Totani v The State of South Australia - [2009] SASC 301

SUPREME COURT OF SOUTH AUSTRALIA
(Full Court: Case Stated)
TOTANI & ANOR v THE STATE OF SOUTH AUSTRALIA
[2009] SASC 301
Judgment of The Full Court
(The Honourable Justice Bleby, The Honourable Justice White and The Honourable Justice Kelly)
25 September 2009
CONSTITUTIONAL LAW - THE NON-JUDICIAL ORGANS OF GOVERNMENT - THE LEGISLATURE - LEGISLATION AND LEGISLATIVE POWERS - LEGISLATIVE POWERS
HIGH COURT AND FEDERAL COURT - THE FEDERAL JUDICATURE - NATURE AND EXTENT OF JUDICIAL POWER - CONFERRAL ON STATE COURTS
Questions reserved for consideration of Full Court – Serious and Organised Crime (Control) Act 2008 (SA) – s 10(1): Attorney-General’s declaration in respect of an organisation – s 14(1): Magistrates Court must make a control order if satisfied that a person is a member of a declared organisation – plaintiffs members of declared organisation – control order made in respect of first plaintiff – application for control order made in respect of second plaintiff – whether s 10(1) and s 14(1) are valid laws – consideration of Kable principle – consideration of proper construction of Act – whether Court exercising jurisdiction under s 14(1) is acting as an instrument of the Executive – whether institutional integrity of Court as a repository of federal jurisdiction compromised.
Held (by Bleby and Kelly JJ, White J dissenting): Section 14(1) is invalid – control order made against first plaintiff is void – not necessary to decide whether s 10(1) is a valid law.
Constitution s 75, s 76, s 77; Serious and Organised Crime (Control) Act 2008 (SA) s 3, s 4, s 5, s 8, s 9, s 10, s 11, s 12, s 13, s 14, s 15, s 16, s 17, s 18, s 19, s 20, s 21, s 22, s 35, s 41; Supreme Court Act 1935 (SA) s 49; Summary Offences Act 1953 (SA) s 13, s 15; Acts Interpretation Act 1915 (SA) s 22A; Evidence Act 1929 (SA) s 5, s 69A; Magistrates Court Act 1991 (SA) s 3, s 7, s 10, s 18, s 38, s 40; Controlled Substances Act 1984 (SA) s 32; Bail Act 1985 (SA) s 10; Domestic Violence Act 1994 (SA) s 9; Criminal Law (Sentencing) Act 1988 (SA) s 6, s 23; Supreme Court Civil Rules 2006 (SA) r 294; Magistrates Court (Civil) Rules 1992 (SA) r 4, r 19, r 37A, r 70, r 71, r 72, r 87; Prevention of Terrorism Act 2005 (UK), referred to.
Kable v Director of Public Prosecutions for the State of New South Wales (1996) 189 CLR 51, applied.
K-Generation Pty Ltd v Liquor Licensing Court (2009) 83 ALJR 327, distinguished.
Briginshaw v Briginshaw (1938) 60 CLR 336; Fardon v Attorney-General for the State of Queensland (2004) 223 CLR 575; North Australian Aboriginal Legal Aid Service Inc v Bradley (2004) 218 CLR 146; Forge v Australian Securities and Investments Commission (2006) 228 CLR 45; Thomas v Mowbray (2007) 233 CLR 307; Gypsy Jokers Motorcycle Club Inc v Commissioner of Police (2008) 234 CLR 532; Re Criminal Proceeds Confiscation Act 2002 [2004] 1 Qd R 40; Electric Light and Power Supply Corporation Ltd v Electricity Commission of NSW (1956) 94 CLR 554; Secretary of State for the Home Department v AF (No 3) [2009] 3 All ER 643; Hall v Nominal Defendant (1966) 117 CLR 423; Malouf v Malouf (1999) 86 FCR 134, discussed.
Nicholas v The Queen (1998) 193 CLR 173; HA Bachrach Pty Ltd v State of Queensland (1998) 195 CLR 547; Silbert v Director of Public Prosecutions for Western Australia (2004) 217 CLR 181; International Financetrust Co Ltd v New South Wales Crime Commission (2008) 251 ALR 479; Osenkowski v Magistrates Court of South Australia (2006) 96 SASR 456; R v Ironside (2009) 104 SASR 54; New South Wales v The Commonwealth (Work Choices Case) (2006) 229 CLR 1; Lane v Channel Seven Adelaide Pty Ltd (2004) 232 LSJS 234; R v Hickman; ex parte Fox and Clinton (1945) 70 CLR 598; R v Coldham; ex parte Australian Workers’ Union (1982) 153 CLR 415; Darling Casino Ltd v New South Wales Casino Control Authority (1997) 191 CLR 602; Plaintiff S157 v The Commonwealth (2003) 211 CLR 476; A v Secretary of State for the Home Department [2005] 2 AC 68; Roberts v Parole Board [2005] 2 AC 738; Secretary of State for the Home Department v MB [2008] 1 AC 440; Charkaoui v Canada (Minister of Citizenship and Immigration) [2007] 1 SCR 350; Hamdi v Rumsfeld (2004) 542 US 507; Brandy v Human Rights and Equal Opportunity Commission (1995) 183 CLR 245; A v UK (2009) 268 BHRC 1; Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24; Buckley v The Queen (2006) 164 A Crim R 312; Director of Public Prosecutions v George (2008) 102 SASR 246; R v Davison (1954) 909 CLR 353; Johanson v Dixon (1979) 143 CLR 376; Commissioner of Police New South Wales v Nationwide News Pty Ltd (2008) 70 NSWLR 643; Police v Lymberopoulos (2007) 98 SASR 433; Attorney-General v Quin (1990) 170 CLR 1; Coco v The Queen (1994) 179 CLR 427; Director of Public Prosecutions (ACT) v Hiep (1998) 86 FCR 33; Licul v Corney (1976) 180 CLR 213; Carr v Finance Corporation of Australia Ltd (1981) 147 CLR 246; Sanofi v Parke Davis Pty Ltd (No 1) (1982) 149 CLR 147; Commissioner of Taxation v Ahern (1986) 87 FLR 112, considered.

TOTANI & ANOR v THE STATE OF SOUTH AUSTRALIA
[2009] SASC 301
Full Court: Bleby, White and Kelly JJ
BLEBY J.
Introduction

This matter comes before the Full Court by way of questions reserved pursuant to s 49 of the Supreme Court Act 1935 (SA) and r 294 of the Supreme Court Civil Rules 2006 (SA).
On 25 May 2009 the Magistrates Court of South Australia made a control order in respect of the second plaintiff, Mr Hudson. The order was made pursuant to s 14(1) of the Serious and Organised Crime (Control) Act 2008 (SA) (“the Control Act”). By the order Mr Hudson was prohibited from associating with other persons who are members of organisations which are declared organisations for the purposes of the Control Act unless the association occurred between members of a registered political party at an official meeting of that party and unless certain other conditions were fulfilled. The order also prohibited Mr Hudson from possessing a dangerous article or prohibited weapon within the meaning of s 15 of the Summary Offences Act 1953 (SA).
On 4 June 2009 the Commissioner of Police applied to the Magistrates Court for a similar order in respect of the first plaintiff, Mr Totani. The hearing of that application was adjourned on the application of Mr Totani. It had not been dealt with at the time these questions were reserved.
Although the present plaintiffs are defendants in the Magistrates Court proceedings, I will refer to them collectively in these reasons as “the plaintiffs”. In order to avoid confusion with the “defendant” referred to in s 14 of the Control Act I will refer to the present defendant, the State of South Australia, as “the respondent”.
The ground on which the order was made in Mr Hudson’s case was that Mr Hudson is a member of a declared organisation, namely the Finks Motorcycle Club, also known as the Finks MC, Finks M.C. Incorporated, Finks M.C. INC. and the Finks. I will refer to it as “the organisation”. On 14 May 2009 the Attorney-General had made a declaration pursuant to s 10(1) of the Control Act in respect of the organisation, by which it became a declared organisation.
On 26 May 2009 the plaintiffs issued a summons and statement of claim in this Court seeking a declaration that each of Parts 2 and 3, or in the alternative s 14(1), of the Control Act is invalid, and a further declaration that the declaration made by the Attorney-General on 14 May 2009 is invalid. The relevant facts were not in dispute.
The questions reserved on 3 July 2009 for consideration of the Full Court are:
1Is s 10(1) of [the Control Act] a valid law of the State of South Australia?
2Is the declaration by the Attorney-General [affecting the organisation] void and of no effect?
3Is s 14(1) of [the Control Act] a valid law of the State of South Australia?
4Is the control order in respect of [Mr Hudson] made on 25 May 2009 void and of no effect?
The Serious and Organised Crime (Control) Act 2008
The Control Act was assented to by the Governor on 15 May 2008 and commenced by proclamation on 4 September 2008.[1] The objects of the Act are stated in s 4:
[1]    Gazette 4 September 2008, p 4227.
4—Objects
(1)     The objects of this Act are—
(a)     to disrupt and restrict the activities of—
(i)     organisations involved in serious crime; and
(ii)    the members and associates of such organisations; and
(b)     to protect members of the public from violence associated with such criminal organisations.
(2)Without derogating from subsection (1), it is not the intention of the Parliament that the powers in this Act be used in a manner that would diminish the freedom of persons in this State to participate in advocacy, protest, dissent or industrial action.
Part 2 of the Control Act provides for the Commissioner of Police to make an application to the Attorney-General for a declaration under that Part in relation to an organisation. Section 8(2) specifies certain matters which have to be included in the application, including the grounds on which the declaration is sought and information supporting such grounds. Notice of the application must be published in the Gazette, which notice must invite members of the public to make submissions to the Attorney-General in relation to the application within a specified time.[2]
[2] Control Act s 9.
Section 10(1) of the Control Act provides:
(1)If, on the making of an application by the Commissioner under this Part in relation to an organisation, the Attorney-General is satisfied that—
(a)     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 this State,
the Attorney-General may make a declaration under this section in respect of the organisation.
Section 10(3) specifies a number of matters to which the Attorney-General may have regard in considering whether or not to make a declaration under the section. It provides:
(3)    In considering whether or not to make a declaration under this section, the Attorney-General may have regard to any of the following:
(a)any information suggesting that a link exists between the organisation and serious criminal activity;
(b)any criminal convictions recorded in relation to—
(i)current or former members of the organisation; or
(ii)persons who associate, or have associated, with members of the organisation;
(c) any information suggesting that—
(i)current or former members of the organisation; or
(ii)persons who associate, or have associated, with members of the organisation,
have been, or are, involved in serious criminal activity (whether directly or indirectly and whether or not such involvement has resulted in any criminal convictions);
(d)any information suggesting that members of an interstate or overseas chapter or branch of the organisation associate for the purpose of organising, planning, facilitating, supporting or engaging in serious criminal activity;
(e)any submissions received from members of the public in relation to the application in accordance with section 9;
(f) any other matter the Attorney-General considers relevant.
It will be noted that the matters to which regard may be had relate not to the affairs or property of the organisation but to the activities of the members of the organisation or of an overseas or interstate chapter of it and of those who associate with such persons.
Subsection (4) makes it clear that the Attorney-General may be satisfied as to the matters raised in s 10(1)(a) whether or not all members of the organisation associate for that purpose, provided that those who do constitute a significant group within the organisation, whether or not members associate for the purpose of organising, planning, facilitating, supporting or engaging in the same serious criminal activities or different ones, and whether or not the members also associate for other purposes.
Section 11 provides for publication of a notice of the declaration in the Gazette and in a newspaper circulating throughout the State. Section 12 enables the Attorney-General at any time to revoke a declaration, with publication in similar manner of such revocation.
Section 13(1) provides that the Attorney-General is not required to provide any grounds or reasons for the declaration other than to a person conducting a review under Part 6 of the Act if that person so requests. Part 6 provides for an annual review to determine whether the powers under the Control Act have been exercised in an appropriate manner having regard to the objects of the Act, and for a review of the operation and effectiveness of the Act after four years. There is no statutory provision for the review of a declaration by the Attorney-General under s 10(1).
Section 13(2) provides that no information provided by the Commissioner may be disclosed to any person, other than for the purposes of a review under Part 6 or to a person to whom the Commissioner authorises its disclosure, if the information is classified by the Commissioner of Police as “criminal intelligence”. That expression is defined in s 3 as follows:
criminal intelligence means information relating to actual or suspected criminal activity (whether in this State or elsewhere) the disclosure of which could reasonably be expected to prejudice criminal investigations, to enable the discovery of the existence or identity of a confidential source of information relevant to law enforcement or to endanger a person's life or physical safety;
The definition is also relevant to other provisions of the Act and is discussed below.
The effect of s 13(2) is that quite significant information relating to the activities of members of the organisation which may be very relevant to the matters to be considered under s 10(1) cannot be made available to persons making submissions or to persons who may be directly affected by the declaration.
It will be necessary to return to a consideration of the effect of a declaration under s 10(1) of the Act.
Part 3 of the Act relates to the making of control orders. Of particular significance to this case are the provisions of s 14:
14—Court may make control order
(1)The Court must, on application by the Commissioner, make a control order against a person (the "defendant") if the Court is satisfied that the defendant is a member of a declared organisation.
(2)The Court may, on application by the Commissioner, make a control order against a person (the "defendant") if the Court is satisfied that—
(a)     the defendant—
(i)has been a member of an organisation which, at the time of the application, is a declared organisation; or
(ii)engages, or has engaged, in serious criminal activity,
and regularly associates with members of a declared organisation; or
(b)     the defendant engages, or has engaged, in serious criminal activity and regularly associates with other persons who engage, or have engaged, in serious criminal activity,
and that the making of the order is appropriate in the circumstances.
(3)A control order may be issued on an application made without notice to any person.
(4)The grounds of an application for a control order must be verified by affidavit.
(5)     A control order—
(a)     may prohibit the defendant from—
(i)associating or communicating with specified persons or persons of a specified class; or
(ii)entering or being in the vicinity of specified premises or premises of a specified class; or
(iii)possessing specified articles or articles of a specified class; and
(b)     if the defendant is a member of a declared organisation, must prohibit the defendant from—
(i)associating with other persons who are members of declared organisations; and
(ii)possessing—
(A)    a dangerous article; or
(B)    prohibited weapon,
(within the meaning of section 15 of the Summary Offences Act 1953),
except as may be specified in the order.
(6)In considering whether or not to make a control order under subsection (2) or in considering the prohibitions that may be included in a control order under subsection (1) or (2), the Court must have regard to the following:
(a)     whether the defendant's behaviour, or history of behaviour, suggests that there is a risk that the defendant will engage in serious criminal activity;
(b)     the extent to which the order might assist in preventing the defendant from engaging in serious criminal activity;
(c)     the prior criminal record (if any) of the defendant and any persons specified in the application as persons with whom the defendant regularly associates;
(d)     any legitimate reason the defendant may have for associating with any person specified in the application;
(e)     any other matter that, in the circumstances of the case, the Court considers relevant.
(7)The Court may, on making a control order, make any consequential or ancillary orders it thinks fit, including, in a case where the control order prohibits the possession of an article or an article of a specified class, orders—
(a)     providing for the confiscation and disposal of the article or such an article; and
(b)     if the circumstances of the case so require, authorising a police officer to enter any premises in which the article or such an article is suspected to be, and search for and take possession of the article or such an article.
(8)For the purposes of this section, a person may "associate" with another person by any means including communicating with that person by letter, telephone or facsimile or by email or other electronic means.
For the purposes of s 14 the Court is the Magistrates Court.[3] A declared organisation is an organisation declared as such by the Attorney-General under s 10.
[3] See Control Act s 3.
The word “member” is defined in s 3:
"member", in relation to an organisation, includes—
(a)in the case of an organisation that is a body corporate—a director or an officer of the body corporate; and
(b)in any case—
(i)    an associate member or prospective member (however described) of the organisation; and
(ii)     a person who identifies himself or herself, in some way, as belonging to the organisation; and
(iii)     a person who is treated by the organisation or persons who belong to the organisation, in some way, as if he or she belongs to the organisation;
There is an obvious difference between sub-ss (1) and (2) of s 14 in that under sub-s (1) the Court must make a control order if it is satisfied that the defendant is a member of a declared organisation, whereas in the circumstances described in sub-s (2) the making of a control order is discretionary. It was accepted by both parties that sub-s (1) is mandatory in effect.
As to the standard of proof required on an application under s 14, s 5 provides:
5—Burden of proof
(1)Any question of fact to be decided by a court in proceedings under this Act is to be decided on the balance of probabilities.
(2)This section does not apply in relation to proceedings for an offence against this Act.
Although s 5 refers to proof on the balance of probabilities, the Solicitor-General conceded, properly in my view, that, having regard to the consequences of a control order the well-known principles established in and accepted since Briginshaw v Briginshaw[4] would apply. In that case Dixon J said:[5]
The truth is that, when the law requires the proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence before it can be found. It cannot be found as a result of a mere mechanical comparison of probabilities independently of any belief in its reality. No doubt an opinion that a state of facts exists may be held according to indefinite gradations of certainty; and this has led to attempts to define exactly the certainty required by the law for various purposes. Fortunately, however, at common law no third standard of persuasion was definitely developed. Except upon criminal issues to be proved by the prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters "reasonable satisfaction" should not be produced by inexact proofs, indefinite testimony, or indirect inferences. … It is often said that such an issue as fraud must be proved "clearly", "unequivocally", "strictly" or "with certainty". … This does not mean that some standard of persuasion is fixed intermediate between the satisfaction beyond reasonable doubt required upon a criminal inquest and the reasonable satisfaction which in a civil issue may, not must, be based on a preponderance of probability. It means that the nature of the issue necessarily affects the process by which reasonable satisfaction is attained. When, in a civil proceeding, a question arises whether a crime has been committed, the standard of persuasion is, according to the better opinion, the same as upon other civil issues. But, consistently with this opinion, weight is given to the presumption of innocence and exactness of proof is expected.
[References omitted]
[4] (1938) 60 CLR 336.
[5] Ibid 361-363.

While sub-s (3) of s 14 makes provision for an application to be without notice to the defendant, there were differing views as to the effect of that subsection.
In sub-s (5) of s 14 there is a difference between the discretionary effect of para (a) and the mandatory effect of para (b). In the case of Mr Hudson both paragraphs applied. It was necessary, therefore, for the Magistrates Court to consider the making of exceptions to the otherwise mandatory requirements of para (b).
Because the order relating to Mr Hudson was made under s 14(1), the Magistrates Court was required by sub-s (6) to have regard to the matters listed in that subsection in considering the exceptions to the orders permitted by sub-s (5)(b). However, it would appear that those matters could play no part in the determination as to whether a control order was required to be made under s 14(1).
Section 15(1) sets out certain requirements for the form of a control order, including a requirement that the order include a statement of the grounds on which the order has been issued. The remaining subsections of s 15 provide:
(2)A statement of the grounds on which a control order has been issued must not contain information that must not be disclosed in accordance with section 21.
(3)A copy of the affidavit verifying the grounds on which the application was made must be attached to the control order unless disclosure of information included in the affidavit would be in breach of section 21.
(4)If disclosure of information included in the affidavit would be in breach of section 21, an edited copy of the affidavit, from which the information that cannot be disclosed has been removed or erased, may be attached to the control order.
Because of the reference to s 21 in those subsections and because of its significance in the making of a control order by the Magistrates Court it is appropriate at this point to set out the terms of s 21:
21—Criminal intelligence
(1)No information provided by the Commissioner to a court for the purposes of proceedings relating to the making, variation or revocation of a control order may be disclosed to any person (except to the Attorney-General, a person conducting a review under Part 6, a court or a person to whom the Commissioner authorises its disclosure) if the information is properly classified by the Commissioner as criminal intelligence.
(2)In any proceedings relating to the making, variation or revocation of a control order, the court determining the proceedings—
(a) must, on the application of the Commissioner, take steps to maintain the confidentiality of information properly classified by the Commissioner as criminal intelligence, including steps to receive evidence and hear argument about the information in private in the absence of the parties to the proceedings and their representatives; and
(b) may take evidence consisting of, or relating to, information that is so classified by the Commissioner by way of affidavit of a police officer of or above the rank of superintendent.
The effect of that section is to deny to a defendant to proceedings under s 14(1) access to information classified as “criminal intelligence”. The definition of criminal intelligence contained in s 3 has already been referred to.
It will be necessary to return to a consideration of the effect of s 21. I have already noted that similar non-disclosure provisions apply, by virtue of s 13(2), to the declaration of an organisation as a declared organisation by the Attorney-General under s 10.
Section 16 of the Control Act provides for service of a control order on the defendant. Section 17 provides for a right of objection by a person on whom a control order has been served. Section 17(2) provides that the grounds of objection must be stated “fully and in detail” in the notice of objection. Section 18 provides for the procedure on hearing a notice of objection:
18—Procedure on hearing of notice of objection
(1)The Court must, when determining a notice of objection, consider whether, in the light of the evidence presented by both the Commissioner and the objector, sufficient grounds existed for the making of the control order.
(2)The Court may, on hearing a notice of objection—
(a)     confirm, vary or revoke the control order; and
(b)     make any other orders of a kind that could have been made by the Court on the making of the control order.
(3)     Without derogating from subsection (2), if the defendant—
(a)     is a member of a declared organisation; and
(b)     satisfies the Court that there is good reason why he or she should be allowed to associate with a particular member, or particular members, of a declared organisation,
the Court may vary the order to specify that the defendant is not prohibited from associating with that member or those members, subject to such conditions (if any) as the Court thinks fit.
Section 19 provides for an appeal to this Court by the Commissioner of Police or an objector against a decision of the Magistrates Court on a notice of objection. Whether or not that is the only avenue of appeal to this Court is a matter which may need to be addressed.
Section 20 provides for the Magistrates Court to vary or revoke a control order on the application of the Commissioner of Police or the defendant. However, under sub-s (2) an application by a defendant may only be made with the permission of the Court, and permission is only to be granted if the Court is satisfied that there has been a “substantial change” in the relevant circumstances since the order was made or last varied. Subsections (3) and (4) of s 20 provide:
(3)     The Court must, before varying or revoking a control order under this section—
(a)     allow all parties a reasonable opportunity to be heard on the matter; and
(b)     have regard to the same factors that the Court is required to have regard to in considering whether or not to make a control order and in considering the terms of a control order.
(4)If an application for variation or revocation of a control order is made by the defendant, the application must be supported by oral evidence given on oath.
Section 22 provides that a contravention of or failure to comply with a control order is an offence, for which the maximum penalty is imprisonment for five years.
Part 4 of the Control Act provides for a not dissimilar regime for the making of what are known as public safety orders by a police officer. For the purpose of this case it is not necessary to consider Part 4.
Part 5 of the Act prescribes certain offences involving association under certain conditions with a member of a declared organisation or a person who is the subject of a control order. There are certain prescribed exceptions. Part 5 is relevant to a consideration of the effect of a declaration by the Attorney-General discussed below.
Finally, s 41 of the Control Act contains a comprehensive privative provision in the following terms:
41—Protection from proceedings
(1)Except as otherwise provided in this Act, no proceeding for judicial review or for a declaration, injunction, writ, order or other remedy may be brought to challenge or question—
(a)     a decision, determination, declaration or order under this Act or purportedly under this Act; or
(b)     proceedings or procedures under this Act or purportedly under this Act; or
(c)     an act or omission made in the exercise, or purported exercise, of powers or functions under this Act; or
(d)     an act, omission, matter or thing incidental or relating to the operation of this Act.
(2)The validity and legality of a declaration under Part 2 cannot be challenged or questioned in any proceedings.
(3)The validity and legality of a control order or a public safety order cannot be challenged or questioned in proceedings for an offence against this Act.
The effect of the Attorney-General’s declaration
Before turning to the facts of the cases the subject of this reference, it is necessary to make some observations about the effect of a declaration by the Attorney-General under s 10 of the Control Act.
Although the Attorney makes a declaration “in respect of” an organisation,[6] it has no effect on the organisation as such or on its property or affairs. The only effect of the declaration is on members of the organisation and persons who associate with them.
[6] Control Act s 10(1).
Proof of the declaration is a necessary step in obtaining a control order under s 14(1), but that is a control order in respect only of a member of the declared organisation, not in respect of the organisation itself. Proof of the declaration is not essential for obtaining a control order under s 14(2), but it may be used for such a purpose if reliance is placed on the defendant’s past membership of the organisation. But again, it can only assist in securing a control order against an individual.
The declaration has no effect in respect of and is not necessary for a control order to which s 14(5)(a) of the Control Act applies. Its only effect in respect of a control order to which s 14(5)(b) applies (i.e. in an application under s 14(1)) is to identify a class of persons with whom the defendant is prohibited from associating. The control order does not directly affect the defendant’s membership of the organisation or the property and affairs of the organisation itself.
The only other effect of a declaration is contained in Part 5 of the Act. Subject to a qualification contained in sub-s(2), s 35(1) creates an offence for a person to associate on not less than six occasions in a period of 12 months with a person who is a member of a declared organisation or with a person the subject of a control order. Once again, no offence is committed by the organisation, and its property and affairs are not affected. The only purpose of the declaration in s 35 is to identify a class of person with whom a person may not associate.
Apart from the purposes identified above, the declaration of an organisation under s 10 has no other effect or apparent purpose. Its significance lies in the identification of a class of persons for certain limited purposes contained in the Act.
The relevant facts
For the purpose of these proceedings it is admitted that the plaintiffs are and have at all material times been members of the organisation. It was not argued before us that the Attorney-General had not complied with all necessary procedural requirements of the Control Act before making the declaration of the organisation as a declared organisation on 14 May 2009. He seems to have gone further than the Act requires by publishing and tabling in the House of Assembly 53 pages of reasons for making the declaration. Those published reasons excluded but referred to the existence of criminal intelligence as defined in s 3 of the Act as being material on which the Attorney-General relied in making the declaration. There were quite extensive redactions to the reasons on that account.
Rule 37A of the Magistrates Court (Civil) Rules 1992 (SA) prescribes the form of application for use in the Magistrates Court for an application under s 14 of the Control Act. It also prescribes a form of control order. In this case the Commissioner of Police completed the application form, the material parts of which provided:
CLASS OF PERSONS AGAINST WHOM THIS APPLICATION IS MADE:
Specify criteria defining the class OR list members of the class:
The Commissioner alleges that the defendant is a member of a declared organisation, namely the Finks Motorcycle Club operating in South Australia (including but not limited to the Finks MC, Finks M.C. Incorporated, Finks M.C. INC and the Finks).
SHOULD THIS APPLICATION BE HEARD WITHOUT NOTICE TO ANY PESON? YES
The Commissioner submits that as a matter of law applications for control orders under s 14 must be determined ex parte.
PARTICULARS OF ACTION:
1.     Briefly state the grounds of the application:
The defendant is a member of a declared organisation as defined in the Serious and Organised Crime (Control) Act 2008 (section 14(1)).
2.     State the order(s) sought:
1.     An order prohibiting the defendant from associating with other persons who are members of declared organisations;
UNLESS
the association occurs between members of a registered political party (within the meaning of the Electoral Act 1985 or the Commonwealth Electoral Act 1918 of the Commonwealth (as the case requires)) at an official meeting of the party, or a branch of the party, and you have provided the Officer in Charge of the State Intelligence Branch of the South Australia Police with notice in writing of the time, date and place of the association, to be received at 60 Wakefield Street Adelaide, SA, 5000 no less than 48 hours before such association.
AND
Possessing a dangerous article or a prohibited weapon (within the meaning of section 15 of the Summary Offences Act 1953).
The Commissioner’s submission that as a matter of law applications for control orders under s 14(1) must be determined ex parte was also the submission of the Solicitor-General before this Court. The application in respect of Mr Hudson was heard ex parte by the Magistrates Court. It was supported by some 14 affidavits of police officers, some of which deposed to direct observations and conversations with Mr Hudson. Others deposed to the rules, structure, modus operandi and membership types and qualifications of the organisation and as to the identification of members of the organisation. They purported to state facts within the personal knowledge of the deponents. However, it is apparent from the body of some of the affidavits that not all of the facts stated may have been of the deponent’s own knowledge. We did not hear argument as to whether the affidavits or some of them contained hearsay evidence, and I make no finding as to whether they do. It is sufficient to note that the point may be arguable. It is not apparent from the material before us that anything in the way of criminal intelligence was put before the Magistrate in support of the application.
The control order was served on Mr Hudson on 26 May 2009 in accordance with the requirements of s 16(1) of the Control Act. The material parts of the control order followed the form prescribed by the Magistrates Court (Civil) Rules. It was in the following form:
DETAILS OF THIS ORDER:
I, the undersigned, am satisfied that you, the defendant:
§Are a member of a declared organisation as defined in the Serious and Organised Crime (Control) Act 2008 (section 14(1)):
AND
I ORDER that you are prohibited from:
1. Associating with other persons who are members of declared organisations;
UNLESS
§the association occurs between members of a registered political party (within the meaning of the Electoral Act 1985 or the Commonwealth Electoral Act 1918 of the Commonwealth (as the case requires)) at an official meeting of the party, or a branch of the party, and you have provided the Officer in Charge of the State Intelligence Branch of the South Australia Police with notice in writing of the time, date and place of the association, to be received at 60 Wakefield Street Adelaide, SA, 5000 no less than 48 hours before such association.
AND
2Possessing a dangerous article or a prohibited weapon (within the meaning of section 15 of the Summary Offences Act 1953).
ANY OTHER ORDERS:
THE GROUNDS ON WHICH THIS ORDER HAS BEEN ISSUED ARE:
(excluding information which has been classified by the Commissioner of Police as criminal intelligence)
§The defendant is a member of a declared organisation, namely the Finks Motorcycle Club operating in South Australia (including but not limited to: the Finks MC, Finks M.C. Incorporated, Finks M.C. INC and the Finks).
On 2 June 2009 Mr Hudson caused to be filed in the Magistrates Court a notice of objection pursuant to s 17 of the Act. At the time of reservation of these questions the objection had not been heard in the Magistrates Court.
The Kable principle and its application
The Magistrates Court is a court of this State in which federal jurisdiction may be invested under s 77(iii) of the Constitution. The matters in respect of which federal jurisdiction may be so invested are referred to in ss 75 and 76 of the Constitution. Section 39(2) of the Judiciary Act 1903 (Cth) confers federal jurisdiction, with certain exceptions and qualifications, upon “the several Courts of the States” in the matters specified in ss 75 and 76 of the Constitution. The Magistrates Court is one such court.
The plaintiffs’ challenge to the validity of the Control Act is based on the decision in Kable v Director of Public Prosecutions for the State of New South Wales.[7] In that case a majority of the High Court declared invalid s 5(1) of the Community Protection Act 1994 (NSW). That section empowered the Supreme Court to make an order for the detention of a specified person in prison for a specified period if it was satisfied on reasonable grounds that the person was more likely than not to commit a serious act of violence, and that it was appropriate, for the protection of a particular person or the community generally, that the person be held in custody. The maximum period for detention was six months, but sequential applications could be made in relation to the same person. The Act authorised the making of a detention order against one named individual only. It was not, therefore, of general application. The detention order was not by way of punishment for any criminal offence.
[7] (1996) 189 CLR 51.
The majority accepted the appellant’s argument that a State court exercising federal jurisdiction could not be the recipient of State powers incompatible, as this power was, with the nature of federal judicial power. The Judges in the majority expressed the relevant principle in differing ways, but all of them referred to either or both of the constitutional integrity of or public confidence in the State Court as an institution. I respectfully adopt the convenient summary of the expression of those principles noted by Callinan and Heydon JJ in the subsequent case of Fardon v Attorney-General for the State of Queensland:[8]
With respect to the powers purportedly conferred by the Community Protection Act, Toohey J held that they were incompatible with the exercise of the judicial power of the Commonwealth because they were of such a nature that public confidence in the integrity of the judiciary as an institution was diminished. Gaudron J said that they compromised the integrity of the judicial system brought into existence by Ch III of the Constitution, which depends on State courts acting in accordance with the judicial process and on the maintenance of public confidence in that process. The opinion of McHugh J was that the impugned conferral of non-judicial power or other incidents of the Court should not be such as could lead an ordinary reasonable member of the public to conclude that the Court was not independent of the executive government of the State, or that the Court as an institution was not free of governmental influence in administering the judicial functions invested in the Court, and compromised the institutional impartiality of the Court. Gummow J was of the view that the exercise of statutory powers jeopardised the integrity of the Court, and sapped the appearance of institutional impartiality, and the maintenance of public confidence in the judiciary.
[Footnotes omitted].
[8] [2004] HCA 46, [213], (2004) 223 CLR 575, 653.
In the same case Gleeson CJ expressed the principle in the follow terms:[9]
The decision in Kable established the principle that, since the Constitution established an integrated Australian court system, and contemplates the exercise of federal jurisdiction by State Supreme Courts, State legislation which purports to confer upon such a court a function which substantially impairs its institutional integrity, and which is therefore incompatible with its role as a repository of federal jurisdiction, is invalid.
[9] Ibid [15], 591.

Fardon concerned the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld), the objects of which were to provide for the continued detention in custody or supervised release of a particular class of prisoner to ensure adequate protection of the community and to provide continuing control, care and treatment of a particular class of prisoner to facilitate their rehabilitation. It affected persons convicted of a “serious sexual offence” as defined and empowered the Supreme Court to order that the prisoner be detained in custody for an indefinite term if he was considered to be “a serious danger to the community”. That was said to arise if there was an unacceptable risk that the prisoner would commit a serious sexual offence if released from custody or released from custody without a supervision order. In deciding whether a prisoner was a serious danger to the community the Court was required to have regard to certain specified matters, the paramount consideration being the need to ensure adequate protection of the community. It was a law of general application and was held not to be invalid. It did not impair the institutional integrity of the Supreme Court of Queensland in such a way as to be incompatible with the Court’s constitutional position as a repository of federal judicial power. Callinan and Heydon JJ distinguished Kable by referring to the purpose of the Act in the following terms:[10]
It is necessary to keep in mind the issues with which Kable was concerned and the true nature of the decision which the Court made there. Despite the differing formulations of the Justices in the majority, the primary issue remained whether the process which the legislation required the Supreme Court of New South Wales to undertake, was so far removed from a truly judicial process that the Court, by undertaking it, would be so tainted or polluted that it would no longer be a suitable receptacle for the exercise of federal judicial power under Ch III of the Constitution. This Court did not in Kable hold however that in all respects, a Supreme Court of a State was the same, and subject to the same constraints, as a federal court established under Ch III of the Constitution. Federal judicial power is not identical with State judicial power. Although the test, whether, if the State enactment were a federal enactment, it would infringe Ch III of the Constitution, is a useful one, it is not the exclusive test of validity. It is possible that a State legislative conferral of power which, if it were federal legislation, would infringe Ch III of the Constitution, may nonetheless be valid.
[10] Ibid [219], 655.
Shortly before Fardon the High Court had decided North Australian Aboriginal Legal Aid Service Inc v Bradley.[11] In that case McHugh, Gummow, Kirby, Hayne, Callinan and Heydon JJ in their joint judgment had accepted the proposition that “it is implicit in the terms of Ch III of the Constitution, and necessary for the preservation of that structure, that a court capable of exercising the judicial power of the Commonwealth be and appear to be an independent and impartial tribunal”.[12] Their Honours acknowledged that the difficulty came in discerning “the relevant minimum characteristic of an independent and impartial tribunal exercising the jurisdiction of the courts over which the Chief Magistrate presides. No exhaustive statement of what constitutes that minimum in all cases is possible.”[13]
[11] [2004] HCA 31, (2004) 218 CLR 146.
[12] Ibid [29], 163.
[13] Ibid [30], 163.
The relevant circumstances in that case were that, although a magistrate in the Northern Territory was appointed to hold office to age 65, the remuneration, allowances, terms and conditions of service of the Chief Magistrate were fixed by the Administrator for a period of two years from the date of appointment. The validity of the appointment was unsuccessfully challenged by virtue of the fixing, for only two years, of the remuneration and conditions of service. The Chief Magistrate was held not to be: [14]
… inappropriately dependent on the legislature or executive of the Territory in a way incompatible with requirements of independence and impartiality. It does not compromise or jeopardise the integrity of the Territory magistracy or the judicial system. Nor is it apt to lead reasonable and informed members of the public to conclude that the magistracy of the Territory was not free from the influence of the other branches of government in exercising their judicial function.
[Footnotes omitted].
[14] Ibid [65], 172.
In Forge v Australian Securities and Investments Commission[15] the validity of the appointment of a former Federal Court judge as an acting judge of the New South Wales Supreme Court for a specified term was unsuccessfully challenged. Gleeson CJ, with whom Callinan J agreed,[16] again stated the principle of Kable as invalidating “State legislation which purports to confer upon [a State court] a function which substantially impairs its institutional integrity, and which is therefore incompatible with its role as repository of federal jurisdiction”.[17] Gleeson CJ continued:[18]
It follows from the terms of Ch III that State Supreme Courts must continue to answer the description of "courts". For a body to answer the description of a court it must satisfy minimum requirements of independence and impartiality. That is a stable principle, founded on the text of the Constitution. It is the principle that governs the outcome of the present case. If State legislation attempted to alter the character of a State Supreme Court in such a manner that it no longer satisfied those minimum requirements, then the legislation would be contrary to Ch III and invalid.
[15] [2006] HCA 44, (2006) 228 CLR 45.
[16] Ibid [238], 136.
[17] Ibid [40], 67.
[18] Ibid [41], 67-68.
Gleeson CJ went on to say that while the possibility of abuse of the power was always present, the validity of the power was not to be tested by reference to “extreme examples and distorting possibilities”.[19]
[19] Ibid [46], 69.
Kable was again explained by Gummow, Hayne and Crennan JJ in the following passage:[20]
Because Ch III requires that there be a body fitting the description "the Supreme Court of a State", it is beyond the legislative power of a State so to alter the constitution or character of its Supreme Court that it ceases to meet the constitutional description. One operation of that limitation on State legislative power was identified in Kable. The legislation under consideration in Kable was found to be repugnant to, or incompatible with, "that institutional integrity of the State courts which bespeaks their constitutionally mandated position in the Australian legal system". The legislation in Kable was held to be repugnant to, or incompatible with, the institutional integrity of the Supreme Court of New South Wales because of the nature of the task the relevant legislation required the Court to perform. At the risk of undue abbreviation, and consequent inaccuracy, the task given to the Supreme Court was identified as a task where the Court acted as an instrument of the Executive. The consequence was that the Court, if required to perform the task, would not be an appropriate recipient of invested federal jurisdiction. But as is recognised in Kable, Fardon v Attorney-General (Qld) and North Australian Aboriginal Legal Aid Service Inc v Bradley, the relevant principle is one which hinges upon maintenance of the defining characteristics of a "court", or in cases concerning a Supreme Court, the defining characteristics of a State Supreme Court. It is to those characteristics that the reference to "institutional integrity" alludes. That is, if the institutional integrity of a court is distorted, it is because the body no longer exhibits in some relevant respect those defining characteristics which mark a court apart from other decision-making bodies.
It is neither possible nor profitable to attempt to make some single all-embracing statement of the defining characteristics of a court. … An important element, however, in the institutional characteristics of courts in Australia is their capacity to administer the common law system of adversarial trial. Essential to that system is the conduct of trial by an independent and impartial tribunal.
[Footnotes omitted].
[20] Ibid [63], 76.
Part 5.3 of the Criminal Code (Cth) contains a number of provisions relating to terrorism. It includes Div 104 relating to the making of control orders. In Thomas v Mowbray[21] a declaration was sought that Div 104 was invalid. An interim control order had been made under s 104.4 of the Code imposing certain restrictions, obligations and prohibitions on the plaintiff. Such an order was able to be made if the Court was satisfied “that making the order would substantially assist in preventing a terrorist act” or “that the person has provided training to, or received training from, a listed terrorist organisation”. The Court was also required to be satisfied that each of “the obligations, prohibitions and restrictions to be imposed … is reasonably necessary, and reasonably appropriate and adapted, for the purpose of protecting the public from a terrorist act”. The Full High Court, Kirby J dissenting, held that subdivision B of Div 104 relating to the making of control orders was within the power of the Commonwealth Parliament and was supported by s 51(vi) of the Constitution. The order in question had been made ex parte. It restricted the plaintiff’s liberty. For these reasons the decision is particularly instructive for present purposes. It is also instructive by reason of the fact that it was held to be a valid exercise of Commonwealth judicial power and did not need to rely on the referral of the power by the parliaments of the States pursuant to s 51(xxxvii) of the Constitution, even though such referral had occurred. It was therefore treated, at least by Gleeson CJ, as an issue of separation of powers. However, the Chief Justice made some pertinent observations as to what was included in federal judicial power and hence what power might properly be conferred on a State court without compromising its integrity as a recipient of federal judicial power.
[21] [2007] HCA 33, (2007) 233 CLR 307.
Gleeson CJ noted a number of examples of governmental power that are sometimes exercised legislatively, sometimes administratively and sometimes judicially. [22] He concluded:
Deciding whether a governmental power or function is best exercised administratively or judicially is a regular legislative exercise. If, as in the present case, Parliament decides to confer a power on the judicial branch of government, this reflects a parliamentary intention that the power should be exercised judicially, and with the independence and impartiality which should characterise the judicial branch of government.
[22] Ibid [12], 326-327.
The Chief Justice continued:[23]
The plaintiff's written submissions contend that Div 104 confers non-judicial power on a federal court in that it confers upon the court the power to determine what legal rights and obligations should be created, rather than the power to resolve a dispute about existing rights and obligations by determining what those rights and obligations are, and the power to deprive a person of liberty on the basis of what that person might do in the future, rather than on the basis of a judicial determination of what that person has done. It is said that, by reason of those characteristics of a control order, the governmental power that is exercised when such an order is made is peculiarly or distinctively legislative or executive, and therefore not a power that may be conferred upon the judiciary. The power to restrict or interfere with a person's liberty on the basis of what that person might do in the future, rather than on the basis of a judicial determination of what the person has done, which involves interfering with legal rights, and creating new legal obligations, rather than resolving a dispute about existing rights and obligations, is in truth a power that has been, and is, exercised by courts in a variety of circumstances. It is not intrinsically a power that may be exercised only legislatively, or only administratively. If it were otherwise, the federal Parliament would lack the capacity to confide an exercise of such power to the judicial branch of government.
[23] Ibid [15], 327-328.
The Chief Justice referred to two familiar examples of the judicial exercise of a power to create new rights and obligations which may restrict a person’s liberty, being bail and apprehended violence orders, both being powers not foreign to the exercise of judicial power. [24]
[24] Ibid [16], 328-329.
The Chief Justice rejected an argument that because a control order could only be made if the Court is satisfied on the balance of probabilities that each of the obligations, prohibitions and restrictions to be imposed is reasonably necessary and reasonably appropriate and adapted for the purpose of protecting the public from a terrorist act, such power is antithetical to the judicial function. [25]
[25] Ibid [19], 330-331.
In their joint judgment Gummow and Crennan JJ, with whom Callinan and Heydon JJ were generally in agreement, noted that ex parte applications were no novelty to the exercise of judicial power, and that the legislation in question did provide for a contested confirmation hearing if the person in question wished to proceed in that way. [26] It was not contrary to Chapter III for the standard of proof to be stipulated as being no more than satisfaction on the balance of probabilities. They noted that the choice of the standard or burden of proof may be fixed by Parliament without it being repugnant to Chapter III.[27] They rejected an argument that an order restricting personal liberty without adjudication of criminal guilt was offensive to Chapter III.[28] The Criminal Code also contained a provision[29] restricting disclosure to the person in question of information that was likely to prejudice national security. However, Gummow and Crennan JJ considered that it was not necessary to rule on that submission as it was not raised on the facts of the case.
[26] Ibid [112], 355.
[27] Ibid [113], 355-356.
[28] Ibid [114]-[121], 356-357.
[29] Section 104.12A(3).
In Gypsy Jokers Motorcyle Club Inc v Commissioner of Police[30] the Commissioner of Police had issued a fortification removal notice in respect of premises of the appellant. He was empowered to do so unless he was satisfied within 14 days of the issue of a warning notice that the premises were not heavily fortified or were not habitually used as a place of resort by members of a class a significant number of whom might reasonably be expected to be involved in organised crime. The statutory basis for the issue of the notice was contained in the Corruption and Crime Commission Act 2003 (WA). The appellant applied to the Supreme Court under s 76(1) of the Act for review of the removal notice. The question on review was whether the Commissioner could reasonably have had the requisite belief when issuing the notice. Section 76(2) of the Act restricted the publication to anyone, including the appellant, of information relied on by the Commissioner “if its disclosure might prejudice the operations of the Commissioner”. The appellant challenged the validity of s 76(2) on the ground that it imposed an impermissible legislative direction and form of executive control over the exercise by the Supreme Court of its jurisdiction, and that it was a denial of procedural fairness. It was claimed that those features substantially impaired the institutional integrity and impartiality of the Court required by Chapter III of the Constitution.
[30] [2008] HCA 4, (2008) 234 CLR 532.
The Full Bench of the High Court, Kirby J dissenting, held that the provisions were valid on the footing that it was for the Supreme Court and not the Commissioner to determine whether disclosure might prejudice police operations. Such a provision did not provide for executive constraint on the independent performance of the Court’s review function, nor did it constitute an impermissible legislative direction upon the manner of the outcome of the Court’s review function.
Crennan J, with whom Gleeson CJ agreed, adopted[31] the statement of principle in Kable expressed by the Chief Justice in Forge v Australian Securities and Investments Commission[32] quoted above[33] and continued:[34]
It exceeds the legislative power of a State to alter the constitution or character of a Supreme Court of a State so as to impair its institutional integrity, an important element of which is minimum requirements of independence and impartiality because to do so would preclude that court from answering the constitutional description "Supreme Court of [a] State".
While ss 73(ii) and 77(iii) do not identify minimum requirements of independence and impartiality, it is clear that courts as institutions forming part of Australia's integrated court system must have the "capacity to administer the common law system of adversarial trial".
[Footnotes omitted].
[31] Ibid [159], 591.
[32] [2006] HCA 44, (2006) 228 CLR 45.
[33] At paragraph [56].
[34] [2008] HCA 4, [161]-[162], (2008) 234 CLR 532, 591.
Gleeson CJ, in agreeing with Crennan J, drew a comparison with the non-disclosure of confidential information on the ground of public interest immunity pointing out, however, that, at common law, if the evidence is ruled inadmissible on that ground, it cannot be acted upon. He further pointed out, however, that if the common law principle were applied, there could be no effective review of the Commissioner’s decision in the case under appeal.[35]
[35] Ibid [5], 550-551.
In their joint judgment Gummow, Hayne, Heydon and Kiefel JJ considered it significant that the reasonableness of the view formed by the Commissioner as to whether information should be disclosed could be decided by the Court, and that that was “readily recognised as the performance of a judicial function”.[36] They made two points in particular:[37]
The first is that the operation of this legislative regime has an outcome comparable with that of the common law respecting public interest immunity, but with the difference that the Court itself may make use of the information in question. The second is related to the first, and is that the operation of this provision, like the balance of s 76(2), is conditioned upon the Supreme Court first having determined that disclosure of the information, identified by the Commissioner from that provided to the Court, might prejudice the operations of the Commissioner. Accordingly, there is here no legislative mandate for dictation to the Supreme Court by the Commissioner of the performance of its review function.
[36] Ibid [28], 557.
[37] Ibid [36], 559.
K-Generation Pty Ltd v Liquor Licensing Court[38] raised directly the validity of a State Act which authorised the court of a State to act on “criminal intelligence” without disclosing the nature of the information to a party to the litigation, in that case, the applicant for a liquor licence. Significantly, the definition of “criminal intelligence” in that case was almost identical with the definition of “criminal intelligence” contained in the Control Act,[39] and the terms of s 28A(1) of the Liquor Licensing Act 1997 (SA) were in pari materia with those of s 21(1) of the Control Act with the significant difference that the word “properly” did not appear in the former section.
[38] [2009] HCA 4, (2009) 83 ALJR 327.
[39] The definition in the Control Act contains the additional words “or to endanger a person’s life or physical safety”. The difference between the two sections is not material for present purposes.
French CJ said of the Kable principle:[40]
The Parliament of the Commonwealth must, of course, take the courts of the States as it finds them. There is, consistently with the constitutional scheme for the exercise of the judicial power of the Commonwealth, a degree of institutional and procedural flexibility on the part of the parliaments of the States, which may travel beyond the limits permissible in federal courts created by the Parliament. That flexibility does not extend to conferring powers on State courts which are "repugnant to or incompatible with the exercise of the judicial power of the Commonwealth". Incompatibility with institutional integrity may exist where a power or function conferred upon a court is "apt or likely ... to undermine public confidence in the courts exercising that power or function".
[Footnotes omitted].
[40] [2009] HCA 4, [88], (2009) 83 ALJR 327, 344.

He referred to what Gummow, Hayne and Crennan JJ had said in Forge quoted at [58] above and continued:[41]
It is important to bear in mind, as Gummow J pointed out in Fardon that the principle derived from Kable is a constitutional doctrine not framed in terms apt to dictate future outcomes:
Reflection upon the range of human affairs, the scope of executive and legislative activity, and the necessity for close analysis of complex and varied statutory schemes will indicate that this may be a strength rather than a weakness of constitutional doctrine.
The question whether functions, powers or duties cast upon a court are incompatible with its institutional integrity as a court will be answered by an evaluative process which may require consideration of a number of factors. The evaluation process required is not unlike that involved in deciding whether a body can be said to be exercising judicial power.
[Footnotes omitted].
[41] Ibid [90], 344.
In their joint judgment Gummow, Hayne, Heydon, Crennan and Kiefel JJ said:[42]
[T]he appellants rely upon the principle identified with the decision in Kable v Director of Public Prosecutions (NSW). They contend that the effect of s 28A of the Act is to deprive the Licensing Court of the reality or appearance of independence or impartiality that is essential to its position as the object of an exercise of power by the Parliament manifested in s 39(2) of the Judiciary Act. It was said in the joint judgment of McHugh, Gummow, Kirby, Hayne, Callinan and Heydon JJ in North Australian Aboriginal Legal Aid Service Inc v Bradley that to be capable of exercising judicial power of the Commonwealth a court must be, and appear to be, an independent and impartial tribunal. The consequence, on the case presented by the appellants, would be that s 28A was invalid and the review by the Licensing Court should be reheard without regard to s 28A.
On that formulation of the issues in this Court, the subject of debate would be the discernment of the relevant minimum characteristics of an independent and impartial Licensing Court. Their Honours in Bradley said that "[n]o exhaustive statement of what constitutes that minimum in all cases is possible".
[Footnotes omitted].
[42] Ibid [111]-[112], 347.
Kirby J who, in this case, also agreed in the result, noted:[43]
Since Kable, no other case has been found by this Court to attract the application of the principle. This may be partly because, from the outset, the judges in the majority in Kable recognised that successful invocations of the principle would be extremely rare. It may partly be so because elected governments and parliaments in Australia rarely depart from such basic norms in the legislative deployment of judges and the courts. Whatever the explanation, the engagement of the Kable principle is clearly reserved to attempts by legislation to impose upon courts functions that are seriously repugnant to, or incompatible with, the institutional independence and integrity of such courts.
[Footnotes omitted].
[43] Ibid [256], 372-373.
The cases to which I have referred are not the only cases in which Kable has been considered. They do comprise, however, the principal authorities and reflect the evolution of the High Court’s approach to the Kable principle.
While it is clear that it is not possible to provide an exhaustive statement of what constitutes the minimum characteristic of an independent and impartial tribunal such as to satisfy the requirements of Chapter III of the Constitution, it is convenient to summarise from the cases referred to above and from other cases factors which have been held not to meet the requirement and those which have been held to meet it. Kable itself is the principal illustration of damage to the institutional impartiality and integrity of the judiciary, in that case by the enactment of ad hominen legislation providing for imprisonment not by way of punishment for a criminal offence. The only other example is that in Re Criminal Proceeds Confiscation Act 2002.[44] That case concerned the validity of Queensland legislation enabling the Supreme Court to make an order restraining a person from dealing with property stated in the order other than in a stated way or in stated circumstances. It enabled a restraining order to be made ex parte, and if an application was so heard, it had to be heard in the absence of anyone other than certain identified police or law enforcement officers or their legal representatives, and had to be in the absence of the person whose property was the subject of the application and without that person having been informed of the application. However, that case must be now regarded as of doubtful authority given the formulation of the Kable principle adopted by Williams JA in that case,[45] and subsequent High Court authority to which I have referred.
[44] [2003] QCA 249, [2004] 1 Qd R 40.
[45] Ibid [44], 52.
Matters which, in themselves, will not amount to an impermissible impediment to the institutional integrity of a State Court include the following:
·Commonwealth legislation allowing the discretionary admission of evidence of an offence when a law enforcement officer, in investigating an offence, had himself committed or been party to the commission of the offence;[46]
[46] Nicholas v The Queen [1998] HCA 9, (1998) 193 CLR 173.
·Legislation that had the effect of ensuring defeat of a pending appeal from the Queensland Planning and Environment Court to the Court of Appeal against the dismissal of an appeal against land rezoning by a local authority;[47]
·A law of general application providing for indefinite custody of a person convicted of a serious sexual offence considered to be a serious danger to the community;[48]
·The ability of the executive to fix salary and conditions of service for a limited period only of a tenured judicial officer;[49]
·The making of a pecuniary penalty order under confiscation of profits legislation when a person charged with a serious crime had died before conviction;[50]
·The appointment of short-term acting judges, provided that the power is not abused to evade the responsibility of providing an adequately resourced court system;[51]
·The ability to make an order ex parte restricting a person’s freedom when there is power in the person affected to require a confirmation hearing;[52]
·Prescription of the civil standard of proof in respect of orders which may restrict a person’s liberty;[53]
·Provision for an order restricting liberty by way of preventative measure when no criminal offence has been committed;[54]
·Legislative provisions requiring the non-disclosure of matters relating to national security or criminal intelligence where the Court itself or a superior court can determine the validity of any such claim;[55]
·A requirement to fix a minimum non-parole period specified by legislation unless “special reasons”, limited to a consideration of a limited number of matters specified in the Act, are shown.[56]
[47] H A Bachrach Pty Ltd v State of Queensland [1998] HCA 54, (1998) 195 CLR 547.
[48] Fardon v Attorney-General for the State of Qld [2004] HCA 46, (2004) 223 CLR 575.
[49] North Australian Aboriginal Legal Aid Service Inc v Bradley [2004] HCA 31, (2004) 218 CLR 146.
[50] Silbert v Director of Public Prosecutions for Western Australia [2004] HCA 9, (2004) 217 CLR 181.
[51] Forge v Australian Securities and Investment Commission [2006] HCA 44, (2006) CLR 45.
[52] Thomas v Mowbray [2007] HCA 33, (2007) 233 CLR 307; International Financetrust Co Ltd v New South Wales Crime Commission [2008] NSWCA 291, (2008) 251 ALR 479.
[53] Thomas v Mowbray [2007] HCA 33, (2007) 233 CLR 307.
[54] Ibid.
[55] Gypsy Jokers Motorcycle Club Inc v Commissioner of Police [2008] HCA 4, [11], (2008) 234 CLR 532; Osenkowski v Magistrates Court of South Australia [2006] SASC 345, (2006) 96 SASR 456; K-Generation Pty Ltd v Liquor Licensing Court [2009] HCA 4, (2009) 83 ALJR 327.
[56] R v Ironside [2009] SASC 151, (2009) 104 SASR 54.
Before applying the Kable principle to particular State legislation there are two other principles which must also be borne in mind. The first is a principle of statutory interpretation enshrined in s 22A of the Acts Interpretation Act 1915 (SA):
22A—Construction of Act so as not to exceed power of State
(1)Every Act and every provision of an Act will be construed so as not to exceed the legislative power of the State.
(2)Any Act or provision of an Act which, but for this section, would exceed the power of the State, is nevertheless a valid enactment to the extent to which it does not exceed that power.
That same principle is also a recognised principle of constitutional law.[57]
[57] See Gypsy Jokers Motorcycle Club Inc v Commissioner of Police [2008] HCA 4, [11], (2008) 234 CLR 532, 553 Gummow, Hayne, Heydon and Kiefel JJ; New South Wales v The Commonwealth (Work Choices Case) [2006] HCA 52, [355], (2006) 229 CLR 1, 161-162 Gleeson CJ, Gummow, Hayne, Heydon and Crennan JJ.
The second relevant principle is that in conferring federal jurisdiction on a State court the Commonwealth takes the Court as it finds it. The principle was expressed in Electric Light and Power Supply Corporation Ltd v Electricity Commission of NSW[58] in the following terms:[59]
When the legislature finds that a specific question of a judicial nature arises but that there is at hand an established court to the determination of which the question may be appropriately submitted, it may be supposed that if the legislature does not mean to take the court as it finds it with all its incidents including the liability to appeal, it will say so. In the absence of express words to the contrary or of reasonably plain intendment the inference may safely be made that it takes it as it finds it with all its incidents and the inference will accord with reality.
[58] (1956) 94 CLR 554.
[59] Ibid 560.
This is not to deny the overriding constitutional principle expressed in Kable, but it does have some bearing, absent any other direction, on the way in which the court will deal with the particular matter in question.
The meaning and operation of the Serious and Organised Crime (Control) Act
Before considering the validity of various provisions of the Control Act it is necessary to ascertain the true effect and meaning of some of the relevant provisions which have a bearing on the main question. As French CJ observed in K-Generation Pty Ltd v Liquor Licensing Court:[60]
Before the constitutional validity of a statute is considered its meaning and operation must be ascertained. The point of departure in that exercise is the ordinary and grammatical sense of the words having regard to their context and legislative purpose.
[60] [2009] HCA 4, [46], (2009) 83 ALJR 327, 337-338.
In the context of this case it is necessary to consider the operation of a number of provisions in the Control Act. I do so first in relation solely to the hearing to be conducted in the Magistrates Court under s 14(1) with reference also, where necessary, to the objection proceedings under s 18, and the appeal proceedings under s 19.
The proceedings under section 14(1)
One of the complaints of the plaintiffs is that an order could be made under s 14(1) of the Control Act without notice to the party affected. It will be necessary to address that argument later. The Solicitor-General argued that all applications for control orders under s 14(1) must be determined ex parte. I disagree.
Section 14(3) provides that the order may be issued on an application without notice. The Act generally, and s 14 in particular, is replete with contrasting uses of the expressions “must” and “may” where it is clearly intended that the former is mandatory and the latter is discretionary. Subsection (3) is no exception. It confers a power on the Magistrates Court which the Court may, in its discretion, choose to exercise.
Subsection (3) applies to applications under both sub-ss (1) and (2). Subsection (2) in particular lends itself to an inter partes hearing if the Court should decide that that is the appropriate way to proceed. Although, in respect of orders made under both sub-ss (1) and (2) there is a statutory right of objection after the control order is served, it may be appropriate for a defendant to raise procedural issues, objections to the form of the application or the adequacy of particulars and objections to evidence at the stage of proceeding under sub-s (1) without prejudice to the defendant’s right to mount a full scale objection pursuant to ss 17 and 18 after the order, if made, is served. There is therefore good reason to allow for a hearing on notice.
Section 14(6) applies to an application under subs (1). The presence of para (d) suggests that it would not be inappropriate for the Court to proceed on notice.
If sub-s (3) were construed as requiring only an ex parte hearing under sub-s (1), it might well place an almost intolerable burden on the Commissioner of Police in discharge of his obligation to the Court to make full disclosure on an ex parte application. That obligation is a particularly heavy one. It was discussed in some detail by the Full Court in Lane v Channel Seven Adelaide Pty Ltd.[61] Under s 14(1) there is no discretion in the court regarding the making of the order if membership is proved. However, there is a discretion in respect of the content of the order and any exceptions that may be made to the requirement of sub-s (5)(b). The Commissioner’s obligation to make full disclosure will nevertheless extend to all facts relevant both to the defendant’s membership of the organisation and as to possible exceptions to be included in the control order. It may be an obligation which the Commissioner is reluctant to undertake in every case, given the variety of sources on which he must rely in presenting the relevant facts.
[61] [2004] SASC 47, [8]-[12], (2004) 232 LSJS 234, 235-236.
Whether an application under s 14(1) should proceed ex parte will be a matter for decision of the Magistrates Court. The sort of consideration which will influence that decision will include whether the defendant is avoiding service, if the application has been served, whether the defendant has appeared, whether there is some degree of urgency or need for confidentiality and other like considerations. This should not be taken as an exhaustive list.
I disagree with the submission of the Solicitor-General that no reason to file a notice of objection arises if an application under s 14(1) is heard inter partes. The nature of the evidence on which the Court may rely for making an order under s 14(1) may not be the same as that which may be required on the hearing of an objection under s 18. It does not follow that the same hearing will take place a second time on the same evidence. It does not follow that, because Parliament has prescribed that an appeal to this Court can only take place after the hearing of an objection, Parliament intended that initial applications under s 14(1) should only be heard ex parte.
White J has referred to other factors which may affect the right to be heard on an application under s 14(1). In particular he has referred to whether an appeal against an order under s 14(1) is possible and whether proceedings under s 14(1) are properly regarded as interlocutory or final proceedings. There are credible and conflicting arguments both ways on these important points. We have not heard full argument on them. It is not necessary to resolve them for the purpose of this reference and I expressly refrain from doing so. If the power to make control orders is a valid exercise of legislative power, those questions may well arise for determination at some time.
The interlocutory nature or otherwise of the proceedings also arises upon a consideration of the evidence that is admissible on the hearing of an application under s 14(1). It will be necessary to return to that question.
To hold that an application under s 14(1) must proceed without notice to the defendant is a significant denial of the defendant’s fundamental right at common law to be heard in proceedings that may adversely and significantly affect his civil liberties. It would require clear and unambiguous language in the Act if that right were to be denied. I can see no such provision in the Control Act beyond that of s 14(3) which is enabling only.
Application of the rules of evidence – generally
Section 5 of the Evidence Act 1929 (SA) provides:
5—Application of Act (prima facie) to all courts and enabling only
The provisions of this Act, unless an intention to the contrary is expressed, or appears or is implied by the context—
(a) apply to every proceeding before any court whatever; and
(b) are in addition to, and not in derogation of, any rules of evidence, or power, or right, or duty in relation to procedure or evidence, whether existing at common law, or provided for by any law, at any time, in force in the State.
The Evidence Act is not a code on the law of evidence. However, it is clear that its provisions apply to all proceedings, including proceedings under s 14, in the Magistrates Court unless otherwise provided. One instance where the laws of evidence have been excluded in the Magistrates Court is in the hearing of minor civil actions as defined in the Magistrates Court Act 1991 (SA).[62] However, this does not apply in other jurisdictions of the Magistrates Court, in particular its statutory jurisdiction under s 10 of the Magistrates Court Act.
[62] See Magistrates Court Act 1991 s 38(1)(e).
Similarly, the common law rules of evidence will also apply to any hearing in the Magistrates Court save to the extent that they are expressly or by necessary implication excluded.
I defer for the time being a consideration of whether the rules of evidence have been modified in relation to a hearing under s 14(1) of the Control Act. There would seem to be little doubt, however, subject to one qualification mentioned below, that the rules of evidence would apply on the hearing of an objection under s 18. Such an objection must be heard on “evidence presented by both the Commissioner and the objector”. Without qualification that means admissible evidence, and would include the right of a party to cross-examine a deponent to any affidavit containing admissible evidence which may be admitted into evidence. There is nothing to suggest that, for example, the rule against hearsay should not apply to a hearing under s 18.
The one qualification relates to evidence which may amount to “criminal intelligence” as defined in s 3 of the Control Act. There is no express rule that evidence of criminal intelligence need not comply with the rules of evidence. However, by its very nature it is likely to contain or be based on hearsay evidence. That view is reinforced by the requirement of s 21(2)(b) that the relevant affidavit must be of a police officer of or above the rank of superintendent. There is, therefore, by necessary implication, a qualification on the non-admissibility of hearsay and perhaps opinion evidence relating to that topic.
Application of the rules of evidence – s 14(1)
Proceedings in the Magistrates Court under Part 3 of the Control Act are governed by r 37A of the Magistrates Court (Civil) Rules 1992 (SA). Rule 19 of those rules sets out a number of requirements with respect to affidavits. Subrules (4) and (5) provide:
(4)An affidavit used in interlocutory proceedings may contain statements based on information received and believed by the person making the affidavit to be true with the sources and the grounds thereof.
(5)Except as provided by Sub-rule 19(4) and Rule 62(3), or unless the Court otherwise orders, an affidavit shall contain only such facts as the person making the affidavit is able of his or her own knowledge to prove.
Rule 62(3) relates to minor civil actions and is not relevant.

Another indication that the Control Act does not contemplate that all s 14 applications should be heard without notice to the defendant appears in s 21.[112] Section 21(2) requires a Court determining proceedings, including proceedings relating to the making of a control order, to take steps to preserve the confidentiality of criminal intelligence, as defined. Those steps may include the exclusion of the parties when the evidence is taken, and when argument about the information takes place. If all proceedings under s 14 had to be conducted without notice to the defendant and ex parte, s 21(2) would, at least insofar as it concerns proceedings relating to the making of a control order, have been unnecessary. Its inclusion counts against the submission made by the State.
[112] Set out in paragraph [28] of the reasons of Bleby J.
It is to be remembered that s 14(3) applies to applications under s 14(2) as much as to applications under s 14(1). It is to be expected that the defendant to each kind of application may wish to be heard as to whether the control order should be made in the terms sought by the Commissioner, or at all. It is also possible that the Magistrates Court may consider it proper, in a given case, to require notice to be given to some person other than the defendant to the application, if satisfied that that person’s rights or interests would be affected in a direct and immediate way by the order sought by the Commissioner. That will be a matter for consideration by the Magistrates Court as the occasion arises.
On one view, the State’s submission that all s 14(1) applications should be heard ex parte may derive some support from Thomas v Mowbray[113] in which the High Court considered the analogous provisions in sub-division B of Division 104 of the Criminal Code, concerning interim control orders for the protection of the public from terrorist acts.[114] Section 104.4 of the Criminal Code empowers a court, on an application made by a senior member of the Australian Federal Police (AFP) with the consent of the Attorney-General, to issue an interim control order in relation to an identified person. Section 104.5 specifies terms which a court is required to include in an interim control order, including the period (not more than 12 months) in which the order is to be in force, and the date on which a confirmation hearing will take place.
[113] [2007] HCA 33; (2008) 233 CLR 307.
[114] See also the decision in Director of Public Prosecutions (ACT) v Hiep (1998) 86 FCR 33 at 49 concerning the making of a restraining order under proceeds of crime confiscation legislation and International Finance Trust Company Ltd v New South Wales Crime Commission [2008] NSWCA 291; (2009) 251 ALR 479.
Gummow and Crennan JJ regarded ss 104.4 and 104.5 as contemplating, although not specifying so in terms, an ex parte procedure[115] but did not, on my understanding of their reasons, hold that the Criminal Code required the issuing court to proceed ex parte in all cases, Kirby J (in dissent) did consider that interim control orders were to be issued ex parte in all cases and not just when that course was necessary for particular reasons.[116]
[115] [2007] HCA 33 at [48]; (2008) 233 CLR 307 at 338.
[116] Ibid at [364(1)]; 433-4; [366]; 436.
There are a number of features which indicate the interlocutory nature of proceedings in relation to interim control orders under ss 104.4 and 104.5 of the Criminal Code, on the other. Apart from anything else s 104.28A specifies that proceedings under ss 104.4 and 104.5 are interlocutory proceedings for all purposes. But even without that specification, the procedure contemplated by ss 104.4 and 104.5 appears to be interlocutory in nature. The very description of the order to be made by the issuing court as an “interim” control order suggests that what is contemplated is the making of an order pending a determination of the merits of the AFP application. This is confirmed by the requirement for a confirmation hearing (s 104.5(1)(e)) which is to be held as soon as practicable, but at least 72 hours, after the order is made (s 104.5(1A)). Section 104.14 appears to contemplate that the confirmation hearing will be a hearing de novo or, at least, a re-hearing, without any presumption as to the correctness of the issuing of the interim order. If the court confirms the interim order, it must nevertheless revoke the interim control order and make a new order described as a “corresponding order” (ss 104.14, 104.16). In this way the procedure contemplated by the Criminal Code appears analogous to that that adopted by a Court when issuing an interim injunction in the absence of a defendant.
The characterisation of the proceedings under ss 104.4 and 104.5 as interlocutory and their analogy with the procedures of courts in relation to interim injunctions is important because ex parte hearings are not uncommon in such circumstances.
The question of whether proceedings are to be characterised as final or interlocutory usually arises in the context of provisions allowing hearsay evidence to be admitted at interlocutory hearings and in the context of provisions making appeals against interlocutory decisions subject to the obtaining of permission to appeal.
In Australia, it is the finality of otherwise of the order resulting from the proceedings which usually governs the question.
In Hall v Nominal Defendant[117] when determining whether an appeal lay as of right or with leave, Taylor J (with whom Owen J agreed) adopted authority indicating that a judgment was final if it finally disposed of the rights of the parties, and otherwise was interlocutory.[118] Windeyer J agreed, adding the additional qualification that the judgment should finally determine the rights of the parties in a principal cause pending between them and not just the particular application or matter out of which it arose.[119] This approach has been followed in later authorities: Licul v Corney;[120] Carr v Finance Corporation of Australia Ltd;[121] and Sanofi v Parke Davis Pty Ltd (No 1).[122]The later authorities have made it plain that it is the legal rather than the practical effect of the judgment which is to be considered.[123]
[117] (1966) 117 CLR 423.
[118] Ibid at 439-40.
[119] Ibid at 444.
[120] (1976) 180 CLR 213.
[121] (1981) 147 CLR 246.
[122] (1982) 149 CLR 147.
[123] Carr v Finance Corporation of Australia Ltd (1981) 147 CLR 246 at 248; Sanofi v Parke Davis Pty Ltd (No 1) (1982) 149 CLR 147 at 153.
Usually, but not invariably, it is the nature of the order which may be made at the conclusion of the hearing which determines whether the proceedings themselves are to be characterised as interlocutory.
As has been pointed out on more than one occasion, the particular context in which the question of characterisation arises may be important, as the words “final” and “interlocutory” may mean different things in different contexts. In Malouf v Malouf,[124] the Full Bench of the Federal Court said:
It has long been accepted that the terms “final” and “interlocutory” may mean different things in different contexts: …It is not difficult to find good reason for allowing relaxation of the hearsay rule in a narrower category of cases than that in which the right of appeal is truncated by a requirement for leave. The latter requirement merely places the parties in the hands of the Court. Relaxation of the hearsay rule may substantially affect the outcome of the proceedings or the way in which they are conducted.[125] [Citations omitted]
[124] [1999] FCA 284; (1999) 86 FCR 134.
[125] Ibid at [33]; 142-43.
In the present case, the characterisation of the proceedings as interlocutory or otherwise is relevant to the submission of the State that the Magistrates Court is required to hear all applications under s 14 ex parte, and to the plaintiffs’ submission (to be addressed shortly) concerning the evidence which may be admitted on such an application. The latter context in particular suggests that a narrower understanding of the notion of an interlocutory hearing is appropriate than if the Court was concerned only with the nature of a right of appeal.
There are a number of features of the scheme in the Control Act which suggest that the hearing of applications under s 14 may not be interlocutory. A control order made under s 14 is not interim, operating only for a finite period of time, or until further order, and liable to be revoked, varied or replaced by a new order at a confirmation hearing. If a defendant does not lodge a notice of objection under s 18, there will be no further hearing at all concerning the making of the order, and the order made under s 14 will continue in force indefinitely. Sections 17 and 18 of the Control Act do not contemplate that the hearing of a notice of objection is to be a re-hearing, let alone a hearing de novo.[126] The requirement that the defendant file a notice of objection stating “the grounds of the objection … fully and in detail”[127] is one indication of this. The requirement in s 18(1) that the Magistrates Court must, when determining a notice of objection “consider whether, in the light of the evidence presented by both the Commissioner and the objector, sufficient grounds existed for the making of the control order” is another. Section 18(3) contemplates that the defendant should satisfy the Court that there is good reason why he or she should be allowed to associate with a particular member, or particular members, of a declared organisation before a variation to that effect can be made. Thus, the onus (which may require proof of facts on the balance of probabilities)[128] is placed upon the defendant.
[126] Cf Brandy v Human Rights and Equal Opportunity Commission (1995) 183 CLR 245 at 271.
[127] Control Act s 17(2).
[128] Cf s 5(1) of the Control Act.
Sections 17 and 18 relate only to notices of objection lodged by the defendant. The Commissioner of Police cannot use the procedure even if dissatisfied with the terms of the control order issued by the Magistrates.
Viewed as a whole, the procedure contemplated by ss 17 and 18 seems more adapted to addressing particular objections by a defendant to the control order rather than a form of substantive hearing resulting in a final order following an earlier interlocutory hearing.
The terms of s 20 of the Control Act providing for the variation or revocation of a control order should also be noted. An application for variation or revocation under s 20 may be made by a defendant only with the permission of the Court and permission may be granted only if the Court is satisfied that there has been some substantial change in the relevant circumstances since the order was made or last varied (s 20(2)). Section 20(4) requires an application for variation or revocation brought by a defendant to be supported by oral evidence given on oath. Applications for variation or revocation brought by the Commissioner of Police are not subject to the same restrictions.
The limitation on the circumstances, and the procedural requirements, imposed by s 20 in relation to applications for variation and revocation add to the impression that there are elements of finality in the making of a control order under s 14.
When a court does proceed ex parte in interlocutory proceedings, it is usually concerned to keep to a minimum the prejudice which may be suffered by the absent party as a result of the order having been made in his or her absence. The obligations imposed on the Magistrates Court and on the defendant by ss 14, 17, 18 and 19 limit the Court’s ability to do so. This is another matter which may count against proceedings under s 14 being interlocutory in nature.
However, there is a real sense in which an order made under s 14 cannot be said to be final. It can be confirmed, revoked or varied following a hearing under s 18, and revoked or varied following a hearing under s 20. Further, the terms of s 18 do not seem to preclude the Magistrates Court from revoking the control order in the event of material non-disclosure by the Commissioner of Police, or other abuse of the procedure.[129] These features suggest that the proceedings are not final but interlocutory in the sense discussed in the authorities referred to above.
[129] See Thomas v Mowbray [2007] HCA 33 at 56; (2007) 233 CLR 307 at 340 (Gummow and Crennan JJ).
The appropriate characterisation of proceedings under s 14(1) as interlocutory or otherwise was not the subject of detailed attention at the hearing. For this reason and because a final view need not be reached in the present case, I will refrain from expressing a concluded view. I consider, however, that this Court should answer the questions referred to it on the basis that s 14 proceedings are interlocutory.
It does not follow that the Control Act contemplates that s 14(1) applications should, as a matter of course, be heard without notice to the defendant. In my opinion, for the reasons earlier given, the converse is the case. That is, it will only be in those exceptional cases when good reason, such as genuine urgency or evasion by the defendant of attempts at service, is shown that the Magistrates Court should proceed with the hearing of a s 14(1) application without the defendant having any notice of it.
I add two further observations. If the Control Act was construed as requiring the Magistrates Court in all applications under s 14 to proceed without notice to any person, the possible application of the Kable principle would become much more acute. Such a requirement would raise very serious questions about the ability of the Court to function independently and impartially. In Thomas v Mowbray,[130]Gummow and Crennan JJ (with whom Heydon J agreed on this point) said:
As a general proposition, it may be accepted that legislation which requires a court exercising federal jurisdiction to depart to a significant degree from the methods and standards which have characterised judicial activities in the past may be repugnant to Ch III.[131]
Kirby J (in dissent) said of federal courts:
Requiring such courts, as of ordinary course, to issue orders ex parte, that deprive an individual of basic civil rights, on the application of officers of the Executive Branch of Government and upon proof to the civil standard alone that the measures are reasonably necessary to protect the public from a future terrorist act, departs from the manner in which, for more than a century, the judicial power of the Commonwealth has been exercised under the Constitution.[132]
[130] [2007] HCA 33; (2007) 233 CLR 307.
[131] Ibid at [111]; 355. See also K-Generation Pty Ltd v Liquor Licensing Court [2009] HCA 4 at [72], (2009) 83 ALJR 327 at 341 (French CJ).
[132] Ibid at [366]; 436.
It is also to be remembered that it was the statutory requirement that the Court proceed ex parte in hearing and determining an application for a restraining order under confiscation legislation which caused the Court of Appeal in Queensland to regard the relevant provision as incompatible with Chapter III of the Constitution.[133]
[133] Re Criminal Proceeds Confiscation Act 2002 [2003] QCA 249; (2004) 1 Qd R 40.
The second observation is this. If a decision under s 14(1) is interlocutory in nature the application of r 87 of the Magistrates Court Rules 1992 (which permits the Court to set aside or vary an interlocutory judgment) may arise for consideration.
Section 14(3) authorises the Magistrates Court to proceed without notice to any person when it is satisfied that it is appropriate to do so. As already noted, the circumstances in which it may be appropriate to do so include those of demonstrated genuine urgency and when there is proof of the evasion of service of the application by the defendant. The possibility that the Magistrates Court may, in circumstances of these kinds, proceed without notice to the defendant does not infringe the Constitutional implication derived from Chapter III. As Gummow and Crennan JJ observed in Thomas v Mowbray, ex parte applications are not a novelty.[134]
[134] [2008] HCA 33 at [112]; (2008) 233 CLR 307 at 355.
Denial of Access to Evidence
Next, the plaintiffs drew attention to the fact that s 21 contemplates that the Magistrates Court may, when determining an application under s 14, receive and rely upon evidence which is not to be disclosed to the defendant. It is convenient to set out again the full terms of s 21 and of the definition of “criminal intelligence” contained in s 3:
Section 21 provides as follows:
(1) No information provided by the Commissioner to a court for the purposes of proceedings relating to the making, variation or revocation of a control order may be disclosed to any person (except to the Attorney‑General, a person conducting a review under Part 6, a court or a person to whom the Commissioner authorises its disclosure) if the information is properly classified by the Commissioner as criminal intelligence.
(2)In any proceedings relating to the making, variation or revocation of a control order, the court determining the proceedings—
(a)must, on the application of the Commissioner, take steps to maintain the confidentiality of information properly classified by the Commissioner as criminal intelligence, including steps to receive evidence and hear argument about the information in private in the absence of the parties to the proceedings and their representatives; and
(b)may take evidence consisting of, or relating to, information that is so classified by the Commissioner by way of affidavit of a police officer of or above the rank of superintendent. [Emphasis added]
“Criminal intelligence” is defined as follows:
criminal intelligence means information relating to actual or suspected criminal activity (whether in this State or elsewhere) the disclosure of which could reasonably be expected to prejudice criminal investigations, to enable the discovery of the existence or identity of a confidential source of information relevant to law enforcement or to endanger a person's life or physical safety;
The effect of s 21(1) is to preclude any person or entity from disclosing (other than to specified persons) information provided by the Commissioner of Police to the Court which has been “properly” classified by the Commissioner as criminal intelligence (as defined). Section 21(2) requires the Magistrates Court to take positive steps during and after a hearing to protect the confidentiality of such information.
Provisions of these general kinds were considered in Gypsy Jokers Motorcycle Club Incorporated v The Commissioner of Police[135] and in K‑Generation Pty Ltd v Liquor Licensing Court.[136] The decision in K-Generation is particularly instructive in the present case because of the similarity of the provisions of the Liquor Licensing Act 1997 (SA) considered in that case with those contained in the Control Act. The definition of “criminal intelligence” in s 3 of the Control Act is, while not identical, in relevantly the same terms as the definition of “criminal intelligence” contained in s 4 of the Liquor Licensing Act. Apart from the addition of the adjective “properly” in each of subs (1) and (2) of s 21 of the Control Act, those provisions are materially in the same form as ss 28A(1) and 28(5) of the Liquor Licensing Act.
[135] [2008] HCA 4; (2008) 234 CLR 532.
[136] [2009] HCA 4; (2009) 83 ALJR 327.
In holding that ss 28A(1) and 28A(5) did not infringe the Kable principle, the plurality in K-Generation held that it was open to the Licensing Court to determine whether information had been properly classified by the Commissioner of Police as criminal intelligence.[137] The inclusion of the adjective “properly” in ss 21(1) and s 21(2)(a) of the Control Act reinforces that understanding. The plurality also held that if the Licensing Court was satisfied that the information had been properly classified as criminal intelligence, it had a discretion as to the steps to be taken to protect its confidentiality and, in particular, that it was not directed as to the particular action which had to be taken;[138] it was not denied the ability to receive submissions from all parties as to the steps which should be taken;[139] nor was it bound to accept and act upon the criminal intelligence,[140] and, in particular, the Licensing Court could decide to place little or no weight on the material because the Commissioner had, by making application under s 28A(5) precluded the applicant from being able to see, let alone test, the material in question.[141] French CJ in a separate judgment expressed similar views.[142]
[137] Ibid at [143]-[144]; 351-2.
[138] Ibid at [146]; 352.
[139] Ibid at [146]; 352.
[140] Ibid.
[141] Ibid at [148]; 352.
[142] Ibid at [67]-[79]; 341-43.

The reasoning of K-Generation concerning the comparable provisions in the Liquor Licensing Act applies in relation to the Control Act. Accordingly, this Court should hold that the provisions of s 21 do not have the effect that s 14 infringes the Kable principle.
Nature of the Evidence
The plaintiffs drew attention to the way in which the Magistrates Court is authorised to receive evidence properly classified as criminal intelligence. Section 21(2)(b) provides that such evidence may be taken by the Court by way of affidavit of a police officer of or above the rank of Superintendent. They submitted that the very nature of criminal intelligence, as defined, and the fact that it may be put before the Court only by an affidavit from a senior police officer, indicated that the Control Act authorised the Magistrates Court to receive and act upon hearsay evidence. It was said that this contributed to the infringement of the Kable principle.
I agree that s 21(2)(b) contemplates that the Magistrates Court may receive hearsay evidence when hearing and determining an application under s 14. Further, for the reasons given earlier, the hearing of an application under s 14 appears to be interlocutory in nature. That means that r 19(4) of the Magistrates Court (Civil) Rules 1992 which permits affidavits used in interlocutory proceedings to contain statements based on information and belief is applicable to s 14 hearings.[143] Accordingly the Magistrates Court may determine a s 14 application by the use of evidence which has been admitted other than in accordance with the rules of evidence.
[143] As to the need for an affidavit containing statements based on information and belief to set out the grounds of the deponent’s belief, see Commissioner of Taxation v Ahern (1986) 87 FLR 112.
There are numerous circumstances in which courts may act upon evidence not proved in accordance with the law or rules of evidence. For example, s 6 of the Criminal Law (Sentencing) Act 1988 provides that, for the purpose of determining sentence, a court is not bound by the rules of evidence. Section 59J of the Evidence Act 1929 (SA) permits courts, in both civil and criminal proceedings, to dispense with compliance with the rules of evidence for the proving of any matter which is not genuinely in dispute or when compliance might involve unreasonable expense or delay.
It is not suggested that provisions of this kind impair the constitutional integrity of a court.
Many of the rules of evidence have been developed so as to ensure fairness in the conduct of trials. The Magistrates Court can be expected to be aware of this. It is open to the Magistrates Court to attach little or no weight to material adduced before it by a means which does not comply with the rules of evidence.
Use of the Civil Standard
The plaintiffs drew attention to the fact that all questions of fact arising on an application under s 14 are to be decided on the balance of probabilities.[144] It was said that this contributed to the impairment of the constitutional integrity of the Magistrates Court.
[144] Control Act s 5(1).
I disagree. An application of the criminal standard rather than the civil standard is not essential to the institutional integrity of a court. Further, as the submissions of the State acknowledged, the civil standard is to be applied in the manner discussed by Dixon J in Briginshaw v Briginshaw.[145]
[145] Briginshaw v Briginshaw (1938) 60 CLR 336.
The Features in Combination
The plaintiffs submitted that even if any one of the features discussed above, considered by itself, did not infringe the Kable principle, their combined operation did have that effect. They emphasised in particular in this respect the “directed outcome” said to be required by s 14, the fact that a defendant may not be heard at the hearing of an application made under s 14, and that even if the hearing did proceed upon notice, the defendant may be denied access to some of the evidence upon which the Court was asked to rely.
In addition, the plaintiff submitted that the Control Act vests in the Magistrates Court a minor role in the overall decision-making process leading to the making of control orders. Using language adapted from a number of the High Court authorities, the plaintiff submitted that the effect of the Control Act was to draw the Magistrates Court into a scheme in which it became a mere instrument or cipher of Government policy,[146] and that it sought to attach to a control order the reputation and authority[147] of the Magistrates Court when the effective decision leading to the making of a control order was that of the holder of a political office.
[146] Fardon v Attorney-General (Qld) [2004] HCA 46 at [19]; (2004) 223 CLR 575 at 592.
[147] Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51 at 134 (Gummow J).
At one level, the plaintiffs’ submission derives some support from the circumstances of the control order made in respect of Mr Hudson. The declaration by the Attorney was made some five months after the application by the Commissioner of Police, after the Attorney had given notice to, and received submissions from, a number of persons, and was supported by some 53 pages of reasons. In contrast, the control order was issued by the Magistrate on 25 May 2009, on the same day as the Commissioner filed his application in the Magistrates Court, and without any notice to Mr Hudson. So far as the papers provided to this Court reveal, the Magistrate did not provide any reasons for his decision[148] and the statement in the control order itself of the grounds upon which the order was issued comprises only three lines.
[148] For conflicting views as to the obligation to give reasons in an analogous context, see the judgments of Allsop P and McClellan CJ at CL in International Finance Trust Company Ltd v New South Wales Crime Commission [2008] NSWCA 291 at [40]-[50], [136]-[141]; (2009) 251 ALR 479 at 487-89, 511-12.
It is inappropriate for this Court to address the manner in which the control order concerning Mr Hudson was made in the Magistrates Court. It may well be in issue in other proceedings. In any event, the particular course of events which led to the making of the control order concerning Mr Hudson is of little, if any, significance in relation to the validity of the Control Act itself.
A comparison of the power vested in the Attorney-General by s 10(1) and that vested in the Magistrates Court by s 14(1) does suggest that the Attorney’s declaration is the major element in the scheme for control orders established by the Control Act.
The plaintiffs’ submissions appear to have at their base an assumption about a proper role for legislative and executive decision-making, on the one hand, and judicial decision-making, on the other. They contended that decisions which hitherto had been accepted as being within the province of courts were now to be made by the holder of a political office. While conventionally, certain kinds of decisions have been left to the executive and others to the judiciary, it must be remembered, that in applying the assumption at the base of the plaintiffs’ submissions, that the separation of powers is not an entrenched constitutional principle in this State. There is no constitutional principle to the effect that judicial powers may be exercised only by the courts.
Furthermore, it is not uncommon for a statute to provide that the executive may, by regulation, make major decisions concerning its implementation, the effect of which may well be to confine the area of decision-making which could otherwise have been left to the courts. Often that is a result of a recognition that the policy considerations and value judgments involved are not readily amenable to resolution in adversarial litigation. Sometimes it is because the Parliament intends that it should be the executive, and not the courts, which make the relevant decision. Sometimes it is done with a view to avoiding prolonged disputation within a court as to whether certain conduct should be regarded as criminal and to facilitate the prosecution of contraventions of the legislation.
The Controlled Substances Act 1984 (SA) (CSA) provides an example. Section 32 of the CSA creates offences concerning the trafficking in a “controlled drug”. The expression “controlled drug” could have been defined by reference to specified characteristics, leaving it to the courts to decide in each case whether any substance in which the defendant trafficked had those characteristics. Instead, the expression “controlled drug” is defined in s 4 of the CSA to mean a “drug of dependence” or any other “substance declared by regulation to be a controlled drug for the purposes of [the CSA]”. The expression “drug of dependence” is in turn defined to be “a poison declared by regulation to be a drug of dependence”. The effect of these definitions is that it is the executive, and not the courts, which decides the drugs to which the prohibition in s 32 of the CSA applies.
Other examples can be seen in the legislation concerning the protection of fisheries and of native vegetation. There are some differences between the subject matter of these examples and the Control Act. However, they are sufficient to make the (perhaps obvious) point that it is not unusual for Parliament to entrust the executive with significant decision-making responsibilities in the implementation of legislation. It is not generally thought that when the Parliament does so, the corresponding reduction in the area of decision-making for the courts involves a compromise of their institutional integrity.
In my respectful opinion, it is inappropriate to approach the issues of invalidity in this case by making a comparison of the role of the Attorney-General under s 10, on the one hand, with that of the Magistrates Court under s 14, on the other. To do so is to distract attention from the real question for the Court’s determination.
In Forge v Australian Securities and Investments Commission,[149] Gummow, Hayne and Crennan JJ said:
…[A]s is recognised in Kable, Fardon v Attorney-General (Qld) and Northern Australian Aboriginal Legal Aid Service Inc v Bradley, the relevant principle is one which hinges upon maintenance of the defining characteristics of a “court”, or in cases concerning a Supreme Court, the defining characteristics of a State Supreme Court. It is to those characteristics that the reference to “institutional integrity” alludes. That is, if the institutional integrity of a court is distorted, it is because the body no longer exhibits in some relevant respect those defining characteristics which mark a court apart from other decision-making bodies.[150] [Citations omitted]
In the same case, Gleeson CJ said:
It follows from the terms of Ch III that State Supreme Courts must continue to answer the description of “courts”. For a body to answer the description of a court it must satisfy minimum requirements of independence and impartiality. That is a stable principle, founded on the text of the Constitution. It is the principle that governs the outcome of the present case. If State legislation attempted to alter the character of a State Supreme Court in such a manner that it no longer satisfied those minimum requirements, then the legislation would be contrary to Ch III and invalid.[151] This reasoning invites particular attention to the impact of the impugned legislation on the continued independence and impartiality of the Magistrates Court.
These passages suggest that the focus of the enquiry should be on the effect, if any, of the Control Act on the character of the Magistrates Court as a court, and, in particular, on its ability to function independently and impartially.
[149] [2006] HCA 44; (2006) 228 CLR 45.
[150] Ibid at [63], 6.
[151] Ibid at [42], 67-8. For a recent application of this principle see R v Ironside [2009] SASC 151 at [88]-[90].
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. However, in my opinion, that has not occurred in this case.
For the reasons given above, the Magistrates Court should, absent particular circumstances such as urgency or evasion of service, conduct a hearing of a s 14 application only when it is satisfied that the defendant has been given proper notice. It should act only on cogent evidence, having full regard to the significance of the order which it is asked to make. In the case of applications under s 14(1) the Court must be satisfied that the defendant’s membership of a declared organisation has been proved and that the particular terms of the control order are appropriate. This will require the Court to be satisfied both of any exceptions under s 14(5)(b) which are to be included and also that exceptions relating to particular forms of communication or communication with particular persons are inappropriate. In considering these matters, the Magistrates Court is to exercise its own independent adjudicative role. Although required to protect the confidentiality of information properly classified as criminal intelligence, the Court has a considerable discretion as to the procedures to be adopted in that respect, and may choose to place little or no weight on it having regard to the fact that the defendant has been denied access to the material.
When the Control Act is construed and understood in the way discussed in these reasons, I do not consider that it can be said that the institutional integrity of the Magistrates Court is impaired so as to infringe the Kable principle.
Conclusion
For these reasons, I would answer the questions reserved for this Court’s consideration as follows:
1. Yes.
2.Not by reason of any invalidity of s 10(1) of the Serious and Organised Crime (Control) Act 2008.
3.Yes.
4.Not by reason of any invalidity of s 14(1) of the Serious and Organised Crime (Control) Act 2008.
KELLY J: I agree that the questions should be answered in the way suggested by Bleby J for the reasons which he has given.