Wainohu v The State of New South Wales [2010] HCATrans 319 (2 December 2010)

Last Updated: 2 December 2010

[2010] HCATrans 319

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S164 of 2010

B e t w e e n -

DEREK JAMES WAINOHU

Plaintiff

and

THE STATE OF NEW SOUTH WALES

Defendant

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

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 2 DECEMBER 2010, AT 10.16 AM

Copyright in the High Court of Australia

MR M.A. ROBINSON: If the Court pleases, I appear with my learned friends, MR W. BAFFSKY and MS B.J. TRONSON. (instructed by Hardinlaw Solicitors)

MR M.G. SEXTON, SC, Solicitor-General for the State of New South Wales: If the Court pleases, I appear with my learned friends, MR L.A. BABB, SC and MR J.G. RENWICK, for the defendant and on behalf of the Attorney-General for New South Wales who intervenes in the proceedings. (instructed by Crown Solicitor (NSW))

MR S.J. GAGELER,SC, Solicitor-General of the Commonwealth of Australia: If the Court pleases, I appear with MS C.C. SPRUCE for the Attorney-General of the Commonwealth intervening in the interests of the defendant. (instructed by the Australian Government Solicitor)

MR R.J. MEADOWS, QC, Solicitor-General for the State of Western Australia: May it please the Court, I appear with my learned friends, MR R.M. MITCHELL, SC and MR C.S. BYDDER, on behalf of the Attorney-General for Western Australia intervening in support of the defendant. (instructed by State Solicitor (WA))

MR W. SOFRONOFF, QC, Solicitor-General of the State of Queensland: May it please the Court, I appear with my learned friends, MR G.P. SAMMON and MR A.D. SCOTT, intervening on behalf of the Attorney-General for the State of Queensland in support of the defendant. (instructed by Crown Law (Qld))

MR M.G.HINTON, QC, Solicitor-General for the State of South Australia: If the Court pleases, I appear with my learned friend, MS L.K. BYERS, on behalf of the Attorney-General for South Australia intervening in support of the defendant. (instructed by Crown Solicitor’s Office (SA))

MR P.J. HANKS, QC: Your Honours, I appear with MS K.E. FOLEY instructed to appear for the Attorney-General for the State of Victoria who intervenes in support of the defendant. (instructed by Victorian Government Solicitor)

MS S.L. BROWNHILL: If the Court please, I appear for the Attorney-General for the Northern Territory intervening in support of the defendant. (instructed by Solicitor for the Northern Territory)

FRENCH CJ: Yes, Mr Robinson.

MR ROBINSON: As your Honours are aware, the issues in these proceedings – the primary issue is whether the Crimes (Criminal Organisations Control) Act 2009 (NSW) or any provision or part of it is invalid on the grounds that we say it undermines the institutional integrity of the Supreme Court of New South Wales or that it infringes the implied constitutional rights to freedom of political communication or freedom of political association, or both, or that it is otherwise outside the legislative powers of New South Wales. The constitutional provisions that are brought into play in determination of these issues are those provisions in Chapter III, primarily sections 73 and 77, and in relation to the inferred grounds of freedom of communication and association, sections 7, 24, 68 and 128.

In terms of background briefly, the Court – 64 – if I said 68, I am sorry – and 128 – in terms of the background to the proceedings the Court has a special case book. They are our agreed facts, but in essence there are proceedings on foot now in New South Wales. On 6 July this year the Acting Commissioner of Police filed a fairly large document, part of which is in the special case book, applying to an eligible judge for an application for a declaration in relation to my client. The application itself is in the special case book at page 28, and I do not wish to take you to it just yet, and it is really the opening words of what was actually filed before the eligible judge who turned out to be his Honour Justice McClellan, Chief Justice at Common Law in Sydney.

He sat in the Banco Court on the first return of this application and it turns out that it is 35 volumes of material plus 16 DVDs of evidence that were placed before the court. A fair bit of it is criminal intelligence, I will come to that; nobody can see it except the judge and a select few others. There have been already two secret hearings at which the motorcycle club, of which I represent, was not invited, and his Honour has stood over the proceedings to 14 December and they will take a while to conclude.

Before the first return, in fact the day before the first return, of that declaration application we filed these proceedings in the High Court, and as your Honours are aware, at page 65 of the special case book the matter was referred to the Full Court by way of a special case, and the special case together with the agreed facts is at page 17 of the special case book.

GUMMOW J: Paragraph 11 of the case on page 19 does not say where the hearing was held.

MR ROBINSON: I am sorry, your Honour, it was held in the Banco Court of the Supreme Court of New South Wales. I do not think that is in contention.

GUMMOW J: Was the court closed or not closed?

MR ROBINSON: It was open, your Honour. There were – I did not count them, your Honour - 30 or so motorcycle club members on one side of the room and 30 police on the other side of the courtroom. It was certainly open. The media made application for access to material. Both parties said no and his Honour said no, not now. They will renew that application later on.

I need to take your Honours briefly to the provisions themselves. Your Honours have the New South Wales Act. It is in the bundle of legislation that we have provided. It commences at page 10. If I could take your Honours briefly to the things that are appropriate to note. The long title, we say, is significant. It is particularly significant because there is no objects clause or provision in the Act so that one can only discern Parliament’s intent, can primarily discern its intent from the long title itself which says that is:

An Act to provide for the making of declarations and orders for the purpose of disrupting and restricting the activities of criminal organisations and their members; to make related amendments to various Acts; and for other purposes.

Those things, in my submission, run together. For example, the making of a declaration is not a bare piece of paper with nothing to do and nowhere to go. It is for the purpose of ultimately disrupting and restricting the activities of criminal organisations according to the Act. The definitions at section 3(1) to take note of; “associate with”, which is extraordinarily wide. One can send an email and one is associating with another person. One can send an SMS text message and be associating for the purposes of this Act. The next significant definition is “criminal intelligence” and your Honours might wish to note “section 28” next to that because that is where criminal intelligence is discussed more fully in the Act.

The definition of “member” in 3(1) is significant because a member of an organisation not only includes the corporate officers in paragraph (a) there, but in (b) it can be the same sorts of persons as your Honours are aware of in Totani’s Case, because these remaining words are identical to that which was in Totani’s Case, namely, an unascertainable class, almost, of persons can be characterised as being members of a subject organisation under this Act. The “organisation” itself is defined there and “protected submissions” your Honours should note and perhaps mark next to that “see section 29” where protected submissions are provided for.

The next section to note is section 4 which says this Act applies outside New South Wales anywhere in the known universe where the legislative capacity of Parliament extends. In my submission, that is the same troublesome provision that you discussed in Totani’s Case. The definition of “eligible Judge” is dealt with in Part 2. Your Honours are aware the Act is divided into two primary functions or activities. The first piece of work to do is to get a declaration. That is undertaken by an eligible judge who is or must be a Supreme Court judge. Once that is done - and that is all dealt with in “Part 2 Declared organisations” of the Act.

The next piece of work to do in order to disrupt these alleged criminal organisations is to get an interim control order and a control order. Those two concepts are the same that your Honours dealt with in Totani except split into two and the provision that your Honours concentrated on in that case was section 14(1) of the South Australian legislation is not in this case at all. It was completely removed when the South Australian Act which was plainly used as a model was redrafted. That plainly offensive provision was removed and in our case, overall, we say what was left is still offensive for different reasons.

The eligible judge provision at section 5 provides that a judge can consent to being the subject of being appointed an eligible judge. The Attorney, under subsection (3), may declare the judges to be eligible Judges. So he or she has a discretion as to whether or not to accept that undertaking that I am prepared to be an eligible judge for the purposes of this Act.

FRENCH CJ: Is there any significance attaching to the use of the plural in subsection (3)?

MR ROBINSON: No, your Honour, not in my submission. They would come up one at a time and he or she – it is he in New South Wales, of course – would be able to say yes or no to each one. In my submission, he plainly has a discretion there. There is no basis to construe it to be facilitative or binding on him to simply approve them without consideration. Then once he accepts them, they become eligible judges, they are given protection and immunity as a judge of the Supreme Court and they then separate from the State in terms of who does what, who hears what matter.

If a matter is referred to the court, that is not within the control of the Attorney-General or anyone else in the Crown. So there is some degree of removal from the Crown. We say in our submissions, as your Honours have seen in our written submissions, that overall that is not a complete departure from the Crown, but even if it is, this is not the sort of work that a Supreme Court judge ought to be undertaking in the Banco Court or anywhere else. I will make my submission on that later.

Could your Honours note section 6 only as a formality, there is no issue here, but the Commissioner of Police makes an application for a declaration. The Commissioner puts in lots of things, grounds and information, an affidavit and so on and, as your Honours have heard, many, many boxes and DVDs in the particular case. Section 7, a gazette notice is published and that is what happened here. Section 8 is significant:

A member of the organisation specified in an application under this Part may be present and make submissions –

Stopping there, your Honours, that is the extent of it. They are allowed to be there at any public hearing, and they are allowed to make submissions, and that is the extent of their rights. The other provisions of it deal with criminal intelligence. For example, subsection (3), the Commissioner may object to criminal intelligence, section 28 material, being disclosed and that has to be dealt with in accordance with section 28. The eligible judge is obliged by 28 to deal with it in a particular fashion. I will come to that in a moment.

Anyone who wants to make a submission in private to the eligible judge under subsection (4) may do so. That includes members, presumably aggrieved members of the organisation who want to tell all, as it were, to the eligible judge or other persons who have had unhappy or unfortunate contact with the organisation and wishes to tell it but says “I am too scared to tell it in public” and the eligible judge then goes in to private session with the person, with the Commissioner of Police and the Attorney-General is also invited, specifically, to that private session. I will take your Honours to that at section 29.

FRENCH CJ: What does the concept of “making submissions” extend to? Does it include the provision of evidentiary material going to the criteria which the eligible judge has to take into account?

MR ROBINSON: It does not say so, your Honour. In my submission, it says submissions and if the eligible judge is willing to receive material he or she will. But, in my submission, the Act does not specifically provide for that. So if the eligible judge says “I do not wish to receive evidence” it does not have to be received. It just gives that flexibility. Your Honours will appreciate, once your Honours have read the entire Act, that the Act is skewed to particular result and in this case that is just one of many small points that lead to the steering of an eligible judge, and later the steering of a Supreme Court judge to making a certain outcome, partly by making it easier, your Honour. That is the intent, in my respectful submission, of that provision.

KIEFEL J: Would that provision have to be read with provisions relating to the application or otherwise of the rules of evidence?

MR ROBINSON: Well, your Honour, the rules of evidence are expressly held not to apply here.

KIEFEL J: Would that not then allow a submission to put forward facts other than by on oath?

MR ROBINSON: One can put forward - yes, of course, your Honour, but the Commissioner might object to it. If facts were submitted they may not be a submission. They may be the giving of evidence, possibly from the Bar table. So, in my submission, if Parliament, who knows the “E” word very well, evidence word, or if Parliament intended evidence to be adduced by the subject organisation, it plainly could have said so.

KIEFEL J: But in the absence of saying so, submission might mean whatever the judge thinks it means.

MR ROBINSON: That is possible, your Honour.

CRENNAN J: Would the eligible judge be amenable to judicial review for failing to act in accordance with standards of procedural fairness?

MR ROBINSON: Yes, your Honour. The Act does not provide for that. The Act provides that he or she can commit error within jurisdiction, as it were. There is a privative clause that is very wide - almost industrial strength privative clause. It would not get over Kirk v Industrial Relations Court. That particular one that your Honour just mentioned would be the clearest jurisdictional error. But, your Honour, if the evidence aspect of it is construed to be “I do not need to receive evidence from you, I just need to hear what you have to say”, which, in my submission, is well open to an eligible judge to do so, that may be all that he or she is required to do under the Act.

The next provision that is significant is section 9, and indeed in many ways section 9(1) is the key provision to the entire Act. It is that to which I certainly will keep coming back to in my address this morning. I should have said, your Honours, at the outset that the parties have had some brief discussions and I will trouble you for this morning and the Attorneys-General representatives will trouble you this afternoon. That is about the only division that we have come up with, unless you ask me to sit down earlier. Subsection (1)(a) is the reason a declaration is made – (a) and (b). The eligible judge must be satisfied in relation to a particular organisation that:

members of the organisation associate for the purpose of organising, planning, facilitating, supporting or engaging –

The “or” is significant there, because just pick any one of them and you are on your way to a declaration –

in serious criminal activity -

I am sorry, your Honours, I did not take your Honours to that definition, but it is defined on page 11 of section 3(1). It is defined to mean other serious things. Paragraph (b):

the organisation represents a risk to public safety and order in –

New South Wales. Once those two key decisions – key factual determinations – are made by the eligible judge, based on what he or she has before them, then they issue this piece of paper. This piece of paper – I say it is a key provision because your Honours recall you go on to get an interim control order later on and then ultimately a control order. The factual bases for getting that are a number of things, but one of them is this declaration. It is not just a piece of paper where one has to check a box and move on to grant an individual interim or control order. The paper that is submitted to the judge – it is a judge later on – is proof, it is evidence, it is almost a conclusive or binding certificate that is otherwise not amenable to judicial review except for jurisdictional error that says these two things – 9(1)(a) and (b) – have been found in relation to this organisation. Now, you deal with this particular man or woman. That is what - - -

CRENNAN J: The eligible judge has formed an opinion about those two matters.

MR ROBINSON: That is correct, but he or she has made a finding of fact because they are the core provisions by which the finding is made. That document, in my submission, is not just a certificate that an organisation has been declared but a certificate that says they have been declared because their members associate for these reasons and they are a risk for the public. In other words, if one comes to a judge later on, the judge does not have to – and, in my submission, cannot – look behind that certificate. He or she will look at that certificate and see that this organisation is relevantly bad – and I am dealing with this member or these 20 members and I will make my decision based on the certificate and what I hear at the hearing – in other words, half the work is done.

BELL J: The judge in determining the application under section 19(1)(b) is required to be satisfied that sufficient grounds exist for the making of the control order so that a declaration unaccompanied by reasons may not be considered as having particular weight. It would depend, I suppose, on the view of the judge, but on the face of it 19(1) is by no means directing an outcome.

MR ROBINSON: I accept that, your Honour. We have to go through the interim control order procedure first, your Honour.

BELL J: I appreciate that, but does that not direct attention to the 19(1) question?

MR ROBINSON: Yes, your Honour. At that stage, at that early stage, 19(1) has no relevant content. At that early stage – I will come to this – 19(1) only deals with the application by the Commissioner because the person the subject of the proposed control order has not put on anything yet. So 19(1) only means, as defined, the Commissioner’s documents. In other words, it is of no content for the interim control order stage. Once you get to the control order stage, what your Honour has said is quite correct, but the certificate, whether it has reasons or not, whether one likes it or not, even if it has reasons which a Supreme Court judge does not agree with, it still is a formal finding which, in my submission, binds that the organisation, to use a short word, is bad.

In that way it makes it easier. As I indicated earlier, it directs not formally a judge towards making a finding against a member of what is declared to be a bad organisation, so to speak. In terms of section 9, (1) is the key aspect of it. Under subsection (2) they have to have regard to a whole host of things. We have made submissions about these factors in the written submissions but the one to note, your Honours - - -

FRENCH CJ: You say have to have regard to?

MR ROBINSON: He may have regard to it, I am sorry, your Honour. He or she may have regard to it, but it certainly a prudent eligible judge would look at all of these because Parliament has put them there. They would not be ignored, but your Honour is correct, they are not required to by compulsion. One of them, for example, is in (c):

information suggesting that current or former members of the organisation have been, or are, involved in –

bad activity, and (d):

any information suggesting that members of an interstate or overseas chapter or branch of the organisation associate for the purpose of –

doing bad things. What an overseas chapter has to do with the price of fish of a New South Wales or Sydney organisation, in my submission, is very much an appropriate question to ask. What an interstate chapter does is of no relevance.

FRENCH CJ: Do these factors feed into the necessary conditions in (1)(a) and (b) or are they factors to which the judge may have regard after being satisfied of those necessary conditions and in consideration of the discretion to make a declaration?

MR ROBINSON: No, your Honour, that is the suggested evidence by Parliament or material by reference to which he or she then makes the declaration under subsection (1). The reason I am taking you through it in this way is to point out that on two occasions, three occasions:

(a) any information suggesting that a link –

is the near enough is good enough. This is not evidence. This is information suggesting something, hinting something. This is not even a situation where as your Honours are aware the rules of evidence do not apply in this case but one still needs to have, as his Honour Justice Deane says in Pochi’s Case, reasonably probative evidence before you can make a finding of fact.

FRENCH CJ: That is embedded in the notion that the judge has to be satisfied, is it not?

MR ROBINSON: It may well be, your Honour, but this legislation is saying, near enough is good enough. This legislation is saying something suggesting a link is good enough. That has to be done on the balance of probability. So something suggesting a link, not even proved, but suggesting done on a balance of probabilities is – it is far from satisfactory. It is not what a judge should be doing, with respect, certainly not at a very large decision-making process that this would be.

Significantly, subsections (3) and (4) are important. Subsection (3) is important because the eligible judge can make a declaration whether or not any of the persons refer to it, that is, the members or former members or overseas members are present or make submissions. So that can be done ex parte. Subsection (4) is significant because the eligible judge can make the declaration that their organisation does bad things, whether or not all of the members of that organisation associate for that purpose. The eligible judge has to be satisfied that those members constitute a significant group within the organisation, either in terms of numbers or in terms of capacity to influence the organisation and whether or not the members associate for the bad purpose or for a different purpose.

FRENCH CJ: That seems to reflect section 10(4) of the South Australian legislation, does it not?

MR ROBINSON: That is correct. In that regard, that is less significant for these provisions but it is more significant for later on when your Honours are being asked to consider section 14 and section 19, the interim and control orders because it may well be, ultimately, that a member who has not committed crime, not intending to commit crime, will be up before a Supreme Court judge and he or she will be in real trouble if a control order is made against them. The court is involved in a penal process of a kind which it has never encountered before, except eight weeks ago when your Honours looked at South Australia v Totani.

Part 3 deals with the control of members of declared organisations. They are never called a bad organisation, they are never called a criminal organisation in the Act – they are just called declared organisations. I know that is not what the long title of the Act says. The long title of the Act calls them criminal organisations. Either way, they are allegedly bad by this point. Section 14 deals with interim control orders.

KIEFEL J: Do you rely on section 13 at all – before you move to Part 3?

MR ROBINSON: Yes, indeed we do, your Honour. We certainly do not challenge its validity, but we do say that it is a fairly large part of the argument as to why we say a Supreme Court judge ought not be doing this, whether as persona designata or whether in his or her spare time or whether or not appointed as a judge of the court. It is just not the sort of thing that ought to be associated with any Supreme Court of New South Wales in this country.

For both of those reasons – one is the rules of evidence not applying in this particular case where the evidence before you is tailored and is as low as suggesting something, and the second is on the grounds of no reasons to be provided. That is probably the smallest point that I will make this morning, your Honour, but it is still a factor. No single submission is going to cut the muster in this case from the plaintiff’s side. I would love to be able to say to your Honours, “Look at section 14(1) and we can go home” but, your Honours, this is much more complex. The Act has been looked at, it has been fixed to some extent, but it nowhere near comes the standard of work that a court ought to be engaged in.

CRENNAN J: Under 13(2), an eligible judge could provide reasons.

MR ROBINSON: Yes, your Honour. From memory, the Attorney-General for South Australia gave many, many reasons in the Totani Case.

GUMMOW J: This is rather a fortiori, is it not, because an idea behind using an eligible judge is that that carries with it ordinarily the idea that judges generally provide reasons?

MR ROBINSON: Yes, your Honour.

GUMMOW J: So the question becomes when, under section 13(2), would the eligible judge properly decide not to provide any grounds for reasons?

MR ROBINSON: Your Honour, he or she does not ever have to ask that question.

GUMMOW J: I am asking you. It is section 13(2) that permits the judge to give reasons. You had accepted that, I thought.

MR ROBINSON: Yes, your Honour, I did.

GUMMOW J: The question then is: what is it that would lead the judge to decide not to provide grounds?

MR ROBINSON: He or she might think it is self-evident, your Honour. The organisation might come before the judge with such a repute or such an obvious case - - -

GUMMOW J: In particular, for the judge to indicate which of one or more of the matters in 9(2) were influential in reaching the conclusion in 9(1).

MR ROBINSON: Indeed, your Honour. Your Honours touched on this in Totani and it may be that you get reasons and it may be that you do not get reasons. In my submission, the fact that you do not have to provide reasons, which is the antithesis of what judges do, judges are required to provide reasons, in my submission, is, as I said, the smallest reason I put to you today, to regard this work of an eligible judge is not something that a Supreme Court justice ought to be engaged in. In saying that, I am making not just a Kable type submission, I am making a submission based on the Wilson Case where her Honour Justice Mathews was engaged to be a reader for the relevant Minister for Aboriginal Affairs.

HAYNE J: But a matter that may set this legislative scheme apart from other legislative schemes is that the eligible judge is, so it seems, established to perform an administrative function.

MR ROBINSON: Yes, your Honour.

HAYNE J: It is a function in which the Act provides for, it might be said to expect, that there will be a contradictor. There is provision made for persons who seek to contradict the application to at least make submissions and there is, as you say, perhaps some question about - - -

MR ROBINSON: How far that goes.

HAYNE J: - - - what that encompasses, let us move past that.

MR ROBINSON: Yes, your Honour.

HAYNE J: But the resolution of any such joined issue can be in terms of 13(2) recorded only as the issue of a declaration declaring the organisation without reason.

MR ROBINSON: Yes, your Honour, I accept that.

HAYNE J: Now, that seems to set this scheme apart from at least some other cases where judges have been used as designated persons because in those other cases there is no contradictor. Application for a warrant is inevitably ex parte and the designated person in that case, the judge often takes on the characteristic of the contradictor of the applicant, testing the applicant. Here the judge is used to resolve what may be a controversy, but to do so without reasons.

MR ROBINSON: Two things, your Honour. Firstly, scale. The scale of what is being done here is enormous compared to a police officer making an appointment to see a judge in chambers and getting his or her signature, sometimes perhaps after an argument about whether or not the police officer has achieved the standard. Sometimes they are sent away, sometimes they are not, and it is over in five minutes. This, under this Act, is a fairly robust large procedure that in my respectful submission overall taints the Supreme Court of New South Wales by - - -

KIEFEL J: Can I ask you a little more about the question of what may be involved in terms of the – say, in this case, the length of time that the judge is likely to be involved and therefore taken out of judicial duties?

MR ROBINSON: And taking up a very nice courtroom, too, your Honour. I do not have any estimates. I am briefed in that case. I have appeared in it three or four times but I would have thought – it has taken my learned friend, Mr Baffsky, several weeks to read the material alone that has been served and we are not through the DVDs yet, your Honour.

KIEFEL J: We could be talking weeks, perhaps even months in relation to some organisations?

MR ROBINSON: Your Honour, we have the organisation who we are representing. We have 46 members of the club which we are representing. The organisation will want to say something as a corporate – even though it is not corporate – as an unincorporated entity but the members themselves will need to come because there are 35 boxes of material. It talks about them individually. It has photos of them at funerals and has pictures of them doing things and they will need to address it. Some of their criminal records are in there. Three to four weeks, your Honour, minimum.

KIEFEL J: Do you rely upon the extent to which that may intrude upon a judge exercising his or her function to any extent?

MR ROBINSON: Yes, we do. That is part of my submission. That is why I am emphasising the five minutes. My submission is that this effectively takes a judge out. I do not know how many organisations but in New South Wales I do know that there are 18 motorcycle clubs, for example, but the Act does not have the “M” word in it. It does not mention motorcycles. It is not about only motorcycle clubs but there are 18 of them and that is a year or two of Supreme Court time that could be taken out.

KIEFEL J: I realise you are taking us through the Act, but at some point you will develop that submission rather than leave it at that, will you not?

MR ROBINSON: Yes, I will, your Honour.

CRENNAN J: I wonder if the scale and the fact of the contest to which Justice Hayne has pointed means that an eligible judge is always going to give reasons and what would be the implication of that in terms of - - -

MR ROBINSON: Two things. Firstly, a prudent eligible judge should always give reasons. I do not suggest otherwise. An eligible judge who is not prudent might not, in which case we are left with a situation where his Honour Justice Hayne was talking about in Totani where you have a decision. Avon Downs says that you can seek judicial review of it for satisfaction but if you do not know what the reasons are it is a right that you cannot take, you are unlikely to succeed on judicial review, whereas, if you have reasons there is a broader scope to find an error of law on the face of the record, as it were, or at least found in the reasons. All that means, your Honour, is that there is a better chance of seeking judicial review of the eligible judge’s decision.

Your Honour, the important thing to note as well though is, while the eligible judge may give reasons of the final certificate, he or she cannot give reasons about protected submissions under section 29 or any reasons about criminal intelligence under section 28. They are complete unknowns.

CRENNAN J: So even if reasons are always given, there will be redacted sections?

MR ROBINSON: Absolutely, your Honour. You will still be dealt with based on information that you never know about.

HAYNE J: But is the giving of reasons a matter of prudence or a matter of obligation?

MR ROBINSON: It is certainly not the latter, your Honour. When the Act says in plain terms you are not required, you, the eligible judge, are not required to provide not just reasons, any grounds or reasons just in case there is a difference between the two. You do not have to say a word, your Honour. You can just stamp the piece of paper and move on. There may be obvious cases or there may be cases where you turn up in court and the organisation does not attend because they do not like turning up in court, I do not know, any reason, and there is no appearance. You have read the Commissioner’s material, you stamp the seal and you are not inclined to do reasons. The Act says you do not have to.

In my submission, that is a wholly different – the other second reason – to come back to your Honour Justice Hayne’s question – the first one was the scale. That is the difference. The other one is, in a listening device or surveillance or search warrant, the judge is performing the role of the contradictor. The judge is testing the evidence. Nowhere in this Act does the eligible judge, or the Supreme Court judge later, need to test anything. The Act is so heavily skewed towards providing a low threshold of material to be put before the court or before the eligible judge that one does not need to do any of that sort of thing.

BELL J: The eligible judge is required to attain a state of satisfaction.

MR ROBINSON: Yes, your Honour, that is correct.

BELL J: In an instance in which the organisation chooses to attend and there is a hearing of the sort that you were indicating was thought likely in some instances, a hearing occupying a number of weeks, with the organisation acting as contradictor - - -

MR ROBINSON: And its members.

BELL J: At the conclusion of that, if the eligible judge chose not to give any grounds or reasons for his or her decision, would that be amenable to attack on judicial review grounds in those circumstances?

MR ROBINSON: Only if there was a denial of natural justice. If one of the members says, “I turned up. I wanted the eligible judge to hear me and they did not”, or if there was an obvious error in the process that was jurisdictional – because your Honours recall there is an ouster clause here, a privative clause, so if it was a jurisdictional error that one could prove without a written statement of reasons, it is justiciable.

FRENCH CJ: The interface between section 13(2) and section 39 in relation to the functions of the ombudsman, at first glance it seems that the obligation to provide, if there be an obligation to provide reasons to a person conducting a review under section 39, is actually to be derived from section 13(2) itself rather than from section 39, is that right?

MR ROBINSON: That may be the case, your Honour. The ombudsman is able to get reasons out of the eligible judge; if not reasons, then information out of the eligible judge for the purposes of reviewing the Act and only for two years.

FRENCH CJ: The ombudsman is reviewing the exercise of powers conferred on police officers, is that right?

MR ROBINSON: Yes, that is correct, your Honour. Your Honour, if the ombudsman wants to know whether the police officer’s brief, all 35 volumes of it, was sufficient for you to undertake or to discharge your functions under the eligible judge provisions of section 9, it would be an appropriate use of the ombudsman’s powers to ask the eligible judge, “Tell me about it. Tell me about what is in those volumes.” Indeed, the ombudsman in this case, I think the special case says so, was present, physically present, when the two secret sessions were held and Chief Justice McClellan went through the criminal intelligence in this case. The ombudsman’s officers were present, they insisted on being present, for the purposes of their functions under section 39. So they are already taking an active role - - -

FRENCH CJ: They can require more than access to the material. They can require the judge to give the reasons for the declaration.

MR ROBINSON: In my submission, yes, in essence, by asking them formally, did the police officers involved in this application do the right thing or under subsection (3), your declaration specifically?

KIEFEL J: Well, subsection (3) actually suggests that the Commissioner requires the reasons.

MR ROBINSON: It does.

KIEFEL J: It should be an interesting scenario.

HAYNE J: Sorry, how does that work?

MR ROBINSON: The Commissioner is required to provide the ombudsman with a report, but that is more along the lines of reporting, for example, under the author – the sting operation certificates, the control operation certificates, that are done in New South Wales.

HAYNE J: The Commissioner is required to ensure the ombudsman is provided with a report on the reasons the order was sought – the declaration was sought.

MR ROBINSON: Yes.

HAYNE J: How does the judge have to give reasons on request to the ombudsman?

MR ROBINSON: Your Honour, go back up to subsection (2). In my submission, it can be that the eligible judge can be asked to provide a report on the correctness or otherwise of the application that was made before the eligible judge. That is all, your Honour. I am not suggesting that a full report on reasons can be required of the ombudsman.

FRENCH CJ: The problem is that section 13(2) does not really seem to quite engage with the function of the ombudsman under section 39 and indeed the term “review” I do not think appears in section 39, it appears in section 40 but the information which can provided under section 39(2) is information about the exercise of powers conferred on police officers. That is what it is all about.

MR ROBINSON: Yes, your Honour. In any event, it does not come to the organisation or its members and they are not going to get the benefit of it. They certainly will not get that information out of the ombudsman.

FRENCH CJ: What is of interest there is the relationship that this establishes between the eligible judge and the ombudsman and the question of whether - it would seem that the intention of section 13(2), so far as it recovers a request from a person conducting a review under section 39 is not, as it were, a supervisory role in relation to the eligible judge but rather somehow feeding into the ombudsman’s report on the exercise of powers by police.

MR ROBINSON: Yes, your Honour, I would accept that. What more concerns us is the special relationship between the eligible judge and the Attorney-General as well as the Commissioner of Police, and I will come back to that.

CRENNAN J: May I just understand and clarify with you how you read “eligible judge” was being covered by section 39(2)?

MR ROBINSON: I see, your Honour – “public authority” is the way I put that, your Honour.

CRENNAN J: Yes, I see.

MR ROBINSON: The eligible judge is called certainly a public authority for the purposes of performing things under the Act.

KIEFEL J: The eligible judge and the court are both called a “determining authority” under section 28(2) which seems to be a distinction.

MR ROBINSON: That is correct. There is, your Honour. I would accept that but I can certainly come back to your Honours after lunch having looked at the Ombudsman Act again but a public authority would be a person exercising executive powers under an Act which section 9 is.

KIEFEL J: Yes, I thought so. Yes, thank you.

MR ROBINSON: In terms of the remainder of the Act, section - - -

GUMMOW J: Just before we leave section 13, which I am afraid we are going to haunt you with, if section 13(2) were not there, given this adversarial nature of what the eligible judge is dealing with, would not the notion of procedural fairness and natural justice carry with it what Justice Deane in Osmond called an implied statutory duty to provide reasons - I am referring to Osmand 159 CLR 656 at 676 – and then he would say is there “a clear intent to the contrary”. With that in mind one would then construe section 13. Is that not the way to go about it?

MR ROBINSON: I would not say no, your Honour. That is all I have to say on that. I would not say no. His Honour, Chief Justice Gibbs, in that case said that if there are no - - -

GUMMOW J: This is an eligible judge, not a mere administrator, as it was in Osmond’s Case.

MR ROBINSON: An eligible judge is certainly – the one thing we do accept is that he or she is acting as an administrator, your Honour, and it is that aspect of the work of an administrator in terms of giving reasons. His Honour Chief Justice Gibbs said if there is no reason stated then the court can infer that there are no good reasons for the making of a decision. I do not wish to say any more on what your Honour has suggested except that it would be open, in my submission.

Section 14 is interim control orders and this is the second most bad provision in the legislation. Section 9 is bad, we say. Section 14 is as bad, or nearly as bad, and I have to say the one that your Honour Justice Bell took me to in section 19 is the hardest one to attack. Section 26 is easy. Section 14 says that “The Court may” – so we are in the Supreme Court now as defined:

on application by the Commissioner, make an interim control order relating to one or more persons specified in the application -

So stopping there, there is a new application, an application concerning not just an allegedly bad organisation or now a found bad organisation but individual people. The court can make this interim control order pending the hearing and final determination of the application. Your Honours notice the word “may”, the third word in section (1). That certainly looks discretionary, but we do not submit it necessarily is. It could be facilitative in any event – I will come back to that:

(2) The grounds of the application must be supported by an affidavit from the –

police or lots of police:

(3) The Court is to make –

“is to”, your Honours. I would ask your Honours to highlight. “Is to” is a command. It is very much like the “must” word that your Honours looked at in section 14(1). I would argue to your Honours, ultimately, that it is relevantly the same as section 14(1) in that it is a command. So “The Court is to”. That is a direction –

an interim control order in relation to a person if it is satisfied –

I will come back to that –

that the application and any further information supplied by the Commissioner satisfy the requirements under section 19(1) –

Subsection (4) – it can be done “in the absence of” – well, that is bad, but “without notice to” – that is very bad – the person to whom the order relates and once the court issues an interim control order it has to specify under subsection (5) a date at which time it will be heard. Your Honours clearly see in section (3) the linchpin of the direction about being satisfied goes to section 19(1). So when one goes to page 17 of the bundle, section 19(1) is final control orders:

The Court may make a control order in relation to a person on whom notice of an interim control order has been served under section 16 if the Court is satisfied that –

there is a lot of satisfaction going on here. I want my submission to cut through all that –

(a) the person:

(i) is a member of a particular declared organisation, or

(ii) is or purports to be a former member . . . but has an on-going involvement . . .

(b) sufficient grounds exist –

Now, stopping there. All that section 14(3) requires of a Supreme Court judge is to go (1)(a) and (b) in section 19, 19(1)(a) and (b). Subsection (1)(a)(i) and (ii) is very close to section 14(1) from the South Australian legislation while it existed. Subparagraph (b), if sufficient grounds exist, one needs to go down to subsection (3) to see what that means. Section 19(3) says:

In considering whether or not there are sufficient grounds . . . the Court is to –

again a command, is to, so one is to is a legislative command, in my submission, without any doubt –

is to take into account –

it is the same as “must” –

(a) the affidavit from the Commissioner, or affidavits from one or more other senior police officers . . .

(b) the affidavit provided by the person with the notice of objection –

that is the subject of the interim control order and, remember, we are talking only about an interim control order here, so he or she is not put on anything necessarily. If they were not there or they did not know about it or it was done ex parte, there would not be anything there –

(c) any other information provided by the Commissioner or person to whom the order relates at the hearing.

If it was an interim ex parte control order sought against a person, these provisions are irrelevant, (b) and (c) are irrelevant. So all that the Act has to operate on is 19(1)(a)(i) and (ii), and (ii) is covered later on in section 19, not of significance. So it is, in effect, in my respectful submission, pretty close to but not far off the way section 14(1) commanded. All you had to find is that the person is a member and that there is a declared organisation and you issue a control order, which in the South Australian legislation was a little bit like an interim control order anyway. All that you had to do was to take that order, serve it, and then the person could come back to court and say, “I did not really want this, I want it revoked”, and it might be revoked. So this is, in my respectful submission, so similar to the South Australian provisions that it is worthy of inclusion in the same sort of reasonings that your Honour has looked at in Totani.

Going back to 14 briefly while I take you through the provisions of the Act, 16 is simply service of the order and when you serve the interim order, you get told that you can object to it. There are no other provisions about the objection process, but there it is there in the service provisions. Section 16A was brought in after the first Act was passed to deal with substitute service. So you could be - - -

GUMMOW J: The Act has been amended at various times.

MR ROBINSON: That is correct.

GUMMOW J: The last amendment seems to be one that commenced on 9 July 2010, is that right, which would be just before the application to the Supreme Court which was later that month, I think? On the 22nd, I think.

MR ROBINSON: On 15 July 2010 was when it was assented. Yes, it was commenced on 19 July. I do not think that was a significant amendment, your Honour. I looked at that and it was - - -

GUMMOW J: We have to make sure we have the Act in the right text if we are going to say bits of it are invalid.

MR ROBINSON: Yes.

GUMMOW J: Is it as it stands after 9 July?

MR ROBINSON: In terms of what your Honour has before - - -

GUMMOW J: The sections you attack appear at page 8 of the book.

MR ROBINSON: They have not changed, your Honour.

GUMMOW J: Section 13 does not seem to be one of them.

MR ROBINSON: Your Honour, the provisions that have changed are at page 26 of the plaintiff’s bundle and we challenge 9, 14, 19 and 26. Section 19 has had minor changes, your Honour, but that was done before the proceedings commenced this year in July.

FRENCH CJ: Is it right that the only consequence of a person affected by an interim control order providing a notice of objection is that it is to be taken into account in a court deciding whether there are sufficient grounds for a control order under section 19?

MR ROBINSON: That is correct, your Honour.

FRENCH CJ: There is no procedure prescribed?

MR ROBINSON: Nothing.

FRENCH CJ: So when we read an explanation of the procedure to be followed in section 16(2)(d)(ii), that does not actually engage with anything in the Act?

MR ROBINSON: Nothing. Section 16A is substitute service and the next relevant section is section 19 dealing with control orders:

The Court may make a control order in relation to a person on whom notice of an interim control order has been served under section 16 if the Court is satisfied –

I have taken your Honour to these things:

The Court may:

(a) make a control order confirming or confirming with variations the interim control order, or

(b) revoke the interim control order.

So bearing in mind, by the time a matter for control order has come before the court, the court has already received into evidence the declared organisation document which says all the bad things, all the things that section 9(1)(a) and (b) holds, namely, its members associate for badness and it is a serious criminal activity and the organisation represents a risk to the public order in the State of New South Wales, that certificate that the court already has, a interim control order, may be not issued by the same justice, it maybe another justice has done that, so the court has already got those documents and section 19, all it has to do essentially is to work out whether there are sufficient grounds. I am sorry, your Honour, the notice of objection is picked up in 19(3)(b), if there is an affidavit of the notice of objection by the subject of the control order.

FRENCH CJ: What I put to you is that is the only way it seems to feed into - - -

MR ROBINSON: Yes, your Honour.

FRENCH CJ: Yes.

MR ROBINSON: There is nothing about what it is and how it gets before a judge and what process is involved but, in any event, if you do a notice of objection, the Supreme Court judge has to take it into account in the final mix at the final hearing on the control order. Section 19(3)(c):

any other information provided by the Commissioner or person to whom the order relates - - -

FRENCH CJ: Incidentally, are there any regulations made under the Act?

MR ROBINSON: No, your Honour. There is no regulations, there is no rules, there is nothing. There is a strange use of the word “information”, your Honour, because while there is affidavits from both sides provided for, 19(3)(c) deals with the word “information”. Subsection (4) is a troubling provision, that:

The control order may be made whether or not the person concerned is present at the hearing of the application.

If the person is not present, it has to be served on him or her and the court can make consequential or ancillary orders it thinks fit. Subsection (7) is a troubling provision because, “Without limiting” what other orders it can make:

an order may be made, if in the opinion of the Court the circumstances of the case require –

and here is the change in onus of proof that ordinarily is before a court –

(a) if the person satisfies the Court that there is a good reason why he or she should be allowed to associate with a particular controlled member - exempting the person from the operation of section 26 -

which I will take your Honours to next –

and subject to the conditions, specified by the Court, or

(b) exempting the person from the operation of section 27 –

that is to allow them to keep their job, your Honours. I will come back to that –

for a period specified by the Court to enable the person to organise his or her affairs.

In other words, you are going to lose your job, your livelihood, your business, but I give you time, as a Supreme Court judge, to allow you to wrap up your affairs, maybe sell your business to somebody. Your Honours, in my submission, that is a very strong indicator to a Supreme Court judge that there is something topsy-turvy and chronically wrong with section 19. I will come back to that.

The next section to note, your Honours, is section 23. Like diamonds, it is forever. A control order is forever. Not even a declaration lasts more than a few years, but a control order is forever. You cannot have a drink with your mate forever. You cannot operate that business forever. You cannot attend your friends’ funerals, if other controlled members are going to be there, forever. It is astonishing. Section 24 is a right of appeal to the Court of Appeal of New South Wales, but only in limited circumstances, questions of law, questions of fact with leave and only on control order decisions.

CRENNAN J: I wonder if that right of appeal implies that the eligible judge must create a record?

MR ROBINSON: This is not the eligible judge. This is only the Supreme Court and it is not even the interim control notice.

CRENNAN J: I just meant in the sense that the declaration was going to be part of the matters taken into consideration.

MR ROBINSON: Yes, your Honour. What was your Honour’s question at the start?

CRENNAN J: I just wondered whether the way in which the right of appeal was described might raise an issue about whether the declaration, one of the matters that can be taken into account in making a control order, would have to be something in relation to which a record was created. I am sorry it is rather a convoluted question.

MR ROBINSON: In my submission, challenging the declaration in such proceedings where one is appealing against a control order, probably if one has submitted to the Supreme Court justice looking at the control order that the original declaration is invalid, is my first submission, then, yes, that would be available, but, in my submission, it does not follow that the record would be appealable or reviewable. Your Honour recalls the eligible judge is given the status and immunity and privileges of a Supreme Court judge which equate to those of a High Court judge and that record will not be able to be, if it is a private record of the eligible judge, will not be able to be obtained by any means.

FRENCH CJ: Mr Robinson, can we assume that in an application for a control order the rules of evidence would apply?

MR ROBINSON: Yes, I think that is the case, your Honour. The bad evidence provision is only in section 9’s part of the Act.

FRENCH CJ: So the reference to, for example, “any other information provided by the Commissioner” would have to be read as a reference to information in the form of admissible evidence?

MR ROBINSON: I would have thought so, your Honour. I mean, you would be in open court proceedings where the Evidence Act itself says that it applies. So that would be correct, your Honour.

HAYNE J: Can I just go back to the questions Justice Crennan was asking you? If the declaration, the making of a declaration is an administrative act that would be open to collateral challenge, would it not, in the proceedings for a control order?

MR ROBINSON: I would have thought so, your Honour, yes.

HAYNE J: That seems to follow from Ousley v The Queen [1997] HCA 49; 192 CLR 69.

MR ROBINSON: I think that sort of collateral attack would be appropriate, your Honour, but you would be hard-pressed to raise it for the first time as an appeal point. One would need to raise it before the Supreme Court judge below.

CRENNAN J: Before the trial judge.

MR ROBINSON: Before the trial judge, that is right. The right of appeal to the Court of Appeal is limited in 24. In 25, I did say forever in terms of control orders but one can come back to the Supreme Court and ask for it to be revoked or varied but after various things have to happen. There has to be something pretty substantial. For example, 25(2):

An application for variation or revocation of a control order may only be made . . . with the leave of the Court and leave is only to be granted if the Court is satisfied there has been a substantial change in the relevant circumstances since the order was made or last varied.

So I suppose if you said “Look, I was a member of a club, 46 members”, they are all controlled members because all these things were done in bulk applications which is how I expect they will be done and “They are all dead, I am the only one left” and that is a substantial change and the court should relieve you of your control order. So it is not necessarily forever, I suppose.

Another might be that you have repudiated the principles and values of a club and you have lived as a monk for 10 years and you want to be able to catch up with old friends, perhaps, I do not know. It is not forever, perhaps. Section 26, we say, offends the constitutional principles of freedom of association and freedom of communication. I have made some detailed submissions that are in writing before you about that. In terms of how it works, section 26(1) says:

A controlled member of a declared organisation who associates with another controlled member –

Do not forget the definition of the word “associates” in section 3(1). It means communicate or associate in a physical sense or as I indicated to you from the definition, sending a text, sending an email is associating with another member. The first time you do it, it is two years in prison, no other penalty. It is just prison, two years in prison. The second time you do it, it is five years in prison and each subsequent offence, each text message, each telephone call, each email, five years in prison.

I will show you the second reading speech in a moment. When the original Bill went through – you do not have the original version before you – there was an amendment to the Bail Act. So the intention was to – if you associate with another member of your organisation, you will be swept off the street, you will not get bail, you will go straight to gaol. That was the intention of it, as the Premier said when he introduced the Bill. I will take you to that next.

Section 26 provides for some defences that do not matter to the extent that there is not really any significant defence. I should point out, section 26(5) looks like there are defences if you prove certain things like associations with family members, lawful occupation and you are enrolled in a course or you are in therapy and you should be let off the hook, but bear in mind, section 26(5) only deals with interim control orders and is irrelevant for control orders. Control orders operate with a – I use the word “sledgehammer” to crack a nut in our submission to your Honours. It is a sledgehammer. There is very little one can do about it, and a telling in subsection (6) that:

For the avoidance of doubt, in proceedings for an offence against this section, 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.

That is significant, your Honours, because if you were associating for political purposes, if you wanted to discuss with friends what you might do and how one might participate in our representative democracy, one cannot do it under this Act, simply cannot do it. You cannot associate for any purpose. In my respectful submission, that cannot be reasonably considered as appropriate and adapted or on any basis able to be held up in conformity with the constitutional protections of political speech, political communication and of association in political matters which we have set out argument in the submissions that that exists.

Section 27 is where you lose your job and your livelihood. I will not read it to your Honours. I do not challenge it specifically, but I do not say your Honours should ignore it because we say it is a hideous provision, absolutely hideous. We say that under it you can lose your job if you work in the second-hand dealer’s industry, in the inquiry agent’s industry, in a casino, in the tow truck industry, in the liquor industry, the racing industry. It is just hideous, your Honours. Section 32 is very significant. Your Honour Chief Justice French asked me a moment ago about the Evidence Act. The balance of probabilities is the test throughout the whole Act in this case. That is something that is quite troublesome and we make submissions about that.

FRENCH CJ: That extends both to the - - -

MR ROBINSON: The eligible judge - - -

FRENCH CJ: - - - eligible judge function and the court function.

MR ROBINSON: That is correct. The Supreme Court judge is dealing with removing someone from his or her friends, possibly forever, and in circumstances where that person may not have ever done anything wrong, may not even have a criminal record, may not be about to do anything wrong, because that is never examined by anyone and does not have to be examined by anyone. That is all I wish to take your Honours to in the provisions.

Your Honours are aware that the plaintiff contends that the entire Act is invalid since the individual provisions that make up its primary purpose, we say, are bad, to such an extent that the entire Act offends the Constitution, Chapter III particularly. It is invalid because it undermines the institutional integrity and independence of the Supreme Court. This undermining is done partly by requiring an eligible judge to undertake the work of an executive on the Supreme Court’s time and in secret sessions with regard to criminal intelligence and protected submissions.

FRENCH CJ: The whole structure collapses, does it not, if no judge gives his or her consent?

MR ROBINSON: That is true, your Honour; I would accept that. But consent could be given for many reasons, certainly not a day out of court reasons. The institutional integrity and independence of the Supreme Court is further undermined by the requirement that the judge, in determining applications for interim control orders and control orders, which can be done in secret session in relation to criminal intelligence, and that material is not available to the person the subject of these control orders. This restricts the civil liberties and freedom of movement of Australians in a fashion not appropriate, we say, to a constitutional court that is part of a system of federal courts. It is, therefore, outside the legislative powers of New South Wales.

Could I take your Honours to Wilson v Minister for Aboriginal and Torres Strait Islander Affairs [1996] HCA 18; 189 CLR 1? Could I take your Honour to the joint judgment at page 16 at about point 2:

The capacity of Ch III judges to perform their judicial duties throughout the terms of their appointment independently of the political branches of government cannot be prejudiced by their appointment to non-judicial office or to perform non-judicial functions. If an appointment to non-judicial office or performance of non-judicial functions prejudices that capacity it is incompatible with the office and function of a Ch III judge. And that is inconsistent with s 72 of the Constitution. Thus constitutional incompatibility limits legislative and executive power; it does not effect a vacation of judicial office.

In the present case, the category of incompatibility that arises for consideration is “the performance of non-judicial functions of such a nature that public confidence in the integrity of the judiciary as an institution or in the capacity of the individual judge to perform his or her judicial functions with integrity is diminished”.

That is the category that comes from Grollo v Palmer that is set out at footnote (59) there, your Honours. Over the page at about point 4 starting with the words:

Is any discretion purportedly possessed by the Ch III judge to be exercised on political grounds – that is, on the grounds that are not confined by factors expressly or impliedly prescribed by law? In considering these questions, it will often be relevant to note whether the function to be performed must be performed judicially, that is, without bias and by a procedure that gives each interested person an opportunity to be heard and to deal with any case presented by those with opposing interests. An obligation to observe the requirements of procedural fairness is not necessarily indicative of compatibility with the holding of judicial office under Ch III, for many persons at various levels in the executive branch of government are obliged to observe those requirements. But, conversely, if a judicial manner of performance is not required, it is unlikely that the performance of the function will be performed free of political influence or without the prospect of exercising a political discretion.

Your Honours recall that this was the reporter case where her Honour Justice Jane Mathews was to be engaged as a reporter for the Minister and the Court said “No, it cannot be done because of the incompatibility doctrine, notwithstanding that we are sure you will do a wonderful job and she is a wonderful judge and she would do well but to undertake an inquiry and to provide a report to a minister makes one look subservient to the minister, engages one in the political processes and this is not what we want” this Court held, “a judge in a Federal Court to do.” In my submission the principles are the same in this case.

Her Honour Justice Gaudron discusses the “incompatibility condition”, as she calls it, at page 21 in this case and she talks about the relevant principles at page 22. She says a good statement of the principle at about point 7:

Equally, Parliament cannot confer a function on a judge in his or her individual capacity if it has the capacity to bring the reputation of the judge or that of the courts into question. That is the third aspect of the notion of constitutional incompatibility elaborated in Grollo.

We rely on that, your Honours. Her Honour goes to talk at page 25 and 26 - - -

FRENCH CJ: When one speaks of a judge carrying out an executive function conferred upon the judge by legislation, what does it mean in a constitutional sense to speak of that judge as being independent of the Executive Government?

MR ROBINSON: If one had no appointment, no other issue - - -

FRENCH CJ: It is just that there is a distinction made there between a judge carrying out a function independent of the Executive Government, for example, a royal commission or membership of the Administrative Appeals Tribunal. I am just wondering what the criterion of distinction is that is constitutionally relevant when one is looking at incompatibility.

MR ROBINSON: It is the affectation on the court itself and the public perception of the court. It is, to some extent, a marriage of Kable and Kirk and the principles that your Honours have recently divined. In terms of anything that affects by reputation, by perception the integrity of the federal courts, as it were, must be protected. So, your Honour, someone going off to do a royal commission in a State might not affect it. It depends on what the royal commission is as well. It might be a royal commission into the workings of government. It cannot be answered in that way. It must be looked at individually if there is that affectation on the court.

We say the affectation on the Court here is for many reasons, which I will list briefly in a moment and which, to some extent, we have listed in our submissions. It is not one thing, it is a whole host of things and when one looks at them and puts them together, one can see that – I have said it several times today – that this is not the sort of thing that a Supreme Court judge who is a part of a court that exercises federal jurisdiction should be doing. I do not think I can do better than that, your Honour.

GUMMOW J: Can I ask you this? It may be the operation of section 5 is that the eligible judge assumes or is appointed to a statutory office. That is what it is doing. That is what the section is doing. It is creating a new office.

MR ROBINSON: Yes, your Honour.

GUMMOW J: Then the question arises as to whether that office is an office within the scope of the public service.

MR ROBINSON: That may well be the case, your Honour.

GUMMOW J: In particular, the Public Sector Employment and Management Act 2002 (NSW) which has replaced the old public service statute, there seem to be some special treatment in there for holders of judicial office, but I am not sure by definition this is not a judicial officer, as it were. These questions require attention, I think, at a specific level. Just what is this office that has been created under section 5? That is what I am asking, I suppose. We may get some help from the State.

MR ROBINSON: Your Honour, what requires attention is the State position because this Court has not really gone that far into this kind of area before when dealing with the affectation of extracurricular, extrajudicial activities of Supreme Court judges because these appointments, while they are - - -

GUMMOW J: When we say that the decisions of this officer are liable to judicial review, we are saying judicial review of the discharge of their particular statutory office, I suppose.

MR ROBINSON: Yes, your Honour; that would be right. In Wilson’s Case, could I ask your Honours to note page 25 at point 5 right through to the bottom of page 26, please. Her Honour Justice Gaudron sets out the political aspects of it rather well and the subservience to branches of government.

HEYDON J: Your appeal is to a doctrine distinct from Kable in this respect? Justice Gaudron concentrates on diminution in public confidence.

MR ROBINSON: Yes, your Honour.

HEYDON J: Kable does not turn on that characteristic.

MR ROBINSON: Kirk certainly does, your Honour. I think, in my submission, that Kirk has that aspect of it – perhaps not so overtly spelt out but, in my submission, that is one of the factors that would go to this issue.

HAYNE J: What her Honour says at 25 to 26 – that is, in the last two lines of 25 over to 26, again engages with this question of reasons. Her Honour identifies as a distinguishing characteristic, or one of several distinguishing characteristics, that performance in public, subject to limitations, manifest freedom from outside influence, resulting in a report or other outcome “which can be assessed according to its own terms”. In this respect this scheme, under the impugned Act, at least on its face, seems to deny any requirement for a report or other outcome which can be assessed according to its own terms.

MR ROBINSON: Yes, your Honour; it turns it on his head. On two occasions they are off to secret hearings, your Honour – one for criminal intelligence - - -

HAYNE J: The secrecy of the hearing may well fall within that exception to which her Honour refers – reference to other needs. It is not, I think, likely productive to focus attention solely on the fact that there may be closed hearings.

MR ROBINSON: The criminal intelligence aspect of it, I will only note this, your Honour, that is different. The process in section 28 is this. There is confidential material. Commissioner wants to get it before the eligible judge in a section 9 declaration. They go off to a room. The Attorney is invited to come, so the Attorney can be there and, in this particular case, two officers of the ombudsman’s office stood in the corner. I do not know why. The material is tendered and then the eligible judge rules whether or not it is truly confidential information, whatever the terms is, criminal intelligence or whatever the term is. Then, if the Commissioner rules – the eligible judge rules that it offends the section, the Commissioner is given the opportunity by the Act to take it back.

Now, that is okay. The Commissioner of Police has his or her documents back. Once they are back, the statute gives a blanket ban on those documents ever being released to anyone for any purpose by any means. Cannot get them under FOI, cannot get them under subpoena, cannot get them any way one can think of. The Act gives them extra, super protection. So if you come in with four boxes of criminal intelligence and you walk out with two because the eligible judge did not like that material, the person the subject of the application or the organisation the subject of the application can never get those two boxes. That is the big difference, your Honours.

CRENNAN J: One thing, applications to or petitions to extend the life of a patent, it was commonplace to have part of the proceedings held in strict secrecy in relation to sensitive accounting information and the release of it – it was commonplace also for it to be very strictly controlled and for any access to be very strictly controlled. So the circumstance you describe is not unknown in the context of an exercise of judicial power.

MR ROBINSON: In the context of procedural fairness, your Honour, it is a document thought by the Commissioner to be relevant, put before the eligible judge to make a ruling on confidential – on criminal intelligence, declared not to be criminal intelligence but still relevant, thought by the Commissioner of Police, and put in a box and never shown to the applicant. So the eligible judge has been shown sensitive material that is not criminal intelligence which we never know about. That is the nub of it, your Honour, and that is bad on any point of view. I do not know if that has happened in this particular case, it certainly could well have. That removes it a little bit from the K-Generation matter.

I am asked by my learned colleague, your Honour Justice Heydon, to suggest a reference to you in response to the question which you last asked, which is his Honour Justice McHugh in Kable’s Case at page 117, point 9.

HEYDON J: Page 117?

MR ROBINSON: Point 9 to 118.

HEYDON J: Yes, that speaks of undermining confidence, but the Kable doctrine is not co-equivalent with the Kable Case. There have been many Kable cases.

MR ROBINSON: There have, your Honour, but it is offered as a suggestion. If I could address your Honours on the four provisions of the Act that we say are bad? That is sections 9, 14, 19 and 26. In a nutshell, the reasons why we say they are bad, there are a number of factors which we would ask your Honours to take into account, and I will start with section 9. We say section 9 is invalid because of these factors or a combination of these factors.

Firstly, the hearing of an application for a declaration as presided over by an eligible judge by the Attorney-General of New South Wales is able to select from those judges willing to serve as eligible judges and effectively the Attorney may identify and select his or his preferred judges in order to constitute an acceptable, or a panel acceptable, to him or her of eligible judges.

I know that may not be what has happened in this case in the Supreme Court today, your Honour, as my learned friends want to put before you a list of eligible judges, and there are quite a few of them, but your Honours cannot decide this case, and will not decide this case, by reference to what happened in New South Wales at this time. The power was there, and in 10, 50, 100 years time a future Attorney-General might well wish to use this special power to say, “I only want a small pool of judges to do the things that I want them to do”. I do not mean that in a truly nasty sense, your Honours, but in a sense that the power is there and one cannot expect that it will not be misused.

KIEFEL J: Could I direct your attention to section 5(6)(b) where revocation is possible of an appointment of an eligible judge if the Chief Justice notifies the Attorney-General that the judge should not continue to be an eligible judge?

MR ROBINSON: Yes, your Honour.

KIEFEL J: Does that say anything about the capacity in which the judge is serving, do you think, as an eligible judge? Is it in the capacity of the judge or persona designata?

MR ROBINSON: Your Honour, it leans towards judge and, if it does not, it leans towards a closeness of association with the Supreme Court of a persona designata. That is too close for comfort for constitutional purposes.

KIEFEL J: I suppose in a practical sense what it might have been directed to, although it might not overcome the point you have made, is the position where an eligible judge is tied up for a very long time, or could be, on a matter involving a declared organisation, and perhaps a mechanism to overcome that judge being seen as permanently seconded to that role, which might offend what I think was discussed in Grollo.

MR ROBINSON: If it is intended to be that kind of mechanism, your Honour, it is not a very good one, of course.

GUMMOW J: Subsection 6(b) may itself confer some sort of authority of an administrative nature which is new upon the Chief Justice.

MR ROBINSON: Indeed, your Honour.

GUMMOW J: That may itself be amenable to judicial review, may it not?

MR ROBINSON: Indeed, your Honour. I would accept that.

GUMMOW J: The Chief Justice is not doing this, I would have thought, in virtue of his office as head of the Supreme Court.

MR ROBINSON: As my learned friends will tell you later - - -

GUMMOW J: The Chief Justice does not accept, has not had the chance to accept this office either.

MR ROBINSON: The Chief Justice can also operate as Lieutenant-Governor in New South Wales in certain circumstances. That makes looking at the States a little more difficult.

FRENCH CJ: On another view, it might be seen as an incident of the administration of the court that a judge may need to be pulled back into exclusively judicial functions.

MR ROBINSON: I will accept that, your Honour. The next point about section 9 is that the Act provides for a hearing of a declaration application, we say to be politicised, in effect, throughout the hearing in a number of ways and at a number of levels. While the Commissioner of Police is a necessary party by the operation of the Act, the Attorney-General plays a very highly significant and, we say, potentially political role in the proceeding under the Act.

The Attorney-General, for example, must be notified of the application and is entitled to be present and make submissions at the hearing of the application. That is section 31. By section 9(2)(e) of the Act, the eligible judge is asked to have regard to any submissions made by the Attorney-General. Further, if a declaration is revoked by an eligible judge, the Attorney-General has to be notified of this as soon as practicable. This is a high level and intense executive involvement in the work being undertaken by the eligible judge, including possibly an oversight of that work after it is done. It is undeniably political in process, in my submission, and it is political in nature. This politicisation must affect the reputation of the Supreme Court as a Federal Court.

It becomes enmeshed with the Executive and the court’s character and its reputation are affected. The next point is the Attorney’s role is also at other crucial stages of the process in the declaration proceedings. He or she may be given documents by the eligible judge constituting criminal intelligence under section 28(6). This information is unable to be seen by the subject organisation or its members at all, as I have explained earlier. Further, the Attorney may be given the documents even after the eligible judge has determined that the information cannot be classified as criminal intelligence and the information is withdrawn. It can be given to the Attorney but not to the organisation. This information is secret.

When protected submissions are made under section 29 of the Act, in secret, the eligible judge is obliged by Parliament to advise the Attorney-General and the Commissioner of Police. So if somebody approaches the eligible judge, the eligible judge, the Commissioner have to be notified, the Attorney has to be notified, they go off to a secret session. This is not necessarily to get evidence in this particular case. Why would the Attorney be there? The Commissioner of Police is already there. There is something else in there to get maybe more information, maybe to – I will not speculate any further.

The eligible judge has to maintain confidentiality of a protected submission and has to hear it in private. These provisions politicise, I would say, dramatise the declaration proceedings. They make it clear that New South Wales is heavily involved in the entire process of obtaining a declaration and it is just not a good look for a Supreme Court justice to be involved in this kind of process. It is not good for the public to see the court – certainly not good for the organisation of its members, but it is not good for the public to see the court involved in this kind of process.

HAYNE J: Is the Commissioner of Police of New South Wales subject to any form of ministerial or other direct political control about the exercise of powers of this kind or does the Police Act, whatever its proper title is, permit the Commissioner freedom in operational decisions from any political control?

MR ROBINSON: Your Honour, the short answer is that I do not know what the Police Act says in relation to that. The Police Commissioner must have, at all times, the confidence of the Minister for Police, but, your Honour, this Act gives independent statutory discretion. This Act is a stand alone. It did not amend the Police Act at the same time, as I recall it. The Police Commissioner solely has the discretion and he or she cannot be accountable to the Minister for the exercise of that discretion or the Minister will be interfering with what is clearly an independent, statutory, discretionary power in section 6, I think it is, for the Commissioner to do this. So that while there may be practical constraints and, indeed, given the high level of involvement of the Attorney-General, your Honour, and given the second reading speech, which I will take your Honours to, it may well be that there is some aspect, but I might come back to your Honour after lunch on that, if I may?

HAYNE J: Of course.

MR ROBINSON: The next point is the eligible judge is required to undertake the work of the Executive in secret and in private sessions and is being seen to do that by the public. He or she is effectively asked to deny procedural fairness to an organisation while doing the Executive’s work and determining whether or not a declaration should made. That is not a good look.

My next point is there are duties – these are duties of a body not befitting the description of a Supreme Court of a State under 73(ii) of the Constitution. They are contrary to the defining characteristics of a court. Also, this is quite significant, the judge does take up room, does take up court room, uses court staff, uses court facilities. Even if they did not, certainly they would use the court staff.

FRENCH CJ: It is not an incident of the statutory framework, is it?

MR ROBINSON: No, your Honour, it does not.

FRENCH CJ: Then they could set up an office in another building for this sort of thing to happen.

MR ROBINSON: But, your Honour, each matter takes a judge away for the duration of the inquiry and that is a public resource and is seen to be such by the people of New South Wales. So that is one of the number of factors that the Court should take into account, in my respectful submission. In addition, the definition of “member of the subject organisation” is impossibly wide. This has been commented on in Totani’s Case, but it is the case here, the same definition and it taints everything that follows from it when it is an almost indeterminable class.

Next, at the hearing of the making of an application for a declaration members of the organisation have very limited rights. The Act only permits them to make submissions, and I have made that submission briefly before. In circumstances where there is significant material before the eligible judge it is almost impossible for a member to make a response to the application if he or she has not seen the application, and that is the nub of these secret sessions.

These secret sessions are determined to look at material that forms part of the Commissioner’s application. Your only power, as an organisation or as a member, is to make submissions on the application in the Act. So if you have not seen a third of the application because it had been dealt with next door, then you cannot perform the little role that you have been given, that is, to make submissions on the application. That does not sound like much, but that will be seen to be, by the public when they come to understand it, patently unfair and it is certainly seen by an applicant or a subject organisation to be patently unfair.

They do not have general rights to adduce evidence and produce material, just make submissions on the application, and this is not what a Supreme Court should be doing. The rules of evidence do not apply and this is the case in some other Tribunals, but this thing being done without the rules of evidence applying winds up in an interim control order and a control order that is almost penal in operation.

The standard of proof is set as low as the balance of probabilities and I have made submissions about that earlier, information suggesting things. The rule in Briginshaw, which one of the interveners - the intervener for the Commonwealth says is writ large here and will make everything okay at the end of the day because Briginshaw applies. Briginshaw is depleted by the operation of the Act. The Act says you can make this call based on information suggesting, hence, wisps on a balance of probability.

Also, the Act, section 9(2) requires a judge to take into account irrelevant matters, “criminal convictions” of “former members”. How could that possibly be relevant? Overseas material - plainly designed by Parliament to skew the consideration of an eligible judge towards making a declaration if all this material should be looked at. That part of it is almost political. There are no grounds that have to be provided, no reasons that have to be provided and the declaration is binding and conclusive at the end of the day. That is, in my respectful submission, very significant. It is a combination of any of those factors that would lead the court to consider that this legislation is bad.

As to the interim control orders, section 14, our central argument is that it is invalid because of these reasons. Firstly, it can be made in the absence of or without prior notice to the member concerned thus authorising a manifest denial of natural justice that cannot really be cured at a final hearing. Next, it can be sought against a person who was not named in the original application. It can be sought against a member who did not appear in the original application and that is something that is bad.

Significantly, the Act does not provide for prior service of an application. You do not even have to get a copy of the interim application before it is made. That is a telling omission. In a sense the result is being dictated. The court is directed by section 14(3) to issue an interim control order if it is satisfied that the application satisfies other requirements. I have made submissions about that when I took your Honours through the legislation so to say on an interim control order that it is all about satisfaction and there is general discretion is wrong. There is extremely limited discretion, almost no discretion. Nextly, the requirements in section 19(1) are whether:

(a) the person:

(i) is a member of a particular declared organisation -

or “a former member” and whether there are “sufficient grounds”. I have set that out.

So the application for an interim control order must be made if, and only if, an interim control order has been made – I withdraw that. All applications for a control order later on must be made if, and only if, an application for an interim control order has been successful. So the interim control order is the key to getting a control order later on, and that highlights the significance of getting this order, so to take away rights in relation to the interim control order, it hampers what happens later on.

In addition to the limited discretion in 14(3) and the one-sided nature of the process there would be a significant unfairness to the subject member in a number of respects. Firstly, the declaration in the proceedings might well have been made where there were protected submissions being made before the eligible judge. So you do not know that, you do not know that a protected submission has ever been made while you are now before a Supreme Court justice. Also, there might have been criminal intelligence which you do not know about before the eligible judge, and the judge of the Supreme Court can also take criminal intelligence, so you could be facing your second round of criminal intelligence secret session, so you turn up to a Supreme Court for an interim order, and the Supreme Court goes off for private sessions, and that is quite troublesome. The Supreme Court will not be going off the protected submissions, they were all looked at by the eligible judge and the Commissioner and the Attorney in other proceedings.

If the Supreme Court looks at this material, the same problems that I mentioned about section 28 apply, namely, you will not get that material if it is declared not protected, so you do not know what the judge is saying and you will never find out. Once a section 14 order has been made and served, that person’s freedom of communication and association is restricted forever, as I have indicated. There is no review or appeal of a section 14 control order, interim control order, and it is that fact plus any combination of the others, in my submission, that the Court can determine this provision is bad.

FRENCH CJ: I think you accepted earlier that there was scope for a collateral challenge to the declaration in control order proceedings.

MR ROBINSON: Yes.

FRENCH CJ: What would be the scope of that collateral challenge? Is it limited to jurisdictional error?

MR ROBINSON: Yes, your Honour, the privative clause - - -

FRENCH CJ: Section 35 provides – well, it really would apply, would it not, to control order proceedings, or apply its protection to a declaration if a challenge were raised in control order proceedings, so subject to what was said in Kirk?

MR ROBINSON: Your Honour has had to put paragraph 100 in Kirk which preserved the possibility of the scope of operation of probative or ouster clauses still having operation or effect, being read down but not so far down as to permit errors within jurisdiction, whatever the terminology might be for an executive decision-maker. It would be that he or she would be able to commit some errors that do not go to jurisdiction. But the short answer is yes, your Honour. If there is a jurisdictional error and you can prove it – if you turn up at an interim order, if you are told about it, you do not have to be told about it, if you turn up then that would be the place to say this section 9 certificate is bad. You would say that because that section 9 certificate was very significant. In New South Wales legislation, I am surprised it is not called but it would ordinarily be called a binding and conclusive certificate. They did not use those words.

As to section 19, the arguments shortly, there are fewer of them that are these. The control order can be made in the absence of a controlled member. So you can be done without being there. That is a manifest denial of natural justice. Secondly, a control order can be sought where an interim order had not been physically served on the member but it was deemed to be served. So you can go to a section 16 order from the eligible judge, or the Supreme Court judge, sorry, and say, we know the solicitor for all 49 members. We are serving you and 49 members deemed to have been served and then there are control orders.

So these 49 members might never have actually received their interim control orders. These provisions are capable of abuse, widespread abuse, but either way that is one other factor. It can be sought against a person who was not named in the declaration. Again, the original application for declaration proceedings and on the making of a control order, the controlled member is at a significant forensic and evidentiary disadvantage and it goes like this.

The court has before it a declaration of the eligible judge. The court has before it an interim control order and presumably the other material that went with it. The court has looked at all this. It has read it long before you turn up, presumably, and before you say I appear, the court has had this significant body of binding material and application material and you get to put on your modus of objection material.

At any hearing the onus of proof, to some extent, falls on you. I took your Honours to section 19(7)(a) where you have an onus of proof to say why you should be allowed, in Australia, to associate with a particular person. The proceedings might involve the taking of criminal evidence, we have looked at that. The control order lives forever, that is ridiculous. The review rights are limited, the appeal rights are restricted. Once a section 19 order is made and served that person’s freedom of communication and association is severely restricted, as is his or her right to work.

This happens whether or not the Supreme Court finds that that particular member of the declared organisation was ever involved in crime or would ever be involved in crime, or whether or not they have a criminal record. The Act does not require the court to go to these things.

My learned friend, Mr Gageler, in his submissions for the Commonwealth, in his written submissions, say – well, the Court will work all these things out and the Court will come up with this wonderful formula and it would not do a control order against somebody without looking at their criminal record and looking at making an individual determination about whether or not they are going to commit crime in the future. Your Honours cannot look at the Act that way. Your Honours have to look at the Act about what the only reasonable way in which a court can construe this Act in these circumstances.

If the only way it can is to narrow it down then the court would be doing a lot of construing and it would be basically pulling out a blue pen and writing in four paragraphs in each of the impugned provisions. This Court should not have to work that hard, in my respectful submission. All of this is done on the balance of probabilities and the Court can look at any of those factors in combination, as well as individually, to look at illegality.

Our final specific attack is on section 26 on prohibition of an association and communication. Division 3, Part 3 of the Act provides for the consequence of making these control orders and interim control orders. I have taken your Honours to the significance of section 26. We ask your Honours to look at it in a practical fashion, particularly to note what his Honour Justice Hayne said in Totani at 213, which is that the validity of the legislation is to be looked at by its intended legal and practical operation and effect. The point was made by a number of judges that the same was true in respect of 26. The implied right to political association, we say that it exists. It is a concomitant right to the implied right to political communication and we say it is a minimum right.

Could I take your Honours briefly to Australian Capital Television v The Commonwealth [1992] HCA 45; 177 CLR 106. His Honour Chief Justice Mason starts his talk at page 135 at point 9 on the implications of fundamental freedoms and at the top of 137 commences to talk about representative government generally and the passages I wish to take your Honours to, at 138 at point 7 on the page, “Freedom of communication as an indispensable element in representative government”. His Honour says there that:

Indispensable to that accountability and that responsibility is freedom of communication, at least in relation to public affairs and political discussion. Only by exercising that freedom can the citizen communicate his or her views on the wide range of matters that may call for, or are relevant to, political action or decision.

Over the page, your Honours, second paragraph:

Freedom of communication in relation to public affairs and political discussion cannot be confined to communications between elected representatives and candidates for election on the one hand and the electorate on the other. The efficacy of representative government depends also upon free communication on such matters between all persons, groups and other bodies in the community. That is because individual judgment, whether that of the elector, the representative or the candidate, on so many issues turns upon free public discussion in the media of the views of all interested persons, groups and bodies and on public participation in, and access to, that discussion. In truth, in a representative democracy, public participation in political discussion is a central element of the political process.

Archibald Cox made a similar point when he said:

“Only by uninhibited publication can the flow of information be secured and the people informed concerning men, measures, and the conduct of government . . . Only by freedom of speech, of the press, and of association can people build and assert political power, including the power to change the men who govern them.”

Your Honours, the passage there that has been read and adopted by the Chief Justice, in my submission, is significant. His Honour Justice McHugh in this case at page 232 at point 2 on the page said:

That means that, subject to necessary exceptions, the people have a constitutional right to convey and receive opinions, arguments and information concerning matter intended or likely to affect voting in an election for the Senate or the House of Representatives. Moreover, that right must extend to the use of all forms and methods of communication which are lawfully available for general use in the community.

His Honour goes on to the end of that sentence. At page 233 at point 9 on the page:

The short answer to the Commonwealth’s contentions is that the powers conferred on the Commonwealth by s 51 of the Constitution are conferred “subject to this Constitution” and that the Constitution embodies a system of representative government which involves the conceptions of freedom of participation, association and communication in respect of the election of the representatives of the people.

His Honour says that they are “constitutional rights”.

GUMMOW J: What is the answer to New South Wales’ response at paragraphs 71 and 72?

MR ROBINSON: Your Honour, we say it is not the reasonably appropriate and adapted point. We say it is not reasonably appropriate or adapted to annihilate, as it were, these rights. We say that because the State of New South Wales has other options. It has other things it can do. For example, it has covert search warrant capabilities, your Honour. It has overt search warrant capabilities. It has brand new surveillance legislation where it can get covert and overt listening devices happening. It can police better, smarter. It can use the powers of royal commission type bodies that are now there dealing with organised crime, for example, like the New South Wales Crime Commission, which has extraordinary power to investigate crime. It can do all of these things, your Honour.

The covert search warrant power came in two years ago in New South Wales. It was brought in on a one-day special, a bill into law in one day, as this legislation was. New South Wales is awash with legislative power. It is simply bone lazy, your Honour, in my respectful submission, to say we will just declare all the bad organisations – that we say are bad – and wait for them to - - -

FRENCH CJ: Well, that is not a criterion of invalidity.

MR ROBINSON: Well, it is, your Honour, in respect of reasonably appropriate and adapted for constitutional purposes, with respect. It is, because your Honours make – there is an element of a value judgment to some extent where your Honours need to say, is there some way it could be done and does it - - -

FRENCH CJ: You are really just putting an overreaching argument, are you not, at paragraph 20 of your reply in response to what New South Wales says? In other words, the scope of the prohibition on association does not address the purpose of the prohibited association. It just addresses association simpliciter and that is really an overreaching argument, is it not?

MR ROBINSON: Yes, your Honour.

FRENCH CJ: To negative the appropriate and adapt it to the legitimate ends of society and so forth.

MR ROBINSON: Well, yes, your Honour, and in addition to that, it goes further than it needs to achieve and his Honour Justice Brennan in Nationwide News v Wills uses that language.

GUMMOW J: Well, why could it then not be read down?

MR ROBINSON: Well, in my submission, it is not intended to be read down. It is intended to be a blanket operation Act. It is intended to stop any communication whatsoever. The South Australian submission, your Honour might recall, says, “We do not trust these men or women to talk to each other ever again anyway. They should not associate for political purposes because they will then talk to each other.”

KIEFEL J: But it is directed to prohibit communication and association for the purposes of disrupting criminal activities. You cannot say that that is directed to communications of a political kind.

MR ROBINSON: Your Honour, the only thing that says that is the long title that - - -

KIEFEL J: I think that it is borne out by the balance of the legislation.

MR ROBINSON: That may be so, your Honour.

KIEFEL J: And if, as Justice Gummow suggests, you can read the legislation down to give effect to the freedom, a judge making a control order could also give effect to that by limiting the operation of the control order. Could not you actually do that?

MR ROBINSON: That is possible. That assumes a good judge - - -

KIEFEL J: All judges are competent.

MR ROBINSON: I have never met a bad one, your Honour – a good judge, an astute applicant who is able to say “I want this” in case it is not offered. It might be opposed, your Honour. It might be opposed by the police. That might well be a significant line of inquiry or battle in a Supreme Court. That condition alone – South Australia’s representative, for example - - -

KIEFEL J: I am sure if the controlled person had a problem with their expression of political matter with other persons, they could seek a variation of the order.

MR ROBINSON: I hear your Honour. I certainly cannot say anything further, except that we do not have to have freedom of association if your Honours are not inclined to add it, as it were, to a constitutional implied right. Freedom of political communication is sufficient. This Act is a blanket operation, and it affects that as well. So there is an existing right that this Court has held, that this Act destroys, and in my submission, it does so in a way that is not reasonably appropriate and adapted. It does not strike any balance. It just uses, as I say, a sledgehammer to crack a nut. The suit goes far further than it needs to achieve, and there are less drastic means to achieve its ends. Is it a convenient time, your Honours? They are my submissions.

FRENCH CJ: Yes, all right. We will adjourn until 2 o’clock.

AT 12.42 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.02 PM:

FRENCH CJ: Yes.

MR ROBINSON: Your Honour, with your Honour’s leave could I hand up to your Honours something in answer to a question from his Honour Justice Hayne about the Police Commissioner’s position. I have handed up nine copies of a few extracts from the Police Act 1990 (NSW) and the provisions of note are these. Section 8:

The Commissioner is, subject to the direction of the Minister –

and of course the Minister is defined in the Interpretation Act 1987 to be the Minister administering the Act which is the Police Minister in

New South Wales. Second page, section 24(1), the appointment of the Commissioner of Police - he or she:

is to be appointed by the Governor on the recommendation of the Minister.

I have given you section 26 which relates to the term of appointment and section 28 is the removal of the Commissioner provision. Your Honours will see subsection (8) at the bottom:

The Commissioner may be removed from office only under this section.

So there is no common law loss of confidence and so on. Subsection (1) says:

The Governor may remove the Commissioner from office on the recommendation of the Minister at any time for any or no reason and without notice.

Subsection (3) has a condition precedent – the Minister must first notify the Police Integrity Commission that the Minister intends to do the deed and allows the Commission a chance to comment “on the proposed recommendation”. Then one goes back to subsection (1) about removal at any time for no reason or without notice. That is in answer to the question. I do not have anything further to offer. I do not suggest that it rules the roost as far as the Act, the subject of these proceedings is concerned, but it may well. They are my submissions.

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

MR SEXTON: If the Court pleases. Your Honours, I was going to say something about the two stages under the legislation, that is the declaration stage and then the control order provisions and then something very briefly about the freedom of communication under the Constitution. My learned friend, Mr Babb, will then make some submissions to your Honours about some statutes, a small number of statutes in Australia and outside Australia, that may provide some analogy with the existing legislation in question here.

Your Honours, as to the declaration stage under the legislation the eligible judge, we would say, carries out an administrative function as persona designata. There are a number of statutes in New South Wales that employ this concept. I suppose the most frequently used is perhaps the Surveillance Devices Act 2007 under which applications are made by various law enforcement bodies in relation to the use of listening or surveillance devices. Those applications are, of course, considered in the absence of the subject of the proposed surveillance.

Your Honours, in a volume of documents that we provided to the Court, if your Honours look at tab 1 or the substituted page for tab 1, your Honours will see a list of eligible judges in relation to a number of statutes including the one in question here. By my count, 30 of the 38 permanent judges of the Supreme Court have consented to act as eligible judges in relation to this legislation and there are two acting judges who have also consented. The selection of the particular eligible judge to hear any given application is, of course, not made by the Attorney-General. It is not specified in the legislation, but presumably that selection is made by the Chief Justice or perhaps by the Chief Judge at Common Law.

It seems doubtful, we would say, that the notion of incompatibility which applies to a non-judicial function conferred on a judge of the Federal Court, or a Federal Court, would apply with equal force to members of State courts, given the absence of the doctrine of separation of powers. But if it be assumed for the purposes of argument that there is some restriction on the kinds of non-judicial functions that might be conferred on members of a State court that has been invested with federal jurisdiction, in our submission it would only extend to a very unusual function that effectively identified the court as an arm of the Executive Government.

Your Honour Justice Kiefel raised this morning the question of the time that might be involved in the exercise of an administrative function. Of course, there would be an obvious difficulty if all or a substantial number of the members of a State Supreme Court were effectively detached from that court for a significant length of time, but in the case of an individual judge we would say that is really, in a sense, an administrative rather than a constitutional difficulty. On occasions in the past, judges have been detached from courts for a considerable time. Justice Phillips I think of the Victorian Supreme Court was the head of the National Crime Authority. Justice Woodward of the Federal Court was the head of ASIO. There may be a question - - -

FRENCH CJ: I think Justice Phillips became a judge of the Federal Court, did he not, upon his appointment as chairman of the National Crime Authority?

HAYNE J: He resigned commission as a judge of the Supreme Court of Victoria.

MR SEXTON: Both of those are federal judges. There may be a question now as to whether that kind of detachment for that length of time would create a problem, but we would say that it does not arise in relation to the hearing of these applications. As to the question of reasons or the absence of reasons under section 13, Justice Bell noted this morning that if there were no reasons, then the declaration itself, of course, might be of limited utility in the obtaining of control orders. It seems to us, it would be unrealistic in the absence of a serious contest at the declaration stage not to have reasons. I think Justice Gummow noted that if there is an ability to give reasons, that the question in a sense would be, why would not reasons be given by someone who was sitting as an eligible judge?

CRENNAN J: I think Justice Hayne raised a point about whether or not it is a question of prudence or a question of duty. Do you have something to say about that in the context of the wording of subsection (2)?

MR SEXTON: Given the wording, it cannot be a question seemingly of duty, but it is certainly an option and it seems to us that in normal circumstances it is very likely that reasons would be given and perhaps, I suppose, as Justice Gummow might say, that if there is an option, then there would need to be a real basis why reasons would not be given.

CRENNAN J: Might it be an implied duty if there is a contest but not if there is not? In other words, a declaration might be made without reasons when the situation is not unlike the warrant situation but an implied duty to give reasons when there is a contest - - -

MR SEXTON: Well, that may be so, your Honour.

CRENNAN J: - - - in order to make practical amenability to judicial review and, indeed, the appeal rights.

MR SEXTON: Yes. As your Honour says, in the absence of reasons it is hard to see how judicial review or the appeal could be conducted meaningfully and, of course, it may well be that in terms of judicial review that it would expose the declaration to being overturned if it is not possible to, in a sense, find a basis on which it was made.

HAYNE J: Why? I just do not follow that submission at all, Mr Solicitor? Why?

MR SEXTON: Well, your Honour, if the contention on judicial review is, for example, that there has been a jurisdictional error of some kind, it may well be that in the absence of reasons it would be open to the court to more readily draw the conclusion. That is the argument that has been put.

HAYNE J: How could the applicant frame the assertion of judicial review? How could the court determine a jurisdictional error? How could the court determine whether it occurred?

MR SEXTON: Well, there is the material. The material for the application is available and the conclusion that has been reached in making the declaration. It will be a question of comparison between those two.

HAYNE J: Some of the material is available to the potential applicant but by no means all.

MR SEXTON: No. In this case there seems to be a large body of material that is available, but certainly in the case of the appeal process it would be a particular difficulty in the absence of reasons.

HAYNE J: Could I just be quite plain about it. So you say or do you not say that a judge, one, is bound to or, two, ordinarily should give reasons for making a declaration?

MR SEXTON: I think we would say that in normal circumstances reasons would be expected.

FRENCH CJ: You suggested, I thought, a moment ago that a declaration without reasons would somehow affect the utility of the control order proceedings. How does that work?

MR SEXTON: Only that in the absence of supporting reasons, if I can put them that way, it may be that the court – I am not talking about, in a sense, the utility of the control order, if made, but the obtaining of a control order by the Commissioner – the prospects of that might be affected by the absence of reasons.

FRENCH CJ: A criterion for the making of a control order is that the person is a member of a particular declared organisation. Once that is established, what further role do reasons play in the decision whether or not to make a control order – or what role at all, I should say?

MR SEXTON: There is the question of sufficient grounds in relation to the making of the control order, as well as that first finding, which your Honour has just mentioned.

HAYNE J: What is the practical content of that in a case where an inscrutable declaration has been made?

MR SEXTON: It may well affect whether the control order is made if it is sufficiently inscrutable, your Honour.

CRENNAN J: Are you saying something like, if you have no reasons, you do not have access to the considerations upon which the declaration has been made, therefore, impeding the prospects of getting a control order?

MR SEXTON: Yes, your Honour. It would affect the criterion of sufficient grounds, it seems to us.

HAYNE J: Then what is the purpose of 13(2)?

MR SEXTON: There may be circumstances where the reasons – it is such a case that reasons might not be necessary, but it does not seem that that would be the normal case, especially a contested case.

GUMMOW J: Section 13(2) seems to confer a power to give reasons, I think. Whether that power is covered with a duty to give reasons is a matter for debate. There certainly is a duty to give reasons where section 39 is engaged. The question is in what situation short of that would there be a duty as well as a power, I suppose?

MR SEXTON: As I have said, certainly in the case of a contest, it would seem hard to resolve the matter without providing some reasons.

CRENNAN J: Does that give rise to a duty though? Are you going the whole distance?

MR SEXTON: Your Honour, I am happy to say that it effectively gives rise to a duty in that situation. Your Honours, it can be noted that in Grollo v Palmer [1995] HCA 26; (1985) 184 CLR 348 a majority of the Court considered that the function of considering applications for warrants for telephone interception could be conferred on members of the court, of a Federal Court and perhaps also, because of the nature and the function, should be conferred on someone who was a judicial officer, albeit not acting in that capacity when considering the warrant. At page 367, the majority said that:

it is precisely because of the intrusive and clandestine nature of interception warrants and the necessity to use them in today’s continuing battle against serious crime that some impartial authority, accustomed to the dispassionate assessment of evidence and sensitive to the common law’s protection of privacy and property (both real and personal), be authorised to control the official interception of communications . . . It is an eligible judge’s function of deciding independently of the applicant agency whether an interception warrant should issue that separates the eligible judge from the executive function of law enforcement.

In the same case, at 390 Justice Gummow noted that the function there was exercised but this did not invalidate it. That it was exercised:

ex parte, in secret, at the behest of criminal investigators and upon reasonable suspicion -

The power of making a declaration is, of course, not in this case exercised ex parte or in secret under section 8 subject to the two issues of criminal intelligence and protected submissions and while reasonable suspicion might play some part in the making of a declaration there would almost certainly be evidence of a range of factual matters including the previous criminal convictions of some members of the organisation in question. Under section 28(3), it is a question for the eligible judge or the court at a later stage to consider whether the Commissioner has properly classified material as criminal intelligence within the meaning of that term in section 3(1). That definition essentially refers to material:

the disclosure of which could reasonably be expected:

(a) to prejudice criminal investigations . . .

(c) to endanger –

informers or to endanger a person’s life or physical safety. The comparable provisions of the Western Australian legislation found to be valid in K-Generation [2009] HCA 4; (2008) 237 CLR 501 – I will not take your Honours to them, but they are set out at - - -

FRENCH CJ: The South Australian legislation.

MR SEXTON: In K-Generation?

FRENCH CJ: Yes.

MR SEXTON: Yes, I am sorry, you are quite right, your Honour. I was thinking of Gypsy Jokers. The relevant provisions are set out at paragraphs 137 and 139 in the judgment of Justices Gummow, Hayne, Heydon, Crennan and Kiefel in that case, and we would say that they are essentially indistinguishable. It is also a decision for the eligible judge or the court at a later stage as to what steps are to be taken to maintain the confidentiality of criminal intelligence, and that was also the case in relation to the comparable provisions in K-Generation, and that is noted at paragraphs 146 and 147 of the same judgment in that same case.

Similarly, under section 29 and section 8(7) it is a question for the eligible judge or the court at a later stage to consider in relation to the question of a “protected submission” whether a person:

has reasonable grounds to believe that he or she may be subjected to action comprising or involving injury, damage, loss, intimidation or harassment in reprisal for making the submission.

Your Honours have already been taken to section 9(1), the terms of the declaration. We would simply underline the serious finding that is involved under that provision that:

(a) members of the organisation associate for the purpose of organising, planning, facilitating, supporting or engaging in serious criminal activity, and

(b) the organisation represents a risk to public safety and order in –

the State of New South Wales. There is a definition of “serious criminal activity” in section 3(1) which refers in turn to “serious indictable offences”. They are defined in section 21 of the Interpretation Act, and “serious violent offences” which is defined in section 3(1) of this legislation.

Your Honours, as to the question of control orders under section 19, there is the intermediate stage of interim control orders, but they are made after notice of that interim order has been served and that includes notification of the right to object to the final control order under that provision of section 16(2)(d). The same criterion is required for the making of an interim control order as for a final control order.

What that is that it is a matter for the discretion of the court with an appeal process, of course, to the Court of Appeal. It requires in normal circumstances that the person in question is a member of the declared organisation and that sufficient grounds exist for the making of the order. One of the factors to be taken into account in relation to the question of sufficient grounds is any evidence provided by the person who might be the subject of the control order, I think section 19(3)(b) and (c) where the court is to consider an affidavit, if necessary, on the part of that person and any other information put forward by them in objecting to the application.

Your Honours, we have said in our written submissions that it is not the status of the person in question, assuming that in some circumstances there might be no past criminal conduct or reasonable suspicion of criminal conduct based on criminal intelligence. Often those two things will be present when an application is made for a control order, but assume just for the moment that they are not always present, we say that it is not the status of the person in question that attracts the control order but his or her conduct in the form of membership of the organisation given what is entailed in the findings of the declaration, that is, that they associate for those purposes of, amongst other things, engaging in serious criminal activity. So that in the absence of evidence to the contrary which can of course be provided, it can be inferred, we would say, that that person has knowingly joined such an organisation and is prepared to assist in carrying out those purposes.

FRENCH CJ: What about section 9(4)(a), a judge’s finding is required to be based on the activities of all members, is it?

MR SEXTON: In a collective sense.

FRENCH CJ: It is replicating the same provision that appeared in the South Australian Act. A judge might be satisfied there is a powerful cabal that associates together for the purposes that will grant a declaration. It does not follow from that, does it, that a person who is the subject of an application for a control order by virtue of membership in its extended definition necessarily falls into the category of “member” that enlivened the power to make the declaration?

MR SEXTON: It is a question of looking at the individual in question. That is certainly true, your Honour. It certainly does allow the inference, we would say, that the person has joined the organisation with knowledge of its purposes and is prepared to assist in carrying those out, whether or not they have specifically engaged in identifiable conduct up to that time. That is in the absence of convictions or a reasonable suspicion based upon criminal intelligence which we say would often be present, but there may be instances where that is not so.

I wanted to try and itemise that notion of conduct by splitting it up into notions of past, present and future conduct. As I say, I am just looking at a situation where there is not specific criminal conduct or specific criminal intelligence in relation to the proposed subject of a control order. In the case of the current plaintiff, for example, there is evidence of a specific criminal conviction in the context of the affairs of the activities of the organisation.

If one looks at just the notion of past conduct, as we have said, joining the organisation whose members associate for the purpose of engaging in serious criminal activity, this is in the absence of evidence to the contrary that might be called, of course, a knowledge of that purpose and preparedness to assist in carrying it out, in terms of present conduct, there is the maintaining of membership with that same knowledge and preparedness and then in the case of future conduct, the likelihood, which comes again from the basis of the declaration, that that person will be involved in future criminal conduct and/or breaches of the peace with rival organisations. There is an example of that in terms of Sydney airport, but historically that has, of course, been a feature of these particular bodies.

It needs to be remembered, we would say as well, that there is a significant difference between the notion of custodial detention and the consequences of control orders, and I will not take your Honours to the passages, but Justices Gummow and Crennan in Thomas [2007] HCA 33; (2007) 233 CLR 307 at paragraphs 116 and 121, and Chief Justice Gleeson in the same case at paragraph 18.

On that question, in Thomas, one way in which the power to make a control order was triggered was where the potential subject of the order had received terrorist training from an organisation declared so by the Executive, but another way was that, where the Court was satisfied that the making of the order would substantially assist in preventing a terrorist act, so that was an assessment as to the future, not necessarily related to any past criminal conduct and, indeed, might be assumed that that satisfaction would at least on occasions be based largely, or solely, on past or present associations with members of a particular group.

Perhaps with some similarity in Fardon [2004] HCA 46; (2004) 223 CLR 575 the criterion was – and the legislation is set out at paragraph 211 in the judgment, I think, of Justices Heydon and Callinan. The criterion was the unacceptable risk of commission of a serious sexual offence in the future, but this assessment was based not only – it was of course based partially on past conduct in terms of the offender’s record, but also on, for example, psychiatric reports and the evidence given by the subject himself so that it was not simply past conduct that formed the basis of that assessment.

I was going to move on to the question of the freedom of implied communication, but the thing that I have omitted to mention – Justice Gummow, I think, raised the question this morning of the Public Sector Management Act (NSW). It seems unlikely that there is a specific provision – it seems unlikely that this would pick up judicial officers, even in the absence of, but perhaps particularly given Part 9 of the Constitution Act which is in terms of the protection of judicial officers, but section 4 of the Public Sector Management Act says that the Act does not apply to, amongst others, “any person holding” and then it has detailed some positions and one of those is the position of a judicial officer within the meaning of the Judicial Officers Act 1986. So I think probably your Honour deals with that with the Public Sector Management Act.

GUMMOW J: The question is whether this is persona designata - - -

MR SEXTON: Yes. Well, what it says, your Honour, is that it does not apply to any person holding the position of judicial officer and therefore we would read it as whether or not that person is carrying out a judicial function. Except to the extent that the Public Sector Management Act otherwise expressly provides, we cannot find anything to that effect.

HAYNE J: That reading may be supported by the ban on holding other office of profit under the Crown.

MR SEXTON: Yes, your Honour. Your Honours, I can deal very briefly with the question of the freedom of implied communication. We would say it is clear from the context of the declaration provision, section 9, and the control order provision, section 19, that the legislation is concerned with associations and communications relating to serious criminal activity and not to any form of political discussion. Justice McHugh in Kruger [1997] HCA 27; (1997) 190 CLR 1 – it is only a sentence, I do not need to take your Honours to it – at paragraph 142 said that implying freedom was one from:

laws that prevent [the people] from communicating with each other with respect to government and political matters.

In any event, as I think Justice Gummow suggested this morning, it would be possible to use section 31 of the Interpretation Act (NSW) to prevent a control order impinging on any communication that otherwise met the requirements of political discussion with the principles set out in Lange and section 19(7)(a) allows the court to exempt a person from the operation of section 26 which creates the offence of association by a controlled member of a declared organisation with another controlled member.

In Coleman v Power [2004] HCA 39; (2004) 220 CLR 1, Justice McHugh was the only person who really had to look at the reading down question and he suggested that in the case of the provision there which talked about insulting words under the Queensland statute, that it could be read down to take account of the principle of implied freedom of communication. Unless there is anything specific, your Honours, those are my submissions, and I will ask Mr Babb to make the rest.

FRENCH CJ: Can I just ask about the application of section 37 of the Act relating to the power to make rules of court under the Supreme Court Act:

with respect to the practice and procedure to be followed in respect of proceedings under this Act –

and read that with section 124(1)(e) of the Supreme Court Act which provides a power to make rules:

for regulating and prescribing any matter which, under any Act or Imperial Act, may be regulated or prescribed by rules of the Court –

et cetera. Are we to read the “Rule-making power” as confined only to applications for interim control orders and control orders or is it to be read as extending to proceedings before an eligible judge?

MR SEXTON: I have not, I must say, turned my mind to that, your Honour, but it could be the intention. It seems validly to apply to the declaration stage as well. It may be that when it talks about rules of court the notion of sitting as a court and carrying out a judicial function I have to look at the – to the various provisions, your Honour.

FRENCH CJ: Yes, thank you, Mr Solicitor. Mr Babb.

MR BABB: May it please the Court, I have three points to make and I expect I will take less than half an hour in relation to them. If I can just deal with the point that my learned leader has just raised in relation to sufficient grounds. He was talking about there some evidentiary considerations that might come into play, including the making of the declaration. We put great store in relation to section 19(1)(b) and the power and the work that it has to do. Section 19(1)(b) requires that the court is satisfied that “sufficient grounds exist for the making of a control order”.

My learned friend for the plaintiff has submitted that that was defined somehow by section 19(3) which sets out matters that you are required to take into account. With respect, in looking to what would inform that determination you need to look at the objects of a control order and they are found by looking at a combination of the long title of the Act which is:

An Act to provide for the making of declarations and orders for the purpose of disrupting and restricting the activities of criminal organisations and their members –

in combination with section 9 in totality, the definition of a “criminal organisation” which section 9(1) defines to be:

(a) members of the organisation associate for the purpose of organising, planning, facilitating, supporting or engaging in serious criminal activity, and

(b) the organisation represents a risk to public safety –

Bearing in mind, as the Chief Justice has raised and this Court is well aware because this provision is the same as that in Totani, section 9(4)(a) does not require a finding of criminality or a risk of criminality in relation to individual members.

It is that object that is protecting the public through the imposition of a control order that restricts the activities of the criminal organisations and its members that informs section 19(1)(b), the assessment of whether sufficient grounds exist for the making of a control order. The relevant considerations that would come into play in relation to an assessment of that test would necessarily be considerations of whether there has been involvement by the individual in criminal conduct, whether there is a likelihood of the individual being involved in criminal conduct in the future and whether there is evidence of past or present association with people who engage in serious criminal conduct.

HAYNE J: Are those matters to be proved in the ordinary fashion, according to the laws of evidence?

MR BABB: They are, your Honour, but as my learned leader said, inferences can be drawn from the making of the declaration and if there are reasons specifying findings in relation to individuals from the contents of those reasons, it is submitted.

HAYNE J: So the findings made in reasons have what effect in the control order stage?

MR BABB: It may be some basis for drawing an inference in relation to whether the case is made out in relation to an individual. In relation to associating it, it would be possible that the individual has not committed any offences and that the only evidence against him is that they are associating with members that have committed serious criminal offences and that, again, could be material which could support the making of an application. It is similar in its considerations to the policy behind the consorting laws, that is, frequent association between someone who is involved in serious criminal offending and another could be likely to lead to the involvement of the non-criminal party in criminal activity.

Another consideration we submit that could be taken into account and that is raised in relation to this case is that where you have a criminal organisation that, through their engaging in criminal activity, has enemies from other criminal organisations and there is fighting and wars between those organisations, the fact that association between members can lead to provoking rival gangs to direct action towards them which can be taken into account in relation to the threat to public safety and the threat to the public generally as well as to individuals. Our written submissions and the application which is in the special case book deal with, under the heading of “Gang Wars”, some 19 incidents of serious tit for tat violence between outlaw motorcycle gangs and detail a number of incidents where two separate Hells Angels clubhouses have been bombed and drive-by shootings have occurred and arson has occurred, presumably at the hands of rival gangs.

Another relevant consideration in relation to whether the test that sufficient grounds exist is whether there is utility in the making of the order which requires necessarily the court to balance the financial and personal impact that the order and the making of the order is going to have against the benefits of public safety in an individual case. Bearing those matters in mind - - -

HAYNE J: Just before you part from there, is the implicit premise of the submissions you have just been making that the bare facts of declaration plus membership cannot suffice for making an interim or final control order?

MR BABB: No, your Honour. Every case would be dealt with on its own basis, but a judge has to be satisfied that sufficient grounds exist and unless he can properly reach that satisfaction from the material before him, then obviously - - -

HAYNE J: But are the bare facts of declaration plus membership ever sufficient?

MR BABB: They could be, we submit, in the event that with the opportunity to put evidence on, as provided by section 19(3)(b) and (c), no material is forthcoming and where there is some real material in the declaration and the reasons to support the making of it.

FRENCH CJ: Absent reasons, declaration and membership only, what informs sufficiency grounds?

MR BABB: The task becomes far more difficult in making up the burden, remembering that the burden is on the Briginshaw test, which we would accept. The facts, of course, in terms of considering the Act as a whole should not come into consideration of the constitutionality of it, but it is a good example to look at this particular case where you have a small defined membership of a group, 46 members in total, 30 of them full members, and allegations and convictions of individual criminality in relation to a large number of members; incidents of great public notoriety, public discharge of firearms.

I would just invite your Honours to look in the stated case book and the application at incidents 39 and 40, which are public shootings at the hands of members of the organisation and where there have been convictions in relation to them. Incident 39, grave danger to the public in discharging a firearm and incident 40, where it is in combination with other members and a statement that “We are the Hells Angels” and the discharge of a firearm, again resulting in conviction. These notorious incidents of public violence do enable inferences to be drawn, it would be submitted, in the case of a small membership in relation to joining and maintaining affiliation with the outlaw or the criminal organisation.

FRENCH CJ: Now, there is a variety of information in support of those grounds I see referred to at page 32 of the book and 35 volumes.

MR BABB: Yes, your Honour.

FRENCH CJ: There is an affidavit which I think more or less seeks to explain the grading of the reliability of the information.

MR BABB: Yes. The Act requires there to be an affidavit verifying the contents of the application.

FRENCH CJ: That does not mean it is an affidavit which would in a court render admissible everything in the 35 volumes.

MR BABB: No, certainly not, your Honour. It is at this stage the declaration stage where the rules of evidence do not apply.

FRENCH CJ: Just coming back to the question I put to you before about the imagined and no doubt extreme situation of control order application for declaration and proof of membership only, you would not be able to bring into that process the affidavit and supporting materials relied upon in the declaration proceeding?

MR BABB: No, your Honour.

FRENCH CJ: It has got to be an affidavit by the - - -

MR BABB: Everything that goes into the judicial stage has to be admitted by the rules of evidence, even the criminal intelligence. So although there is provision for admitting criminal intelligence, it is still bound by the rules of evidence.

FRENCH CJ: Well, if the reasons for the declaration – let us suppose there were reasons – if the reasons for the declaration are based on a huge volume of inadmissible evidence, how are they validly taken into account in determining whether there are sufficient grounds for the purposes of a control order?

MR BABB: It is not going to be admitted, your Honour, unless it meets the rules of evidence. It could only go in to explain the basis of the making of the declaration without going to the truth of the matters that were considered. The reasons we submit would give some content to the making of the declaration and could be admitted, though.

CRENNAN J: Or they might expose that there are not sufficient grounds existing for a control order?

MR BABB: That is exactly right, your Honour. If they had no reference to a particular individual, that could be right. Your Honours, it is submitted that this Act is not dissimilar to apprehended violence order provisions that are in place in each jurisdiction in this country and I would like to take your Honours briefly to the New South Wales provisions, the Apprehended Personal and Domestic Violence Order Act. Commencing at section 16 and sections 16, 17 mirror 19 and 20 because one is in relation to domestic violence and the other is in relation to personal violence without the domestic connection, but looking at the example of apprehended domestic violence orders, similar to this Act, the court retains a discretion:

A court may, on application, make an apprehended domestic violence order if it is satisfied on the balance of probabilities –

so the test is the same –

that a person who or has had a domestic relationship with another person has reasonable grounds to fear and in fact fears –

the commission of personal violence, conduct which intimidates the other person or stalking of the other person –

being conduct that, in the opinion of the court, is sufficient to warrant the making of the order.

Now, that initial provision certainly focuses in on conduct and it is submitted, as does section 19(1)(b) when you are considering that in relation - - -

FRENCH CJ: How does reference to this actually help you?

MR BABB: Because if I could take your Honour – it establishes the similarity in relation to the Act - - -

FRENCH CJ: It maybe a good thing or a bad thing.

MR BABB: Section 17 sets out the matters to be taken into account in relation to the making of an apprehended violence order. Section 22 – Part 6 of the Act sets out the provisions in relation to the making of interim orders and the making of interim orders, they can be made ex parte. It is discretionary. It is in exactly the same way as it is - - -

FRENCH CJ: But that does not shore up your argument here. I do not think that is going to help us.

MR BABB: May it please the Court. In my submission, though, there is similarity between this Act and the Act considered in Thomas v Mowbray, one that this Court has considered and considered not to be unconstitutional. Looking at section 104(4), and that is found at paragraph 64 of the judgment of Thomas v Mowbray or paragraph 61 of our written submissions, there is the discretion there as to whether or not to make the order. Considerations of the circumstances of the individual and the same sort of considerations, we submit, would come into play in relation an application of section 19(1)(b).

The order has to have a utility, which would, again, be one of the considerations in relation to section 19(1)(b) in that the court has to be satisfied that the obligations are reasonably necessary and that the orders have to be tailored. There is the ability to tailor orders pursuant to section 19 of the New South Wales Act. It is distinct from Totani in that regard, in that in Totani there was no way around the absolute prohibition of association between a controlled person and any other member. Here, section 19(7), although the onus is cast upon the subject to satisfy the court of good reason, there is the ability to tailor the order by removing people from the control of the - - -

FRENCH CJ: I think in Totani there was a power to vary the minimum content to some extent required by section 14(5).

MR BABB: Only, with respect, in relation to those people who were not members but associated with members. There were two different aspects to section 14. In section 14(1) there was no provision to vary but in section 14(2) there was the provision to vary. Your Honours, they are the submissions I wished to make in relation to Thomas v Mowbray.

In my final points, if I could just take up some of the things raised by my learned friend for the plaintiff. He put forward, I think, a suggestion that the material that was considered not to be criminal intelligence and returned to the Commissioner could be taken into account in some way. That is disputed – a correct interpretation of section 29 being that at both stages, at the eligible judge stage and at the consideration of the control order stage, that material can simply not be taken into account.

BELL J: I may have misunderstood it, but I thought the submission was that the judge sees the material in the course of consideration of a control order, determines that it is not criminal intelligence, but has seen it, and there is no capacity for the respondent to the application to know what it is and therefore to have any ability to counter the impact that it may have on the mind of the judge.

MR BABB: Yes, and in my submission it will have no impact on the mind of the judge because it has been rejected and, unless it comes in as open material served on the other side, it is not taken into account in any way in accordance with normal principles of procedural fairness, which are only changed in one way, and that is in relation to criminal intelligence that is accepted by the judge as such.

Further, my learned friend for the plaintiffs submitted that a control order lasts forever. Diamonds are forever he said. In this particular case, they do degrade over time because there is no effect to a control order unless a declaration is in force. So the way that it works is, although the control order remains in force until revoked, section 23, in looking at the offence provisions, which are sections 26, 26A and 27, each of them require as the starting point that a controlled member of a declared organisation associate, and if one goes to the definition of “declared organisation” which is in the definitions provision at section 3 that means:

an organisation in respect of which a declaration under Part 2 is in force –

and when we go to Part 2, the “Duration of declaration” section 11(2):

The declaration remains in force for a period of 3 years –

So unless the declaration is renewed, then there is no effect to the control order and they do not impact forever and ever. Similarly, my learned friend in his written submissions made a submission that if an interim control order is made and an application is never pursued, that in some way the interim control order would remain in force forever, and that should not be accepted either because the process is in the hands of the judicial officer who once an interim control order is made pursuant to section 14, one goes to subsection (5) and the court must fix a date on which the hearing of the application for a final control order will be heard.

If one goes to section 17, “Interim control order ceases when final control order made or served” is the heading, but interim control orders

remain in force until revoked, at (a), and (c) dismissed. It is submitted that if an application was not heard on the day that it was set down for by the judge, that because of some tardiness on the part of the State that the judge would either revoke or dismiss the interim control order thereby leaving it with no effect.

BELL J: And there are the provisions of section 18 dealing with the expedition of orders.

MR BABB: Exactly, your Honour. One further submission that was made was that in relation to the matters that may be taken into account in relation to the making of a declaration under section 9 and it was pointed out that when my learned friend said “must” that its main – in the written submissions it is “must” on each occasion, but it is clearly matters that can be taken into account not must be taken into account and they do include information in relation to former members. Firstly, it is submitted that the fact that information may be taken into account in no way diminishes the standard of proof in relation to the test. The standard of proof remains, the balance of probabilities applying the Briginshaw test in relation to whether the declaration can be made, and the fact that the words “information suggesting” are used there does not undermine the standard of proof in any way.

The other submission is that it is not irrelevant to take into account the activities of former members. Former members in particular instances may have been members at the same time as current members and their activities would inform questions in relation to current members, and also in relation to interstate and overseas chapters of the organisation it is submitted that material in relation to such chapters could be relevant. One example would be that crimes by a particular criminal organisation overseas may be so notorious that any person joining that organisation with knowledge of its criminal nature and characteristics and reputation might be more readily thought to have joined with the intention of supporting and participating in criminal activity. Unless I can assist, your Honours.

FRENCH CJ: Thank you, Mr Babb.

MR GAGELER: If the Court pleases. It will be apparent from our written submissions that we support the New South Wales legislation in its totality. It will also be apparent from our written submissions that our support for Part 3 of the Act is based on a particular understanding of the construction of section 19(1)(b) of the Act, an understanding that we have spelt out in paragraphs 35 through to 41, paragraph 41 being the important summary.

That understanding does not allow us to support two submissions that have been made to your Honours this afternoon. One submission, as we understood it, was that the bare fact of membership combined with the bare fact of declaration might in a particular case lead to a control order being made. The other, as we understood it, was that there was some inference as to the sufficiency of grounds that could be drawn from either the fact of a declaration having been made or from reasons contained in a declaration, but apart from those two submissions we support the submissions made for the State of New South Wales in respect of Part 3.

May I limit my oral submissions to four or five fairly brief topics concerning Part 2. Now, the submissions of the interveners in this respect are largely variations on a theme with one exception and the exception is that there is a slight difference of constitutional principle between the Commonwealth and the State of Victoria.

In the written submissions on behalf of the Attorney-General for Victoria, in Part D, your Honours need not look to the detail of it, over several pages, from pages 7 through to 11, it is argued that the Kable doctrine is distinct from the Grollo and Wilson doctrine and it is said, in alternative to other arguments, that Kable has nothing to say about the conferral of functions on a state judicial officer persona designata.

Now, in our submission, that is too sweeping a proposition. The root principle of Kable was that identified by Justice Gaudron in Kable itself and taken up and repeated by your Honour Justice Gummow in Fardon. Your Honour’s statement appears at paragraph 101 of [2004] HCA 46; 223 CLR 575 and there your Honour quotes the relevant part from Justice Gaudron’s judgment in Kable. But the gist of what is said is that Chapter III of the Constitution does not admit of different grades or qualities of justice depending upon whether judicial power is being administered in a State court or a Federal Court.

GUMMOW J: I am sorry, where are you reading from, Mr Solicitor?

MR GAGELER: I hope it is 223 CLR 617, paragraph 101. I was not actually reading, I was internalising and paraphrasing.

GUMMOW J: Thank you.

MR GAGELER: In our submission, it follows from that root principle that Chapter III does not admit of two grades or standards of independence and impartiality. Essentially, that same point was made by your Honour the Chief Justice in Totani at paragraph 51 where your Honour picks up, I think a previously overlooked quotation from Quick and Garran and the gist of that, again without reading it, but noting the sentence or so that your Honour chose to italicise, is that the Constitution through section 77 said Quick and Garran - we would also add section 71 - reposes the same confidence in the integrity and impartiality of a State court as it reposes in the integrity and impartiality of a Federal Court.

Now, Grollo and Wilson contain several overlapping streams of thought, but one of the streams of thought that comes through Grollo, and it was applied in Wilson, is a principle that the conferral of a function on a judicial officer persona designata will be invalid if it – and I quote – “undermines the integrity of the judicial branch”. You get that as the Grollo test, borrowed from Mistretta v United States, restated in Wilson [1996] HCA 18; 189 CLR 1 at page 9 in a judgment delivered three days, I think, before the judgment in Kable.

That particular principle, accepted in Grollo and actually applied in Wilson, in our submission, is a particular application of the same root principle recognised and applied in Kable, and it is a principle which, consistently with its root, in our submission, applies in the same way to the conferral of a function on a State judicial officer as it applies to the conferral of a function on a federal judicial officer – that is to say, it is the same standard of institutional integrity and impartiality that is being protected.

That said, the application of that principle is not inflexible and it necessarily takes into account considerations of history, considerations of practicality, and one only needs to remember country courthouses with a single official who may necessarily, in practical terms, be performing a variety of functions. It also takes into account, in particular circumstances, constitutional structures and Lieutenant-Governors within States are at least in some cases within the scope of the constitutional protection afforded by section 106 of the Constitution. None of those considerations, of course, have any role to play in the present case. Your Honours, that is the first topic I wanted to deal with.

The second topic concerns the application of the Wilson/Grollo test and, in particular, the relevance of the existence or non-existence of procedural fairness in the function that is being performed by a person who is a State judge persona designata. In that respect, could I ask your Honours to turn to Wilson [1996] HCA 18; 189 CLR 1 and, in particular, page 17. Your Honours were taken in part to this passage. What is there set out is very much a staged analysis in the full paragraph at the beginning of that page. I will not go through each stage, but what one can see is, having got through the first stage – that is, entered into the beginning of the inquiry – the draftsman of this Act has been quite careful to tick off, particularly in section 5(7) and then in section 9(2), a couple of the other inquiries that are there set out.

At the end, in the last couple of sentences of that paragraph which were read to your Honours, there is the question of procedural fairness which is addressed. The last sentence says:

But, conversely, if a judicial manner of performance is not required –

That is, amongst other things, if procedural fairness is not required in the exercise of this administrative or legislative function –

it is unlikely that the performance of the function will be performed free of political influence or without the prospect of exercising a political discretion.

The point is that an absence of procedural fairness is not of itself indicative of incompatibility or leading to invalidity, and what is said here must be read in the context of all of this being an application of Grollo, and in Grollo itself, of course, as the Solicitor-General for New South Wales pointed out, the particular function of issuing a warrant was a function which simply did not involve the provision of any form of procedural fairness. It was ex parte, it was secret, and it was effectively unreviewable.

The absence of procedural fairness might in a particular case point to the function being performed being one that is within the realm of executive influence to a degree that undermines independence and impartiality. That point, your Honours, is well brought out in a decision of the Full Court of the Federal Court that your Honours I think have not been referred to in the written submissions. May I mention it? It is Hussain v Minister for Foreign Affairs [2008] FCAFC 128; 169 FCR 241.

It was a case which concerned the Security Appeals Division of the Commonwealth Administrative Appeals Tribunal, constituted by a presidential member and two other members, operating in circumstances where the effect of two provisions of the Act, of the AAT Act, that is sections 38A and 39B, required the Tribunal to take into account sensitive material that could not be disclosed to an applicant before it. At paragraph 146, in our submission correctly, it is said in the last sentence:

The fact that [those sections] operate to deny an applicant for review procedural fairness does not of itself demonstrate that a Ch III judge, acting as a designated person, cannot preside over such a review.

147 The real question is whether the statutory power conferred on the Attorney-General to grant certificates under [those sections] vests in him or her the power to control the proceedings, or to direct the Tribunal as to the manner and outcome of the exercise of its jurisdiction, so that it would be inappropriate for a Ch III judge to have any involvement in what is occurring.

In our submission, that was the question in that case, and it is really the question as identified in Wilson, and insofar as there is a question in this case that is the question. The third topic I wanted to touch on is - - -

FRENCH CJ: The judge acting persona designata is carrying out an executive function or a function of the Executive Government. What are we to understand by the notion of independence of the Executive Government? Does that mean not subject to ministerial direction or - - -

MR GAGELER: Yes. You only get into Wilson – I glossed over the stepping stones in Wilson – but if your Honour turns back to page 17 of Wilson, it is said:

The statute or the measures taken pursuant to the statute must be examined in order to determine, first, whether the function is an integral part of, or is closely connected with, the functions of the Legislature or the Executive Government. If the function is not closely connected with the Legislature or the Executive Government, no constitutional incompatibility appears.

But if the function is closely connected with the legislature or the Executive Government, that is when you go on to the next question. So the mere circumstance that you have reposed in someone who is a judicial officer a function that is integral to a legislative scheme or a statutory scheme is just the beginning of the inquiry. In Wilson itself, of course, it was principally two things, the ability to direct the judge and the ability to ignore what the judge produced.

GUMMOW J: Does that produce the result that the person holding the appointment as persona designata acts without any political responsibility? Insofar as it is the judicial office, the responsibility is rooted in Chapter III. You have a person who is outside Chapter III but they do not seem to be in Chapter II.

MR GAGELER: They can be in Chapter II.

GUMMOW J: But are they then politically accountable to the Parliament in some way through a Minister?

MR GAGELER: The Minister would be politically accountable to the Parliament, but the extent, if at all, to which they are accountable to anyone is a matter to be spelled out by a statute.

HAYNE J: But you say, do you not, that a necessary element of the decision-making of such a person is that it must be independent and impartial?

MR GAGELER: Absolutely.

HAYNE J: And it must appear so?

MR GAGELER: Yes, that is right. I mentioned the provisions of the Act, but, as I said, the ultimate question is one of substance not simply of form, putting it another way, it is a matter of practicality, not simply the terms of the statute, but the terms of this statute are really quite careful.

FRENCH CJ: How does the position of the designated judge - the eligible judge, I am sorry, how would the position differ in any constitutionally relevant sense from the position of say the Secretary of the Department of Justice carrying out exactly the same function?

MR GAGELER: None, save that – I mean, your Honour - - -

FRENCH CJ: Assume he is not subject to ministerial direction?

MR GAGELER: Your Honour has drawn me into a one-word answer and I should not have given a one-word answer. Of course, if you take these functions and the constraints on the functions and the protections afforded then they are functions and constraints and protections that could be given to anyone. Of course, if the Secretary had this function but was still answerable to the Minister, it would be a completely different scenario.

GUMMOW J: Take, for example, section 5(4) of the New South Wales statute and assume reasons are given and under section 13(2) - there is an absolute privilege conferred by that, is there, in respect to anything said about anybody in the reasons?

MR GAGELER: Yes. It is a pretty common provision.

GUMMOW J: I know it is.

MR GAGELER: I think you will find it in the AAT Act, for example. Also, I think this Court may have looked at a similar provision in the Migration Review Tribunal context. It may have been one of my learned friend’s cases. Herijanto he tells me. The judicial immunity given traditionally to – I am sorry, the immunity given traditionally to members of Commonwealth tribunals is cast in terms of the immunity of a High Court Judge.

Your Honours, I was I think about to move to procedural fairness and the requirement to give reasons. Procedural fairness, as your Honours have said, quite emphatically, a couple of times recently, is implied except to the extent it is expressly excluded. Osmond’s Case, particularly the judgment of Justice Deane, would say that procedural fairness extends in the case of a decision given following a contested hearing to the provision of reasons. The question is then whether the implication that follows from the general requirement of procedural fairness is displaced by section 13(2) and that is a question upon which we express no concluded view but it is not difficult, in our submission, to read section 13(2) so as to have a limited application. Finally, your Honours - - -

CRENNAN J: I am not sure Justice Deane actually specifically referred to a contest. He was really referring in more general terms, I think, to the kinds of matters that might be agitated in the administrative context and when you consider them carefully, there were some, any way, which would lead to the conclusion that there was an implied duty to provide reasons.

MR GAGELER: That is right. His Honour may not have been confining himself to a contested hearing, but what his Honour - - -

CRENNAN J: No. You may wish to apply it to a contested hearing.

MR GAGELER: It appears that what his Honour said would certainly apply to a contested hearing, which is sufficient for the present purposes. Finally, your Honours, some argument was put that section 5(3) of the Act is problematic because it confers on the Attorney-General an ability to choose judges. All we want to say about that is it is identical to a provision that was upheld in Grollo, that is section 6D(3) of the Telecommunications (Interception) Act considered and upheld in Grollo.

We want to point out that in Wilson the problem was not that a judge had been chosen by the Minister to do the job, the problem was the nature of the job the judge was chosen to do. It is mentioned in Wilson at pages 17 and 18 that there was nothing wrong per se with a judge being appointed a Royal Commissioner or a Presidential Member of the Administrative Appeals Tribunal. In each of those cases, obviously, the choice of the particular judge, with the judge’s consent, is a matter for a Chapter II officer. If the Court pleases.

FRENCH CJ: Thank you, Mr Solicitor. Mr Solicitor for Western Australia.

MR MEADOWS: May it please the Court. My learned friend, Mr Mitchell, will present the submissions on behalf of the State.

FRENCH CJ: Thank you, Mr Meadows. Yes, Mr Mitchell.

MR MITCHELL: If it please the Court. We adopt our written submissions, but can I make oral submissions as to the constitutional significance of the absence of any obligation on an eligible judge to provide either grounds or reasons for the making of the declaration, assuming that that is the construction which the court gives section 13 of the New South Wales Act. In addressing that question, it is relevant to note that the function of course is not conferred on the Supreme Court, much less a Federal Court or, indeed, a federal judge acting persona designata. We do submit, though, that even if the function had been conferred on a federal judge persona designata by the Commonwealth, that there would be no contravention of Chapter III by reason merely of an absence of obligation to give reasons.

At paragraphs 33 to 38 of our written submissions we make the point that the critical question when considering whether an administrative function is validly conferred on a federal judge persona designata is whether the function is to be exercised independently from the political branches of government, to use the language adopted in Wilson. That reference to political branches of government may provide some criteria for assessing independence from the Executive Government by a judge holding a statutory office performing an administrative non-judicial, some might say executive, function. The reference to the political branch of the Executive Government ordinarily would comprehend Ministers who are the political officers responsible to Parliament and their subordinates.

One might distinguish the position of the Secretary of the Department for Justice from that of an eligible judge, even assuming all of the provisions were the same, in that the secretary is accountable to his or her Minister, even if not accountable in the performance of this particular function, still accountable in other respects. Certainly, if the eligible judge is to perform a function in a manner that is not subject to direction by anyone, then the limitation that applies at the Commonwealth level should not be transgressed. One might think of other examples, such as the Law Reform Commission and the like.

My learned friend, Mr Gageler, referred to the passage at page 17 of Wilson v Minister for Aboriginal and Torres Strait Islander Affairs [1996] HCA 18; 189 CLR 1 at 17, to which reference was made to the role of judges performing the task of a Royal Commissioner or the head of an administrative tribunal. Your Honour Justice Kiefel asked my learned friend for the plaintiff about the time that the duties of an eligible judge might occupy. Of course, conducting a royal commission can take some time. Ordinarily the role of a presidential member of an administrative tribunal would be a full-time or close to full-time occupation. Certainly, there are examples at both State and federal level; the Administrative Appeals Tribunal, the Native Title Tribunal at federal level and State Administrative Tribunals where there are judicial members, the bulk of whose time must be occupied in the performance of that role.

The reason why the legislation had to be read down in Wilson appears particularly at pages 18 through to the top of page 20, essentially, that the report was not to be made independently of the Minister’s power so that there was a breach of the separation of the Chapter III judge acting as reporter from the Minister. That seemed to be the basis on which both the plurality and Justice Gaudron, resolved that case.

Your Honour Justice Hayne referred to what Justice Gaudron had to say at page 25 and 26 of Wilson at which point she referred to a report or outcome which can be assessed according to its own terms. It is important to appreciate, in my submission, that that was not put forward as a criterion of validity or invalidity. Rather, it was a factor, the absence of which accounted towards the existence of what her Honour referred to as an unacceptable relationship between the judiciary and the other branches of government. Leading to her Honour’s conclusion at point 8 of page 26 that the Act:

gives the appearance that the judge is acting, not in any independent way, but as the servant or agent of the Minister.

It was significant in that case to consider what the report fed into. It fed into a process of the Executive Government. Here the relevance of a declaration is for the exercise of functions by the Supreme Court and the absence of any obligation to give grounds or reasons does not in that context, either taken alone or in combination with other provisions, give any appearance of the eligible judge’s servant or agent of one of the political branches of government.

HAYNE J: Does it present a tension? The tension I have in mind is derived in this fashion. First you start with what Justice Deane says in Osmond 159 CLR 676 that it may be a requirement of natural justice that reasons be given, in effect, unless there is express provision to the contrary. That is not always so, but it may be that natural justice will have that content. If it has that content, it is because it is seen as an element of fairness. Is there a tension between that proposition and giving to a judge a task of a kind which would ordinarily, I would have thought, provoke a need to give reasons and saying no, the judge need not?

In my submission, if there is tension, it is not tension that produces constitutional invalidity. That is his Honour Justice Deane was concerned with the rules of procedural fairness and what the statute may implicitly require or not require of the decision-maker.

HAYNE J: Just so, but the tension to which I point is the conclusion that might be asserted to follow. I am not saying whether it does or does not, but the conclusion that is asserted to follow is that the procedure to be followed by the eligible judge is not, in that respect, a fair procedure and it is not an apparently fair procedure because you cannot measure the outcome declaration against a statement of reasons. That is the set of propositions. They may be right. They may be wrong. What do you say about them?

MR MITCHELL: I say two things about that. Firstly, by reference to the decision of the Court in Grollo v Palmer that mere departure from the judicial process does not itself lead to a contravention of Chapter III in this context. Grollo, of course, I appreciate it was not dealing with a contested hearing, but it was certainly a process ex parte, secret, no reasons, not amenable to the kind of scrutiny to which her Honour Justice Gaudron referred. What one is concerned with in this arena is the independence and impartiality of the court and so long as the absence of any obligations to give reasons does not combine with other factors to call that independence, impartiality, actual or apparent, into question, there is no infringement of the requirements of Chapter III.

The second point I would make in relation to that is one has to have regard to what it is a declaration does and the significance of a declaration for the subsequent proceedings, that is, the effect of a declaration in this case is to leave a person who is a member of a declared organisation liable to an application for an interim control order, a control order and the making of those orders.

We would submit, respectfully, that both the plaintiff and defendant overstate the significance of the declaration for the control order proceedings, that we would respectfully adopt what the Solicitor-General for the Commonwealth puts at paragraph 41 of his written submissions. What the court must do when considering a control order is to send to the particular. The purpose for making a control order, having regard to the long title of the Act and the nature of the organisations to which the Act applies, must be to impede the association of members for criminal purposes, identified in the Act, and ameliorate the risk to public safety and order posed by the regulation.

The court must form a positive view on admissible evidence before it that the order that it is going to make will not only achieve that end, but that there are sufficient grounds for making that order having regard to its consequences. The fact of a declaration by itself tells one very little about the nature of the organisation, whether one is dealing with an organisation

of whom all members commit offences and associate for that purpose or whether one is dealing with an organisation where one has a cabal of influential members engaged in criminal activity.

When the Supreme Court on the making of a control order comes to consider whether there are sufficient grounds for doing so, it must make an assessment of the nature of the criminal activity in which the organisation engages, make some assessment at least of the extent to which the particular defendant engages in that activity and then determine, having regard to all of the evidence before it on the making of a control order or the material supplied by the Commissioner of Police in the making of an interim control order, whether those restrictions are justified. Even with reasons, which may be based on inadmissible evidence, a declaration does not establish any of those matters. It simply operates as, in this legislation, a precondition to the making of an interim control order or a control order. Please the Court, those are our submissions.

FRENCH CJ: Yes, thank you, Mr Mitchell. Yes, Mr Solicitor for Queensland.

MR SOFRONOFF: Your Honours, we adopt the oral submissions of our learned friends who appear for the Attorney-General for the Commonwealth and the Attorney-General for Western Australia and otherwise rely on our written submissions.

FRENCH CJ: Thank you, Mr Sofronoff. Solicitor for South Australia.

MR HINTON: If the Court pleases, we adopt the submissions of Queensland and in that regard, adopt the submissions of our learned friends for the Commonwealth and Western Australia, and in particular - - -

FRENCH CJ: Nested incorporation by references.

MR HINTON: If your Honour pleases. One reference that may assist your Honour Justice Hayne with respect to the question of reasons and looking at Justice Deane’s judgment is that part of the debate in that case concerned the question of whether or not there was an exception for special circumstances. You will see Justice Deane goes on at page 677 to deal with a judgment of Lord Denning in the Breen v Amalgamated Engineering Union Case as a question that he reserves for another day. Otherwise, he accepts the analysis of the Chief Justice at the bottom of page 676.

The Chief Justice also alludes to the possibility without deciding of a special circumstances exception, and your Honour will find that at 662. As I, my research, as perhaps flimsy as it may be at times, indicates that no one has taken up the notion of a special circumstances exception to date and, in

any event, as my learned friend the Solicitor-General for the Commonwealth said, it of course would be subject to any specific statutory indication to the contrary, and you have in 13(2) potentially. If the Court pleases.

FRENCH CJ: Thank you. Mr Hanks.

MR HANKS: If the Court pleases, we propose to disturb the happy unanimity on this side of the record by joining issue with our friend, Mr Gageler, as he has joined issue with us. Therefore, I will take a little more time than most of those who have appeared for the other State Attorneys.

GUMMOW J: Are you joining issue with New South Wales?

MR HANKS: Not on this - - -

GUMMOW J: They are the party, after all is said and done.

MR HANKS: I am not sure, your Honour, whether - - -

GUMMOW J: Brawls amongst interveners are diverting, but not necessarily dispositive of anything.

MR HANKS: That may be the case, your Honour; that may be the case. I cannot speak confidently that I am joining issue with New South Wales. But, as your Honours know, there is only one point on which we have sought to be heard and that is in relation to the particular functions under Part 2 of the New South Wales Act which are conferred, as we have submitted – and we have not heard anything to the contrary in the oral argument – on a judge of the Supreme Court of New South Wales as persona designata.

It is our submission that, by reason of the limited operation of the Kable principle and its constitutional foundation, the conferral of that function on a judge of the State Supreme Court in that personal capacity cannot raise the incompatibility arguments upon which Kable was founded and which have recently led to this Court’s judgment in Totani. That is what I want to deal with this afternoon.

The Kable principle, as we understand it – and we now submit to your Honours – is one that says that State legislation cannot confer a function on a State court as an institution where that function is incompatible with the court’s status as a recipient of the judicial power of the Commonwealth or would otherwise impair the integrity or the independence of the State court.

Your Honours will see the clearest statement of the principle, which is quite shortly put, in Kable 189 CLR at page 103 in the judgment of Justice Gaudron at about point 7 on the page. It is the last sentence in the second full paragraph on the page:

Once the notion that the Constitution permits of different grades or qualities of justice is rejected, the consideration that State courts have a role and existence transcending their status as State courts directs the conclusion that Ch III requires that the Parliaments of the States not legislate to confer powers on State courts - - -

GUMMOW J: This problem was not before the Court in Kable, Mr Hanks. You know as well as I do.

MR HANKS: No, it was not.

GUMMOW J: What the Solicitor-General for the Commonwealth says is that one looks more deeply to see that genus of which this is a species.

MR HANKS: I will see to persuade your Honour that the - - -

GUMMOW J: You say you do not.

MR HANKS: - - - underpinning principle in Kable does not go as far as our friend for the Commonwealth suggests, nor as far as the plaintiff in this case suggests. I appreciate that when your Honour said in the same case at page 128 at the top of that page that the:

institutional integrity of the State court structure [is demanded and] may not be undermined by the reposition in them of authorities and powers of the nature of those in the Act –

that was under consideration. I fully appreciate, your Honour, that this was not a persona designata type situation. It was the direct investiture in the State Supreme Court of particular functions and powers but, in our submission, that principle which is articulated in that very short proposition of your Honours is the sound principle and the one that derives support from the structure of the Commonwealth Constitution. Indeed, her Honour Justice Gaudron might have foreshadowed the debate in which we are now engaged when her Honour said at the bottom of page 103, and this is referring to the Boilermakers’ doctrine. I am reading, your Honours, from the third last line on 103:

prevents the Parliament from conferring functions on judges in their individual capacity if the functions are inconsistent with the exercise of judicial power in the sense explained in Grollo v Palmer.

Plainly her Honour is there talking of the Commonwealth Parliament. Her Honour then goes on to say:

The limitation on State legislative power is more closely confined and relates to powers or functions imposed on a State court, rather than its judges in their capacity as individuals –

Her Honour goes on to complete the - - -

GUMMOW J: Just looking at this matter of principle, in Love v Attorney-General(NSW) 169 CLR 307 at 322 I think I am right in saying that the Court noted that:

the exercise of the power –

of the State court under State legislation to issue interception warrants –

may disqualify a judge from sitting in a case in which evidence is sought to be given of a conversation intercepted pursuant to the warrant.

MR HANKS: What did their Honours have in mind when they made that proposition, if I might as pejoratively, and now attempt to answer?

GUMMOW J: Because a party might then not be able to move to disqualify the judge, the judge might have forgotten and the institutional integrity of the State court might be impaired.

MR HANKS: With respect, your Honour, the proposition - - -

GUMMOW J: If you want to get into that area, that is the area you are going to have to get into.

MR HANKS: I will move into that area but whether I will delay very long with Love v Attorney-General is another matter, your Honour. I had thought that that proposition was concerned with disqualification on the basis of apprehended bias rather than - - -

GUMMOW J: Exactly.

MR HANKS: Yes. That is not the principle, with respect, with which we are here dealing.

GUMMOW J: No, but the institutional integrity of the State court may be attacked in that way. There may be a case out there of real bias which cannot be ventilated - - -

MR HANKS: There may be, yes, and if there is, your Honour, there is a solution.

GUMMOW J: - - - because of the secretive nature of the anterior persona designata activity.

MR HANKS: Our submission, your Honour, would be - - -

GUMMOW J: If you want to assert an absolute rule that that is okay, go ahead.

MR HANKS: Thank you, your Honour. I think your Honour understands that that is what I am doing. My proposition was, your Honour, that there was a solution to the problem that your Honour has raised, which is disqualification of the judge from participation in that case.

GUMMOW J: The question is who is to disqualify the judge?

MR HANKS: The judge properly should recuse herself.

GUMMOW J: The judge may not remember.

MR HANKS: It should be drawn to the judge’s attention.

GUMMOW J: Upon what record?

MR HANKS: Well, on the record that the prosecution ought to be aware of, at least. Your Honour has raised a very difficult question about - - -

GUMMOW J: Well, so did you.

MR HANKS: - - - disqualification on the basis of apprehended bias, as your Honour fully appreciates. It is quite a controversial question as to how one achieves that disqualification, how forensically one can achieve it other than by inviting the judge to stand aside, but there would be opportunities presumably to apply to – if we are dealing let us say with a New South Wales judge there would be an opportunity to apply to the Court of Appeal for an order prohibiting the judge from proceeding with the matter, or ex post facto to appeal on the basis that the judge’s order was vitiated because of apprehended bias.

Can I go to the question of principle as to why we say this is the case, why our argument ought to be accepted, and that is that there is a key distinction between a Federal Court, on the one hand, and a State court on the other, and that distinction is drawn, as Justice Gaudron said in Kable, in the Constitution itself. If I could take your Honours back to Kable 189 CLR at the foot of page 101, where her Honour refers to a number of provisions within Chapter III and says:

it is correct to say, by reference to those provisions, that Ch III recognises that this Court and other federal courts are creatures of the Commonwealth and that State courts are the creatures of the States.

A little further down page 102, her Honour said one of the implications of the distinction is that it is for the States, not the Commonwealth, to make decisions about how to structure and organise State courts, and we are familiar with the aphorism, the Commonwealth will take the State courts as it finds them, although that is too much of an aphorism to be accurate.

I would at this point refer to an observation from Justice Heydon in Totani, and that is in paragraph 246 of Totani where your Honour Justice Heydon referred to the limitations “of the Kable doctrine and other constitutional implications affecting the States” which would be derived from “the lack of restrictions on State legislative power to be found in the express terms of the Constitution.” Now, apart from that distinction between federal courts and State courts we also draw attention to a distinction between the powers of the Commonwealth Parliament and the powers of State Parliaments.

It is well recognised, of course, that there is no separation of powers principle that operates within the State constitutional structures, whereas there is undoubtedly such a principle that affects the powers of the Commonwealth Parliament. In Totani, Justice Hayne in paragraph 221 drew attention to that obvious fact, where your Honour said:

it is also important to recognise that there can be no direct translation of what has been said about issues that arise directly under Ch III to the present case.

We would understand, your Honour, the reason for that was Totani was concerned with a limitation on State legislative power that does not follow from any separation of judicial and legislative functions under the Constitutions of the States. It follows – the limitation on the States, that is – follows from Chapter III establishing an integrated legal system with, at its apex, this Court exercising the judicial power of the Commonwealth.

GUMMOW J: Does the Victorian Charter apply to activities persona designata? Is that treated as governmental action to which the Charter applies? That could have an impact on all of this.

MR HANKS: I am just thinking of a practical example in which to explore that. Any of the presidential members of VCAT – the Victorian Civil and Administrative Tribunal – are functioning as persona designata and their decisions, I believe, are subject, that is their actions would be subject to Charter principles. So yes, the answer would be yes to Justice Gummow’s question.

Whether in every other situation that is the case, I am not confident, but certainly in that situation that is probably a sufficient answer. The application of the proposition that judges of federal courts when acting as persona designata or when vested with functions as persona designata cannot exercise functions that are incompatible with the separation of powers, is of course, as the judgments in Hilton v Wells and Grollo v Palmer make abundantly clear, it is based directly on the separation of powers constrained. It is based on the Boilermakers’ principle.

Your Honours will see, for example, in Hilton v Wells [1985] HCA 16; 157 CLR 57, but your Honours will see at the bottom of page 73 in the joint judgment of the Chief Justice and Justices Wilson and Dawson a clear statement of the principle and its derivation, and the reason why functions cast on judges that would:

prejudice their independence or to conflict with the proper performance of their judicial functions –

would be bad, would be found in –

the principle underlying the Boilermakers’ Case.

Justice Gummow quoted that passage in Grollo and your Honour quoted it at page 390, and the joint judgment in Grollo also quoted that passage at 364.

In the same case, that is in Hilton v Wells at page 81 about point 8 on the page, two members of the Court, Justice Mason and Justice Deane based a proposition that functions could not be vested in a judge’s persona designata where those functions were in some way incompatible with the proper role of the Court based on the Boilermakers’ Case. Justice Gummow, you quoted that passage also in Grollo at page 390. We say that this is precisely the point that is made in Wilson, that it is the Boilermakers’ principle that stops the Commonwealth Parliament calling on judges to undertake functions as persona designata where those functions are inconsistent with the proper performance by the court of which the judge is a member of the duties that involve exercising the judicial power of the Commonwealth. It is the Boilermakers’ principle in action. The Boilermakers’ principle does not apply - - -

FRENCH CJ: If essential characteristics of courts, including State courts, are independence, impartiality, openness, fairness and so forth, one can imagine the persona designata appointments of judges serving on such courts that might reflect upon and compromise one or more of those characteristics, can they not?

MR HANKS: That is an exercise that I could undertake as well. I could imagine that too, your Honour. But so far as the constitutional principle that underpins Kable is concerned, we say that is of no consequence because what has happened is that the judge has been taken out of the court and given a function which is quite independent from the court and that does not reflect in any constitutional sense on the capacity of the court to operate within the national, uniform, judicial system – or unified, I should say, not uniform, but unified judicial system.

GUMMOW J: The point the Chief Justice was taking up with you may be foreshadowed by Justices Mason and Deane in Hilton v Wells at the bottom of page 83 over to the top of 84 with the reference to Sir Owen Dixon’s disparaging of distinctions about differences. Now, at some stage excessive use of persona designata in State courts might attract the reasoning in that passage, might it not?

MR HANKS: It might, your Honour. At this stage I am not engaging in the game of horrible consequences or excessive exploitation. I am seeking to persuade the Court that there was a constitutional principle that underpins Kable. The constitutional principle does not extend to the investiture in State judges as persona designata of executive functions. The constitutional principle that underpins Hilton v Wells, Wilson and Grollo v Palmer, the articulations of the constraints on the Commonwealth to do a similar thing, does not extend to the States. I apprehend that there may be a way of merging those two principles, but to this point they have not been merged. That is why we make that principal submission.

As your Honours know, we have an alternative submission where we return to the happy fold of agreeing with our friends and, in particular, if we are wrong on that submission and if it is the fact that States are constrained in some way by, let us say, the Kable principle, because that is the shortest way to put it, from conferring functions on judges as persona designata where those functions violate the institutional integrity of their court, if that be the correct proposition, then we rely on what we put in writing on that alternative point in paragraphs 33 to 47 and we also adopt what the

Commonwealth has said about that alternative way of analysing the matter in paragraphs 13 to 24 of the Commonwealth’s written submissions. If the Court pleases, those are the submissions we make for the Attorney-General for Victoria.

FRENCH CJ: Thank you, Mr Hanks. Ms Brownhill.

MS BROWNHILL: If the Court please. First, I adopt the oral submissions of the Solicitor-General for South Australia and thereby everything incorporated by reference, and excluded. Secondly, and finally, in relation to the construction of section 19(1)(b) and its incorporation by section 14(3) might I just remind your Honours of the command identified by this Court in Residual Assco Group Limited v Spalvins [2000] HCA 33; 202 CLR 629 at paragraph 28 where Chief Justice Gleeson and Justices Gaudron, McHugh, Gummow, Hayne and Callinan said that:

legislation “must not be read in a spirit of mutilating narrowness”.

In my submission, that is what the plaintiff seeks to do by giving the words “sufficient grounds” in those provisions virtually no content. My submission is that if it is necessary to ensure their validity, then sections 19(1)(b) and 14(3) can, and should, be read in the broad way put by the defendant and the interveners, namely, that there is a broad and real discretion in the Court as to the making of control orders and interim control orders. Those are my submissions.

FRENCH CJ: Thank you, Ms Brownhill. Yes, Mr Robinson.

MR ROBINSON: I certainly do not wish to mutilate anything, your Honours. I will be brief. The first point I wish to address in reply, if I may, I certainly adopt the two sets of written submissions that we have put on in reply; one to the Commonwealth and one to the interveners. The first mission is the forever point. I have already taken your Honour to the provisions of the Act that my learned friend from New South Wales said that a control order is not forever, it only lasts three years. That is not my reading of it. I will take you to it briefly, if I may, and it goes like this. In the New South Wales Act, if one fronts up before a court under section 26 for being a member of a declared organisation associating with another member, you are guilty. If one looks at subsection (7):

For the purposes of this section - - -

KIEFEL J: I might be mistaken, but I thought New South Wales said the declaration lasts for three years.

MR ROBINSON: Yes, your Honour

KIEFEL J: I thought you were talking about a control order.

MR ROBINSON: I was, your Honour, but my learned friend said that because of the words in section 26(1) where they appear alone “declared organisation”, it then took your Honours to a defined term and I will take your Honours back to in a moment. In my submission, it does not operate in the way he said. He said that when a declared organisation is no longer declared after three years if it is not renewed, then the control order somehow falls away. We say it does not. It lasts forever. Under 26(7) the control order is conclusive evidence that a person is a controlled order of the particular declared organisation. That is one point.

I go back to 26(1), the first five or six words is a defined term, not the first part, not the second part, but the words “A controlled member of a declared organisation” is defined at 3(1). Admittedly, your Honours, it is certainly in my copy the words “controlled member” are highlighted only but the words “controlled member of a declared organisation” is the composite expression defined to mean a person who has a control order. Your Honours, in my submission, it lasts forever. It is not a point that is going to determine the case.

BELL J: What is defined is, firstly, a controlled member and, secondly, a declared organisation in section 3(1) surely?

MR ROBINSON: Yes, your Honour.

BELL J: An ingredient of an offence under 26(1) would be proof that a controlled member is a controlled member of a declared organisation defined consistently with the provisions of 3(1), surely?

MR ROBINSON: I do not accept that, your Honour. If one goes to the composite definition which says, if there is a controlled order, then you are the subject of these proceedings, in my submission.

BELL J: I understand.

MR ROBINSON: The only other submission in reply that I wish to make is much has been said about my learned friend for the Commonwealth’s excellent exposition of what would be sufficient grounds at paragraph 41 of the Commonwealth’s written submissions. Many others in the States and Territories have adopted that paragraph as being a shining light. Your Honours will recall earlier today I said to you that this paragraph did represent a shining light and that it should have been included in the legislation. It is not included in the legislation and your Honours would have to work very hard, in my respectful submission, so as to write it into

the legislation and give the controlled order provisions, not the interim control certificates but the control order provisions, some semblance of balance and fairness.

In my respectful submission your Honours do not have cause to give it that weight and the provision does not carry that weight, namely, the provision does not require the judge to look at the individual circumstances of the member, his or her criminal record or his or her likelihood of committing crimes in the future. It does not go that far, in my submission. One can only take a few words from the long title of an Act so far, even in the absence of an objects provision. Unless I can assist your Honours further, they are my submissions.

FRENCH CJ: Thank you, Mr Robinson. The Court will reserve its decision. The Court adjourns until 2.15 pm, Tuesday, 7 December 2010 in Canberra.

AT 4.17 PM THE MATTER WAS ADJOURNED