Assistant Commissioner Michael James Condon v Pompano Pty Ltd [2013] HCA 7

Assistant Commissioner Michael James Condon v Pompano Pty Ltd [2013] HCA 7 - HCA 2013 case summary — Zoe

[31]

At the heart of the common law tradition is "a method of administering justice."[1] That method requires judges who are independent of government to preside over courts held in public in which each party has a full opportunity to present its own case and to meet the case against it. Antithetical to that tradition is the idea of a court, closed to the public, in which only one party, a government party, is present, and in which the judge is required by law to hear evidence and argument which neither the other party nor its legal representatives is allowed to hear.
The common law informs the interpretation of the Constitution and statutes made under it. It carries with it the history of the evolution of independent courts as the third branch of government and, with that history, the idea of a court, what is essential to that idea, and what is not.
The common law may be changed or abrogated by parliaments. The courts must apply the laws enacted by the parliaments. However, where the Constitution limits legislative powers and the purported exercise of those powers is challenged, the courts must also decide whether those limits have been exceeded. Their decisions will be informed by the text of the Constitution, implications drawn from it, and principles derived from the common law.
This Court has been asked to determine whether provisions of the Criminal Organisation Act 2009 (Q) ("the COA"), a law of the State of Queensland, exceed constitutional limits. The limits derive from Ch III of the Constitution. State and Territory legislatures cannot confer or impose upon State or Territory courts functions which substantially impair their defining or essential characteristics as courts. The Queensland law, which is said to exceed those constitutional limits, is directed to the disruption and restriction of the activities of criminal organisations and their members and associates. It imposes upon the Supreme Court of Queensland requirements for closed hearings and the use of secret evidence known only to the judge and one of the parties, being the government party, which seeks to tender it. The provisions which are challenged concern the use, in proceedings under the COA, of information designated "criminal intelligence" and the way in which the Supreme Court is required to decide whether information falls into that category. The question going to validity is whether those provisions of the COA substantially impair the defining or essential characteristics of the Supreme Court of Queensland as a court.
Like most cases about constitutional limits the answer is not black and white. The deeply rooted common law tradition of the open court, presided over by an independent judge according procedural fairness to both parties, is adapted to protect the public interest in cases such as those involving national security, commercially sensitive documents and the protection of police informants. Similarly, the constitutional limits do not prevent parliaments from making laws for the protection of the public interest in such areas.
For the reasons that follow, the impugned provisions of the COA do not substantially impair the essential characteristics of the Supreme Court of Queensland. That is to say, they have not been shown to transgress constitutional limits.

[45]

Prior to the filing of the application on 1 June 2012, the applicant had applied ex parte to the Supreme Court, under s 63 of the COA, for a declaration, under s 72, that particular information was "criminal intelligence" within the meaning of s 59. As required by ss 66 and 70 of the COA, the Supreme Court considered that application without notice to the respondents and in a "special closed hearing". A person appointed as a kind of statutory "amicus curiae" under s 83 of the COA and designated as the criminal organisation public interest monitor ("the COPIM") attended at the hearing**[6]**. That attendance was permitted by s 70 of the COA. The COPIM made submissions. The Supreme Court made the declaration sought. All or part of the information, the subject of the declaration, is relied upon in support of the grounds of the substantive application.
The substantive application for a declaration that the respondents are a criminal organisation is pending. Two particular provisions of the COA, in issue in these proceedings, will affect the conduct of that application. They are:
- Section 76, which provides that an informant who has furnished criminal intelligence to a relevant agency cannot be called or otherwise required to give evidence although an affidavit must be filed by an officer of the relevant agency containing specified information about the informant, a statement that the officer believes that the relevant intelligence is reliable, and the reasons for that belief.
- Section 78, which requires that the Supreme Court order that any part of the hearing of the substantive application in which declared criminal intelligence is to be considered is to be a closed hearing to the extent provided under that section, which would exclude the respondents and their legal representatives but not the applicant or the COPIM.
The respondents raised contentions about the validity of a number of the provisions of the COA, which have been referred to. On 5 October 2012, so much of the application as concerned the validity of provisions of the COA was removed into this Court pursuant to s 40(1) of the Judiciary Act 1903 (Cth) by order of this Court (French CJ and Crennan J)[7].
On 26 October 2012, Kiefel J referred for hearing by a Full Court, an agreed Special Case setting out questions for determination by the Court.

[61]

The declaration may be made whether or not the respondent is present or makes submissions**[11]. It is not necessary that the Supreme Court be satisfied that all members of the organisation associate for the purposes of engaging in, or conspiring to engage in, serious criminal activity[12]. The Supreme Court may act on the basis of satisfaction that only some of the members associate for the purposes mentioned in s 10(1)(b). A declaration remains in force for five years unless sooner revoked[13]**.
The Supreme Court is empowered to revoke a declaration on an application which may be made by the Commissioner at any time or by the criminal organisation or a member of the criminal organisation at least three years after the declaration is made**[14]. No more than two such applications can be made on behalf of the organisation or its members during the first five years after the declaration is made[15]. The only ground upon which a declaration may be revoked under s 13 of the COA is the Supreme Court's satisfaction that there has been a substantial change in the nature or membership of the organisation to the extent that its members no longer associate for the purpose of engaging in, or conspiring to engage in, serious criminal activity and to the extent that the organisation no longer represents an unacceptable risk to the safety, welfare and order of the community[16]**. That is not to say that the inherent powers of the Supreme Court to revoke its own orders under certain circumstances are excluded. Those powers are discussed later in these reasons.
The respondents challenge the validity of s 10(1)(c), which requires that before the Supreme Court may make a declaration under s 10 it must be satisfied that the organisation the subject of the proposed declaration is "an unacceptable risk to the safety, welfare or order of the community." The challenge to s 10(1)(c) effectively calls into question the validity of s 10.
Section 10(1)(c) was said by the respondents to require a policy assessment devoid of adequate legal standards or criteria capable of judicial application to established facts. It thereby lacked a "hallmark of the judicial process". The respondents submitted that the application of the criterion in s 10(1)(c) did not involve the exercise of judicial power. The Supreme Court was being asked to act as an "administrative commission of inquiry" rather than to undertake a judicial function. It would be identified with the Executive Government of the State in a way that was incompatible with its institutional integrity as a court upon which federal judicial power could be conferred. That submission should not be accepted and the answer to question (vi), to which it was directed, should be "no".
The first point, and there was no submission to the contrary, is that there is no implication to be drawn from Ch III of the Constitution that State courts are subject to the full doctrine of separation of powers**[17]. Various attempts to argue in State courts for separation of powers doctrines derived from State Constitutions have failed[18]. The conferral upon the Supreme Court of a State of a non-judicial function is not sufficient to cause the Supreme Court to be identified with the Executive Government of the State. In any event, the power conferred upon the Supreme Court of Queensland by s 10(1) of the COA is a power which, when exercised by a court, can properly be characterised as judicial. The conferring upon a court of such a power is not of itself likely to impair the defining characteristics of the court. That observation does not involve any assumption that State judicial power is defined in the same terms as Commonwealth judicial power or that its scope is larger. That question was not debated[19]**.
The criterion of "unacceptable risk to the safety, welfare or order of the community" prescribed by s 10(1)(c) is evaluative and purposive. It does not leave the Supreme Court free to characterise as "unacceptable" any level of risk which it chooses. In applying s 10(1)(c), the Supreme Court will necessarily have regard to the objects of the COA, which include the disruption and restriction of the activities of organisations involved in serious criminal activity**[20]**. While s 10(1)(b) requires the Supreme Court to consider the present activities of the respondent organisation, s 10(1)(c) is prospective. The Supreme Court in applying it in light of the objects of the COA will assess, as an important if not dominant component of risk, the likelihood that the organisation and its members will be involved in serious criminal activity in the future. The term "unacceptable" has a function similar to that of the term "substantial" in other statutory settings. It imports a requirement that the likelihood of continuing involvement by the organisation in serious criminal activity is not trivial or transient.
The criterion in s 10(1)(c) for the exercise of the power conferred by s 10(1) is imprecise but that does not deprive it of the character of judicial power. As the plurality said in Baker v The Queen[21]:

[73]

Part 4 of the COA provides for the Supreme Court to make a public safety order for a person or a group of persons if satisfied that their presence at premises or an event, or within an area, poses a serious risk to public safety or security and that making the order is appropriate in the circumstances**[28]. A mandatory relevant consideration is whether the respondent is or has been a member of a criminal organisation, or associates, or has associated, with a member of a criminal organisation[29]. A public safety order may prohibit the respondent from entering or remaining in stated premises or in a stated area or attending or remaining at a stated event[30]**.
Part 5 of the COA provides for fortification removal orders. The respondent to an application for such an order must be a person or organisation who is, alone or with others, an occupier of the fortified premises**[31]. One of the criteria enlivening the discretion of the Supreme Court to make a fortification removal order is that the fortified premises are owned or habitually occupied or used by a criminal organisation or a member, prospective member, or an associate of a criminal organisation[32]**.
A declaration under s 10 provides a foundation for orders to be made under the COA which significantly affect the common law freedoms of individuals and the interests of the organisation to which the declaration applies. In the ordinary course procedural fairness would require that the organisation be given the opportunity to know and be able to answer all the allegations and evidence and submissions which are put forward to support such a declaration**[33]. Nevertheless, in respect of evidence declared by the Supreme Court to be "criminal intelligence", the COA diminishes the procedural protections ordinarily attendant upon the reception of evidence[34]**. The COA mandates an ex parte application and a special closed hearing to determine whether information should be declared criminal intelligence and closed hearings excluding respondent organisations where criminal intelligence is subsequently tendered.

[80]

In support of their argument that the COA abrogated the rules of evidence, the respondents pointed to s 10(2), which requires the Supreme Court, in an application for a criminal organisation declaration, to have regard to certain "information" before the Supreme Court**[39]** and "anything else the court considers relevant."[40] The submission appeared to be linked to question (v) in the Special Case although the focus of that question is upon the requirement, said to flow from s 10(2), that the Supreme Court have regard to declared criminal intelligence which neither the respondents nor the respondents' legal representative would have heard or received. The applicant submitted that the rules of evidence apply on the hearing of such an application.
The reference in s 10(2) to "information" to which the Supreme Court must have regard is to be read in the light of ss 8(3) and 107(1) of the COA. Section 8(3) requires that an application for a criminal organisation declaration be accompanied by "any affidavit the commissioner intends to rely on at the hearing of the application." Section 107(1) requires that an affidavit relied on in an application under the COA "may only contain a matter if direct oral evidence of the matter would be admissible." That requirement is qualified in one respect by s 107(2). An affidavit authorised under s 61 that has been admitted in evidence in an application for a criminal intelligence declaration "may also be admitted in evidence in the proceedings for the substantive application." Section 61 provides that an affidavit relied upon by the Commissioner in an application for a criminal intelligence declaration may contain statements based on information and belief if the deponent states the sources of the information and the grounds for the belief. The section removes a bar to admissibility that would otherwise exist by reason of the hearsay nature of such evidence. It does not overcome the requirement that the evidence be relevant. It does not require the Supreme Court to admit such an affidavit. Indeed, the leave of the Supreme Court would be required before the Commissioner could rely upon such an affidavit. That requirement is imposed by r 395 of the Uniform Civil Procedure Rules 1999 (Q) ("the UCPR"), which apply in relation to applications made to the Supreme Court under the COA to the extent that they are consistent with the COA**[41]**.
Rule 395 of the UCPR allows a party in a proceeding before the Supreme Court, with the leave of the Court, to rely on evidence given or an affidavit filed in another proceeding or at an earlier stage of the same proceeding. Nothing in the COA excludes the application of that rule. The leave requirement imposed by r 395 is, on its face, applicable to the use, in a criminal organisation declaration application, of an affidavit used in a criminal intelligence declaration application. Section 107(2) does not overcome that requirement, dealing as it does only with the admissibility of such affidavits where they contain hearsay evidence. The Supreme Court, when hearing an application for a criminal organisation declaration, may have regard to the probative value of the hearsay material contained in such an affidavit and the unfairness, if any, worked by admitting it. Even if such an affidavit were admitted the Supreme Court would still have to determine what, if any, weight was to be given to it.
The objects of Pt 6 of the COA, relating to criminal intelligence, are stated in s 60 in terms of the admission of "evidence" in applications under the COA. The COA does not, as a general proposition, displace the operation of the rules of evidence in an application for a declaration that an organisation is a criminal organisation. Nor should it be taken, in the absence of clear words, to displace the inherent powers of the Supreme Court.

[97]

In any event, r 391 of the UCPR provides that the Supreme Court may "by order and on its own initiative, call a person before it as a witness in a proceeding."[62] The Supreme Court may give directions about the examination, cross-examination and re-examination of such a witness**[63]. There is nothing in the COA to exclude the exercise of the application of that rule in the special closed hearings and closed hearings for which the COA provides. As noted earlier, the UCPR apply to applications in the Supreme Court under the COA to the extent that they are consistent with it[64]**. The subsistence of the inherent and rules-based powers is relevant to the question whether the impugned provisions of the COA impair the defining and essential characteristics of the Supreme Court. That question must be answered by considering those provisions in the common law and statutory context in which they operate.
An aspect of the inherent jurisdiction relevant, in a different way, to the constitutional question is the group of powers that courts have to order that all or part of a case be heard in camera, to prohibit publication of part of the proceedings, and to privately inspect documents the subject of a claim for public interest immunity**[65]**. The existence of that group of inherent powers suggests that statutory analogues will not readily be regarded as impairing the defining or essential characteristics of the courts to which those analogues apply. The provisions of the COA relating to an application for a criminal intelligence declaration are analogous to those common law powers.
A requirement for special closed hearings in which evidence can be received in the absence of a party and its representatives travels beyond the procedures developed for determining public interest immunity claims at common law in the exercise of inherent powers. A majority of the Supreme Court of the United Kingdom in Al Rawi v Security Service[66] found such a requirement proposed by a trial court, coupled with a direction for the appointment of a special advocate, to be a bridge too far. A trial court (in the exercise of civil jurisdiction) was held not to have inherent power to direct a closed material procedure in which evidence relevant to the claim, but involving national security concerns, would be tendered by the defendant government party to the court in the absence of the plaintiffs. Lord Dyson observed that the inherent power of the courts had underpinned the development of procedural innovations such as Mareva injunctions, Anton Piller orders and the mechanism for determining public interest immunity claims. However, subject to established and limited exceptions, those powers could not be used by a court**[67]**:

[100]

The office of the COPIM is created by Pt 7 of the COA. The role of the COPIM was described in the Explanatory Notes to the Criminal Organisation Bill as "in the nature of amicus curiae" who would "assist the court in making a decision as an independent and impartial tribunal."[68]
The functions of the COPIM as set out in s 86 of the COA are to "monitor" applications to the Supreme Court for a criminal organisation order or for its variation or revocation**[69], to monitor each criminal intelligence application[70]** and "to test, and make submissions to the court about, the appropriateness and validity of the monitored application."[71] At any hearing for an application at which the COPIM appears, the applicant is required to furnish the COPIM, as soon as reasonably practicable, with "all material given by the applicant to the court."[72] That obligation does not extend to material disclosing any identifying information about an informant**[73]. The COPIM is obliged to keep the material secure and return it to the applicant[74]. The COPIM is entitled to access to a record or transcript of a record of a hearing at which the COPIM appears[75]. At a hearing the COPIM may, for the purpose of testing the appropriateness and validity of the application, "present questions for the applicant to answer"[76], "examine or cross-examine a witness"[77]** and make submissions to the Supreme Court about the appropriateness of granting the application**[78]. The COPIM is not permitted to make a submission while a respondent or legal representative of a respondent is present[79]** and may be excluded from the hearing, in the Supreme Court's discretion, while a respondent or a legal representative of a respondent is present**[80]**. There is no express prohibition upon communication between the respondent's legal representative and the COPIM to better inform the COPIM for the purpose of the discharge of his or her functions in proceedings under the COA which affect the interests of the respondent.
There are prohibitions affecting the ability of a lawyer appointed as COPIM to act for organisations or individuals who are or have been respondents to applications under the COA, in proceedings in which the COPIM obtained criminal intelligence about the organisation or the individual**[81]. The COPIM must prepare an annual report to the Minister about the performance of the COPIM's functions under the COA[82]. The COPIM's performance is subject to review by a parliamentary committee which also has the function of examining each annual report[83]**.
As appears from the above, the COPIM does not act as an advocate for the interests of any respondent to applications in which the COPIM may be required to appear. The position of the COPIM resembles, to a very limited extent, that of the specially appointed advocates used in some jurisdictions in which closed ex parte hearings are held by courts or tribunals under statutory authority to consider material, the disclosure of which might prejudice national security, criminal investigations, or the identity and safety of informants, or otherwise be contrary to the public interest.

[131]

The duty of a court to inspect privately documents for which immunity from production is claimed and the circumstances in which that duty arises have been discussed in various decisions of this and other courts. It is not necessary to canvass them in these reasons**[132]**. Such decisions have been concerned with the process by which a court decides whether or not documents for which immunity is claimed should be produced to a party calling for them. The analogy relevant for present purposes is found in the ex parte feature of that process. The party resisting production will know what is in the documents. The party calling for them will not. The court will decide. Sometimes, but not always, the court will decide, with the assistance of the legal representative of the party calling for production, subject to directions or undertakings as to non-disclosure.
In determining an application for a criminal intelligence declaration under the COA, the Supreme Court must first determine whether the criteria in s 59 are satisfied. They are important and substantive criteria which are not to be satisfied by pro forma affidavits containing conclusionary statements. The importance of the Supreme Court's judgment about them lies in its consequences for the conduct of subsequent substantive applications which, as pointed out earlier, may have significant legal effects upon the common law freedoms of many individuals and the property rights of organisations.
While hearsay evidence is admitted by virtue of s 61 of the COA, consistently with the practice of the courts in relation to interlocutory applications, the weight to be given to such evidence will be a matter for the Supreme Court in determining whether it can be relied upon to support the findings necessary to enliven the power to make a criminal intelligence declaration. The power conferred by s 72 to make the declaration is discretionary and the Supreme Court is required to balance the outcomes of disclosure of the evidence against the unfairness that a criminal intelligence declaration will work on a prospective respondent. To some extent that consideration will be hypothetical. The Supreme Court will not necessarily know of the organisations or individuals against whom the criminal intelligence will be used in substantive applications under the COA. Nor will it necessarily know what significance the declared criminal intelligence may have against other evidence tendered in a substantive application.
The Supreme Court, in determining an application for a declaration that information is criminal intelligence, is assisted by the COPIM. The COPIM is under no legal duty to represent the interests of potential respondents to substantive applications in which the criminal intelligence may be used. Nevertheless, in making submissions as to the appropriateness or validity of the application, the COPIM will be bound to do so by reference to the statutory criteria upon which the Supreme Court must act. The COPIM's submissions may also direct attention to any apprehended failure on the part of the applicant to comply with its duty of disclosure and may propose to the Supreme Court that a witness or witnesses should be called by the applicant or by the Supreme Court itself.
The effect of Pt 6 of the COA upon the normal protections of procedural fairness is significant. On the other hand, the Supreme Court performs a recognisably judicial function in determining an application under that Part. It is not able to be directed as to the outcome. It retains significant inherent powers and its powers under the UCPR in relation to the proceedings. The process is analogous in some respects to that used in the determination of public immunity claims in the exercise of the inherent power of the Supreme Court. The provisions of Pt 6 relating to an application for a criminal intelligence declaration do not impair the essential and defining characteristics of the Supreme Court so as to transgress the limitations on State legislative power derived from Ch III of the Constitution.
Some contrast and comparisons may be made with State legislation the subject of two decisions of the High Court in recent years. One of those was International Finance Trust Co Ltd v New South Wales Crime Commission[133]. The vice of s 10 of the Criminal Assets Recovery Act 1990 (NSW), held invalid in that case, was that it mandated the "ex parte sequestration of property upon suspicion of wrong doing, for an indeterminate period, with no effective curial enforcement of the duty of full disclosure on ex parte applications."[134] Release from such an order was conditioned upon "proof of a negative proposition of considerable legal and factual complexity."[135] In that case orders made under the impugned provision had an immediate legal effect upon the absent and unknowing respondent's property rights. By way of contrast, a declaration that information is criminal intelligence does not have immediate legal operation although it has legal consequences for the use of that information in later substantive proceedings.
In K-Generation Pty Ltd v Liquor Licensing Court[136] this Court was concerned with s 28A of the Liquor Licensing Act 1997 (SA), which required the Licensing Court of South Australia to take steps to maintain the confidentiality of information which was criminal intelligence. The plurality noted that the Licensing Court**[137]**:
- could determine whether or not information constituted criminal intelligence;

[139]

The respondents challenged provisions of the COA relating to the tender and use of criminal intelligence in substantive proceedings under the COA. It is in that respect that the COA most directly affects the mechanisms for the protection of procedural fairness and the application of the open court principle, that are the hallmarks of the judicial process. The issue is raised in questions (iii) and (v) in the Special Case, which principally concern ss 78 and 10 of the COA read together.
Before considering the operation of s 78, it is necessary to refer to the statutory framework which the COA applies to all proceedings for applications to the Supreme Court under the Act and for appeals and reviews relating to any order under the COA. The effect of s 108 of the COA is that all proceedings under the COA are closed to members of the public including the media. To ensure that hearings under the COA are "closed" the Supreme Court is required to exclude all persons other than the Commissioner, the other party to the proceeding or, if it be an organisation or group of persons, the nominee of that organisation or group, the legal representatives of the Commissioner and the other party, the COPIM, any witness who is giving evidence and court staff**[139]. The same restrictions apply to appeals to the Court of Appeal. Further, s 109 provides that access to a transcript of a hearing under the COA can only be gained upon application to the Commissioner[140]** on payment of the prescribed fee**[141]. The Commissioner must grant an application under that section "as soon as practicable."[142]** No plausible explanation was offered, and none appears from the COA, for these remarkable constraints. They affect not just proceedings before judges of the Supreme Court hearing substantive applications under the COA, but also the Court of Appeal hearing appeals from the decisions of those judges. The validity of ss 108 and 109 was not in issue in these proceedings. However, s 108 is part of an overall statutory scheme of which the challenged provision, s 78, is part. The relationship between the two provisions appears from s 108(7), which provides:

[142]

The respondents submitted that the statutory denial to the Supreme Court of any discretion to balance the demands of secrecy with the respondents' legitimate interests to ensure that adverse evidence was properly tested, was repugnant to the judicial process. The absence of any such discretion was said to distinguish s 78 from the provision whose validity was upheld in K-Generation. The respondents further submitted that the role of the COPIM offered no substantive protection having regard to the prohibition against the COPIM making submissions in the presence of a respondent or the respondent's legal representative and the absence of any process for allowing the respondent or the respondent's legal representative to make representations to the COPIM.
The applicant, in supporting the statutory procedures, set out a number of options open to the legislature in devising a process for dealing with criminal intelligence. One option would have allowed limited disclosure to one side of the record. Another, that which was adopted, provided for the use of material on the basis that there would be no disclosure at all to one side of the record. An option not considered in the applicant's submissions was to confer a discretion on the Supreme Court to determine whether limited disclosure to the legal representatives of one party was appropriate.
The applicant correctly submitted that each of the options which it canvassed involved some prejudice to somebody. The applicant also correctly submitted that that consequence was not an invalidating attribute of the provisions of the COA relating to the use of criminal intelligence. That a law imposes a disadvantage on one party to proceedings in order to restrict, mitigate or avoid damage to legitimate competing interests does not mean that the defining characteristics of the court required to administer such a law are impermissibly impaired. Such a law was held valid in K-Generation[143].
The question of validity requires attention to the features of the statutory scheme taken as a whole. Factors tending to support validity in this case include:
1. The making of the criminal organisation declaration involves the exercise of judicial power.
2. The Supreme Court has a discretion to refuse to exercise its power to make a declaration even if satisfied of the matters which enliven that power.
3. The criteria of which the Supreme Court must be satisfied before making a declaration depend upon the Supreme Court's own assessment of the evidence before it.
4. As the applicant accepted, the application for the declaration must set out all the grounds on which the declaration is sought and the information supporting those grounds. The grounds which must be disclosed include those which are based on criminal intelligence, albeit the application is not required to disclose the content of information relied upon which is the subject of a criminal intelligence declaration.
5. The COA does not abrogate the power of the Supreme Court under r 161 of the UCPR or otherwise under the inherent power of the Supreme Court to order that the applicant provide particulars of its grounds for making the application.
6. The COA does not prevent the Supreme Court from having regard to degrees of unfairness to the respondent in determining whether or not to accept criminal intelligence tendered in the course of the substantive hearing.
7. The COPIM provides a limited measure of redress for the imbalance between the parties in respect of the use of criminal intelligence.
8. The Supreme Court in a special closed hearing, during the hearing of a substantive application, may call witnesses and the COPIM may examine or cross-examine them**[144]**.
9. The rules of evidence apply to the proceedings subject to the provisions of ss 107(2) and 61 of the COA, considered earlier in these reasons.
Understandably the respondents placed great emphasis on the provision for special closed hearings and the secrecy attaching to criminal intelligence tendered to the Supreme Court. Those provisions undoubtedly represent incursions upon the open court principle and procedural fairness. The Supreme Court, however, retains its decisional independence and the powers necessary to mitigate the extent of the unfairness to the respondent in the circumstances of the particular case. It retains the responsibility to determine what weight, if any, to give to criminal intelligence and, in particular, hearsay evidence relating to information provided by informants. The power of the Supreme Court to control its own proceedings in order to avoid unfairness also suggests that it would have a discretion to refuse to act upon criminal intelligence where to do so would give rise to a degree of unfairness in the circumstances of the particular case which could not have been contemplated at the time that the criminal intelligence declaration was made.
Despite the incursions on the open court principle and the normal protections of procedural fairness effected by the impugned provisions of the COA, they do not so impair the essential or defining characteristics of the Supreme Court as a court as to be beyond the legislative power of the Queensland Parliament. The impugned provisions are valid. The answer to each of questions (iii) and (v) in the Special Case is "no".

[143]

The respondents submitted that s 76, read with a number of other provisions of the COA, established a regime in which evidence derived from informants could be used in an application for a criminal organisation declaration in circumstances where neither the Supreme Court nor the respondent to the application had a proper basis to evaluate that evidence or a proper opportunity to test it.
The statutory scheme relating to the use of information derived from informants includes the following elements:
- in an application for a criminal intelligence declaration where information has been provided by an informant, the informant need not be identified in the application or supporting affidavits**[145]**;
- the informant cannot be called to give evidence or otherwise required to give evidence**[146]**;
- where information provided to a relevant agency by an informant is the subject of a criminal intelligence declaration, the Commissioner must file an affidavit sworn by an officer of the relevant agency setting out, inter alia, his or her honest and reasonable belief that the information provided is reliable and the reasons for that belief**[147]**. The officer is also required to provide information about the informant including the informant's criminal history without identifying the informant;
- the informant cannot be called or otherwise required to give evidence in substantive proceedings under the COA**[148]**;
- in any such substantive proceeding the Commissioner must file an affidavit by the officer of the relevant agency complying with the requirements of such affidavits in criminal intelligence declaration proceedings**[149]**.
The provisions relating to information provided by informants place a respondent at a forensic disadvantage. However, the Supreme Court has the discretion to accept or reject or to give little weight to information provided by an informant. In so doing it may take account of unfairness flowing from the anonymity of the informant, the informant's unavailability for cross-examination and the hearsay character of evidence derived from the informant. The provisions relating to informant evidence do not impair the defining or essential characteristics of the Supreme Court. Question (iv) in the Special Case should be answered "no".

[146]

The Special Case agreed by the parties to this proceeding asked whether certain provisions**[151]** of the Criminal Organisation Act 2009 (Q) ("the CO Act") are invalid because they, or any of them, infringe Ch III of the Constitution. The Special Case is agreed in proceedings brought in the Supreme Court of Queensland, and removed in part into this Court, to declare the second respondent, the Finks Motorcycle Club, Gold Coast Chapter, a criminal organisation under the CO Act. The first respondent, Pompano Pty Ltd, is said to be part of that organisation.
As developed in argument, the chief issue was whether s 10 of the CO Act, which permits the Supreme Court of Queensland on application by the Commissioner of the Queensland Police Service ("the Commissioner") to declare an organisation to be a "criminal organisation", is invalid because the procedures prescribed by the CO Act for the Supreme Court to decide whether to make a declaration impair the institutional integrity of that Court. The principal submission of the respondents, who alleged invalidity, was that the institutional integrity of the Supreme Court is impaired because the CO Act permits the Court to receive and act upon material which must not be disclosed to a respondent to an application for a declaration or to any representative of the respondent.
The material that must be kept from the respondent to an application for a declaration is referred to in the CO Act as "criminal intelligence". Criminal intelligence is information that relates to actual or suspected criminal activity. Information of that kind must be kept from a respondent if the Supreme Court declares it to be criminal intelligence and that declaration cannot be made unless the Court is satisfied that disclosure of the information could reasonably be expected to prejudice a criminal investigation, enable the discovery of the existence or identity of a confidential source of information relevant to law enforcement or endanger a person's life or physical safety.
The respondents raised two other issues but these were treated as subsidiary to the issue just described. The first was that the CO Act requires the Supreme Court to decide, in determining whether to declare an organisation to be a criminal organisation, whether that organisation is "an unacceptable risk to the safety, welfare or order of the community"[152]. Is that a question suitable for judicial determination? The second was that the CO Act gives a respondent to an application for a declaration that it is a criminal organisation little time to respond to that application. Does that require such a departure from judicial processes that it impairs the institutional integrity of the Supreme Court?

[148]

The CO Act provides**[153]** that the Supreme Court of Queensland, on application by the Commissioner**[154], may declare an organisation[155]** to be a "criminal organisation" if the Court is satisfied that some of the organisation's members "associate for the purpose of engaging in, or conspiring to engage in, serious criminal activity"[156] and the organisation is "an unacceptable risk to the safety, welfare or order of the community"[157]. In considering whether to make a declaration, the Court must**[158]** have regard to various matters, including information before the Court "suggesting current or former members of the organisation have been, or are, involved in serious criminal activity, whether directly or indirectly and whether or not the involvement resulted in convictions"[159].
If an organisation is declared to be a criminal organisation under the CO Act, the Supreme Court may, if certain conditions are met, make**[160]** control orders for members of the organisation and persons who associate with members. Control orders may prohibit**[161]** the person subject to the order from doing various things, including associating with members of any declared criminal organisation or with other controlled persons**[162]** and applying for or undertaking stated employment**[163]. That an organisation has been declared to be a criminal organisation is also relevant for the making of other orders under the CO Act[164]**.
Some attention was given in argument to what information the Commissioner must provide as part of an application for a declaration under s 10 of the CO Act. As argument developed it became apparent that there was little if any difference on this question between the parties. It is therefore not necessary to trace the development of this aspect of the argument; it is enough to state the relevant conclusions.
The CO Act requires**[165]** the application to state (among other things) the grounds on which the declaration is sought and the information supporting the grounds. The application must**[166]** be accompanied by any affidavit the Commissioner intends to rely on at the hearing of the application. In combination, these provisions require the Commissioner to tell the respondent**[167]** the whole of the case which the Commissioner seeks to make in support of the application for a declaration. That is, the Commissioner must identify, in detail, the information upon which the Commissioner will seek to rely to satisfy the Supreme Court of the three criteria for making a declaration which are identified in s 10(1): that the respondent is an organisation; that members of the organisation associate for the purpose of engaging in, or conspiring to engage in, serious criminal activity; and that the organisation is an unacceptable risk to the safety, welfare or order of the community.
Section 10(2) provides that "[i]n considering whether or not to make a declaration, the court must have regard to" certain kinds of information before the Court as well as "anything else the court considers relevant". The specific matters identified in s 10(2) include not only such matters as any conviction of any current or former members of the organisation but also "information suggesting current or former members of the organisation have been, or are, involved in serious criminal activity, whether directly or indirectly and whether or not the involvement resulted in convictions"[168]. Again, if the Commissioner intends to rely on information of the kind just described, the initiating application and accompanying affidavits must give the respondent notice of that intention and particulars of the criminal activity that it is alleged has occurred or is occurring.
The respondents' challenge to the validity of provisions of the CO Act must be determined on the basis of this construction of ss 8 and 10. On this construction, the Commissioner must give, in the application for a declaration that an organisation is a criminal organisation, and the affidavits accompanying the application, detailed particulars of what is alleged against the respondent organisation and how the Commissioner puts the case for making a declaration.
The respondents directed much attention to those provisions of the CO Act which deal with "criminal intelligence". It is necessary to examine those provisions in some detail.

[152]

The elements of this definition require some elucidation. First, "criminal intelligence" is "information relating to actual or suspected criminal activity". The expression "criminal activity" is not defined in the Act. It should be read as requiring the identification of specific criminal offences. This construction follows naturally from the words of the definition and is reinforced by consideration of other provisions of the CO Act. "Serious criminal activity" is defined in s 6 as a "serious criminal offence" or an act done or omission made outside Queensland that, if done or made in Queensland, would have been or would be a serious criminal offence. "Serious criminal offence" is defined in s 7 as an indictable offence punishable by at least seven years' imprisonment or an offence against either the CO Act itself or certain specified provisions of the Criminal Code (Q).
Second, the other element of the definition of "criminal intelligence" is that it must be information "the disclosure of which could reasonably be expected" to have one of three consequences: (a) prejudice to a criminal investigation (which should be read as referring only to a continuing criminal investigation); (b) enabling the discovery of the existence or identity of "a confidential source of information relevant to law enforcement"; or (c) endangering a person's life or physical safety. It was not and could not be disputed that there is an evident public interest in the avoidance of all of these consequences. It was submitted by the respondents, however, that avoiding these consequences could not justify requiring a court to proceed to decide a case affecting the interests of a person on the basis of material which that person neither knows of nor has had a chance to answer. It will be necessary to return to that general proposition later in these reasons.
The Commissioner may apply**[170]** to the Supreme Court for a declaration that particular information is criminal intelligence. The Commissioner's criminal intelligence application must be decided**[171]** before any substantive application in which it is to be relied on. The Court must**[172]** consider the criminal intelligence application without notice of it having been given to any person other than the "criminal organisation public interest monitor" (or "COPIM") appointed under s 83(1) of the CO Act. If the Court declares the information to be criminal intelligence, and the information is relied on in support of an application to have an organisation declared a criminal organisation, the Court must**[173]** "order any part of the hearing of the substantive application in which the declared criminal intelligence is to be considered ... to be a closed hearing" and must**[174]** exclude from that part of the hearing everyone except the Commissioner, the Commissioner's legal representatives and nominees, a police officer, an officer from an agency from which the Commissioner obtained any of the declared criminal intelligence, the COPIM and the court staff necessary for the hearing.
A deal of attention was given in argument to three questions about the operation of the criminal intelligence provisions of the CO Act. What role does the COPIM have? Can the respondent to an application to have it declared a criminal organisation apply for discharge or variation of any prior order declaring information to be criminal intelligence? Can the Supreme Court make any order which would give a representative of the respondent to an application to have it declared a criminal organisation access to declared criminal intelligence? Each is, of course, a question of very great importance to the application of the CO Act. It is not necessary, however, to answer any of them in dealing with the respondents' central complaint that the impugned provisions of the CO Act deny procedural fairness to a respondent to an application for a declaration that it is a criminal organisation.
No party or intervener submitted that, in the hearing of a criminal intelligence application, the COPIM could or would stand in the shoes of any organisation which the Commissioner either had already applied, or may later apply, to have declared a criminal organisation. Nor was it submitted that the COPIM could or would stand in the shoes of any such organisation's representative. So, for example, it was not submitted that the COPIM could seek or obtain any instructions about the matters the subject of the criminal intelligence application. The CO Act provides no foundation for treating the COPIM's task as extending so far**[175]**. Even if it did, it must be recognised that no substantive application may have been instituted when application is made to declare information to be criminal intelligence. Accordingly, the class of persons interested in the uses to which declared criminal intelligence may be put in connection with a substantive application may be unknown and unknowable when a criminal intelligence application is made.
No party or intervener submitted that any power the Supreme Court has to discharge or vary a criminal intelligence declaration could constitute more than a limited qualification to the general rule established by the CO Act that declared criminal intelligence must be kept secret from the respondent to an application for a substantive declaration. The qualification would be limited in the sense that the submissions appeared to contemplate the Supreme Court exercising a power to discharge or vary a criminal intelligence declaration only where the defining conditions in s 59(1) no longer exist.
Finally, no argument was advanced or available**[176]** for severing or reading down the CO Act to enable the Supreme Court to give representatives of a respondent organisation access to declared criminal intelligence. And even if, as the applicant submitted, the CO Act could be construed as not preventing the Supreme Court from exercising some discretionary power to direct that declared criminal intelligence be revealed to a representative of the respondent to an application for a declaration of that respondent as a criminal organisation, the validity of the impugned provisions must be determined on the footing that the provisions regulating the use of declared criminal intelligence may, and at least commonly will, be applied according to their terms. The basic principle underpinning the relevant provisions of the CO Act is that declared criminal intelligence is not to be revealed to the respondent or any representative of the respondent**[177]**.
None of the three questions debated in argument about the operation of the criminal intelligence provisions must be answered in order to decide the validity of s 10.

[153]

There is a more fundamental reason why consideration of the arguments alleging invalidity does not call for these questions to be answered. The arguments that the CO Act's provisions dealing with criminal intelligence render s 10 invalid, though expressed in various ways, depended upon one central proposition: that Ch III of the Constitution puts beyond the legislative power of a State any enactment that would permit a State Supreme Court to decide a disputable issue by reference to evidence or information of which one party does not know and to which that party can have no access whether personally or by a representative.
The proposition admitted of no exception. Although reference was made to the special procedures that have long been adopted by State and other courts in dealing with matters such as evidence of trade secrets and some kinds of evidence in cases concerning children, these procedures were treated as depending upon the courts' power (perhaps obligation) to permit access to the relevant material by at least the legal representatives of the parties. And inferentially if not explicitly, much of the argument appeared to proceed from the premise that cases of the kind described constitute a closed class of limited qualifications to an adversarial system to which no legislative addition could validly be made.
That revelation of criminal intelligence could reasonably be expected to have consequences contrary to the public interest was treated as irrelevant to the issue of validity. The argument for invalidity asserted that in deciding any dispute a State Supreme Court must always follow an adversarial procedure by which parties (personally or by their representatives) know of all of the material on which the Court is being asked to make its decision. Otherwise, so it was asserted, there would be such a departure from procedural fairness that the institutional integrity of the Supreme Court would be impaired.
Several observations must be made about this central proposition. First, it is absolute. Second, because it is absolute, it entrenches a particular form of adversarial procedure as a constitutionally required and defining characteristic of the State Supreme Courts. Third, as will be seen, it seeks to found this result not in any particular constitutional text but in what is said to be the logical consequence of earlier decisions of this Court.
Examination of this central proposition, which underpinned the argument for invalidity, will demonstrate that it cannot be adopted.
It is convenient to begin that examination by considering some earlier decisions of this Court and the principles which they applied.

[154]

The argument for invalidity depended upon the application of principles first stated in Kable v Director of Public Prosecutions (NSW)[178] and later considered and applied in several cases including, in particular, Fardon v Attorney-General (Qld)[179], Gypsy Jokers Motorcycle Club Inc v Commissioner of Police[180], K-Generation Pty Ltd v Liquor Licensing Court[181], International Finance Trust Co Ltd v New South Wales Crime Commission[182], South Australia v Totani[183] and Wainohu v New South Wales[184].
The relevant principles have their roots in Ch III of the Constitution. As Gummow J explained**[185]** in Fardon, the State courts (and the State Supreme Courts in particular) have a constitutionally mandated position in the Australian legal system. Once the notion is rejected, as it must be, that the Constitution "permits of different grades or qualities of justice"[186], and it is accepted that the State courts have the constitutional position that has been described, it follows that "the Parliaments of the States [may] not legislate to confer powers on State courts which are repugnant to or incompatible with their exercise of the judicial power of the Commonwealth"[187] (emphasis added). As Gummow J further pointed out**[188], and as is now the accepted doctrine of the Court[189]**, "the essential notion is that of repugnancy to or incompatibility with that institutional integrity of the State courts which bespeaks their constitutionally mandated position in the Australian legal system".
Three further points must be made about this "essential notion". First, "the critical notions of repugnancy and incompatibility are insusceptible of further definition in terms which necessarily dictate future outcomes"[190]. Second, the repugnancy doctrine "does not imply into the Constitutions of the States the separation of judicial power mandated for the Commonwealth by Ch III"[191]. Third, content must be given to the notion of institutional integrity of the State courts, and that too is a notion not readily susceptible of definition in terms which will dictate future outcomes.
Something more must be said about the second and third points. Independence and impartiality are defining characteristics of all of the courts of the Australian judicial system**[192]. They are notions that connote separation from the other branches of government, at least in the sense that the State courts must be and remain free from external influence[193]. In particular, the courts cannot be required to act at the dictation of the Executive[194]**. In this respect, clear parallels can be drawn with some aspects of the doctrines that have developed in relation to federal courts. But because the separation of judicial power mandated by Ch III does not apply in terms to the States, and is not implied in the constitutions of the States, there can be no direct application to the State courts of all aspects of the doctrines that have been developed in relation to Ch III. More particularly, the notions of repugnancy to and incompatibility with the continued institutional integrity of the State courts are not to be treated as if they simply reflect what Ch III requires in relation to the exercise of the judicial power of the Commonwealth.
Two related consequences follow from these propositions and should be noted. First, in applying the notions of repugnancy and incompatibility it may well be necessary to accommodate the accepted and constitutionally uncontroversial performance by the State courts of functions which go beyond those that can constitute an exercise of the judicial power of the Commonwealth. Second, the conclusions reached in this matter cannot be directly translated and applied to the exercise of the judicial power of the Commonwealth by a Ch III court. As pointed out by this Court in Bachrach (HA) Pty Ltd v Queensland[195], the "occasion for the application of Kable does not arise" if the impugned State law would not offend Ch III had it been enacted by the Commonwealth Parliament for a Ch III court. But because "[n]ot everything by way of decision-making denied to a federal judge is denied to a judge of a State"[196], that a State law does not infringe the principles associated with Kable does not conclude the question whether a like Commonwealth law for a Ch III court would be valid. It is not necessary for the resolution of this case to pursue those matters further.

[160]

Those alleging invalidity placed heavy emphasis on the cases that have just been discussed. Their arguments proceeded from the premise that proceedings for a declaration of an organisation as a criminal organisation "are not proceedings otherwise known to the law"[209]. While recognising that proceedings for a declaration of an organisation are not criminal, they submitted that "they form the basis of a process that is predominantly criminal in nature" because of the consequences that may follow from declaring an organisation to be a criminal organisation. They submitted that the ex parte processes required for determination of an application for a criminal intelligence declaration were not relevantly different from those examined in International Finance because the declaration would remain in force until revoked and could not effectively be challenged by the person or organisation to whom it related**[210]. And they further submitted that, by denying the Supreme Court hearing an application to declare an organisation as a criminal organisation any discretion to balance the demands of secrecy about criminal intelligence with "the respondent's legitimate interest to ensure that any adverse evidence is properly tested", the CO Act compromises the Supreme Court's ability "to ensure, so far as practicable, fairness between the parties"[211]**.
As these submissions demonstrate, it is readily possible to take statements made in previous cases in explaining why the legislation under consideration in each was invalid and, by joining them together in a logical sequence, argue that the relevant provisions of the CO Act are invalid. But the constitutional validity of one law cannot be decided simply by taking what has been said in earlier decisions of the Court about the validity of other laws and assuming, without examination, that what is said in the earlier decisions can be applied to the legislation now under consideration. The critical questions are whether and why what has been said can be applied. Judge Henry Friendly was surely right to warn**[212]** against "the domino method of constitutional adjudication ... wherein every explanatory statement in a previous opinion is made the basis for extension to a wholly different situation". And as Judge Friendly pointed out more than once**[213], by reference to the writings of Judge Cardozo[214]**, great care must be exercised in "pushing a principle to 'the limit of its logic'". Care must be exercised lest taking what has been said in explanation of the decisions in other cases about other legislation to its apparently logical end sever the applicable principle from its constitutional roots.
Because the CO Act provides for the Supreme Court to follow novel procedures with respect to criminal intelligence, it is no doubt possible to say of them that they depart from hitherto established judicial processes. But the central question is whether the CO Act's provisions about the declaration and subsequent use of declared criminal intelligence are repugnant to or incompatible with the continued institutional integrity of the Supreme Court. The fact that the procedures prescribed by the Act are novel presents the question. Novelty does not, without more, supply the answer to that question. More detailed analysis is necessary.

[161]

Invalidity was said to follow from the requirement that the Supreme Court exclude the respondent organisation and its representatives from the hearing of a criminal intelligence application and from any parts of a hearing of a substantive application in which declared criminal intelligence is to be considered. The CO Act requires**[215]** the Supreme Court to hear a criminal intelligence application in a "[s]pecial closed hearing" and further requires**[216]** the Court to order any part of the hearing of a substantive application in which declared criminal intelligence is to be considered to be a closed hearing. The respondent organisation and its representatives are not permitted**[217]** to attend closed hearings. This exclusion was said to constitute a radical departure from accepted judicial process and require denial of procedural fairness to the respondent. Before considering this submission it is necessary to notice what was not submitted and then to address, and reject, two points that were made in argument.
First, those alleging invalidity did not submit that the CO Act enlists or conscripts the Supreme Court to do the Executive's bidding. That is, those alleging invalidity did not submit that the CO Act trenches upon the independence of the Supreme Court.
Second, those alleging invalidity did not submit that it was beyond legislative power to require the Supreme Court to consider in private a criminal intelligence application or so much of a substantive application as concerned declared criminal intelligence. Invalidity of the relevant provisions of the CO Act was not said to follow from creation of these legislatively mandated exceptions to the general rule that the Supreme Court conduct open and public hearings.
Third, subject to the questions presented by the operation of the criminal intelligence provisions, those alleging invalidity did not submit that an application for a declaration of an organisation as a criminal organisation would proceed in the Supreme Court in a manner differing in any relevant respect from what, in Re Nolan; Ex parte Young, Gaudron J rightly described**[218]** as the general features of the judicial process:

[163]

It was submitted, however, that requiring the Court to decide whether the respondent organisation is "an unacceptable risk to the safety, welfare or order of the community"[219] presents a question that is not suitable for judicial determination. That submission should not be accepted. Its acceptance would be contrary to the decisions in Fardon[220] and Thomas v Mowbray[221] and the reasoning that underpinned them. To determine whether a disfavoured status should be accorded to an organisation based on an assessment of what its members have done, are suspected of having done, and may do in the future is not different in any relevant way from the tasks held to be validly assigned to courts by the legislation in issue in those cases. Courts are often called on to make predictions about dangers to the public**[222]**.
One other consideration should be examined but may then be put aside. The respondents submitted that the criminal intelligence provisions expand "the nature of the evidence beyond what would ordinarily be admissible". That submission should not be accepted. The criminal intelligence provisions of the CO Act do not provide for the reception in evidence of information that would otherwise be irrelevant or inadmissible. They provide for conditions which permit the tendering of evidence which would not otherwise have been adduced. This point requires some explanation.
Section 60 of the CO Act records that the objects of Pt 6 (which deals with criminal intelligence) include allowing "evidence that is or contains criminal intelligence to be admitted in applications under this Act without the evidence" having the consequences stated in the definition**[223]** of "criminal intelligence": prejudicing a criminal investigation, enabling the discovery of the existence or identity of a confidential source of information relevant to law enforcement or endangering anyone's life or physical safety. The criminal intelligence provisions of the CO Act assume that, but for their enactment, information which could be declared criminal intelligence would not be available for use by the Supreme Court in deciding whether to declare an organisation to be a criminal organisation.
Why is that assumption made? That members of a respondent organisation have engaged in, or are suspected of having engaged in, criminal activity is relevant**[224]** to whether an organisation should be declared to be a criminal organisation and evidence of those matters could be tendered in admissible form.
The assumption must accordingly be understood as made on the basis that, but for the criminal intelligence provisions of the CO Act, an applicant for a declaration of an organisation as a criminal organisation would not advance the material in evidence when doing so could reasonably be expected to have one of the adverse consequences referred to in the definition of criminal intelligence. As noted earlier, the avoidance of each of those consequences is in the public interest.
If, in litigation not governed by the CO Act, a party sought to adduce evidence of information that would meet the definition of criminal intelligence, the Commissioner may very well be able to resist its production on public interest immunity grounds. In determining that claim, the court could examine**[225]** documents not shown to one party for the purpose of ruling on that claim. And if that objection were to be upheld, the material could not be received in evidence**[226]**. But in a case of the kind just described, it would be the Commissioner who would seek to keep the information secret. The CO Act seeks to permit the Commissioner to use it. It does that by providing for the reception of evidence of information which is relevant to the issue and which, but for those provisions, would not be advanced only because of the adverse consequences that could reasonably be expected to follow from its tender. The criminal intelligence provisions do not provide for the reception of evidence that would otherwise be irrelevant or inadmissible. They provide for the admission of evidence which would otherwise not be adduced.

[164]

It is convenient to begin consideration of the submissions about procedural fairness by reference to this Court's decisions in Gypsy Jokers and K-Generation, in each of which (unlike the cases discussed earlier) at least a majority of the Court upheld the legislation in question.
In Gypsy Jokers, the Court considered the validity of s 76(2) of the Corruption and Crime Commission Act 2003 (WA) ("the CCC Act"). Under the CCC Act, the Commissioner of Police could issue a "fortification removal notice" if the Commissioner reasonably believed that premises were heavily fortified and habitually used as a place of resort by members of a class a significant number of whom might reasonably be suspected to be involved in organised crime. A person to whom a notice of that kind was directed could apply to the Supreme Court of Western Australia for review of the notice. Section 76(2) of the CCC Act restricted the information available to an applicant for review by providing that the Commissioner could identify information provided to the Supreme Court as confidential "if its disclosure might prejudice the operations of the Commissioner". Information of that kind would then be for the Court's use only.
The validity of s 76(2) was challenged primarily on the ground that it imposed an impermissible legislative direction and form of executive control over the exercise by the Supreme Court of its jurisdiction. The challenge failed. A majority of the Court held**[227]** that, on its proper construction, s 76(2) required the Supreme Court to decide for itself whether the disclosure of the information alleged to be confidential would prejudice the operations of the Commissioner.
The appellant in Gypsy Jokers also submitted that, by allowing only the Court to have access to information which was found to be properly claimed as confidential, s 76(2) was beyond power because it was repugnant to or inconsistent with the continued institutional integrity of the Court. Crennan J (with whom Gleeson CJ agreed) explicitly rejected**[228]** this submission. The plurality said**[229]** of the provision only that it had "an outcome comparable with that of the common law respecting public interest immunity, but with the difference that the Court itself may make use of the information in question". The plurality said nothing to indicate that s 76(2), by allowing only the Court to have access to the confidential information, might, on that account, be of doubtful validity. Rather, the plurality's conclusion in Gypsy Jokers proceeded from an acceptance that, as Crennan J rightly pointed out**[230]**, "Parliament can validly legislate to exclude or modify the rules of procedural fairness".
The decision in Gypsy Jokers points firmly against accepting the central proposition advanced by those advocating invalidity of the CO Act. But lest it be said that the point was not dealt with expressly by a majority of the Court in Gypsy Jokers, it is as well to explore the issue further.
In K-Generation, this Court unanimously upheld the validity of s 28A of the Liquor Licensing Act 1997 (SA). That provision required, on application by the Commissioner of Police, the Liquor and Gambling Commissioner, the Licensing Court of South Australia and the Supreme Court of South Australia to take steps to maintain the confidentiality of information classified by the Commissioner as criminal intelligence. The Court held**[231]** that s 28A was not repugnant to or incompatible with the continued institutional integrity of the relevant South Australian State courts because the courts could determine for themselves both whether the information met the definition of criminal intelligence in the Liquor Licensing Act and what steps to take to maintain the confidentiality of the information.
The respondents submitted in this case that K-Generation can be distinguished because the CO Act prohibits the Supreme Court from giving a respondent (or a respondent's representative) access to criminal intelligence whereas the Liquor Licensing Act allowed the courts to decide what steps should be taken to maintain confidentiality. Even assuming that to be so (and as noted earlier, it is unnecessary to decide whether the Supreme Court could order that a respondent's representative have access to criminal intelligence), the relevant provisions of the CO Act are not invalid by reason only of this difference. No member of the Court in K-Generation said that the State courts' ability to decide what steps to take to maintain confidentiality was necessary to validity. In K-Generation, the Court paid close attention to all of the relevant features of the Liquor Licensing Act, and a similarly close examination of the CO Act is required in this case.

[165]

The rules of procedural fairness do not have immutably fixed content. As Gleeson CJ rightly observed**[232]** in the context of administrative decision-making but in terms which have more general and immediate application, "[f]airness is not an abstract concept. It is essentially practical. Whether one talks in terms of procedural fairness or natural justice, the concern of the law is to avoid practical injustice." To observe that procedural fairness is an essential attribute of a court's procedures is descriptively accurate but application of the observation requires close analysis of all aspects of those procedures and the legislation and rules governing them**[233]**.
Consideration of other judicial systems may be taken to demonstrate that it cannot be assumed that an adversarial system of adjudication is the only fair means of resolving disputes. But if an adversarial system is followed, that system assumes, as a general rule, that opposing parties will know what case an opposite party seeks to make and how that party seeks to make it. As the trade secrets cases show, however, the general rule is not absolute. There are circumstances in which competing interests compel some qualification to its application. And, if legislation provides for novel procedures which depart from the general rule described, the question is whether, taken as a whole, the court's procedures for resolving the dispute accord both parties procedural fairness and avoid "practical injustice".
As noted at the outset of these reasons, the CO Act requires**[234]** the Commissioner to give, as part of the application for a declaration of an organisation as a criminal organisation, detailed particulars of both the grounds for making the declaration and the information supporting those grounds. The operation of the criminal intelligence provisions will prevent a respondent and the respondent's representatives knowing of one class of material that the Commissioner alleges supports the case for a declaration. In this respect the CO Act may be said to require departure from the usual incidents of an adversarial system of adjudication, but the nature and extent of that departure must be identified with some care.
The procedural unfairness which it was said was worked by the criminal intelligence provisions of the CO Act was identified as being the denial to the respondent of any opportunity to test the criminal intelligence. But three points must then be made.
First, if it is unfair to keep criminal intelligence from the respondent because the respondent cannot test its truth or reliability, it is not apparent how that unfairness could be cured by telling the respondent's lawyer that the applicant intends to rely on identified criminal intelligence. Yet argument of the present matter assumed that procedural fairness would be accorded if a lawyer representing a respondent organisation could be told what was the criminal intelligence upon which the applicant for a declaration relied.
If told of the content of criminal intelligence to be proved in support of an application for a declaration of an organisation as a criminal organisation, what could the respondent's lawyer do with that knowledge? The criminal intelligence is**[235]** information relating to actual or suspected criminal activity. The lawyer could not seek or obtain instructions from anyone about the factual assertions made in that criminal intelligence. The lawyer could not, without disclosing the existence or content of the information constituting the criminal intelligence, ask any member of the respondent to comment on what the lawyer had been told. The lawyer could assemble no ammunition to launch an attack upon the veracity of a confidential source alleged to have provided criminal intelligence without disclosing that source's existence**[236]**. Unlike the commonplace case of evidence of a secret process or other confidential commercial information, the lawyer could not look to some independent third party expert to provide in confidence the means of testing the evidence.
Second, s 72(2) of the CO Act expressly permits the Supreme Court, in exercising its discretion to declare information to be criminal intelligence, to have regard to whether the considerations of prejudice to criminal investigations, enabling discovery of the existence or identity of an informer or danger to anyone's life or physical safety "outweigh any unfairness to a respondent". No doubt it must be recognised that this discretion falls to be exercised before information is relied on for a substantive application**[237]**, and thus must be exercised when all who may be affected by the information may not be identified or identifiable. But fairness to a respondent is a matter to which the Supreme Court may have regard in deciding whether to declare information to be criminal intelligence. In many cases, including those where the respondent to a substantive application is known or can be ascertained, it is a matter to which the Court would be bound to have regard.
The third point to be made is that the criminal intelligence provisions deny a respondent knowledge of how the Commissioner seeks to prove an allegation; they do not deny the respondent knowledge of what is the allegation that is made against it. As has already been shown, a respondent to an application for a declaration of an organisation as a criminal organisation, its representatives and those who are alleged to be its members will know from the application the case that the Commissioner seeks to make. If, as must always be the case, the Commissioner alleges that the organisation should be declared to be a criminal organisation because some or all of its members associate for the purpose of engaging in, or conspiring to engage in, serious criminal activity, the Commissioner will have had to provide particulars of the activity upon which the Commissioner relies, of those who are alleged to have engaged in that activity and of whether those persons are alleged to be or to have been members of the organisation.
For all practical purposes, demonstration of association for the purposes described would be possible only if persons alleged to have then been members of the organisation were alleged to have engaged in relevant acts or omissions constituting serious criminal activity before the application for declaration of the organisation was made. Thus the Commissioner must allege and prove not only the occurrence of past serious criminal activity by persons who then were members of the organisation but also that members of the organisation associate for one or more of the identified purposes relating to that activity.
The criminal activity upon which the Commissioner relies could be demonstrated by proof of the previous prosecution and conviction of members for conduct constituting activity of the kind alleged. To the extent that it is, the respondent can dispute the conclusions which the Commissioner seeks to draw from those facts. (The respondent could also seek to dispute the fact that convictions were recorded but that possibility can be dismissed from consideration as unlikely to be practically relevant.) And to the extent that prior criminal activity is not established by proving the prior convictions of persons shown to have been members of the organisation at relevant times, the respondent, its members and its representatives would know that the case to be met is founded on assertions and allegations not yet made and established in a court.
In deciding any application for declaration of an organisation as a criminal organisation, the Supreme Court would know that evidence of those assertions and allegations that constituted criminal intelligence had not been and could not be challenged directly. The Court would know that the respondent and its members could go no further than make general denials of any wrongdoing of the kind alleged. What weight to give to that evidence would be a matter for the Court to judge**[238]**.
Contrary to a proposition which ran throughout the respondents' submissions in this case, noticing that the Supreme Court must take account of the fact that a respondent cannot controvert criminal intelligence does not seek to deny the allegation of legislative invalidity by asserting that the Supreme Court can be "relied on" to remedy any constitutional infirmity or deficiency in the legislative scheme. Rather, it points to the fact that under the impugned provisions the Supreme Court retains its capacity to act fairly and impartially. Retention of the Court's capacity to act fairly and impartially is critical to its continued institutional integrity.
In this respect, it is useful to contrast the impugned provisions of the CO Act with the CCOC Act considered in Wainohu. It will be recalled that the CCOC Act provided that an eligible judge need not give reasons for declaring an organisation to be a declared organisation. That an eligible judge could choose to do so was not to the point**[239]**. The CCOC Act was held invalid as repugnant to or inconsistent with the institutional integrity of the Supreme Court of New South Wales. But in the present case, the CO Act does not in any way alter the duty of the Supreme Court to assess the cogency and veracity of the evidence that is tendered in an application for a declaration of an organisation as a criminal organisation.
When it is said, as it was in this case, that there has been a departure from hitherto accepted forms of procedure and thus a departure from accepted judicial process, the significance of providing for some novel procedure must be measured against some standard or criterion. Consideration of the continued institutional integrity of the State courts directs attention to questions of independence, impartiality and fairness. In cases where it is said that the courts have been conscripted to do the Executive's bidding, the principal focus will likely fall upon questions of independence and impartiality. But that is not and was not said to be this case. Where, as here, a novel procedure is said to deny procedural fairness, attention must be directed to questions of fairness and impartiality. Observing that the Supreme Court can and will be expected to act fairly and impartially points firmly against invalidity.
Contrary to the respondents' submissions, the decision of the Supreme Court of the United Kingdom in Al Rawi v Security Service[240] does not assist in resolving the constitutional issues at stake in this case. A majority of the Supreme Court held in that case that there is no inherent power for a court, in either a civil or criminal trial, to allow a procedure whereby one party and the court may rely upon material that cannot be disclosed to the other party or its legal representatives. The validity of that proposition need not be examined here. It is a proposition which does not bear at all upon the radically different question of the ambit of legislative power that is in issue here. That ambit is fixed in this case by the principles that have been discussed earlier in these reasons.

[167]

The second of the subsidiary arguments advanced against validity remains for consideration: that ss 9 and 106 of the CO Act are invalid to the extent to which they prevent the Supreme Court from extending the time for a respondent to file its response to an application for a declaration that it is a criminal organisation. The application must state**[241]** as the return date for the application a day within 35 days of its filing. Section 9(3) provides that the respondent must file its response to an application at least five business days before the return date of the application. The response must be accompanied by any affidavit the respondent intends to rely on at the hearing**[242]**. Section 106(1) provides that the applicant may apply to the Supreme Court for an extension of the "return date currently applying to the application". The CO Act makes no express provision for the respondent to make any application for an extension of either the return date or the time fixed by s 9(3) for its filing a response and any affidavit on which it will seek to rely at the hearing.
Those supporting the validity of the relevant provisions submitted that they should not be construed as excluding the power of the Supreme Court to extend the times fixed under the CO Act as the times by which the respondent to an application for a declaration of an organisation must file its response or file affidavits on which it would seek to rely at the hearing. Those who challenged the validity of the provisions did not seek in the end to challenge those submissions. Given the well-established principle**[243]** that the CO Act should be read as taking the Supreme Court "as it finds it", neither s 9 nor s 106 should be read as disclosing a clear intention to prevent the Supreme Court from acting upon either a response filed later than the time fixed by the CO Act or an affidavit filed after a response was, or should have been, filed. The challenge to the validity of these provisions should be rejected.

[169]

French CJ has explained the provisions of the Criminal Organisation Act 2009 (Q) ("the COA"). He has set out the questions reserved by the parties for the consideration of the Full Court.
I agree with French CJ, for the reasons he gives, that s 9 of the COA is not invalid because it limits time to respond to an application under s 8 of the COA. I also agree with French CJ, for the reasons he gives, that s 10(1)(c) of the COA is not invalid because of the nature of the judgment it requires the Supreme Court of Queensland to make.
The other questions turn on the compatibility of "criminal intelligence" provisions of the COA with constitutionally mandated characteristics of the Supreme Court of Queensland. I agree with the answers of French CJ but propose to state my own view of what is required to achieve that compatibility.
My view, in short, is that Ch III of the Constitution mandates the observance of procedural fairness as an immutable characteristic of a Supreme Court and of every other court in Australia. Procedural fairness has a variable content but admits of no exceptions. A court cannot be required by statute to adopt a procedure that is unfair. A procedure is unfair if it has the capacity to result in the court making an order that finally alters or determines a right or legally protected interest of a person without affording that person a fair opportunity to respond to evidence on which that order might be made.
The criminal intelligence provisions of the COA have the potential to result - in some but not all cases - in the Supreme Court of Queensland making a declaration of a criminal organisation or a control order or other order without the organisation or individual affected being afforded a fair opportunity to respond to evidence on which the declaration or order might be made. The criminal intelligence provisions are not rendered compatible with the constitutional requirement for procedural fairness by the presence of the criminal organisation public interest monitor ("the COPIM"), nor by the ability of the Supreme Court of Queensland to determine the weight to be given to declared criminal intelligence, nor by the width of the discretion allowed to the Supreme Court of Queensland in making a declaration of a criminal organisation or a control order or other order under the COA. The criminal intelligence provisions are saved from incompatibility with Ch III of the Constitution only by the capacity for the Supreme Court of Queensland to stay a substantive application in the exercise of inherent jurisdiction in a case where practical unfairness becomes manifest.
What follows is an elaboration of that view.

[170]

The structural separation of the judicial power of the Commonwealth by Ch III of the Constitution is "the bulwark of the [C]onstitution against encroachment whether by the legislature or by the executive"[244] and "the Constitution's only general guarantee of due process"[245]. Chapter III has the result that "[t]he guilt of the citizen of a criminal offence and the liability of the citizen under the law, either to a fellow citizen or to the State, can be conclusively determined only by a Ch III court acting as such, that is to say, acting judicially"[246].
Yet Ch III of the Constitution also adopts an "autochthonous expedient"[247]: it allows the separated judicial power of the Commonwealth to be vested in courts other than those created by the Commonwealth Parliament. All State and Territory courts are able to be vested by the Commonwealth Parliament with the judicial power of the Commonwealth. They are all "Ch III courts".
That structural expedient can function only if State and Territory courts are able to act "judicially". To be able to act judicially, a court must have institutional integrity: it must "be and appear to be an independent and impartial tribunal"[248].
There lies the essentially structural and functional foundation for the implication that has come to be associated with Kable v Director of Public Prosecutions (NSW)[249]. The implication is a practical, if not logical, necessity**[250]**. To render State and Territory courts able to be vested with the separated judicial power of the Commonwealth, Ch III of the Constitution preserves the institutional integrity of State and Territory courts. A State or Territory law that undermines the actuality or appearance of a State or Territory court as an independent and impartial tribunal is incompatible with Ch III because it undermines the constitutionally permissible investiture in that court of the separated judicial power of the Commonwealth.
The plurality in Leeth v The Commonwealth[251] anticipated the Kable implication in saying that "[i]t may well be that any attempt on the part of the legislature to cause a court to act in a manner contrary to natural justice would impose a non-judicial requirement inconsistent with the exercise of judicial power"[252]. The plurality added that "the rules of natural justice are essentially functional or procedural" and that "a fundamental principle which lies behind the concept of natural justice is not remote from the principle which inspires the theory of separation of powers"[253]. "It is", of course, "a fundamental principle of natural justice, applicable to all courts whether superior or inferior, that a person against whom a claim or charge is made must be given a reasonable opportunity of appearing and presenting his case."[254]
Two members of the majority in Kable specifically held that a function cannot be conferred on a court compatibly with Ch III if that function is "antithe[tical]" or "repugnant" to the "judicial process"[255], explained in Bass v Permanent Trustee Co Ltd[256] to require "that the parties be given an opportunity to present their evidence and to challenge the evidence led against them"[257]. That holding was subsequently applied by all members of the majority in International Finance Trust Co Ltd v New South Wales Crime Commission[258].
Justifications for procedural fairness are both instrumental and intrinsic. To deny a court the ability to act fairly is not only to risk unsound conclusions and to generate justified feelings of resentment in those to whom fairness is denied**[259]. The effects go further. Unfairness in the procedure of a court saps confidence in the judicial process and undermines the integrity of the court as an institution that exists for the administration of justice[260]**.
The centrality of procedural fairness to institutional integrity is implicit in the description of the inherent jurisdiction of a superior court to stay proceedings on grounds of abuse of process as involving**[261]**:

[174]

While the characteristics of a court as an independent and impartial tribunal defy exhaustive definition, there is no novelty in the proposition that those characteristics include that the court not be required by statute to adopt a procedure that is unfair**[263]. Procedural fairness requires the avoidance of "practical injustice"[264]**. It requires, at the very least, the adoption of procedures that ensure to a person whose right or legally protected interest may finally be altered or determined by a court order a fair opportunity to respond to evidence on which that order might be based.
Does the proposition that a court cannot be required by statute to adopt a procedure that is unfair admit of exceptions? No authority compels the conclusion that it does.
In Gypsy Jokers Motorcycle Club Inc v Commissioner of Police[265], Crennan J (with whom Gleeson CJ agreed) stated that "Parliament can validly legislate to exclude or modify the rules of procedural fairness provided there is 'sufficient indication' that 'they are excluded by plain words of necessary intendment'"[266]. The joint majority judgment did not go that far**[267]. The statement of Crennan J is to be read in a context in which her Honour went on to find in the statute in question "modification", not exclusion[268]. The statement was made with reference to The Commissioner of Police v Tanos[269]** and Annetts v McCann[270]. In neither case was a constitutional issue raised. What in Tanos was described as the "deep-rooted principle of the law that before any one can be punished or prejudiced in his person or property by any judicial or quasi-judicial proceeding he must be afforded an adequate opportunity of being heard" was said to be applicable "to proceedings in the established courts [as] a matter of course". The principle was held not to be displaced by the statute in question**[271]. Annetts v McCann did not concern a court, but a coronial inquiry[272]**.
In K-Generation Pty Ltd v Liquor Licensing Court[273] the statute in question relevantly required no more than that a State court "take steps to maintain the confidentiality of information classified ... as criminal intelligence"[274]. The plurality stressed the range of procedures that remained available to provide procedural fairness**[275]. Similar flexibility in the provision of procedural fairness was allowed by the "criminal intelligence" provisions in respect of which no constitutional difficulty was identified in Wainohu v New South Wales[276]**. The Court did not in that case strain at the constitutional gnat of a statutory permission for a court not to give reasons only to swallow the constitutional camel of a statutory requirement for a court not to give procedural fairness.
Suggestions that there are exceptions to procedural fairness in the common practices of courts in Australia are unfounded. The suggested exceptions are more apparent than real. There are many instances in which a court may, or must, make ex parte orders; but invariably as a step in an overall process that, viewed in its entirety, entails procedural fairness. International Finance shows that a court cannot validly be required to make an ex parte restraining order within a statutory context which practically impedes the affected person from applying for discharge of that order**[277]. There are then cases, of which claims for the protection of some intellectual property or for the determination of client legal privilege or public interest immunity are examples, where the usual practices of courts are adjusted to protect confidentiality at the heart of a right or interest in issue which would be destroyed were confidential information to be disclosed in the curial process. There are also instances in which specific evidence given to a court is withheld from a party to protect commercial confidentiality, to protect the safety of a witness or an informant, or for some other reason sufficiently supported by the interests of justice. All are examples of modifications or adjustments to ordinary procedures, invariably within an overall process that, viewed in its entirety, entails procedural fairness. They are not, as submitted on behalf of the Attorney-General for New South Wales, examples of the content of procedural fairness in a court being reduced to "nothingness"[278]**.
Practices of courts in the United Kingdom and Canada, to which the parties and some interveners referred, point in no different direction. The Supreme Courts of those countries have in recent years been called on to consider the compatibility of various forms of novel court procedures with constitutional or quasi-constitutional norms requiring that the determination of rights and obligations occur in a fair and public hearing before an independent and impartial tribunal**[279]. Questions confronted have included: a non-citizen challenging executive detention on national security grounds being excluded from part of the hearing in which national security evidence is given[280]; control orders judicially reviewed on the basis of material not disclosed to the affected person[281]; a witness fearing intimidation giving anonymous evidence in a murder trial[282]; a race discrimination claimant being excluded from part of a hearing on grounds of national security[283]; and a Muslim witness in a sexual assault trial seeking to give evidence with her face covered by a niqab[284]**. Questions of that nature, if they arise in Australia, are best left for consideration in concrete cases. What sufficiently emerges from their consideration by those other national Supreme Courts is a common approach that, while other interests may be balanced in fashioning a procedure appropriate to the context, the processes of a court, viewed as a whole, can never be unfair.
There should be no doubt and no room for misunderstanding. Procedural fairness is an immutable characteristic of a court. No court in Australia can be required by statute to adopt an unfair procedure. If a procedure cannot be adopted without unfairness, then it cannot be required of a court. "[A]brogation of natural justice", to adopt the language of the explanatory notes to the Bill for the COA**[285]**, is anathema to Ch III of the Constitution.
Chapter III of the Constitution admits of legislative choice as to how, not whether, procedural fairness is provided in the exercise of a jurisdiction invested in, or power conferred on, a court. Procedural fairness can be provided by different means in different contexts and may well be provided by different means in a single context**[286]**. The legislative choice as to how procedural fairness is provided extends to how procedural fairness is accommodated, in a particular context, to competing interests.
The limits of that legislative choice need not, and therefore ought not, now be explored. In particular, it is not now necessary or appropriate to determine the extent, if at all, to which the avoidance of practical injustice in a particular context might necessitate "[c]onfrontation and the opportunity for cross-examination"[287]. Resolution of that issue is not foreclosed either by the description in Bass of judicial process as requiring parties to have an opportunity "to challenge the evidence led against them"[288] or by the particular holdings in Gypsy Jokers, K-Generation and Wainohu.
To answer the abstract questions reserved by the parties for the consideration of the Full Court so far as they concern the compatibility of criminal intelligence provisions of the COA with Ch III of the Constitution, it is sufficient to accept, as a starting-point, what is implicit in s 72(2) of the COA and what is conceded by the Solicitor-General of Queensland: that the protection of declared criminal intelligence by the COA may be unfair to a respondent to a substantive application in which that criminal intelligence is relied on as evidence.
From that starting-point, it is sufficient to engage in an analysis that leads to the conclusion that nothing in the scheme of the COA or in procedural rules not excluded by the COA is necessarily sufficient to address that unfairness if it arises, but that the Supreme Court of Queensland retains inherent jurisdiction to stay a substantive application if unfairness becomes manifest. I now turn to that analysis.

[175]

The COA provides for a three-stage process. Stage one is the declaration of criminal intelligence. Stage two is the declaration of a criminal organisation. Stage three is the making of a control order, or a public safety order or a fortification removal order.
Stage one - the declaration of criminal intelligence - is anterior to the second and third stages. An application for a declaration of criminal intelligence must, by s 67, be decided before the information can be relied on in any substantive application. It must be decided in what ss 66 and 70 require to be a closed ex parte hearing. The requirement for the hearing to be ex parte does not of itself give rise to a want of procedural fairness. That is because a declaration of criminal intelligence has no consequences other than those given by the COA, being consequences only in respect of substantive applications under the COA. That is to say, a declaration of criminal intelligence at stage one has no effect on rights absent an application at stage two or stage three. The relevant question is then as to the effect on procedural fairness at that subsequent stage of the prior declaration of criminal intelligence.
The question for the Supreme Court of Queensland at stage one is whether or not to make a declaration of criminal intelligence. It is, by 72(1), one of discretion. By s 72(2) read with s 72(7), a relevant consideration in the exercise of that discretion is whether matters giving information the status of criminal intelligence under s 60(a)(i)-(iii) - that the admission of the information into evidence in substantive applications under the COA would prejudice criminal investigations, enable the discovery of the existence or identity of confidential sources of information relevant to law enforcement or endanger someone's life or physical safety - "outweigh any unfairness" to "a respondent to any existing or possible substantive application in which [that] information ... may be considered" at the second or third stage.
It is not difficult to see how unfairness to a respondent might arise. The protections afforded to declared criminal intelligence by ss 77 and 78 of the COA might well result in a particular respondent to a particular substantive application being left without any real practical opportunity to respond to declared criminal intelligence that is relied upon as evidence to establish one or more grounds for the making of the declaration or order. Other ways in which the statutory protection of declared criminal intelligence might give rise to practical injustice can be put to one side.
The Solicitor-General of Queensland is correct to accept that, despite the permissive language of s 72(2), the relevant consideration it sets out is a mandatory relevant consideration in the exercise of the discretion conferred by s 72(1). He is correct to concede that "having regard to Chapter III of the Constitution, the matters mentioned in s 60(a)(i) to (iii) could never outweigh the public interest in ensuring that all trials are fair trials". He is therefore correct to concede that the discretion conferred by s 72(1) could never be exercised to make a criminal intelligence declaration in the face of an assessment at the time of declaration that the admission of the declared criminal intelligence into evidence in a substantive application would cause unfairness to a respondent to that substantive application.
With one critical difference, the balancing required in the exercise of the discretion conferred by s 72(1) is not unlike the balancing required to determine public interest immunity at common law**[289]. The critical difference is that the consequence of finding the balance in favour of making a declaration of criminal intelligence is not simply that the information is to be kept secret from a respondent but that the information may be deployed in secret against a respondent in a subsequent substantive application. Just as the balance would not favour public interest immunity in respect of information necessary to be disclosed in order fairly to dispose of proceedings[290]**, so s 72(1) would not be exercised to make a declaration in respect of information assessed at the time of the exercise of the discretion to be necessary to be disclosed for a respondent fairly to meet a substantive application.
Here is the difficulty. Inherent in the requirement of s 67 for the discretion conferred by s 72(1) always to be exercised in advance of a substantive application is that the assessment of unfairness has to be made as a prediction. What happens if the prediction turns out to be wrong? What happens, once criminal intelligence has been declared, if disclosure of the declared criminal intelligence turns out, in the events that subsequently occur, in truth to be necessary for a respondent fairly to meet a substantive application?
Alert to the difficulty, the Solicitor-General of Queensland volunteers a solution which he suggests is to be found in the Uniform Civil Procedure Rules 1999 (Q), which are applied by s 101 of the COA in relation to applications made under it "to the extent the rules are consistent with [the COA]". He suggests that a declaration of criminal intelligence, as an "order ... made in the absence of a party", is an order which r 667(2)(a) allows to be set aside at any time. The problem with his suggestion is that such an application of r 667(2)(a) runs counter to s 73(2), which provides for a criminal intelligence declaration to remain in force until revoked, and to s 74(1), which provides for revocation only on application by the commissioner of the police service. The evident legislative design is that criminal intelligence, once declared, is to remain subject to the protections afforded by the COA until revocation on application by the commissioner. As French CJ points out**[291]**, nothing in the COA displaces the inherent jurisdiction of the Supreme Court of Queensland, which includes power to dissolve a declaration of criminal intelligence for fraud or material non-disclosure. But the COA is inconsistent with any general ability of the Supreme Court of Queensland to set aside a declaration of criminal intelligence, on the application of a respondent to a substantive application or of its own motion.
The explanatory notes to the Bill for the COA suggest other solutions, taken up with varying degrees of enthusiasm by the Solicitor-General of Queensland and the interveners.
One solution is suggested to lie in the presence of the COPIM. Analogies are sought to be drawn to the position of special advocates appointed under various statutory regimes. The extent to which those analogies are complete need not be explored. The COPIM does not act as an advocate for a respondent to a substantive application. The COPIM is not required to act in the interests of a respondent. The presence of the COPIM doubtless adds to the integrity of the process. But it cannot cure a want of procedural fairness.
Another solution is suggested to lie in the ability of the Supreme Court of Queensland to determine the weight to be given to declared criminal intelligence. Procedural unfairness in an administrative process cannot be cured by a decision-maker choosing to ascribe no or little weight to adverse evidentiary material that has not been disclosed to a person whose rights or interests are affected by a decision. That is for a reason of principle**[292]**:

At a glance

Court

Decision date

Before

Source

Judgment (409 paragraphs)

Assistant Commissioner Michael James Condon v Pompano Pty Ltd [2013] HCA 7 (14 March 2013)

Parties

Legislation Cited (2)

Cases Cited (68)