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Aug15

Implications derived from Ch III

continued
Public Law, Nicola Franklin

Preventive detention
2

The Kable legislation (NSW)

Authorised the Sup Ct to order the post-sentence detention

of Kable for six months, renewable) if reasonably satisfied

That Kable was more than likely to commit a serious act of

violence
It was appropriate for the protection of the community

Civil proceedings, civil burden of proof and rules of

evidence but could have regard to some material
otherwise inadmissible

High Court held constitutionally invalid

Features of the Kable legislation

Deprivation of liberty not on the basis of a breach of the

law but on the formation of an opinion that the person
may do so
No dispute about rights or duties under law
On the balance of probabilities
On material that may not be admissible
Applying to one person

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McHugh J in Fardon

Members of the public might reasonably have seen

the Kable Act as making the Supreme Court an
instrument of executive government policy to
implement a political decision that the appellant
should be imprisoned without the benefit of the
ordinary processes of law

Fardon v AG (Qld)

Qld Act designed to keep a prisoner detained after

the expiry of his/her sentence for a serious sexual
offence

for an indefinite period, or on release subject to

continuing supervision
if the Court is satisfied that the prisoner is a serious
danger to the community (ie an unacceptable risk that
the prisoner will commit a serious sexual offence if
released)
civil proceedings

Held (Kirby J dissenting) the powers were not

incompatible with the role of a court that exercises
federal jurisdiction

It was not directed at a particular person

Hearings are conducted in public and in accordance with the
ordinary judicial process
The onus of proof is on the AG
The rules of evidence apply
The discretion is structured
There is a right of appeal
There was nothing to suggest that the Court is to act as a mere
instrument of government policy
The outcome is to be determined on its merits

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Although the Kable principle was argued in a

number of subsequent cases, it was not again
successful in the High Court until Nov 2009

IFT Co v NSW Crime Commission

And again in 2010 and 2011

Kirk v IRC [2010] HCA 1

SA v Totani [2010] HCA 39
Wainohu v NSW [2011] HCA 24

Control orders
8

Thomas v Mowbray

An issuing court (Federal Ct, Family Ct or Federal

Magistrates Ct) may make an interim control order eg

a requirement that the person remain at specified

premises between specified times
prohibitions or restrictions on being at specified places,
communicating or associating with specified individuals &c
requirements to wear a tracking device, and to report to
specified persons at specified times and places

Ex parte procedure on the application of the AFP

The Court must be satisfied that (s 104.4 Criminal Code)

Making the order would substantially assist in preventing

a terrorist act, or
The person has provided training to or received training
from a listed terrorist organisation

And that the order is reasonably necessary, and

reasonably appropriate and adapted, for the purpose of
protecting the public from a terrorist act

Balance of probabilities

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10

Interim orders, having been made ex parte, should come as

soon as practicable (at least 72 hours) before the issuing
court in an inter partes proceeding for confirmation,
revocation or other disposition
The AFP must not disclose to the person information that is
likely to prejudice national security

High Court held 5:2

The interim control order scheme does not impermissibly

confer non-judicial power on a federal court, nor is the
power otherwise incompatible with Ch III

11

Majority rejected the following arguments

1. That control orders enable a court to create new
rights and obligations rather than to resolve
disputes about existing one

Held that apprehended violence orders, bail

proceedings, post-sentence detention orders of sex
offenders can equally be seen to create new rights
and obligations which may restrict a persons liberty

12

2. That restricting liberty by imposing a control

order has a penal or punitive character which
can only follow from a judicial determination of
criminal guilt

Majority distinguished control orders from custody

and likened the power to apprehended violence
orders or binding over orders to keep the peace

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13

3. That the criteria for issuing control orders did not

provide justiciable standards for the exercise of
judicial power

Held that the test was not too vague, not least
because of judicial familiarity with concepts of
reasonableness and appropriate and adapted
Courts today are inevitably involved in the
consideration of policy guiding principles
emerge on a case-by-case basis
Kirby and Hayne JJ dissented

14

Per Kirby & Hayne JJ (dissenting)

Public protection is quintessentially for the parliament

and the executive the courts function is not to
establish criteria to achieve public protection, but to
review the lawfulness of steps taken by the executive
and legislature to that end

15

Per Hayne J (dissenting)

For the purpose of protecting the public from a terrorist

act is a criterion that does not call for the judicial
formulation of standards of conduct or behaviour; it
requires a court to consider future consequences the
occurrence of which depends upon work done by police
and intelligence services that is not known and cannot be
known or predicted by the court
The Act offers no legal standard it does not require that
the Court decide or even consider whether the conduct to
be restrained would otherwise be lawful or not

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16

4. That, even if the function is judicial, the procedure for

issuing control orders is incompatible with the exercise
of judicial power
Rejected because the initial ex parte hearing is
followed by a confirmation hearing, generally in open
court, applying the rules of evidence, with the burden
of proof on the applicant, the provision of documents
and an opportunity to respond and cross-examine,
within an impartial court focusing on the particular
circumstances of the individual
Kirby and Hayne JJ dissented

17

Kirby and Hayne JJ dissented

Incompatible features include ex parte determination of

interim orders, minimal notice periods for the confirmation
hearing, the furnishing of incomplete reasons for an
interim control order, the likelihood of evidence being
withheld altogether on national securing grounds
Hayne J was particularly concerned by the nature of
secret intelligence material

The court is left with little practical choice except to act on

the view proffered by the intelligence agency

18

Assistant Commissioner Condon v

Pompano P/L

High Court accepted that determinations of

future risk are not antithetical to judicial power
(see French CJ with whom Gageler J agreed)

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19

Assistant Commissioner Condon v Pompano Pty Ltd

Under Qld Criminal Organisation Act

AC obtained ex parte in a closed hearing a declaration

from the Supreme Court that information was properly
classified as criminal intelligence

AC then applied to the Supreme Court for a declaration

that the Finks Motorcycle Club and Pompano constituted a
criminal organisation
In the substantive application, the Act required criminal
intelligence to be kept secret from the respondents

20

High Court unanimously upheld the constitutional

validity of the procedure

Hayne, Crennan, Kiefel and Bell JJ

The Supreme Court retains its capacity to act fairly

and impartially
The AC must provide to the respondent detailed
particulars (excluding the criminal intelligence)
The Court, in making the criminal intelligence
declaration, must balance unfairness to the
respondent
It is for the court to decide the weight to be given to
the evidence

21

French CJ

The Court retains its decisional independence and control

over the proceedings
The Court retains the responsibility to determine what weight,
if any, to give to criminal intelligence, in particular, hearsay
The Court retains the power to mitigate the extent of the
unfairness to the respondent in the circumstances of the case
The Court would have the power to refuse to act upon
criminal intelligence where to do so would give rise to a
degree of unfairness in the circumstances of the particular
case which would not have been contemplated at the time
that the criminal intelligence declaration was made

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22

Gageler J

Procedural fairness is an immutable characteristic of

every Australian court
It is always unfair for a court to make an order that
determines a persons rights or interests without giving
that person a fair opportunity to respond to relevant
evidence
The procedure was saved from invalidity only
because of the Sup Cts inherent jurisdiction to stay an
application where practical unfairness becomes
manifest

23

SA v Totani

Serious and Organised Crime Control Act (SA)

Sec 10: the AG may make a declaration that an

organisation is involved in serious criminal activity and is
a risk to public safety
Based on activities of members and having no
consequence to the organisation itself
Sec 14

Sec 14:

24

Police Commissioner may apply to the Magistrates

Court for a control order against a member of a
declared organisation
The Court must make a control order if satisfied that
the person is a member
The control order must inter alia prohibit the
defendant from associating with other members of
declared organisations
Breach of a control order is an offence punishable by
five years imprisonment

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25

Note that a control order must be imposed without any

judicial determination, and without the need for any
executive determination, that the defendant has engaged
or may engage in criminal conduct

26

Two plaintiffs were members of a declared

organisation the Finks Motorcycle Club

High Court held (6:1)

s 14 is constitutionally invalid
It authorised the executive to enlist the Magistrates
Court in implementing decisions of the executive in a
manner that was incompatible with the Magistrates
Court's institutional integrity

27

Per French CJ

Sec 14(1) impairs the decisional independence of the

Magistrates Court from the executive in substance and in
appearance in areas going to personal liberty and the
liability to criminal sanctions which lie at the heart of the
judicial function
In the exercise of s 14(1) the court loses one of its essential
characteristics as a court, namely the appearance of
independence and impartiality

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28

Per Hayne J (French CJ agreed)

What s 14(1) does is permit the Executive to enlist the

Magistrates Court to create new norms of behaviour for
those particular members who are identified by the
Executive as meriting application for a control order. They
are to be subjected to special restraint, over and above the
limitations that the Act imposes on the public at large, not
for what they have done or may do, and not for what any
identified person which whom they would associate has
done or may do, but because the Executive has chosen
them. That function is repugnant to the institutional integrity
of the Court

29

Kuczborski v Qld (High Court, 2014)

Challenge to Qlds bikie legislation brought by a member

of the Hells Angels based on Totani
High Court determined only the validity of the offencecreating provisions of the legislation
Central to the offences is the concept of a criminal
organisation
The Hells Angels had been declared as such by regulation
Membership is not itself a criminal offence; it is an
ingredient of offences imposing restrictions on freedom of
movement and association of participants

30

Did this

Enlist judicial power in implementing the policy of the

legislature and executive to outlaw bikie gangs?
Cloak the work of the legislature or executive in the
neutral colours of judicial power?
Usurp judicial power by branding criminal organisations
without judicial process?

Held that it did not (French CJ, Crennan, Kiefel, Bell,

Gageler and Keane JJ; Hayne J dissenting in part)

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31

Enlisting

Unlike Totani, the legislation did not require a court to lay

down any new norm of conduct or give effect to an
executive or legislative decision; but rather simply
exercise ordinary judicial power find facts and impose
punishment as a result of the contravention of norms of
conduct laid down by the legislature
The mere fact that a court is applying legislation that
reflects the policy of the executive does not mean the
executive is dictating to the court

32

Cloaking

Any harshness of the laws or undue encroachment on

liberty lies with the political branches
The only judicial activity is the characteristically judicial
process of a criminal trial
It is not to the point that the judiciary approve or
disapprove of the laws

33

Usurpation

The executive power to declare an association a criminal

organisation does not decide or punish the criminal guilt
of any person
That remains a mater for criminal proceedings where the
declaration forms only one part of the offence, the
contravention of which must still be proved in the
ordinary way

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The Supreme Court of a State

34

. The Supreme Court of a State: Kirk v IRC

Ch III of the Commonwealth Constitution requires that there

be a body fitting the description the Supreme Court of a
State
The corollary of that is that it is beyond the legislative
power of a State so to alter the character of its Supreme
Court that it ceases to meet the Constitutional description

35

Kirk v IRC

Judicial review of the exercise by the Industrial Court of

NSW of its criminal jurisdiction under OHS Act
Industrial Court held to have made two jurisdictional errors
Privative clause in Act purporting to prevent judicial review
High Court held that if it did prevent judicial review for
jurisdictional error it would be constitutionally invalid

36

Kirk v IRC

At federation, each of the Supreme Courts referred to in

the Constitution had a general power to issue certiorari for
jurisdictional error which could not be removed by a
privative provision
The supervisory role of the Supreme Court is a defining
characteristic of those courts
To deprive the Supreme Courts of that supervisory
jurisdiction would create islands of power immune from
supervision and restraint, ultimately by the High Court, and
undermine the single common law of Australia

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37

Post Kirk

There is a constitutionally entrenched minimum

provision of judicial review applicable to State
decision-makers similar to s 75(v) of the Constitution

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13