Graham v Minister for Immigration and Border Protection; Te Puia v Minister for Immigration and Border Protection [2017] HCATrans 63 (30 March 2017)

Last Updated: 13 April 2017

[2017] HCATrans 063

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Melbourne No M97 of 2016

B e t w e e n -

AARON JOE THOMAS GRAHAM

Plaintiff

and

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Defendant

Office of the Registry
Perth No P58 of 2016

B e t w e e n -

MEHAKA LEE TE PUIA

Applicant

and

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Respondent

KIEFEL CJ
BELL J
GAGELER J
KEANE J
NETTLE J
GORDON J
EDELMAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 30 MARCH 2017, AT 10.16 AM

Copyright in the High Court of Australia

____________________

MR B.W. WALKER, SC: May it please the Court, I appear with my learned friend, MR J.M. FORSAITH, for the plaintiff, Mr Graham, and the applicant, Mr Te Puia. (instructed by Malkoun & Co Lawyers)

MR S.P. DONAGHUE, QC, Solicitor-General of the Commonwealth: May it please the Court, I appear with my learned friends, MR C.L. LENEHAN and MR B.K. LIM, on behalf of the defendant in the Graham matter, the respondent in the Te Puia matter, and the Commonwealth Attorney-General intervening in both matters. (instructed by Australian Government Solicitor)

MR M.G. SEXTON, SC, Solicitor-General for the State of New South Wales: If the Court pleases, I appear with my learned friend, MR S.J. FREE, for the Attorney-General for the State of New South Wales who intervenes in the first matter. (instructed by Crown Solicitor (NSW))

MR P.J. DUNNING, QC, Solicitor-General of the State of Queensland: May it please the Court, I appear with my learned friend, MS F.J. NAGORCKA, for the Attorney-General of the State of Queensland intervening in each matter. (instructed by Crown Solicitor (Qld))

MR M.E. O’FARRELL, SC, Solicitor-General for the State of Tasmania: May it please the Court, I appear with my learned friend, MS S.K. KAY, for the Attorney-General of the State of Tasmania intervening in both matters. (instructed by Solicitor-General of Tasmania)

MR R.M. NIALL, QC, Solicitor-General for the State of Victoria: May it please the Court, I appear with my learned friend, MS K.E. FOLEY, for the Attorney-General for the State of Victoria intervening in both matters. (instructed by Victorian Government Solicitor)

MR C.D. BLEBY, SC, Solicitor-General for the State of South Australia: May it please the Court, I appear with my learned friend, MS A.D. DOECKE, for the Attorney-General for the State of South Australia intervening in both matters. (instructed by Crown Solicitor (SA))

KIEFEL CJ: Yes, Mr Walker.

MR WALKER: Your Honours, in both these cases the Minister made decisions to cancel the visas which permitted Mr Graham and Mr Te Puia to remain in Australia for reasons which were based in part on material that could not be disclosed. In Mr Graham’s case, that undisclosed material was at least material to the decision. In Mr Te Puia’s case, it appears to have been critical.

The prevention of disclosure in each case was by reason of section 503A which is the target of our argument today. By reason of the operation of section 503A, in the circumstances of each of these cases, it would never become necessary in judicial review proceedings for any claim of public interest immunity to be made by the Minister or any Commonwealth officer and ruled on by the Court.

It is therefore plain that these are cases where section 503A in its operation has the effect on judicial review proceedings, putative or actual, which does come about, perfectly constitutionally, in the case of an upheld claim for public interest immunity preventing the disclosure of material without which some or all grounds of judicial review become unavailable.

May I go first to section 501, which happens to be the substantive provision under which the decisions were made: 501 of the Migration Act 1958 in subsection (3) authorises the cancellation of a visa that has been granted – paragraph (b) – if, paragraph (c):

the Minister reasonably suspects that the person does not pass the character test -

which, as your Honours well know, is a defined expression. And paragraph (d):

the Minister is satisfied that the refusal or cancellation is in the national interest.

Which, as your Honours know, is not a defined term. In subsection (4), this power is reserved to the “Minister personally”. In subsection (5), “The rules of natural justice” and some statutory procedures, to similar end, “do not apply to a decision under subsection (3)”. In subsection (6), the terms of the character test are negatively expressed. The concept of “substantial criminal record” is stipulated in paragraph (a). It is defined in great detail in subsection (7) and will not delay us today. There are then cognate conviction provisions in paragraphs (aa) and (ab).

Then, the one that was, it turns out, of significance in both cases – that is, ultimately, we will try to show the decision in Mr Graham’s case turns only on paragraph (b) but, certainly, Mr Te Puia’s case did. So, paragraph (b) is the one at the heart of the substantive decision-making in these cases. It turns on the Minister reasonably suspecting:

that the person has been or is a member of a group or organisation, or has had or has an association with a group, organisation, or person -

And, that is, as well, reasonably suspects:

that the group, organisation or person has been or is involved in criminal conduct -

And then, as I say, it is negatively prescribed because, as your Honours know, at the end of subsection (6) there is the catch-all that, if a person does not fit within one or other of those categories:

Otherwise, the person passes the character test.

Could I then take you to the provision which is, as I say, the target of our argument today, section 503A. The provisions of section 503A, we seek to persuade the Court, may be seen as something in the nature of a legislated simulacrum with, we say, very large essential differences of the general law doctrine of public interest immunity.

In subsection (1), which may be compared with subsection (2), there is a similar intellectual structure in each of them. The first of the conditions or criteria for application of the prohibitory provisions in section 503A is expressed thus:

If information is communicated to an authorised migration officer by a gazetted agency on condition that it be treated as confidential information –

that is the first of them. Now, as the special cases in each proceeding make clear, that was the fact in relation to the information in question in this case. It was communicated to an organised migration officer by a gazetted agency on condition that it be treated as confidential information.

It is worth appreciating at this early stage that a gazetted agency is not confined to an Australian authority nor, for that matter, to a Commonwealth authority within Australia. It is clear, not only from the gazettals that have occurred but from the nature of the entirety of the provision, that gazetted agencies will include authorities and entities both domestic and international, that is, foreign, and probably international, which are likely to hold from time to time information germane to, among other things, criminal associations of persons either seeking entry to Australia or with visas permitting them to remain in Australia.

I should, I suppose, make it clear immediately that that is the kind of material and that is the kind of provenance of material information which is often seen in successful applications for public interest immunity. The characters that I have just suggested in general terms for such information and its provenance, of course, does not guarantee the success of an application for public interest immunity. That last proposition is at the heart, we submit, of the project which results in section 503 being enacted.

The second condition or criterion for the imposition of the prohibitions in section 503A is that the information is relevant to the exercise of a power under, among others, section 501, the one that was exercised in these cases. Now, that again is established in these proceedings by the special cases and as I shall show your Honours and you have seen from the material, including in written submissions, there were repeated assertions, which ought to be accepted, of the relevance of the information.

In light of the approach taken by this Court in challenges involving what I will call the Kable approach to legislation in Gypsy Jokers, to legislation in K-Generation, among others, it is obviously of prime importance to establish when a condition or criterion for the imposition of some regime that will affect by secrecy court proceedings to ascertain upon a proper reading of the statute what the role of the court is concerning satisfaction of that condition or meeting of that criterion and applying what we hope is the proper approach, informed in particular by the principle of legality to the words that I have covered so far in section 503A(1), these things can be said.

As to the first of the conditions, it is clear that the Court is in a position, on the basis of material that will not disclose the information, to decide whether or not on the evidence the information was communicated on condition that it be treated as confidential information. But the matter to be determined by the Court, as to that condition, does not involve the Court ruling or adjudicating on what might be called the “reasonableness” or “appropriateness” of the out-of-court decision by the gazetted agency to impose such a condition. It is a fact that the condition was imposed, or not, we submit, which is all that is for judicial adjudication concerning satisfaction of that first condition.

The second condition is not so straightforward, in this regard. Its statutory syntax, so to speak, seems to commit to the Court a ruling on the relevance of the information and it is not just apparent, it must be so. The words are “the information is relevant to the exercise of a power under section 501”. There would be no cause whatever for avoidance of the plain and simple understanding of that. It is for the Court considering whether the prohibition under section 503 has been imposed to determine whether the information is relevant to the exercise of the power in section 501.

On the other hand, this is in order to determine whether the information is prohibited from disclosure and, most particularly, from disclosure to people who may be called “affected persons” either by threatened, possible future or already accomplished administrative action based upon that information – in this case, Mr Graham, Mr Te Puia and those who assist or advise them.

So, the process by which the Court will determine whether that second condition has been fulfilled obviously cannot destroy the statutory outcome that section 503A is designed to achieve. And, we think it goes without saying – and we assume it would be enthusiastically supported by those, especially to my immediate right – that there is no power for the Court to destroy the non-disclosure which is in question by revealing, for the purpose of adversarial argument, the information in question to a person to whom it will not be disclosed if that condition were made out to the satisfaction of the Court.

On our researches, where there has been argument about this - the fulfilment of this second condition - there seems to have been, as one might expect by analogy with public interest immunity and, for that matter, by analogy with privilege claims in discovery and subpoenas - there seems to have been a variety of approaches and often there is, as it were, information about the information rather than the information itself which will suffice to demonstrate relevance. It is going to be highly case specific. For this Court in this argument, of course, it is accepted in the case that the second condition is fulfilled.

Then the prohibition is imposed upon fulfilment of those two conditions by paragraph (a) of subsection (1) of section 503A. One sees that the authorised migration officer – to whom the information has been communicated on that condition and being relevant to here, section 501:

must not divulge or communicate the information to another person, except –

. . .

the Minister or an authorised migration officer –

or:

for the purposes of the exercise of a power under section 501 –

Relevantly, that will be the Minister’s personal power of cancellation. In paragraph (b) the recipient of this - I will call it protected information - in turn has prohibitions imposed, which one sees in paragraph (b), so that all officers to whom communication may come on that condition, and information being relevant, are officers who are forbidden from passing it on.

Subsection (2) repeats the same pattern for a slightly different purpose. Again the same conditions. Paragraph (b) incorporates the accomplishment of an earlier communication under subsection (1); (a) and (b) are the communication. Then the prohibition in (c) and (d) is as broad as this in paragraph (c):

the Minister or officer must not be required to divulge or communicate the information to a court, a tribunal, a parliament or parliamentary committee or any other body or person -

which on our researches would be the most comprehensive description, no doubt in light of some old battles, in order to protect information.

KIEFEL CJ: The Minister can, however, choose to divulge.

MR WALKER: I am coming to that. Yes, indeed. This is a scheme which, as your Honours have seen from our propositions in our outline, the evident intent of which – I am not talking about motivations, I am talking about statutory intention as the meaning and effect of the enacted words – the intent is to give to the Executive that which, for reasons I have yet to develop, ought peculiarly be within the province of the judicial arm.

One sees in paragraph 503A(2)(d) that there is blocked off from compelled – I stress “compelled” – disclosure to a court. Of course, a court will include a court exercising a jurisdiction granted by or derived from section 75(v) of the Constitution. And then we come to the matter that the Chief Justice has just noted; namely, subsection (3). It is the Minister, a member of the Executive, who may:

declare that subsection (1) or (2) does not prevent –

So it is an ad hoc disapplication of the non-disclosure obligations. It does not prevent – and this will be what the Minister writes down:

the disclosure of specified information –

that will be in the writing:

in specified circumstances –

that will be in the writing – “to a specified” for example, court - that will be in the writing. So it is the Executive, by the Minister’s writing, who will specify the information, specify the circumstances – that is a very general and broad power, to specify circumstances – and also of course to specify that the disclosure is only to an identified - in this case court, but it could be an identified Minister - Commonwealth officer or a tribunal as well.

In relation to what I will later seek to persuade your Honours may historically be seen to be the perceived mischief to which these provisions were directed, it is worth making the observation that the proviso or rider to subsection (3) commencing with the word “however” does not proceed on the basis that what might be called the operatives – those in gazetted agencies and the like – have the last word on the momentousness of the information sought to be protected. They need merely be consulted by the Minister. They do not get a veto. It is very much the Executive, the Minister.

KIEFEL CJ: With respect to subsection (3), this is not to overlook perhaps that there may be circumstances that operate upon the Minister which would require the Minister to give serious consideration to whether there is a need to divulge the information.

MR WALKER: Yes.

KIEFEL CJ: It might arise in the circumstance where a visa holder responds to the notification or the cancellation decision and puts forward material to the Minister and that material directed to show that the person does not have the - - -

MR WALKER: Associations.

KIEFEL CJ: - - - associations, whatever, might be affidavits from witnesses.

MR WALKER: Yes.

KIEFEL CJ: In that case, the decision, if the Minister maintained the refusal, the review by the court would be of the second decision and - - -

MR WALKER: The decision not to revoke.

KIEFEL CJ: The decision not to revoke - - -

MR WALKER: Yes, that is right.

KIEFEL CJ: - - - but whichever way the matter comes before the court.

MR WALKER: Yes.

KIEFEL CJ: It would come before the court with that material. Now, in that circumstance, the Minister has a decision to make.

MR WALKER: Yes. Now, that is a matter that - - -

KIEFEL CJ: It is like a shifting of - - -

MR WALKER: And it is a matter which is close to the heart of our, I think, single proposition. Could I give a brief answer to the Chief Justice but I will almost certainly be coming back to those considerations in my main argument, which will be soon. The brief answer is if the Minister has not made a subsection (3) declaration, then the prohibitions continue to apply and they will apply in the judicial review court seized of, in the Chief Justice’s example, the challenge to the refusal to revoke on notification of the earlier decision.

In those proceedings, it will be impossible – we do not think the meaning is altered if you put the word “practically” in front of that – it will be impossible, certainly professionally impossible, to make any allegations say to the effect that the Minister did not have before him or her material capable of, for example, supporting a refusal to accept the non-association evidence. No responsible lawyer could make the allegation because you will know, in Rumsfeldian terms, that you do not know everything that was before the Minister.

KIEFEL CJ: But if there is little – say, in the circumstance of the second applicant, the second plaintiff, information is put forward by that visa holder which is sufficient to satisfy the court that there is no such association, the court would then be in a position to say that the Minister - - -

MR WALKER: Must be wrong.

KIEFEL CJ: - - - must be wrong. It is an unreasonableness case, unless the Minister responds to it. That is how the scheme is structured, is it not? It is structured so that the - - -

MR WALKER: We think not, with respect, for this reason. In such a proceeding, the court could certainly say of the applicant’s material, evidence, to the respondent Minister, “If there is nothing to contradict this evidence, its prima facie import is such as to destroy the necessary proposition of the association by which the character test was failed”, to which the Minister, as respondent, is permitted by section 503A to say, “Your Honour’s logic is unimpeachable but you cannot base it factually because you know, there being in evidence my reasons, that I regarded the character test as having been failed and I invoke the national interest on the basis of the material which, to put it idiomatically, I don’t have to show you, the court, just as I didn’t have to show the applicant at the time of the original decision or in notifying of my reasons”.

It would be a fairly ugly forensic encounter, no doubt, but the Minister is saying, “No, you can’t proceed upon the prima facie meaning of this evidence because, for all you know, there is a powerful array of informers whose stories are contained in 503A-protected material and, to put it mildly, cast an adverse light on the self-serving affidavits of the applicant”.

KIEFEL CJ: But whether you get to that point will depend surely upon how good the evidence is that the applicant puts forward.

MR WALKER: I think I am advancing a more extreme argument -namely that it would not matter whether it was overwhelmingly cogent – it is still the case that in judicial review it would not be possible to say that it was, in the relevant administrative law sense, unreasonable for the Minister to have proceeded contrariwise to the message of that evidence because the court can see that the Minister may have had - and it is only a speculation and must remain only a speculation – material which would contradict that.

In other words, there cannot be, by dint of a kind of Blatch v Archer applying in judicial review, any pressure put by what might be called a shifting onus on the Minister either to make a declaration under subsection (3) – that will be the relevant one - to make a declaration under subsection (3).

A court, in our respectful submission, would be committing an error of law in saying to the Minister, “You’ve got this power which subsection (3A)”, to which I was about to come, “cannot be compelled.” There is no order in the nature of mandamus available. “You’ve got this power. We all know you’ve got this power. The applicants put forward this impressive case that you must have made a mistake of fact. Your reasons say you made your decision finding facts on material which you haven’t disclosed. If you don’t disclose it, I, the court, am going to hold that it would be, was and is inadequate to answer this impressive set of affidavits from the applicant”.

That, in our submission, is contrary to a proper reading of section 503A and would be the judicial power seeking to subvert the protection, because many things are beneficially kept secret, which 503A is designed to achieve.

It is for those reasons that one cannot start judicial review playing chicken, as it were, with the Minister and saying, well, I have got this good case which I will prove and if the Minister does not make a subsection (3) declaration, the Minister has nothing to answer it and, therefore, I will win the case which turns, for example, on the proposition that the Minister could not have been acting appropriately reasonably in making a decision based on a factual premise to the contrary of my evidence.

EDELMAN J: But that is – you say, then, that it is never possible to draw an inference based on, for example, compelling evidence that has been put forward by an applicant and the absence of any response by the Minister by declaring the availability of the material to the court.

MR WALKER: That is right. That is right. I think there is a case cited by our learned friends for the Commonwealth – I will not take you to it but just to give the citation, provides an illustration of the reasoning which we submit is proper and observes the limits in that regard and that is Justice Tracey’s decision in Sagar v O’Sullivan [2011] FCA 182; (2011) 193 FCR 311. The particular passage in answer to Justice Edelman is at page 323, paragraph 64. There is other discussion as well but it culminates in that holding.

We submit by parity of reasoning that informs the approach to the claims of privileges or the assertion of immunities that it is not within the court’s power to subvert or undermine the privilege or immunity by saying, in effect, well, I cannot stop you claiming the privilege, indeed, I must hold the claim. I cannot deprecate your claiming the immunity, the law grants the amenity, but be aware that by claiming the immunity and by asserting – by claiming the privilege and asserting the immunity you deprive yourself of the capacity to answer in such a way as necessarily to permit an inference.

KIEFEL CJ: How is it subverting the immunity when the provision leaves it open to the Minister to take whatever steps are necessary in the particular case? It might be different if the Minister had the same prohibition placed upon him. I just do not quite understand how it could be said to subvert - - -

MR WALKER: It exerts a pressure, a forensic pressure in a particular case, on a ministerial discretion which, as we can see from the nature of gazetted agencies, in particular, and from other matters to which I will come in section 503B, will include public policy and governmental considerations almost certainly extending far more broadly and touching on different matters from those which are apposite to the particular litigation.

KIEFEL CJ: But surely it is a statutory scheme that creates the pressure. The scheme has allowed a discretion to the Minister obviously to – when circumstances arise where it is necessary to divulge some, not necessarily all, but just sufficient information.

MR WALKER: That is an argument which, as I say, turns on the proposition that in the absence of the Minister producing material which it is known exists and which the Minister’s reasons assert justified a particular finding administratively - the argument the Chief Justice raised with me turns on the proposition that that assertion may be disregarded in judicial review proceedings, indeed, query the argument would be it must be disregarded, if the Minister does not make a declaration under subsection (3) so as to allow the court to decide for itself whether the fact asserted to be supported by the protected information is in fact supported by the protected information, including in light of the subsequent proffering of answering evidence by the affected person. That is how it arises in a revocation case.

GORDON J: Well, that is really two questions, is it not?

MR WALKER: Yes.

GORDON J: The first is your complaint is that in the past the court has been the one who has balanced the non-disclosure as against the proper administration of justice.

MR WALKER: Yes.

GORDON J: Second that, as I understand it then, it is really a complaint about striking at the role of the court rather than striking at the non-disclosure of the information - that issue.

MR WALKER: Quite so.

GORDON J: You are asking the court to perform a function about a decision.

MR WALKER: Quite so.

GORDON J: Is it, in a sense, not dissimilar to the points made by Justice Kirby in dissent in Gypsy Jokers at 108 where his Honour goes through those sorts of complaints or criticisms that underpin in a sense, the role of the court and what the court was being asked to do?

MR WALKER: I think the short answer is, yes, though we proceed differently in this sense, and I hope this continues an answer to the Chief Justice’s question as well. We, of course, embrace the proposition that - as a legal culture we reject the proposition that justice is to be done, though the heavens fall.

There are some things more important than the administration of justice and that has particular manifestation in public interest immunity, the doctrine of the general law - not constitutionalised but a doctrine of the general law where explicitly, definitionally the immunity is granted because a judge determines that in the setting of the particular litigation with which the judge is seized in which the claim is raised - not necessarily by a party, obviously two private parties may set in train, say by subpoena, a public interest immunity claim – that one of the attributes, not itself absolute, of the administration of justice, namely, the reasonable opportunity both to present an intended case and to answer an allegation, entitles impartially as between parties, the parties to marshal material – again, subject to reasonable regulation, consideration of resources and efficiency – so that the expectation is that relevant material can be placed before the court.

It is so far from being absolute that nobody has any doubt but that it is perfectly proper and casts no adverse light on the administration of justice, where a judge determines that, in that case and for the production sought, the public interest - take the most obvious case - the public interest in maintaining for the purposes of national security the secrets of dealing between our counterespionage agencies and the counterespionage agencies of another country so that there will not be production.

Although it will be relevant, for the purpose of that decision, for the court to consider how critical the material is, say, to the plaintiff’s case against the Commonwealth, if the Commonwealth be a party – it does not have to be a party – the plaintiff’s case, I should say – although that will be relevant in striking the balance it will absolutely not be determinative.

The court must never shrink from saying, “I see that without this material you will very likely fail. I may even see that the case must fail without that material”. But it is clear from the nature of the evidence concerning the information for which public interest immunity is sought that that outbalances the interest of the administration of justice in this case. We have very familiar common law quasi-constitutional considerations to similar effect for the special category of Cabinet confidentiality.

Now, for all those reasons, in our submission, it is clear that 503A is attempting to achieve a similar outcome, namely the prevention of material being available, in our case, to a judicial review court – it could only be a judicial review court for 501; there is no merits attack in a court - even though it is understood that in the nature of things, that is, information that is relevant to the exercise of a power under 501, one of the criteria for it not being disclosed – even though in the nature of the case it can be seen that by that means the judicial review court will be deprived in the absence of a declaration under subsection (3) – will be deprived of knowledge of what was before the Minister.

It follows, assuming responsible use of court process by lawyers, that no one will be able to allege, even if the instructions of the client are very clear, you will not be able to allege that the Minister did not have before him or her material which could reasonably provide a basis for the findings, say, of the nefarious association.

KIEFEL CJ: Could I ask you to expand upon your answer to Justice Edelman earlier? In the case where there is evidence put on which could satisfy the court of itself that there was no such association - your answer was, I think, the court was still, nevertheless, unable to draw an inference that - - -

MR WALKER: The Minister had known.

KIEFEL CJ: - - - in relation to the character test that the Minister could not reasonably suspect the association.

MR WALKER: That is right. That is right. That is because - - -

KIEFEL CJ: Can you expand on that? Why? How does that operate?

MR WALKER: Because for all one knows the 503 protected material contains cogent opposite information.

KIEFEL CJ: But the court would be speculating.

MR WALKER: Yes, and must not speculate about the head of judicial review which is, the Minister did not have material which could rationally support that conclusion because it will not be known. The onus is on the applicant to show there was a defect in process, not an error on the merits but a defect in process by the Minister. The relevant defect in process is not applying the sufficiently rational approach to the material before the Minister to make out one of the probanda for the availability of the administrative action which is being challenged.

EDELMAN J: But why could not the inference be drawn that if the Minister had that material, the Minister would have chosen to reveal it in the light of the contrary information before the court in circumstances in which the court could afford all of the protections that would usually come with public interest immunity?

MR WALKER: That last phrase raises questions that Parliament sought to address under 503B, to which I will come, but, in our submission, the ultimate answer to Justice Edelman’s last question is that by reasoning in that fashion the court brings an illegitimate pressure to bear on the Minister concerning a decision – namely, a declaration under subsection (3) whereby there may be disclosure, which on its face ought to be informed by considerations that may be far broader and with ramifications that have nothing whatever to do with the particular complaint about the cancellation of a particular visa.

In other words, as we will see, there may be relations with other countries that are affected by a decision to make a declaration. There may even be treaties with other countries, as notoriously exist in relation to the United States, that purport to regulate the means by which official action in Australia can reveal secrets imparted by the Americans to us.

BELL J: On occasions, looking at public interest immunity, in particular contexts it is recognised that where the public interest demands that material be made available, the Minister has a choice. Is that an illegitimate pressure?

MR WALKER: Your Honours appreciate how tempting it is for me to say, no, there is nothing illegitimate about it and one ought to be able to mount a case by saying unless they make a subsection (3) declaration then I have got my material, it occupies the field and the court can only – it is a kind of a Jones v Dunkel, I suppose - the Minister has got the material, will not supply it, that should strength the confidence in the - - -

BELL J: Has a statutory power to disclose it on condition and chooses not to.

MR WALKER: Yes. Your Honour, of course, it is tempting for somebody standing at the rostrum on behalf of a judicial review applicant facing the problem created by protected material to say, well, look, because there is a statutory provision by which the protection may be lifted and – I have got to come back to develop this – and accepting for the sake of argument that it can be lifted without endangering the public good, which is supposedly secured by 305A, then the court ought to proceed on the basis that by threatening to draw an inference adverse to or make a finding based on uncontradicted material put forward by the applicant on the Minister to exercise that power.

It has not hitherto been done, and Justice Tracey was seized of exactly that argument in Sagar v O’Sullivan and said for reasons which in our submission are unexceptionable that that would - to develop an earlier proposition the Chief Justice has asked me to consider - that would undermine or subvert the intended freedom of discretion given to the Minister.

I say “freedom of discretion” because, under subsection (3A), as I have already observed, there cannot be judicial prodding by order to consider making a subsection (3) declaration. There could not be an “unless” order made, for example. What I am being asked to consider is nonetheless in the to and fro between the applicant for judicial review and the respondent in judicial review the court may reach a stage to the respondent, you understand that if you do not exercise your subsection (3) power, it is open to me to hold you, the Minister, must have transgressed the limits of proper administrative decision-making on this factual question, because all I have got is this convincing set of alibi and community evidence that shows the alleged association could not possibly be true.

KIEFEL CJ: Is that all? Is the Minister required to give reasons in relation to the refusal?

MR WALKER: Yes.

KIEFEL CJ: So the Minister would have to say why - - -

MR WALKER: Yes.

KIEFEL CJ: - - - he continued to refuse.

MR WALKER: That is part of the reason that informs my answers to your Honour’s questions to me. The reasons say – and they do in these cases – that it is on the basis in Mr Te Puia’s case wholly, in Mr Graham’s case arguably only partly - - -

KIEFEL CJ: No, I am positing the circumstance where the visa holder has taken up the invitation to put the evidence before the Minister and the Minister refuses to revoke his former decision and gives reasons.

MR WALKER: Would your Honours just excuse me for a moment. Yes, reasons for the decision not to revoke, and those reasons of course may say, I have reason to suspect that there was this association on the basis of having taken into account material which is 503A protected. So that is a statement to the judicial review court by the decision-maker that the court could not, as it were, on its face refuse to accept because 503 had been invoked. A court could not responsibly say to a Minister who has the power negatively under subsection (3) to disapply 503A but cannot be compelled even to think about that.

NETTLE J: That would be exactly the same if there had been a successful claim for public interest immunity.

MR WALKER: Now, when there is a claim of – yes, the actual outcome remains the same but they come from utterly different origins. We have tried to make clear in our written submission that we make it crystal clear that, of course, where there is a PII claim made by, say, the Commonwealth has responded. There need not be a respondent; there need not be a party at all. But say the Commonwealth makes a PII claim; the effect often forensically will be to leave the court to decide the case on what is ex hypothesi incomplete material. I will not say that is done cheerfully but it is not regarded as either paradoxical or inappropriate for the court to do so because the hypothesis is the public interest that grants the immunity outbalances the public interest in the administration of justice on complete material.

There has already been the establishment of the balance. So the court proceeds of course to say in that case, the plaintiff has this material, the defendant does not have any material, it is of no moment for the defendant to say, yes, but I have got the PII stuff. Because you cannot make it - once the PII has been determined there can be no use of the material at all. It is not a discretion, it is a duty then to maintain the immunity.

So, the court simply says what is the universe of evidence I have got? I have got the applicant’s evidence to this effect, the respondent has no evidence, that is what I am going to find. Now, that is an unremarkable and proper outcome of the subtraction from the body of material available to a judicial review court by PII of material that the respondent Minister, say, has correctly asserted to enjoy public interest immunity.

GORDON J: As I put to you before, your complaint is that you have relevant information which up until now that the court has controlled in the sense that the court has made a decision by the balance between admissibility and relevance versus public interest immunity and it has now been taken away from the court and given to the Executive.

MR WALKER: Yes. In the example I have already given of Justice Tracey’s approach in Sagar v O’Sullivan, the antecedent exercise had been performed in Parkin v O’Sullivan - there were two cases that went up and Sagar was one of them as well – [2009] FCA 1096; (2009) 260 ALR 503, I do not need to take you to it, but there had been the decision of public interest immunity. The balance had been struck, as Justice Gordon has asked me to consider. The balance had been struck. Justice Tracey then had to deal with the position which, as it were, then told against the applicant and the applicant in vain argued, look, I cannot see this material, you should draw an inference that assists me, the applicant not the party who has claimed successfully the PII.

The proper response by the court is, but there is nothing nefarious about claiming PII, it is of its nature something that has to be claimed because the public interest in the secrecy is greater than the interest of the administration of justice. It is not, as it were, a bonus advantage for a respondent who is a Minister, it is a Minister’s duty to consider PII and to claim it where appropriate, in effect, letting the chips lie where they fall for the administration of justice affected by the extraction of that material.

EDELMAN J: Sagar v O’Sullivan is a “no evidence” case.

MR WALKER: That is right.

EDELMAN J: Is there reasoning in Sagar v O’Sullivan that would extend that to, effectively, an unreasonableness or irrationality case?

MR WALKER: No, they failed at an anterior stage. That is, how can you maintain - is the paraphrase of the reasoning in Sagar against the applicant - how can you maintain that there was not material before the decision-maker when we know there was material whose contents we cannot know before the Minister.

What we submit is that it has never been suggested that in such a PII case where, I stress, it is a duty to claim PII and it is not a matter of, well, if I knew the PII would hurt my case I would not have made the claim and now I waive it; I mean, it is not like that. The nature of PII is that there is a public interest adjudicated by a judge and a balance struck by a judge in relation to the administration of justice, not, heaven forbid, by the Executive judging that it is in the Executive’s interest which it will self-appraisingly identify with the public interest that there not be - - -

KIEFEL CJ: The Minister can decide to make a declaration and then seek a ruling on public interest immunity. The problem would be that it is the Minister’s choice.

MR WALKER: Yes, and that is the problem from our point of view. The problem from the Minister - - -

KIEFEL CJ: But the point is there is nothing to prohibit the Minister taking that course.

MR WALKER: No, and let me jump to the end of this case. If we were to persuade your Honours that 503A does not operate in the manner that it is understood to operate - which I think amounts to an invalidation; it cannot really be reading down – if we win that case, we are not out of the woods because I fear they may consider claiming public interest immunity, but we will not be able to complain about that if that turns out adversely to us.

The whole point about 503A – they are mischief – from the Parliament’s point of view is what the government party obviously feared in introducing these laws - whichever government was in power, and it does not matter – they feared that the court might not uphold every claim for PII. That is all there is. That is the reason for 503A.

Section 503A(2) is there for the cases that would not be protected by PII and it is for those reasons, in our submission, that it is very evident what the legislative intention is and for reasons I am about to come to, which I think touch in further answer on something that Justice Edelman has just raised with me, one can see the way in which there is a different framing of judicial discretion under these provisions from the way in which it would be deployed, or judicial evaluation would be deployed in public interest immunity.

Could I go back, please, to the statute. You see that there is a cascade of provisions designed to secure protected information from disclosure once there has been a subsection (3) declaration. I will not read them but you see the cascade effect in subsections (4), (4A), (5) and (5A). They contain within them references to section 503B, particularly subsection (6), to which I will come shortly but not immediately.

The cascading provisions, as I will call them, presumably designedly, do not attach to a court and do not attach to the Minister and it is to be recalled – and I think this goes to matters the Chief Justice has been asking me to consider – that the protection given by subsection (2)(c) is not in the form of the Minister being prohibited but rather the Minister being immune from a requirement to disclose, and that of course is obviously all of a pattern with what one then sees in subsection (3), to which attention has already been given.

In subsections (6), (7) and (8) of section 503A there are provisions I do not need to dwell on that, as it were, show the paramountcy and centrality of this regime to the material protected under it. Could I, without spending too much time on it, draw to your attention that part of the scheme - that is not the target of our attack – but part of the scheme is 503B. I think the Chief Justice was referring, in particular, to what I am going to call the “device” invented by section 503B of getting a free look at what the court would do.

Let me explain why that disrespectful description is applied by us. In subsection (1) of section 503B, an application may be made by the Minister. Whether any of this is enlivened depends upon a non-justiciable decision by the Minister. The Minister cannot be forced to make an application and it would be, obviously, contrary to the separation of powers for the judicial arm to tell the Minister, I want you to commence proceedings before me. So, the Minister may apply for orders which are described thus:

such orders as the Federal Court or the Federal Circuit Court –

it does not apply to this Court:

considers appropriate for the purpose of ensuring that, in the event that such a declaration comes into force –

that is a subsection (3) declaration, it comes into force by the Minister’s writing:

and the information is disclosed to –

one of those Courts:

the information is not divulged or communicated to:

(d) the applicant in relation to the substantive proceedings –

That would be our judicial review against the 501 cancellation or a former visa holder’s judicial review of a refusal to revoke it. Or:

(e) the legal representative of the applicant . . . or

(f) any other member of the public.

So, the jurisdiction, the limit of power given to the court upon that application by the Minister, is to consider the Minister’s application which, obviously, with respect to the content of information, cannot possibly be shared with an opponent – and that is not, in itself, remarkable, that happens with PII:

orders . . . appropriate for the purpose of ensuring that –

So it only goes in one direction – for ensuring that if there is disclosure - the “if” – that is, “in the event that”. That is there because this does not determine that the information will be used in court. This is an application that is made proleptically in order to obtain, as it were, intelligence of the judicial attitude to this material if the Minister were minded, in the future, to make a subsection (3) declaration. Obviously, this provides intelligence for the Minister considering whether to make a subsection (3) declaration and, perhaps, what circumstances to specify.

We submit that on a fair reading of subsection (1), this provides no power of the court to decide for itself that there ought to be disclosure – that is, left to the Minister under subsection (3) - and, in particular, does not empower the court to say that I do not think it is appropriate to do anything that prevents such divulging or communication because I think it should be divulged or communicated to the applicant. I accept that on that last point I have made, there may be another view, informed, no doubt, by the principle of legality and query audi alteram partem of a fundamental kind.

But the intent, we submit, of these legislative devices seems clear the preferable course is that these are words that confine the court to making orders appropriate for the purpose of ensuring non-divulgence. Under subsection (2) there are non-exhaustive examples of the kind of orders that may be made, they are in themselves unremarkable and borrow from well-established powers.

Under subsection (5), there is a not unfamiliar list, including obviously item (i), of relevant matters. Now, these are mandatorily relevant and they are also exhaustively – they are mandatorily relevant and exhaustively relevant. This is a list of all and only the matters that may be taken into account. Not too much should be made of the printed text because this may be, of course, expanded by regulation as you see from item (j).

But when you look at this material, much of this will be grist to the mill of a general law public interest immunity adjudication. But they are not being taken into account for the balancing exercise which is a PII exercise. That has already been made by the application of 503A which is by a combination of legislation – that is, the Houses of Parliament, our Parliament – and Executive action, namely, the imposition of the condition that might be regarded as the intramural dealing between the gazetted agency and the recipient officer.

So it is the combination of 503A’s effect and the action of imposing a condition of confidentiality, in the circumstance that the information is relevant, that will produce the non-disclosure which could not be, or fundamentally, or as we put it in our outline, radically different from what obtains in PII where the interests of the administration of justice in that case go into the balance as against other matters of public interest that may, in a particular case, outbalance, outweigh, the administration of justice where matters such as you see in subsection (5) of section 503B would be no doubt considered in the nature of things.

However, subsection (5) does not mean, as it were, that we have come back in section 503B to what I will call a constitutionally unexceptionable position, far from it. If anything, that highlights that the court’s role is circumscribed and neutered with respect to the critical question which is disclosure or not.

KIEFEL CJ: Could I just clarify something with you, Mr Walker? Section 503A(2)(c), do you say that we should read that as directed to the court exercising powers of its own motion?

MR WALKER: Section 503A(2)(c), yes.

KIEFEL CJ: Section 503A(2)(c), “must not be required”, is that addressed to the court, so that we are to read it to say that the court could not - - -

MR WALKER: That is right.

KIEFEL CJ: - - - exercise any power of its own motion? I accept that it may well be said that a person could not use the court – they could not apply to the court for the production of documents, but could the court of its own motion?

MR WALKER: No, they “must not be required to divulge” will cover, and obviously covers written or spoken communication, and it obviously covers during a hearing and before a hearing, so it obviously covers discovery, subpoena, direction to answer a question.

KIEFEL CJ: My point is that the language appears to be directed more to a person applying to have documents produced to a court rather than - - -

MR WALKER: Yes.

KIEFEL CJ: - - - because it does not say that the court must not.

MR WALKER: No, it does not. It does not. That may only be a regrettable habit of language by the drafter though, for this reason: it is clear that the words “must not be required to divulge” et cetera, “to a court”, was both intended to and successfully has achieved prohibition on the issue of a subpoena. Now, if somebody applies for a subpoena - - -

KIEFEL CJ: That might be the case

MR WALKER: - - - it will be refused, must be refused because of paragraph (c).

KIEFEL CJ: Are you saying then that there could be no circumstance in which the court could of its own motion.

MR WALKER: I am headed that way; that is the first step. The next step is that if the Minister, I cannot remember the last time that happened, but anyhow, if an officer were in the witness box and asked a question about the course of decision-making and the answer would communicate 503A protected information. The court could not exercise its undoubted power ordinarily to direct a witness to answer on pain of contempt for not doing so.

That is the requirement. The court could not require that Minister or officer in the witness box to divulge that information because that would be divulging it to a court and the next step obviously is clear. There is no difference in principle and none indicated by this language between those two familiar ways in which the disclosure of information may be compelled in and for a court. No difference when the position is one which could be described as being of the court’s own motion.

Now, it is a little difficult to be categorical about when that might arise, bearing in mind that courts institutionally do not conduct cases. On the other hand, case management - we know in relation to case management that there could be occasions where the court wants to know, for example, why material is not before the court or why there has not been disclosure of a kind sought by the other side, and one might imagine - and this is just imagination - a court making a direction that has not been sought by the opposing party. That direction, we submit, either in case management or during the running of a case, a request for information by a judge to counsel for the Commonwealth.

NETTLE J: But you do not say - - -

MR WALKER: It could not extend as far as requiring communication. I am sorry, your Honour.

NETTLE J: Do you say that this goes as far as precluding the court drawing a Jones v Dunkel inference from the failure of the Minister to adduce the evidence on which he said he relied?

MR WALKER: Yes, yes. It is not only, say, 503A(2)(c) that does that, but it is the scheme in which it appears, including of course, where the power resides under subsection (3) and the relation of that power to the judicial arm seen by subsection (3A), but yes, yes. In other words, a price is not levied on a Minister’s refusal to either consider or, if considered, to make a declaration under subsection (3). A price is not levied but in that case the Minister may proceed to suffer judgment on the fictitious basis that the Minister did not have any material other than that which has been disclosed to the judicial review court.

That would be to require a fiction because the court would know – indeed, that is why the court would say, “Look, you have got it; why do you not show it to us? If you do not show it to us I am going to draw the inference there is nothing in it that would help you”. That is the Jones v Dunkel kind of reasoning. You could not do that in judicial review because that would be, in effect, to proceed upon the fiction that there is nothing which would justify the decision in the material which the Minister’s reasons has asserted does justify the material.

Of course, at the heart of our case is that no judicial review should be determined by a Minister’s ipse dixit unexaminable by a court. That is the Chapter III heart of our case, which we have written enough about for me not to elaborate in address. But it does not go so far as to say that a Minister must suffer judgment if 503 be valid, because I am trying to show that it is exorbitant. In trying to show it is exorbitant I am saying it cannot be relieved against by a Jones v Dunkel approach. Or, to put it another way, if that be the approach, which may well, as it were, be greatly welcomed by people in interests like my clients, it would be, we think, the first time this Court has ever taken that approach to something in the nature of a privilege or immunity.

Now, I stress, this is not to gainsay the ordinary outcome. It has been remarked in passages – Scientology is a classic case - the ordinary effect of the extraction from the body of material able to be adjudicated upon by means of public interest immunity of material. You cannot have it both ways.

NETTLE J: But why could the court not say, “Look, if you really say it is all about privilege, you make a claim for public interest immunity and we will decide it. If that is successful then obviously we cannot hold it against you”?

MR WALKER: That would be entirely salutary, your Honour. Indeed, really we are here to argue that is of course how it should be but we need first to knock out 503A.

NETTLE J: I wonder. If 503A, contrary to your argument, permits the drawing of a Jones v Dunkel inference, why is there a problem? If the Minister has something which is truly covered by public interest immunity, he can make a successful claim for it.

MR WALKER: If this Court were to determine that maintenance, by refusal to consider or to make a declaration under subsection (3) of 503A protection permits, query “compels”, a court to proceed on the basis that nothing so protected would supply that which the applicant alleges is missing then we have achieved our mission by another means.

GAGELER J: It would be a very strange Jones v Dunkel inference, would it not?

MR WALKER: Yes, absolutely.

GAGELER J: If you actually think through what you are inferring, what is it?

MR WALKER: It produces a fiction because you start with the premise there is something the court is not being told. Now, that is a premise that remains true for ever. There is something there that the court is not being told. You add the fact for the purpose of administrative law that it is said to be relevant. Indeed, the court must be satisfied it is relevant to the exercise of the power, otherwise there is no 503A protection. So you have got two premises at the outset. It does exist and it is, was, relevant to the decision under challenge.

Then, because there is a failure to exercise the subsection (3) dispensing power or supplying power, the judicial review court comes very close to saying, “But I am going to proceed as if in fact there is nothing there”, or “It was not relevant,” or “Could not rationally have affected,” et cetera.

EDELMAN J: No, it is a failure to exercise the subsection (3) power in circumstances with all of the protections that come under 503B.

MR WALKER: Yes. It may call for social deprecation of an excessive bureaucratic concern for secrecy but it is not judiciable. The court cannot force subsection (3) to be considered or reconsidered. It is not susceptible of judicial review, the Minister’s refusal to consider making a subsection (3) declaration.

EDELMAN J: Yes, but you say that no inference can be drawn - - -

MR WALKER: That is right.

EDELMAN J: - - - in circumstances where 503A(3) has all of the protections under 503B.

MR WALKER: Your Honour has appreciated that I am saying this law is bad, that is, it has these vices which invalidate it. If your Honours were to rule, I stress, those vices do not exist because a court should react thus to 503A being applied and thus suits people like my clients, then, as I say, our mission will have been achieved in a different way. However, we do urge your Honours that as a matter of principle what for convenience - and I think it is my fault – is being labelled a Jones v Dunkel approach, but just using it as shorthand only, is, if I may say so, with great respect, as Justice Gageler has noted, at least arguably a pretty special transmogrification of that approach to inferential reasoning.

GAGELER J: Let me elaborate. A Jones v Dunkel inference is an inference that a party would not advance that party’s case by adducing evidence. Here we know that there is evidence that could be adduced, it is just we are not telling you.

MR WALKER: Exactly. The premise is, I stress, that 503’s application is relevant to the exercise that (a) it exists and (b) it is relevant.

GORDON J: And we are told it is relevant by reference to the reasons for decision.

MR WALKER: Yes, and here it is in the special case as well, yes. I think I was about to conclude what I wanted to say about 503B.

KEANE J: Mr Walker, it might not be a question of drawing Jones v Dunkel inferences but it might be a question of the point at which it is possible to say that there really is an inconsistency with 75(v) because might it not be the case that where the Minister declines to make a 503A declaration and then on an application under 75(v) says, well, there is this compelling case that I ignored or I rejected because I had secret information - - -

MR WALKER: That is right.

KEANE J: - - - that I am not going to tell you about.

MR WALKER: That, with respect, is the paradigm that tests this argument, yes.

KEANE J: Well, if that were the case, would it not be that it is at that point, maybe only at that point, that you would be able to say that there is actually the adopting of a position which is inconsistent with the jurisdiction conferred by 75(v) because it is only at that point that you have the Minister saying my decision is truly unreviewable.

MR WALKER: Yes, yes to all of that, no qualification, and the language that your Honours have seen, I will go to it very briefly in some of the cases, is not only precluded but also curtail, limit et cetera, and our whole point – I think Justice Gordon raised this with me in her first question to me – our whole point is a similar effect can, and if I may say so, should, given the doctrine, follow upon a successful claim of public interest immunity. That is, that the judicial review, to use the colloquialism we have used in our submissions, would be stymied, at least on certain grounds.

KEANE J: Well, no, that is not right, is it? If there was a successful claim for public interest immunity the court would know, although your client might not, but the court would know there is a basis so the decision is reviewable.

MR WALKER: Only in a very odd sense which, with respect, is of little comfort to the applicants who must lose.

KEANE J: Well, you might say odd, you might say unsatisfactory, but it would, nevertheless, be that at least the court would be in a position, not ideally perhaps, but nevertheless, in a better position than with nothing.

MR WALKER: Yes. The key is, it is the court that would have done it. It has lifted the bedspread, looked at the material and performed the balance which requires consideration of the administration of justice in that case. So, as is notorious, it might be different if somebody is facing life imprisonment and this is absolutely central material to the theory of the prosecution case, the balance will be approached unquestionably with a greater sense of gravity but also probably differently from if it is a not particularly large head of damages in a civil claim. It is that balance being done by the court which is administering justice between the parties, here 75(v) justice, it is that court which is appropriately under PII conducting a balance.

The point about 503A is there is never any balance required of the bureaucrat or permitted to be applied by the court. The closest you get is 503B(5), to which I have drawn attention, and that is not a balancing exercise that has disclosure or not at the end. That is a consideration of various matters for the purpose of framing an order for the purpose of ensuring non-divulgence to, amongst other things, the applicant and the applicant’s lawyers.

So, Justice Keane’s questions, with respect, are directed to the very point of our case and, yes, we accept that 503A does not have a collision with 75(v) until there is 75(v) jurisdiction invoked. When it is invoked and it can be seen that it is 503A, not PII, which is removing from the purview of the court at, say, the instance of the applicant, the material which the Minister had before the Minister, then there is the collision because that is to say you may not review on the basis of administrative law inadequacy of the material before the Minister because, if I may say so, there is an unpleasant air of I have snookered you, I have said in my reasons that I relied on material which was adequate to make out the statutory ground for cancellation, but not only you are not going to be shown it, the court is not going to be shown it.

KEANE J: But we have not arrived at that point, have we, because we do not have in this case the facts that make up the hypothetical that we have all been discussing, which is that there is a compelling statement - - -

MR WALKER: We certainly do not have that.

KEANE J: - - - by either of your clients that they are not, nor have they ever been, members of these sorts of organisations, or that any organisation of which they have been a member has never performed criminal activities.

MR WALKER: That is not essential in order to render ripe our constitutional argument because it is not only the possible ground of membership of a gang that will be relevant to our complaint that we cannot review this decision because of 503A. It is not only membership of the gang. It is also national interest and it is also discretion. As you have seen, discretion is an important matter. They are balance questions and they are questions where rationality may, for all we know, not be shown by the material upon which there has been reliance.

The same is true with respect to the attribution of association and criminality. We are not being shown the material by which criminality is attributed to others, and has to be under the relevant part of the character test. So this case is ripe. We do not have to, as it were – this point is not available only to those people who deny on oath that they have any association with an outlaw motorcycle gang, to use the facts of this case.

Your Honours, the ministerial, not judicial, whip hand in this regard can be seen continued in section 503B, see subsection (7)(b). The material has been disclosed to the court for the purposes of its 503B decision as to what would either judge do if you were to have a declaration. It can be seen that even if that has happened, and there has to be then a ministerial decision. This bland phrase:

a fresh disclosure of the information is made in accordance with a declaration under subsection 503A(3) -

means if the Minister wants it, not the court. Subsection (8) shows that the Minister can veto, and perhaps curiously so can the applicant, any “variation or revocation” by the court of the regime, and under subsection (9) if, how shall I put it, things are not going as the Minister likes it, or perhaps fairly, if matters have superseded the need for the application, it may be withdrawn. That must mean – no, that is simple language. We think it means there will cease to be jurisdiction for the court to make orders of a kind contemplated by 503B.

Under subsection (10), the ministerial whip hand is continued so the Minister can, as it were, pop in a subsection (3) declaration for what I might cynically call as a response to forensic exigencies as they obtain from time to time. So there cannot be, as it were, a prevention by the court upon the lines of speak now or forever hold your peace. Then, under subsection (11), just in case there was any lack of clarity concerning the ministerial whip hand, the Minister is expressly able to:

refuse to make a declaration –

even if there has been an order made ready to sweep into operation to prevent divulgence. It is provisions like that that, in our submission, make it extremely difficult to suggest that it can, in a forensic way, but by what would be a shifting of an onus, be adversely visited upon the Minister that he or she has not made that declaration.

Now, just to return to the beginning briefly, all of this, this scheme that I have just finished taking your Honours to – all of this is in the context that the conditions for the imposition of 503A non-disclosure obligations do not equate to PII at, all, in any regard. The closest approach one gets is the reference to confidentiality. It is a million miles away from the subject matter. Every day confidential material is required to be produced in court to be examined in public. That is never an answer – that is, it is never a determinative factor.

It has no necessary relation to PII at all. It may be that PII, for example, could be given for material, the components of which is largely not confidential. Thus, notorious matters of politics or international relations would be a good example. But the pulling together of them in a particular way, and the revelation of sources, for example, is a very ordinary unremarkable way of attracting a judicial decision that the administration of justice is outweighed by the public interest in maintaining that secrecy.

None of that plays at all, either at the bureaucratic level by which 503A may be attracted at all or at the hypothetical judicial level where a court decides whether 503 has the operation proposed and the court does get to decide. This is not a piece of self-levitating executive power.

But the court’s decision is confined to – was there an imposition of a condition of confidentiality? We submit that does not even include was it confidential. Second, was it relevant? The latter, in particular, will not go anywhere near the balancing factors by which secrecy may outweigh the availability of material for judicial review. That would be the heart of a PII -

GORDON J: So is the complaint really twofold now? One is the court is removed from the balancing exercise, whether or not it is the Northern Land Council approach of public interest immunity or some other form of - - -

MR WALKER: Yes.

GORDON J: - - - privilege but, second, that that task is then shifted to the Minister to undertake a narrower more focused exercise by reference to the provisions of the statute being a party to the litigation.

MR WALKER: Yes, and being a party – this is all – we know where there is aimed at. This is aimed at depriving a judicial review court of material that was relevant to the making of a 501 decision. That is what it says.

GORDON J: There is one more aspect to it. It is a narrower more focused exercise undertaken by the Minister, is it, but having the potential to obtain a quote from the court in advance?

MR WALKER: That is right, yes. That quote in advance does not come anywhere near PII either because it is only a quote for building a particular kind of thing, an order to prevent - - -

GORDON J: I understand that. That is why I said it attaches to the narrower and more focused task, rather than to the claim for PII.

MR WALKER: Yes. Now, to return to something Justice Nettle raised with me, how much better from the point of view of constitutional doctrine it would be if all of this went through the lens of public interest immunity, but what I have just tried to evoke as a sentiment in your Honours is the opposite of what motivated the enactment of these provisions.

Could I remind your Honours it is conveniently found in one of the authorities you have, Vella v Minister [2015] FCAFC 53; (2015) 230 FCR 61 at 78 to 79. In paragraph 71 – I will not read it all – there is extracted from the second reading speech words that include this:

At present, it is difficult for the Department to use –

criminal intelligence and related information:

in making character decisions because its disclosure might be threatened.

That is the threat that we refer to in our written submissions. Unpacked, there is, we submit, a remarkable and deplorable project afoot with such legislation. The threatened disclosure is what happens when a court rejects a public interest immunity claim and also presumably rejects other orders that are well within the court’s power to protect interests that ought to be protected from disclosure.

The courts, if I may say so without seeking to curry favour, have not been obviously delinquent either institutionally or individually in guarding the public interest such as informs public interest immunity and the courts have powers to impose what I might call various embargoes on the availability of material that should not be generally available.

So unpacked, this idea of threatened disclosure is talking about what might happen if the Executive’s view of where the public interest lies is different from that of the judiciary’s view and, in our submission, when one is talking about 75(v) one is talking about a jurisdiction which it is for the judges to administer, not one where the Executive can say, “I concede”, however grudgingly, “that 75(v) says what it says and means what it has been explained to mean - see SI57”.

But I say that I can, without invoking PII where I fear a threatened disclosure, meaning if I lose that argument, under 503A, with my negative power under its subsection (3), I can keep this material from you the judicial review court. Section 503A is thus to be seen not as a provision which, as it were, in clunky fashion, gives a PII role to Ministers and those advising them - it does not do that at all, as we have shown.

In far more sinister fashion, it provides for so-called protection, secrecy, non-availability to a judicial review court acting under 75(v), of material which ex hypothesi would not get PII protection because that is what the threatened disclosure means.

It is for those reasons, in our submission, that it is an abortive attempt to strangle, as we put it, the possibility of judicial review on, if not all possible grounds, certainly on grounds which, as most of them do, require an understanding of what the Minister had before him or her when making the decision - not all grounds require that. But grounds that do not require that such as procedural fairness are, as we have pointed out, not available in cases such as this in any event because by reason, as I have pointed out, of section 501(5), there can be no complaint about procedural fairness.

There have been failed attempts in the past, in effect, to enlist procedural fairness against a secrecy provision to say procedural fairness requires that I be shown that which I have to answer and it cannot be a proper response to say but that is secret material and you cannot be shown it. Those battles have been lost a long time ago. Procedural fairness will not avail even where it is not excluded but here it has been excluded by clear words.

So you are left pretty much with heads of judicial review which can never simply be a matter of merit, of course, heads of judicial review which either as to all of them, which we suggest gingerly is the proper conclusion or as to virtually all of them, will require canvassing what the decision-maker had, whether it be a failure to take into account a mandatory relevant consideration, a taking into account a legally irrelevant consideration, exhibition of bias, exhibition of bad faith, a failure to comply with a statutory requirement, if not as to procedure as to some criterion that has to be found, all of this will be revealed or not by the body of material available.

Hence, in statutory judicial review, the routine assembly of the bundle by which one knows the universe of material to which the parties can resort in order to understand was there, for example, material before the Minister that could, with appropriate degree of rationality, justify the necessary fact being found which would be a very common head of judicial review utterly precluded by the application of 503A in the manner suggested against us.

When one considers a “no evidence” argument, it is all the more obvious. Imagine trying to advise let alone plead a “no evidence” case where you do not know all the evidence that the decision-maker had and you know that on a critical point there is relevant material that you do not know the context.

Your Honours, the language I referred to earlier can be briefly noted. We have given you from all those from which there might be selection in our outline for address. Proposition 2 you will see our citation of Plaintiff S157/2002 v The Commonwealth (2003) 211 CLR 476. The particular passage is at 513 to 514 in the plurality reasons in paragraph 104, and your Honours will recall the language in relation to the “centrality, and protective purpose” of the 75(v) jurisdiction. About an inch down from the top of 514 you see a reference to “impair[ing] judicial review”, so it is not an all or nothing.

There are questions of degree and, of course, the different degrees may impart different qualities. We accept that. Much regulation of 75(v) jurisdiction will be unexceptionable and the jurisprudence in this Court about what I will call time limits is a good example of that – Bodruddaza and Li, for example. Also in that same paragraph, 104, the caution we note, as it were, is expressed to the Parliament about the:

significant barriers in the way of legislative attempts (by privative clauses or otherwise) to impair judicial review . . . this limits the powers of the Parliament or of the Executive to avoid, or confine, judicial review.

We submit that 503A is an example of a failure fully to embody that judicial caution.

EDELMAN J: If you look at paragraph 81, there is a reference at paragraph 81 to the ability to “prevent the issue of certiorari”.

MR WALKER: Yes.

EDELMAN J: You read that, do you, as effectively certiorari to quash, not certiorari to remove?

MR WALKER: I think so. I think in context that is what is meant. It is a challenge probably beyond me to construe what certiorari means when it is not used in the Constitution, which is really what paragraph 81 is looking at.

EDELMAN J: If one is talking about certiorari to remove the whole of a record for the purposes of, say, prohibition or mandamus - - -

MR WALKER: Yes.

EDELMAN J: - - - then your submission is that if that interferes with – or the restriction upon that interferes with the other prerogative writs, or constitutional writs, then that is impermissible.

MR WALKER: Absolutely. Anything – and if I may say so, the ingenuity of those who devise legislation is such that it is an indescribable breadth of means by which obstacles can be placed in the way of those who wish to ask the judicial power to adjudicate an excess of power by the Executive.

Paragraph 81, it is to be recalled, turns upon an important distinction of non-jurisdictional error. There are cases, of course, where there is no access at all. The grandeur of 75(v)’s rule of law role is not engaged in non-jurisdictional error. The closing words of that paragraph 104, as I say, “avoid or confine”, the alternatives show that there may be purported regulation, as 503A no doubt is, which nonetheless is no mere regulation at all.

The Chief Justice in – I will not take you to it but I give you the reference – in his paragraph 6 uses similar language: “abrogate” or “curtail”. In Bodruddaza [2007] HCA 14; (2007) 228 CLR 651 paragraph 53 – I will not take your Honours to it; simply a reference - similar phrase is “curtail or limit”.

Your Honours, proposition 3, with which I have otherwise dealt, we have appended citations of Gypsy Jokers and K-Generation. On reflection, it is not necessary for me to take you to it; the point is sufficiently made in our written submissions. May I emphasise that it is for this purpose. In those passages that we have given specific references to in both those cases, it can be seen that the ratio, the way in which the court’s reasoning produced the outcome was to inquire of those State statutes - these were Kable cases - do they really do what those who complain about them say they do? Are they as bad as they are made out?

Sub silentio, I cannot point to anything more solid than that. The very mode of reasoning of the court in those cases seems at least to embrace the proposition, because if they did – if there was, say, a dictation of the kind that was in question in Gypsy Jokers then there would be a different outcome. That is why it was the decisive question.

Once the interpretation was rejected that there could be dictation by the Commissioner of Police to the court as to whether disclosure of material would unreasonably prejudice operations, et cetera, once that was rejected then we were in very familiar country – the kind of country occupied by public interest immunity – and there could be no objection.

That does not mean that one says, as it were, those who argued for the Gypsy Jokers were disappointed and those who argued for the police were elated because, as is obvious with these cases, the interpretation of the statute may disappoint, as it were, those who promoted them. So consideration has to be given in this case, which is why we spent the time we did in the opening two subsections of 503A as to whether there is any such, as it were, safety valve in this case, and there is not, for the reasons we have put.

Very cursorily then, if I may, in relation to the facts to which our written submissions give full reference, this is really only to make good the proposition that the reasons asserted the relevance which is accepted in the special cases, that is the relevance to a decision under section 501, and they show the significance - as I say critical for Mr Te Puia; at least material for Mr Graham – of the protected information, as it is called.

In the special case book in Graham, if I can pick it up at page 275 - I do not need to read all of this - can I draw to your attention the clarity with which paragraph 9 asserts resort to protected information for the character test. Paragraph 7 as a general proposition I had already recited that, including the statutory prerequisite of relevance. It is said to be:

relevant in considering the national interest and the residual discretion-

It is because of national interest and residual discretion that in answer to Justice Keane’s earlier question I said this constitutional point does not arise only with people who can swear they are not members of the Rebels.

In paragraph 12, that opening phrase therefore seems to pick up the material that was referred to in paragraphs 7 and 9, as well as what might be called the open source material, some of it emanating from our own lawyers. One sees that it is, notwithstanding limb (a) being available, it is limb (b) that is being invoked for the character test - see paragraph 12.

Paragraph 13, as it were, says that paragraph (a) is passed and that is correct, “objectively” as it is said but paragraph 26 expresses the opinion in relation to the combination of national interest and failure of character test in terms that invokes limb (b), noted in paragraph 12. In the special case book in Te Puia may I point out at page 154 a similar structuring of the reasons in paragraph 4, regard to:

protected information . . . character test and the national interest –

“relevant”; paragraph 6 to the same effect. Paragraph 7 refers to “this information” and it seems then in Mr Te Puia’s case, that is the only source of the material. Under “National Interest”, paragraph 11, is protected information being taken into account on national interest and in paragraph 13, the expression “the information before me” must surely include that.

It is for those reasons that there is the curtailing and paring effect on 75(v) by 503A of a kind that is unconstitutional by contrast with what had happened. Hence my comment how much better it would be had it happened that there was a determination that PII prevented disclosure to either the applicants or those advising them of the material upon which the Minister’s decision was based wholly or in part.

GAGELER J: Mr Walker, when you say 75(v), do you also mean courts exercising statutory jurisdiction equivalent to section 75(v).

MR WALKER: Yes, I used the expression in opening “under or derived from” and by that phrase, I hope not careless, derived from, I did mean what your Honour has just put to me. Yes, I do. That completes our argument, as it were, on the main point. It leaves me with our proposition 5. This stands quite discretely. Your Honours have seen how we argue it in our written submissions.

While we conveniently have page 155 of the Te Puia book open, one can see the way in which the reasons were expressed. Nothing in Mr Graham’s case – so it is paragraphs 12 and 13, in particular I should say 12, of Te Puia, and in Graham it is paragraph 24 on page 277. The only difference - I say this facetiously - in Te Puia there is a finding that excluding him, a person such as him:

will contribute to national law enforcement efforts to disrupt and disable such groups -

as the Rebels outlaw motorcycle gang and, in Mr Graham’s case, with a difference I could not describe to your Honours, the contribution will be:

to the national effort to disrupt, disable and dismantle the criminal activities of Outlaw Motorcycle Gangs.

Of course, they are the same thing. It may be that the, in itself, innocent resort to something that is probably a formula does not do any harm in itself. Our point in proposition 5, that we have developed in the paragraphs we specify, the Graham paragraphs 44 to 46, the Te Puia paragraphs 26 to 32, the point is that nothing is said there enabling any linking of these

individuals with that worthy national effort. It is for those reasons that there is simply lacking on the face of the reasons – on the face of the reasons, there is lacking an essential part of regarding - of justifying administratively the exclusion of two individuals as serving a national interest.

GAGELER J: Mr Walker, this is just a purely technical question, but in answering the questions, if you were successful on question 1 so that section 503A(2) was in part invalid, what happens to question 2? Does it get answered now or is it inappropriate to answer in those circumstances? I am looking at page 17 of the Graham case. So it is really a question of does your proposition 5 properly arise if you are otherwise successful? Will it be, in a sense, a hypothetical exercise perhaps without - - -

MR WALKER: Yes. Question 2 does not follow logically from question 1.

GAGELER J: No.

MR WALKER: Question 2 is directed to the matter – that is proposition 5 that I have just finished.

GAGELER J: It is entirely discrete.

MR WALKER: It is.

GAGELER J: All right. That was the question.

MR WALKER: Thank you.

KIEFEL CJ: The Solicitor-General for the Commonwealth.

MR DONAGHUE: Thank you, your Honours. Could I ask you to stay on the questions just to clear away an issue? So, this is on page 17 of the Graham special case book. Your Honours will see that question 1 raises a question as to the validity of either or both of section 501(3) of 503A. You will note that Mr Walker started his submissions this morning by saying his target was 503A and, in our submission, nothing that your Honours have heard, orally or in writing, provides any basis to impugn the validity of 501(3) – the power that was actually exercised in this case being a power to cancel a visa with natural justice excluded. So, your Honours, in my submission, should regard 501(3) as not really falling for decision in the case and the issue is the issue debated so far as to 503A.

I should also say, in answer to the question your Honour Justice Gageler just put to Mr Walker that we agree that question 2 is a separate question. Partly I say that because question 1 is a question about the validity of the section of the Act. The consequence of that for the administrative decision actually impugned in this case is dealt with in question 3. Our submission is that, even if your Honours were to find against us, that 503A is wholly or partly invalid. It would not have the consequence that the administrative decision fell, whereas if we lose question 2, the administrative decision would fall. So, in my submission, your Honours cannot – or do need to deal with the question to issue. Your Honours, in - - -

GAGELER J: I am sorry, Mr Donaghue. I am just a bit troubled. What is, then, the utility if we are, in effect, dealing with the application for judicial review on a final basis by answering these questions? What is the utility to the plaintiff of an affirmative answer to question 1?

MR DONAGHUE: There is only utility if the plaintiff is right that if the Minister relied on information protected under 503A in circumstances where he thought that meant that it could not be disclosed and that mistake as to the possible disclosure of the evidence our friends say has the consequence that the exercise of power based on that material leads to the decision falling, we say that is not right.

If the Minister cannot get the protection of 503A, then that is a risk the Minister took in relying on that information. But, it does not go to whether the statutory preconditions for the exercise of the power were all not satisfied. So, the cancellation decision would be valid and our friends would not get what they seek from that ground. But, because they assert that the consequence of invalidity is to bring down the decision they challenge, I do not say they do not have a right to make that argument.

Your Honours, the Graham proceeding is a proceeding in the original jurisdiction of this Court under section 75(v) challenging an exercise of administrative power by the Minister under 501(3). In my submission, the role of the court in performing or discharging that exercise of jurisdiction is an absolutely and entirely conventional one.

This is not a case that involves a challenge to a statutory provision that gives some new or novel power to make orders to the court, removing fortifications, declaring criminal organisations, sometimes on the basis of material to be seen only by the court and not by one of the parties. So it is not a case that engages at all with many of the familiar lines in the Kable line of authorities about whether a particular function is incompatible with the role of the court, whether there is executive dictation to the court.

The issue that is raised is a very discrete one about whether or not there is a constitutional impediment on Parliament limiting the evidence that the court can rely on in exercising its jurisdiction under 75(v) and, in my submission, that is the critical issue that falls for decision and there is a long line of authority in this case and in intermediate courts of appeal dealing with provisions very similar, in some cases, to 503A that answers that question no, there is no constitutional impediment in relation to Parliament modifying the evidence that can be deployed in judicial review proceedings.

I will, as I develop these submissions, take your Honours to some of those cases because, while the plaintiff has framed this case at a very high level of principle, ultimately the appeal is an appeal to history and to an asserted impermissible departure from the way that a court would resolve a claim at common law and there are many departures in this area by legislation of the Commonwealth and States from the way that courts would resolve public interest immunity disputes that have never been found to be unconstitutional because of the settled right of the Parliament to make laws governing the evidence and procedure of courts.

Before I come to that, can I just ask your Honours to turn back to 503A to make a few points about the statutory regime? One which I will note again, just to put the matter aside, is if your Honours turn to 503A(6) you will that Parliament has there provided that:

This section has effect despite anything in:

(a) any other provision of this Act (other than sections 503B and 503C) -

That is relevant, your Honours, because it means that there is an issue not before the Court as to how the argument advanced by the plaintiff would operate in the context of the Federal Court. The Federal Court has a jurisdiction analogous to the jurisdiction of this Court under section 75(v) conferred on it by section 476A of the Migration Act.

Section 476A of the Migration Act is, on its face, a provision that is subject to the operation of 503A, so it is possible that even if Parliament cannot do permissibly what has been done here in the context of this Court’s constitutionally entrenched jurisdiction under section 75(v), the answer might be different in the Federal Court. For that reason, in my submission, your Honours should be conscious of the possibly that the same answer does not follow in respect of all analogous section 75(v) jurisdiction.

Turning back to subsection (2) of 503A, there is to be found there – we would break it up slightly differently to the way Mr Walker broke it up – four preconditions that have to be satisfied, and unless those four preconditions are satisfied, the “then” that appears between paragraphs (b) and (c) is not engaged and the consequence is that the Minister or officer would not become subject to the protection that is set out in (c) and (d).

So that, to take a concrete example, had there been a subpoena to the Minister seeking the production of the protected information, and there was not one in either of these cases but there have been other cases where such subpoenas have been issued, it is for the Minister in answering that subpoena to prove to the court that issued the subpoena that the four preconditions in subsection (2)(a) are satisfied, and if the Minister fails to prove that, the Minister will not be able to answer the subpoena by reference to paragraph (c).

The Minister has accepted that in Federal Court cases and has undertaken the burden of proving that those preconditions are satisfied, and I will not take your Honours to it but we have given your Honours an example of Justice Wigney’s ruling on an application of that kind in Vella v The Minister [2014] FCA 1177 at paragraphs 33 to 44. So that means the Minister has to prove the information was communicated to an authorised migration officer, essentially being a Commonwealth officer performing functions under the Act, that it was communicated by a gazetted agency.

Your Honours will see that term defined in subsection (9) to mean, in the case of an Australian law enforcement or intelligence body, a body specified in the gazette, or in the case of a foreign law enforcement body. So this is a provision dealing with Australian law enforcement in intelligence and foreign law enforcement, which is significant, in my submission, because, as Mr Walker frankly conceded, information flowing from bodies of that kind is information that would often – I do not say inevitably, but would often be information of a kind that would attract public interest immunity.

So your Honours are considering here a section that while not co-extensive with public interest immunity plainly does overlap, at least in some respects, with information of a kind that would attract common law public interest immunity protections.

Next, and importantly, the third condition, the information must have been communicated on condition that it be treated as confidential information. That is a precondition that raises a factual question about what happened in the past at the time when the information was provided and is obviously able to be inquired into by a court and ruled upon by a court in the event that that is necessary.

We accept that it is not a condition that calls for the court to make its own assessment as to whether or not the information objectively is confidential, but for reasons I will develop in my submission, there is no constitutional problem with that, and I will come back to that condition in a moment. But, finally, the fourth condition is the information must be relevant to the exercise of the power, and again, if the matter is disputed, that is a matter that the Minister must prove.

As your Honours have heard, the special case recites that all of those preconditions were satisfied here but that is just because both of the plaintiffs agreed that had the Minister been put to proof, the Minister could have proved that those four conditions were satisfied. This is not a regime where the Minister claims - the Minister does not have and the Minister does not claim a conclusive power to assert that this statutory protection operations. It is a matter that, if disputed, is in the hands of the court and the difference on the common law position is, is to what needs to be proved in order to engage the protection, not as to who decides whether or not the protection is engaged.

In relation to the third condition, that the information be provided on condition that it be treated as confidential information: in our submission, what that precondition responds to is the fact that the gazetted agency that holds information is concerned that its information be treated in a confidential way, that is why a condition of that kind would be imposed, and the agency cannot deal with that concern simply by imposing a condition of confidence, absent a regime such as 503A, because this is information to be provided to inform an exercise of statutory power in an area quite likely to be challenged and, of course, a mere confidentiality obligation imposed by contract or equity will give way in the face of a discovery or subpoena obligation so that the concern which in at least a substantial majority of, or a substantial number of cases, your Honours could readily infer may be a concern legitimately and properly held by the agency as to the protection of its sources of information or the status of its ongoing investigations, for example, will not be able to be met by the agency, simply in imposing a condition of confidence.

So, in circumstances where the agency is not under any obligation to give this information to the Minister, the natural consequence of an inability to protect the confidentiality of the information, if it is provided, is not to provide it. It is simply to hold the information within the agency, never give it to the Minister so it is not used in making the decision and its confidentiality is not disclosed, and the legislative history of this provision shows that that is the problem to which the provision was directed. It is not, as Mr Walker put it, the threat of the courts doing something the Executive does not like.

It is the fact that, in the absence of willing co-operation by gazetted agencies in providing information, the information is not available and that agencies, the holders of the information, did not like the uncertainty as to what was going to happen to their information after it was provided and therefore refrained from doing so. Your Honours will see that - and I would ask you to go back to the Vella Case that Mr Walker took you to at the end of his submissions - it is [2015] FCAFC 53; 230 FCR 61 and I will start a little earlier and go a little further through the judgment than the passages your Honours saw earlier, so that in paragraph 69 on page 78 of the report, the Full Court of the Federal Court say that:

When read in the context of the statutory scheme, it is readily apparent that s 503A is intended to permit information provided by certain law enforcement agencies (gazetted agencies) that is relevant to decisions . . . to be communicated –

and then about six lines down:

without the risk of the Minister (or authorised migration officers) being required to divulge that information to any other person –

And then in 70:

It is evident that the purpose of the protection is to ensure that the confidence with which such information was conveyed to the Minister by a gazetted agency can be respected and upheld.

And then in the extract from the second reading speech, Mr Walker read the second sentence, but if your Honours start from the start:

Criminal intelligence and related information is critical to assessing the criminal background or associations of non-citizen visa applicants and visa holders.

Then there is the sentence Mr Walker read:

difficult for the Department to use the information in making character decisions because its disclosure might be threatened. Australian and international law enforcement agencies are reluctant to provide sensitive information unless they are sure that both the information and its sources can be protected. Greater protection for such material would complement broader national and international strategies to counter transnational crime and the activities of those associated with it.

This bill increases the level of protection for such information. I cannot overstate the importance of this protection to the job of preventing the entry of foreign criminals to Australia.

GAGELER J: But protection from what? It is protection from disclosure to a court, surely, because you have to read it with the discretion of the Minister under subsection (3).

MR DONAGHUE: In my submission, your Honour, protection from disclosure most importantly to the person the subject of the information, to the criminal suspect, because ordinarily disclosure to a court will carry with it that consequence of further disclosure to the person whose visa is to be cancelled. This regime – and you can see it also in 503B – is a regime that has that evident focus of holding back the information from that person in particular.

Now, I accept that it does so in a way that, in its terms, says the information need not be required to be disclosed to a court but, in my submission, for reasons I will develop, that is a familiar way of addressing the problem of Parliament in effect rebalancing the competing public interests in this area. There is an evident public interest in the court having access to relevant information, but that public interest is not the only relevant public interest, as public interest immunity cases recognise.

The way that competing public interests are reconciled in any particular factual situation can be done by the common law in a public interest immunity context but can also be done by Parliament stepping in and saying, in this context the balance will be different. Here, in my submission, Parliament has enacted this regime, recognising that information that it considered should be available and was important to making informed character decisions may not otherwise be provided. It took a step to encourage the provision of that information.

BELL J: It may not otherwise be provided, for example, in relation to federal law enforcement agencies that are gazetted, because those organisations, it is thought, would not provide information in circumstances in which a court might determine a public interest claim in a way that the agency was unhappy with, and equally the same with State law enforcement agencies. The fear, at least in relation to domestic law enforcement agencies at State and federal level, is that the courts cannot be trusted to make the right decision, so information of importance in a critical sphere will not be made available to the responsible Minister.

MR DONAGHUE: Your Honour, I would answer that slightly differently by saying that in the context of the Commonwealth and State agencies, there is nothing in section 503A that prevents a direct coercive order by the court to get the information from those agencies, in which case they will have to defend their own information and they will have to do it based on common law public interest immunity.

The difference, in my submission, that is important in the practical operation of this regime is that these agencies are being encouraged to give away control of their own agencies to someone else, to the Minister, and having given that away they then lose the capacity themselves to control what happens to that information, and unless they are under a legal obligation to do that, which they are not, then it is the encouragement to do that that creates the flow of information that Parliament was concerned to facilitate.

So that it is not, in my submission, distrust of what the courts will do, it is just the uncertainty of not knowing what is likely to happen to information that can discourage the flow of the information because - - -

KIEFEL CJ: You mean you would say concerns about the outcome of a public interest immunity application?

MR DONAGHUE: Your Honour, if the Minister is asked by the agency, can you promise me that if I give you this information it will not be disclosed, the answer in a public interest immunity context is not, I cannot promise you the information will not be disclosed, in practical terms; whereas, under 503A the answer is yes or, yes, unless I go back and consult with you first, because of the limits on 503A(3).

That, in my submission, is a real practical difference not reflective of distrust of the courts but just in terms of how categorical one can be when trying to encourage the flow of information.

BELL J: When Victoria Police inform New South Wales Police of critical information relating to an important investigation of a serious criminal offence and, in doing so, identify a valuable informer, the assumption is made that should there be a curial investigation public interest immunity will suffice to protect. Why is the fear the greater in this context?

MR DONAGHUE: Your Honour, in my submission, there is plainly a spectrum of strengths of public interest immunity claims and the example your Honour just gave me one could say with quite some confidence that there would be protection in the context of or as the public interest claim gets weaker the confidence necessarily also gets weaker and, in my submission, it should not be assumed that the flow of information between agencies is not affected by gradations of that kind.

Ultimately, your Honours, I am starting here in order to identify the policy of the enactment but my ultimate submission will be that, as a matter of constitutional law, the policy does not actually matter. It is within the power of the Parliament to make the judgment that has been made and, in doing so, it has not transgressed a Chapter III limit.

It is significant, in my submission, that the plaintiffs have been careful in articulating their complaint not to say that there is any constitutional problem in being unable to access perhaps even the critical information upon which an administrative decision is based when invoking 75(v) jurisdiction. Mr Walker said on a number of occasions that he accepted that if common law public interest immunity applied in such a way that information needed to be protected, then so be it, and the consequence would be for an applicant in this Court seeking to challenge such a decision that they would fail because they could not discharge the burden of proof and that concession, if I can properly call it that, is consistent with Scientology and with Gypsy Jokers and with those authorities, the recognising that consequence of public interest immunity.

What that means, in my submission, is that where the plaintiff’s case ends up is with the proposition that it is constitutionally required that if relevant information is to be withheld from the court, that happen after the court balanced the public interests involved, rather than the Parliament do so. That, as we understand it, is where the significance of the departure from common law public interest immunity comes in to the argument.

We respond to that by – well, at a number of levels which we have structured, as you will see in our oral outline, by reference to the way that our friends had in their written submissions at paragraph 33 identified the problem. So there were four ways in which it was said that there was repugnancy between 503A and the essential character of a court set out in paragraph 33 and we step through them in paragraphs 5.1 to 5.4 by reference to authorities that, in our submission, suggest that none of those complaints can be made good.

Perhaps at the most fundamental level, we submit that your Honours should not accept that it is the case that there is any striking at the heart of the exercise of judicial power for Parliament to provide that relevant information cannot be relied upon. Indeed, we submit that if one steps away from this context and looks more broadly at the law of evidence, you find many examples of relevant evidence being unable to be relied upon.

Take, for example, legal professional privilege: there must be many cases in which legally professional and privileged information would be potentially relevant to the matter in dispute. The common law and then Parliament in the Evidence Acts has said information of that kind shall not be adduced in evidence, cannot be required to be compulsorily produced. The court does not weigh anything in ruling on a claim of privilege of that kind. It just decides whether the preconditions for a claim of that kind are made good and if they are made good the evidence is not relied upon whether or not it is relevant.

The same is true of spousal privilege, no balancing involved, there is just if the immunity applies, the evidence is not available. All the exceptions to compellability for other witnesses, similarly, there is no balancing involved, there is just a rule. If the rule applies, then the information is not provided. All of that illustrates what was said by this Court in Nicholas. Can I ask your Honours to turn to Nicholas v The Queen [1998] HCA 9; (1998) 193 CLR 173? Nicholas, your Honours no doubt recall, concerned a statutory reversal of the decision in Ridgeway.

So, in Ridgeway it had been held that the discretion to exclude evidence that was illegally obtained was engaged in respect of evidence that had been imported by police officers in controlled operations. Parliament then reversed that decision by enacting section 15X of the Crimes Act and that provision was then challenged on grounds that included that it, impermissibly, interfered with the role of the judiciary in a way that has some parallels with some of the answers Mr Walker gave to your Honour Justice Gordon about the problem being taking the balancing function away from the court and taking it to the Parliament.

If your Honours would turn to Chief Justice Brennan’s judgment. At the bottom of page 187, the last two lines, his Honour say:

The finding of facts is a curial determination of the actual existence or occurrence of the acts, matters and things on which criminal liability for the offence charged depends. It is a function which, on the trial on indictment of a person charged with an offence . . . is reposed in a jury. In finding facts, the jury is restricted to the evidence laid before them –

Then, in paragraph 20:

Some characteristics of a court flow from a consideration of this function –

that is the fact-finding function:

including the duty to act and to be seen to be acting impartially.

Passing down about five lines:

A law that purports to direct the manner in which judicial power should be exercised is constitutionally invalid. However, a law which merely prescribes a court’s practice or procedure does not direct the exercise of the judicial power in finding facts, applying law or exercising an available discretion. For the purpose of the accused’s final submission, the function of a court to which s 15X relates is the finding of facts on which the adjudication and punishment of criminal guilt depend.

Section 15X does not impede or otherwise affect the finding of facts by a jury.

Then, going down to 23, over on the top of 189, his Honour – or from the last two lines on 188:

The practice and procedure of a court may be prescribed by the court in exercise of its implied power to do what is necessary for the exercise of its jurisdiction but subject to overriding legislative provision governing that practice or procedure. The rules of evidence have traditionally been recognised as being an appropriate subject of statutory prescription. A law prescribing a rule of evidence does not impair the curial function of finding facts, applying the law or exercising any available –

discretion-making function. Further down the page, you will see in 24, a quote from the old case of The Commonwealth v Melbourne Harbour Trust Commissioners, rejecting the argument that:

“A law does not usurp judicial power because it regulates the method or burden of proving facts.” -

being an argument that Justice Higgins described in Williamson v Ah On as “destitute of foundation”. Those observations have been picked up in many subsequent authorities. Can I also ask your Honours, when you have Nicholas, to go to Justice Hayne’s judgment at page 272. In paragraph 232 your Honours will see that his Honour accepted a submission that:

the discretion to reject evidence of illegally procured offences is a common law (as opposed to statutory) discretion which is exercised by the courts to protect the integrity of their processes.

So his Honour accepted that it was a protective discretion. His Honour then says, at the end of that paragraph:

But it by no means follows from these considerations that Parliament may make no law touching the discretion.

And in paragraph 233, his Honour identifies that:

the discretion is one which is rooted in public policy and requires the balancing of competing considerations . . . The effect of Nicholas’ contentions is that only the courts may determine what the public interest requires. I do not accept that that is so.

Then over to paragraph 235 – 234 is relevant, but at 235:

That Parliament may make laws prescribing rules of evidence is clear and was not disputed -

including:

it may do so to the exclusion of the previous common law rules.

Your Honours, I do not expect that any of that is controversial – the capacity of Parliament to make laws changing rules of evidence and procedure. But if it is not controversial, it collides directly with our friend’s proposition that there is some essential constitutionally entrenched balancing role for the court in deciding whether or not relevant evidence needs to be available to the court because, in very many cases, when Parliament exercises that power, it will take that balancing role out of the hands of the court.

We have given your Honours – you do not need to go to them – some examples of, for example, the legislative creation of journalists’ privilege, in section 126K of the Evidence Act (Cth). There is a professional confidential relationships privilege in the Evidence Act (NSW), in 126A and B, where Parliament has taken relationships where there is no pre-existing common law protection and has substituted for the previous position a new rule which will have the effect of depriving courts of some evidence that may be relevant to their exercise of jurisdiction. Nobody suggests that that is invalid, and quite rightly, in our submission, but the reason for that is that there is no mandate that the court be the ultimate arbiter of where the public interest lies.

KIEFEL CJ: That might be a convenient time.

MR DONAGHUE: Yes, indeed.

KIEFEL CJ: The Court will adjourn until 2.15.

AT 12.46 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.15 PM:

KIEFEL CJ: Yes, Mr Solicitor.

MR DONAGHUE: Your Honours, before the adjournment, I had submitted that Parliament can enact laws that prevent a court from compelling or admitting even evidence that is relevant to the dispute before the court and that a law of that kind would be valid without any requirement that the court be in a position to itself balance competing public interests and without any need to test the enactment of the Parliament against some pre-existing common law baseline or standard.

To develop that submission, I am going to take the Court, if I may, to four examples from the case law of provisions of that kind, three of which are very closely analogous to 503A. The first is the least close analogy. It is the decision in Kizon v Palmer (1997) 72 FCR 409. This is a decision of the Full Court of the Federal Court, the judgments given by Justice Lindgren with whom Justice Jenkinson and your Honour the Chief Justice agreed, that concurrence at the bottom of page 412 to 413.

If your Honours, just for convenience, stay in the first part of the headnote under “Catchphrases” you will see that the factual background was a charge and offence contrary to the Misuse of Drugs Act (WA) where part of the evidence against the accused was telecommunications interception material. The accused challenged in the Federal Court the warrant that had led to the obtaining of that TI material and alleged, amongst other things, that it had not been open to the eligible judge who issued the warrant to be satisfied of the requisite statutory matters.

Having commenced that proceeding, there were then orders sought in the Federal Court for discovery and inspection of the material that had been before the judge who issued the warrant and that application was met with both a common law public interest immunity claim but also with a claim that the notice to produce could not stand in the face of a statutory provision in the Telecommunications (Interception) Act, section 62, sorry 63.

Section 63 of the Act was then challenged on a number of different constitutional grounds, one of which was closely analogous to the challenge mounted here. Before I come to the challenge, if your Honours would turn to page 420 in the middle of the page next to paragraph E in the margin, you will see the text of section 63 and it is, I accept, different to section 503A but it relevantly provided that:

a person shall not, after the commencement of this Part:

. . .

(b) give in evidence in a proceeding;

lawfully obtained information –

which includes the product of the telecommunications interception. If your Honours then go from there to page 444, you will see next to C in the margin an italicised heading reflecting one of the grounds of challenge that the prohibition that your Honours have just seen destroys:

the capacity of the Court to determine whether there has been any excess of power, and so (a) intrude into the judicial power which Ch III of the Constitution vests exclusively in the courts . . . and (b) derogate from the direct vesting of judicial power in the High Court effected by s 75(iii) and (v) –

So the argument is, we submit, quite closely analogous to the attack made here. It was an attack that the Full Court rejected and if your Honours start at the bottom page 445 next to G, it is recorded from the second sentence:

The operation and effect of s 63 in the present case is to make certain evidence unavailable to the applicant, and so, in practice, to prevent him from proving a case of invalidity of a certain kind of administrative review proceedings . . . The effect of s 63 is that it is impossible for a person in the applicant’s position, in any proceeding other than an exempt proceeding, to establish what was contained in, or omitted from, the application –

If your Honours then go down to paragraph F on the same page, 446, you will see:

Many Commonwealth statutory provisions deny the availability to courts and tribunals generally of particular evidence –

and there is a long list of examples given:

As noted earlier, the provision which was held invalid in Lim was in form a direction to the courts. However, even if the provisions in the present case had been in form a direction that the courts were not to admit into evidence information obtained by interception or designated warrant information, this would, in my view, have made no difference in the result.

So a closely analogous challenge to a different provision was readily dismissed on the basis that there are many provisions of that kind on the statute book.

The next case is, we submit, very closely analogous to the present matter. It is the case of A v Independent Commission Against Corruption [2014] NSWCA 414; (2014) 88 NSWLR 240. What happened in this case was that the Independent Commission Against Corruption issued a summons seeking the production of the email accounts and calendars of a political journalist and that summons was challenged and in support of the challenge to the summons a notice to produce was issued seeking the material that the ICAC had relied on in making its decision to issue the summons to the journalist, and ICAC sought to answer that notice to produce by relying on a particular provision in the ICAC Act, section 111(3), which your Honours will see at paragraph 41 of the judgment on page 253.

If your Honours go to that and to that section, subsection (1) deals with the people to whom the provision applies and includes quite a wide class. Subsection (2) deals with the obligations of the person in relation to disclosure, it is somewhat analogous to subsection (1) of 503A. Then subsection (3):

A person to whom this section applies shall not be required:

(a) to produce in any court any document or other thing that has come into the person’s possession, custody or control by reason of, or in the course of, the exercise of the person’s functions under this Act, or

(b) to divulge or communicate to any court any matter or thing –

and “court” was widely defined in subsection (6) but obviously included the Supreme Court. In paragraph 43 – and I will not take your Honours through it – Justice Basten explained that that provision would not have prevented an officer of the ICAC from voluntarily communicating information to the court, so that there was, as the provision was construed by the Full Court, a capacity, if you like, to elect on the part of the ICAC whether or not the relevant information would or would not be placed before the court on the judicial review proceeding.

Now, this provision was challenged on constitutional grounds. There are two judgments - Justice Basten and Justice Ward, with both of whom Chief Justice Bathurst agreed, having added some short remarks that are not relevant to the issue before the Court. If I could start with Justice Basten’s reasons and ask your Honours to turn to page 255. At paragraph 74, under the heading “A constitutional constraint”, the argument is summarised in paragraph 47 but it was said that the effect of the section:

would deprive this court of an important aspect of its supervisory jurisdiction, thus diminishing an essential characteristic of a state Supreme Court -

Your Honours will recall in the written submissions our friends have put the constitutional argument on two bases: one, that this section affects the essential character of the court, and the other that there is a direct conflict, if you like, with 75(v). The argument here, for reasons I will develop, engages really with both of those limbs.

In paragraph 48, the Court of Appeal, having summarised the effect of Kirk in the first sentence in terms of the preserved supervisory jurisdiction of the Supreme Court:

That principle does not, in its terms, provide assistance to the applicant in the present case: there is no doubt that the court has jurisdiction to control the exercise of the commission’s powers under the ICAC Act. A significant extension of the principle (and thus a significant additional restriction on state legislative power) would be required for the applicant’s argument to succeed.

Then, in paragraph 50, from the second sentence:

There is no bright line standard which can be applied. No doubt a statute which so diminishes the opportunity for a Supreme Court to exercise its supervisory jurisdiction over a particular tribunal may constitute an effective removal of the jurisdiction, equivalent to that achieved by a strong privative clause. However, it is difficult to see that such a conclusion could be drawn in the present circumstances. The argument bears some similarity to that raised in Nicholas v The Queen –

to which I have already taken your Honours. Then, in 51:

Historically, the laws of evidence have imposed extensive constraints on the ability of a court to consider all the material which a party might wish to present in support of its case. However, “[a] law does not usurp judicial power because it regulates the method or burden of proving facts” –

citing the same cases that were quoted in that Nicholas passage as I took your Honours to this morning. There are limits as his Honour recognised both in paragraph 50 and 52. So, for example, in the middle of 52:

A legitimate question might arise if the court were deprived of all information as to the subject matter of an investigation, which would then be beyond judicial control.

But at the end of the paragraph:

It must follow that the applicant has failed to demonstrate a level of constraint on the supervisory jurisdiction of the court sufficient to establish that s 111 intrudes impermissibly –

That reason, we submit, is entirely conventional and correct and applicable to section 503. We do not assert that there is no boundary, that there is no limit. Undoubtedly, a law framed as a law of evidence or procedure could in certain circumstances be so extreme as to effectively gut or deprive of any meaning to 75(v) jurisdiction. But to specify a particular category of evidence, relevant or even centrally relevant to a decision, does not go so far.

KIEFEL CJ: How does the court go about judicial review?

MR DONAGHUE: Your Honour, in exactly the same way as happens in other contexts where the subject matter of the decision is of a kind that is sensitive and so attracts common law public interest immunity. Take, for example, the security assessment example that your Honours looked at in Plaintiff M47. There was not before the Court on that judicial review application all of the material that was relevant to the decision that ASIO made that a person was a threat to security.

That limits the capacity to prove some of the grounds of review as the Court recognised in Scientology but it does not mean the jurisdiction is impaired. It just affects the substantive law that is to be able to be deployed in the exercise of that jurisdiction.

KEANE J: But if you have a legislative direction that affects what the record of the administrative decision is, the record that is to be scrutinised, the basis of review, it is different, is it not, from just a law about evidence? It is actually a legislative direction that the record on which the decision was made should not be complete.

MR DONAGHUE: That one part of the material on which the decision was made should not be available, I accept that that is so, but the same is true - - -

KEANE J: How can that be consistent with 75(v)?

MR DONAGHUE: Well, because, your Honour, in the same way that in Kizon v Palmer, for example, there was a legislative direction that said that certain material could not be provided to the court and the judicial – the attack that was being made in the Federal Court was to say the judge should not have been satisfied, should not have issued the warrant on the basis of the material that was before him, but that case could not be made good because the statute prevented access from part of the evidence.

There is, as Justice Basten accepts in those two passages, there will become a point – there is not a bright line, as he says in the second sentence – there will become a point where the interference is too extreme but that point is not reached by reference to a provision that specifies that a certain kind of evidence is not to be available. There is a good example of it in the Tax Act, in section 16 of the Tax Act.

There is a similar kind which is – I will show it to your Honours in one of the authorities I will come to in a moment, but that provision provides that information acquired by an officer in the course of administering the Tax Act shall not be required to be provided to a court. So any judicial review application of decisions to which that information is relevant will not be able to be compelled to be produced, but it has never been said that that is inconsistent.

KIEFEL CJ: But the nature of the information here is quite limited, in one sense. It is limited in the character assessment to criminal activities or association and the national interest test is potentially wider, but it may be and it may be in particular cases that the Minister actually discloses almost no reasons on the face and that all of the material, apart from the political aspects of the national interest question, all of the material is – all of the information is that caught by the section and it comes close, does it not, in the case of Mr Te Puia? That arises from the nature of the inquiry and the particular information that is involved. It is not a case of taking away a piece of evidence, as is often the case in the decisions that you referred to. It could be the whole of it.

MR DONAGHUE: It could be. Your Honour, can I answer that in two ways? First, in my submission, it is critical to distinguish the nature of the attack which the plaintiff sometimes runs two ideas together and Justice Gordon, with respect, asked a number of questions this morning directed, I think, to separating the two propositions.

In relation to the question can the whole of the material on which the decision is based be excluded, if one takes, for example, an ASIO security assessment based on information provided by a sensitive human source and nothing else then the position would be that a common law public interest immunity claim might prevent the whole of the information upon which a decision was made from being disclosed.

I think Mr Walker accepts that that would be valid, because the public interest in the administration of justice is not the only public interest. There are other public interests in play and in the national security public interest and they outweigh even to the point that none of the relevant information can be provided, which is why I opened by saying that his complaint is not that all of the information can be provided; it is a complaint about the method, about who decides, in effect, and that is really what the constitutional complaint comes down to.

Our answer to that is that it is not the law that the court has to be the arbiter, that it is possible where there are competing issues in play for Parliament to draw a line as it has done in the ICAC example that I have just taken your Honours to. There is, your Honours see, nowhere in section 111(3) any balancing role for the court. That section applies if the person obtains the material in the course of discharging their duties under the ICAC Act, and that is a familiar method that Parliament uses, as I say. It uses it in the tax Act.

So it is not right, as our friends put, that the court has to decide and that is their complaint at the end of the day; it is not a complaint that too much information is able to be excluded.

GAGELER J: Another way of putting their complaint is to look at the power that the Parliament has given to the Minister to make the substantive decision under section 501(3) and to see that that power is necessarily limited, expressly and implicitly. It has legal bounds. Their complaint is really that this provision constricts the ability of a court to determine and enforce those legal bounds in a way which conflicts with Chapter III. That is really what Justice Basten is saying is a matter of substance and degree.

MR DONAGHUE: Yes, if one goes too far, but the same answer, in my submission, is available, because if we did not have 503A but the particular information provided by the gazetted agency was, for example, a law enforcement agency from an undercover operative who had been embedded in the relevant bikie gang, and that was the only source of information about the relevant person, then equally the court would not be in a position to police the limits on the power under 501(3) because the evidence upon which the decision had been made was quite properly withheld from the court in pursuit of a different public interest.

So, in my submission, the complaint ultimately cannot be and, as Mr Walker puts it, is not a complaint of that character and 503A does – 503A, of course, operates across the statutory regime so that it operates not just in the context of these no natural justice decisions under 501(3), it also operates in the context of a natural justice decision under 501(2). So it may be the case that the Minister has needed to give natural justice and has provided a great deal of information as to a decision but has just held back a small subset being the protective information.

In other factual situations, it may be that it embraces more of the information upon which the Minister has relied. But, in neither of those cases does it trench on the jurisdiction of the Court under section 75(v). It just – and when I say “just” I am not being pejorative there, it might be a significant consequence. It makes it potentially burdensome to prove the case, but - - -

EDELMAN J: If there is no objection as a matter of principle to altering the location of the decision as to whether the information is provided from the courts to the Minister, would that mean, for example, that a law that provided that the Minister could determine which, if any, evidence gets provided to a court for the purposes of judicial review, would be valid.

MR DONAGHUE: Your Honour, much would depend on the detail which is why I accept that there is a point where the law might go too far. If there was an apparently unrestrained capacity of the Minister to say that in his or her absolute election, no information might be provided as to the subject, well, to take one end of the extreme – if the Minister or the Parliament purported to provide that no evidence as to an administrative decision should be admitted in a court then that would be invalid, in my submission, because that trench upon 75(v) because you could never win a 75(v) case if no evidence could ever be provided.

But, it is, as the authorities recognise, a spectrum and to focus on a category of evidence, even an important category of relevant evidence, in my submission does not trench on Chapter III and has never been held to do so because the point of cases like Scientology, approved in Gypsy Jokers and a similar line of argument in Totani, which I will take your Honours to soon, is that even if it is very difficult to establish a judicial review case, even if an applicant will often fail in bringing a particular kind of judicial review case, that is not inconsistent with section 75(v).

BELL J: Accepting that an applicant may often fail under those schemes where, having regard to the subject matter, a public interest immunity claim, for example, is very likely to be upheld, so that in the determination the court is acting on very limited material and it is very hard for the plaintiff in such a case to succeed. But surely there is a difference where the determination of that material which properly convened before the court on the application is made by the court, as distinct from a scheme such as this where it would be open to the Minister to refuse to grant a visa to a person, that power under 501(3) is conditioned on reasonable suspicion that the person does not pass the character test and the Minister simply asserts that he or she has acted on confidential information and that is the end of the inquiry. That is very different, is it not, to a scheme where the court upholds a public interest immunity claim?

MR DONAGHUE: It is a difference in procedure but not, in my submission, a fundamental difference in kind because here the Minister, in my submission, does not just assert that he acted on the information. He has to persuade the Court that he acted on information that attracts the 503A conditions.

In Gypsy Jokers, for example, the provision in question, section 76 of the Act, required the information to be criminal intelligence information which obviously is a category of information of a familiar public interest immunity type kind but, again, as construed by the court, the Minister there had to prove that the information was criminal intelligence information but they did not have to then take the further step of saying disclosure of that information will be more damaging to the public interest than withholding it.

So, it was not like public interest immunity at all. It was a matter of the court engaging with whatever statutory preconditions Parliament had selected, satisfying itself that they were met because if they were not met, the provision would not be engaged but once met, giving effect to those provisions without any need to test further the policy behind the statute or the balancing of the public interests.

If I may, if I could just, and I will do it as quickly as I can, take your Honours through a few more examples because, in my submission, this is not new territory. This is territory where, if correct, the proposition my friends advance has dramatic ramifications across both the Commonwealth and the State statute book because it has not been how this area of law has been understood before.

BELL J: But is it not accepted that the exercise is as Justice Basten identified it in A; one is looking at the particulars of a scheme and at a point, as your argument accepts, one crosses the boundary. The in terrorem submission just made does not really advance matters, does it?

MR DONAGHUE: Well, your Honour, as we understand the case put against us and consistent I think with the way Mr Walker developed it this morning, it is in effect a departure from common law public interest immunity that is the vice. It was repeatedly put that if this is the way it would have been done and should have been done, and what is being done under 503A is sufficiently different from what would be done in a common law claim, that that is unconstitutional.

GORDON J: I think it is put more generally than that, Mr Solicitor. I think it is put on the basis that there is a characterisation of information as confidential information with an inability to review it, with one party to the proceeding being entitled to make the call that information will be treated as confidential and that there is no mechanism, other than the quote provision in 503B to have any of that tested and the only person who makes the application to test it is your client.

MR DONAGHUE: Your Honour, can I try to separate some strands in that. The question of the confidentiality or otherwise of the information is a matter not initially in the hands of the Minister but in the hands of the agency who provides the material. They say, they assert, that the information must be treated as confidential and that has, together with the other statutory preconditions, a consequence not by reason of any judgment made by the Minister but by reason of a judgment made by the Parliament.

The effect of the information having been provided on that condition, if relevant to the decision, is that the information cannot be required to be provided to the court and there the matter may rest. It may be that there is never any question, as in this case there is no question of the Minister having exercised the power under subsection (3) to disclose the information further.

So the position at that point is that the Act says the Minister cannot be required to produce this material to the court. Now, it may be that that information is of a highly sensitive and confidential kind and it may be that it is of a less highly sensitive and confidential kind and it has nevertheless been provided on the basis of confidence.

That, in my submission, is absolutely no different than, for example, in this Act I am taking you to, 111, a provision that applies to information obtained by a person in the course of the performance of their functions under the Act. That information might be very confidential, it might be less confidential, but the objective confidentiality damage to the public interest is no part of the statutory regime.

GORDON J: But you have a provision, have you not, in subsection (4) which says:

Despite this section, a person to whom this section applies may divulge any such information:

(a) for the purposes of and in accordance with the Act - - -

MR DONAGHUE: Yes.

GORDON J: That is a very different provision to what we have here.

MR DONAGHUE: Well, but not – a challenge for subpoena issued under the Act would not, in my submission, fall within that provision. That kind of provision that says people shall not be required to disclose information obtained in the performance of their duties under an Act is a provision, in my submission, that does not meet any of the kinds of standards that are being urged upon your Honours as constitutional standards. It does not meet the requirement that there be balancing by the court.

It does not meet the requirement that the information has to be of an inherently confidential kind. It just does not have those characteristics, and that is why I say to your Honour Justice Bell that while there is a spectrum the complaint that is made about this regime is a complaint that if accepted is of a kind that does, in our submission, impact well beyond the confines of section 503A because the proposition that Justice Basten and Chief Justice Bathurst were advancing is that a provision like this is constitutionally unproblematic, notwithstanding the fact that it deprives someone of their capacity to succeed in the judicial review proceeding that they were bringing.

BELL J: That provision in the ICAC Act, and one can think of other enactments with similar provisions which immunises material held by agencies that conduct inquiries from production on subpoena, that does not raise the issue that acutely is raised here where a power that is limited is vested in the Minister and might be exercised upon material, none of which is the subject of any determination by the court.

MR DONAGHUE: With respect, your Honour, I am not sure that that is so because if all of the information obtained by an officer in the performance of their duties under the ICAC Act is subject to that provision, then it would seem to follow that many decisions that are made by the ICAC by officers who have obtained information in that way would be covered by that provision.

Can I take your Honours to the judgment of Justice Ward at page 277 in A and refer your Honours to the discussion at paragraphs179 through to 174. As I mentioned, the Chief Justice also agreed with this judgment and, again her Honour accepted at paragraph 180 that the argument requires a significant extension of what has gone before. There are references to Scientology, references to Gypsy Jokers. The Attorney-General there at the end of 180 submitted:

that the fact that s 111(3) may handicap one of the parties to the litigation, or have the effect that the application is determined on less than the entirety of the relevant materials, is not a reason for saying the court cannot or will not exercise its jurisdiction.

At paragraph 182, the Court relies on Nicholas and the related authorities, again, in submitting that a law of this kind is permissible; 184 “not repugnant”. So, in my submission, that analysis is also consistent.

Can I take your Honours briefly to the other authorities just to give some illustrations in other contexts? Elbe Shipping SA v Giant Marine Shipping SA [2007] FCA 1000; (2007) 159 FCR 518, this is a decision of a single judge, Justice Dowsett in the Federal Court and I go to it principally because the provision again was closely analogous, including that it has the express feature equivalent to section 503A(3).

The provision in question, section 60 of the Transport Safety Investigation Act 2003, your Honours can see the terms of that in paragraph 10 on page 522. The context is that the Australian Transport Safety Bureau, as your Honours may know, is a body that investigates transport accidents including air accidents, maritime incidents, and matters of that kind.

There is, within that context, an obvious public interest in facilitating as full a disclosure of information as possible to the safety investigator without any fear that the person disclosing may, as a result, be subject to civil or criminal liability because the desire is to ensure that the accidents do not continue to happen and so to promote public safety. This provision, in our submission, facilitates that public interest by reason of a secrecy regime quite similar to 503A. So you will see in subsection (3):

A person who has, or had, access to restricted information -

which is a defined term; the definition is over the page:

under section 62 must not:

(a) make a record of the information; or

(b) disclose the information to any person or to a court.

But that prohibition is then subject to subsections (4) through (6). Relevantly, (4)(c) provides that the:

disclosure to a court in civil proceedings –

is permitted where:

(i) the Executive Director issues a certificate . . .

(ii) the court makes an order –

So you needed both the executive certificate of the director of the ATSB and an order from the court. The executive director can issue a certificate only if – this is subsection (5) – it “is not likely to interfere” with the investigation and then in subsection (6) the court has a balancing exercise that it needed to undertake. In subsection (8), which is over on 523, the Act expressly provides that:

If a person is prohibited . . . from disclosing restricted information, then:

(a) the person cannot be required by a court to disclose the information -

So, in my submission, it is a statutory regime that is relevantly very closely analogous. It was challenged on Chapter III grounds – again, grounds quite closely analogous to the argument advanced here. You can see a summary of the ground - I will not take your Honours to it – in paragraph 8. In paragraph 15, Justice Dowsett criticised the assumption that simply because there was jurisdiction that meant that the court must have power to compel the production of documents. But I do note that his Honour’s discussion in paragraph 15 expressly was not directed to the position of this Court. His Honour distinguished the position of the Federal Court from the High Court.

But then in paragraphs – there is a discussion, and a lengthy discussion, of Nicholas, leading to a conclusion in paragraph – the ratio in paragraphs 28 and 29, the fourth line down:

Once it is accepted as it must be, that Parliament may legislate to exclude certain matters from being received in evidence, there seems to be no reason why it should not be able to empower an identified person to determine whether or not the Act’s protection should be invoked or waived . . . It is said that the legislation subordinates exercise of the judicial power to an executive discretion. While such a proposition has the typical appeal of a rhetorical flourish, it fails to address the fundamental problem that the authorities recognise the power of Parliament to legislate in connection with rules of evidence.

In paragraph 29, at the end of the page:

Parliament must balance the interaction between different public functions.

So, his Honour accepted – again, we say, consistently with our submission – that the fact that Parliament has drawn a difference balance from the pre-existing public interest immunity-type balance, does not point to invalidity.

GAGELER J: This was a negligence action, was it?

MR DONAGHUE: Yes, it was. So, it was a negligence action in which one of the parties tried to subpoena material from the ATSB in order to support its case.

BELL J: It would be more analogous if the executive director had a statutory power to cancel a person’s licence to operate an aircraft and to do so on the basis of information that could not be disclosed to the court, would it not?

MR DONAGHUE: That would be more analogous. I accept that that is so and that is why I said that A v ICAC was probably the closest analogy because there it was a decision of ICAC that was being challenged.

BELL J: The decision being to issue a summons?

MR DONAGHUE: To issue a summons to get the material from the journalist and then - - -

BELL J: Yes.

MR DONAGHUE: - - - that decision was the subject of the judicial review application and ICAC was able to rely on the ICAC Act provision to resist that summons.

BELL J: So, in the course of the ICAC investigation, it was able to issue a summons and that the basis upon which the summons was issued could not be explored.

MR DONAGHUE: Could not be explored.

BELL J: Yes.

MR DONAGHUE: That was the whole subject matter of the judicial review proceedings.

BELL J: Yes, I see.

MR DONAGHUE: So, it was quite close.

BELL J: All right.

MR DONAGHUE: Next, your Honour – and this is also a damages case, I accept, and this is the last in this line of cases – Victoria v Intralot – it is unreported – [2015] VSCA 358. This was, as I said, a damages claim. There was a $63 million damages claim against the State of Victoria and, in the context of that claim the State resisted producing some 441 documents in reliance on a secrecy provision in the State Act – so, not judicial review but the State claiming in its own interest to rely on the provision.

The provision in question your Honours will see on page 9 of the print - paragraph 18. The section is 10.1.31. Again, it is, we submit, quite closely analogous to 503A:

a regulated person is not, except for the purposes of a gaming Act or gaming regulations, permitted or required –

(a) to produce in a court a document that has come into the person’s possession or under the person’s control; or

(b) to disclose to a court any protected information –

But a person may disclose, in subsection (2), the “protected information” if:

(a) the Minister certifies that it is necessary in the public interest –

So, both of the dimensions of 503A that are challenged were present here. The basis for this challenge, it was not a Kable, Kirk type challenge, it was a somewhat unfamiliar beast in that it was a challenge under the Victorian Constitution for a asserted failure to comply with the manner and form provision in the Victorian Constitution.

But the point was - or the question in issue was did that provision remove powers or authorities of the Supreme Court of Victoria and the trial judge had held that it did which had the consequence that the provision was invalid because it had not been passed in the right way. The Court of Appeal overturned that ruling, holding that, in effect, the capacity to compel the provision of relevant material was not part of the essential character of the Supreme Court of Victoria.

Can I direct your Honours to just a couple of sections of the judgment? In paragraph 55, their Honours refer to authorities stretching back 60 years making it clear:

that if an Australian legislature desires to enact a secrecy provision which would impinge on court procedures for the obtaining (by parties or by the court itself) of relevant information or evidence . . . the legislature will generally need to refer expressly to courts in this regard.

That, we submit, implicitly and correctly recognises that legislatures can do that very thing - pass legislation impinging on procedures for the obtaining of relevant evidence, as long as they do so clearly, and there is a footnote providing many examples.

Then, in paragraph 63 there is a discussion and this is – 63 and 64 takes me to the Tax Act reference I gave your Honours earlier - but in 63 there is a discussion of a decision of the New South Wales Court of Appeal in Foley v Tectran where Justice Kirby, then the President of the Court of Appeal, gave the judgment of the court - and I will not read your Honours that paragraph but you will see that that decision supports the proposition that a secrecy provision of that type can again with no balancing, no comparisons with the common law baseline validly operate in order to prevent the production of material. Then, in paragraph 64 you will see a quote from section 16(3) of the Tax Act. Again:

An officer shall not be required to produce in Court –

any of these documents. So, the proposition that Parliament in some way impermissibly entrenches upon the jurisdiction of the court under Chapter III by providing, as it has done in section 503A, that the court cannot compel the provision of information, is a proposition that flies in the face of all of these authorities and other examples.

Now, it is true, as your Honours have put to me, that one can point to some differences here - that this is an administrative decision to which the provision applies but, in our submission, meeting the case that is put against us, the proposition is that the court needs to be involved in the balancing exercise, that there is too great a departure from common law public interest immunity standards and that argument cannot, in our submission, stand.

GAGELER J: Do you say that section 16(3) of the Income Tax Assessment Act prohibits disclosure in a judicial review application in which the Commissioner is a party?

MR DONAGHUE: No, your Honour, I do not say that because it is a protection against compulsion, not a protection against voluntary production. So, in that sense, its operation is somewhat analogous to 503A when read including subsection (3). It is permissible to disclose, but it would in a judicial review proceeding prevent compulsory production of relevant documents because compulsory production would be a requirement to produce in a court the relevant return assessment or notice.

GAGELER J: Is there any case law on that? I would be surprised if there is not.

MR DONAGHUE: I do not know, your Honour. I can take that on notice and attempt to assist your Honour but, in my submission, that provision obviously has been widely litigated, and it is not limited just to returns, assessments and notices, it is to divulge or communicate to any court any matter or thing coming to his notice in the performance of duties under the Act.

GAGELER J: Except.

MR DONAGHUE: Except where – well, indeed, to carry into effect the provisions of the Act, but that may, I suppose, raise a question as to whether litigation challenging a decision under the Act – production pursuant to a court order challenging something done under the Act is itself something that is done in the performance of duties arising under the Act.

GORDON J: A similar provision, as I said, in the Kizon Case.

MR DONAGHUE: Yes. Just before your Honours leave Intralot, can I take you to the end of the judgment, paragraph 103. The Court of Appeal’s view was that:

There is nothing startling about ss 10.1.30 and 10.1.31. They do no more than create a single, defined category of documents which, subject to certain stated exceptions, will be exempt from inspection or production . . . in legal proceedings.

Paragraph 105:

The function of the Supreme Court . . . is no different from what it would be in any other case where privilege or immunity is claimed . . . the Court must consider and determine whether the claim or immunity is made out. If it is, the Court must give effect to it . . .

The provisions in question are hardly unprecedented.

Their Honours ask for a list of equivalent type provisions and were given a list of some 25 other provisions in Victoria. Finally, your Honours, perhaps only an illogical relevance, you will see in paragraph 108 there is a discussion of this Court’s decision in Northern Territory v GPAO. As your Honours will recall, that was actually an inconsistency case. It was a case about inconsistency between Territory and Commonwealth law.

The Territory law in question was section 97(3) of the Community Welfare Act which your Honours will see quoted near the bottom of page 47. It was a provision that provided that certain persons:

shall not, except for the purposes of this Act, be required to . . . produce in a court a document that has come into his possession –

in the course of their duties, so, again, a provision purporting to prevent a court requiring the production of documents. That provision was in Territory law but it nevertheless was held by this Court to operate in the face of a subpoena from the Family Court because the Family Court Act was held to accommodate a provision of that kind, so clearly the Court did not see any particular difficulty with the Territory legislation preventing the production of relevant evidence in the Family Court in pursuit of the interests advanced by 97(3) of the Community Welfare Act.

Your Honours, can I turn from that survey of the authorities to address the question about inferential reasoning that was discussed between the Court and Mr Walker this morning, arising from the possibility that the Minister could exercise the non-compellable power conferred by subsection (3), and if I could take the analysis in steps. In our submission, it is clear that, leaving aside the statutory context entirely, if a party makes a valid claim of an ordinary privilege, legal professional privilege, the privilege against self-incrimination, not open to draw an adverse inference against the party from having relied upon that privilege because to do so would undercut the policy that is recognised in the establishment of the privilege itself.

So, one does not seek to prevent people from claiming legal professional privilege by saying, well, if you do, that is going to have very, very deleterious consequences for you in the findings of fact that the court will make at the trial. Similarly, in public interest immunity, it is well settled that when that immunity applies, it is not permissible or possible to draw an adverse inference and an example of that is the Sagar v O’Sullivan Case that Mr Walker mentioned to your Honours this morning.

That is a case - your Honour Justice Edelman mentioned that it was a “no-evidence” case. There were a number of grounds of review in that case there listed in paragraph 6. I will not take your Honours to it but there was also a natural justice argument and a relevant considerations argument so, in my submission, the proposition is wider than just a no evidence one.

Coming into 503A, if there were to be an inference drawn from the failure of the Minister in a court proceeding to exercise the power under 503A(3), in our submission, it would have to be an inference something like this; that because the Minister has not produced material to the court, that the Minister could have produced to the court, whether utilising the 503B proceeding or not, it should be inferred that the protected information that was before the Minister would not have supported a reasonable suspicion that the person failed the character test and/or would not have supported satisfaction that it was in the national interest to cancel the visa, despite the fact that the Minister’s reasons produced under section 501G of the Act assert the contrary.

So, there would be evidence before the court in the form of the Minister’s reasons saying that that protected information did contain material of that kind and it would be necessary to infer that from the failure to exercise a power that the Minister is, by the statute, expressly stated not to have a duty to consider that the reasons were false.

In my submission, that inference is not an available one, simply because on the material before the court reflecting what the Minister has said in his reasons under 501G, that would directly contradict the inference that was sought to be drawn. If the inference is of the Jones v Dunkel kind, and this is really a further point, then that inference is obviously only available in circumstances where there is an unexplained failure to do something that a party should have done. Your Honours used those words in Kuhl v Zurich Financial Services [2011] HCA 11; 243 CLR 361 at 63.

In our submission, for two reasons there would not be such an unexplained failure in this case: one, the information with which we are concerned is information that by hypothesis has been provided to the Minister on condition of confidence by the gazetted agency and so the failure to disclose it under 503A respects the condition upon which the information was provided; two, and relatedly, if it be the case that as a matter of routine, the Minister comes to disclose information under 503A(3), then that undercuts the very policy that led to the enactment of the provision in the first place because if the purpose of the statutory regime is to provide certainty to gazetted agencies that their information will not be disclosed to people beyond the Minister, then the regular exercise of that power would be likely to undercut that objective.

We have, I think, over the luncheon adjournment given your Honours a case in which this issue was litigated before Justice Perry in the Federal Court. The case is Roach v Minister for Immigration and Border Protection [2016] FCA 750. If your Honours could go to paragraph 172? I think I have sprung this on my learned friend, Mr Walker, but, in fact, it is consistent with the submissions that he made to your Honours this morning. We are not apart on this matter.

One of the grounds that was advanced in this case was an argument about whether or not the applicant had demonstrated that the Minister failed lawfully to form a suspicion that a group was involved in criminal conduct. At paragraph 174, you will see that her Honour found – she accepted that the relevant finding could not have been based on the open source material and, therefore, it must:

have been made only on the basis of the information protected under s 503A in Attachment X. In its terms, therefore, s 503A prohibited disclosure of that information.

That was:

the very purpose of s 503A –

Her Honour then, in 175, considered that the consequence of that was that there was nothing in the reasons or the material before the Minister to suggest that the Minister had unreasonably formed the relevant suspicion and her Honour then drew an analogy with the position in a public interest immunity case by reference to Gypsy Jokers, Scientology and Sagar. Her Honour dealt expressly in paragraph 176 with 503A(3):

while the Minister had power . . . that power does not in terms permit disclosure to a person such as Mr Roach -

That point is perhaps of some significance, your Honours, because your Honours will have noted from 503A(3) that it does permit disclosure by the Minister to a number of people but not to anyone. So it would permit disclosure to the court. It permits disclosure to a Commonwealth officer but it does not permit disclosure to a person affected by the decision, which is important, amongst other things, because it means that it is not open to the Minister to include information about protected information in his reasons for decision, because that would be to provide the protected information to the applicant, and the statutory regime prohibits the Minister from providing the information to the applicant. So one cannot draw any adverse inference against the Minister from the fact that the reasons do not talk about the 503A information.

KIEFEL CJ: This was not a case where there was actually strong probative evidence on the other side, though – on the other side of the ledger, so to speak. It is just what appears in the reasons – the reasons themselves, it would seem.

MR DONAGHUE: Your Honour, can I check that? I thought that - - -

KIEFEL CJ: I do not assert it; I am asking a question, really.

MR DONAGHUE: I was in this case but it was a long time ago. I would like to check, your Honour, because I think that there was material that Mr Roach had filed in opposition or in pursuit of a revocation application. So he had put on material that said, in effect, he should not have been the subject of this decision, so it then becomes a question of - paragraph 51, I think, your Honour might - yes, so there is a list in 51 of the material that the applicant’s wife had put forward in support of the revocation application.

KIEFEL CJ: Is there any finding that that evidence, if not contradicted, would be sufficient to have only led to one conclusion on the part of the Minister?

MR DONAGHUE: No, I do not think that there is, your Honour. In fact, I am fairly confident that there is not. If I could take your Honours back to paragraphs 177 and 178, her Honour grapples directly with the inference question. Her Honour found in those paragraphs that for the reasons there set out it was not open to the court to infer from the absence of transparency in the reasons that the Minister had no good reason for the findings because to hold otherwise would undermine the purpose of the regime. Then in 178 her Honour deals expressly with Jones v Dunkel and says that the regime provides an explanation for the failure to produce material.

I should, before leaving that case, just point out to your Honours that in paragraph 129 there is a finding that initially appears to be in some tension with those provisions that I just took your Honours to. In particular, in paragraph 129(2), her Honour rejected a submission made on behalf of the Minister that it was not open to infer that a particular finding had not been made because of the unknown contents of attachment X. In my submission, the weight of that finding really arises from the last sentence:

The fact that the contents are unknown does not, and, arguably could not consistently with the exercise of federal judicial power, preclude the Court from drawing reasonable inferences from such information as is in evidence in the adjudication of controversies -

So, if her Honour was reasoning from the material available which included the reasons and, in effect, said based on what has been said in the reasons and the approach that the Minister has there adopted, if a finding of this kind had been made I infer it would have been recorded and, therefore, her Honour inferred that the finding had not been - your Honours, can I finally – I spoke too soon, your Honours, not finally - - -

NETTLE J: Did that throw any doubt on what the Minister had said in the way that you say is impermissible in this case? I put that badly – in drawing that inference was her Honour engaging in the process which, you say, is not open to be engaged in in this case to any extent?

MR DONAGHUE: Your Honour, we do not say that on a judicial review attack on a decision of this kind it is not open to an applicant to make such judicial review arguments as they are minded to make by reference to the record before the court which will include the reasons, including, if it can be established that on the particular facts an inference can properly be drawn.

I cannot, as I stand here, recall precisely enough the facts in Roach to know whether an equivalent, factual inference to that that her Honour drew against the Minister’s submissions in that case could have been drawn in the facts of this case but there has not been any argument to that effect put against us as I understand with our friend’s case.

Your Honours will have seen a debate in the written submissions about the historical position with respect to public interest immunity and, in effect, if I can summarise, we submit that the balancing role of the court in relation to common law public interest immunity is a comparatively recent development traced principally to the decision of the House of Lords in Conway v Rimmer in 1968, followed in this Court in Sankey v Whitlam in 1978.

Our friends say that is wrong and that the position had not settled at common law at the time of Federation and for a period of time there were inconsistent positions being taken as to the role that the court properly played. It matters, we submit, because if we are correct and that it is only since the late 60s that courts have been involved in balancing public interest and that prior to that time the claim by the Minister had decisive or nearly decisive effect, then that, in our submission, makes it most unlikely that it is an essential part – an essential characteristic of a court that it be able to conduct the balancing exercise for itself.

BELL J: How does that submission sit with the majority in the Marconi Wireless Case?

MR DONAGHUE: All right, well, I am glad your Honour asked because that is where I am seeking to go now. Your Honours should have been given a supplementary bundle of materials and I am not going to take your Honours through very much of it. The threshold point that we make is that none of these cases say anything about the capacity of the Parliament to change the position which, of course, is the primary position that we take. But we make these submissions as to the historical positions as a supporter for the proposition that there is, in fact, no notable departure from the common law position.

Can I ask your Honours to take our written submissions and make one amendment by striking out one sentence of those written submissions at paragraph 43 and it concerns the Marconi Case, and if your Honours in paragraph 43 could, from the end of the second line, the word “The” strike out the whole of the next sentence which runs up to footnote 55.

KIEFEL CJ: I am sorry, would you repeat that?

MR DONAGHUE: Yes, of course, your Honour. So, from the end of the second line of paragraph 43, the word “The”, the next four and a half lines up to footnote 55 should, in my submission, be deleted, or I would ask your Honours to delete them. So that in effect the submission reads:

Marconi was a case about . . . physical objects in the nature of wireless telegraphy apparatus . . . In Griffin, Knox CJ explained that Marconi “recognize[d] the existence” of the “rule” set out above at [40], “in cases –

and I emphasise these words –

“in cases in which the Court is satisfied that the document in question is within the class”.

That, in my submission, is, with respect, a precisely accurate summary of the holding in Marconi. What Marconi establishes is that the Court gets to satisfy itself that the document over which privilege is claimed is broadly within the class of State papers and a very coarse test indeed, as I will develop in a moment, and once it is within that class, there is no further role for the Court in balancing the claim, if the Minister was conclusive.

That position was reflected in the decision of this Court in Griffin, which was disproved by the Privy Council six years later in Robinson, but in Robinson the Privy Council referred with approval to the reasons in Marconi, of Chief Justice Griffith and Justice Barton.

Now, I am not going to delay your Honours long with Marconi but could I ask you to turn to that judgment which in the folder that has just been provided to your Honours, should I think commence at page 29 in the bundle, and the relevant part of Chief Justice Griffith’s discussion is particularly at paragraphs 185 and 186, which I think might be 37 in the bundle, and your Honours will get a flavour of the fairly generous nature of the test at the top of 186. The argument was that, it was not enough:

for a Minister or head of a department to say that a particular thing is a State secret, but that it is the duty of the Court to inquire whether the thing as to which the claim is made is such that facts discoverable on inspection of it can, in any intelligible sense, prejudice the public interest, that, if it comes within that class, a similar rule may well be applied –

The similar rule being that the claim of the Minister was decisive:

but that the Government official cannot . . . add to the class –

So that it was not possible for the Minister to assert that something was a State secret that was not by adding to the class of matters that could intelligibly fall within that universe of matters but that, beyond that, the claim was conclusive and your Honours will also see that on page 188. The way his Honour concluded his discussion on this point in the middle of 188 was:

For these reasons I think that the claim of privilege has been made under a misapprehension and must be rejected.

So the focus was really on whether there was a mistake or misapprehension by the Minister – it was able to be inferred that there was a mistake or misapprehension – and that interestingly is the way that Sir Owen Dixon treated this case when he argued Griffin a few years later. The attempt that Sir Owen made was to bring the facts within a mistake or misapprehension class rather than to say that there was any general right to balance. Perhaps the position is made clearest though by Justice Barton’s judgment. It starts at page 41 or page 190 of the report. Your Honours will see at about point 7 or point 8 on that page Justice Barton approves, he says:

The doctrine is fully stated and well illustrated in Taylor on Evidence, 10th ed. –

We have given your Honours the relevant part of Taylor on Evidence to which Justice Barton there referred and it is right at the back of the bundle your Honours have, page 118 through to 120, and it is, we submit, very clear. So that on page 118 at about point 3 or point 4 of the page, having listed various categories of communication the author says documents within those categories:

are treated as secrets of State, and are absolutely privileged.

Then over the page, 119 of the bundle, about halfway down:

But the Court of Appeal have recently held that a communication which it can see is to be one to a Government Department is also protected from production as being a State secret if a Minister, or the Head of the Department, sees fit to claim such protection for it, and . . . gives reasons for the claim which are founded on grounds of convenience rather than of State policy. According to the Court of Appeal, the minister to whose department a document belongs, or the head of a department . . . is the exclusive judge as to whether such document is or is not protected from production on grounds of State policy; and if he claims such protection the court will not go behind the claim, or inquire whether the document be or be not one which can properly be the subject of such a claim.

Justice Barton’s reasons repay inspection but ultimately his Honour concludes at the bottom of page 194, or page 45 of the bundle:

It is clear, in my opinion, that it is for the Court to say whether the document is within the class to which the rule of public welfare may be applied.

So that function we accept on the authority of Marconi was within the authority of the Court, but beyond that, the ministerial claim was conclusive and, if we are right about that, and, in my submission, the other cases we have given your Honours in the bundle and in the written submissions bear it out, then it cannot be that it is an essential characteristic of a court that the court be able to balance competing public interests because for most of the period since Federation that was not so. The ministerial claim was decisive of the availability of the material within the very broad parameters set by Marconi.

EDELMAN J: Or that the court be able to review the balancing of the public interest by the Executive.

MR DONAGHUE: Sorry, your Honour?

EDELMAN J: Because your submission would also have to contend, would it not, that the decision that is made by the Minister is also itself unreviewable?

MR DONAGHUE: Unreviewable. Yes, the decision made by the Minister to make the claim was unreviewable.

EDELMAN J: Yes.

MR DONAGHUE: Absolutely, your Honour. As reflected in that extract from the text, once within the claim, it was conclusive. That was very clearly held in Griffin – particularly in a passage from Chief Justice Knox’s judgment that we quote in our submissions but consistently with the other authorities. There is then perhaps room for quite an interesting debate about what happened to Griffin in that the Privy Council disapproved Griffin, in part, on the basis that the evidentiary foundation for the claim was, in the Privy Council’s views, manifestly unsatisfactory.

But, it expressly approved Chief Justice Griffith’s reasons in Marconi. You then had an interesting state of affairs where – because the Privy Council decisions were binding in Australia – the House of Lords in Duncan v Camel, Laird adopted a very clear position in favour of conclusive ministerial claims which left the Australian courts needing to grapple with inconsistencies at Privy Council and House of Lords level and they followed the Privy Council in Robinson.

So, there is a period between the early forties and Conway v Rimmer where there is some messiness in the Australian authorities but none of that messiness suggests that the Court has a modern balancing function in resolving a public interest immunity claim. In our submission, it just did not have that role, at least until Conway.

Finally, your Honours, can I take your Honours to one last authority on the unreviewability issue and this is particularly directed to the 75(v) argument. The case is Totani – South Australia v Totani [2010] HCA 39; 242 CLR 1. The argument with which we presently are concerned, was an argument that the decision of the Attorney-General – this is to make a declaration that an organisation was a criminal organisation – was unreviewable. The Full Court of the Supreme Court of South Australia had held that the decision was unreviewable and, on appeal, this Court disagreed with that characterisation.

The relevant part of the judgment is in Justice Hayne’s judgment starting on page 77 at 191. Relevantly, Chief Justice French, at paragraph 27, and Justices Crennan and your Honour Justice Bell at paragraph 415, agreed with Justice Hayne on this point. So, a majority adopted the reasoning that I am taking your Honours to. You will see in paragraph 191, there was a privative clause expressed in wide terms and on the basis of the privative clause it was said that the capacity to grant relief with respect to the Attorney-General’s declaration had been defeated.

Justice Hayne mentioned at the end of 193, Kirk and said whatever may be the position, as a matter of construction clearly the Supreme Court still got its entrenched jurisdiction. The exercise of that jurisdiction is governed by the principles in Avon Downs, which his Honour then quotes. Then, at 195:

The forensic difficulties of mounting such a challenge to the decision of the Attorney-General to make a declaration. . . would be very large. Those difficulties would be compounded if, as may well be the case, not all of the information before the Attorney-General could be inspected by the party seeking judicial review. To the extent to which the Attorney-General acted upon criminal intelligence [The Act] would appear, on its face, to preclude a court from making that material available to the applicant for judicial review. In addition, the Attorney-General may act upon information in respect of which it would be proper for the Attorney to claim public interest immunity from production. In such circumstances, for an applicant for judicial review to show that the Attorney-General’s decision was affected by some mistake of law, or that the Attorney-General took some extraneous reason into consideration, or excluded from consideration a factor which should affect the determination, would be very difficult. But the decision is not unexaminable –

That particularly, your Honours, in the context of a declaration, it is about whether an organisation is a criminal organisation. It is, we submit, obvious and likely that central to that decision by the Attorney-General will be the criminal intelligence information of the kind which his Honour accepts. The provision would preclude a court from making available to the applicant.

So, that case is just another illustration, and Gypsy Jokers likewise, that difficulty in making out grounds of review against an exercise of administrative power cannot be equated with the exclusion of that jurisdiction. The extent of the difficulty that 503A poses will be variable, sometimes it may be major, sometimes it may not. There are, as we have noted in our submissions, a number of cases in the Federal Court where decisions under 503A based on protected information have been set aside on judicial review proceedings because it has been possible for applicants to make good particular grounds of review in attacking those decisions, notwithstanding the operation of 503A. That provides an illustration if one be needed that the jurisdiction of the Court remains.

GAGELER J: Just so I understand the provision in issue there, his Honour seems to be very careful in saying at paragraph 195 that section 21:

would appear, on its face, to preclude a court from making that material available to the applicant for judicial review.

Did the provision stop the Court having material?

MR DONAGHUE: I do not believe it did, your Honour, no. One of the features of this regime and, I think, the Pompano regime as well is that obviously that can cut both ways in that one of the complaints that can be made about provisions of that kind is that they produce an absence of natural justice or an inequality of arms in the course of the court proceeding because there is material before the court that one of the parties has which the other party does not have. Sometimes that has the virtue of at least ensuring that the court is informed but it can equally produce the advice that the court is acting on the basis of material about which a party cannot know anything. Section 503A does not suffer that vice. There is nothing about 503A itself that can result in the court relying on material that is not available to an applicant.

Your Honours, in light of the time, I will not say further about either the non-constitutional ground or questions of relief. We have dealt with those matters adequately in our written submissions. If your Honours would just pardon me for one moment. Yes, your Honour Justice Gageler, I believe I have answered your Honour’s question correctly. The provision is at 123 – quoted at 123. If the Court pleases.

KIEFEL CJ: Solicitor-General for New South Wales.

MR SEXTON: If the Court pleases, the Commonwealth has largely covered the field and we make some brief additional comments here. Just in terms of how the plaintiff’s case fits within Chapter III, it does not seem to us that it is a Kable challenge because the legislation here does not really confer a function on the Court but perhaps arises out of the decision in Kirk v Industrial Court [2010] HCA 1; (2010) 239 CLR 531 on the basis that the legislation deprives the relevant court of an effective function of judicial review, not as incurred by way of a privative clause here but by withholding information relevant to the exercise of that function.

Perhaps another way of framing the argument is that the legislation requires the court to exercise judicial power in the manner that is inconsistent with the essential character of a court or the nature of judicial power which is really close to the formulation in Lim v The Minister (1992) 176 CLR 1, comments at page 27 by Justices Brennan, Deane and Dawson. Similar perhaps again to the argument in Nicholas v The Queen to which your Honours have already been taken earlier today.

Legislation here, however, is in a different category from that considered in K-Generation [2009] HCA 4; (2009) 237 CLR 501, Gypsy Jokers [2008] HCA 4; (2008) 234 CLR 532 and Assistant Commissioner Condon v Pompano [2013] HCA 7; (2013) 252 CLR 38, where in those cases a function was conferred on a court in circumstances where the Court had access to and could rely on the information but it was kept confidential from one of the parties.

In our submission, what has happened here is really a statutory equivalent of the common law principle of public interest immunity. We appreciate that my learned friend, Mr Walker - at the heart of his case is the proposition that the decision here is invalid because it is made – the legislation – because it is based upon a decision of the Executive or the Minister rather than the balancing exercise that is undertaken by the court. It does, however, we would say, reach the same result, or what would often be the same result, except by a different process.

There may be, we would say, good reasons why the Parliament would, on some occasions, assume this balancing exercise as to the public interest, for example, perhaps in this situation because – Justice Bell raised the question of domestic intelligence bodies, but international bodies, for example, simply might not provide the relevant information unless they could be guaranteed that it would not be disclosed.

In many ways, of course, this involves - in terms of the legislation this involves a judgment as to the importance and the sensitivity of the information in question, in this case intelligence material that perhaps would meet both those criteria.

There were, of course, in the area of public interest immunity, cases where the claim was normally determined, and would still normally be determined, without the court inspecting the document in question, so the case would proceed without the other party to the litigation ever seeing the document. I will not take your Honours to the passages, but in Sankey v Whitlam (1978) 142 CLR 1 at 39 to 40, Acting Chief Justice Gibbs provided a list of documents where the class was usually immune from disclosure.

There might be some argument now about some of the items on that list, although a Cabinet document per se, which was one of the classes, would still, we would say, be in that category. It is of course open to the court to inspect even Cabinet documents but the point is that it may decline to do so, so that they are not seen by the court or the other party.

There are comments to similar effect in Commonwealth v Northern Land Council [1993] HCA 24; (1993) 176 CLR 604, where it was said by Justices Brennan, Deane, Dawson, Gaudron and McHugh, at 618 to 619, that whether the circumstances will be sufficient to displace the considerations that favour immunity depends to a large extent on the nature of the class. Their Honours said that in the case of a Cabinet document, only in exceptional circumstances would the Court personally inspect the documents so as to decide whether the relevance was sufficient to justify disclosure.

Your Honours, on the question of withholding relevant evidence on an application for judicial review, we would refer your Honours to the comments of Chief Justice French in Pompano at page 78, paragraph 86, where he said that the law imposes a disadvantage on one party to proceedings in order to restrict, mitigate or avoid damage to legitimate competing interests, but that does not mean that the defining characteristics of the court required to administer such a law are impermissibly impaired. To similar effect, Justice Crennan in Gypsy Jokers, at 597, paragraph 189 – I will not take your Honours to it – but it is to similar effect.

This Court has consistently expressed the view that a court may validly have to determine an application for judicial review without the benefit of some relevant evidence while still exercising its jurisdiction - Gypsy Jokers at 556, Justices Gummow, Hayne, Heydon and Kiefel; Totani [2010] HCA 39; (2010) 242 CLR 1 at 27 to 28 - Chief Justice French at 27, Justice Hayne at 195, Justice Crennan at 415, Justice Bell with Justice Crennan; and Church of Scientology v Woodward [1982] HCA 78; (1982) 154 CLR 25 at 61, in that case by Justice Mason. Unless there are any other matters, your Honours, those are our submissions.

KIEFEL CJ: Thank you. Solicitor-General for Queensland.

MR DUNNING: Your Honours, we limit our oral address to endeavouring to make good the proposition that meaningful judicial review would be available notwithstanding the difficulties that the provisions would create. In saying that, we do not naturally endeavour to downplay that on occasions - indeed, many occasions, the fact that the material will have been available to the decision-maker but not available to either the court or the opponent will provide a substantial disadvantage, but we do not - in our submission, not to put it in the category of preventing meaningful review and particularly not to put it into the category of preventing meaningful review in respect of an applicant against whom the reasonable suspicion should not have been arrived at.

Now, to make good those propositions, there are a couple of authorities that we want to take your Honours to, largely relevant to this scheme but with one addition. Your Honours, the first of those is the decision in Taulahi v Minister for Immigration and Border Protection [2016] FCAFC 177. It is a decision of Justices Kenny, Flick and Griffiths. Their Honours were considering the scheme with which we are concerned and obviously very recently as the date will indicate.

Can I ask your Honours, please, to take up the reasons at page 38 and in paragraph 126, I will try to very briefly take your Honours through the mattes that informed their Honours’ reasoning. At paragraph 126, their Honours say:

It is against that background that consideration is to be given to the relevant –

KIEFEL CJ: Perhaps you could just summarise it.

MR DUNNING: I can, thank you, your Honour. There was in issue the Minister’s decision both in relation to a failure of the character test and then the national interest test and in short form the Minister’s reasons had said that the person failed the character test on the basis the person was and/or had been a member, and it did not descend to identifying which it was, that is, whether it was said that the visa holder was presently such a person or had been in the past and ultimately that infected the decision making in respect of the national interest.

Your Honours will effectively see that from those pages through to about page 43. It is at that point that their Honours commence their analysis of how this scheme might operate. They consider the changes that have been wrought by the response to the decision in Haneef and at page 44, in paragraph 145, their Honours, halfway through that paragraph, say that these amendments were not a:

proper foundation for lowering that threshold even further by absolving the Minister from the obligation of having to make clear and definitive findings in respect of the relevant components or elements of s 501(6)(b).

They go on to say that, really, it compelled:

the Minister to nail his colours to the mast –

They then go on in the next paragraph to talk about how that overlaps with the national interest consideration. That led their Honours, at 148, to conclude:

This is an important –

Sorry, this is the review that might then be had. The Minister makes the decision to revoke, the visa holder then has the right under 501C to make representations so that that decision might itself be revoked and their Honours were considering the consequence of that. They say at 148, this second stage:

is an important aspect of the legislative scheme which, in effect, imposes some procedural fairness requirements at the stage of the Minister’s consideration of the question whether to revoke a cancellation decision –

At about the middle of the paragraph, they talk of – at about the middle of the page – that it meant that:

the Minister must revoke the cancellation decision –

upon certain findings.

KIEFEL CJ: Is this just the case about particulars and how much information needs to be given?

MR DUNNING: It is, and that was the point, that it requires – that it is a scheme so one looks at not only the first - - -

KIEFEL CJ: It is the Pompano point.

MR DUNNING: Yes, but the specificity with which the visa holder must have it explained to him or her, the point being it gives that person the opportunity to make meaningful representations.

KIEFEL CJ: What do we derive from it?

MR DUNNING: That in terms of being able to effect a meaningful judicial review, your Honour, that the visa holder could at the 501C stage, make meaningful submissions as to why the way that person conducted themselves, there would be no basis for a reasonable suspicion which could then be tested on a judicial review for jurisdictional error in the event that there was a decision not to revoke the cancellation.

GAGELER J: What if the judicial review is of the decision under section 501(3)? How does any of this help?

MR DUNNING: Because at that point the submission on the judicial review application would be there was such evidence available before the decision-maker that it overwhelmed whatever might have been the character of the protected information. That is the essence of the point we make, that the protected information is not itself irrebuttable proof of a failure of the character test. True it is it is a material disadvantage not to have it on a jurisdictional review for jurisdictional error.

KIEFEL CJ: In the face of cogent evidence brought by the visa holder it might also amount to no more than an assertion.

MR DUNNING: That is right. In fact, it might fairly be said in cases like this they have a tipping point where if the evidence is cogent enough by the visa holder and there is a complete absence of evidence in response from the Minister that it would lead fairly to the implication that whatever that evidence was it was overwhelmed by the other evidence that was available before the Minister.

Allied to that is that if one has a situation where the Minister says I have this protected information which I may not provide to you and that is the sole basis for the decision it might fairly be asked, without intruding upon the protection Parliament has chosen to give in that information, if that information would sustain rationally such a decision how can it be that there is no derivative information that can be obtained on a basis of that material. That is, how is there no openly available material the Minister can call in aid. Now, the Minister might be able to and that itself might provide a complete answer.

GAGELER J: Mr Solicitor, I have to ask this. What is the interest of the State of Queensland in fancying an argument of this kind is disavowed by both sides of the record?

MR DUNNING: Your Honour, our interest is solely in protecting the extent of the State’s legislative scope if it were minded to enact legislation that it considered expedient for allowing information like this to remain confidential so that sources of it were not compromised. Your Honours, that is the essence of our point that it is possible to have a meaningful judicial review.

Can I simply refer your Honour to three authorities in that regard? The first is Minister for Immigration v Li 249 CLR 332 and may we ask your Honours, please, to go to page 367. At the end of paragraph 66, their Honours having engaged in the discussion of Wednesbury and how it might be seen as present context, say in the last sentence:

Accepting that the standard of reasonableness is not applied in this way does not, however, explain –

and then the words at the end:

how it is to be tested.

So the Court came to look at how one might test unreasonableness. Now, this was unreasonableness in respect of the exercise of discretion, different, I accept, to the 501C situation but the reasoning would be just as sound. How does one test an absence of reason? If I may then take your Honours, please, to page 367 - - -

KIEFEL CJ: What are we gleaning from this, Mr Solicitor?

MR DUNNING: That it is possible to determine that a decision was unreasonable in the relevant sense and, therefore, liable to be set aside as infected with jurisdictional error, notwithstanding that one only arrives at it by looking at the actual decision and saying that decision must be wrong, it bespeaks error. So that if we had a situation where - - -

KIEFEL CJ: It is just facts specific, though, is it not?

MR DUNNING: It is facts specific – sorry, the principles that it stands for - - -

KIEFEL CJ: I think we are familiar with the principles.

MR DUNNING: Thank you, your Honour. Your Honours, that decision was picked up by the Minister for Immigration v Singh in the decision we have given in paragraph 7 of our oral outline. In light of the Chief Justice’s information I will not trouble to take your Honours to the paragraphs. We have identified them there. Ultimately, what the Court there determined was that on the strength of Li there was a basis for determining irrationality on what their Honours called the “outcomes basis”. So, one looks at the outcome. True it is, that is not a case where - - -

KIEFEL CJ: It is the outcome by reference to the facts. We are talking about absent facts.

MR DUNNING: Yes, and I appreciate that, your Honour.

KIEFEL CJ: I just do not understand how this takes us anywhere.

MR DUNNING: The submission, your Honour – I will not endeavour to repeat it – that is to say if the facts are overwhelmed – if there is overwhelming evidence on behalf of the visa holder, the way he conducts himself, such a reasonable suspicion could not sensibly have been entertained, the Minister is not able to challenge either by interview of him at the time of the 501C application or by adducing derivative evidence from the material, then there would be the meaningful prospect of having that set aside for jurisdictional error. That is the sole point - - -

KIEFEL CJ: Yes, I see.

MR DUNNING: And, your Honour - and I regret if I did not do it as sufficiently as I might have – the purpose of taking your Honours to those cases is to say that there is a respectable judicial basis for – a reasoned basis for arriving at that, albeit differently in one respect to the way that has occurred in the past.

Your Honours, in light of the time can we simply say this in respect of Sagar. Sagar is a case that bears closer scrutiny than, respectfully, it was given. Sagar is a case where there had been an adverse security classification by ASIO. As Justice Edelman pointed out it was a “no evidence” case. But, importantly, Justice Tracey did not see it as impossible to conduct a judicial review of a “no evidence” case, notwithstanding his Honour determined that because of the valid claim of public interest immunity privilege there could be no access to whatever information the Minister had.

It was a case where the visa holder had put on evidence disputing it but, when one looks at that evidence the visa holder’s evidence was simply to pick up the statutory definition in question and swear to the fact “I haven’t done any of those things”. Yet, ultimately, the case lost. But he did not see the lack of the information that the Minister relied upon and being able to test it, its existence in this case, as being an impediment to conduct a judicial review, rather, that it was lost on its facts.

Your Honours, if we can simply give you the paragraph references of particular note: 25, 28, 31, 34, 35, 41, 42, 53, 54, 58 and 64. Unless we can assist your Honours any further, they are our submissions. Thank you, your Honours.

KIEFEL CJ: Solicitor-General for Tasmania.

MR O’FARRELL: May it please the Court. We respectfully adopt the submissions of the learned Solicitor-General for the Commonwealth. We have one comment to add and that is in respect to paragraph 4 of the outline. Can we add to your journey through Nicholas paragraphs 37 and 38 of the judgment of Chief Justice Brennan. If your Honours please.

KIEFEL CJ: Solicitor-General for Victoria.

MR NIALL: May it please the Court. We adopt the submissions of the Commonwealth and in light of the submissions, unless your Honours have any further questions, we propose to rely on our written submissions.

KIEFEL CJ: Thank you. Solicitor-General for South Australia.

MR BLEBY: May it please the Court. South Australia adopts its written submissions.

KIEFEL CJ: Thank you. Yes, Mr Walker.

MR WALKER: If it please the Court. In relation to my friend for the Commonwealth, the second reading speech, all relevant parts of it, inform as to the identified mischief. There really is no difference between the way my friend qualified that and the way we argue it. They both after all come from the Minister’s words.

The paraphrase my friend suggested which is that the mischief was the uncertainty of what might happen in relation to disclosure upon documents being handed to another officer or to a minister and thereafter to a court, of course comes down to this, that the apprehension on the part of the Parliament in enacting these provisions was that what the polity must accept would be correct, namely a court ruling that the administration of justice outweighed such public interest as there was in secrecy, was one that Parliament regarded nonetheless as wrong and, in our submission, that is a self-contradictory approach of the polity to take, and it is for those reasons that the rationale for the existence of this provision is one which suggests its own vice.

In relation to the question of the comparison of section 503A with public interest immunity, issue is well and truly joined but for a couple of matters of comment in reply. One cannot justify the provisions of section 503A by saying it does no more than public interest immunity would grant or produce, because section 503A applies in cases other than beyond and different from those which by definition and according to the rationale of the common law doctrine, public interest immunity will apply. That is, section 503A operates regardless whether as a matter of public interest immunity the document in question should not be disclosed.

Thus, it is one thing for the court in its administration of justice to recognise that there are interests of secrecy that outweigh the interests of the administration of justice in the particular case with respect to particular information. It is quite another thing, a radically different thing for the Executive which, not coincidentally in the interaction between section 501(3) and section 503A, will be the object of judicial review proceedings, quite another thing for the Executive to assert in a way that the court cannot set aside a paramountcy of secrecy without any requirement for the Executive or any opportunity for the court to question whether the interests of justice are in fact in relation to that case and that information outweighed by the need for secrecy.

It is in that fashion that we try, in answer to what our friend has said concerning question 3, to persuade your Honours as follows concerning the way question 3 should be answered if we got an answer favourable to us in any regard to question 1.

Now, as a preface one can say of course section 503A is not on its face – see the way in which this is put in paragraph 62 of our learned friend’s written submissions – it is not on its face a limit on power of a kind which can be seen immediately to conjure up the guardian role of this Court under 75(v) and of other courts in derivative jurisdiction. But it is a provision which attributes a feature or creates a feature of the decision-making process under section 501(3). What is that feature?

The feature is that you may not only encourage Commonwealth agencies and other agencies to provide material which would be relevant to your decision making – that after all is the project announced by the Minister; encourage by removing the uncertainty that a court would not regard secrecy as outweighing the administration of justice – but also, and very importantly, a feature of the Minister receiving and then using so-called protected information is that it will not be produced unless the Minister decides to do so in judicial review proceedings against the Minister. That is a radical difference from what would obtain, of course, if public interest immunity were the protection granted to appropriate secrets.

Now, in our submission, it is not speculation of an inadmissible kind but, rather, the familiar possibility that every judicial review court considers when examining what might be called the materiality – to pick up the language and concept from paragraph 62 of our learned friend’s written submissions – of the alleged jurisdictional error.

The court always asks, “Could this make a difference?” One way in which that answers is, if it went back to the decision-maker with the error corrected so the decision-maker would not commit that error, might there be a different outcome? Of course that is true here. If 503A, because of invalidity, does not operate to guarantee that material which provides in Mr Te Puia’s case obviously the only material, and in Mr Graham’s case considerable material, to make probably two of the essential elements of the decision then it may be that that material will either not have been sought or not used.

It is for those reasons, in our submission, that, notwithstanding the fact that this is not a conventional limit on power provision, it is a feature of the exercise of power provision, which does bring in its train that answer to question 3 if we succeed to any degree in question 1.

In relation to, not only for the Commonwealth but for others of our friends as well intervening, the proposition that there have been innumerable – my word – examples of the regulation of entrenched jurisdiction - time limits, obviously, is the easiest one to consider – our short answer in reply is this. No part of our argument doubts that there can be legislative regulation of the exercise of jurisdiction under 75(v) or of jurisdiction derived from that concept and given to other courts. But it is equally accepted, indeed, appropriately volunteered by the Solicitor-General, that there is an aspect of one of the early church.....about that. You can regulate but not too much, that is there may not be a bright line but there is a boundary.

One of the cases upon which most weight was laid by my learned friend, the ICAC decision in the New South Wales Court of Appeal, contains in the very passage our learned friend went to in particular in Justice Basten’s reasons an easy recognition of that proposition, which has never been doubted. That citation is 88 NSWLR at 256 in paragraph 52 about halfway down.

But, of course, as we have drawn attention by our reliance on S157 in the passages I noted in-chief in address and set out in written submissions, it has always been the case that one examines case by case whether or not the impugned legislation goes too far in the effect it has. It might be useful to think in terms of the impact it has on the jurisdiction of judicial review.

KEANE J: Mr Walker, just pausing there, if one adopts Justice Basten’s approach, is it correct to say that on his approach the circumstance that it is not the court alone that determines what is in the record for the purposes of review that is decisive? His Honour seems to accept that legislature can make provision limiting that which is in the record.

MR WALKER: I am sorry, I do not - - -

KEANE J: No, I am asking you, do you accept that that is what Justice Basten is saying and, if so, is it right?

MR WALKER: Can I do them in reverse order; no, if that is what his Honour is saying. One way of saying - the reason the answer to the second question “no” is that the subject matter - and I am now talking just in 75(v) terms as the ultimate test in this - the subject matter of 75(v) is judicial review of what a Commonwealth officer has done. The nature of judicial review that distinguishes it from merits review is the notion, fully developed and sophisticated, of the record - I know it is an evolving notion and later has been subject to statutory alteration but, nonetheless, the sophisticated notion of the record which not in a merits canvassing manner but in a legality examination manner, a policing of the boundaries of limits on power was the object of the exercise of judicial power. So, it is a critical thing, it is not merely procedural or adjectival in the way that, for example, the rules of evidence may be. It is the subject matter.

Nowhere does Justice Basten in such confronting terms say there is nothing wrong - and putting this as an abstract proposition - there is nothing wrong in the same personage within our limited government, here the Executive, being simultaneously a defendant in judicial review to police that personage’s observance of lawful limits and, also, without the court being able to prevent it, altering from what is, in fact, the case, the record available for the court in exercising that judicial review process. Nowhere does he say that. I accept it is probably entailed in some of his reasoning, including that which is found in the passages that our learned friend has quoted. It may be that if it had been quite so confrontingly laid out, a different approach may have followed.

KEANE J: His Honour does seem to accept that a legislative direction that the record could be stripped of content so that one could not determine one way or the other whether the administrative decision had been lawfully made - - -

MR WALKER: That is right.

KEANE J: - - - that would be bad.

MR WALKER: Yes, and that passage I have drawn to attention, where his Honour simply observes what he calls:

A legitimate question might arise –

goes to that very point. That is the passage in the middle paragraph 52. So, what we are saying here is that, that must mean it does not avail in answer to our constitutional argument to say, look there can be regulation of access to and exercise of such a jurisdiction. We agree. Time limits are the obvious way. There are many others.

Particularly, it does not avail where the authorities never say “and there is no limit to what Parliament can do in that regard”. So, that it can render utterly blank the history of the decision-making under which somebody has been, for example, taken into detention. That is a lettre de cachet and the tradition upon which the Constitution was made, stands against that approach.

The authorities, therefore, that our learned friend for the Commonwealth relied upon as showing the respects in which in various cases there has been found acceptable regulation of access to the critical constitutional judicial review jurisdiction, simply do not make out what is necessary in order for them to be deployed against our argument. Finally, I cannot in that regard, forbear from observing that in none of those cases was an argument of the same kind as we have sought to present here presented. They are not authority against an argument that they did not consider.

Next, can I turn to the question of legal history concerning the role of the court, vis-à-vis the Executive claiming public interest immunity or Crown privilege, as it used to be. I do not want to outstay our welcome by saying that which your Honours have read but, with respect, the way we put the matter in paragraph 6 of our written submissions in reply, though not exactly – the way we put it in paragraph 6 entirely gels with what your Honours have seen in particular in the Marconi decisions where it is simply not possible to say that the position characterised by the Commonwealth is correct in saying at the time of Federation and thus as an admissible background for your interpretation of 75(v) and therefore your consideration of what may be inconsistent with it, one should proceed on the basis that Mr Barton, later Justice Barton, et cetera, had in mind that come a claim of Crown privilege the spectacle could be presented of the member of the Executive against whom relief under 75(v) was being sought would claim nothing can be known about my decision because I say it would be contrary to the public interest for it to be revealed.

In our submission, that would have produced, depending upon the time of day at the conventions, gales of laughter or rise of indignation. That is not what they meant, as can be seen from the way in which members of the - the delegates to the conventions spoke about 75(v) and related aspects of the judicial power. That is not what they meant, that the Executive could as it were, simply say, “Well, you’ve got the jurisdiction. It’s just you’re not going to have anything to exercise it upon”.

In our submission, there is nothing ultimately in this, if you like, sad story about the vacillation between utter deference to the Executive with certificates considered conclusive and what we would respectfully, if tendentiously, call the responsible exercise of judicial power – that is, not simply satisfying one’s curiosity and asking to see all the documents. Sometimes information about information is all you are going to need, sometimes it is obvious. All you need to be told on affidavit is there is an informer and he is undercover and it is too dangerous to reveal anything. That would be enough. You do not have to read his reports or his curriculum vitae.

But, in our submission, what emerges accordingly is that for 503A to have the operation which is contended against us, it must be correct to say that the object of 75(v) jurisdiction can himself or herself under an

enactment such as 503A, and knowing of the effect given the connection between 503A and 501, set at naught all grounds which require attention to content of the material before the decision-maker, and that would not be to leave anything which pace our learned friend for Queensland would be, as it were, a consolation which renders acceptable this entrenchment, particularly in a case where procedural fairness is gone.

Now, it is for those reasons that to point to the legal history about times, places and cases where the court seems to have, viewed from nowadays, rather oddly considered that the Executive could dictate the availability of material to the court for the court’s own proceedings does not prove what is necessary. In particular, the Commonwealth has not said that by dint of that being one of the strands in the tangle at the time of Federation on that topic, 75(v) is to be understood as a guarantee of jurisdiction that could be defeated by ministerial certificate. May it please the Court.

KIEFEL CJ: The Court reserves its decision in this matter and adjourns until 10.00 am tomorrow.

AT 4.16 PM THE MATTER WAS ADJOURNED