The constitutional validity of section 29(3)
263We have reserved this topic for discussion at a relatively late stage of these reasons because the issues arising are more easily understood after specific aspects of section 29(3) have been investigated and explained.
264The Court of Appeal decision. In the case that we have called Sleiman (Court of Appeal), at [206 - 232], Sackville AJA discussed and rejected an argument by the applicants in the AVSGC proceedings that section 29(3) of the SI Act was constitutionally invalid. In his judgment, his Honour referred to these appellants collectively as 'AVS'.
265At [206], he set out the terms of paragraphs 2 and 3 of the notice under section 78B of the Judiciary Act 1903 (Cth) that those appellants had filed:-
2 The question is whether s 29(3) of the [SI Act ] is constitutionally invalid for the reason that it:
a. requires an inferior tribunal, namely the [ADT], unless an executive officer of the State of New South Wales, namely the Commissioner of Police, approves otherwise, to publish reasons for decisions made by it and affecting legal rights, that are misleading as to the true reasons for such decisions, by reason of the non-disclosure in such published reasons of the existence of matters that may in particular cases be matters giving rise to jurisdictional error by the Tribunal in reaching such decisions; and therefore
b. is capable of operating so as to prevent in particular cases the effective exercise by the Supreme Court of New South Wales of the supervisory jurisdiction to review jurisdictional error on the part of the [ADT]; and
c. is to that extent repugnant to the requirements of Chapter III of the Commonwealth Constitution; and
d. is incapable of being read down so as to operate only in a manner that avoids that repugnancy.
3. Section 29(3) of the SI Act purports to prohibit the [ADT], in determining any application for review by it of a decision of the Commissioner to revoke a statutory licence issued pursuant to the SI Act, from disclosing the existence of any criminal intelligence report or other criminal information that the Commissioner considers relevant to the determination of that application for review, unless the Commissioner approves such disclosure. The Commissioner contends that, on the proper construction of s 29(3) of the SI Act , he is under no duty to consider and determine a request for such approval, at least in a case where, his doing so would necessarily disclose that matter, which the [ADT] is prohibiting from disclosing without his approval. [AVS says] that if the construction for which the Commissioner contends is correct, section 29(3) of the SI Act necessarily has the operation specified in paragraph (2) above, and is consequently wholly invalid." (Emphasis added.)
266At [207 - 209], his Honour summarised the key ingredients of the appellants' argument on this matter as follows:-
207 AVS submitted that the effect of s 29(3) of the SI Act is that the ADT cannot effectively perform its duty under the ADT Act to give reasons if those reasons would disclose the existence or content of Criminal Information without the Commissioner's approval. (The obligation to give reasons is imposed on the ADT by s 89 of the ADT Act and on an Appeal Panel by s 117 of the ADT Act.) It follows, so Mr Hughes argued, that s 29(3) of the SI Act requires the ADT, where it has had regard to Criminal Information, to publish reasons that are, at best, incomplete and, at worst, positively misleading. In all cases where the existence of Criminal Information is not known to the review applicant, the reasons must be misleading because the ADT is forced to conceal the fact that the reasons are incomplete.
208 The significance of this, from a constitutional perspective, is said to be that the unpublished reasons of the ADT may disclose a jurisdictional error, for example an erroneous classification of material as "criminal information" for the purposes of s 29(3). Mr Hughes submitted that it would be impossible to invoke the supervisory jurisdiction of the Supreme Court in relation to a decision by the ADT if the only published record of the ADT's reasons conceals the basis for asserting the existence of jurisdictional error. If a review applicant sought judicial review in the Supreme Court without a basis for establishing jurisdictional error, the proceedings would be an abuse of process.
209 Accordingly, on the Commissioner's construction, s 29(3) of the SI Act prevents a review applicant from invoking the powers of the Supreme Court to review an ADT decision for jurisdictional error, except at the absolute and unreviewable discretion of the Commissioner. This positively impairs and perverts an essential characteristic of the Supreme Court, namely the power to grant relief on account of jurisdictional error. Section 29(3) of the SI Act therefore impairs a defining characteristic of the Supreme Court as it existed when the Constitution came into force. Such a law is unconstitutional: Kirk v Industrial Court (NSW) [2010] HCA 1; 239 CLR 531, at [99], per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ.
267At [214], Sackville AJA formulated 'five propositions of significance' deriving from the High Court's judgments in Kirk v Industrial Court (NSW):-
Chapter III of the Constitution, in particular s 73, requires that there be a body fitting the description of "the Supreme Court of a State" (at [96]);
it is beyond the legislative power of a State so to alter the constitution or character of its Supreme Court that it ceases to meet the constitutional description (at [96]), citing Forge v Australian Securities and Investments Commission [2006] HCA 44; 228 CLR 45, at [63], per Gummow, Hayne and Crennan JJ;
the supervisory jurisdiction of each Supreme Court at Federation entitled it to issue a writ of certiorari to any inferior court and that jurisdiction could not be denied by a statutory privative provision (at [97]);
that supervisory jurisdiction was at Federation and remains the mechanism for determining and enforcing the limits of State executive and judicial power by bodies other than the Supreme Court and was and is "a defining characteristic of these courts" at [98]; and
the limit on the power of a State legislature to curtail the supervisory jurisdiction of a Supreme Court is marked by the distinction between "jurisdictional" and "non-jurisdictional" error, it being open to a State Parliament to deny relief for non-jurisdictional error of law, but not for jurisdictional error (at [100]).
268Having rejected (at [218]) a contention by the Attorney General (intervening on this constitutional question) that the question was 'premature', Sackville AJA ruled at [219] that 'The principles in Kirk do not... lead to the conclusion that State legislation which creates practical difficulties for an applicant seeking judicial review for jurisdictional error will necessarily fall foul of Chapter III of the Constitution.' In support of this proposition, he cited dicta from the judgments of Hayne and Heydon JJ in South Australia v Totani [2010] HCA 39; 242 CLR 1 at [195] and [269]. At [223], he pointed out (a) that nothing in section 29(3) or in any other provision of the SI Act or the ADT Act denied the power of the Supreme Court to grant relief in respect of jurisdictional error by the Tribunal (including its Appeal Panel) and (b) that the ADT Act in fact both conferred a right of appeal from decisions of the Appeal Panel to the Supreme Court and explicitly preserved the Court's power, in the exercise of its original jurisdiction, to review decisions of the Tribunal.
269His Honour's observations in the next two paragraphs ([224] and [225]) provided the basis on which Mr Oliver, in the present appeal, argued that we should not treat the Court of Appeal's decision as binding upon us:-
224 Section 29(3) of the SI Act does not prevent the ADT preparing reasons which set out fully the extent to which it has taken Criminal Information into account in rejecting an application for review of a revocation decision. No such submission was made by AVS. On the contrary, its submissions assumed that there would be unpublished reasons prepared by the ADT which might, upon scrutiny, reveal that the ADT had made a jurisdictional error.
225 AVS did not submit that s 29(3) of the SI Act, or any other legislation, prevents the Supreme Court requiring the ADT to produce to the Court the full reasons for decision. Nor did AVS submit that the ADT was excused from complying with any such requirement.
270His Honour then gave (at [226 - 231]) the following reasons for rejecting the appellants' claim of constitutional invalidity:-
226 In my view, the difficulties facing an applicant who wishes to invoke the supervisory jurisdiction of the Supreme Court to challenge a decision of the ADT based wholly or partly on Criminal Information are not necessarily any greater than those facing an applicant who has been given no reasons for an administrative decision. In each case, the difficulties may prove substantial, but they do not deny the Supreme Court power to grant relief in respect of jurisdictional error and do not substantially impair the exercise of that power. In each case, the Court may draw such inferences as to the decision-maker's reasons as are appropriate on the material before it. If the Supreme Court has the full reasons for the decision, even if they are confidential, it will be in a better position to identify jurisdictional error than if it has no reasons
227 AVS submitted that the requirements of the Uniform Civil Procedure Rules ("UCPR ") make it "impossible" to invoke the Court's jurisdiction to review administrative decisions for jurisdictional error if the only published record of the administrative proceedings is one that conceals the true basis for the decision. Mr Hughes pointed to UCPR, Pt 6, r 12A, which requires a summons under s 69 of the Supreme Court Act 1970 (NSW) to review an administrative decision to:
briefly state the grounds relied on in support of the claim (r 12A(b)); and
annex a copy of the reasons for the decision (if any) (r 12A(c)).
According to Mr Hughes, a summons invoking the jurisdiction of the Supreme Court to review, for example, for error of law, where the applicant did not know what had occurred, would be an abuse of process.
228 This submission overlooks two important points. First, it may be obvious or at least a reasonable inference that the reasons given by the ADT are not the full reasons for a decision unfavourable to the review applicant. In these circumstances, the applicant may well have a reasonable basis for contending that the ADT has fallen into jurisdictional error. If, for example, all the evidence referred to in the reasons supports the applicant's case and no cogent reason is given for rejecting that evidence, there may be an arguable case that the decision is affected by jurisdictional error.
229 Secondly, the submission does not take account of provisions in the Civil Procedure Act 2005 (NSW) ("CP Act") and the UCPR that give the Supreme Court power to dispense with strict compliance with the Rules. The overriding purpose of the CP Act and of the UCPR is "to facilitate the just, quick and cheap resolution of the real issues in proceedings": CP Act, s 56(1). The Court is bound to give effect to this overriding purpose when it interprets any provision of the CP Act or any rule of Court: s 56(2). The Court is given express power to make such directions as it thinks fit, whether or not consistent with rules of Court, for the speedy determination of the real issues: s 61(1). In addition UCPR, Pt 2, r 2.1, empowers the Court to give such directions and to make such orders for the conduct of the proceedings as appear convenient, whether or not inconsistent with rules of Court, for the just, quick and cheap disposal of the proceedings.
230 It cannot be assumed that the Supreme Court will allow procedural requirements to frustrate the exercise of its jurisdiction to review for jurisdictional error. It is incorrect to suggest that r 12A renders it impossible for the Supreme Court to exercise that jurisdiction.
231 For these reasons, the constitutional challenge fails.
271The parties' submissions. In the present proceedings, the Appellants raised the following questions of law in their Notices of Appeal:-
(1) whether the Tribunal erred in law in failing to hold that section 29(3) exceeded the legislative power of the NSW Parliament, either generally or in its application in particular circumstances (Ground 3);
(2) whether by virtue of such error it treated this provision as requiring it to disregard its duty of procedural fairness in a number of specified respects (Ground 3A, as it appeared in different formulations in the two Further Amended Notices of Appeal); and
(3) if the question in Ground 3 was answered to any extent in the affirmative, whether, and if so to what extent, it was permissible and necessary to read down section 29(3) so as to modify or repeal the Tribunal's duties and discretionary powers in determining an application for review of a decision by the Commissioner to revoke a licence under the SI Act (Ground 4).
272Mr Oliver advanced the following line of argument:-
(a) In determining an application for review of a decision by the Commissioner revoking a licence under the SI Act, the Tribunal was required by section 29(3) to determine whether any evidentiary material placed before it was section 15(6) material.
(b) Since the existence and content of any material that it held to fall in this category had to be withheld from the review applicant under section 29(3), the making of such a ruling (unless the Commissioner approved disclosure) would bring about a denial of procedural fairness.
(c) Any unlawful denial of procedural fairness amounted to jurisdictional error (as was held, for instance, in Re Refugee Tribunal; Ex parte Aala [2000] HCA 57; 204 CLR 82 at [59], [170] and [210]).
(d) Since (unless the Commissioner approved disclosure) the Tribunal's published statement of reasons would necessarily omit any reference to the existence or content of any material that had been classified as section 15(6) material, it would conceal any error on the Tribunal's part in making such a classification.
(e) In addition, such a statement might give the impression that it contained all of the Tribunal's reasons, when this was not the case.
(f) Assuming the validity of section 29(3), the Supreme Court, if called on to review the Tribunal's decision for jurisdictional error, would therefore have to base its review on an incomplete, if not also positively false and misleading, statement of the ADT's reasons.
273Relying on a line of authority stemming from the decision in Kirk, Mr Oliver contended that this outcome was impermissible under the Constitution. The reasons for this were that section 29(3) gave rise to an 'impairment' of the Supreme Court's statutory power and inherent jurisdiction to grant relief for jurisdictional error by the Tribunal and 'enlisted' this Court to affirm decisions of the Tribunal in a manner that was 'incompatible with the institutional integrity that is one of the Supreme Court's defining characteristics'.
274Mr Oliver's explanation as to why we should not consider ourselves to be bound on this matter by the decision in Sleiman (Court of Appeal) stemmed from two paragraphs in that decision - [224] and [225] - to which we have already drawn attention. He said that in the present proceedings AVSGC and AVSGA were making three submissions (outlined in those two paragraphs) that according to Sackville AJA the appellants in the Court of Appeal proceedings did not make.
275These three submissions now being made were as follows: (1) in a case in which the Tribunal had taken section 15(6) material into account in rejecting an application for review of a revocation decision and therefore did not publish full reasons, it could not be assumed that the Tribunal would necessarily prepare unpublished reasons which might, upon scrutiny, reveal that it had made a jurisdictional error; (2) in such a case, section 29(3) would prevent the Supreme Court from requiring the Tribunal to produce to the Court the full reasons for its decision; and (3) if the Court sought to impose such a requirement, the Tribunal would be excused from complying with it.
276In seeking to substantiate these three submissions, Mr Oliver argued that the only provisions in the ADT Act imposing a duty on the Tribunal to give reasons for its decisions were sections 89(3) and 117. Because the latter provision was applicable only to decisions of an Appeal Panel, it was not relevant in circumstances where a party sought review for jurisdictional error of a first instance decision. Under the former provision, only a party could require written reasons for such a decision to be provided and any application for this to be done had to be made within 28 days of the party's receipt of notice of the decision. In addition, section 127(3) of the ADT Act, stated that members and former members of the Tribunal could not be required to give evidence to a court in relation to any proceedings in the Tribunal.
277The following consequences ensued, according to Mr Oliver:-
(a) when a first instance decision affirming the revocation of a licence under the SI Act was based to any degree on material that the Tribunal had classified as section 15(6) material, the review applicant could not obtain a full set of reasons under section 89(3) unless the Commissioner consented to disclosure of this material;
(b) after 28 days had elapsed following notification of the decision to the parties, neither of them could apply for written reasons (redacted or otherwise);
(c) if no such application was made, the Tribunal might never prepare reasons (redacted or otherwise) because it would not be subject to any duty to do so;
(d) on account of section 127(3) of the ADT Act, the member(s) of the Tribunal responsible for the decision could not be compelled to give evidence about the reasons for it; and
(e) accordingly, the Supreme Court, having no independent power to require that a full set of reasons be prepared and supplied to it, would be left in the position of having to conduct its review for jurisdictional error on the basis of reasons that might be incomplete, even if they appeared to be complete. This was a distinctly less satisfactory situation, because of the misleading nature of such reasons, than one in which the decision-maker was not bound to furnish reasons and in fact did not furnish any reasons at all.
278The reference, in Mr Oliver's submissions, to the unconstitutionality of 'enlisting' a Court to affirm the decisions of the Tribunal was based on the High Court's use of this terminology in South Australia v Totani [2010] HCA 39; 242 CLR 1. It is sufficient here to quote the following extract from a passage in French CJ's judgment (at [82]) that Mr Oliver cited:-
[The relevant legislation] impairs the decisional independence of the Magistrates Court from the executive in substance and in appearance in areas going to personal liberty and the liability to criminal sanctions which lie at the heart of the judicial function. I agree with the conclusion of Gummow J, Crennan and Bell JJ and Kiefel J that s 14(1) authorises the executive to enlist the Magistrates Court to implement decisions of the executive in a manner incompatible with that Court's institutional integrity. I agree also with the conclusion reached by Hayne J about the operation of s 14(1) in permitting the executive to enlist the Magistrates Court for the purpose of applying special restraints to particular individuals identified by the executive as meriting application for a control order and the repugnancy of that function to the institutional integrity of the Court.
279In response to the proposition that a failure by the Tribunal to prepare full reasons for a decision of this nature and to supply such reasons to the Commissioner was highly unlikely, Mr Oliver maintained that the mere possibility that the Tribunal might not prepare or supply reasons was sufficient to render section 29(3) unconstitutional. He relied on dicta of the High Court in Wainohu v State of New South Wales [2011] HCA 24; 243 CLR 181. Here the High Court, by majority, struck down NSW legislation requiring declarations as to whether an organisation was a 'declared organisation' (on grounds of engaging in criminal activities) to be made by an 'eligible judge' of the Supreme Court, without there being any requirement for reasons to be given. The majority held that on account of the absence of this requirement, the legislation purported to confer on the judges of a State court administrative functions that substantially impaired its essential and defining characteristics as a court.
280The dicta on which Mr Oliver relied were as follows:-
The fact that the eligible judge might choose to provide reasons for his or her decision does not answer the constitutional question raised by the Act. (French CJ and Kiefel J, at [69])
The significance to be attached to the Act's denial of a duty to give reasons for deciding whether to make or revoke a declaration is not reduced by attempting some prediction of whether, despite the language of s 13(2), judges would nonetheless be likely to give reasons. Because there is no duty to do so, the possibility that a declaration would be made or revoked and no reasons given for the decision is not to be dismissed from consideration as some remote or fanciful possibility. (Gummow, Hayne, Crennan and Bell JJ, at [103])
281In responding, Mr Lynch argued first that we should not entertain this claim of constitutional invalidity, at least without first granting leave, because it had not been raised before the Tribunal or determined by it in either of the decisions under appeal.
282In reply, Mr Oliver pointed out that at the time of the Tribunal hearing, the Tribunal appeared to lack jurisdiction to rule upon any question as to the validity, under the Commonwealth Constitution, of a NSW statutory provision. This was by virtue of the Court of Appeal's decision in Attorney General (NSW) v Radio 2UE Sydney Pty Ltd [2006] NSWCA 349. But in a more recent decision, Sunol v Collier [2012] NSWCA 14, the Court adopted a different view. At [20], Basten JA, delivering the judgment of the Court, said:-
20 Contrary to the suggestion in Radio 2UE at [76], a decision of the Tribunal in respect of a particular matter may depend upon a view about the constitutional validity of State legislation, but that opinion is not registered as a judgment, nor is it enforceable as such against any person. If the opinion led the Tribunal to decline to make an order, the unsuccessful party might challenge that result by seeking in the Supreme Court an order in the nature of mandamus, or a declaration as to the constitutional validity of the law sought to be enforced. If the Tribunal makes an order, on the basis that the law was indeed valid, the other party, being unsuccessful, could challenge the order by seeking to have it set aside on the ground that the law which supported it was constitutionally invalid. In each case, the Tribunal acted on the basis of an opinion as to the validity of the law in question, but its decision was not in any legal sense determined by that opinion. It did not have jurisdiction to determine the question: the validity of the order will depend upon the conclusion of the Supreme Court (and if challenged, the High Court) as to the correct answer to the constitutional question.
283Mr Oliver relied also on a dictum of Basten JA in another decision of the Court of Appeal, B & L Linings Pty Ltd v Chief Commissioner of State Revenue [2008] NSWCA 187; 74 NSWLR 48, at [125]. With reference to section 119 of the ADT Act, which provided for a right of appeal on a question of law from an Appeal Panel of the Tribunal to the Supreme Court, his Honour said:-
125 The third step required by s 119 is to identify any "question of law" upon which the appeal is brought. It is not necessary that the answer to the question of law constitutes the ultimate decision of the Tribunal, so long as it is a question material to the decision: see Health Care Complaints Commission v Karalasingham [2007] NSWCA 267 at [14]-[16].
284A second preliminary submission by Mr Lynch was that the Court of Appeal's ruling on constitutionality in Sleiman (Court of Appeal) was res judicata between the parties to these appeals and created an issue estoppel between them.
285In reply, Mr Oliver pointed out that two of the present appellants, AVSGA and Tony, were not parties to the appeal proceedings in Sleiman (Court of Appeal) and therefore could not be affected by the doctrine of res judicata. He argued also that because the 'concessions' of the appellants in those proceedings that Sackville AJA outlined at [225] (see above at [269]) were not made in the present proceedings, there was also no issue estoppel against AVSGC.
286Mr Lynch referred also to the fact that AVSGC and Peter had applied unsuccessfully for special leave to appeal to the High Court against the Court of Appeal's ruling on the constitutionality of section 29(3) (see AVS Group of Companies Pty Limited & Anor v Commissioner of Police & Anor [2011] HCATrans 239). Mr Oliver's response was that a refusal of special leave by the High Court did not constitute a determination that the point sought to be agitated was without merit.
287A further submission of Mr Lynch was that because an applicant for judicial review of a decision of the Tribunal will inevitably seek written reasons under section 89(3) of the ADT Act, such reasons will, from a practical point of view, be prepared in each case and made available to the applicant.
288Mr Oliver pointed out, however, in his submissions in reply that by virtue of the express reference to reasons in section 29(3)(a), any such reasons could not include section 15(6) material in the absence of approval by the Commissioner.
289Mr Lynch relied also on the existence of two subordinate provisions relating to judicial review proceedings in the Supreme Court of a decision by a 'public authority' or 'public body': namely, paragraph 23 of Practice Notice SC CL 3 and rule 59.9 of the Uniform Civil Procedure Rules ('the UCPR'). These respectively provided for the Court to order, or a notice to be served, on the authority or body requiring it to furnish to the plaintiff a statement of its reasons for the decision.
290In this context, Mr Lynch cited a Supreme Court case, Whalley v Commissioner of Police [2003] NSWSC 273. The Court there held that because a then existing practice note containing a provision comparable to paragraph 23 of SC CL 3 was based on sections of the Supreme Court Act 1970 such as section 76A (which empowered the Court to 'give directions... for the speedy determination of the real questions between the parties'), its validity was not open to challenge.
291Mr Oliver's arguments in reply were as follows: (a) since once more the party receiving the reasons under paragraph 23 or rule 59.9 would be the applicant for review, no section 15(6) material could be included in them; (b) it could not be assumed that the Tribunal was a 'public authority' or 'public body' within the meaning of these provisions; and (c) the decision in Whalley did not go so far, understandably, as to rule that a practice note could override a specific statutory prohibition such as section 29(3) imposed.
292Discussion and conclusions. In accordance with the principles stated by Basten JA in Sunol v Collier [2012] NSWCA 14, the ADT did not, and the Civil and Administrative Tribunal does not, have jurisdiction to determine the validity of section 29(3) of the SI Act under the Commonwealth Constitution. But our decision in these appeal proceedings should, as we understand his Honour's exposition, take account of our opinion on this question. The correctness of this decision may (to quote from this exposition) 'depend upon the conclusion of the Supreme Court (and if challenged, the High Court) as to the correct answer to the constitutional question'.
293We agree with Mr Oliver, for the reasons advanced by him, that (a) we should deal with this question (without any necessity of first granting leave) even though it was not raised before the Tribunal and (b) the principles of res judicata and issue estoppel do not preclude its being argued before us by AVSGA and by Tony. We do not need to decide whether AVSGC and Peter are barred by these principles.
294We have concluded, however, that insufficient grounds have been advanced to warrant acting on an opinion contrary to that expressed by the Court of Appeal.
295Our principal reason for so concluding is that, as we interpret Sackville AJA's judgment, he did not treat the appellants' 'concessions' described by him at [224] and [225] as essential to his ruling. At [229 - 230], his Honour rejected their contention (summarised at [227]) that by virtue of r 6.12A (which has since been repealed, with its contents absorbed into r 59) of the UCPR, the Supreme Court could obtain only an incomplete version of the Tribunal's reasons in any case in which it had taken account of section 15(6) material and the Commissioner had not approved disclosure of this material. The gist of his Honour's response to this contention was that r 6.12A did not provide the only means whereby the Court might obtain access to the reasons for decision. This was because, under both the Civil Procedure Act 2005 ('the CP Act') and the UCPR the Court had express powers to make such orders and give such directions as it thought fit 'to facilitate the just [our emphasis], quick and cheap resolution of the real issues in the proceedings', whether or not these orders and directions were consistent with the Rules.
296On account of these considerations, Sackville AJA made the following emphatic pronouncement at [230]:-
It cannot be assumed that the Supreme Court will allow procedural requirements to frustrate the exercise of its jurisdiction to review for jurisdictional error.
297A further important aspect of Sackville AJA's reasoning on this topic is that in the last sentence of paragraph [226] he envisaged receipt by the Supreme Court of 'full reasons... even if they are confidential'.
298One immediate implication of these statements by his Honour is that r 59.9, to which Mr Lynch adverted, cannot be regarded as setting out the full scope of the Court's powers to require that reasons be prepared and furnished by a tribunal or other body whose decision is the subject of review. That rule, as Mr Oliver pointed out, envisages provision of reasons to the applicant for review, not to the Court. It may also be - though we are doubtful about this - that he was correct in submitting that the Tribunal is not a 'public authority' within the scope of the Rule. But if in the circumstances the order that will best give effect to the 'just' exercise by the Court of its jurisdiction to review is an order or direction to the Tribunal both to prepare reasons (if it has not already done so) and provide them to the Court (though not the applicant), such an order is clearly within its broad powers. The legitimacy of such an order is all the more manifest because by virtue of r 59.4 of the UCPR the Tribunal will be a party to the review proceedings.
299Furthermore, the Court may, according to Sackville AJA, receive those reasons under conditions of confidentiality. This observation by him implies clearly that in his opinion the provision of full reasons to the Court by the Tribunal would not offend section 29(3), even if the Commissioner's approval to the disclosure of any section 15(6) material within them was not forthcoming.
300These features of Sackville AJA's reasoning are sufficient, in our opinion, to justify our conclusion that there are no proper grounds for treating his decision on this matter as distinguishable in the present proceedings, even though certain 'concessions' made by the appellants in the Court of Appeal were not made in these proceedings.
301In the remainder of this discussion, we will refer to three cases that were not cited by the parties in the present context or at all, but which operate, in our opinion, to confirm this conclusion.
302The first of these, QR v Commissioner of Police, New South Wales Police (GD) [2005] NSWADTAP 59, is a decision by an Appeal Panel of the ADT. Mr Oliver relied on this decision, but not in the course of making submissions on constitutionality. It involved an application for review of a decision by the Commissioner refusing to grant a licence under the SI Act to the applicant, 'QR'. The Commissioner, relying on sections 15(1)(a) and 15(3), based his refusal on his opinion that the appellant was not a fit and proper person to hold a licence and that a grant of the licence would be contrary to the public interest. At the time, this Act contained section 15(6) and (7), but not section 29(3).
303The Tribunal, relying on section 75(2) of the ADT Act, conducted two hearings in QR's absence. QR was not aware that the second of these hearings took place until he read the Tribunal's decision. At those two hearings, the Tribunal received evidence from the Commissioner which it held to be section 15(6) material and ruled that this evidence should not be disclosed.
304The Tribunal explained the basis of this ruling as follows (QR v Commissioner of Police, New South Wales Police [2005] NSWADT 122 at [10]):-
10 Section 15(7) of the Act states that the Commissioner is not required to give any reasons for not granting a licence if the giving of those reasons would disclose the existence or content of any criminal intelligence report or other criminal information as referred to in subsection (6) of the Act. After considering the evidence presented by each party, I consider that this provision is relevant to QR's application. As the Tribunal stands in the shoes of the Commissioner, it follows that the Tribunal similarly has no obligation to provide reasons in those circumstances. It is my view that in the circumstances of this matter no such reasons should be given.
305In its decision affirming the Commissioner's refusal to grant a licence to QR, the Tribunal outlined certain grounds of refusal that had been ventilated in the open hearing and referred to the existence of the other grounds that it had dealt with in the closed hearings.
306One of the grounds of QR's appeal was the Tribunal's omission to give full reasons. In its decision, the Appeal Panel described this omission as follows (at [11]):-
11 As can be seen, the Tribunal relied on material withheld from the appellant and evidence taken in his absence in reaching its decision but has provided no reasons for doing so or explaining the weight that was given to it, either by means of published, generally available reasons or by means of confidential reasons, made available only to the Commissioner and lodged confidentially on the Tribunal file.
307The Appeal Panel's discussion of this ground of appeal included the following passages (at [16], [23 - 24], [29 - 30]):-
16 Closed Hearings. We agree that the Tribunal should, in reviewing the Commissioner's exercise of discretion, adopt an approach which maintains the confidentiality of any information upon which the Commissioner has relied if that is the wish of the Commissioner... It is the case that the provision also dispenses the Commissioner from the requirement to give reasons. While, generally speaking, the Tribunal 'stands in the shoes' of the Commissioner when engaged in the task of merits review, it does not follow that the Tribunal is also dispensed from the obligation to give reasons.
23 Adequacy of Reasons. It will be necessary, as the above exploration of the authorities reflects, for courts and tribunals sometimes to receive evidence on a restricted or confidential basis. The fact that a hearing is held in camera does not of itself justify a decision, or the reasons for it, being withheld from disclosure: David Syme Co Limited v General Motors-Holden's Limited [1984] 2 NSW LR 294 at 299-300.
24 Often it will be possible for the Tribunal to expose the entirety of its reasoning process to all parties even though some material has been received confidentially, that is with one party excluded from the process. On other occasions, it may not be possible to deal with the material received in closed session without exposing that material to some extent.
29 In David Syme at 301 the Court of Appeal also noted that if it is not possible for a Tribunal to give reasons without breaching the confidentiality which it sought to protect through receiving evidence in closed session, it should at least identify the confidential material "by some neutral description and set out in a document directed to be sealed up with an appropriate endorsement and placed with the papers". Once a decision is made to exclude a party from a hearing and admit confidential material, the obligation to provide reasons heightens and the probative force of that evidence must be particularly cogent if it is to be acted on: see Pochi [Pochi v Minister for Immigration and Ethnic Affairs (1979) 26 ALR 247] at 274.
30 Conclusions. It is clear, we consider, that the Tribunal erred in law in the following respects:...
(b) Its only reasons were the published, public reasons. They do not explain why the material taken into account justified the Commissioner's decision, making it the correct and preferable one. The Tribunal clearly explains its reasons for not adopting the course of including its reasons in the public decision. Nonetheless its duty to expose its reasoning process remained. Where it is appropriate to preserve the confidentiality of material before the Tribunal, this should be done through a confidential set of reasons, committed to the file of the Tribunal and made available to the administrator, in this case the Commissioner. One of the reasons for creating an external review tribunal of the kind this Tribunal represents is to assist in fostering a culture of good administrative decision-making. The administrator is always assisted by having reasons from the Tribunal which expose its way of evaluating material which will often be the same material considered by the administrator. This is consistent with the objects of the Tribunal Act as set out in section 3(f) and (g).
308We regard these aspects of the Appeal Panel's decision as contradicting Mr Oliver's proposition that the only duty imposed on the Tribunal to provide reasons for a decision at first instance under the SI Act in which it has taken account of section 15(6) material is the duty expressly imposed by section 89(3) of the ADT Act when a party has requested reasons within the specified period of 28 days. The Appeal Panel in QR treated as an error of law the Tribunal's failure to prepare confidential reasons, in addition to those that it made available to both the parties and the public, and to place them in a file to which the Commissioner would have access. It described the duty to prepare confidential reasons as a 'heightened' duty.
309Support for this decision is provided, at a more general level, by the Court of Appeal case of Campbelltown City Council v Vegan [2006] NSWCA 284; 67 NSWLR 372. We refer particularly to a lengthy discussion by Basten JA, at [102 - 120], of the circumstances in which an administrative tribunal, or other administrative body, might be subject to an implied duty to give reasons, despite the existence of a common law principle (confirmed by the High Court in Public Service Board v Osmond (1986) 159 CLR 656) that these bodies were under no such duty.
310The facts of the case were outlined in the headnote as follows:-
Mrs Vegan, employed by the Appellant, Campbelltown City Council, was injured in the course of her employment as a child-care worker. She was assessed by an approved medical specialist, appointed under the Workplace Injury Management and Workers Compensation Act 1998 (NSW) and provided with a medical assessment certificate. An Appeal Panel revoked the certificate and issued a new certificate which assessed her percentage of permanent loss at a higher rate. The Council brought proceedings for judicial review of the Appeal Panel's decision which Wood CJ at CL dismissed. The Council appealed against this decision.
311An issue arising in the appeal was whether the Appeal Panel was under a duty to give reasons for its decision. The Workplace Injury Act imposed an express duty of this nature on the medical specialist who provided the initial assessment, but not on the Appeal Panel. In allowing the appeal, the Court of Appeal held that the Panel was under an implied duty to give reasons and that its failure to do so constituted an error on the face of the record, providing grounds for its decision to be set aside on judicial review.
312The following extracts from the judgment of Basten JA (with whom McColl JA agreed) are relevant to the present context:-
104 The differential treatment of the exercise of judicial, as opposed to administrative, power (like the constrained bases for judicial review of administrative action) reflects the separation of powers, even within the State constitutional system. If the efficacy of subsequent legal processes were the test of the need for reasons, the distinction between a right of appeal and a right of judicial review might not be decisive. Indeed, at least if the appeal is by way of rehearing, a different logic might apply. Thus in Osmond v Public Service Board of New South Wales [1984] 3 NSWLR 447, in this Court, Priestley JA, who accepted an obligation to provide reasons, distinguished the earlier decision of the Court in Taylor v Public Service Board [1975] 2 NSWLR 278; (1976) 137 CLR 208 on the basis that Mr Taylor had a right of appeal by rehearing, whereas Mr Osmond did not: at 485. His Honour stated:
"It is the fact that this is the only (and limited) way of testing the administrative decision made against him that is one of the necessary factors in my coming to the conclusion that natural justice requires the furnishing of reasons to him. Where a right of appeal exists as in Taylor's case it may well be that natural justice, as the law has so far developed, does not require reasons to be given as the officer concerned is not debarred from a further hearing of his case in which the absence of reasons will be immaterial."
105 Nevertheless, the current position, often restated, is that the justification for an obligation to give reasons is derived from the right of appeal granted in relation to an exercise of judicial power: see Pettitt v Dunkley, supra at [22]. Reliance is sometimes also placed on the principle "that justice must not only be done but it must be seen to be done": Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 278E (McHugh JA), and also Housing Commission of NSW v Tatmar Pastoral Co Pty Ltd [1983] 3 NSWLR 378 at 386C (Mahoney JA). Why a breach of this obligation constitutes an appellable error, rather than (in appropriate cases) permitting an order in the nature of mandamus has not been fully explored, but it may be analogous to a breach of procedural fairness in an administrative law context. In any event, this principle gives only limited assistance with respect to the distinction between judicial and administrative decision-making. There are well-known policy reasons in favour of reasoned administrative decisions: see, eg, Osmond v Public Service Board [1984] 3 NSWLR 447 at 463 (Kirby P); and see Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Palme (2003) 216 CLR 212 at [105] (Kirby J).
106 It is clear that the High Court in Osmond treated the general law principle as covering not merely administrative officers, but also administrative tribunals: 159 CLR, 662-663. Although the authorities upon which Gibbs CJ relied in Osmond may no longer be as definitive as they once were (see, eg, R v Secretary of State for the Home Department; Ex parte Doody [1994] 1 AC 531), Osmond remains the law in this country. The difficulties which arise when pursuing judicial review in the absence of reasons, articulated by Dixon J in Avon Downs Pty Ltd v Federal Commissioner of Taxation (1949) 78 CLR 353 at 360, cannot, by themselves, provide a justification for implying an obligation to give reasons. The classification of the functions of the tribunal as administrative or judicial therefore remains an important element in the exercise.
107 The Workers Compensation Commission was held not to be a "court of a State" for the purposes of the conferral of judicial power pursuant to s 39(2) of the Judiciary Act 1903 (Cth) in Orellana-Fuentes v Standard Knitting Mills Pty Ltd (2003) 57 NSWLR 282, [111]-[114] (Ipp JA, Spigelman CJ and Handley JA agreeing).
108 To similar effect, in Trust Company of Australia Ltd v Skiwing Pty Ltd [2006] NSWCA 185, this Court held that the Administrative Decisions Tribunal was not a "court of the State" for the purposes of a conferral of Commonwealth judicial power pursuant to s 86(2) of the Trade Practices Act 1974 (Cth). However, the Chief Justice noted that a different categorisation may be appropriate in different contexts. In Skiwing the context required attention to the scope of Commonwealth judicial power under Chapter III of the Constitution: Spigelman CJ at [17]. For the purposes of State law, a blurring of the edges and the possibility of different categorizations for different purposes may be accepted. Thus, a number of State tribunals have been held to be "courts" for the purposes of the Suitors' Fund Act 1951 (NSW): see, eg, Australian Postal Commission v Dao (No. 2) (1986) 6 NSWLR 497. Ultimately the question must be approached as one of statutory construction, always acknowledging that the principle of Osmond has not been abandoned or diminished.
109 There are two reasons for thinking that Osmond does not apply in the present circumstances. First, Osmond concerned administrative decision-making and not to the exercise of judicial power. As will be noted further below, the assessment of permanent impairment undertaken by the Appeal Panel involves the application of a statutory test, by which legal rights as between an employee and employer are determined. Accordingly, it is an exercise in the nature of a judicial function, whatever the precise name or status of the Appeal Panel itself: see e.g., in a constitutional context, the indicia of judicial power discussed in Brandy v Human Rights and Equal Opportunity Commission (1995) 183 CLR 245 at 256-259 (Mason CJ, Brennan and Toohey JJ) and 267-269 (Deane, Dawson, Gaudron and McHugh JJ); and see Luton v Lessels (2002) 210 CLR 333 at [21]-[24] (Gleeson CJ, McHugh J agreeing), [63]-[76] (Gaudron and Hayne JJ), [123]-[131] (Kirby J) and [189] (Callinan J); and in this Court, Trust Company of Australia Ltd v Skiwing Pty Ltd [2006] NSWCA 185 at [18]-[29] (Spigelman CJ, Hodgson and Bryson JJA agreeing).
110 Secondly, the principle in Osmond, being concerned with the general law, is always subject to statutory modification. The areas in which administrative decision-makers are required to give reasons for the exercise of statutory power are growing steadily, sometimes by way of specific legislation and sometimes by way of more general provision...
111 Between 1984 and 2004 disputes under the Workers Compensation Act could be resolved in the Compensation Court. The obligation of judges in that Court to give reasons was clearly identified as an attribute of the judicial process in which they were engaged....
117 In the absence of challenge to the principles established in Soulemezis, it should be accepted that the Appeal Panel was subject to an implied statutory obligation to give reasons. That conclusion follows from the foregoing analysis of the statutory context and from an understanding of the nature of the functions imposed on the Appeal Panel. Those functions might not constitute an exercise of judicial power for the purposes of the federal Constitution, but they are functions properly characterised as judicial in nature, for the purposes of determining their incidents.
313At [20 - 31], Handley JA reached the same conclusion on this question, referring amongst other things to the fact that the Appeal Panel had a 'power and duty' to correct error and that the exercise, by the court or the Workers Compensation Commission, of a statutory power to order a further medical assessment would be 'hindered' if the Appeal Panel gave no reasons.
314We attach particular significance to Basten JA's observations (at [108] and [109]) regarding the characterisation of the ADT, in Trust Company of Australia Ltd v Skiwing Pty Ltd [2006] NSWCA 185, as exercising, in some contexts at least, a power 'in the nature of a judicial function'. We note also that this Honour regarded it as relevant that the functions performed by the Appeal Panel under the Workplace Injury Act were previously undertaken by the Compensation Court, whose judges were obliged to give reasons. In AVSGC (Court of Appeal) at [144], Campbell JA pointed out that in the period before the ADT acquired jurisdiction to review decisions by the Commissioner under the SI Act, the mode of challenge of those decisions was an appeal to a Magistrates Court.
315The two authorities that we have just examined lend support to our opinion that an essential component of Mr Oliver's argument on this topic - namely, that the Tribunal's only duty to prepare and furnish reasons for a decision at first instance under the SI Act is the duty stated in section 89(3) of the ADT Act - is incorrect. The existence of an additional implied duty, in the particular circumstances of review proceedings under the SI Act during which section 15(6) material has been admitted in a closed hearing, appears clear to us.
316The third and final authority that we shall consider bears on a different element of Mr Oliver's argument. This is the proposition that any reasons furnished by the Tribunal to the Supreme Court for the purposes of judicial review of a decision of the Tribunal under the SI Act would be incomplete, in the absence of approval by the Commissioner, to the extent that any aspect of them fell within the prohibition in section 29(3).
317As we said above, we interpret Sackville AJA's judgment as rejecting this proposition. But in case there is some doubt as to this, we are of the opinion that by virtue of the Supreme Court's wide powers under the CP Act and the UCPR to make orders and give directions to achieve a just outcome when reviewing Tribunal decisions, it could order the Commissioner to approve disclosure to it - not to the review applicant or to any other person - of those parts of the Tribunal's reasons that fell within the scope of the prohibition in section 29(3).
318This opinion is based on a Supreme Court case, Wray v Wray [2007] NSWSC 164. The judgment of Gzell J in this case commenced as follows:-
1 I have before me an application by the plaintiff in substantive proceedings involving a claim under the Family Provision Act 1982 for an order that the defendant executrix sign an authority addressed to Centrelink and the Social Security Appeals Tribunal authorising them to produce files to the solicitors for the plaintiff.
319His Honour then quoted section 207 of the Social Security (Administration) Act 1999 (Cth), which imposed the following broad prohibition:-
An officer must not, except for the purposes of the social security law or the Farm Household Support Act 1992, be required:
(a) to produce any document in his or her possession; or
(b) to disclose any matter or thing of which he or she had notice;
because of the performance or exercise of his or her duties, functions or powers under the social security law or the Farm Household Support Act 1992, to:
(c) a court; or
(d) a tribunal; or
(e) an authority; or
(f) a person;
having power to require the production of documents or the answering of questions.
320Having observed (at [5]) that an approach by a third party to Centrelink was unlikely to elicit a response, his Honour continued:-
6 The plaintiff referred to two decisions in which this problem has been considered. In Merkuloff v Yalisheff [2003] NSWSC 1183, Young CJ in Eq, in an application by a defendant for Centrelink information, adverted to the provision to which I have referred, observed that there must be some doubt as to whether the power of the Commonwealth was sufficiently wide to prohibit the matters in that section, but formed the view that the defendant could obtain the information by an order in personam against the plaintiff that the plaintiff's proceedings be stayed until the plaintiff forwarded to the defendant the required information.
7 The other decision to which reference was made was Attard v Hore [2002] QSC 437 in which Dutney J, again on an application by a defendant, made an order that the plaintiff execute an authority addressed to Centrelink provided to her by the solicitors for the defendants.
321At [13 - 15], Gzell J gave the following reasons for concluding that he had power to order that the defendant sign the authority that the plaintiff sought:-
13 The next objection is that the above authorities were cases in which defendants sought access to plaintiffs' files and in each case the judge had said that when one comes to court one is under an obligation to assist the court in coming to a fair conclusion.
14 While that is a point of distinction from the instant circumstances, it does not seem to me that the principle underlying the in personam orders in those cases should be different in the case of a plaintiff seeking information from Centrelink with respect to a defendant. A defendant is also obliged to act with candour and assist the Court. The Civil Procedure Act 2005, s 56(3) places a duty on all parties, plaintiffs and defendants, to assist the court to further the overriding purpose of facilitating the just, quick and cheap resolution of the real issues in proceedings.
15 In the circumstances it appears to me that a foundation has been made for an order that the defendant sign an authority addressed to Centrelink and the Social Security Appeals Tribunal.
322As stated in this extract, his Honour based his decision on section 56(3) of the CP Act. Section 56 was one of the provisions expressly relied on by Sackville AJA in Sleiman (Court of Appeal). If the broad powers conferred on the Supreme Court by this section were sufficient to support the order made by Gzell J to the defendant to authorise Centrelink to release information to the plaintiff, they would surely be sufficient to support an order, if this were necessary, requiring the Commissioner to approve release by the Tribunal to the Supreme Court of reasons that would otherwise be prohibited from disclosure by section 29(3) of the SI Act. It may be relevant, though not (we think) necessary, to add that the Commissioner is bound to comply with the standards laid down for model litigants.
323For all of these reasons, Appeal Grounds 3 has not been made out and Grounds 3A and 4 do not arise.