, is it

not, Mr Hampson? At the very end, which seems to

be the Commission speaking:

Any examination of the evidence leads to

questions about relationships -

et cetera.

MR HAMPSON:  I am sorry, I had the wrong page.

GAUDRON J: Pages 21 and 22 of the appeal book - 30-31.

MR HAMPSON:	There is no evidence of corruption on the part
of NSW detectives in Task Force Two and a
considerable body of evidence to the contrary. But what, with respect, he is talking about

there is, if you go back to what Mr Masterman

found.

BRENNAN J:  I think Her Honour was drawing your attention to

the next passage, Mr Hampson.

MR HAMPSON:  All right. So far as that goes:

Any examination of the evidence leads to
questions about relationship between

Ainsworth, his executives -

Ainsworth(2) 81

and so forth.

It would appear from the evidence that

investigations into the Ainsworth organization

were fully warranted.

GAUDRON J:	And then?
MR HAMPSON:	And then:

This commission is aware of other matters of

complaint in relation to Ainsworth where the
course of investigation has been unusual.

But none of that indicates a primary

investigation by this particular author, with

respect, Your Honour. I do not say at all that

this is written in the clearest prose. It is

written in what is sometimes a rather journalistic

style, or something of that kind. But when one

analyses it it seems quite clear that when he talks

of evidence, what he is talking about are the

sources that he has read.

TOOHEY J:  It is not really the style of the author that is

the subject of complaint, is it?

MR HAMPSON: 

Oh no, I am just saying that when one comes to

interpretation of it, I do not think one could give
it the interpretation perhaps that one might give

to the contributor in a legal journal, or something

of that kind, where someone might be much more

exact.

TOOHEY J: 

I just wanted to get clear, if I could, and I

take it from what you have said that there are

passages in the report in which the compiler
expresses a view, whether it be favourable or

adverse to the applicants.

MR HAMPSON:  Yes, but with respect, I do not know that there

is anyone, any place at. all, where one can clearly

say he has expressed that view as a result of

something he has found out which was not in these

documents that he looked at.

TOOHEY J:  Can I take you to the next question, that if the

report was as you described the product of

research, why does it end up with a recommendation?

MR HAMPSON: All I can say is that one reading these reports

and what had been said - and I have not read in

full what Mr Justice Moffitt said or what any of

the other people have said - but as a result of
reading those reports the person then says, "Well

there has been sufficient bad said by these other

investigating - people have actually heard and seen

Ainsworth(2) 82 26/6/91

them or had police in, have given evidence and

conducted real inquiries into the matter''. There is

enough of that there that he then says, "Look, in

my opinion, this is just my opinion, and it carries

nothing, my opinion, it is really a
recommendation," the researcher writes perhaps,

"they should not be allowed to participate." Or it

may be that the researcher did not write that, we

do not know precisely this. It may be that the

Commission, having read all that added its recommendation to what the researcher had written, which did not, in fact, contain a recommendation.

There is no evidence which shows precisely how that was done.

But in either view that is the only place at

which, we would submit, it is clear that there has

been something new added by the Commission

originally or perhaps the Commission adopting

something that had been put in by the researcher.

BRENNAN J:  Mr Hampson, can I take you to page 22 again and

then to page 3, but on page 22, line 5, is there

anything which would give the reader of this

document any inkling of what the other matters are

that the Commission there says it was aware of?

And on page 3, is there anything which gives the

reader any inkling of what the investigations were

which the Commission says that it conducted?

MR HAMPSON:	Page 3 of the appeal book.
BRENNAN J:	I hear you say that all of this was based on

footnotes, but is there anything which directs the

reader to understand that those phrases are

restricted to what appears in footnotes.

MR HAMPSON: Well, taking care of page 3 first:

The Commission has conducted some

investigations of intending participants in

the gaming industry and recommends that -

well, with respect, that is neutral. It does not

say that we have had public hearings or private

hearings, calling witnesses.

BRENNAN J:  No, it does not say anything as to what the

limits of it are. Why then does the reader

restrict it in the way in which you suggest?

MR HAMPSON: Well, it is not part of the report. That is

the first part about it, I suppose, but the second

part about it, I would have thought, is that you

come into the report and if you read the report as

a whole - with respect, they have conducted

investigation and recommends that. They have

Ainsworth(2) 83 26/6/91

conducted some investigations and recommends that.

Now that can stand on its own legs by saying that

if you open the report, read it and read out

investigations of all the things that these other

people said - these other inquirers and so forth

have said - as a result of that we recommend.

BRENNAN J: Well then, what is the explanation of "other

matters" on page 22?

HAMPSON J: Going then to page 22:

It would appear from the evidence ..... This

commission is aware of other matters of

complaint in relation to Ainsworth where the
course of investigation has been unusual.

Well, it is not set out there in chapter and verse, although I must say I cannot put my finger on it at

the moment, but I had an idea that, in fact, that

matter is returned to at some stage where something

else is mattered. I cannot answer at the moment

Your Honour, but can I put it this way: if, in

fact, that is all that is said, it does not say

anything more I suppose than that the course of

investigation has been unusual with, perhaps,

relation to police or whatever it happens to be.

It does not achieve any great strength just because

it is elliptical, or equivocal by itself. It says

it:

is aware of other matters of complaint in

relation -

Now, it knows - if you analyse and parse it

properly - it is aware that there have been

complaints made relating to Ainsworth where the

course of investigation has been unusual. So that

is the complaint. That is all as far as it seems

to take it.	I do think, however, that somewhere
else here it comes back to it.	I am not quite sure
whether it was relating to that matter I had before
about the the matters in Queensland or not.	I am
sorry here is a - - -

BRENNAN J: Just one further question. On page 27, is there

any footnoting available, in respect of the

assertion in line 6 or 7, that the Ainsworth group

had engaged in long and often questionable

lobbying?

MR HAMPSON:  Page 27 of the appeal book?

BRENNAN J: Yes.

MASON CJ: There is a footnote, 74, on page 28, which

relates to the campaign to have poker machines

Ainsworth(2) 84 26/6/91

introduced into Queensland. It is conceivable that

that report may be the source of the statement made

at the top of page 27.

MR HAMPSON:  Yes and, I think, the one going back to 22, I

think, in fact, that that remark that Your Honour

Mr Justice Brennan asked me about:

This commission is aware of other matters of complaint.

I think really that might have reference to the matters appearing at page 27, where a number of

examples are given. If you look at the second one

which is sourced - it has got two sources:

Something of the same pattern has been

discernible in investigations into the

Ainsworth group of companies by Task Force

Two.

I had a recollection that it came back to it and I

think that is where it is. So, again, as it were,
it gives a source for it, and my point only is that
if one reads a report of a royal commission of

inquiry or something of that kind, one is always

struck - where it is taken materially - with the

fact that evidence has been heard. Evidence from

the police has been heard, and the police said this

and that and the other thing and whatever. You can

see quite clearly - often there is extracts quoted

of evidence. It is written as a document much more

like a judgment where a judge at nisi prius is

hearing material, putting it down and then making a

decision. But this one is not that way at all.

This one is clearly - it is footnote after footnote

after footnote - so that is just my submission. I

have got a friend says, "Oh it is quite fanciful to

say that that is the way it was done", but it is

clear that is the way it was done and that is what

the evidence says of the way it was done. The evidence, in fact, was done in that

particular way, and we, in fact, went through - I

do not know whether it is useful really for the

Court - an analysis of the number of times that

reference was made to Ainsworth and the nature of the search and so forth, but most times they were

related to the investigation by some other body.

Now it is, we would think, desirable that the Court

should have, as the Full Court had, copies of this

report so that you can see that. You can see, as

the Full Court did, the actual footnotes, and I

must say I did not appreciate the position until

quite recently that that had been, in fact, left

out. Now, I do not know whether it .is left out by

Ainsworth(2) 85 26/6/91

direction of the Registrar who was trying to cut

things down, or why it was done.

MASON CJ:  You can put it in, for what it is worth,

Mr Hampson.

MR HAMPSON: Well, I do have six copies.

MASON CJ: Well there are five of us; there had better be an

additional copy.

MR HAMPSON:  Seven copies?

MASON CJ: Yes.

MR HAMPSON: 

I am not trying to bargain, I was just trying

to establish just what - I think we have enough
anyway.

TOOHEY J: 

The point of all this, Mr Hampson, I take it, is that it is your submission that the report is no

more than a piece of research and therefore does
not attract the statutory obligation of the

Commission to act fairly and does not attract any

of the rules of natural justice?

MR HAMPSON: That is so because that is concerned really

with tribunals and decisions and things of that

particular kind, Your Honour.

TOOHEY J: Let us say that if the Court took the view that

it went beyond research - and I am not asking you

to, as it were, encapsulate all your arguments that

are to follow, but if the Court took the view that

it went beyond research, would you then argue that

neither the statutory right or obligation to act fairly, or the rules of natural justice would be attracted to this report?

MR HAMPSON:  Yes, I would argue that, Your Honour, and for

this reason: if you, just because you have a

to report - let us take for argument's sake it is	statutory body, for argument's sake that is going
the Treasury - the Treasury takes upon itself to
put in a report to Parliament, knowing that it is
going to be tabled in Parliament, and it takes upon
itself whether there is to be a use of white paper,
or something of that kind. It puts a lot of research into it. It puts a lot of matters into it, but in the process let us say that it defames a
particular company and says that it is not doing
the right thing for the economy, whatever it
happens to be, there is some defamation of the
company. Now, even before it got into Parliament,
the company would have its right, no doubt, to sue
for defamation subject to whatever the defences
might be available, but once, in fact, it was in

Ainsworth(2) 86 26/6/91

Parliament and Parliament ordered that it be

printed, it then becomes a parliamentary document

and the privileges of Parliament. in the sense that it is subject to the immunities

Now, at that point of time, the man who is

being defamed in the Treasury report, he cannot

have any right of defamation.	He cannot try the
matter there.	So let us say, "Well, I want then

that report to be quashed because they did not

invite me for my opinion, or hear me before they

wrote that out. They just had a number of people

beavering away in the Treasury, writing these

things, picking things out of all different

reports, and just because there was one of them

there which said that I was not contributing to the

economy, whatever it happened to be, they put that in and added a recommendation that I should not be

getting any government work".

What has that got to do with prerogative

writs? Nothing, in our submission. The
foundation, in our submission, of the prerogative

writs and the rules of natural justice is that

there is a hearing, that it is contemplated that
there will be a hearing, and that is how one has

the natural expectation offered, the legitimate

expectation, because of what is done, the way these

things are done, that you will get a hearing. But

our point is that this all lies outside this at
all, this is just a completely different matter at

all. This is analogous, the example I have given. It is analogous, perhaps, if you said the Treasury wrote its paper and it was going to provide it to a

royal commission, its view on the economy - the

royal commission looking into the economy. Now,

the royal commission might have to give the natural

justice to the person who was accused in the

Treasury paper. He is entitled to come along to

the royal commission and say, "Before you accept

what the Treasury said about me, let me tell you	this and this", but you cannot, more prematurely	than that, attack the Treasury paper - the
submission on its way to the royal commission, or
even when it gets there, and say, "We want natural justice. In your writing out of that paper for
presentation to the royal commission, you should
have accorded us an opportunity to be heard".

Now, again, that is a reason why we say that

it is proper and important to characterize

correctly just what this document is, and because

there is no suggestion of a hearing anywhere - and the evidence shows that - no hearing was had - the

document shows, and the evidence shows that he had

researched it together - he took it out of these

other reports that had gone in Australia over time

Ainsworth(2) 87 26/6/91

and presented it to the Commission. So it was

never contemplated, because of the exigencies of

the situation - by March the parliamentary wanted

this report and also one on homosexuality as soon

as possible - it was never contemplated that there

would, in fact, be any hearings at all. Indeed, it
was contemplated that there would be hearings by
the parliamentary committee. It wanted to conduct
public hearings and it, in due course, was waiting

to put up its advertisements and so on.

So, in our submission, yes, Your Honour, we

would submit that that is what follows from a

correct characterization of this and it is what

follows from the characterization that our learned

friends tend to put on, or try to put on, and say,

"Look, this is a decision" - you see, what they

have made here, they have actually - this

recommendation is a decision - they have formed

conclusions - they have made decisions and so

forth. All they have done is made some

recommendations and they were not doing anything

themselves.	They were not, in fact, setting in
motion the criminal law against somebody.	They

were not exercising any of these types of powers

they had. They were merely putting some

recommendations to a body who, in turn, was going

to listen to the public and other people and, in
turn, itself, would recommend to Parliament the

sort of legislation that should be introduced,

including what matters should be put in the

legislation by way of protections and things of

that kind.

BRENNAN J:  Does that not rather overlook the importance of

publicity that is to be given to commissions'

reports as one of the protective mechanisms of

integrity in public administration?

MR HAMPSON: Well, one of the protections as to the fact

that it is public is a protection, I suppose, that

in fact it is open government, as it were.

Whatever the Commission says, whether it is

offensive to somebody in its opinion or it is not,

it has to be published; it has to come out and say

that is what it is because it is going to be

published.

BRENNAN J: Yes.

MR HAMPSON:  But that is true too, Your Honour, of my

example of the Treasury making the submission.

They are going to make a submission to the royal

commission, or they are making it to Parliament,

whatever. It is going to be published too, just

the same as any individual who presents a petition

to Parliament. Any person who present a petition

Ainsworth(2) 88 26/6/91

to Parliament has absolute privilege in relation to
that particular petition. It is part of the price

of being open, that is perfectly true, and if, in

fact, in their research they make a mistake -

supposing, for argument's sake, they got an inquiry

completely wrong in some way, that it was a

different Mr Ainsworth or made some egregious error

of that kind, well, they are going to have to wear

it. They are going to obviously suffer in Parliament in the public perception of people who

do things, very damaging things, quite

inaccurately, and so on. So that is the reasons

why, in our submission, there is a requirement that

the matter is not behind doors - it is not the sort
of report behind doors, but even if it is a
research report - any report at all, with the sole
exception of where it contains confidential

matter - and I think my learned friend pointed out

to you yesterday that exception - has to be, in

fact, reported on.

My learned junior has drawn my attention to

that liaison provision; it is section 2.46:

its activities with those of, departments of government of the State that are concerned with the administration of criminal justice.

(1) In discharge of its functions, the

(2) The Division shall have regard to the

activities, findings and recommendations of

agencies outside the State that are concerned

with administration of criminal justice (or

any part thereof) in other jurisdictions with

a view to -

{a) relating and adapting those activities,

findings and recommendations to the needs of

the State;

(b) avoiding needless duplication of the work

of those agencies for the purpose of
discharging the Division's functions.

GAUDRON J: But you are not suggesting, are you, Mr Hampson,

that the document is a report and recommendation of

the research and co-ordination division?

MR HAMPSON:  No. All I am saying is that the document

itself, the evidence says, is entirely the resource

and co-ordination division, apart from some minor

editorial matters, and - - -

GAUDRON J: But it has then been adopted by the Commission

as it own.

Ainsworth(2) 89 26/6/91

MR HAMPSON:  No doubt, and those recommendations may, or may

not be the research division, or they may be the

Commission's own recommendations; that is not

clear.

TOOHEY J: But it does not matter, does it?

MR HAMPSON:  It does not matter. No, I am not suggesting it

matters.

TOOHEY J:  The character of the document is to be discerned

from the document, not from an inquiry into who the

author was, or how it was put together.

MR HAMPSON: No, that is so. But, in so far as I am asked

as to how the matter arose, I say it is the

Commission's document. But it is a document which

is the product of 100 per cent research, as it

were, with the possible exception of the

recommendations, whether they were the researcher's

or whether they were the Commission's, it does not

matter, the Commission has adopted them. So, it is

important, in our submission, that one sees that

that is the case here.

It is all far removed from hearings and

decisions where people are making decisions and they are breaching the audi alteram partem rule

becau~e they are making a decision affecting

persons' interests without giving them an

opportunity of stating their case. We say that the

Commission was simply responding initially to a

request for assistance from a cabinet

subcommittee - that is pages 81 and 82 of the

appeal book - that is what got it started when they

were asked, and then they were conducting research

into and providing recommendations to the

parliamentary committee on areas of difficulty in

relation to the introduction of poker machines.

It is interesting to note too that although -

on that question of being printed, Your Honour

Mr Justice Brennan mentioned that. It is a fact

that the report will be automatically printed in a

vacation. Section 2.18(3) shows that, because it

says that:

If a report is received by the Speaker when

the Legislative Assembly is not sitting, he

shall deliver the report and any accompanying

document to The Clerk of the Parliament and

order that it be printed.

And then (4) says:

A report printed in accordance with

subsection (3) shall be deemed for all

Ainsworth(2) 90 26/6/91

purposes to have been tabled in and printed by order of the Legislative Assembly and shall be

granted all the immunities and privileges of a

report so tabled and printed.

So, in that particular case, it is an automatic

printing. But:

A report received by the Speaker, including

one printed in accordance with

subsection (2) -

that is one where there is one sent to a unit of

administration -

shall be tabled in the Legislative Assembly on

the next sitting day of the Assembly after it

is received by him and be ordered by the

Legislative Assembly to be printed.

No person shall publish, furnish or deliver a

report of the Commission, otherwise than is

prescribed by this section, unless the report

has been printed by order of the Legislative

Assembly or is deemed to have been so

printed ..... does not apply to an annual

report.

That question, "and ordered by the Legislative

Assembly to be printed", the statute really cannot
make the legislative assembly carry such a

resolution. They just raise the matter because

there could be cases in which the legislative

assembly would say, "No. In spite of the fact that

it has been tabled here, we will not order that it

will be printed". So there is, as it were, in

cases, only when they are in session, that slight

amendment to what was put by our learned friends.

Now we would submit that, a request having been made - the relevant sections

are 2.14(l)(b) and (2) - they have been referred to

before - 2.lS(b)(c) and (e) "Responsibilities",

and 2.45(2)(d) - that is the function of the

division - this is in Division 6 - dealing with the

Research and Co-ordination Division - it is the function of the Division:

to research and make recommendations on -

(i) law reform pertinent to criminal justice;

and also, under (e):

to inform the Parliamentary Committee ..... in

relation to matters affecting criminal

justice.

Ainsworth(2) 91 26/6/91

Anyway, they were informing the Commission in the

first instance, and finally 4.8. Now, we would

submit that in relation to that request it does not

have any - 4.8, of course, relates to the

parliamentary committee. I have asked the Court to

look at that before. It does not have anything

more to do than, really, to write up some research

and make some recommendations. It is clear that

the parliamentary committee is not bound by the

Commission's recommendations. It can accept them,

it can reject them as it pleases, it is not bound

at all. And the situation in reality here was, as

we have said, that the Commission was doing

research work, presenting a submission, if you

like, a report - a submission with some

recommendations in it, to the parliamentary

committee which, it was known, and had been known

since March, was going to conduct public hearings.

GAUDRON J:  Was known that it was going to conduct public hearings into what?

MR HAMPSON: In March - public hearings - into the matters

of homosexuality and gaming machines, and in each

case the report - there was a report on

homosexuality; there was a report on gaming

machines - and in each case they were supposed to

be - - -

GAUDRON J:	So was this really two committees comprised of the same people?
MR HAMPSON:	No, I think it was - - -
GAUDRON J:	Was there a committee -
MR HAMPSON:	I think it was the one researcher, Your Honour,

who was doing both, because the evidence shows that

this was at a time when the Commission was just

being set up, and they were without staff.

GAUDRON J:	I am interested in t.he parliamentary committee.
MR HAMPSON:	No, it was the one parliamentary committee.

GAUDRON J: Yes.

MR HAMPSON:  It was going to have two hearings, two sets of

hearings.

GAUDRON J: As the parliamentary committee, formed under the

Criminal Justice Act, it was going to inquire into

gaming machines and homosexuality?

MR HAMPSON:  As two separate endeavours, yes.

Ainsworth(2) 92 26/6/91

GAUDRON J: Yes, well what, in the Criminal Justice Act,

tells this committee to inquire into homosexuality

and gaming machines?

MR HAMPSON: Probably under (d), I am not quite sure, but I

would imagine there was a resolution of the House

that referred those to it, under 4.8(l)(d),

Your Honour, page 532 of the pamphlet copy:

The functions of the Parliamentary Committee

are -

to report on any matter pertinent to its

functions that is referred to it by the

Legislative Assembly.

I cannot recall seeing any evidence of anybody

saying that that is what it was, but I would

imagine that is what it must be, because they were

inquiring and they were reporting back, and there

is something in policy, as the evidence shows, that

these things would be introduced and it was a

question of getting appropriate legislation. That

is how the matter started.

GAUDRON J:  Or it may be that it was a separate committee

which happened to be comprised of the same people
who, from time to time, comprised the parliamentary

committee under the Act.

MR HAMPSON:  With respect, Your Honour, the evidence really

does not suggest that. I mean, he calls himself

the parliamentary committee in those matters we

looked at before. Mr Beattie is the chairman. He

is saying that he is the parliamentary committee

looking into the report under the Criminal Justice

Act, and so forth. He does not suggest that this

is an ad hoc committee purely for the purpose of

gaming machines. So I think that - and certainly

no one has suggested in the court below, or here,

that that was the case. It think we have all taken	it that it was the Parliamentary Justice Committee,
under this particular legislation - under the
Criminal Justice Act - and it had in mind to
perform two sets of hearings, one in relation to
homosexuality and the other in relation to the
gaming machines.
So it, in effect, could make a recommendation and it would make its recommendation to Parliament.
Now, the cases have been summed up, really, by
Justice Stephen in Reg v Collins Ex parte ACTU-Solo
Enterprises, (1976) 50 ALJR 471. His Honour there
refused to make an order nisi and the passages to which we particularly refer the Court are at
page 473 through, really, to page 475. His Honour
there went, looking at the history of some of these

Ainsworth(2) 93 26/6/91

cases - some of them, indeed, have been mentioned
here today. It was a case, of course, of trying to

obtain orders against a royal commission, and he

starts off at 473:

At common law no limit exists as to the

powers of inquiry of the executive

government -

and so on.

The co~rts will not "inquire into the
propriety of executive action", so long as no

question whether the law has been transgressed

arises and for the executive to inquiry by

means of a Commission is not in itself any

such transgression.

He looked at the dissenting opinions, really, in

Testro v Tait at the bottom of the first column

in 473 and the top of page 473 in the second

column, and he went on:

An enquiry of such a nature is outside the law

but, as soon as findings or opinions are given legal consequences and are made the foundation

in law for further proceedings in relation to

the company, then the position changes and

well-established principles require that the

enquiry be subject to the control of the law

to prevent departures from those basic

principles of justice which are commonly

described as natural justice and which include

giving a person upon whom a legal detriment

may be inflicted the opportunity of being

heard.

Now, that was Mr Justice Menzies, and he said:

His Honour's dissent, like that of Kitto J.

turned upon the fact that a special investigation under the Victorian companies	legislation was not in fact confined to the
mere obtaining of information for the
Executive.
I have so far referred only to the dissenting judgments in Testro v Tait; the
joint judgment of the majority offers even less support for the applicant's contention
than those do of Kitto and Menzies JJ. The majority were content to dispose of the matter
in conformity with the authority of R v
Coppel -

and so on -

Ainsworth(2) 94 26/6/91

taking the view that, before prerogative writs

might go, a direct effect upon legal rights

must be shown to result from a report or

decision and that the inspector's report was

incapable of producing such a result.

The case of Brettingham-Moore v St.

Leonards Municipality provides a recent

instance of a tribunal of inquiry and report

whose report nevertheless was by this Court

regarded as giving rise to legal

consequences ..... In the event no occasion

arose for such intervention ..... the

significance of the case, for present

purposes, arises from what the Chief Justice

had earlier said, at p. 522. Although the

tribunal's report was not self-executing, and

although an exercise of executive discretion

was interposed between the recommendation in
the report and any implementation of it,

His Honour concluded that neither of these circumstances would necessarily have prevented

the granting of appropriate relief. The

making of a report recommending certain action

in relation to an existing municipal council

was, by the relevant legislation, made a

condition precedent to the Executive's power

to take such action; if, and only if, such a recommendation were made could the Executive

act in a manner which would affect legal

rights. The making of the report accordingly

produced the result that legal rights become

subject to a new hazard and for that reason,

and despite the absence of direct legal
consequence, the tribunal would, special
enactment apart, be required to act

judicially .....

The present applicant relied extensively

upon recent English -

authorities. Now he goes on to consider those and

I shall not read them to the Court but they do

appear in the books of cases here.	And then,
finally, at page 475:

With the situation in all these cases may

be contrasted the position in the present
case. Whatever may be the tenor of the

Commission's report, it will not legally affect the rights of the applicant; with or

without such a report, and even, no doubt, in

direct opposition to any recommendations in

it, the Minister might, in his absolute

discretion take action affecting the

applicant's crude oil entitlements, or might

decide to take no action at all. Accordingly

Ainsworth(2) 95 26/6/91

the nature of the Commission's report neither

directly affects nor in any way subjects to a

new hazard the rights of the applicant; the
hazard of Ministerial intervention has always

been present and it is only the degree of

likelihood of that intervention occurring in a

sense adverse to the applicant's interests

which increased by the actual nature of the

Commission's recommendation. That cannot, in

my view, suffice to justify curial

intervention, by means of certiorari, in the
case of a Royal Commission whose sole function
is to inquire and report to the Executive the

result of its inquiries, whose mode of

conducting its inquiry is entirely unfettered,

either by statute or by executive direction,
and whose report neither directly affects
rights nor is a condition precedent to the

affecting of them -

"unnecessary to examine other grounds" His Honour

says.

Consistently with what I said to Your Honour

then, the other cases are mentioned in our book.

They are the Reg v Brisbane City Council
ex parte Reid, (1986) 2 Qd R 22, especially at

page 41; Koppen v Commissioner for Community

Relations, (1986) 11 FCR 360 at 368 and 369;

Reg v Pharmacy Board of Queensland, (1980) Qd R 245

at 251 and 252; and Reg v Martin ex parte

Aboriginal Sacred Sights Protection Authority,

(1987-88) FLR 133 and the passages are at 146, 147,

148, 149, 151 and 152.

Our next submission is that when a body's

function is to advise or recommend only and nothing

more, then there is generally no right to be heard

by it. One cannot assert such a right because of

the circumscribe nature of the tribunal's function

and the cases that we rely on to support that

proposition are set out in our list of cases under

the heading Recommendatory Bodies. It is on the

third page and it starts, I think, with The

Grosvenor & Western Railway Terminus Hotel Co Ltd -

there are eight cases in all.	I think the
principle is quite well known.	I do not think

there is any necessity to read extracts from the

cases.· Indeed, one of the cases was that decision
of Mr Justice Stephen which I have already read

parts from. In page three of our notes, the Court will see that we have, in fact, set out the actual

page references of the extracts that could be read,

as it were.

We say that, so far as we know,. there is no

reported case in which a report, submission or

Ainsworth(2) 96 26/6/91

document containing opinions, but not a decision,

has been quashed when the document in question was

produced without any hearing and the information

was obtained without the use of any statutory

powers but merely by researching. The cases that

our learned friend relied upon in l(b) of their

outline of submissions - and the one, Lewis v

Hefter, the case they added this morning to it - in fact, are cases where there is a hearing. They are

not this type of case at all and it probably is

instructive of Lord Tucker's statement that in
dealing with cases of natural justice no two cases

are the same. It is always something that is different and one again, of course, is always

concerned with procedure and not with what actually

is done.

Our next set of submissions relate to the

construction of the Act and it has been submitted,
I think here, that the Full Court was wrong in

saying that the Act, on its proper construction,

did not impose a requirement to afford a hearing in

this case. Now, it is our submission, that the

Full Court was quite correct in that approach. We

refer again to the evidence of the difficulty, the

impracticability which is referred to by the

Full Court then, to seek submissions from the

public and to have a hearing and the references

where that is dealt with are page 172

lines 21 to 30 and line 50; page 173 lines 41

to 56; page 174 lines 10 to 23 and lines 45 to 60;

page 175 line 55, over then to line 2 on page 176;

page 179 lines - - -

BRENNAN J: These are in paragraph Cl of your outline, are

they Mr Hampson?

MR HAMPSON:  Yes they are the same ones, thank you. I was

reading from a different document but we have set

them out in the outline so I will not repeat them.

BRENNAN J:  Mr Hampson, would the Commission have had power

to have put into its report, "We find that

Ainsworth has been guilty of conduct which makes it

not a fit and proper person to be involved in this

industry and we recommend that it should not be

allowed to be a party in this industry", would such

a finding and such a recommendation have been

within the powers of the Commission, assuming that

the Commission had accorded natural justice

beforehand?

MR HAMPSON:  No, I would think not, because the Commission

is not empowered to make findings of guilt with

relation to persons. The Commission really would

seem to be in a situation where if it determines

that somebody is guilty, it should take steps by

Ainsworth(2) 97 26/6/91

providing the necessary information, say to the

Director of Prosecutions or some such officer, to

have launthed a criminal case against that person.

It is not really in the business - the statute does

not allow it to have reports which, in fact,

convict people.

BRENNAN J:  What if they said, "We have formed the opinion

from the information available to us that Ainsworth
is not a fit and proper person to hold a licence or

to be involved in the industry"?

MR HAMPSON: Well, with respect, I would submit that they

would be entitled to say that. I mean, this is in

the research facility. If in the research
facility, one is reading all the things in the

research and one of the things that comes out of it

is, for arguments sake, that all the investigators

over the years, the Royal Commissions and so forth,

have always said something adverse about Mr

Ainsworth, I would apprehend that there is nothing

in the Act that would prevent them from saying, "One of the things that occurs from this is the frequent derogatory references to Mr Ainsworth and,

therefore, it would be our recommendation that the

board who is licensing people would be very loath

to give him any business", or something of that

sort.

BRENNAN J: Taking to the extreme the powers of the

Commission, as you conceive them to be, in relation

to the expression of an opinion about the
reputation of an individual, can those powers be
exercised adversely to that individual's

reputation, otherwise than after a hearing?

MR HAMPSON:  I would submit yes, Your Honour. There is

nothing in that at all. The statute, so far as the

statute goes - and that is what we are going to

look at, although I have said the Full Court, in my

submission, were correct in their approach to it -

enjoins them to act in a particular way in relation

to investigative hearings and that is obviously

going to be a significant part of the business of

the Commission. The statute expressly makes

provision for that and, no doubt, the legislature

was not wrong in thinking that the necessity to act

fairly, and so forth, was traditionally an

attribute of people who are conducting hearings -

tribunals who conduct hearings. For that reason,

in the statute, they lay a positive requirement

upon the CJC in conducting hearings of an

investigative type to act fairly and so forth, but

they did not lay any liability or duty, however one

likes to put it, upon the CJC in relation to other

matters when they are not gathering evidence or

they are not using that evidence for some purpose

Ainsworth(2) 98 26/6/91

anything of that sort. to afford natural justice or to act fairly or

BRENNAN J: Having regard to the procedure that was followed

by the Commission in this instance and the function

it was performing of gathering the material from

other sources, did the Commission have any power

under the statute in this instance to do more than
to express an opinion founded exclusively on stated

material?

MR HAMPSON:	That would mean that it was not entitled in rendering advice to draw some conclusion from
stated material and I would find that as a
proposition difficult to accept because one would find it hard to believe what good the advice would
be.

BRENNAN J:  No. I am just asking whether it would have

power to do more than to express an opinion based

upon stated material?

MR HAMPSON: Well, we would submit that is what they have

done here.

BRENNAN J: Well, I appreciate that, but is that the extent

of the power that you would conceive for the

Commission?

MR HAMPSON: This is when they are not acting - yes,

Your Honour. When they are acting as a tribunal

they have obviously got to act fairly and their

power is, obviously, in any report - subject to

matters I have mentioned before about convicting

people and things of that kind - they cannot go

any further then the evidence allows them to go.

They cannot express opinions if they do not have

evidence of it, whether documentary evidence or

however they take it. They must make an opinion

with relation to that.

Similarly too, with a research

function - supposing they have got some sort of
research paper they are preparing - and in the

course of that particular research a particular

thing appears. To get away from personalities, let

us say that there is a machine, some sort of a

gaming machine, that everybody says "It's always

breaking down", and it is such a poor machine that

it is very easily converted and made an instrument
of fraud, or something of that kind. So, having
read all that, they say "We would recommend that

you would look very carefully at the idea of ever

having that particular type of machine for the
reasons that have been mentioned elsewhere in the

report". That would be a perfectly proper use of

their power, Your Honour, because, of course, what

Ainsworth(2) 99 26/6/91

they are saying is deducible from the material they

have read, but I think what Your Honour might be

inviting me to say is, supposing, having read and

researched a lot of material, can they then pick

something - sort of quite outside the material,

quite divorce from what they have been dealing with

- and put that in? Well, the answer would be no,

because that - - -

BRENNAN J:  No, my question is directed to whether or not,

if your submission as to the construction to be

placed on the document is not accepted, then it is

incidental to your present argument that the

Commission has exceeded its power. In other words,

if the Commission has expressed what the material
was before it but has gone beyond that material in

the expression of an opinion or a recommendation

and has impliedly thus referred to other material,

then has the Commission exceeded its power?

MR HAMPSON: 

With respect, no Your Honour. The material

they have referred to is the material that is
footnoted and so forth - that is in the

reports - that is what they have referred to. They

have made a recommendation that is based on the

material that is referred to in the reports.

BRENNAN J: 

As I understood the argument that was put

against you, it was put in the alternative. Either
the Commission can conduct research - as you have

been describing it - and complete its report by

setting forth that research with no more than an
expression of opinion upon it or, if it wants to go

further than that and express an opinion or make a

finding as to fitness which goes beyond what is a

mere opinion on the research material, it must have

a hearing.

MR HAMPSON: Well, with respect, there is nothing at all in

the Act that supports that submission.

BRENNAN J: It is a question of the limits of its powers.
MR HAMPSON:	Yes, but there is no express reference in the

Act	to any such submission. You then come - when
one	comes to look at the provisions which relate to
the	research division in Division 6. It:

conducts research into the problems that from

time to time -

and:

works towards coordinating the activities of

the Commission .....

Ainsworth(2) 100 26/6/91

make known its findings on matters relating to the system of criminal justice in the State to the Chairman and, with his approval, all other

agencies -

and so forth:

It will operate of its own initiative ..... to coordinate -

all that is set out there.

Now those things are all set out there. That

unit makes known to the Commission research,

whatever it happens to be - this and this and this

- and one of the things in the research is, in

fact, that Mr Ainsworth is mentioned many times

detrimentally by different prominent persons who

have investigated activities concerned with his

activities. The research people, at the end of the

day, say they just give exactly that to the

Commission. Now the Commission is in a

position - its power is to give assistance.

Indeed, the research committee itself has got a power to inform the parliamentary committee - that

is in section 2.45(2)(e) - but certainly, when it

comes to the Commission itself, the Commission

itself can say, "Well now, having read that

particular research material we want to add to

that.	We also are going to draw a conclusion from
that.	We think of something else or some other

point that should, based upon that particular
material, be driven home, as it were, to the

parliamentary committee." Now, there is nothing in the Act that says it cannot do that and there is no

implication that arises anywhere that before it

could do that the committee should then have a

hearing.

TOOHEY J: Well you use the expression "have a hearing". I

wonder if that is not putting it too high. Really,
what the applicants complain of, I suppose, is that

before the Commission reports in a way adverse to

them and makes a recommendation adverse to them,

they should be confronted with the material. Now

how that is dealt with is another matter and it may

only be resolvable by hearing or it may be
resolvable by an exchange of correspondence or

written statements or affidavits, but as I

understand the complaint, although it has been

expressed from time to time in terms of the need

for a hearing, it is really an opportunity to meet

the comments and recommendations adverse to them and that, they say, they were deprived of. Now,

whether they can make good that case is another

matter, but that is really their complaint.

Ainsworth(2) 101 26/6/91

MR HAMPSON: Well, the complaint, as Your Honour says, is

varied.	I mean, at one stage they wanted to appear
to cross-examine their accusers.	Now, there was no
hearing.

TOOHEY J: Well, it may be that in the particular

circumstances that is the only way that the matter

can be resolved, but essentially it is the

opportunity to meet the proposed adverse findings

and recommendations that they complain of.

MR HAMPSON:  Yes. Well, my submission is, that if what

Your Honour is saying in that sense is whether the

hearing, whether they have got power, in fact, to

send that report along - the result of that

along - with a conclusion of their own in it, yes,

they have power, in my submission. They have power

because really, in effect, what they are saying is,

"On the result of all this material here, that is

what we say". We are not saying there is not other

material elsewhere or anything of that sort; we

have not had a hearing.

The point that I was going to finish on with

relation to that is, that if what is being

"We give the Commission some other particular material" - what you are going to have in the research paper - I mean, one has got to look at the

suggested is a hearing, if they want to give to the

utility of this - you may correct some errors. As

I have said before if, in fact, somebody had made

an inquiry into a different

Mr Ainsworth - something of that sort - you may correct some errors-, but where you have a long

history of what the police did or said or other

people have found about them and so forth, it is

highly unlikely that the Commission, not making any decisions, not being the final decider of anything,

can do anything more than say, "Well, on the basis

of all the matters that we have received to date in

our research, we would really be of the view that

you should not have Mr Ainsworth. Mr Ainsworth,

however - we rang him up and he has submitted a

large submission, the text of which really is that

he denies all the things that Mr Masterman or

Mr Murray Wilcox, QC, or whoever they were, found

against him" .

I mean, the actual utility of it as a research thing is very much open to question, in our

submission, and it does not have, therefore, the

strength of the requirement of natural justice

where you can see there can be a real possibility

of affecting the issue where, in fact, there has

been a hearing, and a good example is Annetts'

case. You can say there you have a hearing. You,

Ainsworth(2) 102 26/6/91

in fact, have a legitimate expectation granted to

you by the fact that you have been given leave to

appear which gives you a right by your counsel to

take part in the conduct of the matter and a

belief, therefore, that you are entitled to be able

to say something in the end; say what you claim the

evidence means.

TOOHEY J:  But that is an odd proposition, Mr Hampson, is it

not? I mean, it appears to involve this: that if

the Commission carries out an investigation, it is

bound by statute to act fairly. If, as you say, it

carries out something which is by nature of

research but involves conclusions adverse to

someone and recommendations adverse to them, there

is no obligation to do anything.

MR HAMPSON:  Your Honour, there is a difference between the

law relating to prerogative writs and the hearing,

which is natural justice, that comes - - -

TOOHEY J: Well, that is a consequence. I am really looking

at the principle that is involved.

MR HAMPSON:  But the other remedy is defamation. What one

is really, with the greatest respect, trying to do

here, is trying to say, "Well look, it is very

unfortunate, is it not, that Mr Ainsworth had a

recommendation made against him? Now, maybe there

was not much chance of getting the Commission to

have a different view, but perhaps he could have

put something up that would have changed it. It is

a bit unfortunate about all that, but what normally

he could have done is, he could have gone and sued

them, if he had wanted to; that is his remedy", and

that is the remedy for people who publish things

about people. If I write something about somebody

or rather and it hurts his business reputation, or

whatever it is, he can sue me for defamation.

TOOHEY J: Well, does it follow from that approach that if

the Commission decides that in any particular case

that it will not conduct an

investigation - whatever that may mean, but simply

depute to a member of its staff the collation of

relevant material involving conclusions as to a

person and recommendations adverse to that person,
but by structuring the form of its activities it

can somehow dictate whether the statutory or common
law requirements to act fairly apply or do not

apply?

MR HAMPSON:	Can I make two submissions with relation to that? Firstly, yes it is feasible, because what we
are concerned with here is procedural fairness
anyway and if somebody changes procedure - if he
can invent a new form of procedure or change his

Ainsworth(2) 103 26/6/91

procedure around - he can really get to a

situation, in fact, where there will be no

procedural unfairness by amending an Act or working

within an Act in some way such as that. But the

other thing, in this quia timet attitude as to what

the Commission might do, it surely must be realized

by all that this was a very exceptional situation.

You had two reports being researched, practically no researchers, a deadline - or not exactly a

deadline but certainly pressure from the

parliamentary committee who was going to have

hearings into each of them to have the reports as

ready as soon as possible - and a knowledge by the

Commission that, in fact, there were going to be

hearings.

TOOHEY J:	I am not sure that that really answers the question, but what I was trying to find out was
whether it is your submission that the obligation
to act fairly, whether it springs from the statute
or otherwise, depends entirely upon the form of
proceeding which the Commission adopts in the
particular case.
MR HAMPSON:	Your Honour, assuming that there is not a

statute which enjoins procedural fairness or

natural justice - presuming you do not get it out

of a statute - if, in fact, you have at large a

system of how one can make a particular inquiry or

just, "You are a research officer employed by a

parliamentarian. You can, if you like, do all your

research in such a way that, in fact, it is never
revealed to anybody other than your employer or the

parliamentarian. You could do it in a way in which

you make it available to people in which case

defamation might be open to you. You might do it

in a way, if you could get the people to somehow

find that you are a decision maker of some kind,

where you clearly have to accord natural justice".

For arguments sake, if a public research person,

his union, puts him in charge of an inquiry into

something or rather that is done with some fellow
unionist, you get a different situation.	You have
therein a hearing.

TOOHEY J: Well, is the short answer to the question, yes?

The Commission can structure its own form of

activity and, depending upon what form it adopts,

certain consequences follow or do not follow.

MR HAMPSON:  But no more than anybody else, with respect,

Your Honour. That is the point that I am making,

no more than anybody else. If, in fact, for

arguments sake the Commission said, "Well look, we

know that we are going to have a public hearing on

this particular matter. We want to give you

advice, so what we will do is we will get you along

Ainsworth(2) 104 26/6/91

and we will brief you. We will have an actual

briefing". There is nothing in the Act that says

they cannot do that. So they brief the members of

the parliamentary committee with relation to

whatever it happens to be. Now, the members of the

parliamentary committee, of course, have got to

give natural justice. They have got to be able to

say to the people, "Well look, now we have heard

from the Commission that you are a very bad fellow,

whatever it is, for this reason, so you better pay

some attention to that". But so far as the

Commission itself is concerned - and this is the

point that, in our submission, is so important

here - there being no hearing, there being nothing

like that, there is no requirement of natural

justice at that stage and that, therefore,

prerogative writs, declarations or anything cannot
go against them. The remedy for that type of

activity they are concerned with is suing for

defamation.

GAUDRON J: Where does the parliamentary committee's

responsibility to give natural justice come from?

MR HAMPSON: Well, because they are going to make

recommendations, Your Honour, and the Act does not

say to them, "Look, you have got to be fair in

certain circumstances", allowing the inference,

therefore, that in other circumstances, "No, that

we are not requiring that from you". It does not

mention that at all so, we would submit, that comes

from the fact that they are going to make a

recommendation directly to government. One might also say that being a parliamentary committee, in

effect if they did not give it - they did, in fact, endeavor to do it here - but if, in fact, they did not do it, they would not be really - - -

GAUDRON J: It seems very strange that this organ, newly

created to ensure honest and open government, does

not have to give natural justice, but a

parliamentary committee, in respect of whom there

is nothing in statutory form suggesting an

obligation to act fairly, does.

MR HAMPSON: Well, with respect Your Honour, that is not

what I have said. I did not say that the

Commission does not have to give natural justice.

In 999;9 per cent recurring of occasions it will

have to give natural justice. I have said that

this is a very unusual case here where it is

preceded by way of this particular report and in

this very unusual and unique circumstance, perhaps,

it does not have to. That is really what I said.

Ainsworth(2) 105 26/6/91

MASON CJ:  Mr Hampson, we might adjourn on that note, I

think, and we will resume at 2.15 pm.

AT 12.57 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.17 PM:

MASON CJ: Yes, Mr Hampson.

MR HAMPSON: 

If the Court pleases, on the questions that I

was being asked by Your Honours Mr Justice Brennan
and Mr Justice Toohey as to the extent to which the

Criminal Justice Commission, by moderating its procedure in some way could avoid natural justice,

I tried to give the example that many bodies could

do that if they were not actually having to have a

hearing.

But there are two other points, of course,

that ought to be borne in mind, that if the
Criminal Justice Commission was continually to

adopt a research mode of proceeding, it would not get very far because, after all, even though some

members of the public might disagree, without

counting, the number of Royal Commission reports in

Australia are finite, and therefore one could not

continually research them and make new ground, as

it were, and quite obviously there will be many

problems which are much more direct, have never

been considered by a Royal Commission, and have to

be the subject of a hearing.

But more significantly, perhaps, of course, is

that the parliamentary committee has the statutory
task of monitoring the Criminal Justice Commission

and its performance, and that therefore one would

say the statutory scheme is to put that

parliamentary committee, which is responsible to

Parliament, directly above it with a view to

monitoring, in fact, what it does.

So therefore, if there was a conscious adoption of such a strategy, quite clearly the

statute has provided a body there which supervises
and monitors the Criminal Justice Commission and

would prevent that.

Now, I had given the references, looking at

our submission C, I had given those transcript

references, as Mr Justice Brennan pointed out, in

Ainsworth(2) 106 26/6/91

the outline of argument, and to that perhaps we

could just add the following two: page 185 from

line 57 to line 1 on page 186; and on page 186

lines 19 to 58.

We point out that section 3.2(l)(e) is

applicable only to proceedings which involve taking
evidence. It forms part of the Act dealing with

procedures for taking evidence from witnesses in a

formal sense and the Full Court, of course, dealt

with this at length and I do not want to repeat

matters that they have, in fact, dealt with, but it

appears in a division which is so entitled Division

2. Division 2, in turn, is part of the general

provision, Part 3, "Investigations", and it is our

submission that it is clear, for the reasons the

Justices in the Full Court gave, that 3.2(l)(e) is

part of the Act dealing with the procedures where

there is an investigation, taking of evidence in a

formal sense. And the statute shows that the parts

of the respondent which are involved in evidence

taken in that sense are the investigatory bodies,

which are the Official Misconduct Division and

Tribunal.

The Research Division does not fall into that

category. It does not investigate or take

evidence. The fact that in the report it mentions

evidence in the sense of what was before some other

bodies, or that it calls some of the things it has

been doing "investigating", cannot convert the

report into or make the report fall within those

statutory meanings. The word that the statute has

for investigation is something different. It is

the taking of evidence, in our submission.

DAWSON J:  Mr Hampson, you say 3.2(l)(e) is applicable ..... !

do not find that anywhere.

MR HAMPSON: 3.2(1)?

DAWSON J: There is no 3.2(l)(e).

MR HAMPSON: No, (b), I am sorry. It should be (a) and (b).

I am sorry, that is an error there. Thank you.

Section 2.46 to - it really should be (a) and (b)

of paragraph 3, yes. It is not obliged to take

evidence or call for public submissions and,

indeed, that would seem to be a very unusual course

for it. The Commission's activities in
researching, compiling, preparing, adopting the

report were not a proceeding within the meaning of

section 3.17(a) of the Act.

If one looks at that section there which is

the commencement of Division 2, they apply to

proceedings and the Full Court dealt with this, of

Ainsworth(2) 107 26/6/91

course, but a proceeding is something which is a

more formal state of conduct. It has something to

indeed hear to be proceedings which are conducted.

It is very difficult to talk about conducting

proceedings when, in fact, what you are doing is

looking up copies of reports of Royal Commissions

and documents of that particular kind. So we would

submit that 3.17 does not apply to the matter that

was carried out in this particular case with the

result, we would say, that that does not in turn,

apply section 3.21.

TOOHEY J:  How does that submission square, Mr Hampson, with

the status of the Research and Co-ordination

Division as an organizational unit?	I am looking
at 2.12 of the Act.

MR HAMPSON: Section 2.12:

there shall be established ..... organizational

units the following Divisions ..... may from

time to time ..... terminate -

change them, and -

shall have such functions and responsibilities

as are allotted to it by the Commission and,

where its functions or responsibilities are

prescribed by this Act, as are prescribed.

They are under the control of a Director. Well,
2.12, in our submission, would not affect the

matter, Your Honour.

TOOHEY J:  No, the point I was directing you to was whether

it might be said that 3.17 contemplates that any

organizational unit may be capable of conducting

proceedings.

MR HAMPSON: Well, it does not give them - - -

TOOHEY J: It might suggest that "proceedings" has got some

wider notion than the carrying out of some sort of

investigative inquiry.

MR HAMPSON: Well, perhaps, I do not know. Because 2.12

allows the Commission itself to establish - if you

look at subsection (3):

An organizational unit established by the

Commission ..... shall have such functions and

responsibilities as are allotted to it by the

Commission -

So that if in fact the Commission did establish

one - let us call it the "Monitoring Division", or

something of that kind - it could very well be that

Ainsworth(2) 108 26/6/91

one of the functions set for that was to take some

type of hearing, take some sort of things in a

proceeding - - -

TOOHEY J:	No, I think you may be missing the point of the question. Section 3.17(b) seems to contemplate
that there may be proceedings conducted by any
organizational unit of the Commission. If you look
at the earlier section to which I drew your
attention, the Research Division is an
organizational unit. It might be thought to follow that that unit is capable of conducting a proceeding for the purpose of 3.17.

MR HAMPSON: Well, with respect, Your Honour, the

commencement point under 3.17 we would disagree

with. That does not indicate that every

organizational unit conducts proceedings. All it

says is that:

all proceedings conducted in discharge of any

of the functions ..... of any organizational

unit of the Commission. So, in other words, any organizational unit which,

in fact, does conduct proceedings in discharge of

its function, or of a function.	Now, that is
different from the present case.	When you look at

the Research Division there is no provision for

proceedings to be conducted by that organizational

unit; neither did it take upon itself, as it were,

in the present case, to conduct proceedings.

We say, therefore, that "proceedings" has its

normal meaning as meaning some sort of formal steps

or course of business. The typical one, the one

that one thinks of, is a hearing. If, however, one

could find an organizational unit, the Research

Unit or any other one for that matter, did, in

fact, conduct proceedings, then 3.17 would apply.

But 3.17 cannot be read as to say that

organizational units must conduct proceedings.

TOOHEY J: Thank you.

MR HAMPSON:  Now, our next submission was that there was no

legitimate expectation of a kind which the law will

protect and, under that first we point out that the

respondent was not under a duty to act judicially

or quasi-judicially; nor, we say, from the point of view of the statute, was there any requirement

of procedural natural justice. So therefore, one

would have to discover the existence of a

legitimate expectation before one could get to it.

Such a requirement would only follow where

there was an exercise of a statutory power by the

Ainsworth(2) 109 26/6/91

respondent - that would be the first requirement -

and that that exercise of the statutory power would
deprive the applicant of some right, benefit or

privilege which the applicant has a legitimate

expectation of obtaining or continuing to enjoy.

We would refer to Haoucher v The Minister for Immigration - it is on our list - and in particular

the passages:  Mr Justice Deane at 651 and 652;

Mr Justice Dawson at 658 and 659, and at 660 and

661; Mr Justice Toohey at 670; and particularly, I

think, the passage of Mr Justice McHugh at 679 to

680 and at 682, because Justice McHugh's remarks

there were, in fact, approved by a majority of the

Court in Annetts v Mccann.

The other case, much in the same line, is

Attorney-General for New South Wales v Quinn.

Again, it is in our book. The passages to which we

would refer are the Chief Justice at 20 and 21;
Justice Brennan at 34 and 35; Justice Dawson at 54,
55, 56 and 57.

Annetts v Mccann - having mentioned it, this is an appropriate place to deal with it. It is

also reported not only in the report that is given,

I suppose, in both sets of references, but also it

is reported in 170 CLR 596. I am using the ALJR on

the assumption that probably the CLR is not

available to Your Honours as yet. In the judgment

of the majority on the first page, at page 167:

It can now be taken as settled that, when a

statute confers power upon a public official

to destroy, defeat or prejudice a person's

rights, interests or legitimate expectations,

the rules of natural justice regulate the

exercise of that power unless they are

excluded by plain words of necessary

intendment -

and a number of authorities are there quoted,

particularly the passage at 679 to 682 in

Haoucher's case.

In Tanos, Dixon CJ and Webb J said that an

intention on the part of the legislature to

exclude the rules of natural justice was not

to be assumed nor spelled out from "indirect

references, uncertain inferences or equivocal considerations". Nor is such an intention to

be inferred from the presence in the statute

of rights which are commensurate with some of
the rules of natural justice: Baba v Parole

Board. In Kioa v West, Mason J said that the law in relation to administrative decisions:

Ainsworth(2) 110 26/6/91

"has now developed to a point where it

may be accepted that there is a common

law duty to act fairly, in the sense of

according procedural fairness, in the

making of administrative decisions which

affect rights, interests and legitimate

expectations, subject only to the clear

manifestation of a contrary statutory

intention."

In Haoucher, Deane J said that the law seemed

to him:

"to be moving towards a conceptually more

satisfying position where common law

requirements of procedural fairness will,

in the absence of a clear contrary

legislative intent, be recognised as

applying generally to governmental

executive decision-making."

Now, if one goes down a little to see what the

attitude of the Court was to the case before it:

The judgments in the Full Court appear to

assume that the appellants had no right to be

heard because nothing in the evidence

suggested that anything adverse to them

personally could emerge from the Coroner's
finding or rider. But this assumption

overlooks two matters. First, the appellants

have been granted - and properly granted -

representation at the coronial inquiry. The

grant of representation did more than
recognise the appellants' personal interest in

the performance of the duties which the law

imposes on the Coroner, as to which see Bilboa

v Farquhar. It also created a legitimate

expectation that the Coroner would not make

they represent without giving them the

any finding adverse to the interests which

opportunity to be heard in opposition to that

finding.

So, in other words, that is where the majority

found the legitimate expectation to arise. And, of course, that statement is quite applicable to cases

where there are hearings and where someone is

taking part in a hearing, through his

representatives, but in fact something - there is a

breach of the audi alteram partem rule.

It is quite a clear case, we would suggest.

But, of course, it is no authority for trying to find a legitimate expectation in a case such as the present where, in fact, there is no hearing of any

kind at all but there has, as we have pointed out,

Ainsworth(2) 111 26/6/91

been this written report which has been researched and produced. Secondly, then, the case goes on to

describe the nature of interests which, strictly,

we do not rely on. So we would submit the case is

important to be looked on there.

There is a longer treatment by Mr Justice

Brennan on the question of a legitimate expectation

which commences on page 171 in the first column,

and particularly at page 172 in both columns.

Mr Justice Toohey was the other Justice in dissent

and he deals with the matter at page 177.

So really Annetts v Mccann can be looked at,

really, as a case where the legitimate expectation

has been created by conduct. It is really one of

those case where, we would say, "Well, it is the

conduct of giving the right of representation and

so forth and hearing the person to a certain point

that encourages the expectation, making it

legitimate, that the person be heard by way of

address, certainly in relation to the interests".

Now, we say in the present case, there being

no exercise of a statutory power, there being no

power then depriving the applicant of a right or

benefit or privilege which he had a legitimate

expectation of obtaining - and we refer to Haoucher

and Quinn - and we say that the mere hope of

obtaining such a benefit or privilege is not
enough. That is Haoucher's case in the passage

from Justice McHugh and also in page 602 with which

Justice Deane agrees.

We say in the present case the respondent had

no legitimate expectation of obtaining some right,

benefit or privilege as a result of this report.

At that stage the supply and use of gaming machines

was illegal in Queensland. There could have been

no legitimate expectation with respect to any

matter concerning them. There had to be a change

in the law. What the respondent could have had,

perhaps, was a hope that there could have been a

benefit or privilege if, when the law was changed,

he then competed successfully with other suppliers

to obtain the benefit.	We submit that is not
enough.

We now know that the Act is in force, but there is nothing in that Act which shows that he is

excluded in any way. That is the Gaming Machine

Act 1991. The Commission has been established.

Section 21 deals with that. Five commissioners

have been appointed under section 2.2. The

Commission has power to grant or refuse licences,

and Part 4 deals, inter alia, with licences to

those who wish to instal gaming machines on

Ainsworth(2) 112 26/6/91

licenced premises. That appears in section 4.1,

4.5, 4.8. The Director of Machine Gaming Division

is to maintain a roll of recognised manufacturers

and suppliers of gaming machines, 6.4.

Our learned friends referred the Court to

section 6.15 and 6.16 - and said, "Now, if he calls

tenders he has to evaluate the tender and so forth,

and this is where we will be hurt. Our opportunity

of being able to be considered will be affected

because under the procedure of 6.16":

the Director must in relation to each tender

submitted in response -

to his call -

(a) initiate and have followed through such

investigations as the Director considers are

necessary in relation to the tender;

(b) evaluate each gaming machine -

and so forth -

(c) evaluate each game submitted -

(d) consider the tender and matters

accompanying it together with the results of

investigations made in relation thereto and

make an assessment of ..... general reputation

and character -

and so forth. These various things are mentioned

there. What is important, however, is that the

Commissioner has an express power, over and above

the powers of anybody else, parliamentary

committees or others, to inquire, in 6.4 where he

is empowered:

undertaken such investigations as the Director

(1) At any time the Director may cause to be

considers are necessary in order to satisfy

the Commission that a listed person or any

associate of the listed person is a suitable

person to be a listed person or, as the case

may be, an associate of the listed person.

(2) The Director, either verbally or by

notice in writing, may require any person, to

whom investigations under subsection (1)

relate, to submit such information or material

as the Director considers is necessary.

The person must comply with the

requirement.

Ainsworth(2) 113 26/6/91

Well, an investigation made under that

provision in relation to the reputation and the

suitability of a person for the purpose of the

procedure under section 6.16, there is something

that is - statutory power to make it completely de

novo by the Director. This all shows really how

far removed the alleged legitimate expectation

really is in the present case. All those who wish

to manufacture, sell or supply machines must be

licenced or authorized. That is 6.6. And listed

persons are those on the roll. That is how it is

defined.

So we say that the applicants' expectation can only be that they will receive the same treatment

as other applicants, or recognized manufacturers of

gaming machines. We say that beyond that the

applicants have only a mere hope of obtaining a

benefit or privilege and a mere hope is

insufficient to ground the relief sought.	We go
back again to page 682 of Haoucher.

At the hearing before the parliamentary

committee - and I gave the Court the references to

all of this yesterday - the applicants have

unequivocally stated, first, that they did not

consider or expect that their application would be
treated any differently to others because of the

CJC report; secondly, that they had every

confidence in being treated fairly. That is in the

minutes of that particular meeting. We ask then:

how can they really say that there has been a

denial of natural justice which has affected them

for the future?

Now, the last bracket of submissions that we

want to make, really, relate to relief. The relief

sought is directed to having the report itself

brought into the Court and all or part of it

quashed.	Now, one can go to the - because it
sought in the order nisi at page 76 of the appeal	really has not changed - one can go to the orders
book, and this is what it all started out about:

Why a writ of Certiorari should not issue removing into this Court the said proceedings

of the Criminal Justice Commission for the

purpose of quashing all findings of the said

Commission in the Report on Gaming Machine

Concerns and Regulations which relate to the

prosecutors or the "Ainsworth group", as that

term is used in the said Report -

then on certain grounds. And that, of course, is in the normal form, under our rules, of the way a

writ of prohibition runs and historically that is

what has had to happen. It calls up the record, so

Ainsworth(2) 114 26/6/91

at least this report would have to be brought into

court if such a writ issued, and that is from the

Queensland rules but one can also find that in the

English court forms and so on.

Then secondly, the second relief was - and

this is on page 78:

Why a Writ of Mandamus should not issue

requiring the Criminal Justice Commission to:

(a) disclose to the prosecutors all evidence

before the Criminal Justice Commission

which touches or concerns the prosecutors

or the said "Ainsworth group";

(b)	permit the prosecutors to appear before
the Criminal Justice Commission represented by solicitor or counsel;
(c)	permit the prosecutors, or their solicitor

or counsel, to cross-examine all persons

giving direct evidence to the Criminal

Justice Commission which touches or

concerns the prosecutors or the said

"Ainsworth group";

(d) permit the prosecutors, or their solicitor

or counsel, to make oral and written

submissions to the Criminal Justice

Commission;

(e)	provide in its Report an objective summary
and comment with respect to all consideration of which it is aware that

support or oppose or are otherwise

pertinent to its recommendations.

Now, so far as the mandamus is concerned, it

is our submission that this is just not a case for

mandamus at all because there has not been

demonstrated here any public requirement, any

statutory requirement, for the Criminal Justice

Commission to have any sort of hearing at all.

What we have, really, is a request for a report of

a particular kind and we submit this lies so far

outside the area of mandamus that, although it was

argued in the Full Court it has really only been

touched upon here, I think. I do not think it

seems to be figuring very largely in what is asked

at the moment.

Certiorari is still asked for, and you have to

really bear in mind what certiorari means when one

talks about issuing certiorari to quash a report.

The concept is that there be removed into this Court the "proceedings of the Criminal Justice

Ainsworth(2) 115 26/6/91

Commission for the purpose of quashing all findings of the said Commission in the Report", and so on.

Now, the record - I mean, there is a lot of

interesting law, of course, in what the record

consists for the purpose of the prerogative

writs - but one of the things that it does consist

is the judgment or the findings. In this case, the

only document that could answer that is the report. And the only way that this report could be got into

this Court, or into the Full Court for that matter,

would be by an order that the Speaker of the House

deliver it up.

That is the first claim that is made there.

At page 282 of the appeal book one has the notice

of appeal and one sees there that the orders which

are sought are the same as in the order nisi,

except that now there has been added, in this

notice of appeal:

Further or in the alternative a declaration that:

the Respondent in preparing and publishing the

Report:

(a) failed to accord to the Respondent's natural justice in accordance with its

duty, so rendering the Report void;

(b)	failed in its duty under s.2.14(l)(a) ..... to seek submissions from
the Prosecutors, so rendering the Report void;

(c) failed in its duty under s.3.21(2)(a) and

(b) to act fairly and openly -

Those particular statutory provisions we have

already dealt with and we adopt, of course, what

the Full Court had to say about that and, in

addition, of course, the submissions we have made

ourselves.

So that then is the present state. Certiorari

is still sought, and we submit it just cannot, in

the intelligible sense, be granted. It just cannot

possibly get the report from Parliament without

doing something, in effect, that has not been done

for hundreds of years: having a confrontation

between different powers in our system of law.

Indeed, it may well be said that the declaration

sought, which says that the document is void, the

report is void, bearing in mind that that document,

because of its publication, has now attracted - it

is now in the same position as the other

Ainsworth(2) 116 26/6/91

proceedings of Parliaments, entitled to the

immunities and privileges of the legislature. It

could well be, at least it is strongly arguable,

we would submit, that to question that report in

any way is, in fact, to infringe the privileges of

Parliament, to in fact - - -

BRENNAN J:  Do you propose to argue it, as distinct from

saying that it is arguable? The second question

is, have you any authorities with respect to

certiorari and a document that has been tabled?

MR HAMPSON:	I am sorry, Your Honour?
BRENNAN J:	Have you any authorities with respect to the

unavailability of certiorari when a record has been

tabled? I understood you to say that certiorari is

not available.

MR HAMPSON:  Because you cannot get - the reason you cannot

get it, I would submit - well, certiorari is not

available. My authority is simply this: because

it is of the nature of certiorari that you issue an

order to the person who has the record, which in

this case must be the original report, to deliver

it up to the court for its quashing.

BRENNAN J:  Have you got anything to say that - to indicate

it?

MR HAMPSON: Well, no, all I can say is just that is what

the forms say and, indeed, that is it exactly; the

order nisi follows that. The order nisi and the

notice of appeal follow the forms; follow the

forms in the Queensland practice and also - - -

BRENNAN J:  I will not trouble you to show me the forms,

Mr Hampson, that can be discovered easily enough,

but is there anything further apart from the forms?

MR HAMPSON:  No, Your Honour, I do not have anything at the

moment further than that, but I have got some

authorities that deal with the interference or the

collision between the courts and Parliament, as it

were. I am merely saying that certiorari in the

normal form - and I do not know how we would put it

in a different form because it has always got a

traditional form of bringing up the record for the

purpose of being quashed - must inevitably lead to

a summons addressed to the speaker, the person in

whose custody he is. That is also in the English

form and we have got the provision in the Act here

that says - it has been referred to more than once,

about the publications, section 2.18:

and shall be granted all the immunities and

privileges of a report so tabled and printed -

Ainsworth(2) 117 26/6/91

and that is really a document of the House. Now,

the other point that I was making that goes even

further than this and which I will argue - I am not

saying I will not. My learned friends have said -

they have put in the decision of Mr Justice Hunt in

Re Murphy in which they say in their outline - the outline of the appellants put this authority, in

paragraph 4. They say:

The order for certiorari is neither sought

against, nor directed to, the legislature or

its officers:  no question of breach of

legislative privilege arises.

We submit that you have just got to look at

the order to see that that is incorrect. It is
quite incorrect what is said there. But that

decision that is relied on there, Re Murphy, has

been disapproved of, not followed, by

Mr Justice Carruthers in a later decision, Reg v

Jackson, (1987) 8 NSWR 116. The question, of

course, in Murphy's case was the extent to which

the Hansard could be used to cross-examine people

who had given evidence before a parliamentary

committee and who are now giving evidence in a

criminal trial.

The old rule had been, it seems, that one, wanting to use Hansard, should petition Parliament

to get permission to use it for that purpose but

Parliament had taken the view that where people

consented it did not matter. Mr Justice Hunt held

that it was permissible to, in fact, allow such

cross-examination. Now, in the later case,

Mr Justice Carruthers rejected the tender of

Hansard reports, holding that parliamentary

privilege is enshrined in the Bill of Rights
precludes the use of Hansard reports in legal
proceedings where they intended to prove more than

what was said in Parliament.

Now, what, of course, they were intended to

do - in effect, he held why it was in conflict with

the Bill of Rights was really impeach the

proceedings of Parliament because the cross-

examination must necessarily really proceed on the

basis: "If you said that in Parliament, that must

have been wrong if you say something different now

and conversely." That was the nature of the

difficulty. He dealt with the matter at page 119.

Incidentally, later, I might say, that the

legislation was changed to prevent the decision of

Mr Justice Hunt representing the law. He said:

More recently Church of Scientology of

California v Johnson-Smith was approved by a

Divisional Court of the Queen's Bench Division

Ainsworth(2) 118 26/6/91

in R v Secretary of State for Trade; Ex parte

Anderson Strathclyde plc.

That case is authority for the

proposition that a report in Hansard of what

has been said or done in Parliament cannot be

used to support a ground for relief in

proceedings for judicial review in respect of

something which occurred outside Parliament.

Dunn LJ (with whom McCullough J agreed) said:

tt.,. But the question remains: for what

purpose may Hansard be used in court?

He quotes section 9 of the Bill of Rights:

'That the freedome of speech and debates

or proceedings in Parliament ought not to be

impeached or questioned in any court or place

out of Parliament.'

That article -

he says -

has been widely construed, as Browne J showed

in Church of Scientology of California v

Johnson-Smith.

Well, it is a long passage. I shall not read it

but the rest of the judgment, in my submission, is

worthy of being read because, in fact, what a

declaration which in fact said that a report

accorded by Parliament immunity and its privilege

was in fact void would be, in effect, impugning the

proceedings of Parliament consistently with the way

Mr Justice Carruthers looked at the matter there.

Now, the other authority that was given was

Chief Constable v Evans, (1982) 1 WLR, where a
declaration was made.	We should point out that the

House of Lords first of all refused a mandamus.

Obviously they had a great deal of sympathy for this

young man; they kept saying that he had been

deprived of his chosen career through the attitude of the previous police constable in forcing him to resign, but they could not, nevertheless, give an

order for mandamus because that would be interfering

- the court interfering with the executive process.

Secondly, they could not give him a declaration that

the decision of the chief constable was void because

that was unsatisfactory because it was not clear

what consequence flowed from it. Therefore, the

applicant should be granted a declaration affirming

that by reason of his own lawfully induced

resignation he had thereby become entitled to the

same rights and remedies, not including

Ainsworth(2) 119 26/6/91

reinstatement, as he would have had if the chief

constable had not unlawfully dispensed with his

services.

It seems, as Your Honour the Chief Justice put

it, phrased in such a way as suggesting further proceedings. The principal judgment is that of

Lord Brightman - some of the other Lords refer to

that judgment - and he comes to the matter, in his

speech, at page 1175:

I turn now to the question of remedies. The Court of Appeal granted the respondent a

declaration that the decision requiring the

respondent to resign or be dismissed was void.

I do not read it all, but he comes then:

An alternative to an order of mandamus

would be a declaration affirming that, by

reason of such unlawfully induced resignation,

the respondent thereby became entitled to the

same rights and remedies, not including

reinstatement, as he would have had if the
appellant had unlawfully dispensed with his

services under regulation 16(1). Such a

declaration would clarify the status of the

respondent vis-a-vis the North Wales Police,

and would leave him free to pursue such

remedies, short of reinstatement, as may be

open to him. I have in mind that under

R.s.c., Ord. 53, r. 7 an applicant for

judicial review may claim damages if they are

sought in the filed statement and if damages

could have been awarded in an action brought

for the purpose. I have not, however,

addressed my mind to the question whether it

is still open to the respondent to apply to

amend his filed statement by adding a claim to

damages. It is possible that the respondent would

not wish ..... to claim damages -

and so forth and it goes on to say that the

respondent had in fact, offered monetary

compensation. And it goes on, in Band Con the

next page:

the choice of remedy is a difficult one. It

is a matter of discretion -

and so on, but he could not have that. Now, it is

interesting, really, because it would seem that

part of the reason why the declaration in fact was

made was, as it were, to clear the air for the

Ainsworth(2) 120 26/6/91

purpose of possible further proceedings. That, of

course, does not happen in this case.

Now, we submit, in the present case the Court

will not interfere with the internal proceedings of

Parliament; this report having become part of the

Queensland Legislative Assembly's proceedings,

having passed out of the hands of the respondent

and the respondent has got now power to recall it.
We would refer to the cases which are 13 - on our

list the Court will see that we have put numbers on the left-hand side, and they are numbers 13, 14, 15

and 16. That is Pickin, Church of Scientology, Reg

v Secretary of State for Trade, Ex parte Anderson

Strathclyde plc, Amann Aviation Pty Ltd v

Commonwealth of Australia and to that could I add

Judicial Review of Administration, 4th edition, by

de Smith at page 465 to 469.

The pages themselves - when one comes to the

book one looks at, for example, No 14 which is

Church of Scientology v Johnson-Smith, you will see

the reference to it there and then there are

written in pages 528 to 530. I beg your pardon,

they are not written in. Could I, therefore, ask

Your Honours to note that the references that we

want on Church of Scientology v Johnson-Smith the

passage is at pages 528 to 530; in the next case,

that is Anderson Strathclyde, it is 238 to 239; and

I have given you de Smith, 465 to 469.

Now further, or alternatively - they are all the authorities, really, we say - would be futile

to give relief when such relief is going to involve

the interference of the internal proceedings of

Parliament. But, further, we would submit, that

relief would have to be refused on discretionary

grounds in that, first of all, the report contains

only non-binding recommendations. Secondly, the

parliamentary committee gave the applicants the

right to be heard and they did that, really, on	three occasions: by a £irst report which, in fact,
found its way into the first report of the
parliamentary committee and which resulted in no exclusion at all - no exclusion of them was being
recommended - as the evidence shows, and then later
with a second written report and finally a personal
appearance.

The result of the process - the end result -

is that the applicants before the committee

declared themselves that they were satisfied they

had received fair treatment equally with other

potential suppliers and, we submit, in the premises

there is no purpose to be going back in time and

seeking or delivery relief of the kind that is

sought.

Ainsworth(2) 121 26/6/91

Now, the last matter concerns declaratory

relief. We would submit that the declaration

sought by the prosecutors should not be made.

There are no circumstances which, as it has been

put, called for its making and, for example, that

is with the expression used by Lord Radcliffe in

Ibeneweka v Egbuna, (1964) 1 WLR 219 at 225. The

Commission has concluded its function so far as the report is concerned and, really, it was functus

officio on 1 June when the report was handed to the

Speaker of the House. For these reasons,

particularly when it is unable to recall the

report, the declaration would be of no practical

use at all. It is not going to ground further

proceedings; it has not taken away any rights that

the declaration could recall or anything of that

sort.

The cases that we would refer to in support of

that proposition are, again, on our list and they

are also in the book.	They are cases number 4
to 10.	Now the passages in each case, if we take

the first of those - I have given the reference to

Lord Radcliffe in Ibeneweka v Egbuna, that is 4.

Now, 5, the references are Master of the

Rolls Evershed and Lord Justice Asquith at

page 421, Lord Justice Singleton at page 422. Buck

v Attorney-General: Lord Justice Diplock at 772;

Maxwell v Department of Trade and Industry - that is No 7. That is, we would submit, quite an

important one because that is the next stage, in

fact, of the one that was relied on, Pergamon

Press, by our learned friends. I had proposed to

read it but I shall not because I realize time is

getting on. I will just give the references:

Master of the Rolls Lord Denning at page 536;

Lord Justice Orr, at 539; and Lord Justice Lawton,

at 541 to 542. So, it is really the second episode

of Pergamon Press.

No 8, the Full Federal Court there, that is Re

Tooth, Chief Judge Bowen and Justice Franki, at

page 327; Justice Brennan at 331 and 332.	No 9,
Tebbutt, at pages 183 and 185, Judge of
Appeal Hutley with Justice of Appeal Glass

concurring, 187 to 188; Judge of Appeal Samuels,

again, Judge of Appeal Glass concurring. Finally,

the last one, Gardner, Chief Justice Barwick at

page 184; Mr Justice Mason at 188 with whom

Justices Jacobs and Murphy concurred; and

Justice Aickin, at pages 188 and 189.	we would
submit that - - -

MASON CJ: Before you leave those cases, would it be correct

to say that on these authorities perhaps the

strongest authority in your favour is Maxwell to

the effect that a bare declaration can be made but

Ainsworth(2) 122 26/6/91

it will only be made in rare or exceptional

circumstances?

MR HAMPSON:  Yes, I think that is correct. It is an

important case not only for that reason but it is

one because it was a second instalment of the

Pergamon Press, I would have thought.

MASON CJ: Yes, and perhaps the other thing that one might

get out of Maxwell is that it would tend to favour

a declaration in the form that the findings were

the result of a process which did not involve
natural justice, in other words, involved a denial
of natural justice, rather than a declaration that

the report was void.

MR HAMPSON:	Yes, that would be so, Your Honour.
MASON CJ:	You would accept that?
MR HAMPSON:	Yes, I would accept that flows from them, however, it does not get over the other problem
that I submit is quite a real one, even if apart
from all the other submissions you finally get to
the stage of any relief here, you still have the
situation that you are making a declaration. You
are asked to make a declaration about a document, a
report, which is now part of the legislative
proceedings and subject to its immunities and
privileges. That is the Act - - -
MASON CJ:	The making of a declaration is not attended with

the same difficulties in that respect as, perhaps,

is the issue of a writ of certiorari.

MR HAMPSON:  I accept that, Your Honour, but it still is

within the meaning, as Mr Justice Carruthers said

and on the Bill of Rights itself, impugning,

really, the decision of - or the papers of -

Parliament outside Parliament.	My learned junior
point to me that in that judgment of

Lord Justice Dunn to which I referred before, at

page 239 the following occurs:

In my judgment there is no distinction

between using a report in Hansard for the

purpose of supporting a cause of action

arising out of something which occurred

outside the House, and using a report for the

purpose of supporting a ground for relief in

proceedings for judicial review in respect of

something which occurred outside the House.

In both cases the court would have to do more

than take note of the fact that a certain

statement was made in the House on a certain

date. It would have to consider the statement

or statements with a view to determining what

Ainsworth(2) 123 26/6/91

I

was the true meaning of them, and what were
the proper inferences to be drawn from them.

This, in my judgment, would be contrary to

art 9 of the Bill of Rights. It would be

doing what Blackstone said was not to be done,

namely to examine, discuss and adjudge on a

matter which was being considered in by the court of the right of every member of

Parliament to free speech in the House with

the possible adverse effects referred to by

Browne J.

So, we would submit that the reasoning still

applies to a document which has - even though it is

only a declaration about it, it is not as strong, I

quite concede, as a case of certiorari where, we

would submit, it is impossible. But nevertheless

it does, in our submission, be prima facie contrary

to the Bill of Rights because, in fact, what one is

saying is, "A document that you, in fact, have made

by statute and by your resolution - one of your

papers - and subject to all your immunities and
privileges and so forth, in fact, is examined by us

and said to be not what it is supposed to be;	it
has got a defective part in it", or however one likes to put it - however one would like to

emasculate it. That, indeed, is adjudging on

something which is in the province of Parliament.

We would submit that neither under the general

law or as a matter of statutory construction was

natural justice required to be displayed in the

circumstances of the present case. The

circumstances are quite unusual but, nevertheless,

that is the fact with which the Court is concerned.

We would submit that the Full Court correctly

construed the Act. There is no statutory

requirement to act fairly and because there were no

steps, no procedural hearing - there were no

procedural matters done - it is really importing

the law of defamation into the law of tribunals and
subordinate bodies and the like to think in terms

of denial of natural justice and regarding the

possibility of certiorari and declarations and the

like going; invalidating what in fact was done,

which was not a decision but which was a mere

report.

But then, finally, when one comes to the end

of the matter, even if all those arguments against

us, we just submit that this is a case in which

there is really available no relief at all on a

discretionary basis because things have moved on so

far now, as the Full Court anticipated correctly

that they would do, one must say. But we know, in

fact, that they have moved on so the application

Ainsworth(2) 124 26/6/91

should not be attended with any remedy and apart

from those discretionary grounds the other more

serious grounds as we have raised as well,

referring to what can be done to a report which

statutorily has become part of the Parliament's

processes. I do not know whether there is anything

I can usefully add.

MASON CJ:  Thank you, Mr Hampson. Mr Keane.

MR KEANE:  Your Honours, in relation to the series of cases:

Reg v Collins, Ex parte ACTU - Solo Enterprises Pty

Ltd and concluding with Reg v Martin, Ex parte the

Aboriginal Sacred Sights Protection Authority,

Your Honours, may we say two things about that line

of authority. Firstly, they are concerned with

reports to ministers or authorities; they are not

concerned with reports intended and inevitably
committed or dedicated to public dissemination.

That is made clear. One sees simply from the

circumstance that in Reg v Collins, the Royal
Commissioner's report was delivered to the

minister. What happened thereafter was a matter

for the minister.

That approach is reflected in the judgment of

Mr Justice Nader in Reg v Martin, Ex parte

Aboriginal Sacred Sights Protection Authority.	The
other matter we wish to say about that line of

authority is that, of course, it is quite

irrelevant to the position if it be, as we submit

it is, correct that section 3.21(2) governs the

Commission in the exercise of its functions in

proceeding to report. One does not need to concern

oneself with that line of cases.

Your Honours, our learned friends make

something in paragraph B2 of their outline of the

circumstance that:

There is no reported case in which a report,

submission or document containing opinions -

perhaps they would even consider accepting

recommendations and findings and conclusions -

but not a decision, has been quashed.

That, we would submit, is because never before has there been committed a breach of the requirements

of fairness quite so stunning as has occurred in

this case where it has occurred without any

forewarning and without providing the opportunity

to take some steps to obtain some form of relief by

way of prohibition or quia timet relief.

Ainsworth(2) 125 26/6/91

Finally, Your Honours, our learned friends

seek to make this submission, that the absence or

shortage of resources to do the job, to perform the functions of the Commission somehow, as a matter of construction or convenience, authorize the

performance of those functions badly. In our

respectful submission, that is a novel proposition

for which there is no authority cited because one

would not be expected to be found. Those are our

submissions.

MASON CJ: Thank you, Mr Keane. The Court will consider its

decision in this matter.

AT 3.14 PM THE MATTER WAS ADJOURNED SINE DIE

Ainsworth(2) 126 26/6/91