State of New South Wales v Lawrence

Supreme Court of NSW|2019-08-19|Before: Fullerton J

Judgment

HER HONOUR: On 30 July 2019, in advance of the preliminary hearing of a summons in which the State of New South Wales ("the State") seeks both interim and final relief under the Terrorism (High Risk Offenders) Act 2017 (NSW) ("the Act"), the defendant to that summons, Tukiterangi Lawrence, gave notice of a matter said to arise out of the Commonwealth Constitution ("the Constitution") involving its interpretation within the meaning of s 78B of the Judiciary Act 1903 (Cth).

The Act - an overview

The primary object of the Act is to "provide for the extended supervision and continuing detention of certain offenders posing an unacceptable risk of committing serious terrorism offences so as to ensure the safety and protection of the community" (s 3 of the Act). A "serious terrorism offence" is defined in s 4 of the Act as an offence against Part 5.3 of the Criminal Code Act 1995 (Cth) for which the maximum penalty is 7 or more years of imprisonment.
In addressing the primary object of the Act the legislation provides for this Court, on the application of the State, to make an extended supervision order ("ESO") and an interim supervision order ("ISO") under Part 2 of the Act and a continuing detention order ("CDO") and an interim detention order ("IDO") under Part 3 of the Act in respect of "eligible offenders".
An "eligible offender" is defined in s 7 of the Act to mean a person who is 18 years of age or older and who is serving a sentence of imprisonment for a NSW indictable offence or who is supervised or detained under the Act after serving that sentence. The Act makes provision for ESOs, ISOs, CDOs and IDOs to be made in respect of an eligible offender where he or she is a "convicted NSW terrorist offender" (as defined in s 8), a "convicted NSW underlying terrorism offender" (as defined in s 9) or a "convicted NSW terrorism activity offender" (as defined in s 10) collectively referred to as "a terrorism offender".
An eligible offender under ss 8 and 9 comprehends a person serving a sentence, or continuing to be supervised or detained under the Act after serving a sentence of imprisonment for membership of a terrorist organisation (as defined in s 8) contrary to s 310J of the Crimes Act 1900 (NSW), or where the sentence of imprisonment was imposed for a "serious offence" which occurred in a "terrorism context" (as defined in s 9(3)).
An eligible offender who is a "convicted NSW terrorism activity offender" under s 10 of the Act comprehends a person who is serving a sentence, or continuing to be supervised or detained under the Act after serving a sentence of imprisonment, for a New South Wales indictable offence and any of the following apply in respect of the offender: (i) the offender has at any time been subject to a control order; or (ii) the offender has at any time been a member of terrorist organisation (as defined in the Commonwealth Criminal Code); or (iii) the offender is making or has previously made any statement advocating support for any terrorist act (which has the same meaning is in the Commonwealth Criminal Code) or violent extremism (or is carrying out or has previously carried out any activity with the same objective); or (iv) the offender has or previously had any personal, business association or other affiliation with any person, group of persons or organisation that is or was advertising support for any terrorist act or violent extremism. Sections 10(1A)(a) and (b) provide a non-exhaustive list of what may amount to advocating support for a terrorist act or violent extremism which may be invoked in rendering a person an "eligible offender" under s 10, irrespective of whether that person has been convicted of any offence for the conduct concerned, whether in Australia or elsewhere. I note that for the purposes of the preliminary hearing in respect of the summons filed on 14 June 2019, the defendant conceded he was a "convicted NSW terrorism activity offender" (see State of New South Wales v Lawrence (Preliminary) [2019] NSWSC 1101).
Section 11 sets out a range of matters which the Court may take into account in determining whether a person is an eligible offender under ss 9 and 10, including "any relevant terrorism intelligence" (as defined in s 4 of the Act); the results of any assessment prepared by a qualified psychiatrist or other relevant expert as to the offender's history of or patterns in behaviour; "any report prepared by Corrective Services NSW, the NSW Police Force or a prescribed terrorism intelligence authority concerning the offender and the offender's associates and affiliations"; and "information indicating that current or former associates of the offender have been, or are involved in terrorism activities".
Section 12(1) provides that the State may apply for a declaration that a person is a terrorism offender (that is, an eligible offender under ss 8,9 or 10) for the purposes of the Act. An application for a declaration may be made before application is made for an ESO or CDO in respect of the person (but only during the period in which an application for an ESO or CDO might be made as provided for in ss 23 and 37) or at any time while an application for such an order in respect of the person is pending. Section 12(3) provides that the Court "may" make the declaration "if satisfied" that the person is a terrorism offender. A declaration remains in force until it expires - which will occur 15 months after the declaration is made, or if an application for an ESO or CDO is not finally determined within that period, when the application is finally determined, or until it is revoked under s 12(7). The Court may revoke a declaration on the application of the State or the person in respect of whom it is made.
Section 12(8) provides that the effect of a declaration is that, whilst it is in force, the State is not required to establish that the person is an eligible offender or a terrorism offender for the purposes of proceedings under Part 2 or 3 of the Act.
An appeal to the Court of Appeal lies from any determination of the Court to make, or refuse to make, a declaration under s 12. The appeal is by way of the rehearing under s 75A of the Supreme Court Act 1970 (NSW).
An application for an ESO or a CDO under Parts 2 and 3 of the Act must be served on the eligible offender within 2 business days after the application is filed or within such further time as the Court may allow (ss 24 and 38). Subject to information to be dealt with as "terrorism intelligence", as defined and discussed further below at [35], the State must disclose to the eligible offender such documents, reports and other information as are relevant to the proceedings (whether or not it is intended to be tendered in evidence) as soon as practicable.
Sections 24(5) and 38(5) provide that if, following a preliminary hearing, the Court is "satisfied that the matters alleged in the supporting documentation would, if proved" justify the making of an ESO or a CDO, the Court must make orders appointing two qualified psychiatrists and/or registered psychologists to conduct examinations of the eligible offender, to furnish the reports to the Court and make an order directing the offender to attend the examinations. If the Court is not so satisfied, the Court must dismiss the application. (For the purposes of the preliminary hearing, the defendant conceded that the matters in s 24(5) were established but argued that the application was premature. That argument was rejected - see State of New South Wales v Lawrence (Preliminary) [2019] NSWSC 1101).
The Court may only make an ESO or a CDO if the matters in ss 20 and 34 are satisfied. Relevantly, the Court must be satisfied that the offender is a terrorism offender and be satisfied "to a high degree of probability that the offender poses an unacceptable risk of committing a serious terrorism offence if not kept under [supervision or detention] under the order". "Serious terrorism offence" is defined in s 4 of the Act to mean an offence against Part 5.3 of the Commonwealth Criminal Code for which the maximum penalty is 7 or more years of imprisonment. Sections 21 and 35 provide that the Court is "not required to determine that the risk of an eligible offender committing a serious terrorism offence is more likely than not in order to determine that there is an unacceptable risk of the offender committing such an offence".
The Court may determine an application for an ESO by making that order or dismissing the application, and may determine an application for a CDO by making an ESO, a CDO or dismissing the application. In deciding whether to make an ESO or a CDO, the safety of the community is the paramount consideration. The Court "must also have regard" to the matters listed in ss 25(3) and 39(3) of the Act "in addition to any other matter it considers relevant".
Sections 31(1) and 48(1) of the Act provide that the Court may vary or revoke at any time an order made under Part 2 or 3 on the application of the State or the eligible offender. Sections 31(4) and 48(4) provide that for the purpose of ascertaining whether to make an application to vary or revoke an order, the Commissioner of Corrective Services and the Commissioner of Police must provide the Attorney General with a report on an eligible offender at intervals of not more than 12 months.
An appeal to the Court of Appeal lies from any determination of the Court to make, or refuse to make, an order under Part 2 or 3. As with the appeal against a declaration under s 12, the appeal against the making or refusing of an order under Part 2 or Part 3 of the Act is by way of the rehearing under s 75A of the Supreme Court Act.
Section 50, within Part 4 of the Act, provides: Nature and conduct of proceedings (1) Proceedings under this Act (including proceedings on an appeal under this Act) are civil proceedings and, to the extent to which this Act does not provide for their conduct, are to be conducted in accordance with the law (including the rules of evidence) relating to civil proceedings. (2) To avoid doubt, a provision of this Act that provides for a document, report or other information to be admissible in proceedings under this Act despite any Act or law to the contrary does not affect any rule of evidence with respect to the relevance or probative value of the document, report or other information once it is admitted into evidence.
Section 54 of the Act provides that the Act does not affect the right of any party to proceedings under the Act to appear, either personally or by the party's legal representative; to call witnesses and give evidence; to cross-examine witnesses; or to make submissions to the Court on any matter connected with the proceedings.
Part 5 of the Act is headed "Information about eligible offenders".
Division 5.2 of Part 5 concerns requirements and requests for "offender information" which is defined in s 57 to mean "any document, report or other information that relates to the behaviour, beliefs, financial circumstances, or physical or mental condition, of an eligible offender and includes terrorism intelligence about the offender".
Under s 58(1), the Attorney General may, in the circumstances prescribed by the regulations, by order in writing, require a person to provide "offender information".
Section 61 provides that any document, report or copy thereof provided to the Attorney General under Part 5 is admissible in proceedings under the Act, despite any Act or law to the contrary.
Division 5.3 of the Act concerns information involving "terrorism intelligence", which is defined in s 4 of the Act: terrorism intelligence means information relating to actual or suspected terrorism activity (whether in the State or elsewhere) the disclosure of which could reasonably be expected: (a) to adversely affect the capacity of persons or bodies involved in the prevention of terrorist acts from preventing such acts or the capacity of intelligence agencies (for example, the Australian Security Intelligence Organisation) to carry out their functions, or (b) to prejudice criminal investigations or investigations by intelligence agencies, or (c) to enable the discovery of the existence or identity of a confidential source of information relevant to law enforcement or the functions of intelligence agencies, or (d) to endanger a person's life or physical safety.
The Attorney General or a "prescribed terrorism intelligence authority" (as defined in s 4) may make an application to the Court in any proceeding under the Act for particular information to be dealt with as "terrorism intelligence" in those proceedings.
Section 59A(2) provides that the Court must grant the terrorism intelligence application if the Court is satisfied that the information was provided to the Attorney General under Part 5 and the information is "terrorism intelligence". Under s 59B of the Act, the Court must appoint a "qualified person" to be an independent third party representative for an eligible offender for the purposes of a terrorism intelligence application or in the substantive proceedings (or both) if the eligible offender does not have any legal representatives in the substantive proceedings or if the applicant in the terrorism intelligence application (either the Attorney General or an authority or agency of an Australian jurisdiction that is prescribed by the regulations) requests the Court to take steps to maintain the confidentiality of redacted material. In those circumstances, the independent third party representative is to be allowed access to the relevant information or terrorism intelligence and may make submissions to the Court on behalf of the eligible offender concerning whether the information is terrorism intelligence and the level of access to terrorism intelligence that should be given to the offender.
Section 59C(1) provides that the Court must take steps to maintain the confidentiality of information to which a terrorism intelligence application relates (including steps to receive evidence and hear argument about the information) until the application is determined and, if the terrorism intelligence application is granted, to maintain the confidentiality of the terrorism intelligence in the substantive proceedings (including steps to receive evidence and hear argument about the information in private). The Court may allow a range of forms of access to information or terrorism intelligence in accordance with what the Court considers appropriate, having regard to the nature of the information or intelligence and the degree of risk of disclosure to non-parties by parties and their legal representatives and any other matter the Court considers relevant.
Sections 24(3) and 38(3) provide that the State is not required to disclose a document, report or other information to an eligible offender except in accordance with Division 5.3 (or an order under that section) if the Attorney General or a prescribed terrorism intelligence authority intends to make an application under that Division for it to be dealt with as terrorism intelligence, such an application is pending or the application has been granted.

The defendant's challenge to the Act in its entirety

In meeting the constitutional challenge to the Act as a whole, the State submitted that I would be persuaded by Payne JA's analysis of the HRO Act in Kamm, after identifying substantial similarity between the defining features of that Act and features of the Dangerous Prisoners Act the subject of the High Court's consideration in Fardon, and his Honour's reasoning to the conclusion that the HRO Act was constitutionally valid.
In the State's written submissions advanced to meet the plaintiff's written submissions, five aspects of the analysis by Payne JA were highlighted which, in combination, are relied upon to demonstrate that central features of the HRO Act and its intended operation have a similar operation to the Act under consideration here. Further, the State submitted that the defendant's construction of a large number of provisions within the Act is misconceived, further undermining the defendant's challenge to the Act's constitutional validity.
In the submissions filed in reply, Mr Robinson focused on those features of the Act which he maintained were significantly different from either the HRO Act or the Dangerous Prisoners Act such that neither Kamm nor Fardon dictate the outcome of the defendant's constitutional challenge to the Act. He also sought to distinguish those cases decided by the High Court since Kable which were relied upon by the State as highlighting that Kable was "the high point" of what has since been referred to as the Kable principle.
Before turning to consider the defendant's challenge to the Act focusing on those differences, I propose to deal briefly with the Kable principle and then the State's submission as to how the reasoning in Fardon and Kamm informs the construction of this Act and its constitutional validity.

The Kable principle

The decision of the High Court in Kable established a principle recently restated in Attorney-General (NT) v Emmerson (2014) 253 CLR 393; [2014] HCA 13 at [40] per French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ in the following way: The principle for which Kable stands is that because the Constitution establishes an integrated court system, and contemplates the exercise of federal jurisdiction by State Supreme Courts, State legislation which purports to confer upon such a court a power or function which substantially impairs the court's institutional integrity, and which is therefore incompatible with that court's role as a repository of federal jurisdiction, is constitutionally invalid.
Earlier, in Pompano, Hayne, Crennan, Kiefel and Bell JJ said: 123. … As Gummow J explained in Fardon, the State courts (and the State Supreme Courts in particular) have a constitutionally mandated position in the Australian legal system. Once the notion is rejected, as it must be, that the Constitution "permits of different grades or qualities of justice", and it is accepted that the State courts have the constitutional position that has been described, it follows that "the Parliaments of the States [may] not legislate to confer powers on State courts which are repugnant to or incompatible with their exercise of the judicial power of the Commonwealth" (emphasis added). As Gummow J further pointed out, and as is now the accepted doctrine of the Court, "the essential notion is that of repugnancy to or incompatibility with that institutional integrity of the State courts which bespeaks their constitutionally mandated position in the Australian legal system". 124. Three further points must be made about this "essential notion". First, "the critical notions of repugnancy and incompatibility are insusceptible of further definition in terms which necessarily dictate future outcomes". Second, the repugnancy doctrine "does not imply into the Constitutions of the States the separation of judicial power mandated for the Commonwealth by Ch III". Third, content must be given to the notion of institutional integrity of the State courts, and that too is a notion not readily susceptible of definition in terms which will dictate future outcomes. 125. Something more must be said about the second and third points. Independence and impartiality are defining characteristics of all of the courts of the Australian judicial system. They are notions that connote separation from the other branches of government, at least in the sense that the State courts must be and remain free from external influence. In particular, the courts cannot be required to act at the dictation of the Executive. In this respect, clear parallels can be drawn with some aspects of the doctrines that have developed in relation to federal courts. But because the separation of judicial power mandated by Ch III does not apply in terms to the States, and is not implied in the constitutions of the States, there can be no direct application to the State courts of all aspects of the doctrines that have been developed in relation to Ch III. More particularly, the notions of repugnancy to and incompatibility with the continued institutional integrity of the State courts are not to be treated as if they simply reflect what Ch III requires in relation to the exercise of the judicial power of the Commonwealth.
French CJ and Kiefel J had previously explained the concept of a court's "institutional integrity" and summarised the effect of the Kable principle in Wainohu v New South Wales (2011) 243 CLR 181; [2011] HCA 24 at [44]-[46]: 44. … 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. As explained later, it is also a defining characteristic of a court that it generally gives reasons for its decisions. … … 46. … Application of the Kable principle has the result that the State legislatures cannot validly enact a law which would effect an impermissible executive intrusion into the processes or decisions of a court; which would authorise the executive to enlist a court to implement decisions of the executive in a manner incompatible with that court's institutional integrity; or which would confer upon any court a function (judicial or otherwise) incompatible with the role of that court as a repository of federal jurisdiction. (citations omitted)
In Pompano, at [127], Hayne, Crennan, Kiefel and Bell JJ noted the three cases in which Kable has been applied to invalidate particular statutory provisions, namely, International Finance Trust Co Ltd v New South Wales Crime Commission (2009) 240 CLR 319; [2009] HCA 49, South Australia v Totani (2010) 242 CLR 1; [2010] HCA 39 and Wainohu, and the reasons why those cases were decided: Kable 128. The Community Protection Act 1994 (NSW) empowered the Supreme Court of New South Wales to order the detention of a named person in prison for a specified period if satisfied on reasonable grounds that he was more likely than not to commit a serious act of violence and that it was appropriate for the protection of a particular person, or the community generally, that he be held in custody. A majority of this Court held the Act invalid. It is possible to discern several different strands in the reasoning in support of that conclusion but subsequent decisions of this Court demonstrate that, as already mentioned, the principle established in Kable is to be understood as founded on the notions of repugnancy to and incompatibility with institutional integrity. 129. For present purposes it is important to recognise that the conclusion in Kable proceeded from consideration of the whole of the Act in question and all of the features which it presented. In Fardon, Gummow J described those features as including "the apparent legislative plan to conscript the Supreme Court of New South Wales to procure the imprisonment of the appellant by a process which departed in serious respects from the usual judicial process". In Kable, Gaudron J described the processes for which the Community Protection Act provided as not involving "the resolution of a dispute between contesting parties as to their respective legal rights and obligations" and as directing, in some circumstances, the Supreme Court to decide what order should be made under that Act "having regard to material which would not be admissible as evidence in legal proceedings". But neither of those features of the Community Protection Act can be considered separately from its other features and, in particular, its conscripting the Supreme Court to procure the imprisonment of a named person. International Finance 130. A majority of the Court held s 10 of the Criminal Assets Recovery Act 1990 (NSW) ("the CAR Act") invalid. The CAR Act permitted a law enforcement authority to seek from the State Supreme Court, without notice to anyone, an order preventing any dealing with specified property. Section 10 provided that the Supreme Court must make that restraining order if a law enforcement officer suspected that the person who owned the property had committed any of a broad range of crimes, or the officer suspected that the property was derived from criminal activity, and the Court considered that there were reasonable grounds for the suspicion. 131. The central point which divided the Court was whether, and to what extent, the CAR Act prevented the Supreme Court from reviewing and reconsidering an order made ex parte under that section for what, in effect, was the sequestration of property. The majority construed the Act as excluding that power and held that s 10 thus required the Supreme Court to make ex parte orders for the sequestration of property upon suspicion of wrongdoing, for an indeterminate period, with no effective curial enforcement of the duty of full disclosure on an ex parte application where the only possibility of release from the sequestration was upon proof of a complex negative proposition. Two members of the majority described s 10 as engaging "the Supreme Court in activity which is repugnant in a fundamental degree to the judicial process as understood and conducted throughout Australia". Totani 132. The Serious and Organised Crime (Control) Act 2008 (SA) ("the SOC Act") stated its objects as including the disruption and restriction of the activities of organisations involved in serious crime. It provided for the State Attorney‑General, on application by the Commissioner of Police, to make a declaration in relation to an organisation if satisfied that members of the organisation associated for the purpose of organising, planning, facilitating, supporting or engaging in serious criminal activity. Section 14(1) of the SOC Act provided that, on application by the Commissioner of Police, the Magistrates Court of South Australia must make a control order against a person if satisfied that the person is a member of a declared organisation. 133. By majority, this Court held s 14(1) invalid because it authorised the Executive to enlist the Magistrates Court to implement the decisions of the Executive in a manner repugnant to or inconsistent with its continued institutional integrity. Whether and why an organisation should be declared was a matter for the Executive; the only question to be determined by the Magistrates Court was whether a person was a member of a declared organisation. As Crennan and Bell JJ put it, the SOC Act, and s 14(1) in particular, had "the effect of rendering the [Magistrates] Court an instrument of the Executive". Wainohu 134. The long title of the Crimes (Criminal Organisations Control) Act 2009 (NSW) ("the CCOC Act") said that it was enacted "to provide for the making of declarations and orders for the purpose of disrupting and restricting the activities of criminal organisations and their members". It provided for judges of the Supreme Court of New South Wales who gave their consent to be declared to be eligible judges for the purposes of Pt 2 of the CCOC Act. It empowered the Commissioner of Police to apply to an eligible judge for an order declaring an organisation to be a declared organisation for the purposes of the CCOC Act. 135. A majority of this Court held the CCOC Act invalid because it exempted eligible judges from any duty to give reasons in connection with the making or revocation of a declaration of an organisation as a declared organisation. It was this feature of the CCOC Act, rather than any more general question about whether the task performed by an eligible judge was performed as persona designata, or whether the task could be characterised as judicial or administrative, that was critical to the conclusion that the CCOC Act was repugnant to or incompatible with the continued institutional integrity of the Supreme Court.

The decisions in Fardon and Kamm

In contrast to the ad hominem legislation in Kable, which purported to authorise this Court to order the preventive detention of Mr Kable, and only Mr Kable, without any breach of the law by him being alleged or any adjudication of his criminal guilt, the High Court found in Fardon that the Dangerous Prisoners Act was legislation of general application authorising the continued detention or supervised release of serious sex offenders who were a "serious danger to the community" where the Supreme Court was satisfied that there was an "unacceptable risk that the prisoner [would] commit a serious offence". The plurality considered that the adjudicative process required in making supervision or detention orders under that Act supported the maintenance of the institutional integrity of the Court since it could be performed independently of any instruction, advice or wish of the legislative or executive branches of government (Fardon at [19]-[22] per Gleeson CJ, at [34] and [41]-[44] per McHugh J, at [79]-[86] and [100]-[117] per Gummow J and at [219]-[234] per Callinan and Heydon JJ).
The Court concluded that despite the Dangerous Prisoners Act investing the Court with powers which might be thought to be at odds with the traditional judicial process (largely because the exercise of the power to detain a person after their sentence had expired impinged upon that person's liberty) it did not compromise the institutional integrity of the Court to the extent that it affected the Court's capacity to exercise federal jurisdiction impartially and independently. At [19], Gleeson CJ noted that there was "nothing to suggest that the Supreme Court is to act as a mere instrument of government policy. The outcome of each case is to be determined on its merits". Similarly, at [34] McHugh J concluded that there is nothing in the Act which "suggests that the jurisdiction conferred is a disguised substitute for an ordinary legislative or executive function. Nor is there anything in the Act … that might lead to the perception that the Supreme Court, in exercising its jurisdiction under the Act, is acting in conjunction with, and not independently of, the Queensland legislature or executive government".
In Kamm, Beazley P at [40] with whom Bathurst CJ agreed, considered that the HRO Act had the same features as the Dangerous Prisoners Act which was held in Fardon not to infringe the constitutional integrity of a State court exercising federal jurisdiction. Payne JA, with whom Bathurst CJ also agreed, concluded that the HRO Act did not infringe the Kable principle for "essentially the same reasons" as given in Fardon, as it did not undermine any of the essential characteristic of a court exercising federal jurisdiction, nor attack the institutional integrity of a State court as an independent and impartial tribunal. Payne JA identified a number of features of the Dangerous Prisoners Act which were, in his view, critical to the High Court's determination that that Act was constitutionally valid. It is useful to refer to some of them.
First, s 13 of the Dangerous Prisoners Act required the court to reach a state of satisfaction that the prisoner posed "a serious danger to the community" by the exercise of discretion having regard to a list of matters relevant to the determination of that state of satisfaction. Payne JA considered that s 5B of the HRO Act also required the Court, in the exercise of its discretionary judgment and having regard to a non-exhaustive list of matters in s 9(3), including inter alia psychiatrist reports and evidence of an offender's participation in rehabilitation programs, to reach a state of satisfaction that an offender posed "an unacceptable risk of committing a serious sex offence" if he or she was "not kept under supervision". As his Honour emphasised at [119], even where that test is satisfied the Court retains the ultimate discretion as to whether or not to make an order for the extended supervision or continued detention of the offender and, if so, the content of that order.
In my view, there is nothing in the construction of ss 20, 25(1), 34 and 39(1) of the Act under consideration here that allows for any different conclusion, since it is clear beyond question that the statutory language in each provision is permissive and not mandatory.
Secondly, it was important in Fardon that the Dangerous Prisoners Act contained provisions which allow for any orders made under the Act to be reviewed. Payne JA noted at [121]-[122] that under s 13 of the HRO Act, the Court could at any time vary or revoke an ESO or an ISO and that under s 19(1) similar powers applied to a CDO and an IDO. Sections 13(2) and 19(2) also required the provision of a report by the Commissioner of Corrective Services to the Attorney General at intervals of not more than 12 months about matters relevant to whether to vary or revoke an order.
Sections 31(1) and (4) and 48(1) and (4) of the Act under consideration here are in comparable terms.
Thirdly, the character of the judicial processes imposed on the Court was regarded as important in Fardon, including that the onus of proof is on the Attorney General and that the rules of evidence applied. Whilst there was no express reference to the onus of proof in the HRO Act, Payne JA regarded it as "tolerably clear" from the scheme of the HRO Act that the State had the onus of proving that an offender posed an "unacceptable risk" of committing a serious sex offence if he or she was not kept under supervision if orders for the offender's continuing supervision or detention were to be made. Mr Robinson did not advance the submission that there was any reason to doubt that upon a proper construction of this Act and its operation that that the State bears the onus of proving that a person is an "eligible offender" as defined in the Act; that he or she is "terrorism offender" under either ss 8,9 or 10 of the Act and that if that person is to be the subject of extended detention or supervision, the Court must be satisfied, to a high degree of probability, that they pose an unacceptable risk of committing a serious terrorism offence if not kept under extended supervision or continued detention (see the test in ss 20(1)(d) and 34(1)(d)).
Additionally, the analysis applied by Payne JA to HRO Act in Kamm satisfied him that the ordinary rules of civil procedure applied, including the rules of evidence, and there was nothing to suggest that this Court was to act, let alone has ever acted, as a mere instrument of government policy. Rather, that Act operated so that the outcome of each case was determined on its merits. It will be necessary to consider later how the Act under consideration here provides for the rules of evidence to apply. The defendant gave particular emphasis to ss 50(1), 50(2) and 61 in challenging the constitutional validity of the Act.
Fourthly, it was important in Fardon that the Dangerous Prisoners Act provided that hearings were held in public and in accordance with ordinary judicial process. In the Act under consideration here, provision is made under s 59C(1)(b) for the Court to conduct a private hearing when determining a "terrorism intelligence application", and to receive oral victim statements in closed court pursuant to s 51 unless the person giving the statement consents to the offender being present. All other hearings under the Act are held in public and in the presence of the defendant unless the defendant elects otherwise.
Fifthly, it was regarded as important in Fardon that the Dangerous Prisoners Act provided a right of appeal. As Payne JA noted at [128] in Kamm, s 22 of the HRO Act contained an equivalent right of appeal. Section 53 of this Act provides for an extension of the right of appeal by providing for an appeal to the Court of Appeal by way of a hearing de novo from any determination to make or refuse to make a declaration under s 12 or an order under Parts 2 or 3.
In short, in my view, although there are some contextual differences between the operation of the Act and the HRO Act - such as provision for the State to apply to the Court for a declaration that a person is a "terrorism offender" under s 12 and the inclusion of the "terrorism intelligence" provisions in Part 5, Division 5.3 - the Act has the same fundamental features as the HRO Act and the Dangerous Prisoners Act. Importantly, perhaps even more fundamentally, the application by the State for orders for an eligible offender's continued detention or extended supervision is to be determined on its merits according to the weight that is afforded to the evidence on that application in the exercise of the Court's ultimate determination as to whether the relief sought by the State should be granted. The ordinary rules of civil procedure also apply, including the inherent jurisdiction of the Court which is preserved in s 56 of the Act and an order for proceedings to be stayed where justice dictates a remedy of that kind.

The defendant's submissions on Kamm and Fardon

Despite the appearance of some correspondence between the legislation considered in Fardon and Kamm and this Act, the defendant seeks to distinguish this Act by what were described by Mr Robinson as such significant points of difference that the conclusion of both the Court of Appeal and the High Court that the HRO Act and the Dangerous Prisoners Act were constitutionally valid is distinguishable, leaving the way clear to declare this Act constitutionally invalid.
It is those features, principal among them being the terrorism intelligence provisions in Part 5 of the Act, and what was said by Mr Robinson to be the selective modification of the application of the rules of evidence having regard to the construction of ss 50(1) and 61, which in his submission, when combined in one single legislative scheme, operate to impair the Court's institutional integrity by requiring it to depart to a significant degree, from the methods and standards which characterise the exercise of judicial power.
The significant differences between the legislative schemes are said to be as follows: 1. There is no equivalent provision in the HRO Act or the Dangerous Prisoners Act to s 12 of the Act, which permits the State to bring preliminary proceedings for a declaration that a person is an eligible offender, including on an ex parte basis. The defendant submitted that this express power detracts from the Court's institutional integrity since, once a declaration under s 12 is in force, the State is relieved of the obligation of proving that a person is an "eligible offender" or a "terrorism offender" and, as a consequence, the Court is not required, as an independent and impartial tribunal, to satisfy itself that the criteria in ss 20 or 34 of the Act are met before making an ESO or a CDO. Instead, the Court becomes an instrument of executive policy. The further submission was advanced that a Court would not necessarily revoke a declaration made under s 12 (despite the express power in s 12(7) to do so) because to do so would be to defeat the legislature's "deliberate legislative strategy to extend the time for applying for a final order". 2. There is no equivalent provision in either the HRO Act or the Dangerous Prisoners Act to s 11 of the Act. That section entitles the Court to take into account a range of matters (and documents) emanating from a number of sources when determining whether an eligible offender is a "convicted New South Wales underlying terrorism offender" under s 9 or a "convicted New South Wales terrorism activity offender" under s 10 without the need for that material to comply with the rules of evidence. 3. Section 25(2) of the Dangerous Prisoners Act provides that the Attorney-General's duty of disclosure is the same as the prosecution's duty of disclosure in a criminal proceeding. Section 7(2) of the HRO Act requires the State to disclose all relevant material to the offender, whether or not it intends to tender the material in evidence, as soon as practicable after making the application, with the exception of certain victim statements (s 21A(6)). The equivalent provisions in the Act (ss 24 and 38) are diluted by providing that the State's disclosure obligations will be satisfied if an index to documents is provided and "access" to the information is requested (ss 24(2A), 38(2A)). The disclosure obligations are then said to be further diluted by providing that disclosure of certain information is not required at all, including where the Attorney General intends to make a terrorism intelligence application in relation to that information (ss 24(3) and 38(3)); 4. Neither the HRO Act nor the Dangerous Prisoners Act contain a provision the equivalent of ss 50(2) and 61 of the Act which allow for a document, report or other information to be admitted into evidence without the need to meet the admissibility requirements under the Evidence Act; 5. Neither the HRO Act nor the Dangerous Prisoners Act contain a provision corresponding to s 52(1) of the Act, which permits the Court to allow a prescribed terrorism intelligence authority to make submissions to the Court. Section 52(1) of the Act detracts from the appearance of the Court's impartiality, by giving the Court power to allow an agency with interests which are opposed to those of the defendant, to make submissions, in addition to those made by the State, against the defendant. 6. Neither the HRO Act nor the Dangerous Prisoners Act have an equivalent to Part 5 of the Act. That Part contains the Act's terrorism intelligence provisions and provides for an application by the Attorney General that information be declared "terrorism intelligence" with consequences for the use of that information in the proceedings, "despite any Act or law to the contrary" (s 61).

The State's response

The State responded to some but not all of those submissions in its written submissions. In oral submissions additional matters were dealt with in a summary way.
The State submitted that the defendant's submissions in (1) in [62] above concerning the operation of s 12 are misconceived. In any event, the State submitted the defendant's complaint is hypothetical when no application has been made in this case for a declaration under s 12, much less an application mounted on an ex parte basis.
The State recognised that it is not required in proceedings for substantive relief under the Act to prove that the defendant is an eligible offender or a terrorism offender whilst ever a s 12 declaration is in force. However, the State pointed to the fact that a declaration can only be made under s 12 where the Court is satisfied under s 12(3) that a person is a "terrorism offender" which, by virtue of the definitions of "convicted NSW terrorist offender", "convicted NSW underlying terrorism offender" and "convicted NSW terrorism activity offender" in ss 8, 9 and 10 respectively (collectively a "terrorism offender"), also require the State to satisfy the Court that the person is an "eligible offender".
In those circumstances, it seems to me the defendant's submission that s 12 operates in such a way as to enlist the Court to implement decisions of the Executive is not only without substance but, as the express language of the section makes clear, it is for the Court (on the application of State) to determine for itself whether it is satisfied, on the balance of probabilities, that the evidence supports a finding that the person is a "terrorism offender" before determining whether the particular form of substantive relief sought by the State is granted. Additionally, the Court has power under s 12(7) to revoke a declaration if it considers that the preconditions to making a declaration under s 12(3) are no longer satisfied, a clear exercise of power wholly independent of the Executive.
The State was also critical, and in my view justifiably so, of the defendant's allied submission that the Court would allow itself to be used by the State, or for that matter that the State had deliberately drafted legislation with any intention to use court processes to extend the time for the making of an application under the Act. In my view, that is not a submission which has any foundation in fact or law. It was not a submission that ought to have been pressed.
As to the fact that an application under s 12 may be made ex parte, while recognising that the power exists, the State submitted that it is difficult to conceive of the circumstances in which it might be necessary to exercise that power. In this context, the State relied on the observation of Heydon J in Wainohu at [152] that it is "wrong to approach an allegation that a particular legislative provision is invalid by identifying an operation of that legislative provision which may be theoretically possible but in fact is extremely unlikely". Even so, as the State points out, the fact that a provision authorises an order to be made on an ex parte basis does not, of itself, infringe the Kable principle.
The State submitted that the defendant's analysis of s 11 in (2) above at [62] by providing that the Court "may" take a variety of classes of information into account for the purposes of making the relevant determination is misconceived where there is nothing, express or implied, in s 11 that would operate to displace the operation of s 50(1) of the Act which, in its terms, provides that the rules of evidence apply to proceedings conducted under the Act.
It will be necessary to return to consider the operation of s 50(1) in more detail both in the context of the operation of s 61 and more generally, since it is the defendant's submission that s 61 operates to overcome the strictures of the Evidence Act where documents or reports provided to the Attorney General under Part 5 of the Act are used in proceedings under the Act, and that, properly construed, s 50(1) also operates to selectively modify the application of the rules of evidence in the conduct of proceedings under the Act, including, but not limited to, when the Court is ultimately determining whether an ESO or a CDO should be made.
I do not regard the defendant's submissions in (3), (4), (5) or (6) above at [62] as carrying any weight on the question of the constitutional validity of the Act. The fact that the disclosure obligations under this Act differ in very significant respects from the disclosure obligations under the Dangerous Prisoners Act and the HRO Act, reflects the vastly different statutory context in which the Act is intended to operate, and the vastly different considerations that necessarily obtain where "terrorism intelligence" is implicated as part of the materials to which the Court "may" have regard in the making of a determination under s 11 of the Act; where information of that kind is the very subject of a "terrorism intelligence application" under Part 5.3 of the Act (including by allowing for the receipt of submissions from a "prescribed terrorism authority" under s 52(1)), or where such an application is pending or has been granted or as part of the pre-trial procedures for an application for an ESO or CDO.
It seems to me to be obvious that the limits on disclosure in ss 24 and 38, taken together with the operation of s 59C, which obliges the Court to take steps to maintain the confidentiality of information to which a terrorism intelligence application relates, and the additional and express power in s 59F for the Court to make orders "prohibit[ing] or restrict[ing] access to, or the disclosure or publication of, terrorism intelligence" breach of which attracts criminal sanction, follow directly from the definition of "terrorism intelligence" under the Act, namely information relating to actual or suspected terrorism activity (whether in the State or elsewhere) the disclosure of which could reasonably be expected: (a) to adversely affect the capacity of persons or bodies involved in the prevention of terrorist acts from preventing such acts or the capacity of intelligence agencies (for example, the Australian Security Intelligence Organisation) to carry out their functions, or (b) to prejudice criminal investigations or investigations by intelligence agencies, or (c) to enable the discovery of the existence or identity of a confidential source of information relevant to law enforcement or the functions of intelligence agencies, or (d) to endanger a person's life or physical safety.
Where the primary object of the Act is directed to the safety and protection of the community from certain offenders who are assessed as posing an unacceptable risk of committing serious terrorism offences, statutory limits on the disclosure of particular information of a highly sensitive nature to third parties is inevitable if the Court is to be equipped to determine the competing rights of those engaged in proceedings under the Act in accordance with the Act's statutory objects.
In Pompano, at [118], the plurality rejected the submission advanced by the respondent in those proceedings that the revelation of criminal intelligence reasonably suspected of adversely impacting on the public interest was irrelevant to the issue of constitutional validity: 118. … The argument for invalidity asserted that in deciding any dispute a State Supreme Court must always follow an adversarial procedure by which parties (personally or by their representatives) know of all of the material on which the Court is being asked to make its decision. Otherwise, so it was asserted, there would be such a departure from procedural fairness that the institutional integrity of the Supreme Court would be impaired. 119. Several observations must be made about this central proposition. First, it is absolute. Second, because it is absolute, it entrenches a particular form of adversarial procedure as a constitutionally required and defining characteristic of the State Supreme Courts. Third, as will be seen, it seeks to found this result not in any particular constitutional text but in what is said to be the logical consequence of earlier decisions of this Court. 120. Examination of this central proposition, which underpinned the argument for invalidity, will demonstrate that it cannot be adopted.
Similarly, to the extent that an entitlement to access terrorism intelligence that is made available to the State as the moving party for orders under the Act underpins the defendant's case that the Act is constitutionally invalid, it does not carry force.
In any event, as the State pointed out, in circumstances where the plaintiff in proceedings under the Act is not required to disclose material to an eligible offender, including where an application for access to material that might otherwise be the subject of pre-trial disclosure is to be dealt with as "terrorism intelligence", the Act does not allow for any reliance on that material if the Court is determining an application for an ESO or a CDO prior to the Attorney General making a terrorism intelligence application under Part 5 Division 5.3, or its determination, at which time the defendant, his or her legal representatives, or an independent third party will be afforded an opportunity to make submissions in respect of terrorism intelligence (as to which see later at [97]).
Leaving to one side the defendant's further contention that the operation of Part 5 of the Act derogates from the open court principle and the rules of procedural fairness in such significant respects that it infringes Ch III of the Constitution, a submission which I will consider below, that leaves only the operation of ss 50(2) and 61 of the Act to consider. This was the subject of particular focus in the defendant's oral submissions.
Submissions directed to the interrelated operation of these sections were encapsulated within the defendant's broader assertion that the Act operated in such a way that the rules of evidence are selectively applied or modified (or not applied at all) so as to favour the interests of the State, and in that way to impair the Court's impartiality by making it an instrument of executive policy.
Accepting that the rules of evidence are a fundamental feature of the traditional judicial process in which facts are ascertained in an adversarial context, but accepting that those rules may be modified or altered by state legislatures without compromising the institutional integrity of the Court that must administer the legislation (see McHugh J in Fardon at [44]) and without requiring the court to depart from methods and standards which characterise judicial activity (see Nicholas v The Queen (1998) 193CLR 173; [1998] HCA 9 per Hayne J at [251], it remained the defendant's case that the Act alters the rules of evidence in a number of ways and provides for their selective application in other ways such that the appearance of institutional impartiality in the Court and the maintenance of public confidence in its processes is seriously undermined. On that analysis, the defendant submitted that the Act infringed the Kable principle by departing to a significant degree from the methods and standards which have characterised the exercise of judicial power, thereby weakening "confidence in the institutions which comprise the judicial system brought into existence by Ch III of the Constitution" (per Gaudron J in Kable at 108).
The defendant accepts that although s 50(1) purports to provide for the application of the rules of evidence in "proceedings under the Act", s 61, within Part 5 of the Act, operates to override that provision with respect to the admissibility of offender information. Section 61 is in the following terms: Any document or report (or a copy of a document or report) provided to the Attorney General under this Part is admissible in proceedings under this Act despite any Act or law to the contrary. (Emphasis added.)
The State acknowledges that s 61 does operate to alter the rules of evidence in a way not reflected in other legislation it used in its submissions for comparative purposes by the section expressly providing that "offender information" (defined in s 57 to mean "any document report or other information that relates to the behaviour, beliefs, financial circumstances, or physical or mental condition, of an eligible offender, and includes terrorism intelligence about the offender") that the Attorney General has required be provided under s 58 or requested under s 59 is admissible in proceedings under the Act.
The State submitted however that s 61 does not operate, or purport to operate, to require the Court to depart from the methods and standards which characterise judicial activity, where the express words in s 50(2) preserve the Court's function to assess the relevance or probative value of the offender's information if it is admitted into evidence under s 61. Section 50(2) provides as follows: To avoid doubt, a provision of this Act that provides for a document, report or other information to be admissible in proceedings under this Act despite any Act or law to the contrary does not affect any rule of evidence with respect to the relevance or probative value of the document, report or other information once it is admitted into evidence.
In the submission of the State, s 50(2) must be construed to reserve to the Court the function, power and responsibility of deciding whether the full complement of evidence tendered in the proceedings in support of an application, when assessed for its weight and "relevance", establishes, in a particular case, to a high degree of probability that the eligible offender poses an unacceptable risk of committing a serious terrorism offence such as to warrant the making of an ESO or a CDO. Similarly, when at a preliminary hearing the question is whether the supporting documentation would, if proved, justify the making of an ESO or a CDO. In both scenarios, the State submitted, it is clear that the Court retains the ultimate discretion as to whether orders under Parts 2 or 3 should be made.
It appeared to be common ground that s 61 declares that "offender information" is admissible in proceedings under the Act despite the operation of the Evidence Act, and that s 73, which provides for the admission into evidence of an evidentiary certificate issued by the Commissioner of Corrective Services, is to similar effect. It was also uncontroversial that the test of relevance in s 56 of the Evidence Act, namely the extent to which the proposed evidence affects proof of the probability of the fact in issue, is the first hurdle to admissibility, however low that threshold might be. That being the case, for s 50(2) to provide that "a document, report or other information" that is admitted in proceedings because the Act expressly provides for its admission, does not affect "any rule of evidence with respect to the relevance or probative value of the document report or other information" is difficult to construe in any meaningful way. It may be, as Mr Renwick submitted, that the legislature intended that s 50(2) would preserve the operation of the discretions in ss 136 and 137 of the Evidence Act, although were that the case one might have expected express words to that effect. In any event, as Mr Renwick submitted, even if the construction of s 50(2) is somewhat arcane, it does not advance the defendant's challenge to the constitutional validity of the Act as a whole where the Court's overriding discretion to refuse an application for interim or final orders under Parts 2 and 3, or for an interlocutory application under s 12 or under 59A of the Act), remains intact. I accept that submission.
The defendant advanced the further submission that although s 50(1) provides that proceedings under the Act are civil proceedings to be conducted in accordance with the law, including the rules of evidence relating to civil proceedings, the section is expressly subject "to the extent to which the Act does not otherwise provide for the conduct of those proceedings" (emphasis added).
The defendant submitted that on their proper construction, the proceedings under s 11 and under ss 25(3) and 39(3) are intended to be "conducted" referable to a list of matters the Court either may have regard to (the language used in s 11) or must have regard to (the language used in ss 25(3) and 39(3)). The defendant submitted that construed in that way these sections allow for the admission into evidence of material which would otherwise fail the test for admission under the Evidence Act, including, but not limited to the rule against hearsay and the rules governing the admission of expert opinion evidence. The defendant also submitted that ss 23(3) and 37(4), which define supporting documents to include each of the matters in ss 25(3) and 39(3) respectively, and ss 27(b) and 41(b) which provide that interim orders for an offender's interim supervision or interim detention may be made where the matters alleged in supporting documentation would if proved justify the making of the final order in either case, also displace the application of the Evidence Act in s 50(1) because those sections provide for the way in which "proceedings under the Act" are to be conducted.
The defendant submitted that it is the selective application of the rules of evidence in this way that distinguishes the Act from the Dangerous Prisoners Act, upheld as being constitutionally valid in Fardon, and the constitutional validity of the HRO Act in Kamm applying Fardon where emphasis was given to the fact that the rules of evidence applied, without qualification, to proceedings under the legislation under consideration. The defendant further submitted that since neither case considered the argument advanced here, namely that under the Act there is a selective application of the rules of evidence, or a substantial modification of their application and in significant ways, that neither authority was determinative of the defendant's submission that the Kable principle had been infringed.
In Fardon, when the High Court was considering the operation of s 13(4) of the Dangerous Prisoners Act, a provision which obliged the court, in deciding whether a prisoner is a serious danger to the community, to have regard to a statutory list of considerations (not dissimilar to the mandatory considerations in ss 25(3) and 39(3) of the Act albeit in the context of a quite different statutory object) neither Gummow J at [98] nor Callinan and Heydon JJ at [224] suggested there was any abrogation of the rules of evidence. To the contrary, their Honours acknowledged that the rules of evidence applied, with s 45 expressly providing that in applications under the Act the "ordinary rules of evidence apply to evidence" given or called by either the Attorney General or the prisoner, subject to the Court being entitled to receive in evidence documentary evidence in the form of the prisoner's antecedents and criminal history and: … anything relevant to the issue contained in the certified transcription of, or any medical, psychiatric, psychological or other report tendered in, any proceeding against the prisoner for a serious sexual offence.
In Kamm at [123] Payne JA observed that: … the character of the judicial processes imposed on the Court, including that the onus of proof was on the Attorney-General and that the rules of evidence applied, were important in Fardon in the Court's conclusion that the Dangerous Prisoners (Sexual Offenders) Act was valid and did not impair the institutional integrity of the Supreme Court of Queensland: per Gleeson CJ at [19]; per McHugh J at [34]; per Gummow J at [115]: per Callinan and Heydon JJ at [229]-[230]. (Emphasis added.)
Additionally, the Court of Appeal held that the HRO Act did not infringe the Kable principle, despite the fact that it contained equivalent provisions to ss 25(3), 39(3), 27(b), 41(b), 23(3) and 37(4) of the present Act, being ss 9(3), 17(4), 10A, 18A, 6(3) and 14(3) under the HRO Act.
It must be accepted that the argument advanced by the defendant in these proceedings as to the construction of s 50(1) was not developed in argument before the Court of Appeal in Kamm, despite the identical terms in which s 21 of the HRO Act is expressed. However, even accepting that the construction of s 50(1) favoured by the defendant is arguable, it does not follow that it supports the defendant's ultimate submission that such modification of the rules of evidence that is implied by the section is constitutionally impermissible, whether by infringing the Kable principle or upon other grounds. What has to be taken into consideration on that question is the operation of s 50(2), which, as I said earlier, should be construed to reserve to the Court the function, power and responsibility of deciding whether the evidence that is received in the proceedings, whether for final or interim relief, when assessed for its weight and relevance, establishes, in a particular case, to a high degree of probability, that the eligible offender poses an unacceptable risk of committing a serious terrorism offence such as to warrant the making of an order under either Part 2 or 3 of the Act.
I am also satisfied that such departures from the rules of evidence under the Act, including by expressly providing in s 61 for any document or report provided to the Attorney General under Part 5 to be admissible in proceedings under the Act, and such departures as might obtain on the construction of s 50(1) which is advanced by the defendant, do not, as the defendant submitted, result in any practical injustice to a defendant under the Act, nor do they deny the procedural fairness to which he or she is entitled as a party to the proceedings. Mr Robinson was unable to point to any practical way in which the modification of the rules of evidence under the Act derogate from the Court's capacity to act with impartiality and fairness in the discharge of its functions and powers under the Act, and advanced no submission that the Court would in fact countenance any abuse of power that may be entailed, where the State or the Attorney General were the moving party to the proceedings under the Act.

The principle of open justice

The defendant also submitted that Division 5.3 of the Act derogates from the open court principle and the rules of procedural fairness, and in significant respects, principal among them that the terrorism intelligence provisions in Part 5 impair the integrity of the Court in a way that the provisions which the High Court found to be valid in Pompano and K-Generation Pty Limited Liquor Licensing Court (2009) 237 CLR 501; [2009] HCA 4 did not.
The operation of Division 5.3 in summary may be restated. The Act provides for the Attorney General, or a prescribed terrorism intelligence authority, as defined, to make a terrorism intelligence application. If satisfied of two criteria, the Court is obliged to grant the application (ss 59A(1) and (2)). The Court is then obliged to take steps to maintain the confidentiality of the terrorism intelligence, including any evidence and argument about the information until the application is determined, and to maintain the confidentiality of that material in the substantive proceedings if the application is granted (s 59C(1)). After taking into account what the Court considers as appropriate in light of the nature of the information, the degree of risk were it disclosed to non-parties and any other relevant considerations, a number of forms of access may be allowed, including denying the defendant access to the document by permitting his or her legal representatives viewing access only (s 59C(3)(e)). The Court may also make any orders it considers appropriate to prohibit or restrict access to terrorism intelligence for the purposes of Division 5.3 of Part 5 (s 59F).
When the State applies for a final order however, it must disclose certain relevant material to the offender (ss 24 and 38), subject to the State being relieved of any obligation to disclose any document, report or other information, or its existence, if the Attorney General or a prescribed terrorism intelligence authority intends to make an application for it to be dealt with as terrorism intelligence (ss 24(3)(a) and 38(3)(a)).
Some of these provisions have already been the subject of consideration in the reasons for judgment above, in particular the issue of disclosure at [38]-[39] and [71]-[76].
The defendant advanced the additional submission that by requiring the Court to grant a terrorism intelligence application where it is satisfied of the criteria in s 59A, and by requiring the Court to take steps to maintain the confidentiality of terrorism intelligence, steps which may include denying an eligible offender access to the material and allowing the Court to receive evidence and hear argument about it in private, including in the absence of the offender, and then by providing for the same information to be taken into account in the determination of an application by the State for interim or final orders, is to direct the Court as to the manner and outcome of the exercise of its jurisdiction in such a way as to impair its integrity. The defendant submitted that by conscripting the Court into a process whereby the Attorney General, or the Attorney's delegate, identifies material considered to be "terrorism intelligence" and then requiring the Court to makes orders prohibiting the defendant from seeing the information or knowing what it comprises, is to deny the defendant procedural fairness.
The defendant submitted the terrorism intelligence provisions in Part 5 of the Act impair the integrity of the Court in a way that the criminal intelligence provisions in the Criminal Organisation Act 2009 (Qld) (considered in Pompano) did not. The defendant points to the fact that there is no equivalent provision in the present Act to s 72(2) of the Criminal Organisation Act which permitted the Supreme Court of Queensland when determining whether to declare information "criminal intelligence" to have regard to whether considerations of prejudice to criminal investigations, including to an informer, "outweigh any unfairness to a respondent". This is to be contrasted, in the defendant's submission, with the obligation on the Court under s 59A(2) to grant a terrorism intelligence application where the statutory criteria is met, thereby dictating that particular offender information must be dealt with in proceedings under the Act as "terrorism intelligence".
In those circumstances the Court has no residual discretion to refuse the application, whether by taking into consideration the interests of the defendant or the overriding principles of fairness that are inherent in an adversarial system of adjudication.
Accepting that a defendant's legal representatives may be permitted by the Court to view the information declared by the Court to be "terrorism intelligence", Mr Robinson emphasised that notwithstanding the representatives will not be permitted to seek instructions about it and are accordingly constrained in their capacity to adduce evidence from the defendant which may contradict or qualify the content of the information. Thus, he submitted for example, if "terrorism intelligence" were to concern an alleged associate of the defendant, the defendant's legal representatives could not ask the defendant if the person was, in fact, an associate or whether the material alleged about the associate was to the knowledge or belief of the defendant credible or reliable. More critically, the defendant's legal representatives could not obtain instructions as to the truth of any of the information concerning the defendant in the "terrorism intelligence" material.
Mr Robinson submitted it is no answer to that fundamental derogation of the defendant's rights as a party to the proceedings that their legal representatives could, if they wished, make submissions about the contents of the terrorism intelligence, since the reality of the situation remains that the defendant's legal representatives simply cannot obtain instructions about the information. Mr Robinson notes that in this case the defendant's legal representatives were prevented from doing just that by the orders of Johnson J (State of New South Wales v Lawrence [2019] NSWSC 946).
The State responded to that submission by pointing out that the way in which the terrorism intelligence application was actually dealt with by Johnson J in these proceedings gives every indication that under the Act this Court retains what their Honours described in Pompano at [157] as the Court's "capacity to act fairly and impartially" and, further, that the expectation that the Court will do just that under the Act points firmly against its invalidity.
The State submitted further that the procedures actually adopted in this case for determining the terrorism intelligence application, and the confidentiality orders subsequently made by Johnson J accorded procedural fairness and avoided any practical injustice. Although the terrorism intelligence application was heard in closed court in accordance with s 71 of the Civil Procedure Act 2005 (NSW), the defendant's legal representatives appeared at the hearing. The defendant did not appear at the request of his legal representatives. His legal representatives advanced objections directed to the admissibility of some of the material on the grounds that the deponents to the principal affidavits expressed opinions which were not admissible under s 76 of the Evidence Act 1995 (NSW), that parts of the affidavits were not relevant under s 56(2) of the Evidence Act and other parts impermissibly summarised the contents of other documents. The defendant's legal representatives also objected to the State's supporting affidavits on the ground that they purported to give expert evidence, but failed to comply with Part 31 of the Uniform Civil Procedure Rules 2005. Johnson J overruled the defendant's objections and gave reasons for doing so. The defendant's legal representatives also argued that some of the material did not fit the description of "prescribed offender information" within the terms of cl 7 of the Terrorism (High Risk Offenders) Regulation 2018 (NSW) and that some of the material was not provided to the Attorney General under s 58 of the Act and, for that reason, s 59A(2)(a) was not satisfied.
Having considered the relevant statutory provisions, his Honour found that after an assessment of the evidence adduced in support of the claim by the Attorney General, including the documents which were the subject of the claim and the submissions of both parties, he was satisfied that the requirements of ss 59A(1) and 59A(2) of the Act had been met with respect to seven documents and granted the terrorism intelligence application in respect of them. His Honour then made orders under s 59C to maintain the confidentiality of those documents but permitted the defendant's legal representatives to view (but not have a copy of) each of the documents. The only redactions to the documents were on the basis of public interest immunity, a recognised head of immunity that cannot meaningfully be implicated in a claim of constitutional invalidity.
The State also submitted that ss 59A and 59C are relevantly similar to provisions in the Liquor Licensing Act 1997 (SA) considered by the High Court, and held to be valid in K-Generation. Section 28A of that Act provided that the Liquor Licensing Court must "take steps to maintain the confidentiality of information classified by the Commissioner of Police as criminal intelligence, including steps to receive evidence and hear arguments about the information in private in the absence of the parties … and their representatives". The relevant criminal intelligence was not provided to the applicant or his legal representatives in proceedings before the Licensing Court or the Supreme Court.
Gummow, Hayne, Heydon, Crennan and Kiefel JJ at [147]-[148] upheld the validity of s 28A on the basis that it empowered, but did not compel, the Court to receive evidence or hear argument in the absence of the parties and their representatives, and the Court was able to question the evidence in closed session. In that way, s 28A did not operate to deny the Court the constitutional character of an independent and impartial tribunal. French CJ held at [10] that, whilst s 28A infringed upon the open justice principle and procedural fairness, it did not impair the institutional integrity of the courts. His Honour said of the provision: [It] leaves it to the courts to determine whether information classified as criminal intelligence answers that description. It also leaves it to the courts to decide what steps may be necessary to preserve the confidentiality of such material. The courts may, consistently with the section, disclose the material to legal representatives of the party affected on conditions of confidentiality enforced by undertaking or order. It leaves it open to the courts to decide whether to accept or reject such material and to decide what if any weight shall be placed upon it.
The similarities between the legislation upheld in K-Generation and Division 5.3 of the Act are said, and persuasively by the State, to be "strong although not exact". As noted above, under Part 5 of the Act, the question whether certain information is "terrorism intelligence" is a matter for determination by the Court referable to objective criteria, including whether the disclosure of the information "could reasonably be expected" to "adversely affect the capacity of persons or bodies involved in the prevention of terrorist acts from preventing such acts" or to "prejudice criminal investigations". The Act empowers, but does not compel, this Court to receive evidence or hear argument in the absence of an eligible offender. The Court is entitled to disclose the material to an eligible person or his or her legal representatives subject to the considerations provided for in ss 59C(2)-(4). If an eligible offender does not have legal representatives, or the Court is requested to take steps to maintain the confidentiality of redacted material, it must appoint an independent third party to view the material and make submissions about whether it is "terrorism intelligence" and the level of access that should be granted to the offender. I note that the appointment of an independent third party, while adding to the integrity of the Court's processes cannot cure a want of procedural fairness (see Pompano at [208] per Gageler J; see also at [111]-[112] per Hayne, Crennan, Kiefel and Bell JJ). That said, under the construction of ss 11, 25(3) and 39(3), which I consider appropriate, it is for the Court to decide the weight, if any, that shall be afforded to the terrorism intelligence material in the proceedings under the Act, irrespective of the reliance the State places upon it.
In the submission of the State, the validity of Division 5.3 of the Act is also supported by two other decisions in which the High Court upheld the validity of legislation requiring the Courts to protect the confidentiality of criminal intelligence.
In Gypsy Jokers, s 76(2) of the Corruption and Crime Commission Act 2003 (WA) enabled the Commissioner of Police, in a review of a decision to issue a fortification warning notice in respect of a motorcycle club house, to identify any information provided to the Supreme Court of Western Australia as confidential "if its disclosure might prejudice the operations of the Commissioner". Such information would then be for the Court's use only and could not be disclosed to any other person. The provision was challenged on the principal ground that it operated to impose an impermissible legislative direction and a form of executive control over the exercise of the Court's jurisdiction. That challenge failed. At [31]-[34], Gummow, Hayne, Heydon and Kiefel JJ held that the Court was not bound by the Commissioner's decision in relation to confidentiality, but was able to determine the claim of confidentiality for itself on the basis of the evidence adduced in support of the claim subject to executive constraint. In upholding the validity of the section, other contexts in which information may be withheld from parties and/or the public, such as claims for public interest immunity, trade secrets litigation, patent cases and restrictions on the publication of reasons for judgment were cited. These examples "illustrate[d] that the availability and accessibility of all relevant evidence in judicial proceedings is not absolute".
In Pompano, the High Court upheld the validity of legislation that permitted the Commissioner of Police to apply to the Supreme Court of Queensland for a declaration that particular information was criminal intelligence. The Act required the Court to consider that application without notice to the defendant and to exclude the organisation in question during a hearing in which the criminal intelligence was to be considered. At [167], the plurality described the retention of the Court's capacity to act fairly and impartially in determining the application as "critical to its continued institutional integrity". At [166], their Honours said: In deciding any application for declaration of an organisation as a criminal organisation, the Supreme Court would know that evidence of those assertions and allegations that constituted criminal intelligence had not been and could not be challenged directly. The Court would know that the respondent and its members could go no further than make general denials of any wrongdoing of the kind alleged. What weight to give to that evidence would be a matter for the Court to judge.
Their Honours also observed at [157] that where legislation provides for novel procedures that depart from the general rule that a party will know what case an opposite party seeks to make and how that party seeks to make it, "the question is whether, taken as a whole, the court's procedures for resolving the dispute accord both parties procedural fairness and avoid 'practical injustice'". They concluded that whilst the respondent was not permitted to know how the appellant intended to prove its case, the respondent was permitted to know the nature of the allegation against it. Thus, the Court retained its capacity to act fairly and impartially.
It is clear beyond question that a defendant to proceedings under the Act under consideration here is permitted to know the nature of the allegations against them and the propositions and circumstances that are to be agitated where the State brings an application for their extended supervision or continued detention, including the basis upon which they are alleged to be an eligible offender, even if they are not permitted to have access to the entirety of the material supporting the application, in circumstances where a terrorism intelligence application has been granted and orders have been made dealing with the confidentiality of that material.
I am satisfied, having regard to the operation of the Act in its entirety that the Court retains its capacity to act fairly and impartially when considering whether any of the orders sought by the State or the Attorney General should be made in a particular case, and for that reason that Division 5.3 of the Act does not deprive the Court of the constitutional character of an independent and impartial tribunal.

Consideration

In the ultimate, the question is whether, taken as a whole, the Act operates in such a way that it undermines the established procedure of the Court for resolving a dispute between parties, according them both procedural fairness and practical justice, or whether it departs, to a significant degree, from the methods and standards which have characterised the exercise of judicial power in the past.
Properly construed, I am not satisfied that the Act or any of the sections nominated by the defendant operate in that way. Furthermore, the Act's fundamental structure and operation has marked similarities with the HRO Act in respect of which I consider a meaningful comparison can be made. Those similarities include the invocation of the same statutory tests for the ultimate determination of both interim orders and final orders for an eligible offender's extended supervision or continued detention and the Court's ultimate discretion as to whether orders should be made and their content. Additionally, the differences between the HRO Act and the Act under consideration here can be rationally explained in light of the different context within which each Act is intended to operate, and the different statutory objects.
Insofar as the particular challenges mounted by the defendant to particular sections of the Act, or more specifically Parts of the Act, in particular Part 5, for the reasons articulated above, I am not satisfied that a case of constitutional invalidity has been made out referable to the Kable principle. I include in that consideration Mr Robinson's analysis of the way in which the rules of evidence are intended to apply under the Act, not least because the exercise of the Court's discretion in its consideration of both the weight and probative value of evidence is retained, even in respect of evidence which the Court is obliged to have regard to under ss 25(3) and 39(3).
Finally, I am not persuaded that the Act operates in derogation of the principle of open justice or due process, whether because of Part 5 of the Act and its allied provisions or for any other reason. I am fortified in reaching that conclusion by the following observation of French CJ in Pompano at [68]: The defining or essential characteristics of courts are not attributes plucked from a platonic universe of ideal forms. They are used to describe limits, deriving from Ch III of the Constitution, upon the functions which legislatures may confer upon State courts and the commands to which they may subject them. Those limits are rooted in the text and structure of the Constitution informed by the common law, which carries with it historically developed concepts of courts and the judicial function. Historically evolved as they are and requiring application in the real world, the defining characteristics of courts are not and cannot be absolutes. Decisional independence operates within the framework of the rule of law and not outside it. Procedural fairness, manifested in the requirements that the court be and appear to be impartial and that parties be heard by the court, is defined by practical judgments about its content and application which may vary according to the circumstances. Both the open court principle and the hearing rule may be qualified by public interest considerations such as the protection of sensitive information and the identities of vulnerable witnesses, including informants in criminal matters.

Orders

Accordingly, the order I make is as follows: 1. Order 4, which I made in these proceedings on 21 August 2019 staying orders 1, 2 and 3, is lifted.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 12 October 2023

Criminal Organisation Act 2009(Qld)

Terrorism (High Risk Offenders) Regulation 2018(NSW)

Community Protection Act 1994(NSW)

Crimes (Criminal Organisations Control) Act 2009(NSW)

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