The Jurisdiction of the Court
16As earlier summarised, the effect of the orders sought in the summons is judicial review of the findings of ICAC. Little attention is paid in the summons to delineating precisely the jurisdictional error (if there be any) or the error of law, if that be suggested. It is important to acknowledge that the Court does not sit, in these proceedings, on an appeal from ICAC. Nor does it evaluate afresh findings that are open to ICAC.
17The plaintiff seeks declaration of invalidity and that the findings were made without or in excess of jurisdiction or were wrong in law.
18Ultimately, it will not be relevant, but the plaintiff seeks one declaration relating to the finding that the plaintiff "had engaged in corrupt conduct" within the relevant meaning and seeks a declaration that the aforesaid finding is a nullity. Technically, each of the findings would amount to corrupt conduct, or certainly could be said to amount to corrupt conduct, as a consequence of which the plaintiff would seem to need to satisfy the Court that none of the findings were made within jurisdiction, or otherwise than in excess of jurisdiction, or were otherwise than a nullity or wrong in law.
19The distinction between the original jurisdiction of the Court on judicial review and the jurisdiction of ICAC to make the findings (or even the jurisdiction of a court on appeal) is important. Historically, the New South Wales Supreme Court has inherent and essential jurisdiction to grant what formerly were called prerogative writs and now orders in the nature of those writs and/or declarations for the same effect.
20It is unnecessary for the Court, as presently constituted, to discuss the distinction between inherent jurisdiction and essential jurisdiction of the New South Wales Supreme Court. If all inherent judicial review jurisdiction had become constitutionally entrenched, as may be suggested by the High Court in Kirk v Industrial Relations Commission (NSW); Kirk Group Holdings Pty Ltd v WorkCover Authority of (NSW) [2010] HCA 1; (2010) 239 CLR 531 at 580-581, [98]-[99], unqualifiedly, then the distinction drawn by the High Court at [100] between jurisdictional error and non-jurisdictional error of law would not exist.
21Thus, the entrenched supervisory jurisdiction of the Court is an entrenched jurisdiction supervisory only for the purpose of enforcing the limits of the exercise of executive and judicial power at a jurisdictional level and not simply because of an error of law that is non-jurisdictional.
22Nevertheless, there is no privative or ouster clause in the ICAC Act or any other legislative prescription. As a consequence, ss 69 and 75 of the Supreme Court Act 1970 operate without qualification.
23There is a fundamental distinction between correcting administrative injustice or error by a review of the merits of administrative action and adjudicating the extent of power and legality of the exercise of administrative functions: Attorney-General (NSW) v Quin [1990] HCA 21; (1990) 170 CLR 1. In Quin, Brennan J (as he then was) said, at 35-36:
"The duty and jurisdiction of the court to review administrative action do not go beyond the declaration and enforcing of the law which determines the limits and governs the exercise of the repository's power. If, in so doing, the court avoids administrative injustice or error, so be it; but the court has no jurisdiction simply to cure administrative injustice or error. The merits of administrative action, to the extent that they can be distinguished from legality, are for the repository of the relevant power and, subject to political control, for the repository alone.
The consequence is that the scope of judicial review must be defined not in terms of the protection of individual interests but in terms of the extent of power and the legality of its exercise. In Australia, the modern development and expansion of the law of judicial review of administrative action have been achieved by an increasingly sophisticated exposition of implied limitations on the extent or the exercise of statutory power, but those limitations are not calculated to secure judicial scrutiny of the merits of a particular case.
There is one limitation, "Wednesbury unreasonableness" (the nomenclature comes from Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223), which may appear to open the gate to judicial review of the merits of a decision or action taken within power. Properly applied, Wednesbury unreasonableness leaves the merits of a decision or action unaffected unless the decision or action is such as to amount to an abuse of power: Nottinghamshire County Council v Secretary of State for Environment [1986] AC 240 at 249. Acting on the implied intention of the legislature that a power be exercised reasonably, the court holds invalid a purported exercise of the power which is so unreasonable that no reasonable repository of the power could have taken the impugned decision or action. The limitation is extremely confined."
24Jurisdictional error will be disclosed when a decision maker has not taken into account a criterion required by law to be taken into account; or has taken into account an irrelevant criterion (a class significantly narrower than criteria not expressly required to be taken into account); utilised the wrong test or asked itself the wrong question; or misapprehended the nature or limits of its power as a consequence of which it performed an act or made a decision that authority does not sanction: Craig v State of South Australia [1995] HCA 58; (1995) 184 CLR 163; Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24.
25Jurisdictional error also occurs where there is a denial of procedural fairness. One of the submissions, albeit only faintly put, suggested denial of procedural fairness.
26Nevertheless, it is extremely important for the Court to distinguish between a merit review and a judicial review, otherwise we are "apt to encourage a slide into impermissible merit review": Swift v SAS Trustee Corporation [2010] NSWCA 182 at [45], per Basten JA.
27The High Court has, since the judgment in Quin, had occasion to deal with that which was described by Brennan J as Wednesbury unreasonableness. In Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611, the Court, by majority, determined that no jurisdictional error had occurred in the determination of the Refugee Review Tribunal. In the course of the reason for judgment, Crennan and Bell JJ said:
"[131] What was involved here was an issue of jurisdictional fact upon which different minds might reach different conclusions. The complaint of illogicality or irrationality was said to lie in the process of reasoning. But, the test for illogicality or irrationality must be to ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based. If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion."
28The effect of the foregoing is to make the test of illogicality and irrationality almost indistinguishable from that which is Wednesbury unreasonableness. In SZMDS, Heydon J, at [85] and [86], deals with illogicality in a similar way to that of Crennan and Bell JJ. A Full Court of the Federal Court (SZOOR v Minister for Immigration and Citizenship [2012] FCAFC 58; (2012) 202 FCR 1), by majority, determined that the comments of Heydon J are consistent with (or not inconsistent with) those of Crennan and Bell JJ.
29Since that time the Federal Court seems to have adopted that approach universally: see Tisdall v Webber [2011] FCAFC 76; (2011) 193 FCR 260; Minister for Immigration and Citizenship v SZOCT [2010] FCAFC 159; (2010) 189 FCR 577; SZMWQ v Minister for Immigration and Citizenship [2010] FCAFC 97; (2010) 187 FCA 109; MZXSA v Minister for Immigration and Citizenship [2010] FCAFC 123; Rawson Finances Pty Ltd v Commissioner of Taxation [2013] FCAFC 26.
30The joint judgment of Gummow ACJ and Kiefel J in SZMDS treated illogicality differently, but on the authority of the Full Court of the Federal Court, and by virtue of the orders proposed, the joint judgment of Gummow ACJ and Kiefel J in SZMDS was a minority judgment.
31The issues arose again in the High Court, albeit indirectly, in discussing whether matters considered by the Administrative Appeals Tribunal under the Migration Act 1958 were "logically probative" to the issue required to be determined by the Tribunal: FTZK v Minister for Immigration and Border Protection [2014] HCA 26; (2014) 88 ALJR 754.
32Before dealing in a more detailed way with the judgment of the High Court in FTZK, it is necessary to deal with what has been described by the plaintiff in these proceedings as "jurisdictional fact". I have, in previous judgments, described jurisdictional fact as a misnomer. In QBE Insurance (Australia) Ltd v Motor Accidents Authority (NSW) & Ors [2013] NSWSC 549, the issue was analysed by reference to earlier judgment in Savita Singh v Motor Accidents Authority [2010] NSWSC 550 and the analysis therein of the High Court judgments in Gedeon v Commissioner of the New South Wales Crime Commission; Dowe v Commissioner of NSW Crime Commission [2008] HCA 43; (2008) 236 CLR 120 at 139; Corporation of the City of Enfield v Development Assessment Commission [2000] HCA 5; (2000) 199 CLR 135; and Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355. I also refer to the judgment of the New South Wales Court of Appeal in Timbarra Protection Coalition Inc v Ross Mining NL & Ors [1999] NSWCA 8; (1999) 46 NSWLR 55 at [37]-[49] and I adhere to the analysis at [34]-[35] and [49], [54]-[55], [65], [70]. In the Court of Appeal in QBE Insurance (Australia) Ltd v Miller [2013] NSWCA 442, the Court (Basten JA with whom Ward JA and Young AJA agreed) discussed the matter and stated:
"[17] If it is the state of satisfaction of the officer which is the precondition to referral, that satisfaction can be reviewed for relevant legal error. On the other hand, if the precondition is the proper characterisation of the material relied on, then the aggrieved party can invite a judge to determine, in judicial review proceedings, whether or not that precondition is satisfied. It is sometimes said that each of these approaches involves a "jurisdictional fact", a categorisation adopted by Gummow J in Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611; [1999] HCA 21 at [130]. However, where the precondition is the state of satisfaction of an officer, the appellation "jurisdictional fact" is misleading. To point up the difference, where the precondition depends on the existence of primary facts, the descriptor of "objective facts" is used, although this merely means that the facts must be established to the satisfaction of the reviewing court, on the evidence before it, regardless of the opinion of the decision-maker: see Timbarra Protection Coalition Inc v Ross Mining NL (1999) 46 NSWLR 55; [1999] NSWCA 8 at [41] (Timbarra Protection Coalition) per Spigelman CJ; D'Amore v Independent Commission Against Corruption (2013) 303 ALR 242; [2013] NSWCA 187 at [241] (D'Amore).
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[29] QBE did not dispute that the question was ultimately one of statutory construction, nor that inconvenience (or disfunctionality in the language of Aronson and Groves, Judicial Review of Administrative Action, 5th ed, Law Book Co, 2013, p [4.560]) was a powerful consideration: Woolworths Ltd v Pallas Newco Pty Ltd (2004) 61 NSWLR 707; [2004] NSWCA 442 at [63] per Spigelman CJ; Timbarra Protection Coalitionat [91]; Warehouse Group (Australia) Pty Ltd v Woolworths Ltd (2005) 141 LGERA 376; [2005] NSWCA 269 at [134]-[135]. On the other hand, QBE noted that there were seminal cases in which, despite inconvenience and the need to make evaluative judgments, the courts had found a statutory intention to create jurisdictional facts, including the decision in Corporation of the City of Enfield v Development Assessment Commission (2000) 199 CLR 135; 169 ALR 400; [2000] HCA 5.
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[31] It has long been accepted that matters requiring evaluative judgment are likely to be intended by parliament to be determined, subject to ensuring compliance with legal parameters, by the repository of the power: Australian Heritage Commission v Mount Isa Mines Ltd (1997) 187 CLR 297; 142 ALR 622. If the statutory preconditions involved questions of law, which is not the present case, a different presumption might arise: Plaintiff M70/2011 v Minister for Immigration and Citizenship (Malaysian declaration case) (2011) 244 CLR 144;[2011] HCA 32 at [116] per Gummow, Hayne, Crennan and Bell JJ. A further consideration in the present case is that control of the medical assessment process has been largely, though not entirely, removed from the trial court. If it were thought appropriate to review the findings of the proper officer under s 62, on the merits of the application, one might have expected that function to be conferred on the prospective trial court. The complaint of failing to refer the application for further medical assessment is not far from a complaint of procedural unfairness which, if made good, would entitle the trial court to reject a certificate, if that course were necessary to prevent substantial injustice: s 61(4).
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[36] Once it is accepted that the characterisation of the information is a matter to be considered in the first instance by the proper officer and not one to be determined by this court afresh on a judicial review application, the review proceedings are limited to determining whether the proper officer's opinion has been properly formed according to law: Buck v Bavone (1976) 135 CLR 110 at 118-19; per Gibbs J; D'Amoreat [220]. The critical question is thus "whether the determination was irrational, illogical and not based on findings or inferences of fact supported by logical grounds": Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12; 78 ALD 224; 78 ALJR 992; [2004] HCA 32 at [38]; per Gummow and Hayne JJ. Further, as explained by Latham CJ in R v Connell; Ex parte Hetton Bellbird Collieries Ltd (No 2) (1944) 69 CLR 407 at 432:
If the opinion which was in fact formed was reached by taking into account irrelevant considerations or by otherwise misconstruing the terms of the relevant legislation, then it must be held that the opinion required has not been formed. In that event the basis for the exercise of power is absent, just as if it were shown that the opinion was arbitrary, capricious, irrational, or not bona fide.
[37] Such standards set the jurisdictional parameters of the power conferred on the officer. QBE also relied upon error of law on the face of the record as a basis for setting aside the determination of the proper officer. That approach involved a number of propositions which were not adequately explored. For example, it assumed that the "record" to be reviewed for legal error included all of the material before the proper officer, together with proper officer's reasons. So far as the reasons were concerned, counsel called in aid s 69(4) of the Supreme Court Act which provides that "the face of the record includes the reasons expressed by the court or tribunal for its ultimate determination". However, the proper officer was clearly not a "court" for the purposes of the section and there was no discussion as to whether she was properly to be characterised as a "tribunal": compare Masters v McCubbery [1996] 1 VR 635, dealing with the equivalent provision in the Administrative Law Act 1978 (Vic), which has a definition of "tribunal". Nor was attention paid to the scope of the phrase "ultimate determination". When pressed, counsel for QBE submitted that it might not be necessary to rely on s 69(4) and that the common law would recognise the application by QBE, together with the attached documentation and the reasons of the proper officer, into which the decision was incorporated, as constituting the "record". The cases relied upon, however, included Craig v South Australia (1995) 184 CLR 163; (dealing with an inferior court, but discussing tribunals) and R v Northumberland Compensation Tribunal; Ex parte Shaw [1952 1 All ER 122; [1952] 1 KB 338 (dealing with a statutory tribunal). Further consideration is required in order to determine how these principles apply to the officer of an authority performing a gateway function in filtering applications for further assessment. If the requirement that there be a "record" is to be ignored or deprived of content, all administrative decisions will be reviewable for any kind of error of law. Whether or not that approach should be adopted as a matter of policy, it is not the current basis for judicial review under s 69."
33I return then to judgment of the High Court in FTZK. FTZK was an unusual judgment in that it involved the Tribunal stating a number of conclusions, none of which expressly dealt with the criterion by which the Tribunal was required to measure the status of the appellant. There are comments of the High Court that, without full analysis, seem to apply the criminal standard of proof, namely whether an inference arises inconsistent with the conclusion reached by the Tribunal. However the key to the understanding of those aspects, in my view, is derived from the comments of Hayne J at [39] in which his Honour describes the factors, normally referred to as consciousness of guilt issues, in the following terms:
"[39] As already indicated, none of the three other factors relied on by the Tribunal could, in the circumstances of this case, logically support the conclusion which the Tribunal reached. Each of those factors was as consistent with the appellant's innocence of the crimes alleged as it was with his guilt. Each could support the conclusion which the Tribunal reached only if, considered separately or in conjunction with other matters, the appellant, by that conduct, impliedly admitted guilt of the crimes alleged. But once it is recognised that the appellant was found to have a well-founded fear of persecution for a Convention reason, his departure from China, his telling lies to obtain the first visa he obtained and his telling lies or giving evasive testimony in connection with his application for a protection visa are as readily explained by his desire to escape from China for innocent reasons as they would be by a desire to run away from the scene of a crime..."
34The issue of criminal conduct was relevant to the determination of the test to be applied by the Tribunal, as Hayne J makes clear. The question answered by the High Court was not whether a reasonable inference inconsistent with guilt was available, but, rather, whether the inference inconsistent with guilt was as available as the inference consistent with guilt. This is, to use the term of Sir Frederick Jordan CJ, two inferences that are "equipoised": Carr v Baker (1936) 36 SR (NSW) 301 at 306-307. Therefore, the judgment in FTZK does not apply a different test or standard of proof than its predecessors.
35As a consequence of the foregoing, for the plaintiff to succeed in these proceedings, the plaintiff must show a jurisdictional error (including denial of procedural fairness) or an error of law on the face of the record, which includes the reasons for the ultimate determination (assuming for present purposes that ICAC is a court or tribunal).
36Thus, insufficiency of evidence, which was relied upon at great length by the plaintiff, does not give rise to a successful judicial review in this Court, unless the evidence is so insufficient as to amount to no evidence of a fact or unless a conclusion of fact is because of the insufficiency, illogical or irrational. It is insufficient for this Court to come to a conclusion, if it were so minded, that it would be different to the conclusion of ICAC, except in the circumstances just mentioned. The evaluation of evidence is a matter for ICAC.
37One other matter should be the subject of comment. Much attention was paid to the evidence before ICAC. To the extent that this attempted to go beyond the reasons given by ICAC for its conclusions, it would seem, prima facie, to be an inappropriate attempt at merits review and to seek to have the Court slide into material that is inappropriate to consider in determining whether error of law has been disclosed.
38Given that the parties have paid little attention to this aspect, it is inappropriate that I decide the matter on that basis and I will deal with the matter as it has been argued.