DPP v Debono [2012] VSC 350

Supreme Court of Victoria|2012-08-21|Before: KYROU J

CRIMINAL LAW - Charge of refusing to take an oath or make an affirmation contrary to s 36(3) of the Major Crime (Investigative Powers) Act 2004 - Collateral challenge to the validity of the Act and a coercive powers order and a custody order made under the Act, pursuant to a pre-trial application under s 199(1)(c) of the Criminal Procedure Act 2009 to quash the charge.

ADMINISTRATIVE LAW - Collateral challenge - Validity of a coercive powers order made under the Major Crime (Investigative Powers) Act 2004 - Relevance of fact that order is made by a judge of the Supreme Court - Whether judicial review by another judge of the Supreme Court permitted - Whether collateral challenge permitted in any court - Permissible grounds for collateral challenge.

ADMINISTRATIVE LAW - Collateral challenge - Validity of a custody order made pursuant to a coercive powers order.

PRACTICE AND PROCEDURE - Evidence - Subpoena - Legitimate forensic purpose - Applicable principles.

1 The Accused, Christian Bernard Debono, has been charged on indictment with the offence of refusing to take an oath or make an affirmation, contrary to s 36(3) of the Major Crime (Investigative Powers) Act 2004 (Vic) ('Act').[1] By way of a pre-trial application under s 199(1)(c) of the Criminal Procedure Act 2009 (Vic) ('CP Act (Vic)'), he has sought an order quashing the charge.

2 The Accused's application relies on the following grounds:

(a) the Act is invalid because it infringes the Kable[2] principle, by conferring functions on the Supreme Court which substantially impair its institutional integrity and which are therefore incompatible with its role as a repository of federal jurisdiction under Ch III of the Commonwealth Constitution;

(b) the coercive powers order dated 13 August 2008, as corrected and extended, that was made pursuant to the Act ('CPO') is invalid because it does not, on its face, demonstrate that the five elements of the definition of 'organised crime offence' in s 3 of the Act were satisfied; and

(c) the custody order made by the Chief Examiner on 13 May 2009 pursuant to the CPO, requiring that the Accused be brought before the Chief Examiner to give evidence ('Custody Order') is invalid, first, because the CPO is invalid and, secondly, because it was not reasonable to make the Custody Order.

3 In assessing the above grounds, it will be necessary to consider the following issues:

(a) whether a judge of the Supreme Court is exercising judicial or administrative power in making a coercive powers order;

(b) whether the Act substantially impairs the institutional integrity of the Supreme Court by undermining the defining characteristics of independence and impartiality, the conduct of proceedings in open court, procedural fairness and the provision of reasons;

(c) whether the Supreme Court can review the validity of the CPO and/or the Custody Order either pursuant to a judicial review application or by way of collateral challenge; and

(d) whether the Accused has a legitimate forensic purpose in seeking production of documents relevant to the validity of the CPO or the Custody Order.

4 For the reasons that follow, I have concluded that the Supreme Court's functions under the Act are administrative, that the Act is not invalid on the basis of the Kable principle and that the Court has power to review the validity of the CPO and the Custody Order. Subject to hearing further submissions, I have formed a preliminary view that the Accused has a legitimate forensic purpose in seeking production of particular documents that are relevant to the validity of the CPO.

5 For convenience, all definitions and abbreviations that are used in this judgment are set out in full in the appendix.

6 Pursuant to an application under s 5(1) of the Act, on 13 August 2008, Cummins J made the CPO. The CPO was signed by his Honour and set out the applicant's name and rank in the police force of Victoria, the name and rank of the officer who approved the application, the name of each alleged offender and his Honour's name. The CPO recited the following:

THE COURT IS SATISFIED -

(a) that there are reasonable grounds for the suspicion founding the application for the order; and

(b) that it is in the public interest to make the order, having regard to -

(i) the nature and gravity of the alleged organised crime offence in respect of which the order is sought; and

(ii) the impact of the use of coercive powers on the rights of members of the community.

THE ORGANISED CRIME OFFENCE in respect of which this order is made is: Murder

THE COURT ORDERS THAT, in accordance with the Major Crime (Investigative Powers) Act 2004, the use of the powers provided by the Act is authorised for the purposes of investigating the organised crime offence in respect of which this order is made.

THE PERIOD for which this order remains in force is: 6 months.

THE USE OF COERCIVE POWERS under this order is subject to the following condition:

This order is made on the condition that an application for a witness summons with respect to [redacted] may only be brought before the Supreme Court and the Court will exercise supervision/discretion over the granting of the witness summons.

8 On 9 October 2008, Cummins J 'corrected' the CPO by adding the handwritten words 'of Wayne Keith Boyd on or about 9 November 2001' after the word 'Murder' in the description of the organised crime offence.[3] The CPO was extended several times before it expired on 3 February 2012.

9 Pursuant to the CPO, the Chief Examiner made the Custody Order which required that the Accused be brought before the Chief Examiner to give evidence on 21 May 2009.[4] The Accused declined to take an oath or make an affirmation and, on 17 July 2009, he was charged with an offence under s 36(3) of the Act.

10 On 2 September 2011, the Accused made an application under s 12 of the Act for an order revoking the CPO. On 9 February 2012, he applied under O 56 of the Supreme Court (General Civil Procedure) Rules 2005 (Vic) ('Rules') for an order quashing the CPO. On 8 May 2012, both applications were dismissed on jurisdictional grounds without adjudication on their merits.[5] The present application to quash the charge in the indictment was foreshadowed during the hearing of the s 12 and the O 56 applications.[6]

11 The key provisions of the Act were summarised by Kaye J in CR v Attorney-General (Vic).[7] As his Honour's summary accurately and succinctly sets out the legislative scheme, I have extensively relied on it in preparing the overview of the Act at [12] to [[[8]](#_Ref3 > The Supreme Court may make a coercive powers order if satisfied -

(a) that there are reasonable grounds for the suspicion founding the application for the order; and

(b) that it is in the public interest to make the order, having regard to -

(i) the nature and gravity of the alleged organised crime offence in respect of which the order is sought; and

(ii) the impact of the use of coercive powers on the rights of members of the community.

(1) A coercive powers order must state that the Supreme Court is satisfied of the matters referred to in section 8(a) and (b) having regard to the matters referred to in section 8(b)(i) and (ii).

(2) A coercive powers order must also specify -

(a) the organised crime offence in respect of which the order is made; and

(b) the name of each alleged offender or, if the name is unknown, state that the offender is unknown; and

(c) the name and rank of the applicant; and

(d) the name and rank of the person who approved the application; and

(e) the date on which the order is made; and

(f) the period for which the order remains in force, being a period not exceeding 12 months; and

(g) any conditions on the use of coercive powers under the order.

(3) A coercive powers order must be signed by the judge of the Supreme Court who makes it and include his or her name.

(4) If the Supreme Court makes a coercive powers order, the applicant must cause a copy of the order to be given to the Chief Examiner as soon as practicable after the making of the order.

19 It is noteworthy that s 8 of the Act confers jurisdiction on the Supreme Court rather than on particular judges as personae designatae.

20 Section 10 of the Act provides that a member of the police force on whose application a coercive powers order has been made, or another person on his or her behalf, may apply to the Supreme Court for an extension of the order for a period not exceeding 12 months, or for a variation of any of the other terms of the order. Section 10(3) states that s 5 applies to an application for an extension or variation as if it were an application for an order. Under s 10(4) and (5), a coercive powers order may be extended or varied more than once before it expires.

21 Under s 11(1) and (2) of the Act, if the Chief Commissioner of Police or his or her delegate is satisfied that the powers under a coercive powers order are no long required for the purpose for which the order was made, that person must immediately file a notice to that effect with the Supreme Court. Section 11(3) provides that the coercive powers order is revoked on the filing of such a notice.

22 Section 12(1) of the Act provides that the Supreme Court may revoke a coercive powers order at any time before the expiry of the order. Section 12(2) provides that on revoking a coercive powers order, the Court must give notice of the revocation to the Chief Examiner and to the Chief Commissioner of Police. The Court (under s 12(3)) and the Chief Examiner (under s 13) must revoke any outstanding witness summonses issued in reliance on the revoked coercive powers order and must give written notice of the revocation to the persons to whom the summonses were directed. The Chief Examiner must also release those persons from outstanding obligations under the revoked summonses.

23 The power to issue witness summonses to appear before the Chief Examiner is contained in ss 14 and 15 of the Act. Under s 14, if a coercive powers order is in force, the Supreme Court, upon application by a member of the police force, may issue: a summons to attend an examination before the Chief Examiner to give evidence; a summons to attend at a specific time and place to produce specified documents or other things to the Chief Examiner; or a summons to attend an examination before the Chief Examiner to give evidence and produce specified documents or other things. Section 14(4) prescribes the contents of an application for a summons.

24 Section 14(6) of the Act provides that on an application before it, the Supreme Court may issue a summons if the Court is satisfied it is reasonable in the circumstances to do so, after considering the evidentiary or intelligence value of the information sought to be obtained, the age of the person who is to be summonsed, and any mental impairment to which that person is known to be subject.

25 Section 15 of the Act contains the power of the Chief Examiner to issue witness summonses where a coercive powers order is in force in respect of an organised crime offence. Under s 15(2), the Chief Examiner may issue, on his or her own motion, or on the application of a member of the police force, a summons of the same nature as those referred to in s 14. Section 15(3) provides that the Chief Examiner may determine the procedure for making an application for an issue of a summons under s 15.

26 Section 15(4) of the Act permits the Chief Examiner to issue a summons if the Chief Examiner is satisfied of the same matters as those specified in s 14(6). Section 15(6) relevantly requires the Chief Examiner, on issuing a summons, to record in writing the grounds on which the summons is issued. Under s 15(10), a summons must state, among other things, that the coercive powers order has been made under the Act by the Supreme Court and the date on which the order was made. There is no requirement that the order be served on a person who is summonsed.

27 Section 18(2) of the Act provides that if a coercive powers order is in force, and if a person is held in a prison or police gaol, a member of the police force may apply to the Supreme Court or to the Chief Examiner for an order that the person be delivered into the custody of the member for the purpose of bringing that person before the Chief Examiner to give evidence at an examination. Sections 18(3) and (4) provide that the requirements in s 14(4), (5), (6), (7) and (11) and s 15(3), (4), (5), (6) and (10) relating to summonses also apply to custody orders made under s 18(2).

28 Section 20 of the Act empowers the Supreme Court and the Chief Examiner to give to a person to whom a witness summons or a custody order applies a notice which has the effect of prohibiting that person from disclosing certain documents and information, unless the person has a reasonable excuse. They include the existence of the summons or custody order, the subject-matter of the applicable organised crime offence, the applicable coercive powers order and an examination by the Chief Examiner.

29 Part 4 of the Act is concerned with the conduct of examinations by the Chief Examiner. Under s 29, the Chief Examiner may conduct an examination of a person in relation to an organised crime offence if, among other things, the Chief Examiner has received a copy of a coercive powers order made in relation to that offence.

The Chief Examiner may conduct an examination of a person in relation to an organised crime offence if -

(a) the Chief Examiner has received a copy of a coercive powers order made in relation to the offence; and

(b) any of the following has occurred -

(i) the Chief Examiner has received a copy of a witness summons directed to the person requiring him or her to appear before the Chief Examiner at an examination to give evidence or to produce specified documents or other things or do both; or

(ii) the Chief Examiner has issued such a witness summons directed to the person; or

(iii) the Chief Examiner has received a copy of an order made under section 18 in respect of the person; or

(iv) the Chief Examiner has made such an order in respect of the person.

31 Section 30 of the Act provides that the Chief Examiner is not bound by the rules of evidence in conducting an examination and may regulate the conduct of the examination proceedings as he or she thinks fit. Section 35(1) provides that an examination must be held in private. Under s 34(1), a witness giving evidence at an examination may be represented by a legal practitioner. Pursuant to s 36(1), the Chief Examiner, the legal practitioner, or any person authorised by the Chief Examiner may, so far as the Chief Examiner thinks appropriate, examine or cross-examine any witness on any matter that the Chief Examiner considers relevant to the investigation of the organised crime offence to which the examination relates.

32 Section 36(2) of the Act provides that the Chief Examiner may take evidence on oath or affirmation. Section 36(3) provides that a person appearing at an examination before the Chief Examiner must not refuse or fail to comply with a requirement to take an oath or make an affirmation. Section 36(4) provides that a person who, without reasonable excuse, contravenes s 36(3) is guilty of an indictable offence and is liable to imprisonment for up to five years.

33 Under s 37 of the Act, a person served with a witness summons to appear as a witness at an examination before the Chief Examiner who, without reasonable excuse, fails to attend, and a person appearing as a witness who refuses or fails to answer a question, or without reasonable excuse refuses or fails to produce a document or other thing which he or she was required to produce by the witness summons, is guilty of an offence. Section 38 provides that it is also an offence for a person appearing as a witness to give evidence which is false or misleading in a material particular, or to produce a document or other thing that the person knows to be false or misleading in a material particular.

34 Section 39(1) of the Act abrogates the privilege against self-incrimination. However, s 39(3) limits the use that can be made of any answers given at an examination or any documents or other things that are produced in accordance with a witness summons. Under s 40, a person is entitled to refuse to answer a question or produce a document on the grounds of legal professional privilege.

35 A person attending before the Chief Examiner may be guilty of contempt in the circumstances prescribed by s 49.

36 Section 68 of the Act contains extensive secrecy provisions that apply to, among others, the Chief Examiner and police officers. The provisions do not apply to the Supreme Court.

Supreme Court's procedure for hearing applications under the Act

37 The Act does not prescribe the procedure to be followed by the Supreme Court in exercising its power under s 8 to make a coercive powers order. The Court's procedure has evolved since s 8 commenced operation on 1 July 2005. The current procedure is described below.

38 The application for a coercive powers order and the supporting affidavit are filed in advance of the hearing of the application, to give the judge who is allocated to hear the application ample time to consider it. The application is heard in a courtroom which is closed to the public. Those present in the courtroom are the judge, the judge's associate and tipstaff, the applicant and the applicant's lawyer. A representative of the Chief Examiner sometimes seeks leave to be present. The judge hears submissions in support of the application. As there is no contradictor, the judge usually asks questions or seeks clarification.

39 If the judge is satisfied of the matters in s 8, he or she will make the order with or without conditions. If the judge is not satisfied of the matters in s 8, the applicant may seek leave to supplement the affidavit material with further affidavits or with oral evidence. If oral evidence is given, the witness takes an oath or makes an affirmation in the witness box. If the judge is still not satisfied, he or she will refuse the application. If the material is voluminous and the judge requires further time to review it or to consider any legal issues, he or she may adjourn the application.

40 A court file is prepared in relation to the application and a court number is allocated. The file is kept in a secure place rather than in the Prothonotary's office and it is not open for inspection by the public. The hearing of the application is recorded by the Court and a transcript is prepared by the applicant from the Court's recording. A copy of the transcript is provided to the Court and is placed in the court file.

41 There is no uniform practice in relation to the provision of reasons for granting or refusing an application. Although reasons are usually given, some judges provide oral reasons. Where written reasons are provided, a copy is given to the applicant and a copy is placed in the court file. On some occasions, written reasons are published on a 'Not Restricted' basis and are made available to the public. Publicly available reasons are usually very brief, they omit identifying details and are, of necessity, not very informative.[9]

Preliminary issue: Are the Court's powers under the Act judicial?

42 The question whether the Supreme Court's power under s 8 of the Act to make a coercive powers order is administrative or judicial is relevant to the validity of the Act and the validity of the CPO. Accordingly, I will consider it before turning to the invalidity grounds.

43 Mr Garry Livermore, who appeared for the Director of Public Prosecutions ('DPP'), submitted that the Court's power is administrative. Mr Lachlan Carter, who appeared for the Accused, submitted that the better view was that the power is administrative.

44 Although this issue has been raised in previous cases,[10] it has not been the subject of any judicial determination. Accordingly, it falls to be decided on the basis of general principles.

45 The High Court has acknowledged the difficulty, if not impossibility, of framing a definition of judicial power that is at once exclusive and exhaustive.[11]

46 In Love v Attorney-General (NSW),[12] Mason CJ and Brennan, Dawson, Toohey and Gaudron JJ, after stating that '[j]udicial power has proved to be insusceptible of comprehensive definition',[13] were content to adopt the following observations of Kitto J in R v Trade Practices Tribunal; Ex parte Tasmanian Breweries Pty Ltd:[14]

Thus a judicial power involves, as a general rule, a decision settling for the future, as between defined persons or classes of persons, a question as to the existence of a right or obligation, so that an exercise of the power creates a new charter by reference to which that question is in future to be decided as between those persons or classes of persons. In other words, the process to be followed must generally be an inquiry concerning the law as it is and the facts as they are, followed by an application of the law as determined to the facts as determined; and the end to be reached must be an act which, so long as it stands, entitles and obliges the persons between whom it intervenes, to observance of the rights and obligations that the application of law to facts has shown to exist. It is right, I think, to conclude from the cases on the subject that a power which does not involve such a process and lead to such an end needs to possess some special compelling feature if its inclusion in the category of judicial power is to be justified.[15]

47 In Luton v Lessels,[16] Callinan J phrased the test for defining a power or function as being administrative or judicial as a series of questions as follows:

First, is the exercise to be undertaken under the relevant scheme, one which calls for independence and tenure of a kind traditionally enjoyed by judges? Secondly, does the scheme require the making of findings on disputed facts, or as to the law to be applied? Thirdly, is the relevant decision made by reference to a formula or a fairly standard set of criteria? Fourthly, is the decision appealable? Fifthly, if it is, what is the nature of the appeal? Sixthly, is the decision likely, as a legal or as a practical matter to serve as a precedent for decisions in future similar instances? Seventhly, has the legislature expressed a view about the nature of the process involved? Eighthly, is the process to be followed of a kind that has traditionally been undertaken by courts? Ninthly, does the decision relate to pre-existing rights and obligations, or does it create new ones? Tenthly, is the decision enforceable by the maker of it or by the institution of which he or she is a member? And, last, is there any other feature of the process which is historically of an administrative or a non-judicial kind?[17]

48 In C v Chief Commissioner of Police,[18] Smith J referred to the following criteria in the context of considering submissions about the nature of the Supreme Court's power to revoke a coercive powers order under s 12 of the Act:

whether the exercise of the powers and functions under s 12 involves an adjudication to determine the rights of individuals;
whether the making of a revocation order is an order inter partes;
whether there may be a lis or dispute in existence between individuals;
whether the application is made on notice and whether an application for an order gives rise to any enforceable rights in third parties;
whether the order once made is enforceable as an order of the court.[19]

49 Some of the indicia of judicial power have been the subject of detailed consideration by the High Court and are briefly discussed below.

50 The making of binding declarations of right by way of adjudication of disputes about rights and obligations arising from the operation of the law upon past events or conduct has been described by the High Court as a 'classical instance' of the exercise of judicial power.[20]

51 Thus, judicial power involves, as a general rule, a decision settling for the future a question between identified parties as to the existence of a right or an obligation. In this regard, the process is generally an inquiry concerning the law as it is and the facts as they are, followed by an application of the law as determined to the facts as determined.[21]

52 The judicial determination of issues of fact and law to ascertain existing rights is

exclusively within judicial power.[22] However, the making of decisions by the application of legal criteria to facts as found is characteristic, but not distinctive, of the judicial function. It is also characteristic of many administrative functions.[23]

53 An essential element in the judicial process is that it results in a binding and authoritative determination.[24] The exercise of judicial power involves a decision that conclusively settles the rights and liabilities of the parties to that decision. It is the judicial determination that pronounces the existence of the right or duty and obliges the parties to that recognition.[25]

54 By contrast, an administrative decision does not itself have force and effect. It is the legislation that 'stamps an [administrative decision-maker's] opinion with legal rights or obligations, so that when it is declared those are the mutual rights and obligations'.[26]

55 Another important element that distinguishes a judicial decision from an administrative decision is that the former determines existing rights and duties according to law; that is, by the application of a pre-existing standard rather than by the formulation of policy or the exercise of an administrative discretion.[27]

56 Considerations of policy do play a role - sometimes a decisive one - in the shaping of legal principles.[28] However, if an ultimate decision may be determined not merely by the application of legal principles to ascertained facts, but also by considerations of policy, then the determination does not proceed from an exercise of judicial power.[29]

57 Where a discretionary authority is conferred upon a court and that authority is to be exercised according to legal principle or by reference to an objective standard or test prescribed by the legislature, not by reference to policy considerations or other matters not specified by the legislature, it can be concluded that the court's determination gives effect to rights and obligations for which the statute provides, such that the determination constitutes an exercise of judicial power.[30]

Authorities dealing with the issuing of warrants

58 In Love, the High Court held that the act of a judge of the Supreme Court of New South Wales issuing a warrant for the use of a listening device pursuant to the Listening Devices Act 1984 (NSW) ('LD Act (NSW)') was an administrative, not a judicial, act. According to the Court, a warrant is not a judicial order but an 'instrument made pursuant to a circumscribed statutory authority'.[31] In reaching this conclusion, the Court identified the issue of the warrant as 'a step in [an] administrative process and ... thus an administrative function'.[32]

59 In Grollo v Palmer,[33] the High Court held that the power of eligible judges to issue telecommunications interception warrants under the Telecommunications (Interception) Act 1979 (Cth) ('TI Act (Cth)') was non-judicial in nature.[34] The Court said that the issue of a warrant did not involve an adjudication to determine the rights of parties.[35]

60 In Ousley v The Queen,[36] the High Court categorised the power of Supreme Court judges to issue listening device warrants pursuant to the Listening Devices Act 1969 (Vic) ('LD Act (Vic)') as administrative.[37] Gummow J recognised in that case that '[t]he exercise of these powers by the Supreme Court is essentially administrative in nature and the issue of a warrant is not a judicial order which determines the rights of parties'.[38]

61 In X v Australian Crime Commission,[39] Finn J held that a determination made by the Board of the Australian Crime Commission ('ACC Board') under the Australian Crime Commission Act 2002 (Cth) ('ACC Act (Cth)'), which had a similar effect to a coercive powers order made under the Act, was of an 'executive character'.[40]

62 Although no single combination of necessary or sufficient factors identifies what is judicial power,[41] the following criteria assist in determining whether the Supreme Court's power to make a coercive powers order under s 8 of the Act is judicial:

(a) whether there is a dispute between defined persons or classes of persons that requires a legally binding resolution;

(b) whether the exercise of the power involves a decision that determines for the future in a binding manner the existing rights or obligations of defined persons or classes of persons;

(d) whether the exercise of the power results in a legally enforceable order inter partes;

(e) whether the exercise of the power requires the application of a standard set of criteria;

(f) whether the exercise of the power requires the application of policies as determined from time to time by the government of the day;

(g) whether the exercise of the power involves the making of findings of fact and law and the application of the law to the facts;

(h) whether the Act indicates that the power is judicial;

(i) whether the process for the exercise of the power accords with the Court's traditional processes;

(j) whether the exercise of the power will create a precedent; and

(k) whether there is a right of appeal from the exercise of the power.

Conclusion: The Court's powers under the Act are administrative

63 An application for a coercive powers order is made in the context of a police investigation of an offence that the police suspect is an organised crime offence. At the time of the application, the police may or may not have identified particular suspects. The purpose of obtaining a coercive powers order is to further the police investigation into the offence with a view to identifying the suspects and obtaining sufficient evidence to charge them.

64 It follows that, when a coercive powers order is made, there will usually not be an extant dispute between defined persons or classes of persons that requires a legally binding resolution. It also follows that the making of a coercive powers order will not involve a decision that determines for the future in a binding manner the existing rights or obligations of defined persons or classes of persons. The Act does not require the giving of notice to anyone who may be affected by the making of a coercive powers order. Indeed, as will be discussed below, at the time that an application for a coercive powers order is made, the police may not know the identity of the individuals who may potentially be affected by the making of the order.

65 While s 9(2)(b) of the Act provides that a coercive powers order must set out the name of each known alleged offender, there is no requirement to serve the order on a named alleged offender, and that person will not necessarily be served with a witness summons or a custody order. Accordingly, the coercive powers order is not an order inter partes. No substantive rights are embodied in the order which are immediately enforceable. The effect of the order depends entirely upon the Act.[42]

66 Under s 8 of the Act, a judge of the Supreme Court cannot make a coercive powers order unless he or she is satisfied of the matters set out in that section. Those matters are that there are reasonable grounds for the suspicion founding the application for the order; and that there is a public interest in making the order, having regard to the nature and gravity of the alleged organised crime offence and the impact of the use of the order on the rights of members of the community. The matters set out in s 8 constitute a standard set of criteria.

67 In deciding whether he or she is satisfied of the matters set out in s 8, the judge must consider the contents of the affidavit in support of the application and make findings of fact to the extent necessary to decide whether he or she is satisfied of those matters. The judge must also interpret the Act, including the meaning of expressions used in the definition of 'organised crime offence', and decide whether the evidence in support of the application satisfies the legal requirements of the Act. To that extent, the judge must determine the law to be applied to his or her factual findings. The judge is bound to give effect to the purposes and objects of the Act, as discerned from its wording, but is not bound to apply any policy of the government of the day.

68 Although the judge's role in assessing the factual and legal considerations referred to at [66] and [67] above in deciding whether to make a coercive powers order resembles the role that judges routinely perform in the course of their judicial functions, that is not determinative. Some administrative functions a[43]o have these features.43

69 The Act does not describe the Supreme Court's functions in relation to coercive powers orders as either judicial or administrative. Section 7 prohibits a person from publishing 'a report of a proceeding in respect of an application for a coercive powers order or any information derived from such a proceeding'. The word 'proceeding' does not necessarily mean 'judicial proceeding'. It is equally apt to describe an administrative proceeding.[44] Accordingly, in my opinion, the language of the Act does not indicate whether the Court's functions are judicial or administrative. Likewise, although the fact that the Act confers power on the Supreme Court itself, rather than to a judge of the Court, suggests that the power is judicial in nature, this is not conclusive.[45]

70 Some aspects of the Supreme Court's procedure for hearing an application for a coercive powers order, as described at [37] to [41] above, resemble the Court's traditional procedure for hearing and determining a judicial proceeding. However, there are important differences. Apart from the fact that the Court is closed to the public and the fact that none of the documents relating to the application are publicly available, a critical difference is that the Court process is not adversarial and the Court interfaces only with the applicant. In the absence of a contradictor, the judge hearing the application actively enquires into the matter and seeks information in order to be satisfied of the matters set out in s 8. If the judge decides that the information is insufficient, he or she may request further information under s 5(5) of the Act before making a final decision. The Court can also, on its own initiative, revoke a coercive powers order at any time before it expires. These features are absent from judicial proceedings conducted by the Court.

71 A decision to grant or to refuse an application under s 8 of the Act must be based on the facts presented to the Supreme Court in relation to the particular alleged organised crime offence. Such a decision is unlikely to have any precedential value, particularly if no reasons are published. However, a decision may deal with issues of statutory interpretation which may have precedential value, particularly if reasons are published.

72 The Act does not confer a right of appeal on any person in respect of a decision under s 8 of the Act to grant or to refuse an application for a coercive powers order.

73 The above analysis of the criteria for determining whether the Supreme Court's function under s 8 of the Act is judicial or administrative in nature indicates that the function departs in significant respects from the traditional judicial functions of the Court. In deciding whether that function should be characterised as an administrative function rather than as a judicial function, it is also necessary to analyse the nature, purpose and effect of a coercive powers order in the context of the Act as a whole.

74 The purpose of a coercive powers order is to authorise the Chief Examiner to undertake evidence-gathering activities that he or she could not undertake in the absence of the order. The order is a precondition to administrative steps by the Chief Examiner. While those steps have the capacity to significantly affect the rights of individuals, the order itself does not directly affect any person's rights.

75 Decisions dealing with the power vested in courts to issue various types of warrants provide support by way of analogy for the categorisation of the power to make a coercive powers order as either judicial or administrative.[46] As in the case of orders authorising the issue of search warrants, interception warrants and listening devices under the enabling legislation, a coercive powers order under the Act is made ex parte for the purpose of authorising the performance of administrative acts in the investigation of crimes where those acts would otherwise be unlawful or legally ineffectual.[47] As a coercive powers order provides the lawful foundation for the performance of administrative acts in the context of the executive function of investigating crimes, the order has an administrative dimension.[48]

76 In Wainohu v New South Wales,[49] French CJ and Kiefel J held that the function of an eligible judge of the Supreme Court of New South Wales in making a declaration under pt 2 of the Crimes (Criminal Organisations Control) Act 2009 (NSW) ('CCOC Act (NSW)') that an organisation was a declared organisation, was administrative in nature. As discussed at [136] below, while the making of a declaration was a statutory precondition to the Court's power to make a control order, it was the control order that directly affected legal rights. As the making of a coercive powers order is a condition precedent to a witness summons or a custody order under the Act, Wainohu supports the proposition that the function of making a coercive powers order is administrative in nature.

77 For the above reasons, I am of the opinion that the Supreme Court's power to make a coercive powers order under s 8 of the Act is administrative rather than judicial.

78 My conclusion does not mean that the exercise of the power under s 8 of the Act is divorced from the Court's judicial process. On the contrary, it is well established that the power must be exercised judicially, that is, 'in a just and fair manner, with judicial detachment'.[50]

The Kable principle as it applies to the present case

79 The essence of the Kable principle, for the purposes of the present case, was summarised by French CJ and Kiefel J in Wainohu as follows:

Decisions of this Court, commencing with Kable, establish the principle that a State legislature cannot confer upon a State court a function which substantially impairs its institutional integrity, and which is therefore incompatible with its role, under Ch III of the Constitution, as a repository of federal jurisdiction and as a part of the integrated Australian court system. The term 'institutional integrity', applied to a court, refers to its possession of the defining or essential characteristics of a court. Those characteristics include the reality and appearance of the court's independence and its impartiality. Other defining characteristics are the application of procedural fairness and adherence, as a general rule, to the open court principle ... [I]t is also a defining characteristic of a court that it generally gives reasons for its decisions. In the case of the Supreme Courts of the States, that characteristic has a constitutional dimension by reason of the appellate jurisdiction conferred on this Court by s 73 of the Constitution.[51]

80 The Kable principle has as its touchstone the protection against legislative or executive intrusion upon the institutional integrity of the courts, whether federal or State.[52] The question indicated by the use of the term 'integrity' is whether the court is required or empowered by the impugned legislation to do something which is substantially inconsistent or incompatible with the continuing subsistence, in every aspect of its judicial role, of its defining characteristics as a court.[53]

81 In South Australia v Totani,[54] French CJ provided the following non-exhaustive list of consequences of the constitutional placement of State courts in the integrated Australian court system:

A State legislature cannot confer upon a court of a State a function which substantially impairs its institutional integrity and which is therefore incompatible with its role as a repository of federal jurisdiction.
State legislation impairs the institutional integrity of a court if it confers upon it a function which is repugnant to or incompatible with the exercise of the judicial power of the Commonwealth.
The institutional integrity of a court requires both the reality and appearance of independence and impartiality.
The principles underlying the majority judgments in Kable and further expounded in the decisions of this Court which have followed after Kable do not constitute a codification of the limits of State legislative power with respect to State courts. Each case in which the Kable doctrine is invoked will require consideration of the impugned legislation because 'the critical notions of repugnancy and incompatibility are insusceptible of further definition in terms which necessarily dictate future outcomes'. For legislators this may require a prudential approach to the enactment of laws directing courts on how judicial power is to be exercised, particularly in areas central to the judicial function such as the provision of procedural fairness and the conduct of proceedings in open court. It may also require a prudential approach to the enactment of laws authorising the executive government or its authorities effectively to dictate the process or outcome of judicial proceedings.
The risk of a finding that a law is inconsistent with the limitations imposed by Ch III, protective of the institutional integrity of the courts, is particularly significant where the law impairs the reality or appearance of the decisional independence of the court. [55]

82 In the present case, Mr Carter submitted that the provisions of the Act that confer jurisdiction on the Supreme Court to make coercive powers orders (ss 5 and 8) are invalid because they substantially impair the Court's institutional integrity by undermining three of its defining characteristics. Those characteristics are the conduct of proceedings in open court, procedural fairness and the provision of reasons. The parties' submissions on these characteristics also touched on the characteristic of independence and impartiality. As that characteristic overlaps with the others and informs their nature and scope, I will discuss it first.

83 One of the characteristics required of all courts capable of exercising federal judicial power is that they be, and appear to be, independent and impartial tribunals.[56] Perceptions of a court as independent and impartial must be taken as essential to its integrity.[57]

84 In Totani, French CJ elaborated upon the defining characteristic of independence as follows:

At the heart of judicial independence, although not exhaustive of the concept, is decisional independence from influences external to proceedings in the court, including, but not limited to, the influence of the executive government and its authorities. Decisional independence is a necessary condition of impartiality ...[58]

85 A State court may be required to act on the basis of a fact determined by the executive and that, without more, does not impermissibly impair the institutional integrity of the court.[59] However, the Kable principle might apply if the court's adjudicative powers are confined so as to merely implement an executive or legislative determination.[60]

86 Legislation that draws a court into the implementation of government policy, by confining the court's adjudicative process so that the court is directed or required to implement legislative or executive determinations without following ordinary judicial processes, will deprive that court of the characteristics of an independent and impartial tribunal.[61]

87 There is no general constitutional prohibition against the appointment of judges to non-judicial offices or to carry out non-judicial functions.[62] French CJ and Kiefel J in Wainohu traced the history of the involvement of judges in non-judicial activities in or on behalf of the executive government.[63] Their Honours noted that:

[t]he question whether such activities are appropriate for a judge to undertake is not the same as the question whether they fall within the limits imposed by the Constitution. Nevertheless, the existence of the debate and the historical practice are consistent with the absence of bright-line rules defining those limits.[64]

88 French CJ and Kiefel J referred to the 'imprecise scope' of the judicial power and the 'shifting characterisation of the so-called "chameleon" functions as administrative or judicial according to whether they are conferred upon an authority acting administratively or upon a court'.[65] Their Honours also made the following observations about the multi-faceted nature of the debate concerning the desirability of conferring administrative functions on serving judges:

There are questions of principle relating to the independence and impartiality of the courts and the need for an appropriate distance from executive government, even if that distance only accords with convention and falls short of a separation of powers in the constitutional sense. Concerns have been expressed about embroiling judges in political controversies. A practical consideration is the extent to which a judge discharging extraneous administrative duties (even if only on a part-time basis) is diverted from judicial work. Some functions, such as those relating to the issue of statutory warrants, may involve only a minor imposition on judicial time. Others may be considerably more burdensome...

Debates about the appropriateness of conferring non-judicial functions on judges do not directly engage the constitutional question whether such offices and activities are compatible with the judicial functions of federal, State and Territory courts under Ch III of the Constitution. What the debates indicate is that questions of compatibility which require evaluative judgments are unlikely to be answered by the application of precisely stated verbal tests.[66]

89 For a law conferring administrative functions (not incidental to judicial functions) on State judges to be valid, it is not necessary that those functions be conferred persona designata.[67]

90 A legislatively prescribed detachment of a State judge from his or her court when performing a non-judicial function may weigh in the balance against a finding of impairment of the institutional integrity of the court. Such a detachment may also make it less likely that the exercise of the non-judicial function undermines the reality or the appearance of the court as an institution independent of the State executive government. However, if that function is conferred upon the judge by virtue of his or her judicial office, the fact that the function is conferred persona designata should not be given great weight. It would generally not be determinative of the question of compatibility.[68]

91 In Wainohu,[69] Gummow, Hayne, Crennan and Bell JJ endorsed the following statements of principle made by Gaudron J in Wilson v Minister for Aboriginal and Torres Strait Islander Affairs: [70]

(a) The confidence reposed in judges depends on their acting openly, impartially and in accordance with fair and proper procedures for the purpose of determining the matter in issue by ascertaining the facts and the law and applying the law as it is to the facts as they are. It also depends on the reputation of the courts for acting in accordance with that process.[71]

(b) Generally, a function that is carried out in public, that is manifestly free of outside influence and that results in a report or other outcome which can be assessed according to its own terms, will not be one that gives the appearance of an unacceptable relationship between the judiciary and the other branches of government.[72]

(c) There may be functions, such as the issuing of warrants, which do not satisfy these criteria but which, historically, have been vested in judges in their capacity as individuals and which, on that account, can be performed without risk to public confidence. However, history cannot justify the conferral of new functions on judges in their capacity as individuals if their performance would diminish public confidence in the particular judges concerned or in the judiciary generally.[73]

92 In Grollo,[74] a majority of the High Court (Brennan CJ, Deane, Dawson, Toohey and Gummow JJ, McHugh J dissenting) accepted the applicability of the persona designata mechanism to federal judges, subject to two necessary conditions.[75] The first condition was that the judge's consent is required for the conferral of a non-judicial function. The second condition was that there be no incompatibility with the judge's performance of his or her judicial functions or with the proper discharge by the judiciary of its responsibilities as an institution exercising judicial power. Relevantly, this 'incompatibility condition' would arise if the non-judicial function were of such a nature that public confidence in the integrity of the judiciary as an institution or in the capacity of the judge to perform his or her judicial functions with integrity is diminished.[76]

93 The majority in Grollo rejected the contention that the role of a judge, acting persona designata, in issuing telecommunications interception warrants under the TI Act (Cth), was incompatible with judicial office.[77] The observations in the joint judgment of Brennan CJ and Deane, Dawson and Toohey JJ regarding the role of judges in issuing warrants - properly characterised as an administrative act - and the maintenance of judicial independence in fact and appearance, are apposite to the present case:

The applicant submits that judicial integrity is compromised and public confidence in the exercise of the jurisdiction of the Federal Court is prejudiced by the conferral of power on judges of the Federal Court to issue interception warrants. ...

If the issuing of interception warrants were reasonably to be regarded as a judicial participation in criminal investigation, it would be a function which could not be conferred on a judge without compromising the judiciary's essential separation from the executive government. The judicial method of deciding questions in controversy has no application in exercising the power to issue an interception warrant. Not only is the application for an interception warrant made ex parte; the very issue of a warrant and the identity of the judge who issued it are not disclosed. Unlike a warrant to enter, search and seize, its execution may go undetected by the person against whom or against whose interests the warrant is executed...[and] there is no return made on the execution of the warrant which permits a determination of its lawfulness, a review of its due execution and a disposition of the fruit of the execution. Because of the secrecy necessarily involved in applying for and obtaining the issue of an interception warrant, no records are kept which would permit judicial review of a judge's decision to issue a warrant. Nor are reasons given for such a decision. The decision to issue a warrant is, for all practical purposes, an unreviewable in camera exercise of executive power to authorise a future clandestine gathering of information. Understandably a view might be taken that this is no business for a judge to be involved in...

Yet it is precisely because of the intrusive and clandestine nature of interception warrants and the necessity to use them in today's continuing battle against serious crime that some impartial authority, accustomed to the dispassionate assessment of evidence and sensitive to the common law's protection of privacy and property (both real and personal), be authorised to control the official interception of communications. In other words, the professional experience and cast of mind of a judge is a desirable guarantee that the appropriate balance will be kept between the law enforcement agencies on the one hand and criminal suspects or suspected sources of information about crime on the other. It is an eligible judge's function of deciding independently of the applicant agency whether an interception warrant should issue that separates the eligible judge from the executive function of law enforcement. It is the recognition of that independent role that preserves public confidence in the judiciary as an institution.[78]

94 In Grollo, Gummow J delivered a separate judgment in which he agreed with the conclusion in the joint judgment that the TI Act (Cth) was valid.[79]

95 In his dissenting judgment in Grollo, McHugh J described the incompatibility condition as a 'necessity'[80] and discussed the significance of the appearance of independence and impartiality in the following terms:

In determining whether incompatibility exists, the appearance of independence and impartiality is as important as its existence ... The greater the association between the judicial status of the persona designata and the executive functions that he or she performs, the greater is the likelihood that the judicial and non-judicial functions of that person will seem to be fused. In that situation, it is likely that members of the public will fail to distinguish between the judicial functions of the judge and the executive functions of that person as persona designata and will conclude that the judge is neither independent of the executive government nor impartial when dealing with actions between the citizen and the government and its agencies.[81]

96 In Wainohu, French CJ and Kiefel J described the above reasoning of McHugh J in Grollo, while applied to federal judges and federal courts, as apposite in the determination of the question whether a non-judicial function conferred on a State judge impairs the institutional integrity of the court of which that judge is a member by impairing the reality or appearance of its independence and impartiality.[82] Their Honours stated that this aspect of McHugh J's judgment in Grollo was unaffected by the differences between McHugh J and the majority judges.[83]

97 In Totani, French CJ emphasised that the constitutional assumption of actual and apparent independence and impartiality does not need to be mediated through its effect upon 'public confidence' in the courts.[84] Perception as to the undermining of public confidence 'is an indicator, but not the touchstone, of invalidity; the touchstone concerns institutional integrity'.[85]

98 In my opinion, there is nothing in the Act that impairs the independence or impartiality of the Supreme Court. Under s 8, the judge hearing an application for a coercive powers order must refuse the application unless he or she is satisfied of the matters set out in that section. The judge makes that decision on the basis of the material presented in support of the application. In assessing that material, the judge uses the same analytical skills upon which he or she relies in relation to all other issues - whether judicial or administrative - that he or she is required to resolve. The judge deploys those skills impartially and independently and carefully weighs up the competing considerations set out in s 8.

99 The fact that applications for coercive powers orders are heard in closed court in the presence of only the applicant and his or her lawyer does not mean that the judge's decisional independence is undermined. The applicant - who represents the executive branch - cannot unduly influence the judge. The applicant's role is to present material and to make submissions in support of the application . In practice, the absence of a contradictor means that the judge scrutinises the applicant's material with great care and seeks clarification of anything that is unclear or requests further information where the information presented is incomplete. Far from siding with the executive branch in a joint enterprise or for a common purpose, the judge in effect becomes a contradictor and provides a check on the power of the executive and an important safeguard against abuse of that power.

100 I accept that the ex parte procedure under the Act presents difficulties. The key risk is that the material presented in support of an application for a coercive powers order may be inaccurate or misleading - either deliberately or inadvertently - and that the judge may not become aware of this. However, that risk is not unique to the Act: it applies to all ex parte applications and even inter parties applications. Further, the availability of review by way of judicial review or collateral challenge, provides a measure of judicial scrutiny.[86]

101 Mr Livermore submitted that the joint judgment of the majority in Grollo is a complete answer to the issue of independence and impartiality. He contended that what the majority said about the role of a Federal Court judge in issuing a telecommunications interception warrant under the TI Act (Cth) applies equally to the role of a judge in making a coercive powers order under the Act. It will be recalled from [93] above that, in their joint judgment, the majority in Grollo said that 'the professional experience and cast of mind of a judge is a desirable guarantee that the appropriate balance will be kept between the law enforcement agencies on the one hand and criminal suspects or suspected sources of information about crime on the o[87]er'.87

102 On the other hand, Mr Carter submitted that the joint judgment of the majority in Grollo predates the most recent High Court decisions on the Kable principle and is no longer good law. He contended that the dissenting judgment of McHugh J is more consonant with the recent authorities.

103 McHugh J in Grollo held that the nature of the power exercised by eligible judges under the TI Act (Cth) and the manner in which it was exercised were incompatible with the exercise of federal judicial power and were likely to jeopardise public confidence in the ability of the judges to perform their judicial functions in an independent and impartial manner.[88] His Honour stated that the legislation '[e]ssentially ... puts the [eligible judge] in the uniform of the constable' and required him or her to perform functions under a scheme with the following features: the application for a warrant was made ex parte and in secret; original documentation was not retained; reasons were not given; a duty of confidence was imposed which could give rise to conflicts of interest; and a large number of warrants were issued annually.[89] His Honour held that the cumulative effect of these features rendered the role of judges as personae designatae 'incompatible with the concurrent exercise of federal judicial power'.[90]

104 Mr Carter correctly submitted that, in Wainohu, French CJ and Kiefel J cited with approval parts of McHugh J's dissenting judgment in Grollo. However, French CJ and Kiefel J approved the passage set out at [95] above. Neither their Honours nor any other member of the High Court in Waihohu said that they preferred McHugh J's judgment to the joint judgment of the majority or to the separate judgment of Gummow J.

105 In my opinion, the joint judgment of the majority in Grollo remains good law and provides valuable guidance in the resolution of the present case. In the light of the serious consequences that can arise from the making of a coercive powers order, the public would be comforted by the knowledge that such an order can only be made by the Supreme Court. As an independent and impartial institution, the Court is an ideal 'check and balance' on the powers of the executive, and that is how it is likely to be perceived by the public. The public is not only concerned about civil liberties, it is also concerned about protection from organised crime and expects the striking of a fair balance in addressing those concerns. The public is likely to have a high degree of confidence about the integrity of the process by which the Supreme Court performs its functions under the Act. The performance of those functions is unlikely to diminish public perceptions of the Court's independence and impartiality.

106 There are important differences between the scheme of the TI Act (Cth), as described by McHugh J in Grollo, and the scheme of the Act. The Act does not place the judge hearing an application for a coercive powers order 'in the uniform of the constable'. Under s 8 of the Act, the judge must apply criteria that are commonly found in other statutes. Although the process under the Act is ex parte and secret, a court file is opened, a court number is allocated, documents are retained in the court file, a transcript is prepared and reasons are usually given and are sometimes publicly available.[91] The judge is not bound by the secrecy provisions in s 68 of the Act and can dispense with the non-publication provisions in s 7. Applications under the Act are not a substantial part of the Court's jurisdiction. Between 1 July 2005, when the relevant provisions of the Act commenced, and 10 August 2012, a period of over 7 years, 30 applications have been made for a coercive powers order. Not all of these applications have been successful.

107 Writing extra-curially, Weinberg J stated that public confidence in the independence of the judiciary is in no way diminished by the fact that judges regularly carry out non-judicial tasks such as serving on law reform bodies and as members of merits review bodies and specialist tribunals.[92] His Honour was not persuaded by the assertion that, by assuming the role of supervision of coercive powers legislatively conferred upon the executive, judges are in effect acting as police.[93] Further:

There is something almost surreal about the notion that public confidence in an independent and impartial judiciary will be shaken if judges supervise and monitor the use of coercive powers. Rather, it seems to me that the public expects judges to perform such tasks. The fact that such powers cannot be exercised without a measure of judicial control provides some safeguard for the rights of the individual. ...[94]

108 In my opinion, Totani[95] is distinguishable. In that case, a majority of the High Court (French CJ and Gummow, Hayne, Crennan, Kiefel and Bell JJ; Heydon J dissenting) held that s 14(1) of the Serious and Organised Crime (Control) Act 2008 (SA) ('SOCC Act (SA)') was invalid because it authorised the executive to enlist the Magistrates' Court to implement decisions of the executive in a manner that was incompatible with the Court's institutional integrity and which deprived the Court of the defining characteristic of the appearance of independence and impartiality.[96] This was because s 14(1) had the effect that, where the Attorney-General made a declaration that an organisation was a declared organisation and the Chief Commissioner of Police made an application to the Magistrates' Court for a control order in respect of a person, the Court was obliged to make a control order if the Court was satisfied of the sole criterion that the person was a member of the declared organisation. Under the SOCC Act (SA), a control order immediately restricted the freedom of association of the person who was subject to it and exposed him or her to criminal penalties for breach of the order.

109 By contrast, the Act does not involve a member of the executive making an instrument that is comparable to a declaration by the Attorney-General under the SOCC Act (SA). A member of the police force simply makes an application to the Supreme Court supported by an affidavit. Section 8 sets out the criteria that must be satisfied before the Court 'may make a coercive powers order'. The Court is not bound to make such an order. Importantly, a coercive powers order is not made in respect of any particular person and does not have any direct effect on the rights or freedoms of any person. The Court may, on its own initiative, revoke a coercive powers order. In no sense does the Act authorise the executive to enlist the Supreme Court to implement any decision of the executive in a manner that is incompatible with the Court's institutional integrity. Nor does it deprive the Court of the defining characteristic of the reality and appearance of independence and impartiality.

110 For the above reasons, the Act does not substantially impair the Supreme Court's independence or impartiality.

111 The open court principle describes the general rule that the proceedings of State Supreme courts and other Australian courts are to be conducted 'publicly and in open view'.[97] It is of the essence of the State system of courts that, unless authorised by statute, the place where a State court sits to exercise its jurisdiction will be open to the public. The existence of discretions given to State courts to exclude members of the public from legal proceedings in certain circumstances emphasises that, in general, the court is to be open to the public during the hearing of a matter.[98]

112 The open court principle, which provides, among other things, a visible assurance of independence and impartiality, is an 'essential aspect' of the characteristics of all courts, including the courts of the States.[99]

113 In Russell v Russell,[100] Gibbs J described the purpose and significance of the open court principle in the following terms:

This rule has the virtue that the proceedings of every court are fully exposed to public and professional scrutiny and criticism, without which abuses may flourish undetected. Further, the public administration of justice tends to maintain confidence in the integrity and independence of the courts. The fact that courts of law are held openly and not in secret is an essential aspect of their character. It distinguishes their activities from those of administrative officials, for 'publicity is the authentic hallmark of judicial as distinct from administrative procedure'. To require a court invariably to sit in closed court is to alter the nature of the court. Of course there are established exceptions to the general rule that judicial proceedings shall be conducted in public; and the category of such exceptions is not closed to the Parliament. The need to maintain secrecy or confidentiality, or the interests of privacy or delicacy, may in some cases be thought to render it desirable for a matter, or part of it, to be held in closed court.[101]

114 I agree with Mr Carter that, as s 5(8) of the Act mandates that an application for a coercive powers order 'must be heard in closed court', the Act does not give effect to the open court principle.

115 In addition, s 7 prohibits the publication of reports relating to proceedings under the Act and s 68 imposes strict secrecy obligations on the Chief Examiner and police officers. As discussed at [37] to [41] above, the procedure that the Supreme Court follows when dealing with an application for a coercive powers order involves withholding from the public access to the file, the transcript and, in some cases, the reasons relating to the application.

116 It is fair to say that secrecy, rather than openness, characterises proceedings in the Supreme Court under the Act.

117 However, for the reasons discussed above in relation to independence and impartiality, the failure of the Act to give effect to the open court principle does not mean that the Act is invalid on the basis of the Kable principle. I rely, in particular, on my discussion of the joint judgment of the majority in Grollo.[102] The open court principle does not apply with the same force to administrative functions - such as the issuing of warrants under listening devices legislation and the making of coercive powers orders under the Act, that are performed by the Supreme Court - as it does to judicial functions.

118 The secrecy that is associated with the making of coercive powers orders is understandable given that applications for such orders involve highly sensitive law enforcement information, whose public disclosure is likely to prejudice the effectiveness of investigations and the success of prosecutions of organised crime offences.

119 The fact that the exercise of the Supreme Court's functions under the Act is not in accordance with the open court principle does not mean that the Court is unaccountable for the performance of that function. As will be discussed below, a corollary of my finding at [77] above that the Court's power to make a coercive powers order under s 8 of the Act is administrative rather than judicial, is that the exercise of the power is amenable to judicial review and, in appropriate cases, collateral challenge. These mechanisms enable a degree of judicial scrutiny.

120 The application of procedural fairness is another defining characteristic of State Supreme Courts.[103] Procedural fairness effected by impartiality and the natural justice hearing rule 'lies at the heart of the judicial process'.[104] It requires that a court be and appear to be impartial and provide each party to proceedings before it with an opportunity to be heard, to advance its own case and to answer, by evidence and argument, the case put against it.[105] The content of the requirements of procedural fairness can vary according to the circumstances. [106]

121 The power of a court to conduct an ex parte hearing, without giving notice to the party to be affected, is an incident of judicial power.[107]

122 When an ex parte application for interlocutory relief is made, the court ordinarily has a discretion whether or not to hear the application without notice to the party to be affected. In exercising that discretion, the court will have regard to the legitimate interests of the party making the application that need to be protected, whether there is likely to be irrevocable damage to the interests of the affected party if the order is made, and what provision can be made for the affected party to be heard to have the order discharged or varied after it has been made. However, this does not mean that an official cannot validly be authorised by statute to bring an application ex parte to a State Supreme Court.[108]

123 In International Finance Trust Company Ltd v New South Wales Crime Commission,[109] French CJ cautioned that such ex parte procedures:

...are not unusual but should always be regarded as exceptional. They involve a departure, albeit temporary, from the general requirement of procedural fairness that no order adverse to a party's property, liberty, or any other interest should be made without that party first having an opportunity to be heard. That opportunity includes the right to test and/or rebut evidence relied upon by the moving party and to make submissions on matters of fact and law. Ex parte interlocutory injunctive relief may be sought where the urgency of the matter is such that there is no time to notify the respondent. Anton Piller orders and Mareva or assets preservation orders are often sought ex parte on the basis that notice to the affected party is likely to result in the destruction of evidence or the concealment or dissipation of assets which it is intended the proposed order will protect. Nevertheless, courts have long had the power to require that notice of an application made ex parte be given to the party affected. The court may not accept that the matter is as urgent as claimed or that the subject matter of the application would be compromised if the affected party were to be alerted to it. Or it may be that the court does not find the affidavit in support of the motion 'sufficiently positive'.[110]

124 The availability of a mechanism by which a party affected by an ex parte order can apply to discharge it is not germane to the issue of validity. The question whether there has been an impermissible invasion of the judicial function of the court is not to be resolved simply by engaging in a calculus of fairness and assessing whether prejudice to a party, flowing from denial to it of a hearing prior to an order being made, can be remedied at some later time.[111]

125 In Love,[112] the High Court said that the very nature of the activities authorised by a warrant issued under the LD Act (NSW) precludes notice to the individual whose privacy will be affected by action taken under the warrant.[113] This statement is particularly apt for coercive powers orders. If an individual who is a suspect in relation to an organised crime offence is given notice of an application for a coercive powers order, there is a risk that he or she may destroy or tamper with vital evidence or interfere with witnesses.

126 Even if this risk is minimal in a particular case, it will often be practically impossible to give notice to all individuals who may ultimately be affected by the making of a coercive powers order. This is because not all of those individuals will be known at the time of the application for the order. The identity of some of the individuals will only become known in the course of implementing the order. It must be remembered that any member of the community, and not just a suspect, can be served with a witness summons pursuant to a coercive powers order.

127 A coercive powers order can be revoked either on the Supreme Court's own initiative or on the application of a person who has been served with a witness summons or a custody order pursuant to the coercive powers order.[114] If that person is later charged with an offence, he or she will be entitled to all the procedural fairness protections of an accused in a criminal trial. While eventual compliance with procedural fairness cannot negate an infringement of the Kable principle by a statutory provision that operates at an earlier stage of a judicial process,[115] it is a relevant consideration in the context of the administrative process involved in the present case.

128 In my opinion, IFTC is distinguishable. That case dealt with a challenge to the validity of s 10 of the Criminal Assets Recovery Act 1990 (NSW) ('CAR Act (NSW)'). Section 10(2) empowered the New South Wales Crime Commission ('NSWCC') to apply to the Supreme Court of New South Wales for a restraining order which had the effect of preventing a person from dealing with his or her property. Such an application had to be supported by an affidavit setting out the grounds for certain suspicions held by the NSWCC, including a suspicion that the owner of the property has engaged in a serious crime related activity. Section 10(2) conferred on the NSWCC a discretion to make the application ex parte. The effect of s 10(3) was that, where the NSWCC made an application for a restraining order ex parte, the Court was obliged to hear the application ex parte. Section 10(3) also provided that the Court 'must' make the order if, having regard to the matters in the NSWCC's affidavit, the Court considered that there were 'reasonable grounds for any such suspicion'. The CAR Act (NSW) did not provide to a property owner affected by a restraining order a practical means of discharging the order.

129 A majority of the High Court (French CJ, Gummow, Heydon and Bell JJ; Hayne, Crennan and Kiefel JJ dissenting) held that s 10 was invalid because it was incompatible with the judicial function of the Supreme Court of New South Wales and it impaired the Court's institutional integrity. The section empowered an agency of the executive (the NSWCC), through its election to apply ex parte, to direct the Court as to the manner in which it exercised its jurisdiction and to deprive it of a defining characteristic of judicial power, namely, the power to accord procedural fairness to an affected party.[116] Gummow and Bell JJ, with French CJ agreeing, stated that, in substance, s 10 required 'the mandatory 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'.[117]

130 Unlike the CAR Act (NSW), the Act does not enable the executive to determine the procedure to be used by the Court in hearing an application for a coercive powers order. Although the Court usually proceeds ex parte, the Act does not expressly require it to do so. Nor does the Act prohibit the Court from directing, where it deems it appropriate, that notice be given to any person. Importantly, a coercive powers order is not made in respect of any particular person and does not have any direct effect on the rights or liberties of any person. Under s 9(2)(f) of the Act, the duration of a coercive powers order must not exceed 12 months and under s 12(1), the Court may, of its own initiative, revoke the order at any time. While it is true that the Act does not contain any mechanism for the curial enforcement of the duty of full disclosure on ex parte applications, the availability of judicial review and collateral challenge permit a measure of judicial scrutiny.[118]

131 In summary, having regard to the purposes and scheme of the Act and the matters discussed above, the Kable principle is not engaged on the basis of procedural fairness considerations.

132 The centrality to the judicial function of a public explanation of reasons for final decisions and important interlocutory rulings has long been recognised.[119] Although the duty imposed on judges to give reasons for their decisions has been linked to the availability of rights of appeal against those decisions,[120] a broader rationale lies in the 'nature of the judicial function'.[121]

133 The duty to give reasons is an incident of the judicial function regardless of whether the court making the relevant decision is subject to appeal. As regards State Supreme Courts, the duty has a constitutional character, derived from the jurisdiction of the High Court under s 73 of the Commonwealth Constitution to hear appeals from all judgments, decrees, orders and sentences of the Supreme Courts of the States.[122]

134 The provision of reasons for decision is also an expression of the open court principle. In Wainohu, French CJ and Kiefel J described this 'essential incident of the judicial function' as follows:

A court which does not give reasons for a final decision or for important interlocutory decisions withholds from public scrutiny that which is at the heart of the judicial function: the judicial ascertainment of facts, identification of the rules of law, the application of those rules to the facts and the exercise of any relevant judicial discretion.[123]

135 Their Honours observed that the statutory exclusion of a duty on the part of the eligible judge in that case to provide reasons for his or her decisions stood in sharp contrast with the general duty of judges of the Supreme Court to give reasons for their judicial decisions. It also meant that the basis of the eligible judge's satisfaction as to a necessary condition for the exercise by the Supreme Court of its jurisdiction to make a control order 'may be unexplained to that Court or to anybody else'.[124]

136 Wainohu dealt with a challenge to the validity of pt 2 of the CCOC Act (NSW), which included ss 9, 12 and 13. Section 9 provided that, upon application by the Commissioner of Police, an eligible judge of the Supreme Court of New South Wales could make a declaration that a particular organisation was a 'declared organisation' for the purposes of the CCOC Act (NSW). Section 12 empowered the eligible judge, on request by the Commissioner of Police or a member of the declared organisation, to revoke the declaration. Section 13(1) provided that the rules of evidence did not apply to the hearing of the application. Section 13(2) provided that an eligible judge was not required to provide any grounds or reasons for making a declaration or a decision under pt 2. Part 3 of the CCOC Act (NSW) empowered the Court to make a 'control order' in respect of members of a declared organisation, the effect of which was to immediately restrict the freedom of association of those members. Breach of a control order constituted a criminal offence.

137 The High Court decided by majority (French CJ and Gummow, Hayne, Crennan, Kiefel and Bell JJ, Heydon J dissenting) that the CCOC Act (NSW) was invalid because the statutory exclusion of reasons was incompatible with the institutional integrity of the Supreme Court of New South Wales.[125]

138 French CJ and Kiefel J held that the functions of an eligible judge under pt 2 of the CCOC Act (NSW) were administrative in nature[126] and that those functions were closely connected to the exercise of the jurisdiction conferred by pt 3 of that Act on the Supreme Court of New South Wales. A declaration under pt 2 was a condition precedent to the exercise of the Court's jurisdiction to make a control order under pt 3.[127]

139 French CJ and Kiefel J observed that, from a substantive perspective, 'the appearance of the eligible judge would differ little from that of a judge of the Court exercising precisely the same function under pt 2 in his or her capacity as a judge'.[128] Their Honours also remarked:

The appearance of a judge making a declaration is thereby created whilst the giving of reasons, a hallmark of that office, is denied. These features cannot but affect perceptions of the role of a judge of the Court, to the detriment of the Court.[129]

140 Gummow, Hayne, Crennan and Bell JJ concluded that the CCOC Act (NSW) was invalid for the following reasons:

The vice in s 13(2) as it presently stands is that ss 9 and 12 confer new functions on Supreme Court judges in their capacity as individuals with the result that an outcome of what may have been a contested application cannot be assessed according to the terms in which it is expressed. This is unlike the outcome under pt 3 of the Act. The opaque nature of these outcomes under pt 2 also makes more difficult any collateral attack on the decision, and any application for judicial review for jurisdictional error. The effect of pt 2 is to utilise confidence in impartial, reasoned and public decision-making of eligible judges in the daily performance of their offices as members of the Supreme Court to support inscrutable decision-making under ss 9 and 12.[130]

141 French CJ and Kiefel J implicitly acknowledged that, in Public Service Board (NSW) v Osmond,[131] the High Court held that there is no general legal obligation on administrative decision-makers to provide reasons for their decisions.[132] Gummow, Hayne, Crennan and Bell JJ said that, even if pt 2 of the CCOC Act (NSW) had conferred jurisdiction on an administrator rather than an eligible judge, 'there would be much to be said for the view that, in the absence of a contrary provision in pt 2 ... there was to be discerned a statutory intent that the decision-maker was obliged to give reasons.'[133]

142 Wainohu can be distinguished because there are three significant differences between the CCOC Act (NSW) and the Act. First, unlike the CCOC Act (NSW), the Act does not state that the Supreme Court is not required to provide reasons for a decision to grant or to refuse a coercive powers order. The Act is silent on the matter. As discussed at [41] above, reasons are usually given, although there is no uniform practice about whether the reasons are oral or written and whether they are made publicly available.

143 Secondly, under the CCOC Act (NSW), applications for a declaration in respect of an organisation were generally heard by an eligible judge in public after the giving of notice to members of the organisation, and the hearings were substantial, adversarial and involved the determination of contested issues of law and fact.[134] In comparison, hearings under the Act are ex parte, conducted in closed court and not adversarial.

144 Thirdly, under the CCOC Act (NSW), there was a necessary link between the role of an eligible judge in making a declaration that an organisation was a 'declared organisation' and the role of the Supreme Court of New South Wales in making a control order in relation to members of the declared organisation. The making of a declaration was a condition precedent to the making of a control order. As both roles were performed within the Supreme Court, there was a risk that the public would see them as being part of a single process, such that the features of the role of the eligible judge that were antithetical to the judicial process would impair the institutional integrity of the Supreme Court.

145 By contrast, there is no necessary link between the making of a coercive powers order by the Supreme Court of Victoria and any subsequent substantive proceeding in that Court. The making of a coercive powers order will not necessarily result in a witness summons or a custody order being served on any person. Even if they are so served, it does not necessarily follow that anyone will be charged with an offence. Even if criminal proceedings ensue, a person who gave evidence before the Chief Examiner pursuant to a witness summons or a custody order will not necessarily be involved in the criminal proceeding, either as an accused or as a witness. Even if the person is so involved, unless the offence is one of a limited number of offences that must be, or are usually, tried in the Supreme Court, the trial will take place in the County Court.

146 Even if the trial takes place in the Supreme Court, the judge who made the coercive powers order will be known and he or she can recuse himself or herself from conducting the trial where this is appropriate.

147 Accordingly, there is no basis for a concern that the integrity or credibility of the judicial processes of the Supreme Court will be affected in any way by the earlier making of a coercive powers order.

148 It follows that any departure by the Act from the defining characteristic of provision of reasons for decision does not invalidate the Act on the basis of the Kable principle.

149 In deciding whether the Act is invalid on the basis of the Kable principle, I have considered the defining characteristics of independence and impartiality, the conduct of proceedings in open court, procedural fairness and the provision of reasons in combination as well as individually. For the reasons that I have already discussed, those characteristics, whether considered separately or cumulatively, do not have the effect of invalidating the Act on the basis of the Kable principle. That principle does not provide a foundation for an order quashing the charge against the Accused.

150 Mr Carter submitted that, even if the Act is valid, the CPO is invalid and the Accused is entitled to collaterally challenge its validity in a pre-trial application under s 199(1)(c) of the CP Act (Vic).

151 Mr Carter contended that a valid coercive powers order is an element of the offence with which the Accused has been charged. While Mr Livermore did not concede this, he informed me that, for the purposes of this proceeding, the DPP was content to proceed on the basis that the Crown must prove that the CPO is valid.

152 Before considering Mr Carter's submissions on the validity of the CPO, it is necessary for me to decide, as a preliminary issue, whether the validity of the CPO can be the subject of a collateral challenge. I will discuss this issue in conjunction with the allied question of whether of a coercive powers order can be judicially reviewed.

Are judicial review and collateral challenge available?

153 As the Supreme Court is a superior court of record, an order made by a judge of the Court is usually presumed to be lawful and binding unless or until it is varied or set aside on appeal to the Court of Appeal. Ordinarily, a single judge of the Court does not have jurisdiction to judicially review an order made by another judge of the Court. However, these principles apply to orders of a judge made in the exercise of a judicial function. As a matter of principle, a single judge of the Court can judicially review an order of another judge made in the exercise of an administrative function, such as the making of a coercive powers order under the Act.[135]

154 In Minister for Immigration and Multicultural Affairs v Bhardwaj,[136] Hayne J explained the relevant principles as follows:

In general, judicial orders of superior courts of record are valid until they are set aside on appeal, even if they are made in excess of jurisdiction. By contrast, administrative acts and decisions are subject to challenge in proceedings where the validity of that act or decision is merely an incident in deciding other issues. If there is no challenge to the validity of an administrative act or decision, whether directly by proceedings for judicial review or collaterally in some other proceeding in which its validity is raised incidentally, the act or decision may be presumed to be valid. But again, that is a presumption which operates, chiefly, in circumstances where there is no challenge to the legal effect of what has been done. Where there is a challenge, the presumption may serve only to identify and emphasise the need for proof of some invalidating feature before a conclusion of invalidity may be reached. It is not a presumption which may be understood as affording all administrative acts and decisions validity and binding effect until they are set aside.[137]

155 In Wainohu, the High Court held that, as a result of the decision in Kirk v Industrial Court of New South Wales,[138] a privative clause in the CCOC Act (NSW) which purported to prevent a decision by an eligible judge from being challenged would not prevent a person from seeking judicial review of the decision in the Supreme Court of New South Wales on the ground of jurisdictional error.[139] French CJ and Kiefel J held that a declaration made under pt 2 of the CCOC Act (NSW) was an administrative act.[140] As a coercive powers order made by a judge of the Supreme Court of Victoria under the Act is also an administrative act, it follows from Wainohu that judicial review is available to challenge the validity of such an order.

At a glance

Court

Decision date

Before

Source

Judgment (526 paragraphs)

Parties

Legislation Cited (128)

Cases Cited (26)