Lawrence v State of New South Wales

BATHURST CJ: The appellant Tukiterangi Lawrence (the appellant) appeals against orders made by a judge of the Common Law Division of this Court making an interim detention order against him pursuant to the provisions of the Terrorism (High Risk Offenders) Act 2017 (NSW) (the Act).

The notice of appeal seeks a declaration that the Act is constitutionally invalid on the following grounds:

The orders sought are a declaration that the Act is constitutionally invalid or alternatively, that Pt 3 and/or in the alternative Div 5.3 of Pt 5 of the Act is constitutionally invalid.

The background facts, at least for the purpose of the appeal, were not in dispute.

On 14 June 2019 the respondent commenced proceedings in this Court, seeking an order that the appellant be subject to an interim detention order (IDO) or in the alternative, an interim supervision order (ISO) for 28 days. It also sought a final order that the appellant be subject to a continuing detention order (CDO) or in the alternative, an extended supervision order (ESO) for three years.

At the time of the commencement of those proceedings, the appellant was serving concurrent sentences of imprisonment for 18 months, with a non-parole period of six months, for one offence of demanding property with intent to steal in company contrary to s 99(2) of the Crimes Act 1900 (NSW), and one offence of being armed with intent to commit an indictable offence contrary to s 114(1) of the Crimes Act.

The appellant was released on parole on 21 August 2018. That parole was revoked on 17 March 2019, the State Parole Authority being satisfied that the appellant posed a serious and immediate risk to the safety of the community.

Whilst on parole, the appellant committed an offence of stalking or intimidation with intent to cause fear of physical harm contrary to s 13 of the Crimes (Domestic and Personal Violence) Act 2007 (NSW), for which he received a sentence of imprisonment of 18 months with a non-parole period of 9 months. He was subsequently convicted of two offences of intimidating a police officer in the execution of the officer’s duty contrary to s 60(1) of the Crimes Act, for which he received a sentence of imprisonment of 18 months with a non-parole period of 9 months. The non-parole period is due to expire on 28 October 2020.

In dealing with the question of whether to exercise her discretion to make a IDO or ISO, the matters to which the primary judge had regard included that it appeared the appellant had been viewing extremist material in his cell, including videos of beheadings which he described as “beautiful”, had accessed lectures by radical Salafists, had been preparing and training to fight the “kuffar” and had been planning to start an “Islamic State” or “Islamic brotherhood”. Her Honour also took into account that a risk assessment report had concluded that the appellant was at a high risk of engaging in extremist violence and appeared to hold religiously oriented grievances and was continuing to seek out extremist beliefs.

The explanatory note which accompanied the Terrorism (High Risk Offenders) Bill 2017 (NSW) into Parliament stated that one of its objects was “to enable the Supreme Court to make orders for the supervision or detention of certain offenders after they serve their sentences of imprisonment if satisfied that they pose an unacceptable risk of committing serious terrorism offences if not kept under supervision or in detention”.

In the Second Reading Speech for that Bill, the Attorney General made the following remarks:

Senior counsel for the appellant addressed the Court by reference to the particular sections of the legislation of which complaint was made. It is convenient to deal with the provisions of the Act in the same order as they were dealt with by him in his submissions.

Senior counsel for the appellant submitted there were two aspects of the legislation which it was necessary to consider in light of what he described as the Kable principles: Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51; [1996] HCA 24. He described the first as the degree of connection between an offence for which there has been a conviction and a sentence of imprisonment imposed, and the relief sought by the respondent in relation to continuing detention after sentence. His submissions on this aspect focused on s 10 of the Act.

He described the second aspect as procedural, which he stated related to the presentation and receipt of evidence, submitting that the legislation demonstrated what he described as “a shortcoming in the irreducible minimum of fair play”. His submissions on this aspect generally concerned Divs 3.2, 3.3 and 3.4 of Pt 3, Pt 4 and Pt 5 of the Act.

Section 10 of the Act is in the following terms:

The section sets out those persons who fall within the category of eligible offenders who are convicted NSW terrorist activity offenders, and who can by virtue of that status be subject to orders under the Act. “Eligible offender” is defined in s 7 of the Act as a person who is 18 years of age or older, and is serving (or is continuing to be supervised or detained under the Act after serving) a sentence of imprisonment for a NSW indictable offence.

Of particular relevance in the present case is s 10(1)(c) in conjunction with s 10(1A). Senior counsel for the appellant pointed to the width of s 10(1)(c), which he noted could apply to historical matters as well as current or threatened acts of terrorism. He referred in particular to the width of s 10(1A)(a)(i), which uses the words “making a pledge of loyalty to a person, group of persons or organisation, or an ideology”. He submitted that none of these matters or the matters in s 10(1A)(a)(ii) necessarily had anything to do with the offence for which the eligible offender was convicted and imprisoned.

He also referred to the width of s 10(1A)(b), which he described as “a different way of creating the necessary connection”, which he stated looked onwards to “the dangerous future” of the Act due to its aim to “ameliorate an association or other affiliation”. He submitted that the section applied irrespective of whether or not the eligible offender knew that the person with whom he or she was interacting or communicating was a terrorist. He submitted the net had been cast so widely that it could not be sensibly possible to operate other than by trusting the judges “to be sensible”. He submitted that was not the manner in which the legislation should be tested. As will appear below I do not think this contention is correct.

Senior counsel for the appellant accepted that s 10(2), standing on its own, may not be the subject of a viable objection, but noted that it spurned any need for a connection between an offence for which the eligible offender has been convicted and imprisoned and the factum for the extension which he submitted “is felt punitively, even if it’s said politically to be imposed protectively”.

He submitted that this analysis of s 10 demonstrated there was not the connection between the continuing detention and the offence of the nature of that referred to by Gleeson CJ in Fardon v Attorney General (Qld) (2004) 223 CLR 575; [2004] HCA 46 (“Fardon”) at [2], namely, that the Act referred to in that case (the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld)) provides for continuing, preventative, detention of serious sexual offenders who have served their terms of imprisonment, and who have been shown to constitute a serious danger to the community. Senior counsel stated that Gleeson CJ pointed out that the later such danger is assessed, “the more one knows and the better the prognostication”. He submitted that in circumstances where s 10(2) applied, it would not have been necessary for any sentencing judge to think about how dangerous the offender would be upon release in the future by reason of what was known at the time of the conviction and sentence for the original offence.

Section 34 of the Act, which appears in Div 3.2 of Pt 3, confers the power to make a continuing detention order. It provides as follows:

Section 35 deals with requirements for the determination of risk. It provides as follows:

Senior counsel for the appellant pointed out that s 34(1)(c)(iii) shows that the power can be exercised in relation to a convicted NSW terrorism activity offender, namely, a person defined under s 10. He emphasised that there was no need for any connection between the offence for which the offender was convicted and any terrorism activity for the offender to fall within s 34(1)(c)(iii).

Senior counsel for the appellant referred in particular to s 34(1)(d). He submitted that section worsens the constitutional problem, pointing out that because of the absence of any requisite connection with the offending, the Court may proceed on what he described as “sociological grounds”, which he submitted could be based on material which would never be admitted in any allegation of offending. He submitted that s 35 stands in contrast to what ordinarily would be required in a criminal trial. He noted that the unacceptable risk was not required to be more likely than not.

Division 3.3 of the Act deals with the procedures involved in an application for a continuing detention order, whilst s 39 in Div 3.4 deals with its determination. The relevant sections are in the following terms:

Senior counsel for the appellant referred to s 39(4), which he described as a “mandatory non-consideration”, submitting that contrary to the whole idea of general or specific deterrence, it was necessary to proceed on the basis that the risk is unacceptable. He recognised that it was difficult to determine what order was being referred to in s 39(4), stating that he was unable to discern the policy behind the subsection.

Section 39(4) undoubtedly presents difficulties of construction. If the expression “the Supreme Court is not to consider the ability to take action for a breach of the order” refers to the continuing detention order itself, the section is practically meaningless in that the only possible breach would seem to be an escape or attempted escape from detention. However, it seems to me that in the context of the words used, having regard to s 39 read as a whole, the consequence of a literal construction and the purpose of the statute requires the words to be read in a way that does not correspond with the literal or grammatical meaning: Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 at [78].

One of the choices given to the Court in making a determination under s 39 is the making of an extended supervision order. It seems to me that read in context the order referred to in s 39(4) is an extended supervision order, breach of which carries a maximum penalty of 500 penalty units or imprisonment for 5 years or both (s 30). It is this deterrent effect the Court is not entitled to take into account.

Irrespective of the correct construction, senior counsel for the appellant submitted that the subsection was contrary to the whole process of the criminal law to proceed without taking into account the deterrent effect. He submitted that the subsection, in deliberately going out of the way to remove consideration of this deterrent effect, shows that “there is not a dangerousness traced back to conduct for which [the offender] was originally sentenced and perhaps conduct in gaol”.

Senior counsel for the appellant referred to the pre-trial procedure set out in s 38 and in particular, the exemption from disclosure of material referred to in s 38(3). He submitted the effect was a cutback of disclosure from what might have been expected as “a matter of decency” in relation to proceedings where as a result of the undisclosed material a person may be imprisoned. He submitted in that context that s 38(4) and s 38(5) require the preliminary hearing to proceed on the basis that supporting evidence was available and relevant.

He also referred to the mandatory considerations in s 39(3), emphasising that the reports referred to in s 39(3)(a) must be considered, not only the reports when tested. He also emphasised that the hearsay in such reports must be taken into account. He said the same applied to the assessments referred to in s 39(3)(b). He submitted that the provision is not qualified by s 79 of the Evidence Act 1995 (NSW), and could give rise to what he described as a “stereotyping or sociological approach”. He submitted that a judge is not entitled to simply ignore the material.

However, he accepted it would be open to a judge to conclude that the material was of so little weight that, although he or she would have regard to it, no reliance would be placed on it. Notwithstanding, he submitted that the subsection involves a peril or risk unfairly created against the interests of a citizen facing imprisonment other than by way of remand in custody pending trial or sentence of imprisonment following conviction. He submitted that the idea of an unacceptable risk did not even have to exist on the balance of probabilities.

Section 41 of the legislation deals with interim detention orders. It is in the following terms:

Senior counsel for the appellant submitted that orders under s 41 could involve a considerable period of imprisonment, not by way of remand in custody, but on the basis that the matters alleged in the supporting documentation had been proved. He submitted that unlike a bail application, there is no judicial determination of the risk of absconding, interfering with the course of justice or reoffending. He also submitted that unlike a bail application which considers a real risk, the risk under consideration in an application under s 41 was a hypothetical risk. Further, he submitted that unlike an interlocutory injunction which is designed to preserve the status quo, an interim detention order imposes new constraints.

The appellant also stated that the provisions of Pts 4 and 5 of the Act support his contentions. Part 4 deals with the conduct of the proceedings. Of relevance are s 50, s 52, s 53 and s 54. They are in the following terms:

Part 5 of the Act deals with information about eligible offenders including what is described as terrorism intelligence. The following sections are relevant:

Terrorism intelligence is defined in s 4 of the Act in the following terms:

Senior counsel for the appellant noted that s 50(1) provides that the proceedings under the Act are civil proceedings. He referred to s 50(2) and to the primary judge’s description of that section as “mysterious”. He submitted that the material to which s 50(2) is referring is material which the Court is bound to take into account under s 39, and material admissible by virtue of s 61. He submitted that the material within s 39 falls within s 50(2) because of the words “must have regard to”. He accepted that s 136 of the Evidence Act could be used to limit the use of the material but could not, by virtue of s 39, prevent a court having regard to it.

I agree that s 50(2) is obscure. It seems to me that it applies to material admitted under s 61 and material to which the Court is required to have regard by virtue of s 39. Whilst the Court may be required to admit the material, it seems to me the effect of the section is to make it clear that after having had regard to it, if the Court concludes that it is irrelevant no further account need be taken of it. As was accepted by senior counsel for the appellant, in assessing the material the Court can exercise its general discretion to limit the use of the evidence under s 136 of the Evidence Act. Further, it would seem to me that if a report or other assessment purporting to be an expert report was not based on specialised knowledge, the Court having considered it would be entitled to disregard it as inadmissible opinion evidence.

It is unnecessary to give further examples. However, it seems to me that the purpose of s 50(2) is to limit the use to be made of the classes of documents falling within s 61 and s 39 to the extent they would be irrelevant or would have little or no probative value in civil proceedings conducted in accordance with the rules of evidence.

Senior counsel for the appellant also submitted that the preservation of the right to cross-examine contained in s 54 of the Act did not impose an obligation to call a person whose report was required to be taken into account under s 39(3) or admissible under s 61. That is correct. However, in considering the weight to be placed on a report, the Court can take into account the fact that it was not tested, particularly if the applicant for the detention order declined to present the author for cross-examination.

Senior counsel for the appellant referred to the powers conferred on the Attorney General in s 58 and s 59 of the Act to require or request information. In dealing with s 59A, he referred to the definition of terrorism intelligence, stating that material which fell within that definition was “not likely to be innocuous”. He referred in particular to s 59A(2), which obliges the Court to grant a terrorism intelligence application if it is satisfied that the preconditions in s 59A(2)(a) and (b) are made out.

He also referred to the fact that if a terrorism intelligence application is granted, s 59C imposes an obligation on the Court to take steps to maintain the confidentiality of the information. He noted, however, that s 59C(2) and (3) permit the Court to allow access to a document or parts of it in various forms. He submitted that notwithstanding this discretion, the person the subject of the application may be at risk of being imprisoned on the basis of material which they did not have the opportunity to consider or give instructions about, which may be untested hearsay, an inexpert opinion or misused statistics. He submitted this departed from the “irreducible minimum of judicial process”.

He also submitted that s 59B was not sufficient to alleviate the problem of “one sidedness that one can see culminating in s 61”.

The appellant submitted that the Act is invalid because it involves the involuntary detention of a citizen in a manner incompatible with Ch III of the Constitution.

In making that submission, reliance was placed on what was described as the constitutional principle expressed by Brennan, Deane and Dawson JJ in Chu Kheng Lim v Minister for Immigration (1992) 176 CLR 1 at 27-28; [1992] HCA 64 (“Lim”) to the effect that involuntary detention of a citizen in custody by the State is penal or punitive in character and exists only as an incident of the exclusively judicial function of adjudging and punishing criminal guilt. The appellant submitted the principle was explained by Gummow J in Fardon. In that case Gummow J, with whom Hayne J agreed (at [196]), made the following remarks (at [80]-[81], [108]):

It was submitted a similar approach was adopted by Gleeson CJ in Fardon, referring to the remarks of the Chief Justice at [2] and [12] where he reasoned that if it was lawful and appropriate for a judge to assess danger to the community at the time of sentencing, it should also be appropriate to make such an assessment near the time of release.

It was also submitted that the principle enunciated by Gummow J has been cited with approval in a number of subsequent decisions in the High Court: South Australia v Totani (2010) 242 CLR 1; [2010] HCA 39 (“Totani”) at [209]-[210] and [472]; Thomas v Mowbray (2007) 233 CLR 307; [2007] HCA 33 at [114]; Vella v Commissioner of Police (NSW) [2019] HCA 38; (2019) 93 ALJR 1236 (“Vella”) per Gageler J (in dissent) at [152].

The appellant also submitted that the circumstance that involuntary detention of a citizen is in a special class of case was implicitly recognised by the plurality in Vella at [53].

The appellant submitted that the Act purports to authorise the Court to make detention orders which cannot properly be characterised as a consequential step in the adjudication of an offender’s criminal guilt for past acts. It was submitted that there was no necessary connection between the indictable offence for which the offender has been convicted and the high degree of probability that the offender poses an unacceptable risk of committing a terrorist act of which the Court must be satisfied.

It was submitted in those circumstances that the factum on which the operation of the Act turns is too remote from the predicative exercise, and that the making of an interim or continuing detention order is not a consequential step in the adjudication of the offender’s criminal guilt for past acts.

The appellant submitted that for those reasons the Act is constitutionally invalid.

The appellant submitted that the second reason why the Act is invalid is that it impairs the Supreme Court’s institutional integrity by purporting to direct it as to the manner of the exercise of its jurisdiction and thereby impermissibly impairing its character as an independent and impartial tribunal.

Complaints on this issue are made under two headings. The first is what is described as the procedurally unfair application of the rules of evidence. I have set out senior counsel for the appellant’s submissions on this issue. The second is the operation of the terrorism intelligence provisions. It was submitted that these provisions impair the integrity of the Court in a way that the provisions under consideration in Assistant Commissioner Condon v Pompano Pty Ltd (2013) 252 CLR 38; [2013] HCA 7 (“Condon v Pompano”) did not, as the provision in that legislation did not provide for the reception in evidence of information which would otherwise be irrelevant or inadmissible: Condon v Pompano at [144]. It was submitted that the position was also different from the legislation under consideration in K-Generation Pty Ltd v Liquor Licensing Court (2008) 237 CLR 501; [2009] HCA 4 (“K-Generation”), because in that case there was nothing which required the Licensing Court to accept or rely on the confidential information.

Three matters may be stated at the outset. First, unlike in Lim, the case does not involve involuntary detention by the Commonwealth Executive. The question in this case is not whether the Commonwealth Parliament has the power to confer detention powers upon the Executive or, for that matter, whether the Commonwealth Parliament would have the power to authorise a court to carry out the functions and exercise the powers contained in the Act. Rather, the question is whether the powers conferred by the Act, being powers conferred by a State Parliament on a State court, impose upon the court a function which substantially impairs its institutional integrity and is therefore incompatible with its role as a repository of federal jurisdiction: see Fardon at [15] per Gleeson CJ, [37] per McHugh J, [101] per Gummow J; see also Attorney General (NT) v Emmerson (2014) 253 CLR 393; [2014] HCA 13 at [43]-[44], noting at [44] that “[a] legislature which imposes a judicial function or an adjudicative process on a court, whereby it is essentially directed or required to implement a political decision or a government policy without following ordinary judicial processes, deprives that court of its defining independence and institutional impartiality”.

It follows that for the appellant to succeed on part (a) of his first ground of appeal, it is necessary for him to demonstrate that, irrespective of the question of whether the proceedings envisaged by the Act are conducted consistently with what might be described as due judicial process, the conferral on the Supreme Court of the function of making continuing detention orders in the circumstances contemplated by the Act is incompatible with the Court’s role as a repository of federal jurisdiction by impairing its institutional integrity.

The second matter is this. Preventative detention orders have long been considered appropriate in a range of circumstances: see Fardon at [2]; Thomas v Mowbray at [16] and [18] per Gleeson CJ, [79] per Gummow and Crennan JJ; Vella at [29]-[31]. They include preventative detention orders at least in the case of bail, mental illness and quarantine.

Third, it is important that the Act requires a court to determine whether or not the person sought to be made the subject of the order is a convicted NSW terrorism activity offender. Although the categories in s 10(1), particularly those in s 10(1)(c) read in conjunction with s 10(1A), are broad, it is up to the court to be satisfied the criteria are met. That is made clear by s 34(1)(c)(iii). It is true, as the appellant pointed out, that the persons against whom the orders are sought may fall within the definition of a convicted NSW terrorism activity offender as a result of historical matters. However it remains necessary for the Court to make the determination required by s 34(1)(d).

As I pointed out at [18] above, senior counsel for the appellant submitted that s 10(1)(c)(ii) in conjunction with s 10(1A)(b) could apply irrespective of whether or not the eligible offender knew that the person or organisation with whom he was associating or networking was a person who advocated support for terrorist acts or violent extremism. In my opinion, having regard to the purpose of the statute those provisions would not extend to an association or affiliation with a person, group of persons or organisation which had nothing to do with the advocacy of terrorist acts or violent extremism, at least in circumstances where the eligible offender was not aware of the intention of the person, group of persons or organisation to engage in the activities referred to in s 10(1)(c)(ii). If a connection of that nature is not established, then the applicant for the order would not satisfy the requirement in s 10(1)(c)(ii). Contrary to what senior counsel for the appellant suggested, it is not a question of trusting the judges to be sensible but rather requiring a judicial determination of whether the facts satisfy the requirements of s 10(1)(c)(ii) interpreted in the manner I have indicated.

Once the gateway in s 34(1)(c) is passed, it remains for the Court to determine to a high degree of probability that the offender poses an unacceptable risk of committing a serious terrorism offence if not kept in detention under the order. In Condon v Pompano French CJ at [23] described that criterion of unacceptable risk as evaluative and purposive, with the Court having regard to the objects of the relevant Act. The plurality made the following remarks at [143]:

It does not seem to me that the provisions of s 35 affect the position. The section states that the risk does not have to be determined on the balance of probabilities to be unacceptable. It remains for the Court on the material before it to determine to a high degree of probability that an unacceptable risk exists. Further, I do not think the power to make an interim detention order alters the position. Even though the precondition in s 41(b) requires the Court to proceed on the basis that the matters alleged by the applicant for the order would, if proved, justify the making of a continuing detention order, the legislature does not mandate the making of such an order. It remains a matter for the Court in the exercise of its discretion to determine whether it is appropriate to do so. It is not in my opinion inconsistent with the judicial power to grant the Court a discretion to make an interim order on the basis that the applicant for the order’s material establishes what is in effect a prima facie case for such an order. Although I accept counsel for the appellant’s submission that the order is different in nature to an interlocutory injunction, the principles in relation to the granting of such injunctions and other forms of interim relief show that it is not incompatible with the judicial function to grant such relief on the basis that a plaintiff’s case may be made out at trial.

As I indicated particular reliance was placed on the reformulation of the principle in Lim in Fardon to which I have referred at [46] above. In Thomas v Mowbray Gummow and Crennan JJ, after repeating what was stated by Gummow J in Fardon, expressly stated they adhered to that principle. In Totani, Hayne J at [209] referred to the formulation of the principle by Gummow J in Fardon with approval and went on to make the following comment at [211]:

His Honour explained this later in his judgment by referring to the fact that one of the aspects of the legislation which led to invalidly in that case was that the Court must make an order against the particular defendant, without making any inquiry about what the person the subject of the order had done or may do in the future. That is not the present case.

Most recently, Gageler J in dissent in Vella adopted the same approach as Gummow J in Fardon, making the following comments:

These dicta by a number of justices of the High Court provide powerful support for the proposition that the conferral of a function on a court to impose preventative detention on a person for reasons unrelated to the offence which that person has committed is incompatible with the institutional integrity of the Court as a repository of federal jurisdiction. Further, although the legislation under consideration in Vella similarly involved the making of an order which had no necessary connection with the offence which the offender had committed, the plurality left open whether the same result would occur if the section in question permitted custodial detention. They made the following remarks:

Similarly in Thomas v Mowbray, where the control order was designed to prevent future terrorist activities in circumstances where there was no necessity for any prior conviction, Gleeson CJ emphasised at [18] that whilst control orders may involve substantial deprivation of liberty, the case was not concerned with executive detention. Further, in this context there is much to be said for the concluding remarks made by Gageler J in Vella at [180]:

Notwithstanding the force of these comments, I do not think the authorities as they presently stand lead to the conclusion that the conferral by a State Parliament on a State court of the function of making preventative detention orders under an Act is constitutionally invalid, even in circumstances where the order could not be described as a consequential step in the adjudication of past guilt. In Thomas v Mowbray Gleeson CJ at [18] stated that it was not correct to say as an absolute proposition that restraints on liberty, whether or not involving detention in custody, exist only as an incident of adjudging or punishing criminal guilt.

In Fardon, apart from Hayne J the other justices who comprised the majority did not adopt the reformulation of Lim suggested by Gummow J, rather emphasising the preventative nature of the order and the fact the power to make the order was conferred on the Court in a way that did not impact on its institutional integrity. Gleeson CJ described the legislation in the following terms (at [19]):

The Chief Justice stated at [20] that unless it could be said there is something inherent in the making of an order for preventative, as distinct from punitive, detention that compromises the institutional integrity of a court, it was hard to see the foundation for the appellant’s argument. See also McHugh J at [34] where his Honour stated the Act was designed not to punish an offender but to protect the community against certain classes of sexual offenders who have not been rehabilitated; see also Callinan and Heydon JJ at [234].

In North Australian Aboriginal Justice Agency Ltd v Northern Territory of Australia (2015) 256 CLR 569; [2015] HCA 41 the plurality at [37] adopted the formulation in Lim as did Gageler J in dissent, noting at [98] that the question is always one of characterisation of the detention, in respect of which the object sought to be achieved by the legislation authorising detention is a relevant consideration, but not the only consideration.

In Falzon v Minister for Immigration and Border Protection (2018) 262 CLR 333; [2018] HCA 2, a case dealing with executive detention, the plurality made the following comments:

Finally, in Vella the plurality drew the distinction between civil preventative orders and regimes for prosecution and punishment for past criminal offences:

In the present case, the object of the Act is clearly to protect the community against the threat of terrorism offences. The power to determine whether an order is necessary is conferred on the Court in a manner which, subject to the matters the subject of ground 1(b), is not incompatible with its institutional integrity. Nor is there any direction by the legislature as to the manner the Court is to make the determination required by s 34(d). The maximum period for a continuing detention order is three years (s 40(1)(b)) and the Court has power to vary or revoke the order on the application of the State or the person subject to the order (s 48). There is also a right of appeal (s 53).

In those circumstances it does not seem to me that the conferral of the power on the Court to make a continuing detention order is incompatible with its institutional integrity as a repository of federal jurisdiction. Ground 1(a) of the grounds of appeal has not been made out.

This ground essentially focuses on two issues. First, it was submitted that the application of the rules of evidence and in particular, the various matters the Court is required to take into account are such as to render the proceedings procedurally unfair. Second, it was submitted that the terrorism intelligence provisions significantly depart from the rules of procedural fairness and impermissibly direct the Court as to the manner of the exercise of its jurisdiction. The following matters were relied upon in the appellant’s written submissions in support of the latter proposition:

The appellant is correct in submitting that one of the defining characteristics of a court is its application of procedural fairness: Condon v Pompano at [67] and [125]; Totani at [62]; Wainohu v New South Wales (2011) 243 CLR 181; [2011] HCA 24 at [44]. Further, although it is correct that, generally speaking, prescription of a rule of evidence does not impair the curial function of finding facts, applying law or exercising any available discretion in making the judgment or order which is the purpose of judicial power (see Nicholas v The Queen (1998) 193 CLR 173; [1998] HCA 9 at [23]-[24]), that does not extend to requiring the Court to proceed in a manner which does not ensure equality before the law, impartiality and the appearance of impartiality and the right of a party to meet the case made against him or her: see Nicholas at [74] per Gaudron J, see also Gummow J at [146].

The principal criticism made by the appellant is that although the proceedings are described as civil proceedings, and s 50 of the Act states that except as otherwise provided the proceedings are to be conducted in accordance with the rules of evidence relevant to civil proceedings, the effect of s 39(3) and s 61 (coupled with the terrorism intelligence provisions) renders the proceedings procedurally unfair to the appellant such as to undermine the integrity of the Court as an independent and impartial tribunal.

I do not think this is correct. Although the Court is at least implicitly required to admit material falling within s 39(3), and expressly required to admit material falling within s 61, the Court is not required to place any particular weight on any part of that material and could take into account the fact that it has not been tested by cross-examination, or that it contains hearsay, irrelevant material or non-expert opinion evidence. In addition, the Court has power to limit its use by making an order under s 136 of the Evidence Act. That the Court retains these powers in my opinion is made clear by s 50(2) of the Act. Further, leaving aside the question of terrorism intelligence, it is open to the person against whom the order is sought to make submissions as to the use that can be made of such material and its evidentiary value.

It follows in my opinion that the requirements of s 39 and s 61 do not deny the person against whom the order is sought procedural fairness in such a way as to undermine the institutional integrity of the Court.

Section 38(3) of the Act provides that the State is not required to disclose to an eligible offender any document in respect of which a terrorism intelligence application is foreshadowed or pending, or where such an application has been granted, except in accordance with Div 5.3 of the Act. Although the Court is obliged to make an order that material is terrorism intelligence if the requirements in s 59A(2) are satisfied, it is a matter for the Court to be satisfied that the material is terrorism intelligence, that is, that it is reasonably likely to fall within at least one of the matters set out in subparagraphs (a)-(d) of the definition of terrorism intelligence.

Further, it is then up to the Court to determine what is necessary to maintain confidentiality and, in doing so, to consider to what extent access should be granted to the material and the appropriate form of such access: see s 59C(2) and (3) set out at [36] above. Finally, if limited or no access is proposed by the applicant for a terrorism intelligence order, an independent third party representative is to obtain access to the material and is entitled to make submissions on behalf of the eligible offender as to whether the material is terrorism intelligence and the level of access which should be provided to the eligible offender (see s 59B).

It seems to me the legislation is not materially different from the legislation which was held to be valid in Gypsy Jokers Motorcycle Club Incorporated v Commissioner of Police (2008) 234 CLR 532; [2008] HCA 4 (“Gypsy Jokers”), in K-Generation and in Condon v Pompano. The former case involved the making of a fortification removal notice, directing removal of fortifications in a place that was heavily fortified and was habitually used by members of a class who might be reasonably be expected to be involved in organised crime. The information available to the applicant for a judicial review of the order was restricted by s 76(2) of the relevant legislation (the Corruption and Crime Commission Act 2003 (WA)), which entitled the Commissioner to identify any information provided to the Court for the purposes of the review as confidential, if its disclosure might prejudice the operations of the Commissioner.

The legislation was held to be valid. Gleeson CJ noted at [7] that it was for the Court to determine whether the information was confidential. The same may be said of the legislation in question in the present case, which requires the Court to be satisfied the material is terrorism intelligence. The plurality pointed out (at [23]-[24]) that in proceedings of the nature of those in question, at least some of the material could be expected to be subject to a claim for public interest immunity, in which case the material the subject of a successful claim would be denied to both the Court and the applicant. Having regard to the definition of terrorism intelligence, the same may be said of material potentially subject to a terrorism intelligence order in the present case.

In K-Generation the issue was the validity of s 28A of the Liquor Licensing Act 1997 (SA), which required the Licensing Court and the Supreme Court to take steps to preserve the confidentiality of information classified by the Commissioner of Police as criminal intelligence, which was defined as information relating to actual or suspected criminal activity, the disclosure of which could reasonably be expected to prejudice criminal investigations or to enable the discovery of the existence of a confidential source of information.

The Court upheld the validity of the legislation. French CJ at [10] accepted that the legislation infringed the open justice principle, but stated that it did not interfere with the institutional integrity of the Court, as on its proper construction it left it to the Court to determine if the information was criminal intelligence and what steps may be necessary to preserve its confidentiality. The Chief Justice also noted at [77] that there was nothing which required the Licensing Court to accept or act on the information. The same may be said of the legislation in the present case. A similar conclusion was reached by the plurality in K-Generation at [148].

Condon v Pompano bears a closer resemblance to the present case. Section 10 of the Criminal Organisation Act 2009 (Qld) empowered the Supreme Court of Queensland to declare an organisation a criminal organisation. Section 63 empowered the Commissioner to apply to the Court for a declaration that particular information was criminal intelligence. The application was required to be heard without notice to the person or organisation to which the information related, although a person known as a criminal organisation public interest monitor was entitled to attend the hearing and make submissions. Declared criminal intelligence was entitled to be relied upon in relation to an application under s 10, and under s 78 of the Criminal Organisation Act the Court was required to exclude the organisation during any part of the hearing in which the declared criminal intelligence was to be considered. Section 76 provided that the informant who had provided the criminal intelligence could not be called or otherwise required to give evidence, although an affidavit was required to be filed containing specified information about the informant and the criminal intelligence.

The legislation was held to be valid. French CJ at [70] stated that in Gypsy Jokers it was noted that it was for the Court to determine whether disclosure of the information might cause the asserted prejudice, and that the restriction on disclosure of the information was described as “‘an outcome comparable with that of the common law respecting public interest immunity, but with the difference that the Court itself may make use of the information in question’”. He noted at [76] that the power to make the declaration that particular information was criminal intelligence was discretionary and that the Supreme Court was required to balance the outcomes of disclosure against the unfairness to the prospective respondent. He also stated at [77] that the legislation provided for a public interest monitor, and that whilst that person was under no legal duty to represent a potential respondent, the public interest monitor was bound to make submissions by reference to the statutory considerations upon which the Supreme Court was required to act. In these circumstances he considered the application for a criminal intelligence declaration did not infringe upon the essential and defining characteristics of the Supreme Court.

The plurality at [156] explained that when “one talks in terms of procedural fairness … the concern of the law is to avoid practical injustice”. They stated at [157] that the adversarial system assumes as a general rule that opposing parties will know what case an opposite party seeks to make and how the party seeks to make it. However, they recognised that there are circumstances in which competing interests compel some qualification to that proposition, but stated the question was whether, taken as a whole, the Court’s procedures accord both parties procedural fairness and avoid practical injustice.

In dealing with the question of practical injustice the plurality pointed to the difficulty of in fact testing the criminal intelligence. They pointed out at [162] that fairness to the respondent is a matter to which the Court may have regard in determining whether to declare information to be criminal intelligence, and noted at [163] that the respondent to the application would in any event know the case to be made against it. They also noted at [166] that the Court would be aware of the fact that the criminal intelligence could not be challenged directly. They held that in those circumstances the Court retained its institutional integrity.

Gageler J in contrast held at [212] that the solution to the procedural difficulty lay in the capacity of the Supreme Court to stay a substantive application in the exercise of its inherent jurisdiction in any case in which practical unfairness to a respondent became manifest. He stated the provision was saved from constitutional incompatibility by that capacity.

In the present case, s 59A(2) requires satisfaction by the Court that the information is terrorism intelligence, namely that it relates to actual or suspected terrorism activity and the disclosure of which could reasonably be expected to have one of the effects contained in the subparagraphs of the definition of terrorism intelligence. If orders in the nature of those referred to in s 59C(2)(b) (c) or (d) are sought the eligible offender is entitled to have an independent third party representative to appear and make submissions as to whether or not the information is terrorism intelligence and the level of access which should be granted. By contrast to the criminal organisation public interest monitor provided for in the legislation considered in Condon v Pompano, the independent third party representative is appointed to represent the eligible offender to make representations both at the terrorism intelligence application and at the substantive proceedings as to the level of access which should be granted.

Importantly, s 59C(2) and (3) confer a wide discretion on the Court to allow varying forms of access, having regard to what it considers appropriate because of the nature of the intelligence, the degree of risk of disclosure to non-parties and any other matter the Court considers relevant. Other relevant matters would in my view include whether the non-disclosure or limited disclosure to the eligible offender or that person’s legal representatives would result in practical injustice.

The Court is thus not subject to any legislative direction as to the manner in which it is required to maintain the confidentiality of terrorism intelligence. Rather, it is required to undertake a balancing exercise to determine whether and to what extent access should be granted to the eligible offender or his or her legal representative. In undertaking that exercise any unfairness to the eligible offender can be taken into account. That process does not seem to me one likely to produce practical unfairness, undermine the judicial process or be repugnant to the institutional integrity of the Court.

Further, as Gageler J pointed out in Condon v Pompano if the process was to result in procedural unfairness the Court retains its inherent power to stay the proceedings.

In these circumstances in my view the terrorism intelligence provisions are valid.

It follows ground 1(b) of the grounds of appeal has not been made out.

So far as ground 2 is concerned, I have already expressed the view that the power conferred by s 41 to make an interim detention order is not incompatible with the judicial function (see [61] above). Having regard to this and my conclusions on ground 1(b) it follows that ground 2 has not been made out.

In the result I would make the following order:

BELL P: I agree with the reasons of and order proposed by the Chief Justice.

LEEMING JA: I agree with the Chief Justice.