Ainsworth & Anor v Criminal Justice Commission

[1991] HCATrans 153

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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) 1 25/6/91

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON TUESDAY, 25 JUNE 1991, AT 2.19 PM

Copyright in the High Court of Australia

MR P.A. KEANE, QC:  May it please the Court, I appear with

my learned friend, MR J.D. McKENNA, for the

appellants. (instructed by Conwell Kirby & Lilley

Barker Gosling)

MR C.E.K. HAMPSON, OC: If it please the Court I appear with

my learned friends, MR P.H. MORRISON, OC; and

MR W. VITALI, for the respondent. (instructed by

R.A. Marxson, Solicitor for the Commission)

Before the Court calls on my learned friend, I

seek the Court's leave to read and file two

affidavits - the affidavit of Noel Hall sworn on

21 June 1991 and the affidavit of

Anthony Hamilton Woodyatt sworn on the same day.

The reason why we ask leave to read and file

the affidavits is: first that our case in opposing

the application for special leave was that the

prosecutor's application to the Full Court had been

premature, and indeed, Your Honour the
Chief Justice was led to say on behalf of the

Court, that the Court had come to the conclusion it

would grant special leave, and I quote from page 28

of the transcript of 7 December 1990:

But I should specifically state that there is

the possibility that when the Court comes to

grips with the issues in greater detail and

the hearing of the appeal that it might

contemplate revocation of the grant of special

leave so that it is a matter that counsel will

need to bear in mind, and in particular, I

should point out that developments before the

parliamentary committee may, in fact, result

in some considerations coming before the Court

that would bear upon that matter. So if

counsel would bear that in mind, the order of

the Court will be special leave granted.

The other point is that we wish to argue here

that what the Court really is concerned with is one

continuous process which commenced with a request to the respondent to provide advice, which it did

in its report, which resulted in the parliamentary

committee receiving the report, calling for public

submissions and evidence, conducting hearings,

receiving submissions from other persons, and

indeed, receiving from the prosecutors here two

written and one oral submission from Mr Ainsworth,

and we would say, affording all procedural fairness

in the course of doing that, concluding with the

passage of legislation, as a result of - that is

Mr Hall's affidavit. He is a person that has

received an appointment under the Act which has now

been passed. But the procedure still has not been

finished because under the Act there is provision

Ainsworth(2) 2 25/6/91

for a roll of recognized manufacturers and
suppliers of gaming machines, and Mr Hall says in
his affidavit that the time has not come yet to
fill that role - to put names on the roll.

So we would submit that the affidavits of these two gentlemen bring the matter, as it were,

up to date. When I say, "the matter", I am saying,

of course, the matter that the court below was

concerned with and this Court was concerned with on

the application for special leave.

MASON CJ: But apart from bringing the matter up to date,

are you proposing to found any particular

submission on these affidavits?

MR HAMPSON:  Yes, indeed. We will say that it is clear,

just as the Court on the application for special

leave had in mind, that the hearings projected by

the parliamentary committee could well be relevant

to the matter. We would say, further than that,

that the prosecutor had - there are two of them

really - the prosecutors had their hearing, as it

were, before the parliamentary committee. The

parliamentary committee then has reported - it,

indeed, has had tabled in the Parliament, the

minutes and the submission, and so forth, that was

made to it. So, we would submit that we are

entitled to rely on all that because the report

that was attacked in the Full Court is really just

a very early report, as it were, and there has been

a course since, a whole continuous process in the

course of which natural justice, or procedural

fairness, has been done to the prosecutors.

MASON CJ: Yes. Now do you -

MR HAMPSON:  It is not purely historic, if that is what

Your Honour thought I meant.	I do not mean that at
all.

MASON CJ:  No, I had something else in mind, actually. I

wanted to know whether you were using this material

as an answer to the appellant's case in the appeal

or whether you were seeking to use the material as

a basis for asking the Court to rescind the grant

of special leave?

MR HAMPSON:  Both, Your Honour.

MASON CJ:  Have you got a notice of motion on? You have

not?

MR HAMPSON:  No, we have not done that, but we will just

merely make submissions. At the proper time we

will just make submissions that the proper course,

Ainsworth(2) 25/6/91

really, here is to rescind the special leave that

was given, but we have not taken out a motion, no.

MASON CJ:  And you are proposing to make these submissions

in due course when it comes to you time to address?

MR HAMPSON:	Yes, Your Honour.
MASON CJ: Very well.	Now, Mr Keane, what is your attitude

to the application currently made by Mr Hampson

that he should read the affidavits?

MR KEANE:  Your Honour, as to that application, we have no

objection. As to the application that he has

foreshadowed, it is perhaps not inappropriate, in a

case concerned with natural justice, for us to

observe that that is the first indication that we

have had of that application from our learned

friends.

MASON CJ: Yes.

BRENNAN J:  Mr Hampson, how is this Court able to look at

these affidavits for the purposes of the appeal as

distinct from your application, or foreshadowed

application for revocation, of the grant of special

leave? Is it not a case of the adducing of

evidence to effect the result of a decision which

has to be based, as Mickelberg's case indicates,

upon the material in the court below?

MR HAMPSON: Well, Your Honour, if I could just put it this

way: the Full Court determined the matter on a

particular basis but looked forward, as it were, as

to what would happen in the future with relation to

the parliamentary committee, what might be done

there. That is why we submitted that the matter

was premature coming before this Court. We still

maintain that: that what, in fact, happened was an application was made - we would put it something of

this kind - that before there had ever been a

hearing what, in fact, had happened, the

prerogative writs had been applied for, as it were,

to quash a submission that someone intended to make

at the hearing. That is, in fact, the analogy that

we say that this case bears and that we argued in

the Full Court. We argued on the application for special leave that our attitude - or what we were

contending would be demonstrated to be correct by

the light of what was going to happen in the

future, that there was, in fact, this one

continuous process.	Now that has come to pass, and
we would - - -

TOOHEY J: But it is the judgment of the Full Court that is

under attack - - -

Ainsworth(2)	25/6/91
MR HAMPSON: That is so.
TOOHEY J:	- - - based upon the information available to

that court at the time it made its decision. If you are not prepared to move for a revocation of

special leave, why should we consider material that

has arisen since the court's decision was given?

MR HAMPSON: Well, because that was one of the things that

the Court said in granting the special leave.

TOOHEY J: Yes, it was, Mr Hampson, but as a possible basis

for a revocation of special leave, not necessarily

as an answer to the appeal.

MR HAMPSON: Well, in my submission, it makes no matter

really, whether we take out a notice of motion

beforehand, or argue it on the appeal itself. The

question is, and the Court itself realized, that

there were some considerations, the resolution of

which would lay in the future - this was the time

when the special leave was granted - that might

indicate that the grant of special leave was

incorrect.

MASON CJ: Well, that is a different matter and that would

justify, if it be right, an application for

revocation of the grant of special leave. But, if
the affidavits are being advanced otherwise than in

support of that, fairly clearly, they would seem to

be affidavits designed to bring fresh evidence
before the Court, and in Mickelberg we held that we

could not accept fresh evidence.

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

is here, whether there has been a hearing.	I mean,
that is the nature of the case.	It is said that,
in fact, there was no hearing below.	You, with the

greatest respect, are unable to see, in fact, the

context in which that submission is made unless you are able to see what, in fact, happened afterwards.

You see, it is not possible - I take the analogy,

if one had said that somebody proposes to make a

submission to some body or other, and if one

applied at the stage of the submission and said,

"Well this man has researched what he is going to

say and in the course of the submission he is going

to say some bad things about A". Now A says,

"Well, I want that, in fact, as a researched report

that is going forward to the body", and if he

challenges at that particular time, and if one
says, "Yes, but this is only part of a whole

procedure which is going to be a full hearing", and he is going to have his chance - A is going to have

his chance - of arguing against that submission

after it has been presented and presenting evidence

Ainsworth(2) 25/6/91

and things of that particular kind, it is important

to see whether or not that happens.

For example, you have, in fact, even cases

where what has occurred is that it has been held

that you can have successive hearings. The first

of the hearings might be a case in which natural

justice is not done but in a successive hearing you

could find that that error is remedied by the

accordance of natural justice in the second

hearing. Now, we would submit that if you are

faced with a case of that kind - for example,

Calvin v Carr, is a case in which the Privy Council

considered the matter in (1980) AC 574 - if, in

fact, what one had going before the court was an

application to attack the preliminary hearing

before the appeal, one would be entitled, in our

submission, once the matter had come on, to put

before the court the fact that after the

preliminary appeal - which was the subject of the

original attack - that there had, in fact, been the

hearing of an appeal in which natural justice had

been done to show that, in fact, what the

prosecutor was complaining about, in fact, was a

defect, if one likes, at a premature stage.

MASON CJ:	But that does not seem to meet the objection that there is a limitation on the jurisdiction of this
Court to receive fresh evidence. But can we come
back to something else you have said - and that was
I think in response to a question I put to
you - that you were going to rely on this material
in two ways: one, as a defence to the appeal, and
two, as a ground for moving to rescind the grant of
special leave, although you seemed, as I understood you, to wish to make that application later on.

Now, if you are going to move at any stage to

have the grant of special leave rescinded, it seems

to me that you ought to move now.	Now, are you
prepared to move now, and on those affidavits?

MR HAMPSON:	Yes, I am prepared to move now, Your Honour. Could I also make one point that I did not advance:
that, in so far as this question of the other affidavits are concerned, they are also relevant to
the remedy that is being sought. This is another
question which, in our submission, must always be open whether one regards it as fresh evidence or
not.  One has a situation where later events that
have occurred since the hearing, say, of the
appeal, might make completely worthless a remedy
which was earlier sought. So, let-us say, in fact,
an application is made at a certain stage seeking a
remedy, for argument's sake, that something or
other is done so that, it would be argued, the
legislation which is going to grow out of the

Ainsworth(2) 6 25/6/91

report will not be detrimentally affected by the

wrong parts of the report.

Now, if in fact, one finds that after that

hearing - after the date of the hearing - what has
happened is that legislation has, in fact, been

passed - I use this as an example - it then is

obviously too late to argue that as a reason for the remedy one has to say, "Well, the remedy has

now become one of no utility at all". Because

there has been the legislation that is the end of

the matter.

Now, that is again - in other words I take

that just as an example - but going to the nature

of the remedies which are sought here, we would

submit that these affidavits are relevant also to

that. So apart from the merits of the appeal they

are also relevant to the remedies, but I formally

move, as Your Honour asked whether I was prepared

to do, that the special leave be revoked.

MASON CJ:  Very well. You had better proceed to the

affidavits.

MR HAMPSON:  Very well. of the two deponents. We hand up the original affidavits

What we have prepared is two

separate booklets. They are volume 1 and volume 2.

Volume 1 has an index - - -

MASON CJ:  When were these affidavits served on the

appellant's solicitors?

MR HAMPSON:  They were served yesterday, I understand,

Your Honour. But I must make quite clear that I

think about 98 per cent of what is in these

affidavits emanates from the prosecutors and the

other two per cent are matters that have been filed

on them, and so forth. There are no matters of any

surprise that, I would have thought, appears at any

of them.

One of the reasons that they were done late is

the effort really, I suppose, to make certain that

the matter was as up to date as possible. You see,

Mr Hall - if one takes his affidavit - is the

Director of the Machine Gaming Division, appointed pursuant to the Gaming Machine Act 1991 - it shows

when that was passed and assented to - and

commissioners have been appointed pursuant to that

Act, and he says, under:

the Act there exists a Roll of Recognized

Manufacturers and Suppliers of Gaming Machines

but the time has not yet arisen to consider if

anyone is to be on that Roll.

Ainsworth(2) 7 25/6/91

Under Section 6.15 of the Act the Director may cause tenders to be called for supply of

gaming machines.

There is also provision under Section 4.5 of the

Act:

for the grant of a repairer's, service

contractor's or machine manager's licence are

to be made to the Director.

The time has not yet arisen when consideration

will be given as to who will be authorized

and so forth.

The other affidavit - Anthony Hamilton

Woodyatt - starts at page 6. He is:

the Research Director for the Parliamentary

Criminal Justice Committee -

and he says that Leonard Hastings Ainsworth was

invited to:

give oral evidence before the Committee on the

same terms as was granted to other persons -

and he exhibits in the letter from the committee to

the solicitors for the appellant - that is at

page 10, the actual letter is at 11, the backing

sheet is at 10. The response then is the next

document, page 14, in which the solicitors for the

prosecutors ask a number of questions.

MASON CJ:  So far this does not seem to be taking us beyond

the materials in the appeal book. This letter is

at page 304 of the appeal book.

MR HAMPSON:  Yes, that is so. Some of these letters were

put in by the prosecutor but very shortly hereafter

not. The next one is 4 March 1991, 8 April and

then finally - - -

BRENNAN J:  What are these to show, Mr Hampson?

MR HAMPSON: Well, they are just the lead up to the

submission that is made - this is the second

submission that appears at page 29 and it continues

right up to the end of volume 1 - that is the

submission made by the prosecutors. That
submission, in fact, was not in evidence before the

Court at the time special leave was given.

The next matter in the affidavit is that on

24 May 1991, the appellant,

Mr Leonard Hastings Ainsworth, accompanied by his

Ainsworth(2) 8 25/6/91

solicitor in counsel, appeared before the committee

and he addressed the committee for an hour and 10

minutes.

BRENNAN J:	That affidavit, that submission - - -
MR HAMPSON:	I am sorry.  I jumped over the supplementary

submission - that is in paragraph 4, that is

exhibit G, a copy of the appellant's original

submission dated 31 July 1990 and a supplementary

submission dated 12 April 1991. That was, of
course, well after the day on which the Court heard

the application for special leave. That commences

in volume 2, right at the beginning, and goes

through to page 243 - so the first half of volume 2

really is the supplementary submission. Then, the

next document, marked J - well, Hand I are further

letters which - - -

MASON CJ:	Where is J?
MR HAMPSON:	At page 251, that is after those couple of

letters that lead to the hearing, and at page 251

you have the - that is the part of the report which

sets out the procedure that is going to be

followed. Mr Woodyatt says that that was the

procedure that the committee followed in all

respects with other cases. At at page 258 is

exhibit L, a letter by the chairman of the

parliamentary committee to the prosecutor's

solicitors, in which he says:

the Committee resolved to table and print the

Minutes of Evidence of the hearing held on

Friday 24 May 1991 being oral submissions

received by the Committee from

Mr L H Ainsworth and Others .....

The Committee is mindful of the

forthcoming hearing in the High Court

instituted by Mr Ainsworth, and in the

interests of fairness to both parties and to

assist the Court, has resolved to table the

document and provide a copy to you for you

information.

And that is the next document - that is M. That

starts at page 261. It records there, at page 263,

that:

on Friday 24 May 1991, the Committee heard

oral submissions by

Mr Leonard Hastings Ainsworth, -

and goes on to some other persons too.

Ainsworth(2) 9 25/6/91

BRENNAN J: Mr Hampson, at the time of this Parliamentary

Criminal Justice Committee Report, the Gaming

Machine Act had already passed into law, is that

right?

MR HAMPSON: That is so, yes, Your Honour.

BRENNAN J:  What was the function of this committee report?

MR HAMPSON: Well, the report at this stage was to give

Mr Ainsworth the opportunity of answering the

Criminal Justice Committee original report, in

respect of which he had already been given an

invitation back at the time of the Full Court

hearing to appear, but because of the pendency of

litigation he had declined to appear at that time.

He then made a written submission and now this year

- that was the first letter I showed - the

committee renewed its invitation to him to appear.

BRENNAN J:  So all these are just reports that are going to

be tabled in the Parliament and made public on that

account, is that correct? - - -

MR HAMPSON: Well, they have been - that has happened

already, yes. Mr Ainsworth's evidence starts at

page 266. It starts off, in fact the chairman says

to him, at page 266 of the book:

This is an opportunity for you to respond to

the CJC's report in any manner you see fit.	I
therefore hand the opportunity to you.

And then he goes on, and the submission then

continues until page 288, really. At page 280, the

chairman says to him, in fact, at the top of the

page:

I just think for the record it is worth

stressing that while we fully appreciate how

you as an individual and the company feel

about the CJC report, as far as the process is

concerned, it is one step along the way.

Indeed, as I said at the outset - and I

re-emphasize this - following the report of

this committee as tabled in the Parliament,

and following that subsequent adoption by the

Government and the Parliament, you are not

excluded, nor your company, from the processes

in Queensland.

Mr Ainsworth:	Thank you.
The Chairman:	And you would be aware that

yesterday the Machine Gaming Commission was

appointed, and it will be going through the

processes. Now I say that for the public

Ainsworth{2) 10 25/6/91

benefit so that everyone understands that you

what you are saying. The other matter relates

are not excluded from the process in

to your reputation and standing, and clearly that is an important matter. I just want to

make sure the first matter is clearly

understood.

And he goes on to offer a bit of natural justice,

really, because he says that in relation to what

Mr Ainsworth had to say:

And we do understand some of the matters

you have said to us today. I guess we have to

say for the record though that some of the

matters you have dealt with have involved

other individuals, so if people do want to

provide material to us in relation to what you

have said, we will accept that in the

interests of fairness and in the interests of

natural justice. I think you would understand

the sensitivities of that.

And then he sums up at the bottom of that page his understanding of Mr Ainsworth, the prosecutor's

complaints. That goes over onto the next page,

when he asks:

In rough summary, without excluding

details, have we got it right?

Mr Ainsworth: Yes, that is correct; you

certainly have.

The Chairman: That is what you are saying?

Mr Ainsworth:  Yes.

And then he turned, as it were, over to the other members of the committee for any questions that

they wanted to ask and certain questions were asked
of Mr Ainsworth.	At page 285 there is a question

from Mrs Edmond, about half-way down:

Mr Beattie has explained that you will not be in any way excluded from the process in

Queensland; you will be then submitting

tenders?

Mr Ainsworth: Yes.

Mrs Edmond:  And do you feel that your tender

will be treated differently because of the CJC

report?

Ainsworth(2) 11 25/6/91

Mr Ainsworth:  No, no, I have every confidence

in everybody that I have come in contact with

so far, and I can only say that Mr Hall, in

particular, has got my greatest confidence in

that he is very straight up and down, and we

have done our best to help, and we will

continue to do our best to help.

And then at page 287 it concludes, really, about

half-way down:

The Chairman: Yes. Mr Ainsworth, in

conclusion, are there any other matters you

want to mention?	We want to make sure you
have a maximum opportunity today.	I think you
have done pretty well.
Mr Ainsworth:	I think I have said enough.

The Chairman: Are there any other matters you want to conclude with?

Mr Ainsworth:  Would you have any idea when

the supplementary submission might be tabled?

The Chairman:	Do you mean the record or our
report?

My second supplementary submission

of 12 April.

The Chairman: If you table your submission

today, we will make it available today.

And so forth. So, in effect, that was the end of

those particular proceedings. That report was, in

fact, tabled as he says in paragraph 9. It was

delivered to the Clerk of Parliament, indeed,

presented to the Parliament on that date pursuant

to a resolution of the Legislative Assembly made on

20 December 1901.

So, the position that we would say the

material shows is, in fact, that before that final

report by the committee - let me put it this way.

Right at the very beginning, the inception of all

this, really, was a request that the respondent

provide some advice but before the report was

completed, before that actual advice which was,

incidentally done not by the process of any

hearings but purely by research, purely by taking
things from books and reports and papers, things of
that kind, it was agreed between the respondent and

the parliamentary committee that the parliamentary

committee would conduct public hearings and the

Commission conducted its affairs on that basis, and

that appears at page 176, line 10; page 172, lines

Ainsworth(2) 12 25/6/91

25 to 30 - this is the appeal book I am referring

to now, if the Court pleases - and page 174. That
was the inception of the matter so at the time that

the report was presented it was understood that the

committee would be conducting public hearings.

Notices of public hearings were advertised in due course and exhibits A, B, C, D - they appear at

pages 129, 131, 135, 137 of the appeal book.

The request that I mentioned before by the prosecutors that further consideration of their

position be suspended appears at pages 148 and 152.

That was the original invitation to appear before

the parliamentary committee.	The respondent agreed
to that - that is page 164.	You then had the

lengthy submission in writing of

31 July 1990 - that has already been referred to -

that is exhibit F to Mr Woodyatt's affidavit and

the submission was described as:

a detailed rebuttal of all the allegations.

That description is quoted from page 94, line 41.

The most recent invitation was 14 February

1991 to again appear before the committee. They

accepted that and they have appeared, as we have

pointed out, and they have stated - or Mr Ainsworth

has stated - he did not consider, because of the

Commission's report, their application to supply

gaming machines in Queensland would be treated any

differently to other suppliers and they had every

confidence in being treated fairly in that

particular situation. It has not yet really

reached the stage where their name is put on the

register because no one's name has been put on the

register.

Now, we submit, that in these circumstances,

really, what the Court had in mind at the time of

the application for special leave has really come

before the Full Court by the prosecutor was that	to pass. What, in fact, the major complaint made
the prosecutor would be excluded from business, but
this report recommending that the prosecutor not be
considered for the supply of gaming material would
mean that it would be likely to be excluded from
business, from being able to sell its machinery in
Queensland and that, therefore, that was the
expectation that it had of being considered which
was now likely to be defeated by the report and
that there should have been - it was argued
different ways - a hearing, or they should before the report was given, given them an opportunity to
comment, to rebut the statements that were made in
that report which went to the Parliament and to the
parliamentary committee.

Ainsworth(2) 13 25/6/91

Now that has come to pass. They have been

given a very full opportunity to comment upon that

particular report. They have been given every

opportunity and they are of the view now that in

the process of tendering and the like they are not

going to be detrimentally affected because of the

report.

So the only matter of which the appellant here

could possibly complain is to say, "Well, before
you delivered your report to the parliamentary

committee to the Parliament and the like, it being

a report which you put together - your research

people just put it together by making extracts from

other documents and so forth. The report is

available and one can see the different sourcings

on it - when you put that document together, what

you should have done, even though you knew that the

parliamentary committee was going to have a

hearing, and even though you did not propose to
have a hearing at all - you were just putting this

forward as a submission really, as advice, in the

same way as a witness would really be putting

forward a submission to Parliament to the

parliamentary committee, to the speaker - you

should in some way have contacted us, not because

now that there is any fear that we would have been

excluded from business now - we recognize that what

has gone since has removed that fear - but because

it was wrong and offensive to us and possibly

defamatory to make a recommendation that we should

not be included in the business, that that
recommendation should not have been made without
hearing from us even though, in fact, you did not

conduct any hearings", and it is perfectly clear

that no hearings were conducted and it is our

submission the Full Court was completely correct

when they said that on the statute there is nothing
that requires a hearing to be conducted in

circumstances such as this. I mean, it can, of its

own volition, have a hearing but there is no public

duty to have a hearing.

Now, in those circumstances, we would submit

that what the continued prosecution of this appeal

would really to be seek a remedy and say, "Well
somebody defamed me. I have not lost any legitimate

expectation of a business advantage, or something of that kind, but if somebody publishes something

about me which is defamatory, before that

publication is made, I have a right to be heard -

not necessarily, I suppose, that that is going to

change what is said about me, but I have a right to

be told the defamatory material that is going to be

told to me".	Now that, of course, is not part of
the law of defamation.	One has one's remedy in
defamation.	So one must say here, because of the

Ainsworth(2) 14 25/6/91

fact that the remedy for defamation is, in fact,

taken away, once Parliament resolves to publish the

report, it then becomes an absolutely privileged

document which means that the right to sue for

defamation is lost, that we therefore incorporate -

because the right to sue for defamation is lost, we

therefore, as it were, incorporate here the

jurisdictions which the Commonwealth courts have

traditionally exercised, to supervise the

proceedings, the jurisdiction - - -

MASON CJ:  Mr Hampson, I do not want to interrupt you, but

you do seem to now to have degenerated into

submissions that I would have thought were more

properly submissions directed to responding to the case that one assumes Mr Keane is going to present

to the Court.

MR HAMPSON:  Yes.

MASON CJ: It does seem that notwithstanding a lot of this

material relates to what has happened, subsequent
to the decision of the Full Court of the

Supreme Court, all it does is to demonstrate that what has happened is what one might have expected

to happen at that point, so that your application

to rescind the grant of special leave appears to be

not really to be based on subsequent developments,
except to the extent that what has happened is what

one might have expected to fall out anyhow.

MR HAMPSON:	Yes.
MASON CJ:	Now, that does not seem to be a particularly

strong ground for the recision of a grant of

special leave.

MR HAMPSON: Well, the other thing, I suppose, that is of

significance - I was just trying to say that with

relation to all the other matters, other than

defamation - well I have probably made the

submissions I wanted to make on that. The only

other matter then relates to the question of what

is the remedy? What is the remedy? Now that one

sees that the end result is reached, what sort of

remedy does one carve out of this? There is no

obligation on the commission to conduct a hearing

and what has happened now that the thing has gone

right to - - -

MASON CJ: Well obviously there are all sorts of

difficulties in terms of remedy if the appellant is

otherwise successful.

MR HAMPSON:  Yes. Well, I just make the point it is now

clear - it might have been anticipated before that

there would have been those difficulties - that

Ainsworth(2) 15 25/6/91

that has come to pass in the sense that there has

been the legislation, there has been the hearing

and things of that kind.	I do not want to take the
matter any further.

MASON CJ:  Thank you, Mr Hampson. Yes, Mr Keane, what do

you want to say about this?

MR KEANE:  Your Honours, under the legislation under the

Act, the Commission is established to:

monitor, review, co-ordinate and ..... initiate

reform of the administration of criminal

justice.

The parliamentary committee is established by that

Act as well. It has a function of monitoring and

reviewing the functions of the Commission and it

may report. It is not a function of the committee,

in our respectful submission, to itself come to

views about matters of fact in the way in which the

Commission has plainly come to views about matters

of fact, not matters as to the desirability as to

how one might structure the gaming machine industry

in Queensland, but matters of fact about the

appellants and their character and their conduct in

business and when the report of the CJC, the

Commission was requested, whether is was expected

that they would descend to the particular findings

adverse to the appellants that were made, whether

or not that was the case, that is in fact what they

have done. Our position is that true it is

Mr Ainsworth was polite when he said he expected

and hoped a fair hearing -

MASON CJ:  Now, Mr Keane, the·court is of opinion that we

should stand over the giving of the decision on

this application for revocation and that you should

proceed now with the presentation of your appeal.

MR KEANE:  As Your Honours please. If Your Honours please,

we hand up eight copies of our outline of

submissions and eight copies of a short chronology.

MASON CJ: Thank you. Yes.

MR KEANE:  Your Honours, if we might give Your Honours and

perhaps repeat a little of what we said, to give

Your Honours a very, very brief overview of the

Act, if we might then turn to the findings that

have been made against us in this report and then

turn to consider the judgment of the court.

Your Honours, under section 2.14(1) of the

Criminal Justice Act 1989 - and Your Honours have

been provided with a copy of that - the

Ainsworth(2) 16 25/6/91

Criminal Justice Commission is obliged and

authorized to:

monitor, review, co-ordinate and ..... initiate

reform of the administration of criminal

justice.

Your Honours will see that under section 2.14(2):

the Commission -

is obliged to -

report to the Parliamentary Committee -

inter alia, subsection (c):

when the Commission thinks it appropriate to

do so with respect to that matter, in relation

to any matter that concerns the administration

of criminal justice.

its report, that that is the source of its powers

It appears, there being no other basis for the

and obligations.

BRENNAN J:  What powers can be found there?

MR KEANE: Well, an obligation to report, once the

Commission thinks it appropriate to do so, with respect to a matter in relation to any matter that

concerns the administration of criminal justice.

BRENNAN J:  I can understand the obligation; I am looking for the power. What need is there for a power?

MR KEANE:  In the sense that, like any citizen, the members

of the Commission may speak?

BRENNAN J: Yes.

MR KEANE:  Yes, Your Honour. Perhaps we could put it better

to say an obligation to report in the event that it

considers it appropriate to do so.

BRENNAN J: Well, it is a very radical difference, because

you are seeking a remedy to quash the exercise of a

purported power. Absent a power, where is your

case?

MR KEANE:  Our case lies in the power of the Commission to

determine that it is appropriate to make a report.

BRENNAN J:  To determine that it is appropriate to make a

report?

Ainsworth(2) 17 25/6/91

MR KEANE:  When the Commission thinks it appropriate to do

so. Section 2.14(2)(c):

when the Commission thinks it appropriate to

do so -

it -

shall report.

And Your Honours -

BRENNAN J: So, what you would seek to quash is the decision

that it was appropriate to make a report?

MR KEANE:  No. The report that it makes, or that it effects

to make, in pursuit of that power, so as to leave

it obliged to continue to discharge the obligation

to make a report, having determined to exercise

that power.

BRENNAN J: But the power you identify is no other than the

power to think it appropriate?

MR KEANE:	Having determined that it is appropriate to report, it is obliged to do so and it is our case
that, though it has effected to do so, it has not complied with the requirements of natural justice
that conditions - - -

BRENNAN J:  I appreciate the submission. What I am looking

for is whether you were saying that it exercised a

power to report?

MR KEANE: It performed a function in reporting.

BRENNAN J: Well, I have outlined to you my difficulties.

MR KEANE:  I appreciate Your Honour's point and our response

is to say that the Commission performed a function

in reporting, a function that it was obliged to

perform having determined, as a result of the

discussions that are mentioned in the evidence,
that it was appropriate for it to do so.

We should remind Your Honours that in 2.14(l)(b), where it secondly appears, it is

obliged in discharging its functions in its report

to present a fair view of all submissions and

recommendations. Your Honours, these - - -

MASON CJ: But does it make any difference to your

submission if, in fact, the committee is acting in

discharging a function or an obligation, as

distinct from a power?

MR KEANE:  The Commission?

Ainsworth(2)	18	25/6/91
MASON CJ: Yes.

MR KEANE: Well, in our respectful submission, not, but if

it be thought there is a difficulty for us there,

we say that it is discharging a function, required

of it under the Act, having determined to do so.

The only other point we want to make about the

Act or the structure of the various bodies

established by the Act at this stage is that under

the Act the parliamentary committee is established

by Part IV. Under section 4.8 the parliamentary

committee is given various monitoring and reviewing

functions and may report to Parliament on matters

pertinent to the discharge of the Commission's

functions.

Functions and powers -

section 4.8(l)(a) and (b). Your Honours, the

Commission has an investigative function which

might be thought appropriate to fact finding, see

section 2.lS(f)(iv). The parliamentary committee

has not and, as we say in our chronology, this

report was the first report of the Commission.

That is a matter that is of some relevance in

relation to the question of special leave which we

will address, Your Honours, later at the end of our

submissions.

If we can go then to the report.

Your Honours, the effect of the report, which was

the result of an investigation according to the

report, was to damn the prosecutor's reputation

generally and particularly in relation to the

business of supplying gaming machines.	Can we take
Your Honours to page 2 of the report.	We draw

Your Honours' attention to the first paragraph of the text of the document and then to the

recommendations that are made and take Your Honours

over the page to page 3 of the record where, on the

second paragraph on that page, it said:

The Commission has conducted some

investigations of intending participants in

the gaming machine industry and recommends

that:

The Ainsworth group of companies not be

permitted to operate in the gaming machine

industry in Queensland.

These views are expanded. For our, purposes, with

respect, we propose four examples that might

suffice to establish what we submit is a case not

of advice or general recommendations but of what purport to be findings about our unfitness - - -

Ainsworth(2) 19 25/6/91

BRENNAN J:  Do you say that that part on pages 2 and 3 is

part of a report made in purported exercise of a

statutory obligation?

MR KEANE:  It certainly effects to be, Your Honour - it

purports to be.

BRENNAN J:  Of a report? I mean, the following page,

page 4, is headed "Report".

MR KEANE:  I am sorry, I take Your Honour's point. That is

a covering letter by way of explanation of what

follows. In the sense the thing that follows is

entitled "Report".

BRENNAN J:	What are you seeking a remedy in respect of?
MR KEANE:	The report.

BRENNAN J: That is starting at page 4?

MR KEANE: Well, I suppose - no; starting at page 2.

BRENNAN J: Well, that is what I was - so you say that what

starts at page 2 is something which is covered by,

to use a neutral term, the provisions of the

statute?

MR KEANE:  It says in the first paragraph on page 2:

This report of the Criminal Justice Commission has been prepared with a view to providing the

best advice in relation to the extent of

criminal involvement and activity in the

gaming machine industry.

So it certainly, in its terms, purports to be part

of the report. Unfortunately, Your Honours, the

affidavit to which this document was exhibit "A",

has not been reproduced in the record so one cannot

see whether the whole of this document, including

that, is part of what was tabled in Parliament.

BRENNAN J: All I am seeking to discover is whether you say that pages 2 and 3 are pages which fall within the

words of the statute to which you have drawn

attention under the heading "Functions".

MR KEANE:  We submit they are, because they say they are.

BRENNAN J: Well that is perhaps a matter of construction.

Is that all there is, one looks at the

construction?

MR KEANE: All we can give Your Honours.

BRENNAN J: Yes.

Ainsworth(2) 20 25/6/91

MR KEANE:  The effect of that report was expanded upon so

that one can see that it is far beyond matters of

general recommendations about the structure of

industry. Can we take Your Honours to page 21 of

the record, three lines from the bottom:

Any examination of the evidence leads to questions about relationships between

Ainsworth, his executives and associates and

suspect former NSW police, criminal identities

and former senior NSW police. It would appear

from the evidence that investigations into the

Ainsworth organization were fully warranted.

This commission is aware of other matters of

complaint in relation to Ainsworth where the

course of investigation has been unusual.

Over the page, on page 23, half-way down the page,

under the heading "Comment", the Commission repeats

the recommendation which you have seen earlier. If

one goes then to page 26 of the record under the

heading "Illegal Activities: Manufacture, Supply

and Maintenance of Gaming Machines":

The issues of concern here are that some

gaming machine manufacturers in Australia have

had a propensity for cultivating and on

occasion corrupting persons responsible for

their regulation;

And then it goes on. I will not read it out to

Your Honours, but we invite Your Honours to read

it, and that the final paragraph refers to the:

examples of these practices spelt out below

relate to either -

to two of the named organizations and we invite

Your Honours to read over the page, the balance of

that paragraph.

Finally, Your Honours, without wishing to further multiply examples, can we take Your Honours

to page 40 where, under the heading "Machine

Suppliers" in the second paragraph, the authors of the report reiterate, lest the message has not got home before, the recommendation that they have made

earlier.

MASON CJ: Are we concerned with this question whether the

covering letter forms part of the report in view of

the contents of pages 23 and 40?

MR KEANE: Well, we have not been concerned about it,

Your Honour.

Ainsworth(2) 21 25/6/91

MASON CJ: Because you have got the recommendation that you

seek to challenge at both pages 23 and 40 in the

report itself.

MR KEANE:  Yes, that is so.

MASON CJ: Well, the covering letter seems to be beside the

point, does it not?

MR KEANE:  Except possibly, I suppose, it might be that it

is not something that attracts the immunity that

the report attracts.	But it is not something which
we wish to argue about.	We approach the case on

the footing that all of exhibit "A" is the report.

Your Honours, in the record in cross-

examination, at page 185, lines 15 to 25, it was

admitted by the Chairman of the CJC,

Sir Max Bingham, that the publication of these

findings would be harmful to the appellants.

TOOHEY J: What do you mean by findings, Mr Keane? Are you

differentiating between findings and

recommendations?

MR KEANE:	In terms of the harm they do - - -
TOOHEY J:	No, I am asking you whether you are using findings as distinct from recommendation?
MR KEANE:	Perhaps we should say findings and

recommendation, because comments, Your Honour, like

the comment at page 21 of the record:

Any examination of the evidence leads to

questions -

The material at page 26, in the passage that we

read out to Your Honours, beginning:

The issues of concern here are that some

gaming machine manufacturers in Australia have

had a propensity for ..... corrupting persons

responsible for their regulation.

They effect to be findings of fact; they effect to

be conclusions of fact, not recommendations, and

they are different in quality, one would submit,

from recommendations which might have been made

without the rest of this context and which might

have been the subject of review, by the process

that our learned friends have talked about before

the parliamentary committee.

TOOHEY J: Well, say the Commission had written to the

parliamentary committee saying, "We have had no

time and we do not have resources to conduct

Ainsworth(2) 22 25/6/91

investigations of our own, but we have read a
number of reports into the gaming industry in other

parts of Australia. Here they are:", they mention this particular company or its associates, "and in

the light of what we have read, we recommend that

this company be not one of those chosen to supply

gaming machines". Now, have you got a finding in

that situation?

MR KEANE:  No, you have got a recommendation, but what you have also - - -

TOOHEY J: Could I just ask you this: when you use the term

"finding" are you speaking of a particular finding
of fact made by the Commission in the light of

material which it has gathered for itself, as

opposed to material that was simply available to

the public?

MR KEANE:  Yes, we are speaking about conclusions that it

purports to make and having made those -

TOOHEY J:  I did not use the word "conclusions", I was

trying to avoid that; "findings", "findings of

fact", because that is the expression that you have

used.

MR KEANE:  We also use the expression "conclusions of fact",

and we submit they mean the same thing in this

context. They mean the same thing for our present

purposes. What has happened is the Commission has
purported to conclude that certain states of

affairs exist.

And they purport to conclude that those states

of affairs exist on the basis of material in

respect of which we have not been heard. Having

done so, they then proceed to make recommendations

to our considerable detriment. Not that the

conclusions of fact they reach are not to our
detriment either.

TOOHEY J:  I just ask you one other question in that regard.

If the Commission had written to the parliamentary

committee and said, "Here is the report of the X

committee in New South Wales or Victoria into the

gaming industry in which comments adverse to the

present applicants are made. In the light of what

has been said in those Royal Commission reports, we
recommend that this company be not invited to

tender". Now, would that be a matter in respect of

which the applicants would be entitled to be heard?

In other words, do you have another Royal

Commission into the findings of the Royal

Commission?

Ainsworth(2) 23 25/6/91

MR KEANE: Well, if this Commission is prepared to make

recommendations rather than simply to inform the

parliamentary committee of views that have been

reached elsewhere, if it is prepared to make

recommendations on that footing and to do so

without providing the other material that is in the
public domain in relation to those Royal

be heard. So you can put it before that body, that

Commissions, then we say you do not have another

is to say the commission, before it sends it all

off with adverse recommendations to the

parliamentary committee.

With respect, it is not as if it is asking a

great deal to be allowed to be heard about those

matters and to put a version to the body that

proceeds to make a recommendation on the basis of

one side. The sort of example that Your Honour is

putting to me, with respect, is very close to the

situation where the Commission simply says, "There

is this material available in the public domain.

Make of it what you will." But that is not - it is

close, but it is not what happened, because they

did not do that.	They did not even say, "There is
this material in the public domain.	You may care

to take this matter up with the people to whom it's

been referred".

TOOHEY J:  So the real complaint, is it, is that the

Commission made a recommendation based on the

material that it had taken into account?

MR KEANE: 

The real complaint, with respect, is that they

expressed views indicating an acceptance, as a
matter of fact, of that information and proceeded

to make a recommendation on the basis of that

acceptance. In our respectful submission, one

cannot tease out, segregate, bits of the report.

It is a very damning document.  And it is damning

of us particularly. It is damning of the

appellants particularly, as to their reputation and

in relation to their conduct of their affairs in

this business.

BRENNAN J: 

What would you say if this report or a report

had come in similar terms from the consorting

squad, through the Commissioner of Police?

MR KEANE:  To the Commissioner of Police?

BRENNAN J: No, from the Commissioner of Police? Well, to

the Commissioner of Police from the detective

sergeant in charge of the consorting squad?

MR KEANE:  If the various matters, the subject of this

report, had been conveyed by one responsible

Ainsworth(2) 24 25/6/91

officer to another responsible officer without

being the subject of general publication, it may

well be we would not have ground for complaint.

BRENNAN J:	What would be the difference?
MR KEANE:	The difference is that this report, provided

pursuant to section 2.18, is tabled in Parliament, is then apt to be disseminated widely - as in fact

happened - in circumstances in which we have no

redress at all.

BRENNAN J: Is a tabling in Parliament mandatory?

MR KEANE:  Yes.

BRENNAN J: Well, now you have a power, have you not?

MR KEANE: Section 2.18(1):

Except as is prescribed or permitted by

section 2.19, a report of the Commission,

signed by its Chairman, shall be furnished -

to those various named officers.

(3) 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.

(4) A report printed in accordance with

subsection (3) shall be deemed for all

purposes to have been tabled and printed by

order of the Legislative Assembly and shall be

granted all the immunities and privileges of a

report so tabled and printed.

And:

(6) No person shall publish -

et cetera -

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.

And can I answer Your Honour

Mr Justice Brennan's example further by taking you to section 2.19(2), because Your Honour will see there that in so far as one may be concerned with

information of a particularly sensitive or

confidential nature in relation to the

Ainsworth(2) 25 25/6/91

administration of criminal justice, there is no

need to disclose it in a report at all.

BRENNAN J:  Your proposition then is this, is it not, that

the commission uniquely has a power to produce a

report which, by statute, is a report that is bound

on delivery to be printed and to be treated in all

respects as a parliamentary paper?

MR KEANE:	Yes, Your Honour.
BRENNAN J:	And nobody else has power to do that?

MR KEANE:  No. Even in the example that Your Honour posed

to us, if one was aware that it happened one might

have a remedy in defamation subject to the defences

available to any citizen. That is not the case

here. And as we have said, there was no doubt in

the mind of the chairman that this report would be

harmful to us. The views expressed in the report

were expressed without the appellants being

informed of the investigation, much less of the

intention to publish the views, conclusions of fact

or findings, call them what you will, and

recommendations. That appears in the affidavit of

Mr Ainsworth at page 109 of the record. Nor were

the appellants afforded any opportunity to address the various anecdotes adverse to them collected in the report as the basis for the recommendations

that were made.

Your Honours, in our respectful submission, it

is clear from the evidence that to have so informed

the appellants and given them an opportunity to

answer the case against them would not have

involved any practical problem. we made it clear

at the hearing before the Full Court that we are

not interested in disclosure of confidential

sources; that there would have been no practical

problem caused by affording us an opportunity to be

heard and to answer the various pieces of material

relied upon against us; that it would not have

caused any practical problem is apparent from the

evidence. See the record at page 174, lines 15 to

30, and 180, lines 5 to 15, and 25 to 48.

Your Honours, our learned friend made

something of the fact that the report was done by

way of research and that it is therefore a research

function. The material shows that the report was

prepared by the only researcher then in the employ

of the CJC, a journalist, a Mr Dickie, who does not

appear to have been allocated to any particular

division of the Commission. That appears in the
evidence in the cross-examination of

Sir Max Bingham at page 182 of the record, lines 15 to 25, and in re-examination at 192, lines 5 to 20.

Ainsworth(2) 26 25/6/91

Your Honours, the factual material relating to the genesis of the report does not appear to be in

any controversy, and it was not before the Full

Court. The Full Court held that natural justice as

a condition of the exercise by the Commission of

its functions or powers was not expressly required

as a condition of the exercise of those functions,

nor was it implied.

Your Honours, may we deal with that latter

point first and, indeed, the latter point, that is

to say the implication of natural justice as a

condition of the exercise by the Commission of its

functions, is the subject of paragraph 1 of our

outline.

Your Honours, the Full Court held that

publication of the report was not something which

might affect the appellants in such a way as to

attract the requirements of natural justice, and

there appear to be four considerations upon which that conclusion was based. May we summarize them shortly.

Firstly, the implied exclusion of an

obligation to accord natural justice by the

presence in the statute of some requirements to

accord natural justice that did not catch the

particular case; secondly, the absence of a

sufficient interest in the appellants to attract

the presumption; thirdly, the possibility that

inconvenience would be caused to the Commission in

the proper discharge of its functions, thus

excluding the presumption; fourthly, the

possibility that prqcedural fairness, in an overall
sense, might be accorded to the appellants by the

processes of the parliamentary committee.

In relation to the first point, that is to say

the implied exclusion of the presumption that

natural justice conditions the exercise of

statutory powers and authorities, Your Honours, may

we take you to the reasoning of His Honour

Mr Justice McPherson at page 212, lines 5 to 20.

Your Honours, we will not read that out but can we

particularly emphasize the passage that commences

five lines from line 20 as a starting point. Your

Honours, there is a deal of reference to authority

and principle that follows. His Honour's

discussion of this point appears to conclude at

222, at lines 5 to 10, where His Honour concludes,

we would submit, somewhat surprisingly:

If the legislature had intended to accord

natural justice to the prosecutors, it is

surprising that the course it dictated

inexorably ensures that they are deprived of

Ainsworth(2) 27 25/6/91

the right to complain in a court of law about

defamatory statements in the Report.

Then he says:

it may equally well be said that, simply

because that result follows, it must have been

intended that procedural fairness should be

afforded -

and he goes on to conclude that other

considerations countervail against that suggestion, and in particular, the possibility of inconvenience to the Commission in the discharge of its functions and the availability of the possibility of

procedural fairness by reason of the activities of

the parliamentary committee.

Delaying for the moment with the first

consideration that weighed with the court, that is

to say the consideration that there is an implied

exclusion of natural justice, because there are

some provisions in the Act which expressly require

observance of the requirements of natural justice,

we make the submission that such an approach runs

counter to the principles expounded in

Annetts v Mccann.

Your Honours will have been provided with

three volumes of cases by our side.	They are
volumes 1, 2 and supplementary volume 1.	A copy of

the decision in Annetts v Mccann is located in

volume 1, at page 1.

BRENNAN J:	Volume 1 did you say?
MR KEANE:	The list of authorities volume 1, not to be

confused with supplementary list of authorities,

volume 1.

MASON CJ: That is what we have confused it with.
MR KEANE:	If we can take Your Honours to the first page of

that book, page 167 of the report that appears in

the ALJR report. Can we take Your Honours firstly

to the left-hand column, last paragraph on the page

and all of the right-hand column.

MASON CJ: It can now be taken as settled?

MR KEANE:  Yes, Your Honour. That is the passage with which

we would commence and we would read over to

page 168 of the report in the left-hand column down

to letter E. While Your Honours have that report

open, in relation to the submission we make in

paragraph l(b) of our outline as the sufficiency of

a person's interest in his reputation and

Ainsworth(2) 28 25/6/91

livelihood as an interest sufficient to engage the

requirements of natural justice, can we refer

Your Honours to the left-hand column on page 168G:

Secondly, the interests which they represent include the protection of the reputation of

their deceased son.

MASON CJ:  I have not picked that up. Where is that,

Mr Keane?

MR KEANE:  Your Honour, it is in the left-hand column on page 168 of the report, opposite the letter G:

Secondly, the interests which they

represent - - -

MASON CJ: Yes, I have it.

MR KEANE:  And on that point can we take Your Honours as

well to the decision of Your Honour

Mr Justice Brennan at page 6 of our booklet, which

is 172 of the report, in the passage which

commences in the left-hand column at the letter G:

It is difficult to envisage a case -

and may we read from that sentence to the

right-hand column at the letter E, after the

citation of National Companies and Securities

Commission v News Corporation Ltd. In doing that,

Your Honours, can we emphasize the passage that

commences just above letter B:

Personal reputation has now been established

as an interest -

and the citation of Mahon v Air New Zealand.

MASON CJ:  Now, are you staking it all on reputation or are

you staking it also on interest?

MR KEANE:	Your Honour, we have said "reputation and
livelihood". Before the Full Court, the interest
that was put was formulated in this way: an
interest in a fair prospect of being considered
in respect of any opportunities to supply gaming
machines.

MASON CJ: In a sense, a participant in the Queensland

market?

MR KEANE:	Yes and, in our respectful submission, really the business which we conduct is a business which is
hedged about by close legal controls, but the
possibility of making sales, whenever that possibility opens itself up to us, is something

Ainsworth(2) 29 25/6/91

that is integral to our business and is associated

with our reputation, and reports of this kind are

singularly apt to adversely affect our prospect of

making sales in the course of our business,

whatever the legal regime may be.

BRENNAN J: That is really to say that the reputation which

you seek to safeguard is an extraordinarily

valuable business asset, is it not?

MR KEANE:  The reputation of the company certainly is.

Mr Ainsworth's reputation is, no doubt so far as he

is concerned, an extraordinarily valuable personal

asset.

BRENNAN J:  No doubt it is personal, but it is also a

business asset.

MR KEANE:  Yes, Your Honour.

MASON CJ: In other words, it is not just reputation.

MR KEANE:  No, it is reputation and livelihood, Your Honour,

reputation and business, and in the course of

business, business opportunities arise under

regimes of varying degrees of strictness.

TOOHEY J:  Mr Keane, could you direct us, and I do not ask

you to read the passage, to where the members of

the Full Court rejected the notion of interest?

MR KEANE:  Yes. Page 213, commencing just below line 30,

Your Honour. That is in the judgment of

Mr Justice McPherson. He goes on for some little

time. In the judgment of Mr Justice Lee it is at

page 232, particularly from about line 20 onwards
and he concludes his consideration on that point at
page 234, about line 5; and Mr Justice Mackenzie at

page 254. Half-way down the page he turns to the consideration of "legitimate expectation" and, as Your Honours see, he puts the formulation as being:

either an expectation that the prosecutors

would not be deprived unfairly of the chance

to participate in the business of supplying

poker machines in Queensland or be deprived of

their business reputation.

And that consideration of that interest concludes at page 259 at the bottom of the page.

Your Honours, Your Honour the Chief Justice

asked me a question about how we put it and I had

not quite finished answering Your Honour, because

we put it that we conduct a business that is of a

particular kind and is more or less hedged about

Ainsworth(2) 30 25/6/91

with regulations which may affect our opportunities

for doing business.

In relation to the Gaming Machine Act to which

reference has been made, can we simply try to make

our point about the difficulty of separating
reputation in business and one's business
opportunities in the ordinary course of events, by

taking Your Honours to the section of the Act to

which Mr Hall has referred, section 6.15 of the

Gaming Machine Act. It is on page 83 of the

pamphlet that Your Honours have been given.

Your Honours will see that provides for:

the Director may cause tenders to be called

for the supply of gaming machines.

Clause 6.16 provides for the:

Procedure for determination of tenders.

And Your Honours will see that under

subsection (1):

the Director must in relation to each tender

submitted -

do certain things.	One of the things he must do is
set out in subsection (d).	He must:

consider the tender and matters accompanying

it together with the results of investigations

made in relation thereto and make an

assessment of -

(i) if the tenderer is a natural person -

amongst other things -

the general reputation and character of the

tenderer;

(ii)if the tenderer is a body corporate, the

business reputation ..... of the body corporate

and the general reputation ..... and character

of the secretary and executive officers of the

body corporate;

Now, Your Honours, this is the new regime. It is

different from the old regime, but statutory

regimes in these matters come and go and they

change. The point we want to make about it, with

respect, is that, while this report stands, the

person charged with performing the function of the

director under section 6.16 of the

Gaming Machine Act, is confronted with the considered pronouncements of a body, statutorily

Ainsworth(2) 31 25/6/91

charged with the monitoring and review of the

administration of criminal justice in Queensland,

which is solemnly pronounced on our reputation.

Section 6.16 is not concerned, with respect, about

earned reputation, it is concerned with general

reputation and one can see, in our respectful

submission, why that official would be placed in

the most invidious position in dealing with any

application we might make while there exists, in
relation to our reputation, this report.

So that, Your Honours, we put our case, we put our interest on the basis of reputation and

livelihood as a general way of saying "business

opportunities" and we refer to that Act as

illustrating the circumstances in which we might be

adversely affected in the future.

Your Honours, important to the consideration

by the members of the Full Court, or important to

their rejection of an argument that natural justice

was implied in the Act, if not made expressly

applicable to the various functions that were being

performed and particularly in relation to the

report - important to that consideration was the

existence in the Act of section 3.21, and we take

Your Honours to that.

Your Honours, the Full Court in the various

passages to which we have taken Your Honours, took
the view that because the Act explicitly conferred
a right to fairness in defined circumstances and in

particular the circumstance defined by

section 3.21, a presumption arises that those

specific provisions were intended to be exhaustive

of the requirements that natural justice be

accorded.

In our respectful submission, the view taken

by the Full Court means that the judgment appealed

from, which is, we should say, is the first time

authority for the proposition that a body, with the	these provisions have been considered, stands as	significant and intrusive powers of this
Commission, may choose to deny natural justice to
those affected by the exercise of its functions by
performing its functions in such a clandestine way
that the statutorily appointed occasions for
recording natural justice may be avoided and that,
consequently, those functions may be exercised in disregard of the requirements of natural justice.

In our submission, that view is contrary to

the principle expounded in The Commissioner of

Police v Tanos, a case which has been regularly

affirmed as correct in this Court. May we take

Your Honours to The Commissioner of Police v Tanos.

Ainsworth(2) 32 25/6/91

Your Honours will have to go the volume entitled

"Supplementary List of Authorities, Volume l" and

it appears at page 1. Your Honours will see from

the headnote at page 383 of the photocopy of the

CLR report that the case was concerned with a

section of the Disorderly Houses Act which made

provision for the making of a declaration by a

judge of the supreme court that premises should be

declared to be a disorderly house. And the

regulations that were made under the Act provided

that:

An application -

for such a declaration -

shall be made to the judge taking

non-contentious matters -

on affidavit, and -

if the judge is of the opinion that reasonable

grounds have been shown (i) he may make the

declaration immediately and ex parte if this seems to him necessary or desirable, or (ii)

if he thinks that an opportunity should be

given to the owner or occupier or both to

oppose the making of the declaration he may

direct them to be served.

At page 8 of our booklet, which is page 396 of the

CLR report, the Chief Justice Sir Owen Dixon and Mr Justice Webb concluded their consideration of

the arguments in relation to the regulation at

about point 8 of the page:

This regulation may perhaps be read as leaving

the choice of courses at large to the judge.

But it ought not so to be interpreted. It

should be understood as meaning that prima

facie the course provided for in par.(ii)

should be followed and only in exceptional or	special cases should an immediate declaration
be made. The analogy is that of an interim
injunction, but the caution should be greater
because the declaration, unless it is framed
as provisional or conditional, concludes the
right subject to rescission.

That view was agreed in by Sir Alan Taylor at

page 397 at about point 3.

So, Your Honours, we submit that the

Full Court erred in two respects: firstly, perhaps understandably, their decision having been given before this Court gave its decision in Annetts, in adopting a process in allowing the maxim expressio

Ainsworth(2) 33 25/6/91

unius est exclusio alterius to govern; and

secondly, in failing to appreciate that one ought

not interpret the statute as permitting to the

party charged with the various functions the

choice, the election, whether or not to accord

natural justice.

MASON CJ:  Where does Mr Justice McPherson deal with

section 3.21 of the Criminal Justice Act? There is

a reference to it on page 212, but that is in

relation to the - - -

MR KEANE:	He first mentions it at page 207 and he sets out the text of the section. At page 208, Your Honours
will see the process of reasonings to which we have referred, just below line 10:

Section 3.21(2) requires the Commission

"at all times" to act as defined in the

succeeding paragraphs, including para. (a), of

the subsection. However, the obligation so to

act is limited both by context and express

provision.	The subsection follows immediately
after - - -

MASON CJ:	He is speaking there of the obligation to act fairly?
MR KEANE:	Yes, contained in the section, and he continues

to the bottom of the page where he says:

That, again, may be thought to imply that what

is envisaged by these provisions is something

in the nature of a determination of a matter

of contested fact.

And on page 209, he refers to the circumstance

that:

Section 3.21 appears in -

a division of the Act -

headed "Investigations" -

he refers to the circumstance that the expression

"proceedings" which is the expression used in

section 3.17 which says that the provisions of

Division 2, including 3.21, apply to:

all proceedings ..... of the Commission -

and it is by giving the term "proceedings" a narrow

use appropriate to hearings and then by saying

there was no hearing here, therefore there were no

proceedings and, therefore, the requirements in

3.21 do not apply. So, there is no obligation to

Ainsworth(2) 25/6/91

act fairly and nor would there be an obligation to
act independently or impartially or in the public

interest.

TOOHEY J: If that be a long view of 3.21 then, from your

point of view, do considerations of natural justice

or legitimate expectation or procedural fairness

add anything to a requirement to act fairly?

MR KEANE:  Your Honour, they do not. In the Full Court our

case was put on this footing, that there were

express requirements of fairness that had been

ignored and that served to vitiate the report.	It
was put in the alternative that if those express provisions do not apply, nevertheless natural

justice was imported by application or the need to

observe its requirements was imported by

application. As we said at the outset, we propose

to address Your Honours first on the implication

question; secondly on the express provision, and at
the moment we are addressing Your Honours on the
basis that the Full Court held that the existence
of these express provisions which did not catch
this occasion because they did not have a hearing,

afford a basis for concluding that natural justice

was not intended to be accorded to us in these

proceedings which, we say, did occur when the

Commission purported to come to views and make

recommendations which it published in its report

about us.

Your Honours will see that His Honour

identifies, at line 10, a wide sense of

proceedings, meaning:

for example, proceedings at a meeting.

And we would submit, any proceedings in which the

Commission is discharging its functions in a formal

way. And the narrower meaning:

it is commonly used to describe the acts of a

tribunal engaged in a hearing leading to a

determination.

We have some submission to address to Your Honours

on that later. But it is really at that point that

His Honour concludes until Your Honours go over to page 211, at lines 15 to 28:

When all these matters are considered, I

do not think that the process of researching,

compiling, preparing and adopting the Report

in this case can properly be described as a

"proceeding" within the meaning of s.3.17(a)

so as to attract the provisions of Division 2

of Part III of the Act, including those of

Ainsworth(2) 35 25/6/91

s.3.21(2)(a), of acting "fairly" at all times.

If the intention was that, in the discharge of any of its functions and responsibilities, the

Commission should act fairly, then it is

surprising that the word "proceedings" was

introduced in a provision that is explicitly

directed to circumscribing the operation of

Division 2 including s.3.21(2)(a), which forms

part of it.

MASON J: Section 3.21 is in Part III which deals,

generally, with investigations?

MR KEANE: Yes, that is so, Your Honour. That is so, and

the point that Their Honours were making was that

in Division 2 of Part III, section 3.17 appears and

it says:

The provisions of this Division apply to -

(a) all proceedings conducted in discharge of

any of the functions and responsibilities of

the Commission -

and the process of reasoning appears to be that by

reason of context and express provision, the

requirements of fairness in 3.21 are to be confined

to proceedings, those proceedings being understood

by the Full Court to be proceedings of a formal

kind as between adversaries, as it were,

proceedings in relation to matters of contested

fact, and then, of course, they say, "Well, that

did not happen here" and then the process of

reasoning is: that not having happened because the

Commission chose to perform its functions by not

having an investigation, although it says it did,

it can do what it likes in blithe and blatant

disregard of the rights of those whom it reduces.

BRENNAN J:  was this an investigation?

MR KEANE:  Your Honour, the Commission says it was at page 3

of the record. We would think, with respect, it

was not an investigation worthy of the name, but it

does appear that that is what the Commission has

effected to achieve. The term is defined in

section 1.4.1 to mean, or to include "examine and

consider".

BRENNAN J: Is there any particular function which is

reposed in the Commission which is expressed in

terms of investigation?

MR KEANE:	There is an express provision for hearing.
BRENNAN J:	No, I was asking in relation to investigation.

Ainsworth(2) 36 25/6/91

MR KEANE: Investigation: 2.lS(f)(iv) and.there is also a

provision in relation to official misconduct, the

official misconduct division, and there is

provision in relation to that in 2.20, but the
general responsibility in relation to investigation
of official corruption and the discharge of its

functions or of organized crime is 2.15(f).

MASON CJ: Is that a function of the Commission:

investigation of organized ..... crime.

Rather, is it not a designation of an undertaking

of the police and other agencies which are not
appropriate, or define it in terms of the

Commission's functions such as are not appropriate

to be discharged by the police force or other

agencies undertaking investigation of organized

crime?

MR KEANE:  Your Honour, we read that, with respect, as being

that the responsibilities of the commission include investigation of organized or major crime where, in the commission's opinion, those functions are not

appropriate to be discharged by the police force.

MASON CJ: Yes, I follow.

MR KEANE:  That view seems to be confirmed, we would submit

with respect, by the provisions of 2.14(l)(b),

where the (b) first appears, Your Honours.

BRENNAN J:  May I ask you in relation to 3.17, what is the

difference between paragraphs (a) and (b)?

MR KEANE:  Your Honour, in some circumstances some of the

functions of the commission can be performed by

other organizational units. There is, for example,

a witness protection unit; there is a misconduct

tribunal; there is a complaints section; there

are those various functions.

BRENNAN J: Yes, 2.20 being an illustration of that: (1) The

Official Misconduct Division?

MR KEANE:  Yes, Your Honour, 2.27 being the Complaints

Section; 2.31 being the Misconduct Tribunal;	2.45
being the Research and Co-ordination Division	and
2.50 being the Witness Protection Division.

Those functions Your Honour Mr Justice Brennan

will appreciate having particular functions that

are prescribed for them in the various sections

pertaining to them which, of course, are not in

Part III.

Ainsworth(2) 37 25/6/91

BRENNAN J:  I am just wondering whether "investigations" in

Part III is a statutory term of art of any sort?

MR KEANE: Well, Your Honour, it is certainly given the

broadest meaning by the definition section where

"investigate" can include "examine and consider".

BRENNAN J:  Where you see that the investigation powers

include, for example, entry of public premises,

notice to discover information, and the like, the

natural inclination is to construe the term

somewhat narrowly.

MR KEANE:  Or "Entry of public premises", Your Honour, and

3.3, "Warrant to enter, search and seize".

BRENNAN J: Yes. Could they, for the purposes of this

report, have exercised those sorts of powers?

MR KEANE:  I suppose they would have had to tell us about it

if they tried to exercise them against us. We

might have got some inkling as to what was going

on.

Your Honour, one cannot readily see any reason

why they might not have sought to exercise those

powers;	why it would not have been open to them to
do so.

TOOHEY J: Another possible aspect, Mr Keane, that arises

out of the existence of the research and co-

ordination division, which is in Division 6 of Part

II, and say, for instance, as may have been the

case here, that some aspect of the Commission's
function is handed over to the research division

for research, and from that work of research the

division furnishes material which goes beyond

research into the gaming industry generally and

touches upon the character and reputation of

individuals or companies and then in turn is used

by the Commission for its report to the committee,

you have a rather awkward question of whether there
has been an investigation or not.	But it might be

difficult to mount an argument against the

proposition that once a report touches upon the

reputation and character of individuals or

companies, that it has really passed beyond

Division 6 and has gone into the area of

investigation.

MR KEANE:  Your Honour, as we have said, the evidence is, at

page 3, that the Commission says it did an

investigation.

Further, in relation to the point Your Honour

is addressing, Your Honour will see that 2.45(l)(c)

provides that:

Ainsworth(2) 38 25/6/91

The Research and Co-ordination Division is the

unit within the Commission that will -

(c) 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 in the State

concerned with the administration of criminal

justice in the State.

Your Honour, as well, in 2.45(2)(e) is the function of the division:

to inform the Parliamentary Committee, the

judiciary, and agencies for enforcement of the

criminal law or prosecution of offenders in

relation to matters affecting criminal

justice.

What happened here is not that there was an

informing by this division. There was a report by

the Commission. There was nothing in the way of a

private information or the private communication of

confidential information. There was a report by

the Commission.

MASON CJ:  Mr Keane, we will adjourn now.

AT 4.22 PM THE MATTER WAS ADJOURNED

UNTIL WEDNESDAY, 26 JUNE 1991

Ainsworth(2) 25/6/91