MJZP v Director-General of Security & Anor

[2024] HCATrans 92

[2024] HCATrans 092

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S142 of 2023

B e t w e e n -

MJZP

Plaintiff

and

DIRECTOR‑GENERAL OF SECURITY

First Defendant

COMMONWEALTH OF AUSTRALIA

Second Defendant

GAGELER CJ
GORDON J
EDELMAN J
STEWARD J
GLEESON J
JAGOT J
BEECH‑JONES J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 12 DECEMBER 2024, AT 9.59 AM

Copyright in the High Court of Australia

MR C.L. LENEHAN, SC:   May it please the Court, I appear with MR T.M. WOOD and MR S.N. RAJANAYAGAM for the plaintiff.  (instructed by Corrs Chambers Westgarth)

MR S.P. DONAGHUE, KC, Solicitor‑General of the Commonwealth of Australia:   May it please the Court, I appear with MR M.A. HOSKING and MS P.F. BRISTOW for the second defendant.  (instructed by Australian Government Solicitor)

MR G.J.D. DEL VILLAR, KC, Solicitor‑General of the State of Queensland:   May it please the Court, I appear with my learned friends MS F.J. NAGORCKA and MR K.J.E. BLORE on behalf of the Attorney‑General of the State of Queensland, intervening.  (instructed by Crown Law (Qld))

MR C.S. BYDDER, SC, Solicitor‑General for the State of Western Australia:   May it please the Court, I appear with my learned friends MS J.E. SHAW, SC and MS G.M. MULLINS on behalf of the Attorney‑General for the State of Western Australia, intervening.  (instructed by State Solicitor’s Office (WA))

MR J.G. RENWICK, SC:   May it please the Court, I appear with my learned friend MS M.F. CARISTO on behalf of the Attorney‑General for the State of New South Wales, intervening.  (instructed by Crown Solicitor for NSW)

MS J.L. RUDOLF:   May it please the Court, I appear with MS E.A. WARNER on behalf of the Attorney‑General for the State of Tasmania, intervening.  (instructed by Solicitor‑General (Tas))

GAGELER CJ:   There is a submitting appearance for the first defendant.  Mr Solicitor.

MR DONAGHUE:   Your Honours, there is one preliminary matter.  I have been asked or instructed by my clients to ask the Court to read or to allow me to read the terms of part of a non‑publication order that your Honour the Chief Justice made on 14 June this year, just so it is so apparent for all those who read the transcript in due course that that order is there, it is not overlooked.  If I might do that or ask the Court to do it.

GAGELER CJ:   Yes, go ahead. 

MR DONAGHUE:   The order that your Honour made on 14 June 2024 by consent was relevantly order 2 until further order of the Court: 

Until further order of the Court:

a.the Plaintiff be identified by the pseudonym ‘MJZP’

b.there be no disclosure of the Plaintiff’s identity save for disclosure:

i.to or between Justices of the Court, their staff, and the staff of the Registry of the Court; and

ii.by officers of the Commonwealth acting in the course of their duties.

Thank you.

GAGELER CJ:   Thank you.  Mr Lenehan.

MR LENEHAN:   Your Honours, I was going to structure my oral address in this way.  First, I was going to say something about the facts and the legislative scheme, bearing in mind that a number of your Honours have some familiarity with that scheme.  Then, I was going to explain why it is that SDCV has no binding reasoning on any relevant point and why the result should be overruled and reopened.  Your Honours will have seen that, underlying all of that – and our ultimate substantive submission in the case is – section 46 of the AAT Act is invalid because it departs from the general rule of procedural fairness to an extent that is greater than is reasonably necessary to protect any compelling and legitimate public interest.

So, starting with the factual background, my client is a company registered under the Corporations Act and is a carriage services provider within the meaning of the Telecommunications Act1997.  I do not need to say too much about all of that, but if your Honours would look to the part of that Act that appears in the joint book of authorities at volume 2, tab 12 and 550, and in particular 315A, you will see that the provision of carriage services in the way that my client does that thing is subject to regulation under that Act, and in 315A you will see an aspect of that regulation.

Under subsection (1), you see the Home Affairs Minister is conferred a power to give a written direction to a carriage service provider:

not to use or supply, or to cease using or supplying . . . carriage services.

And if your Honours look down to subsection (3), you will see that that power is not to be exercised:

unless an adverse security assessment in respect of the carrier or carriage service provider is given to the Home Affairs Minister –

That then leads me to some of the background facts that your Honours see in the special case.  So, your Honours will have seen, at special case book 38, in paragraph 9, that that did in fact happen:

the Secretary of the Department of Home Affairs requested that ASIO assess and, as appropriate, produce a security assessment in respect of –

my client in respect of the section your Honours have just seen. Then, from there, that takes your Honours to, first, the ASIO Act, which your Honours have, back in the joint book of authorities. It is volume 2, tab 8. It starts at page 406. Within that Act, if your Honours could move to section 17, which is headed “Functions of Organisation”, your Honours will see that one of the functions of the organisation – see (1)(c) – is a correlative provision that interlocks with provisions like the Telecommunications Act, so:

to advise Ministers and authorities of the Commonwealth in respect of matters relating to security, in so far as those matters are relevant to their functions and responsibilities –

If your Honours would then move forward in the ASIO Act to section 37, which, using the joint book numbers, is 424. You will see that idea is fleshed out. Referring back to the section your Honours have just seen, section 17(1)(c):

The functions of the Organisation referred in paragraph 17(1)(c) include furnishing to Commonwealth agencies of security assessments relevant to their functions and responsibilities.

I am sorry to do this, but if your Honours go back a few pages to section 35, which is 419, you will see that is where the term “adverse security assessment” is defined.  Relevantly, it includes: 

(b)a recommendation that prescribed administrative action be taken or not be taken in respect of the person –

That idea then appears later in the definition section at 420, and so “prescribed administration action” ‑ ‑ ‑

GORDON J:   Sorry, where are you now, Mr Lenehan?  I just missed that reference.

MR LENEHAN:   I am still in the definitions section, your Honour, so still 35, a few pages on, it is 226 of the print and 420 of the ‑ ‑ ‑

GORDON J:   This is “prescribed administrative action”?

MR LENEHAN:   It is, yes.

GORDON J:   Thank you.

MR LENEHAN:   So, I am just picking up what your Honours see in (d), and then (d)(ii), and so links with the power that your Honours have already seen:

(d)      the exercise of a power under –

relevantly:

(ii)     subsection 315A(1) –

of the Telecommunications Act.  If I can then return to section 37, passing over (1), which your Honours have already looked at, you will see that an “adverse security assessment”, as defined, is to:

be accompanied by a statement of the grounds for the assessment –

and that statement – see (b):

shall, for the purposes of this Part, be deemed to be part of the assessment.

From there, if your Honours go a few pages on to 38A, which is page 426 of the book or 235 of the print, your Honours will see subsection (2) of 38A:

Within 14 days after receiving the assessment, the Minister must give to the assessed person a notice in writing, to which a copy of the assessment is attached, informing the assessed person of the making of the assessment –

But then, see what immediately follows in (3):

If the Minister is satisfied that the assessment contains any matter the disclosure of which would be prejudicial to the interests of security, then the Minister must exclude that matter from the copy provided under subsection (2).

Then, returning to the facts – and I am just going to do this by reference to the special case – what your Honours then see, after the paragraph we have already been to, in paragraph 10, is that:

On 28 June 2021 –

following the request in paragraph 9:

ASIO furnished to the Minister for Home Affairs . . . an adverse security assessment in respect of –

my client.  I do not need to take your Honours to it, but the adverse security assessment appears at annexure SC‑2 to the special case, which is at special case book 47.  And then, if your Honours move over to page 39 of the special case book, you will see it is recorded that:

On 1 July 2021, under s 38A(3) of the ASIO Act –

the provision your Honours have just seen:

the Minister for Home Affairs . . . certified that she was satisfied that the disclosure to the Plaintiff, its directors or its employees . . . would be prejudicial to the interests of security.

BEECH‑JONES J:   Sorry, what paragraph was that?

MR LENEHAN:   That is paragraph 12, your Honour.

BEECH‑JONES J:   Thank you.

MR LENEHAN:   And so, what happened was that my client was given a notice which attached a so‑called unclassified statement of grounds – the unclassified statement of grounds is at annexure SC‑5, which is at page 53 of the special case book – and then a revised unclassified statement of grounds was provided on 28 February 2022 after the 38(3) certificate was partially revoked.  Now, from there, your Honours ‑ ‑ ‑ 

GORDON J:   Does anything turn on either of those two facts?

MR LENEHAN:   No, not for my purposes, your Honour.

GORDON J:   Thank you.

GAGELER CJ:   Nor are we concerned with the contents of any of these documents.

MR LENEHAN:   No, your Honour is not, no.  They will form the basis for the grounds of review that your Honours have seen in the special case ultimately before the Federal Court, but those things do not concern your Honours, save insofar as aspects of those grounds do, as your Honours have seen, require consideration of the factual material.

Now, from there, if your Honours would note – but I do not need to take your Honours to it – that section 54 of the ASIO Act then confers a right to make an application to the tribunal for the review of what your Honours have just seen – although we have not gone to the detail of it – that is an adverse security assessment.  My client made an application to the AAT, your Honours see – again, just doing this by reference to the special case itself – at page 39, paragraph 14.  Your Honours see from the document reference after 14 that the application for review is also included in the special case, but again, I do not need to take your Honours to it because it is not relevant for my argument.

The review was relevantly governed by the next piece of the legislative scheme that I am going to direct your Honours to – that is the AAT Act itself.  Your Honours have that in volume 1 at tab 3.  The part that I am going to start with is section 39A and B, and your Honours pick that up at 117 of the joint book.  Starting from 39A, if your Honours drop down the page and then over the page and see 39A(3), there is a requirement or a duty on: 

the Director‑General of Security to present to the Tribunal all relevant information . . . whether favourable or unfavourable to the applicant.

However, if your Honours then go over the page and look at 39A(8): 

The ASIO Minister may, by signed writing, certify that evidence proposed to be adduced or submissions proposed to be made –

et cetera: 

are of such a nature that the disclosure of the evidence . . . would be contrary to the public interest because it would prejudice security or the defence of Australia.

Then, the consequences of that are dealt with in (9), or the effect of that certificate, and it means that: 

(a)the applicant must not be present when the evidence is adduced or the submissions are made; and

(b)a person representing the applicant must not be present when the evidence is adduced or the submissions are made unless the ASIO Minister consents.

That consent was not in fact given.  Your Honours pick that up in the special case at paragraph 17.4, which is on page 40 of the special case book.  So, neither my client or its representatives were present in the tribunal proceedings at that point.  If your Honours then stick with the AAT Act and move from 39A to 39B, your Honours start by seeing from the scope that:

This section applies to a proceeding –

relevantly:

which section 39A . . . applies.

And then, subsection (2), there is a certification power.  And so, the ASIO Minister can certify:

by signed writing, that the disclosure of information with respect to a matter stated in the certificate, or the disclosure of the contents of a document, would be contrary to the public interest –

and, relevantly:

(a)because it would prejudice security or the defence or international relations of Australia –

If your Honours then drop down to 39B(3), you will see that then affects the requirement that your Honours saw before for disclosure of information, so:

A person who is required by or under this Act to disclose the information or to produce the document to the Tribunal . . . is not excused from the requirement, but the Tribunal must . . . do all things necessary to ensure:

(a)that the information or the contents of the document are not disclosed to anyone other than a member of the Tribunal . . . for the purposes of the proceeding –

Now, relating that back to what happened, the ASIO Minister gave three certificates under 39A and 39B.  Those are annexures to the special case book at SC‑10, SC‑11 and SC‑13.  Two were issued on 19 January 2022.  The first was made under 39A(8) and 39B(2)(a).  The second was made under 39B(2)(a).  The third was issued on 21 April 2022, and that was under 39A(8) and 39B(2).  Just to direct your Honours to where – that appears at page 82 of the special case book, there are two certificates in a row there, and then the third is at page 98.

GAGELER CJ:   This probably does not matter at all, but is the description of SC‑11 in the special case correct?

MR LENEHAN:   Is the – I am sorry?

GAGELER CJ:   Is the description of SC‑11 in paragraph 17.4 of the special case correct?

MR LENEHAN:   It appears not to be.  Yes, it is not, so we may ask your Honours to correct that.

GAGELER CJ:   What should it read?  It does not matter, Mr Lenehan, you can correct it later.

MR LENEHAN:   I am so sorry, your Honour, we will give your Honour the correct description after the morning break.

GAGELER CJ:   Thank you.

MR LENEHAN:   Your Honours, from there, the tribunal affirmed the decision to issue the adverse security assessment.  And, in a way that your Honours will be familiar with, it gave both open and closed reasons.  Your Honours have in the book the open reasons which start at special case book 99 – that is one of the documents that I think is wholly redacted but I do not need to say anything about the content of it in any event.

My client then appealed to the Federal Court.  Your Honours have the notice of appeal at page 123 of the special case book.  That appeal has been stayed pending the determination of this proceeding.  The appeal to the Federal Court is governed by the provision that is at the heart of this matter, that is section 46 of the AAT Act, which your Honours have at page 164 of the joint book, or 133 of the print.

STEWARD J:   Just before you go to section 46, can I ask a practical question?

MR LENEHAN:   Yes.

STEWARD J:   Looking at your grounds of appeal and questions of law, is there any particular one which you can identify which you say you are necessarily unable to pursue or are prejudiced from pursuing by reason of 46(2)? 

MR LENEHAN:   Yes, your Honour, at ground 5. 

STEWARD J:   Ground 5, the unreasonableness ground.  At the moment, that has been included in circumstances where unless you win, you have no prospect of pursuing that ground.

MR LENEHAN:   That will depend on the outcome of any public interest immunity application ‑ ‑ ‑

STEWARD J:   Subject to that. 

MR LENEHAN:   ‑ ‑ ‑ subject to that.

STEWARD J:   Yes.  Thank you.

MR LENEHAN:   There is something of an assumption sometimes in the authorities that that is a forgone conclusion.  We say, drawing on statements like Justice Tracey’s statement in Leghaei that that is a significant ‑ ‑ ‑

STEWARD J:   There is Justice Brennan’s statement which we are all familiar with, but the practical injustice in this case is the difference between the rigid rule, as you describe it, and what you might otherwise get in an application subject to a claim for public interest immunity.

MR LENEHAN:   Yes, where the Court would balance those various interests, including the prejudice to my client, that is so. 

STEWARD J:   Thank you. 

BEECH-JONES J:   Mr Lenehan, at some point – you do not need to do it now – if you could just identify in the AAT Act if there is any legislative basis for this idea of open and closed reasons.  Either take it on board or ‑ ‑ ‑

MR LENEHAN:   Your Honour, I will have that turned up, but I think it lies in 44AAA, your Honour. 

BEECH-JONES J:   Thank you. 

MR LENEHAN:   Now, before I say too much about section 46, your Honours will be aware that the AAT Act has been repealed and replaced by the Administrative Review Tribunal Act, which commenced on 14 October 2024, and it contains provisions that are, we say, materially identical to the provisions that I am going to be taking your Honours.  It is common ground between ourselves and the defendants that section 46, if it is valid, will govern the plaintiff’s appeal to the Federal Court, and that is by reason of the transitional and consequential divisions that are referred to in the written submissions. 

Can I then come to section 46 in more detail.  Section 46(1)(a) deals with the provision of the documents to the Federal Court.  Your Honours see in paragraph (a) where there is an appeal under section 44, which is, as your Honours know, an appeal on a question of law – something in the nature of judicial review – that: 

the Tribunal shall . . . cause to be sent to the Court all documents that were before the Tribunal in connexion with the proceeding to which the appeal or reference relates and are relevant to the appeal –

Then, paragraph (b) provides that: 

at the conclusion of the proceeding . . . the Court shall cause the documents to be returned to the Tribunal –

So, we make two general points about 46(1).  First, the general rule is that the documents will be sent to the Federal Court and will be available to the court and the parties for the purposes of the appeal.  That, of course, is affected by what your Honours see over the page in section 46(2), which I am coming to.  But sticking with 46(1), we say – picking up what your Honours Justice Edelman and Justice Gordon said in SDCV – the assumption which underlies 46(1) is that all of the documents before the court are to be used by it in determining the appeal.  That is to say – and we take a different course from that your Honour Justice Steward in SDCV – the court does not have a discretion to decline to use those documents.

BEECH‑JONES J:   So, that does not them as being tendered in evidence, but as effectively ‑ ‑ ‑

MR LENEHAN:   The record.  So, the “presupposition”, to use Justice Edelman’s description, is that the documents will be available to be used in the proceeding.  Justice Edelman said that paragraph 245 of SDCV.

GLEESON J:   Presumably, one party could make a submission that documents should not be used in the proceedings.  Then that could be the subject of an adjudication.

MR LENEHAN:   Your Honour, the construction that both Justice Gordon and Justice Edelman gave to these provisions is one that denies that possibility, because, using the language of “statutory presupposition”, 46(1) contemplates that the court will have that material and 46(2) contemplates that it will be used in a way that we say denies procedural fairness to my client, but clearly contemplates that it will be used.

STEWARD J:   Well, without rehearsing the arguments again, there is nothing in the language of section 46 that gets them into evidence, and the practice of many judges is to require T documents to be tendered on section 44 appeals.

MR LENEHAN:   Your Honour, that is so, but there is a tension in the idea that these things are made available to the court on the basis that they will be not available to be used by a person in the position of my client, and that, yet, the court can put effectively a – your Honour had in mind a condition on the admission of those documents regarding fairness.

STEWARD J:   Anyway, we have been down this path.

MR LENEHAN:   I will come to that.

BEECH‑JONES J:   Well, for those who were not here – so, on the one hand, there is kind of treating them as though it is a sort of certiorari procedure, where up comes the record, even though a lot of this material would never be the record in a Craig sense.

MR LENEHAN:   That is so, your Honour, but this is a statutory procedure.

BEECH‑JONES J:   I understand that.  On the other hand, it is a facilitative thing that gets it to the court, but not before the judge, unless tendered.  That is the other way.

MR LENEHAN:   Yes, I think I am cleaving to the first idea.

BEECH‑JONES J:   I understand.

GAGELER CJ:   Does it matter for the purposes of your argument whether it is like a certiorari or like a subpoena?

MR LENEHAN:   We say no, it does not.

GORDON J:   One of the things that implements it and the reason why it is probably not worth getting into it is you have to take into account the Federal Court rules ‑ ‑ ‑

MR LENEHAN:   Yes.

GORDON J:   ‑ ‑ ‑ which actually prescribe the mechanism by which the book itself has to contain this material.

MR LENEHAN:   Yes.

GORDON J:   So, we cannot look at this Act without looking at the way the Federal Court prescribes the procedure.

MR LENEHAN:   That is so and that is a point that your Honour, of course, made in your Honour’s reasons.  Perhaps sidestepping all of that interesting territory, we do say – picking up the Chief Justice’s question – that none of that is ultimately important to the way we put our case.

That takes me to 46(2), which is the critical provision I have flagged a few times but now ask your Honours to look at.  So, it provides that:

If there is in force . . . a certificate in accordance with –

relevantly here:

39B(2) of this Act –

which has the certification that your Honours saw before – that is, that:

disclosure of matter contained in the document would be contrary to the public interest, the Federal Court . . . shall, subject to subsection (3), do all things necessary to ensure that the matter is not disclosed to any person other than a member of the court . . . for the purposes of the proceeding.

As your Honour the Chief Justice, Justice Gordon and Justice Edelman observed, the width of that preclusive effect of 46(2) depends on the width of the certificate that is in force.  That is so because 46(2) precludes:

disclosure of matter contained in the document –

to which the certificate applies.  So, the thing that follows from that is that the level of generality at which the matter is described is entirely within the discretion of the ASIO Minister when she or he comes to issue a certificate.

That is important because your Honours that were here, and now your Honours who are newly here, heard many times on the last occasion the unfortunate word “gisting”, which was perhaps a discovery to all of us.  It follows that the extent to which any gisting is permissible under section 46(2) is effectively controlled by that person – the ASIO Minister.  That was a point that your Honour the Chief Justice made at 157 of SDCV and your Honour Justice Gordon made at 193.  So, it is not in contest that is subject only to subsection (3), which I am about to show your Honours, does not matter here, that section 46(2) imposes an absolute bar on the disclosure of things within that concept, certified matter, save to members of the court.

Now, 46(3), it is true, creates an exception, but if your Honours look down to that you will see why it does not matter, because relevantly excluded from the exclusion is 39B(2)(a).  You see that in subparagraph (a).  So, the certificate does not specify a reason referred to in, amongst other things, that provision.  The court does have a power to, in the subsections that follow, permit the part of the document to be inspected.  But that has no application here because we are in fact dealing with one of those certificates.

BEECH-JONES J:   So, do you mean a 39(2)(b) certificate?

MR LENEHAN:   Yes, 39B(2)(a), the specific ground – the national security ground that applied here. 

GORDON J:   Just to go back to the facts, the position is that each of the three certificates was at least a 39B(2)(a) certificate?

MR LENEHAN:   Yes, although they each did other things also.  Yes.

GORDON J:   I do not think all of them did.  I think the second one was not just a 39B(2)(a) certificate.

MR LENEHAN:   Your Honour is correct, yes.

GORDON J:   But each of them at least had that element in it?

MR LENEHAN:   Yes, that is so.  So, while section 46(3) may have a happy outcome in some cases, allowing the court to relieve against the preclusive effect of 46(2), it does not assist my client in the proceedings that it has commenced in the Federal Court because of the point your Honour Justice Gordon has just noted.

Now, sticking with the text of the statute, your Honours then see over the page at 166 of the joint book or 135 of the print:

Nothing in this section prevents the dislosure of information or of matter contained in a document to an officer of the court in the course of the performance of his or her duties as an officer of the court.

So, that provision clearly does not permit disclosure to my client’s legal representatives, and your Honours will have seen that in our written submissions we say that the better view is that it does not likewise permit the appointment of a special counsel to represent the appellant’s interests.  That, of course, again is an area where your Honour Justice Steward took a different view from the other members of the Court in SDCV.  But at paragraph 98, your Honour Justice Gleeson and the other members of the plurality approved the decision of Justice Foster in National Archives v Fernandes, where it was held that 46(4) only permits disclosure to court employees.

STEWARD J:   You are in a bit of a bind, because things that I found in your favour which would help your appeal, you do not like for the purpose of this proceeding, because you want the provision to act as harshly as possible.

MR LENEHAN:   I think your Honour has in mind that I am representing the same interests that I represented last time.  I have a new client.

STEWARD J:   I am talking about for the appeal for your client in this matter.

MR LENEHAN:   Yes.  That is so.

STEWARD J:   It will not suit you in the appeal, if you lose this matter, to tell the judge you were foreclosed from reporting that to the special advocate to assist your client.

MR LENEHAN:   We will not have that avenue available to us, no.

STEWARD J:   No.

MR LENEHAN:   In the public interest immunity claim that we have already talked about, of course, what Justice Allsop says in Public Transport Ticketing, that would be a procedure that would be both available and one that we would wish to take advantage of, which is another reason why we see that procedure as an attractive, robust and procedurally fair one.

GLEESON J:   You do not want a statutory right of appeal at all?

MR LENEHAN:   I am sorry, your Honour?

GLEESON J:   You do not want a statutory right of appeal at all?

MR LENEHAN:   No, we do – we have brought an appeal under the Act of this nature, it is that we take issue with the conditions that are attached to that proceeding, in that proceeding.  That is our complaint.  Your Honour has in mind – and I will come to this – that there are other mechanisms we could use but we have not, we have used this one, which is available to us, and we come here disputing the condition on that appeal.  Just to give your Honours ‑ ‑ ‑ 

BEECH‑JONES J:   Mr Lenehan, this may be by the by, but are all your five grounds not jurisdictional error grounds?

MR LENEHAN:   Yes, although – and I think your Honour obviously has in mind that on a question of law, it may be we do not need to go that far in the Federal Court.

Your Honours, can I just mention where your Honours find the different views on the special advocate procedure.  Your Honour the Chief Justice specifically did not decide either way whether that was available at paragraph 158, and that was because your Honour was of the view that even if the Federal Court had the power to appoint such a person, that would not solve the problem in section 46(2) which, in further answer to your Honour Justice Steward, obviously informs the approach that we are taking.

At paragraph 199, your Honour Justice Gordon said that it was not available, and your Honour Justice Edelman reached a similar conclusion at paragraphs 256 to 266.  Consistent with my answer to Justice Steward, we accept in this proceeding the reasoning of the joint reasons and the dissenting reasons on those construction issues.

GORDON J:   Could you just put that proposition again – what you just said then, again, please?

MR LENEHAN:   Yes.  For the purposes of this appeal, as your Honours will have seen in the written submissions, we accept what your Honour and the other dissenting reasons in SDCV said about the construction of the Act.  That is, special advocate is not available; the capacity for gisting is limited; and – the point that I discussed with Justice Steward before – the capacity to impose either some condition on the receipt or use of this material by the court, or for the court to simply decline to use it is not available.

GORDON J:   Thank you.

MR LENEHAN:   Those are the building blocks for what we then say about the constitutional point.  So, that is what I wanted to say about the statute, although I will be coming back to it.  Before I move from the statute, and in answer to your Honour Justice Beech‑Jones, the open‑close provisions are, as I mentioned, in 43AAA(4) and (5), and your Honours have that at 149 of the joint book and 118 of the print.

So, I was then moving on to do two things to develop the submission about SDCV and ratio, but all of that is really directed to the submission that we make that the result in SDCV should be reopened and overruled.  I was going to structure this part of my address in this way.  I was first going ‑ ‑ ‑

EDELMAN J:   Is it the result that needs to be reopened and overruled, or it is the result and the reasoning?  I ask that because at least one difficulty for me at the moment is that if one of the most fundamental underlying factors behind the factors in John is the strength of conviction with which a judge holds that a result or reasoning is wrongly decided, then, at least from my point of view, there may be a significant difference.  My mind was changed between drafts of reasoning in the SDVC Case on the result, but my reasoning does not depart substantially, although it is significantly different reasoning from the reasoning of the majority – or the plurality, at least.  So, is one concerned with the reopening of reasoning and result, or is it just reopening of result?

MR LENEHAN:   Well, your Honour has seen that we say result only, because we say that patching together a ratio in terms of the reasoning is difficult, but to the extent we need to do so, we make that application also.  We do embrace the idea that your Honour has just stated, which comes through in your Honour’s reasons in Vunilagi, that the first two John factors are the more important ones.  And so, if the Court is convinced that the reasoning of SDCV is wrong, then, applying the John analysis, we would get to the same point.

We do say, though, that we have something of the wind at our back, because we do say that this is a position which is similar to Lange, where the Court is confronted with a decision where, while no doubt the result goes a particular way and is to be applied in the same circumstances, the reasoning, we say, between the joint reasons and Justice Steward’s reasons differ.

GORDON J:   Can I ask a different question?

MR LENEHAN:   Yes.

GORDON J:   Why do we need to address that, arguably, when I had understood your submissions to contend that there had been a shift in the reasoning of the Court generally in relation to means and ends which is not reflected at all in the reasons of the majority – and I am not being critical of them, because at the time, at least, there have been subsequent decisions which have adopted a different form of analysis ‑ ‑ ‑

MR LENEHAN:   Yes.

GORDON J:   ‑ ‑ ‑ so that one might – as I understood your submission, you have Falzon‑type underpinnings, and one stands and looks again, then, at what the Court has done since in relation to Chapter III by reference to Jones, NZYQ, YBFZ – a whole range of other cases – which does not at all require looking to see a ratio, one is just saying, I am sorry, but the jurisprudence of the Court might have moved.  Have you abandoned that argument?

MR LENEHAN:   No.  No, we do put that argument.  Our friends say, well, the seeds of that argument were there because Justice Gageler mentioned and Justice Edelman applied a form of that analysis.

GORDON J:   I think I talk about balancing at some point.  I mean, the Chief Justice said, it is available but not argued and therefore I am not going to address it – I am not putting words into his Honour’s mouth.  So, there are at least three in dissent who had a form of reasoning which was not adopted.

MR LENEHAN:   Yes, but no doubt – and I think the point your Honour has in mind – that all of those things were in somewhat embryonic form.  In this area, because of the point that your Honour has just noted that Falzon specifically says proportionality, whatever that might mean, is not an available mode of analysis in this area.

EDELMAN J:   I was a party to that reasoning, but I have since said, pretty unequivocally, that I am certain that is wrong.

MR LENEHAN:   Yes.  So, your Honour’s very candid turning point is something that is a marked shift which has taken place since SDCV was argued, and does ‑ ‑ ‑

GORDON J:   But the whole Court, at least, arguably has shifted, in the sense of a means and ends analysis in subsequent authorities.

STEWARD J:   Not quite the whole Court.

GORDON J:   I am sorry, I said – I withdraw that.

MR LENEHAN:   I will not.

STEWARD J:   Do not go there.

BEECH‑JONES J:   Mr Lenehan, just to come back to Justice Edelman’s question, there is one thing where you are talking about the reasoning, but this is the result.  That is, the very same section.

MR LENEHAN:   Yes.

BEECH‑JONES J:   Surely, that has to be the focus of the inquiry.  That is, what is it about – should this Court revisit a section it has already declared to be valid?  Even if you might say, and I do not say there are – there is not too much commonality between the reasoning and the majority, that might be a basis for overturning, in a sense, in another context or where another provision is challenged.  This is dealing with this particular – this Court starts revisiting the very same section.

MR LENEHAN:   Yes, but in terms of questions like institutional integrity, which is what underlies the John reopening factors, if your Honour is contemplating a situation in which the decision of this Court in respect of a particular provision but not the rest of the Commonwealth statute book was to stand alone, that is the kind of hypothetical that would lead your Honours to grave concerns about refusing our reopening application, because – and this perhaps gets back to the discussion I had with Justice Edelman before – 1 and 2 in John is, of course, the more significant aspect if the Court is convinced as a matter of principle that the earlier decision, the reasoning, is incorrect.

EDELMAN J:   Can I put my questions in a slightly different way.  My reasoning could be applied, and my view arguably could be applied, to reach either result and was applied to reach the two different results.  Would a consideration of a Second Territory Senators‑type case – the concerns of stability, integrity, preservation of certainty and so on – does that require the application of the same type of reasoning, but to a different result if the different result would be consistent with that of the earlier precedent?

MR LENEHAN:   Perhaps a point I should have made before to your Honour is I think the assumption underlying that is that the result in SDCV is something that can be readily applied by lower courts.  But, of course, your Honour has seen that as between the result in SDCV, the holding of the Full Federal Court in SDCV below and Justice Steward’s reasons, there is now a problem.  The problem is, because of the Full Federal Court’s holding, the various methods by which Justice Steward saw the procedural fairness problem potentially being alleviated, none of those are available, and yet the holding in SDCV – the result – means that the Court is required to assume that all of that is procedurally fair.  So, we draw upon those strains to further identify the problem. 

GORDON J:   Can I have one more go?

MR LENEHAN:   Of course.

GORDON J:   That is just this – in NZYQ at paragraph [35], this Court talked about an authority being an “outlier” in terms of analysis.

MR LENEHAN:   Yes.

GORDON J:   Is that the way you put what now seems to be an alternative argument which you have not abandoned?

MR LENEHAN:   Yes.  Whatever may have been understood to follow from Pompano and Gypsy Jokers in SDCV has been revealed to have been decided in a context which has now considerably changed.

GORDON J:   Thank you.

MR LENEHAN:   But the other – your Honour asked me about Second Territory Senators.  Of course, in this case one was not dealing with reasoning that one finds in SDCV where the joint reasons reason in a particular way on the basis of construction to validity, and then Justice Steward takes a different turn in a way that we say is crucial to, ultimately, his decision on validity.  None of that was present in Second Territory Senators.  So, the observation that the idea of reopening could be seen to be reflecting nothing more than a change in composition of the court, that is not the case here, we say. 

Your Honours obviously had our Lange point, which I was going to develop, but I do not think I need to.  That is what we say is an important aspect to consider when your Honours are coming to our reopening application, because the effect of the passages that we have noted in Lange is that in this kind of situation where the reasoning is divergent and a ratio is not readily extracted, one goes back and looks to the underlying constitutional principles.  That is what the Court did in Lange.  It seems to be said in our friends’ outline that Lange did not involve revisiting the result, but what was being very squarely argued there by, for example, Victoria, was that the Court should do just that.

GLEESON J:   So, Mr Lenehan, are you saying that if a means and ends analysis is adopted, that, contrary to the reasoning of the minority in SDCV, you would reach an outcome where section 46(2) is invalidated, but not the whole of section 46?

MR LENEHAN:   No, no.  We are accepting that, contrary to the more adventurous argument that was put by counsel in SDCV, that the whole thing would – 46(1) and (2), in its operation to these kind of proceedings, would be invalid.

EDELMAN J:   That is common ground, is it not?

MR LENEHAN:   It is.

BEECH‑JONES J:   So, all those registrars who have been dutifully sending documents up to the Federal Court have been acting without authority since SDCV?

MR LENEHAN:   In security division proceedings, yes.

BEECH‑JONES J:   Possibly in breach of privacy arrangements?

MR LENEHAN:   Your Honour, it is not unusual – see NZYQ – that things that Commonwealth officers assumed were valid turned out not to be.

BEECH‑JONES J:   Well put.

GLEESON J:   And then you will be left with an appeal which will be dealt with, presumably, by reference to public interest immunity considerations.

MR LENEHAN:   We would face that, and we would be taking the procedural course that I have already identified.  That is, if such a claim is made – which is the first step – then we would be vigorously disputing it, with the assistance ‑ ‑ ‑

GLEESON J:   I am sorry, why would that be the first step, when the documents have not been transferred to the court?

MR LENEHAN:   Sorry, no – there are obviously other procedural steps that would need to be taken, including, perhaps, a subpoena.  Our starting point, as your Honours have seen, is that the approach in Lange perhaps that the John factors are not something that the Court needs to work through, or are not something that assume as great an importance in this matter as they would in other matters.  But your Honours have seen that, nevertheless, we do engage with them.

So, as to the first, for the reasons that we have developed in writing that I have already touched upon, the fact that the majority Justices diverged on the proper construction of section 46(2) is something that means, in turn, that their reasoning on the Chapter III issues diverged  That, we suggest, consistent with Lange – we have also mentioned, in our outline.  Jones v Bartlett, where Justices Gummow and Hayne take a similar approach – that should be regarded as a highly‑significant factor in favour of reopening.  The second point – the point I have already made in exchange with Justice Gordon – we do say SDCV does not form part of a definite stream of authority, which has attached to it the point that your Honour has made about the way things have moved in terms of the means‑ends analysis.

It might be convenient for me to say at this point something about Pompano and Gypsy Jokers which I think is really the high point of our friends’ argument as to there in fact being an existing stream of authority in which SDCV can be located.  Your Honours will have seen that we do embrace the reasoning of your Honour the Chief Justice, Justice Gordon and Justice Edelman.  The way that your Honours explained in SDCV that neither Gypsy Jokers nor Pompano resolved the argument in SDCV and so do not form points further up in the stream.

In putting that, perhaps if I can ask your Honours to turn to first Gypsy Jokers, which is volume 5, tab 28.  Your Honours will recall that this was one of the outlaw motor cycle gang legislation cases and involved the issue of a notice regarding fortification – a fortification removal notice.  There was then a limited provision for judicial review of the removal notice and the provision that was in issue in particular was section 76(2), which provided that:

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

And there were essentially two arguments – there was a procedural fairness argument, and a dictation argument.  The first point that we make is that only Justice Crennan, with whom Chief Justice Gleeson agreed, dealt with the procedural fairness argument. 

We say, consistent with what was said by your Honours in SDCV, you find very little in the joint reasons of Justice Gummow, Justice Hayne, Justice Heydon and Justice Kiefel about the procedural fairness argument.  If your Honours turn in the judgment to paragraph 10, and at the top of 553, you will see in the last sentence their Honours summarise what in a nutshell they understand the appellant’s argument to be, and that is that:

the legislation under challenge does purport to exercise an impermissible form of control over the exercise by the Supreme Court of its jurisdiction.

All of what follows, then, is dealing with that argument.  So, that is the first point about what we say in respect of Gypsy Jokers and its precedential effect for the challenge that my client brings here.  The second point is, if your Honours turn to paragraph 30, your Honours will see the somewhat unfortunately worded “Section 76(2)”.  That is:

“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 –

That, their Honours go on to say, is the first part of that provision, and then:

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.”

What immediately follows is an argument that is put by the respondent to the proceedings, defending the validity of the Act.  You see that in 31.  So, put at the forefront of his oral submissions was the proposition that:

s 76(2) does not render unexaminable by the Supreme Court the decision of the Commissioner of Police.

And that submission is accepted, which immediately indicates to your Honours that this is quite a different provision to section 46(2).  So, paragraph 33:

Any exercise by the Commissioner of Police of the power conferred by s 76(2) is conditioned upon the requirement introduced by the phrase “if its disclosure might prejudice the operations –

et cetera:

The power is not conditioned upon the existence of the opinion of the Commissioner to that effect.  Rather, the condition operates in circumstances where information is provided by the Commissioner to the Supreme Court and it is for the Supreme Court to determine upon evidence provided to it whether the disclosure of the information might have the prejudicial effect spoken of in the sub‑section.

So, that is a form of provision that would have been available to the Commonwealth here, one of the alternatives that your Honours will have seen when we get to the means and ends analysis that we draw on, which does involve the Court balancing those things, which is one reason that the reasoning in Gypsy Jokers did not dictate the result in SDCV.

What their Honours then go on to say at paragraph 35 – and this is a point that your Honour Justice Gordon, with whom Justice Edelman agreed in SDCV at 207, picked up – so the unfortunate passive form of language in section 76(2), and what is then picked up from that in paragraph 35, so:

entails all that is necessary or appropriate for the exercise by the Supreme Court of its jurisdiction to conduct the “review” –

That, your Honour Justice Gordon said, accommodated a discretion so that the Court, picking up what your Honour Justice Steward had in mind for section 46(2), could with this sort of legislative scheme certainly exercise some sort of discretion so that it could decline to use material that would be procedurally unfair.  So that, we say, is a further point of distinction between the legislation in issue in Gypsy Jokers and that in issue here.  Then that perhaps is reflected in what is reflected in what ‑ ‑ ‑

BEECH-JONES J:   Sorry, Mr Lenehan, where do we find the acceptance that a court might decline to use this information?

MR LENEHAN:   I am so sorry, your Honour, I have explained this badly.  Your Honours do not see that in Gypsy Jokers, but picking up on that accommodation that the plurality detect in 35 – and perhaps I should take your Honours to SDCV itself and Justice Gordon’s reasons at 207.  So, that is the reasoning that I am embracing.  So, her Honour there, as we understand it, picks up in particular the wording “necessary or appropriate”, and so it is that language that her Honour detects accommodates a discretion, which is plainly right, the word “appropriate” being that kind of open‑textured language, so that the Court could decline to use the material where it would be procedurally unfair.

GAGELER CJ:   Are we still dealing with reopening?

MR LENEHAN:   Your Honour, I was doing a few things.  I was responding to submissions made by our friends that, in some way, Gypsy Jokers is something that is in the way of our submission, but I was doing that in the context of saying that SDCV does not form part of a definitive stream of authority.  So, my explanation of these cases is directed to both points, but perhaps I should return to that.

GAGELER CJ:   I think they are different levels of inquiry.

MR LENEHAN:   Yes.

GAGELER CJ:   It can be part of the same stream without being compelled by the detail of the reasoning in these earlier cases.

MR LENEHAN:   Yes – I accept your Honour’s correction, and perhaps I will deal with that at a different point in the argument.

GLEESON J:   Mr Lenehan, I do not quite understand the concept of compelling a court to use material.  Perhaps, at some point, you could explain how this idea – the opposite of if a court could decline to use the material, that it could be required to use the material – comes out of section 46.

MR LENEHAN:   Yes.  That is the point that I have already said, I think a few times, is ultimately unimportant to our argument.  We do say that, at least having the material available to the court, in the way that it is done under 46(1) and (2), read in the context of the rules that Justice Gordon has referred to, implies that it will be used.

GLEESON J:   How can a court be compelled to use material?

MR LENEHAN:   Your Honour, using the analogy of the record being called up to the court, it is part of the record – the record of the administrative decision made below which the court then looks at.  My client, of course, will almost certainly know nothing about any of that – what is involved; how it is used; and in what way, which is perhaps the real point, when it comes to our validity argument.

I am then moving back to, accepting the Chief Justice’s point about order, the third John factor and whether SDCV is productive of inconvenience.  That is the point that I have already made to your Honour Justice Edelman, and that is because SDCV does not have a ratio as to statutory construction, it means that a single judge of the Federal Court is therefore bound to apply the construction adopted by the Full Court of the Federal Court, so that is a construction which is consistent with that of the plurality and the dissenting judgments.  So, a single judge would be bound to prevent my client from having access to any of the certified material, therefore denying my client a fair opportunity to respond to that material.  That includes the fact that there is no way that a special counsel can be appointed, and very limited capacity to provide the gist of the material.

EDELMAN J:   Strictly, if you are going to try and divide a ratio up into particular aspects of reasoning – which I am not sure is entirely accurate – if you are going to do that, then lower courts are not strictly bound by the conclusion of five members of the Court in SDCV that there was no power to appoint a special counsel.

MR LENEHAN:   Your Honour, that is so, but because the Full Federal Court concluded that there is no power, that at least binds a first‑instance judge in ‑ ‑ ‑

EDELMAN J:   First instance.

MR LENEHAN:   And then, for the purposes of the Full Federal Court, would be followed unless it was shown to be plainly wrong.  So, that is how we identify the inconvenience to people in the position of my client.

GAGELER CJ:   That is just another way of saying you do not like the result, is it not?  Is that the level of inconvenience that is relevant in a constitutional context?

MR LENEHAN:   Well, I think I am saying it is more than just the result.  I think I am saying that disentangling those various strands in the reasoning is putting the Federal Court in an invidious position, also.  It is bound by this Court’s decision that this whole arrangement is valid, but ‑ ‑ ‑

GAGELER CJ:   Well, the result or the holding in SDCV is that section 46(2) is not inconsistent with Chapter III.

MR LENEHAN:   Yes.

GAGELER CJ:   When you say a single judge or the Federal Court, I mean, that is the holding; and absent reopening, that is the law, is it not?

MR LENEHAN:   That is so.  Then there is the difference between Justice Steward and the other members of the Court and what that means, and Justice Edelman’s point about but for the Full Federal Court’s decision, there would be capacity to think about those things.  But I think I – your Honour, I notice the time.  Perhaps, rather than looking at my learned juniors, I can revert to your Honour after the break.

GAGELER CJ:   Yes.  We will take the morning adjournment, thank you.

AT 11.14 AM SHORT ADJOURNMENT

UPON RESUMING AT 11.29 AM:

GAGELER CJ:   Yes.

MR LENEHAN:   Your Honours, can I accept your Honour the Chief Justice’s correction about the way my submissions were fast morphing into a complaint about the result and accept that we need to put it a little differently.  So, the way one should think about this is what happens if a person in the position of my client seeks to have the Full Federal Court reopen – or, rather revisit – its earlier decision on construction in SDCV, because that then points to where the problem lies with the authority of this Court because, on the authority of this Court and the point that I either accepted or made in discussion with Justice Edelman on construction, there is no binding majority in SDCV for any outcome on construction, because you do not count the dissenting opinions in constructing a ratio.

And so, the Full Federal Court in that scenario is then left in a difficult position deciding between Justice Steward’s view and the reasons of the other members of the Court, and also the reasons of the Full Court as to what it does on that constructional question.  Then, to extend the examples further ‑ ‑ ‑

GAGELER CJ:   Sorry, Mr Lenehan, can we just take in stages?  What are the two different constructions, precisely?  Is it two, you say?

MR LENEHAN:   Yes, two.

GAGELER CJ:   What are they, exactly?

MR LENEHAN:   On Justice Steward’s view, you could appoint a special counsel; you could engage in some form of gisting, which will alleviate the procedural unfairness; and ultimately, you could refuse to admit the material in the exercise of the court’s discretion.  There are further divergences in the way the reasons approached that last issue, but there are two dissenting views that you cannot and, as we read the reasons, no ratio for any particular construction on that aspect either way.

GAGELER CJ:   The special counsel question relates to subsection (4), does it not?

MR LENEHAN:   It does.

GAGELER CJ:   I think we just need to be precise about what these problems that you say are – gisting, you say can occur, it is just controlled by the scope of the matter that the Minister has chosen to certify.

MR LENEHAN:   Yes.

GAGELER CJ:   It may be a question of degree.  All of these things, I think, are relevant to the question of reopening, and they need to be identified with a little more precision, for my part.

MR LENEHAN:   Yes.  So, starting with the special counsel aspect, it is true that that relates to 46(4), but for Justice Steward, that was an important way in which his Honour understood what was done by 46(2) and the capacity for 46(2) to result in unfairness, and part of his reasoning that led to his conclusion that the provision was valid.  That is directly at odds with the reasons of the plurality in SDCV and then the reasons of Justice Gordon and Justice Edelman.  Of course, your Honour the Chief Justice did not express a view on that.  So, that constructional question is at large.

GLEESON J:   Can you show us where, precisely, Justice Steward ‑ ‑ ‑

MR LENEHAN:   Yes.

GLEESON J:   Thank you.

MR LENEHAN:   Your Honour starts at paragraph 295.  So, there was some common ground in argument in SDCV as to the capacity to appoint a special advocate.  His Honour then notes the decision of Justice Foster in Fernandes, and then, over the page at 296, says:

With respect, that construction of the phrase is too narrow.

He refers to President Allsop’s decision in Public Transport Ticketing and discusses that case.  Paragraph 298 then refers to English authority, including MB and Lord Hoffman’s description of the Canadian procedure.

GLEESON J:   But where does he say that this bears on his interpretation of 46(2)?

MR LENEHAN:   I am sorry, your Honour.  If your Honour moves forward to page 353 of the report, 2965 of the joint bundle, you will see paragraph 308:

Because the duty and the capacity of the Court to provide different forms of procedural fairness, of the kind described above, are not necessarily precluded by s 46(2) of the AAT Act –

Because of those things:

it is a valid law.

And then, to make that very clear:

If it were otherwise, like Gordon J and Edelman J, I may well have formed the view that s 46(2) was not a valid law.  It follows that what in substance divides us is the way we construe s 46(2).

EDELMAN J:   Does that raise a section 15A question?

MR LENEHAN:   That was an aspect of how your Honour will recall we put the argument in SDCV.  We did not succeed on that point, and we put the argument differently now.

EDELMAN J:   My recollection is that I concluded that section 46(2) was an interpretation that was not open.

MR LENEHAN:   Yes.

EDELMAN J:   Although it might be an interpretation that is not preferable, if it were to be treated as one which could be reached with some difficulty but should be reached as a preference to constitutional invalidity of the whole of the section, why would that route not be taken?

MR LENEHAN:   Well, your Honour set out in some detail the difficulties in accommodating a special advocate procedure, including questions like conflict of interest, many questions that are really for the legislature to deal with, your Honour said, and therefore the upshot of that would be that a 15A reading‑down disapplication severance – I think construction would not be available, I think it would follow.  So, I think I have answered your Honour Justice Gleeson’s question.

GLEESON J:   Just at the last sentence of 308, “what in substance divides us”, is that the division between Justice Steward and Justices Gordon and Edelman, or is that between Justice Steward and the plurality?

MR LENEHAN:   I would read that as – see the preceding sentence – what divides his Honour and Justices Gordon and Edelman.

GLEESON J:   Thank you.

MR LENEHAN:   Returning to your Honour the Chief Justice’s question and the need for some granularity as to all of this, if your Honours then go back in the reasons of Justice Steward.  Paragraph 291 is where his Honour deals with the “gisting” question.  We detect as between his Honour and the joint reasons a difference in relation to that aspect, but it is true that various views were expressed upon that question in the Court.  The next issue is the one that we have ‑ ‑ ‑

BEECH‑JONES J:   Sorry, Mr Lenehan, where did your detection about the joint reasons take its – from what?

MR LENEHAN:   Your Honour finds that at paragraph 86 of the reasons.

BEECH‑JONES J:   Thank you.

GLEESON J:   Is that about the power to gist, or is it about the capacity to gist?

MR LENEHAN:   Your Honour – the word is so unfortunate, I am feeling your Honour’s pain in being forced to use it.  I am just going to look more closely at the passage – your Honour, it seems to be a broader question of power, because:

even the “gist” of that information, is apt to enable the identification by the person . . . of the sources of information adverse to his or her interests.

So, the idea, as we understand it, is it has in contemplation what is sometimes referred to as a mosaic theory of intelligence, that is, you will disclose things that seem perfectly innocuous, are not part of the protected matter, and yet ‑ ‑ ‑

GLEESON J:   That is about the practicability of the exercise, rather than the power to engage in it, if the court could be satisfied that it would be possible to do it usefully.

GAGELER CJ:   We will adjourn until 10.00 am tomorrow. 

AT 4.13 PM THE MATTER WAS ADJOURNED
UNTIL FRIDAY, 13 DECEMBER 2024