143 Nicopoulos v Commissioner for Corrective Services concerned a solicitor who practised primarily in criminal law. The Commissioner for Corrective Services had given a direction under cl 105 of the Crimes (Administration of Sentences) Regulation 2001 (NSW) that the plaintiff be prevented from entering any correctional centre, based in part upon confidential intelligence concerning alleged misconduct on the solicitor's part. At the hearing, the Commissioner sought to have three confidential affidavits read without disclosing their content to the plaintiff. The Commissioner relied on s 130(1) of the Evidence Act 1995 (NSW), which created a discretion allowing, but not requiring, the Court to exclude evidence where the public interest in confidentiality outweighed disclosure. The Commissioner submitted that, even though confidentiality outweighed disclosure in that case, the evidence should nonetheless be admitted and acted upon but that the Court should preclude the plaintiff from having access to it.
144 On review, Smart AJ held that the Court had power to admit, and thus consider, the evidence in the confidential affidavits without giving the plaintiff access to that evidence. His Honour held that it would be against the public interest in the ongoing detection of crime, and the maintenance of security and order in the prisons, for the operational systems of the Commissioner to be revealed. As such, it was not in the public interest that the plaintiff or his counsel be given access to the affidavits or even a summary of what they contained. However, their contents should still be taken into consideration.
145 The right to be heard has recently been considered in the context of certain sections in the Confiscation Act 1997 (Vic) relating to applications for restraining orders. The question in both Navarolli v Director of Public Prosecutions (Vic) (2005) 159 A Crim R 347 and Director of Public Prosecutions v Vu (2006) 14 VR 249was whether the statute permitted the Director of Public Prosecutions to apply to the Court ex parte, without giving notice to the person against whom such orders were sought. In both cases, the Court of Appeal affirmed the right of the Director to do so, although it stressed the need for there to be compelling reasons for adopting that course.
146 What emerges from these authorities is that courts are cautious in denying any party to a judicial proceeding the opportunity to be heard or to know the case against that party. Nonetheless, there are circumstances in which the requirements of natural justice can be overridden. The fact that ss 39A and 39B operate to deny an applicant for review procedural fairness does not of itself demonstrate that a Ch III judge, acting as a designated person, cannot preside over such a review.
147 The real question is whether the statutory power conferred upon the Attorney-General to grant certificates under ss 39A and 39B vests in him or her the power to control the proceedings, or to direct the Tribunal as to the manner and outcome of the exercise of its jurisdiction, so that it would be inappropriate for a Ch III judge to have any involvement in what is occurring.
148 Gypsy Jokers is only of limited assistance in that regard. As previously noted, the majority in that case did not deal definitively with the incompatibility issue. However, as also discussed earlier, their Honours did indicate that, had the relevant section given the Commissioner of Police the power to determine "unilaterally" that materials were not to be disclosed, it might have resulted in a finding of incompatibility.
149 The remarks of the majority in Wilson regarding incompatibility in the specific context of the Tribunal are worth repeating. Their Honours said at 17-18:
"…Similarly, where a judge is appointed as a presidential member of the Administrative Appeals Tribunal, the function of deciding applications must be performed independently of any instruction, advice or wish of the Executive Government. The Tribunal must give what it considers to be the correct or preferable decision. And that is so even in those cases where government policy is a relevant factor for consideration and the powers of the tribunal are limited to the affirming of, or recommending the reconsideration of, the decisions of a minister. Thus, in the first deportation case to come before the tribunal, Brennan J pointed out:
'The legislature clearly intends that the tribunal, though exercising administrative power, should be constituted upon the judicial model, separate from, and independent of, the Executive (see Pt II of the Act). Its function is to decide appeals, not to advise the Executive. The remedies which it awards may be limited or large, but the remedies are incidental to the decision at which it arrives. The decision of the Tribunal in the particular circumstances of each case is therefore to be resolved according to its opinion as to the merits of that case. It forms that opinion after considering the views of the decision-maker, but it is not bound by those views. Whenever the tribunal is constrained or elects to remit a matter for reconsideration in accordance with its recommendations (see s 43(1)(c)(ii)) its function is discharged when the decision to remit is made. It is not concerned to ensure that its recommendation is carried into effect. The legislature, in creating a right of appeal to the Tribunal, no doubt intended that the successful exercise of the right should not be unjustifiably frustrated by subsequent administrative action, but the remedy, if any, is reserved for the courts or the parliament - not this Tribunal. The Tribunal decides the appeal: it is left to the Executive to implement the decision.'
Independence from the Legislature and the Executive Government in the sense thus explained is essential to the constitutional compatibility of performing a non-judicial function with the holding of office as a Ch III judge."
(Footnotes omitted; emphasis added.)
150 It is a good question whether the Attorney-General's certificate mandating non-disclosure can be characterised as an instruction by him to the Tribunal and, if so, whether that compromises the integrity of a Ch III judge who participates in the process even as a designated person.
151 Having given this matter careful consideration, we would answer that question "no" on both counts. We are not persuaded that the provisions under challenge are invalid. A Ch III judge who presides in a Security Appeal Division review is not, as is plain on the authorities, doing so as a judicial officer. The function is conferred persona designata. It is an administrative function. It is no less compatible with the exercise of judicial power than many other purely administrative functions that Ch III judges routinely exercise. For example, judges both Federal and State have over the years commonly issued various kinds of warrants, including search warrants and telephonic interception warrants. More recently, they have been entrusted to make preventative detention orders and the like. They have served as royal commissioners and headed up boards of inquiry.
152 Justice Phillips, while a judge of the Federal Court, served as Chairman of the National Crime Authority. Justice Woodward, while a judge of this Court, was also head of ASIO. Sir Owen Dixon, the acknowledged author of the majority judgment in Boilermakers, served as ambassador to the United States while on leave as a judge of the High Court.
153 It is difficult to imagine, in the light of Wilson and Kable, that appointments of this kind would be made today. However, they illustrate the flexibility that historically has attached to the appointment of judges to various executive positions. As Gleeson CJ noted in Thomas v Mowbray, powers relevantly similar to those given by Div 104 of the Criminal Code traditionally have been, and are, exercised by the judiciary. His Honour said of such powers at [17]:
"They are not exclusively or distinctively administrative. To decide that such powers are exclusively within the province of the executive branch of government would be contrary to our legal history, and would not constitute an advance in the protection of human rights."
154 The point can be clearly made simply by considering the position that prevails in this Court. A number of current judges of the Court occupy roles as Tribunal members, acting as designated persons. In addition, they serve on other administrative bodies such as the Australian Competition Tribunal, the Copyright Tribunal, and the Defence Force Discipline Appeal Tribunal. Two judges of this Court are members of the Court of Arbitration for Sport. Several judges are members of the Australian Law Reform Commission.
155 Even apart from persona designata,there are functions conferred upon courts as such that might be regarded as purely administrative. One example is the power to require a person to answer questions or produce documents pursuant to the examination procedure under Pt 5.9 of the Corporations Act 2001 (Cth). Justice French, writing extra-judicially, has recently commented that such examinations seem to "stand well to one side of the core of the judicial function". They are purely investigative, designed to assist the relevant regulator, or liquidator, or administrator. Nonetheless, as his Honour points out, they have a considerable ancestry, tracing back to the first bankruptcy statute in England in 1842. See generally, French RS, "Executive Toys - Judges and Non-Judicial Functions", a paper delivered to the District Court Judges conference in Western Australia on 11 April 2008. In addition, such functions have been recognised by the High Court as appropriate for Ch III judges to perform, being incidental to the function and traditional supervision exercised by the Court in winding up: Gould v Brown (1998) 193 CLR 346 at 388.
156 The investigative functions sometimes vested in courts were also considered by the High Court in Dalton v New South Wales Crime Commission (2006) 227 CLR 490. That case concerned the validity of s 76 of the Service and Execution of Process Act 1992 (Cth). The section was upheld by analogy with the traditional administrative and investigative functions exercised by the courts since well before federation in relation to matters of insolvency and the like.
157 The "chameleon" doctrine to which we referred earlier has also been invoked to enable courts to exercise powers which, when wielded by administrative agencies, are regarded as non-judicial. An example is the power to review the decision of a magistrate who exercises a purely administrative function when considering eligibility for surrender under the Extradition Act 1988 (Cth). The function becomes judicial when exercised by a judge: Director of Public Prosecutions (Cth) v Kainhofer (1995) 185 CLR 528.
158 As we have repeatedly stressed, Boilermakers establishes conclusively that the judicial power of the Commonwealth can only be exercised by a Court composed of judges with the tenure for which Ch III provides: Huddart Parker and Co Proprietary Limited v Moorhead (1909) 8 CLR 330; The State of New South Wales v The Commonwealth (1915) 20 CLR 54 had earlier arrived at the same conclusion. More controversially, Boilermakers also establishes that the Parliament cannot create a tribunal, which exercises both judicial and non-judicial powers, notwithstanding that some of its members may be appointed consistently with Ch III of the Constitution.
159 This second limb of Boilermakers has been gradually watered down because it has come to be seen as resulting in inconvenience and because it is difficult to draw a clear line between judicial and non-judicial functions. The associated question, namely to what extent a purely administrative function can be conferred upon a Ch III judge not sitting as a judge but as persona designata, has also given rise to great difficulty.
160 The doctrine of persona designatahas been much criticised. It has been described as a device and also as a fiction. It is not for this Court to go behind the numerous High Court decisions that have approved the doctrine and invoked it to uphold what might otherwise be seen as a breach of the second limb of Boilermakers. Plainly, the ability of Parliament to confer non-judicial power on a Ch III judge as a designated person, as distinct from the court to which that judge belongs, has the potential to undermine that aspect of Boilermakers. The notion of incompatibility can be invoked to balance that danger.
161 In Mistretta v United States 488 US 361 (1989) (as cited in the extract from Grollo v Palmer at [78]), the Supreme Court formulated a similar doctrine to explain the limits of what federal judges could be asked to do. The Court said that the ultimate inquiry was "whether a particular extra-judicial assignment undermines the integrity of the Judicial Branch".
162 One can readily see how, in some cases, this might be so. There might be such a permanent and ongoing commitment to the performance of non-judicial functions as to impede the proper performance of judicial functions by the judge in question. Occasional sittings of the Security Appeals Division do not fall into that category.
163 A procedure that may be repugnant if required of a court will not necessarily be unacceptable if required of an administrative body or tribunal. Such bodies may be required, as is the Tribunal, to take into account Government policy. Courts do not act in that way. Chapter III judges who serve on the Tribunal, acting in their personal capacity, are in a quite different position to that of Justice Mathews in Wilson.
164 Justice French observed in his recent paper that:
"The boundary line dividing functions compatible with the exercise of a federal judicial commission and functions incompatible is not informed by any particular coherent body of principle."
His Honour added that the role of judges on the Tribunal was regarded as compatible because, institutionally, it was independent of both the legislature and the executive.
165 There is plainly a danger that judges will have certain functions conferred upon them as designated persons so that the Government can benefit from the veneer of impartiality that they bring to the task in politically sensitive or controversial areas. If the perception arises that a judge is acting as a tool of the executive, respect for the court and the rule of law will be diminished.
166 However, we doubt that ordinary members of the community would regard a Ch III judge who presides over an appeal to the Security Appeals Division of the Tribunal as having compromised his or her integrity merely by following the procedures laid down in ss 39A and 39B. The Tribunal operates independently of the executive. In this case, it had the capacity to overturn both the passport decision and the assessment. It operated under a statutory regime, whereby the rules of procedural fairness had been specifically abrogated by the legislature, but for reasons that the legislature must have clearly regarded as compelling. The Security Appeal Division deals with matters of great importance and sensitivity. It should not be forgotten that the Attorney-General, as first law officer of the Commonwealth, is charged with the vital task of protecting the community from the threat of terrorism, and that much of the information relevant to that task will be highly confidential. Further, the individual judge may exercise his or her discretion whether or not to preside over such an appeal.
167 The solution adopted by Parliament represents a compromise. Like all compromises, it is imperfect. Reasonable minds may differ as to the desirability or otherwise of provisions such as ss 39A and 39B.
168 There is much to be said for having a judge exercise the vital task of reviewing ASIO assessments and decisions by the relevant Minister to refuse or cancel passports. The only alternative is to have that task performed by those who may not have the same level of experience or skill in evaluating evidence. Worse still, they may be beholden to the Government in some way while judges are secure in their tenure and remuneration.
169 That is not, however, the question before this Court. We are concerned with the applicant's contention that Ch III judges who participate in the process of review by the Security Appeals Division are so compromised by doing so that they cast doubt upon the integrity of the courts to which they belong. The authorities to which we have referred, apart from Wilson and Kable, and the long tradition of Ch III judges assuming non-judicial tasks (albeit as designated persons), lead us to conclude that the applicant's contention must be rejected.
170 We note that issues similar to those raised by the applicant were considered and resolved in K-Generation. In that case, a majority of the Court were satisfied that the legislation in question, which contained provisions similar in some respects to those under challenge here, did not offend the incompatibility doctrine. K-Generation concerned a court of a state, the Liquor Licensing Court, which might conceivably be the repository of federal judicial power. It had nothing to do with administrative tribunals, the members of which might include Ch III judges. The finding of the majority that the provisions under challenge did not offend Kable supports our conclusion that similar provisions, albeit operating in a very different context, are valid.
171 Even ifwe were satisfied that K-Generation was wrongly decided, the present case would be readily distinguishable. As we have already indicated, procedures that no court should be obliged to follow may be tolerable when laid down to govern administrative hearings. Greater latitude will be accorded to administrative decision-makers in that regard. The applicant's challenge to the validity of ss 39A and 39B must fail.