State of South Australia v Totani

[2010] HCATrans 157

[2010] HCATrans 157

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Adelaide  No A1 of 2010

B e t w e e n -

THE STATE OF SOUTH AUSTRALIA

Appellant

and

SANDRO PETER TOTANI

First Respondent

DONALD BRIAN HUDSON

Second Respondent

FRENCH CJ
GUMMOW J
HAYNE J
HEYDON J
CRENNAN J
KIEFEL J
BELL J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 17 JUNE 2010, AT 10.16 AM

(Continued from 21/4/10)

Copyright in the High Court of Australia

FRENCH CJ:   I note there are some different appearances so, Mr Solicitor, you are appearing again for?

MR M.G. HINTON, QC, Solicitor‑General for the State of South Australia:   If the Court pleases, I appear with MR G.J. PARKER.  (instructed by Crown Solicitor (South Australia))

MR B.W. WALKER, SC:   I appear with MR S.J. DOYLE, as before for the respondents.  (instructed by Caldicott and Co Barristers and Solicitors)

MR S.J. GAGELER, SC, Solicitor‑General of the Commonwealth of Australia:   I continue to appear with MR A.M. DINELLI for the Attorney‑General of the Commonwealth.  (instructed by Australian Government Solicitor)

MR R.J. MEADOWS, QC, Solicitor‑General for the State of Western Australia:   May it please the Court, I appear with my learned friend, MR R.M. MITCHELL, SC.(instructed by State Solicitor (WA))

MS P.M. TATE, SC, Solicitor‑General for the State of Victoria:   May it please the Court, I continue to appear with MS K.L. WALKER.  (instructed by Victorian Government Solicitor)

MR P.J. DAVIS, SC:   I appear with my learned friends, MR G.J.D. del VILLAR and MR A.D. KEYES, for the Attorney‑General for Queensland.  (instructed by Crown Solicitor (Qld))

MR J.G. RENWICK:   If it please, your Honour, I appear for the Attorney‑General for New South Wales.  (instructed by Crown Solicitor (NSW))

MS S.L. BROWNHILL:   If the Court pleases, I appear for the Attorney‑General for the Northern Territory.  (instructed by Solicitor for the Northern Territory)

FRENCH CJ:   Yes, Mr Solicitor.

MR HINTON:   If the Court pleases, on the last occasion your Honour the Chief Justice asked, in view of South Australia’s submissions, that we file a fresh amended notice of appeal setting out more accurately the orders we seek.  We have done that.  However, since doing so, we have been apprised of one further fact that does affect it.  That fact is that post the order of the honourable Justice Bleby appearing at page 165 of the appeal book and prior to the application for special leave being made, the parties returned to the Magistrates Court and the order of the Magistrates Court, the control order in respect of Mr Hudson, was set aside.

Accordingly, I apply, with respect, to the amended notice of appeal to delete the relief sought on page 3 under new paragraph 4.2 that is, in effect, addressing the fourth question that was asked of the Full Court.  Page 3 of the amended draft notice of appeal, the question was:

Is the control order in respect of Hudson made on 25 May 2009 void and of no effect?  Answer:  ‘No.’

There is no longer any need to answer that question.  The order does not exist.

FRENCH CJ:   So in other words, you do not seek that?

MR HINTON:   No, your Honour.

FRENCH CJ:   We should just cross through 4.1.2?

MR HINTON:   If your Honour pleases.

FRENCH CJ:   All right.

MR HINTON:   Indeed, equally, 4.3.2 follows for the same reason.

FRENCH CJ:   Yes, all right.

MR HINTON:   I turn then to the questions that the Court has forwarded to the parties.  With respect to question 1, the parties and the interveners who have responded to the Court’s questions are in general agreement that the answer to the question is yes, or, almost invariably, yes; the question being, does section 10(1)(a) of the Act require that the Attorney‑General be satisfied that a member or members of the organisation has or have committed one or more identified crimes?  I do not propose to address the reasons for that answer in any detail at all.  I rely upon the written submissions provided by the appellant. 

In short, section 10(1)(a) speaks to the present in that the members of an organisation or a significant group of the membership of an existing organisation associate as at the time of the application for the purpose of organising planning, supporting or engaging in serious criminal activity.         As your Honours’ attention was drawn on the last occasion, “serious criminal activity” is defined in section 3 as “the commission”, past tense ‑ ‑ ‑

GUMMOW J:   Have we got this order made by the magistrate?

MR HINTON:   I have not in my possession, no, your Honour.

GUMMOW J:   Do we know what date it was made?

MR HINTON:   No, your Honour.  I can file it within seven days.

GUMMOW J:   I hope so.

MR HINTON:   I was saying “serious criminal activity” means the commission, past sense, of serious criminal offences.  So to be satisfied that that is what the members or a significant group of them do will almost invariably be the product in considering what they have done.  So where the Attorney is satisfied that the members engage in the commission of serious criminal offences, he will be satisfied that those members have committed one or more crimes or have attempted the same.  Where he is satisfied that they have organised or planned, he will be satisfied that they have agreed to commit serious criminal offences amounting to the offence of conspiracy.

Similarly, if he is satisfied that the relevant members have associated in order to facilitate or support the commission of such offences, then he will necessarily be satisfied that they have given help, support, assistance, incited, instigated or encouraged others, and thereby committed the offence of aiding and abet.  It is not beyond the realms of possibility to consider a situation where no offence has yet been committed but you do have an organisation planning to do so.  Not beyond the realms of possibility to contemplate a factual situation where the police have such material, and indeed we have addressed that at paragraph 13 of our answer.  That is why we say the answer to question 1 is, yes, or, alternately, almost invariably, yes.

I turn to question 2, but before I do, can I make one more brief point, that the fact that the answer is almost invariably yes is significant for one further purpose and that is, harking back to the question of review or collateral attack and the question there being whether or not the decision was one reasonably open on the material, Buck v Bavone, the judgment of his Honour Justice Gibbs tells us that the effectiveness of such review would depend upon the nature of the matters of which the decision‑maker is required to be satisfied.

If it is accepted then that section 10(1)(a) of the Act does, or almost invariably will, require that the Attorney be satisfied that a member or members of the organisation have committed one or more crimes before he may draw the inference as to the nature of the organisation, then that is something that can be effectively agitated as part of a review.  Thus, it cannot be said that the ability to review or collaterally challenge the declaration is of no real consequence as largely being ineffective.

I turn to question 2 and again the parties and the interveners are in agreement that the answer is yes.  The question is if, acting under section 10, the Attorney must be satisfied or is in fact satisfied that a member or members of the organisation has or have committed one or more crimes, must the Magistrates Court on application under section 14(1) make a control order against the person found to be a member of the declared organisation regardless of whether that person is a person whom the Attorney‑General was satisfied has committed a crime.  As I said, parties and interveners are agreement, the answer is yes.

HAYNE J:   Thus the consequence is that a control order must be made by a court on the motion of the Executive without there having been necessarily any executive determination that that person has done anything in the past, or is likely to do anything in the future, and without any curial determination about that person’s past conduct, or possible or likely future conduct.  Is that right?

MR HINTON:   Yes, your Honour, question 3.  Again, the parties are in agreement that the answer to question 3 is yes.

FRENCH CJ:   In a sense, the control order is a kind of curial icing on the cake of the scheme, is it not?  When you look at the effect of a declaration on the freedom of action of a member, having regard to section 35, because section 35 would prevent members from associating with each other, just by force of the declaration, would it not?

MR HINTON:   Yes, your Honour.

FRENCH CJ:   If all this fell away, if section 14 fell away, and the courts were not involved in any way, you would still have a situation where the Attorney‑General could make declarations and you would have something that looked pretty close to a control order, by operation of a statute.

MR HINTON:   You have the creation of that legal norm of conduct by virtue of section 35, yes, your Honour.

KIEFEL J:   It operates rather like a consorting provision, so there is a requirement of proof of an association on at least six occasions.

MR HINTON:   Yes, your Honour.

KIEFEL J:   But that is not necessary with the control order.  That might be a little more difficult to prove.

MR HINTON:   That is true, the notion of membership in particular.  What you get is a consorting offence where the class is chosen, in effect, by the Attorney‑General.

KIEFEL J:   But what section 35 might highlight is that section 35 is at least about the present and future conduct of the particular person, whereas the control order does not require the court to make any determination about the conduct of the particular person.

MR HINTON:   I have to accept that, other than of course the fact that they are a member of that declared organisation, yes.

HAYNE J:   Which provokes the use of the phrase “guilt by association”, does it not?

MR HINTON:   Yes, especially when one comes to section 35 and, indeed, any breach of a control order, section 22.  The advantage of the control order is it, of course, can exclude certain forms of association from the ambit of section 22 and, indeed, section 35 when one looks at subsection (6)(e), and hence, in the answer to question 2 that South Australia has provided, we have also focused upon the fact that whilst we do not embrace the submission that a control order could have a nil content, it, in a given situation, can have a minimal content and the conditions or the content of the order by virtue of the power in section 14(5) and what is to be taken into account under 14(6), should ‑ ‑ ‑

KIEFEL J:   But what is put against you is that, having regard to the obvious statutory purposes, the minimum content must prohibit most association with most of the members of the organisation.

MR HINTON:   It must prohibit save to the extent of any exceptions, yes, your Honour.

KIEFEL J:   So we are not coming anywhere near the reasonable necessity provisions that were considered in Thomas v Mowbray, are we, if that is what is sought to be achieved?  We do not have the court in a position where the court can actually mould the orders to the likely conduct of a particular person.

MR HINTON:   Well, we do, if your Honour pleases.  If I could take you to section 14(6) where the court is directed the court must have regard:

in considering the prohibitions that may be included in a control order under subsection (1) –

to have regard to the individual’s behaviour.  A clear indication, in my submission, that the order should be tailored to meet the circumstances of the individual and the part they play within the organisation that is declared and the nature of that organisation.

KIEFEL J:   But the question is, to what extent can that really be taken into account given the provisions of subsection (5)(b)?

MR HINTON:   To the extent?

KIEFEL J:   That they fall within the exception.

MR HINTON:   Yes, your Honour, I can put it no higher than that.

KIEFEL J:   No, you cannot, can you?

MR HINTON:   No.

KIEFEL J:   Mr Hinton, the feature – I think it was discussed on the last occasion – of this legislation is that the legislation does not itself seek to proscribe membership of the organisation which is declared.  It does not take that step.

MR HINTON:   That is correct, your Honour, there is no offence of being a member of a declared organisation.

KIEFEL J:   So the position that the court or the actions which the court is required to take in a way might be seen to take up that omission in this way.  In the making of a control order the court provides the legal consequence of a person being identified with the group.  Is that not what the court is required to do?

MR HINTON:   Yes, your Honour, the court will determine the person that falls within the class for the purposes of sections 22 and 35, yes.

HAYNE J:   Those persons are those chosen by the Executive because it is the Executive that must move for the making of a control order?

MR HINTON:   The Executive chooses the people who are liable to that, yes, by making its application ‑ ‑ ‑

HAYNE J:   The court is enlisted, is it not, to use a very loaded term, but the court is required, to use the language of the statute, to make an order against those of a class whom the Executive chooses are to be the subject of order, that class having itself been determined by the Executive.

MR HINTON:   Upon proof to the court’s satisfaction that the individual is a member of the class, yes, your Honour.  But in terms of the Executive moving, that, with respect, is no different to the exercise of the prosecutorial discretion.  That is not exercised, with respect, to every person that commits a criminal offence.  The Executive chooses who enters the system and then the court must act upon that choice.  In terms of the Kable principle, the question comes back to the function that is given to the court and the effect of that function upon the institutional integrity of the court or the appearance of its institutional integrity.

HAYNE J:   Is it relevant to that inquiry to observe, if it be true, that the court called on to make a control order does not declare or ascertain existing rights and liabilities?

MR HINTON:   That is an argument – is it relevant at the very general level?  Yes.  It is relevant because, of course, the Kable principle requires that we undertake an evaluative exercise as to the effect of the function upon the capacity of the court or upon the court being a court of a State within the meaning of section 77(iii).  So it is relevant as part of the evaluative exercise.  But just because it does not determine any rights or liabilities of itself, is not repugnant and of course the control order, subject of Thomas v Mowbray, is that very position.

HAYNE J:   But the control order in Thomas v Mowbray could be made only upon curial satisfaction of either a past fact, namely, giving or receiving training, that is, an act which at the time of application for the control order, regardless of what may have been the case when the training happened, is a criminal act, or upon the curial determination of a future state of affairs, that is, that the order would have, by being directed against the identified individual, an identified consequence of prevention of conduct which constitutes criminal conduct.  Is that right?

MR HINTON:   Your Honour is quite right – 104.4(1)(c), yes.

HAYNE J:   What I need, therefore, to put to you, Mr Solicitor, is this.  The Magistrates Court engaged in a section 14(1) application, (a) does not determine existing rights and liabilities; (b) it is required to make the order on satisfaction of membership; (c) it does that without the court inquiring about past conduct and without the Executive necessarily having made any inquiry or determination about past conduct of the person who is the subject of the order.  It is required to make the order without the court making any determination, or prediction - I do not care which word is used - about likely or possible future conduct or the relationship of the kind spoken of in the Criminal Code provisions between the making of the order and the prevention of particular forms of criminal behaviour.  Is that an accurate description of the task undertaken by the court?  If it is, that leads, of course, obviously to further questions about repugnancy, et cetera, but step one, is that an accurate description of what is happening on a 14(1) application?

MR HINTON:   May I answer that by saying “yes, but”, (1) no rights or liabilities, we are in agreement; (2) required to make the order, section 14.1 “must”, we are in agreement; (3) no inquiry of past conduct.  With respect to the making of the order, the material facts to be proven do not require that; (4) no requirement of any prediction as to the use of this order to disrupt organised crime.  With respect to the making of the order, we are in agreement.  When it comes to the content of the order, however, there is room and that is where we go to section 14(5), as indeed my discussion with your Honour Justice Kiefel pointed to, and 14(6).

GUMMOW J:   Are you saying that this legislation contemplates an order with no content?

MR HINTON:   No, your Honour.  It will have a minimal content.  That is not South Australia’s submission.  South Australia’s submission is not that you could get to the point where you could, in effect, override the “must” in section 14(1).

CRENNAN J:   I think this takes you to your answers to question 4, but it relates to your answers to Justice Hayne as well, I think.  As I understand it, you are contending that the control order contemplated by the 14(1) is a preventative mechanism and you are looking to Thomas v Mowbray as an analogy in relation to this idea that it is preventative.  Could you just explain preventative of what and how the control order is meant to work in relation to the prevention of something?

MR HINTON:   I start by confessing to an imperfect analogy but nevertheless, it is preventative in that the target, the objects of the Act, in section 4 are to disrupt and restrict the activities of organisations primarily. It is directed at organised crime or crime with an organised element.  The way in which it disrupts or prevents organised crime, to use that word, being able to commit serious criminal activity is by preventing the membership of declared organisations, those organisations existing for the purpose of organising, planning, et cetera, serious criminal activity.  It prevents them by preventing the membership, the lifeblood, associating.  It is the very fact of the ability to organise that gives organised crime its power.  Break the ability to associate and you prevent organised crime from being able to organise crime.

GUMMOW J:   That seems to postulate orders against each member.

MR HINTON:   Control orders?

GUMMOW J:   Yes.

MR HINTON:   There is the potential for that, your Honour, yes.

FRENCH CJ:   You have the general prohibition, in any event, on each member from a certain level of association by virtue of 35.

MR HINTON:   You do, your Honour.

FRENCH CJ:   This control order, the minimum requirement of 14(5)(b)(i) which must be included in a control order, would prevent association, which is not defined as association is for the purposes of section 35?

MR HINTON:   No, your Honour.  Sorry, your Honour, 14(8)?

FRENCH CJ:   I am sorry, yes, you are quite right.

MR HINTON:   Curious, there is no definition of what an associate member is but we have two definitions of associate, yes.  Your Honour said it was the icing on the cake.  It could be looked at in one other way, and that is as part of my answer to your Honour Justice Kiefel, and it allows, rather than a general consorting offence or reputed thieves, it allows you to know who does not fall within the class by virtue of the exceptions or the conditions that may be imposed.

KIEFEL J:   But the comparison with section 35 might point up, although it is not an issue here, that section 14 is out of proportion to what is required, but that is not an issue here that you need to address.

MR HINTON:   No.  Well, it is not an issue here, your Honour, but in a way it could be seen as a fail‑safe.  If you just had the declaration and section 35, then you have a consorting offence.  You have some exceptions, but not the ability, by virtue of the content of section 35, to create further exceptions.  What section 14(1) allows you to do, because you do have that leeway with respect to the content of the order, is to create additional exceptions.

FRENCH CJ:   Section 35 has, in a technical sense, I suppose, a narrower prohibition.  You can associate on five occasions, whereas the minimum requirement under 14(5)(b)(i) would seem to prohibit any association.

MR HINTON:   Your Honour is quite right.  Section 35, it gives and it takes, if you like.

FRENCH CJ:   You are allowed five text messages.

MR HINTON:   Yes, your Honour.

HAYNE J:   In answer to Justice Crennan you said that the prevention which is sought to be achieved, or the consequence sought to be achieved is prevention in the sense of disruption of organised crime by disruption of association, is that right?

MR HINTON:   Yes, your Honour.

HAYNE J:   On its face that seems to lead into at least two questions.  First, if the object is to disrupt the association, why has the legislature not gone the whole hog and said this is an illegal organisation, membership is a crime?  That is one set of questions.  But the second set of questions is presented by observation of the course of authority in the US post World War II concerning legislation and administrative conduct directed against those who were seen as members of the Communist Party.  The analogies are far from perfect, but it is very necessary to take account of the radically separate and distinct constitutional framework within which the decisions are given, but questions of affiliation, in that case with the Communist Party, were at the core of the Bridges litigation, Bridges v Wixon, Bridges, the longshoreman organiser from Australia who was sought to deport.  Bridges v Wixon is 326 US 135.

What I want to put to you is that if you look at those cases, cases including Kotteakos v United States 328 US 750, Schneiderman 320 US 118, they are collected conveniently in a note in 17 U Chi L Rev 148, what you see is that notions of membership, affiliation, association with membership, are themselves difficult concepts. The difficulty in the concept presents this issue, I think, for your consideration. Is the Magistrates Court, by operation of section 14(1), being enlisted by the Executive to direct particular orders against those who are chosen by the Executive regardless of what that person has done or may do in the future?

MR HINTON:   With respect to your Honour’s first proposition if the object is to disrupt, why not go the whole hog.  In part, as your Honour developed your thoughts, the answer lies, perhaps, in the experience of the United States.  Without having read those authorities my answer would be it is the fluid nature of these organisations that does not allow you to proscribe them.  They change overnight, their membership changes overnight.  They are not so easily recognisable because, of course, some are by virtue of uniforms worn, et cetera, but not all are.  So that task then is given to the Attorney upon the application of the Commissioner and the requisite state of satisfaction being reached.

So my first answer to your Honour’s first question is fluidity.  Secondly, with respect to the US position I am not au fait with it, but your Honour’s question is what then does that mean for the Magistrates Court and is it directed, with respect to a particular class, to make an order?  I have not put it as eloquently as your Honour, but that is my understanding. 

The answer that South Australia has provided to question 3 as we have already been through indicates that it is within contemplation that a control order could be made with respect to a member who neither the Attorney nor the court considers whether or not they have breached the criminal law.  When it comes to the content of the order the court will consider that as directed by section 14(6).

Is it a directed outcome?  No, for the reasons advanced on the last occasion and in South Australia’s written submissions.  The fact that you have to decide membership and the other opportunities to challenge, et cetera, review would indicate it is not a directed outcome insofar as the court acts in place of the Executive.  There is a genuine adjudicative function.  But it is directed towards a class of person picked by the Executive.  Is that offensive, in my submission, offensive to the Kable doctrine?  No. 

Your Honours will recall Baker’s Case and the fact that the opportunity to apply for a minimum term depended upon, firstly being able to establish that no non‑release recommendation had been made.  A non‑release recommendation was not a requirement of law.  It was just something that happened as a matter of fact depending upon the individual sentencing judge.  We there have an example of a small class are being picked; not offensive in itself. 

Fardon again, another example of a small class of person to whom the function given to a court relates.  So the fact that we have a class picked, in my submission, by the Executive or the legislature and the fact that it is a small class does not offend or mean that the Magistrates Court is no longer a fit repository of federal judicial power.  If your Honour pleases.  I think in the course of debate ‑ ‑ ‑

GUMMOW J:   Can you just explain, Mr Solicitor, further what you said before, having regard to the objectives of the statute, the utility in furthering those objectives in not only having the offence in 35(1)(a) but having the offence in section 22?  The whole of Part 3 builds up to section 22.

MR HINTON:   What was that, sorry, your Honour?

GUMMOW J:   The whole of Part 3 builds up to the section 22.

MR HINTON:   Yes, your Honour.

GUMMOW J:   That is the idea of it.  There are various steps, but it leads up to the offence under 22.  How does the offence under 22 further the objectives in a way that you would not otherwise achieve by 35(1)(a)?

MR HINTON:   Firstly, there is undoubtedly a degree of overlap, but where they do not overlap is in a situation where an order under section 14 would include provisions not catered for by section 35(1), 35(1), of course, limited to “member of a declared organisation” or persons “subject of a control order”.  Under section 14(5)(a)(i) “associating or communicating with specified persons”, those persons, of course, do not have to be a member of a declared organisation nor a person subject of a control order.  They include, of course, as we see in section 14(5)(a)(ii) being in the vicinity of premises, possessing certain articles, etcetera.  So there is an area where the two offences do not overlap.

HAYNE J:   In addition, there is a further area, is there not, where there is no overlap between 22 and 35 that is provoked by the application of 14(2) either in respect of a past member, 14(2)(a)(i), or a person who is not a member but a regular associate of members, 14(2)(a)(ii), or, still further alternative, a person who falls within the class 14(2)(b) creates?

MR HINTON:   Your Honour is right.  To the extent that a member for the purposes of section 35(1) does not include those persons, yes.

HAYNE J:   Section 35 is directed to present members, is it not?

MR HINTON:   Yes, your Honour, allowing potentially for that definition of “member”, of course, in section 3, again, still present tense, yes.

HAYNE J:   Yes.

MR HINTON:   I wanted to take some time with the Court this morning, but not a great deal of time hopefully, to discuss the Kable Case.  Question 4 asks how is this case distinguishable from Kable v Director of Public Prosecutions 189 CLR?  Indeed, if I could commence by taking your Honours to the Community Protection Act, which I hope is in Court and available to your Honours, of 1994, the New South Wales Act, the object of the Act is set out in section 3, and I draw your Honours’ attention to subsections (1), (2) and (3).  They establish what was a factor that was important to the reasoning in this case and that is that it was ad hominem.  It applied only to Gregory Wayne Kable, as subsection (1) and subsection (3) of section 3 make clear.

Section 5(1) in combination with section 22 makes clear that on the application, if granted, Mr Kable was liable to be detained in prison for a period of up to six months, section 5(2), although successive applications could be made under section 5(4); an important distinction immediately.  A control act, a control order, does not imprison anybody, and it does not render anybody liable to the sorts of disabilities that a person in prison suffers.

HAYNE J:   The decision in International Finance demonstrates, does it not, that Kable is not confined to involuntary detention?

MR HINTON:   Yes, your Honour.  The greater proposition for which Kable stands, definitely, yes.  The question was, how is it distinguishable, which is what I am building up to, and perhaps the more minor premises that feature in the judgment and the combination of factors that feature in the judgments, part of the evaluative exercise, that led to the legislation there being invalidated and how they are different to what we are confronting here.  An order was to be made against, or could be made against, Mr Kable if the Court was satisfied under section 5(1)(a) that he was:

more likely than not to commit a serious act of violence; and

(b)that it is appropriate, for the protection of a particular person or persons or the community generally, that the person be held in custody.

I pause – one of the points made was that it was not, as your Honour Justice Hayne has said in the course of the argument this morning, it was not an order that was dependent upon the commission of any criminal offence, or conviction of any criminal offence.  Under section 16 the proceedings were “commenced by summons”.  Under section 14 they are civil proceedings:

to be conducted in accordance with the law . . . relating to civil proceedings.

Under section 15 the civil standard of proof was to apply.  Under section 16(2) there was the power to proceed ex parte, or without notice.

Despite that, there was the power to be represented by counsel in section 17.  Justice McHugh’s judgment indicates that his Honour was affected, and I will take your Honours to that judgment in a moment, very much by section 7 and the power to get an interim order without any preconditions being satisfied that lasted up to three months and then a power to extend that interim order and yet no power to appeal it any way.  The right of appeal limited to that against the ultimate order, that is contained in section 25. 

Section 17 provided that the court hearing the application “is bound by the rules of evidence” but, importantly, in section 17(3) there was a significant incursion into the rules of evidence in that the court was compelled to “receive in evidence any document or report of a kind referred to in subsection (1)”.  What transpires is, you could make an application for an order, at the same time make an application for the sorts of reports required in 17(1), the result would be that Mr Kable was then liable to an interim period of detention whilst those reports were prepared, with no right of appeal.

Before turning to the judgments, I pause to note the differences between that Act and the Serious and Organised Crime (Control) Act.  There are a number of obvious ones.  Firstly, the Serious and Organised Crime (Control) Act is not ad hominem and it does not result in detention in custody in a prison, nor does a person lose the rights and privileges that one normally does when imprisoned.  The Serious and Organised (Control) Act does not compel the Magistrates Court to admit anything on an application under section 14(1).  As we went through on the previous occasion, the rules of evidence apply save in relation to criminal intelligence.  If the rules of evidence do not apply because it is an interlocutory proceeding, a fact which this Court does not have to decide, but if they do not apply because it is an interlocutory proceeding, then they do not apply, according to the court’s rules, according to a determination of the court. 

There is that one modification in the Serious and Organised Crime (Control) Act of the rules of evidence and that is with respect to criminal intelligence but, of course, that same provision was the subject of this Court’s judgment in K‑Generation.  The Serious and Organised Crime (Control) Act does not require a guess to be made in the same way as the community protection order.  It provides for the review of a control order irrespective of whether or not it is made without notice and, ultimately, an appeal.

If I could take your Honour to the judgments in Kable and the majority, in particular, starting with his Honour Justice Toohey, at page 97 and drawing your Honours’ attention to the first full paragraph on page 97 where his Honour identifies a fact significant for him and that is that Mr Kable’s detention is not grounded in any breach of the criminal law.  In the second paragraph on page 97, his Honour notes that the detention contemplated by the Community Protection Act does not fall within one of the exceptions to Lim.

In the first paragraph on page 98 his Honour identifies the offence of nature of the legislation as laying the fact that it provided for detention but was not dependent upon a contravention of the criminal law resulting in a finding of guilt.  That is to be found in the, perhaps last 8 lines of page 98.  Important perhaps in part to the interchange between your Honour Justice Hayne and I earlier this morning, the first full paragraph commencing “The Act does prescribe” on page 99, his Honour determines that the Act was not invalid by reason of the limited role of the Supreme Court.

Your Honour will note the footnote to Polyukhovich’s Case, and in particular to the judgment of his Honour Justice Dawson.  There the argument related to identifying what constitutes a Bill of Attainder and Justice Dawson noted in that case that you would have, in effect, a Bill of Attainder where the task left to a court was just to identify whether or not the individual fell within a particular class.  That is not this case.

In concluding, the penultimate paragraph of his Honour Justice Toohey’s judgment on page 99, the paragraph commencing “However the Act”, his Honour notes that different questions would arise had the Act applied generally, and a defence confined to a “challenge [to] the criteria in section 5(1)” not having been met, the general application of the law.  I appreciate that section 14(1) does not apply generally, but as I have submitted, it does apply to a limited class and the identification of a limited class, that fact itself, does not give rise to invalidity.

For Justice Gaudron, her Honour notes at page 104 in the penultimate paragraph on that page, again, the fact that the legislation was ad hominem.  Continuing on in the next paragraph she observes the directive in section 3 requiring the making of a detention order.  In the first full paragraph on page 105 her Honour draws attention to the fact that whilst these proceedings are denoted as civil proceedings, there is no law relating to proceedings of this kind that could fill any void contemplated by section 16.

In the middle third of page 105 her Honour refers, as I have touched in passing, to the effect of section 17 upon the rules of evidence, and at the bottom of the page, like Justice Toohey, her Honour refers to the fact that Mr Kable has not committed an offence and yet, if an order was made, he was to be subject to the same regime as a person who had.

On page 106, the first full paragraph, her Honour makes the point that the proceedings were directed to the making of a guess on the balance of probabilities that the appellant would commit an offence.  They are not proceedings otherwise known to the law.  Her conclusion comes on page 107 in the first full and second paragraphs of that page.  It requires the making of an order if the conditions specified in section 5(1) are satisfied, depriving an individual of his liberty not because he has breached any law, whether civil or criminal, but because an opinion is formed on the basis of material which does not necessarily constitute evidence admissible in legal proceedings that he is more likely than not to breach a law.  She considers it to be the anthesis of the judicial process.  Toward the end of that, about point 7, point 8, her Honour identifies the principle that she is applying and that is that this function compromises the integrity of the Supreme Court of New South Wales.

FRENCH CJ:   What you are taking us to here are points of distinction between the New South Wales statute and the South Australian statute which were mentioned in part by various of the members of the majority in Kable?

MR HINTON:   Yes, your Honour.

FRENCH CJ:   So, what is the ultimate proposition to which that all leads?  Simply, that there are points of distinction that are important to the majority?

MR HINTON:   Question 4 asks, how is this case distinguishable?

FRENCH CJ:   Yes.  You say it is a different kind of Act.

MR HINTON:   Entirely.  Can I put it this way.  In K‑Generation your Honour the Chief Justice pointed out that in applying the Kable doctrine one is involved in undertaking an evaluative exercise, and South Australia accepts that.  When one looks at the evaluative exercise to be undertaken with respect to the Serious and Organised Crime (Control) Act, a number of issues arise and aspects of them have been dealt with in numerous of the judgments of this case. 

I am leading to the proposition where I put to your Honours that if there is a genuine adjudicative function, as was noted in Fardon and as South Australia says there is in section 14(1), then the fact that that “must” is there, does not change anything.  Fardon v IFTC would suggest that the “must” and the existence of a genuine adjudicative function results in the function given to the court not being offensive.  With respect to criminal intelligence, K‑Generation is the authority for the proposition that it does not offend the Kable doctrine.  When one moves to the prescribed outcome, I have mentioned that, IFTC is the authority.  Preventive detention, Thomas v Mowbray is the authority.  That the function applies to a limited class, Justice Toohey moments ago in Kable, Baker and Fardon are all authorities. 

That the judicial process is undoubtedly substantially applied in this case tends to the opposite conclusion, that there is in place a system of review and appeal, Kable, that affected the judgment of Justice McHugh.  Not a problem here, and that the making of a control order does not result in the court adopting the declaration as if it were its own finding, Brandy’s Case and Macks, does not occur here.  So when one undertakes that evaluative exercise which must be objectively undertaken, if you have in this Act these factors individually considered by this Court, not to have the consequence that the Kable doctrine is offended, then how can it be the case that when you join them together it suddenly is offended?  Objectively, nothing has changed.  There is the genuine adjudicative process.  There is the control over criminal intelligence.  There is the ability to give content to the order.  The outcome might be prescribed, but it is only after that genuine adjudicative process is undertaken, IFTC, preventive detention is not offensive.

We come back to how is the independence and impartiality of the Magistrates Court of South Australia, destroyed by this function, such that it is no longer a fit repository of federal judicial power and, in my submission – South Australia’s submission – it is not.

GUMMOW J:   I suppose one way of looking at it, Mr Solicitor, is to say sections 22 and 35 each creates criminal offence.  What they have in common is that an essential factum for that offence is the existence, with respect to the offender, of a control order.  So the creation of that factum of liability, to put it that way, is an earlier order made by the court. Is that right?

MR HINTON:   Yes, your Honour.

GUMMOW J:   The making of that earlier order by the court is mandated by section 14 without the court, in creating that factum, itself investigating the satisfaction of any other criteria – of any criteria – which enliven or mandate the exercise of the creation of this factum for the offence.  In that sense the courts have been conscripted into the creation of a criminal offence; criminal offences under 22 and 35.  Do you see what I mean?

MR HINTON:   I understand the thread of your Honour’s reasoning.  Can I answer in this way?

GUMMOW J:   They are being conscripted because the trigger for the court is the Attorney‑General’s earlier activity under section 10. 

MR HINTON:   Firstly, no more conscripted than in entertaining any other application that can result in an order which, if not obeyed, leads to imprisonment potentially for contempt of court.

GUMMOW J:   I was going to ask you are there any other examples of this structure of offence creation that you can think of?

MR HINTON:   The short answer is no.  The closest we get is the Commonwealth’s terrorism offences and the alternative, the ‑ ‑ ‑

GUMMOW J:   The distinction with Thomas v Mowbray has been highlighted earlier this morning.

MR HINTON:   Yes, but I was just going to refer to, of course, the listed terrorist organisation, of course, section ‑ ‑ ‑

GUMMOW J:   That is a proscription of organisations, which you do not have here.

MR HINTON:   But you do not have a proscription of an offence here either.  You have a proscription of an organisation, a declaration of a particular organisation.  The Executive goes no further.  It then leaves it to the court to decide whether or not an individual is a member of that organisation so, again, a genuine adjudicative process and not conscripted.

HAYNE J:   But the implicit step in that is that the making of a control order is conducive to prevention of crime.  The whole purpose is to disrupt organised crime, you were saying to us earlier.

MR HINTON:   It is, your Honour.

HAYNE J:   That premise is a rather complex premise, for it is that an executive determination that some, but not necessarily all, members associate for the purpose of facilitating crime leads to the conclusion that a particular individual, regardless of what he or she has done or proposes to do, should be subjected to a norm of behaviour created by the court punishable as crime, the contravention of which is punishable as crime.  I think at some point your submission comes down to saying that is just not repugnant to, or incompatible with, et cetera.

MR HINTON:   We end up there ultimately, yes, your Honour.  In trying to think of other examples, the consorting offences themselves subject a person who has not committed any offence, or threatened to commit any offence, to liability for prosecution by virtue of associating with a reputed thief, but no great difference between that and section 35, or section 22 upon the making of a control order.  I take your Honour Justice Gummow’s point.  One difference is in determining the class of person, the judiciary is involved.  But I come back to not directed, not conscripted, in the sense that it is merely an arm of the Executive, but it determines under section 14 those to whom an order may apply, only after undertaking a genuine adjudicative function.

KIEFEL J:   That is not quite correct.  The Executive determines the persons to whom an order might apply.  It does not, as you said before, actually proscribe an organisation.  It identifies a group of people who may be subjected to an order.  The court then provides the balance of the offence effectively, by being required to give a legal consequence to membership.  Identification, you are identified by the Executive.  The court gives effect to that identification and gives a legal consequence to it.

MR HINTON:   If your Honour means that by declaring an organisation, as in the Finks ‑ ‑ ‑

KIEFEL J:   You are calling it an organisation as if it has some independent existence.  It does not.  It is a group of people.  What is happening is you are, the Executive, is identifying a group of people as being subject to what the court’s processes may require and provide for a legal consequence.

MR HINTON:   The point I was going to make is that undoubtedly an organisation is a group of people, but the Attorney‑General does not identify who the people are beyond identifying the organisation that they comprise.  It is not as though the Attorney declares a list of 20 names as being the members of an organisation, and then the Police Commissioner makes an application with respect to the people in that list.  If your Honour is using the Executive, or alluding to the Executive identifying members in that regard then I take issue with that, but undoubtedly by ‑ ‑ ‑

KIEFEL J:   No, I am not.  I am saying they are identified – they are certainly identified by this very wide idea of membership which can include a large number of people.  Putting that aside, all that the declaration does is to identify a group of people by this common characteristic, but it is the court that actually gives legal effect to the consequence of being such a person without any activity – as Justice Hayne has put to you – without any activity associated with that person.  Now, the distinction in section 35 may be that at least like the consorting provisions in other legislation, at least by being seen to regularly consort with persons who might be identified as known criminals you have some basis for saying there is a risk of the commission of a crime.  There is at least some factual basis, but I think the control order stands quite apart from section 35.

MR HINTON:   The facts that must be proven for a control order do not require any assessment of risk; your Honour is quite right.  That comes in determining the content – we have been through that.

KIEFEL J:   Yes.

MR HINTON:   I come back perhaps to my ultimate conclusion, and that is how does that offend independence and impartiality, or the appearance of independence and impartiality, minded of the list of factors that I have put to your Honours and in particular, the fact that you have that genuine adjudicative function?  You must prove membership, you must prove the fact of the declaration, its validity, its currency.  Agreed, those last three factors may all be relatively routine.  Your Honour Justice Hayne is licking his lips, your Honour.

KIEFEL J:   Justice Hayne is very keen to ask you a question.

HAYNE J:   No, no, no.

MR HINTON:   If I keep talking I might be able to keep him at bay a little longer.

HAYNE J:   Good luck, Mr Solicitor.  The point about membership and the significance you attach to that, yes, the court must determine membership, but its significance is the point I was trying to grapple with by my reference to the US materials, and you referred to the reference obiter Polyukhovich and Justice Dawson.  That in turn referred to Brown’s Case in the US, 381 US 437, particularly at 455, yet another Communist Party case. There are two sentences, Mr Solicitor, that I draw attention to as identifying the core of the problem about membership. The court, or the opinion of the court, said:

The designation of Communists as those persons likely to cause political strikes is not the substitution of a semantically equivalent phrase; on the contrary, it rests . . . upon an empirical investigation by Congress of the acts, characteristics and propensities of Communist Party members.

So step one, identification of member, is not semantically equivalent in this field of discourse to persons associating for the purposes of commission of crime; step one.  The second sentence which the opinion of the court states is:

In a number of decisions, this Court has pointed out the fallacy of the suggestion that membership in the Communist Party, or any other political organization, can be regarded as an alternative, but equivalent, expression for a list of undesirable characteristics.

Same thought in play, Mr Solicitor, but the thought in play is this, that membership is distinct from what seems to be the core function, or core

concern, of the legislation, disruption of criminal conduct.  Now, that is the point that you suggested I was licking my lips to note, but that is the point, or a point, I think you may need to grapple with.

MR HINTON:   Which I imagine is what gave rise to question 3 and the fact that the link between membership and the need to disrupt is perhaps bridged where you have an individual’s criminality considered and that individual’s criminality contributes to the nature of the organisation.  Question 3, however, and I cannot hide from the fact that you are still potentially liable to control order, despite not having committed a criminal offence, but the fact of membership and your Honour’s principle will…..  I cannot do anything about that.

HAYNE J:   No, thank you.

MR HINTON:   If your Honour pleases, I take it from the debate we have now had and I have told your Honours where I have been, there is no need to keep going with Kable and the other judgments.  If the Court pleases, South Australia relies upon its written submissions.

FRENCH CJ:   Thank you, Mr Solicitor.  The Commonwealth has filed no written submissions.  Do you have any oral submissions?

MR GAGELER:   No, your Honour.

FRENCH CJ:   Thank you.  Mr Solicitor for Western Australia.

MR MEADOWS:   May it please the Court, my learned friend, Mr Mitchell, will present the further submissions for the Attorney‑General.

FRENCH CJ:   Thank you.  Yes, Mr Mitchell.

MR MITCHELL:   If it please the Court, we adopt our supplementary written submissions and seek to make oral submissions addressed first to question 4 of the Registrar’s letter and secondly to question 5.  As to question 4 and the basis on which Kable ought to be distinguished, in Forge v Australian Securities and Investments Commission (2006) 228 CLR 45 at 76 paragraph 63 - I need not take your Honours to the passage - your Honours, Justices Gummow, Hayne and Crennan identified the essence of the defect perceived in the Community Protection Act by the majority of the court in Kable.  This was a task given to the Supreme Court of New South Wales.  It was identified as one where the court acted as the instrument of the Executive.

Your Honours noted this short summary risked undue abbreviation and consequent inaccuracy.  However, in my submission, that statement does succinctly identify the point on which Kable turned.  In my submission, the ad hominem nature of the Community Protection Act was critical to that conclusion.  That was because the criteria for the making of an order, set out in section 5(1) of that Act, were general:

(a)that the person is more likely than not to commit a serious act of violence; and

(b)that it is appropriate, for the protection of a particular person or persons or the community generally, that the person be held in custody.

Those criteria alone did not dictate the outcome in a particular case.  It was only when section 5 was read against the object of the Act, to which the Solicitor for South Australia has referred in section 3:

to protect the community by providing for the preventive detention . . . of Gregory Wayne Kable –

that the inevitability of the outcome of the DPP’s application was apparent together, of course, with the provisions for interim orders.

In my submission, the other features of the legislation, such as the predictive nature of the exercise and departures from the ordinary judicial process, were relevant because they assisted the Court in coming to the conclusion that the making of an order for Kable’s detention was inevitable, and that ad hominem nature of the Community Protection Act and the fact that it was critical to the outcome in Kable was appreciated by the judgments of this Court in Fardon v Attorney‑General (Qld) (2004) 223 CLR 575. We have set out the relevant passages at paragraph 8 of our supplementary written submissions. The point is also illustrated by the outcome in Fardon.

The principal distinction between the Dangerous Prisoners (Sexual Offenders) Act and the Community Protection Act was the more general operation of the latter Act.  Both Acts identified persons who are liable to be the subject of a preventative detention order as persons who had been convicted of and imprisoned for a serious criminal offence.  In neither case was further detention to be imposed as punishment for the offence of which the person had been convicted, or as part of the adjudication of the person’s guilt of that offence.  In both cases a prediction as to the extent to which the person presented a danger to the community was a criterion for the making of an order.

The difference, essentially, was that an order under the Queensland legislation could be made against any person serving a sentence of imprisonment for a serious sexual offence.  The New South Wales Act, of course, applied only to Kable, and the point of that distinction was that the general operation of the Queensland Act meant that it could not be said that the outcome of any particular case was being dictated to the Court by the Executive. 

We say, in the present case the outcome of the application is not dictated by the Executive, the legislation is not ad hominem.  The Magistrates Court is given the function firstly of determining whether there is a current, and we would emphasise, valid, declaration of an organisation, and secondly, whether a person is a member of the declared organisation before then turning to the terms and scope of the appropriate order.

We would submit that the recent decision of this Court in Minister for Immigration and Citizenship v SDMDS [2010] HCA 16 is consistent with the contention at paragraph 18 of Western Australia’s original written submissions, that is that the Attorney‑General’s satisfaction of the matter specified in section 10(1) of the Serious and Organised Crime (Control) Act is a jurisdictional fact upon which the validity of the declaration depends.

If I can attempt to address your Honour Justice Hayne’s question put to the Solicitor for South Australia as to the criterion of the order and the fact that the Court, potentially here, neither the court nor the Executive is examining whether there has been any contravention by the particular defendant in the making of an order as opposed to identifying what its content might be.  If the question that the Court is asking as to validity concerns whether the court has been conscripted as an instrument of the Executive, the extent to which the conduct of the particular person is looked at, in my submission, has limited relevance.  That is because we say it is for Parliament to determine the conditions of liability to the making of a control order.  It is for the court, of course, to determine whether those conditions are satisfied.  Here, the criteria are valid declaration and membership.

GUMMOW J:   How is the invalidity of the declaration tested?  In what proceeding?

MR MITCHELL:   Either in the Magistrates Court itself where it can be subject to collateral challenge, if I can use that term, or by way of judicial review in the Supreme Court, in both cases for jurisdictional error. 

FRENCH CJ:   You have to apply Kirk, do you not, to read down 41?

MR MITCHELL:   One may apply the ordinary principle of construction that sections of that kind ‑ ‑ ‑

FRENCH CJ:   It has a “purportedly” in there.

MR MITCHELL:    ‑ ‑ ‑do not apply to invalid but purported decisions, but, if necessary, one turns to Kirk and says that to the extent that section 41 would exclude judicial review for jurisdictional error by the Supreme Court, then it must be read down.  We say as a matter of construction read against that constitutional background and the general interpretative principle, one does not read section 41 as directed to jurisdictional error.

Your Honours, whether there is a semantic equivalence between membership and engagement in organised criminal activity may go to the wisdom of the policy of the legislation, the extent to which the legislation might in fact achieve its stated objective, but, in my submission, it does not go to validity.  We are not here in an arena where one is looking for proportionality or questions of whether the act is reasonably appropriate and adapted to the achievement of some objective.  Rather, we are looking at as to whether there is a conscription, as it were, of the court which becomes an instrument of the Executive.  The question of whether the court or the Executive looks to whether the person has done anything in the past or may do anything in the future, does not, in my submission, go to that issue of independence and impartiality, which is the critical question that was identified in Kable. 

If I can then turn to question 5 and the application of the limitation in Lim v Minister for Immigration (1992) 176 CLR 1 at 27, which I need not take your Honours to. We have set out the passage from the judgment of the plurality in our supplementary written submissions at paragraph 15. That limitation, a modified form of which was adopted by your Honour Justice Gummow in Fardon at page 612, paragraph 80, had two functions in relation to Chapter III of the Constitution, neither of which is directed to State legislation. Firstly, it identified a power of a kind which was necessarily judicial in character and which therefore could not be invested by the Commonwealth Parliament in a body other than the Court. That, of course, was the point at issue in Lim. 

That first aspect of the principle, of course, has no application to the States, as Justice McHugh noted in Fardon at page 600, paragraph 40, a State law could validly authorise a body, other than a court, to punish criminal guilt by ordering the detention of a person, perhaps subject to the qualification that the State maintains a system of courts properly so understood. So the respondents could have made no complaint in this case if both the function of making a declaration and the making of a control order were vested ‑ ‑ ‑

GUMMOW J:   What is that passage from Justice McHugh?

MR MITCHELL:   In Fardon at page 600 paragraph 40.

HEYDON J:   I do not think it went quite as far as what you said.

MR MITCHELL:   He makes the point after ‑ ‑ ‑

HEYDON J:   It said the Parliament could “require breaches of the criminal law to be determined by non‑judicial tribunals”.  That is a different thing from anyone.

HAYNE J:   Whether a State could validly pass a Bill of Attainder may itself be a question of some complexity.

GUMMOW J:   Are there any other support for paragraph 40?  I know it is manna from heaven to you.

MR MITCHELL:   Your Honour, I would refer also to your Honour’s judgment in Fardon as providing some support for that proposition, particularly at paragraph 86, at least to this extent, that your Honour recognises that:

The repugnancy doctrine in Kable does not imply into the Constitutions of the States the separation of judicial power mandated for the Commonwealth by Ch III.  That is fundamental for an understanding of Kable. 

We say unless one applies a separation of powers to the States, it must remain open for the State to authorise a body other than the court to exercise judicial power.

GUMMOW J:   That is the question.  That does not follow logically at all.  That is just an assertion.  What you are saying, it just does not necessarily follow.

MR MITCHELL:   In my submission, it may not be critical for this case, but the only reason why a State might not invest a body other than a court with the exercise of judicial power – and examples exist, for example, in relation to administrative tribunals which may exercise a judicial power in the sense identified by this Court in Brandy’s Case.

There is also so‑called home detention and there is also so‑called weekend detention.  There are also, of course, control orders with their various restrictions.  In our submission, when one looks at that range of possibilities one also has to include as not unrealistic at all matters which in a different context would be called internal exile.  You may not approach – à la an apprehended violence order - certain places or certain locations at certain times, for example, and there is nothing, in our submission, in the principles pronounced by this Court and the authorities already sufficiently enunciated by the various arguments in this hearing to suggest that it is only actual incarceration which as a consequence of the putatively unacceptable judicial task means that the constitutional line has been crossed.

GUMMOW J:   Do you know in the apprehended violence legislation around the country, is there any criterion to trigger an application to the court – any trigger provided by some earlier executive or administrative – I am thinking of social workers’ decisions?

MR WALKER:   No, there is no, as it were, certificate that a functionary of the State has formed a view by whatever means with or without procedural fairness about anything which bears any analogy with what occurs between the Commissioner of Police and the Attorney‑General under this statute.  Normally – and one is speaking about legislation that does have local variation around the country – it is a combination of a fear and some reasonable basis for a fear which works backwards, as it were, from the position of the applicant to the conduct – using that word in a very general expression because there is no charge or conviction, of course – of the person against whom the order is sought.

There is also in a more familiar way the predictive adjudication involved in an AVO of a similar kind that one finds in the far more serious legislation considered in Thomas v Mowbray, but there is no analogy with the trigger of executive certification which the section 14(1) magistrate must accept, in our submission, according to the scheme of this statute.

GUMMOW J:   The Solicitor‑General for South Australia says, of that certification trigger, well, it can be tested in various avenues for jurisdictional error.

MR WALKER:   Your Honours, our point really comes ‑ ‑ ‑

GUMMOW J:   Is that a sufficient answer?

MR WALKER:   No, it is not.  It really comes down to this.  The proposition that something can be tested by contending that it is not what it appears to be is scarcely a comfort at all when one confronts the argument we put, which is when this is what it appears to be it renders the court, the instrument, inappropriately the instrument of the Executive policy that groups of a certain kind may be singled out, and this particular group has been singled out, and that the members should then be dealt with in a particular way.  That is all a matter for executive policy – generically, specifically, all done out of court.

So the challenge that says well if it is not really a declaration at all, then there is the comfort; you are not being made an instrument of the Executive, is completely beside the point and, with great respect, misses the point of our objection to the legislation upheld in the Full Court.  It is precisely when it is a declaration that does answer all the statutory requirements, it is precisely then that it operates in a way which crosses the line.  Are we to be bothered, that is, does one care about matters which cannot have legal consequences because they are not what they appear?  No, one is not.  So it is no answer to our argument about what happens when there is, what I will call, a valid declaration, it is no answer to say, but you will not be troubled by invalid declarations.  Quite so, it is simply no answer.

The same is true, of course - I do not wish to repeat, but merely to refer compendiously back to the argument that has already been had in this hearing about so‑called procedural fairness.  The parties are at odds on the reality and content of any such so‑called common law duty, bearing in mind the delineation of the procedure one finds in the statute itself.  There are, it need hardly be said, no suggestions by the arguments against us that there is anything in the nature of a merits review, anything in notions of a judicial adjudication in any accusatorial way with the protection of the rules of evidence and the testing of evidence and even access to the case against you, the basic requirements of audi alteram partem.  None of that is suggested by the arguments against us to be available either directly or collaterally in any court at all.  It is only the Kirk exception to section 41 that comes anywhere near the common ground between us.

Can I come back to this notion of being, to an inappropriate or unacceptable way, seen as in instrument of the Executive?  Some of the argument against us suggests that that may be assimilated to an objection, a very clear objection, held by this Court in Kable, to legislation in that case, namely that was ad hominem in nature.  It was truly, as Justice Gummow observed in that case, an extraordinary piece of legislation, not least because a person was named who was the only person, it was emphatically stipulated, could be affected by the provisions thereafter contained in the legislation in general terms about a person.

Of course that ad hominem nature might be regarded as about the most pointed way one could possibly indicate what the Executive and indeed legislative policy and politics were in relation to the fate of that person when an application were to be made.  It was that which combined with the other matters concerning the alien character from that which is ordinarily the task of a judge and a court, where there is a jury of course, involved in the examination and adjudication of criminal charges against a person that combination did, of course, produce the result in Kable. 

But Kable cannot, with respect, be summed up in any abbreviated fashion, and this does risk inaccuracy of course, it creates inaccuracy to say that Kable is a case turning on the ad hominem nature of that legislation.  The ad hominem nature was a very important feature of the objectionable characteristics for that legislation, but remove it and, in our submission, everything else about the judicial process in that case would still have produced the same result.  The difference, in our submission, between Kable and Fardon is not simply ad hominem, though of course, that is an important difference.

But in this case with this statute, it is not true that there is nothing ad hominem.  There is a risible error of Latin in our supplementary written submissions that can be explained by an interstate telephone mishearing.

FRENCH CJ:   I thought you were trying to be politically correct.

MR WALKER:   Well, for one appalling moment I thought my junior was trying to be politically correct, but second thought dispelled that possibility.  Paragraph 31, third line, of course that is ad homina but, at the risk of being facetious, we introduced the plural because this picks up a matter that Justice Kiefel has raised with some of our learned friends.  With respect, there is still the vice of the solitary man, singled out by name in the New South Wales legislation, there is still the core of that vice in the named groups – and they are going to be named – the named groups with their almost certain fuzzy limits to delineating the people who are members – see the statutory definition plus the colloquial difficulties of working out who is a member. 

In our submission we already have on the face of the statute in this case what I will call the potential for ad hominem effect.  In this case we have fully worked out, my two clients, a completely overtly ad hominem nature, that is, we name, the Executive names the Finks and then there is an application by the Executive to the court naming two people as members of the Finks.  It is ad hominem because it is only because you are said to be a member of the Finks and it is the naming of the Finks – the singling out of the Finks – that nobody in their right mind would suggest are the only people who might, by banding together, threaten public order and safety, just as in Kable’s Case nobody in their right mind would ever have supposed that only Gregory Kable presented a risk of retribution by way of domestic mayhem of a kind that was presented by him.

So that objection that a form of conduct which, of course, is threatened generally in society and is normally controlled by the regulation known as criminalising conduct with the safeguard that there then has to be investigation, fair trial, conviction, et cetera, the same essential element is present in this case as in Kable, otherwise, and without rehearsing what has been sufficiently set out in writing, we would summarise our elaboration of the argument concerning the difference between this case and Kable as first accepting that there is a difference between actual incarceration and the control orders, about which enough has already been said, but then saying that both the form and substance of this legislation is strongly, if I can put it this way, a fortiori, compared to Kable. 

Largely, that comes about because of the factor which in Kable is striking particularly with respect, and perhaps even more and more as time passes, in retrospect, namely that in Kable the provisions in question in terms bestowed a discretion upon the court by evaluation of matters that had to do with prediction of future criminal conduct. 

One can immediately see a similarity, indeed a close parallel, between those structural elements of the statute in Kable and what was upheld by this Court as valid in Thomas v Mowbray.  That is an element in Kable which came nowhere near, in the reasoning of the majority, to suffice to save the statute from its fate which has given rise to this constitutional doctrine.  In our submission, what has happened in this case where the section 14 court – I stress “court” – is presented with the section 10 declaration containing all of the necessary ingredients of criminal conduct, but not necessarily by the person who is the object of the section 14 application, is much more offensive and for precisely the same reasons as were identified by this Court in Kable.  That is the distinction.  The distinction is that this case, more readily than the case in Kable, indicates invalidity.

I stressed “court” in my last comment.  My learned friend, Mr Mitchell for Western Australia, in pursuing the generalisation that perhaps requires qualification – namely no separation of powers constitutionally required at the level of the States in this federation – referred to comments by Justice McHugh which contemplated non‑judicial adjudication, presumably also punishment, of crime in States.  The first, I hope not flip or glib answer to that argument is of course if the statute were different, the case might be different.

It is not an incidental aspect of our case that a court is involved.  That is the heart of our case.  That is the first answer to such possibilities.  The other answer is this.  There is the world of difference between suggesting that somebody who is a member of the Executive, a functionary of the State in the Executive arm, may carry out what Justice McHugh in Orwellian fashion contemplates, and there is, on the other hand, doing what we submit has come too dangerously near in this case, enlisting the court with its reputation for independence and impartiality, independence from the Executive in exactly that project.

If anything, what Mr Mitchell draws to attention, namely the possibility supposedly, for the purpose of argument, of the State removing courts from these processes altogether really only underlines the offensiveness, in our submission, in constitutional terms of having as it were the real work done by the Executive, and to use the culinary metaphor of the Chief Justice this morning, “icing the cake” only in the court.  It is for those reasons, in our submission, that consideration of what may or may not be greater liberty of legislative action at the State level than exists at the Commonwealth level concerning the allocation of tasks between courts within the meaning of section 77 and arms of the Executive strengthens rather than weakens our position.

Your Honours, questions were asked of my learned friends and answers given concerning ways of testing the nature of section 14 and its consequences, including sections 22 and 35, by reference to the purpose or the preventative purpose to be discerned.  Now, it is, of course, our case that invalidity was properly held in the court below and should be vindicated in this Court regardless whether, as a general matter of policy, one can see this statute is or is not preventative in its ambition, or is or is not adapted more or less to that end.

That is because though that would undoubtedly be the label which both politically and in court ought to be applied to the statute it is the terms, the legal effect and operation of the terms of the statute which will provide the character relevant to constitutional adjudication.  It is clear from the provisions that have been sufficiently debated in the previous day’s hearing, as well as today, that as follows from the answers given by the learned Solicitor for South Australia to questions 1, 2 and 3, persons may be subjected to the burden of a control order and their associates may be subjected to the penal consequences of that, in turn, having happened notwithstanding that the person in question, the person around whom that aura of criminality in the future will, therefore, pivot has not been either charged, let alone convicted, or even adjudicated civilly, to have committed any wrong at all.

So one returns to section 4 of the Act, the objects, and it occurs to us that in truth, read literally and perhaps purposively, it could be seen what the objects of the Act are in the operation upon persons caught by section 14(1) because it reads in section 4(1):

The objects of this Act are‑

(a)to disrupt and restrict the activities of –

Note the absence of any epithet before the word “activities” –

(i)organisations involved in similar serious crime –

Now, literally that includes both their perfectly legitimate investment activities as well as their utterly illegitimate ways of raising the initial capital.  When one comes to paragraph (a)(ii) it is quite different.  It is simply to “disrupt and restrict the activities of” –

(ii)the members of such organisations –

and it will, of course, disrupt activities including of a completely legitimate kind, including of a familial and social kind for a control order to be made in what might be called ordinary or standard terms against somebody who will never get the opportunity to say “You cannot make this control order, I do not deserve this control order because I really am only interested in motorcycles, tattoos and leather jackets”.

HEYDON J:   What about section 17?

MR WALKER:   Section 17, your Honour, does not ‑ ‑ ‑

HEYDON J:   I understand that section 10 is, as it were, subject to a considerable degree of invulnerability – section 10 is largely invulnerable for reasons you have explained before, but section 14 is subject to section 17.

MR WALKER:   Section 17 is controlled by section 18.  Under section 18 the mandatory consideration in subsection (1) is whether sufficient grounds

existed for the making of the control order.  For a subsection (1), section 14 case, that is membership of the declared organisation.  When one comes to subsection (3), which is the section 14(1) class, the good reason to be allowed to associate with a particular member, or members, of a declared organisation, is of course only a very small subset of the associations affected by a control order and the combination with section 35 with which I started today.

So section 17 is not an answer that permits one to say, “But whatever the material that produced a section 10 declaration, I am not involved, and therefore I should not be subject at all”, because the section 17 court is bound to say that you are a member and therefore the ground existed for the making of the control order.  One sees that from the nature of the objection review power, see paragraph 18(2)(b).  May it please your Honours.

FRENCH CJ:   Thank you, Mr Walker.

MR HINTON:   I have nothing in reply, your Honours.

FRENCH CJ:   Thank you.  The Court will again reserve its decision.  The Court adjourns to 9.30 tomorrow morning.

AT 12.33 PM THE MATTER WAS ADJOURNED