Question 2:Who should pay the costs of the special case and/or of the proceedings?
Answer:The defendant is to pay the costs of the plaintiff of the special case.
Representation
M A Robinson with W Baffsky and B J Tronson for the plaintiff (instructed by Hardinlaw Solicitors)
M G Sexton SC, Solicitor-General for the State of New South Wales and L A Babb SC with J G Renwick for the defendant and intervening on behalf of the Attorney-General for the State of New South Wales (instructed by Crown Solicitor (NSW))
S J Gageler SC, Solicitor-General of the Commonwealth with C C Spruce intervening on behalf of the Attorney-General of the Commonwealth (instructed by Australian Government Solicitor)
R J Meadows QC, Solicitor-General for the State of Western Australia and R M Mitchell SC with C S Bydder intervening on behalf of the Attorney-General for the State of Western Australia (instructed by State Solicitor (WA))
W Sofronoff QC, Solicitor-General of the State of Queensland with G P Sammon and A D Scott intervening on behalf of the Attorney-General of the State of Queensland (instructed by Crown Law (Qld))
M G Hinton QC, Solicitor-General for the State of South Australia with L K Byers intervening on behalf of the Attorney-General for the State of South Australia (instructed by Crown Solicitor (SA))
P J Hanks QC with K E Foley intervening on behalf of the Attorney-General for the State of Victoria (instructed by Victorian Government Solicitor)
S L Brownhill intervening on behalf of the Attorney-General for the Northern Territory (instructed by Solicitor for the Northern Territory)
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
Wainohu v New South Wales
Constitutional law (Cth) – Judicial power of Commonwealth – Constitution, Ch III – Institutional integrity of State courts – Non-judicial functions conferred upon judges of State courts – Section 5 of Crimes (Criminal Organisations Control)Act 2009 (NSW) ("Act") provided that Attorney-General may, with consent of judge, declare judge of Supreme Court to be an "eligible Judge" for purposes of Act – Section 6(1) provided that Commissioner of Police ("Commissioner") may apply to eligible Judge for declaration that particular organisation is a "declared organisation" for purposes of Act – Section 9(1) provided that eligible Judge may make…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
Wainohu v New South Wales [2011] HCA 24
Case
[2011] HCA 24
Decision Date
CaseChat Overview and Summary
In *Wainohu v New South Wales*, the High Court of Australia considered the constitutional validity of certain provisions of the *Crimes (Criminal Organisations Control) Act 2009* (NSW). The case involved a special case stated by the Supreme Court of New South Wales, with the plaintiff, Mr Wainohu, challenging the Act. The core of the dispute concerned the conferral of non-judicial functions upon judges of the Supreme Court, specifically their role as "eligible Judges" empowered to declare organisations as "declared organisations" and their subsequent involvement in the control order process.
The High Court was required to determine whether the functions conferred by the Act upon eligible judges were repugnant to or incompatible with the institutional integrity of the Supreme Court of New South Wales. This involved considering whether the Act substantially impaired the institutional integrity of the Supreme Court, particularly in light of provisions that allowed eligible judges to make declarations without being required to provide any grounds or reasons. The Court also considered whether the Act was outside the legislative powers of the Parliament of New South Wales.
The Court reasoned that the conferral of the power to make declarations under the Act, without any requirement to provide reasons, was incompatible with the institutional integrity of the Supreme Court. This was because the function was not exercised in a manner consistent with the judicial character of the Supreme Court, and it risked undermining public confidence in the court's impartiality and independence. The Court applied principles concerning the separation of judicial power and the requirement for State courts to maintain their institutional integrity, drawing on established High Court jurisprudence.
Ultimately, the High Court answered the questions stated in the special case. It declared the *Crimes (Criminal Organisations Control) Act 2009* (NSW) to be invalid on the grounds that it undermined the institutional integrity of the Supreme Court of New South Wales. The defendant, New South Wales, was ordered to pay the costs of the plaintiff for the special case.
Orders
Orders of the court
Order that the questions stated in the special case be answered as follows:
Question 1:Is the Crimes (Criminal Organisations Control) Act 2009 (NSW) or any provision or part of it invalid on the grounds that:
a. it undermines the institutional integrity of the Supreme Court of New South Wales; or
b. it is outside the legislative powers of the Parliament of the defendant?
Answer: The Crimes (Criminal Organisations Control) Act 2009 (NSW) is invalid.
Question 2:Who should pay the costs of the special case and/or of the proceedings?
Answer: The defendant is to pay the costs of the plaintiff of the special case.