23 June 2011


The High Court in Wainohu v New South Wales [2011] HCA 24 has ruled that the Crimes (Criminal Organisations Control) Act 2009 (NSW) - counterpart of the South Australian statute considered in Totani - is invalid as it undermines the institutional integrity of the NSW Supreme Court of New South Wales and is outside the legislative powers of the NSW Parliament.

French CJ and Kiefel J in their judgment note that under the NSW Act an eligible NSW judge may make a determination under Pt 2 of the Act on the basis of -
information and submissions, without regard to the rules of evidence, partly based on information and submissions not able to be disclosed to the organisation or its members, and with no obligation to provide reasons for the determination which is made. The Act thus provides for the enlistment of judges of the Supreme Court to determine applications for declarations using processes which, if adopted by the Court itself, would be repugnant to the judicial function.

The making of a declaration by an eligible judge is a necessary condition for the exercise by the Court of its jurisdiction to make a control order. It is well established that a State legislature, untrammelled by a doctrine of separation of powers derived from the Constitution of the State, can confer administrative functions on a court of the State or on judges of the court. It cannot confer administrative functions on a court which are incompatible with the court's essential and defining characteristics as a court and thereby with its place in the national integrated judicial system for which Ch III of the Constitution provides. Nor, as is explained in these reasons, can a State legislature confer upon judges of a State court administrative functions which substantially impair its essential and defining characteristics as a court. The Act effects such an impairment. It does so because it provides, in effect, that the jurisdiction of the Supreme Court to make control orders against members of an organisation will be enlivened by a decision of a judge of the Court, after an adversarial proceeding, on complex and important matters of fact, for which the Act provides that no reasons need be given. The Act also creates an impression of a connection between the performance of a non-judicial function and the following exercise of judicial power, such that the performance of that function may affect perceptions of the judge, and of the court of which he or she is a member, to the detriment of that court. The plaintiff's challenge to the validity of the Act should succeed.
Undeterred by more bad news after the Totani decision, noted here, the SA Attorney-General John Rau is reported as commenting that he remains committed to implementing OMG law based on restriction of association.
The question is how you get those orders? New South Wales, I emphasise, used a completely different methodology to get those orders and the High Court has said that methodology was flawed as well
SA Opposition justice spokesman Stephen Wade is reported as commenting that the South Australian Government should make a thorough reassessment of its organised crime legislation -
It's about time we asked ourselves the question 'Is it better to waste money in futile High Court challenges or is it better to get in back into the parliament and make laws that are well within our legal and constitutional power and get in and fight organised crime?
Wainohu, a member of the Hells Angels Motorcycle Club, had challenged the validity of an application by the Ag NSW Police Commissioner to a Judge of the NSW Supreme Court for an administrative declaration under Part 2 of the Crimes (Criminal Organisations Control) Act 2009 (NSW) ("the Act") regarding the Club. That declaration wouldf provide the basis under Part 3 of the Act for the Supreme Court - on application by the Commissioner of Police - to make control orders against individual members of the Club. Those orders would make it an offence for specified members to associate with each other and would bar from certain classes of business and occupation.

French and Kiefel note the legitimacy of anti-association legislation that is aimed at addressing "the incidence and sophistication of what is generally called 'organised crime'". That must however -
be pursued within the framework of the Constitution so as to maintain the integrity, independence and authority of the courts that may be required to determine whether persons charged with offences under federal, State or Territory laws are guilty of those offences, and to punish them if they are.
Wainohu attacked the validity of the Act regarding -
• the functions it confers on eligible judges including the provisions for private hearings in relation to criminal intelligence and protected submissions; and

• the functions it confers on the Supreme Court in relation to the making of interim control orders and control orders and particularly the obligation to maintain, as against the person affected by such applications, the confidentiality of criminal intelligence and protected submissions.

Those functions are said to undermine the institutional integrity and independence of the Court.

The plaintiff also claims that the Act infringes implied constitutional freedoms of political communication and political association.
In considering the claims French and Kiefel commented that -
Decisions of this Court, commencing with Kable, establish the principle that a State legislature cannot confer upon a State court a function which substantially impairs its institutional integrity, and which is therefore incompatible with its role, under Ch III of the Constitution, as a repository of federal jurisdiction and as a part of the integrated Australian court system. The term "institutional integrity", applied to a court, refers to its possession of the defining or essential characteristics of a court. Those characteristics include the reality and appearance of the court's independence and its impartiality. Other defining characteristics are the application of procedural fairness and adherence, as a general rule, to the open court principle. As explained later, it is also a defining characteristic of a court that it generally gives reasons for its decisions. In the case of the Supreme Courts of the States, that characteristic has a constitutional dimension by reason of the appellate jurisdiction conferred on this Court by s 73 of the Constitution. ...

It is not within the power of a State legislature to enact a law conferring upon courts which have or can have federal jurisdiction conferred upon them functions incompatible with the role of such courts under Ch III of the Constitution as repositories of federal jurisdiction. A function conferred upon a court which substantially impairs the institutional integrity of the court has that effect. ...

The principle in Kable also leads to the conclusion that a State legislature cannot enact a law conferring upon a judge of a State court a non-judicial function which is substantially incompatible with the functions of the court of which the judge is a member. Although the function may be conferred upon the judge in his or her capacity as an individual, the statute may create a close connection and therefore an association with the person's role as a judge. Where this is the case, the potential for incompatibility of the non-judicial function is brought more sharply into focus. The question which then arises is whether the performance of that function would impair the defining characteristics of that court. It is that question with which the Court is concerned in this case.
Gummow, Hayne, Crennan and Bell JJ stated that Wainohu -
submitted a range of further arguments as to why the Act was invalid, in particular by reference to the provisions of Pt 3 and the exercise of jurisdiction thereunder by the Supreme Court. These submissions should not be accepted, noting in particular the following.

First, the conferral of jurisdiction on the Supreme Court under Pt 3 by ss 14(1) and 14(3) is to be understood as bringing with it the usual incidents of the exercise of jurisdiction by the Supreme Court and these are not excluded by a "distinct regime" of the nature considered in International Finance Trust Co Ltd v New South Wales Crime Commission. Secondly, an eligible Judge who has made a declaration under Pt 2 may be recused from the subsequent exercise of the jurisdiction of the Supreme Court under Pt 3. Thirdly, while the Act does not attempt to prescribe what might be "sufficient grounds" for the making of a control order (s 19(1)(b)), these must be ascertained by regard to the subject, scope and purpose of the Act including the consequences of the making of an interim control order or control order; there are numerous authorities establishing that the conferral of curial powers by reference to such criteria nevertheless may be susceptible to the exercise of judicial power. Fourthly, the regime created by Div 2 of Pt 3 for the making of control orders significantly differs from the provision in s 14(1) of the South Australian legislation held invalid in South Australia v Totani: there is no obligation imposed upon the Supreme Court to make an order upon the basis of the anterior declaration made by an eligible Judge.

The plaintiff also attacked the validity of the Act for exceeding the constraint upon State legislative power said to be derived from implications in the Constitution respecting political communication and freedom of association. Any freedom of association implied by the Constitution would exist only as a corollary to the implied freedom of political communication and the same test of infringement and validity would apply.

Further, the Act is not directed at political communication or association. With respect to control orders, special provision for exemption is made by the Act. If in the opinion of the Supreme Court the circumstances of the case require, a person may be exempted from the prohibition upon association imposed by s 26 to the extent and subject to the conditions specified in the control order pursuant to s 19(7). The provision in s 19(7) permits the restriction of control orders so as not unreasonably to burden freedom of political communication; the power of the Supreme Court to make a control order should be construed conformably with the implied freedom so as to render reviewable for error any particular order which exceeded the limit of the implied freedom. No provision for exemption is made for interim control orders; but, as the Commonwealth submitted, even if the result was in some circumstances to burden the implied freedom, the question would then be whether the Act nevertheless in this respect served a legitimate end of protection against the activities of criminal organisations and their members.