AVS Group of Companies Pty Limited & Anor v Commissioner of Police & Anor [2011] HCATrans 239 (2 September 2011)

Last Updated: 6 September 2011

[2011] HCATrans 239

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S82 of 2011

B e t w e e n -

AVS GROUP OF COMPANIES PTY LIMITED

First Applicant

PETER SLEIMAN

Second Applicant

and

COMMISSIONER OF POLICE

First Respondent

ATTORNEY GENERAL IN AND FOR THE STATE OF NEW SOUTH WALES

Second Respondent

Application for special leave to appeal

FRENCH CJ
CRENNAN J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 2 SEPTEMBER 2011, AT 12.05 PM

Copyright in the High Court of Australia

MR T.E.F. HUGHES, QC: If your Honours please, I appear with my learned friend, MR K.G. OLIVER, for the applicants. (instructed by AJL Legal)

MR M.G. SEXTON, SC, Solicitor-General for the State of New South Wales: If the Court pleases, I appear with my learned friend, MR T.M. LYNCH, for the respondents. (instructed by Crown Solicitor (NSW))

FRENCH CJ: Thank you.

MR HUGHES: Your Honour, what we have done in an endeavour to abbreviate the argument is to reduce the essence of what we want to say in support of the application in this form of fairly brief speaking notes which, with the leave of the Court, I will hand up, having given two copies to my learned friend.

FRENCH CJ: Yes, very well. Thank you.

MR HUGHES: We submit that this application raises several significant constitutional questions concerning the validity in their combined effect of sections 15(6), (7) and section 29(3) of the Security Industry Act, your Honours. Those subsections are set out at paragraphs 19 and 22 of the reasons of Acting Justice of Appeal Sackville at pages 55 and 57 of the application book. Of course, the ascertainment of the combined effect of those sections is a pre-condition to the assessment of their constitutional validity. The absolutely key provision is section 29(3).

We accept the judgment of the Court of Appeal as establishing that section 29(3)(a), read in conjunction with the subsections of section 15, confers on the Commissioner of Police an unreviewable discretion to decide whether or not to approve disclosure by the ADRT of the existence or content of “any criminal intelligence report or other criminal information” referred to in subsection 15(6). I will refer to that, if I may your Honours, as the protected evidence. We also accept that on the true construction of this group of sections they have no legal entitlement to insist on a response from the Commissioner to any request from them that he approve disclosure by the Tribunal in its reasons for judgment or otherwise howsoever - - -

CRENNAN J: The Tribunal has not yet made a final decision, has it?

MR HUGHES: No.

CRENNAN J: Therefore, there are no reasons which could be looked at at the time – at this time anyway – which might contain a reference to that material.

MR HUGHES: No, but if we have a seriously arguable case on the constitutional question, it will follow that in the course of a long hearing before the Tribunal, we have been subjected to a proceeding which is contrary to law because, as appears very clearly from the judgment of the Court of Appeal, there has been a considerable amount of evidence which the Commissioner has contended falls within the scope of section 29(3)(a) and we have not been privy to it. The next point is - - -

CRENNAN J: It is possible, is it not, in terms of the scheme for the Commissioner to give a permission in relation to the use of that material in the course of the Tribunal’s reasons?

MR HUGHES: Yes, he can but he has not and his decision to refuse approval means that much of the hearing, or a considerable amount of the hearing, has been the subject of evidence from the giving of which we have been excluded. That is our basic complaint, and if we have an arguable case on the constitutional point, this should not have happened, your Honour.

We say that the prohibition of disclosure is absolute, is intractable, absent the approval of the Commissioner, the Tribunal is prohibited from any disclosure whatsoever of the existence or content of protected evidence. It makes no difference that the disclosure is sought, or it would be ordered by the Court in the form of subpoena or an order to answer interrogatories or any other form of process, your Honours. To hold otherwise would be inconsistent with the reasoning of Acting Justice of Appeal Sackville at paragraph 201 of the application book.

His Honour held correctly that the Commissioner’s discretion to approve or to refuse approval of disclosure by the Tribunal is necessarily final and unreviewable. That is so because, for the court in a case where the existence of protected material has not been disclosed to an applicant for review, to require the Commissioner to account for the manner of his exercise of the discretion to refuse disclosure would necessarily cause the Commissioner to disclose the very thing, the disclosure of which subsection 3(a) of section 29 forbids.

Once the pervasiveness of the statutory prohibition of disclosure is accepted – and we say that is a reasonably arguable view of the subsection, 3(a) – there arise important questions of constitutional invalidity which are summarised as follows: (1) the repugnancy of this group of sections to the institutional integrity of the Supreme Court as a court exercising its constitutional mandate under Chapter III - an essential element of that mandate is the role of the Court in reviewing the proceedings of inferior courts and statutory tribunals for jurisdictional error.

FRENCH CJ: Well, this is really a Kirk point.

MR HUGHES: Yes, your Honour. Any legislation that denies or substantially impedes the performance of that role is invalid. The repugnancy, we submit, in the present case arises because the sections in their combined operation empower an officer of the Executive to determine that otherwise admissible evidence indicative of jurisdictional error – or that it is enough for us to say that may be indicative of jurisdictional error on the part of the Tribunal – be withheld from the cognisance of the Supreme Court, thereby frustrating the exercise by the Supreme Court of an essential function prescribed by Chapter III.

In this connection it is relevant, we submit, that the incorrect classification by the Tribunal, and consequent exclusion from disclosure of evidentiary material as a criminal intelligence report held in relation to the review applicant would give rise to jurisdictional error. That point is developed in our summary of argument, paragraph 13, your Honours at application book 149.

We go on to say that viewed from a slightly different perspective, the group of sections suffers from another constitutional defect in that they would empower the Commissioner by a refusal of approval to prevent effective review for jurisdictional error of a decision of the Tribunal revoking a licence on the ground of unfitness. That effect is achieved, or would be achieved, because the exercise by the Commissioner of his unreviewable discretion to refuse approval of disclosure of the protected evidence could result in the production to the Supreme Court in review proceedings based on jurisdictional error of a record that is false or misleading by reason of the exclusion from it of evidentiary material indicative of jurisdictional error.

Paragraphs 228 and 229, your Honours, of the reasons of Acting Justice of Appeal Sackville seek on two bases to meet an argument advanced on behalf of the applicants that their invocation of the Supreme Court’s jurisdiction to review a decision of the Tribunal on the ground of jurisdictional error would be an abuse of process in a case where the applicants did not know and therefore could not prove “what had occurred”.

The first basis adumbrated at paragraph 228 of the joint judgment is that the reasons given by the Tribunal may not, as a matter of reasonable inference, be the full reasons for a decision unfavourable to the review applicant. His Honour suggests as an example a case where “all the evidence referred to in the reasons supports the applicant’s case and no cogent reason is given for rejecting that evidence”.

In the case suggested by his Honour, however, we would submit, the possibility will equally exist that the Tribunal’s undisclosed reasons for rejecting evidence favourable to the applicant’s case may be entirely free from jurisdictional error. We say, however, jurisdictional error, your Honours, cannot be established, and consequently cannot be properly alleged by reference to a mere possibility that it occurred. A reviewing court is not, under our system of law, empowered to act of its own motion to seek out jurisdictional error that a party with standing to complain of that error has not been able to articulate. Unless the court, exercising a review jurisdiction on the ground of alleged jurisdictional error is able to identify such an error on an evidentiary basis put before it by the parties seeking review, the court has no basis to act.

CRENNAN J: Well, I think the respondents’ answer to these arguments is to be found on 159 of the application book, particularly in paragraph 3.2 about the midpoint of the page.

MR HUGHES: Yes, your Honour. The essential point we make, and it is a point of construction which we say leads to the constitutional point, is that this prohibition in 29(3) is pervasive and cannot be overcome – a pervasiveness cannot be overcome by procedural directions of any kind from the court. It is a pervasiveness that binds the court.

FRENCH CJ: The proposition that is put is that the prohibition in section 29(3) is related to the determination of “an application for a review of any decision”.

MR HUGHES: Yes.

FRENCH CJ: What is said of that in the respondent’s submissions at 3.6 is that:

the disclosure or production by the Tribunal to the Supreme Court in proceedings in that Court . . . is not something done by the Tribunal “[i]n determining an application for review...”

That is to say that the Supreme Court is not limited by that constraint in proceedings before the Supreme Court.

MR HUGHES: Well, that is a matter with which we have endeavoured to deal in our reply submissions. We say that the words “in the determination of an application for review” are words of wide application and there is - - -

FRENCH CJ: But if you are wrong and if properly construed, those words do not constrain the power of the Supreme Court to require - - -

MR HUGHES: The record.

FRENCH CJ: - - - the record and full reasons. There is no Kirk point, is there?

MR HUGHES: No, but, your Honour, the simple answer we make is that as a plain matter of construction it is seriously arguable that prohibition in section 29(3)(a) binds the court.

FRENCH CJ: We are in the familiar position here, Mr Hughes, that the applicant argues for the more draconian interpretation and the State argues for the more generous interpretation.

MR HUGHES: Yes, your Honour.

CRENNAN J: It rather points out why having a factual setting within which to determine the constitutional point would be of great assistance.

MR HUGHES: But we cannot have a factual setting, your Honour.

CRENNAN J: Well, ultimately there will be. Ultimately, there will be reasons and there may be an application for the Supreme Court to exercise its supervisory jurisdiction.

MR HUGHES: But the Tribunal in its reasons cannot refer to the secret evidence and we cannot get it. So we have no arguable basis on which to construct an application to the Supreme Court for judicial review. Unless the Supreme Court, your Honours, can give information to the applicant, production to the court will not assist the applicant for review to plead a case and we come back to the intractable content that we would submit of section 29(3)(a).

FRENCH CJ: Now, is there a statutory right of appeal to the Supreme Court from this decision?

MR HUGHES: Yes, there is.

FRENCH CJ: Under section 119 on question (4)?

MR HUGHES: Yes.

FRENCH CJ: And does that attract other general provisions of the Supreme Court Act, 75A and so forth?

MR HUGHES: In our submission, no. If section 29(3)(a) means what we say it means, there is no statutory provision which would enable us to get into the secret evidence, your Honour.

FRENCH CJ: Yes.

MR HUGHES: Whatever argument may be raised against the fundamental proposition that section 29(3)(a) is pervasive, the position would be, in our submission, that if the Court orders the Tribunal to give, for example, preliminary discovery of protected material to a potential applicant for judicial review, that applicant is met with a section 29(3)(a).

FRENCH CJ: Does this almost amount to an argument that, for constitutional reasons, you are entitled to reasons for decision of any administrative body, independent of what its statute says, because without reasons for decision you cannot access adequately the supervisory jurisdiction of the Supreme Court.

MR HUGHES: Our proposition, if your Honour pleases, does not need to be so wide.

FRENCH CJ: I am just wondering whether that is an implication of what you are really putting.

MR HUGHES: No, because in some cases statutory tribunals may abstain lawfully from giving reasons. But in this case, the Tribunal is bound to give reasons for its decision and if section 29(3)(a) has the pervasive range, for which we contend as a matter of construction, those reasons can never be disclosed to an applicant for review or an applicant for prerogative relief in the Supreme Court. So that, so far as an applicant in the Supreme Court for prerogative relief is concerned, the real reasons are closed from him.

We prepared a very brief note, your Honour, on the reliance by my learned friends on Public Service Board v Osmond. Can I hand that up? The common law principle, your Honours, that exempts an administrative authority from giving reasons for a decision cannot be invoked for the purpose of establishing that such an authority may validly give reasons that are false or misleading by concealment of a true basis for the decision. Osmond’s Case does not support the constitutional validity of legislation that is capable of operating so as to require such an authority to give false or misleading reasons for a decision that is subject to judicial review for jurisdictional error.

In order to be capable of exercising the judicial power of the Commonwealth a court must be and appear to be independent and impartial. This principle is infringed in the present case albeit by indirect means

because section 29(3) prevents the Tribunal from disclosing in its reasons for decision or otherwise the existence or content of any protected evidence which, if the subject of disclosure, might be apt to disclose jurisdictional error by the Tribunal.

Thus, we say, by indirect legislative means, the Supreme Court is subjected to a species of executive direction as to the manner of exercise of its jurisdiction to review the proceedings of this statutory tribunal for jurisdictional error. Gypsy Jokers, in this Court on which my learned friends rely, establishes this as a ground of invalidity. Of course, in Gypsy Jokers this Court construed the relevant legislation as not imposing an unreviewable discretion on the Commissioner of Police, but rather the discretion fell within the purview of the reviewing court’s jurisdiction and that saved the legislation. The relevant section, as your Honours will recall - - -

FRENCH CJ: And the answer in K-Generation also was a constructional answer, was it not?

MR HUGHES: Yes.

FRENCH CJ: All right.

MR HUGHES: Those are our submissions.

FRENCH CJ: Yes, thank you, Mr Hughes. We will not need to trouble you, Mr Solicitor.

This application concerns the construction of section 29(3) of the Security Industry Act 1997 (NSW). That provision relevantly prevents the Administrative Decisions Tribunal, in determining an application for review of a decision to revoke a licence granted under the Act, from disclosing “the existence or content of any criminal intelligence report or other criminal information referred to in section 15(6)” without the approval of the first respondent (the Commissioner).

The application for special leave seeks to agitate the question whether if section 29(3) operates in the future so as to deprive the Supreme Court of full reasons for the Tribunal’s decision, in circumstances where the Supreme Court is exercising supervisory jurisdiction, section 29(3) is repugnant to Chapter III of the Constitution. Since no reasons have yet been provided, the absence of a factual setting within which to determine the question in our opinion makes the application unsuitable for a grant of special leave. Special leave to appeal will be refused with costs.

AT 12.31 PM THE MATTER WAS CONCLUDED