Gypsy Jokers Motorcycle Club Incorporated v The Commissioner of Police
[2007] HCATrans 551
•28 September 2007
[2007] HCATrans 551
IN THE HIGH COURT OF AUSTRALIA
Office of the Registry
Perth No P26 of 2007
B e t w e e n -
GYPSY JOKERS MOTORCYCLE CLUB INCORPORATED
Appellant
and
THE COMMISSIONER OF POLICE
Respondent
GLEESON CJ
GUMMOW J
KIRBY J
HAYNE J
HEYDON J
CRENNAN J
KIEFEL J
TRANSCRIPT OF PROCEEDINGS
AT CANBERRA ON FRIDAY, 28 SEPTEMBER 2007, AT 10.05 AM
(Continued from 27/9/07)
Copyright in the High Court of Australia
GLEESON CJ: Yes, Mr Jackson.
MR JACKSON: Your Honours, there are a number of matters I wish to deal with, all of which are short. The first concerns the question of compensation. One of our learned friend’s arguments notes, of course, that no compensation is provided for. That is, with respect, nothing new in State laws. We have referred to the relevant cases in our written submissions in paragraph 41, including, of course, this Court’s decision in Durham Holdings v New South Wales, in which that proposition was confirmed.
We would also say this, that as we have submitted earlier, it would have been open to the State to have excluded judicial review altogether, at least so long as the exclusion was subject to the Hickman principle. We referred your Honours to Darling Casino Ltd v NSW Casino Control Authority yesterday. If that had been so, the Kable principle could have had no application at all because one would not have been talking about courts.
Equally, another course that would have been open would have been for the State to have provided for material identified as confidential to be excluded entirely from any review with the result that, in many cases, the review would be, as a practical matter, frustrated at least to some extent. But the provisions in question avoid those results, in our submission, without compromising the confidentiality of the material by requiring the Commissioner to place all relevant material before the court for the court’s independent assessment.
Your Honours, that role, and the reasons underlying it, is similar to the justifications given for conferring functions in relation to, say, the issue of warrants on federal judges. Could I, in that regard, refer your Honours to what was said in the Court in Grollo v Palmer (1995) 184 CLR 348. I wanted to refer your Honours to the joint reasons at the bottom of page 365. Your Honours will see the submission that was made in the last paragraph on page 365, going over to the top of the next page. Then at the bottom of page 366 it says:
If the issuing of interception warrants were reasonably to be regarded as a judicial participation in criminal investigation, it would be a function which could not without compromising the judiciary’s essential separation from the executive government.
Then it goes on and your Honours will see the next few sentences going down to about point 2 or 3 on the page and the observation then made in the last few lines of that paragraph:
The decision to issue a warrant is, for all practical purposes, an unreviewable in camera exercise of executive power to authorise a future clandestine gathering of information. Understandably a view might be taken that this is no business for a judge to be involved in, much less the large majority of the judges of the Federal Court.
Your Honours will see if one goes to the next paragraph the justification contained in it – I will not read it out but invite your Honours to read the whole paragraph, and in particular, at the end of the paragraph, the reference to the:
judges’ function of deciding independently of the applicant agency whether an interception warrant should issue that separates the eligible judge from the executive function of law enforcement. It is the recognition of that independent role that preserves public confidence in the judiciary as an institution.
Those observations have some kinship with the underlying considerations here. What we would say about is that that case recognises that a federal judge may be given a function as persona designata which involves intrusions on property rights where the affected person is given no opportunity to address the judge or address the material relied on by the party seeking the order.
KIRBY J: I notice that in Grollo at 366 there was a citation of that passage in Mistretta about the political branches cloaking their work in the neutral colours of judicial action and it was cited with apparent approval.
MR JACKSON: Yes. Your Honour, could I just say that practices vary from time to time, but for many, many years the judges of the Supreme and District Courts, for example, and Magistrates Courts of the States have been given by statute, or required by statute, to perform functions which are of an executive nature, for example, judges being persons who were members of or presidents of tribunals which had a legislative function, or quasi‑legislative in the nature of industrial tribunals, and judges occupying positions in relation to bodies which grant licences of various kinds and permits for the future and an example commonly used of magistrates in particular areas being, by virtue of hospital acts and the like, chairman of the local hospital board.
Now, the reason for that, your Honours, does have an affinity with what is said in Mistretta but one of the reasons for it is that it is recognised that the nature of the basal office held by the judge, that is, as a judge, is one that is likely to carry with it the quality of fairness and impartiality that can be usefully brought over to the administration of some public affairs. To do those things does not by any means compromise the integrity of the court, membership of which gives the judge or the magistrate the title and role that enables them to fulfil that and that is one of the features of State administration, as I said, something that varies or the attraction of it can vary from time to time, but it is one of the features of State administration that differs in a sense from the position of the federal judiciary but, of course, even in relation to the federal judiciary one has the persona designata doctrine which is manifest in cases like Grollo and the offices given by virtue of Grollo.
The point I am trying to make, your Honour, I am sorry, in a rather long‑winded way is to say that not all the concepts involved in Mistretta and the observation of saying that the authority and esteem of judges is carried over is a bad thing or is necessarily a bad thing. So, your Honours, one should not treat the constitutional division in Chapter III as being the only approach to these matters. Certainly it is the approach required for federal courts but that is a value that the Constitution enshrines, but it does not enshrine such a value as the only test that is relevant so far as State courts are concerned.
KIRBY J: I do not have clear in my own mind how one reconciles, on the one hand, Justice Gaudron’s strong statement that we do not have two qualities of justice in the courts of this country and, on the other hand, the statements that have been made many times which you are now referring to that the States are not subject to the same rigid or more rigid requirements that the federal judicature is.
MR JACKSON: If one looks at what Justice Gaudron has said in those cases, they really relate to what one might regard as being the core aspect of the performance of judicial function strictu sensu and the core aspect of it being the requirement for impartiality and fairness, or perhaps I should also say, non‑partiality, impartiality and fairness. That is what, with respect, her Honour is speaking about. No doubt in relation to some manifestations of that one can go a little further but the ‑ ‑ ‑
KIRBY J: Is not a core aspect the giving of truthful reasons for the decision of the judicial officer?
MR JACKSON: Osmond would say otherwise, your Honour, with respect. I am going to come to that.
KIRBY J: I am not sure of that. Chief Justice Gibbs in that case, which I remember so well, said that the giving of reasons by judges is an attribute of the judicial function. There is no doubt that in certain matters you do not have to give elaborate reasons or formal reasons but the giving of reasons is an attribute of the judicial process. I think that is said in Osmond.
MR JACKSON: Your Honour, what his Honour said in Osmond 159 CLR 656 was that – Chief Justice Gibbs’ reasons and I think three other members of the Court agreed with that, Justices Wilson, Brennan and Dawson. It commences relevantly at page 666 and the passage is about point 7 or 8 on the page where his Honour said:
It has long been the traditional practice of judges to express the reasons for their conclusions by finding the facts and expounding the law . . . and there have been many cases . . . in which it has been held that it is the duty of a judge or magistrate to state his reasons. That does not mean that a judicial officer must give his reasons in every case; it is clear, to use some of the words of Woodhouse P. in Reg. v. Awatere, that there is no “inflexible rule of universal application” that reasons should be given for judicial decisions.
If I could just pause to say the discussion in the New Zealand case to which his Honour was referring was one that discussed the practicalities of doing so in relation to cases where a lot has to be done at once, where there are some requirements, for example, some rulings in criminal trials, there is a wide variety of matters in which as a practical matter reasons might not unappealably have to be given. His Honour then goes on to say:
Nevertheless, it is no doubt right to describe the requirement to give reasons . . . as “an incident of the judicial process”, subject to the qualification that it is a normal but not a universal incident.
KIRBY J: That means it is a normal attribute of the judicial process and their Honours were approving Pettitt v Dunkley which I always thought was the first statement, but there was in fact an earlier 1957 Victorian Full Court decision which was to the same effect, that judges just could not announce at the end of their decisions, “This is my resolution”, and I knew judges in those days who would do that and that was corrected in New South Wales by Pettitt v Dunkley, earlier in Victoria, and approved in Osmond.
MR JACKSON: Yes, your Honour.
KIRBY J: The point of Osmond was that administrators were not subject to the same requirements.
MR JACKSON: Your Honour, could I say I would simply take the words that were used in the judgment to say that it is a normal but not a universal incident. Your Honours, those principles are ones derived from the general law and there is no reason, in our submission, why it is not within legislative power to make some amendment to them. It may be that there are amendments that could be made that are so radical in their nature and removed, root and branch, as it were, some of the ordinary attributes of judicial power, as to judicial power or acting as a judge or arbitrator or something of that kind that would go beyond that.
All one has in the present situation is that it may be in some cases that some aspects of the reasons could not be stated in the very fullest form that they might otherwise be stated if some information was the subject of section 76(2). It does not follow, your Honours, that one is looking at section 76(2), it does not follow at all that it is going to have an application in every case and the extent of the application in any case will depend on the particular circumstances.
Your Honours, even if one took what we would submit would be the less appropriate view of the provision and said that its consequence was that on any occasion when it applied the reasons could say nothing about those – nothing about a particular point – it would not follow in our submission that the result would be that the provision would be invalid in every application. Could I return to Grollo for a moment and say this. That decision appears to contemplate that a federal judge may be given a function as persona designata which involves intrusions on property rights where the affected person is not given an opportunity to address the judge or address the material relied on by the party seeking the order.
If the performance of that function by a federal judge in that manner is not inconsistent with the exercise otherwise of federal jurisdiction by the court or by that judge as a member of the court, then in our submission there is no reason why the exercise of a function by a State court exercising non‑federal jurisdiction by reference to material not disclosed to a party is necessarily incompatible with the exercise of federal jurisdiction by that court.
Your Honours, I think I put that a little too obliquely. What I am seeking to say is if you take a judge of a Federal Court who has to exercise ex hypothesi federal jurisdiction and the judge is also given functions as persona designata and the functions are of the kind to which I have referred and it is not incompatible with the judge being given those functions for the judge to be a member of a court which then does federal jurisdiction, it seems very strange to say that the Supreme Court of a State which does not have the division brought about by Chapter III is in a position where it cannot be a court that can exercise federal jurisdiction because a judge has to do much the same thing.
KIRBY J: You are referring to the fact that federal judges authorise telephonic interception?
MR JACKSON: Yes.
KIRBY J: But is not Grollo a little bit uncertain in the light of Wilson?
MR JACKSON: Your Honour, it has not been overruled.
KIRBY J: I realise that, but it has not come before the Court.
MR JACKSON: We would simply, even if one takes Wilson in that regard, Wilson ultimately is saying that a person cannot really be subject to dictation, as it were.
KIRBY J: I do not think Justice Matthews was subject to dictation in Wilson.
MR JACKSON: By reference to the report, I meant, your Honour. Wilson is 189 CLR 1. When I said “dictation” I was referring to the ‑ ‑ ‑
KIRBY J: Perhaps I should not require you to take time up on that. I mean Grollo stands, Wilson stands, and we just have to work out how the two work together.
MR JACKSON: I thank your Honour. If the Court wanted to hear more about that, could we put it in writing because it is a rather major question. Could I just say that there may well be other means of achieving the objectives of the impugned provision – use of special advocates. A lot of things can be worked out, but what we would submit is that the fact that there are other means does not deny that section 76(2) is a legitimate means of achieving the objective or that regard can be paid to the objective when assessing the effect of the provision.
Your Honours, if I could say, insofar as the institutional integrity issue is concerned – we would simply say that there are a number of considerations that militate in favour of the view that the impugned provision does not so compromise the institutional integrity of the court.
KIRBY J: Forgive me for going back to the point that you mentioned before, but Grollo talks about the federal judge being authorised to permit telephonic intercepts as persona designata, but here you have a jurisdiction which is conferred not on a State judge as persona designata. There is a suggestion that extradition decisions are conferred on State magistrates as personae designatae, but whether it is conferred on the Supreme Court, a constitutional court as a court – so it is not really fully analogous.
MR JACKSON: No, your Honour, I think I have not made sufficiently clearly the point I was seeking to make. It is this, that if one takes the Federal Court and the functions conferred on a judge as persona designata, the reason for having that concept is because the judges of the Federal Court are subject directly to Chapter III and the terms of Chapter III require that the powers of Federal Courts are powers which are judicial.
That being so, but other powers being other powers not capable of classification as judicial being given to judges of the Federal Court, the question which arises is whether the obligation to Federal Courts to exercise only judicial power is one that is compatible with the conferral of the administrative powers on judges of that court.
The position having been reached that the two are compatible, one sees that that is something that is compatible with Chapter III. If one sees in relation to State courts where the imperative that judicial power only be exercised does not exist, and one sees in relation to State courts that judges are given a power which is akin to – I do not say exactly the same as – but akin to the types of things that it is regarded as not inappropriate for federal judges to do, albeit not judicially, then the view that the conferral of those powers is in some way the conferral of powers which compromise the institutional integrity of the court should not be drawn, the conclusion that that is so should not be drawn. Your Honour, that is the point I am seeking to make.
Your Honours, could I just say that if one tries to summarise the considerations that militate against taking the view that the impugned provision of section 76(2) does not compromise the institutional integrity of the court in relevant respects, one sees there is a number of things: the reasons for the impugned provision; the nature of the rights interfered with; the limited nature of the task the court is required to perform; the requirement that the court have all the relevant factual material before it; the nature of the function that is to be performed is one that is somewhat akin to Wednesbury unreasonableness and that the actual affectation of rights is not by an order of the court but by executive action.
Could we add a reference to what we have said in our written submissions in paragraphs 49 and 50, pages 13 and 14 to the effect that even if section 76(2) were not consistent with the exercise of judicial power it does not follow that the provision is invalid and it does not follow because at State level the need for the division does not, in relevant respects, exist – could we refer particularly to paragraph 50 of our written submissions.
Could I just say something more, your Honours, about the persona designata issue into which I have moved a little this morning. We refer to that in our written submissions at paragraphs 59 through to 62. What has to be borne in mind - and when I say the persona designata issue, I should introduce it by saying the reliance of my learned friends and Justice Wheeler on some analogy - what needs to be borne in mind is that that doctrine, on the one hand, and the Kable doctrine on the other, do in a sense start from different theoretical bases.
The persona designata doctrine is necessary because of the separation of judicial power by Chapter III, no such need arises in the case of the States. The Kable doctrine has a different foundation which your Honours will see referred to in paragraph 60(a) of our written submissions. If an analogy is to be drawn then, in our submission, for the reasons we have set out in paragraph 62 of our written submissions, Grollo supports the respondent’s case.
Your Honours, could I move then to one thing about reasons and I think I have said, in a sense, what I wanted to already this morning. We would submit that if one looks at the Public Service Board of NSW v Osmond then the Court in section 76(1) proceedings may still express its reasons to the extent necessary without disclosing the detail of the confidential material.
Your Honours, may I mention one matter and give one further reference in relation to the provisions of the Supreme Court Act. Your Honour, Justice Gummow referred yesterday to the provisions of the Supreme Court Act. Could I just mention that section 76(7) of the Act presently in question, and that is the Corruption and Crime Commission Act, section 76(7) is the provision which says that the decision is final. The reason why it is expressed in that way, quite apart from any other effect it might have, is in a sense to engage section 60(1)(c) of the Supreme Court Act which has the effect of excluding an appeal which would otherwise lie from a single judge to the Court of Appeal and, of course, section 76(7) is not talking about appeals to this Court under section 73, nor could it of course, as the Court has noted in a number of cases, but BHP v Schultz 221 CLR 400 at page 433, paragraph 55.
KIRBY J: So it is only final in the sense of final as against interlocutory, is it?
MR JACKSON: When it says the decision is final it means final in the sense of no appeal from it.
KIRBY J: If it is a decision or judgment or order of a Supreme Court it must be subject to this Court’s appeal.
MR JACKSON: Your Honour, that is what I said, that is the qualification I added a moment ago, with respect.
KIRBY J: What is the section of the Supreme Court Act that you are referring to. I did not catch the section.
MR JACKSON: Section 60(1) says:
No appeal shall lie to the Court of Appeal –
(c)from a decision of a judge or a master where it is provided by any Act that such decision is to be final -
Your Honour, all I was doing in relation to it was saying that in addition to any connection there might otherwise be between the Supreme Court Act and the Corruption and Crime Commission Act, one does need to look at section 61(c) which completes the picture.
Your Honours, your Honour Justice Hayne yesterday referred to Russell v Russell (1976) 134 CLR 495. That case concerned relevantly the validity of section 97(1) of the Family Law Act. That provision was one which had a practical effect in the time between the enactment of the Family Law Act and the time when there were, to put it shortly, sufficient Family Court judges to exercise the jurisdiction of that court and when much of the jurisdiction was in fact exercised by the Supreme Courts of these States.
Section 97(1) was the provision which provided that all proceedings in the State courts exercising federal jurisdiction under that Act should be heard in private. That provision was held invalid but the reasons of the majority appeared to recognise that a statute might, in appropriate cases, when it was thought by the legislature to be appropriate to do so, command a different result. May I simply give your Honours the passages without going to the detail of it: Chief Justice Barwick at page 505 at point 8 on the page and page 506 about point 7 through to the top of page 507; Chief Justice Gibbs in a passage commencing at page 520 about point 4; Justice Stephen at page 532 about point 2 to page 533 about point 3.
GLEESON CJ: Proceedings in State courts in what used to be called the lunacy jurisdiction were held in private, were they not?
MR JACKSON: Yes.
GLEESON CJ: And proceedings in relation to adoption, as I recollect.
MR JACKSON: Another example, your Honour, is given by one of the dissenting judges in Russell v Russell, that is Justice Jacobs at page 555 point 3 were he refers to some aspects of patent cases.
GLEESON CJ: Justice Jacobs, I think, used to be the adoption judge.
MR JACKSON: Yes, I am not able to offer a view on that, but I certainly could just refer to this observation on page 555 about point 3 dealing with some evidence in patent cases.
Your Honours, could I come then to the question of severance and this is the penultimate matter with which I wish to deal. Could we refer to our written submissions in paragraphs 63 to 67 and may I endeavour to summarise what we would say in those paragraphs, and it is this, that the legislature in section 76 has established a scheme where the judge has access to all the information which the Commissioner had when making the decision under section 72(2). The requirements for confidentiality are dealt with by section 76(2). If section 76(2) were held invalid, the consequence would be that a different structure, if I could use that word, would emerge.
It might be different in one or other of two ways. One way would be to say that the public interest immunity might apply and have the consequence of reducing the material to which reference could be had by the judge when performing the task required by section 76(1). That is different from the task contemplated by section 76(1) and the application of public interest immunity to section 76(1) is difficult to reconcile. But in any event, if it were to apply it could result in there being a different range of materials available to the judge from that contemplated by section 76(1).
The second approach would be that if one simply treated section 76(2) as excised and with the consequence that section 76(1) that was given its natural meaning, that would destroy the balancing which was sought to be effected by the two provisions of section 76(1) and 76(2).
Your Honours, the last matter with which I wish to deal is this. I said yesterday I would give your Honours a note concerning the various administrative law provisions which restricted access to materials. Your Honours, we have given your Honours a note. It contains, I think, in an entirely non‑controversial form what those provisions are in several enactments and the enactments are attached, except that we have already given your Honours some of them once and so your Honours will have the ones that are not attached to it. Your Honours, those are our submissions.
GLEESON CJ: Thank you, Mr Jackson. Mr Solicitor for New South Wales.
MR RENWICK: Your Honours, Mr Sexton is not here today but the amended proposal is that I go just before the Commonwealth Solicitor‑General and that South Australia go next.
GLEESON CJ: Very well, yes. Mr Solicitor for South Australia.
MR KOURAKIS: Your Honours, can I commence by making some brief observations about section 76 of the Act. The first observation I make concerns subsection (1) and the reference there to information that the Commissioner of Police took into consideration. It is perhaps an obvious point but one that does assist in the construction of the section to observe that information that the Commissioner took into consideration cannot be limited to information that the Commissioner placed some weight on in the administrative law sense. If it was construed in that way the information that would go to the Supreme Court would be skewed in favour of the decision to make the fortification order. The result of that is that simply, in my submission, that it must mean all of the information that was before the Commissioner, whether in writing or orally.
The next submission I make turns on subsection (5) and the matter that arises out of Victoria’s submissions and that has been canvassed with both counsel for the appellant and the respondent concerning section 76(5). If subsection (5) is read in effect so that it continues after the words “when issuing the notice” and goes on “on information both before the Commissioner and information that the Commissioner ought to have had before him or her” – that is information that the Commissioner ought to have obtained by making reasonable inquiries – if it is construed in that way then, in my submission, the Kable constitutional point essentially falls away to a large extent because the information that was in fact before the Commissioner, including confidential information, will have very little, if any, bearing on the ultimate result.
KIRBY J: It does not fall away. It is still there in respect of those matters which cannot be revealed to the parties or the public.
MR KOURAKIS: Yes. I said “to a large extent”. The reason I make that submission is this.
KIRBY J: That is a very large extent.
MR KOURAKIS: Your Honour, the information before the Supreme Court if subsection (5) is construed in that way will not be just that confidential information but all the information that might be brought to the court by the respondent on the question of what the Commissioner would have discovered if inquiries had been made and the reasonableness of the decision will be then judged on that basis.
If that construction is given – and arguments would be put by others as to why it should – then, in my submission, the nature of the hearing in section 76 approaches the nature of the hearing that was considered with respect to South Australia’s legislation on this topic in Osenkowski v Magistrates Court of South Australia (2006) 96 SASR 456 where, in effect, the confirmation order for the removal notice was a hearing that was held where the respondent could bring such information as it saw fit on the question of whether the premises met the statutory definition and because of the construction that was given to the legislation in South Australia, it was held that there was no constitutional invalidity on these grounds.
GUMMOW J: What is the critical paragraph in Osenkowski?
MR KOURAKIS: At page 468 of the judgment your Honours will see from the bottom of paragraph 33 to paragraph 34 some conclusions about the wide nature of the confirmation hearing. Your Honours will see on the next page the summary of the position from paragraph 37. Your Honours will see his Honour’s ultimate conclusion at paragraph 47 on page 470, but there is a discussion that precedes it.
Your Honours, if the nature of the review jurisdiction and the ultimate determination for the Supreme Court is narrower, that is, if it is limited to the materials that were in fact before the Commissioner, then much more will turn on section 76(2). But again, if Western Australia’s submission as to the construction of 76(2) is accepted, then again, in my submission, the constitutional question largely falls away because the determination as to what material remains confidential will be in the hands of the review judge.
Now, your Honours, that construction of section 76(2) was not the construction on which the court below proceeded. The court below proceeded on the basis that the review judge had no part to play in determining whether the material identified by the Commissioner remain confidential or not. Can I just give your Honours references to the paragraph numbers in the judgment below that show that. In the judgment and the reasons of Chief Justice Martin paragraph 5 at appeal book 103, President Steytler paragraph 97 at appeal book 141 and Justice Wheeler paragraph 128 at appeal book 152.
Your Honours, although that appears to be the assumed construction below, South Australia supports Western Australia’s submissions on how section 76(2) should be construed and as a result paragraph 9 of South Australia’s submissions should be seen as a position that might apply if the construction assumed below on which the court proceeded below was ultimately the construction preferred by your Honours.
Paragraph 9 of our submissions assumes that section 76(2) is construed in a way that leaves it with the Commissioner and not the review judge to finally determine what is confidential and the point that we make in paragraph 9 is simply that if that is the construction, there is a remedy still in the inherent jurisdiction of the court. The remedy is simply to stay the review proceedings, the court proceeding on the basis that, “Look, your identification of the material, Commissioner, may be final but the court’s view is that you have acted unreasonably in identifying it in that way”, and unreasonable in this sense is something less than Wednesbury unreasonableness and the court might then order a stay on the basis that it will not continue to hear the matter where one party has unreasonably taken a course to its advantage by denying the other party procedural rights that would otherwise be available to it.
GUMMOW J: That is not going to help the applicant, is it?
MR KOURAKIS: Your Honour, as it turns out it does because the scheme of the Act is that the fortification removal order is stayed until the disposition of the review proceedings in the Supreme Court. So as it turns out, because of this particular scheme, a stay of the review ordered by the Supreme Court would have the effect that the fortification removal order has no effect and it would be simply left in abeyance, the premises would remain as they ‑ ‑ ‑
GUMMOW J: Where do we see that?
MR KOURAKIS: Section 76(4).
KIRBY J: It does not seem to have troubled the State of Western Australia much. It has been meandering on for four years. I did not see in the papers that there was an application for expedition of this case.
MR KOURAKIS: Your Honour, Mr Jackson has explained that and, as I understand it, the tortuous path it might have taken through the courts was not something that was particularly within their control, as I understand his submission.
KIRBY J: That is why one looks with vigilance at legislation of this kind.
MR KOURAKIS: Your Honour, there is every reason to look with vigilance at legislation that departs from the accepted judicial method but a conclusion eventually must be ‑ ‑ ‑
KIRBY J: What is your submission on the question I asked yesterday of Mr Jackson as to the validity of a provision by which a State Parliament told a State Supreme Court that in a particular matter such as this it shall publish its judgment and orders but no reasons?
MR KOURAKIS: Yes. Your Honours, if that was a reflection of the balance required in cases like this because of the damage that might be done to police investigations, then most probably it would be completely unacceptable. If it was simply a blanket ‑ ‑ ‑
KIRBY J: Unacceptable or unexceptionable?
MR KOURAKIS: Unexceptionable, if the Court pleases, if it was a reflection of that balance.
KIRBY J: Of telling a State Supreme Court that it may not publish any reasons.
MR KOURAKIS: If the purpose of a provision in its statutory context was to protect ongoing police investigations and their sources, then that would be so. If there was no apparent valid reason for it then one would go back and consider whether, in the context of the entire jurisdiction of the court and all of its functions, that legislation has the effect that one of the defining characteristics of the court is absent and one would consider what constitutional consequence that has.
Your Honours, it is convenient perhaps at this point to make this submission about paragraph 63 in Forge v ASIC (2006) 228 CLR 45 at page 76. In paragraph 63 of the reasons of the joint judgment there is a reference to an absence of the “defining characteristics which mark a court apart from other decision-making bodies” and the paragraph explains that the references to “institutional integrity” allude to those “defining characteristics”.
The observation that I wish to make, and it is again perhaps an obvious one, is simply this, that there are very few of what might be called the “defining characteristics” of a court that apply universally and apply in absolute terms and there has already been much discussion about just that in this case. However, in a case like this, where this is some modification, not of an unknown type, in applying a test like that at paragraph 63, one has to bear steadily in mind the point that I just made and that is that there are very few defining characteristics which apply universally and absolutely to courts.
KIRBY J: I can understand an Executive Government of a State making that submission ‑ ‑ ‑
MR KOURAKIS: I am glad I made it, if your Honour pleases.
KIRBY J: ‑ ‑ ‑ because that means that you can go ahead and do any old thing you like and I have noted your submission that we are therefore looking at this case from the perspective that a possible next step is State legislation instructing courts, including a constitutional Supreme Court, that
it shall not publish reasons. I have to say to you, as far as I am concerned, that is a very worrying suggestion because you may say there have been no complete and absolute rules, but the hallmark of justice in this country from colonial times has been the reasoned justice of judges and that is why they have won their reputations and the reputations of their courts. Remove that, and you just have arbitrary fiats.
MR KOURAKIS: Your Honour has said, with respect, on a number of occasions, and the consideration is important, and that is that one must have an eye to future cases but, at the same time ultimately, the question is the constitutional validity of this particular legislation. I have made some submissions on that and will continue with just a few more.
GUMMOW J: It may not be prudent for State law officers or any law officers to turn up and put their head in the tiger’s mouth when they do not have to.
MR KOURAKIS: If your Honour pleases. Your Honours, there were some observations made yesterday about the relative position of the appellant under this scheme and that which would pertain if there was simply an application for review of the Commissioner’s decision in the supervisory jurisdiction of the court, and some discussion as to whether the appellant would be better off or worse off under the ordinary judicial review supervisory jurisdiction.
The only submission I wish to make about that is that if one turns to arguably the more relevant question, not whether the appellant would be worse or better off, but what the effect on the institutional integrity of the court would be, in my submission, it could hardly be contended that a review conducted under the supervisory jurisdiction on only a partial record, and a dismissal of the application under the supervisory jurisdiction on what the parties, the judge and the public would know was only a partial, incomplete record – perhaps even a misleading record – would threaten the institutional integrity of a court any less than the procedure that we have here. If your Honours please, they are my submissions.
GLEESON CJ: Thank you, Mr Solicitor. Solicitor‑General for Victoria.
MS TATE: May it please the Court. It is our submission that the appellant’s argument on validity should be rejected for two related reasons. First, that it fails to reflect faithfully the standard of review which the Act requires of the Western Australian Supreme Court and, secondly, that it wrongly considers the terms of section 76(2) in isolation. It fails to consider first the nature of the power conferred by 76(1) upon the court in the context of the whole of the statutory scheme under Division 6 of Part 4 of the Act.
May I hand to your Honours a short outline of argument that we have prepared. A copy of the outline has already been furnished to all my learned friends. It is our submission that there are two critical features of the statutory scheme. One of these features relates to the Commissioner and the other relates to the court. The first critical feature relates to the statutory obligations which are imposed upon the Commissioner. Under section 69(2)(b) of the Act there is an implied obligation on the Commissioner to extend an opportunity to the owner to make submissions on the two central issues. Of course those central issues are the fortification issue and the organised crime issue. We say the obligation is only implied under section 69(2)(b) because ‑ ‑ ‑
HEYDON J: It is expressed under (c), is it not?
MS TATE: Your Honour, we would say that section 69(2)(b) is concerned only with the warning that must be contained within the notice, and it is a warning that, unless within a particular period:
the Commissioner of Police is satisfied that‑
(i) the premises are not heavily fortified; or
(ii)the premises 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.
But it is only there, your Honours, with respect to the details of the warning that must be contained within the notice and, again, the details of that notice include a requirement that an explanation as to how a person can make a submission. But we would say, nevertheless, even taking account of section 69(2)(c), as your Honour Justice Heydon points out to me, the obligation is perhaps at best an implied obligation. It sits in section 69 to be complemented by the express obligation which occurs and is imposed by section 72(2). There the obligation is expressed because it provides that:
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.
HAYNE J: What is the purpose of analysing this in terms of obligation? What is the purpose of analysing it in terms of obligation on the Commissioner to do anything? The Act operates according to its terms. The Commissioner has to give a notice. What does it matter whether – the characterisation of obligation?
MS TATE: Your Honour, we say that it is important to see precisely what is the nature of the statutory obligations imposed upon the Commissioner in order to determine what is involved when the court is reviewing the belief of the Commissioner as one – as to whether or not it was reasonably held. This, we say, is the second critical feature of the statutory scheme. So the first critical features are the statutory obligations imposed implicitly and expressly upon the Commissioner, but the second critical feature is the standard of review which is to be conducted by the court.
GUMMOW J: Just stopping at the first for a minute.
MS TATE: Yes, your Honour.
GUMMOW J: Am I right in thinking that you are looking to section 69 as carrying an implication, I suppose, of an obligation by the Commissioner to consider the explanations in the submissions?
MS TATE: Well, we would say that the obligation to consider is an express obligation under section 72(2), your Honour, but under section 69(2)(b) there is an implied obligation to provide the opportunity to make submissions. So we would say it is two faceted, your Honour.
GUMMOW J: Yes.
MS TATE: But the second critical feature, we say, is the standard of review that must be conducted by the court under section 76(1). Under that subsection ‑ ‑ ‑
KIRBY J: Of course in our society the Commissioner’s obligation does not necessarily have to be accepted by the citizen. In our society the citizen has the right to challenge that and not to accept it at first value. Administrative law cases are full of decisions of courts that administrators have taken into account wrong considerations or irrelevancies and so on. You do not have to just accept it.
MS TATE: No, indeed, your Honour. What I am seeking ‑ ‑ ‑
KIRBY J: So this case is really about how you challenge it when you do not accept it.
MS TATE: Indeed, your Honour. What I am seeking to emphasise here is that at the administrative level, that is at the level by which the Commissioner issues a fortification removal notice, there is already under the statute an obligation to extend an opportunity to the owner to make submissions on the two critical issues that the Commissioner has to be satisfied of before making the fortification removal notice, and an obligation to take any submissions into account.
Now, we would say – and I will get back to Justice Hayne’s question in a moment – the second critical feature here is that the standard that the court has to consider under section 76(1) is whether or not the belief of the Commissioner is a reasonable belief. It is clear on the authority from this Court in George v Rockett (1990) 170 CLR 104 at 112 to 113 that the standard of a review for reasonableness is an objective standard.
In that case the Court endorsed the famous judgment of Lord Atkin in dissent in Liversidge v Anderson [1942] AC 206 at 227 to 228 as accepted by the Privy Council in Nakkuda Ali v Jayaratne [1951] AC 66 at 76 to 77 and later accepted by the House of Lords in Inland Revenue Commissioner; Ex parte Rossminster Ltd [1980] AC 952 at 1000. That is, it was accepted by the courts that the standard of review for reasonableness is an objective one, that is, that it is necessary for the belief here held by the Commissioner to be objectively reasonable and not based simply on what the Commissioner thinks is reasonable.
Now, the dissent of Lord Atkin is extracted in DPP v Toro‑Martinez, a judgment of the Court of Appeal of New South Wales, (1999) 33 NSWLR 82 at 99 in the judgment of Justice Handley, to which I would invite your Honours to turn. Justice Handley on page 99 at about point 7 of the page, says:
A critical issue under s 43(3)(b) is whether the court is satisfied, having regard to the matters in the affidavit, that there are reasonable grounds for holding that belief. The existence or otherwise of reasonable grounds for believing in the existence of some state of affairs (including the commission of a criminal offence) raises a familiar issue for judicial determination. As Lord Atkin said in his famous dissenting speech in Liversidge v Sir John Anderson [1942] AC 206 at 227-228:
“ . . . Reasonable cause’ for an action or a belief is just as much a positive fact capable of determination by a third party as is a broken ankle . . . the plain and natural meaning of the words ‘has reasonable cause’ imports the existence of a fact or state of facts and not the mere belief by the person challenged that the fact or state of facts existed . . . this meaning of the words has been accepted in innumerable legal decisions for many generations . . . ‘reasonable cause’ for a belief when the subject of legal dispute has been always treated as an objective fact to be proved by one or other party and to be determined by the appropriate tribunal.”
He concluded (at 232):
“ . . . the words in question . . . have only one plain and natural meaning, . . . with that meaning the words have been used at common law and in numerous statutes, and . . . whenever they are used the courts have given them the meaning I suggest, (and) have considered that they give rise to a justiciable issue, . . . ”
The House of Lords has acknowledged that Lord Atkin was right: see Inland Revenue Commissioners v Rossminster Ltd [1980] AC 952 at 1000, 1011 and 1025. As Lord Wilberforce said in that case (at 1000):
“ . . . It is undisputed that the words ‘has reasonable cause to believe’ are open to examination in spite of their subjective form . . . The existence of this reasonable cause and of the belief founded upon it is ultimately a question of fact to be tried on evidence.”
KIRBY J: Why are we looking at the House of Lords and the observations there, when this Court has pronounced on the matter? We have really grown up from all this.
MS TATE: Indeed, your Honour, Justice Handley immediately ‑ ‑ ‑
KIRBY J: In New Zealand they kept the English courts for a much longer time, but not in this country.
MS TATE: No, indeed, your Honour, but Justice Handley immediately after referring to Inland Revenue; Ex parte Rossminster refers to George v Rockett, an authority of this Court.
KIRBY J: Just suggesting that the starting point is George v Rockett not the House of Lords. I do not wish to appear sensitive, so I will not say anything more.
MS TATE: No, of course, your Honour. In George v Rockett, of course, itself there was reference ‑ ‑ ‑
KIRBY J: In my reasons I referred to Liversidge v Anderson and George v Rockett, that was all.
MS TATE: Yes, and, of course, George v Rockett was a unanimous and joint judgment of this Court where there was reference made, of course, to the House of Lords. If I could just perhaps complete this passage where Justice Handley in referring to George v Rockett says that:
in a joint judgment, the High Court said that Lord Atkin’s dissent was now orthodox and added:
“. . . That requirement (reasonable grounds for belief) opens many administrative decisions to judicial review and precludes the arbitrary exercise of many statutory powers.”
It is clear therefore that the existence of reasonable grounds for belief under s 44(3)(b) raises a justiciable issue, and the court’s jurisdiction is not ministerial.
KIRBY J: But is there not a practical problem that if the Commissioner is the one with the information, if the Commissioner is the one who has all the relevant information and if he can limit what the court can have access to in practicality, then the court is not going to be able to get at a larger range of facts.
MS TATE: It is our submission, your Honour, that because the court is concerned with the reasonableness of the Commissioner’s belief, and that, of course, requires an assessment at an objective standard, we would say what the court is concerned about is not only what was actually known to the Commissioner but also what was reasonably capable of being known by him at the relevant time.
It is our submission, and this is directly in response to the question posed to me by Justice Hayne, that it is the second feature of the statutory scheme, the standard of review, which affects the first feature, the nature of the statutory obligations imposed upon the Commissioner or, indeed, that they affect each other in this way, that it is precisely because the Commissioner is under a duty to extend an opportunity to be heard to the owner that what is reasonably capable of being known by the Commissioner is any informed response or rebuttal made by the owner in the submissions.
Of course, in turn, the submissions can only be properly responsive if the owner has been told what concerns the Commissioner has. Thus, in our submission, it is only if the disclosure by the Commissioner is adequate for the making of properly responsive submissions that the Commissioner will have acquired all the knowledge that he reasonably could have acquired in the circumstances.
HAYNE J: The chain of argument, Solicitor, seems to be duty to afford opportunity. Duty to afford opportunity requires disclosure, disclosure permits rebuttal.
MS TATE: Yes, your Honour.
HAYNE J: That is a chain of argument that depends upon reading 69(2) as imposing duties on the Commissioner, is that right? Duty to afford opportunity is what you describe it as.
MS TATE: Yes, your Honour.
HAYNE J: And you imply in that the further duty to disclose, do you?
MS TATE: Yes.
HAYNE J: Because it is that second step that is the largest step in the chain of argument you take because it would be, as I understand it, the implication not only of this duty to afford an opportunity, whatever the content of that duty is, but a duty to disclose the basis upon which the notice is issued, is that right?
MS TATE: Yes, your Honour.
HAYNE J: And that is an implication which enlarges markedly the contents of 69(2), does it not, because the next question is, what is the warrant for that enlargement?
MS TATE: Your Honour, the warrant for that enlargement is the form of the argument that your Honour has just articulated. In fact, if I could adapt what your Honour the Chief Justice said yesterday at transcript 22, line 945, the issue of reasonableness becomes one that comprehends “the process that the Commissioner of Police has followed in coming to a belief”. We would say that the court is to be concerned with what it is that the Commissioner could reasonably have been capable of coming to know.
GLEESON CJ: This raises a question that we have come across in other areas including immigration cases and procedural fairness. When you use the expression “disclose the basis of the information”, suppose the information is this, “I have been told that this place is the headquarters of a crime syndicate, I invite your submissions on that.” One of the first things that follows that is, “Who told you that?” As I say, we get this in immigration cases, too. Sometimes, perhaps often, unless you know whether the source of that information is an apparently reliable person or an apparently unreliable person you do not really have an opportunity to address it.
MS TATE: Your Honour, we would say in a circumstance such as that, what the opportunity to be heard would allow is that one could, as Justice Hayne said yesterday, go directly to the merits so one would immediately begin by making ‑ ‑ ‑
GLEESON CJ: In other words, bypass the hearsay.
MS TATE: Bypass the hearsay. Similarly, in this case, your Honour, where the fortification warning notice contained two simple statements about the state of satisfaction of the Commissioner in relation to the degree of fortification, simple statement, again a simple statement of satisfaction on the organised crime issue. The submissions that were tendered by the appellants in response to the fortification issue were indeed very elaborate, contained video material, contained extensive letters from foreign emergency services, planning approval certificates and so on. There was no sense that the appellants had been put at a disadvantage because they had not been given any further details about the concerns that the Commissioner had with respect to the degree of fortification.
We would say similarly on the organised crime issue it was clearly open to the appellants to immediately respond by naming all of the members of the organisation and then making submissions as to whether or not any of those members had criminal convictions, what sorts of criminal convictions they had, whether they fell into the category of Schedule 1 offences, whether they were overturned on appeal, whether a former member who had pleaded guilty to a murder charge had since been either disqualified or voluntarily determined not to become a member, and so on. All of those matters were clearly peculiarly within the knowledge of the appellants, yet there was only a bare denial by them by way of submission in response to the Commissioner.
More generally, if I could turn to the structure of our argument. We would say that because the Court will be concerned with what it is that the Commissioner was reasonably capable of coming to know, in circumstances in which he has a statutory obligation to extend an opportunity to be heard, and a statutory obligation to consider any submissions made, we would say there it is clearly open for the Court to consider that responsive submissions could not be made unless there had been an adequacy of disclosure. So the Court, in determining whether or not the Commissioner’s belief was a reasonable belief, is entitled to consider whether there had been adequate disclosure in the circumstances and indeed whether the obligations under the Act had been discharged.
GLEESON CJ: It might depend in a particular case on the nature of the hearsay information. It may be one thing to say, “I have been informed that those premises are used regularly for meetings of a gang of criminals”, in which case you can respond to that without, as it were, addressing the hearsay, without knowing who was the source of the information. On the other hand, if somebody says, “I have been informed that the informer was tortured in those premises”, it would be impossible to respond to that without knowing who the informer was supposed to be.
MS TATE: Yes, your Honour, but we focus on the reasonableness that the court is to assess.
GLEESON CJ: Well, it may be that that would affect the reasonableness in a given case.
MS TATE: Yes, it is not a constitutional ‑ ‑ ‑
GLEESON CJ: If the Commissioner refused to tell them who the tortured man was supposed to be, he may not be giving them a reasonable response to answer the accusation.
MS TATE: Yes, your Honour. It is not a consequence of our argument that there must always be full disclosure of all the material relied upon by the Commissioner. Clearly, that is not a consequence of our argument. Our argument is only addressing the question of the standard of the review conducted by the court to ensure that that form of review is a form which does not compromise the institutional integrity of the court.
KIEFEL J: But is not the court then becoming involved in the process of what should and should not be given to the person, including potentially confidential matter? It is starting to make its own judgments. Does the statute not really comprehend that it removes the court from that process, at least initially?
MS TATE: Well, your Honour, we would say that it is not for the court to be entirely removed from that process. There will be a need for the court to take an active role and a role which involves assessing the adequacy of the disclosure, and it will involve the court in considering whether or not the belief of the Commissioner was dependent only upon unrestricted information or dependent in turn upon confidential information.
HAYNE J: Does your argument amount to a proposition that power under section 72(2) cannot be exercised – that is, the Commissioner cannot issue the notice without first according procedural fairness to the subject of the notice?
MS TATE: We would say, your Honour, that then it is a question for the court to determine if there had been inadequate disclosure. Whether that belief was reasonable ‑ ‑ ‑
HAYNE J: I understand that. My question is one of whether that is an argument that is equivalent to – not to say identical with – the proposition that 72(2) requires natural justice to have been given to the recipient of the notice before the notice can issue. Do you go so far?
MS TATE: We would say, your Honour, that 72(2) does require a form of procedural fairness to be extended to the owner before the Commissioner’s belief is likely to be held to be reasonable by the court. But perhaps if I could consider the different sets of circumstances that might face the court because we would say that our general analysis applies whether or not the Commissioner relies upon confidential information, but there are ‑ ‑ ‑
GLEESON CJ: It would be only a form of procedural fairness, would it not, because it would not cover such things as pre-judgment?
MS TATE: No, your Honour. It would simply be the hearing rule aspect of procedural fairness. Your Honour, perhaps if I could consider just the different sorts of circumstances that might face the court. We would say that if the Commissioner was to rely upon no confidential information at all, then the role of the court under section 76(1) would be to consider what information the owner was given by the Commissioner to which there was an opportunity to respond. We would say there that the court would be entitled to consider in those circumstances that all the adverse material information ought to have been disclosed, and where disclosure was inadequate the court may consider that the belief held was not reasonable because the Commissioner did not place himself in a position of knowing all that he was capable of knowing at the relevant time.
Alternatively, we would say there that where the disclosure of unrestricted information had not been adequate it would be open for the court to determine the reasonableness of the Commissioner’s belief by inviting the owner to lead evidence there in the court in response to any of the unrestricted information now relied upon by the Commissioner or perhaps evidence of how it would have responded at the relevant time if there had been adequate disclosure.
We would say where the Commissioner relies upon confidential information then we would say similarly the court is entitled to assess the adequacy of that disclosure. In particular, the court would be entitled to assess whether or not the Commissioner has provided, whether by way of summary or by way of particulars, the substance of the information.
Perhaps it is in those circumstances that I could respond to Justice Hayne by saying that there one would not see a fully‑fledged obligation of natural justice to disclose all of the material, even the confidential material, that was relied upon. But we would say what would be necessary for the court to determine that the belief held by the Commissioner was a reasonable belief would be for the court to determine whether there had been at least a summary or particulars provided of the information relied upon by the Commissioner without exposing the grounds of that confidential information.
We would say then that the fact that the court is restricted under section 76(2) from itself disclosing any confidential information with which it has been provided by the Commissioner does not at all restrict its capacity on the review to determine whether there has been adequacy of disclosure of whatever form and there has been an opportunity provided for responsive submissions to be made by the owner and for it to conclude that if there has not been that adequacy of disclosure then indeed the belief that was held may not be a reasonable one.
We would say further, and this is a qualification perhaps on what I have just argued, that where the Commissioner has provided the court as here with both unrestricted information and confidential information, then the court in assessing the reasonableness of the Commissioner’s belief can consider whether the confidential information provides no more than supplementary support to the belief. That is, if the belief can be assessed as reasonable without reference to the confidential information, then we submit that the lack of disclosure, even by way of summary or particulars of that confidential information, does not detract from the reasonableness of the belief.
We would say it would be open for the court to take that approach here and make an assessment of reasonableness based only on the unrestricted information, including the past convictions and what were pending charges, to which it would invite the owner to respond on the review.
More generally, it is our submission that it is clear that the function described or the function provided for under section 76(1) is a genuinely adjudicative process, it is an estimate of reasonableness made relative to the adequacy of disclosure, in effect, relative to a provision of an opportunity to be heard and the institutional integrity of the court is not compromised. Nor is there a contravention of the constitutional guarantee that a court capable of exercising federal judicial power must be, and be seen to be, an independent and impartial tribunal. The court, in our submission, on a review under section 76(1) has not been rendered an instrument of the Executive.
KIRBY J: How do you reconcile a genuine adjudicative process with the failure or inability or prohibition under the section to make what would probably be the most critical evidence available to the other party so that they can respond to it?
MS TATE: It is our submission, your Honour, that one looks to see whether procedural fairness has been observed at the administrative level and the court, on the review, have those obligations not been properly discharged, is entitled to arrive at an adverse conclusion to the Commissioner, namely that the belief that was held by the Commissioner was not reasonable.
HAYNE J: Can I take you back to this and let us root it in the statute. The warning notice is not issued by the Commissioner but by the Commission, is it not?
MS TATE: By the Commission, yes, your Honour. I am sorry. I may have made a slip ‑ ‑ ‑
HAYNE J: We need to understand who is doing what to who, do we not? The Commission is issuing the notice. Is that not right – the warning notice?
MS TATE: Yes, your Honour.
HAYNE J: The Commission issues the notice if satisfied of the matters in 68(2)(a) and (b). Is that right?
MS TATE: Yes, your Honour.
HAYNE J: Hence, 69(2)(a) requires that the notice state that the Commission – not the Commissioner – is satisfied as to certain matters. Is that right?
MS TATE: Yes, your Honour.
HAYNE J: The Commissioner comes back into the act only at 72(2). Is that right?
MS TATE: Yes, your Honour.
HAYNE J: You draw from 69(2) an implied duty on the Commissioner to afford an opportunity that requires the Commissioner to make a disclosure at what point? At the point of the notice which is issued by the Commission or at some other point?
MS TATE: It would be the point at which the Commission issued the notice.
HAYNE J: So the Commission is bound to issue a notice upon being satisfied of certain matters ‑ ‑ ‑
MS TATE: Yes.
HAYNE J: But the Commissioner is under some implied duty.
MS TATE: Yes, your Honour. We say that because, under section 69(2)(b), although it is the Commission that issues the warning notice, it is for the Commissioner to be satisfied ‑ ‑ ‑
HAYNE J: Under 72(2) after receipt of submissions.
MS TATE: Yes, your Honour. Perhaps this explains one of the reasons why I describe this as an implied obligation rather than an express obligation – because what the statutory scheme provides for is that there must be a submission period in which submissions can be made to the Commissioner to preclude his state of satisfaction that the premises are heavily fortified and that the organised crime issue requirement is also satisfied.
HAYNE J: To preclude his satisfaction as going to whether or not he should be satisfied.
MS TATE: Yes. Clearly the submissions would be seeking to persuade the Commissioner that he ought not be satisfied of the fortification issue and ought not be satisfied of the organised crime issue and it provides for a period of 14 days in which that is to be done. It is then the Commissioner who is then obliged under 72(2) to take those submissions into account.
KIRBY J: There is a double layer of reasonableness involved in section 72(2).
MS TATE: Yes, your Honour.
GLEESON CJ: That is the reasonable belief of the Commissioner of Police and also the question of reasonably being suspected of something. I looked at Schedule 1 but you need to go to the Criminal Code to make concrete Schedule 1. “Organised crime” is a defined term in this Act.
MS TATE: Yes, it is, your Honour – under section 3.
GLEESON CJ: In section 3, but it sends you back to Schedule 1.
MS TATE: It sends you back to Schedule 1. We have had a list provided to us by one of the parties as to ‑ ‑ ‑
GLEESON CJ: We had that yesterday.
MS TATE: An expansive list of each of the nature of the offences under section 1. In our submissions we referred your Honours to some of the types of offences that are included within Schedule 1. That is to be found in our section on the details of the impugned legislation where we set out the definition of section 3 under paragraph 21 and then at footnote 29 we refer to Schedule 1 and, indeed, within the definition of “Organised crime” in our paragraph 21 we make reference to specific Schedule 1 offences and these include:
firearms offences, causing an explosion likely to do serious injury to property, and the making or possessing of explosives under suspicious circumstances, drug trafficking, wilful murder, and attempting to pervert justice –
amongst others, your Honour. There is more than one layer of reasonableness within the scheme of this division, your Honour.
Your Honours, if I could make some final and brief submissions on the significance of the Canadian case, Charkaoui v Canada (2007) 1 SCR 350. It is behind tab 15, volume 2 of the respondent’s book of international materials. As your Honour Justice Gummow said yesterday at transcript 41, line 1800, one has to start when considering any Canadian Supreme Court case on the Canadian Charter of Human Rights by identifying the particular right in issue. The principal right in issue here was section 7, the right to fundamental justice, and the terms of that are to be found behind tab 22 at page 826 of this volume. Section 7 provides that:
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.
The judgment was delivered by the Chief Justice, Justice McLachlin. The court at paragraph 11, which is at page 434 of the volume, noted that there were challenges based on a number of rights. It stated that:
The appellants argue that the IRPA’s certificate scheme under which their detentions were ordered is unconstitutional.
KIRBY J: What is the bottom line of this submission, that the constitutional context is so different that it is not really a helpful decision, is that it?
MS TATE: No. The bottom line is, your Honour, that with respect to any of these rights, but particularly with respect to section 7, there are numerous requirements. It is not a one‑dimensional right and that can be seen at paragraph 28 where Justice McLachlin speaks of the principle of fundamental justice as being an overriding principle. She states that:
before the state can detain people for significant periods of time, it must accord them a fair judicial process -
Then at paragraph 29 on page 442 she states that:
This basic principle has a number of facets. It comprises the right to a hearing. It requires that the hearing be before an independent and impartial magistrate. It demands a decision by the magistrate on the facts and the law. And it entails the right to know the case put against one, and the right to answer that case.
Justice McLachlin then goes on to consider whether each of those separate requirements of the right have been met and the bottom line, if I can put it that way, is that the conclusion is that the requirement that the hearing be before an independent and impartial tribunal is found to be satisfied here. However, the other requirements of section 7 are found not to be satisfied. So ultimately the conclusion is that section 7 has been infringed and the interference with the right has not been justified under section 1. So the ultimate finding is that section 7 has been violated but that aspect of section 7, which is the requirement that the hearing be before an independent and impartial tribunal, has not been infringed. That has not been violated.
GLEESON CJ: Does the Canadian Charter have the same guarantee of property?
MS TATE: No, your Honour. One could say more on that, your Honour, but ‑ ‑ ‑
KIRBY J: The Australian Constitution has that but only in relation to federal acquisitions.
MS TATE: Yes. The point we were seeking to make here is that that aspect of the section 7 right which reflects those considerations which underpin both Kable and the implied constitutional guarantee under the Australian Constitution that a court capable of exercising federal judicial power must be, and be seen to be, an independent and impartial tribunal, that that aspect of the right was indeed satisfied by the legislation in the Canadian case.
GLEESON CJ: Mr Jackson began his submissions by pointing out that in this case the right with which we are concerned is the right of property.
MS TATE: Yes.
GLEESON CJ: By hypothesis that is what this aspect of this legislation is about.
MS TATE: Yes, we are not relying upon Charkaoui with respect to the rights that are at issue in this case, which indeed is a property right. We are relying upon Charkaoui for that aspect of the constitutional challenge, which says that the legislation is invalid because it violates the Kable doctrine or it violates the implied constitutional guarantee of an independent and impartial tribunal.
GUMMOW J: Well, Article 8 might have something to do with it, “unreasonable search or seizure”.
MS TATE: Yes, your Honour. My concern was just that we clarify that it could not be said that the Supreme Court had held that the section 7 right had not been violated.
GUMMOW J: Yes, I understand.
MS TATE: But it was a question of dissecting the requirements of that particular right.
GLEESON CJ: I forget now, we were told yesterday, but what is the ultimate outcome of one of these fortification procedures? Did the Commissioner go in and remove the fortification?
MS TATE: Yes, your Honour. The Commissioner – indeed, on the fortification removal notice here it is not necessary for the Commissioner to do it, but on this occasion he did, which was to set out a range of ways in which the fortification could be modified that would place him in a position where he could be satisfied that the premises no longer satisfied the fortification issue. So there was a need for the removal of security cameras, the removal of perimeter walls and so on. But if those actions are then not taken within seven days, the Commissioner is at liberty to cause the fortifications to be demolished, your Honour.
KIRBY J: Seven‑day urgency seems to have evaporated in the last four years.
MS TATE: Well, there is express provision under the statute, your Honour, for an extension of time in any event if it was necessary for the owner to say that those modifications simply could not be achieved within that timeframe.
GLEESON CJ: But presumably the ultimate objective of one way or another getting rid of the fortifications is to facilitate the issue of a search warrant.
MS TATE: Yes, your Honour. Yes clearly, your Honour.
KIRBY J: Execution of a search warrant.
MS TATE: The execution of a search warrant.
KIRBY J: May I ask for your assistance on whether section 76(2) could have provided lawfully under the Constitution a prohibition on the Supreme Court publishing any reasons in the matter?
MS TATE: Well, your Honour, I think my learned friend the South Australian Solicitor-General responded by saying that it depends on what other defining features the court maintains, because of course all those questions must always be considered specifically to the particular statutory scheme.
KIRBY J: But you do not disclaim that possibility?
MS TATE: Your Honour, there would be a need to consider whether, in the conduct of the particular proceedings your Honour had in mind, it was open for the court to make detailed rulings of one kind or another. It would simply be a question of determining whether there were appropriate safeguards.
KIRBY J: I ask the question because earlier this week the reasons in Roach v Electoral Commissioner were published.
MS TATE: Yes.
KIRBY J: In the Chief Justice’s and the joint reasons there were propositions that, as it were, tested the proposition advanced by the 2006 amending Act against the possibility, could you reinstate Catholic disqualification from voting. Could you reinstate female disqualification from voting?
MS TATE: Yes, your Honour.
KIRBY J: Could you reinstate Aboriginal disqualification from voting? The answer to all those was no.
MS TATE: Yes, your Honour.
KIRBY J: Therefore, the question became at what point do you draw the line. So I think it is a legitimate question to ask can you prohibit entirely State Supreme Courts from giving reasons, and if you cannot, then where do you provide some line further back?
MS TATE: Certainly, your Honour, if it was the case that there were no appropriate safeguards, one could imagine a circumstance where that may indeed be something that was beyond the power of the State Parliament. Yes, your Honour. May it please the Court, they are the submissions for Victoria.
GLEESON CJ: Thank you, Solicitor-General. Solicitor‑General for Queensland.
MR SOFRONOFF: Your Honours, may I ask you to note that section 76(2) precludes the disclosure of identified information not facts and, in that respect, the legislation echoes the traditional distinction in litigation between facts and evidence. Information, of course, might not be evidence. Information might be the fact that there is an informant in place, the fact that an undercover agent has penetrated a criminal organisation. It might be the fact that audio or video surveillance has or is taking place, it might also be evidence, it might be the content of audio or video surveillance, but it need not be evidence. But what is not precluded from disclosure by the legislation are facts and, in particular, the facts that constitute the fact believed by the Commissioner.
So when one comes to the point of review by a Court there is nothing in the legislation which excludes the usual powers and functions of the Supreme Court with respect to giving a party a proper opportunity to be heard upon the facts.
KIRBY J: Except that the Commissioner has the power unilaterally, though a party to the proceedings, to determine what will be disclosed to the other party.
MR SOFRONOFF: Quite, your Honour.
KIRBY J: So you must not say that there is a complete opportunity of the other party to answer. If you are not told and if the juicy bits are kept from you, then you are not given an opportunity.
MR SOFRONOFF: Your Honour, the aim of my submission is this. It is true that there is a denial to a degree that your Honours will determine to a party to be heard in relation to information that the court will see but the party will not see. The question for the court, however, is whether the Kable principle is fully engaged or not and in order to determine whether it is it is necessary first to determine the scope of the particular denial in order to measure it against what the Kable principle demands.
My purpose is in looking at the statute and looking at what actually happened in this case, if I could descend to the particular for a little while, in order to seek to illuminate for your Honours what a party in the position of the appellant truly faces when faced with the denial of the opportunity to look at some information that has been identified by the Commissioner.
Now, it could not be a hearing before the Supreme Court of any value if the party affected by the fortification removal notice does not know the actual belief. It would not sufficient, in our respectful submission, for the Commissioner to state in statutory terms the holding of the belief, it would be necessary to state the actual belief. In this particular case, if I could take your Honours to the appeal book, page 63.
Could I, before taking your Honours to the body of that, your Honours have already noticed that the proceeding before the Supreme Court of Western Australia was commenced by originating summons, an originating summons issued under Order 58 of the Rules of the Supreme Court of Western Australia. The Rules of the Supreme Court of Western Australia in Order 58 permit a judge to make directions for the just and expeditious hearing of the matter and there is nothing in the statute, in our respectful submission, which would prevent a judge, on the application of an applicant, ordering particulars of the belief. If your Honours would put the record aside for one moment ‑ ‑ ‑
KIRBY J: In the face of the statute it could not order the giving of particulars that would breach the Commissioner’s judgment as to confidentiality.
MR SOFRONOFF: No, quite, but there is a great deal that can be ordered. If your Honours look at section 72, the relevant belief is in 72(2)(b). The place of resort would be obvious because the fortification notice relates to it. Particulars could be ordered of the class of people, the number of people, the identity of the people – that was revealed in this case; and the organised crime which those people are suspected of being involved in. “Organised crime” is in section 3. If your Honours go to that – it is in the definition section.
The persons who are said to have associated together one would think would be capable of being identified without breaching information confidentiality, but that might not be right in a particular case. Nevertheless, the Schedule 1 offences one would think could be particularised and the substantial planning and organisation. That raises difficulties of particularisation, but the law has solved them with respect to conspiracy. So undoubtedly the particulars would be ordered in the form of “overt Act” or something of that kind.
When one looks to the material in this case, beginning with the affidavit of Assistant Commissioner Hay at page 63, that affidavit was put before the Commission to support the application for the issue of the warning notice and then subsequently was put before the trial judge upon the review. If your Honours would go to paragraph 68 at page 78, a man called Grierson was shot. The Commissioner evidently believes that the appellant members blamed a man called Hancock, who was I think a pub owner nearby, for that death.
If we look at the next paragraph, very shortly after the death of Grierson the pub, the inn, was damaged by explosives, the camp was damaged by explosives, Hancock’s house was damaged by explosives and a year later Hancock and a man called Lewis were killed in a vehicle damaged by explosives. Over the page, a man called Reid, who was a member of the appellant, admitted guilt, pleaded guilty. His co‑accused, Slater, was acquitted.
If you go to paragraph 75, it refers to Zircon investigations. That was the name of the police operation. Zircon investigations resulted in the members named there being charged in relation to the Ora Banda explosions that your Honours have seen – the inn and the camp. At the date of the swearing of the affidavit the trial had not been heard, but your Honours are looking at the belief, not whether the belief is ultimately true. Paragraph 76 relates to another member who was charged and pleaded guilty to the possession of a substantial quantity of amphetamine and 78, by reference to an annexure that is not in the appeal book, details 130 charges against other members.
So the facts, if they were sought by way of particulars, have been particularised – it would be difficult to see what other particulars in relation to those matters are required. If your Honours turn over the page and go to page 82, the Assistant Commissioner then relates the members to the premises. It is the place that they gather. If your Honours go back then to page 73, in dealing with the structure of the appellant, he says in that last sentence:
Further, the State President will be aware of all major club activities, either legal or illegal –
That is his belief. Whether it is true or not is not in issue. In the next paragraph:
The Chapter President is . . . responsible for all members within that chapter and the functioning and activities of that particular chapter.
Over the page, that:
involves having intimate knowledge of all the activities . . . sanctioning or refusing those activities.
KIRBY J: I do not quite see where you are getting at, unless you are trying to say “Well, this is a very reasonable sort of an order and therefore we shouldn’t be concerned about it”.
MR SOFRONOFF: No, no ‑ ‑ ‑
KIRBY J: We are only concerned here with high constitutional principle.
MR SOFRONOFF: I know, your Honour, but ‑ ‑ ‑
KIRBY J: Not the merits of this case as such.
MR SOFRONOFF: Of course not, your Honour, of course not. But in identifying the correct principles, as your Honours will in due course do, it is necessary to see how the statute would actually work in a particular case. Hypothetical cases have been discussed. Your Honours have before you this particular case. The consequences, in our respectful submission, that in precluding publication of the information but not of facts and certainly not of the belief, the legislature has left it open to the court, the Supreme Court, to adjudicate genuinely upon a matter at issue upon which the parties can actually join issue. That is to say, there is nothing in what your Honours have seen in that affidavit which constitutes apparently the substance of the belief, the grounds of notice, which cannot be addressed by the appellant by way of answer, excuse, explanation or sidelining it in some particular fashion.
KIRBY J: That is on the matters that have been disclosed. But on those matters it might, for example, be said “Well it’s true that these people have been named, have been dealt with according to law, but that’s the way our system is. They’ve been dealt with in the courts. It has nothing to do with what can happen in respect of other people who are members of this club who are gathering quite lawfully as the law of this country permits them”.
MR SOFRONOFF: Your Honour, the legislation operates if persons resort to premises for the prescribed purposes – and it does not matter that persons resort to the premises also for lawful purposes. The purpose of my submission though is this. If it is to be suggested by the appellant that the prohibition upon the disclosure of the information which the Commissioner identifies denies the appellant an opportunity to answer the matter in issue, the reasonableness of the belief, then that is not correct because the content of the belief can be disclosed and, indeed, must be disclosed otherwise there can be no submissions made at the earlier stage to answer it, and there can be no adjudication upon the reasonableness of the belief unless the judge and the parties know of the content of the belief.
KIRBY J: I find that hard to accept because no power of the court in general terms to order particulars can oblige the Commissioner to provide the sections of the affidavit which have been blacked out.
MR SOFRONOFF: That is right, your Honour. In the case of an interlocutory dispute about whether documents should be disclosed in respect of which public interest immunity or legal professional privilege is claimed, the court examines the documents and the party seeking the documents does not get to look at them.
KIRBY J: But the court is not forbidden by one party with the power to stop the court from disclosing that to the other party. Sometimes they are disclosed.
MR SOFRONOFF: Quite, your Honour.
KIRBY J: I have done it myself. Objections have been taken, ruled and the order provides some but not all of the information that has been made, and the court explains it in appropriate terms including appropriate reference to material in respect of which confidentiality is sought to the general public. This is open justice.
MR SOFRONOFF: Your Honour is dealing with a second aspect of complaint of the appellants. One aspect is that the court will determine a
matter by looking at documents that one of the parties does not get to see. The point your Honour just put to me relates to a complaint that the court, while being able to look at the documents, has no power to let another party see - that is a related but distinct complaint. I am dealing with the first one, whether it is so objectionable, whether it is so antithetical to the character of a State court that one party does not get to see documents that the court sees in order to decide an issue that the court is then rendered an unsuitable repository for federal judicial power. We simply point out that in the course of deciding, albeit interlocutory issues relating to the admissibility of documents, the court and one party sees those documents and the other party does not.
KIRBY J: But normally it is the court. The offence on the face of this statute is it is an officer of the Executive Government who tells the court that controls the court’s revelation to the party or to the community.
MR SOFRONOFF: No, your Honour, with respect, we would submit that is not right because the Commissioner asserts that the revelation that the disclosure of the documents would prejudice operations but it is for the court to decide whether that is true.
In our respectful submission, when one looks at how the statute actually operates with respect to the facts that need to be disclosed against which there is no statutory prohibition, one is left with, it is true, a withdrawal of some of the usual rights that one expects parties to have when litigating in the Supreme Court of a State but not to the degree that it renders that court an unsuitable repository of federal judicial power.
That must be so, your Honours, because as cases like Russell v Russell and other instances that we cite in our outline, there is from time to time a withdrawal of one of the decisive characteristics of judicial process because a competing public interest is served and that withdrawal occurs without infecting the core fatally and, in our respectful submission, this legislation falls into that category. Those are our submissions, your Honours.
GLEESON CJ: Thank you, Mr Solicitor. Yes, Mr Grant.
MR GRANT: Your Honours, we make three points very briefly in addition to our written submissions. The first is to support the construction of section 76(2) of the Act which is pressed by the respondent and alluded to just before by Queensland, that is the Commissioner’s identification of material as confidential, we say, is not conclusive and the court is permitted to go behind that determination in order to determine whether it would in fact prejudice police operations or whether that precondition to the Commissioner’s entitlement is made out.
KIRBY J: Can you think of a case where a court in the face of an assertion by a police commissioner that it would prejudice operations has decided that it will overrule that determination as unreasonable, or Wednesbury unreasonable? I cannot.
MR GRANT: Your Honour, we do not see the process that the court is required to adopt under 76(2) as being the same as the judicial review process on Wednesbury grounds. We see it as more akin to a determination whether a claim for public interest immunity based upon the proposition that the disclosure of the documents would disclose police information gathering techniques or identify an informant, whether or not those grounds are made out. When the statute in section 76(2) refers to prejudicing police operations, that is, we say, a clear reference to that well‑recognised ground of prejudice. So the process that section 76(2) contemplates, we say, is that is not a process.
Your Honour would be aware of many, many circumstances in which a claim for public interest immunity is made by a commissioner of police on those grounds and is rejected on the basis either that the ground is not made out or that the balancing exercise warrants the provision of the information. Obviously, that second reason for refusing the claim does not apply here but it is certainly open, we say, for the court to determine whether or not on the face of the materials and any further affidavit material it might seek, the Commissioner’s entitlement is enlivened; that is, whether or not there is some real fear or some real basis on which to suggest that police operations might be prejudiced by their disclosure of the information.
That is a question, your Honour, which does not operate in the ether. It is a question, we say, that operates in that well-recognised field of public interest immunity. Does the information disclose an informant’s identity or does it have the potential to, and does the information otherwise identify police surveillance techniques and information‑gathering techniques in a manner which might prejudice their enforcement functions.
Your Honours, the second matter that we put in addition to our written submissions relate to your Honour Chief Justice Gleeson’s question, whether the court might order particulars of the grounds relied upon by the Commissioner. As we have just detailed in submission, the purpose, we say, of the 76(2) entitlement is to protect the operations of police, namely those identified, public interest matters such as informants and information‑gathering techniques. It is quite clearly possible, your Honours, to give a summary of grounds and, indeed, quite possible to give a summary of information upon which those grounds are based without descending into the techniques that are sought to be protected or without defeating the purpose of 76(2).
Your Honour Chief Justice Gleeson this morning identified a difficulty with that particular safeguard or procedure in that sometimes a provision of a ground will be of limited utility, particularly where the information in question might be based upon information that has been provided by an informant and the identity of the informant is the very information sought to be protected. On the other hand, the very information which allows some assessment to be made as to the value of the information or its credibility, and your Honour identified that as an issue that arose frequently in this Court and particularly in immigration matters.
If I could refer your Honours to the joint judgment in Applicant VEAL of 2002 v MIMIA (2005) 225 CLR 88, particularly paragraphs 28 and 29, that very issue is dealt with by the members of this Court. Of course the observation that was made, the very obvious observation that was made there was that if the author of the letter was not identified to the applicant there was no basis on which to assess the credibility of that particular informant.
The Court accepted that as a proposition, readily accepted it as a proposition, but went on to say in paragraph 29 that it was not necessary in order to satisfy the requirements of fairness that the identity be disclosed. It was enough in those circumstances to give the substance of the information which formed the ground upon which the Minister relied because of course to disclose the identity of the informant would not further the public interest in the proper administration of the Act and may also have the corollary effect of damaging public interest in that information otherwise provided to the Minister might dry up. This Court made the observation that no doubt the response in those circumstances would have to be considered by the tribunal of fact – in light of the fact that there was no possibility of testing the credibility of that informant.
That is a matter, of course, that the tribunal would have to determine in weighing the probative value of the information and a similar observation can be made in relation to this process if the public interest warrants the non‑disclosure of an informant’s name with the consequence that the credibility of the information cannot be tested. That is a matter which the court must necessarily take into account in determining the weight to be attached to that information and in determining the reasonableness of the Commissioner’s view based as it is in part on this information.
Your Honours, that conclusion, if it be right in relation to the provision of a summary or the provision of particulars and the power of the court to order that, ties in with the notion that the court retains its general powers, including powers to prevent abuses of process and the power to fashion procedures such as the provision of particulars and summaries in furtherance of the interests of justice.
KIEFEL J: But that assumes that it is really the informants that are the main confidential information. There may well be facts that the Commissioner does not want people to know that he knows and it may be those facts which are pivotal to the formation of a belief or can be seen by the court to be so important as to provide some sort of central plank in the formation of a belief. That is where the problem arises and that is where you have to have a black and white answer about the court withholding it, do you not? You have to assume that in some cases this will arise and the court is not going to be able to fashion it just by particulars. It either has to be something that the court can say does not intrude too much into its processes and that natural justice cannot be afforded and the other party cannot completely know their case and then deal with it on that basis, but the notion that in each case one is going to be able to fashion particulars around it might not be correct.
MR GRANT: Can we make two responses to that, your Honour. The first is that in theory that is correct. There may be facts and certainly section 76(2) contemplates that facts might be withheld from an applicant for review, but in the context in which this legislation operates it is difficult to see that arising. If one accepts that the purpose of the legislation is to preclude the disclosure of those traditional categories of information, that is, the identity of informants or the manner in which the police gather their information ‑ ‑ ‑
KIEFEL J: That is what I am saying. I think that is the wrong assumption, that there might be matters which are truly fact which have been gleaned by the process of information, they are a result of the information or inquiry and that is the very matter which is the confidential information not to be disclosed. That is where I think the difficulty lies about the notion of providing some particulars about it in some oblique way.
MR GRANT: We understand your Honour’s point but it is difficult to see how a fact in itself, which would not have the effect of disclosing information of the sort that we have identified, might prejudice the operations of the Commissioner of Police because that, of course, is the ‑ ‑ ‑
KIRBY J: But the problem is the face of the statute appears to leave that to the Commissioner of Police, certainly in the first instance, to decide and by his directions or by his decision to prevent the court disclosing to any other person whether or not a party to the proceedings or to the public. All of you have come along to try to read that down but you cannot get away from the words in section 76(2).
MR GRANT: You cannot, your Honour, and, of course, we say the two operative words there are “may” and “if”. “May” gives the Commissioner an entitlement and “if” subjects that to a condition. It is an entitlement that can only be exercised if the disclosure of the information might prejudice the operations of the Commissioner of Police.
It is plain, we say, from section 76(1) that such information as the Commissioner had regard to will be before the court. The fact that it is before the court allows the court to make an assessment as to whether or not that pre‑condition to the operation of the Commissioner’s entitlement is satisfied and, as one of my friends said in argument yesterday, it would be open to the court to call further information, including affidavit evidence, in relation to that in order to satisfy itself that the pre‑condition was satisfied.
KIRBY J: If this provision stands up it seems to me that we will back to the 1930s and there will be equivalent provisions in State legislation saying that it is for the Minister or the head of the department or agency to make conclusive determinations of matters of public interest privilege or immunity and that the court cannot disclose the material to the other party or to the public. If it can be done here it can be done elsewhere. That is why we have to consider not just this case but how it works in other cases.
MR GRANT: We appreciate that, your Honour. We can only make the submission that section 76(2) does not operate to make the Commissioner’s determination conclusive. Can we make the further submission that, as the respondent has identified in its written submissions, there is a provision of the Evidence Act (NT) Part IVA which provides still for a conclusive certification by the Attorney‑General that material is subject to public interest immunity and cannot be produced even to a court. In terms of assessing the conduct of the various bodies politic, or executives rather that appear before this Court, that legislation has never been used or invoked in the Territory. If that allays your Honour’s concerns at all, the fact that it is there probably still causes ‑ ‑ ‑
KIRBY J: It does not allay my concerns.
MR GRANT: Your Honour may be aware that there was for a brief period similar legislation in force in New South Wales which was repealed, I think, again without ever being invoked by the Executive. Going back to our second response to your Honour Justice Kiefel’s question, we accept, subject to the qualification that we made previously about the context in which this operation operates, that there may be circumstances in which facts are withheld from the applicant for review pursuant to section 76(2).
The only inquiry that flows from that is whether that particular fact, that operation of the legislation having regard to the other safeguards that we have adverted to is such as to so distort the character of the Supreme Court of Western Australia that it does not comply with the Kable strictures. We say, having regard to the totality of the operations of that Court, having regard to the fact that the Commissioner’s power, as we submit, is not a conclusive power, that that is not the result of this legislation. We cannot put the matter any higher or say anything more in relation to that, your Honour.
KIEFEL J: I was not suggesting it was in any way conclusive of the question. I was only querying whether or not it is correct to proceed upon the premise that in most if not all cases the confidential information withheld can be somehow summarised or particularised and provided, because that seemed to proceed upon the basis that it is either information or methods of surveillance, whereas in some cases it will be a fact that the Commissioner does not want someone to know that it is within his knowledge. It could be critical and that could be the very thing which would upset the investigation.
MR GRANT: It may be, your Honour, but we do not resile from the submission that that would be the unusual case, in context.
KIEFEL J: I do not think you can make those assumptions and I do not think that is how you should approach the construction of a statute.
MR GRANT: Your Honour, the proposition, accepting the difficulty that your Honour Justice Kiefel identifies, that the Court retains all of its powers in terms of precluding abuses of process is consistent with the result in Mansfield, as your Honour Justice Gummow ‑ ‑ ‑
GUMMOW J: It is the Electric Light principle really, is it not?
MR GRANT: I am not familiar with that.
GUMMOW J: That is where it all comes from.
MR GRANT: Yes, your Honour. One must take them as you find them. It is also consistent, that particular notion that the Court retains its general powers, with what was said by Justice Gaudron in Polyukhovich at 703 to the effect that the powers of a superior court of that sort cannot be abrogated without clear legislative statement and there is no such statement in the legislation here under consideration.
GUMMOW J: What was that page in Polyukhovich?
MR GRANT: Your Honour, that is (1991) 172 CLR 501 page 703. The final submission we make is in relation to the observation your Honour Justice Kirby made yesterday to equality of arms in the context of fundamental justice requirements that have been discussed in the overseas cases. It is a concept that is discussed in your Honour’s reasons in Thomas v Mowbray in those terms at paragraph 364. Your Honour there identified ex parte determinations, the minimisation of rights by way of short notice periods and the withholding of evidence as offending features in relation to the operation of the division.
KIRBY J: I may be wrong, but I think it arises in the jurisprudence of the European Court of Human Rights in explaining the obligation of independent and impartial tribunals.
MR GRANT: It does, your Honour, and, as we say, in those terms equality of arms but we compare and contrast that with the notion of equal justice, as discussed in Leeth v Commonwealth. It is a different phrase and a different formulation, we say, and the one which has application in the Australian context.
KIRBY J: But Dietrich was surely an attempt by this Court to ensure equality of arms between people in serious criminal trials.
MR GRANT: Yes, that is one way of seeing it, your Honour.
KIRBY J: I think it is even explained in those terms, though not with the use of equality of arms.
MR GRANT: Yes, your Honour. In the context of the Kable principle and Chapter III principles, Justices Deane and Toohey spoke of equal justice.
KIRBY J: I know that, but that is a minority view so far.
MR GRANT: It is, your Honour, and their Honours did not go so far as Justice Gaudron who also spoke in terms of equal justice, but the point we make is that even if one adopts what it was that Justices Deane and Toohey identified in that case at pages 486 to 487 – that is Leeth v Commonwealth (1992) 174 CLR 455 – their Honours there observed that at the heart of the obligation to Act judicially was the duty to extend to the parties equal justice and that in turn resolved to treating the parties fairly and impartially as equals before the law and to refrain from discrimination on irrational or irrelevant grounds.
Your Honours, we say that the legislation here cannot be said to direct a result. It does not direct differential treatment on irrelevant or
irrational grounds. Insofar as there is any differential treatment it is the result of the direction of the legislature and it is in aid of a traditionally recognised public interest, we say, nor, your Honour, does the legislation abrogate the court’s inherent powers to fashion procedures to prevent injustice. If it please the Court, they are the submissions for the Attorney‑General for the Territory.
GLEESON CJ: Thank you, Mr Grant. Yes, Mr Renwick.
MR RENWICK: May it please your Honours. In view of what has already been said I can be very brief. First, apart from relying upon our written submissions, we generally adopt what Mr Jackson has said including as to the preferred construction of section 76 of the West Australian Act.
Secondly, turning to our submissions at page 6 we particularly rely upon what Justice McHugh said in Fardon’s Case at paragraph 41 which is there set out, that is, his Honour says, State laws can validly alter such matters as burdens of proof and rules of both evidence and procedure even if doing so is repugnant to the traditional judicial process. That is why we say in our submissions at paragraph 2.2 that it may well be the case that the sole application of the Kable Case may be wrongly decided, that is to say, Re Criminal Proceeds Confiscation Act, a decision of the Full Court of the Supreme Court of Queensland.
KIRBY J: It is a time since I have read what Justice McHugh said, but I just for myself could not accept that a State statute can override a constitutional principle. I mean, if the constitutional principle is that you cannot establish something repugnant to the judicial process because you cannot then legitimately accept federal jurisdiction, then I just do not see how a State statute can override that.
MR RENWICK: The point I am actually about to come to is that on analysis a number of the features of section 76(2) are known to the law already, even absent statute. Courts do them under their inherent powers now and those are the two short points I want to seek to make good. Can I take your Honours to the appeal book at page 143 which sets out – and this will not take very long, your Honours – the impugned provisions of the Criminal Proceeds Confiscation Act 2002 (Qld). Pausing there, we have provided your Honours with a full copy of the statute as it then was but I do not need to take you to that. Section 28 set out at page 143 says you can apply for a restraining order. Section 30 sets who may be present.
Subsection (1) says “if the State applies for a restraining order without notice”, the implication being it need not do so, but if it applies without notice, then the only persons who can be present are set out in subsection (2). Over the page in subsection (3) it is there set out that it must be made “in the absence of a person whose property is the subject of the application”. Justice Steytler, from whom these passages come, then sets out on this page and the next page passages from the leading judgment from Justice Williams. Can I draw your Honours’ attention to the last sentence in paragraph 105 of Justice Steytler’s judgment which is at the bottom of page 145, that is to say, the criticism his Honour makes of section 30, to which I have just taken your Honours, is that:
Effectively the provision directs the court to hear the matter in a manner which ensures the outcome will be adverse to the citizen and deprives the court of the capacity to act impartially.
May I finally, before making some brief submissions about this case, take you over the page to 147.
KIRBY J: Did this Court hear a special leave application in Criminal Proceeds Confiscation Act?
MR RENWICK: I do not know, your Honour. I actually think special leave was not sought, but I am not sure about that. At paragraph 109 of Justice Steytler’s judgment he sets out, with respect, correctly that perhaps Justice Williams framed the question incorrectly and in the last sentence of 109 says it may have made a difference. We would simply ask your Honours to note that at paragraph 44 of the Queensland judgment there is a statement as to the Kable principle which we say is incorrect.
I do not need to take your Honours to the Queensland case in detail but can I just make these short points. First, the State law like its counterpart in New South Wales at present makes a restraining order in proceeds of crime legislation the starting point in a process which can but need not lead to confiscation of the restrained property.
Furthermore, under section 36 of this Act in Queensland at the time, if within 28 days of the restraining order being made it was not extended by the court, which would be inter partes, or a confiscation order or similar order was not sought, then the restraining order ceased to have effect. Secondly, there were requirements for the court to be satisfied of certain matters before issuing the restraining order. I will just give your Honours the sections at this point. Sections 16, 23, 29 and 31 in the Queensland statute.
GUMMOW J: Why is it your business to turn up and dispute a decision accepted by the government of Queensland and not appeal?
MR RENWICK: We are simply seeking to get to this point, that mandating an ex parte but interim procedure, which is what happens invariably now in New South Wales under similar legislation, does no more than entrench a procedure which the court will almost always follow anyway and it follows from that that it makes it hard to characterise it as repugnant to the judicial process but, in any event, it falls within the qualifications to Kable enunciated by Justice McHugh in Fardon.
KIRBY J: But the delicate balance is left entirely in the hands of the court normally, whereas the difference here is that the delicate balance is adjusted by one party to the litigation. Now, that was not the case in the Queensland legislation that Justice Williams was dealing with. This is an aggravating factor of this legislation.
MR RENWICK: The point I am seeking to make good is if, under the court’s inherent powers, it would almost invariably take a certain course, and all I was seeking to say ‑ ‑ ‑
KIRBY J: Yes, but it would do so. That is the whole point.
MR RENWICK: I understand that point, your Honour.
KIRBY J: The court would do so.
MR RENWICK: I understand that point.
KIRBY J: And the court would be trusted to do so.
MR RENWICK: I understand that point.
KIRBY J: Whereas here the Court is not trusted to do so. The Commissioner of Police, a litigant, Executive Government officer has powers over the Court.
MR RENWICK: The only point I am seeking to make is that if a practice is almost invariably followed by a court – and here it is simply an ex parte application for an interim order – then the fact ‑ ‑ ‑
KIRBY J: It could be done here with the Commissioner of Police, it can be done with the comptroller of fisheries in Byron Bay, I mean, there is no difference in principle.
MR RENWICK: Your Honour may be right and that is the simple point I am trying to make, that it does not take you across the line of Kable invalidity because a law mandates a result which a court would almost certainly apply anyway.
GUMMOW J: I do not think you do full justice to Justice McHugh actually. You have to read what he said in paragraph 41, I think you referred us to, as a step in his conclusions at paragraph 42 on page 601 of 223 CLR and, in particular, the last two sentences at paragraph 42.
MR RENWICK: Yes, I understand. The only other point I wish to make, your Honours, which is perhaps a related point, namely, that preventing a party from seeing some or even all of the evidence which a court will rely upon in performing limited judicial review is a rare but, again, not unknown step that courts take already under their inherent powers even absent statutory authorisation. At paragraph 3.13 of our submissions we cite two such cases. May I swiftly take you to it. Nicopoulos v Commissioner for Corrective Services (2004) 148 A Crim R 74 and I need only take your Honours to the headnote at page 75.
This was a case, your Honours, where the Commissioner for Corrective Services of New South Wales had a power in effect to deny persons access to prisoners. He did so in relation to Mr Nicopoulos, a solicitor with a large criminal practice. The basis of him doing so in part was evidence which the Commissioner was not prepared to show to Mr Nicopoulos or to his counsel. Your Honours will see at page 75 in the headnote that Acting Justice Smart of the Supreme Court of New South Wales said that:
the court has the power to admit, and thus consider, the evidence in the confidential affidavits and not give the plaintiff access to that evidence.
Then in paragraph (3) of the headnote they refer to this as being an example where “procedural fairness was elided to nothing”.
This is the final point. Can I take your Honours to paragraphs 82 and 83 of this judgment where Acting Justice Smart refers to what Justice Lockhart did in an unreported decision, which I think the Commonwealth has given you, called Amer v Minister for Immigration, Local Government and Ethnic Affairs and this of course is an example in federal jurisdiction. What had happened there was the Minister had refused a Mr Amer a visa on national security grounds, that he was a threat to national security. What happened is that Justice Lockhart received as evidence in the confidential exhibits tendered to him material which he did not give to Mr Amer or his counsel. It is plain from the judgment, which I need not take you to except insofar as it is set out in paragraph 82 of Nicopoulos, that what Justice Lockhart was doing was different from a public interest immunity claim which had evidently been performed by another judge, Justice Shepherd, on an earlier occasion.
This is, again, a rare but real example of the phenomena I mentioned. Justice Lockhart says in the quote in paragraph 82:
For the Court not to disclose evidence to a party who may be affected by it, and to decline to disclose it on a restricted basis to counsel or solicitors for that party is a serious step which is taken only when necessary. This is a case where it is said that there is a conflict between the interests of the proper determination of issues between parties on the one hand and the balancing of national security on the other.
He performs that balancing exercise, declines to allow inspection and may I drop down two paragraphs, his Honour says, with respect, rightly:
There is no perfect solution to a problem such as has arisen here.
KIRBY J: But is the perfect solution to allow the Commissioner of Police to control what the court does? What Justice Lockhart did was a fairly conventional thing that courts do in ruling on these matters and since Cammell Laird, was it not, that said in the House of Lords in the early 1940s – that was the submarine case, I think – that the court could get the document if it so orders and the Executive Government must provide it to the court and the court is then trusted to make the decision. It is not in the hands of some officer of the Executive Government and that is in England, not in our separated judiciary.
MR RENWICK: The reason I have taken your Honour to these two cases is that they are rare examples of the courts doing that not in the course of determining a public interest immunity application which, if successful of course, will mean the evidence never goes in. Rather, these are rare cases but, we say, correctly decided cases, where a court actually accepts the evidence and acts on them in judicial review cases. I accept there is no perfect solution. Similarly, policy makers might differ as to whether section 76 contains a perfect solution to a real problem but, we say, even if it is not the perfect solution, that does not spell Kable invalidity.
Could I just mention one final matter. South Australia handed up a list of cases where confidential affidavits had been received by the court alone and I simply would note that receipt of a confidential affidavit, keeping secret the very grounds of the claim on a public interest immunity case, has been done and explained in two cases on that list, the first and the fifth. The first is Haj-Ismail v Madigan, a decision of the Full Federal Court, the fifth is R v Bebic, a decision of the Court of Criminal Appeal in New South Wales, the reference is at Haj-Ismail at 389 point 8.
GUMMOW J: Who is comprising the court in that case?
MR RENWICK: In Haj-Ismail v Madigan?
GUMMOW J: Yes.
MR RENWICK: I am sorry, it is a single judge and that again is a decision by Justice Lockhart and the reference is 389 point 9. It refers to R v Debic but it is quite plain that is a typographical error for Bebic.
KIRBY J: I do not see why you are citing these. These appear to be just orthodox decisions by courts in matters of confidentiality. It is not unusual for courts to make orders, as Justice Lockhart did, ordering that it be kept in an envelope, not to be accessed. I made those orders many, many times in the Court of Appeal of New South Wales, but it was left to me. It was not done because some officer in the Executive Government told me to do it.
MR RENWICK: No, I understand that. The question for your Honours, of course, is whether that circumstance that your Honour has just mentioned spells Kable invalidity? In our submission, it does not for the reasons set out in our submissions. Unless I can assist your Honours further.
GLEESON CJ: Thank you, Mr Renwick. Yes, Mr Solicitor.
MR BENNETT: Your Honours, I would expect to be about half an hour. I propose to start by answering two questions Justice Kirby has asked during the hearing then to proceed with the balance of my submissions in three sections: first, construction; second, treatment by courts of confidential information; and third, the applications of the Kable and compatibility principles to this case.
Your Honour Justice Kirby, first, asked about the antecedents of this legislation, the international antecedents. We understand from the Hansard that we have looked at that the antecedents were in New Zealand, Canada and principally Sweden. If your Honours wish, we can obtain copies of the relevant legislation, perhaps with a translation in the case of the Swedish legislation, and obviously we would seek a little time to do that. That has not been done before today. But if your Honours wish that, that can be done.
KIRBY J: I mean, I can fully understand terrorism legislation but it seemed curious to have legislation on barricades.
GLEESON CJ: Yes, we do wish that, Mr Solicitor, thank you.
MR BENNETT: If the Court pleases. Your Honour, of course, in the international arms control field control of antiballistic missiles is seen as almost as important as control of intercontinental ballistic missiles. I suppose there may be an analogy. Secondly, your Honour asked about reasons for judgment and the interference with State courts publishing their reasons. We would submit that there is a huge difference between legislation saying no reasons and legislation which says you cannot put particular types of confidential information in your reasons.
KIRBY J: So you do not accept that consistently with the Kable principle, State legislation could forbid a Supreme Court from publishing reasons?
MR BENNETT: The Court does not need to decide that in this case ‑ ‑ ‑
KIRBY J: I realise that, but I am doing what the Court did even this week in Roach. I am testing the proposition by other hypotheses.
MR BENNETT: Your Honour, it would be difficult to see the justification for a blanket prohibition on reasons unless perhaps it was the saving of paper in the face of an extreme paper shortage, in which case I suppose it might permit them to be delivered orally.
KIRBY J: Publish them electronically.
MR BENNETT: Yes. Well, I suppose the oral publication might cause a release of some carbon dioxide too. Your Honours, as a general matter it may well fall within some aspect of the Kable decision, we would not concede that, but it is certainly much more arguable in this case that a blanket prohibition of that type might give rise to problems.
GLEESON CJ: I thought you were going to say the solution is multifactorial.
MR BENNETT: No, your Honour, we refrain from that. What we do say is that to say keep confidential material out of reasons is a standard thing which courts frequently have to do for a variety of reasons.
KIRBY J: Not normally on the direction of an officer of the Executive Government.
MR BENNETT: Well, I come to that, your Honour. We say it is not on the direction of an officer for reasons I will come to. but one could think of numerous examples. If one seeks an injunction against the disclosure by an employee of confidential information it would hardly be helpful for the judge to grant the injunction and set out the confidential information in his or her reasons. One gets the same sort of thing in custody cases and one gets it no doubt if there was an action for an injunction against a blackmailer to prevent the blackmailer disclosing the information, one would not put the information in one’s judgment.
An example to the contrary, an example of where the decision of the court is frustrated by a publication in a judgment, and a bizarre example, is the decision of the Full Federal Court in Brown v Members of the Classification Review Board (1997) 82 FCR 225. It is not on any lists your Honours have.
GUMMOW J: This is how to steal?
MR BENNETT: How to shoplift.
GUMMOW J: Yes.
MR BENNETT: There was an article in a university newspaper which not only advocated shoplifting but also explained in some detail the techniques which should be used in doing so; not to be caught and to do it effectively and so on. The publication was refused classification, which meant in effect that it was banned, and that was upheld by Justice Merkel and by a unanimous Full Federal Court consisting of Justices French, Heerey and Sundberg. So everyone agreed the material had to be banned but one of the justices in the Full Federal Court set out the whole of the article verbatim as a schedule to his judgment. That is an example of what one should not do. It is an example of publication of reasons frustrating the whole purpose of the litigation and a very good example of why in some cases it should not be done.
KIRBY J: On the other hand, in many defamation cases it is necessary to set out the matter complained of in order to explain the reasons and that, therefore, gives a privileged report and it is difficult to deal with the matter unless you do so, even though it is harmful to the person defamed.
MR BENNETT: Your Honour, as I will be coming to, I will be echoing what was said on behalf of New South Wales in quoting Justice Lockhart as saying there is no perfect solution in these cases. One of two things has to give, but I will come to that. But in relation to publication of reasons we would submit that to say you cannot put the confidential material in the reasons and you need to mould the reasons in such a way that the reasoning process is exposed without disclosing the information is something that courts have to do all the time. Defamation cases may be cases where sometimes the court does have to do that, where sometimes the court may have to say this defamation is so scandalous about so well-known a person and so false and it adds nothing really to the law that it is better not to disclose it in the reasons.
GLEESON CJ: That is what they did in the case of Mr Chappell. We will adjourn until 2.00 pm.
MR BENNETT: If the Court pleases.
AT 12.45 PM LUNCHEON ADJOURNMENT
UPON RESUMING AT 2.01 PM:
GLEESON CJ: Yes, Mr Solicitor.
MR BENNETT: To complete my answer to Justice Kirby’s question about reasons, might I remind your Honours of the decision of Haines v Liggett Group Inc 975 F.2d 81 (3rd Cir. 1992) at page 97. I have given your Honours copies. What happened in this case was that there was a disputed claim for privilege in tobacco litigation and the trial judge refused the claim for privilege and set out the allegedly privileged material in his reasons. The Circuit Court of Appeal allowed an appeal and complained about the fact that the trial judge had set it out in the reasons and therefore made it more difficult. The passage appears in paragraph [14] on page 97 where the Court says this:
This, too, must be said. Because of the sensitivity surrounding the attorney‑client privilege, care must be taken that, following any determination that an exception applies, the matters covered by the exception be kept under seal or appropriate court‑imposed privacy procedures until all avenues of appeal are exhausted. Regrettably this protection was not extended by the district court in these proceedings. Matters deemed to be excepted –
that was by the crime or fraud exception –
were spread forth in its opinion and released to the general public.
GLEESON CJ: The page you have given us does not show what happened about the most agonising aspect of the case. What happened? Did they remove the judge?
MR BENNETT: They removed him from the continued hearing of the trial but they did that on a slightly different basis. He said, among other things:
As the following facts disclose, despite some rising pretenders, the tobacco industry may be the king of concealment and disinformation.
That was, of course, quoted widely in the press and the Circuit Court of Appeals took the view that judge should no longer hear the case having said that at an interlocutory stage.
KIRBY J: But there is nothing remarkable about that. This is done all the time in Australian courts, not publishing the confidential material, but protecting it, but it is left to the judges. That is the point of distinction and it has been for 150 years, more.
MR BENNETT: Your Honour, it is left to the judges here because the judge decides whether or not the disclosure might prejudice the operations of the Commissioner and I am just coming to that. As a matter of construction, we support what is said by the respondent in South Australia about that. If your Honours look at section 76(2) one gets that from the word “so”. Your Honours see the first part of the subsection, which your Honours probably know by heart by now:
The Commissioner of Police may identify any information provided to the court . . . if its disclosure might prejudice the operations of the Commissioner of Police –
So he can only identify it if its disclosure might do so. Then “information so identified”, we submit, the word “so” picks up the first three and a half lines down to the words “Commissioner of Police”. It does not just pick up the act of identifying. One has to look at what is identified and when it can be identified. So reading the second part of the subsection with the insertion, it reads “information identified by the Commissioner and provided to the court for the purposes of the review whose disclosure might prejudice the operations of the Commissioner is for the court’s use only”. If the court comes to the view that the material does not fit into that category, it is not bound to do so.
Suppose, for example, the Commissioner disclosed criminal records of people and said, “I claim confidentiality for or under that subsection”, the court would say, “Clearly that can’t possibly prejudice the operations of the Commissioner and therefore we release it”. So it is not a matter of someone outside dictating to the court. The court makes the determination. There are, of course, many situations where a party has an election ‑ ‑ ‑
KIRBY J: The court does not make the determination if the Commissioner does disclose it and then makes the claim that is referred to in the last sentence of section 76(2).
MR BENNETT: I am sorry, your Honour.
KIRBY J: In that matter, that is to say, the matters which are identified by the Police Commissioner “so identified” that what Parliament has said is that that is:
for the court’s use only and is not to be disclosed to any other person, whether or not a party –
et cetera, so the Police Commissioner has his own definitive powers to decide what he discloses and that which he discloses may not be disclosed to any other party.
MR BENNETT: No, your Honour, only if, in fact, the court regards the material as coming within the description as being material whose “disclosure might prejudice the operations”. If the court does not take that view, then the material is not caught even if the Commissioner purports to identify it.
KIRBY J: It is a question of interpreting the subsection but in the face of what Parliament has given to the Police Commissioner and given the Police Commissioner the power to delimit and to require not be disclosed, it would be a very brave judge, to use Rumpole’s expression, or it would be a very brave judge who decided that he would overrule what the Commissioner has determined.
MR BENNETT: I would submit not, your Honour. There are three factors. There is the word “so” which I have referred to. There is the fact that one must construe a section so far as possible to render it valid if it might invalidate it the other way, that would be a reason for construing it this way ‑ ‑ ‑
KIRBY J: Justice Heydon has reminded me, from his greater knowledge, that it was Sir Humphrey who cited this. I knew Mr Mortimer’s hands were over it.
MR BENNETT: Thirdly, of course, one would in any event construe it beneficially it and not as enabling an officer to do something invalidly or wrongly and have his invalid or wrongful act, contrary to the statute, given statutory effect. One simply would not construe it that way. It is a far more natural reading to allow the word “so” to be read the way I have read it and then all that is protected is material identified by the Commissioner whose disclosure might prejudice.
KIRBY J: The verb “identified” is identified by the Commissioner.
MR BENNETT: No, your Honour, with respect, not. It is identified by the Commissioner and “provided to the court for the purposes of the review . . . if its disclosure might prejudice the operations”, it is the whole phrase. The “so” is the first three and a half lines, not just the identification.
KIRBY J: I suppose an argument in favour of that interpretation is that otherwise the verb would have been provided, “the information so provided is for the court’s use”.
MR BENNETT: Yes. Or, your Honour, if it simply said “information identified”, but the word “so” picks up something more than the word itself. It is identified in the manner – “so” means in the manner referred to.
KIRBY J: Except that in the first sentence of the subsection it says “The Commissioner of Police may identify” and it is the “information so identified”. That is the information identified by the Commissioner.
MR BENNETT: No, your Honour, that is just taking certain words and not taking the whole of the phrase.
KIRBY J: It is the common verb “identify”. Who does the identification, not the court. It is the Commissioner.
MR BENNETT: The Commissioner identifies ‑ ‑ ‑
KIRBY J: “So identified”, ie, by the Commissioner.
MR BENNETT: No, your Honour, we would submit “so identified” picks up the identifier, the description of the information and the condition for its ‑ ‑ ‑
KIRBY J: I have never seen so many law officers coming along to this Court trying to read down the words of a Parliament.
MR BENNETT: I would submit we are not seeking to read it down. We are seeking to give it a meaning which is in accordance with general principles of interpretation and which would make it valid and which, as a matter of English, flows naturally, but if the other construction had been desired, it would have been easy to make that clear. If one looks up the word “so” in a dictionary, it is a word which deals with the material surrounding the word. “So identified” means identified in the manner and subject to the conditions and by whom and to whom is being referred to. As I say, the contrary view would mean that if the Commissioner acts wrongfully or erroneously, that has an absolute effect and that is a less likely construction. That is the first submission on interpretation.
The second aspect is what the court’s function is and its function is quite clear. It appears a number of times in the section. It is to decide whether or not “the Commissioner of Police could have reasonably had the belief”. So the court has to determine could the Commissioner reasonably have had the belief. The first thing to note about that is that it is considerably wider than judicial review.
Your Honours will be familiar with the purple passage in the judgment of Justice Deane in the Federal Court in Sean Investments v MacKellar (1981) 38 ALR 363 at 375, for the transcript. That was where Justice Deane said, among other things, that it is for the decision‑maker to decide what weight he or she gives to relevant factors and one does not make out a ground of failure to take into account relevant considerations or taking into account irrelevant ones because there is a weight the court would disagree with, except perhaps in Wednesbury situations where it is more than mere weight.
KIRBY J: Except that the very person being reviewed ties the hand of the person who wants to challenge the reasonableness of the decision by declining to give that person and having the last word on it the material that that person may use to attack the reasonableness of the decision.
MR BENNETT: I have already submitted he does not have the last word on it, your Honour. I was dealing with a different aspect at the moment and that is the scope of the review itself when one gets past the question of what material is looked at.
The point we make is that here it would be open to the court to overrule the Commissioner on the basis that the court regarded the weight the Commissioner had given to particular factors as being unreasonable. Let us suppose, for example, to give a hypothesis, that the appellant in this case had in its submission said “We have three times in the last month had raids by a rival motorcycle group which has smashed our motorcycles and done damage” and so on. One would have thought that would be an enormously powerful consideration in defence of the fortifications. A court might well say the Commissioner could not reasonably have decided as he did because he should have given much more weight to that factor. Now, that it could not do in judicial review. This is a wider scope of review.
The next question is what material does the court look at, and, of course it is looking at the Commissioner’s decision at the time. Your Honours see in subsection (5) the words “when issuing the notice” and those words appear at the end of subsection (1) as well. So what the court is looking at is the reasonableness of the Commissioner’s belief at the time when the notice was issued. So the question then becomes what can the court look at? Clearly the submissions first, clearly information taken into account by the Commissioner that is referred to in subsection (1). There is a question which the court does not have to answer as to whether it can take into account information known to the Commissioner but not taken into account by him or her. That may be a difficult question which would have to be resolved if it arose. The fourth category which might have to be resolved if it arose is material constructively known to the Commissioner; if a police officer knew something and the Commissioner did not subjectively know it – on a Peko-Wallsend type of analysis.
Now, we do not need to answer those last two questions. It is more difficult to see why the underlying facts would be relevant. If, however, the true construction of the section is that the court can look at the underlying facts then of course, as Justice Hayne put to my learned friend, Mr Grace, they are going primarily to be facts within the knowledge of the applicant rather than the Commissioner. The rare case where there is a problem, the only case where it is going to be a real problem in, except perhaps for even rarer examples one could think of, is the example my learned friend, Mr Grace, put of the informer who is a convicted perjurer and the Commissioner of Police on this assumption knows that the informer is a convicted perjurer and that is a matter which could be brought to the court’s attention by the appellant if it knew that X was the informant.
I accept that in that very rare type of situation there may well be a problem which has to be dealt with. The question is, is the possible existence of that problem in the very rare fortification removal case where it is going to apply – and, remember, fortification removal cases themselves are pretty rare. This is the first one, we are told, or the only one. So we are not talking about a major part of the court’s business, we are not talking about an example that is ever said to have occurred. It is a hypothetical thing that might occur in one unlikely situation in an unusual type of case. It is then sought to be said because of that, because of the resulting unfairness in that situation, that stops the court being a suitable repository and prevents the court being a body which satisfies the various Kable and other tests. With respect, your Honours, I do not want to use the word “proportionality” but it is the word that comes to mind when that submission is made.
KIRBY J: Why do you not want to use the word “proportionality”?
MR BENNETT: Your Honour, because it is a word which has other implications in constitutional law which one does not want to get involved with.
GLEESON CJ: You mean long bow?
MR BENNETT: Yes, “long bow” is the more appropriate phrase. The next matter of construction is a very minor matter and it is, I suspect, uncontroversial. I think my learned friend, Mr Grace, said this by accident. He said in the course of his submissions that the Commissioner can decide what the court admits into evidence. That, with respect, is not the case. Whether the material goes into evidence or not is determined in the normal way. The Commissioner does not decide that. What the consequence of the identification and, we say, the valid identification is it has no effect on whether it goes into evidence. It affects whether the other party can see it and matters of that sort.
KIRBY J: Would it not have been more accurate to have said the Commissioner decides what the court may not admit into evidence?
MR BENNETT: Not quite, your Honour, because it is ‑ ‑ ‑
KIRBY J: If it cannot be revealed publicly, it cannot be received into evidence, can it?
MR BENNETT: Yes, your Honour. A court can receive a confidential exhibit and frequently does. It is unusual for it to be confidential from the other party. I will be taking your Honours to examples of that later. But it is received into evidence.
KIRBY J: What did Justice Lockhart do in that case? Did he receive it into evidence or simply mark it for identification and order that it be kept in the registry under seal?
MR BENNETT: I do not know the answer to that question. I might have an answer to that later on. I will have Dr Donaghue look at that.
KIRBY J: I do not remember seeing him say that he – that was in another proceeding earlier in the proceedings. It does not matter much.
MR BENNETT: No. One should note, of course, that this case is different, as has been said many times, from cases where the confidential material is totally withheld from the court as well as from the other party. That, of course, is a factor which works both ways. It is a factor, in one sense, the applicant may be much better off having the material before the judge without being able to see it than not having the material there at all, which might be the alternative if there was a public interest immunity claim made. The applicant would have difficulty satisfying its onus that the Commissioner could not reasonably have had the belief if there is material which no one has seen.
If the position is that the court does not see the material, the court knows that there was material but that is withheld because of public interest immunity, how can the applicant ever persuade the court that the Commissioner could not reasonably have had the belief? So the applicant would fail. The applicant is better off with subsection (2) than it would be with public interest immunity, because with subsection (2) the judge sees the material, although the applicant does not, and the judge is able to say, “Having looked at the whole of the material, I can form the view the Commissioner could not reasonably have made the decision”.
KIRBY J: Yes, but with public interest immunity I think the judge can require that he or she see the material in order to be satisfied that it is of a type that falls within the proper claim for the immunity.
MR BENNETT: Yes, but that is only on the interlocutory application concerning public interest immunity. That is not in the main action. The judge would not be allowed to take it into account in the main action. The judge inspects the document and decides it has public interest immunity. When the judge comes to decide on the substantive matter before him or her, the judge cannot take into account that material any more than the judge can take into account material the judge saw in an interlocutory application. It is in the public interest immunity contest, not in the main action that the judge sees it.
KIRBY J: In the old days all of these things were done in the course of the trial.
MR BENNETT: Yes, and sometimes today it is done by another judge. Sometimes today a judge will ask another judge of the court to decide a public interest immunity claim or a privilege claim so that the judge is not corrupted by seeing the offending material, if it is ultimately held not to be material that the judge should see. Now, your Honour asked about Amer. On page 2 of his Honour’s judgment, Justice Lockhart says this. This is the direct answer to the question:
Counsel for the applicants seeks an order that the documents, confidential exhibits 3 and 4, be made available for inspection –
and then he goes on to deal with ‑ ‑ ‑
KIRBY J: So they were exhibits.
MR BENNETT: So they were exhibits.
KIRBY J: I think on occasion I simply marked it for identification, but I think that is a peculiar New South Wales procedure. I am not sure that it is always done elsewhere.
MR BENNETT: Yes. I remember, your Honour, years ago being against a litigant in person who kept saying to the judge “Can I get it in as an MFI?” because the litigant had discovered that was a way of getting the documents up to the Bench however inadmissible it was. But he does use the phrase “admitted into evidence as a confidential exhibit” in that case.
KIRBY J: Is that how Sir Anthony Mason received the materials in John Fairfax v The Commonwealth?
MR BENNETT: I do not know, your Honour. I think in New South Wales it would normally be marked for identification, but one could if one treated ‑ ‑ ‑
GUMMOW J: Why does it matter?
MR BENNETT: It does not, your Honour. If one treated the application for public interest immunity or for determination of the privilege question as an interlocutory motion in the action, then it would only be evidence in that motion, not evidence in the action, and that is the other point I made before. Those are the submissions in relation to construction. The second part of my submissions concerns treatment of confidential information.
GUMMOW J: Why does this matter either?
MR BENNETT: Because, your Honour, what I am seeking to show is that if – putting this in the colloquial sense – there is some principle derived from Kable or from the remarks of Justice Gaudron in a number of cases which prevents certain minimum requirements being taken away from courts, then this does not fall within that because this is something that is not dissimilar to a situation courts confront on other occasions. That is the purpose of this part of my submissions.
GUMMOW J: The question is, taken away by whom?
MR BENNETT: Your Honour, it is taken away by the legislature in this case, which simply says that instead of saying that certain confidential material shall not be available at all, says it is available but is not shown to the other party or available to be publicised. That is what I have to deal with. There are, of course, many cases involving trade secrets where the courts do not disclose particular things to a party. Usually as conditions on inspection ‑ ‑ ‑
GUMMOW J: We know all these things, Mr Bennett. There is about 90 years judicial experience sitting here looking at you.
MR BENNETT: Yes. Well, your Honour, I will not say more about that than I have already said.
HAYNE J: It is rapidly ageing, Mr Solicitor. At the moment you have gone to about 11 o’clock yesterday’s argument and you have repeated it. What is new?
MR BENNETT: Well, your Honour, there are a number of cases where the courts have expressed concern about the suggestion that one can simply solve the problem with confidential information by disclosing it to trusted legal practitioners. The courts have said on a number of occasions that there are difficulties with that procedure. The difficulties do not arise out of the absence of trust or the absence of ethical probity on the part of the practitioners. The difficulties arise for a number of reasons. The first is the risk of accidental disclosure. I do not need to say more about that. The second is that it places the litigant’s counsel in a difficult position concerning the lawyer’s relationship with the client, the inability to disclose material to the client and so on.
The third problem is that it may give rise to the court having to draw invidious distinctions between a trusted and untrusted lawyer, although that may be less of a factor today when security clearances are available. There are reasons why lawyers may decline to receive confidential information on that basis, not only their relationship with their client may be affected but also many people may feel, and legitimately feel, that if subsequently there is a leak from somewhere, if one is one of the few people who has been shown the document, one starts off on the list of suspects. Many people may not wish to be in that situation.
There are a number of problems with that. Those difficulties are referred to by Justice Lockhart in Amer. His Honour’s phrase “there is no perfect solution” is very much a summary of what I am endeavouring, unfortunately at greater length, to put to the court. In Nicopoulos, to which your Honours have been referred, there is some discussion in paragraph 99 of the difficulties faced by lawyers who have to give undertakings of confidentiality.
KIRBY J: But all of these are generalities. Can you name one statute other than this one where a police commissioner or officer outside the court has the conclusive power to control what the court reveals to another party and what the court reveals to the public of Australia?
MR BENNETT: I do not concede the word “conclusive”.
KIRBY J: Let us therefore put a footnote and say in most cases – in almost all cases.
MR BENNETT: Where the court has to deal with confidential information ‑ ‑ ‑
KIRBY J: Can you name another statute that is framed like this statute?
MR BENNETT: The closest I think is the one involved in the case Elbe Shipping SA v Giant Marine Shipping SA [2007] FCA 1000 at page 518 and 159 FCR 518. It is a decision of Justice Dowsett. That involved non‑disclosure to the court, not non‑disclosure to a party. It did involve the relevant officer having the power to decide whether the documents fell into the category or not.
KIRBY J: That is a different thing. We are talking here about a statute where somebody in the Executive Government effectively tells the court that they cannot reveal certain information to a third party and cannot disclose it to the public.
MR BENNETT: In that form the question involves the two separate elements, the first of which I dispute. Subject to that, the answer to your Honour’s question is no.
KIRBY J: Within your own postulate of the meaning of the statute, can you name another statute like this one?
MR BENNETT: I can certainly name common law situations which arise like this one. There can be public interest immunity situations ‑ ‑ ‑
KIRBY J: Common law moulds to the Constitution. We are looking here at the validity of a State Act of Parliament.
MR BENNETT: Each is subject to the Constitution, your Honour, ultimately, so the analogy is available to me. It comes down to what Justice Lockhart said, one has to reconcile three things, the confidentiality of the document, the need for the court to considerate it in reaching a result and the need of the other party to know it effectively to conduct his or her case. Those three cannot all be maintained. A solution which involves the court having the material and the other party not having it respects the first two and not the third. A solution which shows it to everyone with undertakings respects the second and third but not the first. There is never a perfect solution.
The question is, who is to decide and the answer, we would submit, is the legislature. The legislature makes the rules of evidence, it makes the rules concerning confidentiality of material and it is entitled to say to a court you may not receive certain matter or if you receive that matter you may not disclose it. That is part of the function of the legislature in this area. There are some remarks which support that in Nicholas v The Queen (1998) 193 CLR 173 at paragraph 239 in the context of “the breaking of the law by law enforcement officers” and asking the courts to ignore it. Your Honour, Justice Heydon said this:
It is said that if the courts do that, their reputation is harmed because they are seen to condone the breaking of the law by law enforcement officers
Applying that to this case it is said that if the courts do certain things their reputation is harmed because they receive information which they cannot show to another party.
But that is to ignore a fundamentally important consideration – that the courts would receive evidence which otherwise may have been rejected because that is the effect of the statutory injunction to disregard the fact that the law was broken by the law enforcement officers. There would, in these circumstances, be no harm to the reputation or integrity of the judicial process if the courts were to follow the law and there would be no harm to the reputation of the courts if, applying the law, a court received the evidence in the course of trying the issues . . . it is always necessary to recall that not every breach of the law by those who should enforce it led to rejection –
et cetera. The Chief Justice, Sir Gerard Brennan, in that case at paragraphs 37 to 38 put that slightly differently. In 37 he said:
To suggest that the statutory will of the Parliament, expressed in s 15x, is to be held invalid because its application would impair the integrity of the court’s processes or bring the administration of criminal justice into disrepute is, in my respectful opinion, to misconceive both the duty of a court and the factors which contribute to public confidence . . . It is for the Parliament to prescribe the law to be applied by a court and, if the law is otherwise valid, the court’s opinion as to the justice, propriety or utility of the law is immaterial. Integrity is the fidelity to legal duty, not a refusal to accept as binding a law which the court takes to be contrary to its opinion as to the proper balance to be struck between competing interests.
At the end of the day, that is what we have here, a balance between competing interests.
GLEESON CJ: How long do you expect to require to complete your submissions?
MR BENNETT: Your Honour, I would think about another 10 minutes. Perhaps a little longer, but probably 10 minutes.
It would elevate the court’s opinion about its own repute to the level of a constitutional imperative.
et cetera. I will not go through the whole of the passage. So, your Honours, we submit that this is a section under which the legislature has made a provision to protect confidentiality. In Elbe, if I can just return to that for a moment, in paragraph 28, there was some argument similar to that that has been heard today about the effect of the member of the Executive being able to decide that the material was confidential. Justice Dowsett says this at 28:
The plaintiffs also submit that the power conferred on the Executive Director by s 60(5) is judicial and therefore not capable of conferment upon that officer. There is no reason for treating the power as being judicial in nature other than that it results in evidence not being receivable in a court. Once it is accepted as it must be, that Parliament may legislate to exclude certain matters from being received in evidence, there seems to be no reason why it should not be able to empower an identified person to determine whether or not the Act’s protection should be invoked or waived. If this argument were valid, it would seem to follow that the legislation extending such protection should also be characterised as judicial and not legislative. There is nothing in this point. The submission is also put in a slightly different way. It is said that the legislation subordinates exercise of the judicial power to an executive discretion.
That is what is put against the respondent here. Then his Honour says:
While such a proposition has the typical appeal of a rhetorical flourish, it fails to address the fundamental problem that the authorities recognise the power of Parliament to legislate in connection with rules of evidence.
Ultimately, the legislature has to untie the Gordian knot. There is no perfect solution, as Justice Lockhart said.
GLEESON CJ: I thought that was usually cut.
HAYNE J: Because by definition it is impossible to untie.
MR BENNETT: Yes, I should have said cut. Well, perhaps it has the alternative of cutting it, untying it or leaving it bare. There are the three extreme alternatives I have referred to, the question of whether the court can see it, the question whether the party can see it, and so on. The court has to preserve confidentiality. The legislature wants to preserve confidentiality, allow the court to consider the matter and allow justice to be done to the other party. Something has to give. That may be a mixed metaphor in the context of a Gordian knot, but that is the point, something has to give. It is for the legislature to determine what it is that gives way and the extent to which it gives way. It can adopt any of a range of solutions and for the reasons given, the solution adopted in this case, while it may have some defects in relation to some aspects of the case, it is, for the reasons I have given, a fairly small inhibition in the vast majority of cases.
Now, another way of putting that is this. However one formulates the principle in Kable, and it is formulated, as your Honours know, in different ways, but however one formulates the principle referred to by Justice Gaudron in a number of cases about the nature of judicial process, what is relevant is not the importance of the principle but the seriousness of the violation of the principle. There can be a very important principle but a very trivial violation of it in the same way as there can be a very serious crime in the statute books and a very minor breach of it. Theft may be a very serious crime. A theft of one cent may not be of great importance. So here one does not start by saying, how important is audi alteram partem, we cannot allow anything to detract from that, that is not the test. The test is how serious is the violation of that principle in this case. Once it is put that way one sees that about the only time it is going to be of major importance is in the example of the perjured informer.
MR BENNETT: I concede that there is a further aspect, and that is the inability to make submissions about something one does not know, and I accept that is a factor. But again that has to be weighed in the overall scheme of things. I remind your Honours of Northern Territory v GPAO (1999) 196 CLR 553. It is not on any list. I can tell your Honours the relevant bit and your Honours probably remember it. The important point about that case was that case concerned a very different area. It concerned the Judiciary Act and the question of interstate movement and so on. But the relevant part concerned a subpoena and there was a prohibition on people producing documents to the court unless a certificate was given by a minister saying that it could be done. None of the court treated that as being the Minister dictating to the court ‑ ‑ ‑
GUMMOW J: There was no submission to that effect.
MR BENNETT: No, there was not, your Honour, but it is not a piece of ratio in the case but it is a conclusion that follows from the decision in that case that if the principle had been, as my learned friend seeks to put it, it would be surprising that no one referred to it and said, “But this provision may well be invalid anyway”, and no one suggested that in GPAO.
The final matter I want to mention concerns the judgment of Justice McHugh in Fardon. Most of the previous speakers have referred to paragraph 41 and I commend it to your Honours as they have. Your Honour Justice Gummow asked about paragraph 42 which is the qualification to paragraph 41.
GUMMOW J: No, it is not. It is the destination point.
MR BENNETT: Yes. Paragraph 41 starts with the proposition that:
The bare fact that particular State legislation invests a State court with powers that are or jurisdiction that is repugnant to the traditional judicial process will seldom, if ever, compromise the institutional integrity of that court to –
the relevant extent –
State legislation may alter the burden of proof and the rules of evidence and procedure in civil and criminal courts in ways that are repugnant to the traditional judicial process without compromising the institutional integrity of the courts that must administer that legislation. State legislation may require State courts ‑ ‑ ‑
GLEESON CJ: That has been read to us.
MR BENNETT: I know it has, your Honour. I was just answering the suggestion that paragraph 42 is the sole end point. Paragraph 42 says that:
The pejorative phrase – “repugnant to the judicial process” – is not the constitutional criterion . . . it invites error . . . no more than a reflection of –
judges’ personal dislikes or ‑ ‑ ‑
GUMMOW J: I do not know why you would be upset with paragraph 42.
MR BENNETT: I am not, your Honour. The conclusion is that the contrary view will only succeed:
when other provisions of the legislation or the surrounding circumstances as well as the departure from the traditional judicial process –
again, the breach not the principle –
indicate that the State court might not be an impartial tribunal –
et cetera. We submit that nothing that has been put to the Court in this case comes close to that a fortiori if the construction I have put to the Court of subsection (2) is accepted. Those are my submissions.
GLEESON CJ: Thank you, Mr Solicitor. Yes, Mr Grace.
MR GRACE: Your Honours, I have six brief points. The first relates to a question that your Honour Justice Kirby raised yesterday in relation to State
antiterrorism legislation. We have prepared a note in relation to the details of the various provisions in the States which we have provided to the Court.
KIRBY J: Is there any support for any of your arguments from the comparison, or not?
MR GRACE: Yes, your Honour.
KIRBY J: That is set out in the note, is it?
MR GRACE: Yes.
KIRBY J: Very well. There is no need for you to say it orally.
MR GRACE: The second matter concerns the issue of construction. I want to particularly focus upon section 76(2) and the Commissioner’s construction which seems to have been adopted by most of the intervenors. That construction does not overcome the problem that if confidentiality is properly claimed for information, then the applicant will not have access to the evidence relied upon by the Commissioner. As your Honour Justice Kirby remarked in discussion with a number of the intervenors and with the respondent, the practical effect is likely to be the same regardless of whether or not there is this reviewing process that the trial judge is entitled to undertake in relation to the sufficiency or the basis upon which the Commissioner has directed the Court that the information is confidential. So we say it does not overcome the denial of natural justice, the inability to make submissions or the inability of the court to give full reasons for its decision and the necessary result is an impairment of the institutional integrity of the court.
KIRBY J: It is not only submissions, it is to give evidence in response and to challenge by evidence the matters that are not disclosed.
MR GRACE: Yes, your Honour. Can I add, in relation to the attack – I think it may have been restricted to my learned friend the Solicitor for the Commonwealth – in respect of the rare instance or the hypothetical example of the perjured informer, that may well have been the case in this case involving the appellant. We just do not know. Perhaps the Commissioner could have informed the court whether that was in fact the case, but we have not been informed of that.
The third matter concerns the affidavits of the Commissioner. The discussion yesterday and today in part seemed to have proceeded on the basis that the affidavits that are contained and set out in the appeal book were provided to the appellant prior to the opportunity given to the appellant to make submissions. That was just not the case. All that was provided to the appellant is what is set out in the appeal book at pages 15 and 16, the warning notice. That was it. So the appellant did not receive those affidavits and all the information provided in it until the appellant had to take the step of instituting the originating summons for review pursuant to section 76(1).
The next matter I wanted to turn to briefly was the issue raised by reference to the case Public Service Board v Osmond and I postulate this possibility. What if all the information in the affidavit was blacked out? What then? What if, even accepting the Commissioner’s construction, the trial judge ruled that the Commissioner of Police was correct in his identification that the material ought to be treated as confidential? What then would the appellant or the applicant for review face and then, subsequently, when the court came to make its decision, what could the court then refer to in its reasons for decision? This touches upon what your Honour Justice Kiefel raised in your questioning I think of the Solicitor for the Northern Territory in relation to the issue of the crux of the material. If the crux of the material is contained within the confidential parts, then what meaningful submissions can the applicant for review make?
The fourth matter, your Honours, is this. There was reference made to the case of Commissioner of Police v Tanos and the denial of natural justice in that case. Three points need to be made about Tanos. First, as outlined in our submissions in reply at paragraph 9, the issue of constitutional invalidity was not raised or considered in that case and the legislation further was so different to the issues raised by section 76(2) to put the legislation here in stark relief. Secondly, the case affirms the deep‑rooted principle of law, that before anyone can be prejudiced in his personal property on any judicial or quasi judicial proceedings, he or she must be afforded an adequate opportunity of being heard. That is made at point 7 on page 395. The third was that the legislation in that case was construed so as to afford a right to be heard in all but exceptional cases.
GLEESON CJ: What is at stake in any proceeding under this division ultimately is the right to maintain heavy fortifications, is it not?
MR GRACE: That is provided for in the definitional sections.
GLEESON CJ: Yes, but that is what it ultimately is all about.
MR GRACE: Yes.
GLEESON CJ: The Commissioner is trying to get somebody to remove heavy fortifications.
MR GRACE: Yes.
GLEESON CJ: And somebody is trying to preserve the right to maintain heavy fortifications.
MR GRACE: Yes.
GLEESON CJ: And that is what it is all about.
MR GRACE: Yes.
KIRBY J: That is one way to say what it is all about. The other way to say what it is all about is the power of the Parliament of a State to enact a law that controls the material that a party before a court in this nation will receive and to tell courts that they must keep it secret from the party and secret from the community.
MR GRACE: Certainly.
GLEESON CJ: One way to decide whether a building is excessively fortified is to go and have a look at it.
MR GRACE: Yes.
GLEESON CJ: Is there anything to stop a judge in a review application under this division from going and having a look at the fortifications?
MR GRACE: Nothing, your Honour.
KIRBY J: I thought you told us that you showed some videos.
MR GRACE: Yes, we did. Over objection, we showed the judge a video and we were seeking to rely upon that. We did ask the judge if he would accommodate a view and he reserved his position on that until all the evidence was in. So that is the present situation.
Now, there was much said by a number of the intervenors in relation to the vice that the legislation is seeking to prevent and references were made to organised crime. The Solicitor for Queensland attempted chapter and verse to go through the affidavit material to paint the picture of the appellant in a black way, but this is the very trap that legislatures fall into, we submit. As your Honour Justice Kirby pointed out – and this is my final point – and in the context where, in our submissions in-chief we pointed to a number of indicia which we stated substantially interfered with the institutional integrity of the Supreme Court of Western Australia, the Kable principle is especially important when unpopular minorities are being singled out for particular treatment by legislative action. At paragraph 135 in Fardon your Honour Justice Kirby said this.
KIRBY J: This was a dissenting opinion.
MR GRACE: Yes. If I could quote it:
That is when legislatures may be tempted to exceed their constitutional powers, involving the independent judiciary in incompatible activities so as to cloak serious injustices with the semblance of judicial propriety.
What we say in this case is the legislature has succumbed to that temptation in relation to section 76(2). That completes our submissions, your Honours.
GLEESON CJ: Thank you, Mr Grace. We will reserve our decision in this matter and we will adjourn until 2.15 on Tuesday.
AT 2.59 PM THE MATTER WAS ADJOURNED
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