Gypsy Jokers Motorcycle Club Incorporated v Commissioner of Police

• Jurisdiction: Australia Federal only
• Court: High Court
• Judge: Gleeson CJ.,Gummow,Hayne,Heydon,Kiefel JJ.,Kirby J.,Crennan J.
• Judgment Date: 07 February 2008
• Neutral Citation: 2008-0207 HCA A,[2008] HCA 4
• Docket Number: P26/2007
• Date: 07 February 2008

GYPSY Jokers Motorcycle Club Incorporated

Appellant

and

The Commissioner of Police

Respondent

[2008] HCA 4

Gleeson CJ, Gummow, Kirby, Hayne, Heydon, Crennan and Kiefel JJ

P26/2007

HIGH COURT OF AUSTRALIA

Gypsy Jokers Motorcycle Club Incorporated v Commissioner of Police

Statutes — Interpretation — Corruption and Crime Commission Act 2003 (WA) — The appellant sought review of a decision of the Commissioner of Police to issue a fortification removal notice in the Supreme Court of Western Australia — Section 76(2) of the Act provided that the Commissioner could identify any information provided to the Supreme Court for the purposes of review proceedings as confidential ‘if its disclosure might prejudice the operations of the Commissioner’ with consequences for the use and disclosure of the information — Whether s 76(2) renders unexaminable by the Supreme Court the decision of the Commissioner — Relevance of the Constitution to statutory construction.

Constitutional law (Cth) — Chapter III — Judicial power — Integrity of State Supreme Courts — Whether s 76(2) impairs the Supreme Court's character as independent and impartial or otherwise improperly controls the exercise of its jurisdiction contrary to Ch III of the Constitution — Effect of restriction on ability to ensure equality between litigants — Effect of restriction on publication of information in reasons for judgment — Effect of restriction on ability of party to bring appeal proceedings — Role of Executive officers in relation to the judicial process.

Words and phrases — ‘confidential’, ‘fortification removal notice’, ‘publicly disclosed’, ‘review’.

Constitution, Ch III.

Corruption and Crime Commission Act 2003 (WA), s 76(2) ..

Representation

D Grace QC with M K Moshinsky and A M Dinelli for the appellant (instructed by Williams Ellison Barristers & Solicitors)

D F Jackson QC with R M Mitchell for the respondent (instructed by State Solicitor for Western Australia)

D M J Bennett QC, Solicitor-General of the Commonwealth with S P Donaghue intervening on behalf of the Attorney-General of the Commonwealth (instructed by Australian Government Solicitor)

M G Sexton SC, Solicitor-General for the State of New South Wales with J G Renwick intervening on behalf of the Attorney-General for the State of New South Wales (instructed by Crown Solicitor (NSW))

C J Kourakis QC, Solicitor-General for the State of South Australia with M J Wait and J P McIntyre intervening on behalf of the Attorney-General for the State of South Australia (instructed by Crown Solicitor for South Australia)

P M Tate SC, Solicitor-General for the State of Victoria with J M Davidson and J A Redwood intervening on behalf of the Attorney-General for the State of Victoria (instructed by Victorian Government Solicitor)

W Sofronoff QC, Solicitor-General of the State of Queensland with P Davis SC and D D Keane intervening on behalf of the Attorney-General of the State of Queensland (instructed by Crown Solicitor for Queensland)

M P Grant QC, Solicitor-General for the Northern Territory with S L Brownhill intervening on behalf of the Attorney-General for the Northern Territory (instructed by Solicitor for the Northern Territory)

ORDER

Appeal dismissed with costs.

1 Gleeson CJ. The issues, the facts and the legislation appear from the reasons for judgment of Crennan J. I agree that the appeal should be dismissed for the reasons given by Crennan J, and would make the following additional comments.

2 In question was the possible invalidity of s 76 of the Corruption and Crime Commission Act 2003 (WA) (‘the CCC Act’), or at least s 76(2). The appellant contended that s 76(2) was invalid, but that the remainder of the section was valid. The respondent argued that s 76 was wholly valid but, if that were not so, then it was wholly invalid: in brief, that, if s 76(2) were invalid, it was inseverable.

3 The legislation of which s 76 is a part, in its broadest outline, is of a kind which authorises the executive government to order the making of alterations to, or the carrying out of work on, buildings. As was pointed out in argument, such orders are commonly made for a variety of reasons, including health, sanitation, considerations of local amenity, or lack of permission under laws relating to planning and development. When made, the orders affect property rights. The orders with which the relevant provisions of the CCC Act are concerned have a narrower focus. They affect a certain kind of property right, involving the erection and maintenance of heavy fortifications on premises. Where the premises are suspected of being used by people involved in organised crime, there is a power to order removal of the fortifications. Such removal facilitates access to the premises (for example, pursuant to search warrants) by law enforcement agencies. The relevant provisions of the CCC Act were enacted to replace earlier legislation entitled the Criminal Investigation (Exceptional Powers) and Fortification Removal Act 2002 (WA).

4 Section 76 provides for a limited form of judicial review of fortification removal notices issued by the Commissioner of Police under s 72(2) of the CCC Act. Such a notice requires a reasonable belief by the Commissioner of Police that the subject premises are heavily fortified and are habitually used as a place of resort by people reasonably suspected to be involved in organised crime. Under s 76(1), the question for the Supreme Court, upon review, is whether the Commissioner of Police could reasonably have had that belief.

5 It is only necessary to state the context and the issue to see that it is likely that judicial review proceedings under s 76 may give rise to problems of confidential information, including information that would reveal the identity of police informers or compromise current police investigations. Parliament sought to address those problems in s 76(2). It is, however, important to consider the alternative, especially since it is said that s 76 could operate without s 76(2). An alternative would have been to make no specific provision about confidentiality, but to leave the general law to apply. Claims for public interest immunity against disclosure of information of the kind just mentioned are well known 1. The consequence of success of such a claim is that information which is subject to the immunity is not available as evidence to be taken into account in deciding the outcome of the proceedings. In view of the nature of the proceedings for which s 76(1) provides, and the issue in those proceedings, there would almost certainly be cases in which a successful claim for public interest immunity by the Commissioner of Police would have the practical consequence of making it impossible for the Court to exercise the review function contemplated by s 76(1). The Court would not be able to have regard to some, or perhaps any, of the information on which the Commissioner's belief was based. In that event, the application for review may be bound to fail. Without s 76(2), not only would s 76 have a substantially different practical operation; there would be plainly foreseeable circumstances in which it would have no practical operation at all. A provision such as s 7 of the Interpretation Act 1984 (WA) cannot be applied to produce a consequence so radically different from that which Parliament has enacted 2.

6 Quite apart from the question of severability, this consideration of how s 76 would work without s 76(2) assists to place in proper perspective the appellant's arguments based on Kable v Director of Public Prosecutions3. Another consideration essential to an evaluation of that argument is the true construction of s 76(2). Wheeler JA, who dissented in the Western Australian Court of Appeal, recorded that there was little argument addressed to that Court about the proper construction of s 76 in its statutory context. In this Court, senior counsel for the respondent's first argument was that Wheeler JA had based her decision upon an erroneous interpretation of s 76(2).

7 Wheeler JA held it to be fatal to the validity of s 76(2) that, in a context of determining (under s 76(1)) the validity of executive action, the Court was required by s 76(2) to accept a decision, dictated to it by the Commissioner of Police, as to the confidentiality of information, without exercising its own judgment about the matter of confidentiality. Senior counsel for the respondent Commissioner submitted that this view of s 76(2) is incorrect, and the error of construction undermines the basis of Wheeler JA's reasoning. The submission should be accepted. For the reasons explained by Crennan J, and by Gummow, Hayne, Heydon and Kiefel JJ, s 76(2) does not empower the Commissioner of Police to dictate anything. It enables the Commissioner of Police to identify information and make a claim for confidentiality, advancing reasons (if the

conclusion is not self-evident) as to why its disclosure might prejudice the operations of the Commissioner. It is for the Court to decide whether the claim for confidentiality should be upheld, that is, whether the condition upon which s 76(2) operates (that disclosure might prejudice the operations of the Commissioner) has been made out. That is the construction of s 76(2) advanced on behalf of the Commissioner of Police in this Court. It appears from what Wheeler JA said that it was not a question that was the subject of much, or any, argument in the Court of Appeal, but it is not suggested that the point is not now open for debate. The ground on which Wheeler JA decided the case in favour of the appellant makes the point very important. Senior Counsel for the Commissioner submitted that ‘if the Court determined that disclosure of the information identified as confidential could not prejudice the Commissioner's operations, then that...