Gypsy Jokers Motorcycle Club Incorporated v Commissioner of Police

[2007] HCATrans 297

[2007] HCATrans 297

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Perth  No P9 of 2007

B e t w e e n -

GYPSY JOKERS MOTORCYCLE CLUB INCORPORATED

Applicant

and

THE COMMISSIONER OF POLICE

Respondent

Application for special leave to appeal

KIRBY J
HAYNE J
CRENNAN J

TRANSCRIPT OF PROCEEDINGS

FROM CANBERRA BY VIDEO LINK TO PERTH

ON FRIDAY, 15 JUNE 2007, AT 10.05 AM

Copyright in the High Court of Australia

MR D. GRACE, QC:   If the Court pleases, I appear with MR M.K. MOSHINKSKY for the applicant.  (instructed by Williams Ellison)

MR R.J. MEADOWS, QC:   If the Court pleases, I appear with MR R.M. MITCHELL for the respondent.  (instructed by State Solicitor’s Office - Perth)

KIRBY J:   Yes, Mr Grace.  

MR GRACE: Your Honours, state legislation which purports to confer upon a State Supreme Court a function which substantially impairs its institutional integrity is incompatible with that court’s role as a repository of federal jurisdiction and is therefore invalid. This Court has not previously considered whether legislation which requires a State Supreme Court to act in a manner which has the potential to result in a serious denial of natural justice and antithetical to the judicial process is incompatible with the institutional integrity of the State courts required by Chapter III of the Constitution. It is submitted that this case therefore raises an important principle, an issue of constitutional principle, not merely an application of established principles to the facts of this case. Could I take your Honours to the case of Fardon?

HAYNE J:   Before you do that, could you state in a sentence or two what it is that is the essence of the departure from natural justice that you say leads to the conclusion that follows?

MR GRACE:   Yes, I can.  I can do so together with referring to exactly what his Honour, the President of the Court of Appeal, outlined in the court below.  Could I take your Honours to the matters that he commences to outline at paragraph 87 where he discusses the definition of institutional integrity and then over the page at paragraph 89 on application book page 45 he sets out the various principles:

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 . . . institutional impartiality, and the appearance of it, must not be compromised –

Ad hominem legislation, paragraph 91, which does not apply here.  Paragraph 92, the antithetical nature of the legislation to the judicial process.  In paragraph 92 over on to page 46:

the fact of a public hearing; application of the rules of evidence; the existence of a discretion, where appropriate; provisions with respect to the onus and standard of proof; an obligation to afford natural justice; an obligation to make proper disclosure; an obligation (and ability) to give reasons; and the existence of a right of appeal.

Now, most of those features apply to the legislation and the process in question here.

KIRBY J:   Where does Justice Wheeler in dissent put her finger on what she found was the Kable offensive feature of the legislation?

MR GRACE:   At paragraph 159 on page 72.  If I could read at the bottom of page 71 at paragraph 158:

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 ‑ ‑ ‑

KIRBY J:   Can I just interrupt to ask there – I do not know because we have not looked at it, but I have seen reports and law review articles that mention in some terrorism legislation there is similar provision in the federal context.  Do you know of that legislation?

MR GRACE:   Yes, I do.  But in that legislation there is the ability for the accused person to be represented at the hearing of evidence in camera that relates to sensitive security issues.  Now, the ability of that counsel to represent that accused depends upon that counsel having a security clearance.  A security clearance process is offered to counsel to accept or reject and similar to the situation that arose in MAK which was the unsuccessful applicant for special leave which is relied upon by the respondent in this case.  There, you may recall, in the New South Wales legislation there is now an inability of an accused person to directly cross‑examine a complainant in a rape case although ‑ ‑ ‑

KIRBY J:   Yes, I remember that.  I think I sat on that.

MR GRACE:   Yes.

HAYNE J:   Under this legislation, is it open to the court to deal with information identified by the Commissioner of Police by saying that the parties may not have access to it but their counsel may on terms as to confidence?

MR GRACE:   No.

HAYNE J:   What is it that forbids that because that seems to be an important step that is wrapped up here?

MR GRACE:   Could I take your Honours to page 38 of the application book where the section is conveniently set out.  Section 76(2) reads as follows:

The Commissioner of Police may identify any information provided to the court for the purposes of the review as confidential if its disclosure might –

I want to emphasise the word “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.  

KIRBY J:   I interrupted you reading.  In the back of my mind was the question of whether or not it might be better for the Court to wait until those federal matters come up which will raise, in the federal context, the issue that you are presenting under this head of your argument but it seems to be appearing now in State legislation as well.

MR GRACE:   Yes, and it is a different process in the federal arena because the accused is not shut out from having representation and access to the material provided ‑ ‑ ‑

HAYNE J:   The representative has access, not the individual.

MR GRACE:   Yes, and there is a scheme of special advocates or special counsel available for that purpose.

KIRBY J:   Yes.

CRENNAN J:   Mr Grace, while we are on section 76 what I wanted to ask you was this, I understand, readily, your complaint about subsection (2) but are you really complaining about the balance of the section?  I would have thought it is most desirable that there be a review provided for in relation to a fortification removal notice.

MR GRACE:   Yes.

CRENNAN J:   So in fact the leave which is being sought is that confined to the operation of 76(2)?

MR GRACE:   Section 76(2), yes.

CRENNAN J:   Yes, thank you.

MR GRACE:   If I could return to page 72 of the application book and paragraph 159 at about line 12:

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.

We rely upon it.

KIRBY J:   Yes, we might give you a little bit of a break for the moment, Mr Grace, and call on Mr Solicitor.

MR GRACE:   Yes, thank you.

KIRBY J:   Here we have an interesting problem, Mr Solicitor.  We have – if I can say so, respectfully – very good reasons from the Court of Appeal, a

dissenting opinion from Justice Wheeler, a suggestion of some difference in approach of the Queensland Court of Appeal and the Western Australian majority and an issue that is apparently going to become much more common in the law, so does it not all have the smell of special leave?  I do not expect you to agree, but ‑ ‑ ‑

MR MEADOWS:   I say it is not for me to smell, your Honour, it is whether your Honours smell.

HAYNE J:   Do not follow the analogy, Mr Solicitor.  You are in deep water.

MR MEADOWS:   I seem to do that fairly often.  With respect to your Honour Justice Kirby, it does have all of the features which you have outlined, however, as we have sought to maintain in our submissions, we would submit that it involves the application of an established principle which has been correctly applied by the majority.  We start from the position that it would be open to a State Parliament to make a law for the confiscation of property without any constitutional requirement that it be on just terms.  It could simply provide for the removal of a fortification from the property in much the same way as if a local bylaw, for example, prescribed the height of a fence, the local council could direct by notice that it be removed and that if it was not removed it could be removed without any compensation.

KIRBY J:   That would not normally be done with secret evidence, just removing a fence.

MR MEADOWS:   The legislature need not provide any form of remedy under the legislation by way of review of that decision and it would be open, of course, to the party aggrieved to seek judicial review relying on the prerogative writs or relief by way of a declaration or an injunction but in that particular instance, of course, questions of public interest immunity could easily arise.  In that event, we would submit that the aggrieved party would in fact be worse off than the aggrieved party under this legislation is when it has the opportunity to undertake proceedings for a review under section 76.

HAYNE J:   Mr Solicitor, can the provision of 76(2), which is the one central to the present application, be engaged in respect of any issue other than the issue presented by section 72(2)(b) as reproduced at page 36 of the application book?  Section 72(2)(b) provides as a condition for the issue of such a notice a reasonable belief of the Commissioner that the premises are “habitually used as a place of resort by” persons of the kind described in 72(2)(b).  Could the 76(2) information go to any issue other than that?

MR MEADOWS:   No, I would suggest, your Honour.  Certainly whether the premises are heavily fortified would not involve any issue which one would expect would require the Commissioner to determine that the information should not be made available.  What we say is that section 76 provides a procedure which is analogous to an application for judicial review and, indeed, in some respects is more generous than would be available on an application for judicial review on Wednesbury unreasonableness grounds, for example, because in such a case it would be open to the respondent to claim public interest immunity in which circumstance, of course, the Court would have the opportunity of viewing that material in order to determine whether the claim was properly made.  But if the Court were to determine that it had been properly made, it could not take regard of that information in making its determination, whereas here, as the court below held, it is implicit in section 76 that all of the information on which the Commissioner relied is placed before the court and so that the court ‑ ‑ ‑

KIRBY J:   The only problem is that as public interest and Crown immunity developed in the last half century that the court effectively had the last say, whereas this legislation really gives the Commissioner of Police the opportunity to, in a sense, control the use that is made by a Supreme Court which is a constitutionally guaranteed court in the nation and the use that that court may make of it is not left to that court’s wisdom and discretion which is where I think we have ended up on Crown immunity and public interest immunity but it is really just a bar and the Commissioner of Police’s discretion has the last say, which is what is said to be at least offensive to past practice and, it is said, to constitutional principle.  It is something new.

MR MEADOWS:   It is something new but, as I have suggested to the Court, it in fact puts the Court in a better position than it would be if the material in question was the subject of public interest immunity.  So, in a situation such as this the type of information that one would expect would be withheld is information about an informant or information in relation to some operational investigation which was still to be completed which ‑ ‑ ‑

KIRBY J:   The Courts have always been very careful in the use that they make – I think without any exception that I am aware of – of informant evidence and instead of leaving it to the wisdom of the Court and indeed of the constitutionally established Supreme Court of the State, it is left to an officer of the Executive Government, the Commissioner of Police and the suggestion is, well, that does not look good and it looks as though the Commissioner is, as it were, standing over the court and this is something new and at the very least the High Court of Australia should look at it and see whether that is conformable to the Kable line of authority.

CRENNAN J:   A related point, I think, is that with public interest immunity arguments directions can be given which will enable the court to have the assistance of counsel.

MR MEADOWS:   I accept that there is no provision here which would enable an independent advocate to assist the court and have access to that information, but nevertheless ‑ ‑ ‑

KIRBY J:   There is a very good decision of the English Court of Appeal, Lord Woolf was the presiding judge, where it was a case of a man from Libya and he declined to have anything to do with the special advocate under the English legislation but in the end it was the special advocate’s role in the court that led to the order for his discharge and he thought that the special advocate was just another Sir Humphrey invention but in fact the special advocate won the case for him, without any help from him.  This is really a tricky area of the law and it seems as though, for the reasons that Justice Wheeler has said, it is deserving of the High Court’s attention.

MR MEADOWS:   Of course we are in the Court’s hands on that question but it still would remain for the Court to make an independent assessment on all of the evidence, some of which, as I have said, would not have been before the Court if a claim of public interest immunity had been upheld.  There is no suggestion, we would submit, that the Court’s ultimate decision is affected by anything that the Executive might do.  Ultimately, the interference with the property rights of the applicant is wholly the product of both legislative and Executive action.  It is the decision of the Commissioner to issue the fortification notice and it is the existence of the fortification notice which would require the applicant to do something. 

The Court is not placed in a position similar to that in Kable or, indeed, the case of Silbert, with which the Court will be familiar, where it was the Court’s order itself which authorised the interference with rights.  All that the Court is required to do is to conduct a limited review of the executive action taken by the Commissioner and to determine whether there were reasonable grounds for taking that action at the time it was made.  We would submit that the decision of the majority was correct.  I do not think I can assist the Court any further.

KIRBY J:   Yes, thank you, Mr Solicitor.  Mr Grace, the Court is minded to grant special leave in this matter.

MR GRACE:   If the Court pleases.

KIRBY J:   Is it a one‑day matter would you estimate?

MR GRACE:   Yes, subject to interventions by the States it may make it go longer.

KIRBY J:   Yes.  Do you agree with that, Mr Solicitor, that it is one day?

MR MEADOWS:   Definitely, your Honour, even with interveners.

KIRBY J:   Yes, but they are not all as prudent as you are, Mr Solicitor.  Some of them can waffle on a bit.

Very well, we will grant special leave in this matter.  We note that it is a one‑day case and it should be heard by the Full Court.

MR GRACE:   Yes, thank you, your Honour.

MR MEADOWS:   May it please the Court.

AT 10.27 AM THE MATTER WAS CONCLUDED