State of South Australia v Totani & Anor

[2010] HCATrans 22

[2010] HCATrans 022

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Adelaide  No A20 of 2009

B e t w e e n -

THE STATE OF SOUTH AUSTRALIA

Applicant

and

SANDRO PETER TOTANI

First Respondent

DONALD BRIAN HUDSON

Second Respondent

Application for special leave to appeal

FRENCH CJ
KIEFEL J

TRANSCRIPT OF PROCEEDINGS

FROM MELBOURNE BY VIDEO LINK TO ADELAIDE

ON FRIDAY, 12 FEBRUARY 2010, AT 9.31 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, for the applicant.  (instructed by Crown Solicitor’s Office South Australia)

MR S.J. DOYLE:   If the Court pleases, I appear with my learned friend, MR C.J. CALDICOTT, for the respondent.  (instructed by Caldicott and Co)

FRENCH CJ:   Mr Doyle, the Court might be assisted to hear from you first on why special leave should not be granted in this matter.

MR DOYLE:   Yes, your Honours.  In my submission, there are perhaps six reasons why special leave should not granted in this case.  I will perhaps just list them to start with and then to the extent time permits develop some or all of them.  The first is that properly understood Justice Bleby’s reasons are no more than an application of a settled aspect of the Kable doctrine, namely, that part that prescribes legislation which impinges upon the independence of the courts from, in this case, the Executive arm of government. 

The second proposition is that – and it is really the converse of the first – that properly understood Justice Bleby’s reasons do not establish any general principle, let alone one of universal application, in relation to the enlivening of the Kable doctrine by reference to executively or legislatively determined facts.

The third is that, again properly understood, there is no difference or issue of principle between the reasons of Justice White, on the one hand, and Justice Bleby on the other hand; they both apply the same approach as a matter of principle, just reach a different outcome in this case.

The fourth is that in any event, in my submission, this is a relatively strong candidate for the application of the Kable doctrine given the fairly unique combination of circumstances in this legislative scheme, namely, not only the limited and mandatory nature of the section 14(1) role of the Magistrates Court, but also the significance of the decision making on the part of the Executive as well as a number of the protections that are absent from that aspect of the decision‑making process.

Fifthly, there is, in my submission, limited public importance associated with this decision, or at least its relevance to the issue of public importance, that the broadly or very generally similar legislation and Bills in other States have important distinctions that mean that this decision or any decision of the High Court on appeal would be of limited significance in terms of its precedential value. 

Sixthly, in my submission, that there is also an issue about whether this is an appropriate vehicle to the extent that there is an issue of principle lurking in relation to the significance of executively determined facts for the Kable doctrine, and that is because, as is apparent from the face of both Justice Bleby and Justice White’s reasons, that there are a number of construction issues that impinge upon the ultimate crystallisation of the issue of principle.  Even within the Full Court their Honours took different views about various points but there are clearly a number of construction issues that need to be determined before the ultimate issue arises, so it is somewhat buried to the extent the point relied upon by my friend as the point giving rise to special leave arises.

FRENCH CJ:   If the key issue is the Kable doctrine – and I accept that you are raising some other matters – is there anything unusual about the notion of a court being invested with jurisdiction to ascertain rights and liabilities, the existence of which are in whole or in part dependent upon an executive Act or determination of some kind?  I think I referred to one such case in the High Court in our decision in International FinanceTrust, and I think the Solicitor‑General may have referred to that passage, but there is nothing particularly unusual about that, is there?

MR DOYLE:   Not unusual in the sense that it represents any departure from settled principle.  My friend relies upon, I think it is paragraph [49] from your Honour’s reasons, but your Honour in the following paragraph goes on to refer to the settled aspect of the Kable doctrine upon which we and Justice Bleby relied, namely, the impingement upon the appearance of independence.  Now, it is my submission there is no reason why as a matter of ‑ ‑ ‑

FRENCH CJ:   You would not contend that this is a case in which the Executive effectively determines the manner in which the Court must exercise its jurisdiction?

MR DOYLE:   No, it is primarily an outcome case, but it does have some aspects of manner to the extent that, in my submission, it is relevant, the narrow ambit of the section 14 exercise that the court is to carry out, but it is more squarely an outcome case than a manner case.  It is my submission that there is no reason why as a matter of principle in a given case the handing over of the bulk of a decision‑making process and the significant part of the decision‑making process to the Executive cannot trigger the aspect of the Kable doctrine upon which we rely, namely, give rise to the requisite lack of appearance of independence.

What we do say though is that Justice Bleby’s reasons do not give rise to any universal principle to the effect that that will always be the case, or generally be the case.  His Honour recognises in his reasons that there are circumstances, such as the controlled substances legislation, where that sort of mechanism is employed by the State Parliament and is unexceptional.  It is the nature and extent of the decision‑making that is handed over to the Executive here, combined with the limited function of the courts under section 14, together with the fact that the court’s role under 14(1) is predicated not only on a substantial decision by the Executive but also one that does not have a number of the ordinary safeguards or protections of judicial process.  So there are aspects of manner that are relevant, but it is primarily an outcome case.

KIEFEL J:   In this case there was a dissentient in the court.

MR DOYLE:   Yes, there was, and in my submission properly analysed there is no issue of principle or no dispute as to matters of principle, between Justice White and Justice Bleby.

KIEFEL J:   Do you say it turns principally on a question of construction?

MR DOYLE:   Yes, I do, and that, in my submission, is most clear from paragraph 273 of Justice White’s reasons where his Honour acknowledges that there will be cases, or may be cases – this is at application book page 77, paragraph 273 - his Honour acknowledges that in light of the Kable doctrine:

There may be cases in which the area of decision‑making entrusted to a court is so subordinate to that of the executive, and its manner of exercise so directed, that the court’s independence and capacity to act impartially is impaired.

So that is the rendering of an instrument, or having the appearance of an instrument.

FRENCH CJ:   Well, I suppose if, for example, a law provided that upon declaration by the Attorney‑General that X was a dangerous person, and upon the court being satisfied that such a declaration had been made, the court must make an order that X be detained at the Attorney‑General’s pleasure.  That would be an example, I suppose, of the kind of case in which the court’s role would be a mere rubber stamping of an executive decision.

MR DOYLE:   In my submission, that is correct, and in my submission, that is the substance of the legislation here, albeit it proceeds by way of the labelling of a group rather than an individual, which in one respect perhaps makes it a more objectionable process, but putting that to one side ‑ ‑ ‑

FRENCH CJ:   It does require a determination by the court whether the person designated as the defendant in section 14 of the Act:

(ii)      engages, or has engaged, in serious criminal activity –

That is one fact‑finding exercise, and secondly whether that person –

regularly associates with members of a declared organisation ‑ ‑ ‑

MR DOYLE:   In my submission, your Honour – and as construed by the court below – the court’s role in that respect only comes in at the secondary stage.  The court must make the order, albeit it must have regard to those section 14(6) factors when determining the scope in terms of the individual order, but there are requisite minimums in standards or provisions that the order must contain, as are set out in section 14(5).  So in terms of whether or not an order should be made and contain the standard or minimum restrictions, then in my submission, the analogy is strong with the example your Honour posed.  I accept that at the secondary stage of determining the precise scope of the orders there is room for some judicial decision‑making process and evaluating ‑ ‑ ‑

FRENCH CJ:   Well, the mandated order comes in under section 14(1), where a person is shown to actually be a member.

MR DOYLE:   Yes.  So, in my submission, that is the vice of this Act.  The section 14(2) application, which we are not dealing with here, may raise different considerations because the circumstances of the individual other than membership will presumably be relevant from the outset, whereas under section 14(1) that is not the case and it is only ‑ ‑ ‑

KIEFEL J:   Even if the decision of the court below be correct why is not this question of sufficient importance that this Court should pronounce upon it?

MR DOYLE:   In that respect, your Honour, it is really the last two factors that I identified at the outset.  First of all, it is in terms of its direct precedential effect on other legislation.  Well, there are important differences between the regime for control orders in South Australia and those both enacted and proposed interstate.  In particular, the mandatory nature of section 14(1) is not seen in the interstate counterparts, but also whilst there is an analogous process to the Attorney’s decision‑making process here it is one that is vested in an independent judicial officer rather than a member of the Executive Government per se.  So there is, in my submission, unlikely to be any direct precedential effect.

As I said in my written outline, a second consideration is that this Court has considered Kable on a number of occasions, and if my submission be accepted that Justice Bleby’s reasons are no more than an application of the instrument or independence aspect of that doctrine that is well recognised and accepted, I mean it really is just a case which might have significance in South Australia and to a number of individuals, but is nevertheless just an application of relatively settled principle. 

The final matter is just the – which is really related to the two that I have just mentioned – is that the issue of principle to the extent it exists here and involves testing the boundaries of the Kable doctrine is one that is bound up in a myriad of construction issues that make it not an entirely appropriate vehicle to crystallise an issue that would be of general importance.

Your Honours, the final matter is perhaps – I think it was the third in my initial list – but this being a strong case for the application of the Kable doctrine in any event, and it perhaps also relates to the limited precedential effect of any decision that this Court might make in relation to this matter if leave were granted.  There was a unique combination of mechanisms in this piece of legislation that make it a strong candidate for the application of the Kable doctrine.  They are, first of all, the significance of the Executive decision‑making process.  Standing back for a moment, the scheme of this Act is – or the relevant parts of it is clearly to allow for the making of control orders in relation to – to put it simply or to paraphrase – persons who are determined to be, or to associate with, people who associate for criminal purposes and with an impact upon public safety.

Now, the entirety of that decision‑making process, apart from the fact of membership is one that is given to the Executive arm of the government, so when one looks at the overall scheme – and in my submission one has to do that when applying the Kable doctrine – the overwhelming proportion of the decision‑making process is given to the Executive.  Secondly, and perhaps the flipside of the same coin, is the limited and to a large extent mandatory role on the part of the courts.  Whilst as their Honours make clear in construing the legislation, there are at the second part of the inquiry, namely, the drafting of the terms of the orders, there is scope for the court to weigh and consider various factors.

In terms of whether an order should go in the first instance, it really is just an issue of, is the person a member, and was the declaration invalidly made?  They are, in my submission, often going to be simply formal matters, although I do not go as far as saying that that will always be the case.

FRENCH CJ:   The minimum requirements of a control order are those in 14(5)(b).  Is that right?

MR DOYLE:   Yes.

FRENCH CJ:   Where you are dealing with a person who “is a member of a declared organisation”?

MR DOYLE:   Yes.  There is a slight qualification of that in that even section 14(5)(b), as my friend will no doubt point out to your Honours, the catch‑all at the end:

except as may be specified in the order.

In my submission, the intention of Parliament is clear, and to take Kable as an example the form of the legislation was still the court must be reasonably satisfied of the various matters, but this Court decided that nevertheless the intention of Parliament was clear, and in my submission, that analogous approach is applicable here.

Now, it is the third factor, it is the combination point, it is the combination of those two factors that I have adverted to, namely, the significant role of the Attorney’s decision, the limited role and largely mandatory nature of the court’s role, together with the third factor, the absence of a number of the ordinary safeguards of judicial process in the Attorney‑General’s decision‑making process - it is the combination of those three in this case that makes it a strong candidate for an application of the Kable doctrine, each on its ‑ ‑ ‑

FRENCH CJ:   Incidentally – sorry to interrupt, but there is no suggestion in this case, is there, that an application for a control order must be heard without notice to the person affected if the application is made without notice.  We do not have any ‑ ‑ ‑

MR DOYLE:   There was, your Honour; I hear from my right there is no longer.  It was put to the court below by my friend that properly construed section 14(3) did require an ex parte hearing, which submission was not accepted by the Full Court, and it was not a submission that my leader at the time advanced, and their Honours below decided that point against my friend and said that, no, the court did retain the ability to determine whether or not the application should proceed ex parte, so obviously that would have difficulties under the International FinanceTrust Case if that point were otherwise, but I do not understand that to be agitated any longer.

KIEFEL J:   I take it from what you have said before that you do not consider that the difference of approach between Justices Bleby and White to the task that the Magistrates Court is to undertake to be important or warrant further consideration?

MR DOYLE:   In my submission, no.  If anything, in my submission, it is a matter that goes against the grant of leave in that their Honours Justice White and Justice Bleby differed slightly as to precisely what the court’s role was under section 14 and the limits of that, but both positively held back from finally determining a number of those issues.  At the end of the day, Justice Bleby’s decision did not rest upon a precise understanding of the court’s role under section 14. 

Whilst that was relevant the limited and mandatory nature of the role was relevant, it was really the relative size of that role and the significance of it compared to that of the Executive that gave rise to the appearance of a lack of independence on the part of the court, or to use the vernacular, the invoking of the court as a rubber stamp in effect of the Executive’s decision, so to use some language that is used in some of the authorities, to borrow the reputation and respectability of the courts for what is in substance a decision that is made by the Executive arm of government. 

In that respect the case is a strong one for the application of the Kable doctrine because of that convergence of three factors which in some cases might be sufficient on their own.  Here Justice Bleby did not accept that any was sufficient on their own, but nevertheless that the combination of them made this legislation, or at least the relevant part of it, invalid.  Unless there is any other matters that your Honours would like me to address, they are the submissions that I intended to put.

FRENCH CJ:   Thank you, Mr Doyle.  We will not need to trouble you, Mr Solicitor.  There will be a grant of special leave in this matter.  This, I presume, could be dealt with within the compass of one day?

MR HINTON:   I imagine there will be a number of interveners.  It would be safe to allow a day and a half.

FRENCH CJ:   Yes, all right.  There will be a grant of special leave and we will set that down for a day and a half.

AT 9.52 AM THE MATTER WAS CONCLUDED