Vella v Commissioner of Police (NSW)

This case concerned a special case stated to the High Court of Australia by the Supreme Court of New South Wales. The plaintiffs, Damien Charles Vella, Johnny Lee Vella, and Michael Fetui, challenged the validity of the *Crimes (Serious Crime Prevention Orders) Act 2016* (NSW) (the SCPO Act). The Commissioner of Police had commenced proceedings seeking serious crime prevention orders (SCPOs) against the plaintiffs, alleging they had been convicted of serious criminal offences and involved in serious crime-related activities, and that making such orders would protect the public by preventing, restricting, or disrupting their future involvement in such activities. The plaintiffs contended that the powers conferred by the SCPO Act were incompatible with the institutional integrity of State courts, particularly given their role as repositories of federal judicial power under Chapter III of the Constitution.

The central legal issue before the High Court was whether the SCPO Act, by empowering State courts to make SCPOs based on a belief that such orders would protect the public by preventing, restricting, or disrupting future criminal activity, involved an exercise of judicial power that was inconsistent with Chapter III of the Constitution. Specifically, the Court was asked to determine if the Act's provisions substantially impaired the institutional integrity of the State courts, rendering the Act invalid in whole or in part. This question was framed by reference to the principles established in *Kable v Director of Public Prosecutions (NSW)* and subsequent cases concerning the limits on State legislative power to direct State courts.

The High Court, in answering the questions posed by the special case, found that subsection 5(1) of the SCPO Act was invalid. The Court reasoned that the Act required State courts to make orders restraining an individual's liberty not because they had breached a law, but based on a satisfaction that there were reasonable grounds to believe such restraints would protect the public by preventing future criminal involvement. This, the Court held, went beyond the permissible exercise of judicial power and infringed upon the institutional integrity of the courts, as established in *Kable*. The Court noted that while courts can be expected to implement legislative policy, the SCPO Act blurred institutional boundaries by drawing the judiciary into a process that diminished its independence and distinctive character as the constitutional arbiter of disputes.

Consequently, the High Court answered the first question in the affirmative, finding that subsection 5(1) of the SCPO Act was invalid because it was inconsistent with and prohibited by Chapter III of the Constitution. As a result, the Court deemed it unnecessary to answer the subsequent questions regarding the extent of the invalidity and severability. The Court ordered that the plaintiffs pay the costs of the special case.