Court of Appeal Supreme Court New South Wales

• Medium Neutral Citation: A v Independent Commission Against Corruption [2014] NSWCA 414
• Hearing dates: 4 November 2014
• Decision date: 05 December 2014
• Before: Bathurst CJ at [1]; Basten JA at [8]; Ward JA at [77]

Decision

1. Grant leave to appeal.

 

2. Appeal dismissed with costs.

 

3. Prohibit the disclosure of the name of, and any material capable of enabling identification of, (a) the applicant or (b) the person whose electronic records are sought to be produced to the ICAC until public release of any ICAC report of the investigation to which the summons to produce relates, or until further order of this Court.

 

4. Revoke, with effect from the making of order 3, the non-publication order made by the Court on 1 September 2014.

 

5. Liberty to apply to vary order 3.

 

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

• Catchwords: ADMINISTRATIVE LAW - judicial review - summons to produce documents issued by ICAC - ICAC Act s 35(1) - whether primary judge erred in finding summons authorised by s 35 - whether decision to issue summons was for a purpose other than an investigation - whether decision to issue summons illogical, irrational or unreasonable - whether ICAC failed to accord procedural fairness to appellant; ADMINISTRATIVE LAW - judicial review - notice to produce served on ICAC by appellant - whether primary judge erred in setting aside notice to produce - whether primary judge erred in finding ICAC Act, s 111(3) applies to ICAC as a separate legal personality - whether primary judge erred in concluding s 111(3) applies to documents created internally by ICAC; CONSTITUTIONAL LAW - implied freedom of communication on governmental and political matters - whether primary judge erred in finding s 35 reasonably appropriate and adapted or proportionate to an identified legitimate statutory purpose and therefore consistent with the implied freedom; CONSTITUTIONAL LAW - judicial review - whether primary judge erred in finding s 111(3) consistent with power of Supreme Court to grant relief in relation to jurisdictional error
• Legislation Cited: Constitution (Cth), s 73; Court Suppression and Non-publication Orders Act 2010 (NSW), ss 8, 16; Crimes Act 1914 (Cth), s 15X; Evidence Act 1995 (NSW), s 55; Independent Commission Against Corruption Act 1988 (NSW), ss 4, 13, 20, 21, 22, 30, 31, 35, 37, 86, 98, 99, 100, 111; Legal Practitioners Act 1981 (SA); National Crime Authority Act 1984 (Cth), s 28; Retirement Villages Act 1999 (NSW), s 193; Trade Practices Act 1974 (Cth), s 155; Uniform Civil Procedure Rules 2005 (NSW)
• Cases Cited: Associated Provincial Picture Houses v Wednesbury Corporation [1948] 1 KB 223; Australian National Car Parks Pty Ltd v New South Wales [2014] NSWCA 298; (2014) 287 FLR 448; Australian Securities and Investments Commission v Hellicar [2012] HCA 17; (2012) 247 CLR 345; A v Independent Commission Against Corruption [2014] NSWSC 1167; Avon Downs Pty Ltd v Federal Commissioner of Taxation [1949] HCA 26; (1949) 78 CLR 353; Blatch v Archer (1774) 1 Cowp 63; 98 ER 969; Buck v Bavone [1976] HCA 24; (1986) 135 CLR 110; Canadian Pacific Tobacco Co Ltd v Stapleton [1952] HCA 32; (1952) 86 CLR 1; CCOM Pty Ltd v Jiejing Pty Ltd (1992) 37 FCR 1; Cheikho v R [2008] NSWCCA 191; (2008) 75 NSWLR 323; Church of Scientology Inc v Woodward [1982] HCA 78; (1980) 154 CLR 25; Coleman v Power [2004] HCA 39; (2004) 220 CLR 1; Controlled Consultants Pty Ltd v Commissioner for Corporate Affairs [1985] HCA 6; (1985) 156 CLR 385; Corporate Affairs Commission (NSW) v Yuill [1991] HCA 28; 172 CLR 319; Director-General of the Department of Fair Trading v Vasey Housing Association NSW [2002] NSWCA 320; (2002) 55 NSWLR 347; Fardon v Attorney-General (Qld) [2004] HCA 46; (2004) 223 CLR 575; Finlayson v Legal Practitioners Conduct Board [2012] SASC 77; (2012) 112 SASR 549; Gypsy Jokers Motorcycle Club Inc v Commissioner of Police [2008] HCA 4; (2008) 234 CLR 532; Hagan v Independent Commission Against Corruption [2001] NSWSC 890; Hogan v Hinch [2011] HCA 4; (2011) 243 CLR 506; Independent Commission Against Corruption v Cornwall (1993) 38 NSWLR 207; Kable v Director of Public Prosecutions (NSW) [1996] HCA 24; (1996) 189 CLR 51; K-Generation Pty Ltd v Liquor Licensing Court [2009] HCA 4; (2009) 237 CLR 501; Kirk v Industrial Court of New South Wales [2010] HCA 1; (2010) 239 CLR 531; Lange v Australian Broadcasting Corporation [1997] HCA 25; (1997) 189 CLR 520; Lee v New South Wales Crime Commission [2013] HCA 39; (2013) 87 ALJR 1082; Melbourne Home of Ford Pty Ltd v Trade Practices Commission (No 3) [1980] FCA 94; (1980) 47 FLR 163; MF1 v National Crime Authority (1991) 33 FCR 449; Miller v TCN Channel Nine Pty Ltd [1986] HCA 60; (1986) 161 CLR 556; Minister for Home Affairs v Zentai [2012] HCA 28; (2012) 246 CLR 213; Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332; National Companies and Securities Commission v News Corp Ltd [1984] HCA 29; (1984) 156 CLR 296; Nicholas v The Queen [1998] HCA 9; (1998) 193 CLR 173; Osborne v R [2014] NSWCCA 17; 283 FLR 97; Padfield v Minister of Agriculture, Fisheries and Food [1968] AC 997; Public Service Board (NSW) v Osmond [1986] HCA 7; (1986) 159 CLR 656; Re Minister for Immigration and Multicultural and Indigenous Affairs, ex parte Palme [2003] HCA 56; (2003) 216 CLR 212; Rochfort v Trade Practices Commission [1982] HCA 66; (1982) 153 CLR 134; Seven Network Ltd v Australian Competition and Consumer Commission [2004] FCAFC 257; (2004) 140 FCR 170; Sunol v Collier (No 2) [2012] NSWCA 44; (2012) 260 FLR 414; Tajjour v New South Wales; Hawthorne v New South Wales; Forster v New South Wales [2014] HCA 35; (2014) 88 ALJR 860; The Age Company Limited v Liu [2013] NSWCA 26; (2013) 82 NSWLR 268; The Commonwealth v Melbourne Harbour Trust Commissioners [1922] HCA 31; (1922) 31 CLR 1; The King v Connell; ex parte The Hetton Bellbird Collieries Limited [1944] HCA 42; (1944) 69 CLR 407; Wotton v Queensland [2012] HCA 2; (2012) 246 CLR 1
• Category: Principal judgment
• Parties: A (Applicant); Independent Commission Against Corruption (First Respondent); Attorney General for New South Wales (Second Respondent)
• Representation: Counsel: B R McClintock SC with D F C Thomas (Applicant); R P L Lancaster SC with S Robertson (First Respondent); M G Sexton SC SG with K Richardson (Second Respondent); Solicitors: Johnson Winter & Slattery (Applicant); NSW Crown Solicitor's Office (First and Second Respondents)
• File Number(s): CA 2014/00259069
• Publication restriction: Orders made prohibiting disclosure of identity of applicant and of person whose electronic records are sought under a summons issued by the ICAC - see order 3 above.

Decision under appeal

• Citation: A v Independent Commission Against Corruption [2014] NSWSC 1167
• Date of Decision: 27 August 2014
• Before: Harrison J
• File Number(s): SC 2014/00205483

HEADNOTE

[This Headnote is not to be read as part of the judgment]

The Independent Commission Against Corruption (ICAC) issued a summons to the appellant (A Co) requiring the production of certain documents at a compulsory examination in purported exercise of its power under s 35(1) of the Independent Commission Against Corruption Act 1988 (NSW) (ICAC Act). The documents sought were identified as email account(s) and electronic calendar(s) operated by or on behalf of a named person but were not otherwise limited by reference to date or subject matter.

In response, A Co commenced proceedings in the Common Law Division seeking that the summons be set aside on the basis inter alia that its issue exceeded the power invested in ICAC by s 35. A Co also served on ICAC a notice to produce in connection with its application for relief, which ICAC applied to have set aside in reliance on the secrecy protection afforded by s 111(3) of the ICAC Act. A Co appealed from the decision of the primary judge refusing to set aside the summons and setting aside the notice to produce.

Held, dismissing the appeal:

(1) by Basten JA at [24] (Bathurst CJ at [2] and Ward JA at [117] agreeing) the power to compel the production of documents under s 35, being incidental to the power to conduct a compulsory examination, may only be exercised for the purposes of an investigation by ICAC.

(2) by Basten JA at [75] (Bathurst CJ at [3] and Ward JA at [141]-[144], [148] agreeing) the breadth of the summons did not establish that the Commissioner had failed to take into account relevant considerations or that the decision to issue the summons was irrational or unreasonable or was not otherwise authorised by s 35 of the ICAC Act.

Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332 considered.

(3) by Basten JA at [27] and [30] (Bathurst CJ at [4]-[5] and Ward JA at [121] agreeing) a person required to appear and produce documents at an inquiry would be entitled to object to the production of documents after ICAC has informed the person of the nature of the complaint being investigated, but a decision by the Commission to overrule any objection may only be challenged on judicial review grounds.

Finlayson v Legal Practitioners Conduct Board [2012] SASC 77; (2012) 112 SASR 549; Buck v Bavone [1976] HCA 24; (1986) 135 CLR 110; The King v Connell; ex parte The Hetton Bellbird Collieries Limited [1944] HCA 42; (1944) 69 CLR 407 considered.

(4) by Basten and Ward JJA (at [56] and [149],) (Bathurst CJ agreeing at [7]) the implied freedom of communication on governmental and political matters operates as a limitation on the power conferred on ICAC by s 35(1), rather than as a mandatory consideration in the exercise of that power.

Wotton v Queensland [2012] HCA 2; (2012) 246 CLR 1 applied.

(5) by Basten JA at [66], [68]-[69]) and Ward JA at [158] and [161] (Bathurst CJ agreeing at [7]) s 35(1) may indirectly burden the implied freedom of political communication but, to that extent, it is reasonably appropriate and adapted to the legitimate purpose of investigating allegations of public corruption.

Lange v Australian Broadcasting Corporation [1997] HCA 25; (1997) 189 CLR 520; The Age Company Ltd v Liu [2013] NSWCA 26; (2013) 82 NSWLR 268 applied.

(6) by Basten JA at [42] and Ward JA at [167] (Bathurst CJ agreeing at [7]) the secrecy protection afforded by s 111(3) prevents a persons being compelled to produce documents on behalf of ICAC in answer to a notice to produce addressed to ICAC.

Hagan v Independent Commission Against Corruption [2001] NSWSC 890 applied; Rochfort v Trade Practices Commission [1982] HCA 66; (1982) 153 CLR 134 considered.

(7) by Basten at [46] and Ward JJA at [178], (Bathurst CJ agreeing at [7]) s 111(3) is not limited to documents that have been received by ICAC from an external source but extends to documents that are created internally within ICAC.

Minister for Home Affairs v Zentai [2012] HCA 28; (2012) 246 CLR 213 considered.

(8) by Basten JA at [52] and Ward JA at [184] (Bathurst CJ agreeing at [7]) s 111(3) does not compromise the integrity of the Supreme Court by interfering with the Court's constitutionally protected power to grant relief for jurisdictional error affecting a decision to issue a summons under s 35.

Kirk v Industrial Court of New South Wales [2010] HCA 1; (2010) 239 CLR 531 considered; Church of Scientology Inc v Woodward [1982] HCA 78; (1980) 154 CLR 25; Fardon v Attorney-General (Qld) [2004] HCA 46; (2004) 223 CLR 575 applied.

(9) by Basten JA at [73] and Ward JA at [191] (Bathurst CJ agreeing at [7]) ICAC did not fail to accord procedural fairness to A Co in breach of s 30(3) of the ICAC Act by not disclosing the nature of the allegation or complaint being investigated at a time before the latest time by which A Co was entitled to that information.

Judgment

 

1 BATHURST CJ: In this matter I have had the advantage of reading the judgments of Basten JA and Ward JA in draft. I agree with the orders which they propose.

 

2 As stated by Basten JA and Ward JA, the power to require the production of documents contained in s 35 of the Independent Commission Against Corruption Act 1988 (NSW) (the Act) must be exercised in good faith for the purpose for which it is conferred, namely, the purpose of an investigation which the Commission is empowered to carry out under the Act.

 

3 However, as has been pointed out in cases such as National Companies and Securities Commission v The News Corporation Limited [1984] HCA 29; (1984) 156 CLR 296, MF1 v National Crime Authority (1991) 33 FCR 449 and Melbourne Home of Ford Pty Ltd v Trade Practices Commission and Bannerman (No 3) [1980] FCA 94; (1980) 47 FLR 163, the power should not be narrowly confined and would extend to the investigation of facts or the consideration of documents which may not on their face suggest or deny the possibility of corrupt conduct. In the present case I agree with Basten JA and Ward JA that A has not established that the summons was issued for an improper purpose or was not otherwise authorised by s 35 of the Act.

 

4 I also agree with Basten JA and Ward JA that a person required to appear and produce documents at an inquiry would be entitled to object to the production of documents after the Commission has complied with its obligations under ss 30(3) or 31(6) of the Act to inform the person of the nature of the complaint being investigated. Objection to production could include objections on the ground of relevance.

 

5 That does not mean that such a person would be entitled to a merits review by a Court in the event that the Commission required production over objection. As was pointed out in Melbourne Home of Ford Pty Ltd v Trade Practices Commission and Bannerman (No 3) at 174-175, it is for the Commission, not the Court, to determine how the investigation is to be conducted. Any decision by the Commission to overrule any objection could thus only be challenged on grounds appropriate to judicial review, including improper purpose or unreasonableness in the sense described by the High Court in Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332.

 

6 The position would be different if the person required to produce the documents sought to rely on the defence in s 86(2) of the Act in a prosecution for failing to produce them. In these circumstances the onus would be on the accused person to prove as a matter of fact that the documents were irrelevant to the investigation.

 

7 Subject to these matters I agree with the reasons of Basten JA and Ward JA.

 

8 BASTEN JA: The applicant is the recipient of a summons to produce documents issued by the respondent Commission under s 35 of the Independent Commission Against Corruption Act 1988 (NSW) ("the ICAC Act"). The applicant (whose name has been suppressed) invited the Commission to revoke or otherwise not enforce the summons, failing which it indicated its intention to take proceedings in the Supreme Court to have the summons set aside.

 

9 On 11 July 2014 the applicant was notified that "the Commissioner has considered the grounds of your objections and is not persuaded to set aside the Summons to Produce." On the same day, the applicant filed proceedings in the Common Law Division seeking various orders to the same effect, namely that the Commission's summons was invalidly issued and should be set aside. The matter came on for hearing before Harrison J exactly one month later, on 11 August 2014. In the meantime, the applicant had served on the Commission a notice to produce material designed, in part, to reveal the circumstances in which the Commission had issued its summons. On 4 August 2014 the Commission filed a notice of motion seeking to set aside the notice to produce. Both the applicant's summons and the Commission's motion were heard together, on the basis that if the judge determined that the notice to produce should not be set aside, but should be answered by the production of documents, the matter would be adjourned to allow the applicant an opportunity to obtain documents and make further submissions in support of its summons. In the event, the trial judge set aside the notice to produce and proceeded to deal with the applicant's summons, which he dismissed: A v Independent Commission Against Corruption [2014] NSWSC 1167.

 

10 The version of the judgment available on Caselaw has been redacted to remove material identifying the applicant and a person within its control, whose documents were the subject of the subpoena. Appropriate suppression orders remain in force. Any person revealing such information is liable to be dealt with in accordance with s 16 of the Court Suppression and Non-publication Orders Act 2010 (NSW), either for an offence or for contempt of court. It is appropriate to replace the non-publication order made on 1 September 2014, with an order in similar, though not identical terms, but not applying to identification of the Commission. Such an order is made on the ground in s 8(1)(e) of the 2010 Act (being necessary in the public interest, namely an effective investigation by the Commission).

 

11 For reasons to be explained below, both the application to set aside the Commission's summons, and the supporting notice to produce, were pursued on grounds which were misconceived. Accordingly, the appeal must be dismissed. On the other hand, the Commission had ample opportunity to acknowledge and accommodate the legitimate concerns of the applicant, but preferred the course of avoiding practical engagement. It could have been unnecessary for the applicant to invoke, or the Commission to submit to, the supervisory jurisdiction of this Court. Why that was so requires consideration of the structure of the ICAC Act.

 

Structure of Independent Commission Against Corruption Act

12 The Commission was established by the ICAC Act (s 4) with its principal function being "to investigate any allegation or complaint that, or any circumstances which in the Commission's opinion imply that ... corrupt conduct ... may have occurred, may be occurring or may be about to occur": s 13(1)(a). For that purpose, the Commission may carry out investigations "on its own initiative, on a complaint made to it, on a report made to it or on a reference made to it": s 20(1). In the course of an investigation it has various powers to obtain information and documents: s 21 and s 22. These powers were not relied on in the present case and their scope and limitations need not be addressed.

 

13 Separate powers are conferred on the Commission permitting it to conduct "compulsory examinations" and "public inquiries": see s 30 and s 31 respectively. For the purposes of such examinations and inquiries, the Commission is given power to summon witnesses to give evidence or to produce documents: s 35(1). Although the power to summon a person is vested in the Commissioner, either a compulsory examination or a public inquiry may be conducted by an Assistant Commissioner or the Commissioner: s 30(2) and s 31(4).

 

14 Section 37 is in the following terms:

 

37 Privilege as regards answers, documents etc

 

(1) A witness summoned to attend or appearing before the Commission at a compulsory examination or public inquiry is not entitled to refuse:

 

(a) to be sworn or to make an affirmation, or

(b) to answer any question relevant to an investigation put to the witness by the Commissioner or other person presiding at a compulsory examination or public inquiry, or

(c) to produce any document or other thing in the witness's custody or control which the witness is required by the summons or by the person presiding to produce.

 

(2) A witness summoned to attend or appearing before the Commission at a compulsory examination or public inquiry is not excused from answering any question or producing any document or other thing on the ground that the answer or production may incriminate or tend to incriminate the witness, or on any other ground of privilege, or on the ground of a duty of secrecy or other restriction on disclosure, or on any other ground.

 

15 There is a curiosity of the drafting of subs 37(1) which was referred to some years ago in Independent Commission Against Corruption v Cornwall (1993) 38 NSWLR 207, at 218F. Abadee J noted that although the obligation to answer a question in par (b) is restricted to a question "relevant to an investigation", there is no such limitation with respect to the obligation to produce documents in par (c). A similar limitation is found as a defence to an offence under s 86 for failing to produce a document. However, the Commission asserted in this Court that the relevant legislative structure produces a different consequence in each case. In particular, the Commission resisted the suggestion that there was any implied right to object to production of documents on the ground of irrelevance to an investigation.

 

16 The Commission's summons stated that it was issued under s 35 and contained the following statement under the heading "Failure to appear":

 

"It is an offence under s 86 of the ICAC Act without reasonable excuse to fail to attend before the ICAC in accordance with this summons."

 

17 Section 86 is (so far as relevant) in the following terms:

 

86 Failure to attend etc

 

(1) A person summoned to attend or appearing before the Commission at a compulsory examination or public inquiry shall not, without reasonable excuse, fail:

 

(a) to attend before the Commission in accordance with the summons, or

 

...

(d) to produce any document or other thing in the person's custody or control which the person is required by the summons or by the person presiding to produce.

 

Maximum penalty: 20 penalty units or imprisonment for 2 years, or both.

 

(2) It is a defence to a prosecution for failing without reasonable excuse to produce a document or other thing if the defendant establishes that the document or other thing was not relevant to an investigation.

 

18 Although the summons does not so state, a person served with a summons who fails to attend as required may also be guilty of contempt of the Commission: ICAC Act, s 98(a). Further, the person may be guilty of contempt for failure to produce, as required by the summons, any document in the person's custody and control: s 98(b). Where the "offender" commits contempt "in the face or hearing of the Commission", he or she may "be taken into custody in a prison or elsewhere then and there by a member of the NSW Police Force and called upon to show cause why the offender should not be dealt with under section 99 for contempt": s 100(3).

 

19 Instead of providing that a person, having a reasonable excuse, who fails to produce a document, is not guilty of contempt, the Act provides merely that a person "is not liable to be punished" for contempt under s 99 "where the person establishes that there was a reasonable excuse for the act or omission concerned": s 99(6).

 

20 This brief outline of key provisions in the ICAC Act indicates that the term "reasonable excuse" is used in a number of contexts. On one view, failure to produce a document pursuant to s 37(1) will constitute contempt, even if the document is irrelevant to any investigation being conducted by the Commission, although if the person can establish that he or she had a "reasonable excuse" there will be no liability to punishment for contempt. So far as the offence under s 86 is concerned, the burden of establishing that the document was not "relevant to an investigation" lies on the person summoned.

 

21 Because the obligation to answer questions, imposed by s 37, is limited to questions relevant to an investigation, it would appear that the person is entitled to object to answering a question on the basis that it is irrelevant to the investigation. However, the Commission submitted that no similar right to object could be implied in circumstances where the legislation had expressly provided, with respect to a failure to produce a document, that the question of reasonable excuse (or relevance to an investigation) was to be treated only as a defence to be established in relevant criminal proceedings.

 

22 There is a separate issue whether the concept of "reasonable excuse" extends to matters beyond the question of relevance to the investigation. To the extent that a "reasonable excuse" may otherwise include client legal privilege and the privilege against self-incrimination, it is qualified by express provisions of the ICAC Act. However, "reasonable excuse" is not limited to such legal constraints, but is generally apt to include physical and practical difficulties in complying with the requirement: Controlled Consultants Pty Ltd v Commissioner for Corporate Affairs [1985] HCA 6; (1985) 156 CLR 385 at 392 (Gibbs CJ, Mason and Dawson JJ); Corporate Affairs Commission (NSW) v Yuill [1991] HCA 28; (1991) 172 CLR 319 at 336 (Dawson J, Toohey J agreeing).

 

23 The proposition espoused by the Commission that a person summoned to appear and produce documents has no right, upon appearing, to take objection is unattractive on a number of grounds. Although the scheme of the legislation set out above gives a level of superficial support for the Commission's submission, it should be rejected.

 

24 First, the power to conduct a compulsory examination under s 30 is limited to "the purposes of an investigation", under s 30(1). The power to summon a person to appear at a compulsory examination pursuant to s 35, to give evidence or to produce documents, is incidental to the power to conduct a compulsory examination, and subject to the same limitation. The power to compel production being available only for the purposes of a valid investigation must therefore be limited by the valid purpose.

 

25 Secondly, the Act expressly requires that the person required to attend either a compulsory examination or a public inquiry is, in each case, entitled to be informed of the nature of the allegation or complaint being investigated: s 30(3). (Whether the additional entitlement to be informed of the "general scope and purpose of" the public inquiry, under s 31, expands the scope of the information required to be provided is not clear, but not presently relevant.) The information must be supplied "before or at the commencement of the compulsory examination", pursuant to s 30(3). The entitlement to be so informed is entirely understandable: it would be remarkable if a citizen could be required to attend before the Commission and be interrogated without any notice of the possible scope of the interrogation. However, the obvious purpose of providing such information would be nullified if the interrogation could nevertheless extend without reference to the purpose. If the witness is entitled to have the questioning so contained, it is reasonable to imply a right in the witness to object to questions which appear to cross the boundary. As was accepted in Cornwall, it may be that the boundary is more porous than would be the case were s 55 of the Evidence Act 1995 (NSW) to operate as in adversary litigation, where identified issues are to be resolved.

 

26 Thirdly, it is by no means clear why, as a matter of principle, a different approach should be intended with respect to the production of documents. While it is true that the concept of being "relevant to an investigation" is only identified with respect to documents by way of a defence to a prosecution for failure to produce the document, as a practical matter it makes little sense that such a claim can be tested only in the course of a prosecution. Particularly is that so where a failure to produce a document may result in immediate arrest and imprisonment.

 

27 Fourthly, conceding that, whether explicable or not, there is a different approach adopted by the statute with respect to answering questions and producing documents, the principle of interpretation now commonly (but anomalously - Parliament would not act illegally in limiting or revoking a right) referred to as the "principle of legality" would operate in favour of a construction which allowed the recipient of a summons to take objection to production of documents on the ground of irrelevance to the investigation being undertaken by the Commission. In short, the freedom of the citizen from arbitrary interference with documents under his or her custody or control, and the threat of deprivation of liberty for failure to produce them, without a right to object should not be accepted, absent a clear expression of statutory intention to that effect: see generally, Lee v New South Wales Crime Commission [2013] HCA 39; (2013) 87 ALJR 1082 at [307]-[314] (Gageler and Keane JJ). It is not possible to discern a clear intention to remove any right of objection on the part of the recipient of a summons, on the basis of the language used in the provision set out above, or from the general purpose of the Act.

 

28 Fifthly, it is significant that the recipient of a summons may be a person possibly involved in corrupt conduct, a person who is the victim of corrupt conduct or a person who has no connection with any such conduct, whether corrupt or not, but whose documents may provide clues as to the conduct of others. Accepting the capacity of corruption to undermine the common weal, one would nevertheless not expect the Parliament to intrude upon the privacy and property rights of unaffected individuals without allowing them a reasonable opportunity to object.

 

29 As counsel for the Commission noted, the power to deal with an objection ultimately rests with the Commissioner conducting the hearing. He or she is likely to have detailed information about the investigation of which the recipient of the summons is and will remain ignorant. Further, records may be relevant in particular circumstances for what they do not contain, rather than their actual contents. For example, if A alleges that he was in touch with B over a particular period, the absence of any reference to such contact in B's records may cast doubt upon A's statement. However, these considerations illustrate possible limits on the effectiveness of an objection, rather than a reason to conclude that no power of objection should be implied.

 

30 The decision as to relevance should be made in the first instance by the Commissioner in ruling on any objection raised by the recipient of the notice. In Finlayson v Legal Practitioners Conduct Board [2012] SASC 77; (2012) 112 SASR 549 at [53], White J said of a similar provision in the Legal Practitioners Act 1981 (SA):

 

"The true position is that in every case, it must be able to be said that, considered objectively, the Board has exercised the power under s 76(3)(a) to require the production of documents for a purpose which is reasonably related to that for which that power is granted, that is, an investigation authorised by s 76. The Board's own subjective view of the position is not decisive of that question. Further, the compliance or otherwise by the Board with the requirement that its exercise of power be reasonably related to the purposes for which the power is conferred must be capable of assessment at the time of its exercise, and not only after that exercise."

 

It may be that a ruling by the Commissioner can only be reviewed on the grounds available with respect to a state of satisfaction: see The King v Connell; Ex parte The Hetton Bellbird Collieries Limited [1944] HCA 42; (1944) 69 CLR 407 and Buck v Bavone [1976] HCA 24; (1976) 135 CLR 110. There may be different temporal elements with respect to a summons challenged as facially invalid and a challenge to the production of a particular document or class of documents. The present case involved a challenge to the act of issuing the summons.

 

31 This statutory scheme is significant in the present case for two reasons. First, the applicant has not been provided with information as to the nature of the allegation or complaint being investigated. Nor is the Commission yet in breach of its obligation to provide such information, given that the compulsory examination has apparently not commenced. As a practical matter, it may be more efficient in many circumstances to provide that information before the commencement of the examination, so that any objection can be dealt with expeditiously and efficiently. In other cases, the Commission may wish to secure the material in some way without necessarily obtaining access to it, prior to providing such information. Such a course would not necessarily constitute a breach of s 30(3). The applicant's complaint is not, in any event, that the Commission has failed to provide information as to the nature of the allegation or complaint being investigated, nor that it should be so provided before the documents are produced. Rather, the applicant seeks to challenge the decision to issue the summons.

 

32 The second (and consequential) point of significance is that in seeking to challenge the summons the applicant must mount the challenge without any information as to the nature of the allegation or complaint being investigated. Its principal arguments were encapsulated in two propositions. One was that the terms of the schedule to the summons, setting out the documents to be produced, were so broad as to demonstrate that the summons could not have been issued for a legitimate purpose relating to an investigation. The second proposition was that the summons must inevitably catch documents which were irrelevant to any possible investigation being undertaken by the Commission. Neither of these propositions is self-evidently correct. The first relies on the kind of reasoning reflected in the judgment of Dixon J in Avon Downs Pty Ltd v Federal Commissioner of Taxation [1949] HCA 26; (1949) 78 CLR 353 at 360. That case involved an assessment of tax upon the income of a company, which depended upon the effectiveness of a transfer of shares giving control over the company. Dixon J stated:

 

"But it is for the commissioner, not for me, to be satisfied of the state of the voting power at the end of the year of income. His decision, it is true, is not unexaminable. If he does not address himself to the question which the sub-section formulates, if his conclusion is affected by some mistake of law, if he takes some extraneous reason into consideration or excludes from consideration some factor which should affect his determination, on any of these grounds his conclusion is liable to review. Moreover, the fact that he has not made known the reasons why he was not satisfied will not prevent the review of his decision. The conclusion he has reached may, on a full consideration of the material that was before him, be found to be capable of explanation only on the ground of some such misconception. If the result appears to be unreasonable on the supposition that he addressed himself to the right question, correctly applied the rules of law and took into account all the relevant considerations and no irrelevant considerations, then it may be a proper inference that it is a false supposition. It is not necessary that you should be sure of the precise particular in which he has gone wrong. It is enough that you can see that in some way he must have failed in the discharge of his exact function according to law."

 

33 The application of that principle in the present circumstances has difficulties for the applicant. As with Avon Downs, the applicant does not have reasons for the decision. On the other hand, in Avon Downs the issue which the decision-maker was addressing was known with precision, in part because the Court had available to it all the material which was before the decision-maker. That is not so in the present case. Not only is the relevant material unavailable (and, assuming the notice to produce was invalid, unobtainable), but of equal importance, the test to which the Assistant Commissioner must have directed her mind in issuing the summons is neither precise as a matter of law, nor known as a matter of context: it requires an assessment of relevance to an investigation, the subject of which is undisclosed.

 

34 So far as the second approach is concerned, it is well established that the possibility, even the certainty, that the summons will cover documents which are not relevant to the investigation is not a basis for setting aside the summons. In Melbourne Home of Ford Pty Ltd v Trade Practices Commission (No 3) [1980] FCA 94; (1980) 47 FLR 163, a Full Court of the Federal Court (Brennan, Keely and Fisher JJ) considered a number of issues with respect to the scope and operation of s 155 of the Trade Practices Act 1974 (Cth). As may be observed from the Court's statement of the issues which ordinarily arise with respect to the validity of a s 155 notice (at 172), the terms of the section vary from s 35 of the ICAC Act, the questions being:

 

"(1) whether there is a 'matter that constitutes, or may constitute, a contravention';

(2) whether the Commission ... has reason to believe that the person to whom the notice is given 'is capable of furnishing information, producing documents or giving evidence relating to' that matter; and

(3) whether the information required to be furnished, the documents required to be produced or the evidence required to be given (as the case may be) relates to that matter."

 

35 The Court further noted that "[t]he first two of these questions are material to the existence of the power to issue a notice, the last to the manner of its exercise."

 

36 There is no doubt that a notice must not be issued for an improper purpose; further, the person responsible for issuing the notice must believe in good faith that it complies with the relevant limitations on the statutory power. However, as the Court stated at 173-174, in terms which are apt to apply to the ICAC Act:

 

"The power conferred by s 155(1) is in aid of that function and is a power which authorizes inquiries both wide in scope and indefinite in subject matter. It is an investigative power which is under consideration here and it is not possible to define a priori the limits of an investigation which might properly be made. The power should not be narrowly confined.

 

...

 

The investigative power may properly be exercised by inquiring into the existence of facts which do not themselves constitute a contravention or deny the possibility of a contravention. The power may properly be exercised to ascertain facts which may merely indicate a further line of inquiry, or which may tend to prove circumstances from which an inference can be drawn as to the existence of other facts which have a more immediate and proximate relationship to the matter under investigation. The width of the power and the possibility of its abuse both justify judicial examination of an allegation that the power is used to produce an undue burden or oppression, and render that examination difficult to perform."

 

37 Finally, the Court's task was encapsulated in the following passage at 174-175:

 

"The court cannot undertake the task of determining the way in which an investigation should be carried out, for that is a task which the legislature has confided to the Commission, the chairman or the deputy chairman. The court's jurisdiction is not to set the course of an investigation but to call a halt if it is shown that the investigation exceeds the powers conferred. Short of that point, the protection of the corporate citizen from harassment rests in the good sense of the repository of the power. To say that an undue or oppressive burden is imposed by a notice is not legally significant unless what is meant is that the powers conferred by s 155 have been exceeded in the particular case.

 

An excess of power may appear if the requirement for information or documents is couched in such wide and general terms that a proper exercise of the investigatory power could not support the requirement in question. This is but a particular application of the general principle that the exercise of a discretionary power must be reasonably capable of being regarded as related to the purpose for which the power is conferred .... If the requirement expressed in a particular notice is reasonably capable of being so regarded, that ground for alleging an excess of power fails."

 

38 The differences in language between s 155 of the Trade Practices Act and s 35 of the ICAC Act are more apparent than real. Section 155 required that the Commission "has reason to believe that a person is capable of furnishing information, producing documents or giving evidence relating to a matter that constitutes, or may constitute, a contravention of this Act...". On the analysis set out above, there is no doubt that s 35 would not be satisfied if, when a notice was issued, the relevant Commissioner did not believe that the recipient was capable of providing that which was sought and that that which was sought was relevant to the subject matter of an investigation. (There may be a question as to whether s 35 incorporates an objective element.) The Court should approach the present challenge to the validity of the notice in a similar way to that articulated in Home of Ford and applied to a similar provision in the National Crime Authority Act 1984 (Cth) in MF1 v National Crime Authority (1991) 33 FCR 449; see also Director-General of the Department of Fair Trading v Vasey Housing Association NSW [2002] NSWCA 320; (2002) 55 NSWLR 347 (dealing with s 193(1) of the Retirement Villages Act 1999 (NSW)) and Seven Network Ltd v Australian Competition and Consumer Commission [2004] FCAFC 267; (2004) 140 FCR 170 at [49] (Sackville and Emmett JJ).

 

Notice to produce

39 The notice to produce sought documents falling within eight paragraphs. Paragraphs 1-4 were restricted to material placed before the Assistant Commissioner, or taken into account by the Assistant Commissioner, in deciding to issue the summons. Paragraph 5 sought all documents bearing a specified reference number, being that provided by the Commission to the applicant for the applicant to use in responding to the summons. Paragraph 6 required documents prepared by the Commission for the purpose of complying with s 30(3) of the ICAC Act. Paragraph 7 required documents relied upon by the Commission in determining to conduct a compulsory examination, and par 8 sought "[a]ny document evidencing or recording the allegation or complaint being investigated by the defendant."

 

40 The applicant's proceedings in the Common Law Division sought to have the s 35 summons issued by the Commission set aside. It sought a declaration that the decision of the Commission to issue the summons was a nullity. It did not, in its terms, challenge any decision to conduct an investigation, nor any decision to hold a compulsory examination. Further, it did not seek to obtain the information required to be supplied under s 30(3). Given the limited focus of those proceedings, it is difficult to see how the requirement to supply the documents identified in pars 5-8 could be supported.

 

(a) secrecy prohibition

41 The Commission's response to the notice to produce was generic, seeking to set aside the whole of the notice, rather than addressing the respective paragraphs. Before the trial judge and in this Court, the Commission relied upon s 111(3) of the ICAC Act for the proposition that it could not be required to produce the material set out in the notice. The applicant's response was that the notice was addressed to the Commission and s 111 was only directed to the responsibilities and powers of officers. In order to address the arguments, it is necessary to understand the structure of the section as a whole.

 

111 Secrecy

 

(1) This section applies to:

 

(a) a person who is or was an officer of the Commission, and

(b) a person who is or was an Australian legal practitioner appointed to assist the Commission or who is or was a person who assists, or performs services for or on behalf of ... the Commission, and

(c) a person who conducts a review under section 104D ..., and

(d) a person or body referred to in section 14(3), 16(4) or 53(6), and

(e) a person who is or was an officer of the Inspector.

 

(2) A person to whom this section applies shall not, directly or indirectly, except for the purposes of this Act or otherwise in connection with the exercise of the person's functions under this Act:

 

(a) make a record of any information, or

(b) divulge or communicate to any person any information,

 

being information acquired by the person by reason of, or in the course of, the exercise of the person's functions under this Act.

 

Maximum penalty: 50 penalty units or imprisonment for 12 months, or both.

 

(3) A person to whom this section applies shall not be required:

 

(a) to produce in any court any document or other thing that has come into the person's possession, custody or control by reason of, or in the course of, the exercise of the person's functions under this Act, or

(b) to divulge or communicate to any court any matter or thing that has come to the person's notice in the exercise of the person's functions under this Act,

 

except for the purposes of a prosecution or disciplinary proceedings instituted as a result of an investigation conducted by the Commission in the exercise of its functions.

 

(4) Despite this section, a person to whom this section applies may divulge any such information:

 

(a) for the purposes of and in accordance with this Act ....

 

...

 

(6) In this section:

 

court includes any tribunal, authority or person having power to require the production of documents or the answering of questions.

 

produce includes permit access to.

 

42 In its terms the section "applies to" persons and not to "the Commission", a statutory corporation constituted by the ICAC Act, s 4(1). The applicant's submission that s 111(1) applies to persons and not to the Commission itself should be accepted: nevertheless, the functions which are restricted or prohibited by s 111 can only be carried out by individuals as officers or agents of the Commission. Because the Commission as a body corporate cannot itself appear in court and produce documents, the section is effective to prevent that happening to the extent that it is effective to prohibit any agent, officer or other authorised person producing documents on behalf of the Commission. The trial judge correctly rejected the contrary submission: at [15].

 

43 Statutory provisions of this kind vary in their language: in some cases it has been necessary to consider whether a prohibition on divulging or communicating information "to any person" is apt to prohibit production of documents to a court pursuant to a subpoena or notice to produce: see, for example, Canadian Pacific Tobacco Co Ltd v Stapleton [1952] HCA 32; (1952) 86 CLR 1 at 6 (Dixon CJ) and Osborne v R [2014] NSWCCA 17; (2014) 283 FLR 97 at [8]-[13]. The point of distinction between subs (2) and subs (3)(a) is, as noted in Canadian Pacific, that the latter provision only gives protection to the officer against compulsion and does not render evidence inadmissible "which the officer is prepared to give under instructions from his superiors or the Commissioner": at [7]. The possibility that the information might be divulged or communicated to the court voluntarily was presumably sought to be covered by the introduction of subs (3)(b). However, if that were the intention, it may have miscarried: the reference to divulging or communicating to a court is limited by the chapeau which says that the person "shall not be required ...". The obligation not to divulge or communicate voluntarily, found in subs (2), is restricted to communication "to any person" which, on the authorities, and where production to a court is dealt with in subs (3), would not include a court. The evidence remains admissible, and can therefore be proffered, but not compelled.

 

44 None of this matters for present purposes because there is no suggestion that any officer of the Commission would voluntarily disclose the information sought: compulsion is unavailable pursuant to subs (3).

 

(b) application to Commission's own documents

45 The applicant had a further argument, also rejected by the trial judge, to the effect that s 111(3) does not apply to documents created by an officer within the Commission, as opposed to documents which are created by others and come into the possession of the Commission and its staff. Assuming that, at least in part, the notice to produce allows such a distinction to be drawn, the distinction is without substance. The contention was rejected by the trial judge on the basis that it would be wholly inconsistent with the purpose of the provision. It was also rejected by Taylor AJ in Hagan v Independent Commission Against Corruption [2001] NSWSC 890 at [24].

 

46 A document created by an officer of the Commission in the course of exercising that person's functions under the Act will be a document that comes into his or her possession, custody or control "by reason of, or in the course of" exercising those functions. Such a construction is carried by the ordinary meaning of the words used. It is patently designed to protect from disclosure the internal workings of the Commission and not merely material obtained from outside sources, which may not have been provided in confidence. If the ordinary meaning did not cover documents produced by the Commission, it would cover documents produced by one officer and given to another officer, when in the hands of the second officer. It would make nonsense of the section to say that the document was not protected because it was not protected in the hands of the officer who wrote it. The trial judge was correct to reject that argument.

 

(c) a constitutional constraint

47 The applicant raised a further argument to the effect that if the other arguments failed, s 111 must be read down on constitutional grounds. Given the reach of the section accepted above, the applicant submitted it would deprive this Court of an important aspect of its supervisory jurisdiction, thus diminishing an essential characteristic of a State Supreme Court, in contravention of the implied limitation on legislative power found in Ch III of the Constitution: see Kirk v Industrial Court of New South Wales [2010] HCA 1; (2010) 239 CLR 531.

 

48 The principle established in Kirk was that the legislature could not, by a privative clause, remove the supervisory jurisdiction of this Court to police the limits of power imposed on State courts and tribunals under their constituting statutes. That principle does not, in its terms, provide assistance to the applicant in the present case: there is no doubt that the Court has jurisdiction to control the exercise of the Commission's powers under the ICAC Act. A significant extension of the principle (and thus a significant additional restriction on State legislative power) would be required for the applicant's argument to succeed.

 

49 The protection of the Court's supervisory jurisdiction is grounded upon two constitutional propositions. The first involves recognition that "the Supreme Court of any State" is a constitutional term, carrying with it by implication the inability of any State (or federal) Parliament to act in such a way as to remove an essential characteristic of such a court. Secondly, the purpose of that expression in s 73 of the Constitution is to identify an important element in the appellate jurisdiction of the High Court. In other words, to the extent that the jurisdiction of a State Supreme Court is diminished, there will be a diminution of constitutionally conferred federal appellate jurisdiction.

 

50 These underlying principles provide some, though limited, assistance in identifying the restraint thus imposed on legislative power. There is no bright line standard which can be applied. No doubt a statute which so diminishes the opportunity for a Supreme Court to exercise its supervisory jurisdiction over a particular tribunal may constitute an effective removal of the jurisdiction, equivalent to that achieved by a strong privative clause. However, it is difficult to see that such a conclusion could be drawn in the present circumstances. The argument bears some similarity to that raised in Nicholas v The Queen [1998] HCA 9; (1998) 193 CLR 173. That case concerned a provision in the Crimes Act 1914 (Cth), s 15X, which sought to limit the circumstances in which evidence of an illegal importation of narcotics could be rejected because the offence had been procured by or committed with the aid of a law enforcement officer. Of three arguments presented by the accused against the validity of s 15X, two are presently relevant, as identified by Brennan CJ at [12]:

 

"First, the accused contends that s 15X invalidly purports to direct a court to exercise its discretionary power in a manner or to produce an outcome which is inconsistent with the essential character of a court or with the nature of judicial power. ... Thirdly, the accused submits that an attempt to sterilise the Ridgeway discretion invalidly undermines the integrity of the court's processes and public confidence in the administration of justice."

 

51 Historically, the laws of evidence have imposed extensive constraints on the ability of a court to consider all the material which a party might wish to present in support of its case. However, "[a] law does not usurp judicial power because it regulates the method or burden of proving facts": The Commonwealth v Melbourne Harbour Trust Commissioners [1922] HCA 31; (1922) 31 CLR 1 at 12 (Knox CJ, Gavan Duffy and Starke JJ), referred to by Brennan CJ in Nicholas at [24].

 

52 It is neither necessary nor helpful to analyse in detail the circumstances in which a form of regulation may be thought to interfere impermissibly with the exercise of criminal jurisdiction. For present purposes it is sufficient to note that, however broadly defined, the subject matter and powers of the Commission are limited and identifiable by reference to prescribed criteria. (The contrary was not argued.) The powers of the Commission to investigate corruption (to state the jurisdiction colloquially), in particular by obtaining documents, are restricted to the purposes of an investigation. A legitimate question might arise if the Court were deprived of all information as to the subject matter of an investigation, which would then be beyond judicial control. However, that is not this case: it is provided by statute that, relevantly for present purposes, a person required to attend a compulsory examination is entitled to be told "the nature of the allegation or complaint being investigated": s 30(3). It has not been shown that this will not occur in the present case, nor that the Court will not be privy to that information in the case of a timely challenge to the validity of the exercise of the Commission's powers. It must follow that the applicant has failed to demonstrate a level of constraint on the supervisory jurisdiction of the Court sufficient to establish that s 111 intrudes impermissibly on the constitutionally guaranteed jurisdiction of the Court.

 

53 The trial judge was correct to set aside the notice to produce.

 

Implied freedom of communication

54 The focus of the applicant's challenge to the issue of the Commission's summons was a failure to act within the scope of the authority granted by s 35 of the ICAC Act. However, the summons also challenged the validity of s 35(1) and (2) on the basis that they exceeded the legislative power of the State because they contravened the constitutional freedom of communication on governmental and political matters.

 

55 It is a well-established principle that constitutional questions should not be addressed if the matter can be disposed on more limited grounds. That is particularly so in the case of the implied freedom of political communication, the application of which to invalidate a statutory provision will have ramifications far beyond the individual case and, in all likelihood, in categories of case which have not been considered in argument or addressed by the court. Nevertheless, because the conventional or administrative law grounds of challenge must fail, the remaining issue is the constitutional challenge. As the validity of s 35 is logically antecedent to its application, it is appropriate to deal with the constitutional question first.

 

56 There is another reason for adopting that approach in the particular circumstances of this case. The applicant sought to argue that the implied freedom operated as a "mandatory consideration" to be taken into account by a Commissioner in deciding whether to issue a summons under s 35. While it is true that the implied freedom of political communication will limit the scope of executive power, it does so, at least in the case of a statutory body exercising statutory powers, by limiting the scope of legislative power. Nor does it confer a right on individuals. The applicant's submission is most conveniently addressed whilst considering the constitutional issue. Indeed, there is an element of conceptual confusion in the suggestion that the constitutional limit on the scope of a power is a factor which must be taken into account by the authority in the course of exercising the power. The reason why the authority does not have the power cannot sensibly be described as a condition of its exercise. At least that is so where the jurisdictional limitation does not depend on the state of satisfaction of the decision-maker.

 

57 The foregoing propositions were explained in the joint reasons of French CJ, Gummow, Hayne, Crennan and Bell JJ in Wotton v State of Queensland [2012] HCA 2; (2012) 246 CLR 1 at [22], by reference to submissions made by the former Solicitor-General for the Commonwealth:

 

"The Commonwealth submitted that: (i) where a putative burden on political communication has its source in statute, the issue presented is one of a limitation upon legislative power; (ii) whether a particular application of the statute, by the exercise or refusal to exercise a power or discretion conferred by the statute, is valid is not a question of constitutional law; (iii) rather, the question is whether the repository of the power has complied with the statutory limits; (iv) if, on its proper construction, the statute complies with the constitutional limitation, without any need to read it down to save its validity, any complaint respecting the exercise of power thereunder in a given case, ... does not raise a constitutional question, as distinct from a question of the exercise of statutory power. These submissions, which were supported by Victoria, should be accepted."

 

58 A succinct statement of the implied freedom, adopted by the joint reasons in Wotton at [25] is to be found in the judgment of French CJ in Hogan v Hinch [2011] HCA 4; (2011) 243 CLR 506 at [47] in the following terms (omitting references):

 

"The test adopted by this Court in Lange v Australian Broadcasting Corporation, as modified in Coleman v Power, to determine whether a law offends against the implied freedom of communication involves the application of two questions:

 

1. Does the law effectively burden freedom of communication about government or political matters in its terms, operation or effect?

2. If the law effectively burdens that freedom, is the law reasonably appropriate and adapted to serve a legitimate end in a manner which is compatible with the maintenance of the constitutionally prescribed system of representative and responsible government and the procedure prescribed by s 128 of the Constitution for submitting a proposed amendment of the Constitution to the informed decision of the people?

 

If the first question is answered yes, and the second answered no, the law will be invalid."

 

59 In Sunol v Collier (No 2) [2012] NSWCA 44; (2012) 260 FLR 414 I suggested that a staged approach seemed to be required:

 

"[75] The authorities establish that where a challenge is raised to the constitutional validity of a law which may have the effect of burdening communications in relation to political or governmental matters (political discourse) a court should undertake a staged approach in the following manner:

 

(a) construe the impugned law;

(b) determine whether, properly construed, it effectively burdens political discourse;

(c) if so, determine whether it is nevertheless reasonably appropriate and adapted to serve a legitimate end in a manner compatible with the system of representative and responsible government prescribed by the Constitution, and

(d) if it fails the foregoing test, whether it can be severed or read down in a manner which preserves validity of the law in part.

 

[76] An example of such a staged approach may be found in the judgment of McHugh J in Coleman v Power [2004] HCA 39; 220 CLR 1. (No other member of the Court reached the stage (c).) Gleeson CJ suggested that stage (c) may have two limbs, namely whether (i) the object of the impugned law is compatible with the maintenance of the constitutional system of representative and responsible government, and (ii) the law is reasonably appropriate and adapted to achieving its object: at [26], see also Gummow and Hayne JJ at [198]. There would seem to be value in separating these elements: see also Wotton v State of Queensland [2012] HCA 2 at [83] (Kiefel J).

 

[77] The purpose in identifying at the outset the proper construction of the impugned law is to identify the scope of its operation, so as to determine whether it impinges in any way on discourse within the protected area. That exercise will need to allow for a possible 'chilling effect' near the boundaries, even where there is no actual overlap.

 

[78] Despite the logical nature of this structure, it can only be applied with a degree of flexibility. For example, when construing State legislation, step (a), this Court must have regard to provisions of the Interpretation Act 1987 (NSW), s 31(1), which requires that a statute be construed 'as operating to the full extent of, but so as not to exceed, the legislative power of Parliament'. So much was recognised in Coleman v Power: in construing the impugned law, Gummow and Hayne JJ reached a preferred construction, without regard to the constitutional considerations, although those were said to 'reinforce' the construction otherwise preferred: at [183] and [184]. See also Monis v R; Droudis v R [2011] NSWCCA 231 at [25] (Bathurst CJ) and [76]-[77] (Allsop P) and Wotton at [9] (French CJ, Gummow, Hayne, Crennan and Bell JJ)."

 

60 The soundness of these observations may need to be reconsidered in the light of Tajjour v New South Wales [2014] HCA 35; (2014) 88 ALJR 860. In that case, which involved a challenge to "consorting" laws in this State, French CJ identified the operation of "the principle of legality" in relation to such matters as freedom of speech as requiring an interpretation "which serves to protect them from unwise and ill-considered interference or restriction", quoting Professor TRS Allan: at [28]. The Chief Justice further stated that "[t]he application of the principle of legality to the construction of [the statutory provision in question] is anterior to the determination of the validity of the section and to any 'reading down', if that be possible and necessary, to bring the action within the bounds of the legislative competence of the New South Wales Parliament": at [30].

 

61 Gageler J, at [176], after applying a conventional staged approach stated:

 

"It may be appropriate in a future case to consider severance as a threshold question. Where it is apparent that an impugned provision would be severable if and to the extent the provision might burden communication on political or governmental matter in a manner which infringes the implied constitutional freedom, there is a real question as to whether arguments about whether or not such a burden is justified are appropriate to be entertained absent demonstration that some right, duty or liability in issue turns on the validity of the provision in its application to burden a particular communication or category of communications on governmental or political matter."

 

62 Applying these principles to the present case, no real issue arises as to the proper construction of s 35 of the ICAC Act, nor as to the scope of its operation within the statutory scheme. A valid investigation must relate to corruption, which at its heart is concerned with governmental matters. Although there is a level of protection accorded to journalists with respect to sources by the Evidence Act, Pt 3.10 Privileges, Div 1C Journalist privilege, that does not apply to the Commission. In other words, there is no doubt that s 35 permits a summons requiring production of material in the custody and control of a journalist, including material identifying his or her sources.

 

63 With respect to the first limb of the test identified above, it is also clear that neither s 35, nor the ICAC Act more generally, is directed at political discourse; nor, indeed, is it directed to restricting communications in any respect, except perhaps corrupt conduct, such as offering or soliciting bribes. To the extent that it restricts corrupt conduct, such an effect should be seen as directly supportive of the principles of representative government which the implied freedom is designed to uphold and would therefore not satisfy the first limb of the test: see discussion in Sunol at [88]-[89]. However it is not that aspect of the ICAC Act which is in question, but rather the power by compulsion to obtain information.

 

64 Even in that respect, the impugned operation of s 35 is indirect and remote. The submission was that as far as s 35 could be deployed to obtain access to a journalist's sources, it could have a chilling effect on the willingness of people to reveal to journalists information about the workings of government. If those with knowledge were to be discouraged from talking to journalists, the submission continued, public debate on matters of political importance would be inhibited. That analysis should be accepted.

 

65 The statutory mandate of the Commission is, of course, directed to corrupt conduct in State institutions, not those of the Commonwealth. Nevertheless, it was accepted in Lange v Australian Broadcasting Corporation [1997] HCA 25; (1997) 189 CLR 520 at 571-572 (and not since doubted) that the divide between state and federal affairs is porous and such affairs are intertwined in so many respects that no clear demarcation is possible with respect to political discourse.

 

66 Similar arguments were raised in Cornwall at 249-253, but rejected. The subsequent articulation of principles in the High Court requires that that decision no longer be followed in this respect. The submission that the power conferred by s 35 may effectively burden political discourse should be accepted.

 

67 Accordingly, it is necessary to turn to the second limb of the constitutional test.

 

68 The applicant was faced with a higher, if not insuperable, obstacle in obtaining a favourable finding with respect to the second limb, for a number of reasons. First, neither the purpose nor the effect of the ICAC Act was to impose any direct burden on political discourse. Like the implied freedom itself, the Act's principal purpose was to protect, maintain and strengthen the institutions of representative government. Secondly, the powers conferred on the Commission for the purposes of investigation might well be described as commonplace statutory powers conferred upon investigative agencies. Thirdly, although dealing with a power of disclosure incidental to the exercise of judicial power, the reasoning in The Age Company Ltd v Liu [2013] NSWCA 26; (2013) 82 NSWLR 268 at [96]-[99] (Bathurst CJ) would support the conclusion that s 35 was appropriate and adapted to serve a legitimate end, being an end not merely compatible with, but directed to, the maintenance of representative government.

 

69 Fourthly, there are significant limitations on the use of such confidential information. It is those parts of s 111 challenged by the applicant which are designed to prevent any officer of the Commission divulging or communicating information obtained in the course of his or her functions under the ICAC Act which will protect from disclosure precisely that material with respect to which the applicant is anxious to maintain confidentiality. Particularly is that so when a summons under s 35 is deployed in support of a compulsory examination, which is to be conducted in private: s 30(5). That is not to say that there is any statutory guarantee that confidential information will not be used by the Commission for the purposes of its investigation in ways which the source may not have anticipated or intended. Rather, it demonstrates that there are protections against misuse and inappropriate disclosure which provide substantial support for the conclusion that the powers are appropriate and adapted to the legitimate purpose for which they are conferred.

 

70 For these reasons the constitutional challenge fails; there is no need or occasion to read down the operation of s 35 with respect to an examination under s 30, so as to exclude the obligation to disclose material obtained by or from a journalist, including information as to the sources relied on by the journalist.

 

71 It is, of course, not known to this Court whether the material the subject of the summons contains information a journalist would wish to keep confidential, or indeed any information as to sources: rather, the matter was argued, quite properly, by reference to such issues because they appeared to constitute the highest level to which the submission rose.

 

Decision to issue summons

(a) procedural fairness

72 It is convenient to deal first with an allegation contained in the summons and dismissed as "premature" by the trial judge. It was that the Commission had failed to accord the applicant procedural fairness because it had required the applicant to set out its reasons for seeking to have the summons withdrawn or set aside without the Commission first providing the information required by s 30(3).

 

73 Where a decision is challenged on the basis of want of procedural fairness, it is premised on an obligation of the decision-maker to deal fairly with the applicant before reaching a decision. The decision in question was the decision to issue the summons. The applicant did not, however, seek to establish that there was some obligation on the part of the Commission to accord the applicant an opportunity to object before issuing the summons. Nor was it explained how an obligation to accord procedural fairness, after the issue of the summons could affect the validity of the issue: the applicant did not challenge the decision not to withdraw the summons. The challenge based on want of procedural fairness was not so much premature as misconceived. It should be rejected.

 

(b) other administrative law grounds

74 The other grounds upon which the applicant sought to challenge the issue of the summons may be paraphrased in the following terms:

 

(a) Issue of the summons was not authorised by s 35 of the ICAC Act;

 

(b) in issuing the summons, the Assistant Commissioner failed to take into account relevant considerations, including "the scope, subject matter and purposes of the ICAC Act", "the nature of the allegation or complaint", and "the potential or likely impact of the ICAC summons on the constitutional freedom of communication on governmental and political matters";

 

(c) the issue of the summons was Wednesbury unreasonable, illogical, irrational or not based on findings of facts supported by probative material or logical grounds.

 

75 In so far as the freedom of political communication was identified as a mandatory consideration, the proposition was misconceived for the reasons already identified. In all other respects, these grounds assumed a want of connection between the material sought under the summons and the matter under investigation. However, the nature of the matter under investigation has not been disclosed to the applicant, nor to the Court; the applicant has not required its disclosure for the purposes of this proceeding. In those circumstances, it is not possible to say that there is no rational connection between the material sought and the investigation. The inference sought to be drawn from the subject matter of the documents sought is unpersuasive. The documents sought included email accounts operated by or on behalf of a particular individual and that individual's electronic calendar. The evidence indicated that the individual concerned had worked for the applicant for a number of years, though not for many years. There is no suggestion that the provision of the available documentation is oppressive. Without more, the administrative law challenges must fail.

 

Conclusion

76 Although for reasons which differ in some respects from those given by the trial judge, the judge's conclusion that the proceedings must be dismissed has not been shown to be erroneous. The appeal must be dismissed; the applicant must pay the respondent's costs in this Court.

 

77 WARD JA: This is an application for leave to appeal from the refusal by a judge in the Common Law Division to set aside a summons issued by the Independent Commission Against Corruption (ICAC) to the proper officer of the applicant, a company (A Co), requiring it to appear and produce documents at a compulsory examination to be conducted by ICAC. The applicant also complains as to the decision by his Honour to set aside a notice to produce, which it had issued for the production of documents by ICAC in relation to the decision to issue the summons. The application for leave to appeal was listed to be heard concurrently with the appeal.

 

Background

 

78 By summons dated 24 June 2014, Ms Hamilton, Assistant Commissioner of ICAC, summoned the proper officer of A Co to appear and produce documents at a compulsory examination to be conducted at 10:00am on 8 July 2014. In so doing, ICAC expressly invoked the power conferred on it by s 35(1) of the Independent Commission Against Corruption Act 1988 (NSW) (ICAC Act).

 

79 The documents required to be produced were itemised in the schedule to the summons. Three classes of documents were sought, being: an electronic copy of the contents of a particular identified email account; and electronic copies of the contents of, first, any other email account and, second, any electronic calendar, in A Co's possession, custody or control, operated by or on behalf of a named person. The documents sought were not limited by reference to time or subject matter nor, in the case of the email accounts, by the sender or recipient of the emails. A Co was not made aware, nor is the Court aware, of the nature of the allegation or complaint being investigated by ICAC for the purpose of investigation into which these documents are sought.

 

80 Suppression orders have been made, on ICAC's application, preventing the disclosure of the identity of A Co and of the person whose email account(s) and electronic calendar(s) were the subject of the summons. Suffice it to note that the person in question was described in submissions made to this Court as a political journalist.

 

81 That person's role with A Co was described in a confidential affidavit affirmed 23 July 2014 by the General Counsel and Company Secretary of A Co. It was recounted by the primary judge (in paragraphs which have been redacted from the version of the judgment to which unrestricted access is permissible). It might be reasonable to assume that the evidence there given as to the time at which the relevant person's role commenced with A Co would supply at least an outer limit as to the time period within which documents covered by the summons were sent or received or in respect of which calendar entries were made. Even so, this would not assist in limiting the documents by reference to subject matter, content or the like. A Co relies on the "extreme breadth" of the summons as warranting many of the inferences it says the primary judge should have drawn in its favour.

 

82 A Co initially raised with ICAC a concern as to whether compliance with the summons might infringe the journalist privilege available under s126J of the Evidence Act 1995 (NSW), presumably there intending to refer to s 126K. When ICAC's Acting Director Legal, by email of 9 July 2014 in response, drew the attention of A Co's lawyers to s 37(2) of the ICAC Act, which it was considered would override any such claim of privilege, A Co indicated its intention to raise other (at that stage unidentified) administrative and constitutional law issues.

 

83 In his email of 9 July 2014, referred to at [82] above, ICAC's Acting Director Legal indicated that ICAC was prepared to consent to a short extension of time for the production of the documents in order to permit A Co to obtain Senior Counsel's advice, so that any objection to the summons could be heard by the Commissioner that week. After further communications that day, he advised A Co's lawyers that the Commissioner had requested written submissions by close of business the following day (10 July 2014) as to the basis of A Co's objection to the production of the documents sought in the summons. A Co was also informed that should the Commissioner not set aside the summons after considering the grounds of objection, A Co would have until close of business on 14 July 2014 to comply with the summons.

 

84 Submissions were duly served by A Co on 10 July 2014 together with a draft summons, which A Co's lawyers indicated was intended to be filed in the Supreme Court. The principal contentions of A Co apparent from the submissions served on ICAC were that the issue of the summons exceeded the power invested in ICAC by s 35 and that the summons was therefore bad in law and liable to be set aside. A Co sought the revocation of the ICAC summons, failing which it indicated that it intended to press for orders quashing the summons. The submissions made by A Co at the time also make clear that complaint was taken as to the breadth of the summons.

 

85 A Co submitted to the Commissioner (as it has done both before the primary judge and on appeal) that the discretion conferred on ICAC to summon a person to appear and produce documents at a compulsory examination is not unconfined. A Co submitted, in effect, that the discretion was confined by the requirement that the documents be related (or sufficiently related) to the allegation or complaint the subject matter of the compulsory examination or public inquiry.

 

86 Section 30(3) of the ICAC Act entitles a person required to attend a compulsory examination to be informed of the nature of the allegation or complaint being investigated "before or at the commencement of the compulsory examination". Such an entitlement must carry with it a correlative obligation on the part of ICAC to disclose such information by the time specified in that section.

 

87 A Co maintained that the request for written submissions prior to compliance by ICAC with its obligation under s 30(3) was a denial of procedural fairness. It submitted to the Commissioner that the decision to issue the summons had miscarried and, further or in the alternative, that the discretion conferred by ss 35(1) and (2) must be exercised in accordance with constitutional requirements and limitations including the implied freedom of communication on governmental and political matters. If, contrary to A Co's submissions, the discretion is not so limited, A Co submitted that the said statutory provisions were invalid.

 

88 The Commissioner was not persuaded to set aside the summons. ICAC's Acting Director Legal informed A Co's lawyers of this on 11 July 2014, stating that established authorities did not require the nature and scope of allegations under investigation to be included in a summons to produce for the purpose of grounding the summons.

 

89 A Co then commenced proceedings in the Common Law Division of the Supreme Court seeking, among other relief, a declaration that the summons be quashed as invalid and of no effect and otherwise set aside (para 6) and a declaration that the decision to issue the summons was wrong in law, was made without or in excess of jurisdiction, and is a nullity (para 7).

 

90 In connection with its application to set aside the summons, A Co issued a notice to produce dated 31 July 2014 addressed to ICAC, broadly seeking the production of documents and material provided to or considered by the Assistant Commissioner, or to which the Assistant Commissioner had had regard, in making the decision to issue the summons. The notice to produce also sought all documents in the ICAC records bearing the reference number that had appeared on the header of the summons to produce (para 5). In addition, in the notice A Co sought the production of any document evidencing or recording the allegation or complaint being investigated by ICAC (para 8). ICAC then applied by notice of motion to set aside A Co's notice to produce.

 

Primary judgment

 

91 Harrison J heard the respective applications. His Honour set aside A Co's notice to produce and dismissed A Co's summons ([2014] NSWSC 1167).

 

92 The grounds on which A Co sought at first instance to have the summons set aside (which are broadly mirrored in its grounds of appeal in this Court) were in essence those foreshadowed in its submissions to ICAC. In summary, A Co contended as follows.

 

93 First, A Co contended that the decision to issue the summons was not authorised by s 35 of the ICAC Act. This was put on the basis that the section did not authorise ICAC to require production of documents unrelated to an existing allegation or complaint the subject of a compulsory examination or public inquiry.

 

94 Second, A Co raised a series of challenges to the decision. It contended that the Assistant Commissioner had failed to take into account relevant considerations in making the decision to issue the ICAC summons; that the Assistant Commissioner's decision was one which no decision maker acting reasonably could have taken; that it was an illogical, irrational decision; and that it was a decision not based on findings or inferences of fact supported by some probative material or logical grounds. A Co contended that a mandatory relevant consideration to be taken into account was the impact of the summons on the implied constitutional freedom of communication on governmental and political matters.

 

95 Third, A Co contended that if the discretions in ss 35(1) and (2) of the ICAC Act are not required to be exercised with due regard to the potential or likely impact of the summons on the implied constitutional freedom of communication on governmental and political matters then those sections are invalid.

 

96 Finally, it was contended that ICAC had failed to accord procedural fairness to A Co. The alleged failure to accord procedural fairness was particularised by A Co in its pleading as follows:

 

"By s 30(3) of the ICAC Act, a person required to attend a compulsory examination (in this case, the Proper Officer of [A Co]) is entitled to be informed, before or at the commencement of the compulsory examination, of the nature of the allegation or complaint being investigated. By email dated 9 July 2014, the Defendant required [A Co] to provide it with written submissions setting out the bases upon which [A Co] objected to the ICAC Summons by close of business on 10 July 2014. The course taken by the Defendant means that [A Co] was required to make its objection without the benefit of information to which it was entitled under s 30(3). As a result, [A Co] was required to make its objection without knowledge of the nature of the allegation or complaint being investigated, in breach of the Defendant's obligation to provide [A Co] with procedural fairness." [Emphasis added.]

 

97 As to A Co's notice to produce, ICAC's application to set it aside, or for an order in the alternative that there be no access to any documents produced in response thereto (and that they be placed in a sealed envelope on the Court file not to be opened in the absence of an order of the Court), was made invoking the secrecy protection afforded by s 111(3) of the ICAC Act.

 

98 Section 111(3) of the ICAC Act provides as follows:

 

(3) A person to whom this section applies should not be required:

 

(a) to produce in any court any document or other thing that has come into the person's possession, custody or control by reason of, or in the course of, the exercise of the person's functions under this Act, or

 

(b) to divulge or communicate to any court any matter or thing that has come to the person's notice in the exercise of the person's functions under this Act,

 

except for the purposes of a prosecution or disciplinary proceedings instituted as a result of an investigation conducted by the Commission in the exercise of its functions.

 

99 A Co contended that this section was not applicable: first, because it did not protect ICAC, as such, since it referred in its terms to "a person" (as opposed to the Commission itself); and, second, because it did not cover documents created by ICAC or its officers (as opposed to documents coming into its or their possession).

 

100 Alternatively, A Co argued that if s 111(3) had the operation for which ICAC contended then it was invalid because it was inconsistent with an essential or defining characteristic of the Supreme Court for the Court to be precluded from requiring the production of documents from ICAC in proceedings concerning whether ICAC had engaged in conduct authorised by law and had committed jurisdictional error.

 

101 The Attorney General for the State of New South Wales intervened at the hearing below (and on the appeal) to make submissions as to the constitutional validity of ss 35(1) and (2) and 111(3) of the ICAC Act.

 

102 ICAC adduced no evidence at the hearing before the primary judge.

 

Decision to set aside A Co's notice to produce

 

103 His Honour dealt first with ICAC's application to set aside A Co's notice to produce. His Honour proceeded on the basis that if he were to come to the conclusion that ICAC should produce the documents sought, then A Co would be given an opportunity to make submissions (as to its application to set aside the ICAC summons) based upon those documents if so advised ([8]). There was no complaint as to the procedure his Honour adopted in that regard.

 

104 His Honour rejected A Co's submission that the protection afforded by s 111(3) did not apply in the circumstances of the present case.

 

105 His Honour noted that the definition of "a person who is or was an officer of the Commission" in s 3 of the ICAC Act includes a member of staff of ICAC. His Honour noted that it is "conceptually and practically difficult, if not in fact impossible" for ICAC to respond to a notice to produce other than by or with the assistance or involvement of a member or members of the staff of ICAC and considered that any such person was a person to whom s 111(3) applied and, as such, was a person who "shall not be required" in accordance with s 111(1)(a) to produce in court any document or thing as thereafter described ([15]).

 

106 His Honour next accepted ICAC's submission that s 111(3) applied to documents created in the course of the exercise of a person's functions under the ICAC Act, i.e., to documents created by an officer of ICAC as defined. His Honour agreed with ICAC's submission that s 111 should be construed so as to avoid a construction that would require an investigator "to disclose his hand prematurely" (referring to National Companies and Securities Commission v News Corp Ltd [1984] HCA 29; (1984) 156 CLR 296 at 323-324) or which would defeat the apparent objects of s 111 ([18]-[22]). However, his Honour did not need to rely on a purposive construction of the section in order to determine this issue because his Honour considered that A Co's argument failed as a matter of literal construction of the section. His Honour concluded that a document prepared or created by a person to whom the section applies necessarily comes into his or her possession, custody or control by reason of, as well as in the course of, the exercise of that person's functions under the ICAC Act and such a document thus falls within the section ([22]).

 

107 As to the challenge to the constitutional validity of s 111(3), his Honour concluded (at [39]) that the section did not, as a matter of substance, deprive the Supreme Court of the power to grant relief on the ground of jurisdictional error, nor did it defeat at the threshold any such application. His Honour did not accept that the ability to obtain the production of documents by a compulsory process was an essential or defining characteristic of the Supreme Court or any court ([42]). His Honour considered that the Supreme Court's power to grant relief on account of jurisdictional error had not been compromised by s 111(3) and observed that difficulties in proving jurisdictional error were not to be mistaken for the existence of such an error in fact ([43]).

 

Decision to dismiss A Co's summons for declaratory and other relief

 

108 Turning then to A Co's application to set aside the ICAC summons, his Honour did not accept that A Co had demonstrated that the summons was issued by ICAC beyond power or without authority (see [69]-[75]). His Honour considered that all of the administrative law challenges to the validity of the summons were based upon tautological reasoning ([86]) and concluded that there was nothing in the material to support a conclusion that the decision to issue the summons was infected by either Wednesbury or Li unreasonableness or irrationality or was issued otherwise than for the purpose of an investigation under the ICAC Act [88].

 

109 As to the constitutional validity of s 35, his Honour applied the test adopted in Lange v Australian Broadcasting Corporation [1997] HCA 25; (1997) 189 CLR 520 and considered that s 35 was neither directed at political communication nor did it operate as an effective burden on the implied freedom of communication on government and political matters (at [132]). His Honour concluded that, in any event, to the extent, if at all, that s 35 imposed an effective burden on the implied freedom of political communication, it was a law that was reasonably appropriate and adapted, and also proportional, to the end of investigating, exposing and preventing corruption involving or affecting public authorities and public officials ([130]).

 

110 His Honour considered that the effect of s 35 on political communication was "not even 'so slight as to be inconsequential'", as it was at best directed at the method of communication rather than the subject matter of the communication ([132]). His Honour considered that the fact that a person's identity might become known more widely than to the recipient of an email written by that person is a function of the person having chosen to write it rather than a function of the issue of a summons to produce it but said that in either case the section did not operate as an effective burden on the implied freedom ([132]). His Honour noted in this context the secrecy and publication provisions of the ICAC Act ([132]). Thus his Honour answered the first question posed in Lange in the negative.

 

111 However, his Honour also concluded that s 35 was calculated to promote or assist a statutory purpose, the legitimacy of which was beyond question ([133]), thus providing an affirmative answer to the second of the questions posed in Lange.

 

112 Finally, as to the challenge based on a lack of procedural fairness, his Honour understood (at [137]) the complaint by A Co to be that ICAC did not inform it of the nature of the allegation or complaint being investigated prior to the deadline ICAC had set for A Co's objection to the summons (i.e., for submissions to be provided by A Co as to its objection to the summons, or the production of documents under the summons), and had refused to revoke the summons without providing any information as to the nature of the allegation or complaint being investigated. His Honour considered it unnecessary to consider that ground beyond observing the effect of s 30(3) of the ICAC Act and noting that time for compliance with s 30(3), being before or at the commencement of the compulsory examination, had not yet arrived. His Honour therefore considered that the allegations of a denial of natural justice were premature ([140]).

 

Leave to appeal

 

113 In this Court, A Co submitted that its application raises issues of significant public importance concerning the limits of ICAC's power compulsorily to acquire documents and the manner in which challenges to the lawfulness of a summons purportedly issued pursuant to s 35(1) should be determined by the court.

 

114 No objection was raised by the respondents to the grant of leave to appeal. As the appeal is one that clearly raises important issues of principle, at the commencement of the hearing of the concurrent application for leave to appeal and appeal, leave to appeal was granted.

 

Grounds of appeal

 

115 A Co raises the following grounds of appeal:

 

(3) "The primary judge erred in law in failing to find that the decision of the Assistant Commissioner of the [first respondent] to issue the Summons to Appear and Produce Documents dated 24 June 2014 (ICAC Summons) was not authorised by s 35 of the Independent Commission Against Corruption Act 1988 (NSW) (ICAC Act).

 

(4) The primary judge erred in law in failing to find that, in issuing the ICAC Summons, the Assistant Commissioner failed to take into account relevant considerations: namely, the scope, subject-matter and purposes of the ICAC Act and the nature of the allegation or complaint the subject of the applicable compulsory examination.

 

(5) The primary judge erred in law in failing to find that the decision by the Assistant Commissioner to issue the ICAC Summons was a decision which no decision-maker, acting reasonably, could have taken.

 

(6) The primary judge erred in law in failing to find that the decision by the Assistant Commissioner to issue the ICAC Summons was illogical, irrational or not based on findings or inferences of fact supported by some probative material or logical grounds.

 

(7) The primary judge erred in law in failing to find that, in issuing the ICAC Summons, the Assistant Commissioner failed to have regard to a relevant consideration - namely, the potential or likely impact of the ICAC Summons on the constitutional freedom of communication on governmental and political matters.

 

(8) The primary judge erred in law in failing to find that, if the discretion in s 35(1) of the ICAC Act is not delimited by the constitutional freedom of communication on governmental matters and/or the discretion is not required to be exercised with due regard to the potential or likely impact of the ICAC Summons on the constitutional freedom of communication on governmental and political matters, then ss 35(1) [sic] is invalid, with the result that the issue of the ICAC Summons was not authorised by law.

 

(9) The primary judge erred in law in setting aside a Notice to Produce served by the [appellant] on the [first respondent] on 31 July 2014.

 

(10) The primary judge erred in law failing to find that the ICAC Summons ought to be set aside by reason of the failure to afford procedural fairness to the [appellant]."

 

Introductory observations

 

116 I have had the advantage of reading in draft the reasons of Basten JA, with whom I agree that the appeal should be dismissed. In those reasons his Honour has considered the structure of the ICAC Act (see [12]-[14], [17]-[19]), including: the establishment of ICAC (s 4); its principal function (s 13(1)(a)); its power to carry out investigations (s 20) and in the course of so doing to obtain information and documents (ss 21, 22); and its power to conduct compulsory examinations and public enquiries for the purpose of its investigation (ss 30, 31). His Honour has also noted the lack of entitlement of a witness, summoned to attend or appear at a compulsory examination or public enquiry, to claim privilege (s 37(2)) and the offence created by s 86 of the ICAC Act of failing without reasonable excuse to produce documents in answer to a summons of the kind here issued by ICAC.

 

117 I agree with Basten JA that the power to compel production of documents pursuant to s 35(1), being a power incidental to the power to conduct a compulsory examination or public inquiry, must be limited by the purpose by which the power to conduct such an examination or inquiry is itself limited - namely, that it must be for the purposes of an investigation by ICAC. That, however, is potentially not a narrow limitation given the extended concept of relevance in an investigative context to which I refer later in these reasons.

 

118 The fact that it is a defence under s 86(2) of the ICAC Act to a prosecution for failure to produce documents without reasonable excuse for the defendant to establish that the documents are not relevant to an investigation suggests that a person summoned to produce documents should be able to raise, and have tested, any objection as to the relevance of one or more of the documents at the time production of the documents is called for, rather than being exposed to a serious charge if the summons is not complied with and it is later unable to establish that the documents were not relevant to an investigation.

 

119 True it is that an objection based on lack of relevance to the investigation (in the extended sense of investigative relevance) may only sensibly be able to be made once the nature of the investigation or subject matter of the complaint being investigated has been made known to the person attending to produce documents in compliance with the summons. However, since under s 30(3) that person is entitled, at the latest, to such information at or at the commencement of the compulsory examination, and the subpoena requires production at (not before, though the recipient could choose to produce the documents beforehand) the compulsory examination, at most this raises a temporal problem.

 

120 Leave might need to be sought, once information as to the nature of the investigation is provided, for an adjournment of the compulsory examination in order for the person attending to produce the documents to be able to obtain instructions or advice as to the basis of any legitimate objection to production of the documents based on lack of relevance to the investigation. A refusal to accede to a request for a party to obtain advice as to an objection to produce documents at that stage might well raise issues as to procedural fairness.

 

121 I agree with Basten JA that there is nothing in the ICAC Act which would warrant the conclusion that a person summoned to attend a compulsory examination to produce documents should not be permitted to raise an objection to production of documents on the grounds of irrelevance to the investigation once that person is informed of the nature and scope of the investigation. As earlier noted, the entitlement to be informed of the nature of the investigation or subject matter of the complaint being investigated must carry with it an implied correlative obligation on ICAC to disclose such information, since there is no other means by which the entitlement may be satisfied in a practical sense.

 

122 As Basten JA has noted, the above course was not followed by A Co in the present case notwithstanding that it would seem to have been the most obvious course if the objection made was as to perceived lack of relevance of the documents to an investigation. Instead, A Co has challenged the decision to issue the summons at a time prior to which ICAC has any obligation to provide information as to the nature of the investigation and has done so, among other bases, on the basis that not all of the materials produced can be said to be likely to have any relevance to whatever investigation is being conducted and that the terms of the summons are so broad as to be indicative of unreasonableness in the decision to issue the summons.

 

Ground 1 - whether decision to issue summons was authorised by s 35 of the ICAC Act

 

123 Sub-sections 35(1) and (2) of the ICAC Act provide as follows:

 

35 Power to summon witnesses and take evidence

 

(1) The Commissioner may summon a person to appear before the Commission at a compulsory examination or public inquiry at a time and place named in the summons (the required appearance):

 

(a) to give evidence, or

 

(b) to produce such documents or other things (if any) as are referred to in the summons,

 

or both.

 

(2) The person presiding at a compulsory examination or public inquiry before the Commission may require a person appearing at the compulsory examination or public inquiry to produce a document or other thing.

 

124 A Co points to the fact that s 30(1) of the ICAC Act provides that it is "[f]or the purposes of an investigation" that ICAC may, if satisfied that it is in the public interest to do so, conduct a compulsory examination. It notes that there is no equivalent in Div 3 of Pt 4 of the ICAC Act (which concerns the conduct of compulsory examinations and public inquiries and contains s 35) to that which appears in s 29 of the ICAC Act (which permits powers to be exercised under Div 2 of Pt 4 in relation to an investigation whether or not a compulsory examination or public inquiry is being held for the purposes of the investigation).

 

125 A Co argues that the discretion to issue a summons under s 35(1) is so constrained by the scope, subject matter and purpose of the legislation as to require the existence of a sufficient connection between the documents sought in the summons and an allegation or complaint the subject of an investigation.

 

126 A Co maintains that the primary judge's reasoning was overreaching insofar as his Honour suggested (at [70]-[71]) that s 35(1) was unconstrained and unlimited. Pausing there, as I read his Honour's reasons, what his Honour was there saying was not that the discretion was wholly unconstrained or unbridled but, rather, that it was not confined in the way contended for by A Co. At [70] his Honour said that the powers conferred by s 35 are "unconstrained by competing provisions within the Act itself" and that those powers "are not limited, restricted or qualified in any way that informs the plaintiff's concerns by express or implied provisos or conditions". At [71], his Honour, referring to various submissions that had been made by A Co, said:

 

"... These and similar arguments are based upon the unestablished assumption that the apparently unlimited power of [ICAC] to issue a summons to produce documents must be qualified by reference to concepts such as admissibility, relevance and fairness or the other recognised forensic and procedural safeguards that regulate the litigious process." [Emphasis added.]

 

127 His Honour emphasised (at [71]) that ICAC, when issuing a summons to produce, is not engaging in litigation with the recipient of the summons and is, instead, undertaking an investigative task. That is clear from his Honour's observation (at [71]) that:

 

"At best, the plaintiff's arguments only take on significance at the point of production or use of the documents, but do not do so at some theoretical but anterior remove at the point when the documents are being identified and collected."

 

128 ICAC does not suggest that an unbridled discretion is conferred on it by s 35(1) and it accepts that a decision to issue a summons is susceptible to judicial review. It has made clear that it accepts that the power under s 35(1) to require the production of documents, though broadly expressed, is confined by its terms and the subject matter, scope and purpose of the legislation under which it is conferred (Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332 at [23]; Wotton v Queensland [2012] HCA 2; (2012) 246 CLR 1 at [9]; Miller v TCN Channel Nine Pty Ltd [1986] HCA 60; (1986) 161 CLR 556).

 

129 What ICAC does not accept, however, is the suggestion that the power to issue a s 35 summons is constrained by the requirement that there be a sufficient relevance of the documents sought to be produced to the nature or subject matter of the relevant investigation or inquiry. Although it was accepted by Senior Counsel appearing for ICAC, Mr Lancaster SC, that a lack of connection between the documents sought in a summons to produce and the nature or subject matter of the investigation might be indicative in some cases of there being a collateral purpose for the issue of the summons, ICAC contends that this cannot be said in the present case. Nor has any collateral purpose for the summons issued by ICAC in this case been alleged.

 

130 Thus, as I understand it, ICAC does not contend that s 35(1) would empower it to obtain documents unrelated in any way to the investigation of an allegation or complaint the subject of a compulsory examination. Rather, what it contends is that s 35 is not limited to requiring the production of material which will ultimately prove to be of use in such an investigation. ICAC contends that the section authorises the Commissioner to issue summonses that the Commissioner bona fide considers should be issued "for the purposes of" an investigation.

 

131 In that regard, ICAC submits in effect that it is not to the point that the summons in the present case seeks the entirety of the contents of the journalist's email account(s) and electronic calendar(s). It argues that the absence of something in an electronic diary may, for example, be just as relevant to an investigation as the presence of something; similarly that a review of a collection of emails may show not just what is said but what is not said and not just who is contacted but who is not contacted. Logically, that must be so. I agree with Basten JA that it is not self-evident that the summons issued by ICAC to A Co is unrelated to, or not for the purposes of, a bona fide investigation by ICAC.

 

132 ICAC also points to the different concept of relevance in the investigative context from that which would be applicable in determining relevance in court proceedings. It relies upon MF1 v National Crime Authority (1991) 33 FCR 449 at 461, where the power conferred by s 28(1) of the National Crime Authority Act 1984 (Cth) was considered by a Full Court of the Federal Court. Jenkinson J, with whom Gray J agreed, considered it to be beside the point that substantial parts of some or all of the documents sought to be produced in that case may be devoid of reference to the matters the subject of the investigation, noting (at 461) that:

 

"... it follows ... from the nature of a power to compel disclosure of information, by evidence and production of documents, in aid of an investigative function that the evaluation of probabilities concerning the usefulness of the information is, within limits, for the investigator, and certainly not for the persons from whom disclosure is sought."

 

133 Ryan J (at 471) accepted that the principles to be applied in determining relevance in the context of an investigatory inquiry required a much broader concept of relevance than the notion applied to determine the admissibility of evidence in adversary litigation.

 

134 ICAC points to what was said in National Companies and Securities Commission v News Corp Ltd at 323-324, and adopted with apparent approval by Jenkinson J in MF1, that:

 

It is the very nature of an investigation that the investigator proceeds to gather relevant information from as wide a range of sources as possible without the suspect looking over his shoulder all the time to see how the inquiry is going. For an investigator to disclose his hand prematurely will not only alert the suspect to the progress of the investigation, but may well close off other sources of inquiry.

 

135 A Co seeks to distinguish MF1 and the other authorities to which Harrison J referred at [62]-[70] on the basis that in those cases the nature of the investigation was known and hence the court was able to satisfy itself on the material before it that there was a sufficient connection between the investigation and the exercise of power by the relevant decision-making authority. However, that does not meet the point emphasised by ICAC, and accepted by the primary judge in this case, which is that relevance in an investigative context is a broader concept than that of relevance in an adversarial litigious context.

 

136 It should be noted that there is no complaint in the present case that the summons to produce is so broadly expressed that compliance with it would be unduly onerous or burdensome.

 

137 Some support for the proposition that the power to issue a summons under s 35(1) is constrained by reference to the relevance or potential relevance to an investigation of the documents so sought might be able to be drawn from s 86(2), which provides that it is a defence to a prosecution for failing without reasonable excuse to produce a document or other thing if the defendant establishes that it was not relevant to an investigation.

 

138 ICAC does not accept that a person who is summoned to produce documents under s 35 has an implied right to object to production of documents on the basis that they are not relevant to an investigation. I disagree. Nevertheless, ICAC submits that in any event the test of relevance for the purposes of this defence is relevance to the investigation, not relevance to issues in court proceedings. I agree with that proposition.

 

139 The time by which A Co is entitled to be informed of information from which it might test the relevance to an investigation by ICAC of the documents sought in the summons has not yet arrived since the compulsory examination has not yet commenced.

 

140 A Co argues that in the absence of reasons given by ICAC for its decision to issue the ICAC summons, and in the absence of evidence as to the material before the decision-maker when making the decision, his Honour should more readily have inferred that there was no good reason for the decision (referring to Public Service Board (NSW) v Osmond [1986] HCA 7; (1986) 159 CLR 656 at 663-664; Re Minister for Immigration and Multicultural and Indigenous Affairs, ex parte Palme [2003] HCA 56; (2003) 216 CLR 212 at [39]; Minister for Home Affairs v Zentai [2012] HCA 28; (2012) 246 CLR 213; and Padfield v Minister of Agriculture, Fisheries and Food [1968] AC 997 at 1053). It further submits that his Honour should have employed the inference recognised in Blatch v Archer (1774) 1 Cowp 63; 98 ER 969 at [194].

 

141 A Co contends that in the absence of any evidence or reasons from ICAC, matters on the face of the summons (here, its "extreme" breadth) that provide even a slight indication that the process by which it was reached miscarried will be sufficient to warrant relief. In that regard, it is submitted that the Court should infer that it is improbable that each and every email sent or received by the journalist, at any time during which an email account to which A Co has access was operated, or each and every electronic calendar entry, is relevant to an existing allegation or complaint about which ICAC is conducting a compulsory examination. That, however, fails to take into account that it might be relevant for the purposes of an investigation to have regard to what is not, as well as what is, contained in the document, or, say, to cross-reference calendar entries or emails on a variety of matters with material from other sources. The breadth of the documents sought by the ICAC summons does not of itself establish that its issue was beyond power.

 

142 As to the reliance sought to be placed by A Co on the lack of reasons proffered by ICAC, reference is made by ICAC to what was said by the High Court in Australian Securities and Investments Commission v Hellicar [2012] HCA 17; (2012) 247 CLR 345 (at [165]-[166]). ICAC submits that the fact that it was not required to justify the issue of the summons or the width of the categories of documents sought meant that the fact that it did not lead evidence did not create an occasion for drawing an adverse inference.

 

143 At [74] of the primary judgment, Harrison J observed that the extent of any adverse inference that might have been drawn from the absence of reasons and/or of evidence from the decision-maker (ICAC) would not extend to establishing the positive proposition that the summons had been issued for an improper purpose or beyond power, in that it had not been issued for the purposes of an investigation or in response to a complaint. I agree.

 

144 His Honour did not err in my opinion in concluding that A Co had failed to establish that the ICAC summons was not authorised by s 35.

 

Grounds 2-5 - alleged failure to take into account relevant considerations

 

145 It is submitted by A Co that the breadth of the summons, in particular that its terms were not confined by reference to subject matter or person (or by reference to the nature of the allegation) and were unlimited in time, indicates that the Assistant Commissioner failed to have regard to the scope, subject matter and purposes of the ICAC Act and the allegation or complaint the subject of the compulsory examination. Reference is made to Li at [24] and [65] for the proposition that, in the absence of express provision to the contrary, Parliament is taken to intend that an essential condition of a statutory power is that it is exercised reasonably.

 

146 Reference is also made to the statement in Li at [68] that:

 

Wednesbury is not the starting point for the standard of reasonableness, nor should it be considered the end point. The legal standard of unreasonableness should not be considered as limited to what is in effect an irrational, if not bizarre, decision − which is to say one that is so unreasonable that no reasonable person could have arrived at it - nor should Lord Greene MR be taken to have limited unreasonableness in this way in his judgment in Wednesbury.

 

147 A Co submits that the ICAC summons is an example of a disproportionate exercise of an administrative discretion in that ICAC has sought each and every email sent or received at any time and irrespective of its subject matter. It argues that this is an example of what French CJ considered in Li could be characterised as irrational and unreasonable on the basis that it exceeds what, on any view, is necessary for the purposes it serves.

 

148 ICAC contends that there was no material before his Honour from which it could be concluded that the decision to issue the summons miscarried in any of the respects alleged by A Co, and that grounds 2 to 4 should therefore fail. I agree. The summons directs itself to the production of specific categories of documents. The fact that not all documents within those categories may ultimately prove to be of relevance in ICAC's investigation or at a compulsory hearing does not warrant a finding that the discretion under s 35(1) miscarried. Nor does the fact that ICAC has, as at this stage it is in my opinion entitled to do, chosen not to divulge to A Co information as to the nature of the investigation for the purposes of which the compulsory examination on 8 July 2014 was to have been held.

 

Grounds 5-6 - implied freedom of communication on governmental and political matters

 

149 Ground 5 is in my opinion misconceived. A limitation on the exercise of the discretion to issue a summons pursuant to s 35(1) derived from the implied constitutional freedom of communication on governmental and political matters would be a limitation on the statutory power conferred on ICAC, not a mandatory relevant consideration in the exercise of that discretionary power (see Wotton at [22]). I agree with Basten JA's observations on this at [56].

 

150 ICAC accepts that s 35(1) must be construed conformably with the Constitution including, if necessary, so as not to infringe upon the implied constitutional freedom of communication on governmental and political matters (referring to Miller at 613-614; Wotton at [9], [10]).

 

151 As to ground 6, which raises the constitutional validity of ss 35(1) and (2), in Lange, it was recognised that the implied freedom of communication on governmental and political matters is not an absolute freedom (at 561). As modified in Coleman v Power [2004] HCA 39; (2004) 220 CLR 1, the Lange test requires that one must first determine whether a law effectively burdens the freedom and then whether the restriction is reasonably appropriate and adapted to serve a legitimate end (see Hogan v Hinch [2011] HCA 4; (2011) 243 CLR 506 at [47] per French CJ; [97] per Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ).

 

152 As to the first question, the Attorney General, with whose submissions ICAC agrees, submits that s 35 of the ICAC Act does not effectively burden the implied freedom of political communication.

 

153 It is submitted that the effect on governmental and political communication in this regard must be a real, not hypothetical, effect in the sense that the legal or practical operation of the law must impose a burden on such communication, and that this requires consideration of the legal and practical operation of the provision, not a consideration of the extent of the burden (see Tajjour v New South Wales; Hawthorne v New South Wales; Forster v New South Wales [2014] HCA 35; (2014) 88 ALJR 860 at [33]; [61]; [105]-[107]; [145]).

 

154 The Attorney General notes that s 35 is not directed at political communication and that information produced in response to a summons under s 35 is produced only to ICAC. Reference is made to the secrecy and publication prohibitions in the ICAC Act. It is submitted that it is most unlikely that the source of information will become publicly known in the course of the production of information in response to a 35 summons. A contrast is drawn in this regard with the position in The Age Company Limited v Liu [2013] NSWCA 26; (2013) 82 NSWLR 268 where the purpose of the preliminary discovery application was to reveal the identity of the source.

 

155 A Co, on the other hand, maintains that there will be a "chilling" effect on political communication if a journalist's sources face potential disclosure of such communication pursuant to a summons of this kind.

 

156 In Liu (at [93]), Bathurst CJ noted the existence of authorities in which it has been said that laws which directly inhibit government or political communication will be more difficult to justify than laws which do so indirectly but considered that these authorities did not support the proposition that an indirect burden could never infringe the constitutional requirement.

 

157 Bathurst CJ noted the difference in formulation between a question whether the legislation must pose a realistic threat to the implied freedom or a real or actual burden on communications, on the one hand (Coleman v Power at [298] Wotton at [54]-[55]), and whether what was required was that the legislation directly, and not remotely, restricted or limited the content of such communications or the time, place, manner or conditions of their occurrence (Coleman v Power at [91]). His Honour there considered that, on the present status of authority and having had regard to the public interest in the free flow of information on which the "newspaper rule" has been said to rest, the relevant rule did have the potential to limit freedom of communication.

 

158 Similarly, in the present case, though s 35 is not directed at communication on governmental or political matters per se and notwithstanding the secrecy provisions in the ICAC Act, I would answer this first question in the affirmative.

 

159 As to the second question posed in Lange, concerning the identification of a legitimate statutory purpose for the provision in question (at 567), the Attorney General maintains that s 35(1) is reasonably appropriate and adapted, or proportionate, to serve the legitimate end of investigating, exposing and preventing corruption involving or affecting public authorities and public officials and that it does so in a manner which is compatible with the maintenance of the prescribed system of representative government. It is submitted that A Co was required, and failed, to establish that the alternative laws it had postulated would be reasonable and as practicable as s 35 but have a lesser effect on the implied freedom.

 

160 The Attorney General submits that ICAC's information-gathering powers are essential to its effectiveness in investigating allegations of public corruption (referring to the Second Reading Speech of the Bill (Hansard, Legislative Assembly, 26 May 1988, 672-685, by Premier Greiner)). It is noted that the power to issue a summons is enlivened only when the Commissioner has determined that it is in the public interest to conduct a compulsory examination or public inquiry.

 

161 Having regard to the matters referred to by the primary judge at [120]-[124], I consider that his Honour did not err in determining that, to the extent that s 35(1) does indirectly limit the implied freedom, it is reasonably proportionate and adapted to the legitimate purpose identified by the Attorney General and is therefore not constitutionally invalid.

 

Ground 7 - refusal to set aside notice to produce

 

162 Three arguments were raised by A Co on this ground of appeal.

 

Does s 111(3) apply?

 

163 First, A Co maintains its contention that s 111(3) does not apply because the notice to produce is addressed to ICAC, which is a statutory commission and not one of the "persons" identified in s 111(1).

 

164 As it did at first instance, A Co points to the express distinction drawn in s 111(1) between persons (or bodies identified in s 111(1)(d)) and the Commission. It notes that ICAC is constituted by s 4(1) of the ICAC Act as a corporation and that it has a legal personality separate from the Commissioner or any officer of ICAC.

 

165 It is submitted that the fact that ICAC may require one or more of its officers to take steps in order to comply with the notice to produce does not mean that those officers would be acting in breach of s 111 by so doing; rather, it is submitted that they would be acting as agents of ICAC to whom the protection conferred by s 111(3) does not apply. Reference is made to s 4(3) of the ICAC Act, which provides inter alia that any act, matter or thing done in the name of or on behalf of ICAC by the Commissioner, or with the authority of the Commissioner, shall be taken to have been done by ICAC itself.

 

166 In Hagan v Independent Commission Against Corruption [2001] NSWSC 890, a similar argument was rejected on the basis that the functions of ICAC are necessarily exercised by persons. Taylor AJ concluded that as one or more of the persons identified in s 111(1) and "necessarily involved in responding to the subpoena" was or were acting on behalf of ICAC they were subject to the secrecy provisions ([18]-[20]).

 

167 The argument by A Co that the secrecy provisions do not apply when a person acting on behalf of ICAC attends to produce documents that otherwise fall within the description in s 111(3) is in my view in error. That person is the relevant person to whom s 111(3) applies. Hence the fact that the notice to produce is addressed to ICAC is irrelevant.

 

168 In this regard, it is instructive to look at the position where documents are sought to be obtained under compulsion by subpoena addressed to a corporation, since notices to produce served in accordance with the Uniform Civil Procedure Rules 2005 (NSW) have the same coercive effect as subpoenas (CCOM Pty Ltd v Jiejing Pty Ltd (1992) 37 FCR 1 at 3). Where a subpoena is issued to a corporation, the physical act of production of the documents must necessarily be effected by a person (usually the proper officer). As Mason J (as his Honour then was) explained in Rochfort v Trade Practices Commission [1982] HCA 66; (1982) 153 CLR 134 (at 146), the perceived problem of the inability of a corporation to give evidence is avoided "by serving a subpoena on the corporation itself, requiring it, by its proper officer, to give evidence and produce the documents." [emphasis added]

 

169 There is no reason to conclude that the legislature, when referring to "persons" in s 111, was intending to confer the protection of secrecy only on persons acting in their individual capacity and not persons called upon to produce documents on behalf of ICAC in answer to a notice to produce addressed to ICAC.

 

170 The primary judge did not err in concluding that an officer or member of staff of ICAC called upon to answer a notice to produce documents addressed to ICAC (assuming that notice calls for documents falling within s 111(3)) has the benefit of the protection afforded by s 111(3) of the ICAC Act.

 

Does s 111(3) extend to documents created internally within ICAC?

 

171 The second argument by A Co on this ground is that the categories of documents sought by it in the notice to produce do not fall within the terms of ss 111(3)(a) or (b) since the statutory prohibitions on disclosure are confined to a document, matter or thing that has "come into" the person's possession, custody or control or "come to" the person's notice, as the case may be, and does not extend to a document "within" a person's possession, custody or control that has not been received from an external source (say, because the document was created by that person) or a matter or thing that has not been notified by someone externally to a member of the Commission (say, because it has been determined by ICAC itself).

 

172 A Co's contention is that the focus of the notice to produce is on "internally created documents evidencing the reasons for the decision to issue the ICAC summons, the matters taken into account in reaching that decision, and other documents that make clear the nature of the allegation or complaint the subject of the investigation" (submissions at [98]).

 

173 A Co submits that none of the categories of documents sought under the notice to produce extends to documents received by ICAC from third parties as required by the ICAC Act. As a preliminary point, that submission does not accommodate the breadth of some of the classes of documents sought. For example, it is difficult (at least without knowledge of ICAC's filing procedures) to conclude that an ICAC file bearing a particular reference number could not include documents received by ICAC from third parties. In submissions, this was accepted by Senior Counsel appearing for ICAC but it was submitted that even if the categories of documents sought by the notice to produce did include documents received by ICAC from third parties then those would be severable from the notice.

 

174 A Co submits that extremely clear language should be required before this Court would conclude that the legislature intended both the Supreme Court and applicants for judicial review to have no entitlement to obtain documents explaining the reasons and background for a decision by ICAC to issue a s 35 summons. Reliance is placed on what was said by Heydon J, in dissent, in Zentai at [94], after his Honour had stated that "... [i]t does not follow from the fact that a decision-maker has not provided reasons that the decision-maker's decision is unreasoned. Nor does it follow that it is unexaminable",:

 

"The publication of reasons certainly helps those who wish to challenge administrative decisions. But it is not essential to a challenge. A decision-maker can be compelled to produce documents revealing the reasons for a given decision, whether by a subpoena duces tecum or a notice to produce. That decision-maker can be compelled by interrogatories to reveal those reasons in writing, and by a subpoena ad testificandum to reveal those reasons in the witness box."

 

175 It is submitted that ICAC's construction of s 111 would deny the availability of the mechanisms identified by his Honour in Zentai. There, however, his Honour did not suggest that the mechanisms referred to above were the only potential means by which a decision might be able to be reviewed. His Honour also went on (at [94]) to refer to the possibility that non-speculative inferences might be able to be drawn from the nature of a decision and from the dealings between the decision-maker and the affected person before the decision was made.

 

176 ICAC contends that a purposive construction of s 111 is warranted and that such a construction is consistent with the result in Hagan, where a subpoena seeking production of material generated by ICAC in the course of dealing with a complaint made to it was set aside (see [25] of the decision in Hagan).

 

177 A Co submits that the constitutionally entrenched position of the Supreme Court recognised in Kirk v Industrial Court of New South Wales [2010] HCA 1; (2010) 239 CLR 531 and the requirement of institutional integrity recognised in Kable v Director of Public Prosecutions (NSW) [1996] HCA 24; (1996) 189 CLR 51 suggests that Parliament would not be assumed to have intended the court to lack access to mechanisms or procedures which ensure that decisions of the Commissioner are within jurisdiction and otherwise conform to applicable constitutional requirements and limitations. That submission raises the third basis for this ground of appeal which I consider below.

 

178 I agree with the conclusion reached by the primary judge on the construction of s 111(3). Apart from the fact that it would defeat the purpose of the secrecy protection afforded by s 111(3) if, for example, an internal note commenting on the import of a document or thing received by ICAC or coming to its attention in the course of the exercise of its functions were not to be protected even though the document itself would be protected from disclosure, there is in my opinion no warrant for reading a limitation into the sub-section that draws a distinction between internal and external documents. A document created by an officer of ICAC necessarily comes into that officer's possession by the very fact of the creation of that document.

 

Constitutional validity of s 111(3)

 

179 A Co's third submission on this ground of appeal is that if, on the proper construction of s 111(3), immunity from production of its internally created documents is conferred upon ICAC, then the section is constitutionally invalid to the extent that it impermissibly curtails the Supreme Court's ability to determine the extent to which ICAC has committed jurisdictional error in requiring the production of documents in purported reliance on s 35(1) and offends the institutional integrity of the Supreme Court in which jurisdiction under Ch III of the Constitution is vested (see [103] of its summary of argument, citing Kirk at [55], [96]-[100] and Kable).

 

180 The Attorney General submits, and I agree, that A Co's argument on this ground of appeal requires an extension of what was said by the High Court in Kirk in the context of privative clauses purporting to render judicial review unavailable. He refers to what was said at [100] in that case as a recognition that legislation can affect the availability of judicial review without being constitutionally invalid, provided there remains power in the Court to grant relief for jurisdictional error. It is submitted that the fact that parties may have evidentiary difficulties in such litigation due to s 111(3) does not mean that the Court is thereby deprived of jurisdiction (see Church of Scientology Inc v Woodward [1982] HCA 78; (1980) 154 CLR 25 at 61; quoted with approval by the majority judgment in Gypsy Jokers Motorcycle Club Inc v Commissioner of Police [2008] HCA 4; (2008) 234 CLR 532 at [24]). The Attorney General submits that the fact that s 111(3) may handicap one of the parties to the litigation, or have the effect that the application is determined on less than the entirety of the relevant materials, is not a reason for saying that the Court cannot or will not exercise its jurisdiction.

 

181 The Attorney General notes that the ICAC Act imposes requirements only in relation to ICAC documents and does not impose a requirement on the Supreme Court and the performance of its judicial functions generally (referring to K-Generation Pty Ltd v Liquor Licensing Court [2009] HCA 4; (2009) 237 CLR 501 at [143]).

 

182 The Attorney General further submits that the ability to obtain the production of documents by a compulsory process in a particular case is not an essential or defining characteristic of this Court. The Attorney refers to decisions demonstrating that it is within the legislative competence of Parliament to regulate matters of practice and procedure such as the availability of discovery and similar compulsory processes for the production of documents (referring to Nicholas v The Queen [1998] HCA 9; (1998) 193 CLR 173 at [20] per Brennan CJ; Fardon v Attorney-General (Qld) [2004] HCA 46; (2004) 223 CLR 575 at [41] per McHugh J) and to numerous examples where common law or statutory restrictions may affect the completeness of relevant evidence in judicial proceedings or the ability of the court to inspect or rely upon evidence (referring, as to the latter, to Nicholas v The Queen at 38; Cheikho v R [2008] NSWCCA 191; (2008) 75 NSWLR 323 at [103]-[105] per Spigelman CJ; Barr and Fullerton JJ agreeing).

 

183 ICAC submits in support of the Attorney General's submissions that s 111(3) is no different in substance to restrictions which affect the completeness of evidence in legal proceedings such as the journalist privilege recognised by the Evidence Act. ICAC refers also to Australian National Car Parks Pty Ltd v New South Wales [2014] NSWCA 298; (2014) 287 FLR 448 in which this Court held that a state law which provided that a state authority "cannot be required by preliminary discovery" to disclose certain information did not offend the principle derived from Kable.

 

184 In Fardon at [41], the High Court considered that limitations on the power to obtain documents by compulsory court processes were not repugnant to the traditional judicial process and did not compromise the integrity of the court. Section 111(3) does not preclude an application for judicial review of a decision to issue a summons under s 35 of the ICAC Act. Nor does it make such an application practically impossible. For those reasons, in my opinion the challenge to the constitutional validity of s 111(3) must fail.

 

No evidence by ICAC as to operation of the immunity

 

185 Finally, it is submitted by A Co that, even if s 111(3) were to be construed in the manner contended for by ICAC and is not invalid, ICAC failed to demonstrate that the immunity operated in the present case because it adduced no evidence to the effect that each of the documents sought in the notice to produce was a document falling within either s 111(3)(a) or 111(3)(b).

 

186 ICAC's response to this submission is to note that the notice to produce was tendered on the application to set it aside. It submits that it was apparent from the face of the notice to produce that it engaged s 111(3) of the ICAC Act and therefore it was unnecessary to lead additional evidence to enliven the immunity in the subsection. I agree.

 

Conclusion in relation to ground 7

 

187 For the reasons above, ground 7 is not made good. For completeness, I note that ICAC submits that even if ground 7 were to be well founded, it would not support the grant of the relief sought on the appeal (namely, the setting aside of the orders made below and a declaration in lieu that the decision to issue the impugned summons was wrong in law, was made in excess of jurisdiction and was a nullity). Rather, it submits, success on this ground would do no more than support setting aside the orders and remitting the matter to the Common Law Division for consideration as to whether leave should be granted for A Co to inspect any document produced in response to the notice to produce and for consideration as to whether any such documents should be admitted into evidence and, if so, would support reaching a different conclusion to that reached by his Honour. Again, I agree.

 

Ground 8 - denial of procedural fairness

 

188 The denial of procedural fairness alleged seems to have been the requirement by ICAC that A Co notify its objections to production of documents or to the summons prior to being informed of the nature of the complaint or allegation being investigated. Thus, the allegation of denial of procedural fairness does not relate to the decision to investigate an allegation or complaint nor does it relate to the decision by the Assistant Commissioner to issue the summons.

 

189 Section 30(3) provides for an entitlement to be informed of the nature of the complaint or allegation being investigated "before or at the commencement of the compulsory examination." [Emphasis added.] This must mean that it is not until, at the latest, the commencement of the compulsory examination that a person can insist upon such disclosure. Indeed ICAC accepts that the latest time by which a person required to attend a compulsory examination is entitled to be informed of the nature of the allegation or complaint being investigated is the commencement of the compulsory examination.

 

190 Insofar as ICAC seems to have referred before the primary judge to s 30(4) as protecting it from the consequences of failing to inform someone such as A Co before or at the commencement of the compulsory examination of the nature of the allegation or complaint being investigated, this is irrelevant to the question whether any denial of procedural fairness can be said to have occurred by not providing the information.

 

191 To the extent that the statute has constrained what might otherwise have been regarded as procedurally unfair, there is no denial of procedural fairness in not informing someone, to whom a s 35 summons is issued, of the nature of the allegation or complaint being investigated (for the purposes of which the compulsory examination is to be held) at a time before the latest time by which that person is entitled to that information. In that sense, his Honour was in my opinion correct in concluding that it was premature of A Co to insist on the information prior to the commencement of the compulsory examination (and hence premature to argue a denial of natural justice because of its non-provision). It could certainly request that information when it did but it could not insist upon its provision until the compulsory hearing commenced and it therefore had no complaint when ICAC refused that request.

 

192 It would in my opinion have been a different matter had A Co's proper officer attended at the commencement of the compulsory hearing, requested that information and then been denied it; or had it then been given that information but been refused a request for time to consider whether some or all of the documents required for production under the summons were on any view of the matter irrelevant to the investigation (bearing in mind that relevance for the purposes of an investigation is broader than relevance in a court proceeding). However, it is not appropriate to express a concluded view on this.

 

Conclusion

 

193 For the reasons above, none of the appeal grounds has been made out. I would dismiss the appeal with costs.

 

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Amendments

24 July 2015 - Typographical amendments to [10] and [19]

Decision last updated: 24 July 2015