Assistant Commissioner Michael James Condon v. Pompano Pty Ltd and Anor [2012] HCATrans 333 (5 December 2012)

Last Updated: 6 December 2012

[2012] HCATrans 333

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Brisbane No B59 of 2012

B e t w e e n -

ASSISTANT COMMISSIONER MICHAEL JAMES CONDON

Applicant

and

POMPANO PTY LTD
(ACN 010 634 689)

First Respondent

FINKS MOTORCYCLE CLUB, GOLD COAST CHAPTER

Second Respondent

FRENCH CJ
HAYNE J
CRENNAN J
KIEFEL J
BELL J
GAGELER J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 5 NOVEMBER 2012, AT 10.19 AM

(Continued from 4/12/12)

Copyright in the High Court of Australia

FRENCH CJ: Yes, Mr Solicitor

MR SOFRONOFF: Could I ask your Honours to go to K-Generation v Liquor Licensing Court [2009] HCA 4; (2009) 237 CLR 501, relevantly at 526 in the reasons of your Honour the Chief Justice, paragraphs 73, 74 and 75?

FRENCH CJ: Yes.

MR SOFRONOFF: And at page 542 in the reasons of the plurality at paragraph 147 and finally at page 577, the second bullet point on that page and the reasons of Justice Kirby, as we understand that decision, at the heart of it lies the view that the court took that the legislation in that case did not oblige the court to exclude a respondent from the hearing of some of the evidence but rather authorised the court to make an order with that effect if ultimately it was necessary. Hereto the court is not obliged to make the extreme order sought by the Commissioner.

Even if the court satisfied of the facts that would give rise to the discretion, the court can decline to make the order if it is not satisfied that it is appropriate to make the order. The discretion is not circumscribed by any particular factors. There is the factor in section 72(2) of course which is, in our respectful submission, central to the exercise of the discretion, but all factors can be considered.

For example, a court could decline to make the order at all or on the day that it is sought if limited disclosure to lawyers has not been considered or even could not have been considered because those lawyers have not been identified. That is to say, the court would in those circumstances – could properly take the view that until limited disclosure has been adequately considered or the absence of such consideration explained, it is premature to make the order.

Equally, there is nothing in the statute to abrogate the court’s general powers first to adjourn the hearing if it is premature in the circumstances or to set aside the order pursuant to the power to do so under the Uniform Civil Procedure Rules. That might be done even upon the application of the respondent’s lawyer in due course if that lawyer is able to contend knowing that an order declaring criminal intelligence has been made. That consideration has not been given yet to limited disclosure. On that footing, the court ought to consider that and if thought fit to set aside the order to allow limited disclosure of that kind to be made upon the undertaking not to share the material with the lawyer’s client.

Or, if circumstances have changed so that a contemplated application, as in this case, has come and gone and the Commissioner seeks to use the declared criminal intelligence – the evidence containing it – in another application, a court could require an assurance. Indeed, one would expect a court to demand an assurance that circumstances have not changed since the making of the order such that the order still reflects the intention of the court when the order was made in terms of the rule that I took your Honours to yesterday.

HAYNE J: Now, as a matter of practical reality, is not the court going to be called on to make a decision about the application for declaration of criminal intelligence before the issue of the substantive application because the making or non-making of that declaration will affect the way in which the application is framed – the substantive application is framed?

MR SOFRONOFF: It may well do so, your Honour. I would not go so far as to say “must do so” in every case but it may well do so because for the reason your Honour mentioned.

HAYNE J: Because a possible point of view about the Act is that the grounds on which a declaration is sought and the statement of the information supporting those grounds must, together, identify with detailed particularity, all of the Acts, facts, matters and circumstances which the applicant alleges should cause the court to be satisfied of the three matters that are specified in section 10(1). I had understood you not to dispute that that was an available interpretation of the Act. Correct me if I am wrong, I had understood you to go so far as to accept that that was the preferred interpretation.

MR SOFRONOFF: That the application should set out all those matters?

HAYNE J: Yes.

MR SOFRONOFF: Yes.

CRENNAN J: Section 67 supports that description of the correct approach by Justice Hayne.

MR SOFRONOFF: Yes.

FRENCH CJ: Mr Solicitor, in terms of the hypothesis you advance to the Court hearing an application for a criminal intelligence declaration and declining to grant it on the basis it is premature because there has been no exploration of possible limited disclosure to representatives of those likely to be affected by it, once the application has begun the information in question is information that has been the subject of a criminal intelligence application, is it not, for the purposes of section 82(1)(a), and do not nondisclosure rules apply to that?

MR SOFRONOFF: Yes, but nothing practically flows from that for one of two reasons. One is if a judge is pressed with an application by the Commissioner one would expect the judge to ask, “I am not inclined to make this order unless all avenues of limited disclosure have been explored. Have they?” And, if the answer is in the negative then the application would be adjourned and the Commissioner would have to deal with that issue as best he can by whatever means he has.

That would not require disclosure if the documents have been filed, it would require the Commissioner to take steps to consider whether it is apt to trust the lawyer known to be acting for the prospective respondent. Secondly, if the Commissioner is not prepared to do that then the application could well be dismissed and in those circumstances there is provision for the court to give the Commissioner an opportunity to withdraw the application - I just cannot put my finger on the section. So one of those two steps would ensue, but one would expect that somebody asking for an extreme order of the kind contemplated by this Act as a possibility would have exhausted, and can show that he has exhausted, all other possibilities.

FRENCH CJ: Would it be right to say, just moving forward one stage, that once you have had a declaration of criminal intelligence that the Commissioner has no flexibility in terms of possible limited disclosure to legal representatives for the purposes of a criminal organisation declaration application?

MR SOFRONOFF: No, not unless the order is revoked on his application, or unless circumstances change and the court has moved in another fashion. But the point we do wish to emphasise is this: whereas in the K-Generation legislation the Act gave a general power, or rather imposed a general obligation to take steps to ensure the confidentiality, here the Act confers a discretion upon a judge to make the extreme order if thought fit, but there is nothing whatsoever in the Act to alter the factors that an Australian judge could naturally be inclined to consider as needing to be addressed before such an extreme order is made, including what other possible forms of disclosure of a limited kind can be undertaken which would not cause harm or prejudice of the kind addressed by the Act, what steps have been taken to ensure that the fullest access to material can be gained by the prospective respondent before you ask for this order.

It is not enough to come to court and merely to prove that disclosure generally to respondent and lawyer would have that effect, could reasonably be expected to have that effect, and get the order ex debito justitiae. You have to show that the discretion ought to be exercised in your favour and, in our respectful submission, that could not be done without addressing issues that are natural to a court to consider.

HAYNE J: Mr Solicitor, assume a case where criminal intelligence concerns future conduct by the organisation in question.

MR SOFRONOFF: Yes.

HAYNE J: Assume further that an order is made – a criminal intelligence declaration is made. Given what you have accepted is the requirement of stating the grounds and information in a way that discloses all acts, et cetera, it may therefore be assumed that the Commissioner would have to state as part of the grounds and information that the Commissioner asserts that the organisation wishes to, is likely to – it may matter not which – engage in future conduct of the kind described.

The subject of the application therefore knows what case is sought to be made against him. It knows that it is alleged that they are proposing to engage in particular kinds of conduct. What happens when the president of the organisation and as many members as you care to imagine go into the box in response to the application and deny on their oath that they have any intention of the kind described? First, they cannot be challenged, I think, in the form we know that you have - - -

MR SOFRONOFF: Browne v Dunn.

HAYNE J: Yes, they cannot be Browne v Dunn-ed. What then does the judge write in his or her reasons?

MR SOFRONOFF: That is a problem for the Commissioner not for the respondent because - - -

HAYNE J: Well, it may be, but what does the judge decide and what does the judge write down in the reasons, assuming that the reasons can be complete and include full description of the criminal intelligence?

MR SOFRONOFF: The only reason I find it difficult to answer that question is that it is likely that in a case like the one your Honour is putting to me a judge would be unable to conclude properly adversely to the respondent, because one of the weaknesses in the Commissioner’s case in that event where the sole evidence in relation to future acts lies in material that cannot be put to the respondent’s witnesses or tested in any way at all, let us assume, means that a judge acting properly could not find adversely against the respondent and would write reasons to that effect.

HAYNE J: Even if the criminal intelligence is supplied by the undercover police officer who after five years of undercover work has infiltrated his or her way into the organisation and is thought for that reason to be intrinsically reliable?

MR SOFRONOFF: Your Honour is putting to me a hypothesis that you have a clear-cut piece of evidence pointing in one direction and a bare denial – that is all that can be offered – in the other direction.

HAYNE J: Exactly so.

MR SOFRONOFF: But what we do know is that, although there may be cases where one can confidently rely upon unexamined evidence, experience generally tells that clear-cut cases often have an answer. Your Honour knows the dicta I am referring to. So a judge, being apprised of that – and that is the point that we wish to address, that even upon the substantive application, the judge has not lost his or her general authority to apply the judicial method and to make the appropriate decision. Now, K Generation would have had to have been decided the other way if a consideration that that problem would appear before a judge were a vitiating factor because it could apply under the K Generation legislation.

We have here two safeguards. The first is the discretion to be exercised whether to make the confidentiality order at all, and that is a large discretion, in our submission. Secondly, having been made, in our respectful submission, the material is inherently weaker in the Commissioner’s hands and the more of it there is to rely upon, that is to say, the more the case is based upon it, the weaker will be the Commissioner’s case because of the reason that your Honour Justice Hayne just put to me.

But if it be the law that the problem thus presented to a judge hearing evidence of that character on each side vitiates legislation then, in our submission, Gypsy Jokers and K Generation would have to be overruled and the English case, Al Rawi, would be adopted and no law which permits secret evidence to be given under any circumstances could be valid. But that is, in our respectful submission, not the law and nobody sought to overrule K Generation or Gypsy Jokers. So the only question is whether in the context of the Act as a whole the tasks given to the court, albeit we admit some unfairness would be caused to a respondent, the task given to a judge and the limits imposed upon the judge have the effect of impugning the integrity of the Supreme Court as a State Supreme Court.

HAYNE J: What is the unfairness to the respondent? On the argument you have advanced, I would understand it to be that there is no unfairness because the sworn denial must always trump the criminal intelligence.

MR SOFRONOFF: Not “must always trump”, your Honour, no. We would contend that there would be circumstances in which whether it is future conduct or past conduct, the evidence presented by the respondent as a whole may not be sufficient to overcome the evidence contained in criminal intelligence. Otherwise, there would be no purpose in having the provisions at all.

So, in our respectful submission, the question is not whether there is unfairness to the respondent – or more properly put, mutually disadvantaged the respondent – but whether the process mandated by the Act which, we would submit, put discretion upon discretion and does not in any way trammel the scope of the judgment that a judge is called upon to make in every case, including taking into account, the inability of a respondent to answer some of the evidence but not the case. They can answer the case – they just cannot answer the evidence.

FRENCH CJ: What is the logic of the reasoning process that the judge has to adopt? Let us take a simple case. You have got a very reliable long-term undercover informant who says, as part of the criminal intelligence that is before the court, “I was present at a meeting of six people including the president in which they laid out a work programme for criminal activity for the next five years which involves x, y and z”.

Now, presumably, the president gets into the witness box – the president cannot be asked, “Were you present at a meeting at which” because that will obviously indicate that somebody was there who had. So the president might be asked, “Do you intend to engage” and deny that they intend to engage in any criminal activity in the foreseeable future. What is the reasoning process by which the judge deals with the relationship between or the weight to which an inference is to be drawn from the criminal intelligence on the one hand, and the president’s evidence on the other?

MR SOFRONOFF: That would raise the forensic task the counsel for the Commissioner must undertake. That is to say, in cross-examination of that witness, it would be necessary to cross-examine in such a way as to either elicit evidence which corroborates the occurrence of the meeting in a way that does not directly have the result of prejudicing those matters or, alternatively, raising denials in respect of it that are themselves, when measured against other evidence including criminal intelligence evidence, implausible – incredible.

That is a problem for counsel for the Commissioner because at the end of the day merely to submit, please accept the undercover officer’s evidence against the general denial of the president might, one would think, be insufficient to persuade a judge cautious of making findings that upon evidence that has not been tested.

FRENCH CJ: What would a judge be doing in dealing with that evidence? Would the judge be looking at considerations of fairness in forming findings or considerations? It cannot be a consideration of reliability, can it, because the criminal intelligence is highly reliable?

MR SOFRONOFF: It is highly reliable as far as it goes but, as we know, context is important to understand facts and if I were acting for the Commissioner in cross-examining I would seek to elicit from the witnesses such facts as I could, or such denials that I could then contend were false denials, in relation to matters on the periphery that could lend support to acceptance of the declared criminal intelligence evidence. If I fail in that, then a judge would be likely using reasoning – the reasoning which led to the decision in Browne v Dunn that the judge would be unprepared in the circumstances to be satisfied to the requisite degree, balance of probabilities, by Briginshaw, no doubt, to the requisite degree to find on that.

Now, one would expect that the Commissioner’s application would not be based upon that single instance but would be based upon - this is an organisation, members, so we are speaking in every case of a multiplicity of people and acts. So, it would not be fatal to the substantive application that one part of it is weak for the reason that we have been discussing now. So, what the issues that your Honours have put to me raise problems for the Commissioner which, if the Commissioner cannot overcome, will result in a judge’s disinclination to make orders for the reasons – for the very disinclination that I am sensing from your Honours at the task that one would be expecting a judge to undertake. It is a problem for the Commissioner. The Commissioner has the advantage of at least being able to use the evidence without fear of consequences, but there is a price to be paid and the price is that the evidence might not be worth very much as members of this Court pointed out in K-Generation.

We would wish to make the point that even if a judge concluded that disclosures of any kind would cause prejudiced of the kind defined in the Act, a judge might still, in the circumstances of the case, decline to declare criminal intelligence, leaving it to the Commissioner to decide whether to proceed openly, or on such evidence as he is prepared to lead openly, or not at all. In short, your Honours, the functions imposed upon a judge by this Act are the usual judicial functions.

A judge is asked to make an extreme order, is not required to make the order, is not required to give preference towards making an order, can, in any case, decline to make the order as an exercise of discretion having regard to the kinds of factors that your Honours have been putting to me, and having regard also to the problems that could be faced by the judge hearing the substantive application and the disinclination of the judge hearing the preliminary application to place himself or herself, if he or she is going to be hearing that application or a colleague, into the position.

But the Act contemplates that there may be cases in which evidence of that kind can properly be declared so that it is denied to the respondent with the consequence that a judge will have to face the problem of what to do with it. But unless, in our respectful submission, the process dictated by the Act is such as to impinge upon the integrity of the court, then the fact that it has that consequence, does not itself vitiate the Act any more than the Act in K-Generation did.

CRENNAN J: What if you describe that consequence as an impediment to providing a reasoned set of reasons? Perhaps you have answered it by saying well, it is all the Commissioner’s problem, but the difficulty for the judge is the judge has the knowledge and the access to the criminal intelligence.

MR SOFRONOFF: Yes.

CRENNAN J: The Commissioner’s counsel or the COPIM cannot cross-examine. The Commissioner’s counsel, on your account, can dance around it, as it were, but presumably cannot cross-examine on the nub or substance of the criminal intelligence. Does that have a deleterious impact in relation to the judge’s normal judicial task of reasoning to a result when you have a forensic contest presented by the evidence? So there is some evidence to which no one is making reference and there is other evidence given in the box and you have got a forensic contest between the two.

MR SOFRONOFF: It may not cause that problem, of course. In similar circumstances a judge considering a claim for legal professional privilege or public interest immunity will look at the documents, make a decision and, even if the judge is pressed to give reasons by the unsuccessful party, will give those reasons without reference to the content of the material that the judge alone and the claimant for privilege has seen. So that is not a unique problem faced. But secondly, if it is a problem then it would be a reason why a judge would decline to act upon the evidence. It might be a reason. It would be a factor to consider by the judge in declining to act upon the evidence so presented.

KIEFEL J: Your position is that the degree of difficulty created by the Act in the decision-making process for a judge cannot spell invalidity without the judge’s power or authority somehow being impinged upon by the legislation?

MR SOFRONOFF: Yes. A judge, under this Act, is not limited in the slightest degree from any orders that are appropriate to be made or declined to be made, any findings that are appropriate to be made or not to be made, for any reason that is proper in terms of judicial decision-making.

HAYNE J: Being hard is not being invalid.

MR SOFRONOFF: I am sorry?

HAYNE J: Being hard is not being invalid.

MR SOFRONOFF: Yes. Otherwise, your Honours, we are prepared to adopt our written submissions in relation to the other points that have been raised by our opponents.

FRENCH CJ: Just one: in terms of a declaration of a criminal organisation, obviously that is something that has legal consequences, but in terms of an immediate effect upon anybody, I think it would have an immediate effect upon anybody who was already the subject of a control order perhaps by virtue of being a control order sought in other proceedings, and that would be by virtue of section 19(2). That is the only immediate effect I can see in the Act. Is that right?

MR SOFRONOFF: Which was the section, your Honour?

FRENCH CJ: 19(2)(a), so it is a condition of a control order that you do not associate with any person who is a member of a criminal organisation. So if a new organisation is declared, that then immediately expands the potential liability of a person subject to a control order.

MR SOFRONOFF: Yes, although one would expect that the order made in respect of a person would be made in respect of named criminal organisations. The section does not say so, but it would be a vague sort of order that spoke generally of a criminal organisation in circumstances where a person might have no means of knowing that a declaration has been made.

FRENCH CJ: Okay. Thank you.

MR SOFRONOFF: Thank you, your Honour.

FRENCH CJ: Mr Solicitor-General for the Commonwealth.

MR GLEESON: Your Honours, we have provided an outline.

FRENCH CJ: Yes.

MR GLEESON: I would propose, if convenient, to start first with some general principles and leave the matters of pure construction of the Act to the end. There are a few points I wanted to say on that. I did wish to address orally question 6 as that has not been addressed orally by Mr Sofronoff. Your Honours, our starting point which we trust is not controversial is that the types of matters in which a Parliament may vest a court with jurisdiction and changeover time as the needs of society change and as that occurs the procedures of the courts may to some degree modify or take a new shape and that process of procedural development is under the control of the courts and is a proper matter for Parliament to shape by the law.

What this case concerns is the limits which Chapter III imposes upon that ability of Parliament from time to time as it defines a new matter to bring with that matter particular procedural modifications to that which courts may do in other cases. If I could ask your Honours to go to our written submissions at paragraph 5, we had attempted there to set down eight propositions at a level of generality which govern this type of case. Perhaps the last four of those propositions get closer to the pointy end of the case. Particularly, at paragraph 5.8 we would submit that one way in which to define the outer limits of a Parliament’s power in these types of matters is that the legislation should not go so far in its modification of the court’s traditional procedures and remove their flexibility to such a degree that the court is compelled not to act fairly in the face of relevant circumstances.

Now, one issue with this matter is the challenge is taken at the outset at a time when the matter has progressed only a little distance and no unfairness of any sort has yet arisen and many of the Court’s questions have concerned how might the Act play out in the course of different situations. Our proposition would be that unless it can be seen that this Act has modified the processes to this extent that the court would be compelled to act unfairly in the face of relevant circumstances then there is no question of validity, and as a general proposition we would support what Mr Sofronoff put this morning as to the scope of the discretion available at two stages, firstly, under section 72 and secondly, under section 10. Your Honours, from there in our outline - - -

HAYNE J: Can I try to put the proposition in as tendentious a form as I can? I think the essence of the argument against you is that the Act requires the court to take to account untested and untestable material.

MR GLEESON: The short answer to that is the Act does not require that by force of Parliament. What the Act does in a two-stage process is firstly vest a jurisdiction in a court to exercise a judicial discretion as to whether material which will be untested should be available for potential admission in the main hearing. It is only if that discretion under section 72 is exercised – and that must be done judicially – that the material then becomes available for admission in the substantive hearing. Then the second step is that in the substantive hearing ample powers remain to the court to determine whether the material should be even admitted in the first place, and that is a matter we have taken up in our written submissions, that there are requirements of admissibility which still need to be met, and secondly, whether it should be given any real weight.

Your Honours, just to give some practical focus to that, if your Honours were considering the process that might occur under sections 78 and 80 in the special closed hearing and were looking at the matters practically, we would submit that this might not be an unusual way in which the case would play out. First of all, one might expect that the Commissioner’s case which did not depend on criminal intelligence would be led first and would be tested in the usual fashion. One might expect that at the end of the open material, the Commissioner would need to indicate that the Commissioner was moving to the tender of criminal intelligence and that - - -

HAYNE J: You might want to start with your weak points, Mr Gleeson. Why would the Commissioner not want to open his case high, wide and handsome by saying, look, we have got absolutely rock solid criminal intelligence that these people are – here insert list of epithets.

MR GLEESON: That is perfectly open to a Commissioner. The submission I am making is, whether it occurs at the beginning, the end or the middle, let me come directly to what happens in that process of the case. My submission is that there needs to be a tender of the material. It has to be received into evidence. It does not have simply a status. At the stage of admission the material ought to be identified, at least in a general way, and the respondent ought to be able to take any general objection to its admissibility. We have indicated in our written submissions that where the material is hearsay there is a general discretion to exclude it under the Evidence Act (Qld) on a ground of inexpediency and that would be an available matter to be raised. Assuming the court moves into the closed session where it is considering the material, to use the language of section - - -

FRENCH CJ: A special closed session because the application itself is closed according to section 108.

MR GLEESON: Yes, your Honour, in a special closed session where the court is considering the material, the types of matters that would be relevant we submit would include these: firstly, does the material have credibility? A second matter is whether the material can be adequately tested by the presence of the COPIM without the respondent, and that is a matter which could be considered by the court at that stage.

A third matter might be how central is the material to the case the Commissioner seeks to make. A fourth matter taking up some questions yesterday might be, given the nature of the material, have the grounds which frame the application adequately apprised the respondent of the true gist of the case now that one sees the role that the criminal intelligence is playing in it. There are at least two and perhaps three other matters that might be considered.

A fifth matter is whether the material is now stale. That is, whether or not withstanding its declared character, on examination the criminal investigation that it related to is over and there is no further basis for it to have that status. A sixth matter which the Court raised yesterday is whether it emerges that the fairness assessment that was done under section 72 remains relevant. In other words, given the way the material is now to be deployed in the hearing, was that fairness assessment one that is now relevant and operative.

GAGELER J: And, if the answer is no?

MR GLEESON: If the answer is “no”, these are then the options available to the Court. The first option might be to reject it on the ground of admissibility and not allow it into the hearing at all.

GAGELER J: On what basis?

MR GLEESON: On the basis to the extent that it is hearsay of section 98 of the Evidence Act – the inexpediency discretion we have referred to.

GAGELER J: Well, Mr Sofronoff says it will only ever be direct evidence under section 107, subsection (1).

MR GLEESON: The effect of subsection (1) is that what your affidavit may include is that which the witness could have given by testimonial evidence. The testimonial evidence may have been hearsay evidence, for example, the production of a document. If it was a document, it would then need to meet the exceptions to the hearsay rule and under sections 92 to 98 of the Evidence Act (Qld) that is where the inexpediency discretion may come in. I would also refer your Honour to subsection (2) which allows the section 61 affidavit to come in which is hearsay in terms.

GAGELER J: Well, again, Mr Sofronoff says that that only goes to the factors in section 59, not to the substance of the criminal intelligence.

MR GLEESON: Yes. But, if your Honour takes the simplest example of a document that is being tendered as criminal intelligence evidence of a bank record, it will be hearsay and it will, therefore, be subject to that inexpediency discretion. That is the first answer to your Honour’s question. The second answer is, if the court concludes that the original fairness assessment was no longer operative, the court would be entitled to conclude that no weight would be placed on that material in the further hearing.

Indeed, in my submission, the court would be entitled at the end of the special closed hearing to say, we have had a hearing, I have looked at some material, I have determined that that material is not material upon which I will be placing reliance in the hearing of the matter and I will now resume the open session. Alternatively, the court might include that assessment.

FRENCH CJ: The less closed session.

MR GLEESON: The less closed session, yes, your Honour, thank you for reminding me of that. Alternatively, that might be included in the final reasons for judgment, namely, there was a special closed session, material was led. I was unsatisfied that the fairness considerations sufficiently justified me in placing weight on that material. Accordingly, I placed no weight on it. I now proceed to give you my judgment on the open material.

Coming back to one of Justice Crennan’s questions about a reasoned set of reasons, in some cases that might be the reasoned set of reasons, no reliance placed on it for reasons I identify. In the harder case where some reliance has been placed on it, the reasons would need to attempt to explain as best they can how it fitted into the overall conclusory process. In some cases, that might be I was satisfied of the jurisdictional facts and I was satisfied of the discretion and the additional material confirmed the conclusion to which I came.

In the more difficult case it might be in order to come to my conclusion I did need to find fact number one, and to find fact number one the only material I had on fact number one was criminal intelligence. I then took into account the fact that it was tested only by the COPIM. I then compared it with what material was against it which may be no material or may be in the harder case still a denial, and here is the reasoned basis upon which accepting the limitations of testing I came to my conclusion. So that is the second possibility answering his Honour Justice Gageler that might occur, namely it is given no weight.

A third possibility that might come out of that special closed session as I have indicated is in terms of fairness, if it now emerges that the central case is not adequately captured in the grounds, the court would and could require an amendment to those grounds to make sure the case is understood and therefore capable of being met. If the applicant Commissioner was not prepared to amend, that may lead to the application being dismissed.

A fourth possibility is that the outcome of that special closed hearing might lead to it becoming apparent to the Commissioner, as Mr Sofronoff mentioned, that it is necessary under section to see a revocation of the criminal intelligence declaration, perhaps to narrow it or to deal with the problem in some other fashion. So, the central point which we would submit would be necessary and sufficient to solve validity questions is that the twofold discretion, one under section 72 where a fairness assessment is made, and secondly, the discretion under section 10 where the fairness considerations can be revisited in the more specific context then pertaining is sufficient to indicate that the court is not being asked to behave incompatibly with its essential processes. Your Honours, in our outline, could I come - - -

HAYNE J: Can I just understand that last point better than I do? What is the point about section 10 that you are making?

MR GLEESON: Firstly, there is a real discretion in section 10. You must be satisfied both of the jurisdictional facts and that it is appropriate to make the order. In coming to a satisfaction on both those matters, the court will give anxious consideration to the outcome of the special closed hearing and what that has said for the matters I have mentioned, including whether it is safe to rely upon this information tested only by the COPIM.

GAGELER J: Does the proposition come down to saying that a discretion in making a final order is sufficient to overcome a want of procedural fairness in the process?

MR GLEESON: Not that narrowly, your Honour, because I have sought to put that the discretion is certainly in the final order and that is sufficient to meet the issue, but I am also seeking - - -

GAGELER J: So the judge would be saying, “I have been engaged in a process which I consider to be unfair”.

MR GLEESON: No. What I sought to put by the analysis of section 78 and 80 is that, through a proper conduct of that special closed hearing, the judge is upholding a fair process. The judge is saying, “This is my chance to allow the Commissioner to put forward the material for all of the considerations that are relevant to it to be thoroughly looked at, with the assistance of the COPIM, and at the end of that process I’m really making an assessment whether it is fair for this proceeding to continue through to its conclusion, with that material being tested only by the COPIM”.

If the judge makes the assessment, whether it appears in the final reasons – it could be announced, as I say, at the end of the special closed hearing – makes the assessment that it is fair, having regard to those matters, the process that continues is a fair process. The judge’s decision will be a reasoned one and the appeal process will be available to check whether that was subject to any relevant error.

HAYNE J: I am not sure that that is entirely consistent with the extrinsic material which seems, on its face, I think, to acknowledge that there is a departure from procedural fairness.

MR GLEESON: Your Honours, it may depend how one identifies the interests involved. In paragraph 11 of our note we sought to identify that there are at least four different interests in the administration of justice which are involved in this type of case and, to some extent, intention. Mr Walker’s case has rested strongly and correctly on the second and third interests which are undoubted interests. If one understands procedural fairness as the second interest, as a general proposition, the administration of justice proceeds on the basis that parties should have a real chance to know and meet the case being made against them. We accept that.

We are in a situation where there are, as I say, at least these four interests involved. The two pointing in the opposite direction are the first interest, which is that a party should have the maximum ability to bring before the court relevant material, and the fourth interest, that the judicial process itself should not lead to disclosure where that disclosure causes public harm. The manner in which we would put the matter of principle in paragraph 12 is that, in terms of validity under Chapter III, there are not absolute rules that the procedures of the court must favour one interest over another or that the court, rather than the legislature, must always strike the ultimate balance or retain every available tool to do so, and critically perhaps, that the law of public interest immunity is not the only means of solving these problems.

What is essentially occurring here is that public interest immunity solves the tension in one way. The public interest in disclosures not causing harm is given preference over the first interest which is relevant evidence may be withheld from the court. This is a different procedure whereby the balance of interests is different. The public interest in disclosures not causing harm is maintained by this scheme. The interest in relevant evidence being available is advanced and the cost or the potential cost is in relation to what I will call the participation interest, the ability to know the case against you and to meet it.

Our submission would be that, there being no absolute rules, what one would look at as per paragraph 13 are the series of factors, not simply as per Justice Gageler’s question, if it is all bad along the way can it be cured by a good discretion at the end? But looking at a series of factors at the front end, have the grounds been adequately disclosed so that you know the case as a whole? The parties seem agreed that that occurs under this scheme. Are there admissibility questions including relevant discretions which govern whether the material is to be received before the court?

HAYNE J: On that question of reception, would a judge be entitled to take account of again the extrinsic material which suggests that the use of criminal intelligence material was “a central feature of the scheme”? I refer in that respect to the second reading speech, and I think that you will find also in the explanatory notes to the Bill like statements.

MR GLEESON: The answer is yes.

HAYNE J: It seemed to be a bold decision then to say because this is sought to be declared criminal intelligence that is reason enough to exclude it, when that is apparently a central purpose of the legislative scheme.

MR GLEESON: Your Honours, I would not put a hard submission that the mere fact that is has been declared criminal intelligence is a reason to exclude it. I was seeking to put a lesser submission that its character would still have to be looked at and if it was hearsay material, for instance, the ordinary rules of the Evidence Act would at least create the available discretion to exclude it. Whether that would be true beyond the hearsay situation we have adverted to in our submissions in footnote 33 depending upon whether one regards it as a civil proceeding or perhaps a sui generis proceeding.

FRENCH CJ: There is no dispute, is there, that the rules of evidence generally apply to an application for a criminal organisation order?

MR GLEESON: They apply, except to the extent modified by the Act and the UCPR applies except to the extent modified by the Act. But, coming to that range of factors, Justice Gageler put to me, “Can you save a bad unfair process merely by saying I have a discretion at the end of the day?” What the court will be doing will be considering in the reasons what reliance is appropriate to place on that information in the light of the manner in which the application is played out. The answer may be none, it may be a little, it may be a lot. The reasons will need to deal with how the court has come to that conclusion and how the court has – and this where the special counsel comes in – how the court has or has not obtain real assistance from the special counsel.

BELL J: Just dealing with the COPIM for the moment, do you have any submission as to what is to be drawn from the provisions of section 89 to the extent that the court has a discretion to exclude the COPIM from the hearing while a respondent or a legal representative of the respondent is present?

MR GLEESON: We cannot offer a sensible reason for that, your Honour. If “exclude” read “excused” it would make more sense but it says “exclude”. There is a tension between that section and section 86 because if the basic function of the COPIM is to monitor the application and to test and make submissions about the appropriateness and the validity of it that would mean that ordinarily you would expect the COPIM to be able to be there for as much of the application as the COPIM desired, and so we could only see that section 89(4) is to deal with exceptional circumstances which have not clearly been identified because it creates a tension with the COPIM’s basic function which is to monitor and monitor the lot.

As to the other section the court raised, subsection (3) which also looks a little odd, we can offer a slight suggestion on that that it appears to be a bright line rule, perhaps a stark one but a bright line rule that because the COPIM is the person who has had access to the special closed hearing any submissions that COPIM makes may be informed by that material and therefore as a bright line rule do not speak while the respondent is there.

On the COPIM, our submission would be to accept part of what Mr Walker put that the COPIM is not to be treated as a proxy advocate for the respondent. The COPIM is a statutory office holder who must faithfully carry out the functions in section 86. The COPIM is meant to be the true amicus and the COPIM will put it to the court as straight as he or she can that, “I do need to test this matter. I do need to cross-examine” or, “I have nothing that I need to put to challenge that part of the case. The submissions might, at the end of the day be this material is credible. I’ve seen nothing to suggest that the earlier criminal intelligence declaration was wrongly made or was now stale and it is safe for you, judge, to go ahead and act upon it.” It may be different.

Your Honours asked a question about appropriateness and validity. In section 86(c), appropriateness would, presumably, cover the whole of the strength of the application, including the jurisdictional facts and the discretion. “Validity” is an interesting word. That may go to mandatory requirements for the application, such as under section 8 itself, that the grounds must be adequately disclosed. So that if the COPIM detected in the special closed hearing that the real case was travelling beyond the notified grounds that would be a proper matter for the COPIM to raise clearly with the Court. A similar proposition would be made in respect to section 16 when it comes to control orders.

Your Honours, in that list of factors we then also mentioned effective appeal processes. The Queensland Supreme Court has a trial division and a Court of Appeal. Together that constitutes the court. The appeal rights are expressly noted for the substantive applications by reason of section 124. We have also put a construction submission in our written submissions, at paragraphs 42 to 44, that there would be an ability to appeal the criminal intelligence declaration itself. That is, once it has become relevant to a respondent that that declaration really is affecting your rights. We would also submit that in the appeal the appeal court can have access to the criminal intelligence.

Your Honour the Chief Justice asked yesterday, Mr Walker, is this judicial power or executive power and does it matter? We would submit that at each stage it is judicial power, that the declarations are orders of the Supreme Court and they are ultimately amenable to review by this Court by leave, and if a matter came to this Court by leave whether from the criminal intelligence declaration or from the other declarations the Court’s powers and procedures – that is this Court’s – would in no way be affected by this Act, of course, and the Court would not be compelled to act in closed court or otherwise to restrict its procedures. Your Honours, could I then just make the oral submission concerning question 6 which - - -

FRENCH CJ: I am pleased to hear that because we might have had to make this a closed hearing given it is a removed application.

MR GLEESON: Yes. Well, every time Mr Walker said yesterday, this is a removed application, I felt nervous, but our submission is that it is a course of – that the Act does not on its proper construction purport to apply to this Court and if it did it would not have any effect of that character. In relation to question 6, we have dealt with that at paragraphs 66 and following. While it appears to be a humble challenge tucked down the back of the respondent’s argument it is, of course, significant. If it were correct, it would probably bring down the entire Act because section 10(1)(c) is an integral element of determining whether something is a criminal organisation, which in turn is an integral element of most of the orders found elsewhere in the Act.

We would submit that there is no difficulty in applying the reasoning of this Court in cases such as M v M and Fardon to this type of case. The fact that it is a risk arising from an organisation and not an individual merely indicates the nature of the task involved. We have set out in paragraph 74 what Justice Wheeler said in DPP v Williams and we would commend that, appropriately applied to this sort of case, as the type of analysis that the Court will engage in.

We offer in paragraph 75 a submission as to how the unacceptability criterion is applied in this sort of case. We would note that section 10(1)(c) builds off the previous two paragraphs. You only get to it if you have already satisfied paragraph (b), and you therefore must have found that members of the organisation associate for the purpose of serious crime and that will provide the touchstone, or the starting point, for analysing the risk that this association, organised in that fashion, poses for the public in the future.

Finally, your Honours, in relation to the overseas jurisprudence, we would submit that Al Rawi does not decide this case, given that it was dealing with the court’s inherent jurisdiction and left aside the question of statute, which is a matter of constitutional arrangement. One other case from the United Kingdom where there is a statute involved is Tariq v Home Office. Could I provide copies of that decision? The relevance of Tariq is in the context of the European convention. It was grappling with two questions a little similar to the present.

One was whether there could be a closed hearing in which material of a secrecy character would not be revealed to the respondent. Your Honours will see from the headnote that the first finding was that in this particular case the closed material procedure did not offend the European law and then secondly, and closer to some of the Court’s questions yesterday, the intermediate court had required, as it were, particulars to be given of the gist of the secret material on the ground that that was necessary for fairness.

The court set aside that order on the basis that it was not necessary in order to secure fairness that those particulars be given where they would be disclosing the substance of the confidential material, and the critical passage there that may be of assistance to the Court is between paragraphs 63 and 69. Your Honours might note in 67, given a different statutory framework, at the foot of page 499, what was the submission of the home office, namely that the in-road would only:

be contemplated or permitted by a court if satisfied, after inspection and full consideration of the relevant material as well as after hearing the submissions of the special advocate, that it is essential in the particular case; and this should be kept under review throughout the proceedings.

The construction submissions I have sought to put about the breadth of the discretion under section 72 and section 10, I would submit, allow our Court

to engage in this task of satisfaction that the variation to procedure has not produced such an unfairness that the Court’s processes has been brought into disrepute. May it please your Honours.

FRENCH CJ: Thank you, Mr Solicitor, Solicitor-General for New South Wales.

MR SEXTON: If the Court pleases, Dr Renwick will make our oral submissions.

MR RENWICK: Your Honours, in supporting the validity of the Queensland Act, may we make these short points by reference to the oral hand-up. Our fundamental point is that neither the test in section 10(1)(c) nor the impugned criminal intelligence provisions infringe the Kable principle because each separately is known to the common law and all cumulatively remain valid for that reason, and also because of the role of the monitor and the discretions given to or retained by the court. That is, the impugned Act, read with the Electric Light Company principle.

Before I take you to a couple of cases to make good those propositions, may I first make two short points? First, by reference to what Mr Walker said yesterday in Al Rawi, despite the centrality to the common law tradition of open justice and procedural fairness there are, to adapt what Lord Dyson said at paragraph 63 and I quote:

certain classes of case where a departure from the normal rule may be justified for special reasons in the interests of justice.

To put it another way, the common law recognises different aspects of the public interest and can adapt its procedures accordingly. His Lordship mentioned wardship and certain intellectual property proceedings but there are, no doubt, other examples of special reasons which might lead to departure from the normal principles of open court, disclosure of evidence and, indeed, alteration of the content of procedural fairness, even to nothingness.

Equally, and at least for that reason because of our proposition that if the common law permits it, there will not be a Kable contravention, we say State Parliaments have a wide constitutional capacity. If your Honours have our submissions, on the second last page we have extracted some well-known statements from Justice McHugh in Fardon and the italicised words, I will let your Honours read, but they refer to alterations of the burden of proof, rules of evidence and the point made in the next sentence.

Can I quickly then take you back to paragraph 34 of the submissions where we note there about halfway down that of course discretions can also be altered permissibly, Nicholas v The Queen being a paradigm example, but there are other examples of statutes including Commonwealth statutes which say greater or greatest weight must be given to this or that.

Can I move then quickly to the section 10(1)(c) challenge of Mr Walker? We adopt what Mr Gleeson says relying on Thomas and also Fardon. But can I very briefly – I do not need to take you to it – refer you to Church of Scientology v Woodward? If you go back to paragraph 8 of our submissions, your Honours will see there that the difficult questions in that case of whether intelligence is relevant to security and whether a communication of intelligence is for purposes relevant to security were held by a majority of this Court to be susceptible of judicial determination, Sir Anthony Mason saying at paragraph – well, posing the test saying that:

Intelligence is relevant to security if it can reasonably be considered to have a real connexion with that topic, judged in the light of what is known to ASIO at the relevant time. This is a test which the courts are quite capable of applying.

HAYNE J: What page?

MR RENWICK: I beg your pardon, your Honour, page 61, first full paragraph. So we would say that the sorts of tests approved of by this Court in Fardon and Thomas have a long genealogy. Turning then to the final point which is the challenges to the various criminal intelligence provisions, the fundamental proposition which I do not think is entirely accepted by Mr Walker, is that every one of the impugned provisions is known to the common law.

Can I just take the informer example for a minute on which some time understandably was taken? Can I take your Honours very quickly to R v Smith 86 A Crim R 308, a decision of the Court of Criminal Appeal in New South Wales, a joint judgment in a court presided over by Chief Justice Gleeson? Before I come to that can I note of course, your Honours, the traditional view is that public interest immunity when it appears or when it is raised cannot be waived.

If you wanted a citation for that, Sir Nigel Bowen said that in Young v Quin (1985) 4 FCR 483 at 486. This was a case, your Honours, where the names of informers were revealed before a magistrate. The question was what could the Court of Criminal Appeal do about it? At the bottom of page 310, the second-last paragraph, there is reference to confidential affidavits and your Honours appreciate that is a very standard way of public interest immunity proceeding. It so happens that the last sentence at the end of the page may be an answer to Justice Crennan’s question about reasons dealing with criminal intelligence. The court said:

Since it is impossible to deal with the arguments on this aspect of the case openly without subverting the immunity which is the basis of the entire proceedings, we shall give our reasons on this point in a confidential appendix to this judgment, publication of which is prohibited in the manner and to the extent there stated.

So we would say that the impugned Act says nothing at all about reasons. Following Wainohu reasons must, of course, be given but we would say what the court in Smith dealt with there, applying the electric light principle, would equally be available here. There can be a confidential appendix which is, at least, available to the appellate court. I appreciate that is not perfect but we say it would be available. The next point about Smith – and I can deal with it very briefly - at page 311 is at paragraph numbered 1, about three lines down. The court talks about:

The private interest in confidentiality yields to the public interest in the due administration of justice.

That is normally, but then it refers to a more important public interest. In other words, the court is there accepting the public interest may have a number of aspects, not one of which need necessarily predominate. There is reference then to a:

practice, which has long since hardened into a rule of law, that the identity of police informers will be protected from disclosure –

At paragraph 3, their Honours say:

There is powerful authority for the proposition that, at common law, when a claim for immunity is made in respect of the identity of a police informer, the court . . . does not undertake for itself, afresh, a balancing exercise, weigh one interest against another. The balance has already been struck; it falls on the side of non-disclosure except where, at a criminal trial, disclosure could help show that the accused was not guilty.

Now, in our submission, the Act here, at this stage, is plainly civil. What it means is at common law, although as a matter of form in a PII case, the respondent may be able to be present. As a matter of substance, there is nothing they can say or do in a civil case to persuade the judge because the balance has been set and it will be set often on material the respondent will never see. So that is what we say in relation to that. We say that, in fact, the Act contains features which ameliorate the provision which obtains at common law because of the monitors’ powers, albeit, with their truncated role in relation to informers, but there are, nevertheless, some protections there in relation to informers.

Very briefly, can I add a fifth possibility to Mr Gleeson’s answers to Justice Gageler and it is this? If, at the point of making the section 10 declaration, the judge did not receive a satisfactory answer to the question is the criminal intelligence material – is the basis for the criminal intelligence application still up to date – it would be open to the judge, in our submission, to say, “Unless, Commissioner, you are prepared to put on an affidavit stating that it is still up to date and share with the COPIM the material underpinning that and if it is changed, to go back and apply for a revocation and an amended certificate, then that may be a reason – may be a decisive reason – for refusing ultimate relief”.

Can I turn then to the final matter and it is this and take your Honours to the case of Nicopoulos [2004] NSWSC 562; 148 A Crim R 74 – a decision of Justice Smart. We say this is an important case because it is a real example of where public interest immunity type material is received by the court and utilised by it, in this case, at least for the purpose of showing that natural justice was reduced to nothingness. What had happened in this case is Mr Nicopoulos had had his prison visiting rights revoked. He sought judicial review of that.

If you go to the last paragraph of the judgment at page 116 you will see that the Commissioner conceded that if the contents of the rules of fairness had not been reduced to virtually nothing and judicial review applied then the plaintiff was entitled to succeed. So the case was run on an “all or nothing” basis - that they had to show that procedural fairness was reduced to nothing.

Can I just take you to a couple of quick references, your Honours, and then sit down? At paragraph 60 there is a reference to the confidential affidavits. At the top of page 87, still in paragraph 60, his Honour notes the Commissioner’s stance that if the court was not prepared to receive the affidavits on a confidential basis, he would withdraw them. At paragraph 61 he says, “I have read them and no summary of the contents has been provided”. In paragraph 62, “I was very troubled by this”.

Over at paragraph 70 his Honour concludes, “The Commissioner correctly contends” and so on. But it was not possible in that case for a meaningful summary to be given without destroying the secrecy of the information. In paragraph 71 his Honour acknowledges what a serious step it is that he is taking. Over at 81 he talks about great caution and reasons being compelling and at 82 there is a reference to Justice Lockhart’s decision in Amer. That was a case sufficiently set out here in Nicopoulos where, on a judicial review challenge to a visa refusal on security grounds, Justice Lockhart was prepared to receive the material but not show them to the respondent. At the end of the quote on page 91, Justice Lockhart says:

There is no perfect solution to a problem such as has arisen here. For the Court not to have inspected the documents would have placed the applicants in an invidious position. At least they have the comfort of the fact that a judge has inspected them –

Going on then to paragraph 83, Justice Smart refers to the tension and to the considerable difficulties and refers to some of the matters at the end that Justice Hayne has been adverting to this morning. Then over at 92 he concludes that, in the unusual circumstances of the case, the evidence should not be given to the plaintiff. At 99 he says, despite that, they should be taken into account and he notes there why it would be not appropriate to give them, even on a limited basis, to the Commissioner. He refers at the end of the paragraph to counsel being embarrassed by such knowledge and not being able to tell his client or his instructing solicitor and experiencing difficulty in framing his submissions.

At paragraph 100 he refers to some well-known statements in this Court in Kioa and Johns and later cases, in my submission, in this Court are to similar effect, that in certain circumstances procedural fairness can be reduced to nothing and that is the conclusion he reaches at paragraph 103. What we get from Nicopoulos, if it is right, your Honours, is that there is no repugnancy in a fundamental degree with the judicial process to proceeding in a case in this way.

We note what Mr Sofronoff said yesterday, that if there were a case where it is only criminal intelligence which were to be relied on that might be a reason for the judge to refuse to make the ultimate declaration under section 10. Normally, one would have thought, it would be a subset of the material relied on – it may be a small subset – but we say - - -

FRENCH CJ: Why would he refuse in that case?

MR RENWICK: I thought, and I do not want to put words in Mr Sofronoff’s mouth, it was said that if, for example, the only material which is being relied on – and, as he said this morning, that is somewhat unlikely when you are dealing with a group of people – was, say, in former material, and that could not be tested in any way then consistently I think with what has been said on our side of the Bar table, that might be a reason for - - -

FRENCH CJ: What is the reasoning process? It is unfair; it is unreliable?

MR RENWICK: It could be both. It could be unreliability; it could be unfairness. Of course, that can be dealt with at each stage of the discretion, the initial declaration of criminal intelligence, the final declaration. We do say, therefore, in summary, these things are rare but real creatures. Therefore, there is not a Kable breach, but when you bear in mind the discretions and the significant role of the monitor, this Act falls on the right side of validity.

GAGELER J: In an appeal from an exercise of discretion under section 10 would House v The King apply?

MR RENWICK: Yes, your Honour. Unless I can assist your Honours further?

FRENCH CJ: Thank you, Dr Renwick. The Solicitor-General for the Northern Territory.

MR GRANT: Your Honours, we have nothing further to say in relation to questions 6 and 7 of the special case than is set out in our written submissions. We do wish to make a number of short points in relation to questions 1 to 5. In our submission, the imposition of restrictions on the usual rules of procedural fairness will only be repugnant to the judicial process in a manner that infringes the Kable principle where those restrictions or limitations deprive the court of the power to avoid practical injustice.

Your Honours, that occurs, in our submission, where there is a compulsion on the court by the legislation to adopt procedures which preclude the court affording practical justice, to put it the other way. In relation to that issue of compulsion, Mr Sofronoff has taken your Honours to a number of passages in Gypsy Jokers. If I could, to complete that process, refer your Honours to a number of passages from South Australia v Totani [2010] HCA 39; (2010) 242 CLR 1.

No, I am sorry, your Honours, it is Gypsy Jokers to which I want to refer your Honours. That is Gypsy Jokers Motorcycle Club v Commissioner of Police [2008] HCA 4; (2008) 234 CLR 532. The relevant passage from the reasons of Justices Gummow, Hayne, Heydon and Kiefel appears at paragraph 36 on page 559, dealing particularly at that second point with the issue of compulsion or dictation. That is Gypsy Jokers at paragraph 36.

HAYNE J: The challenge that is made here is of a different kind.

MR GRANT: It is, your Honour. The question applying there was whether or not the Court was required to adopt steps and what steps they might require.

HAYNE J: Was the Court acting at the dictation of the Executive, not the question asserted here. The question is does the denial of procedural fairness – well, is there a denial of procedural fairness, if there is, does that matter?

MR GRANT: Your Honours, as we understand the case that is put by the respondents, this criminal intelligence may ultimately be used to found orders bearing on the liberty of a person, involving findings of criminal conduct; that is clearly a denial of procedural fairness, and on the respondent’s submission, repugnant to the judicial process. Your Honours, our submission is that there will only be the requisite degree of repugnancy where those restrictions deprive the Court of its power to avoid injustice. For the reasons that have been put by various of the counsel for Queensland and the interveners, the Court is not deprived of the power to afford fairness, ultimately, because of the discretions that inhere in the Court under the legislation.

Your Honours, at paragraph 7 of our outline of oral argument we set out the matters that we say go to establishing that the Court is not deprived of that power. The matters we identify there are in very similar terms to the matters that are identified by the other interveners in their outline of oral argument, but when one takes all of those matters into consideration, such denial of procedural fairness, or to put it another way, such restriction on the ordinary content of the rules of procedural fairness as is effected by this legislation is not of a degree that triggers or enlivens the operation of the Kable principle because of those matters.

Your Honours, just concluding the process in relation to Gypsy Jokers and the issue of compulsion and how it is that compulsion removes from a court the power to avoid practical injustice. In the reasons of Justice Crennan, there is also consideration given to that issue of compulsion and how it is that discretion obviates any finding of invalidity, and particularly, your Honours, at paragraph 174.

Might we say in respect of the reasons there, your Honours, that the criminal intelligence provisions have no operation, and unless and until the court has come to the conclusion in the exercise of its judicial discretion not only that the definition in section 59 is satisfied but also that it is appropriate having regard to the broader circumstances of the case to make the declaration.

Moving on in the reasons of Justice Crennan in Gypsy Jokers, paragraphs 179 to 181, your Honour makes the observation that:

In ruling on a claim for public interest immunity . . . a court may resolve a claim finally without one of the parties being shown certain material relied on –

We accept, of course, the difference between the public interest immunity process and the process here in that in the former process the material is excluded and in the current process it is taken into account, but still the parallel is there to be made. Then over the page at paragraphs 183 down to 185 where your Honour Justice Crennan deals particularly with the issue of reasons and the difficulties that present:

where confidential material is part of the material before a court –

and informs the court’s judgment, your Honour makes the observation, a very practical observation, that the:

judge’s reasons can be formulated in general terms so as to “convey an adequate account of the litigation and the reasons underlying the orders”.

Then, finally, in your Honour’s reasons at paragraphs 190 and 191 your Honour deals with the issue of “safeguards which would obviate any” vitiating effect that the modification to the rules of procedural fairness might otherwise have, if we go back again to those features of the legislation that we have identified at paragraph 7 of our outline of oral argument.

Just one brief constructional point in relation to the operation of the Act, your Honours. If I could take you first to section 8 of the Act which is the provision stipulating the matters which an application must state. It is an application:

for a declaration that a particular organisation . . . is a criminal organisation.

Your Honours, those requirements include at subsection (3) that:

The application must be accompanied by any affidavit the commissioner intends to rely on at the hearing of the application.

If your Honours then go forward to section 76(3), your Honours see there that there is a provision in circumstances where, in a substantive application, the Commissioner is going to rely on declared criminal intelligence. The Commissioner is required to file an affidavit complying with sections 64(4) to 64(10). They are, of course, your Honours, the safeguards referred to by Mr Walker which provide some facility by which the reliability of an informant’s information may be tested. So full criminal history, information about professional misconduct, inducements or awards and so forth, descriptions of convictions or charges.

If your Honours then turn to the next page, section 77(1), one sees that if any documents containing declared criminal intelligence are received in the context of a substantive application, which would include the affidavits required to be filed by the Commissioner under section 8 and required to be filed by the Commissioner under section 76(3), if any of those documents contain declared criminal intelligence, they are sealed and stored.

Your Honours, it will be the case, we would submit, in most situations, that the affidavit that is filed under section 76(3), in the context of a section 10 declaration, will not be declared criminal intelligence. So the material is available unless and until there is a criminal intelligence declaration to the respondents to that application in order to test the reliability of the information that has been given by the informant, or at least the reliability of the informant.

Your Honours, so far as we can see, there is nothing in section 82(1)(b), which is the criminal procedure in relation to protection from unlawful disclosure, that would preclude that result. All 82(1)(b) would do in the circumstances is preclude the respondent from disclosing information mentioned in section 64(4). So, your Honours, there is a facility in the context of a criminal organisation application – in the context of a substantive application – for at least some testing of information from informants.

Could we then deal with two final matters, your Honours? The first is that it is possible to overstate the practical effect and operation of a criminal intelligence declaration. In other contexts it is quite usual for a claim to be made on one or more of the grounds that are roughly described in section 59 – that is, the disclosure information might disclose police information, gathering and surveillance techniques or disclose the identity of an informant or subject somebody to the risk of physical harm.

HAYNE J: The first of those examples is not captured by 59(1). Section 59(1) is related only to - - -

MR GRANT: Prejudicing criminal investigations.

HAYNE J: No, actual information relating to actual or suspected criminal activity. That is the hook on which the rest of it hangs.

MR GRANT: Your Honour, that makes it an even narrower net than the general public interest immunity net. The point we seek to make is that these sorts of arguments are quite frequently had in the context of subpoenas. A subpoena will issue to the Commissioner of Police for all information in relation to the investigation of a particular crime or a particular individual or a charge that has been made. As part of that process there are often times claims made for public interest immunity, but those claims do not result in the withholding of all relevant information within the Commissioner’s possession. The practical experience is that the material is redacted in selected parts to address the public interest immunity concerns and the balance of the document is disclosed. Your Honours will have all seen documents where there are names, dates or times blacked out, but the balance of the material is produced to the parties to the proceedings.

Now, your Honours, in the context of a substantive application, it is conceivable – I will go back a step. In the context of an application for a criminal intelligence declaration, it is quite conceivable that the court might make the declaration and in its manifestation it involves the sort of redaction that I have just described, which may have a very different result in terms of unfairness than working on the assumption that all of the material put up by the Commissioner will be the subject of a declaration and disclosure will be refused.

Moving forward a step, your Honours, in the context of a substantive application, there is nothing in the Act which would preclude a respondent from issuing a subpoena to the Commissioner seeking the production of all materials in the Commissioner’s possession that might be relevant to the application. That would cast the net, one assumes, much wider than any material that has been subject to a criminal intelligence declaration on the Commissioner’s previous application.

FRENCH CJ: Would the Commissioner have a duty of disclosure, in any event, under the Uniform Civil Rules?

MR GRANT: In our submission, yes, your Honour, and under the principle referred to by Justice Hayne yesterday, the Edison v Bullock principle. But, yes, the Commissioner would. The Commissioner would be entitled in that context to exclude anything that has specifically been the subject of a criminal intelligence declaration, but in respect of the balance of the material would be obliged, if there was to be any objection to production, to make an application for public interest immunity – an order that there is public interest immunity. Again, the same process I have described previously, your Honours, would be undertaken by the court. The material as redacted would be produced to the parties and that may form some basis upon which a respondent to an application could test the validity of the Commissioner’s case and it would also give the court, potentially, an

opportunity to make some assessment of whether the criminal intelligence declaration should properly continue to lie.

Your Honours, the final matter is this. This legislation, unlike the criticism levelled in Totani at the legislation there under consideration, does not create the inaccurate impression that the court had turned its mind to questions of criminal conduct when it had not. Under this legislation, the court is instrumentally involved in determining issues of criminal activity and conduct, albeit in a civil context. Your Honours, we say there is nothing remarkable about a court making findings of criminal conduct outside of the criminal trial process. That is a defining feature of civil assets forfeiture legislation, for example.

It is also unremarkable, your Honours, that findings of criminal conduct might be made in circumstances where a person affected by the finding does not have access to material which would meet the description of criminal intelligence in section 59 of the Act. That is a common feature of the criminal process in circumstances where a claim is made for public interest immunity and upheld. A person may be subject to a finding of criminal guilt in circumstances where there is material relevant to that issue that has been withheld from that person. If it please the Court, they are the Territory’s submissions.

FRENCH CJ: Thank you, Mr Solicitor. The Solicitor-General for South Australia.

MR HINTON: If the Court pleases. Your Honour Justice Gageler asked my learned friend, Mr Gleeson, a question along the lines of: is a discretion sufficient to overcome a reduction in procedural fairness? In the context of this case, the proposition we put in answer to that question is set out at paragraph 3 of our outline of oral submissions.

HAYNE J: Is it necessary to go back to a logically prior point, which is why is the want of procedural fairness occasioned? That is, I would have thought, identified, relevantly, by section 59 of the Act. Any want of procedural fairness is constituted by the keeping from the party affected of criminal intelligence of a particular kind – namely, that which is declared. But, step 1, what is criminal intelligence? It has as its basic characteristic information relating to actual or suspected criminal activity. Pause there. Information relating to actual criminal activity is, I would have thought, a matter particularly germane to the section 10 inquiries. Information relating to suspected criminal activity would, presumably, be particularly germane to paragraph (c) – future risk. But then you have to look at what it is that qualifies that information as criminal intelligence. Reading up the list: threat to life or safety. The second one: keep the identity of an informant secret – classic public interest immunity. The first one: prejudice a criminal investigation, presumably, a continuing criminal investigation. Is not the question then whether the want of procedural fairness inflicted by the Act can permissibly be balanced, as it has by the legislature, against threats to life and limb, protection of informants and protection of continuing criminal investigations? Is that not where the question starts?

MR HINTON: With respect, we put the question or frame the question in the context of the Kable principle and the legislative restriction on the power – sorry, on the restriction, the constitutional restriction on the legislative power of the States to vest certain functions in courts of the States or the Supreme Courts of the States. To that extent, if one starts from the premise that to require a court to act unfairly breaches the Kable doctrine, then one has to look at exactly what the court is required to do in the exercise or performance of the function given to it.

HAYNE J: Yes, but you have got to look at more than how, you have got to look at when. What I am suggesting to you is that a useful starting point is when you have got to act in this way. You have got to act in this way if there is a threat to life or limb. That is one case. Not the only case. At least there is an evident argument that preventing threats to life or limb is something that is at least a permissible consideration. So it goes. You make your argument, Mr Solicitor, I have interrupted you far too much.

MR HINTON: When is a relevant question when one comes to consider the range of powers available to the court to ameliorate, in our submission, potential unfairness. One must look at the whole gambit of the operation of the statute and, at the same time as doing so, look at the full range of powers available to the court to ameliorate the reduction in the content of procedural unfairness. We put it in terms of ameliorate, not eradicate. There are questions of degree involved here. We frame it again in terms of the Kable principle - - -

FRENCH CJ: We are not looking at procedural fairness in general, we are looking at procedural fairness in the context of this statute and its objects, are we not?

MR HINTON: Yes, your Honour, and in particular we are looking at the disclosure of the evidence in support of the application under section 10 or section 16. What we are looking at in particular is the non-disclosure of the entire case for the Commissioner. We have, then, a reduction of procedural fairness to the extent that there is not known to the respondent the entire case – the evidence supporting the entire case, I should say – that has to be answered.

The question, in our submission, that goes to validity is whether or not the full range of powers given to the court taking into account the safeguards that your Honours have already been taken to in the statute are such that the reduction in procedural fairness does not have the consequence of the Supreme Court of Queensland acts in a manner substantially inconsistent or incompatible with its continuing subsistence as a court of the State.

In our submission, for the reasons already advanced by the other interveners and the respondent, having regard to the factors we set out on page 2, the full range of powers available to the Supreme Court of Queensland including its inherent powers, including those to be drawn from the rules, including those permissible within the application of the statute are such that the reduction in the content of procedural fairness is sufficiently ameliorated, or can be sufficiently ameliorated, such we are not involved with the question of invalidity.

We embrace the submissions made by others that in a given case there could be unfairness which if the Act had the consequence of inevitably giving rise to then there is the power in the court - the discretions have been referred to in particular, we would highlight the inherent power to stay proceedings - there is the power in the court to prevent its processes being abused in that by virtue of the conduct of the particular case it is oppressive, it is unfair, the court ceases to answer the defining characteristics of a court and in those circumstances stays the matter.

FRENCH CJ: I do not want to trivialise your argument but would your argument be any different if the definition of criminal intelligence where any information that is likely to embarrass the Commissioner for Police?

MR HINTON: Yes. It would not be put as confidently it is whispered to me.

HAYNE J: That is a good start, Mr Solicitor.

MR HINTON: That is a difficult question to answer insofar as what is hypothesised. With respect, it does not have the content that goes with it that allows you to determine what the court is being asked to do in the - is it considering embarrassment to the Commissioner in the course of considering, for example, a disciplinary matter in which case that factor may be relevant, that factor may in no way distort the court in the exercise of judicial power but, equally, in a context such as a disciplinary context, again my submission would be the same, that the powers available to the court under the Act inherently, and drawn elsewhere, that allow it to protect its own processes are such that invalidity of the Act is not the outcome. If the Act can operate in that context then it is not invalid because it can operate in a context where the institutional integrity of the court is maintained and can be assured by the court.

FRENCH CJ: Does it reduce to this? That statutory incursions upon procedural fairness in a court proceedings may be saved from invalidity under the Kable principle and its development if the Parliament leaves the court sufficient room to mitigate practical unfairness in particular cases?

MR HINTON: Yes, and an example of that is K-Generation where there was the power, the discretion, the full range of powers left in the court – with the Liquor Licensing Court – to determine how it should approach the question of maintaining confidentiality, so the court itself had the power to control unfairness, to control the full effect of the reduction of procedural fairness. If the Court pleases.

FRENCH CJ: Thank you, Mr Solicitor. Solicitor-General for Victoria.

MR McLEISH: If the Court pleases, I am going to confine my submissions also to the criminal intelligence provisions. Perhaps first if I could take up the points just raised by your Honour the Chief Justice and Justice Hayne. We would characterise the Act not as mandating any departure from principles of procedural fairness and then supplying the court with remedies for that departure but as enabling the court to mould its procedures so as to achieve fairness in a different way. So the departures from ordinary procedures cannot be characterised as a want of procedural fairness taken alone. One must look at the statute overall and the powers of the court in order to decide whether procedural fairness is ensured by the statute. In particular, the ability of the court to act on confidential evidence is, as I will be submitting, itself subject to protections which I would submit are designed to enable the court to ensure that in acting in that way it does not deny procedural fairness.

This case is somewhat set apart from more recent Kable cases insofar as the powers are conferred on the court itself and of course Kable preserves the courts of the States as institutions with certain essential characteristics of independence and impartiality. It is those very characteristics that might make State courts attractive to Parliaments for the exercise of new statutory powers and functions. In other words, Parliaments of the States might well confer powers and functions on State courts precisely because they wish to ensure that those functions will be performed and the powers will be exercised in a manner that is independent, impartial and judicial. Those are the words of Chief Justice Gleeson in Fardon [2004] HCA 46; 223 CLR 575 at 592 at paragraph 20. Put differently, Parliaments might legitimately decide that the court is the best institution to trust with the powers and functions that it has created. We would refer also to Justice McHugh in Fardon at paragraph 44 and the other references in paragraph 1 of our written outline.

So the question becomes whether in this case the Queensland Parliament has, in enacting the Act, acted to ensure that the powers will be exercised independently, impartially and judicially, or whether it is done otherwise and thereby damage the integrity of the Supreme Court. Our submission is that the starting point is self-evidently to construe the Act but by reference to the fact that it is a court that will exercise the powers and functions. In paragraph 2 of our written synopsis we have set out the familiar authorities, starting with the Electric Light v Power Supply Case. The one of those I wanted to take the Court to briefly is Mansfield v Director of Public Prosecutions (Western Australia) [2006] HCA 38; (2006) 226 CLR 486.

This was a case about the powers of the court under the Criminal Property Confiscation Act (2000) of Western Australia. In particular, the court’s power to make a freezing order for property where the director advised the court that an application for a criminal benefits declaration was likely to be made within 21 days. The particular question was whether the court had power to require the director to give an undertaking for damages in relation to that application for a freezing order. At paragraphs 7 and following, the court set out the principle in Electric Light v Power Supply and went on at paragraph 10 to quote, with approval, observations of Justice Gaudron in Knight v FP Special Assets Ltd. This is on page 492 of the report. I will not read the passage but draw your Honours’ attention, in particular, to the last five lines:

The necessity for the power to be exercised judicially tends in favour of the most liberal construction, for it denies the validity of considerations which might limit a grant of power to some different body, including, for example, that the power might be exercised arbitrarily or capriciously or to work oppression or abuse.

That passage is referred to again later in the reasons at paragraphs 24, 25 and 29 and formed the basis for the court rejecting an argument that the explication of the court’s powers in the Act operated to exclude powers not mentioned – in particular, the power to seek an undertaking for damages and, also, to reject any implication that there was no power to require such an undertaking from the fact that the previous Act had contained an express power and the present Act did not.

In other words, the presumption that applies is that all the powers of the court – the normal powers, the usual incidents of the court – will apply when it exercises the powers under this Act. And, it was held in International Finance Trust as we noted at paragraph 3 of the written outline – in particular, at paragraph 79 – that express words or reasonably plain intendment are required to displace that presumption. The effect of this, it is submitted, is that when legislation confers new powers and functions on a State court, it is to be construed so that those powers and functions can be exercised and performed in a judicial matter, consistently with the ability of State Parliaments to confer such powers and functions on their courts. This finds support in section 101 of the present Act, insofar as it applies the rules except where the contrary otherwise appears in the Act.

What this Act contains, as we note in paragraph 5 of the written outline, are various departures from the court’s usual processes. Those departures are authorised in order to accommodate the interests that are identified in section 59 of the Act, to which your Honour Justice Hayne has recently drawn attention. The important point is that, in enabling the court to accommodate those interests, the Act also leaves the court able to ensure that justice is done, including that procedural fairness is afforded while those interests are met. I do not want to duplicate what has been said by others before we have set out a number of those matters in paragraph 5.

GAGELER J: Could I just ask you: above the last dot point in paragraph 5, is the proposition that the Supreme Court of Queensland retains an inherent power to dissolve an ex parte order made under section 72 of this Act in circumstances where the foundation for that order no longer exists?

MR McLEISH: Yes.

GAGELER J: On whose application?

MR McLEISH: On anybody’s application, your Honour. I need to say more about that because that relates to section 73 and 74 of the Act. Firstly, sections 73 and 74 would only displace an inherent power if that was clearly their effect. The expression “clearest language” is used in International Finance Trust at paragraph 134. It is submitted that what sections 73 and 74 are referring to is the situation when the criminal intelligence declaration has been made on an ex parte basis in a special closed court and is known only to the persons involved in that procedure. What section 74 envisages is the Commissioner being one of the parties involved in that procedure seeking the revocation of the declaration.

It is important that the procedure in section 74 is itself ex parte and that is clear from section 74(5). Section 74 is not addressing the question whether or not the ex parte declaration can be set aside by various means at a later stage when the matter is inter partes. The only effect, it is submitted, of section 74 is that, while the matter remains on an ex parte basis, the Commissioner can, for reasons which have already been canvassed, seek to have that declaration revoked.

Even if that were not so, the wording of section 73, it is submitted, is not sufficiently clear to be read as if it said the court may not otherwise set aside or revoke, discharge, recall – whatever language is used – a criminal intelligence declaration. Too much is sought to be derived, it is submitted, by our learned friends from the words of section 73(2). In other words:

remains in force until the declaration is revoked.

That provision, it is submitted, presupposes a valid criminal intelligence declaration and addresses the period for which it is in force. It says nothing as to the power of the court to step in and dissolve an ex parte order, so that is probably - - -

GAGELER J: Would that power of dissolution apply in circumstances where in a substantive proceeding the balancing exercise that had been engaged in in section 72(2) was shown by the actual circumstances of the case to be incorrect?

MR McLEISH: Yes it would, your Honour. We base those submissions on the observations of the joint judgment in dissent in International Finance but not on the principles, more on the application as we apprehend it. We have referred to paragraphs 130, 131 at page 376, 377 to 378 at paragraph 134 and, in particular in that last-mentioned paragraph their Honours say:

A person affected by an order, but as to the making of which the person has not been heard, may move for reconsideration of the order either on the material before the judge at the time of making the order or on that material supplemented by further material.

It is that paragraph which also uses the test of the clearest language for an act to displace that power of the court. The difference between the majority and minority in International Finance was of course as to whether or not there was such language in the statute in that case. As far as section 72 goes, we would also remind the Court that the question of fairness is expressly one to be weighed in the balance under section 72(2).

That is another reason not to characterise the making of a criminal intelligence declaration as necessarily being a departure from procedural fairness of itself. It is more consistent with the court moulding the procedures with fairness to the respondent in mind than with an a priori notion of procedural unfairness occasioned by the making of such an order.

We have referred further below to K-Generation and the court being at large in deciding what weight to attach to declared criminal intelligence. That is, of course, not going directly to the question of procedural fairness but the possibility of evidence of this kind being given little or no weight as a result of not being tested was mentioned in several of the judgments in K-Generation as we have mentioned there.

BELL J: In the case of a determination where there is an identified respondent – this is for the purpose of your submission respecting section 72(2) – is it the role of the COPIM in the procedure that you say, together with the direction in sub (2) that does not deprive the proceeding of fairness in the sense of according procedural fairness to an identified respondent?

MR McLEISH: The way section 72 works, it not only enables the potential unfairness to a respondent, and that includes an actual or possible respondent as your Honour knows from subsection (7), but as has been submitted, the court has the discretion which enables it to decide whether or not to make the declaration in the first place, and one would imagine that questions of fairness will loom large both in the balancing required by section 72(2) and also in the exercise of the discretion.

BELL J: The purpose of the scheme contemplates taking into account the objects in section 60, the making of such a declaration. I think you commenced your submissions with the contention that the ability of the court to act on confidential evidence, in the scheme of this Act, is structured so as to not trench on procedural fairness.

MR McLEISH: We acknowledge it is a departure from the usual procedures of courts. The question – our submission is that by the other powers the court has and the way in which its power to actually make a criminal declaration was framed in the first place, procedural fairness is still able to be afforded - - -

BELL J: It is that aspect of the submission that I have difficulty grasping.

MR McLEISH: - - - in a different way and on a case by case basis.

BELL J: How is procedural fairness accorded in a circumstance where one has an identified respondent?

MR McLEISH: In this case plainly not by the respondent seeing the particular evidence, but - - -

BELL J: What freight are you giving to procedural fairness?

MR McLEISH: I am seeking to rely on it as an overarching concept that is capable of being given effect in different ways. What this Act permits a court to do – does not require the court to do but permits a court to do – is to have regard to criminal intelligence information, having had regard to

whether the matters in section 60 outweigh any unfairness to a respondent. There is the procedure for the COPIM. The respondent has been given notice of the grounds of the application and for the various matters that have been taken into account.

BELL J: What role do you see the COPIM playing?

MR McLEISH: The COPIM has the ability to call witnesses, but the testing of the application and whether the application ought to be made are substantial matters. We accept the COPIM does not act on instructions or act as the representative of the respondent’s lawyer. Perhaps the best analogy is that that the Commonwealth draws of the COPIM as a true amicus of the court.

I am not sure if I have answered your Honour’s question, but we submit that the question of procedural fairness needs to be looked at overall by the manner in which the court proceeds and whether the court retains the usual incidence of its jurisdiction which enables it to avoid being used as an instrument of unfairness. We submit that, for the reasons we have given, that is the case. If the Court pleases.

FRENCH CJ: Thank you, Mr Solicitor. Mr Mitchell.

MR MITCHELL: May it please the Court. Subject to two matters, we are content to rely on our written submissions, supplemented by what we have put in our written outline of oral submissions. The first of those matters is to add one additional reference in answer to a question which your Honour Justice Crennan put to the Solicitor-General for Queensland concerning the impact of the receipt of evidence to which one party does not have access on the formulation of the court’s reasons.

That was, of course, one of the grounds on which the legislation considered in Gypsy Jokers Motorcycle Club v Commissioner of Police [2008] HCA 4; (2008) 234 CLR 532 was sought to be impugned. Your Honour Justice Crennan dealt with that argument at page 596, in particular paragraph 185. The Chief Justice in that case agreed with your Honour’s reasons in that respect and the plurality dealt with the argument at paragraphs, in particular, 37 and 40 through to 42.

The second matter concerns what we have put at paragraphs 1 to 4 of our outline of oral submissions; that is, we say that the Queensland Act does not prevent the Supreme Court from providing a summary of declared criminal intelligence in the course of dealing with a substantive application so long as that summary will not have the effect referred to in section 60(a)(i) of the Queensland Act. If that construction of the Act is correct, then the court does retain a substantial discretion in dealing with a

substantive application as to how the confidentiality of declared criminal intelligence is to be maintained. We would say, similarly to the position in K Generation, the court determines whether material is in fact criminal intelligence and the court has a capacity to determine how confidentiality is to be maintained and allow some disclosure consistently with the protection of the public interest which the statute identifies.

I accept that the restrictions imposed by the Queensland Act are greater than were imposed in K Generation, particularly in relation to the potential for attendance at a hearing where criminal intelligence was to be discussed. But nevertheless we say the court does have the capacity to allow, so far as is consistent with the relevant public interest, the respondent to be informed of the case it has to meet. Those two features we would say would be sufficient to save the validity of the Act, even if the other disputed constructional arguments advanced by those supporting the applicant in oral submissions were to be rejected.

Can I just make one final point in relation to the nature of the public interest which is protected, particularly in response to your Honour the Chief Justice’s question, as would the answer be different if the relevant public interest were protecting the Commissioner of Police from embarrassment? In my submission, it may depend on all the features of the legislation, but there may well be a different answer.

We say that for this reason. The question which the court is asking is whether there is an abrogation of the defining features of the court, or whether the process is repugnant as the judicial process in a fundamental degree. In addressing those questions, it is relevant to note that protecting the disclosure of information of the kind which may be declared criminal intelligence is a traditional function of courts, and courts may mould the content of the requirements of procedural fairness to take account of that public interest immunity. If one identifies a public interest, particularly an interest which is not really a public interest but perhaps an interest of one of the parties, then one may come to a different conclusion when undertaking that evaluative judgment. If it please the Court, those are our submissions.

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

MR WALKER: Please the Court. Your Honours, may I start with a number of responses in relation to matters of statutory interpretation that a number of my friends - - -

FRENCH CJ: I am sorry, Mr Walker, how long do you expect to be in reply?

MR WALKER: Probably about 20 minutes.

FRENCH CJ: Yes, all right. I think we might adjourn until 2.15.

MR WALKER: Please the Court.

AT 12.43 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.15 PM:

FRENCH CJ: Yes, Mr Walker.

MR WALKER: Your Honours, there are a number of matters of interpretation that my friends have raised. In answer to the applicant and Queensland, we submit that section 59, in its reference to disclosure, particularly bearing in mind the potential or possible or future occasions that that requires, plainly is not capable of being read in the manner my friend proposed by supposing a scenario of disclosure to a trusted lawyer – that is, one who gives an accepted undertaking. It simply is not available in the text. In relation to section 108(4), your Honours will recall my friend proposed a reading by which the expression “hearing” did not attach to an appeal.

HAYNE J: Just go back a stage to that section 59 point, would you, Mr Walker?

MR WALKER: Yes, your Honour.

HAYNE J: Why is it not available in the text when that definition of 59 finds its application in connection with a particular application for declaration? That is, is not the judge confronted with the application for declaration to determine the application of the word “the disclosure” according to the particular facts and circumstances as then known or anticipated?

MR WALKER: In short, the answer is the judge is faced with such a matter but a criminal intelligence application will be itself heard in a special closed hearing and there will not be present anybody.

HAYNE J: No, but will not the facts and circumstances as they exist at the time of the application in that closed hearing be matters to which account must be taken in identifying what is the disclosure that is under consideration? That is, you are positing a construction in which disclosure is to be determined in the air as a matter of abstraction. Why?

MR WALKER: Well, the answer to that, in abstraction and in the air are perhaps not descriptions I would apply to the position we take, your Honour, but it is a general one because by definition the disclosure is one that has not happened. That is why the application is being heard. It is one about which there is to be examined the question of expectations and the reasonableness of expectations with certain consequences, (a), (b) and (c). Disclosure means, in our submission, any disclosure. That is, something is disclosed, or not. We are not talking about disclosure to circles of confidentiality.

The statute does not posit any basis upon which one could say disclosure to trusted defence lawyers will not prejudice and disclosure to untrustworthy defence lawyers will prejudice. The statute does not permit any such matter to be weighed up, least of all on the basis of evidence, because not least under section 67 we know that this application, the criminal intelligence application, will be heard before any substantive application.

Second, we also know that the criminal intelligence in question, once declared, may be used for all and any succeeding criminal organisation applications – that is, of a substantive kind. It is for those reasons that one could never in a criminal intelligence application know who other lawyers are going to be. Even if you know, you happen to know, because of the order in which things have been filed – see section 67(2) – who the lawyers are expected to be for one substantive application. It is for those reasons that the text of 59(1), when it says “the disclosure of which”, is talking about disclosure generally.

CRENNAN J: But it is always, of course, conditioned on a particular criminal investigation or a particular person’s life or physical safety.

MR WALKER: One would imagine it would ordinarily be so.

CRENNAN J: Ordinarily, you would imagine it would be quite narrow, having regard to (a), (b) and (c).

MR WALKER: Quite. One imagines (a), (b) and (c) will ordinarily – and certainly one imagines with (b), it is difficult to imagine where that would not be specific. Section 59(1)(a), one would hope, would always be specific unless - - -

HAYNE J: It has got to be, has it not?

MR WALKER: Your Honour, it is almost impossible to imagine how it could not be.

HAYNE J: Why else would you construe the Act otherwise?

MR WALKER: There are general common law immunity matters to do with methods and techniques that might be sufficiently general so that there would be not just specified criminal investigations that might be prejudiced but all criminal investigations of a particular class, for example, which class might be quite non-specific in terms of its resort to that technique. But leaving aside that class, of course, and for the reasons Justice Hayne has raised with me, of course paragraph 59(1)(a) not only lends itself to but rather mandates specificity in order for the judgment to be made. The same thing is certainly true with (b). It may also be true with (c), but it has to be remembered that there are groups of persons – they may be families or acquaintances, for example – that may not always be able to be specified but can be sufficiently appreciated for the purposes of the weighing up and the balancing which is involved in the evaluative assessment called for by section 59(1).

Now, that being so, in our submission, it is not possible in the way that the Solicitor-General proposed to, as it were, say of putative criminal intelligence, that is not criminal intelligence because its disclosure to these people cannot be reasonably expected to (a), (b) or (c) because what Parliament has said is it is disclosure that that question of reasonable expectation is to be asked about, not disclosure of only a particular class, when the statute makes it clear that that disclosure of a particular class may not be the only disclosure which will only ever be made of this material.

It is for those reasons, in our submission, that this statute, and in particular section 59, section 60 and section 63 does not provide by its terms the means by which, confronted with a criminal intelligence declaration application, the court can say to the applicant, but I can think of ways including undertakings from these counsel that we can see the names of and solicitors we can see the names of, I can see ways by which the drastic outcome that I am commanded to consider under 72(2) can be avoided.

The answer to that is the text simply does not provide for the reasonable expectation to be reshaped and the question answered about something which is disclosure to certain persons on certain conditions. Now, no doubt the text could be reframed accordingly, but we have to aim at the text which is against us at the moment and it is to be recalled that there is no opportunity whatever for somebody for whom such a named counsel or solicitor may already be briefed or instructed. There is no opportunity for that person or for those practitioners to be heard or to make good their qualifications to defeat such reasonable expectations of disclosure to them.

Could I take your Honours next to section 108? In our submission, it is not possible to read, as my learned friend did, the reference in subsection (4) to a hearing being “a closed hearing” as omitting the appeal, which is referred to after the word “application” in subsection (1) of section 108. That, of course, does not say anything about an appeal or any other form of procedure in this Court.

The next provision that my learned friend put argument about with which we differ is section 60 and, in particular, paragraph (a). My learned friend drew attention to the various uses, such as we had also noted, of the language of evidence, information and intelligence. There is not a dichotomy between evidence and intelligence, let alone the information which consists of intelligence, see the very language of the first line of paragraph (a):

evidence that is or contains criminal intelligence –

That then led to the proposition my friend put that a section 61 affidavit, important because of the extension of admissibility in section 107(2), can only contain material which goes to the satisfaction of what I will call a section 59 quality of information, making it criminal intelligence. It is difficult to understand how an affidavit could do any of that without referring to and disclosing the punitive criminal intelligence. In order for an affidavit to show those qualities, it has to say something about that intelligence, about that information.

The other matter that section 61 directly addresses, that is, an affidavit in an application under this part, is the material that one sees required under section 64 and under section 72(4) which by reason of section 72(5) means the corroborative material required when an informant is in question to the criminal intelligence, may itself also be the subject of a criminal intelligence application or declaration.

For those reasons, it is highly likely that section 61 affidavits will not only disclose, that is, set out, but they will also be the means by which in many cases corroborative material is provided as required by section 72. That puts paid, in our submission, to the notion that there is not considerable inroad into the requirement for so-called direct oral evidence which is referred to in section 107(1) by the qualification to that given by section 107(2) and section 61.

In relation to direct oral evidence, we are not sure whether there is difference between Queensland and us in relation to its meaning. It is not a defined expression. Your Honours will see a probably influential use of that expression in section 60 of James Fitzjames Stephen’s Indian Evidence Act (1872) which is in its opening passage the meaning which we sought to give it in our submissions in-chief.

In relation to section 64(2) and the expression, “cannot be called or [cannot] otherwise [be] required” we, with respect, would adopt the proposition that for all practical purposes in this Act and for the purposes of the special approach to evidence in this Act the concepts respectively created by those provisions are the lack of competence and the lack of compellability to which Justice Hayne drew attention during argument.

In our submission, the inroad that that represents on the capacity of a respondent to a substantive application to be afforded procedural fairness with respect to what may be most important and very critical evidence was only unconvincingly qualified by the Solicitor-General’s reference to the purely theoretical possibility of an informant volunteering rather than being called or being required to give evidence. That is really no answer whatever.

With respect to who can cross-examine, my learned friend put submissions about sections 80(1)(b) and 108(6)(b). They are, respectively, a specific and general provision and nothing in the power or right given under paragraph 108(6)(b) entrenches upon the prohibition to anyone other than those named in paragraph 80(1)(b) of cross-examination in relation to a special closed hearing. In short, the substantive respondent never gets to be heard, never gets to be involved in such matters. There is no possibility for the court to ameliorate what the statute compels.

In relation to section 77(5)(a), in our submission, none of the arguments against us sought to demonstrate that respondent’s counsel was carrying out a function under this Act by being respondent’s counsel. Being counsel is a common law matter no doubt capable of and in many respects regulated by statute and rule, but it is certainly not something which springs from or is granted in or has its basis in this Act. It is recognised, but recognised only, by the possibility of there being representation.

Equally, in our submission, the text of section 77 does not permit one to say that access can be determined by a court in favour of respondents and counsel in order that some other personage involved in the proceeding can carry out a function under the Act. There are only, relevantly, three other personages. One is the Bench and that would seem to be a circular or self-defeating provision in the Act. If the Act says people may not be given access, but the judge may require that they be given access, that has no textual foundation and is not put against us. The other is, of course, the applicant, the Commissioner. No one has offered argument as to why that it is needed in order for the Commissioner to carry out a function. And, finally, of course, there is COPIM and I put again what we put in-chief about that, there is nothing in relation to carrying out COPIM’s functions which is such as to make it necessary for respondent’s counsel to have access.

It was also put against us by the Solicitor-General for Queensland, or I should say it was suggested in response to the provisions of section 19 that a criminal organisation would have to be named in order to provide content for the restraint on a person under paragraph 19(2)(a), that is one of the mandatory elements of a control order. That is not so, see section 19(3) and, in particular, paragraph (b). There is an ambulatory effect to the restraint under 19(2)(a). Its content alters as new criminal organisations are declared.

FRENCH CJ: I put the question whether that is the only immediate effect of a declaration of a criminal organisation?

MR WALKER: Yes, apart from the obvious proposition, a different kind of effect that it also – once made the organisation declaration provides the footing - - -

FRENCH CJ: There is a factum for subsequent applications.

MR WALKER: In terms of though an immediate effect so as to restrain liberties, yes. It was suggested on behalf of the Northern Territory, and I apologise if I have misunderstood this, that material contemplated by section 76(3), which of course is of the kind required by section 64(4) that limited information about informants and their credit might not itself be kept secret from the substantive respondent. However, in our submission, it is very clear in particular from the provisions of sections 65(3) and (5), which parallel the provisions I have noted in section 77 that there is just such lack of access. It was also said by a number of my friends, including on behalf of the Northern Territory, that duties of disclosure both at common law and under the UCPR would apply throughout.

Could it be noted that the rules which by section 101 apply, except in case of inconsistency, include rules 211, 212 the continuing duty of disclosure? But one will see in particular that there is a specific exclusion for documents – and it is about documents – concerning credit only.

FRENCH CJ: Is that applying to the rules as they were at the time of the enactment of this Act or are they the rules as they are from time to time?

MR WALKER: I think it will be the latter, your Honour. Because of the expression in 101 is to the Uniform Civil Procedure Rules 1999 there will be an interpretation provision that renders that in its form, from time to time, with the usual rules about permitted retroactivity, in relation to things classified as procedural.

Next, it was suggested on behalf of Victoria that there could be, based upon matters coming in particular from the common law duty of disclosure but also in what was said to be an inherent jurisdiction, a revisiting from time to time of the evaluative assessment and the resultant discretion based upon section 72(2). That is, the weighing or the question about whether there is an out-weighing, to use the expression in the provision, between unfairness to a respondent and the declaration of criminal intelligence in light of the policy shown in section 60 and the definition in section 59.

First of all, my learned friend put that on the basis that that must be so while the matter remains on an ex parte basis. I may be misunderstanding that expression but criminal intelligence matters will always remain on an ex parte basis. They will have been heard and determined to finality one way or the other on an ex parte basis. That is what distinguishes them from matters in other statutes where the ex parte basis is not permanent.

Secondly, in our submission, the plain language of section 73(2) remains in force until simply does not yield any possibility of anything other than what Parliament has named as the condition, the negative condition of remaining in force, that is, revocation, which is a term of art and is then exhaustively defined including by reference to who may make an application and upon which application the court may act, namely the Commissioner and the Commissioner only.

In our submission, there is nothing in International Finance in the passages that my learned friend referred to, to the contrary of what we have just put 240 CLR 319 at 376 to 377 in the reasons of your Honours Justices Hayne, Crennan and Kiefel were the passages relied upon by my learned friend. However, in our submission, it is plain by reason of the subject matter, that the general rule being talked about in paragraph 130 and following is a general rule concerning an ex parte order not under a statutory regime which renders it the one and only and permanent way in which an order can be made but rather one that looks forward to the possibility of further or different order including by way of revocation.

The elementary rule of justice that your Honours referred to by quoting Chief Justice Griffith is, in our submission, a matter which being true and being importantly and evergreen true at common law is support for our argument that this is part of the accumulation of provisions which raises the Chapter III difficulty with the Act, because there can be little doubt that the statute does purport to prevent exactly that kind of salutary revisiting of an order, the basis of which seems to have been rendered inappropriate, to use a kind term, or perhaps wrong, to use a blunter term.

It is to be recalled, of course, that there may be the world of difference between recalling the ex parte order because it was obtained wrongly, such as by failure to disclose as one should, and setting aside an order which is no longer appropriate either by reason of impossibility of performance, one thinks of certain interlocutory injunctions, or by reason of new facts having come to light, that is, facts which could not have been disclosed because they did not then exist or were not within the knowledge of anybody relevant.

HAYNE J: Well, that is a set of propositions that have to take account of what is said in Cretanor Maritime v Irish Marine, et cetera, as referred to in that passage that you have mentioned from International Finance.

MR WALKER: Yes, your Honour, but in my submission that is the importance of the clarity of the language of the statute here. Those are critical and very important matters of the common law concept of how one judicially approaches these very important orders, orders which have as their effect depriving an affected party of knowledge of and ability to counter evidence which is tendered against them. For all the reasons that are to be contained in the ancient but current principles to which Justice Hayne has just referred, the statute here has gone too far.

To put it another way, in answer to the question, can Parliament really have meant that this is to remain in force unless there is a successful revocation application, given the common law tradition to which reference has just been made, the short answer is, well, that is what they have said. That may be, as it were, a shocking matter, but that ought to inform invalidation rather than a reading which the language will not permit.

Your Honours, in relation to a general theme in all of our friends’ arguments, it is critical to note the important difference. One sees it in Smith in the Court of Criminal Appeal to which reference was made. One sees it of course throughout El Rawi to which reference was made, between common law public interest immunity which has the effect, albeit with the evidence remaining secret for the public interest immunity application itself, but it has the effect of that material subject to the held immunity not being tendered against an affected party except, as Chief Justice Gleeson and colleagues put it, except if in a criminal case it is such as to assist in resisting a finding of guilt.

Two aspects of the same principle, that is, that there are other interests apart from the purity of administration of justice to which my learned friends have all referred, two aspects of that principle which strongly underline the position we take in this case, that none of that is, in our submission, true of the diametrically opposite divergent rather than parallel course which is taken by saying of material, some of which would be covered PII, some of which might not - saying of that, not only will it get that badge under the statute in a secret ex parte hearing, but also it can then be used against an affected party.

HAYNE J: Can I just understand this aspect better? The central element of your argument, I think, is that there is a denial of access to evidence?

MR WALKER: Yes.

HAYNE J: That presents the further question whether that is a denial of procedural fairness. You cannot begin from the proposition there is a denial of procedural fairness, can you?

MR WALKER: No, no you have got to say what - - -

HAYNE J: You have got to step it out.

MR WALKER: Quite, absolutely.

HAYNE J: Whether that is a denial of procedural fairness, that is the denial of access to the evidence turns on, does it not, three questions. What is denied, when is it denied, why is it denied?

MR WALKER: Yes, and from whom, that may be obvious, yes.

HAYNE J: I had intended to build that in as the assumption for all of the questions because the denial is - - -

MR WALKER: Of the affected party, yes.

HAYNE J: - - - is the directly affected party. You can inject as many epithets, but it is the party who is most vitally concerned.

MR WALKER: In particular I say that, your Honour, because I am putting to one side as not informative of our position, the other value that is of publicity. In other words procedural - - -

HAYNE J: The open justice - - -

MR WALKER: Quite, and I am not calling that in aid so it is denial from the affected party, rather than from the public.

HAYNE J: I understand that. Something in this case may or may not turn on what is denied and when it is denied. May I put those for the present to one side? Does your case depend ultimately upon a proposition that the items identified in 59(1)(a), (b) and (c) are not available legislative choices as reasons for denial?

MR WALKER: The answer is yes.

HAYNE J: That is, safety of life and limb, disclosure of identity of informer, interference with current particular investigation are not available reasons.

MR WALKER: They are not available reasons to require a court to proceed to decide a case against a person on the basis of material that person has not been able to know and answer, that is correct. That we have a Constitution that requires our courts to proceed to provide an irreducible minimum – I hope no judge thinks of it in terms of irreducible minimums – but the constitutional test is obviously an irreducible minimum of procedural fairness. At the core of procedural fairness, which has a number of aspects, is that which their Lordships referred to in Al Rawi in terms which are as applicable in the antipodes as in London.

CRENNAN J: But does not section 59(1)(b), to take an example – it is an example, is it not, of a statute enacting a provision which is consonant with the common law approach to the same principle, the identity of an informer?

MR WALKER: No, because that is to turn PII, which keeps something out of a case, into this, we submit, massive entrenchment on a fundamental and central tenet of procedural fairness which is to permit it to be used.

CRENNAN J: By the court.

MR WALKER: It is the secret ex parte aspect rather than what I will call the incomplete record or truncated disclosure. An incomplete record is something that for hundreds of years and is currently accepted as an inroad on what is surely only an ideal – perhaps a monstrous ideal – of everything relevant before the court. So incomplete record we do not complain about. This does not produce incomplete record. This produces a secret record. That is the first thing. As to truncated disclosure, that also has been familiar, certainly for as long as anything in the nature of any privilege – public or private – has been in question. There is no difficulty with that either. Both of those from time to time have produced what are called the dilemma – healthy or unhealthy does not matter, embarrassing or not embarrassing does not matter. The dilemma usually for authorities, do we persist in what we claim or do we continue to defend – it is to be remembered Al Rawi is a tort claim, for example, where the Crown is defending – given that, in order to do so, we probably need either to tender or to disclose what we do not want to, I will say, for good public interest reasons?

That is something that the administration of justice can and should live with, and does live with. It is unremarkable. The principles are well known and they are significantly common law principles. As explained in Al Rawi, the common law has not taken the step of saying that when it comes to what I am going to describe as substantive material tendered to prove a substantive fact or issue – that is why it is important to notice what was not being done by Justices Smart or Lockhart in the authorities to which I will come or, for that matter, by the United Kingdom Supreme Court in the Tariq Case. When it comes to material being tendered to get a substantive finding on a fact or issue between parties, the common law has never said that the interests of national security or of some other socially prized public interest is such as to, which obviously includes the efficacy of detection and punishment of crime, justify having trials that breach that fundamental tenet. That is why I answer Justice Hayne’s question as I do.

Yes, we do say – and we say the lack of authority for the opposite proposition is telling – we do say that there is no common law possibility built upon PII of converting that which keeps material out of the contest between the parties, either because it is not tendered or because it is not disclosed, and turns it into material that can be relied upon against one of the parties without any of the opportunity that is definitional of justice.

HAYNE J: That is to say, regardless of what, when or why there can never be denial of access to evidence without there being denial of procedural fairness.

MR WALKER: Yes.

HAYNE J: I understand the proposition.

MR WALKER: Now, access is a word that needs explanation because as the child and secrecy cases show and as the Supreme Court discusses in Al Rawi, of course there can be circles of confidentiality and no one who has argued either of those category of cases is unfamiliar with the unremarkable and unexceptionable process by which as counsel one knows something that the client cannot know. Now, sometimes there are cases where that cannot be borne. Sometimes, well usually, that is simply the price of the requirement on the one hand that there be a reasonable opportunity to contest the case and the requirement on the other hand that we do not do justice if it means the heavens fall. Those accommodations - - -

CRENNAN J: So, forgetting common law for a moment, you are saying a legislature cannot give as its why’s for non-disclosure what is set out in (a), (b) and (c)?

MR WALKER: Those are not reasons which will justify denying the affected party the opportunity to answer. Now, it may be by appropriate combination of closed courts, circles of confidentiality, undertakings, offences - - -

CRENNAN J: Well, there may be interests which can be served. You are complaining about the way in which they are served in this case, whereas Victoria’s point for argument’s sake is that once you examine the interest to be served is much else in the whole of the legislation which addresses any – if you treat the fact that the respondent is not entitled to the whole of the evidence in support of the case put against it, the point is that there are mechanisms in the Act which allow a court in the context of these why’s to act impartially and fairly.

MR WALKER: There is no doubt of what I will call the impartiality of the court, that is a different issue. The perceived impartiality or engagement in matters of policy is part of another argument that I am not attending to at the moment.

CRENNAN J: Well, fairly – confine it to fairly.

MR WALKER: Quite. In our submission, this lies perhaps at the heart of a thematic answer against us to which I am attempting to reply. It was to this effect, that because these are judges, this is the Supreme Court, and because inherently they act fairly and supported by the cannon of statutory interpretation pushed by the principle of legality with which the Court is familiar - - -

CRENNAN J: And, well, the discretion would be at the forefront, too, of this argument.

MR WALKER: - - - and given that satisfaction of jurisdictional fact does not compel an order to be made, the discretion to which Justice Crennan has referred, that combination is all called in aid to say that this leaves on the right side of the Chapter III strictures the scheme in this statute. However, that is an argument which is, at bottom, one to the following effect. Judges will resist acting unfairly.

Those things which detract from or even destroy the fairness of the process in this statute will be resisted by judges to the extent they can in the various manners that have been proposed, cogently or otherwise, particular provisions will be read so as to permit, for example, disclosure so as to puncture the ex parte or secret nature of things. But they say against us, observing correctly the discretionary “may” in sections 10 and16, for example, but they say, and quote from my learned friend for Queensland, on the basis that the more secret evidence there is the less likely the orders are to be made, the judicial response inspired by institutional fairness.

In our submission, that comes down to saying that because there is an unfairness that the statute threatens to be perpetrated by or in a tribunal which has to be fair – the Supreme Court, Chapter III – you can be satisfied it will not happen, either because there will be procedural expedience that can be read down or read up, as the case may be, to permit disclosure where there presently appears to be absolute denials of it. Or else, because of what I am going to call an institutional revulsion against finding of fact on the basis of material not open to contradiction, you can be, and a constitutional court – this Court – can be assured that there will not be unfairness because the fair tribunal, the Supreme Court, will not do such things.

Now, the Chief Justice asked a number of my learned friends what is the reasoning by which the Supreme Court proceeds, say, to dismiss a case which is largely based on or critically requires untested criminal intelligence for the application to succeed. In our submission, reduced to an essence, the position against us seems to be because it would be unfair. Now, if would be unfair to find – one thinks of the famous expression in Briginshaw – to find on the basis of untested material from informants about which not everything can be known and no questions can be asked.

If that is unfair and that is the reasoning that produces the assurance that we are somewhat perversely offered by the assembled Solicitors-General, “Don’t worry. This statute won’t produce outcomes against you if the material is of the quality you identify.” If that is the case then in our submission the paradoxical position is achieved. This does not threaten unfairness within the meaning of Chapter III because the unfairness it does threaten within the meaning of Chapter III can be assuredly seen to produce no adverse outcome against persons within its ambit. Now, that, in our submission, goes further than any other argument of a kind that one sees in K-Generation or Gypsy Jokers or any of the other cognate authorities in this Court.

FRENCH CJ: Just speaking of K-Generation for a moment, the breadth of your proposition that would exclude or would treat as invalidating resort to evidence for positive findings absent even the as it were inner circle of confidentiality, that is the legal representatives, is not consistent is it to the approach in K-Generation? I think in paragraph 147 in the judgment of the plurality to which we were taken before which recognised a discretion in the court to bring the legal representatives in, but there is a corollary - - -

MR WALKER: Your Honour, it may be that really the best answer to your Honour is a simple yes, it is not consistent, but if I may attempt this reconciliation? The existence of such a discretion, both why it exists and how it is to be exercised, is, of course, posited upon the achievement of this irreducible minimum content of fairness, that which is definitional of what happens in courts, how courts work. If that is true then it is, as it were, a self-calibrating safeguard. The discretion is there to enable unfairness to be avoided. It would be a miscarriage of the discretion, a failure to exercise it appropriately, if a review in court could detect that though the discretion was available, it was not exercised so as to prevent an unfairness.

What K-Generation does not say is that you can have unfairness, so long as in some cases by discretion some judges may choose to relieve from it, with the unspoken corollary being and if other judges choose not to relieve against the unfairness that is all right. All we needed to know was there was a discretion to do so, though it was not exercised. In our submission, rather what I will call the “K-Generation saving discretion” is a mechanism which converts that which would otherwise be an intolerable unfairness expected of a Chapter III court into a threatened unfairness, which a Chapter III court can avoid and in the case where it is threatened, will avoid because it is a Chapter III court.

It is the kind of discretion that where once the conditions for its exercise are made available of its nature it is unimaginable a court would say, “Well, no I choose to act unfairly, rather than fairly.” Now, the difficulty with such abstract debate is that it converts the multifarious and infinitely various possibilities of particular circumstances into words like “unfair” and “fair” and without recognising twilights. But nonetheless, the approach that we have put is one which in principle is correct, that the informing criterion for both the existence of that discretion and when it must be exercised is the unfairness which otherwise is antithetical to the nature and character of a Chapter III court.

Of course, in K-Generation the duty to take steps to ensure et cetera was, of course, interpreted by the court, the majority, so as to permit such things to be done, an approach to interpretation which we embrace, of course. In this case, for the reasons we have put and do not want to repeat, that is not possible with the secret ex parte character of things.

That involves and brings me to an answer to one of the arguments for Victoria based upon the Thomas dictum of Chief Justice Gleeson. Of course it is appropriate and a beginning of all the argument in this case that the Parliament of Queensland shows the Supreme Court of Queensland as the repository of these large powers, because it is a body which will act judicially. All the more reason, in our submission, to protest against those aspects of the statute which we hope we have identified which ought to be seen as provisions that eliminate the capacity of the court to shape its procedures to particular cases, see the inflexibility of the special closed hearing, the inflexibility of the non-disclosure rules and offence and, in our submission, the inflexibility necessarily involved in the staged process to which reference has been made, particularly the hollowness of the appeals that come from it.

Now, it has been said against us by Queensland in particular that – by the Commonwealth in particular that of course there can be appeals by people later affected as they find out by the making of a criminal intelligence declaration. They were not involved and may not even been known of at the time that declaration, could not have been in mind, for example, for 72(2) balance, but it is said they can appeal later. How does one appeal? In some jurisdictions in this country, how could counsel lawfully, that is, in accordance with the ethics required by law, mount an appeal alleging error? It is a discretion, and so House v The King will apply. It might even be seen as being in the nature of a - heaven help us - case management or procedural discretion, in which case in re the will of deceased will be added, as it were, to House v The King.

How can one possibly, without knowing anything about it, because you will not know anything about it, make the large allegations for example involved in the last residual category of House v The King about the outcome? How could you possibly know something must have gone wrong, in a sense cognate with a Wednesbury conclusion, because of the bare outcome of which you are aware? It is reminiscent of the hollowness of the right to cross-examine under section 108 as counsel for the respondent.

You cannot put suggestions without instructions and you cannot abuse the privilege by making suggestions which are, as it were, of the “I shoot an arrow, I know not where”. It is for those reasons, in our submission, that it is the inflexibility and the deprivation by Parliament away from the Supreme Court of the capacity to shape procedures as things unfold that is the badge of invalidity in this case.

In Tariq [2011] UKSC 35; [2012] 1 AC 452 to which attention has been drawn, a number of things are to be remarked. The first is that the reasoning very much includes the notion that the man was, as it were, a volunteer. He wanted to have this job which required security clearance. He is to be taken as understanding what that involved, including the necessary secrecy involved in secrecy matters. There is nothing of that kind analogous under this statute.

Secondly, there was gisting possible. Nothing like that is possible under this Act. Thirdly, when one looks at the observations that are to be found on pages 499 in paragraphs 64 to 67, one, in our submission, finds nothing that can be directly applied to a Chapter III Supreme Court in this case and the tribunal in that case, particularly given – and this is very important – that the material in question was not before the tribunal in order to provide for the finding of a fact against the man, but rather to show the material upon the basis of which an administrative decision had been made.

That, of course, is what was also true, very plainly so, in the decision of Mr Justice Lockhart to which reference was made on behalf of New South Wales by its inclusion in the report of Nicopoulos. In Amer, the decision of Justice Lockhart we think is still unreported. It is 18 December 1989. The passage that is found in [2004] NSWSC 562; 148 A Crim R 74 at 90 to 91, paragraph 82, records in the second quoted paragraph the same aspect of the matter there. The material in question was not being tendered in order to support the finding of a fact contrary to the affected person. It was, as it were, simply proving that itself existed. Whether it was right or wrong, whether it would support a finding of fact, was irrelevant. His Honour actually uses the expression:

The Court makes no findings on these issues as they are irrelevant to the case.

That is, of course, similar to what occurs in this country in the Administrative Appeals Tribunal and similar tribunals where, in particular, national security material is referred to for the purposes of passport or security clearance issues. These are not authorities which provide any basis for the conversion, as I say, from PII leading to exclusion of material to this Act, leading to its inclusion of material.

Secondly, in relation to Nicopoulos, in our submission the passage that one finds in Justice Smart’s reasons at page 91 and following between paragraphs 86 to 92 starts by noting the lack of any reported decision to support a power of the court to withhold any portion of the evidence it admitted in contested proceedings from a party adversely affected – His Honour notes leaving aside the special case of proceedings in protective jurisdiction or infants – and then refers to matters which, in our submission, either irrelevantly involve PII or unconvincingly – that is, without real reasoning, in particular see 91 and 92; 92 is the conclusion – leaps to a position which in the Supreme Court in the United Kingdom is said to be a position against which, for example, the word “never” ought to be uttered by the judges of the highest court.

There is no authority referred to in Nicopoulos. It is contrary to definitional matters required by Chapter III. It is almost impossible to imagine what it is that would be closer to the heart of the judicial process than those aspects of procedural fairness with which we are concerned as respondents in this case. If it please your Honours.

FRENCH CJ: Thank you, Mr Walker. The Court will reserve its decision. The Court adjourns for 15 minutes to Court Number 2 for the next matter and will reconstitute.

AT 3.13 PM THE MATTER WAS ADJOURNED