Assistant Commissioner Michael James Condon v Pompano Pty Ltd & Anor

[2012] HCATrans 332

[2012] HCATrans 332

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B59 of 2012

B e t w e e n -

ASSISTANT COMMISSIONER MICHAEL JAMES CONDON

Applicant

and

POMPANO PTY LTD (ACN 010 634 689)

First Respondent

FINKS MOTORCYCLE CLUB, GOLD COAST CHAPTER

Second Respondent

FRENCH CJ
HAYNE J
CRENNAN J
KIEFEL J
BELL J
GAGELER J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON TUESDAY, 4 DECEMBER 2012, AT 10.15 AM

Copyright in the High Court of Australia

____________________

MR B.W. WALKER, SC:   May it please the Court, I appear with my learned friends, MR A.J. KIMMINS and MR P. KULEVSKI, for the respondents.  (instructed by Potts Lawyers)

MR W. SOFRONOFF, QC, Solicitor‑General of the State of Queensland:   May it please the Court, I appear with my learned friend, MR G.J.D. DEL VILLAR, for the applicant Assistant Commissioner and also for the Attorney‑General of Queensland intervening.  (instructed by Crown Law (Qld))

MR J.T. GLEESON, SC:   May it please the Court, I appear with MR N.J. OWENS and MS D.M. FORRESTER, for the Attorney‑General of the Commonwealth intervening.  (instructed by Australian Government Solicitor)

MR M.G. SEXTON, SC, Solicitor‑General for the State of New South Wales:   If the Court pleases, I appear with my learned friends, MR J.G. RENWICK, SC and MS K.M. RICHARDSON, for the Attorney‑General for New South Wales intervening.  (instructed by Crown Solicitor (NSW))

MR M.P. GRANT, QC, Solicitor-General for the Northern Territory:   May it please the Court, I appear with MR R.H. BRUXNER for the Attorney‑General for the Northern Territory intervening.  (instructed by Solicitor for the Northern Territory)

MR M.G. HINTON, QC, Solicitor-General for the State of South Australia:   If the Court pleases, I appear with my learned friend, MS L.K. BYERS, for the Attorney‑General for South Australia intervening.  (instructed by Crown Solicitor (SA))

MR S.G.E. McLEISH, SC, Solicitor-General for the State of Victoria:   May it please the Court, I appear with my learned friend, MR G.A. HILL, for the Attorney‑General for Victoria intervening.  (instructed by Victorian Government Solicitor)

MR R.M. MITCHELL, SC:   May it please the Court, I appear with my learned friend, MS F.B. SEAWARD, for the Attorney‑General for Western Australia intervening in support of the applicant.  (instructed by State Solicitor (WA))

FRENCH CJ:   Yes, Mr Walker.

MR WALKER:   May it please your Honours.  This is a case which concerns another scheme enacted by a State Parliament, in this case the Criminal Organisation Act 2009 (Qld), which seeks to address in specified ways what may be called the repression of crime but otherwise than by criminal trial. We say, as your Honours have read, that in the combination of expedience it has adopted and has required of the Supreme Court of Queensland in that regard, it falls foul of the requirements that Chapter III makes of State Parliaments in relation to State courts in that regard.

In particular, we focus as your Honours have read, on the combination of the following factors being the principal ones to which others will be added as we proceed in detail through the statute.  First, there is the nature of the issues posed by the statutory tests, first for the declaration of a criminal organisation and second for the imposition of a control order.  Next, there is the nature of the procedures but, particularly, those to do with so‑called criminal intelligence which we characterise as the assembly and use - I stress “and use” - of secret ex‑parte evidence. 

There are other matters related to those which add to the combination in a way which, in our submission, add up to the breach of Chapter III to which we will come as we proceed through the statute.  May I then plunge directly, your Honours, into the terms of the statute, the long title of which designates its general purpose?

to provide for the making of declarations and orders for the purpose of disrupting and restricting the activities of organisations involved in serious criminal activity, and of their members and associates –

which involves matters, some of which are picked up then in paragraphs (a) and (b) of section 3(1), the objects of the Act.  I draw your Honours’ attention to the fact that there is a dictionary, to which we will make reference as we go to the various provisions, provided for in section 4 of the Act. 

In section 6 the definition of “serious criminal activity” looks first to serious criminal offence, to which section 7 will turn, but in paragraph (b) that makes it clear that serious criminal activity is worldwide by familiar equivalency provision, that is which if done or made in Queensland would have been or would be a serious criminal offence. 

In section 7 the breadth of the matter, including the role of this statute in the definition of “serious criminal offence”, can be seen from subsection (1). So there is the seven‑year punishment following conviction on indictment. There is an offence against this Act, which is included in “serious criminal offence”, and then there are those which are designated in Schedule 1 from the Criminal Code to which I need not go.

Subsection (2) provides an exception for certain offences that I do not need to dwell on for present purposes.  Subsection (3) has an effect so as to continue what I might call the currency of the definition from time to time of “serious criminal offence”.  Section 8 is the commencement of the procedure, aspects of which are the subject of the challenge we make. 

The commissioner –

being the Commissioner of Police –

may apply to the court for a declaration that a particular organisation . . . is a criminal organisation.

It is clear in short that this no doubt designedly displays a significant difference from the scheme considered by the Court in Totani.  One sees that the way in which issues are posed, that is framed and posed for determination by the Court, commences in paragraph 8(2)(c) with a requirement that the application state grounds.  One can look forward to section 10 as providing content to what grounds might be.  I will come to that in due course.

FRENCH CJ:   Does it matter whether any of these processes are characterised as judicial or administrative?

MR WALKER:   No, not for our purposes.  Ours is, of course, not a US‑style separation of powers argument.  It is not a Commonwealth separation of powers argument.

FRENCH CJ:   It does not matter for the compatibility argument?

MR WALKER:   No.  The compatibility argument will run, if it can run, regardless of what I might call a categorical label that might be put on the use that the statute seeks to make of the Supreme Court, although we are bound to say, and no doubt this will be something repeated against us by those ranged against us, we are bound to say in a reminiscence of Thomas v Mowbray, for example, that the judicial character seems to be that which is striven for in the provisions commencing with section 8, to which we are about to make reference.  It does not look like a warrant process.  It does not look like an administrative process such as a committal for trial.

In section 8(2), the next step in the process of framing and posing issues is in paragraph (d).  Your Honours will see the use of the word “information” there.  That word, bland as it may appear, perhaps stands in contradistinction from evidence – we will come to this later with some other provisions – but the information supporting the grounds, we submit, are shown by other provisions in the scheme to include not only evidence which would be admissible if given orally but also information and belief, information concerning suspicion.

FRENCH CJ:   You might later on, I imagine, address the significance of the reference to evidence in section 60(a).

MR WALKER:   Quite so.  That is not the only of the ones, but yes that is one of the ones that I had in mind with my last comment.  Subsection (3) is one of those references, because in section 8(3) there is the mandatory affidavit or affidavits that are intended to be relied upon at a hearing.  There is a reference to evidence.  That needs to be fleshed out in the manner to which I will come.  Subsection (4), your Honours will have seen footnote 1 to paragraph 7 of our written submission.  I do not need to say anything more about that point, but that is apparently why the second respondent has been, by the applicant, named as it has been.  That may or may not of course in any particular case, including this case, were it to proceed, be the subject of dispute.

Your Honours will see in subsection (5) matters I do not wish to dwell on at the moment; they concern a subsidiary point in relation to the time impositions on the respondent.  Could I draw to attention in particular that in the case of the unincorporated association possibility, which will be the second respondent in this case, the service may be by what is called public notice?  I will come back to those time limits later.

HAYNE J:   Just before you leave section 8, at some later point in your submissions would you return to whether an available construction of section 8 is that it requires the applicant Commissioner to lay out the whole of the case that it is sought to make?

MR WALKER:   At the outset, your Honour?

HAYNE J:   At the outset.

MR WALKER:   Yes, I will.

HAYNE J:   There are two questions in that.  Is that an available construction?  Two, if it is an available construction, why should it not be adopted?

MR WALKER:   I will return to that in detail later.  May I flag that the answer will be referring to provisions for the giving of oral evidence at hearings and for the filing of so‑called reply material?  Section 9 is one of those provisions that we challenge.  That relates to what I have called the subsidiary point concerning time limits.  I will not dwell on it at the moment.

May I draw to attention, that bearing in mind the matters that are in question, both in section 10 and looking over the horizon, section 18, that what is contemplated in section 9 depending upon the actual identity of any deponent obviously calls for consideration by him or her of waiving privilege against self‑incrimination.  One sees, in particular, the reference to facts in paragraph 9(2)(a).  Obviously, 9(2) as a whole can be the subject of a response in substance that preserves privilege.  It may well, of course, involve a response that says you prove it of a kind that would be familiar from a criminal trial. 

But section 9(4) contemplates, at least, the possibility of evidence by a respondent.  Well, evidence about what?  That comes to section 10 which provides the prerequisites for the making of a declaration.  This, of course, stresses the stage we are up to in these proceedings before they were removed into this Court, that is, the application has been filed and served and affidavits. 

Under section 10(1) the court is to be satisfied as a prerequisite of making a declaration that a respondent is a criminal organisation, first, that it answers the description of “organisation”.  That necessarily involves consideration of the notion of a group, as your Honours will see from the dictionary.  If I could take you to Schedule 2 for the purposes of section 4 and one sees that:

organisation means any incorporated body –

whatever the extent of that.  It would plainly include the first respondent in this case and an:

unincorporated group of 3 or more persons, however structured –

Whether the epithet “unincorporated” adds anything to the English of that is to be doubted, one sees the breadth of the factual inquiry:

the body or group [may be] is based inside or outside Queensland –

and the persons in question may be:

ordinarily resident inside or outside Queensland.

The second of the prerequisites, the jurisdictional facts, so to speak, is at the heart of our challenge.  Paragraph 10(1)(b) requires satisfaction by the court that members of the organisation - and one needs to footnote that “members” is to be understood as subsection (4) and subsection (5) stipulate, to which we will come - “associate” one sees that that appears to be the present tense:

for the purpose of engaging in, or conspiring to engage in, serious criminal activity –

How much distinction there is capable in practice between associating for the purpose of engaging in serious criminal activity and conspiring to engage in it can be left for individual cases, if any, to work out but there is plainly very considerable overlap there in the sense that conspiring will almost certainly involve something in the nature of association.

Leaving aside the case of people who wish, as it were, to engage in crime but do not, leaving aside the case of persons who associate without any planning or preconcert of any kind among themselves, then the vast body – and they are marginal, obviously, if not purely theoretical – of persons who may be eligible to be considered as members of the association answering the description in paragraph 10(1)(b) will be persons who are engaged in criminal activities, not least, and explicitly, conspiracy offences.

Then we come to the second main attack for the purposes of our Chapter III arguments about this scheme in paragraph 10(1)(c) the prerequisite that employs both familiar language of judicial task with what we submit is a strikingly and unfamiliar generality of policy deployment for that task.  We have here a jurisdictional fact, that is, that the court be satisfied that “the organisation is” – and that means in the present – “an unacceptable risk” – that looks to the future – “to the safety, welfare or order of the community.”

It may be that literally that is not the broadest it could possibly be, but it must be pretty close to that. It resembles, as your Honours will no doubt have remarked, the kind of phrase which in Queensland takes this form – peace, welfare and good government of the colony in all cases whatsoever. That, of course, is the plenary grant of legislative power that one sees in section 2 of the 1867 Constitution Act (Qld) picked up, referred to in section 8 of the Constitution Act 2001, subject only to the referendums. So one has here an expression “safety, welfare and order” which concepts or values, societal aims, perhaps, at least as broad, that is, not in any regard narrower or more focused than the plenary grant of legislative power to a Parliament.

HAYNE J:   Why would you read it in that way?

MR WALKER:   Because the words “safety, welfare and order” are words which convey concepts of that generality, your Honour.  “Order” in particular can be seen to parallel a large aspect involving good government, safety as to peace and, of course, welfare is a common expression.

FRENCH CJ:   That has to be read but in the framework of the objects of the Act, does it not, which have to do with the disruption of serious criminal activity?

MR WALKER:   Quite so.

HAYNE J:   It is not concerned with Weights and Measures Acts, is it?

MR WALKER:   No.  Why I started with the long title and the objects is that that sets the framework for everything that follows.  Section 10(1) sets an even more immediate context.  The text of paragraph (b) of subsection (1) alone is enough to provide a particular context, but, in our submission, paragraph (c) is plainly intended to be something different from paragraph (b) and, in our submission, it involves asking what we accept is a not unfamiliar judicial question, is something an unacceptable risk?  The interlocutory injunction jurisdiction involves just such a matter.

CRENNAN J:   Why not more the territory of Fardon and Thomas v Mowbray?

MR WALKER:   Your Honour anticipates me.  I was about to say then there is bail and then AVOs and then those cases in which AVOs are expressly referred to, including the historical antecedents then being bound over to keep the peace that you find both in Fardon and in Thomas v Mowbray.  We understand that that is obviously the footing which is drawn upon in support of the validity of these provisions.  We draw to attention, however, that there is in paragraph (c) not the kind of formulation that one finds certainly in Fardon, certainly in Thomas v Mowbray, whereby the risk in question is a risk of offending of a particular kind, and where the risk is one to be attributed to a person and where therefore the issues are framed so as to involve, obviously by reference to the past but also by reference to an adjudication of potential – that is, in the future – a particular individual, a particular form of conduct, and then the notion of an unacceptable risk.

Here we have neither of those matters.  We have something as general as safety, welfare or order which, of course, is not congruent with or coterminous with the commission of crime, the opposite of the commission of crime.  Safety, welfare or order of the community is something which can be threatened by conduct which in no way at all constitutes crime.  Similarly, an organisation we know is a collection of members and for the reasons we are about to come to it does not mean all members, and so when one asks about an organisation one is asking about some critical mass – see subsection (5) to which I am about to come – of those who are regarded as members.

FRENCH CJ:   So (10)(1)(b) can be seen as able to be based upon purely historic information?

MR WALKER:   Yes.

FRENCH CJ:   A route to 10(1)(c) may be inference of continuity from that historic information?

MR WALKER:   Unquestionably.

FRENCH CJ:   There might be additional information about projected plans?

MR WALKER:   Quite so.

FRENCH CJ:   But all surely within the framework of serious criminal activity.  That is the risk, is it not?

MR WALKER:   Unquestionably, your Honour.

FRENCH CJ:   Just looking at the actual application in this matter that seems to be the approach that has been taken.  There is a lot of historic material.  In fact, I think that is all there is, is it not?

MR WALKER:   Yes, from driving offences on, yes, your Honour.

FRENCH CJ:   Yes, obscured number plates, but that is part of the membership list.  When you get to the “unacceptable risk” heading they are into serious criminal activity territory, I think.

MR WALKER:   Yes.  Now there is a question, of course, when one considers the bail jurisdiction, which is another jurisdiction that is about risks that are acceptable and risks which are unacceptable.  Something in the nature of price, cost or detriment that is to a social value or interest in the administration of justice is involved in the balance or weighing up involved in a bail decision.  Now, it may well be that in many bail decisions it will be past conduct of the person in question, together with what the Chief Justice has suggested might be thought of as a presumption of continuity that will inform the decision, but in other cases, particularly with the so‑called clean skin it may not be past conduct at all, except for that which is alleged and not yet proved.  That is the very offence for which the person is charged.

So we cannot say and we do not say that unacceptable risk is something that necessarily involves always and predominantly a reference to the past and a projection to the future.  It involves, on any view of it, a projection to the future and always.  It may or may not involve reference to the past.  In this case, for the purposes of driving so far as we can the resemblance at various critical points to the finding of criminal guilt, but for the purposes of course of observing the deficiency in the scheme compared to a criminal trial, for those purposes we do call in aid 10(1)(b), in particular, as well as the objects so as to show that this obviously is an inquiry for these three prerequisite jurisdictional facts, which will include examination of offending, actual offending.

Subsection (2), we submit, providing again immediate context to an understanding of the task set by subsection (1) expands the matter in a way which immediately contrasts this against what happens in a criminal trial.  Section 10(2)(a)(i) obliges regard by the court to information, if it is before the court, and I stress “information” before the court -

suggesting a link exists between the organisation and serious criminal activity –

So the Parliament has compelled regard to that in considering whether or not to make a declaration, which means in examining, among other things, whether the jurisdictional prerequisites in subsection (1) have been made out to the satisfaction of the court.  We have in (2)(a)(ii) material of a kind which in this case the Chief Justice has drawn to attention, convictions, and one sees that that includes for “former members of the organisation” so it extends to a past, which may no longer by membership be attributable to the organisation in the present tense required by subsection (1).

That same characteristic appears in section 10(2)(a)(iii) but, again, the substantive point to which we wish to draw attention in particular is that it is information suggesting that members “have been or are involved in serious criminal activity” including what is called “indirectly” - “and whether or not the involvement resulted in convictions” which, of course leaves in place the case where the alleged involvement resulted in an acquittal, for example.  Subparagraph (iv) expands the matter outside the jurisdiction in a way that I do not need to make anything of now.

GAGELER J:   Mr Walker, is the word “may” in section 10(1) a word that connotes a discretion?

MR WALKER:   Yes, it does.  I should perhaps have said that earlier when talking about the prerequisites.  There are two stages, I accept.  There is the question whether or not the prerequisites have been made out.  That does not compel a declaration although when one sees in particular the terms of section 10(1)(c) it is puzzling to contemplate a court being satisfied and faithfully trying to apply this statute, given its objects - it is very puzzling to understand a court being satisfied of everything, including paragraph (c) but declining to make a declaration.

HAYNE J:   But what is the point you make about (2)?  Is not 10(2) simply a list of matters that if available and known to the Court must be taken into account?  What account, how, et cetera, is left unremarked?

MR WALKER:   It is, but this is, as it were, legislatively relevant.  The court is ‑ ‑ ‑

HAYNE J:   Yes, and in that respect is no different from the sort of thing you encounter in sentencing federal offenders under 16A of the Crimes Act.

MR WALKER:   Quite, but I do not think it has ever been attempted to be argued – certainly never successfully – that the section 16 list includes things which in any way may deflect the sentencing court from the nature in the exercise of judicial power of the sentencing exercise.  Here, in subsection (2), bearing in mind the connection that subsection (1) requires or mandates with criminal conduct, one has an expansion of the mandatorily relevant material to merely suggestive information.

HAYNE J:   Yes, you must have regard to information suggesting these facts in determining as a matter of discretion, but determining whether the conditions for the exercise of the discretion in, for example, 10(1)(b) are met.  So?

MR WALKER:   Yes, the answer to your Honour’s “so” is that these are matters which on their face fall far short of evidence supporting a finding of past conduct. 

HAYNE J:   If they do, they do.

MR WALKER:   That is the answer I give to your Honour, what do we make of subsection (2).  It expands the inquiry, therefore transforms the possible outcome of the inquiry by saying you must take into account suggestive material that could not be understood functionally to have been a useless or vain exercise by the court.  It must be taken to be something which is supposed to contribute to the kind of outcome Parliament proposes can follow from the 10(1) inquiry as to satisfaction.

HAYNE J:   Well, that is an argument that suggests that 10(2) affects the construction of 10(1), and what is the effect, that instead of satisfaction of (a), (b) and (c) it is satisfaction of something less than (a), (b) and (c), namely?

MR WALKER:   A suggestive link.

HAYNE J:   Yes.

MR WALKER:   Your Honour, that comes from the actual expression in subparagraph (10)(2)(a)(i). 

FRENCH CJ:   So, are you suggesting that it undercuts the requirement of satisfaction in relation to criterion (b) in 10(1)?

MR WALKER:   Not satisfaction, but the content in particular of paragraphs (b) and (c) – well, actually (a), (b) and (c) are the ones that matter for our present purposes because of the contrast we point with a trial is (b) and (c).

FRENCH CJ:   Well, if you have information suggesting a link exists between the organisation and serious criminal activity and no more than that, you are required to have regard to that but that would not get you to satisfaction, that members of the organisation associate for the purpose of engaging in, et cetera, would it?

MR WALKER:   In which case, one asks what is that information being required to be taken into regard for.

CRENNAN J:   Well, does it not suggest that as part of this process the weighing of material ‑ ‑ ‑

MR WALKER:   Yes.

CRENNAN J:   ‑ ‑ ‑ is very much a feature of the judicial process is something that can be done because it is a discretionary exercise.

MR WALKER:   There are at the very least, in this Act, including in section 10, those things which are evaluative assessments.  Weighing is involved and weighting is involved.  There is also, as I suggested somewhat tentatively in answer to Justice Gageler, the matter of a discretion after a state of satisfaction has been reached.  We maintain that it may be that a better reading is that if 10(1)(c) is made out it is unimaginable that a court would not proceed to make the declaration.  But in answer to Justice Hayne’s questions to me, subsection (2) which is opened by the phrase:

In considering whether or not to make a declaration –

can and should be read as applying to what I will call both stages, that is the question whether you were satisfied of prerequisites and then the question, if it is a separate discretionary question, raised by the word “may” as to whether you should or will make the declaration.  Subsection (2) is introduced by words that are apt to mandate – compel – these suggestive matters to be taken into account at both stages.

GAGELER J:   Do you say that the word “information” in subsection (2) goes beyond evidence?

MR WALKER:   Yes, I do.  I have to make that good by following text.  I will just flag them.  I will be coming to them.  They include 61 and 107.  It appears the legislature has designedly employed at least three words – “affidavit”, “evidence” and “information”.  There are other words to which I will come in a moment.  May I notice subsection (3) of section 10, really to put it to one side?  That is in itself, of course, unremarkable. 

Subsection (4), as I noted earlier, affects the reading of the word “members” in 10(1)(b) and one sees that the state of satisfaction for 10(1)(b) can be regardless whether all the members or only some associate for that purpose.  It certainly means that when one comes to sections 16 and 18, looking over the horizon under this scheme, that the particular member in relation to which a control order is sought, may not be involved in the criminal activity that was used for the declaration.  I will come to that briefly later.

One sees in 10(4)(b) that there may be a diversity of, as it were, the purpose or business of the organisation – internally, that is – and (c) obviously other purposes will not matter.  When one comes to what is raised by the notion of “only some”, bearing in mind the relatively drastic nature of the power committed to the court by this Act, there is further attempt of definition and here is another evaluative assessment of a kind which raises questions about the nature of the criminal intelligence, an important concept to which I will be coming, might be deployed.

In subsection (5) the evaluative assessment has to be made of whether the “some” in question constitute a significant group either by numbers – I do not wish to be facetious but one has in mind some kind of ballot idea or block idea – and then very much a qualitative assessment in paragraph (b) “capacity to influence the organisation or its members”, and one might imagine that that is preternaturally a topic for so‑called criminal intelligence.

Now, I referred briefly to the drastic nature.  I do not wish to labour that point, but section 12, duration, is of significance and in it subsection (3) there is yet another evaluative assessment, namely, about organisations “into which the members substantially reform themselves” ‑ alas, I think that means different structure rather than improvement of character – “with or without dissolving the organisation”. 

One sees in relation to revocation under section 13 that revocation by the affected party is “subject to section 15” – that is 13(2)(b).  In 13(9) there is a prerequisite for revocation which again involves important evaluative assessments to which again criminal intelligence one might expect in the nature of things will be to the forefront, perhaps monopolising the factual inquiry ‑ ‑ ‑

CRENNAN J:   Does the power to revoke suggest that on an appeal in relation to the making of a control order that the declaration could be collaterally attacked in some way?

MR WALKER:   No, to the contrary.  The thoroughness with which the scheme – see particularly section 12(1) – lends efficacy to the declaration but for certain events, in our submission, precludes the notion of collateral attack by anyone against whom the existence of a declaration is later deployed or wielded in an application for a control order.

Under section 13(9), one sees that there has to be a substantial change in the nature or membership of the criminal organisation to an extent where one sees the reversal or negativing of the two 10(1)(b) and 10(1)(c) prerequisites which were at the heart of the exercise of the power.  So that a very broad or general, comprehensive, as to everything but the existence of an organisation, negative is required of anyone, other than the commissioner, who wishes to revoke it.  One sees as well in that regard that there are to be affidavits served, including affidavits, obviously, that may say something about past offending – see paragraph 13(8)(b).

Section 15 governs the case of revocation applications by an organisation or a member of it and one sees in particular that there cannot be a revocation application until at least three years after the declaration is made and that there cannot be more than two during the first five years.  That is, there could be two in the period constituted by the fourth and fifth years and that is it.  That is for everyone, both the organisation and all members.  That will be members whose conduct has been the subject of information or evidence under section 10, as well as members whose conduct gets no mention whatever in that regard.

Your Honours, I have said several times, looking over the horizon, conscious that this is a declaration application that has been removed into the court, but the scheme is very much a scheme of stages.  Justice Crennan’s question highlights, with great respect, the need to be aware of that staging approach.  For those purposes we have selected control orders as the example of the over‑the‑horizon context in which this scheme ought to be considered.

Again, one sees in 16(2)(b) and (c), this notion of grounds and information and in 16(3)(a) the notion of an affidavit, and I apprehend that is also an occasion to which Justice Hayne’s question to me might be applied.  One sees at this point, see 16(5), that the criminal organisation public interest monitor is involved.  I will be coming back to that later in relation to intelligence in particular.  Again, in section 17 there is the requirement for an affidavit, if one is intended to be relied on by a respondent.  Facts are required, again in a short time, and with the same comment as we made earlier about privilege.

Then section 18 provides the prerequisites of which a court must be satisfied before the power to make a control order is available.  We certainly submit that in relation to a control order, the “may” imports a discretion.  There is a nexus required by both subsections (1) and (2) which are two different cases for a control order.  With the criminal organisation in question, it is to be recalled that a criminal organisation means an organisation that is subject to a declaration or one of these interstate registered ones.  So, being a member of a criminal organisation, there being a criminal organisation takes the status of declaration as being the factum upon which that part of the power exists. 

So there is a nexus necessary with the criminal organisation under both subsections (1) and (2).  You see it in 10 - 18(1)(a), most obviously, but in 18(2), one sees it in 18(2)(b) by means for somebody who is not a member who associates with any member of a criminal organisation for that purpose.  So that is a nexus with an organisation about which a declaration has been made.  It, by reason of section 10 involving for the reasons we have argued, a finding concerning actual criminal conduct, but the nexus ‑ ‑ ‑

CRENNAN J:   May I just ask you, does the conjunction in 18(1)(a) mean that a declaration in relation to criminal organisation would certainly not be enough.  There needs to be obviously facts proven in relation to this particular individual. 

MR WALKER:   Yes, and I was about to – your Honour anticipates my very next point.  Section 18(1)(b), this is a very important aspect of the matter which in some respect weighs against our general arguments.  In another respect, we seek to enlist it very much in favour of our position because here we have an overt – once one gets to section 18 there is an overt similarity with a criminal trial.  But this is not a criminal trial.

Now, I made a point about the overt nexus with the criminal organisation that both 18(1) and (2) have but there is not an express or overt or necessary nexus between the criminal activity on the basis of which the organisation has been declared to be a criminal organisation and the criminal activity that must be attributed to the person, who is the respondent to the control order application. 

Section 18(1)(b) does not require that the serious criminal activity be activity in the membership of the criminal organisation or have any relation to the serious criminal activity for which the organisation was declared.  The same is true of 18(1)(c).  One sees the same pattern in 18(2)(a).  So a control order does continue to have the nexus with criminal organisation and that is why, in our submission, it is relevant to look over the horizon to sections 16 and 18 when considering what we have submitted about section 10.

Now, similarly, to the way in which we argued about section 10(2), could I draw to your Honours’ attention the contents and terms of section 18(3).  It is the same phrase that opens it:

In considering whether or not to make an order, the court must have regard to –

and now it is -

information about the following –

We have “criminal history” which has both negative ‑ ‑ ‑

FRENCH CJ:   That is a defined term, is it not?

MR WALKER:   It is, yes.  That is criminal history of both the respondent and what I will call an associate – a relevant associate.  Then, under section 18(3)(a)(iii):

any activity or behaviour of the respondent at any time that tends to prove a matter of which the court must be satisfied under subsection (1) or (2) –

Now, it may be that one should not make too much of that because it turns out to be a mouthful that really only says evidence to support the proposition that a person “engages in or has engaged in serious criminal activity” for example.

FRENCH CJ:   Criminal history picks up charges as well as convictions and is not confined to serious criminal activity.

MR WALKER:   Quite so.  In relation to the use of criminal history, both convictions and charges, the extent to which they can possibly go in relation to engaging in serious criminal activity beyond cases of conviction is a question which, in our submission, highlights the difference between this and a trial process, the intended difference between this and a trial process.  I draw to attention the special definition of “member” in subsection (5).  It is not something we need to dwell on.

The drastic nature of a control order equally I can pass over relatively quickly but one sees in sections 19 and 20 the degree to which the liberties of a person fall to be subject to conditions removing a deal of that liberty, again by reference to allegations of criminal activity a state of satisfaction on the civil balance of probabilities of that activity but not through any criminal trial process and, in particular, when one sees the relation between section 19(1) and (2) the breadth of a control order, the huge expanse that opens up over the horizon following section 10 can be seen.

My imagination has failed me, your Honours.  I cannot think of what much else one would want, apart from the list of matters (a) to (h) in section 19(2), but we are told by the opening words of subsection (2) that that is not a list that limits the generality of subsection (1).  The generality of subsection (1) can be seen by the bland phrase:

the court may impose the conditions on the respondent the court considers appropriate.

Now, that is subject to subsection (5) where one sees that there are certain mandatory elements, again subject internally to paragraph (b) where one sees an attempt to deal with the fraught problem of so‑called “personal relationships”. I do not need to dwell further on that now. Subsection (7) – I am sorry, subsection (7) goes to the same matter. I referred to section 20. It shows the duration of a control order which is indefinite, see subsection (3). The terms of subsection (4), however, are significant and provide further textual support for the answer I have twice given to Justice Crennan about the collateral attack. The concept of an ICO or a CO lapsing, that is stopping having effect:

when the declaration for the criminal organisation expires or is revoked -

bearing in mind that “revoked” is a term of art for a kind of application which could not be mounted, as it were, without process and not subject to the statute collaterally that is an indication, in our submission, that it is not intended by this statute that the declaration under section 10 can be the subject of any means of removing it, other than those contemplated in the statute.

I pass over, not because they are unimportant, but because they are in the same vein and are also over the horizon, the questions of the aspects of interim control orders that one finds covered by section 21 and for that matter variation and revocation that one finds in sections 22 and 23.  In the last of those could I draw to attention the negative conditions, proof of which lies as to onus upon the controlled person under subsection 9 for a revocation:

substantial change in the relevant circumstances . . . 

not been a member of any criminal organisation for at least 2 years; and

(c)the person has not engaged in, or conspired to engage in, serious criminal activity for at least 2 years –

The timing - the two years there needs to be understood in the context of paragraph 23(2)(b), you cannot make an application for at least two years, and subsection (10), and you do not count time inside.  Reference has been made in the various written submissions to the criminal sanction that lies further over the horizon if there is both a control order made and a breach of it.  I simply draw it to attention in section 24, and one of the elements in terms of the reckless state of mind is to be seen in subsection (4), “ought reasonably to know” is one of the possibilities.

I pass over but place, as it were, in the same case Parts 4 and 5, public safety orders and fortification removal orders, and come to the next important part of our argument which is Part 6, commencing with section 59 concerning criminal intelligence.  Your Honours will recall that I have from time to time drawn to attention the use of the word “information”.

FRENCH CJ:   I am sorry, just before we go to that, the provisions of the Act that you have just taken us to in what you have called your over‑the‑horizon perspective, that is all calculated to indicate, if you like, the significance of criminal intelligence declarations for persons to whom that intelligence may relate as against the contention that it does not affect any rights.

MR WALKER:   That is right, and this is this idea of staging and staging where, if we are correct, once accomplished a declaration of a criminal organisation means that a person sought to be controlled can, subject to the arguments I am about to put, resist that on the question of membership, on the question of association and on the question of criminal activity, but cannot resist it on the basis of error or change of circumstance in relation to the criminal organisation. 

That is stipulated by the Act to be done in particular and closely regulated fashion distinguishing between one party and another, distinguishing the times when it can be done and the prerequisites for it to be done.  That staging, in our submission, is the key really to an understanding of – I do not want to be misunderstood in using this word – the cunning of the framing of the matters no doubt by reference to the jurisprudence. 

CRENNAN J:   In your written submissions, Mr Walker, you identified seven specific complaints which were following the questions of course in the special case, and you spoke in terms of there being a cumulative effect, if you like, in relation to the various complaints.

MR WALKER:   Yes, your Honour.

CRENNAN J:   But your written outline today seems to suggest that it is the complaints about Part 6 that are critical to your attack on the validity.

MR WALKER:   The secrecy and ex parte nature of the procedures are at the heart of what we say characterises this accumulation of matters which, if they were on their own and could be ameliorated by principle of legality, statutory interpretation to permit a court to ameliorate difficulties in particular cases, might not attract invalidity.  It is the accumulation and the clinching of them altogether – the tying of them of all up by the use, at every stage, of secret information – not admissible evidence, necessarily – I will come to that in a moment – considered ex parte – and I mean completely ex parte – that is at the heart of the matter.  Your Honour, with great respect, has correctly understood the emphasis.  We do not think, with respect, that represents any departure between our written submissions.

CRENNAN J:   I was not suggesting that.

MR WALKER:   Yes, that is right at the heart – that is the sharp point of what we seek to put.  Your Honour, of the seven in the written submissions, I think, five of them are Part 6 points.  Could I then come to that very important part of the statute, Part 6.  One sees that “criminal intelligence” is defined in subsection 59(1) to be:

information relating to actual or suspected –

It is difficult to over‑emphasise that second possibility or “suspected” criminal activity:

the disclosure of which could reasonably be expected to –

(a), (b), (c).  Could your Honours note that between (a), (b), and (c) the conjunction is “or”.  Only one of these needs to be made out.  For the purposes of our argument, your Honours will not be surprised to know, we will fasten upon (a).  It is not seriously prejudice.  It is not fatally prejudice.  It is simply “prejudice a criminal investigation”. 

We are entitled to ask, rhetorically from the Bar table, has one ever found a policeman who wishes to publish his or her file of an investigation as it proceeds – never been known.  It would be both plausible and cogent for such a policeman to say “I suspect those in whom I am interested might be interested in my interest in them, and I suspect their friends might help them if they knew about this.  I do not wish to take that risk”.  It is in the public interest the investigation proceeds as investigations have proceeded for as long as people have had official investigations, more or less, secretly or confidentially.

For those reasons, 59(1)(a) describes a state of affairs as one of the three possible, sufficient grounds to classify something as criminal intelligence, as something which will clearly be true without any bad faith of any kind, without any institutional bias of any kind.  It will clearly be true, according to sincere affidavits of decent policemen for practically every investigation into the kind of activity at which this statute is aimed.

HAYNE J:   Well, whose judgment is required by the expression “could reasonably be expected”?

MR WALKER:   Ultimately the court.  So, as I say, this has been built in light of jurisprudence.  So the lessons of what I might call the escapes in K‑Generation and Gypsy Jokers have been taken to heart and all to the good, with respect.  That is why the focus of our challenge moves rather to the other aspects to which we are about to come.

Could I, in 59A definitions section, draw to attention that in the definition of “external agency” on our researches – I hope they are correct – under paragraph (a) there has not been any, what I will call “foreign agency” yet declared, though there have been other Australian agencies declared such as ICAC and the like from New South Wales.  Identifying information which is a very important concept is, however, we think, not difficult in this case.  It prevents no, I think, contention between the parties.  One sees it is defined in relatively familiar terms in section 59A.

“Relevant agency” is an important expression as well.  Can your Honours note that, in particular, it includes, generally speaking, the police or another agency if it is from that other agency, external agency, that information has been obtained.  Section 60 harks back to section 59.  It says of “evidence”, an important use of a word:

evidence that is or contains criminal intelligence –

that it is the object of Part 6 that it be:

admitted in applications under this Act –

and that will include applications of a kind now removed into this Court as well as over the horizon applications such as control order applications, and is to be admitted without losing – without the events which give it its definitional characteristics occurring.  Section 60(b) does not add anything to present matters.       Now, the use of the word “evidence” there requires to be understood subject to provisions including the very next section 61.  In an application under this part, the matter does not stop there as we will see, the affidavit:

may contain statements based on information and belief if the person making the affidavit states the sources of the information and the grounds for the belief.

That will often include, of course, reference to liaison between the police service and an external agency as contemplated by the definition of “relevant agency” in section 59A.  If your Honours can flag, I am about to come to it but not quite yet, section 107(2) is important in connection with section 61.  It starts to cast, in our submission, an important light on the use of the word “evidence” in section 60, paragraph (a). 

Now, section 62 is very important, certainly in the arguments are ranged against us.  If I may call the monitor the COPIM, Part 6 operates subject to the COPIM provisions.  We accept that we have to make good our challenge, notwithstanding that.  Section 63 is at the heart of the matter.  The court, of course, is the Supreme Court under subsection (1) and this is, as I said in answer to Justice Hayne, this is one of the really important distinguishing features between this and other schemes that the court has considered.  The court is in charge of this. 

One sees under subsection (3)(c)(ii) that grounds are required.  In subsection (4) “An affidavit . . . must be filed”.  One has the special requirement of an explanation to be included – see paragraph (d) of subsection (3) – of:

(i)the relevant agency’s intelligence assessment system; and

(ii)the assessment of the information that was made under the system.

One is struck in a court of law by the plain reference by such terms to what in another context is called intelligence as opposed to evidence what ASIO considers compared to what the AFP considers.  There may be a very large overlap but they are different endeavours and often dealt with in very different fashion.

KIEFEL J:   Is it possible under the Act in the scheme for which it provides for there to be an application for declaration of criminal intelligence before the application?

MR WALKER:   Yes, it happened in this case.  We do not know what happened, but we do know it did happen.

KIEFEL J:   One would predict that that would often be the case.  But in that case under section 63(3)(c)(ii) the grounds on which the declaration is sought would nevertheless have to identify the future declaration that an organisation is a criminal organisation as being the purpose of the declaration under section 63, would it not, not the least because it is an object of the part under section 60 that the evidence be used in applications?

MR WALKER:   Certainly, section 60.  That means that one cannot imagine a section 63 application ‑ ‑ ‑

KIEFEL J:   Not connected with an application.

MR WALKER:   ‑ ‑ ‑ being permitted to go ahead if it had no connection.

KIEFEL J:   When you come to consider the question of the grounds to be provided and section 8 to which Justice Hayne referred, could you link it then with section 63?

MR WALKER:   Yes, and the affidavit in subsection (4), I take it?

KIEFEL J:   Yes.

FRENCH CJ:   Is it right to say that the application for criminal intelligence declaration does not have to specify a particular application which might be contemplated, and I look at subsection (7) of section 72?

MR WALKER:   Quite, that is right.  Perhaps I can put it this way?  Some prospect would no doubt be part of a ground ‑ ‑ ‑

FRENCH CJ:   Well, that would have to be informed.

MR WALKER:   ‑ ‑ ‑ but the ground – the prospect need not be, as it were, specific.  There is not enough experience in operation to know how this will work out, but the statute allows for these applications to be made before substantive applications, as they are called, and compels or requires them to be determined before what I will call relevant substantive applications.

KIEFEL J:   But then there would be discretionary considerations, not the least of which would include utility, as to whether the court would make an order for a criminal intelligence declaration without another application being not only foreshadowed but the shape of it and the grounds upon which it might be relied identified properly to the court, one would think.

MR WALKER:   Quite; exactly.  All of that will follow, though no doubt not exhaust, the range of factors to be considered in exercising the discretion under subsection 72(1).

FRENCH CJ:   It might be you might have a criminal intelligence declaration application with respect to information which it is intended to use in support of control order applications and that could be done even after a declaration of a criminal organisation has been made.

MR WALKER:   Quite so.

FRENCH CJ:   Because it might relate to specific persons.

HAYNE J:   But connected with a question which I understand of course you are still to come to, it may be that one should approach this Act on the assumption that those applying under it have to show the whole of their hand, the hand must be identified and identified with precision and, absent that, judges may, at the least, exercise the discretion adversely, and another possible point of view may be that judges may not reach the point of exercising discretion unless ‑ ‑ ‑

MR WALKER:   I do understand ‑ ‑ ‑

HAYNE J:   These are issues to which we have still, of course, to come.

MR WALKER:   I do understand that that is what your Honour wishes me to address.

HAYNE J:   Yes, in time, due time.

MR WALKER:   Perhaps when I have thought of an answer for a start, your Honour.

HAYNE J:   Always a good start.

MR WALKER:   Not always followed, alas, your Honour.  Section 63, again shows – and this is no doubt important – subsection (6), COPIM’s involvement.  I should have drawn to your attention earlier subsection (7).

HAYNE J:   Can I just take you back to 63(3)(d)?  You were referring to assessment systems.

MR WALKER:   Subsection (7) goes to that.

HAYNE J:   I just wanted to understand better than I presently do what exactly the point is you make about that.

MR WALKER: As the expression “well chosen” that you will find in the heading shows, we are talking about material to which in this trade intelligence is the term applied, as opposed to evidence. Now, I stress this is not a mutually exclusive or dichotomous categorisation. Of course there is overlap, but there are important functional characteristics of that which can be called evidence and that which is fairly called intelligence that really come to the fore when one is considering secret ex parte procedures by a court within the purview of sections 71 and 77 of Chapter III of the Constitution.

HAYNE J:   But any intelligence system surely must have attached to it some grading of reliability.  Let it be assumed it is from 1 to 9, least to most reliable.  Should not a court know when dealing with intelligence that the internal organisation grading is 1, least reliable?

MR WALKER:   Yes, your Honour.  This is not something that goes into the scale against the law that there is information about intelligence which could never achieve the status of evidence.  If you are going to do this thing, better to do it with information that tells you you ought not to exercise the discretion than to do it without that information.  There is no doubt.  Your Honours appreciate we are not here to save the scheme, but to say that the accumulation of these factors, notwithstanding safeguards such as Justice Hayne has anticipated I am going to be coming to – there is another one for informants by the way, the same thing – notwithstanding those, that is not enough to overcome the vice of the secret and ex parte aspects.

KIEFEL J:   Could an intelligent assessment system under subsection (7) be constituted by an individual police officer who is determining the reliability and validity of the information?

MR WALKER:   No.  We should not call them systems.  They may operate within a system or apply a system ‑ ‑ ‑

KIEFEL J:   Well, it is just an assessment of information.

MR WALKER:   No.  The word “system” matters here.  There is something deliberate, institutional or explicit required by the word “system” that can be quite significant if there were none.  If it was just idiosyncratic individuals’ assessments, then that is something that the Supreme Court needs to know.  We do not have a system.  We just say, “Have a look at this; what do you think?”

FRENCH CJ:   A system could include a list of criteria to each of which is attached a grading 1 to 9, to use Justice Hayne’s notation, which could be applied by a single officer or somebody subject to review, a variety of mechanisms. 

MR WALKER:   Yes.

HAYNE J:   That is going to come down to some single officer’s assessment, “My informant, absolutely bonza, grade 9”. 

MR WALKER:   I think bonza is grade 9; yes, your Honour.  You have to – I do not mean this facetiously – suppose that external agencies of a kind, the serious ones that one finds have already been declared, you have to suppose that they allow for officers being deployed on various tasks from time to time depending upon vicissitudes of work and they may even get sick. 

In other words, one is not expecting that these are places where individuals form and then when they expire constitute a loss of corporate knowledge.  Subsection (7) plainly is a realistic provision enacted with some knowledge of the world and that there will be a system, maybe either expected or its absence be remarkable.  It does not have to be, of course, a point system.  That is a convenient example; that is all.  We note that the concepts being aimed at that you see in subsection (7) are reliability of source and validity of information. 

These are matters that are being attended to or assessed under a system external to the court, and then being relayed both as to the system and as to an outcome, as it happens, to the court by someone who, depending upon whether or not they are an informant, may or may not have much disclosed about them to the court.

Section 64 then comes to this question about informants.  Informant is a defined term and does not answer only the familiar description of someone furtive and dependent.  Those, from fiction, will be captured by paragraph (a) of the definition in schedule 2, but one notes as well the very important paragraphs (b), (c) and (d) - (c) undercover, (d) undercover and (b) - those are regulated activities.  Now, section 64(2) is clear.  It says that an “informant can not be called or otherwise required to give evidence.” and that means cannot be called.  It does not mean can choose to be called.  One should compare this with section 71(1):

a police officer who is not an informant or an officer of an external agency who is not an informant may be called –

I should have drawn to your attention the link between 63 and 64 that you will see in 63(5) identifying information about informants need not be included and cannot be required.  Then one sees what I am going to call safeguards, plainly intended thus, in subsection (3) and (4), explained then in subsections (5), (6) and (7) by which these persons whose identifying information cannot be required and who cannot be called are, nonetheless, the subject of what I will call some description of a relevant kind which includes – and your Honours will recall that informants may include policemen – includes in section 64(4)(c) “allegations of professional misconduct”.

We accept that these are safeguard provisions that have attempted to draw upon the kind of experience that the criminal courts throw up in relation to the cogent challenges that from time to time can be made to what might otherwise be impressive evidence but coming from what ultimately turn out to be very weak vessels indeed.  One sees, however, that in terms of what I am going to call credibility as well as reliability that this affidavit, this additional affidavit under section 64, relays from outside the Supreme Court to the Supreme Court for its consideration someone else’s assessment of things.  I do not say that the Court is bound to accept that assessment but that is what is being done, see section 64(4)(e).  I do not say that is a bad thing, but it does demonstrate the distance separating this exercise from an ordinary judicial consideration of evidence.

FRENCH CJ:   How does the reliability of the information, or the level of reliability of the information, feed into the question whether it is criminal intelligence within the definition, or does it just feed into the discretion?

MR WALKER:   It feeds into a balance.  These balances are not necessarily straightforward.  One sees a similar kind of exercise required by provisions such as section 135 of the common form Evidence Act.  One sees it at common law in Bunning v Cross.  There are balances of kinds that sometimes enhance the likelihood of admission – the more important the evidence is, sometimes work in reverse.

FRENCH CJ:   I am going forward a bit, I suppose, to 72.

MR WALKER:   Yes, your Honour.

FRENCH CJ:   A condition necessary to enliven the discretion is that the court is satisfied the information is criminal intelligence.

MR WALKER:   Yes.  That is section 59.

FRENCH CJ:   Yes, that is right.  So I am just asking whether the issue of reliability feeds into the characterisation at all, or is it all about the discretion?

MR WALKER:   We would prefer the latter as the proper answer to that, your Honour, because it is difficult to see how only reliable information, for example, is information the disclosure of which may prejudice a criminal investigation.  When one comes to the far more dire possibilities in the definition, including endangering life, it would absurd to suppose that it is only reliable information that might endanger life.

Your Honours will have seen the limitations – that is, borrowing an expression from another area of discourse – the gisting, if one wills – that is permitted for the criminal history, et cetera, to be disclosed of these peoples whose identity is not to be disclosed – see subsection (5), (6) and (7).  Subsection (8) is a provision which might turn out in practice a difficult fashion; nonetheless, it seeks to put a stop to inquiries of a kind which would otherwise, one might expect, dominate a challenge to a witness in an ordinary adversarial process.

One sees the high degree of secrecy in a provision not otherwise of much significance – subsection 65(4).  Not even the COPIM can see the identifying information.  One sees, borrowing from the nature of, at common law, public interest immunity – once upon a time, Crown privilege – in section 65(7) this secrecy is to be preserved “even if the application is withdrawn or dismissed”, as of course might happen in the former case upon what might be called intimations being received or understood, so that the secrecy remains, notwithstanding a drawing back from or a failure in attempting to get this declaration.

It is only revocation, to which I will come later, that opens up that which has been kept secret for the purposes of the application.  Section 66 is one of the challenged provisions, as your Honours appreciate.  Its heading says it all.  It is compulsory.  It provides of no ameliorative exception.  Furthermore, it does not permit the Court to say that it will not hear it ex parte.  It must consider it without notice.

Section 67 is that to which I have referred earlier in answer to Justice Kiefel.  Section 68 of which there are several repetitions of those provisions throughout the Act are necessary in order to remove – they are put there in order to remove an honest but reasonable mistake defence to the offence of disclosing criminal intelligence unlawfully.  Section 70 is a challenged provision and comes to this notion of “closed hearing”.  Now, the extent provided under this section, notwithstanding that there is a few items in the list in subsection (2) is for the purposes of procedural fairness complete.  Under subsection (2) everyone is to be excluded except the applicant – that means the commissioner.  The applicant’s legal and other representatives, without limit of number, the COPIM:

any witness who may be called to be evidence under this part –

we know that they will be witnesses about matters that go to the section 59 matters and the section 72 discretion, and court staff.  So, section 70 excludes anybody, even if this is an application to which section 67 applies which is explicitly linked with a substantive application in which this information is to be deployed.

FRENCH CJ:   Who can call witnesses?  Is it only the commissioner?  Does the Court have any discretion?

MR WALKER:   We think not.

FRENCH CJ:   Uniform Civil Procedure Rule say anything about that?  Perhaps if ‑ ‑ ‑

MR WALKER:   Can I check that, your Honour?  I think the answer is no.  Section 71(1) contemplates cross‑examination by the court, as well as by COPIM, but that is questioning which is controlled by section 71(2).  Section 72(1) is the discretion.  Now, we say it is a discretion and we do not resile from that but again we observe, when one goes back to the section 59 definition and if I were, for the purposes of this argument, to choose paragraph (1)(c), that is disclosure would reasonably be expected to:

endanger a person’s life or physical safety.

One would hope that there would be little hesitation about the discretion being exercised at that point.  But, nonetheless, it is being structured as a discretion. 

FRENCH CJ:   Well, the absence of a declaration, the refusal to exercise the discretion in favour of the applicant, does not, of course, mean that the criminal intelligence is used.

MR WALKER:   Quite so.  It may produce what in another but related context has been called a healthy dilemma for the authorities.  That is a matter which concerns factors to which the very next provision I am coming to, section 72(2) relates.  In exercising a discretion, so-called, to declare information:

the court may have regard to whether matters mentioned in section 60(a)(i) to (iii) –

those are the objects to which attention was drawn earlier –

outweigh any unfairness to a respondent.

It is to be understood that “respondent”, see subsection (7), looks over the horizon.  It means a respondent to an existing or possible substantive application in which the information mentioned in subsection (1) may be considered.  So there is realism involved in an understanding of the unfairness that might have been created by these procedures.

HAYNE J:   Is it incumbent on the applicant, these being ex parte proceedings, to explain fully and draw to attention every possible argument that might be made about unfairness?

MR WALKER:   Yes, without qualification.  That follows, on our search, there is not a syllable in this statute that excludes what this Court has repeatedly said about the duties on practitioners and parties in ex parte applications.

HAYNE J:   See, for example, Thomas A. Edison Ltd v Bullock (1913) 15 CLR 679 at 681 to 682.

MR WALKER:   Yes.  Right at the top of the list in a Bar course, yes, your Honour.  It is fundamental and there is not a syllable to exclude any of that.  My answer to your Honour is no doubt against me in the balance of factors, but the answer is inevitable ‑ ‑ ‑

CRENNAN J:   But you would say no remedy of the normal kind which would be vacation of any orders achieved in the context of partial disclosure only?

MR WALKER:   The respondent is never going to find out, except by that happy kind of accident which in this scheme would probably involve someone either acting illegally or making a terrible mistake.  It is only going to happen by accident that you will find out anything.  The court ‑ ‑ ‑

HAYNE J:   The court would.

MR WALKER:   The court would be there, but how would the court find out?

HAYNE J:   In the course of the subsequent application.

MR WALKER:   It may well be.

HAYNE J:   What would be the power of the court upon its discovering that fact?  Would it not be to recall the order and dissolve it?

MR WALKER:   It certainly would be that.  That is a situation that is difficult to generalise I suppose without particular facts, but that would be the first instinct and, with respect, the first salutary instinct to deny the party guilty of the non‑disclosure of the whole of the benefit gained from it; that is the normal approach.  There is, however, a discretion involved and a shaping to the particular circumstances required of the court’s response and one cannot in particular generalise that as a rule there will be an assured reversal of either the criminal intelligence declaration or any steps taken on the basis of the intelligence before the non‑disclosure was detected, such as criminal organisation declaration or a control order.

HAYNE J:   But the relevance and availability of such matters may – I do not say must – bear upon the question I put to you at the outset.

MR WALKER:   Unquestionably.  We do not at any point submit that this is a statute that except in the respects that the words compel it require the court to dispense with its powers or the professional safeguards that are hallmarks of judicial process.

HAYNE J:   But not only that, it may inform the extent to which the applicant for declaration must disclose the hand in detail in the initiating document.

MR WALKER:   Yes, no qualification.  I did say except where the words compel it, that is why I drew to attention in section 64 – one recalls this Court’s experience in Alister, for example.  In section 64 the Parliament has put a limit on what has to be disclosed, indeed, it might be thought on what may be disclosed, but certainly on what has to be disclosed. 

Now, it is true these are safeguard provisions that have designedly, one supposes, tried to put relevant, all relevant knowledge, if only indirectly, before the court.  I say if only indirectly because of the sufficiencies, if I can call it that, stipulated by subsections (5), (6) and (7), but the knowledge is indirectly before the court – see paragraph 64(4)(b), and for that matter paragraph (c).  So the statute perhaps in that regard regulates the kind of disclosure in a way which will affect what is otherwise the common law of disclosure in ex parte applications.

KIEFEL J:   Just going back to section 72(2), Mr Walker, the reference to “unfairness to a respondent” it being ex parte there is no respondent to ‑ ‑ ‑

MR WALKER:   Subsection (7), your Honour?

KIEFEL J:   Section 72(2).

MR WALKER:   Subsection (7) is an observation we make in response to your Honour.

KIEFEL J:   To a possible substantive application?

MR WALKER:  Yes.

KIEFEL J:   In terms of disclosure at that point then the Commissioner would need to identify any organisation with respect to whom a declaration is sought and any individual, and presumably the grounds upon which declarations and control orders might be sought so that the court is in a position to assess unfairness.

MR WALKER:   Yes, is the answer.

KIEFEL J:   Some care would need to be exercised by the Commissioner in that process because of the problems of non‑disclosure on an ex parte application if orders were later sought against a wider number of organisations or persons than originally initially disclosed to the court under this application.

MR WALKER:   It is tempting just to say yes, your Honour, but I do need to point out that one can be a member subject to a control order, notwithstanding you become a member after the declaration of an organisation.

KIEFEL J:   Yes, I see.

MR WALKER:   So there will be a class that with the best will in the world might not be disclosed and there will be a class that follows that may presently exist, but of which you are not fully aware.  So disclosure can only be to the extent - it is, to adopt a metaphor that Justice Hayne has used in raising matters with me, there cannot be cards held up a sleeve but you cannot be guilty of not knowing that ‑ ‑ ‑

KIEFEL J:   Someone is going to join membership later?

MR WALKER:   Yes.  Or that somebody is a member that nobody has ever tumbled to.

KIEFEL J:   But in those circumstances you say the scheme does not permit the court to revisit the declaration in relation to criminal information insofar as it impacts upon that person.

MR WALKER:   Bullock is not authority for the proposition that a court can go back to fix its work up because now we know there was more and better material.  That after all would have us all still litigating matters from the 1950s, but ‑ ‑ ‑

KIEFEL J:   Perhaps it depends upon what one can make of subsection 7 read with subsection (2) and section 72 in relation to the court’s powers.

MR WALKER:   Yes.  Bullock undoing matters is all premised on a breach of duty and it is emphatically not the case that it is only by breach of duty that a court proceeds on incomplete or imperfect material, or at least I hope so.

KIEFEL J:   Or a breach of procedural fairness where the person has not been in the contemplation of the court at the time the criminal intelligence order was made.

MR WALKER:   That would be an extension that I presently cannot think of an authority to support that is undoing an order ‑ ‑ ‑

KIEFEL J:   Except the terms of subsection (2) itself, unfairness to a respondent.

MR WALKER:   But once there has been a declaration, subject to the exceptional jurisdiction which would not apply here one would think, it would be appeal or nothing.

HAYNE J:   But by definition, the obligation to accord procedural fairness is to those who you know to be affected.

KIEFEL J:   Yes.

MR WALKER:   Exactly, yes.  That is the difficulty, after all ‑ ‑ ‑

HAYNE J:   The difficulty is you then end up with an in rem type order.  There is the problem that ‑ ‑ ‑

MR WALKER:   That is the difficulty and that is one of the reasons we say this is a case about a combination of things which looked at in a focused or disaggregated way may, many of them – I do not think all of them but many of them – may escape censure but combined, particularly given the staging and what Justice Hayne has called the creation of, as it were, an in rem basis for later substantive applications, does push this into forbidden territory.  If your Honours would just forgive me, I had a thought, which is now truly fugitive, in answer to one of those questions – I am sorry, your Honours.

FRENCH CJ:   Can the COPIM call a witness?

MR WALKER:   I do not think so.

FRENCH CJ:   Section 89 says that COPIN can “examine or cross‑examine a witness”.  Just going back to the earlier question I put to you under the Uniform Rules of Civil Procedure, the court can call witnesses.

MR WALKER:   Yes, 391 is the answer.

FRENCH CJ:   Yes, 391.

MR WALKER:   Yes, 391, but that is why the provisions to which some reference has already been made and to some to which I am about to come are or importance.  I may try to do it in order, so far at least.  Can I draw to attention section 73(2).  Again, these are not collaterally attackable.  It remains in force until it is revoked.  At section 74 one sees the revocation is at any time on application by the Commissioner.

GAGELER J:   Does that mean that the court can only revoke “on application by the commissioner”?

MR WALKER:   Yes.

HAYNE J:   Why?

MR WALKER:   Sections 73 and 74 – it “remains in force until the declaration is revoked” and 74 says ‑ ‑ ‑

HAYNE J:   May.

MR WALKER:   That, “The court . . . may revoke a criminal intelligence declaration” “at any time on application by the commissioner”.

GAGELER J:   But absent an application you say the court has no power to revoke?

MR WALKER:   That is right, and absent an application by the Commissioner.

GAGELER J:   So in circumstances where the declaration is made by reference to section 59(1)(a) and the criminal investigation is over, what happens?

MR WALKER:   The declaration remains in force unless and until the Commissioner successfully applies for revocation.

GAGELER J:   In circumstances where a discretion is exercised by reference to section 72(2) and it later emerges in a substantive application that there is unfairness to a respondent that might be thought to outweigh the matters mentioned in section 60(a), what happens?

MR WALKER:   It remains in force until the declaration is revoked.  Unless the Commissioner feels moved to make the application, then the court remains - and everyone participating in the court proceedings remains bound by the strictures that come in the train of criminal intelligence declaration.  There is no room, given 73 and 74, for, as it were, a cycle of revisiting matters as circumstances change.  Where changed circumstances are a ground for the exercise of what I will call the revisiting power they are spelt out in the statute, I have drawn them to attention already as we have gone through.  In section 74 changed circumstances one supposes of a kind that particularly Justice Gageler has raised in those questions will often constitute the grounds referred to in 74(2)(a).  But what the statute says is that is a matter for the Executive to apply before the judiciary can do anything about it. 

I am sorry, I neglected to draw to attention a safeguard in 72(4).  I do not need to dwell on it, but I do need to draw to attention that under subsection (5), even that safeguard may find the corroboration only in something which is also secret and secret because of an equally ex parte process.

BELL J:   Or, indeed, subject to an application?

MR WALKER:   Quite so.  So either has already been made the subject of a declaration, but is in or is pending as to whether or not that will or will not be granted.  I stress “or will not be granted”.  We then move to Division 3 of Part 6.  These are important provisions because they show the holus bolus transfer with all its good or bad points, we stress the bad ones, of the secret ex parte criminal intelligence aspect of the scheme, statutory scheme, to substantive applications.  So under section 75:

This division applies if–

(a)a substantive application is filed –

So that will be either one of the kind removed into this Court, or a control order, say, and –

(b)any document filed with the application or filed in support of the application contains declared criminal intelligence –

as has happened in this case. 

If this division applies to a substantive application, this division applies as well to any other provision of this Act relating to the application. 

So this is a governing or overriding set of procedural provisions.  There is repetition of the immunity of the informant from being called or otherwise required to give evidence.  One recalls how different that is from a common law immunity, which has to do with identification, rather than being immunised from the inconvenience of having to give evidence, that is at a trial.  That is subsection 76(2).  One recycles – if I can say that without ‑ ‑ ‑

HAYNE J:   That 76(2) prohibition is required to give evidence about anything?

MR WALKER:   Yes, about anything, including in support of a substantive application.

HAYNE J:   If, for example, the informant is a police officer who was working undercover but later has accepted promotion to a uniformed position ‑ ‑ ‑

MR WALKER:   That is right.

HAYNE J:   ‑ ‑ ‑ cannot be examined about what happened in the uniformed position.

MR WALKER:   It would appear that is right, your Honour.  That is, there is no informant – a prior informant cannot be called.  It is a person who has had a character in relation to the proceedings, yes.  But, the informant – even prior informant – cannot be called with all the protection the common law would give in terms of identification, cannot be called by counsel for a respondent to say that “I suggest to you that my bloke was pulling them back – asking them to desist and saying we cannot do this”, et cetera, in other words, evidence that an alleged conspirator was no such thing.  Of course, the judge cannot ask any such question however concerned he or she may be about the incompleteness of the material.

Under subsection (3), there is recycled from the criminal intelligence application, what I would call the safeguard but limited safeguard material concerning information about an informant from section 64(4) to (10).  But, again, there need not be any other identifying information and it cannot be otherwise required to be given to the court by anybody, including the court.

Section 77 is not of any great importance but I need to draw to attention in subsection (5)(a) there may not be inspection by other than a small circle – see subsection (3) – and certainly not by anybody who is in the wrong end of an application, the wrong side of an application, unless that falls within the expression:

the court considers access to the documents by the other person is needed to perform functions under this Act –

Query whether section 108, which provides a right of representation, means that a function under this Act is providing such representation - that may be a strained reading.  We do not understand that anybody takes that position, but under section 78 how would anybody know enough to make that application even if section 108 meant that a respondent’s counsel had a function to perform under this Act and wanted access to a document?  How would you know, given section 78, which has no discretion, which has no discretion?  Under subsection (1):

The court must order any part of the hearing of the substantive application in which the declared criminal intelligence is to be considered –

Now, I suppose there might be some cases which proceed in a particularly simple fashion where you can say that at 10.03 we will consider such and such, being the declared criminal intelligence, and we will have finished that by 10.17 and then everyone can come back in.  But in other, perhaps more likely cases, the declared criminal intelligence, particularly if, as one supposes in a case of this kind, it will be that which conveys the real gravamen of the case that it will be with you in your considerations as a judicial officer from start to finish, that is, from as soon as it is before you, to your last act as a judge in the case. 

If that is right, then section 78 has worked an effect, presumably designed, of depriving a person because the evidence is important against them of any presence while it is being considered.  When I say because it is important against them, in such a case as I have illustrated, it is precisely because of the qualities of the information or evidence which made it criminal intelligence that will make it secret and will also, of course, be the reason why it is said by the applicant to support the grounds upon which the substantive application is made.

Now, the closed hearing to the extent provided under this section with which section 78(1) refers provides no comfort.  In subsection (2), one sees that the world is expelled other than persons who are simply either the statutory safeguards, COPIM, or people who are associated and officially so with the application (a), (b), (c) and (d) or (f) the court staff, a list which, very deliberately, excludes anyone who may be involved in the interests of a respondent. 

That requires special attention to the COPIM, of course, but the proposition we put is correct, the provisions to which we are going to come shows that the COPIM certainly is not the person who may be regarded as some substitute or proxy for representation of the respondent.  Section 80 is one of the provisions to which I was referring when earlier answering the Chief Justice and Justice Hayne.  Section 80 says that:

A police officer who is not an informant or an officer of an external agency who is not an informant may be –

called so that the notion that the provisions such as section 8(3) about which Justice Hayne first asked those questions requires all cards to be shown, the whole of the case to be disclosed by the affidavit, would appear not to be so at least to the extent that section 80 may operate.  A police officer may be called and may be cross‑examined by the court.

It is plain, of course, that so far as cross-examination or evidence is “evidence including or about the declared criminal intelligence” – I have just quoted from 80(1)(a) – then by reason of section 78, and particularly subsection (2), there will not be any participation in that testing or confrontation on behalf of the respondent.  Subsection (2) may have a typographical error.  It reads as if no question may be asked of the COPIM.  Maybe it should read by the COPIM, but I do not know.  If it is not a mistake then it suggests that involvement by the COPIM going rather beyond what is to be gathered from provisions such as section 77(4).

GAGELER J:   Is the section 80 exercise one that occurs within the special closed hearing referred to in section 78?

MR WALKER:   It can be.

GAGELER J:   It must be?

MR WALKER:   No.

HAYNE J:   It is called at the hearing of the substantive application, is it not?

MR WALKER:   This is at a substantive application which will be a special closed hearing under 78 to the extent to which the declared criminal intelligence is to be considered.

GAGELER J:   The oral evidence referred to in section 80 ‑ ‑ ‑

MR WALKER:   It is including or about.  It is not only declared criminal intelligence.  The officer may be called about other material as well, including or about.  But if it is including or about – that is why I quoted those words earlier – then 78 kicks in and that kicks us out.  Section 81, those words where the reader’s heart sinks – “To remove any doubt” it starts off:

it is declared that if, apart from the declaration, the document would be admitted into evidence, it must be admitted into evidence despite the declaration.

It sort of jumps in…..race.  It is as if there is an earlier provision that talks about the document or a document.  In any event, there it is.  If something that fits that odd expression “the document” is in question, to remove any doubt imagine there is no declaration of it being criminal intelligence.  If it would then be admitted into evidence then it must be admitted into evidence despite the declaration.  What do we get out of that?  What we get out of that is the plainness of the language by which, if there could be any doubt to the reader thus far, the court is being compelled to proceed on the basis of secret evidence considered ex parte in a substantive application.

FRENCH CJ:   Does it mean anything more than the heading?

MR WALKER:   No.  Normally the fact that an opposing party could not see evidence would be – how shall I say – a pretty good ground for it not to be admitted into evidence.

FRENCH CJ:   That does not go to admissibility, does it?

MR WALKER:   I think technically it does under those provisions, your Honour, but your Honour, that may, with respect, be right.  The document reference I am told probably should be seen as picking up the reference in 77(1)(a), 77(2), 77(3), 77(4), et cetera.  In 77 the word “document” is used.

HAYNE J:   May I just delay you again about section 80?  Section 80(1)(a) does not identify who the calling party is or may be.

MR WALKER:   That is right.

HAYNE J:   Presumably it includes at least the court ‑ ‑ ‑

MR WALKER:   Yes.

HAYNE J:   ‑ ‑ ‑and COPIM, having regard to 80(1)(b)?

MR WALKER:   Yes, your Honour, one way or the other, yes.  Using the word “called” in a very general sense, yes.

HAYNE J:   Does it follow from 80 that in what will be necessarily, I think – see section 78(1), a “Special closed hearing” – that the court of its own motion may call a police officer, presumably of appropriate seniority ‑ ‑ ‑

MR WALKER:   Not an informant.

HAYNE J:   ‑ ‑ ‑ who is not the informant ‑ ‑ ‑

MR WALKER:   An informant.

HAYNE J:   ‑ ‑ ‑ an informant – and cross‑examine that officer about what I would refer to as the assessment of the declared criminal intelligence, namely, cross‑examine that officer about the worth or value or weight to be attributed?

MR WALKER:   “Superintendent, have you ever been disappointed by an ASIO assessment of an informant”, for example?  Yes, your Honour, yes, exactly.

HAYNE J:   When the officer says no ‑ ‑ ‑

MR WALKER:   That is purely hypothetical, I stress, your Honours.

HAYNE J:   Yes.  Therefore, if that is an operation of 80(1), does it lead to the conclusion that in respect of these matters the court is to act as contradictor?

MR WALKER:   No.

HAYNE J:   Or quasi‑contradictor?

MR WALKER:   No, and “quasi” worsens rather than improves the position, in our submission, because it introduces a lack of clarity.  No, it does not; if it did, however, so much the worse for the scheme.  The impossible spectacle of a Supreme Court justice administering an Act that has the social aims that its long title and objects provisions in section 3 show and has the impartiality which is institutionally necessary, but also is there to look out for the interests of either known or unknown persons, depending on what stage we are up to in this scheme, is, in our submission, an impossible classic case of the incapacity of the judicial officer to please anyone, not least because you cannot please everyone in such a position.

HAYNE J:   Well, that is a common experience, Mr Walker, but can we not see the courts in this respect as moving from adversarial to inquisitorial, and is that not an available reading of 80(1) that in this respect the court adopts an inquisitorial mode of procedure?  Now, that may be wrong, but what do you say about it?

MR WALKER:   There are two aspects to a characterisation of a court being inquisitorial – or three, sorry – that form my answer.  The first is if the inquisitor, if I may use that expression, sees it as part of his or her office to assist an application succeeding, that is, regardless of the permissibility of inquisitorial procedure by State legislation for the State judiciary, that is, in our submission, such a radical destruction of impartiality as to be Chapter III invalid. 

The second ought to be as neatly disposed of, that is, given that the application has no shortage of its champions and that the respondent is absent necessarily, compulsorily, the court with an institutional attachment to fairness based upon its accusatorial or adversarial tradition, in this special inquisitorial process becomes in some nebulous – I stress nebulous – way a contradictor, as Justice Hayne has put it; that is, engaged as it were on the side of the respondent.

FRENCH CJ:   Why is it necessarily a contradictor?  Why does one have to put that characterisation to an inquisitorial function which is simply directed to whether ultimately conditions for the making of the relevant declaration are satisfied in a particular statutorily mandated circumstance where the respondent cannot be heard?

MR WALKER:   You do not have to, your Honour.  That is the third one I was going to come to.  The second one is if the so‑called inquisitorial character comes about because the judge steps down from the bench and, as it were, has a shadow position at the Bar table, that ought to be as neatly disposed of as the first.  It is an unthinkable reversal – a debauching, we would submit – of the impartiality that Chapter III calls for.  The fact that it would be on our behalf and may be regarded as highly likely to be very capable is cold comfort, indeed no comfort at all.

Then the third is what the Chief Justice has put, namely that it ought to be seen as an inquirer after what might be called in grandiose terms the truth or the right or correct course of conduct to follow; or perhaps more realistically the preferred course of conduct to follow in the practicalities of the case, including the shortcomings of the material.

KIEFEL J:   …..commentators often suggest that is what the continental system is better attuned to doing and that is the criticism of the adversarial system.

MR WALKER:   Quite so and it is at the point at which epithets such as “inquisitorial”, with the images of penitents in white robes, really should be put to one side as not useful.  Now, that third is, in our submission, also but perhaps with more elaboration, to be disposed of as being in breach of Chapter III.  For this scheme, that is if one contemplates that as being introduced by provisions such as section 80 into this scheme which involves allegations of criminal conduct, both under section 10 and under section 18, because, in our submission, it will be every bit as important if the Supreme Court sees itself as inquisitorial in that third inquiring sense, not engaged on either side.

It will be every bit as important as in traditional accusatorial adversarial proceedings that that inquiring court, in order to have the material in proper form and in proper tested form, to be satisfied that the respondent has not only seen the case against the respondent but has had a reasonable opportunity to test it and to adduce its, his or her own case in answer to it, in other words the inquiring inquisitor, the third class, is not a class which to any degree - and Justice Kiefel’s reference to the continental system, with respect, not that there is one discrete continental system, supports this - does not dispense with procedural fairness.  It is for those reasons it may be the confrontation in some systems is via the bench, rather than from a contesting prosecutor, but there is still confrontation.

FRENCH CJ:   You would not accept that an inquiry process necessarily comprises impartiality?

MR WALKER:   It need not no, but to the extent that it dispenses as the combination of sections 78 and 80 on the hypothesis I am considering would, the confrontation and opportunity to contest aspects of procedural fairness then there is just as dire a detriment to the judicial process for Chapter III purposes.  It is not only damage to impartiality after all that threatens Chapter III invalidity.

HAYNE J:   Inquisition plus adversarial role filled by COPIM?

MR WALKER:   In this scheme no, we do not come within a country mile of a substitute.

HAYNE J:   But on this particular aspect I have in mind, Mr Walker, where COPIM can cross‑examine?

MR WALKER:   Without instructions, without advice, without knowledge.  It is those aspects ‑ ‑ ‑

HAYNE J:   Therefore, does the argument come to the proposition that if this would have the court act as inquisitor – impartial inquisitor on these matters that are to be determined in a special closed hearing, that is necessarily contravention of Chapter III?

MR WALKER:   No, “necessarily” is too strong.  It is, in this scheme, because ‑ ‑ ‑

HAYNE J:   If for want, you say, of procedural fairness ‑ ‑ ‑

MR WALKER:   Yes.

HAYNE J:   ‑ ‑ ‑ because the person who suffers the detriment – or may suffer the detriment ultimately of the order is not heard separately on this issue.

MR WALKER:   Is not heard at all.

HAYNE J:   Yes, on this issue.

MR WALKER:   Does not hear and is not heard.

HAYNE J:   Yes.

MR WALKER:   It is both and because COPIM cannot seriously be suggested as a substitute for one’s own counsel – cannot seriously be suggested as a substitute for one’s own presence – I am going to come to why that is so – it needs to be put to one side.  Again, let us protest.  We are not saying COPIM is a bad idea, just that it is not adequate to save this from Chapter III invalidity. 

CRENNAN J:   Well, COPIM in the Court will have some information bearing on the informant’s credibility because of the section 64 requirements in relation to ‑ ‑ ‑

MR WALKER:   Mind you, not as much as the applicant will.

CRENNAN J:   No, that is true, but all I am suggesting is that one possible topic of inquiry might be directed to those matters without trespassing on revelation of the informant’s name.

MR WALKER:   Quite.  Counsel, with respect, and courts in accusatorial process of the traditional kind have been used to challenging evidence in a way that this Court has never regarded as deficient in fairness while observing common law immunity against so‑called informers’ privilege.  So these things can be done.  They are not done by secrecy and ex parte.  They are done by limited access and limited publicity and by code words.  That is a world away from the combination of 76, 78 and 80.  Now, you need to refer to 76 because you are not going to have the informant being called.  Section 80 is only about non‑informants. 

HAYNE J:   Yes, but 80 is where you do your assessment.  The person who supplied the information may be absolutely resolute in his or her belief as to its truth.

MR WALKER:   But the normal way of testing information will be not to go to say – the office of a superior to say, “What do you reckon?” but to go to the person and say, “But what about this, this and this?”  It is the ordinary way of testing a version is to confront the version.  That is not to say that one ought not have as well the opportunity of impressing a judge with the evidence of that, the informant is thought to be a cowboy by a superior, assuming that that is a proper question. 

What is clear is that under 76, 78 and 80, the people who are the informers, that is they are at the heart of the matter, they cannot be called so the judge cannot use the power under the rules to ask questions of the informant and it is not to be supposed that someone else will know as much as the informant does about discreditable features, for example, of the informant’s involvement of the very events, for example, or reasons to doubt the reliability.

It would be difficult to imagine a case in which somebody else, superior or colleague or more distant observer would know as well or better than the informant about those detrimental aspects of the experience in the light they might cast adversely to the application on the informant’s information.

GAGELER J:   Mr Walker, you have been focusing, I think, on the inability of the respondent to test criminal intelligence in the substantive hearing.  What are the mechanisms, under the Act or otherwise, for the respondent to understand the case the respondent has to meet, insofar as it is based on the criminal intelligence?

MR WALKER:   Yes.  I need to take you back.  For the application that is removed into this Court, that is section 8.  Your Honours may recall me referring to these provisions as those which framed and posed the issues.  There are these three matters – they are the grounds in 8(2)(c).  I suppose there is also the nature and distinguishing characteristics in 8(2)(b).  There is the very important information supporting the grounds, which is 8(2)(d), that a document including that information is the kind of document which will be admissible, notwithstanding it has been declared to be criminal intelligence – section 81.

Then there is also an affidavit under subsection (3) and then finally there is the evidence under section 80.  To the extent that any of that is either the informant material to which I have drawn attention, 63 and 64, or criminal intelligence by dint of any earlier declaration then the short answer to Justice Gageler’s question is the respondent will not know any of it.

HAYNE J:   Is not that too broad brush a treatment to apply?

MR WALKER:   No, you will know the grounds that it is said to support but you will not know what it is so you will ‑ ‑ ‑

KIEFEL J:   The grounds would necessarily be the facts upon which it was said that an organisation was involved in criminal activity or the person was associating.

MR WALKER:   To use Bullen & Leake language ‑ ‑ ‑

KIEFEL J:   It contemplates a kind of a pleading where the facts are alleged.

MR WALKER:   Yes.

FRENCH CJ:   That is what happened in this application, is it not?

MR WALKER:   Yes, quite so.

KIEFEL J:   Presumably, the court could order further particulars.

MR WALKER:   There is no indication in the Act that it could not in order to keep its process fair.  For a start, one might criticise an application for the grounds doing nothing other than reciting a statutory conclusion for it.  That would be a good example of what Justice Kiefel has raised.  You would expect to see in grounds those facts which you would say – and bear the onus of showing – are good in law to make out the jurisdictional facts, for example, and then further the case for the exercise of a discretion.  You would be informed.  That is why I said when I say framing issues, posing issues, you will be informed as a respondent to that extent of the grounds.

What you will not have is any of the so‑called information, or for that matter, contents of any affidavit to support those grounds - to use the expression in the statute – to support those grounds if that is declared criminal intelligence.  In this case in the special case book at page 97 in, heaven help us, paragraph 613 there is in appropriate form for the statutory scheme as we have been expounding it:

Information supporting the grounds of this application is also contained in information which has been declared criminal intelligence.

HAYNE J:   The only statement of grounds is found, I think, at the outset of the application.  Is that right?

MR WALKER:   That is how we read it, your Honour.

HAYNE J:   My point is, is that a sufficient statement of grounds and information supporting to recite the words of the Act.  Now, of course the drafter will do it.  Why would a drafter not sensibly take the words of the Act and say that is what we are trying to establish, but is it sufficient?

MR WALKER:   Your Honour Justice Hayne, with respect, has just been referring in particular to the paragraph 22 on page 17 of the book, which as his Honour observes sings the right tune from the statute. 

HAYNE J:   Yes, and there is not a moment of criticism of that.  The question is, is it sufficient?

MR WALKER:   No, no that it appear is not a vice.  That it be regarded as a sufficient statement of grounds is a highly contestable proposition and however much it may damage my present position I am bound to say that they are not grounds, we would submit.

FRENCH CJ:   There are no specific rules, are there, under the Uniform Civil Procedure Rules governing these applications?  There is no reason why such rules could not be made.

MR WALKER:   As long as your Honour is not proposing there be what some courts call a “users’ group” to consult about those rules. 

FRENCH CJ:   I have seen a few of those in my time.

MR WALKER:   There is no reason at all, your Honour.

HAYNE J:   But does not the Act itself require and that is the question, that is the question I posed at the outset, should the Act be read as requiring the putting on notice of the organisation concerned of, if you like, to put it as broadly as I make, the whole of the police’s case?  We are going to say against you this.

MR WALKER:   Yes, your Honour, perverse for me to say otherwise, yes, even with the K‑Generation, Gypsy Jokers problem it may carry in its train, yes, that is right.  One ground ‑ ‑ ‑

HAYNE J:   But if that is right, others may well offer different views about the construction but if that is right, what then is the procedural unfairness that is encountered by the respondent to the application?  It knows the substance of the allegation made against it, does it not?

MR WALKER:   In such a perfect case, which this one is not, yes, your Honour.

HAYNE J:   I understand that, but where lies the departure from procedural fairness?  I am not saying there is none but I need to identify it, I think, more closely than I presently do.

MR WALKER:   It is as follows – that the respondent is not permitted to know so much of the information in support of the grounds, the statutory expression or the evidence, affidavit or oral – section 80 - which is declared criminal intelligence and is urged by the applicant in favour of the making of the order against the respondent.

GAGELER J:   Is that proposition too broad?  If you have declared criminal intelligence and it is not provided by an informant, then section 76 has no application.

MR WALKER:   That is correct.

GAGELER J:   Section 78 ‑ ‑ ‑

MR WALKER:   Section 78 does, though.

GAGELER J:   ‑ ‑ ‑ does apply and that is about the hearing occurring in closed session, but is there any restriction on the court either ordering or itself providing the respondent with the substance of the information?

MR WALKER:   There are two steps to my answer.  The disclosure offence provisions ought to be read as forbidding anyone, either non‑judicial officers of the court such as the registrar or judicial officers of the court from ordering or permitting disclosure or making disclosure; that is the first ‑ ‑ ‑

GAGELER J:   What section is that?

MR WALKER:   Section 82, your Honour.

GAGELER J:   So you are saying the court is a person?

MR WALKER:   No, I would not unless driven to it say a court is a person.  It is that coupled with section 77 and the particular provisions of 77(5), to which I drew attention earlier this morning, access to documents containing “declared criminal intelligence”, so that will include the information in support of grounds in the application – that is 77(1)(a) – plus in the affidavit.  Subsection (3) and subsection (5) ought to be read as forbidding a court to grant access, and it must be that that includes all disclosure other than pursuant to subsection (5), about which I have already made some submissions.

HAYNE J:   Perhaps after the adjournment you might – go on, finish.

MR WALKER:   The applicant’s legal representatives cannot do, as it were, the fair thing and say “My goodness, you really do need to answer this”.  They are forbidden because they are persons caught by the offence provisions, and the court cannot because of 77, unless 77(5) applies.

HAYNE J:   Perhaps after lunch, you might consider whether it is open in an application to include a statement to the following effect:  “Criminal intelligence suggests that the defendant organisation is seeking to take over the east coast MDMA market”.

MR WALKER:   Yes, your Honour.  I was going to use a more colourful murder incorporated thing, but yes.  The grounds retreating from the generality of the statutory test, two grounds, as I accept one should, could well include something of that kind.  Yes, your Honour.

FRENCH CJ:   We will adjourn now until 2.15.

MR WALKER:   May it please the Court.

AT 12.47 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.18 PM:

FRENCH CJ:   Yes, Mr Walker. 

MR WALKER:   Your Honours, could I return to two matters that were raised with me this morning?  The first concerns the nature of the grounds called for, for example, by section 8.  It may not be so straightforward to frame a ground which does not disclose criminal intelligence once that has been declared.  For example, the material that discloses, let us say, a nefarious business plan for an illegal drug to be distributed by an organisation might be thought to yield something which ought to be disclosed and announced openly as a ground for the making good of one or other of the matters required to be made good under section 10(1).

On the other hand, if that came from, let us say, an inside informer, be it undercover policeman or turncoat, or if it came from technological resorts such as listening devices, there are aspects of disclosing even that ground, if it was derived from a conversation held just once among a certain small number of people all of whom know each other and knew that each was at the occasion, which would disclose the intelligence, certainly it might fit each of the three definitional characteristics of criminal intelligence in such a case. 

So although we embrace the proposition that grounds ought to be more in the nature of 19th century Judicature Act pleading facts to make out a statutory conclusion, rather than simply a statutory conclusion itself, there will be difficulties of disclosure even in the grounds called for by reason of criminal intelligence.  That is the first thing.  The second thing is, the question first asked by Justice Hayne and the subject of follow‑up questions from a number of your Honours about the disclosure of the whole of the applicant’s case, say, under section 8 or section 16 has to be read subject to what the Act permits. 

On the side of calling for the whole to be disclosed is, of course, the fact that it is the grounds, not some of the grounds; it is the information in support, it is not some of the information in support; and it is affidavits intended to be relied upon, not some of the affidavits intended to be relied upon.  All that tells in favour of exhaustiveness.  On the other hand, the possibility of material under section 80 to which sufficient reference has already been made in argument means that it cannot be said that that material cannot be supplemented.  The supplement, of course, may be to meet a deficiency or feared deficiency that might emerge during the questioning, not only by COPIM but also by a judge. 

It is to be recalled, however, that whether it is the original information which has to be set out in documents which will become admissible in accordance with the provisions earlier drawn to attention or whether it is section 80 “oral evidence”, it cannot include the identifying information about informants and informants cannot be called and, most importantly, while soever criminal intelligence is being considered, there must be a complete exclusion of the respondent or of anyone representing the respondent.  So it is disclosure of the whole as it is understood to be and as falls within grounds, information and affidavit, subject to two things; one, the difficulty of disclosure of criminal intelligence, and two, section 80 and questioning.

Could I then come back to the Act in Part 7 to which Part 6 is subject as I have observed and picking it up at section 86, the “COPIM’s functions”.  One sees that described in paragraph (c) as including testing and making “submissions to the court about” what is called “the appropriateness and validity of the monitored application.”

FRENCH CJ:   What is the content of the word “monitor”?

MR WALKER:   I think being there.  That is not to be despised.  Part of the principle of open justice is that it is possible for people to be there and to observe.  There is also section 92 by which an annual report is made and that would mean that monitoring is not just an experience for the COPIM.  Could I then go to section 88 simply to draw to attention the thoroughness of which by its subsection (2) the COPIM continues to be deprived of “identifying information about” informants.  Subsection (4) of section 88, we think, means that there cannot be a sharing by the COPIM with anyone on behalf of the respondent of any material given to the COPIM.  Section 89 ‑ ‑ ‑

CRENNAN J:   Just on that point may I ask you under 77(5)(v) where a court may make an order in relation to ‑ ‑ ‑

MR WALKER:   75?

CRENNAN J:   77(5).

MR WALKER:   Yes, thank you.

CRENNAN J:   I am sorry to take you back, but the court may make an order and under (b):

the court considers the access will not –

For example, relevantly for our purposes –

(i)       prejudice any criminal investigation –

Now, would it be possible to make an order as sometimes done in patent cases that on an undertaking given by the recipient of the information not to disclose it and to treat it in a highly confidential way it can be given to such a person.  Could it under this rubric be given, for example, to the respondent’s legal advisor?

MR WALKER:   Your Honour, that is the ‑ ‑ ‑

CRENNAN J:   If the Court is able to satisfy itself by reason of the undertaking given that no prejudice to any criminal investigation should follow?

MR WALKER:   The short answer is no, but it needs more explanation.  It is an attractive and principle of legality‑informed reading and if you could breach it, you should.  We fear you cannot breach it for the following reason.  The first thing is the one I mentioned before the adjournment.  It is to be strongly doubted whether the respondent’s counsel is a person about whom the court could consider access to the documents is needed to perform functions under this Act.  Performing functions under this Act, we submit, is referring to designated conduct, either called for or regulated by the Act, rather than that which is indirectly implied by the right of the respondent to have representation.  That is the first thing.  To put it another way ‑ ‑ ‑

GAGELER J:   Does it have to be the person’s functions under the Act?

MR WALKER:   We think it does, yes, but what an interesting possibility, your Honour.  Access by the other person is needed for functions to be performed – that is, for anyone to perform functions.  Your Honour, if that were possible, that is another principle of legality‑assisted reading.  One of the premises of my argument is that functions of fair hearing are assisted by representation on both sides.  It may be the word “needed” is also something which, albeit it is against my overall case, I would have to accept my whole premise is that procedural fairness is a necessity, not a luxury.

KIEFEL J:   At least directly functions are referred to in Division 2 and Division 3, section 91 of the monitor and the parliamentary committee.  They are obviously contemplated.  I suppose the question is whether you can go any further.

MR WALKER:   Those are the ones that 5(a), with respect, seem to have been drawn for, but also, with respect, the principle of legality‑boosted mode of interpretation would not shrink from attributing to words fair meanings within them if that would produce a valid rather than invalid outcome.  Notwithstanding those prospects opened up by your Honour’s questions, we do submit that, properly understood, access by the other person is needed to perform functions refers to the other person’s functions, albeit in cooperation or complementing other person’s conduct, again, other person’s conduct.  That is the first thing.

Second, that that does not include either the respondent or respondent’s representatives and, third, that the functions in question cannot be read so as to include the court’s function of adjudicating fairly.  However, there is further answer to Justice Crennan’s question.  When it comes to considering the way in which, where the nature of the case renders less than full access necessary, confidential information - trade secret cases are the obvious ones - it has been traditional to rely upon the assurance given by the professional discipline applicable to lawyers for what the United Kingdom Supreme Court called circles of confidentiality.

Your Honours may not be familiar with them but there is now a veritable blizzard of signed undertakings when once status and word sufficed.  So, that can happen but for what purpose, given section 78?  Section 78 really trumps that possibility altogether.  You could not possibly need access to something which you are not allowed to participate in the hearing about is how the argument would run.  There has to be a closed hearing from which the respondent and the respondent’s representatives must be excluded about anything which is criminal intelligence.  Of course, section 77 and disclosure under subsection (5) is all about criminal intelligence.

Your Honours, we then come to section 89.  It repeats in its subsection (2) for any application in which the COPIM appears, the following – the COPIM is given the power:

for the purpose of testing the appropriateness and validity of the application –

So, I suppose the paraphrase would be “merit and legality”.  It may:

(i)present questions for the applicant to answer; or

(ii)examine or cross‑examine a witness –

and that may involve calling a witness, or having the court call a witness, and it may:

make submissions to the court about the appropriateness of granting the application.

Then come some problems.  Subsection (3):

must not make a submission to the court while a respondent or a legal representative of a respondent is present.

Now, that raises a question which probably is facetious only but can you leave the courtroom and say, tell them what you have just told the court?  Presumably, not – presumably, that would be professional misconduct.  Subsection (4) empowers, that is renders lawful a direction by the court to:

exclude the COPIM from the hearing while a respondent or a legal representative of a respondent is present.

Of course, while one of them is present they may be saying things or protesting or making points conveying information which, were it in private, might be called instructions.  That can be prevented lawfully under subsection (4).  It does not have to be prevented – it may be.

FRENCH CJ:   Exclude the COPIM from the hearing, is that a reference to participation in the hearing or is it that the COPIM has got to go and sit outside the courtroom?

MR WALKER:   I think the latter.

FRENCH CJ:   What is the point of that?

MR WALKER:   Your Honour, I think it is in order to stop anything that may be communication.

FRENCH CJ:   This is while the respondent and a legal representative are in the hearing?

MR WALKER:   Yes, or present by way of audio/visual link, yes.  We think it is intended to prevent communication.  That would appear to be its only effect.  There is nothing about appearances that would render it inappropriate from being present at the same time.  It casts a light back on subsection (2) paragraph (a).  There are professional duties that are applicable, certainly, to a barrister if he or she were COPIM.  Cross‑examining is not an occasion for making suggestions without a reasonable basis for doing so, for example.  You normally need instructions.

Similarly, presenting questions to answer, unless they be what might be called routine questions constructed blind, as it were, from the face of a statute and the application, again one will not have any instructions and there is simply no provision in this statute for anything in the nature of what I am going to call representation, by which I mean instructions in one direction, advice in the other; perhaps better in the other order, advice and instructions.

It is said against us in a number of submissions that there is nothing to prevent the respondent by his or her representatives making representations to COPIM, but it may equally be said the statute certainly does not require COPIM to accept them, and one would imagine that no such representations would be regarded as proper which cut across the prohibition in 89(3) or any order or direction made by way of exclusion under 89(4).

It is to be recalled as well that COPIM is not at liberty to reveal anything in the nature of criminal intelligence, and if, as one might suppose, criminal intelligence dominates that which is most damning in the cast against a respondent, the notion of being able to make representations is similar to throwing pebbles down a bottomless well.

BELL J:   COPIM’s prime role is at a special closed hearing, is it not?

MR WALKER:   No, COPIM’s role is that all the applications at which a COPIM may attend.

BELL J:   Yes, I am just trying to understand.  At a special closed hearing there is no question of the respondent’s representative being present, but COPIM plainly can be present throughout the whole of a proceeding, albeit ‑ ‑ ‑

MR WALKER:   Subject to 89(4), yes.

BELL J:   Yes.

MR WALKER:   Yes, your Honour.  Your Honour, I am only cavilling and I should not.  Your Honour has used the word “prime”.

BELL J:   Yes.

MR WALKER:   One would hope that it would not be a subsidiary role to be at a control order hearing, for example.

BELL J:   Yes, I understand.

MR WALKER:   Of course, a control order hearing is where there may be criminal intelligence, respondent not present, about to be sequestered from his or her cousins and COPIM is there, and hovering at the Bar table, as it were, is this idea of special advocate.  Well, COPIM is not a special advocate, and in any event, special advocates would not suffice, for reasons to which I will come.  One sees that in relation to the functions 86(c), and the power 89(2)(a), the chapeau to (a) uses this notion of test or testing, and that sounds promising in terms of the interests of the respondent, but how does one test without instructions?

Otherwise, of course, the submissions that might be made reminds one a bit of the special children’s advocate in the Family Court; it may well be contrary to what the respondent supposes because to make submissions about the appropriateness and validity of the monitored application does not involve either inherently or as a normal expectation that they would be adverse to or contrary to either appropriateness or validity.  It is for those reasons, in our submission, that COPIM – the PI is the public interest, it is not the private interest of the respondent – is not there as somebody who has to any degree at all the championship of the respondent as a function.

BELL J:   That is advanced somewhat by 89(3), with the requirement for COPIM, as it were, is not tainted by hearing submissions from ‑ ‑ ‑

MR WALKER:   That might be subsection (4), but COPIM cannot make ‑ ‑ ‑

BELL J:   Yes, I am sorry; I meant (4).

MR WALKER:   Subsection (3) does apply.  If the respondent or legal representative is not present when COPIM makes a submission, there will not be the rocket from representative to COPIM:  “How on earth can you say this?  What about the following things?  You have got the advantage of material I do not have advantage of.  Surely you can, et cetera”.  There will not be any of that.  It is for those reasons, in our submission, that any idea hanging around that COPIM is a special advocate and the special advocate is counsel, as it were, for the respondent, needs to be expelled and should be expelled upon consideration of these provisions.

Your Honours, can I briefly note section 101 to which earlier reference has been made?  I do not need to enlarge on it in relation to the applicability but for inconsistency of rules.  Section 106 concerns our so‑called subsidiary point I referred to in opening.  Under subsection (1) it is the applicant who may apply for an extension for a return date.  Your Honours will recall return date is significant because it sets the time limits for responses in relation to return date.  Section 107 is important.  It starts promisingly for process in subsection (1).  An affidavit:

may only contain a matter if direct oral evidence of the matter would be admissible.

That probably means in the familiar “saw, heard, did” fashion:  “I saw this, I heard this, I did this”.  It would include, presumably, so‑called direct oral evidence of a person’s confession or admission, probably.  That would rather suggest that when one considers, say, a section 16 application for a section 18 order, there would need to be in the affidavit only such matter as amounted to direct oral evidence of a respondent’s offending which, of course, resembles the safeguard, albeit on the civil onus of a trial.

However, subsection (2) unwinds all of that, all of it, because one recalls that under section 61 to which I drew attention, information and belief is permitted for criminal intelligence.  Under section 107(2), if there has been a Part 6 application – that is, a criminal intelligence application – it does not stop there.  It does not fall away as an early stage of the rocket.  It stays for the trip.  That material, which may be multiple levels of hearsay, is material that may – I need to stress the word “may” – also be admitted in evidence for the substantive application. 

Now, I stress the word “may” to steal others’ thunder, no doubt, but it needs to be made clear that that prevents a court from refusing to admit it because it has that characteristic.  Parliament has said the section 61 characteristics are characteristics with which this may be admitted into evidence.  A judge could not faithfully, with respect, say well that is all very well and I may admit it but because of those characteristics I should not admit it.  Parliament has rather plainly said that is something that can happen.

Section 108 is one to which I have referred several times in relation to representation.  First of all it talks about a party to a proceeding appearing and being legally represented in subsection (1).  That will not include a respondent as defined to include possible and future applications in a criminal intelligence application because those people will not be parties to that application.  They are persons to whom potential unfairness must be considered, but they are not parties there.

Then in subsection (2) – and this is important in relation both to instructions and to the staging between section 10 and section 18, for example, between criminal organisation and then control order – one sees that for an organisation or a group only one individual, called the nominee, may be present.  It is a curious provision in the sense that, unlike, say, the Native Title Act procedures, there is no clue given as to how one becomes a nominee.  On the other hand, I do not suggest – I say this seriously – that the same tenderness should be shown for such groups as for native title ownership groups, claimant groups.

Then one sees in (2)(b) that differently from what obtains for the applicant’s camp there is a further limit on those who may be present.  COPIM is important, subsection (3), and one sees that, generally speaking, all hearings are closed hearings, subsection (4).  That is done by limiting in the manner set out in subsection (5) and, of course, unlike the special closed hearing at the what I am going to call ordinary or usual closed hearing, under subsection (5) the other party or the nominee, if that is a group or organisation, or the legal representatives are permitted to be present.

Under subsection (6) the powers of those present are – it is a pity there is needed express grant – in paragraph (a), to make submissions, and then paragraph (b), with the leave of the court.  I must accept, however tempting it is to say there is no right when there is a discretion, that will be a discretion exercised judicially, of course.  So:

with the leave of the court, file further affidavits –

that supplements the point already made about section 80 in answer to Justice Hayne’s question on notice –

and call, examine and cross‑examine witnesses to the same extent as is permitted in other proceedings.

If those words, as it were, had permeated the whole of the procedures in question, we could not be standing here in the way we are, because to the same extent as is permitted in other proceedings, it has to be read, of course, by reference to the fact that you will not be there and you will not know about anything which is secret and considered ex parte at special closed hearings.  Subsection (7) makes that crystal clear if there could have been any doubt about it.

Section 110, as I have several times referred to, says as one would expect, what the standard of proof is, balance of probabilities.  Costs are dealt with specifically in 111, and in 113 one sees that these orders may be renewed at any time before or after expiry, and subsection (3), that can continue forever.  Your Honours, that completes our reference to the provisions of the statute upon which we rely for the arguments that we have outlined in our outline for oral submissions, paragraphs 1 through 6.  It also contains those to which reference ought to be made for the argument noted in paragraphs 7, 8 and 10 to which I need make no further reference.

With respect to authorities, may I be as rapid as possible without I think taking your Honours to all but one.  I have made some reference on the way through to the way in which our arguments, we say, find support in both the decisions and reasoning of the well‑known cases, most of which are listed under paragraph 6 of our oral outline and others of which are found in our written submissions.  I do not wish to labour the point about the fundamental importance of the confrontation, that is the right to know the evidence, to be able to test it and to present an answer to it which is a feature of judicial process.  May I, without taking your Honours to it, simply give a reference in Gypsy Jokers 234 CLR 532 at 594, per Justice Crennan, which quotes the well‑known passage from Bass 198 CLR 334 at 359, paragraph 56.

Exceptions to that rule such as children or trade secrets, confidentiality matters, where the point of the litigation may be lost or destroyed by disclosure – that may be as true for matters concerning children as it is for trade secrets – we embrace what is also said in relation to that as being an exception erected on and limited by necessity – true necessity – Gypsy Jokers 234 CLR 532 at 560, paragraph 40 in the plurality reasons, and at pages 593 to 594, paragraph 173 in the reasons of your Honour Justice Crennan.

In particular, in that last reference, paragraph 173 of Gypsy Jokers it is pointed out, with respect, that it is one thing where there is a possibility to contest confidentiality, and we would add it is another thing where, as here, there is no opportunity whatever for a respondent to contest the secrecy which follows after a criminal intelligence declaration.

In relation to the importance of participation by true contradictors, that is self‑interested contradictors, somebody speaking on their own behalf, or on behalf of persons whom they fairly represent, could we without taking your Honours to them, and in particular in relation to getting assistance of submissions, properly informed submissions, give these references in K‑Generation 237 CLR 501, in the Chief Justice’s reasons 512, paragraph 10, pages 524 to 527, paragraphs 65 to 79, especially paragraph 73; in the plurality reasons at page 542, paragraph 146.

Your Honours, in relation to the nature of the task presented by statutory schemes of this kind for proofs of negative and you have seen that in the revocation applications, to which we have drawn attention, and the difficulty posed by ex parte process, could we in particular draw to attention in International Finance 240 CLR 319, pages 366 to 367, paragraphs 96 to 98, page 364, paragraph 89. The important contrast there is what we have here is a continued life, to use the expression in that paragraph, for ex parte orders. Pages 379 to 381, paragraphs 141 to 145 about the centrality of hearings involving confrontation and opportunity to test the dancer.

In relation to the significance of these attributes of traditional hearing requirements in the exercise of judicial power there is, as your Honours know, an abundance of dicta.  May I simply offer in Wainohu 243 CLR 181 in the reasons of the Chief Justice and Justice Kiefel, pages 208 to 209, paragraph 44. In particular, we stress for Chapter III purposes the notion of defining or essential characteristics, including procedural fairness. Of course, in Thomas v Mowbray 233 CLR 307 at 355, paragraph 111, in the reasons of Justices Gummow and Crennan. In our submission, the description there is one which fits what arises from this scheme.

That is, it is legislation which requires a court exercising federal jurisdiction to depart to a significant degree from the methods and standards which have characterised judicial activities in the past.  Your Honours, Justices Gummow and Crennan, concluded the sentence by the proposition that it “may be repugnant to Ch III”.  In the circumstances of this case and without ameliorated features we submit that it is repugnant to Chapter III.

Your Honours, that leaves me simply to go to the United Kingdom Supreme Court decision Al Rawi [2012] 1 AC 531. I do not obviously want to read to your Honours passages. May I specify the following as those which, in our submission, support our position? I will give the references and then seek to put that in a context for this case.

KIEFEL J:   But this case involved the court’s power to regulate its own procedures.

MR WALKER:   Quite so.  I will put the context first.  Why does Al Rawi matter to us, bearing in mind that the question in that case was whether the common law, in particular the common law about the court’s powers to regulate its own processes to achieve fairness or to balance fairness with other proper considerations such as national security?  It does because the conclusions that form a critical part of the majority reasoning expressed in terms of the flexibility or capacity of the common law to stretch as far as was sought stands as a very solid proxy for what Chapter III requires – that is, irreducible aspects of judicial power, and not accidentally bearing in mind our common heritage, and that both for the Chapter III cases, the passage I quoted from Justices Gummow and Crennan, and also for Al Rawi, explicit reference is made back centuries – that is, since well before our federation.

In our submission, the holdings in Al Rawi are therefore directly applicable to our constitutional question.  Whether these are aspects of the methods and standards of judicial power come to be understood by centuries of exercise, including refinement and improvement no doubt, and in our submission, as to the specific aspects of confrontation and opportunity to test and answer Al Rawi is very strongly in support of the conclusion to which we urge the Court.

KIEFEL J:   I suppose you would say that the conclusion reached by the court there – namely, that only the Parliament could introduce a closed court procedure – is not applicable to our constitutional setting, so I do not know where that leaves the case for its usefulness.

MR WALKER:   Quite so.  I am hoping it leaves it as very useful for what I will call the common law position, and that we turned the common law position to account in the Chapter III way I have just described.  It cannot seriously be suggested that the common law of England and Wales – or the United Kingdom, if there is such a thing – differs from that of Australia with respect to the principles of procedural fairness, confrontation, testing and answering that dominates both this case and Al Rawi.  Indeed, as your Honours know, Lee in this Court is cited in the Supreme Court in these reasons.

The fact that the matter was left as, this must be for Parliament to do, is of no moment and certainly should be of no discouragement to drawing matters of value from these reasons for this case.  Because, subject to European dimensions which were not the subject of determination in Al Rawi, obviously the position of the United Kingdom Parliament is different constitutionally from ours, and that which the common law would

not countenance – that is the majority holding in Al Rawi but Parliament might be able to do there – is something which, in our submission, the common law and therefore Chapter III does not countenance and Chapter III does not permit to be legislated unless and until action under section 128 intervenes.

Your Honours, the passages I wanted to draw to attention in Al Rawi in the reasons of Lord Dyson in relation to the fundamental aspect of the procedural fairness values that we call in aid – this is [2012] 1 AC 531, pages 572 to 577, that is paragraphs 10 to 13; page 575, paragraph 22; page 578, paragraph 35; and page 581, paragraph 47. In relation to the quite distinctly different special advocates process, both statutory and I will call it common law or court directed, that was considered in that case in Lord Dyson’s reasons, pages 578 to 579, paragraphs 36 to 37 and, in particular, Lord Kerr’s reasons, pages 592 to 593, paragraph 93, making in particular in that last passage points which, with appropriate adjustments to the quite different position of COPIM, strongly support what we have been putting concerning the inadequacy, or impossibility, of seeing COPIM as some substitute for presence or representation of a respondent.

In relation to the notion that exceptions such as apply in litigation of our children all about secrets – confidentiality – may I draw to attention in particular Lord Dyson at pages 584 to 585, paragraph 63 and paragraph 64, as well as Lord Brown, page 590 to 591, paragraph 85.  Others of their Lordships spoke in terms of the critical nature and when I say “critical” I think particular of Lord Brown’s resounding conclusion to his reasons where responding to the proposition, never say never, he said:

This is one of those cases where the court should indeed say “never”.

in relation to the common law.  That is to be found at page 591, paragraph 87.  There is, also, in similar vein, Lord Hope at page 587, paragraphs 72 and 73 and Lord Kerr at page 592, paragraph 90 and page 593, paragraph 95.  In Lord Kerr’s paragraph 97, there is an apposite reference to, and approval of, Lord Neuberger’s approach concerning what might be called the “hollow or self‑defeating” administration of justice in the manner that his Lordship was holding against.  That is to be found in the same volume, page 551.  That is in the Court of Appeal, paragraph 56.  Your Honours, it is for those reasons, in our submission, that the answers to the questions should be given as we have argued.

FRENCH CJ:   Yes, Mr Solicitor.

MR SOFRONOFF:   Your Honours, could I make these four submissions before turning to the provisions of the Act and seeking to construe them as we would submit they ought to be construed?  The first point we wish to make which is fundamental but which I do not wish to labour is that this Act insofar as it seeks to impinge upon rights otherwise enjoyed by litigants is doing so in aid of a serious purpose, the suppression of serious crime as defined in the Act.  That is to say, to the extent that there is prejudice caused to litigants, the question whether the law is valid or not must be construed against the background of an Act that addresses an issue of importance and not just some trivial issue.

The second matter that we wish to place at the forefront is that insofar as litigants have rights that they can exercise in the course of litigation, there are, as always, competing rights and sometimes those competing rights will come into collision in a particular sphere as in this one and then it is necessary to resolve that collision.  Unless it can be said that there is a principle of law that in no case can the right of a litigant to see and test the evidence led against that litigant and to be considered by the court, unless there is a principle that in no case can that right be interfered with, then the question in this case is not merely whether that right is interfered with, the question is rather whether there is such an imbalance by the legislature in its treatment of those competing rights, the right to security of the person, the right of the public to live free of the presence of organised crime, the right of the public to see that law enforcement agencies can investigate crimes without being prejudiced insofar as that is possible, and certainly the right of informants to give information in circumstances where their safety from harm or murder can be guaranteed.

The question then becomes whether the balance that has been sought to be struck in this Act is so bad in seeking to resolve those competing rights that the result is that the integrity of the Supreme Court as a Supreme Court has been damaged.  I do not want to trivialise it, but it is a question of degree then, it is a question of where on the spectrum this Act falls.  The third thing that we would wish to mention is that the Act is concerned with a small species of information, disclosure of which might have the effects referred to in section 59.

The definition of “criminal intelligence” in the Act in section 59 speaks about information of a particular character – namely, information which relates to actual or suspected criminal activity.  Secondly, that information must be of a kind the disclosure of which could have one of the three effects.  The word “disclosure” is important because the disclosure that is spoken of there is not general disclosure because the Commissioner of Police does not require the protection of this statute to protect that information in his possession.  He simply does not have to reveal it and nobody, relevantly, can make him reveal it.

The disclosure that is spoken about here is a particular kind of disclosure. It is the disclosure that occurs in circumstances addressed by section 60, that is to say, disclosure that occurs when something, the information – I will start again.  It is the disclosure which occurs when evidence is given.  So the only disclosure relevant to be considered for the purpose of defining criminal intelligence is disclosure by way of evidence in a relevant proceeding and disclosure by way of evidence would prejudice criminal investigations or endanger somebody’s life or physical safety.

The disclosure that is spoken about is then disclosure to a limited number of people in limited circumstances.  The circumstances are those contemplated at the hearing of the substantive application and that hearing is governed by section 108.  Section 108(4) provides that the hearing is a closed hearing.  It is a closed hearing because, subsection (5), a limited number of persons will be present at the hearing, included the legal representatives of any other party, the respondent and nominees or representatives of that organisation.

So the question is whether disclosure at that hearing for the purpose of giving evidence will have the effects defined in 59(1)(a), (b) and (c) – that is to say, could reasonably be expected to have those effects.  A disclosure, for example, to a lawyer who has undertaken not to disclose the information to his or her clients and is comfortable with so doing – comfortable because that lawyer can conduct the case without having to take instructions from the client which would involve disclosure of that information – would not be a disclosure which could reasonably be expected to have any of the three consequences in 59(1), so it would not be criminal intelligence. 

Therefore, one would expect that when the Commissioner makes an application for intelligence to be declared criminal intelligence that disclosure of any kind in the circumstances of a hearing under section 108 could reasonably be expected to have those effects.  One can easily imagine why disclosure to the respondents themselves might reasonably be expected to have those effects.

One can also imagine, unfortunately, circumstances in which disclosure to lawyers might have that effect and therefore the information would be criminal intelligence, but one can imagine circumstances in which such disclosure could not give anybody a reasonable expectation that any of these harmful effects would follow.

FRENCH CJ:   What is the purpose of treating the substantive application as a closed hearing?

MR SOFRONOFF:   Your Honour, partly it may be because any adverse publicity that would reflect on people who are not then declared to be members of a criminal organisation would be adverse – that is to say, commissioners bring applications, police bring cases and they win or lose and they do not ordinarily suffer consequences for having done so, but there are people who are the object of proceedings and whose identities are protected, as is the fact of proceedings themselves, in order to protect them in the case of failure.

FRENCH CJ:   That extends also to appeals or reviews?

MR SOFRONOFF:   No, it would not, your Honour, because ‑ ‑ ‑

FRENCH CJ:   I looking at 108(1).

MR SOFRONOFF:   Yes, 108(1) makes provision for representation.  Notice, your Honours, the words “hearing of the application, appeal or review” and then:

(3)      The hearing can not proceed without the COPIM . . . 

(4)      The hearing is a closed hearing.

But that is speaking of the hearing, not the appeal or review.  In our respectful submission, it is the hearing that is closed but not the appeal, if there is an appeal.

HAYNE J:   How does that work with 108(1), “at the hearing of the application, appeal or review”?

MR SOFRONOFF:   If we were to excise the words “hearing of the application” we would have “be legally represented at the appeal or review”. 
One does not normally say “be legally represented at the hearing of an appeal”.  One speaks of the hearing of an application.  One speaks about attending at the appeal or being legally represented at the appeal.

HAYNE J:   I must confess, Mr Solicitor, the construction you put on it is not one that instantly leaps off the screen at me.

MR SOFRONOFF:   If I am wrong about that, so be it, your Honours, but in our respectful submission nothing that the Court is concerned with in this case is going to turn upon that.

BELL J:   Could I just come back to the point that you were making respecting the relatively narrow compass of material that would be criminal intelligence within 59(1)?  The application for the declaration will commonly be made in advance of the substantive application.

MR SOFRONOFF:   Yes.

BELL J:   At that point the court may frequently not be in a position to make an assessment of some of the sorts of practical matters that you were speaking of, which would include whether a lawyer might be relied upon not to make a disclosure such that there would be none of the risks in (a) to (c) awakened.

MR SOFRONOFF:   Yes.

BELL J:   Just as a practical matter, given the way these proceedings are likely to be conducted, I am not so sure, Mr Solicitor, that it is right to see a narrow compass for what might be included within criminal intelligence.

MR SOFRONOFF:   May I develop that a little further in a moment, but could I say this by way of immediate answer?  For a number of reasons it is plain that not in every case will the Commissioner be able to come to the Court and assure the Court that consideration has been given as to whether a lawyer can be made privy to the information.  That might not have been possible because the lawyer has not yet been identified or, indeed, retained.  Or it might be that given the nature of the information there is no point in so doing. 

So I do not mean to suggest by that submission that in every case there is this possible overture.  In some cases it might not be possible.  In other cases it might be possible, but not yet and so the Court might be minded to adjourn the application until the possibility becomes ripe or is undoubtedly extinguished.  So I did not mean by my submission to suggest that in every case that is going to be a possibility.

BELL J:   In those cases where it is not a possibility at the time the declaration is made, once the declaration is made that is the end of the matter, is it not?

MR SOFRONOFF:   That is the end of the matter insofar as the privacy of the information is concerned.  It is not the end of the matter insofar as the court’s powers are concerned generally over the process before it.  Nor is it the end of the matter insofar as the discretion is concerned to make or not make a substantive declaration, whatever it is.  A court might well be disinclined in circumstances where it appears that that possibility has not been explored to proceed further until it has been explored.

HAYNE J:   Be it so, how are you reading or how would you have us read section 59(1) and the words “the disclosure”?  I had understood your submission, Mr Solicitor, to be the disclosure to legal representatives in the course of a section 108 hearing as being the construction you were urging.  If you are not urging that I need to know it?

MR SOFRONOFF:   No, no, no that is what I am urging that one ‑ ‑ ‑

HAYNE J:   Well, how can you ever know if these applications are heard before the 108 hearing, before the appointment of lawyers, how can you ever know?

MR SOFRONOFF:   Your Honour, these applications – well there is only one, this one that has ever been made – it cannot be said that in every case one would know that there is a lawyer and who that lawyer is.  But it cannot be said that in no case will the Commissioner not be in a position to say, “I know the lawyer who is appearing for these people.”  I think this would have been one of them.

HAYNE J:   Sure, but as I understand your construction of 59, the Commissioner has to go to the court saying, “I want a declaration of criminal intelligence” or whatever the appropriate expression is, “because I can demonstrate that disclosure of the information to legal representatives at a section 108 hearing will have one of consequences (a) to (c)”.

MR SOFRONOFF:   No, your Honour, the Commissioner would say, “I want a declaration of criminal intelligence because disclosure in the sense of the open use of information as evidence at the hearing under section 108 can reasonably be expected to have this effect and, in the circumstances obtaining now at the date of the application, I have no way – I have either tried and been rejected or I have no way of causing a restricted publication to lawyers to be effected, so that the use in evidence with disclosure can be carried out.” 

Either the Commissioner would say, “Having regard to my knowledge of who the lawyer is I am not prepared to do that and these are my reasons”,  or “I do not know who the lawyers are so that can be discounted”, or “it is not practical or it has been tested and rejected.”

KIEFEL J:   What does the court do – adjourn that application over until the Commissioner files an application on notice for an organisation?

MR SOFRONOFF:   Not at all, your Honour, no.  It would not be an application on notice.  It would be a question in the circumstances obtaining in that application, whether the Commissioner is pressing the court to proceed because the Commissioner does not wish to approach the matter on that basis.  The court might proceed and decline the application for that reason or make it, if persuaded, but it would undoubtedly be, in our submission, a factor to be considered.  Why would it not be?  For example, if it is plain that a potential respondent is being contemplated and only one potential respondent, as in this case, and if it is known that a lawyer is acting for that person and is identified, why would it not be raised as a question at least going to the discretion, whether or not something short of a blanket order is called for?

CRENNAN J:   If the person, a legal representative, is given access on very severe undertakings as to maintaining the confidentiality, what you are still dealing with is still criminal intelligence, is it not, but criminal intelligence to which access will be given on conditions?  The access to a person on conditions does not convert what was once criminal intelligence to some other sort of intelligence, does it?

MR SOFRONOFF:   It would, in my submission, your Honour, for this reason.  For the definition to be satisfied, the consequences must reasonably be expected by reason of disclosure.  The word “disclosure” cannot mean general disclosure to the public because that is never contemplated by the Act.  It must mean disclosure by means of giving evidence.  Indeed, the object of this part of section 60 specifies that it is to permit evidence to be given that orders might be made.  Consequently, the disclosure that section 59(1) is speaking about must be disclosure by way of giving evidence in front of the respondent and the respondent’s lawyers.

GAGELER J:   Mr Sofronoff, a declaration made under Division 2 of Part 6 then has application for a variety of substantive applications under Division 3 of Part 6, does it not?

MR SOFRONOFF:   I am sorry, your Honour?

GAGELER J:   Once a declaration is made under section 72, the declaration has effect for a range of substantive applications under Division 3.  So how in those circumstances can section 59 be focused on disclosure to a particular respondent’s critical representatives in a particular application?

MR SOFRONOFF:   Could I foreshadow something and then come back to it?  If your Honours look at section 72(2), or subsection (1), we can see that of course first as a matter of fact the information must be criminal intelligence and, secondly, there is a discretion of the word “may”.  The satisfaction is merely the basis for enlivening the discretion.  Among other things, subsection (2) provides that the court may have regard to unfairness to the respondent, to the balancing exercise.  In our submission, the word “may” there must mean “must” because how could a court not give regard to unfairness to a respondent in circumstances where what lies at the very heart of the application is that potential?

The word “respondent” is then specially defined in subsection (7) to mean:

a respondent to any existing or possible substantive application –

and, if the Commissioner comes and makes an application in a vacuum, pointing to no possible substantive application – that is to say no contemplated application – then, in our submission, it would not be possible for the Court to conclude under 72(2) that the balance is the right way because, for example, we would put this.  Assume that all of the evidence relied upon is confidential information and that as a consequence, apart from whatever facts are pleaded in the application, the respondent knows nothing about the evidence. 

In those circumstances, in our submission, a judge would not conclude – the court would not conclude that the unfairness to the respondent is outweighed by the prejudice and would put to the Commissioner that the application will be refused and you will not be able to proceed against this particular respondent because I cannot contemplate that any proceeding could be fair where all of the evidence is hidden.  So, unless the Commissioner has an existing application, or a prospective application against which the balancing exercise – in respect of which the balancing exercise in 72(2) can be carried out, then in our submission an application ‑ ‑ ‑

FRENCH CJ:   How does that sit with subsection (7)?

MR SOFRONOFF:   Your Honour means the word “possible” substantive application?

FRENCH CJ:   Yes.

MR SOFRONOFF:   By “possible’, in our submission, there must be ones that are identifiable as the ones in contemplation of the Commissioner but which might not be made, not theoretical ones that have never been identified.  One must bear in mind in this connection, in our submission, that the criminal intelligence will be information relating to particular people doing particular things.  So it will be a possible application against the particular organisation, or two particular organisations, against which the balancing exercise and the consideration of the discretion otherwise can be undertaken.

FRENCH CJ:   All possible applications for control orders against individuals?

MR SOFRONOFF:   All possible applications for control orders against individuals, yes, who would be capable of being identified insofar as they exist.  So, in our respectful submission, it may be that on an application for a declaration that information is criminal intelligence, a Commissioner would not seek to address the question of limited disclosure to lawyers and might think, rightly, that the application is sound for other reasons – that that does not have to be looked at – or can explain the impossibility of such a consideration satisfactorily, or not.

FRENCH CJ:   Does that mean, in effect, that – a criminal intelligence declaration, once it is made, identifies that class of information as being subject to particular treatment in a range of applications which – criminal organisations, declarations and control orders which may be made under the Act.  Is it a consequence of what you have just put about the exercise in section 72(2), that once the declaration is made by reference to an identified respondent organisation and/or identified individuals against whom that test is applied, that is all it can be used in relation to?

MR SOFRONOFF:   No.

FRENCH CJ:   So it could be used in relation to a respondent as yet unidentified but perhaps a member of the same group?

MR SOFRONOFF:   It could be used in relation to a member of the group in relation to a control order application later.

FRENCH CJ:   Yes, and there has been no balancing in respect of that person?

MR SOFRONOFF:   Only insofar as when one is having regard to the first application one would have in mind the necessary sequelae, the declaration of the organisation leads nowhere without the control orders resting upon it in due course.  In those circumstances you would have them in contemplation.  But in due course, if criminal intelligence has been so declared and the Commissioner then brings a substantive application against here before uncontemplated parties then in those circumstances nothing would compel the court to be willing to proceed if to do so would be unfair in the circumstances that were never contemplated when the declaration was made.

FRENCH CJ:   Nothing would prevent the court from having regard to criminal intelligence in that circumstance which you just hypothesised, notwithstanding that the test in subsection (2) had not been applied by reference to the particular respondent who was the subject of a control order.

MR SOFRONOFF:   No, but let us take the example of an application made in respect of organisation A and some of the criminal intelligence – realistically, not all of it – so declared is then sought to be used against organisation B that was not in contemplation in circumstances where, had an application for a declaration been made only against that organisation, it would not have been granted.  Nothing would compel the court, in those circumstances, to accede to the continued prosecution of the applications in such circumstances and the Act does not require it.  The answer for the Commissioner would either be not to proceed or, in the circumstances, to seek a revocation under the provision that allows that.

Your Honour Justice Gageler asked this morning what would happen if a declaration of criminal intelligence had been made in respect of information but disclosure of the information would no longer prejudice a criminal investigation or the informant had died, for example.  In our circumstances, the continued attempt by the Commissioner to use that criminal intelligence, the privacy of which was obtained upon the need for it by the circumstances defined in section 9, would be an abuse of process.  The Commissioner could not use the advantage of secret process in circumstances where the Commissioner knows that secrecy is no longer demanded and the Commissioner would then be obliged to seek a revocation of the order so that the disclosure prohibitions could be then rendered nugatory.

Equally, the court has powers under the UCPR in rule 667.  I will read it to your Honours – rule 667(2):

The court may set aside an order at any time if––

(a)      the order was made in the absence of a party; or

so this would always qualify –

(d)the order does not reflect the court's intention at the time the order was made –

which would obtain if the circumstances had changed in the way I had described, or –

(e)      the party who has the benefit of the order consents –

and one would expect the Commissioner himself to bring it all to the court’s attention.

GAGELER J:   So that is in addition to section 74(1), is it?

MR SOFRONOFF:   The revocation provision, your Honour?

GAGELER J:   Yes.

MR SOFRONOFF:   Yes.  Could I turn to the fourth preliminary matter, your Honours, and that is to identify that which is made the subject of a criminal intelligence declaration.  In that respect, it is necessary to look at sections 59 and 60 again.  Your Honours will see that in 59 “criminal intelligence” is defined not as evidence, but as information, the disclosure of which has consequences.  Section 60 states that the objects of the Act are to allow evidence to be given.  Information may or may not become evidence.  Section 63 entitles:

The commissioner may apply to the court for a declaration that particular information is criminal intelligence –

not particular evidence.  Criminal information relevantly, in our submission, can be constituted by at least two types of information.  The information may be evidence as in the case of the direct evidence of the victim of crime giving information to the police and prepared to give evidence about it, but fearing that the victim will be murdered if his identity is known.  So the information can constitute evidence.  Alternatively, the information might merely be the genesis of evidence. 

For example, if the Commissioner wishes to tender bank records to show deposits have been made to support a case of money laundering or something of that kind and the tender of that record would reveal its ultimate source, because let us say only two persons knew the number of the bank account, one of them a guilty person and the other one an informant, and the tender of the bank account will imply that the source was the informant.  The original source does not give evidence.  It is a bank officer who produces on subpoena a bank record, but criminal intelligence in the sense of information being the genesis of the evidence, is sought to be protected by the Commissioner.

That is information that can only be obtained in the course of proceedings, either by the process of disclosure, discovery which the UCPR provides for and has not been excluded, or by cross‑examination.  How did he get on to this?  A declaration of criminal intelligence will then preclude any answers being given in relation to the source of the information that led to the production of the bank statement and may constitute the bank statement itself criminal intelligence, in the sense that the open production of it, disclosure of it as evidence would lead to the implication.

So, in short, criminal intelligence might be constituted by information that will always just remain information but must be protected and might be revealed if disclosure of evidence is led.  Secondly, it might be evidence itself that has to be protected because its disclosure will give rise to the effects in section 59.  The consequence is that an order that is made will be directed either to information which will always remain information and not be evidence or it might be directed to information that has become evidence so the evidence will be secret.

It follows, then, that when the Commissioner makes the substantive application and pleads his case with all the particulars that might be required, the application that he earlier made for a declaration of criminal intelligence might affect some of the evidence that will be revealed, but not all of it.  That is to say, such an application may concern largely information and only a little bit of evidence or it might concern the opposite, but one ought not assume that once an application of this kind has been made the whole subject matter of it is all evidence and that it is the bulk or all of the evidence that is going to be led against a respondent.

Now, could I mention two other matters, your Honours?  The hearsay point that our learned friends referred to, sections 61 and 107, and also the question whether an informant can be a witness.  Section 61 deals with the evidence to be led on an application for a declaration of criminal intelligence.  In dealing with that it provides that an affidavit relied upon by the Commissioner on such an application can contain hearsay, subject to the usual qualifications.  That affidavit which is relied upon by the Commissioner is not itself the particular information referred to in section 63.  It is simply the information, the affidavit relied upon to prove the section 59 factors.

The consequence is that when one gets to section 107, which provides first that the evidence given on the substantive application must be admissible evidence, subject to the qualification in (2) – subsection (2) is not, as our learned friend submitted, a provision that unwinds all of it, unwinds all of subsection (1); rather, insofar as the affidavit relied upon at the first hearing contained admissible hearsay, it can be relied upon on the substantive hearing.  That is not going to include – one cannot by that back door then intrude hearsay evidence of an informant going directly to the acts that are alleged to constitute the cause of action.

CRENNAN J:   Well, it is for the judge to decide what weight to give the two different sorts of evidence.

MR SOFRONOFF:   It is, in any event, your Honour, yes.  But, in our submission, subsection (2) in speaking of the affidavit in section 61, is not speaking about the evidence that is to be led at the substantive application to prove the facts that have to be proved to justify substantive order.  It is speaking about the affidavit relied upon to get the declaration of criminal intelligence which will not be an affidavit that proves these substantive matters, it will be an affidavit read on what is an interlocutory application in order to justify the finding of facts in the exercise of discretion.

In our submission, the Commissioner on the hearing of the substantive application would need to prove the Commissioner’s case in the usual way.  A submission has been made that an informant cannot give evidence, but that is not what the Act says.  What the Act speaks of in section 64, there are two provisions that use the same expression.  Section 64(2) provides that:

The informant can not be called or otherwise required to give evidence.

Notice the words, “called or otherwise required”.  The section does not say an informant may not give evidence or is not competent to give evidence.  It is “called or otherwise required”, and, in our respectful submission, the expression “otherwise required” bears upon the meaning of the word “called” – that is to say, compelled.  Why would the legislature have possibly thought it is necessary to absolutely preclude an informant from giving evidence even if the informant wishes to do so? 

HAYNE J:   Why would you not read “cannot be called” is not competent, or “otherwise required” is not compellable?

MR SOFRONOFF:   Because if the informant was not competent, then nobody could usefully compel the informant to give evidence – not competent.  Once you are not competent then compulsion or willingness, you cannot give evidence.  But there is more, your Honours, section 80:

A police officer who is not an informant . . . may be –

(a)       called at the hearing –

Now, why would it be necessary to provide in an Act that speaks about direct evidence being required to be given, why would it be necessary to give liberty to the Commissioner, evidently, to call a police officer?  Could not the Act be read otherwise – absent that provision – as permitting the calling of any witnesses and, indeed, requiring the calling of witnesses by the Commissioner to prove his case? 

Rather, if one sees, one notices that section 80(1)(a) speaks of a police officer being called and “cross‑examined by the court”.  It demonstrates that “called” there also means required – “called” as in compulsorily called.  Otherwise, the position would be that the Commissioner – this not being a criminal proceeding – could decline to call a witness – a police officer – who has not given an affidavit, let us say, but who the respondent thinks can give some material evidence, declined to call that person and leave it to the COPIM to call that person.  But, the COPIM might then be, in the ordinary rules, precluded from cross‑examining. 

The effect of section 80 is that such a police officer can be called at the hearing and despite the fact that that person might be called by the COPIM, cross‑examined by the COPIM for obvious reasons, given the context of the Act and what it concerns.  If we go back then to section 64 ‑ ‑ ‑

BELL J:   Just before you leave section 80 can I just inquire, section 80 is concerned not only with the special secret hearing but with the hearing of a substantive application?

MR SOFRONOFF:   Yes, that is right.

BELL J:   There is particular provision for cross‑examination both by the court or the COPIM and no provision for cross‑examination by those appearing for the respondent.

MR SOFRONOFF:   You are right, your Honour, it is odd.  That must be then picked up by section 108(6):

The commissioner or other party may . . . 

(b)with the leave of the court . . . cross‑examine witnesses to the same extent –

It is an odd gap.

BELL J:   Just whilst we are concerned with oddities, are you able to explain section 89(3) and (4), the provisions which seem to be intended to insulate the COPIM from contact at all with the respondent, including hearing what the respondent has to say at the hearing of the substantive application?

MR SOFRONOFF:   I will have to think about that overnight, your Honour.  The rationale for it is not immediately apparent but there must be one, good or bad, since they put it in there.  I will find out what it is if I can.  Whether those submissions that I have made in relation to the nature of the information and the circumstances in which it might or might not satisfy the definition of criminal intelligence, and whether or not informants can volunteer to give evidence, whether those submissions are accepted or not. 

In our respectful submission, the Act in its terms effects a balance between the otherwise undoubted right of a litigant to know the evidence that is going to be adduced against that litigant and on the other hand the need for the court in the serious circumstances contemplated by this Act to have information that would otherwise be denied to it, and that balance is effected, in our respectful submission, in the following way.

First, pleadings – called an application but it is a pleading – a pleading is demanded, section 8.  There will be a written application.  Relevantly, apart from identifying the organisation, the grounds on which the declaration is sought must be set out, and it would not be enough to merely make a tautological plea based upon the terms of the statute and leave it there.

The whole of the case must be laid out if the words “the ground on which the declaration is sought” is to be given any meaning.  The grounds and the information supporting the grounds will constitute the pleading of material facts.  The Uniform Civil Procedure Rules will oblige the giving of particulars and indeed more strictly in an extreme form require the giving of such particulars.  In a case like this one where criminal acts are alleged against persons, then subsection (3) ‑ ‑ ‑

FRENCH CJ:   What about the obligation of disclosure under the Uniform Civil Procedure Rules?

MR SOFRONOFF:   There is no reason why that would not apply, subject to common law public interest immunity and subject to the criminal intelligence declaration.  Sworn evidence must be given, subsection (3):

The application must be accompanied by any affidavit the commissioner intends to rely on –

Then, if your Honours would go to section 10.  The first thing one notices is that what is conferred upon the court is a discretion.  There is no command to the court to do anything, it:

may make a declaration that the respondent is a criminal organisation if the court is satisfied –

of certain things.  That is to say, satisfaction of those things will give rise, will enliven the discretion.  When one looks at (1)(b) one can see that the facts which must be proved, the ultimate facts that must be proved, are facts which are ripe for the giving of particulars, members, the association of those members, the purpose, the purpose whether in relation to engaging or in relation to conspiring to engage, particulars of the serious criminal activity by reference to the definitions.

Subsection (c), “the organisation is an unacceptable risk to the safety” et cetera must be read, in our submission, as meaning the organisation is thereby an unacceptable risk, that is to say it is an organisation, the members of which associate for those criminal purposes and is, for that reason, an unacceptable risk.  The facts relied upon to satisfy 10(1)(c) would have to be pleaded or particularised if they are not sufficiently pleaded.

KIEFEL J:   Mr Solicitor, can I interrupt you with this inquiry?  I can understand you taking us to features such as pleadings, particulars, to explain the connection with usual court processes.  What I have some difficulty with is the way in which you opened and outlined your argument which talked about ends and means and the balancing exercise which is proportionality in the strict sense and I am just not sure how that connects with the Chapter III question.  It is not immediately apparent to me.

MR SOFRONOFF:   We know from K‑Generation and Gypsy Jokers that there is not an immutable rule that in all proceedings in a court the evidence must be disclosed to both sides, and therefore the question becomes whether the nondisclosure authorised by the statute is such as to have the Kable ‑ ‑ ‑

KIEFEL J:   But that is just a question of how much it detracts from the court processes which have a protective role in relation to those appearing before it, but the way in which you had initially put it, I had thought, talked about the importance of the legislative object and the means by which that were attained and the balance that was obtained between them.

MR SOFRONOFF:   No, I did not mean that.

KIEFEL J:   That is what I inferred from ‑ ‑ ‑

MR SOFRONOFF:   No, your Honour, I did not mean that.  I meant that in the circumstances of a statute dealing with a serious subject and in that context dealing with, on the one hand, the public interest in having evidence before the court available for use before the court and on the other hand the right of a person to have access to that evidence, the question is whether the right being denied to the litigant is denied in circumstances where, having regard to the competing right and the countervailing factors provided for by the Act, the result is that the trial is not unfair.  Because we would accept, we would endorse that ultimately any trial conducted by the Supreme Court must be a fair one.

KIEFEL J:   So the object of the Act as involving the public interest is relevant to put the – for context and to put these processes in a similar sphere to public interest immunity.  Is that ‑ ‑ ‑

HAYNE J:   Overegging the pudding a little, is it not, to describe it as competition between rights?  What rights are in competition?

MR SOFRONOFF:   I am sorry, I should not have said “rights”.  I should have said “interests”, your Honour.

HAYNE J:   Right to fair trial, I can understand.  What is the interest?

MR SOFRONOFF:   The public has an interest in fair trials.  Therefore, the public in general has an interest in seeing that – the public has an interest that the court would conduct a trial on the footing that all litigants have access to all evidence.  The public also ‑ ‑ ‑

HAYNE J:   Assume that to be so, yes.

MR SOFRONOFF:   The public also has an interest in proceedings brought to identify criminals and to suppress crimes by them being effective and if the legislature sees that, as in the case of this Act, the end of securing that result through litigation would suffer by lack of access to information that the police otherwise could not afford to use because of the consequences of such use, then there is a conflict of interests in that there is, on the one hand, an interest in seeing the evidence brought before the court but it cannot be, and on the other hand, an interest in all of the evidence being brought before the court but in the circumstances of the Act ‑ ‑ ‑

HAYNE J:   Where the legislature makes a particular choice, how does that bear on what we do?  Is not our task radically different?

MR SOFRONOFF:   Certainly your Honours are not engaged in a balancing exercise.  Your Honours are determining whether the choice made by the legislature in addressing those competing interests does or does not have the effect of impugning the integrity of the Supreme Court.

HAYNE J:   What then is the value in referring to the competition in interests?  That is the legislative choice that has been made.  It may be observed accurately that the legislature has sought to achieve a particular balance, but how does that bear upon our task?

MR SOFRONOFF:   Because, in our submission, not every – it would be, in our submission, artificial to ignore the proposition that in any field of litigation there is not an absolute right enjoyed by every litigant to every possible advantage that might be conceived and when advantages are restricted for whatever reason, in our respectful submission, it is relevant for a court in considering the validity of an Act that has that effect to consider the purpose to be served in terms of another public interest in so doing.

That other public interest may be entirely irrelevant to the consideration, but the court will not know until that exercise has been undertaken and in the circumstances of this case the two competing interests are germane to the legal process itself, that is to say availability of evidence, as against denial of access to that evidence.  I am not speaking here about a political choice concerning the desirability of suppressing this form of crime as opposed to that form of crime or crime at all.  The competing interests here are those engaged within litigation itself.  Having available evidence, on the one hand or not, and on the other hand having access to evidence that is admitted or not.

In our submission, the denial or restriction of one of those rights provided the way in which that is done has due regard for the interests of the litigant affected so that the trial cannot be ultimately said to be unfair would not have the vitiating effect.  It is impossible, in our submission, to come up with a formula for adjudging validity on Kable grounds when court processes are undertaken, without regard to corresponding losses and gains of rights within that process.

MR SOFRONOFF:   I certainly did not wish to create any impression that the court is interested in the broader public policy behind this Act of suppression of a particular form of crime or its exposure or anything like that.  I am concerned with the detailed aspect of the corresponding losses and gains by litigants in the process that is then invoked, whatever the purpose might be.

CRENNAN J:   You are really concerned, are you not, with the departures from recognisable judicial processes?

MR SOFRONOFF:   And the gains for that process, yes.

CRENNAN J:   It is the departures.  I mean, in a way there does not seem to be any contest that there have been departures.

MR SOFRONOFF:   That is right.  Yes, there are.  Our learned friend’s submissions concentrated upon the respects in which the respondents cannot do this and cannot do that.  We would accept some of those submissions as accurate and others, for reasons of interpretation, as not sound, with respect.  But, nevertheless, what is left is a trammelling of the respondent’s rights that would otherwise be enjoyed, rights as a litigant to look at evidence to test it and the rest of it.

GAGELER J:   Can I take you back to some of those questions of interpretation?

MR SOFRONOFF:   Yes, your Honour.

GAGELER J:   I am just not quite understanding – in a circumstance where the Commissioner wants to rely on declared criminal intelligence ‑ ‑ ‑

MR SOFRONOFF:   Yes.

GAGELER J:   ‑ ‑ ‑ in an application under section 8 in what form is the evidence put before the Court?

MR SOFRONOFF:   By an affidavit or by calling a witness and it will be direct.  It would be admissible evidence, subject to that exception which I dealt with.

GAGELER J:   Is it one of the affidavits referred to in section 8(3)?

MR SOFRONOFF:   Yes, subsections (3) and (5).

HAYNE J:   Are you then contemplating that there is an application which will proceed on grounds the respondent does not know and/or on evidence that the respondent does not know and cannot challenge?

MR SOFRONOFF:   The application would have to proceed on grounds that the respondent does know.  Some of the evidence, we would submit it could not be all of the evidence because if all of the evidence were to be private, in our submission, the declaration ought never have been made and the court would not proceed but some of the evidence might be private. 

HAYNE J:   Well, do we begin from the premise that the respondent must know fully all of the grounds for the application made against it?

MR SOFRONOFF:   Yes.

HAYNE J:   There is, however, a class of evidence of which the respondent cannot know and cannot be told and what is the answer to the argument that says that that fact alone reveals the infirmity of the legislation?

MR SOFRONOFF:   There are two, your Honours.  The first and most prominent one is that any judge would know that reliance upon untested evidence is highly dangerous and, therefore, earnest consideration would have to be given as to whether evidence that has not been tested by the respondent ought be relied upon at all at the end of the day.  So one safeguard is that the judge has a discretion to exercise and in exercising that discretion has to first find facts and may decline to find facts to support a positive exercise of discretion in circumstances where some of the evidence has not been tested. 

Of course sometimes if the evidence has not been tested it might make no difference whatsoever because it might be evidence that is incontrovertible and used for a purpose that is incontrovertible.  Of course, even incontrovertible evidence might be answered in context, but there may be cases where the difficulty does not arise.  So first we have the fact that it is a Supreme Court judge dealing with this in circumstances where that is the judicial approach to the acceptance of evidence.  The second is that section 77(1) provides for the securing of evidence that contains declared criminal intelligence.  Subsection (3) prohibits access “Unless the court otherwise orders”.  Subsection 5 provides for circumstances in which the court can make an order:

the court considers access to the documents by the other person is needed to perform functions under this Act ‑ ‑ ‑

CRENNAN J:   Just a minute before you go further there what do you say about Mr Walker’s contentions about the meaning of the word “functions” under this Act?

MR SOFRONOFF:   In our submission, it would not mean the respondent’s lawyers.  But it would mean the COPIM, and so if the Court was of the view that the COPIM needs access to certain documents and information to perform functions under the Act, then that can be done and, in addition ‑ ‑ ‑

HAYNE J:   It can be done under (3) without resort to (5).

MR SOFRONOFF:   I was going to go on, your Honour.  But in addition if the court considers that the respondent’s lawyer is a person who needs access to some of the information so the COPIM can perform his functions, then the order can be made.  The respondent’s lawyer has no function under the Act, but the COPIM does and may need to know something from the respondent’s lawyer in order adequately to perform his or her function.

BELL J:   That brings us back to the odd indication in the Act in section 89 that there is some endeavour to insulate the COPIM from submissions put on the respondent’s behalf, or there may be.  Now you seem to be contemplating, Mr Solicitor, that the COPIM is taking instructions, as it were from ‑ ‑ ‑

MR SOFRONOFF:   No, well, I would not like that, your Honour.

BELL J:   No, I appreciate you would not put it like that but what you are inviting us to consider is that the COPIM might enter into discussions with the representatives of the respondent and to that end it might be necessary for the representatives of the respondent to get access to information, is that right?

MR SOFRONOFF:   Yes.  Now, there is nothing in the Act that precludes the COPIM speaking to anybody the COPIM wishes to speak to, and in order to perform his functions under the Act the COPIM might be obliged to speak to some people in order to do so and the COPIM, of course, will be privy to all of the criminal intelligence.  So subsection (3) at least is understandable to this extent that because while the Commissioner’s legal representatives are under the instructions of the Commissioner and it can be taken would make no submissions in the presence of the respondent’s lawyers that would prejudice the sanctity of the criminal intelligence, there is no control over the COPIM. 

So subsection (3) might be there so that the COPIM is never restrained in making submissions – can say whatever the COPIM wishes because the respondent’s legal representatives are never there.  Subsection (4) is a power given to the court that might be useful in some circumstances.  I will consider overnight what those circumstances might have been to give the court a right to exclude the COPIM, but there is nothing in the Act that prevents the COPIM speaking to whomsoever he wishes.

BELL J:   So on your construction of it, given the COPIM’s discharging functions, there is an avenue for the court to give access to the respondent’s legal representatives?

MR SOFRONOFF:   Yes, and in respect of particular information to somebody else, for example, a bank manager, so that the COPIM can show the bank manager a document and find some information; also anybody else that might be thought of.  So, in answer to your Honour Justice Hayne, first, this is the province of a judge who can be taken by experience before appointment and since appointment to know the danger of acting upon unanswered evidence, and the more of it, the less stable is the prospects of success of the commissioner.  The more secret evidence that there is, the less likely a judge is going to make condign orders under this Act.

The second is that there is provision for testing.  True, not as good as letting the respondent have free access and take instructions and so on, but in order to ensure that reliable evidence is put before the court that would otherwise be denied, a proxy is used, which is admittedly not a perfect substitute but insofar as it can be done, an independent officer who is not a public servant. 

If your Honours would look at section 83, appointed by the Governor in Council; subsection (3), “not under the Public Service Act”; 84(1), qualified to be appointed as a judge; 84(2), priority is given to retired judges if there is such an applicant; and then the duties, the “functions”, to use the word in 77(5)(a) – the functions are defined in 86 “to monitor”, which we take it to mean to scrutinise for compliance with the Act, “each application to the court”.  So it is not a substitute for the respondent’s own counsel, but it is part of the redressing of the reduction in rights otherwise effected by the Act.

BELL J:   Well, the COPIM is serving a different function altogether, is he or she not?  The COPIM might make submissions that it is appropriate to make a declaration, presumably.

MR SOFRONOFF:   The COPIM is independent, so it ‑ ‑ ‑

BELL J:   Yes, so the COPIM’s functions are, as you say, to monitor compliance with the requirements of the Act, but it is a quite distinct function from the notion of testing in any adversarial sense.

MR SOFRONOFF:   No, your Honour, could I agree and disagree with part of what your Honour has put to me?  The first is, yes, I agree that the COPIM’s functions are not as a perfect alter ego for what the respondent would otherwise have done, but on the other hand 86(c) obliges the COPIM to test the appropriateness and validity of the monitored application, and importantly in section 89(2)(a)(i):

(i)present questions for the applicant to answer; or –

that is to say, interrogate the applicant, and –

(ii)examine or cross‑examine a witness –

So while the COPIM is not the respondent’s alter ego, just as a children’s representative is not a children’s advocate, equally it is the specific function of the COPIM to test in circumstances where the respondent cannot do so, and in fulfilling that duty a COPIM to the best of his ability given his lack of access to direct instructions, if that be the case, must do so as strongly as possible.

FRENCH CJ:   The reference to the appropriateness and validity of the application, does that refer to anything less than the ultimate question of whether the application should be granted?

MR SOFRONOFF:   It might but in most cases one would expect that that is all it means.  Section 89(2)(b) makes that plain.  Your Honours, there is additional protection conferred by section 76.  In cases where declared criminal intelligence is part of the evidence and it was provided by an informant, a question of weight might arise and as a consequence, although the informant, on our construction, cannot be compelled to give evidence and, on another construction, is not competent to give evidence, then, nevertheless, the Commissioner must cause an affidavit to be filed which will give the court and the COPIM information going to the credit of the informant and those matters are the matters that are contained in section 64(4) to (10). 

If one looks, by way of example, at 64(d) they are all negatives or things that might be negatives, “criminal history”, “professional misconduct”, inducements or rewards”, whether the informant was in prison at the time and then the police officer, (e), must swear to:

an honest and reasonable belief that the relevant intelligence is reliable –

and say what the reasons are for that belief so that they can be tested.  That testing, in our respectful submission, can be carried out effectively by the COPIM, having being armed, if the COPIM wishes, with the answers to the questions that the COPIM has a right to put under section 89(2)(a)(i).

FRENCH CJ:   That might be an appropriate time.  Roughly, how long do you have to go, Mr Solicitor?

MR SOFRONOFF:   I think, your Honour, not long, 10 minutes or 15.

FRENCH CJ:   All right.  The Court will adjourn until 9.45 tomorrow morning for the pronouncement of orders.

AT 4.15 PM THE MATTER WAS ADJOURNED
UNTIL WEDNESDAY, 5 DECEMBER 2012