Supreme Court New South Wales Medium Neutral Citation: "A" v Independent Commission Against Corruption [2014] NSWSC 1167 Hearing dates: 11 August 2014 Decision date: 27 August 2014 Before: Harrison J Decision: 1. Order that the plaintiff's notice to produce dated 31 July 2014 be set aside. 2. Dismiss the plaintiff's summons filed 11 July 2014. 3. Order that the plaintiff pay the costs of the proceedings. Catchwords: ADMINISTRATIVE LAW - judicial review - decision of Independent Commission Against Corruption not to disclose basis upon which a summons to produce documents was issued to plaintiff - notice to produce served by plaintiff - application by Commission to set aside notice to produce - ICAC Act s 111(3) - whether s 111(3) applies to the Commission as a separate legal personality - whether s 111(3) applies to documents created by the Commission ADMINISTRATIVE LAW - judicial review -summons to produce documents issued by Commission to plaintiff - ICAC Act s 35(1) - plaintiff's application to set aside summons - whether summons authorised by s 35 - whether Commission took into account relevant considerations in issuing the summons - whether decision to issue summons reasonable - whether decision to issue summons illogical, irrational or not based on findings or inferences of fact - whether Commission failed to accord procedural fairness to plaintiff CONSTITUTIONAL LAW - judicial review - whether s 111(3) inconsistent with power of Supreme Court to grant relief in relation to jurisdictional error - whether Court has effective supervision of decisions made by the Commission under s 111(3) CONSTITUTIONAL LAW - implied freedom of communication on governmental and political matters - whether s 35(1) inconsistent with the implied freedom - whether s 35 effectively burdens freedom of communication on government or political matters in its terms, operation or effect - whether a legitimate statutory purpose can be identified - whether s 35 reasonably appropriate and adapted or proportionate to an identified legitimate statutory purpose Legislation Cited: Administrative Decisions (Judicial Review) Act 1977 (Cth) Evidence Act 1995 Independent Commission Against Corruption Act 1988 Judiciary Act 1903 (Cth) Trade Practices Act 1974 (Cth) Cases Cited: AB Pty Ltd v Australian Crime Commission [2009] FCA 119; (2009) 179 FCR 296 Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 Attorney-General (NSW) v Quin [1990] HCA 21; (1990) 170 CLR 1 Attorney-General (SA) v Corporation of the City of Adelaide [2013] HCA 3; (2013) 249 CLR 1 Australian Crime Commission v NTD8 [2009] FCAFC 86; (2009) 177 FCR 263 Coleman v Power [2004] HCA 39; (2004) 220 CLR 1 Commissioner of Police (NSW) v Sleiman [2011] NSWCA 21; (2011) 78 NSWLR 340 Corporation of the City of Enfield v Development Assessment Commission [2000] HCA 6; (2000) 199 CLR 135 Cunliffe v The Commonwealth [1994] HCA 44; (1994) 182 CLR 272 Duncan v Independent Commission Against Corruption [2014] NSWSC 1018 Egglishaw v Australian Crime Commission (No 3) [2009] FCA 1027; (2009) 76 ATR 365 Fardon v Attorney-General (Qld) [2004] HCA 46; (2004) 223 CLR 575 Federal Commissioner of Taxation v Citibank Ltd (1989) 85 ALR 588; (1989) 20 FCR 403 George v Rockett [1990] HCA 26; (1990) 170 CLR 104 Glynn v Independent Commission Against Corruption (1990) 20 ALD 214 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) 116 ALR 97; (1993) 28 NSWLR 207 Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298 Kazal v Independent Commission Against Corruption [2013] NSWSC 53; (2013) 224 A Crim R 510 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 Levy v Victoria [1997] HCA 31; (1997) 189 CLR 579 Melbourne Home of Ford Pty Ltd v Trade Practices Commission (No 3) [1980] FCA 94; (1980) 31 ALR 519 MF1 v National Crime Authority (1991) 105 ALR 1; (1991) 33 FCR 449 Miller v TCN Channel Nine Pty Ltd [1986] HCA 60; (1986) 161 CLR 556 Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24 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 Monis v The Queen [2013] HCA 4; (2013) 87 ALJR 340 Mulholland v Australian Electoral Commission [2004] HCA 41; (2004) 220 CLR 181 Muschinski v Dodds [1985] HCA 78; (1985) 160 CLR 583 National Companies and Securities Commission v News Corporation Ltd [1984] HCA 29; (1984) 156 CLR 296 Nicholas v The Queen [1998] HCA 9; (1998) 193 CLR 173 Public Service Board of NSW v Osmond [1986] HCA 7; (1986) 159 CLR 656 Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 R v Anderson; Ex parte Ipec-Air Pty Ltd [1965] HCA 27; (1965) 113 CLR 177 R v Australian Broadcasting Tribunal; ex parte 2HD Pty Ltd [1979] HCA 62; (1979) 144 CLR 45 Roach v Electoral Commissioner [2007] HCA 43; (2007) 233 CLR 162 Ross v Costigan (1982) 59 FLR 184; (1982) 41 ALR 319 Rowe v Electoral Commissioner [2010] HCA 46; (2010) 243 CLR 1 South Australia v Totani [2010] HCA 39; (2010) 242 CLR 1 The Age Company Ltd v Liu [2013] NSWCA 26; (2013) 82 NSWLR 268 Unions NSW v New South Wales [2013] HCA 58; (2013) 88 ALJR 227 Vetter v Lake Macquarie City Council [2001] HCA 12; (2001) 202 CLR 439 Wainohu v New South Wales [2011] HCA 24; (2011) 243 CLR 181 Wotton v Queensland [2012] HCA 2; (2012) 246 CLR 1 Category: Principal judgment Parties: "A" (Plaintiff) Independent Commission Against Corruption (Defendant) Attorney General (Intervening) Representation: Counsel: B R McClintock SC & D F C Thomas (Plaintiff) R P L Lancaster SC & S Robertson (Defendant) M G Sexton SC SG & K Richardson (Attorney General - Intervening) Solicitors: Johnson, Winter & Slattery (Plaintiff) Crown Solicitor's Office (Defendant & Attorney General) File Number(s): 2014/205483 Publication restriction: This is a redacted version of the judgment given on 27 August 2014. Publication of the unredacted version of the judgment is restricted by orders made on 11 August 2014 pursuant to s 7 of the Court Suppression and Non-Publication Orders Act 2010. Those orders do not prohibit publication of this redacted version of the judgment. Judgment 1HIS HONOUR: The plaintiff is [redacted from published version of judgment]. The defendant is a Commission established by the Independent Commission Against Corruption Act 1988, with the object, among others, of investigating, exposing and preventing corruption involving or affecting public authorities and public officials. 2On 24 June 2014, the Commission issued a summons to the plaintiff requiring the production of certain documents in accordance with s 35(1)(a) of the Act. The Commission's summons identified the documents in a schedule in the following terms: "1. An electronic copy of the contents of the following email account in your possession custody or control: [redacted]. 2. An electronic copy of the contents of any other email account in your possession custody or control operated by or on behalf of [redacted] ... 3. An electronic copy of the contents of any electronic calendar in your possession custody or control, operated by or on behalf of [redacted] ...." 3Shortly thereafter, the plaintiff commenced these proceedings by summons filed on 11 July 2014 seeking orders and relief including the following: "5 An interlocutory injunction preventing the defendant until further order from moving upon, calling upon or otherwise enforcing the summons to appear and produce documents dated 24 June 2014 (ICAC Summons) purportedly issued to the proper officer of the plaintiff by the Assistant Commissioner of the defendant. 6 A declaration that the ICAC Summons be quashed as invalid and of no effect and otherwise set aside. 7 A declaration that the decision to issue the ICAC Summons was wrong in law, was made without or in excess of jurisdiction, and is a nullity." 4In aid of its application for that relief, the plaintiff also issued a notice to produce directed to the Commission seeking production of the following documents: "1. All documents and other material provided to, or placed before, the Assistant Commissioner of the defendant in support of an application to issue the Summons to Appear and Produce Documents issued to the Proper Officer of the plaintiff dated 24 June 2014 (ICAC Summons). 2. All documents evidencing or recording any oral information provided by an employee, officer of member of the defendant to the Assistant Commissioner in support of an application to issue the ICAC Summons. 3. All documents and other material considered by the Assistant Commissioner of the defendant, or to which the Assistant Commissioner had regard, in deciding to issue the ICAC Summons. 4. All documents and other material evidencing or recording the consideration by the Assistant Commissioner in issuing the ICAC Summons of: (a) the scope and nature of the documents and things referred to in the Schedule to the ICAC Summons; (b) the implied freedom of political communication, freedom of political communication and/or freedom of speech; (c) any right or entitlement to privacy on the part of the [redacted] (as the expression is defined in the Summons commencing these proceedings). 5. All documents and other material in the records of the defendant bearing the reference number [redacted] (reference number) or contained within a file, folder, bundle or like storage or collation device bearing the reference number. 6. Any document prepared by the defendant for the purpose of complying with s 30(3) of the Independent Commission Against Corruption Act 1988 (ICAC Act) which evidences or records the nature of the allegation or complaint being investigated by the defendant. 7. All documents relied upon by the defendant in determining that it was satisfied that it was in the public interest to conduct a compulsory examination in respect of the allegation or complaint being investigated by the defendant. 8. Any document evidencing or recording the allegation or complaint being investigated by the defendant." 5The Commission opposes the principal relief and has also sought by its own notice of motion filed on 4 August 2014 to set the notice to produce aside or alternatively that the documents only be produced for inspection by the Court. 6As part of its claim to set aside the summons to produce, the plaintiff has alleged that ss 35(1) and (2) of the Act are invalid and has caused the issue of notices pursuant to s 78B of the Judiciary Act 1903. The Attorney General in and for the State of New South Wales has appeared in answer to such a notice to contest the plaintiff's contentions in this respect. In response to the Commission's motion to set aside the notice to produce, the plaintiff has also raised the validity of s 111(3) of the Act and has issued a further s 78B notice. The Attorney General has appeared in opposition to the plaintiff's contentions in that respect as well. The legislative scheme 7There are several provisions of the Act to which my attention was drawn for the purposes of these proceedings. Those provisions can conveniently be recorded as follows: "2A Principal objects of Act The principal objects of this Act are: (a) to promote the integrity and accountability of public administration by constituting an Independent Commission Against Corruption as an independent and accountable body: (i) to investigate, expose and prevent corruption involving or affecting public authorities and public officials, and (ii) to educate public authorities, public officials and members of the public about corruption and its detrimental effects on public administration and on the community, and (b) to confer on the Commission special powers to inquire into allegations of corruption. 3 Definitions (1) In this Act: 'investigation' means an investigation under this Act, and (without limitation) includes a preliminary investigation referred to in section 20A. 'officer of the Commission' means: (a) the Commissioner, or (b) an Assistant Commissioner, or (c) a member of staff of the Commission, or (d) a person engaged by the Commission under section 104B to provide the Commission with services, information or advice. Part 4 - Functions of Commission Division 1 - Functions generally 12 Public interest to be paramount In exercising its functions, the Commission shall regard the protection of the public interest and the prevention of breaches of public trust as its paramount concerns. 12A Serious corrupt conduct and systemic corrupt conduct In exercising its functions, the Commission is, as far as practicable, to direct its attention to serious corrupt conduct and systemic corrupt conduct and is to take into account the responsibility and role other public authorities and public officials have in the prevention of corrupt conduct. 13 Principal functions (1) The principal functions of the Commission are as follows: (a) to investigate any allegation or complaint that, or any circumstances which in the Commission's opinion imply that: (i) corrupt conduct, or (ii) conduct liable to allow, encourage or cause the occurrence of corrupt conduct, or (iii) conduct connected with corrupt conduct, may have occurred, may be occurring or may be about to occur,... 17 Evidence and procedure (1) The Commission is not bound by the rules or practice of evidence and can inform itself on any matter in such manner as it considers appropriate... 20 Investigations generally (1) The Commission may conduct an investigation on its own initiative, on a complaint made to it, on a report made to it or on a reference made to it. (2) The Commission may conduct an investigation even though no particular public official or other person has been implicated... 21 Power to obtain information (1) For the purposes of an investigation, the Commission may, by notice in writing served on a public authority or public official, require the authority or official to produce a statement of information. (2) A notice under this section must specify or describe the information concerned, must fix a time and date for compliance and must specify the person (being the Commissioner, an Assistant Commissioner or any other officer of the Commission) to whom the production is to be made. (3) The notice may provide that the requirement may be satisfied by some other person acting on behalf of the public authority or public official and may, but need not, specify the person or class of persons who may so act. 22 Power to obtain documents etc (1) For the purposes of an investigation, the Commission may, by notice in writing served on a person (whether or not a public authority or public official), require the person: (a) to attend, at a time and place specified in the notice, before a person (being the Commissioner, an Assistant Commissioner or any other officer of the Commission) specified in the notice, and (b) to produce at that time and place to the person so specified a document or other thing specified in the notice. (2) The notice may provide that the requirement may be satisfied by some other person acting on behalf of the person on whom it was imposed and may, but need not, specify the person or class of persons who may so act. Division 3 - Compulsory examinations and public inquiries 30 Compulsory examinations (1) For the purposes of an investigation, the Commission may, if it is satisfied that it is in the public interest to do so, conduct a compulsory examination. (2) A compulsory examination is to be conducted by the Commissioner or by an Assistant Commissioner, as determined by the Commissioner. (3) A person required to attend a compulsory examination is entitled to be informed, before or at the commencement of the compulsory examination, of the nature of the allegation or complaint being investigated. (4) A failure to comply with subsection (3) does not invalidate or otherwise affect the compulsory examination. (5) A compulsory examination is to be conducted in private. 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. 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. 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 (b) to be sworn or to make an affirmation, or (c) to answer any question relevant to an investigation put to the person by the Commissioner or other person presiding at the compulsory examination or public inquiry, 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... 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, such an Australian legal practitioner in the exercise of the Australian legal practitioner's functions as counsel to the Commission, and (c) a person who conducts a review under section 104D, but only in relation to the person's functions under that section, 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..." A point of procedure 8It will immediately be apparent that the plaintiff's notice to produce was issued in anticipation of being provided with documents by the Commission better to inform some of the arguments upon which the plaintiff hoped to rely in seeking to set aside the summons to produce. The outcome of the motion to set aside the plaintiff's notice to produce accordingly bore upon the plaintiff's approach to that principal issue. I proposed in these circumstances, and the parties agreed, that I should hear argument upon both the application to set aside the notice to produce and the application to set aside the summons to produce, but with the reservation that if I came to the conclusion that the Commission should produce the documents sought by the plaintiff, I would give the plaintiff the opportunity to make submissions based upon them if so advised. It was agreed that such an opportunity would only be required in the event that I was otherwise not in favour of the plaintiff's contentions concerning the summons. The plaintiff's notice to produce 9In seeking to set aside the plaintiff's notice to produce, the Commission relied upon s 111(3) of the Act. It argued that the notice to produce calls for production of material that s 111(3) provides "shall not be required" to be produced and that such production should not be permitted. Instead, the Commission maintained that I should set aside the notice to produce, as occurred in similar circumstances in Hagan v Independent Commission Against Corruption [2001] NSWSC 890. 10In contrast, the plaintiff identified three bases upon which it contended that s 111(3) did not apply to it and that its notice to produce was valid. They were: (1) Section 111(3) only relevantly applies to officers of the Commission and not to the Commission itself. The notice to produce was specifically directed to the Commission. (2) The notice to produce seeks (in part) production of documents created by the Commission and the phrase "come into the person's possession, custody or control" in s 111(3) is inapt to describe documents of that type. (3) In the alternative to (1) and (2), s 111(3) is constitutionally invalid. Does s 111(3) apply to the Commission? 11The plaintiff contended that the Commission is a corporation with legal personality different to and separate from the Commissioner or any officer: s 4(1). Section 111(3) only protects a person to whom the section applies: s 111(1). They do not include the Commission. 12The Commission submitted that the argument that s 111(3) has no application to the notice to produce because it was issued to the Commission itself rather than to one of its officers was rejected in Hagan at [18]-[20] as follows: "[18] The plaintiff contends that s 111 does not have application as the defendant is a statutory commission and not one of the 'persons' identified in subsection 1. In my opinion the functions of the Commission are exercised by persons, who if identified by subsection 1, are subject to the secrecy provisions. [19] The Commission is constituted by s 4 of the Act. It has the functions conferred or imposed on it by or under that or any other Act [s 4(2)]. The functions of the Commission are exercisable by the Commissioner, and any act, matter or thing done in the name of, or on behalf of, the Commission by the Commissioner, or with the authority of the Commissioner, shall be taken to have been done by the Commission. Further, by subsection 4 a reference in the Act to anything done or omitted by, to or in relation to the Commission, includes a reference to a thing done or omitted by, to or in relation to, the Commissioner or another officer of the Commission having authority in the circumstances. [20] As one or more of the 'persons' identified in subsection 111(1) necessarily involved in responding to the subpoena are acting on behalf of the Commission they are subject to the secrecy provisions..." 13The Commission submitted that the decision in Hagan is not plainly wrong, but is in fact plainly correct. It argued that I should take the same approach. 14The plaintiff submitted that what was said by Taylor AJ in Hagan was obiter. The remarks have not been judicially considered elsewhere. Section 111(1)(d) draws an express distinction between persons and bodies. It was open to Parliament to include the Commission as one of the bodies within s 111(1), but it did not do so. 15In my opinion, the plaintiff's argument is without substance. The Commission, alike with any corporation, can only perform its functions by or through its servants or agents. The fact that the Commission has a separate legal personality does not alter the fact that anything that it does, and any function that it performs, can only be done or performed through such persons. The expression "a person who is or was an officer of the Commission", which is to be found in s 111(1)(a), is defined in s 3 of the Act to include "a member of staff of the Commission". It is conceptually and practically difficult, if not in fact impossible, to imagine how the Commission could be expected to respond to a notice to produce other than by or with the assistance or involvement of a member of members of staff of the Commission. Any such person is therefore "a person to whom this section applies" for the purposes of s 111(3), and as such a person who "shall not be required" in accordance with s 111(1)(a) "to produce in any court any document or thing" as thereafter described. Does s 111(3) apply to documents created by the Commission? 16The plaintiff contended further that s 111 on its face only applied to documents that have "come into" the person's possession, custody or control and not to documents that are "within" the person's possession, custody or control. Put another way, the plaintiff insisted that the section only applied to documents that have been created by or received from third parties in the course of the performance of the person's functions under the Act. Such a construction would on the plaintiff's case exclude from the prohibition upon or protection from production any documents that were created or generated by the person to whom the protection otherwise extends. The plaintiff submitted that none of the categories of documents sought by it under the notice to produce extended to documents received by the Commission from third parties in accordance with the Act. Rather, the focus was upon internally created documents evidencing the reasons for the decision to issue the summons, the matters taken into account in reaching that decision and other documents that make clear the nature of the allegation or complaint that is being investigated. 17The plaintiff argued that, for analogous reasons, the categories in the notice to produce do not fall within s 111(3)(b). The sub-section is confined to matters or things that have "come to the person's notice". The use of the word "notice" again makes clear that the subsection is directed at matters or things of which the Commission has been notified or which have come to its attention in the exercise of its functions. The plaintiff submitted that the language is inapt to encompass matters that have been determined by the Commission itself, including the making of a decision to issue the summons, the reasons for that decision, the matters considered in making the decision and documents created by the Commission that evidence the nature of the allegation or complaint that it has decided to investigate. 18The Commission submitted that s 111 is a comprehensive provision dealing with "secrecy" in connection with its functions. The evident object of that section is to avoid the Commission's investigatory and other functions being prejudiced by disclosures otherwise than for the purposes of the Act or in the other limited circumstances contemplated. The plaintiff's proposed construction of s 111 would defeat that object. If that construction were correct, the Commission could be required to produce the internal documents created by it in the course of its investigations, such as documents that record the progress of investigations, the identity of suspects and, potentially, the circumstances that are being investigated. Premature disclosure of material of that nature could prejudice ongoing investigations. 19As was said in National Companies and Securities Commission v News Corporation Ltd [1984] HCA 29; (1984) 156 CLR 296 at 323-4: "It is of 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." 20The Commission argued that any construction of s 111 that would require "an investigator to disclose his hand prematurely" or which would otherwise defeat its apparent objects should be avoided. Instead, the phrase "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 [the] Act" should be construed to include documents created in the course of the exercise of a person's functions under the Act. 21Such a construction would be consistent with the result in Hagan in which a subpoena that sought "the production of certain material generated by the Independent Commission Against Corruption ... in the course of its dealing with the plaintiff's complaint to it" was set aside. Section 111(3) requires that the Commission "shall not be required" to produce any of the documents sought in the notice to produce, whether those documents were created by officers of the Commission, or created by others and obtained by the Commission. 22I agree with that analysis. However, whatever comfort or assistance may also be generated by a purposive construction of the provision, in my opinion the plaintiff's argument fails literally, in the sense that its construction or interpretation does not accord with the literal sense of the words in the section. As a matter of language, a document prepared or created by a person to whom the section applies necessarily comes into his or her possession, custody or control both by reason of, as well as in the course of, the exercise of the person's functions under the Act. The words "by reason of" and "in the course of" do not carry any obvious or critical difference in meaning, each rather suggesting something that happens as a normal or usual part of the exercise of the tasks performed by the person as a member of the staff of the Commission. There is no conflict or inconsistency between the creation or generation of a document or thing by a person and its simultaneous coming into that person's possession, custody or control. In linguistic terms, the natural or ordinary meaning of the words in the provision does not expressly or implicitly restrict its operation to documents or things that come from third parties, which for presently relevant purposes means from outside the Commission. Is s 111(3) unconstitutional? 23The plaintiff contended that s 111(3) of the Act does not apply to the notice to produce because the subsection is constitutionally invalid. According to the notice to the Attorneys General under s 78B of the Judiciary Act 1903 (Cth) dated 5 August 2014, the plaintiff considers that s 111(3) of the Act is: "...invalid to the extent that it permits non-production of documents otherwise relevant to proceedings, where those proceedings concern the extent to which ICAC has engaged in conduct authorised by law and has committed jurisdictional error. It would be inconsistent with an essential or defining characteristic of the Supreme Court of New South Wales for the Court ... to be precluded from requiring the production of documents from ICAC in such circumstances." 24The plaintiff argued that, in substance, s 111(3) invalidly purports to take away the constitutionally entrenched power of State Supreme Courts to grant relief in relation to jurisdictional error. That argument potentially involves an attempt to develop and extend the law as explained by the High Court in Kirk v Industrial Court of New South Wales [2010] HCA 1; (2010) 239 CLR 531 in which the Court held (at [100]) that: "Legislation which would take from a State Supreme Court power to grant relief on account of jurisdictional error is beyond State legislative power." 25The plaintiff submitted that this Court is a constitutionally entrenched arbiter of the extent to which administrative decision-makers in this State may have committed jurisdictional error: Kirk at [55], [96] - [100]. In Kirk at [98], the plurality said: "[98] The supervisory jurisdiction of the Supreme Courts was at federation, and remains, the mechanism for the determination and the enforcement of the limits on the exercise of State executive and judicial power by persons and bodies other than the Supreme Court. That supervisory role of the Supreme Court exercised through the grant of prohibition, certiorari and mandamus (and habeas corpus) was, and is, a defining characteristic of those courts ..." 26That statement reflects earlier judicial recognition that an "essential characteristic of the judicature is that it declares and enforces the law which determines the limits of the power conferred by statute upon administrative decision-makers": Corporation of the City of Enfield v Development Assessment Commission [2000] HCA 6; (2000) 199 CLR 135 at [43], citing Attorney-General (NSW) v Quin [1990] HCA 21; (1990) 170 CLR 1 at 35-36. 27The plaintiff submitted that the practical effect of the Commission's response to the notice to produce is that it can issue a summons under s 111 without providing either the recipient of the summons or the Court with access to any information whatsoever suggesting or establishing the connection between the summons and an existing allegation or complaint the subject of investigation. That is said to deprive this Court of the ability to determine or assess whether the summons was issued within or beyond power. 28The plaintiff accepted that the recipient of a summons under s 35(1) has no general law right to reasons in support of the issue of the summons but placed considerable emphasis upon what was said in dissent by Heydon J in Minister for Home Affairs v Zentai [2012] HCA 28; (2012) 246 CLR 213 at [94] as follows: "[94] ...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." 29The plaintiff contended that the constitutionally entrenched position of this Court recognised in Kirk requires that the Court have available to it mechanisms or procedures which ensure that decisions of the Commission are within jurisdiction and otherwise conform to applicable constitutional requirements and limitations. That proposition has to be considered in the light of what was said in Cunliffe v The Commonwealth [1994] HCA 44; (1994) 182 CLR 272 at 303, 321, where the High Court declined to invalidate a provision due to the availability of mechanisms under the Administrative Decisions (Judicial Review) Act 1977 to ensure the Court had effective supervision of decisions contemplated by that Act. 30The plaintiff maintained that the Commission's construction of s 111 denies the availability of those mechanisms, including each of the mechanisms identified by Heydon J in Zentai. The Commission's construction would also deny to the Court the ability, under UCPR 2.1, to give directions requiring the Commission to disclose the basis on which the summons was issued. For example, in Commissioner of Police (NSW) v Sleiman [2011] NSWCA 21; (2011) 78 NSWLR 340 at [229], the Court of Appeal relied upon the availability of the UCPR provisions to avoid a finding of constitutional invalidity in that case. 31Finally, it is significant in considering the validity of s 111 that it purports to preclude production not only to a party to legal proceedings but also to the Court itself. That circumstance takes the present case outside cases such as South Australia v Totani [2010] HCA 39; (2010) 242 CLR 1 in which the High Court accepted the validity of aspects of a legislative scheme that made it practically difficult for a claimant to demonstrate jurisdictional error. 32The Commission submitted that the ability to issue a notice to produce or to obtain relevant documents through similar compulsory processes is not an essential or defining characteristic of the Supreme Court of New South Wales or other courts. On the contrary, restrictions on the power of courts to require production of documents are and have been common since well before federation. Common law or statutory prohibitions or restrictions in relation to privilege and public interest immunity are obvious examples. A more recently created example is s 126K of the Evidence Act 1995, providing in effect that journalists are not compellable to give evidence or disclose documents regarding the identity of a source in certain circumstances. It would presumably follow from the plaintiff's argument that s 126K is constitutionally invalid insofar as it "permits non-production of documents otherwise relevant to proceedings" (at least in the case of judicial review proceedings). 33The Commission submitted that it is well within the legislative competence of the New South Wales Parliament to pass laws that regulate matters of practice and procedure such as the availability of discovery and similar compulsory processes for the production of documents. As Brennan CJ said in Nicholas v The Queen [1998] HCA 9; (1998) 193 CLR 173 at [20]: "... A law that purports to direct the manner in which judicial power should be exercised is constitutionally invalid. However, a law which merely prescribes a court's practice or procedure does not direct the exercise of the judicial power in finding facts, applying law or exercising an available discretion." 34Consistent with this, as McHugh J said in Fardon v Attorney-General (Qld) [2004] HCA 46; (2004) 223 CLR 575 at [41]: "State legislation may alter the burden of proof and the rules of evidence and procedure in civil and criminal courts in ways that are repugnant to the traditional judicial process without compromising the institutional integrity of the courts..." 35According to the Commission, the imposition of limitations on the power to obtain documents by the compulsory processes of the Court is not repugnant to the traditional judicial process. However, as that observation in Fardon makes clear, even if it were, that would not involve a constitutionally invalid compromise of the integrity of the Supreme Court. There can be no constitutional objection to s 111(3) of the Act insofar as it amounts to no more than a regulation of the practice of courts relating to discovery and similar compulsory processes such as notices to produce. The Attorney General's submission on the constitutional validity of s 111(3) 36The Attorney General formally adopted the Commission's submissions on this issue. 37The Attorney General acknowledged that there may be consequences in some circumstances because of the limitations on the material that is available to the Court, but these were not questions going to the validity of the particular provision. Both in terms of Kirk and Chapter III, s 111(3) is a valid law from the point of view of the powers of the New South Wales Parliament. The issue of how it may affect the practical exercise by the Court of its judicial review functions in this case was a quite separate question. Consideration of the challenge to the notice to produce 38The plaintiff's argument was, in substance, that s 111(3) of the Act takes the power from this Court to grant relief on account of jurisdictional error because the subsection might deny an aggrieved person access to documents that could establish such error. However, s 111(3) does not purport to "take from" the powers that this Court has to grant relief on account of jurisdictional error. This Court has both an inherent and statutory jurisdiction to supervise administrative tribunals, including the Commission. In my opinion, this Court's supervisory jurisdiction has been validly invoked in these proceedings notwithstanding s 111(3). 39Section 111(3) does not as a matter of substance take away this Court's power to grant relief on account of jurisdictional error or defeat any such application at the threshold. On the contrary, notwithstanding s 111(3), it remains open to any person aggrieved by a decision of the Commission or one of its officers to make an application for judicial review and to lead any available evidence in support of that application. Clearly, questions of privilege, public interest immunity or the constraints of s 111 itself may legitimately affect the availability of such evidence. Evidence that a summons had been issued for an improper purpose can still be led on an application for judicial review of such a decision, and nothing in s 111 forecloses that possibility. Similarly, in cases where information about an investigation has been made public as part of a public inquiry, report or through other means, such information could conceivably be led in support of an application for judicial review if it supported an inference that a decision by the Commission or one of its officers was infected by jurisdictional error. An example of this is the recent decision in Duncan v Independent Commission Against Corruption [2014] NSWSC 1018 in which this Court declared that certain aspects of a report of the Commission was a nullity. 40It is a mistake to conflate difficulties that may be associated with establishing jurisdictional error with the proof of constitutional invalidity as a fact. Broad investigatory functions have been validly conferred on the Commission by the Act. As this Court noted in Independent Commission Against Corruption v Cornwall (1993) 116 ALR 97; (1993) 28 NSWLR 207 at 241, the Commission is entitled to conduct inquiries "of a very general kind" with the result that "[t]o demonstrate that a question is irrelevant or outside a relevant area of investigation will not be an easy task". Moreover, the Commission and its officers are not obliged to give reasons for some decisions. There is no general duty at common law to give reasons for administrative decisions (Public Service Board of NSW v Osmond [1986] HCA 7; (1986) 159 CLR 656) and as Gibbs CJ explained in that case at 663, "the fact that no reasons are given for a decision does not mean that it cannot be questioned". 41The plaintiff's argument appears to be that the High Court's decision in Kirk guarantees not only the jurisdiction of State Supreme Courts to review for jurisdictional error, but also guarantees those Courts the power to require decision makers to give reasons or to produce documents from which reasons for a decision might be inferred. In my opinion there is nothing in the authorities or in principle that supports it. The plaintiff's argument seems to me illegitimately to rest upon or require the extension or expansion of what was said in Kirk. There is no constitutionally inspired basis for doing so. 42I do not accept that this Court's ability to obtain the production of documents by a compulsory process is an essential or defining characteristic of this Court or any other court. Since Fardon at least it is clear that State legislation may affect court procedures in a way that is repugnant to the traditional judicial process without compromising the institutional integrity of the courts. 43This Court's power to grant relief on account of jurisdictional error has not compromised. The plaintiff's difficulties in proving jurisdictional error should not be mistaken for the existence of such an error in fact. The Commission's summons to produce 44The grounds upon which the plaintiff seeks relief with respect to the Commission's summons are as follows: (1) The decision to issue the summons was not authorised by s 35 of the Act. (2) In issuing the summons, the Assistant Commissioner failed to take into account relevant considerations, including the scope, the subject matter and the purposes of the Act and the nature of the allegation or complaint that is the subject of a compulsory examination. (3) The decision by the Assistant Commissioner to issue the summons was a decision which no decision maker, acting reasonably, could have taken. (4) The decision by the Assistant Commissioner to issue the summons was illogical, irrational and not based on findings or inferences of fact supported by some probative material or logical grounds. (5) In issuing the summons, the Assistant Commissioner failed to have regard to a relevant consideration, being the potential or likely impact upon the constitutional freedom of communication on governmental and political matters. (6) Alternatively, ss 35(1) and (2) are invalid, with the result that the summons was not authorised by law. (7) The Commission has failed to accord procedural fairness to the plaintiff. Factual background 45The plaintiff relied upon evidence in the form of affidavits that were read without relevant objection in support of its case. Neither of the deponents was cross-examined. Some of that material is as follows. 46[Redacted] 47[Redacted] 48[Redacted] 49[Redacted] 50[Redacted] 1. The decision to issue the summons was not authorised by s 35 of the Act. 51The plaintiff contended first that s 35(1) does not authorise the disclosure of documents or things unrelated to an allegation or investigation of actual or possible corrupt conduct. Section 35(1) confers a discretion to require a person to produce documents or things referred to in the summons. However, that discretion is neither unbridled nor unexaminable: see Wotton v Queensland [2012] HCA 2; (2012) 246 CLR 1 at [10]. Rather, it is confined by three relevant principles. 52First, "[e]very statutory discretion is confined by 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 at [9]; R v Australian Broadcasting Tribunal; ex parte 2HD Pty Ltd [1979] HCA 62; (1979) 144 CLR 45 at 49. Secondly, the breadth of a statutory discretion is to be determined in light of the Act as a whole: Minister for Immigration and Citizenship v Li at [67]; Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 at [69]. Thirdly, every statutory discretion must be exercised in accordance with applicable laws, including applicable constitutional prohibitions. 53The objects and functions of the Act consistently and understandably tie the work of the Commission to the investigation of conduct that constitutes actual or alleged corrupt conduct. There is no suggestion in those objects or functions that Parliament intended to grant power to the Commission to compel (under threat of arrest) production of documents that have no relationship to an investigation of actual or alleged corrupt conduct involving or affecting public authorities and public officials. The specificity of the objects and functions argues against such a free-standing discretion. 54Further limitations on the scope of the discretion in s 35(1) are evident from a consideration of the way in which s 35 relates to the balance of the Act. By its terms, s 35(1) may only be exercised where a compulsory examination or public inquiry is being conducted. It follows that s 35(1) is only enlivened once the Commission has determined that it is in the public interest to conduct a compulsory examination or a public inquiry: see ss 30(1), 31(1). Such an examination or public inquiry may only be conducted "[f]or the purposes of an investigation" (s 30(1), 31(1)) and investigations must be conducted by the Commission with a view to determining whether any corrupt conduct, or any other conduct referred to in s 13(1)(a), is occurring or is about to occur: s 13(2). 55Under either a compulsory examination or a public inquiry, a person required to attend is entitled to be informed of the nature of the "allegation or complaint" being investigated: s 30(3), 31(6). The reference to "allegation or complaint" picks up both s 10 of the Act, which entitles a person to make a complaint about a "matter that concerns or may concern corrupt conduct", and the function of investigating any allegation or complaint in s 13(1)(a). The requirement that a person be informed about the nature of the allegation or complaint being investigated would be otiose if the Commission were entitled to require a person to attend to appear and/or produce documents that were unrelated to the allegation or complaint. 56The plaintiff argued that this construction has the further benefit of giving a harmonious interpretation to the mechanisms under which the Commission can compulsorily acquire documents or things. The power to compel production of documents prior to the holding of a compulsory examination may only be exercised "[f]or the purposes of an investigation": s 21. The power to seize documents under a search warrant may only be used to search for documents and other things "connected with any matter that is being investigated under" the Act: s 41(1)(b). The power to conduct a compulsory examination is itself conditioned by the requirement that it be conducted "[f]or the purposes of an investigation". There would be a significant lacuna in the Act if s 35(1) alone could empower the Commission to obtain documents unrelated to the investigation of an allegation or complaint the subject of a compulsory examination. 57Matters of public policy are also said to reinforce this construction. The Courts have long been jealous of the prima facie immunity from the compulsory production of papers and possessions recognised by the common law: George v Rockett [1990] HCA 26; (1990) 170 CLR 104 at 110; Egglishaw v Australian Crime Commission (No 3) [2009] FCA 1027; (2009) 76 ATR 365 at [23]. An administrative power compulsorily to obtain documents "seriously intrudes upon the ability of a person to keep his documents otherwise confidential to himself" (AB Pty Ltd v Australian Crime Commission [2009] FCA 119; (2009) 179 FCR 296 at [19]; Australian Crime Commission v NTD8 [2009] FCAFC 86; (2009) 177 FCR 263 at [63]) and interferes "with the rights of the citizen": Egglishaw v Australian Crime Commission (No 3) at [23]. Such legislation is given "close scrutiny and a strict reading": Federal Commissioner of Taxation v Citibank Ltd (1989) 85 ALR 588; (1989) 20 FCR 403 at 433. 58The decision to issue a summons under s 35(1) is not vested in the hands of a magistrate or judicial officer, but in the Commission itself. Compliance with a validly issued summons cannot be refused in reliance on the privilege against self-incrimination or legal professional privilege. There is every reason in such circumstances to confine the power in s 35(1) to documents relevant to an existing allegation or complaint the subject of a compulsory examination. The clearest language ought be required to support a contrary conclusion. 59The plaintiff contended in essence that the Commission cannot compulsorily obtain any document as it thinks fit in conducting an investigation, irrespective of the relevance of the document to the investigation. A review of the scope, subject-matter and purposes of the Act, together with a review of the terms of s 35(1) assessed in light of the Act as a whole, suggests that s 35(1) does not authorise or permit the Commission to require the production of documents or things that are unrelated to an existing allegation or complaint of actual or possible corrupt conduct that is the subject of the applicable compulsory examination or public inquiry. 60The Commission drew attention to my remarks in Kazal v Independent Commission Against Corruption [2013] NSWSC 53; (2013) 224 A Crim R 510 at [24] - [26]: "[24] The principal objects of the ICAC Act describe the Commission as 'an independent and accountable body' with functions, among others, to 'investigate, expose and prevent corruption involving or affecting public authorities and public officials'. The importance of the Commission's investigative role is reflected in the terms of s 13 of the Act. In that setting, the Act confers 'far-reaching' powers on the Commission: Balog v Independent Commission Against Corruption [1990] HCA 28; (1990) 169 CLR 625 at 629. They include the power compulsorily to obtain information and documents and the power to enter premises. It has the power to conduct compulsory examinations of witnesses in public or in private and to summon witnesses to appear and give evidence and produce documents. [25] Even though some of the Commission's powers are analogous to those exercised by courts, the Commission is possessed of an investigative role with fewer constraints than ordinarily attend the conduct of court proceedings. For example, the Commission is not bound by the rules or practice of evidence and can inform itself in such manner as it considers appropriate: compare Kostas v HIA Insurance Services Pty Ltd [2010] HCA 32; (2010) 241 CLR 390 at [15]. The Commission shall exercise its functions with as little formality and technicality as possible, with compulsory examinations and public inquiries de-emphasising the adversarial approach. The Act contains a statutory abrogation of the privilege against self-incrimination and other grounds of privilege that might otherwise be claimed by witnesses giving evidence to the Commission. [26] The existence and scope of these extra powers demonstrate that the legislature did not intend to constrain the Commission by reference to the rules and procedures that apply in courts. The absence of those constraints is consistent with the Commission's role as 'primarily an investigative body and not a body the purpose of which is to make determinations...as part of the criminal process': Balog at 633. It is also consistent with that role that the Act makes provision to ensure that the conduct or outcome of its investigations should not bind or otherwise prejudice subsequent legal proceedings. See in this respect ss 13(3) and (5)(c), 74A(1) and 74B(1)(a) and (b)." 61The Commission emphasised that the investigatory powers and functions that included those given by s 35 of the Act should be construed consistently with the breadth of the terms in which the power is expressed, and not be restricted by implication to the production of material that might satisfy a test of relevance in an adversarial setting. Accordingly, the scope of a statutory power to require the production of documents must be ascertained by an examination of the provision concerned and its legislative context. 62In Melbourne Home of Ford Pty Ltd v Trade Practices Commission (No 3) [1980] FCA 94; (1980) 31 ALR 519 at 350, the Full Federal Court noted that, in exercising powers and functions under s 155(1) of the Trade Practices Act 1974, an authorised person was "engaged in a function of investigation, not in a task of proving an allegation" and said that: "The power conferred by s 155(1) is in aid of that function and is a power which authorised 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." 63In Ross v Costigan (1982) 59 FLR 184; (1982) 41 ALR 319 at 334-5, Ellicott J said: "In determining what is relevant to a Royal Commission inquiry, regard must be had to its investigatory character. Where broad terms of reference are given to it, as in this case, the Commission is not determining issues between parties but conducting a thorough investigation into the subject matter. It may have to follow leads. It is not bound by the rules of evidence. There is no set order in which the evidence must be adduced before it. The links in a chain of evidence will usually be dealt with separately. Expecting to prove all the links in a suspected chain of events, the Commission or counsel assisting, may nevertheless fail to do so. But if the Commission bona fide seeks to establish a relevant connection between certain facts and the subject matter of the inquiry, it should not be regarded as outside its terms of reference in doing so. This flows from the very nature of the inquiry being undertaken. ...This does not mean, of course, that a Commission can go off on a frolic of its own. However, I think a court if it has power to do so, should be very slow to restrain a Commission from pursuing a particular line of questioning and should not do so unless it is satisfied, in effect, that the Commission is going off on a frolic of its own." 64In Independent Commission Against Corruption v Cornwall at 241-242, Abadee J discussed the concept of relevance in the context of an investigation by the Commission: "In determining what is relevant, regard must also be had to the investigatory character of the ICAC. The Act gives the Commissioner extensive powers to investigate. The ICAC is an investigative body and not a judicial body. Where broad terms of reference are given to the Commissioner, the Commissioner conducts a thorough investigation as the circumstances demand. ... It is important to understand that in his investigation, the Commissioner may have to follow leads ...If the ICAC bona fide seeks to establish a relevant connection between certain acts and the subject matter of the inquiry, it should not be regarded as outside its terms of reference. ... Relevance is to be judged in relation to the function of the Commissioner, who in the instant case is acting in a purely inquisitorial capacity. In some respects the inquiry is a fishing inquiry, and of a very general kind, operating within a framework of very wide terms of reference. The evidence which the Commissioner will consider for the purpose of his discreet investigation must therefore be very much a matter of discretion. To demonstrate that a question is irrelevant or outside a relevant area of investigation will not be an easy task ..." 65These cases show that, even in circumstances in which the power in question is more limited than the broad power given by s 35(1) of the Act, the courts have been astute to avoid the error of imposing limitations by implication from adversarial proceedings upon an investigative context. These authorities cannot accommodate the plaintiff's contentions. 66The plaintiff has contended that a summons issued under s 35 of the Act has to be confined by reference to the nature of the allegation or complaint being investigated. This is said to be so as to ensure the existence of a sufficient connection between the documents sought and the Commission's statutory functions. The plaintiff argues that it will otherwise be inevitable that the summons will or may encompass material that is "extraneous to an existing allegation or investigation". The plaintiff has asserted that such a result would be beyond the scope of the power conferred by s 35 of the Act. 67Such an argument was rejected by the Full Federal Court in MF1 v National Crime Authority (1991) 105 ALR 1; (1991) 33 FCR 449. That case concerned summonses that called for the production of "[a]ll minutes of meetings of the board of directors of [a company], including attachments, annexures and documents recorded in the said minutes as being tabled, discussed or approved between 1 January 1986 and 1 January 1989". The objection to the summons was described in the judgment as the "no doubt credible suggestion that substantial parts of some or all of the minutes of which production was required will be devoid of reference to the matters which are the subject of investigation." 68Jenkinson J held that that submission was "beside the point" and went on to say the following: "It follows in my opinion from the nature of a power to compel disclosure of information, by evidence and the protection 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 ... 'It is of 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 will close off other sources of inquiry.' See National Companies and Securities Commission v News Corp Ltd (1984) 156 CLR 296 at 323-324, per Mason, Wilson and Dawson JJ. The investigator's acquiescence in, or objection to, an assertion by the suspect, or by the suspect's agent, that a topic or part of a document was irrelevant to the investigation would not infrequently afford the suspect a means of determining, by inference, how the inquiry is going." Consideration of ground 1 69In my opinion there is no warrant for confining the power given to the Commission by s 35 in the way contended for by the plaintiff. The Act confers a broad power to issue summonses. The authorities do not support the argument that the power should be confined. 70The plaintiff's arguments, and to an extent the language in which they are cast, appear to me to be based upon "idiosyncratic notions of fairness and justice" (to adopt from a different context the remarks of Deane J in Muschinski v Dodds [1985] HCA 78; (1985) 160 CLR 583 at 615), without isolating or establishing the existence of a legally relevant objection to the summons or a justiciable basis for confining its reach. To start with, the powers conferred by s 35 are unconstrained by competing provisions within the Act itself. They are not limited, restricted or qualified in any way that informs the plaintiff's concerns by express or implied provisos or conditions. That is an unsurprising fact having regard to the Commission's principal functions. Indeed, the relevant provisions of the Act ameliorate the consequences of a failure by the Commission strictly to conform to the section concerning compulsory examinations rather than the reverse: see for example s 30(4) and s 31(7). These arguments have otherwise been fully articulated in several of the authorities to which I have already referred. 71The plaintiff has in these circumstances been forced to resort to arguments based upon the anticipated use of the documents being sought or the demonstration of the propriety of the purpose for which they will or might be used. This in turn has generated references in the plaintiff's submissions to bona fides, frolics, fishing, the pursuit of inquiries to a dead end and like matters. These and similar arguments are based upon the unestablished assumption that the apparently unlimited power of the Commission 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. However, the Commission is not engaged in litigation with the recipient of a summons to produce. The rights of the recipient do not fall to be considered or assessed by reference to the relationship between production of the documents on the one hand and the outcome of the Commission's investigative task on the other hand. The analogies upon which the plaintiff relies are inappropriate. 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. 72The plaintiff's concerns are only significant if it can demonstrate that the Commission's summons has been issued for some ulterior or inappropriate purpose unconnected or unassociated with a current or anticipated investigation being undertaken by the Commission in the exercise or performance of its statutory functions. It is wholly beside the point that the summons might attract, or command, the production of documents that the Commission ultimately decided or determined were of no assistance to it in the investigation or were otherwise irrelevant. Such questions are for the Commission to consider once the documents have been produced and considered as part of the investigation. They are not questions that attract attention, far less intervention, in the context of a judicial review of the Commission's administrative decision making powers or functions. 73I note in passing that the plaintiff also argued that it was incumbent upon the Commission to establish the relevance of the documents sought having regard to the particular investigation in the course of which, and for the purposes of which, the summons was issued, and that the Commission ought to be required to justify the width of the summons in such circumstances. The plaintiff submitted that it was "inconceivable" that each and every email that might fall within the categories referred to in the summons in this case would be relevant to any existing investigation or complaint. The plaintiff sought in this context somehow to argue that an adverse inference ought to be drawn against the Commission, that the documents sought might not all be referrable to an investigation or complaint, or even that there was none, because the party best placed to inform the Court of the details of the setting for the issue of the summons has declined to produce any evidence about it. 74The simple answer to that contention is that the Commission does not have to do so until the plaintiff appears before it to produce the documents, and even then remains protected by s 30(4) from the consequences of failing to inform someone such as the plaintiff at or before the commencement of the compulsory examination of the nature of the allegation or complaint being investigated. As I have already observed, the Commission is not engaged in an adversarial contest with the plaintiff, but in any event is not required either in absolute or evidentiary terms to justify the issue of the summons in the first place or the width of the categories of documents sought in the second place. Cases such as Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298 and Vetter v Lake Macquarie City Council [2001] HCA 12; (2001) 202 CLR 439 do not therefore have any present application. Even if they did, the extent of any adverse inference upon which the plaintiff seeks hypothetically to rely would not, according to these authorities as ordinarily understood and applied, extend to establishing the positive proposition that the summons had been issued for an improper purpose or beyond power, not having been issued for an investigation or in response to a complaint. The failure to call evidence by the "party" best placed to do so is entirely irrelevant when the so-called party is an investigative body subject to no evidentiary or other onus and with no obligation to prove or to disprove anything at all. 75I do not consider that the plaintiff has demonstrated that the summons was issued by the Commission beyond power or without authority. 2. In issuing the summons, the Assistant Commissioner failed to take into account relevant considerations, including the scope, the subject matter and the purposes of the Act and the nature of the allegation or complaint that is the subject of a compulsory examination 76The plaintiff next argued that the Assistant Commissioner failed to take into account relevant considerations in issuing the summons, namely the scope, subject matter and purposes of Act and the related consideration of the allegation or complaint the subject of the applicable compulsory examination. The plaintiff asserted that it was beyond dispute that a decision-maker must have regard to these matters in exercising a statutory discretion given the important role they both play in informing the content of the statutory discretion: Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24 at 40. 77According to the plaintiff, the terms of the summons make it clear that the Assistant Commissioner failed to have regard to these considerations. No attempt whatsoever has been made to confine its terms so as to avoid requiring production of documents extraneous to the allegation or complaint the subject of the compulsory examination. That omission is "sufficient evidence", in the absence of evidence to the contrary from the Commission, that the Assistant Commissioner failed to have regard to the relevant considerations identified above because, if she had done so, the terms of the summons could reasonably be expected to be substantially more confined in nature. 78The Commission's response to this ground is considered below. 3. The decision by the Assistant Commissioner to issue the summons was a decision which no decision maker, acting reasonably, could have taken. 4. The decision by the Assistant Commissioner to issue the summons was illogical, irrational and not based on findings or inferences of fact supported by some probative material or logical grounds. 79These grounds also focus on the width of the summons and the complete absence of any attempt to limit its scope by date range, subject-matter or like criteria, or otherwise by reference to the nature of the allegation or complaint the subject of the compulsory examination. The plaintiff stressed that very discretion "has to be exercised" according to the "rules of reason and justice, not according to private opinion, according to law, and not humour, and within those limits within which an honest man, competent to discharge the duties of his office, ought to confine himself": Minister for Immigration v Li at [24] and [65], quoting R v Anderson; Ex parte Ipec-Air Pty Ltd [1965] HCA 27; (1965) 113 CLR 177 at 189. 80Decisions of officials "must be reached by reasoning which is intelligible and reasonable and directed towards and related intelligibly to the purposes of the power": Li at [25]. 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 be exercised reasonably: Li at [63]. This approach does not deny that there is an area within which a decision-maker has a genuinely free discretion. However, that area "resides within the bounds of legal reasonableness": Li at [66]. Since Li, it is now clear that a decision may be set aside as unreasonable even if the decision is not so unreasonable that no reasonable person in the position of the decision-maker could have arrived at it (i.e. Wednesbury unreasonableness). As was made clear in Li at [68]: "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." 81A requirement of reasonableness bears similarities to the related requirement of rationality: Li at [30]. In Li at [30], French CJ gave a relevant example of a decision that is both unreasonable and irrational: "[A] disproportionate exercise of an administrative discretion, taking a sledgehammer to crack a nut, may be characterised as irrational and also as unreasonable simply on the basis that it exceeds what, on any view, is necessary for the purposes it serves." 82In that sense, a disproportionate application of a statutory power is one path by which a conclusion of unreasonableness may be reached: Li at [74]. Unreasonableness will also arise where a decision lacks an evident and intelligible justification: Li at [76]. This conclusion may be reached where, in the absence of reasons, the facts and matters falling for consideration in the exercise of the statutory power could not reasonably justify the result reached by the decision-maker. 83The plaintiff submitted that these principles are engaged in the present case. The summons is an example of a disproportionate exercise of an administrative discretion by seeking each and every email sent or received by [redacted] at any time and irrespective of its subject matter. The summons exceeds what, on any view, could be necessary for the purpose which s 35(1) serves. More fundamentally, the failure of the summons to tailor its terms to an allegation or complaint the subject of a compulsory examination provides the Court with no basis for satisfying itself that the reasoning process which led to that result was reasonable and related intelligibly to the purposes of s 35(1). In this way, the discretion conferred on the Commission by s 35(1) miscarried in the present case. 84The Commissions response to these grounds was that there is nothing in the terms, scope, subject matter or purpose of the Act that requires summonses issued under s 35 to be confined in terms or otherwise by reference to the nature of the allegation or complaint being investigated. On the contrary, a summons is sufficiently supported by s 35 if it is issued in good faith for the purposes of an investigation. 85The Commission accepted that the s 35 power to issue summonses does not extend to a decision to issue a summons that is unreasonable in the Wednesbury sense (ground 3) or in the sense recently discussed and developed by the High Court in Minister for Immigration v Li (ground 4). The section would also not support a summons that was issued for an improper or collateral purpose (ground 2). However, there is nothing in the material before the Court to support a conclusion that the decision to issue the summons was infected by Wednesbury or Li unreasonableness or irrationality or that it was issued otherwise than for the purposes of an investigation under the Act. Consideration of grounds 2, 3 and 4 86It seems to me that all of the plaintiff's administrative law attacks upon the Commission's summons are based upon tautological reasoning that insists that the outcome contended for is the result of the nominated cause. The plaintiff's submissions appear to me to proceed upon the somewhat indignant assumption that the Commission's summons was issued as the result of some unreasonable decision or a decision that was wildly beyond power. The plaintiff has argued in differing but related contexts that the significant power given by the Act to the Commission to issue the summons, coupled with the breadth of the summons in fact, bespeaks at least an improper or collateral purpose. This argument suggests that the width of the summons, and the absence of any attempt to limit its scope [sic], leads to the necessary conclusion that the decision to issue the summons could not have been made according to law or within the limits to be imposed upon the competent discharge of the decision maker's official duties. 87The only detectable basis upon which the plaintiff is able to assert that the Commission's decision to issue the particular summons went beyond the bounds of legal reasonableness is that the plaintiff objects to complying with it. This is in my view little more than an arbitrary dogmatic statement that the plaintiff expects will be accepted as valid. There may of course be reasonable examples to be found in administrative law where the extravagance of an action betrays the reason for it. A disproportionate exercise of administrative discretion may occasionally, perhaps often, speak for itself. The only way in which the plaintiff propounds that analysis in this case is to contend that the summons exceeds what on any view could be necessary for the purpose that s 35(1) serves, and that the Commission's failure or refusal so far to identify an allegation or complaint that is being examined by the Commission bears witness to that fact. 88I accept the Commission's contention that there is nothing in the material before me to support a conclusion that the decision to issue the summons was infected by Wednesbury or Li unreasonableness or irrationality or that it was issued otherwise than for the purposes of an investigation under the Act. 5. In issuing the summons, the Assistant Commissioner failed to have regard to a relevant consideration, being the potential or likely impact upon the constitutional freedom of communication on governmental and political matters. 6. Alternatively, ss 35(1) and (2) are invalid, with the result that the summons was not authorised by law. 89The plaintiff contended that the implied freedom of political communication on governmental and political matters provided a further independent ground for setting aside the summons. The implied freedom was said to arise for consideration in several different ways. 90First, the plaintiff submitted that the implied freedom confines the power in s 35(1) by confining the scope of the discretion that it confers. This is no more than an application of orthodox principle. In Miller v TCN Channel Nine Pty Ltd [1986] HCA 60; (1986) 161 CLR 556 at 613-4, Brennan J held that a statutory discretion must be exercised by the repository of a power "in accordance with any applicable law". According to his Honour, the "applicable law" included relevant provisions of the Commonwealth Constitution (in that case, the freedom of interstate trade and commerce conferred by s 92). In Wotton, the plurality endorsed his Honour's approach and held that it applied equally to the implied freedom of political communication recognised in Lange v Australian Broadcasting Corporation [1997] HCA 25; (1997) 189 CLR 520. According to their Honours, "discretionary powers must be exercised in accordance with any applicable law, including the Constitution itself": Wotton at [9]. The plurality further noted at [21]: "[21] As remarked earlier in these reasons, with particular reference to what was said by Brennan J in Miller, while the exercise of a legislative power may involve the conferral of authority upon an administrative body ... the conferral by statute of a power or discretion upon such a body will be constrained by the constitutional restrictions upon the legislative power, with the result that in this particular respect the administrative body must not act ultra vires." 91To the same effect is the observation of the plurality in Wainohu v New South Wales [2011] HCA 24; (2011) 243 CLR 181 at [113] that a statutory power "should be construed conformably with the implied freedom so as to render reviewable for error any particular order which exceeded the limit of the implied freedom". As a practical matter, these observations require a decision-maker to ensure that his or her decision does not impact upon the implied freedom to an extent more than is reasonably required to achieve the objects of the applicable legislation. 92The plaintiff argued that these principles had application in the present case. In The Age Company Ltd v Liu [2013] NSWCA 26; (2013) 82 NSWLR 268, the Court of Appeal considered whether UCPR 5.2 effectively burdened the freedom of communication about government or political matters and thereby satisfied the first question posed in Lange. UCPR 5.2 authorised the court to require a person to attend for examination or produce documents that concerned the identity or whereabouts of a prospective defendant. Although the rule was expressed in general terms and applied to any prospective defendant, the Court of Appeal held that the rule burdened the freedom of political communication because it was capable of being exercised in a way that required a journalist to disclose the identity of his or her sources: at [95]. Analogous reasoning applies in the present case given that s 35(1) may be exercised to require the production of documents evidencing communications between journalists and their sources. 93[Redacted] 94The question therefore becomes whether the summons, as the embodiment of a purported exercise of discretion under s 35(1), has an impact upon the implied freedom to an extent more than is reasonably required to achieve the objects of that Act. The scope of the summons will inevitably extend to documents and things that, on any view, can have no relevance to an allegation or complaint the subject of a compulsory examination under the Act. 95The plaintiff emphasised that the uncontradicted evidence is that the ability of journalists and political commentators to cover political issues and events effectively depends to a great extent on obtaining reliable and credible information from contacts at all levels of government, including the bureaucracy, ministers, staffers, press officers and lobbyists. The free flow of such information in turn depends largely on a relationship of trust and, where appropriate, confidentiality, between the source and recipient. It cannot be consistent with the implied freedom for the Commission to be entitled to require production by journalists of communications on any topic and with any person, irrespective of the relevance of the communications to an ongoing investigation of an allegation or complaint. To suggest that the Commission is entitled to review, at its leisure, email after email in which [redacted] engages in activities that underpin his work as a [redacted] is, according to the plaintiff, "absurd". 96The objects of the Act include the desire to investigate serious allegations of corrupt conduct. However, there is no basis in the Act, or in relevant extrinsic materials, for concluding that its objects would be furthered by the production to the Commission of documents created or received by a journalist that have no relevance to an existing allegation or complaint. There is, according to the plaintiff, no explicable basis on which the summons can stand in the face of the implied freedom in these circumstances. 97Secondly, the plaintiff submitted that the implied freedom was a mandatory relevant consideration. Dicta in the authorities suggest that, in addition to operating as a constraint on discretionary powers, the implied freedom of political communication is a relevant mandatory consideration in the exercise of those powers: Wotton at [88]. The plaintiff contended that this is a distinction without difference, but in any event the complete failure to confine the scope of the summons to documents and things relevant to an allegation or complaint the subject of a compulsory examination is evidence of a failure to consider the impact of the summons on the implied freedom and the extent to which that impact was reasonably appropriate to the objects of the Act. No one who had taken any account of the constitutional imperative could possibly have issued a summons for production in terms so broad and indiscriminate. 98The plaintiff's principal contention on constitutional law grounds is that s 35(1) must be read down so as not to infringe the implied freedom of communication on government and political matters and, so read down, did not authorise the issue of the summons. The plaintiff conceded that the constitutional validity of s 35(1) need only be considered if I concluded, contrary to its submissions, that the provision cannot be construed in a manner consistent with the existence of the implied freedom. However, the Commission accepted that s 35(1) should be construed conformably with the Constitution including, if necessary, so as to not infringe the implied freedom: Wainohu at [113]. That concession makes it unnecessary for me to consider ground 6 of the plaintiff's summons asserting that s 35(1) is invalid if it cannot be read conformably with the implied freedom. 99Nonetheless, the Commission contended that s 35(1) of the Act does not infringe the implied freedom and therefore need not be read down or otherwise confined in its operation in the manner suggested by the plaintiff. The Commission adopted the written submissions filed on behalf of the Attorney General for New South Wales on 6 August 2014. For the reasons set out in those submissions, s 35(1) of the Act: (1) Does not "effectively burden" the implied freedom of communications on government and political matters; and (2) Is in any event reasonably appropriate and adapted to achieving a legitimate object or end which is compatible with the maintenance of the constitutional prescribed system of representative and responsible government - that is, the investigation, exposure and prevention of corruption involving or affecting public authorities and public officials. 100The Commission also submitted that I should reject the plaintiff's proposition concerning the implied freedom as a mandatory relevant consideration. The plaintiff faintly submitted that the implied freedom operates as a mandatory relevant consideration in addition to operating as a constraint on legislative power. However, the Commission asserted that the authorities cited by the plaintiff do not support a broad proposition to the effect that the implied freedom amounts to some kind of deemed or presumed mandatory relevant consideration in the exercise of all discretionary statutory powers in Australia. Rather, the correct view is that the implied freedom acts principally as a limitation on legislative power: Miller at 613-614; Wotton at [10]. 101In this way, an administrative decision that infringes the implied freedom will be invalid (as not authorised by the empowering law) even if the decision maker considered the implied freedom and (wrongly) thought that a particular exercise of power would not offend that implied freedom. Conversely, an administrative decision which does not offend the implied freedom will, all other things being equal, be valid even if the decision- maker did not specifically consider the constitutional law relating to the implied freedom of communication with respect to political and governmental matters when making his or her decision. 102It is therefore unnecessary to inquire into whether the decision maker thought about the implied freedom, and there is no evidence before me upon which to determine that question in any event. Validity turns on whether the implied freedom is in fact infringed on the facts of the particular case. The Commission submitted that the summons is not affected by the implied freedom of communication on government and political matters. The Attorney General's submission on the constitutional validity of s 35 103The Attorney General is not a party to these proceedings, but has intervened pursuant to s 78A of the Judiciary Act. His submissions were accordingly limited to the constitutional questions raised by the plaintiff. The Attorney General's submissions on those issues were as follows. 104The plaintiff contends that the application of s 35 of the Act is affected by the implied freedom of communication on government and political matters under the Constitution with the result that the summons issued by the Commission was invalid. 105In summary, the Attorney General submitted that: (1) While it accepts that a power such as s 35 must be exercised in accordance with any applicable law, including the Constitution, s 35 does not "effectively burden" the implied freedom. (2) In any event, to the extent, if at all, that s 35 imposed an effective burden on the implied freedom, any decision made under that provision would not contravene the implied freedom because s 35 is a law which is reasonably appropriate and adapted (and, if it be the test, proportional) to the end of investigating, exposing and preventing corruption involving or affecting public authorities and public officials. (3) It follows that s 35 is consistent with the implied freedom. First limb of Lange 106The first question is whether the impugned law "effectively burdens" freedom of communication about government or political matters either in its terms, operation or effect: Unions NSW v New South Wales [2013] HCA 58; (2013) 88 ALJR 227 at [35]; Lange v Australian Broadcasting Corporation at 567; Monis v The Queen [2013] HCA 4; (2013) 87 ALJR 340 at [343]. 107The Attorney General submitted that s 35 does not effectively burden the freedom for two key reasons, noting that in Unions NSW, the plurality at [36] said: "[36] A legislative prohibition or restriction on the freedom is not to be understood as affecting a person's right or freedom to engage in political communication, but as affecting communication on those subjects more generally. The freedom is to be understood as addressed to legislative power, not rights, and as effecting a restriction on that power. Thus the question is not whether a person is limited in the way that he or she can express himself or herself, although identification of that limiting effect may be necessary to an understanding of the operation of a statutory provision upon the freedom more generally. The central question is: how does the impugned law affect the freedom?" 108First, the Attorney General submitted that s 35 "is not directed at political communication..." and, to apply the distinction drawn in Monis at [343], the law has no "real effect upon the content of political communication"; at best, it is "so slight as to be inconsequential." 109Secondly, identifying possible limiting effects for the permissible purpose mentioned in the extract from Unions NSW above, i.e. as "necessary to an understanding of the operation" of s 35, it is equally difficult to discern an effective burden in its operation. Even in the course of producing information in response to a summons issued under s 35, it is most unlikely that the source of information will become publicly known. Information produced in response to a summons issued under s 35 is produced to the Commission only. Section 111 of the Act then imposes a strict secrecy regime restricting the use and disclosure of that material. This case is accordingly quite unlike Age Co Limited v Liu where the outcome of a preliminary discovery application granted under UCPR 5.2 was to require disclosure of the identity of sources of information. 110By contrast here, the identity of confidential sources of information in documents disclosed to the Commission under a s 35 summons would only become publicly known if: (1) a document produced contained information identifying a confidential source of information; (2) a public inquiry is held in relation to the investigation (s 31); (3) the Commission determined that the document produced is relevant to an investigation; and (4) the Commission refused to direct that the contents of the document identifying the confidential source of information not be published (see s 111 and 112(1)(b) Act). 111Section 112 does not in its terms limit the power or discretion of the Commission in respect of the disclosure of sources where the information in question relates to government or political communications: Age Company Limited v Liu at [90]; Wotton at [10], [21]-[22]. 112To the contrary, in exercising the discretion under s 112(1)(b) to direct that the contents of a document produced to the Commission shall not be published, the Commission must be satisfied that it is "necessary or desirable in the public interest": s 112(1A). The concept of "public interest" in this context would include the public interest in maintaining the confidentiality of journalist sources, such interest being of particular weight where the communications are about government or political matters: see generally Age Company Limited v Liu at [82], [89] and [99]. 113A provision such as s 35 that only provides for a power to issue a summons with very limited disclosure to the Commission under a comprehensive secrecy regime has no real effect upon the content of political communication. At best, it is so slight as to be inconsequential. For these reasons, the Attorney General submitted that s 35 does not effectively burden the implied freedom. Second limb of Lange 114The first enquiry which arises on the second limb of the Lange test concerns the object or end of the law, or the identification of a legitimate statutory purpose for the provision in question: Unions NSW at [44] and [46]; Lange at 567; Coleman v Power [2004] HCA 39; (2004) 220 CLR 1 at [93], [95]-[96], [196] and [211]. It is not possible to consider whether the prohibitions effected by the impugned provision are a proportionate response until the object that it seeks to achieve is identified: Unions NSW at [46]. 115The Act established the Commission as an independent agency with powers similar to a standing royal commission. The legitimate end, for the second Lange question, is sufficiently identified by the statutory objects and functions set out in ss 2A and 13 of the Act: see generally Wotton at [31]. Relevantly, the legitimate object or end of s 35 is to facilitate the investigation, exposure and prevention of corruption involving or affecting public authorities and public officials (including members of the NSW Parliament) where such investigations are one of the Commission's principal functions. 116It cannot be said that s 35 does nothing calculated to promote the achievement of that legitimate purpose: cf. Unions NSW at [51] and [60]. To the contrary, the Commission's information-gathering powers, including those in s 35, are essential to its effectiveness in investigating allegations of corruption. As Premier Greiner stated in the Second Reading Speech of the Bill (Hansard, Legislative Assembly, 26 May 1988): "... corruption is by its nature secretive and difficult to elicit. It is a crime of the powerful. It is consensual crime, with no obvious victim willing to complain. If the Commission is to be effective, it obviously needs to be able to use the coercive powers of a Royal commission. ... The bottom line is simply this: the people of this State are fed up with half-hearted and cosmetic approaches to preventing public sector corruption. This legislation will establish an institution that has strong and effective powers and has jurisdiction to look at the entire public sector. That is what the people expect. It is our responsibility to ensure that that expectation is met and not disappointed." (Emphasis added) 117Where a statutory provision effectively burdens the freedom, the second limb of the Lange test asks whether the provision is reasonably appropriate and adapted, or proportionate, to serve a legitimate end in a manner that is compatible with the maintenance of the prescribed system of representative government: Unions NSW at [44]; Lange at 567; Coleman at [93], [95]-[96], [196] and [211]. It is apparent that the object or end that s 35 serves is legitimate, and that the end itself is not only compatible with the maintenance of constitutionally prescribed representative government but in fact enhances it: see generally Attorney-General (SA) v Corporation of the City of Adelaide [2013] HCA 3; (2013) 249 CLR 1 at [136], [221] and [224]); Monis at [125]. 118In dealing with the second limb, the Attorney General submitted as a general observation that the following matters must be borne in mind: (1) The enquiry whether a statutory provision is appropriate or proportionate in the means it employs to achieve its object may involve consideration of whether there are alternative, reasonably practicable and less restrictive means of doing so: Unions NSW at [44]; Monis at [347]-[348]. That has an important qualification, namely as said in Monis at [347]: "Given the proper role of the courts in assessing legislation for validity, such a conclusion would only be reached where the alternative means were obvious and compelling...". (2) That qualification in relation to the proper role of the courts is fundamentally important in this field of legal discourse: alternatives can always be imagined, but courts are at a disadvantage compared to the other branches of government in appreciating the feasibility and consequences of alternative laws in the present, difficult field of what powers are necessary to investigate effectively political and public sector corruption. Any suggested alternative means would have to be particularly obvious and compelling in the context of a law that is not directed to the discussion of government or political matters and might be thought rarely to impinge upon that discussion. (3) The implied freedom of communication on government and political matters is not an absolute freedom: Lange at 561; Mulholland v Australian Electoral Commission [2004] HCA 41; (2004) 220 CLR 181 at [40]. Even in circumstances where a law directly prohibits or restricts political communication, and thus invites close scrutiny, the phrase "reasonably appropriate and adapted" does not mean "unavoidable" or "essential": Mulholland at [39]-[40]; Roach v Electoral Commissioner [2007] HCA 43; (2007) 233 CLR 162 at [85]; Rowe v Electoral Commissioner [2010] HCA 46; (2010) 243 CLR 1 at [161]. As Bathurst CJ observed in Age Co Limited v Liu at [96(b)] by reference to Gleeson CJ in Mulholland, there are many laws, of which the defamation law considered in Lange is an example, that affect government or political communications but that are nonetheless valid. (4) There is an important distinction between laws that have the purpose of restricting discussion of government or political matters, and those that merely affect it incidentally. A burden upon communication is more readily seen to satisfy the second limb of Lange if the law incidentally restricts political communication, rather than where it regulates communications which are inherently political or a necessary ingredient of political communication: see generally Adelaide at [217] and [224]); Monis at [64] and [342]; Wotton at [30]; Hogan v Hinch [2011] HCA 4; (2011) 243 CLR 506 at [95]. 119Taking these matters into account, s 35 of the Act is reasonably appropriate and adapted to serving the legitimate end in a manner that is compatible with the constitutionally prescribed system of government. 120First, s 35 plainly cannot be characterised as being directed to restricting discussion of government or political matters. The provision does not have "as [its] direct operation, the denial of the exercise of the constitutional freedom in a significant respect": Levy v Victoria [1997] HCA 31; (1997) 189 CLR 579 at 614. Its effect on such communications is, at most, incidental: see Monis at [93], [124]-[125] and [343]; see also Adelaide at [67], [131] and [133]. Whilst it is not definitive, the incidental nature of the burden imposed by s 35 is more readily seen to be reasonably appropriate and adapted to the end it is to serve, in accordance with the second Lange criterion: Wotton at [30]. 121Secondly, the power to issue a summons under s 35 is only enlivened once the Commission has determined that it is in the "public interest" to either conduct a compulsory examination or a public inquiry: see ss 30(1), 31(1). Further, because of the secrecy provisions in s 111 and s 112 of the Act, it is most unlikely that a confidential source of information in relation to political matters would be disclosed to the public. 122Thirdly, of particular significance here is the fact that the legitimate end that s 35 is designed to achieve - facilitating the investigation of allegations or complaints of corrupt conduct by public authorities and public officials (including members of the NSW Parliament) - is in fact in itself an end designed to promote the system of representative government. As Premier Greiner stated in the Second Reading Speech of the Bill: "Nothing is more destructive of democracy than a situation where people lack confidence in those administrators and institutions that stand in a position of public trust. If a liberal and democratic society is to flourish we need to ensure that the credibility of public institutions is restored and safeguarded, and that community confidence in the integrity of public administration is preserved and justified." 123Fourthly, while the Act confers significant powers and discretions on the Commission, there is a comprehensive accountability framework in place to ensure the Commission's powers are not abused. For example: (1) Part 5A of the Act provides for the appointment of an Inspector and confers powers allowing him or her to audit the operations of the Commission for the purpose of monitoring compliance with the law and to deal with complaints of abuse of power, impropriety and other forms of misconduct on the part of the Commission or its officers: see s 57B and 57C. (2) Part 7 of the Act provides for the appointment of a joint committee of members of Parliament known as the Committee on the Independent Commission Against Corruption. The Committee has special powers to monitor and review the exercise of functions by the Commission and the Inspector and to report to Parliament: see s 64(1)(a)-(b) and s 69. (3) The decision of the Commission to issue a summons under s 35 is judicially reviewable by the Supreme Court: see Wotton at [31]-[32]. 124Finally, it is apparent that the choice of Parliament to confer broad coercive powers on the Commission was a deliberate one given the particular nature of the Commission's functions and objects. In the Second Reading Speech, Premier Greiner accepted that the "formidable" coercive powers of a Royal commission that were to be conferred on the Commission could be said to affect civil liberties but made it plain that those coercive powers were necessary because, inter alia, "corruption is by its nature secretive and difficult to elicit [and] ... if the Commission is to be effective, it obviously needs to be able to use the coercive powers of a Royal commission". 125The Attorney General submitted that it is not for a court to second-guess a policy decision of the Parliament that particular coercive powers - combined with a secrecy regime to protect the information disclosed under those powers - are reasonably appropriate and adapted, or proportionate, to serve the legitimate end of "effectively" investigating allegations of corruption. 126In this respect, the analysis of any alternatives must be means by which the objectives of the legislation could be achieved: see Monis at [280], [282], [347]; see also at [145]-[146]; see Unions NSW at [34], [45]-[46]. The plaintiff has not suggested that any alternative means are "reasonably practicable" (Unions NSW at [44]) let alone "obvious and compelling" as a means of achieving the legislative objective of s 35: Monis at [347]. 127The effect of the plaintiff's submission appears to be that, to bring s 35 within the constitutional limits, the power must be construed as not extending to compelling production of information that would disclose the identity of sources who have provided information about a political or governmental matter. However, to accept that submission would be to curtail the powers of the Commission to such an extent that the legislative objective would not be achieved. This is because a key function of the Commission is to investigate and expose corruption involving public officials (including NSW parliamentarians) and accordingly, it is likely that summonses issued under s 35 may capture information said to be about a political or governmental matter. 128In any event, there is no support in the authorities for such an extreme position. The constitutional freedom does not amount to a trump card that prevails over all competing interests. To put the matter in the terms of the second limb, it does not follow from Lange that where there is a contest between the Commission's powers to investigate an allegation of corruption and the freedom of another person to communicate confidentially about political matters, a law is not appropriate and adapted to serving legitimate ends unless it ensures that the latter interest prevails over the former. 129It is not the case that there is only one "appropriate and adapted" manner of pursuing legitimate ends. Within the constitutional limits there may be more than one way of resolving the contest between competing interests, each of which is consistent with the maintenance of the constitutionally prescribed system of representative and responsible government. Consideration of the constitutional validity of s 35 130In my opinion, to the extent, if at all, that s 35 imposes an effective burden on the implied freedom, it is a law that is reasonably appropriate and adapted, and also proportional, to the end of investigating, exposing and preventing corruption involving or affecting public authorities and public officials. 131The plaintiff has once again asserted that there is no explicable basis upon which the summons can stand in the face of the implied freedom. The plaintiff contends that this is because there is nothing in the Act or in what are described as "relevant extrinsic materials" for concluding that the objects of the Act would be furthered by the production of documents created or received by a journalist having no relevance to an existing complaint. It will be apparent to even those most sympathetic to the plaintiff's position that this argument is underpinned by unproven assumptions. I have discussed this forensic technique earlier in these reasons. It is unnecessary to do so again. There is no material that empirically or theoretically establishes the absence of a connection between [redacted] email history and an existing allegation or complaint. 132Section 35 is clearly not directed at political communication. The effect upon it that might result from the prospect of being identified or exposed as a journalist's source has no direct effect upon the content of political communication. Its effect in my opinion is not even "so slight as to be inconsequential", as it is at best directed at the method of communication rather than the subject matter. The fact that a person's identity may 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 in the first place, rather than the Commission's alleged constitutionally invalid issue of a summons to produce it. In either case, s 35 does not operate as an effective burden on the implied freedom of communication on government and political matters. The Act in any event contains secrecy and publication provisions to which the Attorney General's submissions have adequately referred. 133However, the legitimate statutory purpose for s 35 is to my mind beyond question. Section 35 is calculated to promote or assist that legitimate statutory purpose. It cannot in my view be contested, and the plaintiff has not persuasively sought to argue otherwise, that the Commission's information gathering powers are essential to its effectiveness. The implied freedom is not an absolute freedom and must necessarily take its place relative to all other competing considerations. 134The very type of activities in which the Commission is concerned also informs the inquiry as to where the balance should lie. It would be a curious result if s 35 could not be exercised in a way that extended to compelling the production of information that would or might disclose the identity of sources who have provided information about a political or governmental matter. Such a result would fundamentally curtail the Commission's powers if it were necessary in order to bring the provision within constitutionally acceptable or legitimate limits. It would also potentially and inappropriately constrain the investigation and exposure of corruption involving public officials, including political and government officials. 135I accept that within constitutional limits there is more than one way of resolving the contest between competing interests. In the particular circumstances of this case, s 35 is not in my opinion inconsistent with the maintenance of a constitutionally prescribed system of representative and responsible government. 7. Procedural fairness 136In its dealings with examinees and persons the subject of its investigations, the Commission is required to comply with the rules of natural justice. The content of those rules varies according to the requirements of each case but they ultimately hinge on the notion of fairness: Glynn v Independent Commission Against Corruption (1990) 20 ALD 214 at 215; Duncan at [36]. The obligation to comply with the rules of natural justice is relevantly buttressed by s 30(3), which requires the Commission to inform an examinee before or during a compulsory examination "of the nature of the allegation or complaint being investigated". No attempt has been made by the Commission to comply with these principles in the present case. 137On 9 July 2014, the Commission required any objection to the summons to be made in writing by 4pm the next day. The Commission did not inform the plaintiff of the nature of the allegation or complaint being investigated prior to the deadline for the objection despite the terms of s 30(3). The vice in that course was expressly pointed to by the plaintiff in its submissions to the Commission which observed that the Commission's conduct "was inconsistent with the legislative scheme and denies the [plaintiff] the procedural fairness that the Commission is required to afford". The Commission subsequently refused to revoke the summons and did so without providing the plaintiff with any information about the nature of the allegation or complaint being investigated. 138The plaintiff submitted that the perceived unfairness inherent in the Commission's position has been repeated in this Court. The Commission has chosen to adduce no evidence as to the nature of the allegation or complaint being investigated, or any explanation of the decision-making process by which the summons was issued. The plaintiff submitted that the course adopted by the Commission constitutes a denial of natural justice. The Commission's conduct is consistent only with a belief on its part that it is entitled to issue a summons for production of any document it so desires, while restricting the ability of the recipient of the summons to determine the extent to which the summons complies with the Act and/or is amenable to judicial review. That was said to be "a paradigm case in which the rules of natural justice are intended to operate so as to preclude such sharp conduct". 139The Commission's response was that any suggestion that s 30(3) of the Act had not been complied with in the present case is misconceived. The compulsory examination referred to in the summons (originally scheduled for 8 July 2014) has not yet commenced. Instead, it has effectively been adjourned pending the resolution of these proceedings. In those circumstances, the time for compliance with s 30(3) of the Act ("before or at the commencement of the compulsory examination") has not yet arisen with the result that that subsection cannot have been breached. In any event, even if there had been a breach of s 30(3), that would not invalidate or otherwise affect the validity of the summons or any compulsory examination because of the terms of s 30(4). Consideration of ground 7 140It is unnecessary to consider this ground beyond observing the effect of s 30(3) of the Act. Time for compliance with the summons has not arrived. Allegations of a denial of natural justice are correspondingly premature. Conclusions 141There is nothing in the material before me or otherwise to support a conclusion that the Commission's decision to issue the summons miscarried, that the permissible scope of a summons issued under s 35 of the Act has been exceeded or that the law pursuant to which the summons was issued was otherwise invalid on constitutional grounds. In those circumstances, the plaintiff's challenge to the Commission's summons should be dismissed Orders 142I make the following orders: (1) Order that the plaintiff's notice to produce dated 31 July 2014 be set aside. (2) Dismiss the plaintiff's summons filed 11 July 2014. (3) Order that the plaintiff pay the costs of the proceedings. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 01 October 2014