Gypsy Jokers Motorcycle Club Incorporated v The Commissioner of Police

[2007] HCATrans 550

[2007] HCATrans 550

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 THURSDAY, 27 SEPTEMBER 2007, AT 10.46 AM

Copyright in the High Court of Australia

MR D. GRACE, QC:   If the Court pleases, I appear with MR M.K. MOSHINSKY and MR A.M. DINELLI for the appellant.  (instructed by Williams Ellison)

MR D.F. JACKSON, QC:   If the court pleases, I appear with my learned friend, MR R.M. MITCHELL, for the respondent.  (instructed by State Solicitor for Western Australia)

MR D.M.J. BENNETT, QC (Solicitor‑General of the Commonwealth of Australia):   If the Court pleases, I appear with my learned friend, MR S.P. DONAGHUE, for the Attorney‑General of the Commonwealth intervening.  (instructed by Australian Government Solicitor)

GLEESON CJ:   Yes, Mr Solicitor.

MR BENNETT:   It is proposed that Mr Sexton, the Solicitor for New South Wales, address your Honours first of the interveners and that I address last, if that is convenient to the Court.

MR M.G. SEXTON, SC (Solicitor‑General for the State of New South Wales):   If the Court pleases, I appear with my learned friend, MR J.G. RENWICK, for the Attorney‑General for New South Wales who intervenes in the proceedings.  (instructed by Crown Solicitor (NSW))

MR C.J. KOURAKIS, QC (Solicitor‑General for the State of South Australia):   If the Court pleases, I appear with my learned friends, MR M.J. WAIT and MR J.P. McINTYRE, for the Attorney‑General for South Australia intervening.  (instructed by Crown Solicitor for South Australia)

MS P.M. TATE, SC (Solicitor‑General for the State of Victoria):   May it please the Court, I appear with my learned friends, MS J.M. DAVIDSON and MR J.A. REDWOOD, for the Attorney‑General for Victoria intervening.  (instructed by Victorian Government Solicitor)

MR W. SOFRONOFF, QC (Solicitor‑General for the State of Queensland):   May it please the Court, I appear with my learned friends, MR P. DAVIS, SC and MR D.D. KEANE, for the Attorney‑General of the State of Queensland intervening.  (instructed by Crown Solicitor for the State of Queensland)

MR M.P. GRANT, QC (Solicitor‑General for the Northern Territory):   May it please the Court, I appear with MS S.L. BROWNHILL for the Attorney‑General for the Northern Territory intervening.  (instructed by Solicitor for the Northern Territory)

GLEESON CJ:   Yes, Mr Grace.

MR GRACE:   Your Honours, the issue raised by this appeal concerns the constitutional validity of section 76(2) of the Corruption and Crime Commission Act 2003(WA). We contend that that subsection is invalid on the basis of both the institutional integrity and incompatibility principles that have been developed by this Court. Your Honours, there are four matters which we would like to take you to in order to make out the submission that the impugned provision is invalid.

First, there is the consideration of the relevant provisions of the Act; secondly, the protection of the institutional integrity demanded by Chapter III of the Constitution and within this section of our submissions two matters will be covered – firstly, the Kable principle and, secondly, the specific indicia of section 76(2) that we say render the provision invalid, namely the issue of institutional impartiality being adversely affected; secondly, the denial of natural justice; thirdly, the ascertainment of facts; and, fourthly, the inability of the court to give proper reasons and the impact of that inability on perceived independence and impartiality and its effect on appeal rights.

Thirdly, our submissions will deal with the second ground of constitutional invalidity, that is, the incompatibility of the procedure with the exercise of federal judicial power by the Supreme Court of Western Australia. Fourthly and finally, we will deal with the issue of severance of subsection 76(2) from the balance of section 76.

If I could ask your Honours to refer to the appellant’s book of constitutional and statutory materials where the Division of the Act is set out?  It is also included in complete form in some of the respondent and intervenor’s material.

GUMMOW J:   We have got reprint No 2 of 7 July 2006.  Is that adequate?

MR GRACE:   Yes, that is adequate.  Division 6 of the Act, which you will see on page 2 of that booklet, is part of Part 4 of the Act.

KIRBY J:   Should we not know a little bit about the nature and purpose of the commission so that we can put the particular provision into context?

MR GRACE:   Yes.  Section 7 and 7A of the Act, which I think is included in the respondent’s book of materials, provides as follows.  I understand that your Honours have the Act.

GUMMOW J:   That is what I said to you.

MR GRACE:   Section 7A sets out the Act’s purposes which are:

The main purposes of this Act are –

(a)to combat and reduce the incidence of organised crime; and

(b)to improve continuously the integrity of, and to reduce the incidence of misconduct in, the public sector. 

Section 7B specifies:

How Act’s purposes are to be achieved

(1)The Act’s purposes are to be achieved primarily by establishing a permanent commission to be called the Corruption and Crime Commission.

(2)The Commission is to be able to authorise the use of investigative powers not ordinarily available to the police service to effectively investigate particular cases of organised crime.

(3)The Commission is to help public authorities to deal effectively and appropriately with misconduct by increasing their capacity to do so while retaining power to itself investigate cases of misconduct, particularly serious misconduct. 

The legislative history ‑ ‑ ‑

GUMMOW J:   Just stop there for a minute, Mr Grace. Where does one find a provision which qualifies or removes what would otherwise be the general powers of the Supreme Court, I think, under section 16 of the Supreme Court Act 1935 to superintend the operations of a body like the Commission by prohibition, certiorari and so forth?

MR GRACE:   Is your Honour talking about section 83?

GUMMOW J:   Section 83.

MR GRACE:   Could I give your Honours just a brief history of the legislation?

KIRBY J:   Has section 83 ever been the subject of a judicial determination?

MR GRACE:   No.

KIRBY J:   Because there is that line of territory that says such provisions are addressed to matters that are within jurisdiction but do not touch matters that go completely outside the jurisdiction of the body.

MR GRACE:   Yes.  There is another section of the Act which is relevant to that issue, that is, let us say the appellant in this case sought the Parliamentary Inspector’s intervention to allow the issue of a prerogative writ against the decision of the Commissioner of Police to issue the fortification notice.  Prima facie, section 83 would prevent that.  However, there is a provision in the Act that deals with the powers of the parliamentary inspector and his or her functions.

KIRBY J:   Who is the parliamentary inspector?  Is that like an ombudsman, is it?

MR GRACE:   No, in fact, the parliamentary inspector in Western Australia is Mr Malcolm McCusker QC, a member of the independent bar.  In Part 13 of the Act ‑ ‑ ‑

KIRBY J:   Did I read that there is some limitation on appeals, or is that only a section ‑ ‑ ‑

MR GRACE:   Yes, that is subsection 76(7).  The decision of the Supreme Court on review under subsection 76(2) is final and cannot be appealed from.  But I wanted to take very briefly ‑ ‑ ‑

GUMMOW J:   Well, that cannot be effective in the face of section 73 of the Constitution, can it?

MR GRACE:   Well that, of course, is an important issue to be considered.  Part 13 of the Act deals with the office of parliamentary inspector ‑ ‑ ‑

GUMMOW J:   The court there spoken of is the Supreme Court, is it not?

MR GRACE:   Yes.  Section 195 deals with the functions of the parliamentary inspector.  Section 195(2) is particularly relevant because it provides that:

(2)The functions of the Parliamentary Inspector may be performed –

(a)on the Parliamentary Inspector’s own initiative;

(b)at the request of the Minister;

(c)in response to a matter reported to the Parliamentary Inspector; or

(d)in response to a reference by either House of Parliament, the Standing Committee or the Commission.

Now, why that is relevant to the part of the Act that we are concerned with is because there is nothing in section 195 which would give a direct line of approach from someone in the appellant’s position to the parliamentary inspector to invoke the consent pursuant to section 83. 

GLEESON CJ:   Why could they not write a letter for the parliamentary inspector?

MR GRACE:   Well, they could.

GLEESON CJ:   And invite the exercise of his initiative under paragraph (a)?

MR GRACE:   Yes, they could, but that may or may not bear the fruit that is requested and in the event that it is not, then one would have to then commence judicial proceedings or at least some sort of perhaps prerogative proceedings against the parliamentary inspector which is not shut out by section 83 to compel the parliamentary inspector to take the course that section 83 contemplates.

KIRBY J:   Are so called prerogative writs in Western Australia provided under legislation now or still under the royal prerogative at common law?

GUMMOW J:   No, it is not the royal prerogative, is it? It is the general jurisdiction of the Supreme Court created by section 16 of the Supreme Court Act 1935 which gives them what could be done in Queens Bench.

MR GRACE:   Yes, that appears to be right, your Honour.

GUMMOW J:   You may recall we had two cases here, I think, involving the Hot Holdings v Creasy litigation about mining titles in Western Australia and they came here from certiorari decisions in the Full Court in Western Australia.

MR GRACE:   Yes.  Your Honours, I wanted to ‑ ‑ ‑

KIRBY J:   We better get extracts from the Supreme Court Act that are relevant.

MR GRACE:   There are some in the materials that have been provided, but I will ensure that the proper provisions are provided, your Honours.

GLEESON CJ:   Is it suitable for us to use reprint 7 of the Supreme Court Act 1935 which is the Act as at 19 August 2005?

MR GRACE:   Yes.  Your Honours, just a brief excursion into the history of this legislation.  On 15 July 2002 the Criminal Investigation (Exceptional Powers) and Fortification Removal Act 2002 was passed and Part 7 of that Act provided for the removal of fortifications in substantially the same way as the part of the Act that we are dealing with in the 2003 Act provides. On 1 April 2004 the Criminal Investigation (Exceptional Powers) and Fortification Removal Act 2002 (WA) was repealed by the Corruption and Crime Commission Amendment and Repeal Act 2003, section 39, and the Corruption and Crime Commission Act 2003, which your Honours have, reprint No 2, commenced operation. That commenced operation on 1 April 2004 as the Corruption and Crime Commission Act. 

This, as we understand it, is the first occasion upon which a fortification removal notice has been issued under the Act or its predecessor.     Can I take your Honours, as I indicated I was going to earlier ‑ ‑ ‑

KIRBY J:   Does it have an international progenitor?

MR GRACE:   Not that I am aware of.

KIRBY J:   And yet we have two or maybe more such statutes in Australia.

MR GRACE:   And now three but different provisions prevail in South Australia and New South Wales.  Could I take your Honours to Division 6, Fortifications.

KIRBY J:   Could it arise out of any royal commission report?

MR GRACE:   No, it arose in Western Australia as, it appears, a direct result of the bombing of the former police officer Hancock and the allegation was that that bombing was performed by members of a motorcycle club.

KIRBY J:   I did not hear that.  By members of the what?

MR GRACE:   Of a motorcycle club.  The allegations were members of the Gypsy Jokers Motorcycle Club were responsible for the bombing.  One former member pleaded guilty and gave evidence against the others, all of whom were acquitted.  That was the reason or appears to be the substantial reason for the attorney of the day deciding that this sort of legislation was required and the parliamentary debates which your Honours have been provided with indicate that background that I have just outlined.  Section 67 of the Act defines a number of terms that are used in the division:

“fortification” means any structure or device that, whether alone or as part of a system, is designed to prevent or impede, or to provide any other form of countermeasure against, uninvited entry to premises ‑ ‑ ‑

GLEESON CJ:   It is like a front gate.

HAYNE J:   Yes, front door, with a night latch on it.

MR GRACE:   Yes.  “Heavily fortified” is defined in subsection (2) as meaning:

Premises are heavily fortified if there are, at the premises, fortifications to an extent or of a nature that it would be reasonable to regard as excessive for premises of that kind.

There are other definitions in subsection (1) which I will not take your Honours to.  Section 68 provides for the issue of fortification warning notices and a copy of that notice is in the appeal book and your Honours will see that at page 15.  That notice specifies the terminology that is contained in section 68(2) which provides that:

The Commission may issue a fortification warning notice if satisfied on the balance of probabilities that there are reasonable grounds for suspecting that the premises to which it relates are –

(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.

Subsection (3) provides:

The Commission may be satisfied by a statement made by a police officer and verified by statutory declaration.

Now, what happened in this matter was that the Commissioner through his delegate made an application to the Corruption and Crime Commission and in that application, which your Honours will see supported by the affidavit at page 63 and thereafter in the appeal book, the affidavit of Melvyn Craig Hay is set out sworn on 12 February 2004 and that was provided to the Commissioner in support of the application for the issue of a fortification warning notice, other than that affidavit, which, as your Honours will see in the pages that follow page 63 in the appeal book, contains quite a deal of blacked out or deleted material, the appellant is not privy to what, if anything, was said to the Commission, that is, orally in support of the application, however, there was materials in the form of an outline of submissions which are found at page 9 of the affidavit to page 14.

KIRBY J:   If you take the blacking out in paragraph 40 on page 71, that is a pretty unremarkable one that one sees quite often in documents where, say, an informant is named and it is not really relevant or necessary to know the informant’s name.

MR GRACE:   Quite, your Honour.  There is no issue taken about that.

KIRBY J:   Paragraphs 45, 50, 51 and 52, 60 and 61, et cetera, are different.

MR GRACE:   Yes.  Now, of course the Commission, your Honours, would not have had any of this blacked out material in that form.  They would have had the material in its unexpurgated form.  So we have that affidavit and those submissions provided to the Commission and we then have a decision by the Commission that justifies the issue of a fortification warning notice.

GUMMOW J:   Where do we see that?

MR GRACE:   We see that at page 15.  If I could first take your Honours to section 69 of the Act which describes the necessary contents of that notice that your Honours will see at page 15.  That provides that the notice has to be addressed to the owner of the premises, any other interested persons.  Both categories are defined in section 68: 

(2)      The notice must contain –

(a)a brief summary of section 68(2) . . . 

(b)a warning that unless, within the period of 14 days after the day on which a copy of the notice is given as described in section 70(1) (the “submission period”), the Commissioner of Police is satisfied that –

(i)the premises are not heavily fortified; or

(ii)the premises are not habitually used . . . 

a fortification removal notice may be issued; and

(c)an explanation of how a person who is an owner or interested person can make a submission to the Commissioner of Police that a fortification removal notice should not be issued.

So that fortification warning notice complied with those provisions and it was issued, it was dated 31 March 2004, signed, as your Honours will see on page 16, by the Commissioner of the Corruption and Crime Commission and in response to the notice served upon the owner, a submission was made by the solicitors on behalf of the owner and you will see that at pages 17, 18 and 19 together with attachments to the submission.  Your Honours will appreciate at once I hope that the fortification warning notice states in bold, if not bald, terms 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.

The submissions delivered by the solicitors for the appellant to the Commissioner were heavily weighted in relation to the issue as to whether the premises were heavily fortified because it was nigh on impossible to understand what the basis was on the materials provided to the owner of what needed to be answered or challenged in respect of the second limb of section 68(2), that is, the place of habitual use by a class of persons.

KIRBY J:   There is a slight air of unreality in the fact that all of this was happening back in 2004 and here we are in 2007.  I say “unreal” because one would expect that if the purpose of removal of fortification is to make it easier for, say, police to raid the premises and find the persons involved in organised crime, three years is quite a long time to transpire between the notice and now.

MR GRACE:   Yes.  As a matter of interest, your Honours, at the trial of this matter, which commenced before Justice Blaxell in the Trial Division of the Supreme Court of Western Australia, the Commissioner sought to put on evidence that related to a raid on the premises that occurred after the proceedings in the Supreme Court had been issued and that evidence related to the fact that there had been, I think, a two‑minute delay in entering caused by the fortifications and that that was relevant to the issue about whether the issue of the notice was reasonable in the circumstances.

GLEESON CJ:   It appears from the solicitor’s letter on page 17, that is, the Gypsy Jokers’ solicitor’s letter, that there is not any real argument that the premises are heavily fortified, they are heavily fortified against the possibility of theft.

MR GRACE:   Yes.  If one looks at the definition of “heavily fortified” in section 67(2):

Premises are heavily fortified if there are, at the premises, fortifications to an extent or of a nature that it would be reasonable to regard as excessive for premises of that kind.

The argument was, yes, they are fortified as you say but they are not excessive.

GLEESON CJ:   Well, strongly fortified, and that they are fortified, according to this letter, because they are in:

an area of a high crime rate in particular for criminal offences of burglary and motor vehicle theft.

That is what the letter says.

MR GRACE:   Yes.  It was implied, if not stated, that fortifications were not excessive.  Now, in relation to that second limb of section 68(2), that is, the place of habitual resort, all that was said in the letter is set out at page 19 in the penultimate paragraph where the writer said:

The premises are used for a club house and motor cycle repair.  Any allegation that the premises are used as a place of resort by a class of people a significant number of whom may be reasonably suspected to be involved in organised crime is denied.

In the absence of the factual basis to the allegations that were said to lend support to that section limb of section 68(2) there was really nothing more that could have been said.  How could a proper submission be made in relation to that issue?

Could I move on, your Honours, to section 70 and that provides for the giving of the notice.  Section 71 allows for the withdrawal of the notice by the Commissioner of Police and section 72 provides for the issue of the fortification removal notice.  So this is a step subsequent to the issue of the warning notice, the delivery of submissions by the owner and then a decision not by the Crime Commission but by the Commissioner of Police.  So, although the initial decision to issue the warning notice is that of the Commission, the decision to issue the final notice, the removal notice, is one by the Chief Commissioner of Police.  Section 72 provides:

(1)If a fortification warning notice has been given as described in section 70(1) and the submission period has elapsed, the Commissioner of Police may issue a fortification removal notice relating to the premises concerned.

(2)The Commissioner of Police cannot issue the fortification removal notice unless, after considering each submission, if any, made before the submission period elapsed, the Commissioner of Police reasonably believes that the premises are –

(a)heavily fortified;  and

(b)habitually used –

and so on. Subsection (3) provides a time limit for the issue of the notice and subsection (b) deals with the issue of withdrawal. Section 73 deals with the contents of the fortification removal notice and your Honours will see the fortification removal notice at page 59. That notice mirrors the provisions of section 73 and provides that:

within 7 days after the day on which this notice is given to the owner of the premises or any further time allowed by the Commissioner of Police, the fortifications at the premises must be removed or modified to the extent necessary to satisfy the Commissioner of Police that the premises are no longer heavily fortified.

You will see at page 59 what needed to be done before the Commissioner would be satisfied that the premises are no longer heavily fortified and you will see there removal of certain walls and gates and cameras and an internal door and hinges from a doorway and, over the page, timber doors and a steel door.  There is a warning provided in the notice which satisfies the provisions of section 75 which says unless the fortifications are removed or modified to the extent required by the notice the Commissioner of Police can effectively enter the premises, effect the works that are required by the warning notice, charge the owner for the costs of them, sell any materials that have been recovered as a result of the removal or modification process to recover his or her costs and then the balance remains a debt payable under section 75(5) to the Commissioner.

The warning notice provides a provision for review which effectively sets out the review procedure allowed by section 76. If I could just gloss over section 74 - which deals with the giving of the fortification removal notice, and there is no issue about that ‑ to section 75 which, in essence, reflects the matters that I have just been putting to your Honours about the contents of the fortification removal notice. Subsection (4) deals with the issue of salvaging materials and selling those materials and recovery of compensation. Section 76, which of course is the relevant section for our consideration in this appeal, provides in subsection (1) for a right of application by:

the owner of the premises, apply to the Supreme Court for a review of whether, having regard to the submissions, if any, made before the submission period elapsed and any other information that the Commissioner of Police took into consideration, the Commissioner of Police could have reasonably had the belief required by subsection 72(2) when issuing the notice. 

The impugned provision, subsection (2), provides that:

The Commissioner of Police may identify any information provided to the court for the purposes of the review as confidential if its disclosure might prejudice the operations of the Commissioner of Police, and information so identified is for the court’s use only and is not to be disclosed to any other person, whether or not a party to the proceedings, or publicly disclosed in any way.

GLEESON CJ:   When you describe that as the “impugned provision”, the question that was referred to the Court of Appeal as appears on page 88 was whether 76 was invalid or, alternatively, whether 76(2) was invalid.

MR GRACE:   Yes.

GLEESON CJ:   Has the possibility of the invalidity of section 76 disappeared from the case?

MR GRACE:   No, it has not, your Honours.

GLEESON CJ:   So one alternative argument that you make is that what is invalid is section 76.

MR GRACE:   No.  The argument we make is that ‑ ‑ ‑

GLEESON CJ:   The question referred to the Court was, “Is section 76 or alternatively section 76(2) invalid?” Is that the question we have to consider?

MR GRACE:   Yes.

HEYDON J:   The question we have to consider is whether section 76(2) is invalid. If it is invalid, Mr Jackson raises a question whether 76(1) and the rest of 76 is invalid. Is that not so?

MR GRACE:   Yes.  There is an issue of severance ‑ ‑ ‑

HEYDON J:   So it is the reverse order.

MR GRACE:   Perhaps.  Your Honours will note from the notice of appeal how we phrase the relief that we seek.  You will see that at page 193.  We seek an order that:

“The questions referred to the Court of Appeal on 12 May 2006 be determined as follows:

Question (a): Is section 76 of the Corruption and Crime Commission Act 2003 (WA) valid?

Answer (a):  Subject to the answer to question (b), Yes. 

Question (b): In the alternative, is sub‑section 76(2) of the Corruption and Crime Commission Act 2003 (WA) valid?

Answer (b):  No.”

So that is the way we seek the relief. Now, there was a further question that was determined by the Court of Appeal of Western Australia in this matter. That was whether the whole of the division, that is, Division 6 of the Act, was invalid. We have not sought to seek special leave or to appeal from that holding that the division was valid. As I understand the argument from the respondent, there is no suggestion on their part that if section 76 on their argument was ruled to be invalid that the whole of the division would be ruled to be invalid.

GLEESON CJ:   We do not have to concern ourselves with the validity of anything except the arguments that relate to section 76.

MR GRACE:   Yes, your Honour.  That is the issue joined before your Honours.

GUMMOW J:   There was an order referring these questions to the Court of Appeal which appears at 97.  What is the initiating process in the Supreme Court itself?

MR GRACE:   That is to be found at page 1 of the appeal book, the originating summons.

HEYDON J:   What about page 95?  I see.  That related to Part 4, Division 6 and page 1 relates only to ‑ ‑ ‑

MR GRACE:   Can I just explain to your Honours very briefly how the document at page 95 arose.  During the course of the hearing of the appeal the court raised with counsel ‑ ‑ ‑

GUMMOW J:   What appeal?  There was no appeal at any stage.

MR GRACE:   I am sorry, the question before the Court of Appeal. The court raised with counsel the issue as to whether if section 76 or part thereof was ruled invalid, that that therefore raised an argument as to whether the whole of the division ought to be determined invalid because it was part of an integrated scheme. After hearing argument in relation to all matters, Chief Justice Martin sitting in chambers entertained an application which is reflected in the order at page 97.

GUMMOW J:   At page 1 the basis of jurisdiction was section 76 of the State statute, right?

MR GRACE:   Yes.

GUMMOW J:   Originating summons.  And that does not raise any constitutional questions.

MR GRACE:   No, it does not.

GUMMOW J:    Purely State law at that stage.  At some stage it is transmuted into an exercise of federal jurisdiction.

MR GRACE:   Yes. You will see that at page 89. What happened on the first day of the trial of the matter before his Honour Justice Blaxell in the Supreme Court Trial Division an issue was raised about the constitutional validity of section 76(2) and that gave rise to that reference to the Court of Appeal pursuant to section 43 of the Supreme Court Act 1935 (WA).

GUMMOW J:   Not pursuant to section 43.

MR GRACE:   That is what the order specifies.

GUMMOW J:   I know.  It was an exercise of federal jurisdiction.

MR GRACE:   Yes. If I could return, your Honours, to section 76, subsection (3) provides that you cannot make, effectively, a second application in relation to the same matter. Subsection (4) provides that:

(4)When the application for review is made, the period within which fortifications can be removed or modified in accordance with the fortification removal notice is extended to the seventh day after the day on which the application for review is finally disposed of by the court.

(5)The court may decide whether or not the Commissioner of Police could have reasonably had the belief required by section 72(2) when issuing the notice.

GUMMOW J:   I just want to be clear about this too, Mr Grace. If, rather than pursue section 76, you had gone to the parliamentary inspector under 195(1)(f) and invited him to perform his function under 83(1) and you got yourself to the Supreme Court for prerogative writ, what would the ground of the prerogative writ have been? What would be the question be for excessive jurisdiction by the issuing authority?

MR GRACE:   By the Chief Commissioner of Police in issuing the notice.

GUMMOW J:   Yes, I know, but on what ground?

MR GRACE:   On the ground of the, one would have thought, Wednesbury unreasonableness, but that would be dependent upon the material that was discovered.

GUMMOW J:   Would that be the same question or a narrower question than the question as posed by 76?

MR GRACE: That is a difficult question to answer, your Honours, because section 76 is silent as to what is meant ‑ ‑ ‑

GUMMOW J: Section 76(5) is not saying that his belief was so unreasonable that he could not reasonably have held it.

MR GRACE:   No.

GUMMOW J:   In other words, you seem to able to get yourself home under 76(5) in circumstances where you perhaps could not have got yourself home under Wednesbury unreasonableness.  That is what I am trying to get at.

MR GRACE:   That might be one outcome, but not necessarily.  It all depends on what material is revealed by the discovery process.

GUMMOW J:   If you are in the prerogative writ process, there would be a claim, would there, of privilege, or could there be?

MR GRACE:   Yes, but in the prerogative relief stage, and if there was a claim for public interest immunity, then the evidence would not be admitted in the proceedings.  Although admissible, it would not be admitted, therefore, the adjudicating tribunal would not have the benefit of the material in reaching its conclusion and the appellant may then forensically of course be in a better position.

GUMMOW J:   In a better position?

HAYNE J:   Why?

CRENNAN J:   Because counsel has had access to the material?

MR GRACE:   Yes.

HAYNE J:   But why?  If the court determining the prerogative relief proceeding by hypothesis has only part of the material which was available to the Chief Commissioner, some of it being denied to it by public interest immunity privilege claims, how can the propounder of the claim for prerogative relief demonstrate Wednesbury unreasonableness?

MR GRACE:   The tribunal of fact would only have before it for consideration the material that the Commissioner consented to releasing.

HAYNE J:   How on that partial basis could the party claiming the relief persuade the court that Wednesbury unreasonableness was made out?

MR GRACE:   It may present difficulties there, yes, I accept, your Honour, but one does not know until the determination of the public interest immunity claim is made, if any.

GUMMOW J:   You cannot say that that outcome would offend any constitutional prescription.

MR GRACE:   No, of course not.

HAYNE J:   That seems to put your side of the argument further behind than it is in the operation of this legislation.  That is the idea that is troubling me and you need to grapple with it.

MR GRACE:   Yes.  Of course we have the initial hurdle of jumping, that is, to get the parliamentary inspector to give the consent and that itself might require proceedings in the nature of prerogative relief to enforce.  So there are various steps along the way that have to be engaged.

Could I move back to section 76(6):

If the court decides that the Commissioner of Police could not have reasonably had the belief required by section 72(2) when issuing the notice, the notice ceases to have effect.

(7)The decision of the court on an application for review under this section is final but does not prevent the Commissioner of Police from issuing a further notice under this Division -

Section 77 deals with an offence of hindering, and section 78 provides that notwithstanding that planning approval might have been given it does not offend the issue of the notice.  That is in subsection (1).  Subsection (2), that:

(2)No statutory or other approval is required for the removal or modification of fortifications -

and subsection (3) is a machinery provision.

GUMMOW J:   The case in which we said, I think, a provision like 76(7) in a State statute with reference to a State Supreme Court cannot overcome the exercise of jurisdiction under section 73 is BHP v Schultz, I think.

MR GRACE:   Yes. That is one of our arguments, of course, your Honour, which I will deal with in more detail later. If we were to exercise the right under section 73 to seek special leave to appeal to this Court we will be significantly hampered by the fact that we would not know or understand the basis of any adverse finding on the review process to the appellant because the judge is not allowed to disclose in his reasons anything that might relate to the confidential material.

KIRBY J:   That must always be the case of certain disadvantage in, say, public interest immunity rulings.  I realise that you have arguments here that this is different in kind because of the terms of the statute, but there are many cases in national security and State secret areas, wartime regulations and so on, where particular material has been kept out of the hands of the decision‑making body.

MR GRACE:   Yes, that is correct, but decision-making ‑ ‑ ‑

KIRBY J:   Or kept out of the hands of a party.

MR GRACE:   Well, very rarely, and one would have to go to wartime perhaps, your Honour, say for this legislation to have evidence of another like provision.

KIRBY J:   Well, as Chief Justice Martin pointed out, there have been cases in the European Court of Human Rights under terrorism legislation which has such provisions and often special statutory provisions for a special representative or somebody to make the scales a little bit more even.

MR GRACE:   Yes, but we do not have that safeguard here, as your Honour would appreciate.  We do not have the safeguard of alternative or special counsel as there is under the Australian federal terrorism legislation, or counsel with a security clearance being permitted to look at the material.  We do not have that safeguard here, we have a direct prohibition.

Section 76(2), in our submission, is – or the process outlined by subsection (2) is fundamentally different to that of public interest immunity issues. Where public interest immunity is claimed the court has to balance the public interest of all the information being available to the parties, or for the purposes of the proceedings ‑ ‑ ‑

KIRBY J:   I think you have been led by the questions into the second part of your argument.

MR GRACE:   Yes.

KIRBY J:   If there are any more facts to set out or provisions of the Act it might be better to do them first.

MR GRACE:   Yes, well, I will come back to that, if I may.  Section 79 provides for there being no compensation for removal, and section 80 creates immunities and protections for any damage.

If I could progress to the substantive argument, your Honours. Section 76 provides for a form of judicial review of the decision of the Commissioner to issue a fortification removal notice. The question for determination by the Court is whether the Commissioner of Police could have reasonably had the belief required by section 72(2) when issuing the notice. I think we are ad idem with the respondent and the interveners, the relevant time for determining the question is the time when the Commissioner, that is the Commissioner of Police, made his or her decision and that is clear from the words, “when issuing the notice” found both in section 76(1) and (5).

There is an issue, and it is a matter of dispute between the parties, as to what material or matters the court may have regard to when answering the question. The respondent submits at paragraph 27 of his submissions that the court may only have regard to the submissions of the applicant and the information the Commissioner took into consideration. We disagree with that construction. The word “only” is not used in section 76(1) and there is no logical reason, in our submission, to read the section as confining the material that the court can take into account to the submissions of the applicant and the information relied on by the Commissioner. Indeed, Victoria, at paragraph 15 of its submissions, recognises that, we would say.

It may be that there is other information and we would say in a given case that would be the situation which demonstrates that the Commissioner could not reasonably have formed the requisite beliefs.  For instance, the Commissioner could have relied upon evidence from informer X who was a convicted criminal and frequented the premises, but the Commissioner may have known at the time of his decision that informer X was a person who had been convicted of perjury, had an axe to grind and his evidence was unreliable.  Take another example, the Commissioner may have relied upon information that has been discredited in court proceedings of which the Commissioner was aware at the time of his decision. 

The process allowed by section 76(2) allows for the applicant for review to be denied not only the opportunity to make submissions about the confidential information, but also the opportunity to lead evidence of any substantial basis or any necessarily directly relevant basis to show that the Commissioner could not have reasonably formed the requisite belief.

GUMMOW J:   Do you accept that if section 76(2) is construed as the way Victoria would have it in paragraphs 15 through to 18 of Victoria’s submissions, the section would be valid on any footing?

MR GRACE:   No, we do not say that.  We say that those, particularly paragraph 15 supports our argument that there are defects in the process and it is an attempt by Victoria to, which is not made by the other interveners or the respondent ‑ ‑ ‑

GUMMOW J:   That does not matter.

MR GRACE:   Yes, I know but it stands out in stark relief because of that fact.  It is an attempt by Victoria to try ‑ ‑ ‑

GUMMOW J:   They do not all have to sing the same song, you know.  That is why they are given separate rights of audience.

MR GRACE:   ‑ ‑ ‑ and save the scheme provided by section 76. We were met, when we tried to put on evidence on the first day of the trial of this matter, by the Commissioner with objection to the attempted tendering of material which we said went to the issue as to whether the Commissioner could have reasonably had the belief. The trial judge admitted the material for identification only and has not ruled on that issue to date.

KIRBY J:   Where did the trial go having referred the matter to the Court of Appeal?  The trial judge simply postponed the matter, stood it over generally?

MR GRACE:   Yes, it is awaiting the outcome of this Court’s decision.

KIRBY J:   There may have been no other way to deal with this but it does, I repeat, have an air of unreality that four years has passed.  Anyway, we have it now, so move on.

MR GRACE:   Your Honours, can I move to the second matter outlined at the outset and that is the issue of institutional integrity.  Our submission is that State legislation which purports to confer upon a State Supreme Court a function which substantially interferes with, comprises or impairs its institutional integrity is incompatible with that court’s role as a repository of federal jurisdiction and is therefore invalid.

KIRBY J:   It is not only interfering with its capacity to receive and exercise federal jurisdiction which, as it happens, it is here, but it is also its capacity to perform its functions as a constitutionally guaranteed court in the Constitution.

MR GRACE:   Yes.

KIRBY J:   Are you going to take those separately?

MR GRACE:   Yes, I will take them separately.  Can I take your Honours to the appeal book at page 163 and that is part of the dissenting judgment of Justice Wheeler.  At paragraph 158 her Honour says this:

Descending from the level of abstraction to the concrete provisions of s 76 of the CCC Act, it appears to me that there are a number of aspects of the procedure there described which, taken together, have the result that s 76 is “antithetical” to the judicial process, leading to the result that at least s 76(2) is invalid by reason of the Kable principle.

And 159:

The features which in combination have that effect are these.  The Commissioner of Police, who is an officer of the Executive Government, decides conclusively what information the court may publish or disclose, both to a party to litigation and (in any reasons which may be published) to the public at large.  That Executive decision, once made, has the potential significantly to disadvantage the individual litigant opposed to the Executive.  The respondent to an application in the Supreme Court (the Commissioner of Police) is empowered conclusively to determine whether and to what extent information which that party makes available to the court can be disclosed to the opposing party.  The court is required to make a determination affecting the property rights of a party in circumstances in which that party may have had no opportunity whatever to consider (even in a summarised or truncated way) the material put against it.  Finally, the court’s ability to provide intelligible reasons for its decision, or otherwise to perform its functions in that public way which is generally the hallmark of justice is impaired or destroyed, because of the court’s inability to disclose material which may be critical to its determination.  It may be that no one of these factors individually would be sufficient.  However, it seems to me that collectively they represent such a departure from the requirement of independence of the Executive and such a departure from that impartiality which is the hallmark of the judicial process, as to render the legislation invalid.

GLEESON CJ:   That seems to proceed upon the assumption that the reasonableness referred to in subsection (1) does not comprehend the process that the Commissioner of Police has followed in coming to a belief.

MR GRACE:   I have attempted by my analysis of the relevant sections of the Act, your Honour, to identify what the appellant was able to make submissions upon, what information was revealed to the appellant at the time the appellant made its submissions for the non‑issue of the notice.

GLEESON CJ:   That is an issue that remains unresolved.  I mean, the issue of reasonableness remains unresolved in the Supreme Court of Western Australia, does it not?

MR GRACE:   Yes, it does but what informs that issue of reasonableness, we say, must include the issue of what information was provided other than the bald assertions contained in the notice that would have allowed the appellant to know what the case against it it had to meet to avoid the issue of the notice in the first place and, secondly, on the review proceedings.

GLEESON CJ:   You may be right about that.  Does that mean you differ from Justice Wheeler as to the meaning of the section?

MR GRACE:   No, I did not understand that what I was saying, your Honour, was necessarily different to what her understanding was.

KIRBY J:   But let us take a concrete example – I am not saying that it is the case here, I just do not know – let us assume, for example, as is sometimes the case in national security or terrorism cases that one has seen, that there is evidence from a person who is an informant who has infiltrated a group, just let that be assumed.  One could imagine that there would be, in the old law, public policy reasons why the identity and perhaps even the evidence that might reveal identity of such a person would be protected by a court and to reveal it would completely destroy the value of having that evidence and endanger a person.  What is so different from the procedure that is involved here from that pretty orthodox and well‑known type of case with which we are familiar, though we have dealt with it under different legal rubric?

MR GRACE:   The difference is that, at least in the example that your Honour gave, the affected party is given either the details of the nature of the evidence that that person would give or a summarised version of what the import of that evidence was.  In this situation the appellant is given nothing. 

HAYNE J: Can I just understand what you say is the proper construction of the relevant parts of section 76 in light of what her Honour Justice Wheeler says in paragraphs 158 and following and what Victoria says in paragraphs 15 and following of its submissions. Let us start in the Act. An understanding of the question that the Supreme Court must address must begin in section 76(1), is that right?

MR GRACE:   Yes, your Honour.

HAYNE J:   Do you read 76(1) as tendering to the Supreme Court the question whether, having regard only to the submissions the information the Commissioner in fact took into consideration, the Commissioner could reasonably have held the belief?

MR GRACE:   No.

HAYNE J:   So we do not read the question as confined to assessing the belief against whatever it was the Commissioner in fact took into account.

MR GRACE:   That is correct, your Honour.  Could I take your Honours next to Forge v Australian Securities and Investments Commission (2006) 228 CLR at page 45 and to paragraphs 63 and 64 in the judgment of your Honours, Justices Gummow, Hayne and Crennan.  In paragraph 63, your Honours say this:

Because Ch III requires that there be a body fitting the description “the Supreme Court of a State”, it is beyond the legislative power of a State so to alter the constitution or character of its Supreme Court that it ceases to meet the constitutional description.  One operation of that limitation on State legislative power was identified in Kable.  The legislation under consideration in Kable was found to be repugnant to, or incompatible with, “that institutional integrity of the State courts which bespeaks their constitutionally mandated position in the Australian legal system”.  The legislation in Kable was held to be repugnant to, or incompatible with, the institutional integrity of the Supreme Court of New South Wales because of the nature of the task the relevant legislation required the Court to perform.  At the risk of undue abbreviation, and consequent inaccuracy, the task given to the Supreme Court was identified as a task where the Court acted as an instrument of the Executive.  The consequence was that the Court, if required to perform the task, would not be an appropriate recipient of invested federal jurisdiction.  But as is recognised in Kable, Fardon v Attorney-General (Qld) and North Australian Aboriginal Legal Aid Service Inc v Bradley, the relevant principle is one which hinges upon maintenance of the defining characteristics of a “court”, or in cases concerning a Supreme Court, the defining characteristic of a State Supreme Court.  It is to those characteristics that the reference to “institutional integrity’ alludes.  That is, if the institutional integrity of a court is distorted, it is because the body no longer exhibits in some relevant respect those defining characteristics which mark a court apart from other decision‑making bodies.

It is neither possible nor profitable to attempt to make some single all-embracing statement of the defining characteristics of a court. The cases concerning identification of judicial power reveal why that is so.  An important element, however, in the institutional characteristics of courts in Australia is their capacity to administer the common law system of adversarial trial.

I want to focus on that issue of adversarial trial.

Essential to that system is the conduct of trial by an independent and impartial tribunal.

Then at paragraph 66 your Honours went on to say this:

As explained in Ebner v Official Trustee in Bankruptcy, effect has been given to the fundamental importance which is attached to the principle that a court must be independent and impartial by the development and application of the apprehension of bias principle.  Even the appearance of departure from the principle that the tribunal must be independent and impartial is prohibited lest the integrity of the judicial system by undermined.  As further explained in Ebner, the apprehension of bias principle admits of the possibility of human frailty and its application is as diverse as human frailty.  Thus when reference is made to the institutional “integrity” of a court, the allusion is to what The Oxford English Dictionary describes as “[t]he condition of not being married or violated; unimpaired or uncorrupted condition; original perfect state; soundness”.  Its antithesis is found in exposure, or the appearance of exposure, to human frailties of the kinds to which reference was made in Ebner.

HAYNE J:   Go on to paragraph 68, and do not read it out, but it has to be understood in the light of what is said in paragraph 68, does it not?

MR GRACE:   Your Honours, we would seek to borrow from those comments by your Honours in Forge in support of the submissions that we make in this case.  The centrality of the concept of institutional integrity is reinforced by what your Honour the Chief Justice said in the same case of Forge at paragraphs 40 and 41. There your Honour said in paragraph 40 that:

The argument for the applicants invoked the principle in Kable v Director of Public Prosecutions (NSW) that, since the Constitution established an integrated court system, and contemplates the exercise of federal jurisdiction by State Supreme Courts, State legislation which purports to confer upon such a court a function which substantially impairs its institutional integrity, and which is therefore incompatible with its role as a repository of federal jurisdiction, is invalid. 

In paragraph 41:

It follows from the terms of Ch III that State Supreme Courts must continue to answer the description of “courts”.  For a body to answer the description of a court it must satisfy minimum requirements of independence and impartiality.  That is a stable principle, founded on the text of the Constitution.  It is the principle that governs the outcome of the present case. If State legislation attempted to alter the character of a State Supreme Court in such a manner that it no longer satisfied those minimum requirements, then the legislation would be contrary to Ch III and invalid.  For the reasons given above, however, Ch III of the Constitution, and in particular s 72, did not before 1977, and does not now, specify those minimum requirements, either for State Supreme Courts or for other State courts that may be invested with federal jurisdiction.

As these passages that I have read to your Honours reveal, it is thus critical to the structure established by Chapter III, in our submission, that State Supreme Courts maintain their institutional integrity.  If I could just refer but not read from comments made by your Honour Justice Kirby at paragraph 185 and your Honour Justice Heydon at paragraph 244 in Forge.

Now, we submit that the basis of the notion of institutional integrity is to be found in the text of Chapter III of the Constitution and specifically section 73 contemplating the continuing existence of State Supreme Courts, and section 77 ‑ ‑ ‑

GUMMOW J:   I do not think any of this is disputed by other people at the Bar table.

MR GRACE:   I hope not, your Honours.

KIRBY J:   There has been that dispute which is referred to in the written submissions about whether it is a criterion or a test as to whether the arrangements lower the Supreme Courts in the eyes of reasonable observers, which I think Justice McHugh and Justice Gaudron embraced at one stage.

MR GRACE:   Yes.

KIRBY J:   I think that is now settled as an evidentiary or forensic issue but not a criterion action.

MR GRACE:   If I could take your Honours to Kable (1996) 189 CLR 51 very briefly to what Justice Gaudron said perhaps about that very issue, your Honour Justice Kirby. At page 103 in the first substantive paragraph on page 103 her Honour Justice Gaudron said this:

Two other matters of significance emerge from a consideration of the provisions of Ch III. The first is that State courts are neither less worthy recipients of federal jurisdiction than federal courts nor “substitute tribunals”, as they have sometimes been called. To put the matter plainly, there is nothing anywhere in the Constitution to suggest that it permits of different grades or qualities of justice, depending on whether judicial power is exercised by State courts or federal courts created by the Parliament.

The second and, perhaps, the more significant matter which emerges from a consideration of the provisions of Ch III is, as I pointed out in Leeth v The Commonwealth, that State courts, when exercising federal jurisdiction “are part of the Australian judicial system created by Ch III of the Constitution and, in that sense and on that account, they have a role and existence which transcends their status as courts of the States”. Once the notion that the Constitution permits of different grades or qualities of justice is rejected, the consideration that State courts have a role and existence transcending their status as State courts directs the conclusion that Ch III requires that the Parliaments of the States not legislate to confer powers on State courts which are repugnant to or incompatible with their exercise of the judicial power of the Commonwealth.

I trust that at least ‑ ‑ ‑

KIRBY J:   Those powerful observations have to be reconciled though with the statement made in many cases and the fact that State courts are not subject to quite the same rigidities as federal courts in the things they cannot do and that federal judges cannot do that State judges can do.

MR GRACE:   Yes, that is so.  But can I indicate for the benefit of your Honours that your Honour Justice Gummow approved of that passage that I have just read from Justice Gaudron at paragraph 101 in Fardon.  It is accepted, as your Honour Justice Kirby has just mentioned, that State Supreme Courts can exercise different powers than those that can be conferred on federal courts and we all understand the reasons for that.  But in addition to the strict separation of powers that exist at the federal level there comes a point at which the conferral of functions on the Supreme Court of a State is such that that court is no longer acting as a court, and when I am using the word “court” I am using it in the sense in which the cases describe it in the passages that I have just read.

KIRBY J:   Here the relevant function, is that conferred by section 76(1)?

MR GRACE:   In combination with subsection (2).

KIRBY J: Section 76 tells you how you go about performing it, but the conferral of power is in subsection (1).

MR GRACE:   Yes, but the process of the exercise of that power is informed by subsection (2).  What we say is that that process results in the conclusion that the State Supreme Court of Western Australia is acting in a manner unbefitting of that court’s position in the integrated judicial system that Chapter III establishes.  Now, of course, I do not need to remind your Honours of the circumstances behind the decision in Kable, but the principle in Kable was intended, it is submitted, to extend to and apply to different scenarios, including where a procedure as distinct from a function is conferred, on a Supreme Court of a State and where the effect of that conferral is to impair the institutional integrity of that court.

Now, what is contained about the core notion of institutional integrity – we would say this. State Supreme Courts must continue to exist with a right of appeal to this Court, the apex of the integrated system. Section 73 of course provides that. State courts must be independent and impartial and be seen to be independent and impartial. They must be independent of their own State Governments and legislatures as well as the Commonwealth Executive and legislatures.

That particular issue of course was central to your Honour the Chief Justice’s reasoning and that of Justice McHugh in Fardon – that when you identified in that case that there was nothing to suggest that the Supreme Court of Queensland was acting as an instrument of government policy.  Paragraph 19 of your Honour the Chief Justice’s judgment in Fardon and paragraph 35 of Justice McHugh’s judgment emphasised that fact.

The third matter is that State Supreme Courts must be different to other tribunals.  As your Honours Justices Gummow, Hayne and Crennan remarked in Forge, they must have those defining characteristics which mark a court apart from other decision‑making bodies.  That was in paragraph 63 that I have read to your Honours.

The practical content of the notion of institutional integrity is perhaps best identified by reference to this Court’s discussion of what is meant, or what is contained within the aspects of the judicial process.  As Justice Gaudron in Nicholas (1998) 193 CLR 173 said at paragraph 74 on page 208:

In my view, consistency with the essential character of a court and with the nature of judicial power necessitates that a court not be required or authorised to proceed in a manner that does not ensure equality before the law, impartiality and the appearance of impartiality, the right of a party to meet the case made against him or her, the independent determination of the matter in controversy by application of the law to facts determined in accordance with rules and procedures which truly permit the facts to be ascertained and, in the case of criminal proceedings, the determination of guilt or innocence by means of a fair trial according to law.  It means, moreover, that a court cannot be required or authorised to proceed in any manner which involves an abuse of process, which would render its proceedings inefficacious, or which brings or tends to bring the administration of justice into disrepute.

Of course, Justice Gaudron made similar comments in Harris v Caladine.

GUMMOW J:   Just stop and consider Nicholas v The Queen for a minute. Do you say that, if enacted in a State statute with respect to a State court, section 15X of the federal legislation there would attract these complaints you have of section 76?

MR GRACE:   Probably not, your Honour.  Of course her Honour Justice Gaudron made similar comments in Harris v Caladine (1991) 172 CLR 84 at page 150 and in Re Nolan; Ex parte Young (1991) 172 CLR 496.

KIRBY J:   I am sorry to be dribbling a little bit behind, but your earlier point about the State Supreme Courts being different from other tribunals, I did not quite get the point that you were making there.  Is it the point made in that American case that there is always a temptation for the elected branches of government – the Executive and the Parliament – to try to trade on the reputation for integrity of the constitutional courts?

KIRBY J:   I would not expect any other view from you, Mr Jackson.

MR JACKSON:   Your Honour, could I just say also that at common law under the general law the position would be that in many cases the material on which the Commissioner had relied in a case like this would be wholly inadmissible.  Could we in that regard refer your Honours to a summary of the situation which was set out in the New South Wales Court of Criminal Appeal in Attorney-General for New South Wales v Stuart (1994) 34 NSWLR 667 at page 674 in a passage commencing at letter F and going through to page 675 letter E. The position is summarised and such evidence would be, in our submission, wholly inadmissible unless it was within the qualification that it was to establish innocence of the matter.

This morning one of your Honours referred to the fact that if the Court pursuant to public interest immunity did not have access to the material, then it would be difficult to effectively carry out the function referred to in section 76(1). Your Honours, observations to similar effect were made in the court in Church of Scientology v Woodward (1980-1982) 154 CLR 25 at page 61 by Justice Mason, the first new paragraph on the page, and your Honours will see the conclusion of his Honour’s reasons in the last five lines in that paragraph and also at pages 75 through to 77 by Justice Brennan, and your Honours will see at page 75 commencing about halfway down the page “It is sufficient to say that the difficulties inherent”,

et cetera, and the passage goes through essentially, your Honours, to the end of the paragraph starting on page 76 and going over to page 77.

KIRBY J:   The point being made on page 61 that matters of national security are by their nature insusceptible to judicial determination is scarcely applicable in a case of the removal of a barrier in a club, is it?  It is not in the same league.

MR JACKSON:   Well, no, it is not but, your Honour, the ultimate effect of the proceedings is that there would be an order held to be valid requiring that alterations be made to premises.  Now, that by itself has an element of, in the big scheme of things, perhaps triviality.  But the more important thing is what is the reason for it, and the reason for it is a forming a view on material that the two criteria are satisfied, one being that the premises are not reasonably but unreasonably fortified on the one hand and, on the other hand, that as to organised crime.

GLEESON CJ:   Is that a convenient time, Mr Jackson?

MR JACKSON:   I expect to be about 20 minutes, your Honour, but I ‑ ‑ ‑

GLEESON CJ:   We will adjourn until 10 o’clock tomorrow morning.

AT 4.17 PM THE MATTER WAS ADJOURNED
UNTIL FRIDAY, 28 SEPTEMBER 2007