Gypsy Jokers Motorcycle Club Inc v Commissioner of Police - [2007] WASCA 49

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: GYPSY JOKERS MOTORCYCLE CLUB INC -v- COMMISSIONER OF POLICE [2007] WASCA 49

CORAM: MARTIN CJ
STEYTLER P
WHEELER JA

HEARD: 13 SEPTEMBER 2006

DELIVERED : 27 FEBRUARY 2007

FILE NO/S: CACV 52 of 2006

BETWEEN: GYPSY JOKERS MOTORCYCLE CLUB INC
Applicant
AND
COMMISSIONER OF POLICE
Respondent

FILE NO/S :CIV 2060 of 2006

MATTER :Corruption and Crime Commission Act 2003 (WA), Pt 4 Div 6
BETWEEN :GYPSY JOKERS MOTORCYCLE CLUB INC
Plaintiff
AND
THE STATE OF WESTERN AUSTRALIA
Defendant

Catchwords:

Referral of legal question - Constitutional law - Kable principle - Validity of s 76 of the Corruption and Crime Commission Act 2003 (WA) - Fortification removal notice - Commissioner of Police - Review function conferred on Supreme Court - Confidential information - Institutional integrity - Institutional independence and apparent impartiality - No incompatibility with exercise of federal judicial power

Procedural fairness - Public interest in protection of confidentiality - International cases

Personae designata - Incompatibility condition

Legislation:

Canadian Charter of Rights and Freedoms, s 7
Commonwealth Constitution, Ch III
Constitution Act 1982 (Canada), s 7, Pt 1
Corruption and Crime Commission Act 2003 (WA), s 72, s 75, s 76, s 83, Pt 4 Div 6, Pt 6, Pt 8
Human Rights Act 1998 (UK), s 1
Immigration Act 1976 (Canada)
Immigration Act 1987 (NZ), s 114A, Pt IVA
Inspector-General of Intelligence and Security Act 1996 (NZ)
Interpretation Act 1984 (WA), s 7
New Zealand Bill of Rights Act 1990 (NZ), s 27
Police Act 1892 (WA), s 5
Prevention of Terrorism Act 2005 (UK)
Regulation of Investigatory Powers Act 2000 (UK)
Supreme Court Act 1935 (WA), s 43
United States Constitution, 14th Amendment

Result:

Answer: Section 76 and Pt 4 Div 6 of the Corruption and Crime Commission Act 2003 (WA) are valid

Category: A

Representation:

CACV 52 of 2006

Counsel:

Applicant: Mr D Grace QC & Mr W J Clements
Respondent: Mr R M Mitchell & Ms L J Dias

Solicitors:

Applicant: Williams Ellison
Respondent: State Solicitor

CIV 2060 of 2006

Counsel:

Plaintiff: Mr D Grace QC & Mr W J Clements
Defendant: Mr R M Mitchell & Ms L J Dias

Solicitors:

Plaintiff: Williams Ellison
Defendant: State Solicitor

Case(s) referred to in judgment(s):

A v Secretary of State for the Home Department [2004] QB 335
Baker v The Queen (2004) 223 CLR 513
Bennett & Co (a firm) v Director of Public Prosecutions (WA) (2005) 31 WAR 212
Chahal v United Kingdom (1996) 23 EHRR 413
Chiarelli v Canada (Minister of Employment and Immigration) [1992] 1 SCR 711
Fardon v Attorney‑General (Qld) (2004) 223 CLR 575
Forge v Australian Securities & Investments Commission (2006) 80 ALJR 1606
Grollo v Palmer (1995) 184 CLR 348
H A Bachrach Pty Ltd v The State of Queensland (1998) 195 CLR 547
Hamdan v Rumsfeld 548 US (2006)
Hamdi v Rumsfeld 542 US 507 (2004)
Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51
Kioa v West (1985) 159 CLR 550
Lay v Employers Mutual Ltd [2005] NSWCA 450
Lyons v The Queen [1987] 2 SCR 309
McKinnon v Secretary, Department of Treasury [2006] HCA 45; (2006) 80 ALJR 1549
Mobil Oil Australia Pty Ltd v Federal Commissioner of Taxation (1963) 113 CLR 475
Nicholas v The Queen (1998) 193 CLR 173
North Australian Aboriginal Legal Aid Service Inc v Bradley (2004) 218 CLR 146
Osenkowski v Magistrates Court of South Australia (2006) 96 SASR 456
Public Service Board (NSW) v Osmond (1986) 159 CLR 656
R v H [2004] 2 AC 134
R v Kirby; Ex parte Boilermakers' Society of Australia (1956) 94 CLR 254
R v Rodgers [2006] 1 SCR 554
Re Criminal Proceeds Confiscation Act 2002 [2004] 1 Qd R 40
Re Nolan; Ex parte Young (1991) 172 CLR 460
Roberts v Parole Board [2005] 2 AC 738
Rowe v United Kingdom (2000) 30 EHRR 1
Ruby v Canada (Solicitor General) [2002] 4 SCR 3
Russell v Duke of Norfolk [1949] 1 All ER 109
S (a child) v The Queen (1995) 12 WAR 392
Sankey v Whitlam (1978) 142 CLR 1
Scott v The Queen [1990] 3 SCR 979
Secretary of State for the Home Department v MB [2006] EWCA (Civ) 1140
Silbert v Director of Public Prosecutions (WA) (2004) 217 CLR 181
Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247
Suresh v Canada (Minister of Citizenship and Immigration) [2002] 1 SCR 3
The Church of Scientology Inc v Woodward (1982) 154 CLR 25
Wilson v Minister for Aboriginal & Torres Strait Islander Affairs (1996) 189 CLR 1
Zaoui v Attorney-General (No 2) [2005] 1 NZLR 690

MARTIN CJ: I have had the benefit of reading the reasons prepared by Steytler P. I agree with his Honour's identification of the issues, analysis of relevant legal principle and with his conclusions. I will, however, add some observations of my own.
Section 76(1) of the Corruption and Crime Commission Act 2003 (WA) ("CCC Act") provides that a person affected by a fortification removal notice issued under the CCC Act may apply to the Supreme Court to review whether, on the materials before the Commissioner of Police, the Commissioner of Police could have reasonably held the belief that the related premises were heavily fortified and habitually used as a place of resort by members of a class of people, a significant number of whom may reasonably be suspected to be involved in organised crime.
Section s 76(2) provides that the Commissioner of Police may identify any information provided to the court for the purposes of the conduct of its review which may be used only by the court. That information, if any, may not be disclosed to any other person, whether they are a party to the proceedings or not, nor publicly in any way.
The critical question in this case is whether s 76(2) compromises the institutional integrity of the Supreme Court of Western Australia ("the Supreme Court") to such an extent that it is no longer a court of the kind contemplated by Ch III of the Commonwealth Constitution ("the Constitution"), and would not therefore be an appropriate repository of federal judicial power. If so, the legislation exceeds the legislative power of the Parliament of the State of Western Australia, as constrained by the Constitution (Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51).
The applicant submits that s 76(2) has this effect in three ways. Firstly, because it enables one party to contested proceedings to definitively determine the extent to which the other party will be aware of the case which has to be met; secondly, because it might compel the denial of procedural fairness by the court; and finally, because it might preclude the court from giving adequate or comprehensible reasons for its decision in a context in which there is no right of appeal and judicial review is prevented without the consent of the Parliamentary Inspector.
The statutory authority given to the Commissioner of Police to determine that information provided to the court for the purposes of its review shall not be disclosed to any other person, is conditioned upon the prospect that such disclosure might prejudice the operations of the Commissioner of Police. Given the context of the review undertaken by the court, it is reasonable to infer that the legislature conferred that power upon the Commissioner of Police because of a concern that in the absence of such a power, either or both the investigation of organised crime or the exercise of the Commissioner of Police's powers in respect of the issue of fortification notices might be prejudiced. The legislature has therefore struck a balance between the interests of those upon whom a limited avenue of judicial review has been conferred, the public interest in the effective investigation of organised crime and the effective use of the power to issue fortification notices.
The applicant submits that the balance which has been struck by the legislature compromises the institutional integrity of the Supreme Court so as to take the legislation beyond the legislative power enjoyed by the States under the Constitution. Inherent in that submission, is the proposition that empowering one party to an adversarial process, to determine the extent to which the other party will be apprised of the case which has to be met, is so repugnant or antithetical to the judicial process as to impugn the institutional integrity of the court.
That proposition would have force if it could be said that the power of a court to determine the extent to which the evidence which it had received was to be made available to a party to the proceedings was an essential and indispensable aspect of the judicial process. It may readily be accepted that procedural fairness is an inherent characteristic of the judicial process (see, for example, Re Nolan; Ex parte Young (1991) 172 CLR 460, 496 per Gaudron J; Fardon v Attorney‑General (Qld) (2004) 223 CLR 575 at [92] ‑ [93] per Gummow J). However, it by no means follows that there are no circumstances in which a court can receive and act upon material which has not been disclosed to one or more of the parties to the proceedings. That is because the content of the requirements of procedural fairness will depend upon the context of the inquiry or, in this case, review and upon the circumstances of the case: see Russell v Duke of Norfolk [1949] 1 All ER 109; Mobil Oil Australia Pty Ltd v Federal Commissioner of Taxation (1963) 113 CLR 475, 504; Kioa v West (1985) 159 CLR 550, 627. The long‑established jurisdiction of courts to issue injunctions against persons who have no notice of the case against them provides one example of a circumstance in which the right of a person to know the case to be met and heard yields to an overriding obligation to do justice.
The tension between the contemporary desire to afford judicial review of administrative decisions and the occasional need to protect the confidentiality of the material to be relied upon in conducting the review, is not unique to police investigations, this State or Australia. It has arisen in a variety of contexts in other jurisdictions including most recently, a number of international contexts where there is a perceived tension between the protection of national security and the judicial process. Some guidance can usefully be derived from a review of the way in which courts in comparable jurisdictions have reconciled the tension between those conflicting interests.

Europe (including the United Kingdom)

Chahal v United Kingdom (1996) 23 EHRR 413 was a case heard by the European Court of Human Rights arising from action taken by the government of the United Kingdom to deport a number of alleged Sikh activists. Although the case concerned a number of provisions of the European Convention on Human Rights ("European Convention") not directly relevant, some observations made by the European Court of Human Rights concerning the use by a court of material which is not disclosed to one of the parties are of interest. At [131] the court observed:
"The Court recognises that the use of confidential material may be unavoidable where national security is at stake. This does not mean, however, that the national authorities can be free from effective control by the domestic courts whenever they choose to assert that national security and terrorism are involved. The Court attaches significance to the fact that, as the intervenors pointed out in connection with Article 13, in Canada a more effective form of judicial control has been developed in cases of this type. This example illustrates that there are techniques which can be employed which both accommodate legitimate security concerns about the nature and sources of intelligence information and yet accord the individual a substantial measure of procedural justice." (footnotes omitted)
The Canadian procedure to which the court was referring is identified in [144] of its judgment:
"In this connection, Amnesty International, Liberty, the Aire Centre and the JCWI drew the Court's attention to the procedure applied in such cases in Canada. Under the Canadian Immigration Act 1976, a Federal Court judge holds an in camera hearing of all the evidence, at which the applicant is provided with a statement summarising, as far as possible, the case against him or her and has the right to be represented and to call evidence. The confidentiality of security material is maintained by requiring such evidence to be examined in the absence of both the applicant and his or her representative. However, in these circumstances, their place is taken by a security‑cleared counsel instructed by the court, who cross‑examines the witnesses and generally assists the court to test the strength of the State's case. A summary of the evidence obtained by this procedure, with necessary deletions, is given to the applicant." (footnotes omitted)
I digress to observe that the procedure adopted under the Immigration Act 1976 (Canada) would not be available in respect of the review conducted pursuant to s 76 of the CCC Act, because of the prohibition upon the disclosure of the confidential information to any other person. However, as the Canadian procedure illustrates, that prohibition would not necessarily mean that the court is precluded from devising means through which the applicant seeking review could be better apprised of at least the nature of the case to be met, provided, of course, that the confidential information is not disclosed.
It is, however, of interest that the European Court of Human Rights implicitly approved a regime under which a party to proceedings did not have access to all the material to be relied upon by the court in the determination of the case.
Article 6(1) of the European Convention provides:
"In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law."
Article 6(3) of the European Convention provides:
"Everyone charged with a criminal offence has the following minimum rights:
(a) to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him;
(b) to have adequate time and facilities for the preparation of his defence;
(c) …
(d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him; …"
Article 6 of the European Convention has been incorporated into the Human Rights Act 1998 (UK) as a European Convention right (see s 1 of that Act).
The application of Article 6 of the European Convention to a claim of public interest immunity made in the course of criminal proceedings arose for consideration in the case of Rowe v United Kingdom (2000) 30 EHRR 1.
On an appeal against conviction to the English Court of Appeal, an issue had arisen as to whether the prosecution had complied with the obligation to disclose exculpatory material. At the hearing before the Court of Appeal, counsel for the prosecution handed to the court a document which was not shown to defence counsel. He indicated that the confidentiality of the material was such that the court should only hear him ex parte or inter partes on the basis of an undertaking by defence counsel not to disclose the content of the material or argument in relation to it to their solicitors or clients. Both the defence counsel declined to give such an undertaking and withdrew from the hearing, which proceeded ex parte.
In due course, the Court of Appeal decided that it would determine whether or not the material should be disclosed to defence counsel and ruled that it should not. The appeal then proceeded and was dismissed. Thus the appeal had been determined after the Court of Appeal had received material not disclosed to the appellants. That was, of course, the consequence of a determination by the Court of Appeal, whereas under s 76(2) of the CCC Act, that process would be determined by the Commissioner of Police who is a party to the proceedings. On the other hand, the case was a criminal case in which the right to a procedurally fair trial is usually assumed to be axiomatic.
The European Court of Human Rights observed:
"60.    It is a fundamental aspect of the right to a fair trial that criminal proceedings, including the elements of such proceedings which relate to procedure, should be adversarial and that there should be equality of arms between the prosecution and defence. The right to an adversarial trial means, in a criminal case, that both prosecution and defence must be given the opportunity to have knowledge of and comment on the observations filed and the evidence adduced by the other party. In addition Article 6(1) requires, as indeed does English law, that the prosecution authorities disclose to the defence all material evidence in their possession for or against the accused.
61.     However, as the applicants recognised, the entitlement to disclosure of relevant evidence is not an absolute right. In any criminal proceedings there may be competing interests, such as national security or the need to protect witnesses at risk of reprisals or keep secret police methods of investigation of crime, which must be weighed against the rights of the accused. In some cases it may be necessary to withhold certain evidence from the defence so as to preserve the fundamental rights of another individual or to safeguard an important public interest. However, only such measures restricting the rights of the defence which are strictly necessary are permissible under Article 6(1). Moreover, in order to ensure that the accused receives a fair trial, any difficulties caused to the defence by a limitation on its rights must be sufficiently counterbalanced by the procedures followed by the judicial authorities.
62.     In cases where evidence has been withheld from the defence on public interest grounds, it is not the role of this Court to decide whether or not such non‑disclosure was strictly necessary since, as a general rule, it is for the national courts to assess the evidence before them. Instead, the European Court's task is to ascertain whether the decision-making procedures applied in each case complied, as far as possible, with the requirements of adversarial proceedings and equality of arms and incorporated adequate safeguards to protect the interests of the accused." (footnotes omitted)
The European Court of Human Rights concluded that the failure of the prosecution to disclose exculpatory material was a contravention of Article 6(1) because of the unfairness which it had produced. The court also considered that the procedure adopted before the Appeal Court was not sufficient to remedy the unfairness caused to the trial. Nevertheless, it is of significance that the European Court of Human Rights accepted that a right of access to evidence was not essential or indispensable, but may have to be modified to safeguard an important public interest.
In R v H [2004] 2 AC 134, the House of Lords considered the extent to which procedures which had evolved for dealing with claims for public interest immunity made on behalf of the prosecution in criminal proceedings complied with Article 6 of the European Convention. That consideration arose in the context of a claim for public interest immunity in respect of police surveillance techniques and procedures used in the investigation of offences which resulted in the appellants being charged with conspiracy to supply heroin having a street value of almost £2,000,000.
The House of Lords observed at 145 ‑ 151:
"10.    As the House declared in R v Horseferry Road Magistrates' Court, Ex p Bennett [1994] 1 AC 42, 68, and recently repeated in Attorney General's Reference (No 2 of 2001) [2004] 2 AC 72, 85, para 13, it is 'axiomatic that a person charged with having committed a criminal offence should receive a fair trial and that, if he cannot be tried fairly for that offence, he should not be tried for it at all'. Article 6 of the European Convention requires that the trial process, viewed as a whole, must be fair. Any answer given to the questions raised by these appeals must be governed by that cardinal and overriding requirement.
11.     Fairness is a constantly evolving concept. Hawkins J (Reminiscences, (1904) vol 1, chap IV, p 34) recalled a defendant convicted of theft at the Old Bailey in the 1840s after a trial which lasted 2 minutes 53 seconds, including a terse jury direction: 'Gentlemen, I suppose you have no doubt? I have none'. Until 1898 a defendant could not generally testify on his own behalf. Such practices could not bear scrutiny today. But it is important to recognise that standards and perceptions of fairness may change, not only from one century to another but also, sometimes, from one decade to another.
12.     While the focus of article 6 of the Convention is on the right of a criminal defendant to a fair trial, it is a right to be exercised within the framework of the administration of the criminal law: as Lord Steyn pointed out in Attorney General's Reference (No 3 of 1999) [2001] 2 AC 91, 118:
'The purpose of the criminal law is to permit everyone to go about their daily lives without fear of harm to person or property. And it is in the interests of everyone that serious crime should be effectively investigated and prosecuted. There must be fairness to all sides. In a criminal case this requires the court to consider a triangulation of interests. It involves taking into account the position of the accused, the victim and his or her family, and the public.'
…
23.     The problem of reconciling an individual defendant's right to a fair trial with such secrecy as is necessary in a democratic society in the interests of national security or the prevention or investigation of crime is inevitably difficult to resolve in a liberal society governed by the rule of law. It is not surprising that complaints of violation have been made against member states including the United Kingdom, some of which have exposed flaws in or malfunctioning of our domestic procedures. The European Court has however long accepted that some operations must be conducted secretly if they are to be conducted effectively: Klass v Federal Republic of Germany (1978) 2 EHRR 214, 232, par 48."
In this case the House of Lords sanctioned a procedure for the judicial determination of issues concerning prosecutorial disclosure in cases in which public interest immunity was claimed. In appropriate cases, the procedure included consideration of that material by the court without it being disclosed to the defence. In some cases, it would include the appointment of special counsel to act on behalf of the accused in closed proceedings without disclosing the material referred to in those closed proceedings to the accused or his or her other representatives.

The last 10 years in the United Kingdom have seen the introduction of a number of procedures for the determination of questions adverse to a person on the basis of material not disclosed to him or her, but disclosed to a "special advocate". The special advocate is charged to represent the party's interests, but precluded from disclosing the secret material to him or her. Examples of those procedures are given in R v H (supra) [21]. One such procedure was considered in A v Secretary of State for the Home Department [2004] QB 335 in which Lord Woolf CJ held at 364:
"The proceedings before the Commission involve departures from some of the requirements of article 6. However, having regard to the issues to be inquired into, the proceedings are as fair as could reasonably be achieved. It is true that the detainees and their lawyers do not have the opportunity of examining the closed material. However, the use of separate counsel to act on their behalf in relation to the closed evidence provides a substantial degree of protection."
More recently, in Secretary of State for the Home Department v MB [2006] EWCA (Civ) 1140, the Court of Appeal considered a number of provisions of the Prevention of Terrorism Act 2005 (UK) ("the PTA") which empowered the Secretary of State to make control orders in relation to terrorist suspects. The PTA precluded the Secretary of State from making particular types of control orders without first applying for the permission of the court, which was empowered to consider the Secretary's application ex parte and without notice to the prospective subject of the order. However, if permission is granted, the court must give directions for a further hearing to be held on notice to the subject as soon as reasonably practicable. The schedule to the PTA provides that rules of court are to be made entitling the Secretary of State to apply to the court for permission not to disclose relevant material ("closed material") otherwise than to the court and persons appointed as "Special Advocate".
It is pertinent to observe that even in the case of suspected terrorists, in the UK the determination of whether or not material is to be disclosed is left to the court. That is, of course, not the position under s 76(2) where that determination is made by the Commissioner of Police.
In Secretary of State for the Home Department (supra), on the supplementary hearing on notice to the subject of the order, the suspect MB, the trial Judge read the closed material, determined that its disclosure would be contrary to the public interest and that it would not be possible to serve a summary of the material on MB or his legal advisors which would not contain information or other material, the disclosure of which would be contrary to the public interest. That material was, however, taken into account when the trial Judge made his ultimate decision.
The appeal to the Court of Appeal was heard by the Lord Chief Justice, the Master of the Rolls and the President of the Queen's Bench Division. In their joint judgment they observed at [70]:
"To deny to a party to legal proceedings the right to know the details of the case against him is, on the face of it, fundamentally at odds with the requirements of a fair trial. And yet, both Strasbourg and domestic authorities have accepted that there are circumstances where the use of closed material is permissible …"
The Court of Appeal then reviewed the cases to which I have referred and the further case of Roberts v Parole Board [2005] 2 AC 738 in which the House of Lords, by a majority, held that consideration by the Parole Board of evidence that would not be disclosed to the prisoner, because disclosure would place the life of an informant in danger, did not infringe the requirements of the European Convention. Those requirements were analogous to the requirements of a fair trial under Article 6. The majority placed particular reliance upon the availability of the Special Advocate procedure in proceedings before the Parole Board and concluded that whether or not use of that procedure would constitute unfairness and contravention of the European Convention would depend upon the particular facts and circumstances of the case.
In Secretary of State for the Home Department (supra), the Court of Appeal went on to observe:
"79. The critical issue of fact in this case is whether there are reasonable grounds for suspecting that MB has been engaged in terrorism-related activity. If an absolute standard of fairness is applied, MB must be informed of the facts that the Secretary of State contends give rise to this suspicion, so that he can address those facts. The issue is whether Article 6 requires an absolute standard of fairness to be applied, or whether, in a case such as the present, some derogation from that standard is permissible in the interests of national security.
80. The Strasbourg court has accepted that there can be circumstances where material evidence need not be disclosed in order to satisfy the requirements of Article 6 or Article 13. The Court of Appeal has so found and we are bound to follow that finding. We observe, furthermore, that if the requirements of Article 6 could in no circumstances be satisfied without full disclosure of material evidence, the implications would be far reaching ..."
The court then considered the procedures stipulated under the Regulation of Investigatory Powers Act 2000 (UK) ("the RIPA"), which provided for the creation of a Tribunal to hear complaints against the abuse of the investigatory powers conferred by the RIPA. As contemplated by the RIPA, the Secretary of State has made rules for the conduct of proceedings before the Tribunal that have regard to:
"[T]he need to secure that information is not disclosed to an extent, or in a manner, that is contrary to the public interest or prejudicial to national security, the prevention or detection of serious crime, the economic well-being of the United Kingdom or the continued discharge of the functions of any of the intelligence services."
Further rules made by the Secretary pursuant to the RIPA restrict disclosure of relevant evidence to a complainant. In Secretary of State for the Home Department (supra), the Court of Appeal observed that at [82]:
"It is plain that, without such restriction, the fundamental purpose of the RIPA could be defeated."
The Court of Appeal also endorsed (at [83]) a ruling of the Tribunal created under the RIPA to the effect that the procedural restrictions on the disclosure of the evidence to a complainant were compatible with Article 6 of the European Convention. The Tribunal had ruled in these terms:
"The disclosure of information is not an absolute right where there are competing interests, such as national security considerations, and it may be necessary to withhold information for that reason, provided that, as in the kind of cases coming before this Tribunal, it is strictly necessary to do so and the restriction is counterbalanced by judicial procedures which protect the interests of the Complainants: see Fitt v United Kingdom (2000) 30 EHRR 480 paras 45 and 46 and R v Smith (2001) 1 WLR 1031 at para 25."
After citing that passage, in Secretary of State for the Home Department (supra) the Court of Appeal observed:
"84. We consider that this decision accorded with the Strasbourg jurisprudence. The Strasbourg Court would recognise that, where complaints are made in relation to surveillance, procedures for a fair trial cannot extend to an automatic requirement on the part of the security services to disclose to a complainant the evidence which has led them to put in place the surveillance. This is, of course, subject to adequate safeguards being put in place to limit any prejudice that would otherwise flow from the non-disclosure.
85.We turn to the circumstances of the present appeal. Just as in the case of RIPA, the present case is concerned with powers conferred on the executive to interfere with individual rights in order to protect the public against the risk of terrorism. The PTA empowers the Secretary of State to impose obligations, which fall short of infringing Article 5, in order to prevent or restrict the risk that someone who is suspected of having been involved in terrorism will take part in terrorism in the future. Such obligations are likely to interfere with human rights other than those under Article 5 and questions will arise as to whether such interference can be justified. If one starts with the premise that the risk of terrorism may justify such measures, we consider that it must follow that Article 6 cannot automatically require disclosure of the evidence of the grounds for suspicion. Were this not so, the Secretary of State would be in the invidious position of choosing between disclosing information which would be damaging to security operations against terrorists, or refraining from imposing restrictions on a terrorist suspect which appear necessary in order to protect members of the public from the risk of terrorism.
86. If one accepts, as we do, that reliance on closed material is permissible, this can only be on terms that appropriate safeguards against the prejudice that this may cause to the controlled person are in place. We consider that the provisions of the PTA for the use of a special advocate, and of the rules of court made pursuant to paragraph 4 of the Schedule to the PTA constitute appropriate safeguards, and no suggestion has been made to the contrary."
It appears, therefore, that both the European Court of Human Rights and the courts of the United Kingdom accept that there will be circumstances in which the normal requirements of procedural fairness must yield to the public interest in protecting the confidentiality of investigative material. They do so, however, on condition that there are judicial safeguards in place to protect the fairness of the proceedings. Section 76 of the CCC Act does not expressly provide any such judicial safeguards. The prohibition in s 76(2) upon disclosure of the confidential information to any other person inhibits, but does not entirely exclude, the adoption of judicial procedures which could improve the fairness of the proceedings. Similarly, there could be a direction that the Commissioner of Police provide the applicant for review with a general statement of the grounds upon which he acted, but which do not condescend to disclosure of the confidential information. Because the legislature has reposed the review jurisdiction created by the section in the Supreme Court, it is reasonable to infer that it was intended that the court would adopt whatever procedures are necessary to ensure procedural fairness, subject to the express constraints of s 76(2), and to construe the section accordingly. The Full Court of the Supreme Court of South Australia took this approach to the construction of legislation dealing with the same subject matter in Osenkowski v Magistrates Court of South Australia (2006) 96 SASR 456 at [33] per Doyle CJ, Nyland and Anderson JJ concurring.
In all events, it is clear from the cases I have referred to that neither the European Court of Human Rights, nor the courts of the United Kingdom regard disclosure to the parties of all the material upon which a court relies as an essential and indispensable component of a fair trial.

New Zealand

The New Zealand Bill of Rights Act 1990, s 27(1) provides:
"Every person has the right to the observance of the principles of natural justice by any tribunal or other public authority which has the power to make a determination in respect of that person's rights, obligations, or interests protected or recognised by law."
The Court of Appeal of New Zealand recently considered the operation of that provision in Zaoui v Attorney-General (No 2) [2005] 1 NZLR 690, when it observed at [4]:
"As a general proposition, for a system to be fair, it would have to recognise and apply the ordinary principles of natural justice which in New Zealand are affirmed by s 27 of the New Zealand Bill of Rights Act 1990 … A fundamental aspect of natural justice is the right to know, and to be accorded the opportunity of being heard in respect of, matters which might be considered in the course of a decision affecting a person's rights or interests. But it may sometimes be the case that the contracting state's grounds for regarding a refugee as a danger to the security of that country are based on classified information, the disclosure of which, to others including the refugee facing refoulement, may compromise the source of the information or state security operations. This can produce a conflict between the refugee's rights to natural justice and the state's interest in its own security. In New Zealand there is a legislative mechanism intended to bring a measure of reconciliation between the conflicting rights and interests. This is provided in Part IVA of the Immigration Act 1987."
Section 114A of the Immigration Act 1987 (NZ) ("New Zealand Immigration Act") expressly provides that the object of Pt IVA of that Act is to strike a balance between the public interest in protecting the confidentiality of classified security information and the rights of the individual to procedural fairness. The section further provides that the object of that Part is to establish that balance between the public interest and the rights of the individual by allowing an independent person of high judicial standing to consider the information and approve of its proposed use. Under the New Zealand Immigration Act, that function is performed by the Inspector General of Intelligence and Security, who holds office pursuant to the Inspector‑General of Intelligence and Security Act 1996 (NZ).

Canada

Part 1 of the Constitution Act, 1982 (Canada) ("the Canadian Constitution") is the Canadian Charter of Rights and Freedoms. Section 7 of that Act provides:
"Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice."
In R v Rodgers [2006] 1 SCR 554, the Supreme Court of Canada considered the constitutional validity of a warrant for the taking of a DNA sample from Mr Rodgers. That warrant had been issued by a judge after an ex parte hearing. The majority held that notice of, and participation in, judicial proceedings were not themselves principles of fundamental justice. They held that the norm predicated by the Canadian Constitution was procedural fairness and that what is fair in a particular case depended entirely on the context.
The majority judgment was delivered by Charron J (McLachlin CJ and Bastarache and Abella JJ concurring). The decision of the dissenting minority was given by Fish J. In rejecting the argument that ex parte hearings were fundamentally inconsistent with constitutional requirements, the majority observed at [47]:
"It is important to note at the outset that the fallacy in Mr. Rodgers’ argument is that it presupposes that notice and participation are themselves principles of fundamental justice, any departure from which must be justified in order to meet the minimal constitutional norm. As I read his reasons, Fish J. adopts the same reasoning. With respect, it is my view that this is not the proper approach. The constitutional norm, rather, is procedural fairness. Notice and participation may or may not be required to meet this norm -‑ it is well settled that what is fair depends entirely on the context."
In Lyons v The Queen [1987] 2 SCR 309, the Supreme Court of Canada observed at [85] per La Forest J, Dickson CJ, Estey, McIntyre, Le Dian JJ concurring:
"It is clear that, at a minimum, the requirements of fundamental justice embrace the requirements of procedural fairness … It is also clear that the requirements of fundamental justice are not immutable; rather, they vary according to the context in which they are invoked. Thus, certain procedural protections might be constitutionally mandated in one context but not in another."
In Chiarelli v Canada (Minister of Employment and Immigration) [1992] 1 SCR 711, the Supreme Court of Canada considered provisions of the Immigration Act 1976 (Canada) which empowered the issue of a certificate to the effect that there are reasonable grounds to believe that the person the subject of the certificate will:
"engage in activity that is part of a pattern of criminal activity planned and organized by a number of persons acting in concert ..."
When such a certificate was proposed, the Security Intelligence Review Committee, under the relevant legislation, were to conduct an inquiry and then report to the Governor in Council. The Governor in Council could then determine whether or not to issue the relevant certificate. Mr Chiarelli argued that the procedures adopted by the Security Intelligence Review Committee contravened the constitutional requirement of fundamental justice because, inter alia, express provision was made for the receipt of material by the Review Committee to which he was denied access.
In rejecting that argument, the Supreme Court observed at 743 ‑ 745:
"The scope of the principles of fundamental justice will vary with the context and the interests at stake. In R. v. Lyons [1987] 2 S.C.R. 309, La Forest J., writing for the majority, stated at p. 361:
'It is clear that, at a minimum, the requirements of fundamental justice embrace the requirements of procedural fairness … It is also clear that the requirements of fundamental justice are not immutable; rather, they vary according to the context in which they are invoked. Thus, certain procedural protections might be constitutionally mandated in one context but not in another.'
Similarly, the rules of natural justice and the concept of procedural fairness, which may inform principles of fundamental justice in a particular context, are not fixed standards …
In Thomson Newspapers Ltd. v. Canada (Director of Investigation and Research, Restrictive Trade Practices Commission), [1990] 1 S.C.R. 425, La Forest J. explained at p.539 that in assessing whether a procedure accords with fundamental justice, it may be necessary to balance competing interests of the state and the individual:
What these practices have sought to achieve is a just accommodation between the interests of the individual and those of the state, both of which factors play a part in assessing whether a particular law violates the principles of fundamental justice … The interests in the area for which we are here concerned involve particularly delicate balancing …
In the context of hearings conducted by the Review Committee pursuant to a joint report, an individual has an interest in a fair procedure since the Committee's investigation may result in its recommending to the Governor in Council that a s. 83 certificate issue, removing an appeal on compassionate grounds. However, the state also has a considerable interest in effectively conducting national security and criminal intelligence investigations and in protecting police sources. The need for confidentiality in national security cases was emphasised by Lord Denning in R. v Secretary of State for the Home Department, ex parte Hosenball, [1977] 3 All E.R. 452 (C.A.), at p. 460:
'The information supplied to the Home Secretary by the Security Service is, and must be, highly confidential. The public interest in the security of the realm is so great that the sources of information must not be disclosed, nor should the nature of the information itself be disclosed, if there is any risk that it would lead to the sources being discovered. The reason is because, in this very secretive field, our enemies might try to eliminate the source of information.'
…
The CSIS Act [Canadian Security Intelligence Service Act] and [Security Intelligence] Review Committee Rules recognize the competing individual and state interests and attempt to find a reasonable balance between them. The Rules expressly direct that the Committee's discretion be exercised with regard to this balancing of interests."

In Scott v The Queen [1990] 3 SCR 979, the Supreme Court of Canada held that s 7 of the Canadian Charter of Rights and Freedoms did not preclude a judge in a criminal trial from refusing to allow cross‑examination which would have led to disclosure of the identity of a police informer. In Ruby v Canada (Solicitor General) [2002] 4 SCR 3, the Supreme Court considered the constitutional validity of legislative provisions which required a court considering a judicial review application to accept ex parte submissions in the event that a government institution claimed exemption from obligations imposed by the Canadian Privacy Act on the basis that disclosure would prejudice the confidentiality of information provided by a foreign government or national security considerations. Arbour J, giving the judgment of the court upholding the validity of the legislation, observed:
"38 It remains to determine whether the requirement … that a court accept ex parte submissions on request of the government institution refusing to disclose information is contrary to the principles of fundamental justice. As I have already noted, the circumstances in which a court will accept ex parte submissions are exceptional. The circumstances in which a court will be obliged to hear ex parte submissions at the request of one party are even more exceptional. The question is whether, in the context of this case, such a provision is consistent with the principles of fundamental justice. I believe that it is.
39The principles of fundamental justice are informed in part by the rules of natural justice and the concept of procedural fairness. What is fair in a particular case will depend on the context of the case …
…
In assessing whether a procedure accords with the principles of fundamental justice, it may be necessary to balance the competing interests of the state and the individual … It is also necessary to consider the statutory framework within which natural justice is to operate. The statutory scheme may necessarily imply a limit on disclosure. 'The extent of the disclosure required by natural justice may have to be weighed against the prejudice to the scheme of the Act which disclosure may involve' …
40As a general rule, a fair hearing must include an opportunity for the parties to know the opposing party's case so that they may address evidence prejudicial to their case and bring evidence to prove their position … The exclusion of the appellant from portions of the government's submissions is an exceptional departure from this general rule. The appellant operates in an informational deficit when trying to challenge the legitimacy of the exemptions claimed by the government. However, the general rule does tolerate certain exceptions. As indicated earlier, some situations require a measure of secrecy, such as wiretap and search warrant applications. In such circumstances, fairness is met through other procedural safeguards such as subsequent disclosure, judicial review and rights of appeal. In other cases, for instance where a privilege is successfully asserted, the content of the disputed information may never be revealed …
…
46In the Privacy Act Parliament has recognized and attempted to balance the interests of the appellant in accessing personal information held by government institutions with the significant and legitimate interest of the state in national security and in maintaining foreign confidences. Only in the exceptional and limited circumstance where a government institution is claiming an exemption on the basis that the information involves national security and foreign confidences will the procedural regime … requiring ex parte in camera proceedings be activated. The principles of fundamental justice do not require that the applicant have the most favourable proceedings. They do require that the proceedings be fair ..."
However, it may be of significance to note that under the legislative regime under consideration in Ruby's case (supra), the Federal Court was given power to order the release of the personal information if the court determined the material was not received in confidence from a foreign source or was not within the bounds of the national security exemption.
In Suresh v Canada (Minister of Citizenship and Immigration)[2002] 1 SCR 3, the Supreme Court held that fundamental justice required the Minister for Immigration to disclose to a prospective deportee the material to be relied upon when considering deportation and the obligation to provide an opportunity to respond to that case. However, it did not impose an obligation to disclose confidential security documents.

The United States

The fifth amendment to the Constitution of the United States ("US Constitution") relevantly states:
"No person shall … be deprived of life, liberty, or property, without due process of law ..."
The 14th amendment to the US Constitution imposes a similar obligation upon the legislatures of the various states. In Hamdi v Rumsfeld 542 US 507 (2004), the US Supreme Court considered the effect of those amendments upon the procedures stipulated in respect of an executive determination. The effect being, that a US citizen had the status of "enemy combatant" and could therefore be detained.
After reviewing the competing arguments in respect of process advanced by the petitioner and the Government, the majority (whose judgment was delivered by O'Connor J) observed:
"Both of these positions highlight legitimate concerns. And both emphasize the tension that often exists between the autonomy that the Government asserts is necessary in order to pursue effectively a particular goal and the process that a citizen contends he is due before he is deprived of a constitutional right. The ordinary mechanism that we use for balancing such serious competing interests, and for determining the procedures that are necessary to ensure that a citizen is not 'deprived of life, liberty or property, without due process of law', U.S. Const. Amdt. 5 is the test that we articulated in Mathews v. Eldridge, [1976] 424 U.S. 319 (1976) … Mathews dictates that the process due in any given instance is determined by weighing 'the private interest that will be affected by the official action' against the Government's asserted interest, 'including the function involved' and the burdens the Government would face in providing greater process … The Mathews calculus then contemplates a judicious balancing of those concerns, through an analysis of 'the risk of an erroneous deprivation' of the private interest if the process were reduced and the 'probable value, if any, of additional or substitute safeguards.'"
In Hamdi (supra), the majority then went on to weigh the various competing considerations on each side of the balancing scale to which reference was made. They held:
"Striking the proper constitutional balance here is of great importance to the Nation during this period of on‑going combat. But it is equally vital that our calculus not give short shrift to the values that this country holds dear or to the privilege that is American citizenship. It is during our most challenging and uncertain moments that our Nation's commitment to due process is most severely tested; and it is in those times that we must preserve our commitment at home to the principles for which we fight abroad. See Kennedy v. Mendoza‑Martinez, 372 U.S. 144, 164-165 (1963) ('The imperative necessity for safeguarding these rights to procedural due process under the gravest of emergencies has existed throughout our constitutional history, for it is then, under the pressure exigencies of crisis, that there is the greatest temptation to dispense with guarantees which, it is feared, will inhibit government action'); see also United States v. Robel, 389 U.S. 258, 264 (1967) ('It would indeed be ironic if, in the name of national defense, we would sanction the subversion of one of those liberties ... which makes the defense of the Nation worthwhile').
With due recognition of these competing concerns, we believe that neither the process proposed by the Government nor the process apparently envisioned by the District Court below strikes the proper constitutional balance when a United States citizen is detained in the United States as an enemy combatant. That is, 'the risk of erroneous deprivation' of a detainee's liberty interest is unacceptably high under the Government's proposed rule, while some of the 'additional or substitute procedural safeguards' suggested by the District Court are unwarranted in light of their limited 'probable value' and the burdens they may impose on the military in such cases …"
In Hamdan v Rumsfeld 548 US (2006), the US Supreme Court considered the validity of procedures to be utilised by a US military commission trying a non-citizen of the US. In a judgment given by Stevens J, the majority observed:
"various provisions of Commission Order No. 1 dispense with the principles, articulated in Article 75 [of the Geneva Conventions of 1949] and indisputably part of the customary international law, that an accused must, absent disruptive conduct or consent, be present for his trial and must be privy to the evidence against him … That the Government has a compelling interest in denying Hamdan access to certain sensitive information is not doubted … But, at least absent express statutory provision to the contrary, information used to convict a person of a crime must be disclosed to him."
In a footnote to that passage, the majority cite various passages from previous decisions referring to the right of an accused person to be present during his trial and to see and hear the evidence against themselves. However, it is perhaps significant that in the passage of the judgment referred to above, a "compelling" government interest in denying access to certain sensitive information was acknowledged, as was the capacity of the legislature to preclude access.

Summary

No Australian authority has been cited in support of the proposition that unrestricted access by a party to all the information upon which a court relies for its adjudication of the case before it, is an essential or indispensable aspect of a fair trial. My review of the decisions of the European Court of Human Rights, and the courts of the United Kingdom, New Zealand, Canada and the United States leads me to conclude that the courts in those jurisdictions have not concluded that the right of a party to have unrestricted access to all the information, upon which a court relies, is an essential or indisputable component of a fair trial.
Rather, my review of those jurisdictions leads me to conclude that in each of the jurisdictions, it has been acknowledged that the content of the requirements of procedural fairness or fundamental justice will depend upon the particular circumstances of the case and cannot be prescribed in the abstract. Further, in each jurisdiction, it has been expressly recognised that the ordinary requirements of procedural fairness, including the ability of a party to know the case that he or she has to meet, must sometimes yield to a countervailing public interest in the protection of the confidentiality of evidentiary material, even as against a party to the proceedings. In some jurisdictions with particular statutory charters of human rights, that conclusion has depended upon the provision of legislative safeguards against the abuse of such powers. However, even in those jurisdictions, the courts have generally, but not invariably, shown an inclination to leave the striking of the appropriate balance to the legislature rather than usurp that function themselves.
This review therefore supports the conclusion that in Australia, a legislative provision, apparently enacted in the protection of a legitimate public interest in maintaining the confidentiality of investigative information empowering a court to act upon that information, even though it not be disclosed to a party to the proceedings cannot, for that reason only necessarily be said to be unfair, and therefore cannot, for that reason only, be said to compromise the institutional integrity of the court concerned. This is not, of course, to say that all provisions which have the effect that a court must act upon information which one party to the proceedings will not have disclosed to the other, will necessarily fall within the legislative power of a state. Rather, the question of validity may turn upon the particular circumstances and context of the legislative provision, including the public interest in the maintenance of confidentiality, the subject matter of the curial proceedings, the procedures to be adopted and so on.
There are three significant features of s 76 of the CCC Act that might lend support to the argument that the process it prescribes is not only unfair, but also compromises the institutional integrity of the Supreme Court. Those features are:
(a)the fact that the ambit of the information which is not to be disclosed to the applicant for review is to be determined by the respondent to the review - namely, the Commissioner of Police;
(b)the fact that there is no power in the court to review the determination made by the Commissioner of Police as to the ambit of the material in respect of which confidentiality is claimed; and
(c)the fact that the section provides no specific or express safeguards for the protection of the interests of an applicant in the event that confidentiality is claimed.
However, in the absence of a Charter or Bill of Rights, the only minimum constitutional guarantee able to be invoked by the applicant in this case is the implied constitutional prohibition upon compromising the institutional integrity of the courts upon which federal jurisdiction is to be reposed, including the Supreme Court. Accordingly, the features of s 76 to which I have referred could only entitle the applicant to the relief it seeks if it could be concluded that their consequence was to take the process of judicial review, for which s 76 provides, so far outside the nature and scope of judicial proceedings as to so compromise the institutional integrity of the Supreme Court so as to make it an inappropriate repository of federal jurisdiction.
It is no part of the function of this Court to express views as to whether the process for which s 76 provides is appropriate or whether the section might have been improved had provision been made for judicial review of a determination made by the Commissioner of Police, as to the ambit of the material in respect of which confidentiality will be claimed; or improved by some other express safeguard of the interests of an applicant adversely affected by a claim of confidentiality. Our only function is to determine whether the legislation would require this Court to undertake a process which is so far removed from a recognised judicial process as to compromise its integrity as part of the national scheme for the discharge of federal jurisdiction contemplated by Ch III of the Constitution.
In my opinion, s 76 of the CCC Act does not have this consequence. As I have endeavoured to point out, a judicial process in which one party is denied access to the materials relied upon for the purposes of the judicial determination is not unique; on the contrary, it is a recognised feature of all the jurisdictions I have referred to. If that fundamental characteristic of s 76 does not, singularly, constitute a departure from accepted judicial process, in my opinion, the other features of the section to which I have referred do not lead to the conclusion that the procedure contemplated by s 76 is such a radical departure from judicial process as to compromise the institutional integrity of this Court.
I am reinforced in this conclusion by my observation that s 76 should be construed as being consistent with the overriding and inherent obligation of a court to do justice as between the parties to proceedings before it. Thus, while the terms of s 76(2) will preclude disclosure of information which the Commissioner of Police claims to be confidential, this does not necessarily mean that the court is precluded from imposing other procedures which might assist to inform the applicant of the case which has to be met. This is, of course, subject to due compliance with the prohibition upon disclosure of the confidential information. On my view of the section, the court will be obliged to take whatever procedural steps are available to minimise the disadvantages suffered by an applicant if the Commissioner of Police claims confidentiality pursuant to s 76(2) (see Osenkowski v Magistrates Court of South Australia (supra)).

Accordingly, for these additional reasons, I have come to the conclusion that the question referred to the Court of Appeal should be answered by an affirmation of the validity of s 76 of the CCC Act and the proceedings in which a declaration of invalidity is sought should be dismissed.
STEYTLER P: Questions have been referred to this Court under s 43 of the Supreme Court Act 1935 (WA) regarding the validity of sections of the Corruption and Crime Commission Act 2003 (WA) ("CCC Act"). Before turning to those sections, and to the questions referred, it is necessary to provide some background.
The applicant is an incorporated association said to have been formed for the purpose of fostering and promoting the enjoyment of motor cycling pursuits. It is the registered proprietor of premises situated at 10 Lower Park Road in Maddington ("premises"), which it uses as a club house. The premises are located in an industrial area in the City of Gosnells. Activities engaged in by the applicant came to the attention of the Western Australian Police. On 12 February 2004 the then Assistant Commissioner of Police (he has since retired), Mr M C Hay (acting under delegated authority), applied, without notice to any other person, to the Corruption and Crime Commission ("Commission") for the issue of a fortification warning notice in respect of the premises.
An application of that kind is provided for by s 68(1) of the CCC Act. That section provides that the Commissioner of Police may, without giving notice to any other person, apply to the Commission for the issue of a fortification warning notice. By s 68(2), the Commission is empowered to issue a fortification warning notice if satisfied on the balance of probabilities that there are reasonable grounds for suspecting that the premises to which it relates are both heavily fortified and habitually used as a place of resort by members of a class of people, a significant number of whom may reasonably be suspected to be involved in organised crime. Section 68(3) provides that the Commission may be satisfied by a statement made by a police officer and verified by statutory declaration.
The application was heard by the Commission on 31 March 2004. It was satisfied that a fortification warning notice should be issued to the applicant. A notice of that kind, by s 69(2), must contain, amongst other things, a warning that unless, within the period of 14 days after the day on which a copy of the notice is given to the owner or occupant of the premises in question, the Commissioner of Police is satisfied that the

premises are not heavily fortified or that they are not habitually used as a place of resort by members of a class of people a significant number of whom may reasonably be suspected to be involved in organised crime, a fortification removal notice may be issued.

A copy of a warning notice in the required terms was served on the applicant on 1 April 2004. This led the applicant to provide Mr Hay with a letter dated 14 April 2004 containing submissions to the effect that a fortification removal notice should not be issued.
Sections 72(1) and 72(2) of the CCC Act provide as follows:
"72. Fortification removal notice, issue of
(1)If a fortification warning notice has been given … and the submission period has elapsed, the Commissioner of Police may issue a fortification removal notice relating to the premises concerned.
(2)The Commissioner of Police cannot issue the fortification removal notice unless, after considering each submission, if any, made before the submission period elapsed, the Commissioner of Police reasonably believes that the premises are ‑
(a)heavily fortified; and
(b)habitually used as a place of resort by members of a class of people a significant number of whom may reasonably be suspected to be involved in organised crime."
Having considered the applicant's submissions, but not having been persuaded by them, Mr Hay (acting pursuant to a valid delegation of power from the Commissioner of Police granted in accordance with s 82 of the CCC Act) issued a fortification removal notice pursuant to s 72(1) of the CCC Act on 5 May 2004. That notice required the applicant to remove and modify specified structures and fittings on the premises.

Section 75 of the CCC Act provides for potentially serious consequences of a failure to comply with a fortification removal notice. It reads as follows:
"75. Fortification removal notice, enforcing
(1)If the fortifications at the premises are not, within the time specified in the fortification removal notice or any further time allowed by the Commissioner of Police, removed or modified to the extent necessary to satisfy the Commissioner of Police that the premises are no longer heavily fortified, the Commissioner of Police may cause the fortifications to be removed or modified to the extent required by the fortification removal notice.
(2)The Commissioner of Police may extend the time allowed by the notice if, before the time allowed elapses, application is made to the Commissioner of Police for it to be extended.
(3)Subsection (1) authorises police officers and agents of the Commissioner of Police, without warrant or further notice, to enter the premises and secure them in order to do anything for the purposes of that subsection, and to use any force and employ any equipment necessary.
(4)The Commissioner of Police may seize anything that can be salvaged in the course of removing or modifying fortifications under this section, and may sell or dispose of it as the Commissioner of Police considers appropriate.
(5)The proceeds of any sale under subsection (4) are forfeited to the State and, to the extent that they are insufficient to meet the costs incurred by the Commissioner of Police under this section, the Commissioner of Police may recover those costs as a debt due from the owner of the premises."
Section 76 of that Act provides for review, by the Supreme Court, of a fortification removal notice. It is necessary to set out that section in full. It reads as follows:
"76. Review of fortification removal notice
(1)If a fortification removal notice relating to premises has been issued, the owner or an interested person may, within 7 days after the day on which the notice is given to the owner of the premises, apply to the Supreme Court for a review of whether, having regard to the submissions, if any, made before the submission period elapsed and any other information that the Commissioner of Police took into consideration, the Commissioner of Police could have reasonably had the belief required by section 72(2) when issuing the notice.
(2)The Commissioner of Police may identify any information provided to the court for the purposes of the review as confidential if its disclosure might prejudice the operations of the Commissioner of Police, and information so identified is for the court’s use only and is not to be disclosed to any other person, whether or not a party to the proceedings, or publicly disclosed in any way.
(3)An application for review under this section cannot be made if an application has previously been made by any person for the review of the same matter.
(4)When the application for review is made, the period within which fortifications can be removed or modified in accordance with the fortification removal notice is extended to the seventh day after the day on which the application for review is finally disposed of by the court.
(5)The court may decide whether or not the Commissioner of Police could have reasonably had the belief required by section 72(2) when issuing the notice.
(6)If the court decides that the Commissioner of Police could not have reasonably had the belief required by section 72(2) when issuing the notice, the notice ceases to have effect.
(7)The decision of the court on an application for review under this section is final but does not prevent the Commissioner of Police from issuing a further notice under this Division relating to the same premises where there is fresh evidence."
The applicant applied for a review under s 76(1). It claimed that the Commissioner of Police could not reasonably have had the required belief when issuing the notice. In response, Mr Hay filed an affidavit sworn by him on 5 November 2004. That affidavit identified and annexed materials which he had taken into account in making his decision to issue the notice. He identified a good deal of that information as confidential for the purposes of s 76(2) of the CCC Act, saying that its disclosure might prejudice the operations of the Commissioner of Police. The applicant was served with a copy of the affidavit in which the information identified as confidential had been edited out.
The application for review was heard by Blaxell J on 5 December 2005. At that hearing, counsel for the applicant submitted that s 76(2) of the CCC Act was constitutionally invalid. He said that this was so essentially because it conferred upon the Supreme Court a function that was incompatible with its status, by virtue of Ch III of the Commonwealth Constitution, as one of the repositories of federal judicial power. Blaxell J adjourned the hearing so as to enable notices to be issued pursuant to s 78B of the Judiciary Act 1903 (Cth).

Questions referred to this Court

The hearing resumed before Blaxell J on 1 May 2006. He decided that the following questions should be referred to this Court under s 43 of the Supreme Court Act:
"(a)Is section 76 of the Corruption and Crime Commission Act 2003 (WA) valid? and
(b)In the alternative, is sub section 76(2) of the Corruption and Crime Commission Act 2003 (WA) valid?"
At the hearing before this Court, a third question was also argued, namely whether the whole of Pt 4 Div 6 of the CCC Act, dealing with fortifications, is invalid. Because that question had not been referred to the Court of Appeal, an application for a declaration that Pt 4 Div 6 of the CCC Act is invalid was subsequently made by originating summons. On 18 October 2006, Martin CJ, who heard the application sitting as a single judge of the General Division of the Supreme Court, referred the case to this Court to be considered with the referred questions.

The Kable principle

The reference, as it was argued before us, turns upon the applicability of the so‑called "Kable principle". However, there was, in Kable v Director of Public Prosecutions(NSW) (1996) 189 CLR 51, no clear single statement of the principle: see Baker v The Queen (2004) 223 CLR 513 at 541 [74] per Kirby J; Forge v Australian Securities & Investments Commission (2006) 80 ALJR 1606 at [193] per Kirby J. Moreover, there has been a subsequent reluctance to apply it. The principle (I will come to its content below) has only twice been applied so as to invalidate legislation: in Kable itself and by the Court of Appeal in Queensland in Re Criminal Proceeds Confiscation Act 2002 [2004] 1 Qd R 40. The legislation found to be invalid in Kable has been repeatedly described as "extraordinary": see, for example, Fardon v Attorney‑General (Qld) (2004) 223 CLR 575 at 595 [33], 601 ‑ 602 [43] per McHugh J, at 629 [144] per Kirby J; Lay v Employers Mutual Ltd [2005] NSWCA 450 at [52] per Bryson JA, with whom Santow and McColl JJA were in agreement. Kirby J, in Baker at 561 [142], has gone so far as to describe the Kable principle as "a dead letter", at least "until a future time perceives its importance for the protection of fundamental rights in this country". He also questioned (at 535 [54]) whether the doctrine discussed in Kable had since been given "an unduly narrow appreciation", in effect treating that case "as a constitutional guard‑dog that would bark but once".
While the ratio in Kable is, in some respects, elusive, a number of propositions can be drawn from that case and from subsequent cases in the High Court.
First, it is accepted that the doctrine of separation of powers derived from Chs I, II and III of the Commonwealth Constitution does not apply as such in any of the States: Kable at 66 ‑ 67 per Brennan CJ, at 80 ‑ 81, 84 ‑ 85 per Dawson J, at 109 ‑ 110 per McHugh J (although he suggested, at 118, that in some situations the effect of Ch III of the Constitution may lead to the same result as if a State had an enforceable doctrine of separation of powers); Fardon at 598 [37] per McHugh J, at 614 [86] per Gummow J (Hayne J agreeing).
Next, it has been accepted that Ch III of the Constitution postulates an integrated Australian court system for the exercise of the judicial power of the Commonwealth: Kable at 101 per Gaudron J, at 110, 114 per McHugh J, at 140, 143 per Gummow J; Fardon at 598 [36] per McHugh J (who pointed out that this, of course, does not mean that what federal courts cannot do, State courts cannot do). Consequently, although it is for the States to determine the organisation and structure of their court systems, the courts in each State, especially the Supreme Courts, must retain their character as "courts" and neither the Commonwealth nor a State may legislate in such a way as to alter or undermine the constitutional scheme set up by Ch III and hence the role of State courts as repositories of federal judicial power: Kable at 103 per Gaudron J, at 115 ‑ 117 per McHugh J, at 139 ‑ 140 per Gummow J; Fardon at 626 ‑ 627 [136] ‑ [137] per Kirby J; Forge at [40] ‑ [41] per Gleeson CJ (Callinan J agreeing), at [57], [61] ‑ [63] per Gummow, Hayne and Crennan JJ, at [192], [195] per Kirby J. This, in turn, has the consequence that State parliaments may not legislate to confer powers on State courts which are repugnant to or incompatible with their exercise of the judicial power of the Commonwealth: see, for example, Kable at 103, 106 per Gaudron J; Fardon at 627 ‑ 628 [137] - [141] per Kirby J (who, of the judges who have recently spoken on this topic, takes the widest view of the ambit of the limitation).
The decision of the majority in Kable effectively extended the operation of the incompatibility doctrine that had earlier been developed in Grollo v Palmer (1995) 184 CLR 348 and in Wilson v Minister for Aboriginal & Torres Strait Islander Affairs (1996) 189 CLR 1 (each of which has been discussed in the judgment of Wheeler JA in this case). In Wilson, the majority (Brennan CJ, Dawson, Toohey, McHugh and Gummow JJ) identified (at 17) three questions to be asked in ascertaining whether or not there is constitutional incompatibility in a case based upon loss of public confidence. The first is whether the function is an integral part of, or is closely connected with, the functions of the legislature or the executive government. If not, there is no constitutional incompatibility. The second is whether the function is required to be performed independently of any instruction, advice or wish of the legislature or the executive government, other than a law or an instrument made under a law. If no affirmative answer appears, the separation of powers has been breached and the conferral of the function is invalidated. If an affirmative answer is given to the second question, the third question arises. It is whether any discretion purportedly possessed by the Ch III judge is to be exercised on political grounds, being grounds that are not confined by factors expressly or impliedly prescribed by law. The majority went on to say (at 17) that, in considering these questions, it will often be relevant to note whether the function to be performed must be performed judicially, that is, without bias and by a procedure that gives each interested person an opportunity to be heard and to deal with any case presented by those with opposing interests.
The incompatibility doctrine with which the courts in Grollo and Wilson were concerned related only to the appointment of federal judges as personae designata and its application to State courts does not emerge from Kable with any clarity, in my respectful opinion. In that case, Toohey J and, to some extent, Gaudron J relied on the test for incompatibility enunciated in Grollo (at 98 and at 103 ‑ 104 respectively). However, as Kristen Walker points out ("Persona Designata, Incompatibility and the Separation of Powers" (1997) 8 PLR 153 at 165 ‑ 166), the criteria that led them to this conclusion were not clearly explained. McHugh and Gummow JJ, who with Toohey and Gaudron JJ formed the majority, referred only tangentially to what was said in Grollo and in Wilson (see at 116 and at 127 respectively). It is noteworthy that the majority in Kable did not apply the three question test identified in Wilson. Also, the majority in Kable appears to have regarded the category of incompatibility that arose in that case as being one based upon loss of public confidence (being the category that had arisen for consideration in Wilson: see at 16) but, as the subsequent cases reveal (I will return to this aspect in more detail below), any suggestion arising from what was said in Kable that loss of public confidence might be a distinct and separately sufficient consideration for the operation of the Kable principle has since been eschewed.
In my opinion it is important to bear in mind that the limitation imposed by Ch III on the power to confer non‑judicial functions on State courts is not identical to or exactly analogous with that imposed in respect of the conferral of non‑judicial functions on federal judges as personae designata: see Fardon at [103] per Gummow J. As Gummow J pointed out in Fardon at [86], it is fundamental to an understanding of Kable that the repugnancy doctrine enunciated in that case does not imply into the Constitutions of the States the separation of judicial power mandated for the Commonwealth by Ch III. State parliaments can confer powers on their courts that are wholly non‑judicial so long as they are not repugnant to or inconsistent with the exercise by those courts of the judicial power of the Commonwealth: see Fardon at [40] per McHugh J. It is noteworthy that the dissentients in Kable, Brennan CJ and Dawson J, regarded the incompatibility doctrine identified in Grollo as inapplicable to State courts (at 67 ‑ 68 and at 85, 86 respectively). It is also significant that, unlike the limitation established in Grollo and in Wilson which relates to the conferral of functions on federal judges as designated individuals, the limitation identified in Kable, as amplified in the later cases, relates to the conferral of functions on courts (Kable at 103 ‑ 104 per Gaudron J) and involves an assessment based upon the effect of the impugned legislation on the capacity of the institution as a whole to be a fit repository for Commonwealth jurisdiction. Incompatibility in the case of the performance by federal judges of non‑judicial functions was said in Grollo to involve an assessment of whether those functions are of such a nature that public confidence in the integrity of the judiciary as an institution or in the capacity of the individual to perform his or her judicial functions with integrity is diminished: see at 365 per Brennan CJ, Deane J, Dawson J and Toohey J; see also Wilson at 16 per Brennan CJ, Dawson, Toohey, McHugh and Gummow JJ.
Whatever may be the position in these respects, it is at least clear that the critical notions of repugnancy and incompatibility have not been clearly defined in the context of the conferral of functions by State legislatures on State courts. In Fardon at 618 [104], Gummow J (Hayne J agreeing) described these notions as being "insusceptible of further definition in terms which necessarily dictate future outcomes". In Baker at 543 [81], Kirby J said in this respect that it was impossible to frame criteria that are "at once exclusive and exhaustive": see also Nicholas v The Queen (1998) 193 CLR 173 at 256. In Forge at [64], Gummow, Hayne and Crennan JJ said that it was "neither possible nor profitable to attempt to make some single all‑embracing statement of the defining characteristics of a court".
That said, there are some propositions which seem now not to be in doubt. First, it is accepted that, if the outcome provided for by the State law could be obtained in the exercise of federal jurisdiction, there will be no repugnancy: Fardon at 614 [87] per Gummow J (Hayne J agreeing), at 631 [145] ‑ [146] per Kirby J; H A Bachrach Pty Ltd v The State of Queensland (1998) 195 CLR 547 at 561 ‑ 562; Baker at 526 [22], 534 ‑ 535 [51] per McHugh, Gummow, Hayne and Heydon JJ (although Kirby J, in that case at 545 [86] said that "care must be taken to avoid unnecessary dependence on such fictions"); Silbert v Director of Public Prosecutions (WA) (2004) 217 CLR 181 at 186 [10] per Gleeson CJ, McHugh, Gummow, Hayne, Callinan and Heydon JJ. That, of course, does not mean that if the outcome in question could not be obtained in the exercise of federal jurisdiction, repugnancy will be made out. Rather, it would mean only that the Kable question remains a live one, to be answered by resort to other criteria: Fardon at 614 [87], 619 [106] per Gummow J (Hayne J agreeing), at 630 ‑ 631 [144(4) ‑ (5)] per Kirby J, at 655 ‑ 656 [219] per Callinan and Heydon JJ; Forge at [194] per Kirby J.
Next, it has been accepted that there will be incompatibility with the exercise of the judicial power of the Commonwealth if the institutional integrity of a Supreme Court is compromised: Kable at 98 per Toohey J, at 107 per Gaudron J, at 121 per McHugh J, at 127 ‑ 128 per Gummow J; Fardon at 591 [15] per Gleeson CJ, at 598 ‑ 599 [37] per McHugh J, at 617 ‑ 618 [102] per Gummow J, at 648 [198] per Hayne J, at 653 [213] per Callinan and Heydon JJ; Baker at 519 [5] ‑ [6] per Gleeson CJ, at 526 [21] per McHugh, Gummow, Hayne and Heydon JJ (where they said that the legislation under consideration in Kable had been invalid "on the ground that the exercise of the jurisdiction conferred by it upon the Supreme Court was incompatible with the integrity, independence and impartiality of the Supreme Court as a court in which federal jurisdiction also had been invested by laws made under s 77(iii) of the Constitution"), at 534 [51]; Forge at [40] per Gleeson CJ (Callinan J agreeing), at [63] per Gummow, Hayne and Crennan JJ.
There is no clearly accepted definition of "institutional integrity". However, that phrase self-evidently contemplates the integrity of the court as an institution, with the consequence (mentioned above) that invalidity of compromising legislation will follow only when the compromise is to the integrity of the institution itself, being the court as a whole. Consequently, where a State Supreme Court is given a limited power or function in the operation of non-federal jurisdiction, it will ordinarily be difficult, although not impossible, to make a link between the operation of the legislation giving it that function or power and the court's integrity as an institution. Unless there is something extraordinary in the legislation (as was the case in Kable), legislation having a limited operation in the exercise of State jurisdiction is unlikely to alter the essential characteristics of a Supreme Court, or the public's perception of them, to such a degree as to detract from its fitness to be a repository of federal jurisdiction of the kind contemplated by the framers of the constitution. It was no doubt for that reason that McHugh J, in Fardon at 601 ‑ 602 [43], considered that the Kable principle was more likely to be applied in future in respect of terms, conditions and manner of appointment of State judges (although a challenge of that kind subsequently failed in Forge) or in circumstances in which State judges are used to carry out non‑judicial functions, rather than in the context of Kable‑type legislation.
The judgments provide a number of other pointers.
It seems, firstly, that a Supreme Court will lack institutional integrity if it is, or is perceived to be, not institutionally independent of the legislative and executive government in the exercise of its federal jurisdiction: Kable at 98 per Toohey J, at 116, 117, 119 per McHugh J; North Australian Aboriginal Legal Aid Service Inc v Bradley (2004) 218 CLR 146 at 163 [27]; Fardon at 601 [42], 602 [44] per McHugh J, at 619 [107], 621 [116] per Gummow J (Hayne J agreeing), at 656 [219] per Callinan and Heydon JJ; Silbert at 190 [25] per Kirby J; Baker at 543 ‑ 544 [82] per Kirby J; Forge at [41] per Gleeson CJ (Callinan J agreeing), at [64], [66], [78] per Gummow, Hayne and Crennan JJ, at [181(6)], [195] per Kirby J. There are suggestions that a court will not have the required degree of independence if it acts as a mere instrument of government policy: Fardon at 592 [19] per Gleeson CJ, at 601 [42], 602 [44] per McHugh J; Forge at [63] per Gummow, Hayne and Crennan JJ.

The written submissions of the applicant focussed particularly upon two matters, they being the inability of the applicant to make "proper submissions" (on the basis that the submissions would self‑evidently not be able to deal with matters which were not disclosed to it) and the restriction on the power of the court to provide "proper reasons". Those questions were analysed by reference to propositions which were said to flow from Kable and from cases which followed it.
At various points during the course of the hearing, other features of the legislation which might be thought to be relevant were raised. The role of the Executive was mentioned by the applicant at an early stage (t/s 3). Another feature was that s 76 permitted one party to apparently adversarial proceedings to determine what evidence the other party was permitted to see (t/s 29, 31, 49). Another aspect was the applicant was engaged in litigation against the State and that the legislation conferred upon the State what might be a significant advantage (t/s 69). These appear to me to be more significant issues than those which formed the primary focus of the submissions.

Kable and the "incompatibility condition"

The parties referred only in passing to Grollo v Palmer, and to Wilson v Minister for Aboriginal & Torres Strait Islander Affairs (1996) 189 CLR 1 (hereafter Wilson). However, in my view, those cases are most relevant to the present questions. In my view, the principles enunciated in those cases, and particularly in Wilson, suggest the conclusion that at least s 76(2) of the CCC Act is invalid.
Grollo concerned the conferral upon judges of federal courts of the power to issue telecommunication interception warrants. The power was conferred not upon the court, but upon the judges as designated individuals. The power was held not to be a judicial one. Plainly, the case was factually very different from the present circumstances, but the principles discussed in it are relevant. As will shortly appear, the discussion in Grollo is echoed in Kable and the cases which follow it.
The majority in Grollo (Brennan CJ, Deane, Dawson and Toohey JJ) discussed the question of whether there was a limit on the ability of the Parliament to confer on federal judges as personae designatae. That power was held to be subject to two qualifications. The first (irrelevant here) was the consent of the judge concerned. The other was that the function not be "incompatible either with the judge's performance of his or her judicial functions or with the proper discharge by the judiciary of its responsibilities as an institution exercising judicial power ('the incompatibility condition')" (at 365).
Their Honours, in elaborating the "incompatibility condition", noted that it might arise in a number of different ways. It might consist in so permanent and complete a commitment to the performance of non‑judicial functions by a judge that the further performance of substantial judicial functions by that judge was not practicable; or it might consist in the performance of non‑judicial functions of such a nature that the capacity of the judge to perform his or her judicial functions with integrity was compromised or impaired. Or it might consist in the performance of non‑judicial functions "of such a nature that public confidence in the integrity of the judiciary as an institution or in the capacity of the individual judge to perform his or her judicial functions with integrity is diminished" (at 365). One can see in that passage the concept, which recurs in the later Kable line of cases, of the integrity of the judicial institution.
In Kable, the discussion in Grollo was seen as being of considerable significance. Brennan CJ and Dawson J (both dissenting) held that the concept of incompatibility as elaborated in Grollo had no counterpart in relation to State courts, because of the absence of the separation of powers in State Constitutions (Brennan CJ at 67, Dawson J at 84 ‑ 85). Toohey J, however, held that the proposition enunciated in Grollo "holds good whenever Ch III of the Constitution is operative" (at 96).
Gaudron J (at 103 ‑ 104), having discussed the limitation on the powers of the federal Parliament which was explained in Grollo, noted that the limitation on State legislative power "is more closely confined and relates to powers or functions imposed on a State court, rather than its Judges ... and is concerned with powers or functions that are repugnant to or incompatible with the exercise of the judicial power of the Commonwealth". The notion of repugnancy to or incompatibility with the exercise of the judicial power of the Commonwealth is, however, very similar to that discussed in Grollo, and her Honour noted that the limitation on State power which she discerned in Kable was "closely related to the limitation on Commonwealth power to confer functions on judges of ... federal courts in their capacities as individuals". That was because in both cases, the limitation derived from the necessity to ensure the integrity of the judicial process and of the court specified in s 71 of the Constitution.
McHugh J, having discussed the proposition that State courts are part of an integrated system of State and federal courts for the exercise of federal judicial power, concluded that one of the basic principles underlying Ch III, and to which it gives effect, is that "the judges of the federal courts must be, and must be perceived to be, independent of the legislature and the executive government" (the footnote in that connection citing Grollo and Wilson: at 116). His Honour went on to apply the same principle to State courts, concluding that, in the case of State courts, that principle meant they must "be independent and appear to be independent of their own State's legislature and executive government as well as the federal legislature and government" (at 116).
Gummow J noted that the appellant pointed to the proposition considered in Grollo, which had as its objective to forestall the undermining of the efficacy of the exercise of the judicial power of the Commonwealth. The appellant sought to apply that doctrine to State courts, since they, too, exercised the judicial power of the Commonwealth (at 132). That was a proposition which his Honour accepted "in the broad" (at 126).
There are, of course, differences between the principle enunciated in Grollo and that discussed in Kable. In particular, because of the absence of any doctrine of separation of powers in State Constitutions, it would seem that no question of the consent either of the court or of individual judges would arise where the State Legislature conferred non‑judicial power on either the State Supreme Court or judges of the court. However, there are also significant similarities. Kable had as it foundational principle the proposition that, because State courts exercise the judicial power of the Commonwealth, it is not open to a Parliament to confer upon them functions which are incompatible with the proper discharge by the State Supreme Courts or individual judges of their responsibilities as an institution exercising federal judicial power. That is very close to the principle underlying Grollo.
Later cases which discuss the Kable principle are consistent with that view. It is necessary to mention only Fardon v Attorney‑General (Qld) [2004] HCA 46; (2004) 223 CLR 575. In that case, Gleeson CJ summarised the Kable principle as being that " ... since the Constitution established an integrated Australian court system, and contemplates the exercise of federal jurisdiction by State Supreme Courts, State legislation which purports to confer upon such a court a function which substantially impairs its institutional integrity, and which is therefore incompatible with its role as a repository of federal jurisdiction, is invalid" (at [15]). In the same case, Gummow J (with whom Hayne J agreed) considered that there was an analogy (although an "inexact" one) between the principle enunciated in Kable and the constitutional restrictions on the availability of Ch III judges to perform non‑judicial functions as designated persons (at [103]). Further, in Fardon, Gummow J considered that it was relevant that the Supreme Court in that case performed its functions independently of "any instruction, advice or wish of the legislative or executive branches of government" (at [116], citing Wilson, which, in turn, had applied Grollo).
If, as appears to me to be the case, there is a very close alignment between the principles enunciated in Grollo and those considerations which led the High Court to declare the legislation in Kable to be incompatible with the investiture in State Supreme Courts of federal judicial power, then cases concerning the persona designata concept are likely to provide assistance in determining when a relevant incompatibility with the investiture of federal jurisdiction may arise. In that context, it seems to me that, in this case, rather than referring to the circumstances of Kable, or any of the other preventative detention cases, assistance may be gleaned from the discussion in Wilson.
The facts of Wilson were, of course, very different from the facts of the present case. In that case, the Minister for Aboriginal and Torres Strait Islander Affairs had nominated, under s 10(1)(c) of the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth) a Federal Court judge as a person to report to him under that Act. The court held, applying Grollo, that s 10(1)(c) did not authorise the nomination of judges appointed under Ch III of the Constitution, since the function of reporting to the Minister under that provision was not constitutionally compatible with the holding of judicial office under Ch III. The reason for that conclusion was, broadly, that the performance of such a function by a judge placed the judge in the "echelons of administration". However, there is a discussion in that case of the way in which relevant incompatibility may arise which has relevance to s 76 of the CCC Act.
In discussing the question of when an appointment to non‑judicial office, or the performance of non‑judicial functions, would prejudice the capacity of Ch III judges to perform their judicial duties (that is, to exercise federal judicial power), Brennan CJ, Dawson, Toohey, McHugh and Gummow JJ said the following:
"The statute or the measures taken pursuant to the statute must be examined in order to determine, first, whether the function is an integral part of, or is closely connected with, the functions of the Legislature or the Executive Government. If the function is not closely connected with the Legislature or the Executive Government, no constitutional incompatibility appears. Next, an answer must be given to the question whether the function is required to be performed independently of any instruction, advice or wish of the Legislature or the Executive Government, other than a law or an instrument made under a law (hereafter 'any non‑judicial instruction, advice or wish'). If an affirmative answer does not appear, it is clear that the separation has been breached. The breach is not capable of repair by the Ch III judge on whom the function is purportedly conferred, for the breach invalidates the conferral of the function. If the function is one which must be performed independently of any non‑judicial instruction, advice or wish, a further question arises: Is any discretion purportedly possessed by the Ch III judge to be exercised on political grounds - that is, on grounds that are not confined by factors expressly or impliedly prescribed by law? In considering these questions, it will often be relevant to note whether the function to be performed must be performed judicially, that is, without bias and by a procedure that gives each interested person an opportunity to be heard and to deal with any case presented by those with opposing interests. An obligation to observe the requirements of procedural fairness is not necessarily indicative of compatibility with the holding of judicial office under Ch III, for many persons at various levels in the executive branch of government are obliged to observe those requirements. But, conversely, if a judicial manner of performance is not required, it is unlikely that the performance of the function will be performed free of political influence or without the prospect of exercising a political discretion." (at 17)

Connection with Executive functions

The first question, whether the function is "closely connected with" the functions of the Legislature or of the Executive Government apparently takes the form of a negative screen. That is, if the function is not so closely connected, no incompatibility appears. It may be that the first question is not determinative even if it is answered in the negative, although the passage quoted gives that impression. It is unlikely that, in the context of the facts in Wilson, their Honours contemplated the possibility of a function which, while unconnected with the Legislature or the Executive, would nevertheless be subject to instruction by the Legislature or the Executive in its performance. In any event, if there is such a close connection, then the next question arises.
The question of whether a function is "closely connected" with the functions of the Legislature or of the Executive Government is easier to enunciate than to answer. It seems that it would be necessary to look at the function in its whole context. So, to take the example of the CCC Act, punishment of contempt of the Commission (s 163) is in one sense a function in aid of the executive power which the Commission exercises. The threat of contempt proceedings, and of punishment for contempt, is a powerful incentive for those summonsed before the Commission to comply with its requirements. However, once the certificate is presented to the Supreme Court, the proceedings are thereafter conducted at arm's length from the Commission; the Commission is but a party in the proceedings, as is the alleged contemnor; and the contempt proceeding is not a step in any other course of action taken by the Commission. There is no "close connection" with executive power.
So far as the review function pursuant to s 76 is concerned, it appears to me that it may be described as closely connected with the exercise of executive power; or, at the least, I am not able to say that it is "not closely connected". It is a step in a process, initial and final stages of which involve the exercise of purely executive power. The Commissioner of Police applies for the fortification warning notice and the Corruption and Crime Commission issues that notice. The Commissioner of Police then, having considered any relevant submissions, either does or does not form the belief referred to in s 72(2). Those three steps are executive ones. The function of the court is one which may be performed either by the Executive or by a court. It is similar to the function of an administrative tribunal (eg, that of the AAT under the Freedom of Information Act1982 (Cth) s 58(5)). It is similar to, but more limited than, many internal review functions exercised by officers of government departments (eg, Freedom of Information Act s 54(2); Social Security (Administration) Act 1999 (Cth) s 126(1)). It is also, however, similar to the function performed on other occasions by courts (see the discussion in McKinnon v Secretary, Department of Treasury [2006] HCA 45; (2006) 80 ALJR 1549 at [9], per Gleeson CJ and Kirby J). The court's function is confined to the consideration of one very narrowly framed question. Unless the court determines that the Commissioner could not have reasonably had the belief required, the next step is that the court's function is ended and the notice simply has effect according to its terms. The Commissioner of Police then may or may not exercise the further powers available to him or her pursuant to Div 6 of Pt 4.

Direction by the Executive

If, as I think is the case, the court's function in "reviewing" the decision of the Commissioner of Police cannot be described as not closely connected with the functions of the Executive Government, the question which then arises is whether the court's function is required to be performed independently of any "instruction, advice or wish of the legislature or the Executive Government, other than a law or an instrument made under a law". In my view, the function conferred by s 76 is not required to be performed independently of any such instruction. On the contrary, the Commissioner of Police, an officer appointed by and answerable to the Executive (Police Act 1892 (WA) s 5) may identify information which he or she may require the court not to disclose to the applicant for review. That is, the legislation confers upon the Executive power to determine, in each individual case, how much of the information presented to the court the court may disclose to the opposing party.
Further, the direction which the Commissioner may effectively give to the court will often be critical to the court's ability fully and fairly to perform its function. Because the only question for the court is whether the Commissioner of Police could have reasonably had the belief required by s 72(2), the only material which will usually be relevant to such an issue will be the information which the Commissioner had before him or her, apart from the submissions of the applicant for review. There may be some room in the process for the applicant for review to provide additional information, on the basis that, even if it was not information which the Commissioner formally "took into consideration" (s 76(1)), it formed part of the background known to the Commissioner and which should have informed the decision; (for example, perhaps, the demonstrated previous unreliability of an informant). Generally, however, the applicant for review may not even be aware of the desirability of raising an issue of this kind, if information which could have alerted the applicant to a question of this kind is described as confidential under s 76(2).
Whatever the precise scope of the review, and the precise scope of the materials which might be relevant to such a review, it is clear that the ability of the Commissioner of Police unilaterally to determine that certain materials not be disclosed, has the effect that the judicial function, which would normally involve the affording of natural justice to the applicant for review, and of hearing from the applicant informed submissions relevant to the court's function, cannot be independently performed, but will be constrained to the extent that the Commissioner of Police identifies information as confidential, and thereby "instructs" that the information not be disclosed.
For completeness, I would note the two further questions raised in Wilson. The question as to whether the discretion is to be exercised on political grounds, I would answer in the negative, since the court would presumably decide whether or not the Commissioner of Police could have had the belief required by reference to those limited considerations identified in the CCC Act, and by reference to the facts before it. The final additional factor, which the court in Wilson described as "often relevant", of whether the function must be performed judicially, is a question I deal with in more detail in a moment.
In summary, it is my view that if one applies the principles enunciated in Wilson, then the consideration which is fatal to the validity of s 76(2) is that the court is required to determine the validity of Executive action in circumstances in which the procedure it adopts is dictated by a decision made (whether in good faith or not, or reasonably or not, is irrelevant) by an officer of the Executive, rather than by the court either applying a law or instrument made under a law, or exercising its own inherent jurisdiction to regulate its procedures.

Kable principle: other relevant considerations

Although the questions to which Wilson requires attention were, as I have noted, raised during the course of argument, they were not the primary focus. It is therefore, I think, appropriate that I turn to consider whether, if I am wrong in the conclusions that I have reached, the same result would flow if the relevant issues were framed as the appellant primarily sought to frame them.
As the Chief Justice demonstrates in his reasons in this case, which I have had the advantage of reading in draft, it is plain that the mere fact that a party is not able to have access to all the material which might assist it to present its case, or that a party might not have access to all material which is before the court, is not of itself sufficient to compel a conclusion that proceedings which fall to that extent short of the ideal are thereby rendered "antithetical" to the judicial process. Nor does it necessarily follow that, simply because the court is unable to provide reasons which are as intelligible as it would wish, the whole of the process is thereby rendered incompatible with the exercise of judicial power.
However, it is clear that there is some core notion of institutional integrity, and some minimum standard of compliance with the basic requirements of the "judicial process" (or at least compatibility with the minimal requirements of that process), departure from which will result in legislation which requires such departure being invalid for its incompatibility with the requirements of Ch III. Considerations of that kind are canvassed particularly in [89] and [92] of the reasons of Steytler P. The reasons for insisting upon the integrity of State courts as judicial institutions (rather than as institutions of some other kind) stem, it seems to me, from the principles underlying the doctrine in R v Kirby; Ex parte Boilermakers' Society of Australia(1956) 94 CLR 254 as explained, at 276 ‑ 277, per Dixon CJ, McTiernan, Fullagar and Kitto JJ (and see Forge v Australian Securities & Investments Commission (2006) 80 ALJR 1606 per Gummow, Hayne and Crennan JJ, at [56], per Kirby J at [185]). They suggest that Ch III of the Constitution requires protection of the independence and impartiality of the judicial process, without which the supremacy of the rule of law could not be ensured.
In considering the question of what kind and degree of independence and impartiality is required, independence from the Legislature and the Executive, and impartiality as between the Executive and other litigants, would appear to be of particular significance, having regard to the source of the principle. As Gummow, Hayne and Crennan JJ recently noted in Forge (at [63]):
"Because Ch III requires that there be a body fitting the description 'the Supreme Court of a State', it is beyond the legislative power of a state so to alter the constitution or character of its Supreme Court that it ceases to meet the constitutional description. One operation of that limitation on state legislative power was identified in Kable. The legislation under consideration in Kable was found to be repugnant to, or incompatible with, 'that institutional integrity of the state courts which bespeaks their constitutionally mandated position in the Australian legal system'. The legislation in Kable was held to be repugnant to, or incompatible with, the institutional integrity of the Supreme Court of New South Wales because of the nature of the task the relevant legislation required the court to perform. At the risk of undue abbreviation, and consequent inaccuracy, the task given to the Supreme Court was identified as a task where the court acted as an instrument of the executive. The consequence was that the court, if required to perform the task, would not be an appropriate recipient of invested federal jurisdiction."
(and see Kirby J, at [218]).
I would note in that connection, that it has been argued that the independence and impartiality of judges (which, in turn, are necessary to ensure that the law is impartiality administered) exist not because of the character of individual judicial officers, but because the judicial system of which they are a part structurally fosters and develops the habits of impartiality and independence (see Campbell "An Examination of the Doctrine of Persona Designata in Australian Law" (2000) Australian Journal of Administrative Law, vol 7, 105 at 112). If it is possible that the conferring upon judges of functions which require a departure from that impartiality which is normally a hallmark of the judicial process may have the effect that judges, as individual human beings, are less inclined as a matter of habit to act in an impartial and independent way, that is a further, although subsidiary, reason for concluding that only functions which are not wholly alien to the core principles of the judicial process may be conferred upon State judges. It is in that context, it seems to me, that departures from the essential nature of the judicial process, of a very significant kind, are seen as relevant: see the factors referred to by Steytler P at [92].
Descending from the level of abstraction to the concrete provisions of s 76 of the CCC Act, it appears to me that there are a number of aspects of the procedure there described which, taken together, have the result that s 76 is "antithetical" to the judicial process, leading to the result that at least s 76(2) is invalid by reason of the Kable principle.
The features which in combination have that effect are these. The Commissioner of Police, who is an officer of the Executive Government, decides conclusively what information the court may publish or disclose, both to a party to litigation and (in any reasons which may be published) to the public at large. That Executive decision, once made, has the potential significantly to disadvantage the individual litigant opposed to the Executive. The respondent to an application in the Supreme Court (the Commissioner of Police) is empowered conclusively to determine whether and to what extent information which that party makes available to the court can be disclosed to the opposing party. The court is required to make a determination affecting the property rights of a party in circumstances in which that party may have had no opportunity whatever to consider (even in a summarised or truncated way) the material put against it. Finally, the court's ability to provide intelligible reasons for its decision, or otherwise to perform its functions in that public way which is generally the hallmark of justice is impaired or destroyed, because of the court's inability to disclose material which may be critical to its determination. It may be that no one of these factors individually would be sufficient. However, it seems to me that collectively they represent such a departure from the requirement of independence of the Executive and such a departure from that impartiality which is the hallmark of the judicial process, as to render the legislation invalid.
For completeness, I would note that one (beneficial) consequence of the constitutional protection of the rule of law and of the impartiality of the judicial process, is that the electorally accountable branches of government (the Legislature and the Executive) are not able to pass off their decisions as judicial ones. That perhaps explains why one of the indicia of invalidity is sometimes said to be that the judiciary's reputation for impartiality is the subject of an attempt to "borrow" it "by the political branches to cloak their work in the neutral colours of judicial action" (Grollo at 366, 377, 392; Kable at 133; Wilson at 9). That is not because the constitutional principle is concerned with ensuring the accountability of either the Legislature or the Executive, but because it is concerned to guarantee the rule of law which is essential to a system with a written Constitution. Given the very limited role for the court in the review process pursuant to s 76, there was some discussion of that question in this case, but it is not necessary to consider it.
It is, at this point, desirable to note the propositions with which these reasons are not concerned. I do not doubt that Parliament need not confer upon a party affected by administrative action any right at all to have that action reviewed, or made subject of an appeal. I accept that, as a general proposition, it is desirable that there be some review of the exercise of Executive power, especially where it affects the rights of individuals; that, in practical terms, limited review is better than no review, and that judges are well suited by training to undertake such review. I do not doubt that, in any litigation, it may be necessary to limit the evidence which can be placed before the court, or to limit the access of the public to the proceedings or to limit the access which a party can have to some material relevant to the proceedings, or the way in which a party may have access to that material. However, it does not follow, in my view, that, because there may be valid reasons for legislation, the legislation is therefore necessarily valid. Nor, conversely, is it the case that legislation is only valid if it involves the least departure from the usual standards of fairness and impartiality which is practical in the circumstances.
Rather, as Gummow J observed in Fardon (at [104]), the question of whether there is a relevant incompatibility with the exercise of federal judicial power requires "close attention to the detail of impugned legislation", and the critical notion of incompatibility is "insusceptible of further definition in terms which necessarily dictate future outcomes". Questions of degree necessarily arise and, although I am aware of the competing considerations, my own impression is that the concatenation of factors to which I have referred is such that the relevant incompatibility is established in the present case.

Severability

There would remain, if mine were the view favoured by the Court, the question of severability. Because other members of the Court are of the view that the impugned legislation is valid, it is not necessary for me to consider that question. If it were necessary to do so, it appears to me that, giving effect to s 7 Interpretation Act 1984 (WA), s 76(2) is severable both from s 76 and from the remainder of Div 6 Pt 4 of the CCC Act. The invalidity and severance of that provision would not mean that information which might prejudice the operations of the Commissioner of Police would be disclosed. Rather, that question would fall to be determined by reference to the doctrine of public interest immunity. If information had the potential so to prejudice the operations of the Commissioner of Police that considerations of public interest immunity dictated that it should not be disclosed, it would not be made available to the applicant, would not be admitted as evidence in the proceedings, and the court would not have regard to it. In some cases, that might mean that the court would be unable to conduct an effective review. However, the legislation would not thereby be rendered unworkable, although there would be some cases in which the result of the review might be different from that which would follow if the court were able to have regard to all of the information which was before the Commissioner of Police.
If s 76(2) is not severable, then my view would be that the whole of Div 6 - rather than s 76 alone - would be invalid. That is simply because an unreviewable exercise of Executive power is different, both in principle and in practice, from one which is subject to some form of independent review. I am fortified in that conclusion by the numerous references in the Parliament Debates to the existence of a right of review, and the importance which those members who participated in the debate apparently placed upon the existence of that right: see, for example, Parliamentary Debates (Legislative Assembly) 6 November 2001, page 5041, 27 November 2001, page 5901 and 29 November 2001, page 6177 ‑ 6178.

Conclusion

In my view, question (b) of the questions referred, which reads, "... is subsection 76(2) of the Corruption and Crime Commission Act 2003 (WA) valid?" should be answered, "No". Tentatively, it would be my view that the remainder of s 76 and the remainder of Pt 4 of Div 6 of the CCC Act is valid, but it is not necessary for me finally to determine these questions.