State of South Australia v Totani

[2010] HCATrans 96

[2010] HCATrans 096

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Adelaide  No A1 of 2010

B e t w e e n -

THE STATE OF SOUTH AUSTRALIA

Appellant

and

SANDRO PETER TOTANI

First Respondent

DONALD BRIAN HUDSON

Second Respondent

FRENCH CJ
GUMMOW J
HAYNE J
HEYDON J
CRENNAN J
KIEFEL J
BELL J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 21 APRIL 2010, AT 10.16 AM

(Continued from 20/4/10)

Copyright in the High Court of Australia

FRENCH CJ:   Before we hear from you, Mr Walker, Mr Solicitor for South Australia, the grant of special leave and the orders that you seek in the notice of appeal relate to the answers to the questions reserved to the Full Court, but there were dispositive orders made by Justice Bleby on 28 September 2009.  They appear at appeal book 165.  Are you seeking that those orders be set aside?

MR HINTON:   Yes, your Honour.

FRENCH CJ:   You would probably need to seek an amendment of the grant of special leave to cover that, I would think?

MR HINTON:   Yes, your Honour, and I so apply.

FRENCH CJ:   Mr Walker, would there be any difficulty from your point of view with that?

MR WALKER:   No, it would appear to follow.

FRENCH CJ:   Yes, all right, thank you.  Yes, thank you, Mr Walker.

MR WALKER:   Your Honours, the course I wish to follow is to address on aspects of the statutory process by which a control order may be obtained, with the effects it may have, being a process in which, of course, the Magistrates Court of South Australia plays a part, not the whole part.  It plays the whole part, ostensibly in relation to the grant of a control order, but not with respect to the whole part when it comes to the reason why a control order is seen to be justified by Parliament and neither, of course, does it play the whole part when it comes to all the consequences.

The purpose for the argument I wish to put concerning the nature of the process, the particular aspect we wish to highlight, is of course to show that the necessary appearance of independence from, in particular, the Executive branch – that includes the legislative branch authorising the Executive branch of the judicial branch – the necessary appearance of independence being one which, in our submission, is impermissibly entrenched upon by this legislative scheme.  The appropriate place then to start is with section 8 which gives rise eventually to the section 10 declaration which itself, of course, is at the heart of and, we say, provides the real justification as seen by the legislature for the imposition of a control order. 

Under section 8, one sees that the Police Commissioner applies to the first law officer, the Attorney-General.  The application has formal requirements which includes some matters of substance, namely, for example, paragraph 8(2)(d), setting out the information supporting the specified grounds.  No doubt under subsection (2) there are matters, probably all of those set out therein, which are mandatory in the old‑fashioned and perhaps outmoded sense of that word, that is, for lack of them there will not be a valid application.  For example, take 8(2)(f), the support by statutory declaration, no mere matter of form but presumably intended to engage the serious attention of the Commissioner or the senior police officers there referred to.

GUMMOW J:   What is the force, Mr Walker, of this word “declaration” which is used throughout Part 2?  It is some invocation, we think, of declarations of rights and liabilities.

MR WALKER:   Yes.

GUMMOW J:   By itself Part 2 does not achieve that, does it?

MR WALKER:   No, not at all.

FRENCH CJ:   There is an analogy of this in relation to declarations of services under the access regimes in trade practices, they are just declared. 

MR WALKER:   The word has a solemnity, that is, it describes a statement or assertion of fact or position which has some solemn, sometimes official role which by itself, that is, as a declaration, carries some status often recognised by the law.  Polls are declared, rights are declared and obviously certain services, et cetera, can be declared.  It is a statement intended to be, as it were, heard by the world and acted upon accordingly.  Now, that is in the context of the regime in which it is called a declaration.

At the risk of engaging analogy that may not be anywhere near complete, it also carries, we submit, an in rem flavour which is of some importance when one comes to consider procedural fairness and the offences which flow eventually from the making of a declaration.  Under section 8 as I say, there are matters in subsection (2) - grounds, information and the other matters which have to appear for there to be a proper application. 

Under section 9, namely, the notice to be given to the public that there has been an application for direction, however, you will notice that there is nothing about notification of grounds, let alone, of course, notification where information may be seen.  Compare that, for example, with what happens when a landowner applies for statutory permission to use land in a particular way where, for example, there will be notice given enabling the public to make submissions but also notification as to where plan specifications, et cetera, may be inspected.  There is nothing of that kind here.

GUMMOW J:   But Mr Walker, is it a consequence of the way your side has framed its attack on this legislation that Part 2 would be left there?

MR WALKER:   Yes, it is.  That does not mean that it is left there with what I will call a positive bill of health.

GUMMOW J:   But it will be left there in its attachment to Part 5, would it, offences?

MR WALKER:   In particular.  That does not mean that our argument embraces their validity; it means that we focus on that which has affected, or threatens to affect my clients, one who has a control order against him and one who has an application for a control order stayed pending these proceedings.  They are under subsection 14(1).  We confine our attention, and in accordance with practice in this Court, constitutional invalidation ought to be focused on that which is a concrete controversy.

However, Justice Gummow has raised a matter which, with respect, is linked with a matter raised with my friends yesterday by Justice Gummow as well.  When one considers, for example, the interaction of sections 10 and 35, it may be unavoidable in arguing the interaction of sections 10 and 14 for some attention to be given to the way in which that pair of interactions operate.  However, it is, as I have said to Justice Gummow, we did not seek to invalidate section 10 and accepted that it was arguable, that is, our primary position is that, as a matter of what I will call the “severability test”, it may well be that the whole should go. 

However, we accept and we do not press in this Court for anything to the contrary of this proposition, that section 10 and section 35 have an operation which can continue if section 14(1) is invalidated.  Under section 10 the critical component is in subsection (1).  I have already made remarks about yesterday I do not wish to take time by repeating them.  Can I draw, in particular, to attention, however, by way of this emphasis that the reference to engaging in serious criminal activity involves, of course, this notion of engaging in the commission of criminal offences.

Subsection (2) has been touched upon yesterday in some of the submissions against us.  Yes, of course, that provides a statutory prescription, breach of which could lead to a so‑called jurisdictional error.  It is not, however, something which affects anything other than the rather uninformative notice to the public to which attention has been drawn.  Subsection (3) is significant in a number of regards.  Can I draw to attention the opening words which are permissive, not mandatory:

In considering whether or not to make a declaration under this section –

that includes under subsection (1) –

the Attorney‑General may have regard –

That permits, or to put it another way, immunises the Attorney‑General from any judicial supervision which would adjudicate as wrong having regard to anything set out in the following paragraphs.  So it dispenses the Attorney‑General from any accusation of irrelevant consideration if anything, (a) to (f), is taken into account and, of course, (f) rather renders that nebulous in any event.  But it also has this character.  It means that one ‑ ‑ ‑

GUMMOW J:   Just stopping there for a minute, Mr Walker.

MR WALKER:   I am so sorry, your Honour.

GUMMOW J:   Is this, as it were, laying the ground for a submission that review for jurisdictional error is not going to be a productive enterprise?

MR WALKER:   Yes, exactly, and I have already made my point about it is going to be very difficult to say there has been irrelevant considerations taken into account, see paragraph (f).  What I am about to say is, it is going to be very difficult to say that a relevant consideration has not been taken into account because the command is not a command at all.  It is a permission, “the Attorney‑General may have regard”.  Now, there is a contrast provision to which I will be coming in section 14.

Then when one sees what may be had regard to, so it is proper to regard this but you need not regard it, one starts in paragraph (a) with “information suggesting that a link exists between the organisation” and the commission of criminal offences, commission being of course that which is read in from the definition.  One sees in paragraph (b) that the inquiry embraces “current and former members”.  That is to be borne in mind when one considers that under section 14(1), it is a current member that is the object or subject of a control order.  One sees in subparagraph (ii) of paragraph (b) that you have this notion of people who “with members” or my paraphrase “formerly associated”, that is, “have associated” with members.  Presumably, that means members current or former.

The criminal convictions, therefore, cover an extremely broad area and of course there is no link between anything in relation to what is imported by the fact of a conviction in relation to the person who is the object of a section 14 application.  They do not have to be in that class.  Then in paragraph (c), it is broad again:

any information suggesting that –

The same class of persons:

have been, or are, involved in serious criminal activity -

That means involved in the commission of offences, and then comes a curious parenthesis:

(whether directly or indirectly -

presumably bearing in mind that is indirect involvement in the commission of an offence.  It at least catches all criminal ancillary liability, query whether it goes further than that.  Importantly that is not, as it were, a matter of treating for all purposes a conviction as showing that somebody has committed an offence, as the closing words of the parenthetical proviso make plain:

and whether or not such involvement has resulted in any criminal convictions) -

Under paragraph (e) of course, the submissions may be taken into account, not “must” be taken into account.  That is interesting when one comes to consider what I will call the common law argument about procedural fairness, to which reference has been made.  The statute requires the public to be notified, authorises them to lodge submissions, but there is not even a requirement that those submissions be paid regard, a bit difficult, in our submission, to suggest that silently, nonetheless, submissions from people who may be affected eventually, such as putative members, must be paid regard to.

The argument against us put by the learned Solicitor for South Australia in relation to procedural fairness, supported as it was by the arguments for Western Australia, amounts to this, that under section 10, there is a jurisdictional requirement of procedural fairness, that that is not in any way precluded from investigation by, as we understood the argument, any aspect of section 41, whether in the Magistrates Court or in the Supreme Court.

So, the context of the argument is, in order to rehabilitate section 14 in argument, one reaches back to section 10, the section which authorises the Executive declaration of what I will call wrongdoing, an involvement with wrongdoing, and says, well, that is something where somebody who may be affected by that can, in a way that judicial process where wrongdoing is being adjudicated would require, be the subject of procedural fairness.  The first thing to observe is that there is not a word of it in the statute, particularly in section 10, not a word.  The second is, the words about procedural fairness, to which I have already drawn attention, sections 9 and paragraph 10(3)(e), are not words which provide any guarantee that even that which is called for, submissions from the public, need be paid regard to.

The next problem is, there is nothing concerning the sufficiency of what I will call service by reason of the publication of the notice under paragraph 9(a) which would concord with anything that the common law would see as necessary to give somebody a reasonable opportunity to be heard.  You are not told the grounds, let alone the information.  For those reasons, in our submission, the assertion by way of what I will call a tactical concession on the part of South Australia, that there is procedural fairness required by law for section 10, ought to be rejected.

GUMMOW J:   I am not sure what the solicitor said was the content of the obligation.

MR WALKER:   The content at least included that any person affected, my expression, a putative member who might be the subject of application under subsection 14(1) is to be heard as to why the section 10 declaration ought not be made, yet the content did not get more specific than that.  Now, the first point we make is, in fact there is scarcely notification that permits anyone a reasonable opportunity to be heard why it ought not to be made because you are not told the grounds, that is the first thing.  The second thing is, where Parliament turned its attention to the way in which the Attorney must proceed in considering whether or not to make the order, there is merely permissive, explicitly merely permissive, regard to be had to matters including submissions from the public.

Now, submissions from the public will, of course, subsume anyone who considers themselves as possibly the target, to use the Attorney‑General’s expression in the second reading speech, the target of this legislation.  Then one asks the question, given that there is no prescription for modes of service or deemed appropriateness of service or a regime that says an order may be made so long as you are first published in three newspapers circulating in the vicinity, et cetera, such as would be required for extinguishment of restrictive covenants, et cetera, there is no provision like that in the legislation, no provision in the legislation for delegated legislation regulating any such thing.

One asks this question, at common law surely it then means that if these large effects, restrictive of personal freedom, are the thing which, according to the State now – not a word, by the way, of this in the second reading speech – that imposes by common law a requirement as procedural fairness, then it presumably applies it in favour of, capable of being taken advantage of, by every single person in that position.  Your Honours will recall I talked about characteristics that suggest an in rem nature to this declaration. 

But if every single person who may be affected has a right, and therefore has a right to a reasonable opportunity to be heard against the making of the section 10 declaration, what happens if, as is proven in this case, there were attempts that did not wholly succeed, even to notify the people that they thought were members, not people who themselves thought they might be suspected of being members?  Because what we have in the record in this case – see page 11 of the appeal book, paragraph 16, I do not need to take you to it, is that the Attorney‑General diligently sets out the efforts made which are not wholly successful to notify people.

There is no suggestion of what I will call negligence in protection of one’s own interests on the part of the people who were not served.  For all we know, they were on holiday or had changed address in an entirely innocent fashion, as most of us are able to do without notifying officialdom.

One has this question raised but not answered by the argument against us for South Australia.  Does this mean that a section 10 declaration is intended by Parliament or, the court will impute as the outcome of this scheme of legislation that every declaration is so fragile as at any time after the event of it being made – someone coming along and saying, “But I am precisely the kind of person who, within the ambit of the target, being in the target area” - to use the Attorney‑General’s language – “should have been consulted about this and I never was” and therefore would, at the instance of that person, the declaration be set aside - ab initio of course, it would be jurisdictional error – and would it be set aside in relation to everybody?  Can one have a declaration that is bad qua some people but good qua others?  Can one have a declaration subject to that kind of doubt which is an acceptable reading of a statute where the declaration becomes the foundation by way of policy justification for a series of really quite serious offences and penal consequences?

HAYNE J:   Can I just return to one other aspect of this unexpressed premise that necessarily underpins the proposition that natural justice and procedural fairness must be accorded.  As I understood the argument against you it was that procedural fairness has to be accorded not to something described as “the organisation” but to the members of the organisation presumably on the footing that the effect of the declaration on the individual was such as to call for it.

MR WALKER:   As we understand the argument – this will not be verbatim, but it is those who are potentially affected.  A clear class are the people that the Commissioner asserts to the Attorney are members and that is why the Attorney proceeded as he did in this case

HAYNE J:   But the statutory roots for this argument include at least observing in 10(1)(a) that what is to be the subject of satisfaction is that members associate, et cetera, coupled with the content of the definition of “organisation” in section 3 as:

any incorporated body or unincorporated group (however structured) ‑ ‑ ‑

MR WALKER:   Yes, and the definition of “member” as well.

HAYNE J:   And that there is a difficulty if one reifies the notion of organisation in this context.

MR WALKER:   Yes.  Now, for an incorporated association of course we submit there is absolutely no reason why it should not be given procedural fairness on the argument against us.

HAYNE J:   I understand that but ‑ ‑ ‑

MR WALKER:   My principal argument is, of course it has been excluded by the scheme that no crack in which is large enough to insert this very considerable common law body.

HAYNE J:   But the effect on the individual which might be thought to be identified as the premise for the conclusion about procedural fairness is an effect which can be articulated as, if the Attorney is satisfied that some or all members associated for the purpose – here insert content of purpose – the consequence is that under 14 all members must be controlled in their future conduct by the judicial arm.

MR WALKER:   Yes, subject to this qualification, it not being compulsory, that is, it still being a matter of Executive choice as to the identity and number of those who will be selected to be the subject of a section 14 application.

HAYNE J:   Yes, but if they are selected, the court must.

MR WALKER:   All are in the target area.  All those selected, of which membership is proved, must be controlled, yes. 

KIEFEL J:   Do you go so far as to say that the declaration is then about individuals and their guilt?

MR WALKER:   There is a two-stage answer to that.  Of course it is about individuals and their guilt because although one talks about organisations, we know we must be talking about the conduct of at least two natural persons at some stage in the past.  We must be.  Whether it be two or many, many more, all we are talking about is the conduct of natural persons.  Now, that does not mean that there may not be an incorporated organisation who is to be counted in law as a person and so you have got another person apart from the natural persons, it simply means that the involvement in criminal offences of an incorporated organisation will be by reason of the wrongdoing of natural persons. 

So that we can immediately say that by reason of what sections 4 and 10, but particularly 10, say, we know that it is about the commission of criminal offences by natural persons.  It may be about something further, namely, the non‑criminal involvement, if that might be imagined.  It might be that there is a fuzzy area of non‑criminal involvement of other natural persons in the same offending, but that might only be a matter of detail.  It is certainly about what I will call nefarious conduct.

The second point is, that in relation to the person the object of a section 14 application, it need not be that that person is to any degree involved in any of the wrongdoing which grounded the section 10 declaration and in that sense when it comes to the section 14 application, because section 10 declaration may not be canvassed in that proceeding, a matter to which I will come, the wrongdoing of that person need not be demonstrated at all.

On the other hand, when one comes to the succeeding provisions of section 14, including specified exceptions to the control and matters that must be taken into account – I am going to come to them under subsection (6) of section 14 – it is plain that whether or not overtly in the form of committing criminal offences a pretty close connection of the section 14 respondent to criminal wrongdoing is also part of the inquiry, a part of an inquiry, however, which does not have to do with the commission of offences so much as in the style disapproved by this Court as one of the collection of aspects in Kable involves the prediction from criminal propensity of criminal conduct in the future.  Can I come back, however, to the section 14(6) point which will elaborate that answer to Justice Kiefel.

FRENCH CJ:   Just going back for a moment to the question Justice Gummow put to you earlier.  Although in form the declaration says nothing more than it is a declaration in respect of – or I think “about” is the word used in the Gazette in this case – the relevant organisation, it might be seen as having as minimum content a statement in terms of the necessary conditions for making a declaration under 10(1)(a) and (b). 

MR WALKER:   Yes, which, of course, is a statement of conclusion which need not and does not ‑ ‑ ‑

FRENCH CJ:   Yes, I have made these findings which are necessary conditions for this declaration.

MR WALKER:   That is right.

FRENCH CJ:   What, incidentally, informs the discretion that remains after the satisfaction as to those conditions?

MR WALKER:   There is nothing in the statute so that it is difficult to imagine how the public‑spirited busybody could get a mandamus, for example. 

GUMMOW J:   There is a question of whether the use of the word “may” is a finance facility’s “must”.

MR WALKER:   It would be odd if it were a “must”, bearing in mind that, without being in the slightest degree critical of it, there could be decisions from time to time that given limited resources and an allocation of them to the police force, it is best, for example, to concentrate on the investigation and prosecution of ordinary offences rather than the creation of a squad, in effect, which is a consorting squad.  That will be a legitimate operational decision from time to time, no doubt discussed between the Commissioner, the Attorney‑General and probably the Premier.  There would be nothing illegitimate about taking into account we cannot afford to have any more declared organisations, for example.

But when I say “an unfettered discretion”, I am using it in the Water Conservation & Irrigation Commission (NSW) v Browning sense.  The subject matter of the statute will, no doubt, inform that which is illegitimate as a discretion and the ordinary class of unthinkable irrelevant considerations, such as a bribe, need not be dwelled on, but otherwise it is at large controlled only in that very broad sense.

GUMMOW J:   Just going back to the natural justice submission.  I am looking at the transcript at line 930, page 22.  The submission against you seemed to involve the Police Commissioner because the obligation of the Attorney was determined by such identification as the Attorney received from the Police Commissioner.

MR WALKER:   That is right, yes.

GUMMOW J:   There does not seem to be an obligation on the Police Commissioner.

MR WALKER:   No, no.  I am going to come back to that in terms of what I will call disclosure, duties of disclosure.  There is no obligation in the statute.  Of course, this is not a judicial proceeding and there is no obligation on an officer of the court.  There is no requirement, for example, for the Commissioner to supply all the information known about the reliability of a confidential informer, nothing of that kind at all, and the Attorney has, according to the statute, at least, no power to require the Commissioner to revisit any particular matter or to supply more information.

When we talk about the Executive, because the Attorney‑General makes the declaration under section 10, there is a temptation simply to concentrate on the relation of the Attorney‑General and the Magistrates Court when it comes to section 14.  Our case is very much that it is the combination of the Commissioner, the Attorney‑General and the section 14 magistrate which offends against the requisite appearance of independence.  The Commissioner has a whip hand, we submit, in a number of matters, including of course the most important, whether to do anything at all.  It is for those reasons that there is a thoroughgoing.

FRENCH CJ:   There are, of course, third parties affected by the making of a declaration.  Even close family members are not completely free of the risk of prosecution if the association is proved not to be reasonable in the circumstances.

MR WALKER:   No, quite.  Your Honour, that leads me to my next argument about procedural fairness.  This is all for the proposition that of course one cannot have a common law requirement of procedural fairness survive this legislative scheme.  It is unworkable and the scheme has to then be seen in relation to our argument about section 14(1) and its validity.  It has to be seen with warts and all, and the warts relevantly are that of course it has excluded procedural fairness of a kind normally engendered by the threatened effect on a person, in their personal interests, by official action. 

We have talked only about members or putative members, or people who fear they might be suspected to be a member.  As the Chief Justice has pointed out, that is a grossly inadequate class to posit of those who may at the section 10 stage say “Hang on a moment.  Before you do this, you ought to know that I am”, for example, married to, affianced to, the mother of the children of, et cetera.  Somebody that you probably think is a member of, et cetera, et cetera.  You may be a business partner of them, a legitimate business partner of them, for example.

It would be difficult to say that the threatened break up, entirely, of your business partnership or severe disruption of your personal relationship, which could be founded on an adverse section 10 declaration, is one that would not excite procedural fairness, accepting the principles as the Solicitor for South Australia has argued them.

It is for those reasons, in our submission, again when one asks the question, “And what if one of those people comes forward later to say ‘I did not get that chance’”.  The possibility of answering that satisfactorily is difficult therefore to say that there is any room for procedural fairness.  If there is no room for procedural fairness then, in our submission, once one puts aside the relatively formal – I do not say unimportant – but the relatively formal matters that one saw in section 8(2) – apart from them, there is really nothing to ground so as to provide any comfort from the availability of review for jurisdictional error.  In any event, as I shall come to in a moment, section 41 really does stand in the way.

CRENNAN J:   What about Wednesbury unreasonableness?

MR WALKER:   The difficulty with a Wednesbury unreasonableness as jurisdictional error is that if it is, as we submit it ought in the context of a statute like this be seen as applicable only to the exercise of a discretion to avoid it becoming a dressed up dispute of facts, then it is almost impossible to see how you could get Wednesbury unreasonableness, bearing in mind the diffuseness of material and the judgments required under section 10(1).  The Attorney‑General merely has to be satisfied of certain things and he may have regard to the relatively diffuse information, information suggesting a link exists, for example, in order to, for example, find that the organisation represents a risk to public safety and order.

There is also another difficulty, if one supposes that intervening between section 10 and section 14 in the process.  I will come to that in a moment, but it is really unimaginable, that is one cannot construct a realistic scenario by which people could undertake a Wednesbury challenge to a section 10 declaration in the time provided – subject to extension – for section 14 and objections thereafter.

Your Honours, the next point to observe of course is that the diffuse material that I have referred to, authorised, but not compelled to be regarded under section 10(3), very plainly, very explicitly, severs any connection with - eschews any of the safeguards of admissibility such as judicial process would require.

Under subsection (4) the dispensing provisions there make it clear, as Justice Hayne put it, and I accepted, that there need only be some members, and for that matter, some activities or some associations.  That is important when it comes to the way in which the judicial imprimatur is enlisted under section 14 to render a person deprived of a very considerable liberty, and placed at considerable peril, notwithstanding he or she, of course, may not have committed any of the relevant wrongdoing, but the reason for depriving them of the liberty is by reason of this non‑judicial finding of past criminal conduct by others.

Under section 13(1), as your Honours know, no reasons need be given.  There is no significance in the volunteered reasons therefore in this case in relation to an argument about validity.  What one Attorney does, or has the time or patience to do, need not be repeated.  It is impossible, in light of section 13(1) for anyone ever to complain to a court this process is unfair and therefore outside jurisdiction because you did not set out to give reasons and you did not give reasons.  A court would be bound to observe the command in subsection (1), not required to provide any grounds or reasons.  One notices that it is “grounds or reasons”; it is the whole lot.  Under section 11 therefore, one knows that a declaration may be as bare as imaginable.

Under subsection (2), a criminal intelligence provision, of course we recognise the force of an argument that the definition of “criminal intelligence” that one sees in section 3 lends itself at first sight to the approach taken in K‑Generation.

GUMMOW J:   What section are you looking at, Mr Walker?

MR WALKER:   Section 13(2) refers to criminal intelligence, that which is defined in section 3 in terms with which your Honours are familiar which include the note it means information “the disclosure of which could reasonably be expected” et cetera.  No component of the definition of “criminal intelligence” renders it so because somebody designated thinks so.  It appears to be stated as a fact.

GUMMOW J:   It says “any person ” in section 13(2).  It does not include courts.

MR WALKER:   Yes.  Can I come back to that in just a moment, your Honour, but first, in relation to criminal intelligence we accept that at first sight it appears to lend itself to a K‑Generation question.  However, that leads to the thing, in what forum, what proceeding, in what argument, could a court ever come to substitute its view of whether the section 3 definition of “criminal intelligence” existed when the Commissioner classified the information as criminal intelligence.  I will come back to that when I come to section 14 and the interaction with section 41.

Certainly there is no opportunity given, no occasion when anybody concerned that a section 10 declaration not be made would have the wherewithal by way of their knowledge of the existence of any such controversy during the process of making section 10.

HEYDON J:   Is your point that the exclusion is not for criminal intelligence but that information which is classified by the Commissioner?

MR WALKER:   That is my next point, yes.

HEYDON J:   It is a Liversidge v Anderson type of point.

MR WALKER:   Yes.  I start by conceding – yes, criminal intelligence is defined in a way that makes it, as it were, a fact.  On the other hand – and the definition does not have any reference to a person’s opinion, such as the Commissioner’s opinion, but what is classification by the Commissioner?  It is a mental act depending upon a view by the Commissioner as to the nature of criminal intelligence. 

In our submission, the language of section 13(2) does mean that if the Commissioner has classified, that is has reached the opinion that it is in a particular class, then the prohibition in subsection (2) applies and it does not matter that the court in this non‑existent occasion when a court might come to intervene before a section 10 declaration is made, it does not matter a court would disagree with that classification.

That is one argument.  The next argument is, as I say, even if it was treated as by reason of K‑Generation this is something that a court could revisit, there is no occasion easily or at all capable of being posited before a section 10 declaration is made when anybody could, in fact, challenge.  When one considers that we are talking about material which the Commissioner wants to keep secret it is impossible to understand how one can say, “Whatever you are keeping secret I say you should not be.”  That, in our submission, should be rejected.

BELL J:   How does that last submission fit with section 21(1) and the reference to “properly classified”?

MR WALKER:   One flirts, your Honour, with the pretty unacceptable argument that section 21 uses “properly” and so Parliament wanted us to think that under section 13 it did not have to be properly, but that rejects that as an utterly unattractive way of construing the statute.  But something like that must be at work, unless there is, as it were, a mere slip in the drafting.  I do not think I can say further, your Honour.  It is a pretty terrible submission to put that because “properly” is used in one place the Parliament has authorised something improper somewhere else.  That seems impossible.

FRENCH CJ:   The classification process by the Commissioner reflects the language used in the Licensing Act in question in K‑Generation and that was held to be open to collateral attack.  In fact, I think South Australia put the proposition that the classification had to be objectively correct.

MR WALKER:   That is right, or the Commonwealth.  Yes, that is right and that is why I have been saying, well K‑Generation is obviously evoked by these provisions.  Justice Bell asked me why does it have to be properly classified by the Commissioner under 21(1), the word “properly” does not appear in section 13(2), I do not think I can say more than I have.

HAYNE J:   Is the answer that 13(2) is concerned with what is occurring within the Executive, whereas 21 is concerned with what is happening in the judicial branch?

MR WALKER:   Your Honour, that is an answer that immediately occurred to us, but it is difficult, with respect, to see the reasoning of K‑Generation as a matter of statutory interpretation authorising that differential approach. 

HAYNE J:   I was not looking to K‑Generation as support for that, simply that 13(2) is regulating what ‑ ‑ ‑

MR WALKER:   What the Executive does.

HAYNE J:   ‑ ‑ ‑ the Executive does, because the hinge about which 13(2) turns is information provided by the Commissioner to the Attorney for the purposes of this part, Part 2, and thus we are in the Executive branch.

MR WALKER:   Yes, we are.  What I am putting by way of submission is, but that does not appear to justify, permitting to be done not properly, that which under section 21 can only be done properly.  Yes, that is a difference and it may be it is informative of an approach to the Executive component, the very large, we say, major premise part of a control order and the need for it to be made, but, in our submission, entirely ‑ ‑ ‑

HAYNE J:   It is not going to have one part of the Executive passing on the propriety of the activities of another part of the Executive.  That is the province of the courts.  See section 21.

MR WALKER:   It is possible of course, that is so, but the argument against us is, of course, that it is not the Attorney‑General who is going to say that the Commissioner hold hard this is not criminal intelligence, it is offered by way of a comfort that this is not unexaminable Executive action about the wrongdoing or others providing the foundation later for a control order because this call be reviewed.  Well, the answer is, it really cannot be.

GUMMOW J:   Is not subsection (2) a provision that one operation of which is directed to the Attorney if the Attorney, although not required, does provide grounds under 13(1)?

MR WALKER:   Yes, that is correct.

GUMMOW J:   Grounds are not to involve a disclosure.

MR WALKER:   Yes, it is certainly a command applies directly to the Attorney.

GUMMOW J:   It is not for the Attorney to investigate whether it was properly classified.  It has been classified not to be disclosed.

MR WALKER:   Yes, that is the fact of it.  It has been classified, right.  Your Honours, Justice Gummow has raised with me something that was raised yesterday, namely, would one interpret “person” here as meaning judicial officer or court as including judicial officer or court in the expression “no information may be disclosed to any person” in section 13(2).  Of course there are authorities which reject the proposition that a court fits naturally or ordinarily and in the context of those decisions in the expression “person”.  On the other hand, obviously all judicial officers are persons. 

But when one goes to the drafting of section 21, one sees that it would appear that Parliament did consider the possibility, indeed, we would go further, use the word “person” so as to include court.  We get that because under section 21(1) the same language is used “no information may be disclosed to any person” and the parenthetical exception in section 21(1) includes a court.

GUMMOW J:   It is included in Part 3 which is all about courts making orders.

MR WALKER:   Yes, but what I am saying is, the language of, do not disclose to any person, is used in section 21(1) as if, but for the express exception, that would apply to a court.  It compares that to the parenthetical exception to section 13(2) where a court is not mentioned and, in our submission, the better reading, however untraditional, in this statute is that a person to whom such information may not be disclosed under section 13 includes a court, because in section 21, when at the later stage of exercise they came to consider the same possible disclosure or nondisclosure, they said not to any person except a court, a totally unnecessary form of words if a court would not have been included in any event.

The immediate effect upon section 10 being made, of course, is that section 35 is activated, activated in this sense, that it now becomes possible for people to commit offences.  I say immediate, there is no requirement for service.  Yes, there are exculpatory factors in section 35 by reference to knowledge including recklessness of the existence of a control order, but section 35 nonetheless comes into force so as to render a number of persons, not just members or alleged members, a number of persons capable of committing what can only be described as serious offences with condign punishment.

Much reference was made yesterday to the exception as if this somehow tempered this immediate consequence of a section 10 declaration to section 35(7), but one cannot read subsection (7) without, as it itself reminds one, looking at subsection (8).  Subsection (8) carves out, of course, a very large group of people from the capacity when prosecuted under section 35 to prove reasonable excuse.  Reasonable excuse is not available for the people referred to in subsection (8).

Could I, while on those subsections, point out one that has not attracted attention and that is subsection (9).  Bearing in mind that section 10 obviously involves Executive satisfaction on untested material concerning the criminal wrongdoing of some people, note in section 35(9) that when an offence is being prosecuted under it:

it is not necessary for the prosecution to prove that the defendant associated with another person for any particular purpose or that the association would have led to the commission of any offence.

FRENCH CJ:   Presumably the defendant would have to establish the purpose as part of the reasonable excuse defence under subsection (7).

MR WALKER:   But only if they were eligible to invoke subsection (7).  There will be many people who will be caught by subsection (8).

FRENCH CJ:   Yes, I appreciate that.

HEYDON J:   The burden of proof under subsection (7) is on the defendant.  Where does the burden of proof lie under subsection (2)?

MR WALKER:   On the prosecution once the matter be raised.  When I say “once the matter be raised”, no prosecution will succeed unless there is evidence to support knowledge or recklessness.

HEYDON J:   Beyond reasonable doubt.

MR WALKER:   Beyond reasonable doubt, yes.

HAYNE J:   One minor matter of detail, Mr Walker, to which both parties might give some attention.  The 35(3)(a) speaks of:

a criminal conviction (against the law of this State or another jurisdiction) of a kind prescribed by regulation –

The regulations then under regulation 5 prescribe certain convictions and they include a category “convictions of a major indictable offence”.  I am not quite sure where that expression “major indictable offence” comes from, but at some point if somebody could point it out to me.  It is a matter of no immediate concern.

MR WALKER:   Yes.  Section 5 of the Summary Procedure Act, but I am relaying that information rather than vouching for it, your Honour.  I will check that.

HAYNE J:   Thank you.

MR WALKER:   I apologise for that.

HAYNE J:   No, it is a matter of detail.  But the excised group, or the people dealt with in 35(8) ‑ ‑ ‑

MR WALKER:   Could be, that would have no connection ‑ ‑ ‑

HAYNE J:   If you have got a prior.

MR WALKER:   And need have no connection with the wrongdoing that the Commissioner conceived of and the Attorney-General accepted on the untested information that founds the declaration under section 10.

HAYNE J:   The bare fact of certain priors is enough.

MR WALKER:   Yes.  Could I now come for the first but not last time to section 41.  The Full Court treats section 41 as a bar as we read the reasons of Justice Bleby in the way in which we have argued it.  It is subject to a case which led to the answer I gave Justice Heydon yesterday concerning paragraph 85 of our submissions.  Could I take you now to the reasons of the Full Court so as to show the way in which the validity we refer to in paragraph 85 of our written submission is a very specific case.

One starts at appeal book 123 and 124, paragraph 135.  The third of what his Honour calls “potential issues”’ in a section 14 application, he says:

notwithstanding the provisions of s 41 of the Act, there may be a justiciable issue as to the validity –

and that, I regret to say, is the word we should have glossed or qualified in paragraph 85, that is why it is there.  Where the declaration is said to be beyond the jurisdiction, so there is the jurisdictional error point, that is if it is alleged to be a declaration outside the compass, section 41(2) would appear not to prevent such a challenge based on the principles expressed in Hickman.  So it is a Hickman point.  Now, your Honours, we have tried and fail I confess, to imagine realistically a case where one could find a Hickman challenge to a section 10 declaration when you have the Gazette notice.

One has to go to quite fantastic and ridiculous lengths in order to find something which would meet Hickman.  Presumably, for example, if one proscribed a registered political organisation, bearing in mind what one sees in section 4(2) of the Act, and did nothing else, it may well be that you would have a flying start to a Hickman case, certainly a flying start to getting documents without being accused of fishing.  But leaving aside something as fantastic as that, in our submission, this case of a justiciable validity challenge in a section 14 application is remarkably limited and goes nowhere near the extent that is assumed by the argument against us, but, of course, by way of so‑called collateral challenge - see Coco, see Ousley - of course section 10 declaration is up for grabs in a section 14 application. 

That is not what Justice Bleby says in paragraph 135 and it is not, for the reasons that his Honour points out in the following paragraphs I am going to specify, and for the reasons we have put and will put, it is simply not how this Act operates given section 41.

The next paragraph to be gone to in a sequence is at appeal book 126, paragraph 148.  His Honour refers to having “already referred to the very limited grounds”, that is what one found in paragraph 135, and then his Honour says:

Subject to that, s 41 ensures that in an ordinary case, the declaration cannot be subject to judicial review.  The declaration is protected by sub‑s (1)(a) and (2).

With respect, his Honour is correct.  Then one goes to appeal book 128, paragraph 155 where reference is made to:

what is, in effect, the certificate of the Attorney‑General . . . no ability to go behind that certificate . . . The Attorney‑General’s findings are unreviewable.  They are, in effect, binding on the Court.

It culminates at appeal book 131, paragraph 167:

The statutory requirement embodied in s 14(1) that the Court must act without question –

I emphasise that last phrase –

on a declaration –

et cetera, that, in our submission, is a very clear demonstration of the so‑called validity challenge available, being this very limited, no doubt, very important Hickman case only.  While there, your Honours will note that in paragraph 167 there is a reference in the third and fourth lines “without the right to a fair hearing”.  That is a reference to that which produces the section 10 declaration.  The Full Court certainly, as we submit, in support of their reasoning, regarded the notion of procedural fairness for section 10 as simply wrong, and for the reasons we have put, with great respect, they are right.

When one comes then to section 41 it is true that subsection (1) is concerned with proceedings, it prevents proceedings of a specified character from being brought, except as provided in this Act, and by a stretch of description one might see section 19 as that - we will come back to that.  Clearly enough, under paragraph (a), a “declaration”, explicitly referred to, will include the section 10 declaration, indeed I think it is the only relevant one, and it is as broad as the Attorney, the promoter of the Act could make it and the Houses were prepared to enact.  In his attempt to have as strong a privative clause as possible, it is under this Act or purportedly under this Act.

It is said then that when one comes to subsection (2), the omission of that word “purportedly” in light of discussions such as the closing remarks in Darling Casino, it is said that the world of difference is made and that there is a limited protection only given under subsection (2).  In our submission, that is wrong as a matter of interpretation.  The drafting of subsection (2) makes it clear first of all by reference to “cannot be challenged or questioned in any proceedings” that Parliament intends here to comprehend more than simply a challenge initiated by a person, the subsection (1) kind of challenge, but also an answer given by a respondent in proceedings.  Now, that is common ground.  That is why it is said subsection (2), if any part of section 41 speaks to section 14, is the one that does.

However, it is the use of the word “validity” that renders untenable, we submit, the idea that omitting the word “purportedly” has deprived section 41(2) of any preclusive effect and it may be demonstrated quite simply.  In order to give effect to the argument against us, one has to read subsection (2) so as to allow for the case of that which is merely a purported declaration under Part 2, that is, one that is an invalid one.  So reading it in as if the omission is significant one finds that subsection (2) has solemnly provided that the validity and legality of a valid and legal declaration under Part 2 cannot be challenged or questioned in any proceedings; a thorough absurdity.  It is validity and legality being the topic’s subject matter or character of a declaration which means you do not need the word “purported”.  Indeed, if you require the word “purported” you will commit this absurdity.

FRENCH CJ:   If the subsection has simply said, “a declaration under Part 2 cannot be challenged or questioned in any proceedings”, on your argument that would impliedly include challenges to validity, would they not?

MR WALKER:   Yes the notion of challenge or question must include, at a minimum, and in some cases will only include validity or legality if, for example, there could be no thought given to a mere merits disagreement.

FRENCH CJ:   So is there any particular significance in the inclusion of “validity and legality”?

MR WALKER:   The clarity with which the issue is specified by Parliament that cannot be raised, that is, the significance, in answer to the Chief Justice, is that Parliament has specified that validity and legality cannot be challenged or questioned.  It means that that which a purported decision lacks, namely, validity or legality, is precisely that which is said cannot be challenged or questioned.

The entirety of the meaning that distinguishes something made under an Act and something purportedly but not properly made under an Act has been subsumed by the topic which has been expressly denied to all courts except those benefiting from Kirk.

FRENCH CJ:   How does that sit with S157?

MR WALKER:   This is State legislation, of course.

FRENCH CJ:   Yes, but in terms of the text of the privative clause there which precluded challenge, inter alia.

HAYNE J:   Set out at page 497 of 211 CLR.

MR WALKER:   Your Honours, it sits this way.  By reference to the validity and legality not being subject to, challenged or questioned the argument against us that that significantly lacks the word “purported” must mean that the court is being asked to read this as saying that the validity and legality of a valid and legal declaration cannot be challenged or questioned in any proceedings.  That is a self‑defeating preclusive provision.

HAYNE J:   Why is that reading not also open under 474(1) of the migration legislation considered in S157?  I am not saying it is not the reading, but what is the difference?

MR WALKER:   The difference is the focused specification in express terms of the validity and legality.  In other words, it does matter that Parliament has said to the courts that it can say it because of Kirk – it has said to those courts, “You are not seized of validity and legality”.  That will be done elsewhere, if at all.  Parliament was probably trying to say it could not be done anywhere but the Supreme Court of course has Kirk.  I am here talking about the section 14 court which is not the Supreme Court.

The answer to the Chief Justice and the answer to Justice Hayne is that S157 does not embrace the position of a preclusive provision that specifies that validity and legality is that which cannot be called into question because otherwise subsection (2) is reduced to something which is mere meaningless print.  To say that something valid cannot be challenged, in our submission, is a mockery.

GUMMOW J:   What is the relation between subsection (1) and subsection (2) – and subsection (3) if it comes to that?

MR WALKER:   I will come to subsection (3) immediately.  We think that the relation is that section 41(1) prevents separate proceedings.  I do not say it only does that but it certainly does that.  Section 41(2) prevents Ousley, Coco collateral challenges or challenges in the course of other proceedings.  Subsection (3) does the same thing in relation to criminal prosecutions.  Subsection (3) of course completely fits what one sees as being contemplated by the Court in Breckler (1999) 197 CLR 83 at 108, paragraph 36 to which attention was drawn yesterday, and in particular the phrase in that paragraph “in the absence of legislative prescription to the contrary”.

Section 41(3) makes it clear that when prosecuted, for example, under section 35, you cannot, according to this, challenge or question the control order on the basis that, for example, the declaration was invalid, because that would be to challenge the validity and legality of a control order.  In our submission, the same things can be said about subsection (3) as can be said about subsection (2).  In State legislation controlling State proceedings the only way to give a meaning and operation to those provisions is to include, as is their evident intent, a real effect. 

No real effect is given to them if all they prevent are challenges to valid Acts.  The effect designed to be achieved is, you are not allowed to raise and no court is allowed to accept your argument that these are not valid administrative Acts.  In our submission, it is at one with other elements of the statute that we would characterise as overreaching in relation to seeking to keep away from, the court seized of the subsection 14(1) issue, the issues of substance which according to the policy manifest in the legislation, justify the restrictions on liberty which are involved in a control order.

HEYDON J:   Can I just get the overall structure?  You say that because of what you have just been saying about section 41 that no independent challenge in the Supreme Court by way of judicial review is permissible?

MR WALKER:   Kirk, of course, is an answer to that, for the Supreme Court.

HEYDON J:   But no challenge in a District Court if one is possible?

MR WALKER:   No, and the Magistrates Court hearing the section 14 application is not allowed to look at it.

HEYDON J:   Just on Kirk, these words meant something the day they were enacted.  They must mean the same thing now.  What is the impact of Kirk, to invalidate or what?

MR WALKER:   There are only two choices, read down or invalidate.  We have not got a concrete case, that is, there is nobody before the court who has been either successful or unsuccessful in mounting such a challenge and so what I am about to say is, of course, not something that we are briefed to ‑ ‑ ‑

HEYDON J:   Yes, but if it is invalid, it is bad news for you.

MR WALKER:   We would submit it is invalid, that if and when the question ever arises and section 41 is relied upon, even with a concession that Kirk has intervened, we would say, no, Kirk invalidates, it does not produce reading down.  These words are intractable and do not permit of filleting.

GUMMOW J:   That is 41(1).

MR WALKER:   That is 41(1), and, in our submission, it is ‑ ‑ ‑

GUMMOW J:   Does Kirk speak to the role of the Supreme Court in supervising both the Magistrates Court and the administrative exercise?

MR WALKER:   No, not so far as we read it.  Section 41(3) is referring to the court in which proceedings would be brought.  The Supreme Court would only ever get, as it were, to look at it on the issues that are before that court.  Section 41(2), certainly the expression “in any proceedings” includes section 14 and, again, the Supreme Court would only ever get to look at that in light of the issues permissible in section 14 proceedings.

In our submission, it is clear that 41(2) is a provision which, without any ameliorative effect from Kirk, or without being wholly invalidated and thus removed as an embarrassment by Kirk, stands as the plainest of indications that section 10 is not susceptible of so‑called collateral challenge in section 14 proceedings.

HEYDON J:   Even apart from that, on the construction of section 14(1), it would not be open, would it, for a court to say, “I am satisfied that the defendant is a member of something, but I am not satisfied that the organisation of which he is a member ought to have been declared, therefore it is not really a declared organisation”?  The issue is membership; the issue is not was this in truth validly a declared organisation?

MR WALKER:   No, quite.  A declared organisation, it is not to be forgotten, is an organisation subject to a declaration by the Attorney‑General.  That is the thing that has been published in the Gazette.  That is the fact which is open for scrutiny of what we called a relatively formal kind by the section 14 magistrate, and not whether it ought to have been declared.

HEYDON J:   I am just trying to get the overall picture.  The position of the Magistrates Court under section 14 remains the same under section 18 when an objection has been heard, and the position of the Supreme Court, when an appeal is heard, is the same as that of the Magistrates Court?

MR WALKER:   Yes.  Hence my answer to Justice Gummow concerning the effect on the Supreme Court of the readings of section 41(2) and (3) that I have offered, yes.  That is the issues are as framed by that which was permissible below.  It does not become a far‑ranging judicial review.  That is why I said earlier that the opening words of exception in section 41(1) may be thought to refer to section 19, but it is to be doubted whether section 19 comes anywhere near judicial review in any full sense.

HEYDON J:   Section 19 is not really judicial review; it is an appeal on a question of law, and with leave on a question of fact.  That is not judicial review.

MR WALKER: Quite. It is only in the most relaxed and inappropriate use of the expression “judicial review” that it could be so seen. Your Honours, may I just say one thing further in supplement of what Justice Heydon has asked me about? We have supplied copies of sections 37, 37A of the Evidence Act 1929. I do not need to dwell on them, they are those which have been assumed in the previous argument of this case. Of course it is simply matter of tendering of a piece of paper, indeed, a piece of paper purporting to be the Gazette.

It is not conclusive evidence, but it will be evidence, and furthermore under section 37, it is evidence of the administrative Acts published or notified and it is for those reasons, in our submission, that unless one of those happy accidents that mostly only occur only in inaccurate anecdotes at the bar would occur, the Gazette notice will be tendered, and that is it. If somebody forgets to tender the Gazette notice you might have a good point, but you may be subject to a reopening application. Your Honours, that then brings us to the provisions in section 14 ‑ ‑ ‑

GUMMOW J:   Mr Walker, I still do not understand your submission on section 41, I am afraid.

MR WALKER:   Section 41(2) prevents the section 14 court from canvassing in any way the validity of the section 10 declaration, because to read it in the way ‑ ‑ ‑

GUMMOW J:   That is the Magistrates Court?

MR WALKER:   The section 14 court, the Magistrates Court, because to read it in any other way by reference to the omission of the word “purported” is to read it as a meaningless provision with no effect preventing merely the challenge to the validity of a valid declaration.

HEYDON J:   It would be entirely circular.

MR WALKER:   Entirely circular and complete self‑defeating.  It has not preclusive effect at all.

KIEFEL J:   Do you say that that renders the operation of Kirk in relation to the Supreme Court nugatory because the section 14 court never looks at it?  There is nothing for Kirk to operate upon to review that court’s decision.

MR WALKER:   I was precipitative, your Honour.  Yes, is the answer.

FRENCH CJ:   Section 19, you cannot raise a question of law about the validity of the declaration because of 41(2), is that right?

MR WALKER:   It goes by one more stage than that.  You cannot in an objection, which is an objection in the Magistrates Court, raise it, 41(2) and, indeed, 14(1) we submit, but 41(2) as well, and it is the notice of objection and a decision of the court, the Magistrates Court, on a notice of objection which is under section 19(1) the subject of the appeal.  So the appeal is circumscribed to the decision on a notice of objection that could not have been a notice of objection canvassing section 10 declaration, therefore will not be and cannot be a decision which speaks to the validity of the section 10 declaration and thus there will not be an appeal from anything concerning the validity of the section 10 declaration.

FRENCH CJ:   Mr Hudson in his grounds of objection to the control order made against him raised validity by a constitutionality.  You say that would not be open?

MR WALKER:   That is quite right.  I should say of that notice of objection that although the book does not contain it, it is the subject of undetermined challenge to the validity of our notice of objection.

FRENCH CJ:   I understand that, yes.

MR WALKER:   That is because it said to lack the requisite – the statutorily required character of having set things out fully and in detail, the requirement which is made of people who object but is never levied to the Commissioner or the Attorney, we should say.

GUMMOW J:   Mr Walker, is it your submission that the existence of the appeal to the Supreme Court as a right of question of law and with leave on a question of fact under section 19, whatever the constricted nature of that appeal, nevertheless, the presence of section 19 is in answer to any complaint based on Kirk which would otherwise release section 41(1) insofar as the Supreme Court was exercising judicial review of the Magistrates Court decision?

MR WALKER:   Your Honour, that is possible that is an argument we would embrace as an alternative.  We lack conviction ‑ ‑ ‑

GUMMOW J:   Alternative to what?

MR WALKER:   Well, an alternative to accepting that because of Kirk the Supreme Court cannot be prevented by section 41(1) from looking at material for jurisdictional error, but as an alternative ‑ ‑ ‑

FRENCH CJ:   But you are saying that the ‑ ‑ ‑

MR WALKER:   ‑ ‑ ‑ it may be that section 19 sufficiently satisfies ‑ ‑ ‑

GUMMOW J:   Wait a minute.

MR WALKER:   ‑ ‑ ‑ the constitutionally guarded role of judicial review of the Supreme Court.  But, your Honours, I am bound to say, bearing in mind the nature of the section 19 appeal, your Honours probably would not prefer that possibility.  It has to be considered.  Does section 19 preserve enough so that section 41 is unaffected by Kirk?

FRENCH CJ:   Is it your primary submission that the right of appeal under 19 is circumscribed by the limits of the objection process under 17 and 18?

MR WALKER:   Yes, and the argument I have just been putting is not affected by that.  Yes, of course, it is we submit, it is plain what it is.  But it being plain what it is it obviously is a pretty poor creature, compared to the prerogative writs. 

GUMMOW J:   But do you see Kirk as directed to the supervisory role of the Supreme Court, not only of inferior courts, but of administrative bodies?  In Kirk, do not forget, it was an industrial court.

MR WALKER:   Yes.  It does not go ‑ ‑ ‑

GUMMOW J:   Is Kirk addressed to the situation of the administrator?

MR WALKER:   In our submission, the reasoning in Kirk certainly goes so far as to say that the legality of action, not merely of inferior tribunals, but also of officials, is something which must be able to find its way to this Court.

HAYNE J:   It is paragraph 99 of Kirk, I think which would be the subject of attention.

MR WALKER:   Yes the “State executive” is halfway down that paragraph.

HAYNE J:   

To deprive a State Supreme Court of its supervisory jurisdiction enforcing the limits on the exercise of State executive and judicial power ‑ ‑ ‑

MR WALKER:   Yes, so the islands of power immune from supervision and restraint, which is the spectre to be avoided, is very real and in many ways more to be feared, if it is the Executive, rather than the judiciary.  So, yes, I do and I am bound to say that is one of the reasons why it is hard to put and would be hard for your Honours to uphold the alternative submission I nonetheless raise that section 19 is good enough.  It probably is not, but in case that appeals to your Honours then, of course, there it is section 19.

GUMMOW J:   All of that then brings you to the content of jurisdictional error, does it not?

MR WALKER:   It does and perhaps it is convenient if I go there immediately, jumping ahead a bit.  The content of jurisdictional error here, of course, is constantly offered by South Australia as, you have got this procedural fairness back at section 10.  That is really the one they have raised.  The ones that we accept are available are the relatively formal ones that I noted when I drew your Honours’ attention to section 8(2), those prerequisites of an application before a declaration can be made.  It may be that things will fall off the back of a truck legitimately to enable one to know something else jurisdictional about a section 10 declaration once made, but those are fantastic imaginings which can be put to one side as of no practicable worth in assessing the impact of the whole of this scheme in which a court plays just a part.  When I say “just a part”, the court is the one who issues the control order. 

In terms of the “splitting of function”, as Queensland puts it, which is said to be commonplace, it is the way in which the delineation of function is awarded which, in our submission, presents the Kable vice in this case. The court is the one that issues the control order with the draconian consequences that follow from it. It therefore resembles the kind of thing that happens when a court adjudges guilt and punishes. But the standing of the court as independent and impartial from the Executive which has been earned by courts and cemented by our Constitution in relation to orthodox criminal proceedings, is startlingly different, we submit, from what emerges when one sees that the legislatively mandated reason for depriving people of liberty or exposing to peril in the way the control order does, is actually provided by nothing that the court investigates, subject to the few matters that I am about to come to in subsections (5) and (6) of section 14.

The real bulk of the reason why somebody should be the subject of a control order is supplied entirely by the Executive determination in which nothing that passes muster as real procedural fairness contributes, in which nothing which passes as practicable or worthwhile judicial review is available and in which, for the reasons I have already put, the section 14 court is powerless, and Parliament has tried as hard as it can, said the Attorney, to tie the hands of the court against looking at a declaration in a control order application.

HAYNE J:   The proposition that review for jurisdictional error is of no practical utility appears to proceed in part, though not in whole, from a proposition that the criterion specified in 10(1)(a), which the Attorney must apply, is, if you like, a criterion of fact, but what the Attorney is about under 10(1)(a) is a fact-finding exercise. 

MR WALKER:   Well, it is fact-finding ‑ ‑ ‑

HAYNE J:   I have in mind – I think it is the Cobia litigation.  It is another of the 180 CLR cases, BHP v Balfour, I think, whether the wellhead is a designated valve for the purposes of the Petroleum (Submerged Lands) Act.  That, I think, in 180 - it was identified as what the Minister was doing was engaging in something in the nature of a fact‑finding exercise.  That seems to be the premise for what you are saying about 10(1)(a), is it?

MR WALKER:   No, not quite.  Yes, there is fact finding, that is how I started.  Section 10(1)(a), 10(1)(b), particularly 10(1)(a) is about history; things that have happened or not, whether members associate for the purpose of, et cetera.  Lots of facts involved in that.  I suppose one can say whether an organisation represents a risk either is or involves some facts, but certainly paragraph (a) does, but both of them, particularly (b), not so much (a), but particularly (b), involved some levels of evaluation as well.

FRENCH CJ:   Some of that comes in under subsection (4), I suppose.

MR WALKER:   Yes, I am going to come to that.  Another case that comes to mind is the Heritage Council v Mount Isa decision in this Court where statutory provisions ‑ ‑ ‑

GUMMOW J:   That is an AD(JR) case, I think.

MR WALKER:   Yes, but I am talking about the proposition that because of the nature of the decisions to be made the jurisdictional fact was not committed to the Court for its own determination, but was merely to ask whether the council had so decided.  That is the only reason I am referring to it, but I want to emphasise in here we did not have any doubt about whether it is a state of mind which is the jurisdictional fact, because the opening words of section 10(1) is whether the Attorney‑General is satisfied, and we know that this is not satisfied beyond reasonable doubt at all.  That is the jurisdictional fact, is the Attorney‑General satisfied?  So, yes, it is a matter of fact, but in administrative law analytical terms, that is the relevant fact that would ground ‑ ‑ ‑

GUMMOW J:   Mount Isa is in 187 CLR 297, and Balfour in 180 CLR 474.

MR WALKER:   Thank you, your Honour, if it please the Court.  In answer to Justice Hayne, no, these are not facts which a Kirk‑protected Supreme Court could decide for itself, namely whether members of the organisation associate for the purpose.  The fact is whether the Attorney‑General was satisfied of that.  There may be other jurisdictional points raised such as did the Attorney‑General have an application which was an application, for example.

HAYNE J:   But the critical issue on judicial review would be whether the Attorney asked the right question.  The right question is, you cast it in past tense, have members associated, that is, have they in the past done things?  Is not the right question a present‑tense question - do members now associate for the purpose of?

MR WALKER:   Your Honour, my answer perhaps splits hairs.  Yes, the language says present tense but how can anyone be satisfied of anything by information unless the thing has already happened.  Of course the fact may be – and are they likely to continue doing so so that I can say, for example, they are doing it right now.  In that sense, yes, your Honour is correct; it concerns the present.  We know it concerns the future:  see paragraph (b) but both as to the present and the future one must be looking at the past.  It involves findings about the past.  That will not be up for grabs on the basis of the Commissioner’s information let alone on the basis of contradicting information in a Supreme Court prerogative writ case.

What will be in play there under subsection (1) will simply be whether the Attorney‑General is satisfied.  That may involve forms of argument such as did the Attorney‑General address the right question.  In other words, is the outcome that purports to be satisfaction by the Attorney‑General revealed to be something which addressed the wrong question.  That would be one way of showing an absence of the jurisdictional fact of the Attorney‑General’s satisfaction.  But these are, in our submission, most unlikely, bearing in mind that one is not even informed and advanced of grounds and information and one does not get grounds or reasons in the publication of the declaration.

Your Honours, under section 14 can we briefly note in relation to subsection (2), which of course is not the aim of our challenge – but when one looks at the two alternatives in paragraph (a) of subsection (2) – that is (i) and (ii) – you see what might be regarded as the legislator’s equivalents between committing crime, alternative two, and being a member of an organisation which is declared, alternative one.  That in our submission very strongly shows the overall scheme in which the court plays the last ultimate control order role while the Executive has done the work of demonstrating wrongfulness that would justify the control order.

In subsection (3), which has not perhaps attracted much attention in the arguments against us, could we draw to attention this?  Subsection (3) puts paid to any notion that one could complain against the making of a control order as a matter of law by saying that it was issued without notice.  Subsection (3) does not say that an application may be made without notice, leaving it to a court to administer natural justice.  Subsection (3) says it may be issued – that means by a court, a court with federal jurisdiction:

A control order may be issued . . . without notice to any person.

In our submission that must be the destruction of a number of the supposed implications of or common law survivals of procedural fairness urged against us by the tactical concession of South Australia.  This Act is not as bad as it looks, they say.  We submit it is every bit as bad as it looks.  Under subsection (3), though it was not done ex parte it may be done ex parte.  We do not mean commenced ex parte, we mean done.  We do not mean done provisionally subject to inter partes review, we mean done.

For those reasons, in our submission, what one gathers from everything that follows in relation to the evaluation of material, the kind of material that a court looks at in relation to satisfaction, is one where the court knows that there is power to do this without any contradiction or testing.  Now, I do not say an obligation to do it, but a power to do it.  The verification by affidavit of grounds is, of course, not a usual understanding of evidence, as such.  Subsection (6) –

FRENCH CJ:   Just before you go on, it occurs to me a control order might be made on the application of the Commissioner against a resident of another State. 

MR WALKER:   We think that is the intention, yes.

FRENCH CJ:   So would the Magistrates Court then be exercising federal jurisdiction?

MR WALKER:   Yes, it might be, your Honour, I am sorry, can I ‑ ‑ ‑

GUMMOW J:   Section 75(iv).

MR WALKER:   Yes, if you have a resident of another State answering that description, yes.

FRENCH CJ:   Certainly, the Act has that potential application.

MR WALKER:   Except that obviously this is not a statute capable of doing anything in federal jurisdiction.  So I think that my answer has to be understood as ‑ ‑ ‑

FRENCH CJ:   No, but the nature of the issue?

MR WALKER:   No, of course this statute does not involve or create the occasion for the exercise of federal jurisdiction ‑ ‑ ‑

GUMMOW J:   Why not?

MR WALKER:  ‑ ‑ ‑  by its extraterritorial application.  Well, a State Parliament cannot regulate federal jurisdiction, full stop.

GUMMOW J:   But it can create causative action on which section 75(iv) then operates.  It would be wrong to say section 75(iv) only reaches common law actions.

MR WALKER:   No, I am not disagreeing, your Honour.  I am just simply saying that this does not create federal jurisdiction.  It may raise questions involving federal jurisdiction.

FRENCH CJ:   It may give rise to a matter which is amenable to federal jurisdiction.

MR WALKER:   Yes, exactly that is the way we would prefer to put it, yes.  Your Honours, under section 14(6) you have here mandatory matters to which regard must be made by a section 14 court.  It is mandatory in the case that concerns us because it applies to the question of the prohibitions that may be included in a control order under subsection (1).  It does not apply in relation to our case, subsection (1), so far as the obligation to make an order is concerned.  That is simply by proving membership.  But under subsection (6) there is mandatory regard when one comes to consider, for example, what may be specified by way of exception in the control order under subsection (5).

One sees, again, that there are these speculative judgments or evaluations, both as to future conduct of others, but also as to what is appropriate social control, or means of social control, committed to the court in a way that attracts the same opprobrious comments as the court expressed in relation to those matters in Kable.  Thus in paragraph (a) suggesting the “behaviour, or history of behaviour, suggests there is a risk . . . will engage”; paragraph (b), “the extent to which the order might assist in preventing the defendant from engaging”.  Under (d) there is a reference to “any legitimate reason”, that will have to be read in light of the provisions including in section 35, to which we already had regard, and also section 4(2), and then finally one has the catchall under paragraph (e).

In our submission, they are matters in relation to the content of a control order that must be made under subsection 41 upon proof of membership, which again, as a matter of the overall scheme, provide grounds for the well‑grounded fears for the appearance of independence and impartiality that inform the decisions in Kable.  The breadth of the matter I need not dwell on, the Court has already heard argument about that.  The definition of “member” includes, however, one provision that we need to raise in answer to our friend from Queensland. 

The Solicitor from Queensland says, in effect, why is this invidious?  You can avoid all of this by ceasing to be a member of a declared organisation and that would be a good thing and one may, for the purpose of the argument, accept the comment “It may be a good thing”.  But it may not be so easy simply to cease to be a member because the definition includes, very importantly, (b)(iii), in any case:

a person who is treated by the organisation ‑ ‑ ‑

FRENCH CJ:   You may not be allowed to resign, in other words.

MR WALKER:   You may want to get out, but you are in, or, we want you, or, do not think ‑ ‑ ‑

FRENCH CJ:   You bear the mark of the elect forever.

MR WALKER:   Do not think that you can just come and go as you please.  We have an excursion to the countryside for a picnic, and you must come, and one notes the strong statutory language in (b), treated as if he or she belongs to the organisation, language which contemplates, we would submit, expressly that the person may protest, “I am out of here, I want nothing to do with you, but other people”, so it is the treatment “by other people” – membership is not to be seen as something which can be, at least, terminated by your own act sufficiently.  That, in our submission, highlights the draconian or drastic nature of the consequences to which a control order gives rise, and it is to be seen in that context in our argument concerning the bit part, the split‑off function given to the Court. 

Your Honours, I noted in relation to subsection (3) that it was the capacity for the order to be issued ex parte that, we submit, contributes to the invalidation of the provision.  I simply note that in the legislation book, page 32, in the second reading speech that was misunderstood by the Attorney-General who said they will be heard ex parte.

FRENCH CJ:   The Commissioner, in fact, in the application asserted that the application was required to be heard ex parte.

MR WALKER:   I can go on further and say, and to be fair to both the Attorney and the Commissioner, there are aspects of the structuring of the Act, in particular, the notice of objection to which I am about to come, which does fit with the expectation, if not rule, that first it will be ex parte and then there will be an occasion where something called evidence will be considered on both sides.

The order, however, in terms of that possibility, is effective upon service, section 16(4).  That is reading the subsection, as it were, backwards, but it must be what it means; not effective until service must mean effective upon service.  Clearly enough, in relation to the notion that there can be an ex parte order, it means that all the offences that might be committed by the person the subject of a control order become capable of being committed well before that person has been heard on any notice of objection, and that may be before the person has been heard on anything to do with the case at all.  That, in our submission, casts a very different light on this notion that there is, of course, procedural fairness pervading this Act.  It simply cannot be seen by the combination of 14(3) and 16(4) and 22.  You do not have to give any notice before the order is issued, effective upon service in 16(4) and then in 22, an offence for not obeying it.

FRENCH CJ:   You accept, incidentally, I think in your submissions at 46 that “applications will not automatically proceed ex parte”, in other words, there is the facility for the court to direct the application be heard on notice?

MR WALKER:   Yes.  Your Honours, under subparagraph 14(5)(b)(i), it was remarked by some members of the Bench yesterday, there appears some doubts as to the breadth of the language, what it actually means, because the content of an order is said to prohibit from “associating with other persons who are members of declared organisations”.  What might be called the temporality content of that expression is addressed by Justice Bleby in paragraphs 108 and following and, in particular, paragraph 111, but not we think so as to cover answers to the questions that may arise as to when a person need become a member of a declared organisation. 

We think it goes aimed at the question, when need the organisation be declared?  In our submission, it perhaps highlights the intended breadth and draconian effect of this legislation, the mandatory effect under section 14(1), but beyond that obviously it is an expression which one day would fall to be construed, if this valid at all, as to what it may mean.  Your Honours, we then come to section 15 ‑ ‑ ‑

GUMMOW J:   Before you do that, Mr Walker, can we just go back to section 10 for a minute.  This question of jurisdictional error in section 10 seems to me critical.  Section 501 of the Migration Act we are familiar with, empowers the Minister to move and cancel a visa if satisfied that the person is not of good character, you will remember.

MR WALKER:   Yes, your Honour.

GUMMOW J:   In a number of cases that has been considered.  One of them is Jia Legeng 205 CLR 507. At 532 in paragraph 73, there is collected a number of authorities for the proposition that it is the Minister’s satisfaction that makes the section applicable:

Such provisions are construed as requiring the decision‑maker reasonably to be so satisfied –

on the material before the decision‑maker.  Is that not the nature of the jurisdictional error that would have to be disclosed?

MR WALKER:   Yes, it is.  Your Honours, section 15, could I draw to attention ‑ ‑ ‑

GUMMOW J:   How does then that fit with your Kable complaints?

MR WALKER:   Well, your Honour, it certainly means that a judicial review court cannot substitute its own view of whether or not there was wrongdoing in the past by people who contribute to the jurisdictional fact of the Attorney being satisfied of paragraph (a) and paragraph (d).  Mere disagreement with the Attorney‑General ‑ ‑ ‑

FRENCH CJ:   I suppose an example of, sorry to interrupt, jurisdictional error in this context taken from 501 would arise where the Minister misconstrued the scope of association that would or could inform the satisfaction of that happening.  Haneef, I think was the case.

MR WALKER:   Attributed to an organisation misconduct of people who did not fall within the statutory group on the material before the Attorney‑General.  So that you could not be satisfied within the meaning of the statute, you could not be satisfied in relation to those elements of misconduct.  It certainly does not simply commit to the court the question, was there misconduct by people associated with the organisation so as to make out paragraph (a)?  It is whether on the material before the Attorney‑General it was possible to be satisfied, which is a distinctly different question from whether that is the finding the court would have made. 

In particular, the court gives due weight to the fact that the Attorney‑General is not a court and is not proceeding according the weighing of evidence in a court.  The judicial review for the administrative law jurisdictional error does not introduce into the process any of the safeguards that judicial process requires for proof of criminal misconduct beyond reasonable doubt on admissible evidence.

It is for those reasons, in our submission, that our Kable argument is assisted, not detracted from, by the nature of the jurisdictional error that may be explored where a statute requires a decision‑maker to be satisfied of a certain state of affairs on the material before the decision‑maker. 

Your Honours, under section 15(1)(d) of the Act there is a requirement after a control order has been made to include a statement of the grounds on which it has been issued.  In our case you will see that most exiguous statement at appeal book page 66.  It suffices to say that it simply means it is because you are a member of a declared organisation.  We do not say that is invalid, if any of this is valid, but we do say that it rather demonstrates the hollowness of the exercise in terms of what need be observed.  Under section 15(2) and (3) one has further reference back to the criminal intelligence regime governed by section 21.  You see, for example, under subsection (4) that it is possible but not mandatory for redaction to be carried out so as to apprise somebody of information that contains criminal intelligence. 

Under section 21, which provides for the regime of criminal intelligence about which probably enough has already been said by a number of submissions, we simply point out that the outcome of criminal intelligence being properly classified is an outcome that leads to something that Parliament describes in paragraph 21(2)(2) as involving receiving evidence and hearing argument about the information in private in the absence of the parties.  What it may mean to hear argument in the absence of the parties or, worse, in the absence of one of them may be doubted.  We accept that the authorities make it clear, not least because of the common law approach to public interest immunity, that this detraction from what might be called perfect audi alteram partem is not enough, or anywhere near enough, to invalidate a scheme such as the following, but it is a component that adds to the accumulation, with respect.

GUMMOW J:   Mr Walker, you rely on 14(3), do you not?  You were taking us to that.

MR WALKER:   Very much so.

GUMMOW J:   Absence of notice.

MR WALKER:   Very much so, your Honour.  All of this can be done, that is, no objection could be taken in judicial review proceedings on the basis that all of this was done in the absence of the respondent.

GUMMOW J:   I think it is said against you that in answer to the ex parte complaint and unlike the situation in International Finance, there is a right of objection under section 17 which could be agitated.

MR WALKER:   Yes, which I am going to deal with in just a moment.  Yes, that is put against us.  The first thing we say is, of course, that cannot possibly be an answer to the effect upon service of the control order.  The notice of objection cannot prevent that.

GUMMOW J:   But is the presence of section 17 an answer to the immediate operation of section 35 triggered by this ex parte procedure?

MR WALKER:   No.  Section 35 is made, indeed, before service.  Section 35 is operative, we submit, even before service.  There will still be the requirement of the prosecution to prove knowledge ‑ ‑ ‑

HEYDON J:   Section 35(1)(a) is operative from being declared.

MR WALKER:   That is right.

HEYDON J:   Paragraph (b) from being the subject of a control order, you say, when made, not when served?

MR WALKER:   Your Honour, the subject of a control order before it has been served on you is served on you because you are the subject of it.  Now, it does not bind you until you have been served, 16(4), but it will render others with whom you deal immediately liable to commit an offence under section 35, subject of course to the prosecution requirement to prove the requisite knowledge, and it will also, of course ‑ ‑ ‑

GUMMOW J:   That is the answer.

MR WALKER:   ‑ ‑ ‑ render you potentially liable for aiding and abetting them or inducing them to commit that offence.

GUMMOW J:   It will have to be shown that the third party knew or was reckless.

MR WALKER:   Yes, and that is the onus on the Crown.

GUMMOW J:   And with burden on the prosecution.

MR WALKER:   Absolutely.  Nonetheless, there it is immediately possible for that offence to be committed.

GUMMOW J:   But was “a member of a declared organisation”.

MR WALKER:   That is simply because they have notice, and that is where section 41(3) comes in and is intended to come in.  So that is the first thing.  The second thing is that section 22 is capable of being transgressed as soon as there has been service.  The third thing is that, of course, service may and, indeed, in most cases one might think will precede the lodging of the notice of objection, let alone the hearing of it.  So that nothing in section 17 and everything in the scheme of the legislation as a whole shows that the effect of a control order in its full drastic form descends upon a person and other persons upon the making of the order and the service of the order and before notice of objection is lodged, let alone before it has been determined.

It is for those reasons that section 19, which comes in the wake of the notice of objection process, cannot possibly be an answer to the Kable objection we make concerning the condign effect on a person, apparently by court decision, when the real reason for that is supplied by antecedent, unchallengeable, administrative decisions which contained no safeguards of a judicial kind.

Your Honours, under section 16 in relation to service, could I draw to attention there is another quiver full of offences which might be committed before service.  Under section 16(2)(a) there descends a power to require, and a correlative obligation to answer, requirements for information.  Section 36 picks that up in such a way that there can be a choice presented to a person, either produce evidence which will incriminate you of one offence, or commit another offence, and one sees that under section 36(1):

reasonable cause to suspect that a personal detail . . .  is false –

the wrong street number, for example - I know that street does not contain that many houses, for example ‑

may require . . . to produce evidence of the correctness -

If you refuse or fail “without reasonable excuse” – now question will that include privacy and self‑incrimination - that will obviously need to be debated if this case ever arises – will be guilty of an offence.  If you do produce something that corrects, that is, shows something was false, then you have shown you have committed an offence in answer to the original requirement, and if you fail to do that then you have committed an offence -in itself, just another accumulation to the outcomes of seriousness which are given rise to by what appears to be the action of a court, a court however ‑ ‑ ‑

FRENCH CJ:   Just for completeness, the term “personal details”, I think, is defined, is it not ‑ ‑ ‑

MR WALKER:   Yes, “personal details” are defined as you would expect them to be.

HEYDON J:   A better argument, or perhaps a more powerful argument, or a powerful piece of pain is section 16(2)(b).  You are, in effect, under a form of arrest.

MR WALKER:   Yes.  There are other matters of course that one can draw to attention in that regard, and they include 14(7)(b), which is a form of search warrant as well and confiscation, 14(7) generally and (b) in particular.  In relation to section 21, in our submission, the court should draw no comfort from untestable assertions from the Bar table that criminal intelligence is likely to be more important at section 10 than at section 14; it is going to depend upon the case.

The reasonable expectation that material information will reveal, for example, the existence – it could be existence, not just the identity – the existence of confidential informer which is at the heart of the definition of “criminal intelligence”, one would imagine would be, in the nature of things, very usual when setting out to prove that an individual is a member.  The idea that it will only be things that police officers have seen in public, as it were, and is not dangerous for the police officer’s identity to be revealed, the idea that that will be the paradigm for a membership application should be rejected as untestable speculation. 

The possibilities are, as Parliament recognised in section 21, that under section 14 important material, perhaps decisive material, weighed up by the court in being satisfied ex parte will be material from the Commissioner consisting of criminal intelligence which may not then be disclosed.  True it is the court can reverse the Commissioner’s classification of criminal intelligence by asking for itself whether it has been properly classified.  If it has been properly classified, then it is kept from anybody who may wish to rebut what it supports.  Whether it has been properly classified may, of course, include the need – that question – may include the need to examine material where there is no obligation for the Commissioner to produce that material.  It does not necessarily follow that a court must say of every assertion of criminal intelligence, “Well, you say that, Commissioner.  Can I see all your files to do with that informer in order for me to understand?”, et cetera.

In any event, in our submission, it can be seen under section 21 that hearsay, whether there be ex parte hearing or not ex parte hearing, hearsay is permitted.  Even in these judicial proceedings, one of the safeguards in relation to suffering on account of misconduct, that is, suffering consequences on account of misconduct, has been given up.  See paragraph 21(2)(b).  In the case of criminal intelligence, the evidence may be taken:

by way of affidavit of a police officer of or above the rank of superintendent.

A description that is unlikely to be read as requiring, nonetheless, that it not be hearsay.  The fact that it is taken by way of affidavit on hearsay and that it may not be disclosed rather suggests there is not going to be anything in the nature of cross‑examination.

What emerges from this, of course, is that there is no provision whatever, of course, under section 10 but also under section 14, including in an ex parte occasion by which one will know whether the Commissioner, who is the moving party – not the first law officer, the Commissioner – has disclosed everything necessary, for example, to assess (a) the propriety of classifying it as criminal intelligence, and (b) the reliability of the material to prove that somebody is a member, let alone, of course, the reliability of material to prove that an organisation should have been declared.

For those reasons, the supposed judicial review relied upon to rehabilitate this scheme from a Kable argument can be seen, in our submission, as providing none of the safeguards that are the hallmark of the judicial approach to the allocation of penalty or unpleasant consequence on account of past misconduct.

GUMMOW J:   Now, Mr Walker, just looking at section 35 again, 35(2), this is the third party situation who associates, that person must know that the other party was “the subject of a control order”.

MR WALKER:   Yes.

GUMMOW J:   Is a possible reading that phrase “the subject of a control order” means a person upon whom section 16(4) operated to make them the subject?

MR WALKER:   No, subject by it having been made.  The policeman tells you, “You should know we got a control order against Joe Blow yesterday, I have not served him yet, do you know where he is, by the way?” and then surveillance shows that there is subsequent association between the two.  Question, will the prosecution by proving that conversation – which is a perfectly plausible one – succeed in proving recklessness?  One would have thought a very good prospect of doing so.  A policeman has told you it is true, you have made no steps to inquire, you do not care whether it is true or false, you are going to tell him they are on to you; you had better get away. 

So service is not necessary to make somebody the subject of a control order.  The term is not described, but, in our submission, as a matter of natural language in this legislative scheme you are the subject of a control order when it is made.  It is, to use the language of the Act, not binding on you, you being already its subject.  It is not binding on you until service in a stipulated manner.

Now, we then come very importantly to the remarks left over, as it were, after my answers to your Honours’ questions in relation to the objection process.  First, may I point out that the expected lapse of time between service of a control order and the last moment for filing – lodging a notice of objection is 14 days.  A longer period may be allowed, but Parliament sees this as a fortnight’s worth of work.

That rather suggests immediately that it has not been contemplated in this statute and the scheme does not allow for anything in the nature of canvassing so as to be able to provide fully and in detail – see section 17(2) – your objections that the organisation has been wrongly declared by a jurisdictional error on the part of the Attorney‑General or that the section 14 court has proceeded wrongly by reference, for example, to accepting classification of criminal intelligence or not examining whether there was material not disclosed about the reliability of an informer.

You will notice that under section 17(3) the Commissioner has to get a week’s notice before the day appointed for hearing of the notice.  So there is a chance, as it were, for the Commissioner to respond to that which has to be stated fully and in detail.  It may be that the combination of those provisions means that there can be no adjustment or improvisation at the hearing.  Under section 18, you are bound to what you are able to state fully and in detail and, as to which the Commissioner had at least seven days notice for the hearing, indicates yet further detraction from what one might otherwise have understood in relation to what in civil jurisdiction would be called the return of an ex parte injunction.

In relation to the return of an ex parte injunction, that analogy obviously appealed to Chief Justice Doyle in Osenkowski (2006) 97 SASC 456 at 467, to which your attention was drawn yesterday.  I do not need to take you to that, but at paragraph 30 his Honour uses the expression “afresh” to describe that which the moving party undertakes upon the objection process being put in train.  It has to be said that but for that it does not necessarily appear that that is what section 18 stipulates.  If it is what section 18 stipulates, it is still to be observed, of course, that there is already the various effects on the subject of the control order and on others to which I have made reference and that those effects are not capable of being unwound by anything that may emerge from section 18.

GUMMOW J:   I wonder whether the drafting of 18(1) is any more than or is but a reproduction of the idea present in the content given to judicial review by the Supreme Court for jurisdictional error in the light of the authorities including Mount Isa and the other decisions collected in the migration cases.

MR WALKER:   We are talking about the Magistrates Court at a hearing about what the Magistrates Court has done.  It could be the same magistrate, one assumes.  It would be unlikely that that kind of test which asks the question not whether I agree with what I did but do I think I had reasonable grounds for being satisfied on the material then before me.  I think that would be rejected, with respect, your Honours, because it is clear that under subsection (1), the first aspect I wanted to note, is that the consideration must be:

in the light of the evidence presented by both the Commissioner and the objector.

The last phrase “and the objector” means it is evidence that did not exist, certainly at an ex parte stage and probably did not exist even if it was not ex parte because curiously, given the reading that says it need not be ex parte, one could have attended the first hearing and then not liking the outcome, enter a notice of objection and then, as it were, present fresh evidence under section 18(1).

GUMMOW J:   It has the difference, but it is ‑ ‑ ‑

MR WALKER:   It is evidence, at least.

GUMMOW J:   Upon the material now before the Court.

MR WALKER:   Yes.  It is actually called evidence as well.

FRENCH CJ:   As to whether the control order should have been made at all, that if it were a control order under 14(1), the question would be limited in practice to that of membership.

MR WALKER:   Your Honour anticipates the point I wanted to make after the next one.

FRENCH CJ:   Sorry, I just wanted to – but there is a power on the hearing of objection to vary or revoke, so presumably it goes to the content of the control order.

MR WALKER:   For a 14(1) order, it would go to the 14(5) proviso:

except as may be specified in the order.

FRENCH CJ:   Yes.

MR WALKER:   The next point I wanted to make was that you will see the word “existed”.  The issue on an objection is whether in light of the evidence at that hearing, which is following objection, presumably including evidence that the Commissioner puts on in the seven days before the hearing, sufficient grounds existed – past tense – for the making of the control order. 

I simply draw to attention that the statutory provision before the Court in Osenkowski about which Chief Justice Doyle said “This is a hearing afresh”.  That was a present tense “exist”, not the past tense “existed”.  “Existed” certainly suggests that one is looking back to the one and only occasion which might have been ex parte under section 14.  It proposes some difficulties of interpretation because you now have presumably more different – perhaps one might call it “fuller material” – but nonetheless you ask whether there were sufficient grounds which may be distinguished from information or evidence existed for the making of the control order. 

That may not be a difficulty capable of being finally determined.  In our submission, it suffices to say it certainly involves considering the merits of the ground for the making of the control order.  Then I come to the point that the Chief Justice has already noted.  Of course under 14(1), the only question that goes to the merits is whether you are a member of the declared organisation.

Under subsection (2), the confirmation varying or revoking is limited in the case of a 14(1) order, in the way I have said in answer to the Chief Justice.  Section 18(2)(b) again ties the matter back to the power available under section 14 otherwise.  Under 18(3) there is a capacity, which might be compared with the position under subsection 35(8), to which I drew attention earlier – there is a capacity for a person who is a member to supply:

good reason why he or she should be allowed to associate -

I think there is a reference to the tenancy of one of my clients – that is, the good reason being that he would have to change his residence because his landlord, with whom he dwelt, was a member.

Your Honours, that then brings us to section 19 of course.  The point about section 19 has largely been supplied in answers to questions.  As subsection (1) makes it clear, its ambit is defined, confined if you like, to that which is a decision of the court, that is the Magistrates Court, on a notice of objection, itself already confined in the manner I have argued, thus the breadth of the matter in subsection (2) does nothing to supply what we might call full judicial review let along anything in the nature of a full inter partes battle on the merits of the facts.  Again, the power of the court, it appears, may not include, staying anything; see subsection (4).  Under subsection (5) there are powers which would appear to be confined in the same way as section 18 was by what could be done under section 14.

There is then the capacity to seek variational revocation under section 20, a capacity not only on the Commissioner, but on the defendant, but as you will see from subsection (2), that has nothing to do with revisiting the merits of the position which led to the imposition of the order, far from it.  To the contrary, it requires treating them as the starting point and demonstrating substantial change in the relevant circumstances.  Meantime, of course, section 22 has already been operating.

In section 22 itself we should draw to attention what might be curious in subsection (2).  It appears on one possible reading and perhaps this, on orthodox grounds, ought be extended to somebody subject to a criminal allegation to permit someone to say “Well, I did not understand the law meant that”.  That would be very curious and outside the tradition but it does say:

A person does not commit an offence against this section in respect of an act or omission unless the person knew that the act or omission constituted a contravention –

Constituting a contravention sounds like a matter of law –

or was reckless as to that fact. 

Facetiously, one might say well perhaps Parliament was saying you really must consult counsel but, in our submission, putting that aside section 22 is nonetheless something which constitutes a peril as soon as a control order has been served.

We should draw to attention to complete, I think to complete, the nature of the consequences that come in the train of a control order, that is if

offences are alleged, it having been made and served, as you will see in the legislation book at page 25, the Bail Act 1985 was amended so as to have a presumption against bail for those accused of offences in relation to this Act and one sees that by the new paragraph 10A(2)(c) of the Bail Act set out in those passages. 

Your Honours, it is for those reasons that, taken as a whole, the scheme is not, at the outset, that is section 10, alleviated by the procedural fairness upon which South Australia relies and at the end of the outcome is by no means alleviated by the availability of either Magistrates Court or Supreme Court sufficient review so as to ensure that ultimately, though by stages, these consequences imposed by order of the court, may be seen to have been imposed with all the necessary appearance of independence and impartiality from the Executive. 

Nothing in section 19, nothing permitted by the combination of Kirk and section 41 means that there can be avoidance, in our submission, of the immediate effects in the sense that I have explained them upon first, section 10 and, second, section 14 coming into operation.  May it please the Court.

FRENCH CJ:   Thank you, Mr Walker.  Yes, Mr Solicitor.

MR HINTON:   If the Court pleases.  With respect to section 41(2), South Australia put its submissions on two bases.  My learned friend has addressed the first, which was the absence of the word “purported”.  One other word is of significance in subsection (2), or perhaps two words and a numeral, and that is “under Part 2”.  Those words “under Part 2” make clear that the protection is confined to certain declarations, only those under Part 2.  The effect of that is that if a declaration is not made under Part 2 because it is made in excess of jurisdiction, it is not protected by section 41(2).

That reasoning, with respect to the same words, “under” in particular, was referred to in Plaintiff S157 at paragraph 76, as I recall, as a matter of construction as indicating that in that case the privative clause did not protect the relevant decision, and here, in my submission, those words do the same.  Consequently, you can then challenge for excessive jurisdiction. 

That leads us to the question of content.  Content, with respect to a lack of procedural fairness, your Honour Justice Hayne is correct, is to the premise upon which South Australia has based its submission in that regard.  It is the effect of section 14 traced back through the declaration that gives rise to the obligation upon the Attorney to notify those against whom those adverse consequences, as far as he is reasonably able to determine, may bite.  Your Honour Justice Gummow pointed out that that links the Attorney necessarily to the information provided by the Commissioner, and that is so.

But the obligation is enlivened by the application and the material relied upon, therefore, a breach of procedural fairness, if there is such a breach, would give rise to a collateral challenge or a direct challenge minded of Kirk.  The other content would be bad faith or the asking of the wrong question in terms of the – as the question was formulated in Jia Legeng, as your Honour Justice Gummow took us to at paragraph 73.

HAYNE J:   Just as to asking the wrong question under section 10, is the question presented by 10(1)(a) whether members associate for the purpose identified, that is the first level of identification of the question presented, is it not?

MR HINTON:   Yes, your Honour.

HAYNE J:   Upon the answer being given to that question that a reason for some or all members of the group associating one with the other, is the purpose of, et cetera, it follows, does it not, by application of section 14 that the courts must impose consequences upon those who identify with the group or those whom the group treats as identified with them?  Do you accept that?

MR HINTON:   By virtue of the definition of membership, yes, on an application by the Commissioner.

HAYNE J:   I understand that.  The consequences that are to be imposed by the courts upon the persons whom I have identified are the consequences of restriction in their associations as further amplified in section 14, notably 14(5)(a) and (b), coupled with exposure to the consequences of commission of crime identified in section 35.  You go this far along the path.

MR HINTON:   Yes.

HAYNE J:   This is done although the group or organisation is it not itself outlawed, if you like, or perhaps to put it less colourfully, membership of the organisation, support for the organisation or promotion of the organisation is not itself classed as illegal.  Is that right?

MR HINTON:   Yes.  There is no offence of membership.  Equally, there is no offence of being a reputed thief.  There is only an offence of stealing.  There is no offence – I withdraw that.

HAYNE J:   The question becomes, under Kable, whether the steps which are to be taken by the court under section 14 are of a kind that do or do not invoke principles of the kind discussed in Kable.  Is that the field for debate?

MR HINTON:   It is, yes.  Justice Hayne, whilst I am engaged with your Honour, a major indictable offence is section 5 of the Summary Procedure Act.  The significance of it is it cannot be dealt with summarily and you have the ‑ ‑ ‑

HAYNE J:   You have to go on indictment.

MR HINTON:   Yes.

HAYNE J:   Thank you.

MR HINTON:   The difference between section 13 and section 21, section 13, in terms of section 13(2), there the Attorney‑General is entitled to satisfy himself that it was reasonably open to the Commissioner to be satisfied that the material was criminal intelligence.  That accords with K‑Generation at paragraphs 136, 62 and 63 and is derived in itself from the definition of “criminal intelligence”.  When we come to section 21, however, of course the court may decide for itself whether or not it is criminal intelligence.

FRENCH CJ:   Mr Solicitor, I do not wish to constrain you in any way, can I get an indication of how long you are going to be?

MR HINTON:   If your Honour pleases, I should be no longer than five minutes.

FRENCH CJ:   Yes, all right.

MR HINTON:   My learned friend made much of section 16(4) and the fact that the order comes into effect or is not binding until it is served, however, it can have an operation under section 35 immediately.  One reason, of course, not to proceed ex parte is the consequences of the order despite it not being served immediately.

GUMMOW J:   So you say 35 can operate in advance of service?

MR HINTON:   I am grateful your Honour raised that.  Your Honour, in particular, took my learned friend to the words “subject of a control order” in section 35(2)(b).

GUMMOW J:   The question is whether that means bound by it?

MR HINTON:   Yes, your Honour.  In my submission, they should be read in terms of “You are not subject if you are not bound” for the simple reason that this is a criminal statute and the breadth of the net should not be given any greater extent than is necessary.  A narrow construction should be given to a criminal statute and so, in my submission, “subject of a control order” is a person who is bound by virtue of it having been served on them.  If the Court pleases, those are my submissions.

FRENCH CJ:   Thank you, Mr Solicitor.  Perhaps you would let us also have a minute of the orders you would now seek, in the light of the discussion we had at the beginning of this morning’s hearing in relation to the final order?

MR HINTON:   A time limit?

FRENCH CJ:   Within seven days.  The Court will reserve its decision.  The Court adjourns to 9.30 am on Friday in Sydney and 9.30 am on Friday in Melbourne.

AT 12.48 PM THE MATTER WAS ADJOURNED