State of South Australia v Totani & Anor
[2010] HCATrans 95
[2010] HCATrans 095
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 TUESDAY, 20 APRIL 2010, AT 10.16 AM
Copyright in the High Court of Australia
MR M.G. HINTON, QC Solicitor-General for the State of South Australia: If the Court pleases, I appear with my learned friend, MR G.J. PARKER, on behalf of the appellant. (instructed by the Crown Solicitor (South Australia))
MR B.W. WALKER, SC: May it please the Court, I appear with my learned friend, MR S.J. DOYLE for the respondents. (instructed by Caldicott and Co Barristers and Solicitors)
MR S.J. GAGELER SC, Solicitor‑General of the Commonwealth of Australia: If the Court pleases, I appear with MR A.M. DINELLI on behalf of the Attorney‑General of the Commonwealth intervening. (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, on behalf of the Attorney‑General for Western Australia intervening. (instructed by State Solicitor (WA))
MR M.G. SEXTON, SC, Solicitor‑General for the State of New South Wales: If the Court pleases, I appear with my learned friend, MR J.G. RENWICK, on behalf of the Attorney‑General for New South Wales intervening. (instructed by Crown Solicitor (NSW))
MS P.M. TATE, SC, Solicitor‑General for the State of Victoria: May it please the Court, I appear with my learned friend, MS K.L. WALKER, on behalf of the Attorney‑General for Victoria intervening. (instructed by Victorian Government Solicitor)
MR W. SOFRONOFF, QC, Solicitor‑General of the State of Queensland): May it please the Court, I appear with my learned friends, MR G.J.D. DEL VILLAR and MR A.D. KEYES, on behalf of the Attorney‑General for Queensland intervening. (instructed by Crown Solicitor (Qld))
MR M.P. GRANT, QC, Solicitor‑General for the Northern Territory: May it please the Court, I appear with my learned friend, MS S.L. BROWNHILL, on behalf of the Attorney‑General for the Northern Territory intervening. (instructed by Solicitor for the Northern Territory)
FRENCH CJ: Thank you. Solicitor‑General for South Australia.
MR HINTON: If the Court pleases, I intend to proceed through my submissions in the following order. Firstly, I will put to the Court the core propositions advanced by the appellant, then I propose to take your Honours quickly to the facts of the case. They fall within a relatively small compass. Then I will deal with the Kable doctrine and take your Honours through the Serious and Organised Crime (Control) Act 2008 and then, lastly, apply this case and that Act in the Kable doctrine and bring them all together in dealing with the grounds of appeal.
With respect to the core propositions advanced by South Australia by majority the Full Court of the Supreme Court of South Australia held that section 14(1) of the Serious and Organised Crime (Control) Act, was invalid. Hopefully your Honours would have had delivered to your chambers this morning a joint book of legislation. Section 14(1), which I will take your Honours through in some detail in a moment, is to be found at page 7. Pursuant to that section the South Australian Commissioner of Police may apply to the Magistrates Court of South Australia for a “control order against a person” who is proven, on the balance of probabilities, to be “a member of a declared organisation.” A declared organisation is one that the Attorney‑General has declared is such, pursuant to section 10(1) of the Act, which is to be found at the bottom of page 5.
Consequently proof of the fact of the making of a declaration is a necessary step in obtaining a control order under section 14(1). A declaration is only made after the Attorney‑General receives an application by the Commissioner of Police under section 8. That is to be found at page 5 of the book as well. If the Attorney‑General is satisfied that the members of the organisation, subject to the Commissioner’s application:
members of the organisation associate for the purpose of organising, planning, facilitating, supporting or engaging in serious criminal activity; and
(b)the organisation represents a risk to public safety and order in –
South Australia, he may proceed to make a declaration. Those two criteria are to be found in section 10(1)(a) and (b). Invalidity, according to the Full Court, was the product of two features.
GUMMOW J: Is paragraph (a) of section 10(1) more than involvement in criminal conspiracies?
MR HINTON: Yes, your Honour, it is forward looking in its focus. My submission will be dependent upon past activities of members.
KIEFEL J: Do you mean it is wider than criminal conspiracy?
MR HINTON: Yes, your Honour.
KIEFEL J: Because it is not focused on a single plan.
MR HINTON: Yes, your Honour. It is the nature of the organisation itself.
GUMMOW J: You get that perhaps out of the words “for the purpose of”
MR HINTON: Yes, your Honour. You also get it, of course – and I will take the Court to it in a moment – when one comes to consider the factors or the various information that may be taken into account by the Attorney‑General in deciding whether or not to make a declaration. They appear at section 10(3) on page 6.
FRENCH CJ: Is there any definition of “associate” for the purposes of section 10? There is a definition for the purposes of section 14 and later on, I think, section 35.
MR HINTON: No, your Honour, there is not. The only definition is, as your Honour has picked, in section 14(8) and then section 35. Invalidity was the product of two features. The first - I refer your Honours to the appeal book at page 128, the judgment of Justice Bleby who wrote the primary judgment of the majority, and in particular paragraphs 155 to 157.
His Honour, with whom Justice Kelly agreed, held that the effect of the Control Act was that the Magistrates Court was required, in effect, to act on the certificate of the Attorney‑General – that being the declaration – that elements one and two are proved, elements one and two being sections 10(1)(a) and 10(1)(b), with no ability to go behind the declaration where the facts, the subject of sections 10(1)(a) and 10(1)(b), were significant and complex, more significant and complex than the factual inquiry required of a court on an application under section 14 where that significant and complex factual inquiry had been removed from the Court, where the Attorney‑General in making the declaration was not subject to the rules of evidence or any standard of proof where he could act on whatever information he chose and his findings were unreviewable.
GUMMOW J: Was that the State submission, unreviewable, or had that been the State submission in the Full Court?
MR HINTON: No, if your Honour pleases. At all times, the State took the position that section 41, the privative clause, was not all embracing and that it did permit review for jurisdictional error. Section 41(2), in particular, which appears in the joint book of legislation at page – again, I will take your Honours through this in detail - 41(2) is directed primarily to proceedings and therefore to an application under section 14(1) and so on an application for a control order the appellant before the lower court conceded that there was room to challenge the Attorney‑General’s declaration for jurisdictional error.
FRENCH CJ: Notwithstanding that section 41(1) purports to extend to purported declarations.
MR HINTON: Section 41(1) does, if your Honour pleases, yes. Section 41(2), however, does not. Section 41(1) now, of course, has to be read in the light of this Court’s judgment in Kirk. Section 41(2), the deliberate – in my submission – non‑use of “purported” indicative of being able to challenge for jurisdictional error, so too the use of the words “under Part 2” relying upon your Honour Justice Gummow and Justice Gaudron’s comment in Darling Casino and indeed S157 would indicate that it does not exclude review for jurisdictional error.
That was always the State’s position, and you will see, if your Honour pleases, that at two points in the judgment he refers to the fact that it is reviewable without going on to comment as to the extent to which it is reviewable.
KIEFEL J: In context, in paragraph 155, is his Honour’s point that the court is unable to undertake a merits review and determine for itself the matters necessary to a declaration, in particular whether or not members of an organisation have associated “for the purpose of organising criminal activity”, et cetera?
MR HINTON: Yes, your Honour. It is as though ‑ ‑ ‑
KIEFEL J: His Honour’s concern is the court being held out of that determination, but nevertheless having to give effect to it.
MR HINTON: Yes, and in a nutshell, that is the issue joined between the parties, the appearance. The State says it is not necessary on an application under section 14(1) for the court to be satisfied of those two facts, one and two, 10(1)(a) and (b) at all. The respondents say this declaration gives the appearance that you give your imprimatur then to something for the reasons Justice Bleby gives, untested, reviewable, but only and to a limited extent, et cetera, and that appearance is what enlivens the Kable principle taken with a number of other alterations to the common law trial or judicial process would have the effect of invalidity. That is the respondent’s case, and so your Honour neatly in a nutshell identifies the issue joined between us, the primary issue.
HAYNE J: You will no doubt come to examine more carefully what is the content of 10(1)(a)?
MR HINTON: Yes, your Honour.
HAYNE J: But when you come to do it, it may be important to recognise that the courts are attributing consequences to membership of a declared organisation in circumstances where the declaration at the least relates to what is described as serious criminal activity, that is, the courts are engaged in steps dependent upon a declaration that has some affinity with at least the subject matter of adjudication of criminal guilt.
Now, that is a very large set of issues but they are issues that are presented by the content of 10(1)(a). They are issues that are presented by the proposition that 10(1) declarations are reviewable for jurisdictional error. The flip side of that is of course that the standard against which jurisdictional error is to be measured is identifiable and it may be that we need to examine that with some care, but at some point in your submissions you will no doubt come to address those. I have interrupted you.
MR HINTON: Thank you, your Honour. I do intend to take your Honours, hopefully not too laboriously, but through the relevant provisions of the Act and I will in passing deal with your Honour’s question about the effect of 10(1)(a).
MR HINTON: Thank you, your Honour. I do intend to take your Honours, hopefully not too laboriously, but through the relevant provisions of the Act, yes, and I will in passing deal with your Honour’s question about the effect of 10(1)(a).
CRENNAN J: Into that mix one would put the definition of “serious criminal activity” because it is defined as meaning “the commission of serious criminal offences”.
MR HINTON: Yes, your Honour. That would have to be established as a fact in the course of adducing evidence of the Commissioner of Police to support an application for a declaration from which you can infer the nature of the organisation, a large part, one would have thought, it does not take much, but a large part of the evidence will be what the members had done because the organisation will take its character from what they have done.
CRENNAN J: I suppose that has to be right because the Attorney‑General has to reach a state of satisfaction.
MR HINTON: Admittedly, it will not be exclusive in that because, of course, there will also be criminal intelligence. Criminal intelligence may be ongoing investigations that had not been the subject of any proceedings in court. There may also be, because of the breadth of the language in section 10(3), the inclusion of information as to offences that occurred but were not proceeded with for one reason or another. Again, the Attorney‑General will have to reach a degree of satisfaction as to whether or not that material is relied on. I will come to deal with all that when I come to section 10(3).
I was dealing with the first basis upon which the court rendered section 14(1) invalid and I have taken your Honours to paragraphs 155, 156 and 157. What was unacceptable – to use the language of Justice Bleby – was the grafting onto the judicial Act of an administrative Act with a result that the outcome of the judicial Act was controlled to a significant and unacceptable extent. Coming back to your Honour Justice Kiefel, Justice Bleby can be read, and the appellant reads his judgment, as indicating that in his opinion, for a function such as this, facts one and two, 10(1)(a) and 10(1)(b), are facts that only a court must find.
The respondent does not go that far, with respect. They say that may or may not be the case. It is sufficient that the appearance of those facts being the act of the Attorney‑General in the context of this legislation is what gives rise or enlivens the Kable principle and gives rise to invalidity.
FRENCH CJ: I suppose another issue to be looked at when coming to the operation of the statute – again, I do not want to divert you – is the, if you like, irreducible minimum consequences required if a control order has to be made. Accepting that there are discretions in section 14, what is the least the magistrate must order? I have regard in asking that question also to the terms of section 35 and its consequences.
MR HINTON: Can I give a very brief answer to that?
FRENCH CJ: Yes.
MR HINTON: The appellant does not go so far as New South Wales. New South Wales would say you can make an order having no content. The appellant says you cannot do that. The second basis upon which his Honour Justice Bleby considered the section to be invalid is to be found at appeal book page 130. It is related to the first and, in particular, paragraphs 166 and 167. Because in the making of a declaration the Attorney-General could rely upon anything, and indeed criminal intelligence, that would not be disclosed to a member of the organisation, the Attorney-General was acting in breach of a fundamental rule of law, Justice Bleby said, namely, the hearing rule. By virtue of the Attorney in making a declaration, acting in breach of that rule, the court then, because it would rely upon the declaration under section 14(1), similarly would act in breach of that rule, the result being ‑ ‑ ‑
FRENCH CJ: Criminal intelligence can also be deployed in support of a making of a control order, can it not, by the applicant?
MR HINTON: It can, your Honour, and I will take your Honours to it; section 13(2) for a declaration and 21 for a control order. By virtue of that, the court was acting in a manner incompatible with the discharge of its judicial responsibilities and its institutional integrity was severely impaired or undermined.
The effect of the majority’s decision is then that the Kable doctrine may be invoked to render invalid a function that requires proof of certain enumerated facts, one such fact being the existence of an executive decision if that decision represents a finding of fact more complex than that required of the judiciary, more significant, not made in compliance with the rules of evidence, made in reliance upon evidentiary material not disclosed and not reviewable. Put slightly differently, and in the context of this case, the Magistrates Court of South Australia is distorted by the function required of it under section 14(1) in that it undertakes a judicial inquiry where one fact that must be proven is the existence of an executive decision.
That decision represents a finding of fact more complex, more significant than any of the other facts that the court must find on the application. That executive decision, arrived at without complying with the rules of evidence, upon evidential material not disclosed and not being reviewable and in those circumstances the court held section 14(1), the majority, invalid. I do not pause to take your Honours to the grounds of appeal at page 171 of the appeal book, but taken together they challenge those conclusions and assert that the Full Court has erred in its application of the Kable doctrine to section 14(1).
In summary, the appellant submits, on its proper construction, one, section 14(1) requires the Magistrates Court to undertake a genuinely independent and impartial adjudicative process in the making of a control order. I appreciate that that is not the end of the matter, but there is a genuine adjudicative process undertaken.
HEYDON J: Looking at a piece of paper?
MR HINTON: Proof of membership as well, if your Honour pleases. Section 14(1) - I will develop in full the elements ‑ ‑ ‑
HEYDON J:
if the Court is satisfied that the defendant is a member of a declared organisation.
That satisfaction is to be attained, and only attained, by looking at a piece of paper signed by the Attorney‑General?
MR HINTON: No, your Honour.
HEYDON J: What more is there?
MR HINTON: You will have to prove the fact of the declaration and that is a piece of paper, yes. But membership itself is not proven by that piece of paper. I will take your Honours through the sections in a moment. Membership is defined in – I am sorry, your Honour?
HEYDON J: Yes, I see what you mean.
MR HINTON: Defined in section 3. It is a very expansive – and an important point – a very expansive definition, indicating that in some cases proof of membership might follow as night does day. But in other cases it could be a particularly complex inquiry.
FRENCH CJ: It might depend on criminal intelligence not to be disclosed to the person affected.
MR HINTON: Membership?
FRENCH CJ: Yes.
MR HINTON: It might. Whether or not it invariably will ‑ ‑ ‑
FRENCH CJ: No, no, no, but the capacity is there for ‑ ‑ ‑
MR HINTON: The capacity is there, cannot deny it. Justice Bleby, in my submission, quite rightly observes that it is all the more likely that you will use criminal intelligence for the purposes of obtaining the declaration as to the nature of the organisation, by virtue of the breadth of the information you can take into account than for the purpose of establishing membership. Membership, the fact of membership, can more easily be proven by evidence that does not necessarily disclose ongoing investigations, et cetera. But your Honour the Chief Justice is quite right. It is there. The outcome of that process, my second proposition ‑ ‑ ‑
FRENCH CJ: I mean it might come from an informant, a confidential source of information to use the terms in the definition of “criminal intelligence”.
MR HINTON: Yes, your Honour, and the further you get from perhaps the centre of the organisation, the controlling minds, the obvious participants, perhaps the more likely you will get use of criminal intelligence as proof of membership. The further you get the less obvious the links without the assistance of intelligence.
My second proposition is that the outcome of an application under section 14(1) is neither controlled nor dictated. My third is that the function of the Attorney‑General, in making a declaration, and that of a magistrate in considering an application for a control order, are separate and distinct. My fourth, on an application for a control order – this is in part what I was saying to your Honour Justice Heydon – on that application, a declaration is a material fact to be proven. The fact of the declaration, as opposed to elements one and two, as Justice Bleby called them, namely the facts represented by section 10(1)(a) and 10(1)(b).
MR HINTON: My fifth proposition that the process by which the declaration is made is irrelevant. There is no commingling of function between that of the Attorney and that of the Magistrates Court. My sixth, the declaration does not operate as a conclusive evidence provision, nor is it adopted as if it were a judgment of the court or an act of the court. My seventh, the declaration does not invade the exercise of judicial power such that it gives rise to the appearance that the institutional integrity and independence of the Magistrates Court is unacceptably compromised.
GUMMOW J: Just going back a little bit, Mr Solicitor, how do you differentiate this system from Brandy’s Case?
MR HINTON: If your Honour pleases, I am not familiar with Brandy’s Case.
GUMMOW J: Footnote 76.
MR HINTON: I am sorry, your Honour. I am not familiar with Brandy’s Case.
FRENCH CJ: The registration of an administrative determination to take effect as a judgment of the Court held to be invalid.
MR HINTON: I am sorry, your Honour, yes. That was also a point your Honour made in Ex parte Macks in considering the nature of facts that intrude upon the exercise of judicial power. Your Honour in that case, as I recall, pointed to the registration of foreign judgments that are enforceable, and they are not adopted by the enforcing court. That is a central plank, in my submission. The declaration here, like those judgments, is not adopted and not enforced as if it were the finding of the court. The court is not required to make any finding as to the nature of the organisation at all on an application under section 14(1). Its responsibility is to look at the question of membership, having decided the question of membership, to decide what is the content of an order minded of the objects of the Act which are to interfere with the operations of, to put it briefly, organised crime; interfere with them by interfering with association the ability to communicate.
I turn then to the facts of the matter. As I indicated, they fall within a narrow compass. They are set out in paragraphs 4 to 11 of the appellant’s written submissions and they are accepted by the respondents at paragraph 5 of their submissions as accurate. Your Honours will also find them in Justice Bleby’s judgement at pages 89 to 90 and 100 to 102. In sum, on the 16 December 2008 the Commissioner of Police made an application to the Attorney-General in South Australia for a declaration pursuant to Part 2 of the Serious and Organised Crime (Control) Act in respect of the Finks Motorcycle Club.
On 14 May 2009, the Attorney-General made a declaration pursuant to section 10(1). A copy of the declaration coupled with the Attorney’s reasons are to be found at page 7 of the appeal book and following. I might add that the Attorney was not required to provide reasons, section 13(1) says as much, and, equally, these reasons were tabled in the House of Assembly on 14 May 2009. On 25 May 2009, the Police Commissioner applied to the Magistrates Court of South Australia for a control order against the second respondent. The application is to be found at page 1 of the appeal book. I draw your Honours’ attention, it is in a footnote in the appellant’s submissions and it is not disputed by the respondent. The application was made ex parte ‑ ‑ ‑
GUMMOW J: To the civil division in the Magistrates Court.
MR HINTON: Yes, your Honour. That is where it has been assigned by the rules of the Magistrates court. I will come to that in a moment.
FRENCH CJ: That class of application has been administratively assigned to the civil division, has it?
MR HINTON: Yes, by the court itself. Made ex parte on the basis that the argument was run before the Full Court, that being that all applications had to be made ex parte, section 14(3), which I will come to in a moment, was a power but was not a discretion. The magistrate rejected that and there is no dispute between the parties. The magistrate rejected that, however, found, and the reasons are not before your Honours, that there was good reason to proceed ex parte and did so.
The application was supported by some 14 affidavits. No criminal intelligence was provided to the magistrate. The magistrate granted the application and the control order which appears at page 64 of the appeal book with respect to the second respondent was made. Your Honours will note at about line 42, the respondent is ordered that he is prohibited from:
Associating with other persons who are members of declared organisations -
There is then an exception, and he is prohibited at line 52 from:
Possessing a dangerous article or a prohibited weapon -
That order was served on 26 May. That same day, the respondents issued a summons and statement of claim in the Supreme Court ‑ ‑ ‑
GUMMOW J: Just stopping there - the moment that control order is made, there is an attachment of section 22 and section 35, is there not, the offence provisions?
MR HINTON: Yes, your Honour.
FRENCH CJ: They depend upon service.
MR HINTON: Sorry, your Honour.
FRENCH CJ: A control order is not binding under section 16(4) until service.
MR HINTON: Correct.
FRENCH CJ: Do those other attachments of which Justice Gummow speaks depend upon service?
MR HINTON: Yes, your Honour. The time does not run for the notice of objection under section 18.
GUMMOW J: We are not worried about notice of objection. We are worried about the offence provisions. Could there not be an offence in the meantime?
MR HINTON: You could not commit the offence under section 22(1), because the control order does not commence until service is effected. Turning to section 35, that is a more difficult question.
GUMMOW J: Section 16(4) says it “is not binding on the defendant”.
MR HINTON: Yes, your Honour.
GUMMOW J: So that seems to link up with section 22. Section 35 may be more difficult ‑ ‑ ‑
MR HINTON: Section 35 gives no indication as to the temporal commencement.
BELL J: What is required to be served is the order. The order prohibits association with persons who are members of declared organisations. That is a broader category than persons who are members of the organisation, the subject of the declaration relating to the organisation of which the respondent is a member. How does a person come to know the scope of the order in terms of who are members of declared organisations?
MR HINTON: There is no provision for the service of an order on anyone other than the person subject of it.
BELL J: I appreciate that, but that person is prohibited from associating with other persons who are members of declared organisations.
MR HINTON: Yes, your Honour.
BELL J: How does the person know the scope of that order in the sense of what are declared organisations, apart from, arguably, the organisation of which it is said he or she is a member?
MR HINTON: That raises a question that did occupy the Full Court for some time and that is must the order identify who the members are at the particular time of the making of the order?
BELL J: All right, and that remains open?
MR HINTON: That remains open, that question, yes. Equally that arises from section 14(5). It is not just the members. It is also which declared organisations, because theoretically you could have a number of organisations declared at a particular point in time.
FRENCH CJ: The subject of the control order would need to pay close attention to the Government Gazette of South Australia.
MR HINTON: Your Honour is quite right and Justice Bleby - that was one of the things that occupied his mind. You could, in effect, amend the order by the Attorney‑General’s fiat, by a future declaration. Hence his Honour, for the sake of interpreting the legislation consistent with validity, held that it must be declarations as made at the time. Coming back to your Honour Justice ‑ ‑ ‑
FRENCH CJ: How does that prohibition intersect - that is the prohibition from associating with other persons or members of declared organisations, with the prohibition in section 35(1), which of course is directed to other people, and prohibits them from associating with a person who is a member of the subject of the control order? Presumably that must have some flow‑over also to the subject of the control order himself, because if the subject of the control order invites association from another person, then he would be guilty of an accessorial offence in relation to section 25, would he not?
MR HINTON: Your Honour is quite right.
FRENCH CJ: That is communication the seventh time, for example, by text.
MR HINTON: Yes, not unknown elsewhere, for example, restraining orders.
FRENCH CJ: This is with everybody anywhere in Australia. This says it has “Extra‑territorial operation”, has it not?
MR HINTON: In subsection (5) I think it says yes, to the extent of the power of South Australia – (6). Your Honour, Justice Bell, my learned junior has just pointed out to me it might ‑ ‑ ‑
GUMMOW J: What does this expression in section 6, “this Act apply”, mean?
MR HINTON: That is the extraterritorial application, yes.
GUMMOW J: What parts of the Act? Does section 35 include persons who associate in New South Wales?
MR HINTON: The answer to that question depends upon there being a sufficient territorial nexus between the offence and the State.
GUMMOW J: I know.
MR HINTON: The authority for that in this Court, as I understand, is Lipohar v The Queen, and indeed the legislative provision is to be found in section 5G of the Criminal Law Consolidation Act (SA).
FRENCH CJ: Presumably that would be supported by reference to the requirement before the Attorney‑General makes a declaration that he be satisfied:
the organisation represents a risk to public safety and order in this State.
MR HINTON: Yes, your Honour.
FRENCH CJ: Once you have that then on that basis the Act would seem to assert a prohibition applicable to anybody anywhere in Australia associating with - in the broad sense that is defined, for example, in section 35, with the person, “the subject of a control order”.
MR HINTON: Yes, your Honour.
CRENNAN J: At page 66 of the appeal book on the second page of the control order you have a description of the “declared organisation” as being “the Finks Motorcycle Club operating in South Australia”.
MR HINTON: Yes.
CRENNAN J: That suggests a limitation in relation to the declaration.
MR HINTON: Yes, your Honour. But, again, when it comes to the extraterritorial effect it is not too difficult, especially in the realms of the conspiracy, to contemplate a situation where a person subject to the control order is meeting with the members of another chapter, an interstate chapter, somewhere interstate and as part of a police operation observation is made. That may well be one of the six occasions where he or she associates for the purposes of section 35.
What I was going to point out – at first blush it seems like that is rather unusual but when one considers the nature of organised crime, the connections that the sorts of organisations for this legislation is targeted at, the connections that they had both interstate and internationally, then it is not so unusual, just like the offence of conspiracy at common law that an act would extend to steps taken in the way of consorting that have a sufficient nexus with the territory of South Australia.
Justice Bell, I was going to point out to you that there is, of course, a defence in section 35(2), lack of knowledge, softening the blow of section 35(1) and, as I recall, there is a similar defence in section 22(2). So whilst at first blush, how do you know? Well, if you do not know, that is a defence. I was at the point where I was setting out for your Honours that on 26 May we had the summons and statement of claim issued by the respondents. You will find those reproduced at pages 70 and 74 of the appeal book. I will not pause to take your Honours to them. What was sought was a declaration of Parts 2 and 3, 2 being the part under which the declaration is made and Part 3, that concerning control orders or, in the alternative, just section 14(1) were invalid or inoperative.
On 4 June, so post that 26 May date, the Commissioner of Police applied for a control order with respect to the first respondent. A copy of the application for that control order appears at page 4 of the appeal book. That application has been stayed pending the outcome of the proceedings in the Full Court and now these proceedings. Upon receiving the summons and statement of claim, a single judge of the Supreme Court of South Australia reserved four questions under section 49 of the Supreme Court Act for the consideration of the Full Court. Those four questions are to be found at page 84 of the appeal book, paragraph 12. That document is the actual document reserving the questions. The four questions, paragraph 12 on page 84:
(1)Is section 10(1) of the Act a valid law of the State of South Australia?
(2)Is the declaration by the Attorney‑General referred to in paragraph 6 of the Statement of Claim void and of no effect?
(3)Is section 14(1) of the Act a valid law of the State of South Australia?
(4)Is the control order in respect of Hudson made on 25 May2009 void and of no effect?
On 25 September 2009, a majority, as I have said, of the Full Court held that section 14(1) offended the Kable doctrine. They answered the third question in the negative and the fourth in the affirmative. The majority considered it unnecessary to answer the first two questions. The order of the court is to be found at page 160 of the appeal book. Page 162 is where the orders are set out. That completes what I wanted to say on the facts in this matter.
I turn then to the Kable doctrine. At paragraphs 20 to 29 of our written submissions we have set out in detail our submissions with respect to the content and application of the Kable doctrine. I do not intend to go through it; I rely upon what we have written. The question for this Court is perhaps, with respect to my learned friends, best put by them at paragraph 2 of their submissions, does subsection 14(1) of the Control Act, when considered in the context of the legislative scheme as a whole, so compromise the appearance of independence of the Magistrates Court of South Australia from the political arms of Government as to render the Magistrates Court unsuitable for the exercise of federal judicial power. In my submission, that is the question your Honours are concerned with on the hearing of this appeal. I pause to note, your Honour the Chief Justice in K‑Generation made clear that the task:
is not unlike that involved in deciding whether [or not] a body can be said to be exercising judicial power.
That transcends purely abstract conceptual analysis and inevitably attracts consideration of predominant characteristics together with a comparison of the historic functions and processes of courts of law. I quote from your Honour at paragraph 90 of K‑Generation 237 CLR 501. That leads me to a close assessment of the Serious and Organised Crime (Control) Act. In introducing that Act, may I first invite your Honours to consider the mischief and the purpose it was intended to address as revealed in the Attorney‑General’s second reading speech accompanying the progression of the legislation through the South Australian Parliament.
That second reading speech is reproduced in the joint book of legislation commencing at page 29 through to page 42. I invite your Honours to look at page 29 where the mischief is identified from about point 5, the paragraph beginning, “In 2007 outlaw motorcycle gangs” over to the end of the first paragraph on page 30. I emphasise the opening two sentences of the paragraph commencing “Although”:
Although comprising a small proportion of the state’s population, outlaw motorcycle gang members and associates commit a disproportionate number of serious crimes. Outlaw motorcycle gang crime affects all levels of society. It is varied in scope, expertise, sophistication and influence . . . pose a risk to public safety. Outlaw motorcycle gangs are increasingly infiltrating legitimate industries and using professionals to insulate their criminal activity from law enforcement.
The Attorney‑General then sets out, in broad terms, an outline of the contents of the Act. With respect to the purpose of the Act, as opposed to its mischief, I invite your Honours to consider page 30 at about point 6, the paragraph commencing “This legislation”. There is an acknowledgement that the legislation “grants unprecedented powers”. In the following paragraph, there is professed the intention to “disrupt and restrict the activities”. “However, the Bill makes clear that” in doing so it does not intend to derogate from people participating “in advocacy, protest, dissent or industrial action”.
GUMMOW J: Do you rely on what the Attorney said on page 31 of these materials, at about point 6:
A privative clause will try to protect the Attorney‑General’s decision from the full rigour of judicial review.
I do not hold out much hope of this preventing all judges substituting their own decisions on declared organisations for those of the elected Government.
Is that the view of those instructing you? It is not an amusing question either?
FRENCH CJ: It shows a fine contempt for the judiciary.
MR HINTON: I do not rely upon it. I have made my submissions with respect to section 41 and the operation of that section, and my submission is that section 41(2) implicitly does not take from the Magistrates Court the power to collaterally challenge for jurisdictional error. I do not rely upon it, if your Honour pleases.
GUMMOW J: What is the purpose of taking us to the Attorney’s speech, rather than to cherrypick it?
MR HINTON: That comment itself is not one that sets out the purpose nor the mischief that the Act is intended to address. My intention in taking your Honours to the second reading speech ‑ ‑ ‑
GUMMOW J: It sets out the Attorney’s view of the mischief as he saw it sought to be met by section 41.
MR HINTON: Section 41, yes, it does. I do not rely upon it. At the moment my submissions are taking your Honours to the purpose for the Act as a whole and not in the course of interpreting any specific provision. So, with respect, it is not my intention to cherrypick at all. That statement is there, not hidden, not excised, but I am taking your Honours to the intention behind the process in obtaining a declaration, and more importantly, what was intended to be achieved by obtaining control orders.
On page 31, just above the paragraph that your Honour pointed out, there is there set out a purpose that a declaration is designed to achieve, the paragraph “A declaration”. Importantly of itself, it imposes “no direct punishment on an organisation or its members”. At the bottom of the page is set out the purpose of control orders. They will be used “to break up associations that further serious criminal activity”.
FRENCH CJ: At page 31, just before the reference to the privative clause, the statement that:
the new consorting offence will prohibit a person associating or communicating with a member of a declared organisation.
Can we take that to be a reference to section 35?
MR HINTON: Yes, your Honour. The new consorting offence, and its substitution for the old, is discussed at page 33. You will see a subheading on the third line there, “New offence of criminal association”. As you move down about six lines, you will see there is set out the old offence of consorting, and then reference to the new offence which is contained in section 35.
Can I then take your Honours back to section 14(1) and begin to track through this Act. Section 14(1) stands in contrast to section 14(2). They are two different ways to obtain a control order. Subsection (2) does not involve proof of the declaration, save if the applicant is attempting to get an order under section 14(2)(a)(i), but the declaration is not central there.
Here, we are talking about section 14(1). In my submission, four facts must be proven to the satisfaction of the magistrate on the balance of probabilities. Just going back to section 5 – sorry, no, I do not take your Honours to section 5 – that must be proven to the satisfaction of the court. They are that a valid declaration has been made, that such declaration relates to an identified organisation, that that declaration is current and that the defendant is a member of that organisation within the meaning of the Act.
If each of those four elements is proven, and I take your Honour Justice Heydon’s point, that the first three may be no more than tendering a piece of paper, but if each of those four elements are proven, then the court must – it is mandatory – make a declaration order. It is clear then, that the making of a declaration is necessary to obtaining an order under section 14.
Can I leave the obtaining of the control order component for a moment and then take your Honours back to the obtaining of a declaration. Under section 8, page 5 of the booklet, section 8(1):
The Commissioner –
defined in section 3 as the Commissioner of Police –
may apply to the Attorney‑General for a declaration under this Part in relation to an organisation.
“Organisation” also defined in section 3 on page 4. Under section 8(2) there is listed the content of the application. The grounds referred to in section 8(2)(c), in my submission, will reflect section 10(1) and (4) being the grounds upon which a declaration can be made. Sorry, (1) and (4) inform ‑ ‑ ‑
GUMMOW J: When you point to section 8(2), Solicitor, which says that the application must have certain characteristics, assume it does not, what happens?
MR HINTON: A point raised before the Full Court, the Full Court decided, that is potentially a question giving rise to jurisdiction and the magistrate can determine whether or not there is a valid application. A final decision not made. But again, the point that Justice Bleby made in his judgment was the fact that that argument is there highlights the adjudicative process that must be undertaken.
FRENCH CJ: What is the nature of the jurisdiction that a magistrate exercises in determining upon the validity of the declaration?
MR HINTON: On the validity of the declaration?
FRENCH CJ: Having regard to section 41. What is the nature of the jurisdiction which a magistrate would exercise in making a decision as to whether the declaration was valid, having regard to section 41?
MR HINTON: It would be, in my submission, the same, in effect, as an application for one of the prerogative writs for jurisdictional error. Was the declaration within power?
FRENCH CJ: You say the magistrate has to be satisfied that there is a valid declaration as part of the things at which the magistrate has to be satisfied in making a control order. In exploring the question of validity, what is the nature of the jurisdiction that the magistrate exercises? It is not a prerogative writ.
MR HINTON: No sorry, your Honour.
FRENCH CJ: It is not the Supreme Court and he or she has section 41 to contend with.
MR HINTON: Sorry, I misunderstood your Honour. It is a jurisdictional fact that must be established to the magistrate’s satisfaction.
FRENCH CJ: What, the fact of the declaration?
MR HINTON: Yes, your Honour, proof of the fact of the declaration and that can be achieved ‑ ‑ ‑
FRENCH CJ: But the magistrate cannot look behind the declaration, is that right? Or do you say that the magistrate can look behind the declaration?
MR HINTON: The submission is that the magistrate can look behind the declaration to the extent that he or she can satisfy themselves that it is a valid exercise of power.
KIEFEL J: The magistrate will not normally have the Commissioner’s application for a declaration.
MR HINTON: No, a presumption of regularity, your Honour, upon proof of the Gazette notice.
KIEFEL J: That is right. So what does the magistrate do? The magistrate, if he or she thinks it is appropriate, asks for a copy of the application and the accompanying material to determine whether or not there has been an error of law.
MR HINTON: No, with respect, the magistrate would act upon the Gazette notice which would be a presumption of regularity, proof of the fact of the declaration.
KIEFEL J: So how would even the review in relation to jurisdictional error ever arise?
MR HINTON: The respondent could contest, for example, the matters of time. There is a strict requirement in section 9 and a command in section 10(2) with respect to time. For example, if the declaration was made and the time requirements for 28 days for public submissions breached it would not be a valid declaration.
KIEFEL J: Is there any requirement that the application and some of the supporting material, that is the application by the Commissioner for a declaration, is to be served upon the person who is the subject of an application for a control order?
MR HINTON: No requirement.
KIEFEL J: They do not receive a copy of it?
MR HINTON: No requirement. No, your Honour. The rules of procedural fairness, however, would apply. The State’s position has always been that the Act does not abrogate the rules of procedural fairness.
KIEFEL J: How would they apply if there is a presumption of regularity in relation to the declarations? They would apply in any event?
MR HINTON: Just to go back, is your Honour speaking about the declaration or the application for a ‑ ‑ ‑
KIEFEL J: I am speaking about the person who is the subject of an application for a control order and what documentation in relation to the making of the declaration that they are entitled to and would be given.
MR HINTON: On the application for a control order there is no compulsion to give anything that supported the making of the declaration. On the making of a declaration or in the course of making a declaration the rules of procedural fairness apply and so, save criminal intelligence members of an organisation - and it will be necessary for the Police Commissioner logically to identify them - will be given the opportunity to respond to the material provided by the Police Commissioner in support of his action. So there you get it but you do not get it ‑ ‑ ‑
KIEFEL J: Members known because the definition of “membership” for the purpose of later control orders under section 3 is very wide, as you pointed out.
MR HINTON: Your Honour is quite right and so it will be limited to those identified by the Police Commissioner and indeed in this case ‑ ‑ ‑
KIEFEL J: So the upshot is a person the subject of an application for a control order may or may not have had any previous notice of the application for declaration and may or may not have any of the documentation relating to it.
MR HINTON: Yes, your Honour, if you became a member after the date of the declaration, you would never have been provided with anything until you were met by the application for a declaration.
HAYNE J: Regardless of those questions of timing, important as they may be, the major premise for the application of a restriction on freedom, which follows from section 14, is determined by the Attorney. The minor premise of membership is determined by the Court. Is that right?
MR HINTON: Yes.
HAYNE J: The major premise, the characteristic of the organisation, is a premise whose content has yet to be explored in the course of argument, as I understand, and I am not for a moment suggesting this critically, but the content of the major premise is, as the statute, as the second reading speech, make quite plain, criminality, a subject matter which might be identified as representing a central concern of the judicial system. Commissioned of criminality is something which is ordinarily determined by the judicial process.
MR HINTON: Determination of guilt and punishment, yes.
HAYNE J: Hence my reference to not penal consequences, but consequences described, I hoped, in neutral terms as a restriction on freedom, which is the consequence of section 14. There is a restriction on freedom.
MR HINTON: The consequence of a declaration under section 10 by virtue of section 35.
HAYNE J: Just so.
MR HINTON: But not unknown, for we have long had consorting offences, as the Solicitor‑General for Queensland.
HAYNE J: Yes. Consorting offences where the notion of whether you had consorted with reputed thieves, prostitutes, et cetera, was determined within the judicial process, and consorting offences which I – my memory may serve me ill, Mr Solicitor, because it is a little while ago, but I thought generated not a little controversy in the late 1970s about the desirability of such legislative processes.
MR HINTON: They did, and we saw them done away with. Determined in the judicial sphere but, of course, who shall not consort determined legislatively, reputed thieves, prostitutes. What section 14 does in the way of a command – or the declaration – is no different; it identifies a class by virtue of what they have done before, their criminality.
HAYNE J: It says, in effect that (a) and (b) are to be treated as – the comparison would be as the reputed thieves or prostitutes or other definition, et cetera.
MR HINTON: Yes, your Honour. Again, nothing new about that, with respect.
CRENNAN J: It is important that “serious criminal activity” means the commission of serious criminal offences, that is to say, one reading might be “commission” refers to the past tense, that is, guilt has been adjudged already.
MR HINTON: If one looks at section 10(3), your Honour Justice Crennan will see the range of information that the Attorney‑General can take into account; 10(3)(b) criminal convictions recording past behaviour of current or former members, persons who associate.
CRENNAN J: I notice (c) has the proviso, “whether or not such involvement has resulted in any criminal convictions”.
MR HINTON: Yes, your Honour.
FRENCH CJ: And “serious criminal activity” I notice in the definition also picks up “summary offences of a kind prescribed by regulation”. Are there such offences?
MR HINTON: Yes, there are, your Honour, and a copy of the regulations should have been circulated to the Court this morning.
FRENCH CJ: I see. It is not in the ‑ ‑ ‑
MR HINTON: I am sorry, your Honour, it is not in the book. You will see regulation 4, “Serious criminal offences” and for the purposes of section 35, regulations 5, 6 and 7 are important.
FRENCH CJ: Just before we get off the conditions necessary for a control order to issue under section 10, you have emphasised, I think, that the person the subject of the control order is a member of the organisation.
MR HINTON: Yes, your Honour.
FRENCH CJ: I notice the definition of “member” picks up prospective members and associate members. What is an associate member?
MR HINTON: Neither “prospective” nor “associate member” are defined.
FRENCH CJ: No.
KIEFEL J: I suppose in the context of clubs it could be a spouse.
HAYNE J: Perhaps not.
MR HINTON: One answer is as provided by the Attorney‑General, as I recall, in his description of the membership of the Finks Motorcycle Club. I think that is at pages 22 and 23.
FRENCH CJ: This is of the appeal book?
MR HINTON: Yes, your Honour. If one looks in particular at the process for becoming a member, paragraph 70, I do not need to read it to your Honours, but there is a process where we have a nom. A nom, one would submit, includes a prospective or an associate member. Can I just make one more submission on the question of past criminality and criminal intelligence. One of the difficulties experienced by law enforcement with organisations such as this is effectively infiltrating and prosecuting to a successful outcome. Their power makes that particularly difficult. Their ability to intimidate such that you cannot get witnesses and evidence makes that particularly difficult.
That does not mean, granted, that we throw out all those protections that the law gives us, but equally it does not mean that we should jettison evidence that tells us if it is validated about the nature of these organisations despite the fact that there has been no criminal conviction proven because a witness is too scared to come to court or will not give evidence. It is not giving evidence from the bar table to make that observation, it is well known, and hence the breadth of information that can be taken into account.
Hence also the importance of being careful in what weight you give to the material. It is an important consideration. The part of the power of these organisations is such that the traditional process that has all the protections does not invariably work and so there is fertile evidential material there that we should have regard to provided it can be verified and is safe without necessarily obtaining a conviction. I was at section ‑ ‑ ‑
CRENNAN J: But one danger mark be that the evidence answers to the description of being too vague to generate a state of satisfaction of the kind that is necessary for section 10.
MR HINTON: That is a danger.
CRENNAN J: I suppose if a person wishes to not accept a presumption of regularity in relation to the application or wishes to contend that the section 10 declaration is impaired in some way, the normal course would be to issue a subpoena in relation to the relevant materials in support of either the application or the declaration and subject to considerations of public interest immunity, they would have to be provided for the purposes of a collateral attack.
MR HINTON: Yes, your Honour, and then like the situation where that is done, in answer to a claim for public interest immunity, you are indeed perhaps making submissions with one hand tied behind your back, but you have the judicial safeguard. Can I also point out that when it comes to the application for a declaration, section 8(2)(f), in part, important with respect to the interchange some moments ago between your Honour Justice Crennan and I, an affidavit “verifying the contents of the application”. It is through the police affidavit verifying the content – sorry, the statutory declaration.
KIEFEL J: Yes, it is not an affidavit, is it?
MR HINTON: No it is not, your Honour, granted, but, of course, the Attorney-General is not at court, so no power to punish for contempt, the value of an oath not there, but still the requirement that it must be verified, intending to provide comfort. In this case, in the reasons you will see the Attorney discusses information provided to him by police of the way in which they go about verifying and attributing a value to their informants, a value that translates into the extent to which they are reliable.
KIEFEL J: I notice under section 10(3)(e) that members of the public may make submissions.
MR HINTON: Yes, your Honour.
KIEFEL J: How is that information verified?
MR HINTON: It commences with section 9, if your Honour pleases:
If the Commissioner makes an application . . . the Attorney-General must publish a notice in the Gazette and in a newspaper circulating throughout the State.
That notice must contain the information set out in placita (a) and (b), and 28 days must be permitted for the public to respond.
KIEFEL J: So the Attorney‑General was undertaking something in the nature of an inquiry, is that right?
MR HINTON: Something in the nature of an inquiry, yes, your Honour; inviting submissions from the public, yes. Your Honour will also see section 10(2) the command that no declaration may be made until such time as that period in section 9(b) has expired. Hence, my answer to one of your Honour’s questions earlier, what could you do about this declaration, one answer is to say, well, the 28 days did not expire.
KIEFEL J: What matters could members of the public inform the Attorney‑General about which would be relevant to the making of a declaration? Is this coming forward with evidence, that sort of thing, is it?
MR HINTON: It can be. It can be both positive and negative. There may be some concern about who an associate is and if I continue to associate with them, there may be some submission as to the nature of an organisation because – I alluded to it quickly – section 10(4) makes clear that it is not necessarily the case that the dominant purpose of the organisation must be as set out in 10(1). It is sufficient if a significant group within the organisation use the organisation for those purposes. Coming back to the question of membership then, and perhaps more the content of an order, when you are dealing with someone who is an associate member ‑ ‑ ‑
GUMMOW J: Just before that, section 9(b) is linked with section 10(3)(e), is it not?
MR HINTON: Yes, your Honour, it is. I was going to move on to the question of what notice do persons potentially adversely affected by the making of a declaration get. I have dealt with that in the course of the interchange with your Honours. There is no specific requirement. It is contemplated perhaps by section 13(2), which is the restriction on the dissemination of criminal intelligence. My submission has been, and the Attorney’s position has always been, that the rules of procedural fairness apply to him and, as per the interchange between myself and Justice Kiefel, those rules would require that where the Attorney becomes aware of a person adversely affected, such as a named member on an application for a declaration, they will be provided with information adverse with the exception of criminal intelligence.
FRENCH CJ: Just going back for a moment to the character of the function that the Attorney‑General undertakes under section 10, the first condition (a) has an element of fact finding about it, fact finding in relation to criminal activity. Maybe there might also be issues of law involved in that, both as to the interpretation of (a) and as to the question whether the purpose of association is to plan, facilitate, support or engage in something which falls within the scope of some of the offences covered by the term “serious criminal activity”. So the second aspect, (b), seems to be an evaluation of risk, and it does not put any lower threshold on that, and then there is a third function, is there not? There is a discretionary element by the use of the word “may”. What sort of considerations inform the exercise of that discretion?
MR HINTON: Largely the same information that would be considered as part of determining the nature of the organisation and whether or not it represents a risk. If you arrive at a conclusion that the organisation is such as described in (a), and represents a risk to public safety, then the only, perhaps, factor that may stop you making a declaration is that in order to deal with that risk a declaration is not what is required. If you have got ‑ ‑ ‑
FRENCH CJ: Maybe you might take the view, for example, that there is a risk, but it is not a risk which justifies the, if you like, imposition of this draconian regime on an organisation and/or possibly on individuals associated with it, and others.
MR HINTON: Yes, your Honour, you have a residual discretion to decide whether or not that order will achieve, and I have not taken your Honours to it, but the objects of the Act which are set out in section 4, and I should have taken your Honours to the objects of the Act in opening:
to disrupt . . .
(i)organisations . . . and
(ii)the members and associates of such organisations; and
(b)to protect members of the public ‑ ‑ ‑
HAYNE J: May I take you back to your submission about procedural fairness?
MR HINTON: Yes, your Honour.
HAYNE J: As I understand it, you say that the Attorney is bound to afford procedural fairness. Is that right?
MR HINTON: Yes, your Honour.
HAYNE J: What would the content of that be having regard, for example, to what appears at page 25 of the appeal book, paragraph 82? You see a record of an analysis conducted by South Australian police. Would procedural fairness require the Attorney to give notice to any or all of the persons who are the subject of those three bullet points in paragraph 82 and say “South Australian police tell me that you were convicted of, in these circumstances”. Do you have anything to say about that?” What exactly is the content, relevantly?
MR HINTON: They must be notified individually of the application by the Commissioner for a declaration. They must be notified that that application, in part, relies upon their activity. They must be provided with an opportunity to answer the evidential material adverse to them. Your Honour will see the steps that the Attorney undertook set out at page 11 of the appeal book and that was the very process that was undertaken. That was undertaken with respect to the 46 known members identified by police.
So, as your Honour Justice Kiefel pointed out, if you subsequently become a member, you will not have the benefit of being provided with any of this material. If you are considered a past member or no longer a member by the police and not included, then you will not have the benefit of it. But to the extent that you are considered a member or an associate member within the definition and your involvement is relied upon as part of characterising this organisation, then you will be notified individually and given the opportunity to respond. In one respect, of course, you will not and that is criminal intelligence.
With respect to criminal intelligence and the application for a declaration, may I take your Honours to section 13 and, in particular, section 13(2), with respect to information that one can cross‑refer, to sections 8(2)(d) and 10(3), referring to the nature of the information provided to the Attorney‑General “for the purposes of this Part” implicit that it is provided to the Attorney‑General in support of an application for a declaration. The review under Part 6, your Honours will find that at pages 22 and 23 of the Act, I will not take your Honours to it, but the application of the Act is reviewed by a retired judge every 12 months and, indeed, there is a sunset clause in section 39.
This provision is virtually identical to that of section 28A(1) of the Liquor Licensing Act that this Court considered in K-Generation. Accordingly, when my learned friends say here the Attorney‑General is dictated to by the Commissioner, with respect, that is not the case. The Attorney‑General is permitted or must, in fact, satisfy himself that facts existed sufficient to found the Commissioner’s expectation as to the nature of the material. There I refer to your Honour the Chief Justice’s judgment in K‑Generation at paragraphs 62 to 63 and the joint reasons at paragraph 136. The definition of “criminal intelligence” appears in section 3 and again is the same as this Court dealt with in K‑Generation.
It follows then that like the like the Liquor Licensing Court, where criminal intelligence is provided to the Attorney‑General, he must be satisfied that it was reasonably open to the Commissioner, or his delegate, to be satisfied that the material should be classified as criminal intelligence. That occurred in this case. Your Honours will see that at pages 13 to 15 of the appeal book.
I turn then to the Attorney‑General’s decision. We have trawled through section 10(1) and the definitions of “serious criminal activity”, “serious criminal offences” and, indeed, those prescribed under the regulations. I have alerted your Honours to the expansive definition of “member” contained in section 3, and the fact that an associate or prospective member is not defined.
May I take your Honours to section 10(3), again touched upon in passing. It sets out the nature of the information that the Attorney‑General may take into account. I point out that the nature of the information is the information set out as supporting the grounds on which the declaration is sought, referred to in section 8(2). It is, therefore, the information that is verified by the police by statutory declaration under section 8(2)(f).
May I take your Honours then to section 10(4), and again I have touched upon it in passing. It is not necessary that the sole purpose of the organisation meet the descriptor contained in section 10(1)(a). It is not necessary that all members associate for the purpose set out in section 10(1)(a). Section 10(4)(a), (b), and (c), in my submission, are not cumulative.
GUMMOW J: Mr Solicitor, I think it would follow from the view taken by the majority in Thomas v Mowbray that the sort of exercise required by section 10 of the Attorney‑General could be committed to a court exercising federal jurisdiction despite what one might say is the rather broad expressions of criteria.
MR HINTON: Agreed.
GUMMOW J: But Justice Callinan, I think, in Thomas v Mowbray, put his finger on an important point at page 508, paragraph 599, when explaining why he thought 104.4 was valid in the legislation under review there, namely - well you will see what his Honour says, and the contrast he drew in the middle of 599 was executive conduct. At the end of the day, the considerations manifested in Justice Callinan’s reasons, I think, play into this case. That is what is worrying me at the moment. It is all very well for the Attorney‑General to say, “Maybe satisfied of this, maybe satisfied of that”, the question is, who then judges the Attorney‑General’s determination and satisfaction, if any, where the consequence is a curtailment of personal liberty?
MR HINTON: Where are the safeguards. The first is procedural fairness to the extent that it applies. It is modified by section 13(2). The second safeguard is the Supreme Court, the ability to have the decision reviewed.
GUMMOW J: For what?
MR HINTON: Jurisdictional error.
GUMMOW J: Including?
MR HINTON: Breach of procedural fairness, excessive power, in particular, time limits. Section 41(1) must be read subject now to this Court’s decision in Kirk. Thereafter the fashioning of the order itself is an important safeguard. The order upon a section 14 application being entertained need only restrict to the extent necessary to achieve the objects of the Act. That will require a consideration of the individual before the court and the extent to which the evidence reasonably supports a restriction upon their liberty.
That is particularly important where you are dealing with an organisation the dominant or the sole purpose of which does not satisfy section 10(1)(a). If it is not its dominant purpose, then is this one of the people that contributes to the purpose that does satisfy section 10(1)(a)? If it is not, then we cannot make no order because of the must but we have to minimise the extent to which that person’s liberty is interfered with by keeping them away from the controlling minds, as it were.
So there is procedural fairness; there is the check by the Attorney on the use of criminal intelligence, although that itself perhaps cannot directly be reviewed, and there is the power to review the declaration. Therein lie safeguards. You could add the 12‑monthly review that I just touched upon required by a retired judge. I was next going to take your Honours to section 10(4).
KIEFEL J: Just before you do, I see that in the orders sought in the notice of appeal that you seek an answer to the question whether section 10(1) is a valid law in the affirmative; appeal book 172.
MR HINTON: Thank you, your Honour. It is framed in those terms. That would not be necessary. All that is really required is an answer to the two questions that the Full Court considered and provided answers to, namely, is section 14(1) valid and is the order made against the second respondent valid?
KIEFEL J: Section 10 might throw up different questions.
MR HINTON: Yes, your Honour.
KIEFEL J: The operation of section 10 does not depend upon the making of any control order. Section 35 attaches to a declaration under section 10, does it not?
MR HINTON: It does, your Honour. That was the purpose ‑ ‑ ‑
KIEFEL J: We may or may not be completely in the Kable area when we are talking about section 10?
MR HINTON: Your Honour is quite right and that was the purpose of including the Serious and Organised Crime (Unexplained Wealth) Act. I do not intend to take your Honours through it at all, but the declaration, or a person subject of a control order, does have a role to play with respect to triggering investigations under that Act. That is proof of the pudding, as it were. It shows that section 10 has an application beyond section 14.
FRENCH CJ: Section 35(1)(a) links back to section 10?
MR HINTON: Yes, your Honour.
FRENCH CJ: That is, even absent the control order, it is an offence for a person to associate:
on not less than 6 occasions during a period of 12 months, with a person who is –
(a)a member of a declared organisation –
which, of course, then brings in that very broad definition of “member”.
MR HINTON: Yes, your Honour. I took your Honour Justice Kiefel to be saying, does that question arise in the context of this appeal minded of the broader ‑ ‑ ‑
KIEFEL J: No, my point was that you have raised it.
MR HINTON: Yes, and my answer is ‑ ‑ ‑
KIEFEL J: You might want to address it on wider parameters than just its connection with section 14, since it has been raised.
MR HINTON: If your Honour pleases, I would apply to amend that paragraph 4 so that this Court only addresses the two questions the Full Court did, namely, 4.1.1.3 and 4.1.1.4. My application then is to strike the answers with respect to the first two questions; those are, is section 10(1) of the Act a valid law and is the declaration by the Attorney‑General referred to void and of no effect? That is my application, if the Court pleases.
GUMMOW J: Section 10 is linked into section 14 and if it is the character of section 10, for example, which produces a result that impeaches section 14, where will that leave section 35? In other words, the attachment of 10 to 35 may be a factor which helps impeach 10 in its connection to 14. So the linkage between 10 and 35 may be relevant in considering the linkage between 10 and 14. You are right that there is no question asked about the validity of 35, but it may be collateral damage caused by determining the validity of 14 by particular consideration to 10.
MR HINTON: The link between 10 and 35 exists, as your Honour said, independent of section 14. It does not, in my submission, where the attack is on section 14, in any way contribute to the argument that the appearance of the independence of the Magistrates Court is affected by virtue of the link between sections10 and 35 on hearing an application under section 14. It is a question for another day.
FRENCH CJ: This takes me back to the question I think I put to you earlier on about the irreducible minimum consequences which must attach to a control order. One of those, of course, is the exposure of other persons to liability and potentially the subject of the control order to accessorial liability by reason of section 35(1)(b).
MR HINTON: But having the benefit of the defence under 35(2). Indeed, assuming you are not ‑ ‑ ‑
FRENCH CJ: You have to know the person was a subject of a control order, yes.
MR HINTON: Yes, your Honour, and assuming you are not one of the exceptions under section 10 ‑ ‑ ‑
GUMMOW J: Or be reckless.
MR HINTON: Yes, your Honour.
GUMMOW J: Knowledge or recklessness.
FRENCH CJ: You can prove that you had “a reasonable excuse for the association” under subsection (7). What a reasonable excuse is, I am not sure, but it is not one of the enumerated exceptions in (6).
MR HINTON: Yes, your Honour. The consequences are not, with respect, quite so draconian. There are defences and, indeed, there is room for exceptions within the content of the control order itself.
FRENCH CJ: The control order - the exceptions in the control order do not operate to narrow the width of the section 35 prohibitions, do they? This is the irreducible minimum question coming back again, really. Section 35 does not seem to depend upon the content of the control order.
MR HINTON: Yes, your Honour is correct, whereas, of course, the exception would assist for the purposes of section 22.
FRENCH CJ: Yes, indeed.
MR HINTON: I have taken your Honours through section 10(4). The declaration is made, section 11 requires that it be published in the Gazette. Section 12 empowers the Attorney to vary or revoke the declaration. That too must be published in the Gazette. Section 13(1), no reasons are required, reflective of the common law position, although they were given in this case, and then 13(2) is the criminal intelligence provision with which I dealt.
So the effect of a declaration is that it is a fact to be proven as part of an application under section 14(1). It is a fact to be proven as part of an application under section 14(2)(a) but we are not concerned with that. It renders members liable to conditions under section 14(5)(b), which we will come to. As your Honours have pointed out, it has an importance for section 35 and, as I touched upon, it does trigger consequences potentially for an investigation under the Serious and Organised Crime (Unexplained Wealth) Act 2009. I will not take your Honours to it. A copy of it is provided at page 58 of the joint book of legislation and the critical section is section 12. We turn then to the procedure on an application under section 14(1) ‑ ‑ ‑
FRENCH CJ: Just one other question to ensure I know the territory we are in - that a declaration itself has no cut‑off point, in other words subject to revocation by the Attorney‑General but there is no inherent time limit, nor does a control order have an inherent time limit.
MR HINTON: Correct.
FRENCH CJ: Is there any power to impose a time limit on the part of the magistrate?
MR HINTON: None express.
FRENCH CJ: Yes.
MR HINTON: The only time limit is in section 39, the sunset clause for the entire ‑ ‑ ‑
FRENCH CJ: That does not necessarily mean that orders go away.
MR HINTON: True.
FRENCH CJ: Perhaps it does.
GUMMOW J: Did you say section 15(1)(b) would not permit this distinction “require a time limitation”?
MR HINTON: No, your Honour. All I said was there is no express power, there is no reason ‑ ‑ ‑
GUMMOW J: No requirement of a time limitation?
MR HINTON: No, there is none, no requirement, no reason why you could not insert one. Section 14(1) was where I was up to. As I have indicated - we have dealt with this in detail in our written submissions providing the Court with reference to the various rules that apply to the procedure in applying for a control order. Subsection (1) has that dual function. It empowers the court and, at the same time, the Commissioner to make the application.
As a conferral of statutory jurisdiction - section 10(1) – within the meaning of section 10(1) of the Magistrates Court Act, a copy of which your Honours will find in the book of legislation at section 55C, the court may by rules assign the jurisdiction to hear – which is something that your Honour the Chief Justice touched upon. It is pursuant to those rules that if the jurisdiction to hear an application finds its way to the civil general claims division of the Magistrates Court - that is by virtue of rule 4.06, a copy of which appears at page 100 of the joint book of legislation.
FRENCH CJ: In the exercise of its civil jurisdiction under section 41 of the Magistrates Court Act questions of law can be reserved to the Supreme Court, that is questions arising in a civil action. Would that apply here? A civil action means an “action or proceeding brought in a civil division of the Court” - that is section 3(1). You assign this by rule to the civil division. That would seem to attract the power to reserve questions of law for the Supreme Court under section 41(1).
MR HINTON: There is no contrary indication in the Serious and Organised Crime (Control) Act that would suggest that that power is not available. There is a contrary indication with respect to the power of appeal contained in the Magistrates Court Act.
GUMMOW J: We have not been given section 41.
MR HINTON: No, I am afraid not, your Honour.
GUMMOW J: Selective reproduction of the Magistrates Court Act beginning at page 53. We should be.
MR HINTON: I will arrange that at the break for section 41 to be circulated. The Magistrates Court Act makes it clear that it is for the chief magistrate to determine who sits and who should be assigned the work. So, to that extent, independence is not compromised. There is the power to make rules in section 49, which your Honours do have, at pages 56, 57 with respect to the Serious and Organised Crime (Control) Act. Section 14(4) of the Act provides:
The grounds of an application for a control order must be verified by affidavit.
Justice Bleby considered that when one reads 14(4) with section 14(5)(b), 15, 17 and 18, it was implicit that the grounds of the application should also be stated in the application. He did not finally decide the point. But again, his point was a matter of observing what could be done before the Magistrates Court that would require the exercise of judicial power; whether or not there was a genuine adjudicative function. The requirement that the grounds be verified by affidavit says nothing about the rules of evidence. Section 5 of the Evidence Act, a copy of which your Honours have at page 47 of the joint book of legislation, suggests that the rules of evidence will apply, those under the Act and, indeed, common law.
There was a debate before the Full Court as to the nature of the proceedings and whether or not they were interlocutory. If they were interlocutory, then rules 19(4) and (5) of the Magistrates Court Civil Rules, to be found at page 110 of the joint book of legislation, in particular, rule 19 would permit the court to receive hearsay evidence. It does not matter, in my submission, whether this is an interlocutory hearing or otherwise. If it is not an interlocutory hearing, then the rules of evidence apply. If it is, then rule 19 is a rule of the court that abrogates the rules of evidence. So it is not a factor that can be linked to the Executive or the legislature in any way dictating to a court. So if there is a modification of the rules of evidence, it is at the bequest of the court.
Of course there is that one exception, and again that is the use of criminal intelligence. Criminal intelligence with respect to an application for a control order is dealt with by section 21. Section 21(1) is subtly different to section 13(2) in that the word “properly” has been inserted before the words “classified by the Commissioner” in the last line. If there was ever any question as to the power to consider the Commissioner’s decision vested in the court, it is now clear. Section 21(2) is virtually the same as section 28A(5) dealt with by this Court. Section 28A(5) in the Liquor Licensing Act considered by this Court in K‑Generation v Liquor Licensing Court 237 CLR 501, paragraphs 73 to 79, 146 to 148 and 257. As was noted at paragraph 144, on an application before the magistrate the classification by the Commissioner is open to collateral attack.
The magistrate’s task then, under section 14(1), is to be satisfied on the balance of probabilities, section (5), that a declaration has been made that such declaration relates to an identified organisation is current and that the defendant is a member. In the appellant’s submission, his Honour Justice Bleby, at paragraph 152, page 127 of the appeal book, mischaracterised the task required of the magistrate.
HEYDON J: What was that reference again, I am sorry, Mr Solicitor?
MR HINTON: Sorry, your Honour. Page 127, paragraph 152. You will see, if your Honour pleases, there Justice Bleby sets out the four elements required in order to obtain a control order. That is right if you deconstruct the whole process, but that is not correct, with respect to Justice Bleby, on an application pursuant to section 14(1). On an application pursuant to section 14(1) a court is not required to satisfy itself ‑ ‑ ‑
FRENCH CJ: That is the point his Honour makes, is it not? He is saying that is something which is done by the Attorney‑General. I am not sure if he is being anything more than really descriptive in that, is he?
MR HINTON: In my submission, his Honour is. It is evident in those identifications of the elements. It is evident in paragraph 154 where his Honour says “The Court must and can only act on the satisfaction of the Attorney‑General as to those elements.” It is evident in 155 where he characterises the Act as requiring the Court to “act on what is, in effect, the certificate of the Attorney‑General”. With respect, each of those is a misdescription of the task.
FRENCH CJ: The certificate there, presumably that is a metaphor for the declaration, is it not?
MR HINTON: Yes, your Honour. I concede that on a broad deconstruction of what happens, yes, of course, you must prove those four elements, but when one comes to what must be proven on an application for a control order, with respect to his Honour, those four elements are not what is required. What is required is as I have submitted and indeed Justice White correctly identified at paragraph 187, page 136. So, as per my interchange with your Honour Justice Heydon earlier today, you must prove the fact of the declaration but the declaration is not a prosecutorial aid, it is not a conclusive evidence provision.
HEYDON J: You did say that those first three ingredients are paper ingredients satisfy or by proof of the Gazette and appeal to the presumption of regularity and that the only conventional field for the exercise of a judicial task is the fourth membership.
MR HINTON: I cannot escape that, your Honour. Those first three elements will, you would expect in the normal case, be, as his Honour says and as my learned friends say, a formality. If they are not, it is because of some very obvious glitch in the content of the declaration itself that would give rise to challenge. Yes, I did say that and I maintain that submission.
BELL J: An obvious glitch would give rise to challenge in the Supreme Court. Do you say it would before the magistrate?
MR HINTON: Yes, your Honour, like a warrant, a warrant invalid on its face for failing to properly identify where it is to be discharged. Collateral challenge would be permissible. I think the authority for that is Ousley’s Case. As it is an administrative power statutorily prescribed it would be open to collateral challenge.
GUMMOW J: What is the citation of Ousley?
MR HINTON: Volume 192 CLR 69, in particular, at pages 79 to 80, pages 86 to 87, 100 to 105, 125 to 127 and 144 to 146. There is also more recent authority, but it applies Ousley, and that is the Attorney‑General (Cth) v Breckler 197 CLR 83 at paragraph 36 applying Ousley’s Case.
BELL J: The declaration must be published by notice in the Gazette. What else do we know about what it is the declaration must contain? I am just trying to understand, Mr Solicitor, what glitch might be apparent in the proceedings before the magistrate.
MR HINTON: Unlike a control order, there is no section that sets out what it must contain. The Gazette notice appears at page 61 of the appeal book, if that would assist your Honour and that, if your Honour Justice Heydon pleases, a notice of the Gazette, as I recall, can be tendered under Evidence Act (SA) as proof of the content of it. Again, those first three elements, here is my copy of the Gazette, and tendered. Does that assist your Honour?
BELL J: Yes. The date glitch to which you referred would hardly appear from the declaration, that the notice period had not elapsed.
MR HINTON: It would not from this declaration, no, your Honour. You would have to make inquiries, yes. You would have the benefit of the notice in the Gazette of receipt of the application under section 9. I take your Honour’s point. On its face, if you just had this page, no assistance at all, but you do have access, of course, to an earlier Gazette notice that says “on such and such a date I received an application”.
GUMMOW J: I am just looking at paragraph 36 of Breckler, page 108 of 197 CLR 83. That refers to Ousley for the proposition that the determination in that case would have been open to collateral review in the absence of legislative prescription. Now, what impact does section 41 have at all in respect to the matters you are putting to Justice Bell?
MR HINTON: As I understand the interchange between Justice Bell and I, it was on an application for section 14(1) you could challenge the declaration at the time it is tendered, paper tender, on the basis of the failure of the Attorney-General to comply with that 28-day time limit. My response is, yes, you could. We go to section 41(2), jurisdiction for the Attorney is not enlightened unless the 28 days has passed. If the 28 days has not passed, you do not have a decision under the Act, using the language of 41(2).
FRENCH CJ: You do not have a declaration under Part 2, is that right?
MR HINTON: Correct, your Honour, yes. That is the challenge that you could mount.
GUMMOW J: So what is it that is protected by 41(2)?
MR HINTON: It is easier to answer that by what is not, with respect – what is protected – a merit review, save Wednesbury unreasonableness – error on the face of the record is protected.
GUMMOW J: Non‑jurisdictional error.
MR HINTON: No, your Honour. If there is a jurisdictional error it is not under - relying upon your Honour and Justice Gaudron in Darling Casino and indeed Plaintiff S ‑ ‑ ‑
GUMMOW J: What is the relationship between subsections (2) and (3) and subsection (1) – section 41?
MR HINTON: Subsection (2) relates to proceedings – any proceedings. Subsection (1) would be proceedings brought in the Supreme Court for judicial review.
GUMMOW J: What is within the words “Except as otherwise provided” in the opening words of 41(1)?
MR HINTON: Nothing other than the appeal under section 19.
GUMMOW J: Right.
HAYNE J: And Part 6 review?
MR HINTON: Yes, your Honour.
HAYNE J: So appeal and Part 6 review might be the subject of the saving in the opening words of 41(1). Is that the position?
MR HINTON: Yes, your Honour.
HEYDON J: A Part 6 review is scarcely a judicial review, with respect.
MR HINTON: True.
FRENCH CJ: Do we take it that 41 is intended to displace the right of appeal in the Magistrates Court under section 40 from decisions in the civil division?
MR HINTON: No, with respect. In my submission, that is the effect of section 19. In that regard your Honours should have been provided this morning with a copy of Osenkowski v Magistrates Court of South Australia (2006) 96 SASR 456.
FRENCH CJ: That is a specific appeal in relation to the objection process, is it not?
MR HINTON: It is. The reason it has been provided to your Honours is that there are distinct similarities between the process in that case – that is South Australia’s legislation dealing with anti‑fortification mechanisms. There are distinct parallels between the legislation considered by South Australia’s Full Court there and this legislation here and in particular the ambit of section 19. With respect to section 19 the Chief Justice, Chief Justice Doyle, at paragraphs 35, 55 and 56 indicates that the equivalent provision entertained in that case – perhaps I will take your Honours to it.
There are two reasons why I passed this case, your Honour. Firstly, can I take your Honours to page 461 of the report and paragraphs 74BF and 74BG of the Summary Offences Act. Section 74BF(2) and (3) are the equivalent of section 18 of the Serious and Organised Crime Act. It had parallels. Section 74BG is the equivalent of section 19.
With respect to section 18(1) of the Serious and Organised Crime (Control) Act, a question that is opened is the breadth of the inquiry on the notice of objection. With respect to 74BF(2), framed in the same terms, the Chief Justice at paragraph 30 notes that it is a full hearing and at paragraph 40 he commences by indicating the same; a full hearing of the Commissioner’s application before the magistrate. With respect to the nature of the appeal under section 19 and it is equivalent section 74BG, the Chief Justice at paragraph 35 in the opening two sentences indicates that no appeal lies under the Magistrates Court Act. He gives his reasons at paragraphs 55 and 56. They apply, in my submission, with equal force to this Act.
HEYDON J: How would criminal intelligence fit in under section 19 of this Act? Does section 13(2) not apply on the theory that the word “person” does not include the Supreme Court?
MR HINTON: I recall that his Honour the Chief Justice touched upon that. As I recall his reasons, the effect of a notice of objection being a full hearing is such that the issue will find its way, pursuant to section 19, to the Supreme Court and it can order the production of the material. The reason why this case has been provided to your Honours this morning is that comparable provisions have been interpreted in this way and, in my submission, the comparable provisions in the Serious and Organised Crime (Control) Act should attract the same interpretation, namely, section ‑ ‑ ‑
HEYDON J: When Chief Justice Doyle said, “it is incumbent on the Commissioner to establish his case afresh”, that might well include criminal intelligence material and if the Commissioner did not include that material, his case might not look so good.
MR HINTON: It might not, and we are back in the realms that we were in in K‑Generation.
FRENCH CJ: If we are talking about an objection to an order made under section 14(1), the question which the court decides on the hearing of the notice of objection on section 18(1) is whether sufficient grounds existed for the making of the control order. Now, that would be answered in the affirmative by production of the declaration and proof of membership within the ‑ ‑ ‑
MR HINTON: In my submission, it must include the content of the order as well.
FRENCH CJ: Plainly, in subsection (2):
The Court may, on hearing a notice of objection –
(a)confirm, vary or revoke the control order –
That seems to imply there is room for debate about the exceptions to the prohibitions imposed by the control order and so forth.
MR HINTON: Yes, and that was the conclusion that Justice Bleby arrived at.
GUMMOW J: But the appeal to the Supreme Court is an appeal from the record supplied by what was at section 18 stage before the Magistrates Court, is it not?
MR HINTON: Yes, your Honour.
HEYDON J: Is the Supreme Court not in just as bad a position as the magistrate in terms of having a rather limited field in which to make judicial decisions?
MR HINTON: Yes. I should not be so quick to say.
HEYDON J: If we take Justice White’s four points, is the Supreme Court limited in relation to the first three in the same way as the Magistrates Court was?
MR HINTON: Yes, it is. The same objection can be taken.
HEYDON J: We would not have to bother about criminal intelligence in that case because it would be lurking behind the Attorney‑General’s declaration.
MR HINTON: That was Justice Bleby – the conclusion was that you would ordinarily see criminal intelligence used more on the making of a declaration than in proof of membership.
FRENCH CJ: But it is applicable.
MR HINTON: But it is applicable and you could have it. So before the Supreme Court the real debate is going to be membership and content of orders. Anything that touches upon an analysis of the evidence will be relevant to those two issues.
FRENCH CJ: Unless there is a collateral challenge to the validity of the declaration as part of that process.
MR HINTON: Yes, your Honour.
FRENCH CJ: I should not say “collateral” – I mean a challenge to the validity of the declaration.
MR HINTON: We were at the point where, if the elements in section 14(1) are satisfied, we have the mandatory requirement that an order must be made. If I could then take your Honours to section 14(5)(b):
if the defendant is a member of a declared organisation –
the order – is the minimum content, I think, your Honour the Chief Justice refers to – must prohibit it. However, the last line:
except as may be specified in the order.
The question arose before the Full Court, does that mean members as at the time, organisations declared as at the time? In my submission, it must do. From 14(5)(b) we work back, if the Court pleases, to 14(5)(a) – permissive; the court may also prohibit the relevant ‑ ‑ ‑
HAYNE J: I am sorry, can you just go back to that point about time?
MR HINTON: Yes, your Honour.
HAYNE J: What is the point you are making?
MR HINTON: You could give declared organisations, for the purposes of 14(5)(b), an ambulatory effect. If you did that then, of course, if the court makes an order on Monday but there is another organisation declared by the Attorney on Wednesday then as of that date Monday’s order will apply to the newly declared organisation. So your order would, in effect, be amended by the Attorney-General.
HAYNE J: You say it looks backwards to those organisations that have been declared by the time of the making of the order, is that right?
MR HINTON: Yes, your Honour.
HAYNE J: Is it limited to those persons who are from time to time members of the organisation or is it limited to those who were members at the time of declaration?
MR HINTON: Members at the time of declaration.
HAYNE J: Having regard to the ambit of the definition of “member” including as it does prospective members and those who identify themselves with the organisation or are treated as belonging to?
MR HINTON: As proven at the time, but proven had that status, as at the time of the making of the declaration, yes your Honour. I was then taking your Honours to section 14(5)(a). The permissive nature of it:
(i)associating or communicating with specified persons or persons of a specified class; or
(ii) . . . specified premises or premises of a specified class ‑ ‑ ‑
FRENCH CJ: These are all discretionary prohibitions.
MR HINTON: Yes, your Honour. Any exception to section 14(5)(b), or any addition by virtue of 14(5)(a), must necessarily reflect a conclusion based reasonably on the evidence adduced. In my submission, Justice Bleby describes the declaration as the more significant task. In my submission, that is not necessarily so. When one has regard to the objects of the legislation, to the definition of “membership” and the fact that you may well be involved with a member in an organisation that’s sole purpose is not organising, facilitating, et cetera, serious criminal activity, when one is dealing with an organisation such as that, the most significant task is the method by which the activities of the organisation who plan, or the portion of the organisation that plans, facilitates, supports, or engages in serious activity, is disrupted and restricted.
The declaration identifies an organisation, but it is the order that achieves the objective disrupting and restricting organised crime to the extent that this person before the court participates in that organisation. That requires a consideration by the magistrate of the operations of the organisation, the particular member’s involvement in those operations and the involvement of other members. That is a significant task and in a given case can be more significant than just identifying the organisation as one that facilitates serious criminal activity. The declaration does not have the capacity to be moulded to affect the operations of an organisation. Even its link to section 35 does not give it that capacity. It is the control order that allows you to disrupt organised crime.
HAYNE J: How does a court formulate the order in a fashion directed to the disruption of which you have spoken? More particularly, what account, if any, may it take followed by how does it take account of whatever it is that moved the Attorney to make a declaration which may have been made without reasons and may find no fuller expression than the few lines in the Gazette we have observed?
MR HINTON: If your Honour pleases, it is not a matter of taking account of what moved the Attorney so much as what has the Commissioner of Police put before the court that allows it to fashion the order that indicates, that proves, it establishes the extent to which this particular person, let us say an associate member, is involved in an organisation, let us say, that is not solely or whose sole purpose is not facilitating crime. It will be a product of the evidence very much adduced by the Commissioner. It will invite a consideration of the organisation, but it does not necessarily mean or it does not require any determination along the lines of what is required under section 10(1). Disruption in terms of who this person can associate with and what this person can do will be the product of the evidence.
So while, in some cases, you will hand up your declaration and you will get an order in terms of section 14(5)(b) like the second respondent did, that is not invariably the case. It is relatively easy to think that it will be where you are dealing with outlaw motorcycle gangs that are readily identifiable, that wear a uniform, who have many a criminal conviction, who have identifiable club ‑ ‑ ‑
HAYNE J: The proposition that the court may, in some fashion, tailor an order to achieve specific ends proceeds from the premise that that will be a matter for the Commissioner to adduce evidence, whereas if the Commissioner chooses not to adduce evidence the order that will be made will be simply the blanket order, will it not?
MR HINTON: Subject to exceptions, but yes, the exceptions being that last phrase.
HAYNE J: So the notion of the court fashioning some bespoke order is a notion that depends upon the Commissioner wanting less than would ordinarily follow?
MR HINTON: With respect, less ‑ ‑ ‑
HAYNE J: Because what would ordinarily follow is complete prohibition and ban, as in 5(b)(i) and (ii).
MR HINTON: Complete prohibition.
HAYNE J: Of association of any member.
MR HINTON: Of a declared organisation?
HAYNE J: Yes.
MR HINTON: But of course, that may be inadequate when one considers what the actual operations of the organisation are and it also, with respect, does not pay regard to the objects of the Act. Once an order is made service must be effected in a manner consistent with section 16. Importantly, the order must have attached to it a copy of the affidavit. So if the magistrate determines to proceed ex parte under section 14(3) then upon service of the order you will get the material relied upon in support of the application. There is then 14 days under section 17(1) to file a “notice of objection”. “The grounds of the objection must be stated fully” - section 17(2). They:
must be served . . . on the Commissioner . . . 7 days before the day appointed for hearing of the notice –
section 17(3). We then have the hearing on the notice of objection, section 18, and I have taken your Honours to Osenkowski’s Case, and we have been through sections ‑ ‑ ‑
FRENCH CJ: Now, if the application for the controller is made on notice and the respondent to the application is there at the hearing, on one view that would seem to render the objection procedure otiose because all the issues as to sufficiency of grounds and the particular way in which the order should be tailored and what exceptions should be made, which you might expect to be raised at an objection procedure, could be raised there. The problem is, of course, on your submission you do not get an appeal until you go through the objection process.
MR HINTON: You do not, your Honour. That is the operation of the Act. But on an inter partes hearing or on a hearing with notice there is no bar by virtue of being heard prior to issuing a notice of objection to issuing a notice of objection.
FRENCH CJ: I understand it. We are doubling up. Mr Solicitor, can you give me an indication of how long you expect to be?
MR HINTON: No longer than an hour, if the Court pleases.
FRENCH CJ: I think a focused approach would achieve that. We will adjourn until 12.15.
AT 12.46 PM LUNCHEON ADJOURNMENT
UPON RESUMING AT 2.17 PM:
FRENCH CJ: Yes, Mr Solicitor.
MR HINTON: If the Court pleases. I have completed my submissions with respect to Part 3 of the Serious and Organised Crime (Control) Act. The only other two sections that I propose to take the Court to were section 35 and section 41. We have trawled through them in detail already and so I will not delay the Court any longer, save with respect to section 35 and to say one thing. It might have been that I was not quick enough to pick up what your Honour the Chief Justice was saying to me and that is that there is potentially a conflict between section 35 and section 14 insofar as a control order could be made under section 14 and exclude from its content association, with respect, to a certain person. However, that exclusion under the control order itself would not exonerate one automatically under section 35(1). I was a bit slow on the uptake ‑ ‑ ‑
FRENCH CJ: That was the proposition I put to you that 35 is not controlled by the content of the control order.
MR HINTON: No, your Honour is quite right. That is when we have to go to subsection (7). If the Court pleases, those are my submissions, then, with respect to the Act. I turn to the application of the Kable doctrine for this case and I return to the two respects in relation to which it has been said that this function, section 14(1), offends the Kable doctrine.
The first, as was put in the court below, is the combined effect of the administrative Act coupled with the defined judicial function channelled potentially by hearing without notice in reliance upon criminal intelligence results in the Magistrates Court being the subject of a legislative plan, in my submission, as I draw the Court’s attention first to the respondent’s concession at paragraphs 55 and 85 of their written submissions to the effect that there is an adjudicative process for the magistrate to undertake.
For the reasons advanced by Justice Bleby at pages 123 to 125, paragraphs 132 to 143 of his judgment, and Justice White at 135 to 142, paragraphs 186 to 207 of his judgment, the appellant submits that the first contention cannot be maintained and the concession is rightly made. Not only is there an adjudicative process but there is, to use the words I think it was of your Honour Justice Heydon and Justice Callinan, a “genuine adjudicative process”. The making of a control order requires a factual judgment. The content of the control order requires a factual judgment. Section 14 neither requires - section 14(1) - that the exercise of judicial power be dictated by legislation or executive action. It does not require the court to depart to a significant degree from methods and standards characteristic of judicial activities.
At paragraph 60 of our written submissions, page 13, we set out various aspects of an application under section 14(1) that demonstrate that it is a function that does not undermine the institutional integrity of the Magistrates Court of South Australia and is a process or involves a process bearing all the hallmarks of the common law adversarial process. I do not propose to go through them now, but I rely upon the 12 points, at page 13, related to procedural matters; at pages 14 and 15, the five points with respect to the substantive matters; and then on page 15 the issues that can be raised on a notice of objection.
For all those reasons, the Magistrates Court is required, in my submission, to undertake a genuine adjudicative function and putting to one side for the moment the relevance and the impact of the declaration on such hearing, nothing in the conduct of that adjudicative function compromises the court’s integrity nor independence to the extent that it cannot be considered a fit repository in which to vest the judicial power of the Commonwealth.
HAYNE J: The argument that is put against you is framed in a number of ways but a convenient formulation of one method of putting the argument is in the respondent’s submissions in reply to the interveners at paragraphs 10 and 14 where what is put is that the legislation obliges the court:
to enforce as if it were its own judgment an executive determination ‑ ‑ ‑
MR HINTON: The declaration, yes, your Honour.
HAYNE J: Yes, and that the executive determination is of matters that are at odds with the fundamentals of the judicial process as well, I think, is the way in which it is put. What answer do you make to that?
MR HINTON: Can I answer it first by also indicating that what is put against us is of course not just the process but the appearance.
HAYNE J: But you accept, do you not, that the fact of the characteristics of the organisation are determined by the Attorney?
MR HINTON: Yes, that is what a declaration does. The question then is, what use is made of the declaration as part of the court’s function?
HAYNE J: I think what is put against you is that that is part of the question but also a part of the question is, what are the matters that are determined by the Attorney and how do those matters or considerations – I search for a neutral term – how does that subject matter fit with received ideas of judicial process?
MR HINTON: The short answer is, in my submission, what the Attorney undertakes is no part of the function of the court therefore it does not infect it; no part, going back to where we were earlier this morning when your Honour Justice Gummow took me to the case I had not read but indicated that, well, is this as if it were a judgment that becomes the court’s judgment. Now, in those circumstances, if the effect of the declaration was that it became the Magistrates Court’s factual determination with no power to go behind it, then the case would be different.
CRENNAN J: I think a different point has been raised, with great respect. That is suggesting that the safeguards of judicial process are not here in relation to the Attorney-General’s declaration. There is a related question in which I will be interested in your response and it is this. On this particular occasion the Attorney-General gave notice, gave reasons, spoke about giving procedural fairness, but there is no requirement for the giving of reasons in the Act itself and accordingly, it is possible for the Attorney‑General to make a declaration with even less semblance of judicial process that happened on this occasion, if that is what you are contending.
MR HINTON: With respect to reasons, your Honour is quite right. It is possible to make a declaration and give no reason. Section 13(1) makes clear the Attorney is not required to. But in terms of ‑ ‑ ‑
CRENNAN J: That would have an impact then in relation to the possibility of collateral attack, or just attack, in relation to the declaration.
MR HINTON: Yes, it makes it particularly difficult. There is no doubt about that. But the question ‑ ‑ ‑
CRENNAN J: So the characterisation of the organisation would have been made without the safeguards of the judicial process.
MR HINTON: There are some itemised duly, but yes there are not the same. The question then is the extent to which that process infects the judicial process before the court and, in my submission, it does not. It would only infect the judicial process before the court if the court’s function was such that it had to adopt or, in some way, validate that process and it does not. It is not required, as part of its task, to look at the nature of the organisation at all. It is required to determine membership and the content of a control order. That is a different task. So to the extent that the two can be separated what is not part of the Attorney‑General’s function does not infect the judicial function, just like a registered judgment from another jurisdiction is not registered and becomes the judgment of this jurisdiction. It always remains the judgment of another. So too the ‑ ‑ ‑
GUMMOW J: But at least it is a judgment, you see.
MR HINTON: Yes, your Honour.
KIEFEL J: Is another way of looking at it to say that for the purposes of the Act and what the Act is concerned with is that in the first place an organisation has the characteristics referred to in section 10(1) and then it is concerned with a person being associated or being a member of that organisation? They are the two matters that it is principally concerned with. Were it not for the medium of the Gazette, the declaration in the Gazette the interposition of that step, would not those characteristics of the association be jurisdictional facts founding either the making of the control order or an offence under section 35? That is just to put it in perspective. If you take the steps of the declaration and its gazettal out of the picture, would not they be matters par excellence that the court would have to determine for itself?
MR HINTON: You could have drafted section 14(1) such that the four elements were as Justice Bleby identified, yes.
KIEFEL J: Does not that give a hint of what the Attorney is actually undertaking?
MR HINTON: It is more than a hint, with respect, your Honour. He undoubtedly undertakes that factual inquiry. We do not resile from that at all. The question is, does it infect, to an impermissible extent, what the Magistrates Court is required to do.
KIEFEL J: The Magistrates Court has to give effect to them because they are not entitled to determine for themselves the same facts which would otherwise found jurisdiction.
MR HINTON: The Magistrates Court must be satisfied that there is a declaration, yes, but that does not mean that the Magistrates Court is satisfied that the organisation answers the description of section 10. That is not what is required. The Magistrates Court, as it is not required to make that factual inquiry, does not validate it in any way and if it does not validate it in any way, then what is imperfect about the task undertaken by the Attorney‑General does not invade the magistrate’s task such that the Kable doctrine is enlivened and it is no longer a fit repository into which the judicial power of the Commonwealth is vested.
That is the argument of the appellant. It is a matter of, as I said, perhaps some time ago – deconstructing not the entire process, that is what Justice Bleby did. It is a matter of looking at the function that the Magistrates Court is required to perform because it is that function that is impugned. If the declaration is treated as his Honour did, Justice Bleby, then it elevates the declaration beyond a proposition of fact, just that the declaration was made, to a conclusive evidence provision. If it was a conclusive evidence provision, then we definitely would be in great difficulty in terms of validity, because then you have the executive dictating two crucial facts to the judiciary, but it does not work that way.
Your Honours have taken me some way on in my argument. I was going to quickly refer to Kable. I will come back to that point, if your Honour Justice Kiefel does not mind. I was going to quickly refer to Kable and, indeed, to Liyanage as the two primary examples of where you have changes or alterations to the judicial proceeding that has such a resounding effect that the legislation is rendered invalid.
If the Court pleases, a comparison of the task undertaken by the Magistrates Court under section 14(1), and that of the Supreme Court under the Community Protection Act suggests that the conclusion that the Magistrates Court function is not antithetical to the judicial process is correct. Your Honours will find Kable in 189 CLR, and it is the factual background or the factors of the majority that I wish to take your Honours to that were offensive. For Justice Toohey ‑ ‑ ‑
GUMMOW J: Just look at section 5 in Kable, for example. It is set out at page 62. The Chief Justice sets out the text of section 5, you see there:
the Court may order . . . if [the Court] is satisfied -
Suppose it had said “if the Attorney‑General is satisfied”. Is not your statute closer to what I have just put to you, which makes it a fortiori a Kable problem?
MR HINTON: If it said “Attorney‑General”, then it is similar to our statute. Does it make it a Kable problem is a matter then of looking at the various problems with the Community Protection Act and whether or not they are the same here. For your Honour Justice Gummow at pages ‑ ‑ ‑
GUMMOW J: What I am putting to you is that Kable was decided in a context which on its face was perhaps more favourable to you than what is presented by this statute and yet the legislation in Kable was a failure.
MR HINTON: With respect, the answer really boils down to the use of the declaration either directly or the appearance. Either will get you into Kable territory. Directly, in my submission, it has no impact for the reasons that I was saying. Appearance, again, if you appreciate its use and what the Magistrates Court actually does with it, then it does not have an appearance such that integrity and, in particular, independence are undermined. In Kable your Honour Justice Gummow was concerned by a collection of factors, with respect. At 125 it was the ad hominem nature of the legislation ‑ ‑ ‑
KIEFEL J: Just before you go on, you were saying that you can see that the Magistrates Court is not very much involved, therefore Kable may not be engaged, but the Magistrates Court is one step towards one of the offences in section 35(1). Both section 35(1)(a) and (b) at their heart, the offence concerns someone’s membership or associations with a declared organisation and if you deconstruct the words “declared organisation”, the offence concerns someone who is a member of an organisation in respect of which the Attorney is satisfied that the members of that organisation associate for the purpose of organising, et cetera, serious crime and represent a risk to safety.
MR HINTON: Yes. But you would not prove that, you would prove the fact of the declaration.
KIEFEL J: Quite so. The Attorney has, you would say, for the purpose of the offence provision, determined the essential facts, apart from membership of the group, necessary for a conviction and the court by section 14, at least for section 35(1)(b), takes a part in that process towards conviction.
MR HINTON: If I could just go back a step? The Attorney has not determined a fact necessary for conviction. The Attorney has determined the nature of an organisation.
KIEFEL J: He has determined the facts under section 10(1) to a level of satisfaction.
MR HINTON: Yes, it is a declared organisation. But the Attorney has no role to play in proof of the offence.
KIEFEL J: No, but the court does.
MR HINTON: Yes, by virtue of evidence of the person associating on six or more occasions, evidence of all those elements, and proof of a fact of membership of a declared organisation, just like the consorting offence nominating reputed thieves and prostitutes.
KIEFEL J: You are probably going to come to that. I do not know whether you are dealing with the question of consorting arguments or the unlawful association provisions, but they both make you wonder why one needs to go quite this far. But then I suppose we are not discussing wider versions of proportionality.
MR HINTON: I come back to the essential question being does the task, the function of the magistrate, offend the Kable principle and that is a matter of assessing the invasion, for want of a better word, that the declaration makes upon the task and the meaning of that invasion. If you accept Justice Bleby’s deconstruction then you give the declaration the effect of a finding of the two elements, the subject of section 10. With respect to his Honour we say that is an error because there is no requirement of a finding of the nature of the organisation for the purposes of obtaining a control order under section 14(1). All that is required is proof of a declared organisation. No proof of any more is required for the magistrate. The judicial task does not require that the magistrate go past that.
Then the magistrate must be satisfied, on the balance of probabilities, of the fact of membership. If the magistrate is they must make an order and then it is a question of the content. So the task does not involve an inquiry as to the nature of the organisation. When we look at the content the nature of the organisation has to be looked at by virtue of what is it about this individual and its relationship to this organisation that will fashion the order? But there is no judgment required as to whether or not the organisation answers the criteria in section 10. There is no invasion, no infection.
HAYNE J: But the fact of membership takes its significance only from the nature of the organisation.
MR HINTON: You must be a member of that organisation, yes.
HAYNE J: But membership has any significance only because of the qualities of the organisation. The contrast I want to draw to your attention for your consideration either immediately or later is a contrast with the provisions of Division 102 of the Criminal Code (Cth), the terrorist provisions. Division 102 deals with terrorist organisations. Put shortly but inaccurately, it is possible to declare an organisation to be a terrorist organisation. Division 102.8 is a section that deals with associating with terrorist organisations and Division 102.3 is a provision that deals with membership.
Take Division 102.8, associating with. The legal consequences follow from a number of criteria of which two, relevantly, are the fact of the association with the organisation providing support for the organisation and the accused person knowing that the organisation is a terrorist organisation. The bare fact of membership of the organisation or the bare fact of association is not of and in itself legally significant. But the legislation with which you are concerned hinges critically about the fact of membership, does it not?
MR HINTON: It does.
HAYNE J: And membership leads to the deleterious consequences for which the Act provides because of the character of the organisation.
MR HINTON: Yes.
HAYNE J: The character of the organisation is not determined by the courts, it is determined by the Attorney and the deleterious consequences are then imposed by the courts on what I earlier described as the minor premise of membership rather than the major premise of the nature of the organisation. That is the nub of the point, as I understand it, that is made against you. You can say, as you have now I think more than once, well, the courts decide only this and the Attorney decides that. Yes, we understand that, but it is the very fact of division which is said to present you with the problem. What is the answer to the problem presented by the fact of division of function?
MR HINTON: Why is it a fact that must be judicially found?
HAYNE J: Because the courts are imposing deleterious consequences upon the individual is the immediate response. That may be an insufficient response but that is the immediate response.
MR HINTON: That brings me, in part, to your Honour’s point about 102.8 of the Criminal Code. Of course it creates an offence. True, association on its own is not enough for the offence but we are not talking about an offence here, we are talking about a control order. We are talking about a command as a consequence of proving membership, do not associate with. We are one step back from an offence. It is no different, the command, to consorting. Why must that be determined by the judiciary? There is no reason why it must. Why could it not have been determined by the legislature? It could have. But here it is determined by the Attorney‑General. There is nothing about that fact itself that points to invalidity.
KIEFEL J: I suppose membership of the organisation could be determined without the assistance of the court, too.
MR HINTON: It could.
KIEFEL J: Which then raises the question of why the court’s assistance is being invoked.
MR HINTON: I come back to the importance of the task. Perhaps I did not emphasise it enough, but it is the task of formulating an appropriate order that actually achieves the objectives of the Act, not the declaration. When you are trying to formulate that order which will interfere with liberty the court is the best place. That is why it goes to the judiciary but in answer to your Honour Justice Hayne there is no reason why the major premise has to be given to a court. The question is does the major premise so infect the…..that we have a court that no longer answers the description of a court or a court that no longer is a fit repository for the vesting of federal judicial power? My answer is, no, we do not.
FRENCH CJ: I suppose, although it is at a level of perhaps unsatisfactory generality, one might say that the thrust of the argument against you is directed, at least in part, to the notion that the court is somehow being – the judicial process is being co‑opted into what is essentially an executive process because of the importance of those elements with which the Executive is concerned.
MR HINTON: That is put in terms of appearance.
FRENCH CJ: Yes.
MR HINTON: With respect to the notion of appearance, in the Forge Case 228 CLR– I think it was your Honours Justice Gummow, Hayne and Crennan – said that an indicator is the bias principle. The ordinary person in the back of the court would they apprehend that the relevant judicial officer was not objective. An indicator – I think it is about paragraph ‑ ‑ ‑
HAYNE J: You might usefully look at paragraph 68, page 78 as well.
I had in mind particularly the second sentence in paragraph 68.
MR HINTON: I was going to come to it. I was going to come to that for the important point to actually rely upon it. When we talk about appearance, we have to be, with the greatest respect, particularly careful in this context. It is not so difficult where you are considering the application of the bias principle in a given case because you have the particular circumstances there. Here, of course, it is constitutional invalidity of a provision that applies beyond this case. When one then looks at the definition of “membership” and the fact that an organisation does not have to have as its sole purpose the criteria set out in section 10, the bias principle is not terribly helpful. It is an indicator, but not terribly helpful.
So if you are involved in a case and you are sitting in the Magistrates Court using the indicator and you happen to be the ordinary person, and this case involves a question of membership of a nom, to use the language of the Attorney-General, and the organisation is not an outlawed motorcycle organisation with a structure that is readily identifiable but perhaps something like antivivisectionists, then suddenly there is a very real contest that takes place and if there is a very real contest that takes place using that indicator, the bias principle, you find that the ordinary person would not consider that independence is compromised.
So when one then looks at the use of the declaration and what it is as opposed to what it is not, it serves to assist in identifying the class of person in relation to whom a control order may be made and does no more. It is not a conclusive evidence provision, it is not an aid to proof, it is not any rebuttable presumption. It is not a judgment of the court adopted by the court and it is not validated by the court. It does not require the court to deal with a person on the basis that he or she, who are, who they are not or that they did what they did not. It does not subject a person to guilt or a civil penalty and it does not preclude the conduct of a genuine adjudicative process. It is a trigger.
GUMMOW J: It is not a question of bias, it is a question of appearance of subjugation and subordination of one branch of government to another.
MR HINTON: In this case, if your Honour pleases, agreed. I was merely using the indicator with ‑ ‑ ‑
GUMMOW J: That is why that paragraph appears at paragraph 68 of Forge, I would think.
MR HINTON: I adopt it. As I was saying in answer to a point raised by your Honour Justice Hayne, that is why one must be careful here because appearance in that context is one case, the factual circumstances of one case. But here, where it is constitutional validity, one must look at the section in the context of the legislation as a whole and at its practical operation, minded of the range of matters that it relates to. That is my point. There is a range of matters that it relates to, so there might be a case where it is virtually a formality. You have the president of the organisation, you have a photograph of him in his regalia, you hand up your declaration, you approve the photograph and you prove public statements – a formality.
But at the other end, you might have someone who is not part of a controlling mind, who is within the definition of “membership”, an associate or prospective member. The organisation is one that does not solely exist to facilitate criminal activity. Once you get to that sort of case,
it is by no means a mere formality that an order will be made, and so using the indicator – but at the same time accepting that it is nought but an indicator – the ordinary person in the back of the court would not see independence compromised. Then looking at that sort of example, the declaration is insignificant. It is not the major premise, it is the minor premise. The major premise is membership here. Then again, we will have “What must we do” with respect to this person in order to frustrate the efforts of the organisation.
If the Court pleases, focusing upon the appearance that may result from an individual case can obfuscate the correct analysis that should be applied. One needs to look at the application of the section across the broad spectrum of matters that practically it may touch upon.
FRENCH CJ: I think you have already taken us there, have you not?
MR HINTON: I have, if your Honour pleases. For those reasons, and those that appear in our written submissions, the appellant submits that section 14(1) is valid and the questions reserved – those two questions now – should be answered accordingly. If the Court pleases, those are my submissions.
FRENCH CJ: Thank you, Mr Solicitor. Yes, Mr Walker.
MR WALKER: Your Honours, if I could hear the interveners first.
FRENCH CJ: Yes. Yes, Mr Solicitor.
MR GAGELER: Your Honours will have seen from our written submissions that we confine what we have to say to the impact of Kirk on the constitutionally permissible operation of section 41 of the South Australian Act. We do not wish to stray beyond that topic in oral submissions and we make no submission as to the validity or invalidity of section 14(1) alone or in combination with section 10(1). If your Honours have our written submissions to hand, can we simply add a couple of references and one qualification.
In paragraph 9, footnote 18, may we add a reference to the Supreme Court Act 1935, section 17, which is a modern restatement of sections 7 and 8 of Act No 31 of 1855, which was noted in footnote 131 of Kirk as the applicable provision governing relevantly the jurisdiction of the Supreme Court at the time of Federation. That section, section 17, relevantly vests in the Supreme Court the like jurisdiction in and for the State of South Australia that was formerly vested in and capable of being exercised in England by both the Court of Queen’s Bench and the High Court of
Chancery. In paragraph 14 may we add as a reference relevant to the first sentence, Roy Morgan Research Centre Pty Ltd ‑ ‑ ‑
GUMMOW J: Sorry, where are we now, Mr Solicitor?
MR GAGELER: Paragraph 14 first sentence.
GUMMOW J: The print seems to get smaller and smaller.
MR GAGELER: We can remedy that next time, your Honour.
GUMMOW J: Yes. It is a trend that started with your predecessor in office and you seem to be continuing. Footnote 14?
MR GAGELER: No, it is paragraph 14, first sentence, a notional footnote to Roy Morgan Research Centre Pty Ltd v Commissioner of State Revenue 207 CLR 72 at 79 to 80. Your Honours may recall that case decided in passing that section 148 of the VCAT Act in Victoria which provided for an appeal on a question of law that the Supreme Court did not exclude the supervisory jurisdiction of the Supreme Court of Victoria. And in respect to the last sentence of paragraph 14, if your Honours would note the case of S20, which your Honours have looked at recently, (2003) 77 ALJR 1165 at paragraphs [53] to [60]. The point being made there was that there is no necessary correlation between the scope of an appeal on a question of law and the scope of review for jurisdictional error. They are the additional references.
The only qualification we wish to add is in respect of what we say in paragraphs 18 and 19, as the heading above paragraph 15 suggests. Those submissions are made in the context of looking particularly at the Magistrates Court of South Australia which is established as an inferior court and the references to lower court in paragraphs 18 and 19 should be read as references to a court established as an inferior court. The relevant consequence of being established as an inferior court is that its orders if made without jurisdiction are nullities. Different considerations, may I say, further complications would arise if one had a court established as a superior court, the consequence of which being that its orders would be valid until set aside and one had, in combination with that, a jurisdictional limitation of a constitutional nature. That sort of complication was considered by this Court in the case of O’Toole v Charles David Pty Ltd 171 CLR 232 at pages 251 and 272. If the Court pleases, those are our submissions.
FRENCH CJ: Thank you, Mr Solicitor. Solicitor for Western Australia.
MR MEADOWS: May it please the Court, we rely on our written submissions which of course adopt the submissions of the Attorney‑General for South Australia. So far as our oral submissions are concerned, we restrict those to the function of the Magistrates Court when asked to make a control order and we look at the issue from the perspective of determining whether the Attorney‑General has made a valid and effective declaration.
Section 14(1) of the Control Act defines the power to make a control order, we would submit, by reference to the existence of a valid declaration and it does so in the following manner. Section 14(1) requires that the Magistrates Court be satisfied that the defendant is a member of a declared organisation and this requires the court to be satisfied that there is a declared organisation in existence. Section 3 of the Control Act defines a “declared organisation” to mean “an organisation subject to a declaration by the Attorney‑General under section 10” and this, we submit, requires that there be a valid and effective declaration rather than merely a purported declaration.
Now, in the ordinary case, the making of a valid declaration could be proved by the tender of the Government Gazette, or perhaps the declaration itself containing notice of the declaration which was valid on its face. In coming to such a conclusion the court might rely on the presumption of regularity and the absence of any material to suggest that the declaration was infected by jurisdictional error, but even in such an ordinary case, the question is whether or not the Court is satisfied that a valid declaration has been made and this is a question for the Magistrates Court.
We submit that there is no doubt that a defendant seeking to challenge the validity of a declaration in response to an application for a control order, whilst being at a disadvantage in lacking access to material provided to the Attorney‑General, may still question the validity of the declaration. The fact that the defendant is at a disadvantage does not produce invalidity. Any party to legal proceedings may be deprived of access to relevant information, for example, by reason of a successful claim of public interest immunity and this is so even in criminal proceedings.
That the court does not have access to all the information when determining the validity of administrative action is not to say that the court cannot properly make that determination, and in that respect we would refer to what was said by Justice Mason in Church of Scientology v Woodward 154 CLR 25 at page 61, which was adopted by your Honours Justices Gummow, Hayne, Heydon and Kiefel in the Gypsy Jokers Case 234 CLR 532, in paragraph 24, and also by Justice Crennan in paragraphs 179 to 180.
Just adverting to something that Justice Crennan said this morning, the defendant to an application for a control order could issue a summons for the production of documents which were before the Attorney‑General when making the declaration and this could include the criminal intelligence information. If that were to occur it would be for the Magistrates Court to determine whether the defendant had a legitimate forensic purpose for the issue of the summons and was not merely on a fishing exercise.
In that respect we would refer to the judgment of the Court of Criminal Appeal in New South Wales in Attorney‑General v Stuart (1994) 34 NSWLR 667 and in particular the judgment of Chief Justice Hunt at pages 675 to 676 that once a “legitimate forensic purpose” could be identified there is no reason why the material, the subject of the summons, could not be produced to the court and it would be for the court to determine any objection to the production of those documents, including an objection based on public interest immunity or on statutory prohibition grounds such as those contained in the Control Act.
We would submit that section 13(2) of the Control Act would not preclude the Magistrates Court from receiving those documents on the basis that it could examine that material to see whether or not there was any defect in the process under which the declaration was made. We say that because section 13(2) refers to “person” and there was ample authority for the proposition that a court is not a person and if I could just simply refer to Canadian Pacific Tobacco Company Ltd v Stapleton 86 CLR 1 and at page 6 in particular.
In doing so in looking at that material the Magistrates Court could then determine whether the parties or their legal representatives were able to inspect the documents produced to the court and to determine the admissibility of any documents which a party sought to tender in evidence. We would suggest it would undertake a process similar to that which was approved by Justice Kirby in the K‑Generation Case 237 CLR 501 and in particular in paragraph 257 at pages 578 to 580 where he commented on the way in which Justice Blaxell had dealt with that issue in Gypsy Jokers [No. 2] which is unreported but is at [2008] WASC 166.
The Court may remember that Justice Blaxell went through the material and in some instances determined that materials which had been classified as criminal intelligence had not been correctly classified and allowed that material to be made available to the appellant.
Having received the evidence and determined which was admissible, it would then be for the Magistrates Court to consider whether there was evidence or other material to replace the presumption of regularity and whether on all the evidence it was satisfied that a valid declaration had been made. In our submission, some assistance in this area can be provided by the case law relating to warrants. Reference was made to Ousley’s Case 192 CLR 69, this morning. In particular we would refer to passages in Ousley’s Case in the judgment of Justice Toohey at pages 79 to 80, Justice McHugh at page 103 and Justice Gummow at pages 130 to 131 which make it clear that a declaration such as the one in question here is open to collateral attack in proceedings such as the ones that would be being considered by the Magistrates Court in this situation.
There is one qualification to that which is, I think, highlighted by what your Honour Justice Gummow said at pages 130 and 131 in Ousley’s Case. This seems to be the effect of Murphy’s Case 167 CLR 94 which was referred to in Ousley. I refer in particular to what is said at page 105 that even though a decision of this kind can be subject to a collateral attack, it is not possible for the court that is being asked to consider that attack to question the sufficiency of the grounds upon which the warrant in that instance or, in this case, the declaration is made.
So an example of the kind of attack that I am suggesting could be made, if one looks at section 8 which says something about what the application must contain, there are matters there which the defendant to the application for a control order may have additional information concerning. I take, for example, (2)(e) where it is a requirement that the application set out details of any previous application. It may be that when the application is examined, there is no reference to a previous application or there might be a previous application that is not referred to. It is that kind of thing which could affect the validity of the declaration that had been made by the Attorney‑General. The declaration would be prone to such a collateral attack.
So to put it shortly, we would suggest that while in the ordinary run of cases, a proof of the making a valid declaration will be a relatively simple exercise by the production and tender of the Gazette or declaration, the declaration could still be the subject of a collateral challenge, a challenge to the validity of the declaration. It would be for the Magistrates Court, acting as a court usually does, in resolving these matters to consider that question.
The result would be, not that the court would declare that the declaration was invalid, but it would simply be placed in a situation where it could not be satisfied that a control order should be made because it would not have the required satisfaction that there was a declaration under the relevant part. If it please the Court.
FRENCH CJ: Thank you, Mr Solicitor. Solicitor for New South Wales.
MR SEXTON: If the Court pleases. Your Honours, subject to four short points we are happy to adopt the South Australian submissions. The first of those points is simply to note that there are analogues of the South Australian statute in New South Wales, Queensland and the Northern Territory. Your Honours do not have that legislation, but I was just going to make a general point about it, which is that all of those statutes separate two processes of the declaration of an organisation and the making of control orders against individuals.
All four statutes vest that second stage in a court, the Supreme Court, except in the case of South Australia where it is the Magistrates Court. As for the declaration stage, South Australia of course is vested in the Attorney‑General, in New South Wales and Northern Territory in eligible judges acting as persona designata and in Queensland in the Supreme Court.
No doubt there are different policy reasons for the different approaches, but our only point is to suggest that each will be constitutionally permissible, provided of course there is no contravention of the Kable principle, in other words, that there is no inflexible model that needs to be adopted for this kind of exercise, that there may be differences between jurisdictions and the question is one of constitutional validity. As to the second point ‑ ‑ ‑
FRENCH CJ: I am sorry, the legislation you are referring to is that which is mentioned at 4.17?
MR SEXTON: In our submissions, your Honour?
FRENCH CJ: Yes.
MR SEXTON: No. The New South Wales legislation is the Crimes (Criminal Organisations Control) Act 2009. I will just give your Honours references to ‑ ‑ ‑
GUMMOW J: That is at page 86 of the legislation bundle, is it not?
MR SEXTON: There was a legislation bundle which had the other States, but it is not the one that the South Australians distributed this morning, your Honour. It is a larger volume, which I think your Honour has, yes. If your Honours have that, you will see that New South Wales is at tab 11, the Northern Territory at tab 12, and Queensland at tab 13.
GUMMOW J: The Queensland one seems to be just a Bill, not a statute?
MR SEXTON: It has been enacted apparently, your Honour. Your Honours, as to the second point, there has been some criticism in the respondent’s submissions about the exercise of prediction that is required under the declaration process in South Australia and I simply wanted to give your Honours some references where exercises in prediction have been discussed and proved in recent decisions of the Court. In Fardon 223 CLR 575 by Justices Callinan and Heydon at page 657 it is paragraph 225, really, in that judgment, and in Thomas v Mowbray (2007) 233 CLR 307, the judgment of the Chief Justice at paragraph 19 and the judgment of Justices Gummow and Crennan at paragraphs 98 to 103.
Your Honours, as to the third point, which also arises out of Thomas, your Honours will recall that the basis for the interim control order in relation to Mr Thomas was that he had trained with a listed terrorist organisation and that list of terrorist organisations was set out in clause 4A of the Criminal Code Regulations 2002 made under the Criminal Code Act 1995 (Cth). So that, in effect, the nomination of those groups as terrorist organisations was done by the Governor‑General on the advice of the Executive, that is, in a sense by the Executive overall, after certain matters of which the relevant Minister had to be satisfied, and that then provided one basis for the making of an interim control order against the person who had received training from such an organisation.
In our submission, it is hard to see the difference between that exercise and what has happened in this case by reason of the declaration of the Attorney‑General and then the making of the control order that follows that. I think Justice Hayne has already referred to other instances in the Criminal Code (Cth) earlier today which also depended upon the definition of a listed terrorist organisation. The final point, your Honours, is ‑ ‑ ‑
HAYNE J: Just before you come to that, do I understand the New South Wales legislation, the Northern Territory legislation and the Queensland legislation all to provide for the making of declarations by either a court or a designated judge?
MR SEXTON: Yes, your Honour.
GUMMOW J: I think the New South Wales section, section 5(7), is very important, is it not? It is at page 92 of the big book.
MR SEXTON: Yes, your Honour. It deals with the way in which eligible judges ‑ ‑ ‑
GUMMOW J: Often made by the Attorney-General or a Minister of the Crown. I am not sure they have that in the Northern Territory.
MR SEXTON: I cannot answer that, your Honour, but my learned friend ‑ ‑ ‑
GUMMOW J: Yes, we will hear about that.
MR SEXTON: Yes. Now, the final point, your Honours, is to simply note that Justice Bleby, in a sense, in the court below looked at sections 10 and 14 together and we would simply note that even if one is going to do that, and we have adopted the submissions of the learned friend from South Australia, it would be important, in our submission, to look at section 17, the right of objection, section 18, the question of revocation or varying of the order and section 19, appeals to the Supreme Court, that, in other words, there may be differences of circumstances in terms of the sorts of grounds that could be pursued in relation to those provisions.
But it is important, we would say, to look at the scheme of the Act as a whole and, in addition, to 10 and 14, to look at those particular provisions which allow for processes of objection and for rights of appeal from the initial exercise that is contained in sections 10 and 14 and, in our submission, although Justice Bleby looked at the first two sections together, in a sense, he did not look at the entire structure of the legislation in that way. Unless there are any other matters, your Honours, those are our submissions.
FRENCH CJ: Thank you. Solicitor for Victoria.
MS TATE: May it please the Court, Victoria does not seek to make any oral submissions, your Honours.
FRENCH CJ: Thank you. Mr Solicitor for Queensland.
MR SOFRONOFF: Could I ask the Court first to go to Thomas v Mowbray 233 CLR 307 and to the passage in the reasons of Justice Callinan, to which his Honour Justice Gummow directed attention this morning - page 508. The question in Thomas v Mowbray, of course, was whether a determination of a function of a particular kind was apt to be conducted by the judiciary and his Honour, at paragraph 599, looked at some of the indicia of the exercise of judicial power which would pertain to the function conferred by the Act in that case upon the Court. His Honour observed in the middle of that paragraph:
Risks to democracy and to the freedoms of citizens are matters of which courts are likely to have a higher consciousness.
Could I then ask your Honours to go in that case to the reasons of the Chief Justice at page 326 where his Honour, at paragraphs 10 and 11, cited passages from the Boilermakers’ Case and from a text to the effect that there are some functions which can be dealt with administratively, or by being submitted to judicial power and, of course, we would add some of them can be dealt with legislatively.
There are some, your Honours, we respectfully submit, who might challenge Justice Callinan’s observation that risks to democracy and to the freedoms of citizens are matters of which courts are likely to have a higher consciousness. Whoever would be right in that debate is beside the point here for what is clear, in our submission, is that there are some functions which the legislature – for reasons of its own – can rightly confer upon the judiciary or the Executive, or proceed by force of legislation itself.
Now, in the case of acts like the present it is the fact that here in Australia, in the Commonwealth sphere, and also in some overseas jurisdictions, the proscription of organisations as terrorist organisations has been conferred upon the Executive, indeed, the vote seems to be in favour of the Executive in respect of those organisations. Can I give your Honours the references? Of course, we have our Crimes Act (Cth) with which your Honours are familiar. The Terrorism Act 2000 (UK) section 33 confers a power to proscribe upon the Secretary of State for the Home Department. The Canadian Criminal Code 1985, section 83.05(1) confers that power upon the Governor in Council. The New Zealand Terrorism Suppression Act 2002 confers it upon the Prime Minister and the United States 8 USC 2007 in paragraph 1189 confers it upon the Secretary of State.
Here, as we have apprehended the argument of our learned friends, there are two live issues. One is whether the function conferred upon the Attorney should have been conferred upon the Court. The second is whether the function conferred upon the Court ought to have been conferred upon the Attorney. There is the third option, whether the function should have been conferred as a whole upon one or the other and not splitting it.
In our respectful submission, the splitting of functions like that is commonplace. We have given examples in our written outline of cases where the legislature has enacted laws which would confer upon the Executive the power to declare the status or character of a thing or, indeed, of a place such that the courts must then have regard and give faith to that declaration in proceedings for, among other things, criminal offences.
The obvious cases are the various dangerous drugs legislation and, of course, the Customs Act itself which, while making it an offence to import a prohibited import, says nothing at all about what is a prohibited import but leaves that up to the legislature. Nobody would suggest that laws of that kind are laws which impugn the integrity of the courts enforcing those laws merely because the court must give effect to what I will call a declaration, whether by regulation or by some other form of executive action.
We would submit that all laws are concerned with the proscription or regulation of human behaviour. Even a law which on its face declares that a drug is a dangerous drug for an Act, has as its purpose the engagement of provisions of a statute which will affect the conduct of humans in the future in relation to that drug. Possession is one, but trafficking must involve in its definition an intrusion into the question whether persons may associate one with the other for the purposes of trafficking.
This Act appears to have caused consternation to the majority in the South Australian Supreme Court, I say that with respect, because it appears to be an action of the Executive in taking a step to proscribe association, what would otherwise be free association. In our respectful submission, any such consternation is misplaced when one has regard to the fact that criminal association, criminal combination, has for a long time in this country, been the subject of statutory proscription. It is true that the consorting statutes have entrusted the task of adjudication of all facts upon courts and did not involve the Executive in any degree.
It is also true to say that given the nature of the problem addressed by trying to hinder and restrict criminal association or associations for criminal purposes, that it was necessary to provide definitions for the use by the court which are of the vaguest and which were supported, we know from experience, merely by the oath of a police officer who would swear that the persons found at the pub were reputed criminals. That would be a difficult matter for a defendant accused of consorting with those persons to challenge or overcome.
Consequently, in our submission, it is not remarkable that an old method adopted by the legislature in this country – Justice Mason, as he then was, in the case that we cited in our outline, Johanson’s Case, pointed out that Australia pioneered legislation of that kind – or rather, Australasia did, it was New Zealand first – it is not remarkable that what laws like that do is to use broad language obliged by the difficulty of establishing to a criminal standard combinations entered into purely for criminal purposes.
The legislature here could have entrusted the whole of the matter to a court. There are undoubtedly reasons which could be debated either way as to whether the court or the Attorney‑General is the better placed to make a declaration in relation to an organisation. One can see immediately in cases like this one and K‑Generation and Gypsy Jokers that the court may be ill placed to perform this function because it is the hallmark of a court that subject to exceptions, and narrow ones at that, justice must be administered in open.
It is a hallmark of our system of justice that evidence ought in general be seen by all parties to the case. It can therefore never be guaranteed that a court having to perform this particular function could do so upon all materials that are available and are germane or at least do so without absolutely guaranteeing either on the one hand that the judicial process is not impugned by cloaking part of the proceedings with secrecy or by rejecting relevant material or by not being able to guarantee the confidentiality of material.
One thing we know about the Executive – and I mean in this narrow sense – is that if criminal intelligence is given to the Executive subject to unlawful disclosures its confidentiality can be guaranteed. Secondly, in our submission the legislature has evinced an appreciation that in cases of criminal organisations which in the past might have merely engaged in acts of violence or intimidation but are now engaged, we know from the materials, in the production of drugs, money laundering and matters of that kind, that it might be extremely difficult to establish to the satisfaction of a court ‑ ‑ ‑
GUMMOW J: Are you saying this is a defect in your State legislation?
MR SOFRONOFF: Not at all, your Honour. I said minds can differ about it. In Queensland, as your Honour has just observed, we have entrusted the task to the court, but we have also narrowed the matter that must be established to the satisfaction of the court. It is not as wide as the South Australian law. My submission is that whether the legislature, for reasons of its own, gives a particular function to the Court or to the Executive is a matter for it and it cannot be said ‑ ‑ ‑
GUMMOW J: The difficulty with that submission is the phrase “particular function”. As Justice Hayne took up with the Solicitor for South Australia this morning, there is a division in this case.
MR SOFRONOFF: Yes.
GUMMOW J: It is not one function.
MR SOFRONOFF: No, there are two. I am addressing the split of the functions.
HAYNE J: The fact of split is important, not least because attention must focus upon the nature of the task confided to the Court.
MR SOFRONOFF: Yes, your Honour. Indeed, the fact that the functions are split lies at the heart of the problem we would submit the Court has to address and decide. We would point to the fact that the legislature – the drug legislation is the obvious thing. The Customs Act also can confer a particular part of the function to the Executive to declare that a drug is a dangerous drug, which could equally have been conferred upon a court.
It used to be that the drink driving legislation required proof of actual drunkenness. Now a police officer produces a certificate and subject to it not being conclusive if it can be attacked in a number of ways, the function is split between the police and the judiciary. Equally, it could be the case that the offence of possession of a dangerous drug could be left entirely to the courts to determine on an ad hoc basis whether a particular drug is dangerous or dangerous in particular quantities.
HAYNE J: But the difference, whether it is significant or not, is the area for debate. There is a difference between creating a norm of conduct which says no person shall be a member of an organisation of a kind proscribed. So the Executive proscribes the organisation and an offence is created of being a member. You see an example of that in the terrorism provisions of the Criminal Code. But here what is the norm of conduct that is created? It is one that hinges about membership of an organisation. The consequence that follows from membership is not offence/no offence. The consequence is the deleterious consequence – I forbear from saying punishment or penal consequence, that is an area for debate – of modification of future conduct.
MR SOFRONOFF: Yes. Your Honour, that, in our submission, is a feature of this legislation which is in favour of its validity. Can I explain why? Under the Criminal Code (Cth) section 102.3:
(1)A person commits an offence if:
(a)the person intentionally is a member of an organisation; and
(b)the organisation is a terrorist organisation; and
(c)the person knows the organisation is a terrorist organisation.
So there are four elements to be proved; membership, intention, that the organisation is a terrorist organisation and that the person knows the organisation is a terrorist organisation.
HAYNE J: There is the excuse provision of subsection (2).
MR SOFRONOFF: Quite, and there is one of those in the South Australian Act. If one goes to the definition of “terrorist organisation”, there are two parts to the definition in 102.1. The first is an organisation that is in fact directly or indirectly engaged in terrorist acts and the second is one that has been specified by regulation. Consequently, an offence can be committed under 102.3 if the person is intentionally a member of that organisation, the organisation has been specified by the regulations as an organisation and the person knows that it is that.
The South Australian Act proceeds in two stages. There is no offence of membership of an organisation. There is an offence of associating with members six times or more over a period of 12 months, but in respect of membership the first stage is the exposure to a control order of which one might not have notice that the application had been but one is then served with the order and can avail oneself of the objection procedure.
So the first step of the Commonwealth legislation is that a member with knowledge, with mens rea, is an offender. The first step under the South Australian Act is that one becomes liable to the making of a control order which one can avoid. If the sole ground for the order is membership one can avoid that by ceasing to be a member.
Could I invite your Honours to look at the South Australian Act. The court can make a control order on broadly two grounds. One is that the defendant “is a member” and the second in subsection (2):
If the Court is satisfied –
of two things –
(a)the defendant –
(i) has been a member . . . or
(ii) engages, or has engaged, in serious criminal activity –
three bases –
and regularly associates with members –
If one is a member, and that is the basis, as in the Commonwealth Act, then, in our respectful submission, section 20 could be invoked. First, such a person could simply cease to be a member and then the court would only be entitled to make such an order if the person regularly associates with members, notwithstanding ceasing to be a member, and a law‑abiding person would not do that, so the policy of the legislature has it, one takes it. Secondly, under section 20:
The Court may vary or revoke a control order on application –
…
(b)by the defendant.
Subsection (2) provides that can only be done:
if the Court is satisfied there has been a substantial change in the relevant circumstances –
Of course, cessation of membership would unarguably be such a circumstance.
That is why, in answer to your Honour Justice Hayne, I said that is in favour of this legislation because under this Act you do not immediately commit an offence. You are not immediately committing an offence when the Attorney-General makes his declaration. Nothing changes for you except that you become liable to be controlled and you can avoid that liability by ceasing to be a member provided you do not want to associate regularly with the people who were formerly your members. One does not shrink from that because the very purpose of this legislation is to break those organisations and one can only break an organisation, an unincorporated one in particular, by preventing people from associating for the State purposes.
In our respectful submission, there is nothing remarkable about the task that the court is to perform or that the Attorney is to perform and there is nothing remarkable about the split. As to the task that the court is required to perform, in our respectful submission, the Kable principle applies if the court is conscripted or recruited to give the appearance of the sanctity of judicial process to something which is, in effect, in truth, just an extension of the Executive’s function. In our respectful submission, this is not it. It is true that the Court must act upon the faith of the declaration that the Attorney-General made, subject to limited challenge, but that does not by any means contained in the Act, in our submission, give the courts imprimatur to that declaration.
That declaration remains an Executive act. It remains a political decision by the Attorney-General of the day and that the court is obliged to give effect to it, if it finds other things proved, in no sense, in our submission, gives the imprimatur to an Executive act no more than the court in punishing a person for possession of cannabis expresses an opinion that cannabis is dangerous, about which opinions can differ. Secondly, it is not a recruitment which is a mere cloak for Executive action. In our respectful submission, this is a real process.
Membership is a very simple matter, although the definition is wide. Membership is a very simple matter, but it can be a very, very complicated and difficult matter to establish as we know from analogous legislation relating to the importation of heroin or, indeed, possession. The concept of importation or possession can be simple but it can be very, very difficult to establish. Indeed, we have weeks of trials to establish just that single fact. So, the issue of membership may be simple and easy, it may be simple and extremely difficult.
Secondly, the nature of the order that the court is obliged to make remains open and although the court is obliged to make a minimum order, that is not surprising because without making an order that a person who is a member must not associate with members and former members, the legislation is meaningless. So there is nothing, in our respectful submission, remarkable or tending to invalidity in that feature. The court, therefore, has to determine, according to the usual forms of judicial process, those matters. There remains the issue of using criminal intelligence. In our submission, nothing turns upon that, of course. We accept that there could be an accretion of features of legislation including permission to use criminal intelligence which taken together might invoke the Kable principle.
Your Honours will recall that in the K‑Generation case the whole of the material relied upon by the Licensing Court was criminal intelligence. In our submission, the statute nowhere obliges a court to be satisfied upon proof of any particular facts. The court is to be satisfied before it makes an order, it must make an order if it is satisfied, but if the court is only given untested, unchallengeable criminal intelligence, there is no reason coming from the legislation why the court must accept and act upon that material and, indeed, one would not be surprised if a court declined to be satisfied if that was all there was in the case.
The final matter is a brief one. The question was raised this morning in relation to challenging the Attorney’s declaration for jurisdictional error and how could that be done. If there was a defect in the materials put by the Commissioner to the – of course, an issue would have to be raised by somebody, but even before it is raised, a person properly advised would issue a subpoena for production of those materials. There was a case in this Court, Coco v The Queen, in which material that was to be led at the committal was obtained by the use of listening devices.
A subpoena was issued at the committal for production of the material that led to the issuing of the listening warrants and that uncovered that the material that had been obtained pursuant to the listening warrants had been obtained contrary to the Queensland Privacy Act with the
consequence that it was inadmissible. The matter reached this Court ultimately and equally here, if there is a view that the declaration of the Attorney ought to be looked at, there are means available, because it is court process, to look at it. Those means would not be available if the Attorney-General was given the function of determining whether a control order ought be made or ought not be made.
Your Honours, finally, may I refer your Honours to two articles we found in relation to the workings of legislation of this kind. The first is by Roger Douglas entitled “Keeping the Revolution at B: The Unlawful Association Provisions of the Commonwealth Crimes Act”, and it is to be found in (2001) 22 Adelaide Law Review 259. The other is “The Proscription of Terrorist Organisations in Australia” by Lynch and Others and your Honours will find that in (2009) 37 Federal Law Review 1. Those are our submissions, your Honours.
FRENCH CJ: Thank you, Mr Solicitor. Solicitor-General for the Northern Territory.
MR GRANT: May it please the Court, our submissions are reflected in those of the interveners from Western Australia, New South Wales and Queensland and we rely on our written submissions and adopt what has been said orally by those parties as well. There are three points in addition we would make, your Honours. The first relates to the structure of the Territory legislation. It is the Serious Crime Control Act 2009. We have government printer versions of that legislation that we will make available to your Honours. Section 12 of that legislation is in largely the same terms as section 5 of the New South Wales legislation dealing with the appointment by the Attorney of an eligible judge for the purpose of making declarations.
GUMMOW J: It is not in the same terms as the New South Wales Act. It does not have subsection (7).
MR GRANT: No, but it does have the requirement for consent, your Honour.
GUMMOW J: It is not a question of consent, it is a question of who selects in the first place.
MR GRANT: Yes, your Honour. It is a declaration by the Attorney. No, we do not have that same provision, your Honour, that is correct. The other point to be made in relation to the Territory legislation is that section 25 deals with the making of control orders by the court and it is couched in permissive rather than mandatory terms. The second point we make, your Honours, follows on from the submissions made by Queensland and New South Wales in relation to the operation of the anti‑terrorism provisions in the Criminal Code Act.
We would note only in addition, your Honours, that section 104.4 of the Code provides the condition for the “Making of an interim control order”, amongst other things, that the person in question has received training from a listed terrorist organisation”, and we put the submission that in terms of the engagement of the judicial process, that is not a function that has any significantly greater content than the determination of membership that falls to the court to make under the South Australian legislation.
The third point we make, your Honours, is that the section 10 declaratory function under the South Australian Act is not what might be characterised as part of the exclusive judicial function, which is the adjudication of criminal guilt and the subsequent imposition of penalty or involuntary detention as that function was described in Chu Kheng Lim and Kable. In terms of fact and degree, so far as there is any restriction on freedom flowing the making of a declaration and a subsequent control order, they are quite clearly of different fact and degree to what was described in those earlier cases as the consequence of the exercise of the exclusive judicial function.
The final point, your Honours, relates to the question when the court’s involvement in the process becomes apt to be described as a conscription by the Executive or the legislature. We would make the submission that Kable may be distinguished from the operation of this legislation in that the legislation in Kable was quite obviously limited in its effect to one individual, was not of general application and the question of the likelihood that the person in question might commit a serious act of violence was really answered, inevitably, by the evidence that the Executive adduced to the Court, which the Court was, pursuant to section 17(3) of that legislation, bound to receive in circumstances where the Act itself was predicated on communications made by Gregory Wayne Kable from the gaol which effectively made it inevitable that there would be an order in the terms contemplated by the legislation.
Your Honours, a similar observation was made by the Privy Council in Liyanage. The effect of that legislative direction in that case was to secure the conviction and increase the penalty of persons who were awaiting trial. The court observed that it was not enough that the likely effect might be that those persons would be subject to that conviction and that increase in penalty, it was necessary that that be the inevitable effect of the legislation for it to fall foul of the validity requirements.
Our submission in relation to the operation of the South Australian Act is it is not the inevitable effect of this legislation that any particular
person will be subject to a control order. What flows from that, in our submission, is that it is not a provision or cannot properly be characterised as a provision which obliges the Magistrates Court of South Australia to enforce a determination of the Executive. If it please the Court, they are the Territory’s submissions.
FRENCH CJ: Thank you, Mr Solicitor. Yes, Mr Walker.
MR WALKER: May it please the Court, the objects provisions in the legislation struck down by this Court in Kable told this Court something about the nature of the process in the central provision of that legislation which was perhaps a bit at odds with the actual words used in section 5 of that legislation. The word was “may”, the Court may order. In this case, in our submission, a combination of the objects and the nature of the administrative Act, the Executive Act, involved under section 10 performs a similar function for this extraordinary legislation as those provisions did in Kable.
The objects provision of the Serious and Organised Crime (Control) Act 2008 (SA) are, as you have been reminded, in subsection (1) first to disrupt and restrict the activities of organisations involved in serious crimes. “Serious crimes” is not a defined expression but is, no doubt, cognate with expressions to which I will be coming. “Involved” is also not defined but as a matter of English has at least a close relation if not a complete one with the commission of crime. The activities which are to be disrupted and restricted as the object of this statute also include those of what are called the members and associates of such organisations, not “some members” but “the members and associates”. “Members” are defined, I will be coming of course to that. “Associates” are not defined although both that word and cognates of that word are used in other important provisions to which I will be coming.
It is a wide net to the object casts and it casts over the members of such organisations. Furthermore, the object is couched in terms, that is the statutory declaration of the object of the whole Act is couched in terms which are difficult to resist as to their beneficial purpose. In paragraph (b) of subsection (1) they are:
to protect members of the public from violence associated with such criminal associations.
Subsection (2) has not received a lot of attention and it has to be said does not receive much attention, if any, in the succeeding provisions of the statute. I will be coming back to that later. It is not of direct or central importance to our argument. There was the objects provision which any magistrate in the Magistrates Court of South Australia would be bound to place to the forefront of his or her consideration of an application under section 14.
Under section 10 one has more focus brought but in precisely the same direction to those beneficial and protective purposes which are set out in section 4. The declaration, as we know, requires the Attorney‑General to be satisfied of certain things. To put it another way, if there is a declaration it means, as a matter of law, that the Attorney‑General has been satisfied of certain things and that is what it will mean to a Magistrates Court as well – as well as, that is, to members of the public concerned to observe the Magistrates Court in action.
Under paragraph (a) of section 10(1), one has a reference to past conduct, past conduct of a kind which either is all or it, or is largely criminal. I utter the qualification and offer the alternatives because it may be that the language of paragraph (a) goes beyond that which is criminal combination. It certainly includes all criminal combination.
I draw to attention, though not critical for present purposes, that the definite article does not appear before the word “members” in paragraph 10(1)(a). A passing point is that the Attorney‑General was mistaken in his second reading speech concerning that matter. However, what is of more substance is that that does not involve anything like all “members of the organisation” and we can see that from other provisions to which I will be coming. That is, it does not require all of them to:
associate for the purpose of organising, planning, facilitating, supporting or engaging in serious criminal activity –
It is only, your Honours, the possible vagueness, the fuzziness of the word “supporting” which differentiates that collection of descriptions of conduct from, of course, fully criminal conspiracy and probably the word “supporting” there ought to be used in a way reminiscent of aiding and abetting, so that whether it is conspiratorial or whether it is a direct aiding and abetting offence, paragraph 10(1)(a) looks like it is either completely, or very close to completely, concerned with the prior commission of crime.
So the magistrate sees and so the onlooker observing the magistrate at work will see the Attorney‑General has made a declaration, has been satisfied that people of a particularly important class for the fate of the defendant to the section 14 application has been satisfied of serious criminal offences having been committed. Not a conviction in sight, of course. Under paragraph (b) of section 10(1) a highly significant fact as to the nature of the satisfaction shown by the existence of a declaration on the part of the Attorney‑General and entirely fitting within and becoming a sharp focus for the beneficial purposes set out in section 4 is there set out in words which are unmistakable in their call for protection of the public, that is, their call for something to be done by the magistrate.
Because if there is a declaration, then the magistrate is told thereby and anybody seeing the magistrate will know the magistrate appreciates that the Attorney‑General was satisfied that “the organisation” – that is the identified one “represents” – not may represent but –“represents a risk to public safety and order in” South Australia. Those are the conditions which, if there has been a declaration, go part and parcel with the fact of that declaration being made by reason of they constituting the components of the state of mind which itself is the jurisdictional fact for the power to make a section 10(1) declaration.
What this Court is asked to construe as an overall legislative scheme is one under which the impugned provision, section 14(1), comes about during court process involving a judicial officer, being a judicial officer who may from time to time exercise the judicial power of the Commonwealth. Those who see the magistrate at work, knowing the matters to which I have just referred, are entitled to ask after the magistrate has done the work that he or she has to perform under section 14, can there be any doubt as to where, in practice, and I stress “in practice” because that is where perceptions matter – whether the magistrate will exercise a power.
They then look more closely at subsection (1) and they see that Parliament has in fact said that the court must do so, leaving a discretion under subsection (1) only concerning whether there would be specified exception to what is otherwise the blanket, as it has been called, prohibition on the kind of association which we are told in sections 4 and 10 is an association which represents a risk to safety and public order in South Australia.
It is for those reasons, in our submission, that one has already – by sections 4, 10 and 14 - the word “must” in subsection (1), the discretion “may” in relation to section 14(5) in terms of specified exceptions – one already has an accumulation of features which in our submission raises at least the possibility prima facie that those of the requisite quality to supply the constitutional test, observing the magistrate at work will expect the magistrate to be putting the final touches to, to carry into effectuation or execution that which the legislature wanted and that which the Executive has designated for a particular group of people.
So we have three arms of Government involved, the Executive it is who selects the particular target pursuant to laws made by the legislature permitting the Executive to carry out the targeting. But the sights might be locked on the object, the target. What the public will then see is that it is the magistrate who pulls the trigger. It will be the magistrate ‑ ‑ ‑
HEYDON J: You are stressing what the public sees and what people sitting in court see. Is that really the test? Is not the test one of repugnancy; actual objective, not mere perception?
MR WALKER: With great respect, your Honour’s stricture is, of course, well made in terms of the evolution of the Kable principle and its articulation and I entirely accept what your Honour has said about the true principle. I am putting these arguments because, in our submission, the weight of authority shows the continued cogency of a concern for the possible repugnancy, that is, detraction from institutional integrity, when legislation permits the Executive to benefit from the prestige, status and character of judicial process carried out by judicial officers.
When one talks about the Executive being able to take advantage pursuant to the legislation in question, of the prestige and nature of the judicial process, one is perforce imagining the impact on an imaginary observer of seeing a judge do something and observing that in reality something that the Executive has willed, pursuant to legislative authority so to do, should happen.
HEYDON J: It may be the consequence of breach of the test - my point is only to a question whether it really is the test.
MR WALKER: I accept entirely what - I think in our written submission we agree with the way in which South Australia puts it. I think it is common ground between us and South Australia at least as to the way in which the principle should be expressed. The consequence, to adopt Justice Heydon’s description of the effect on observers, the consequence is, in our submission, a reason why this is a fundamentally important constitutional rule.
HEYDON J: Since you will be stopping soon, can I just ask you a question which you can answer in the morning? Do you adhere to paragraph 85 of your written submissions? There is no need to go to it now.
MR WALKER: Not unqualified, your Honour. The validity question turns ultimately on an understanding of section 41 in the legislative scheme as a whole, but as we understand the way in which the Full Court determined this matter, there are matters of validity which are, as it were, ex facie, matters of, I will call them paperwork. Understood more broadly, no, we do not accept that when their Honours in the majority refer to validity they are referring to what I will call the substance of the matter either as to merits or acting within power, either of the making of the application or the making of the declaration.
In summary, the answer to Justice Heydon’s question is no, not really, but we do have to try and understand the way in which the majority referred to questions of validity. As we apprehend it, it culminates in an unreviewability, apart from obvious matters as to whether what is placed before the section 14 court answers the description, on its face, the declaration about an organisation. That will be to accord to validity a very formal content indeed, but that is as we have put it in paragraph 85.
GUMMOW J: Also overnight, your written submissions, and it is understandable, do not at this stage respond to the matters that Queensland put – the reference to cases like Coco v The Queen 179 CLR 427, for example.
MR WALKER: Yes.
GUMMOW J: You will think about that overnight?
MR WALKER: Yes.
FRENCH CJ: It might be a convenient moment, Mr Walker. The Court will adjourn until 10.15 am tomorrow.
AT 4.16 PM THE MATTER WAS ADJOURNED
UNTIL WEDNESDAY, 21 APRIL 2010
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