Scholars of criminal law and criminalisation have paid insufficient attention to the use of constitutional challenges in the courts as a strategy for influencing the nature and scope of criminal laws in Australia. This article makes a contribution to filling this gap by analysing 59 High Court of Australia decisions handed down between 1996 and 2016. Our analysis highlights the sorts of criminal laws that have been the subject of constitutional scrutiny, the types of constitutional arguments that have been advanced, and the outcomes achieved. We show that outright ‘wins’ are rare and that, even then, the concept of ‘success’ is complex. We highlight the need to consider the wider and longer-term effects of constitutional adjudication, including how legislatures respond to court decisions. We conclude that challenges to constitutional validity in the High Court represent a limited strategy for constraining how governments choose to legislate on criminal responsibility, procedure and punishment.The authors comment
The research on which this article reports is motivated by three coinciding phenomena associated with 21st century criminal lawmaking in Australia. First, there has been a noticeable growth in, and diversification of, the modalities of ‘criminalisation’employed by legislators in response to identified harms and risks (and uncertainties).
A number of these developments involve extensions of the punitive and other coercive authority of the state beyond the traditional parameters of criminal responsibility, and in ways that challenge traditional liberal democratic accounts of when the state is entitled to impose deprivations on a person’s liberty. Examples include: the creation of ‘control order’ regimes directed primarily at terrorism and bikie gangs; the introduction of post-sentence preventive detention regimes for ‘high-risk’ offenders; and the expansion of police powers in relation to the management of protest activities.
Second, in Australia and elsewhere, scholars in criminal law and criminology have responded to disquiet about these and other forms of perceived ‘overcriminalisation’. By ‘over-criminalisation’ we mean the normative judgment that a law is unnecessarily or unfairly punitive, pushing the criminal law – whether its substantive offences, or procedures, or both – and, therefore, the coercive powers of the state, beyond legitimate limits. Scholars have produced a significant body of literature which critiques such developments in resorting to criminal law ‘solutions’, and which attempts to theorise the legitimate normative limits of criminalisation as a public policy mechanism.
Third, in Australia, individuals and organisations concerned about instances of perceived over-criminalisation, and their lawyers, have pursued constitutional challenges in the High Court as a prominent strategic mechanism for attempting to stop or restrict perceived over-criminalisation. To some extent, the rise in popularity of this strategy may be seen as an attempt to enliven the ‘constitutional court’ role of the High Court akin to the role played by constitutional courts in other countries – such as the Supreme Court of Canada, courtesy of the Canadian Charter of Rights and Freedoms, or the United States Supreme Court, by virtue of the United States Bill of Rights. Of course, compared to those two constitutional courts, the ‘hooks’ on which invalidity arguments can be hung in the High Court are very few.
The aim of this article is to make a contribution towards understanding High Court constitutional challenges as a method of influencing the parameters of criminal lawmaking in Australia. In what circumstances has this strategy been successful? What have been its effects on lawmaking practices, both in the immediate aftermath of specific decisions and over time?
The context in which we approach these questions is a wider project which examines the drivers of resorting to new forms of criminalisation as a public policy tool, and which evaluates strategies for attempting to influence the parameters of criminalisation. We recognise that constitutional law scholars have previously examined a number of the cases that form part of the present study, most notably in relation to the most widely used constitutional invalidity argument in the criminal law context: the ‘institutional integrity’ principle based on Chapter III of the Australian Constitution, with its origins in the High Court’s 1996 decision in Kable v Director of Public Prosecutions (NSW).
Our aim in writing this article is not to duplicate or challenge the insights yielded by this important body of work. Rather, this article is motivated by our own recognition that scholars of criminal law and criminalisation have tended to ignore this important dimension of the story of contemporary criminal lawmaking in Australia. It represents the first attempt by criminal law and criminalisation scholars to approach High Court constitutional challenges as one of the techniques for attempting to interrupt and influence governments’ uses of criminal law mechanisms that warrants scholarly attention and scrutiny.
Our analysis addresses not only ‘Kable challenges’, but also challenges to criminal law statutes brought on other constitutional grounds, including the implied freedom of political communication, the guarantee of trial by jury for Commonwealth indictable offences in section 80 of the Constitution, and the supremacy of Commonwealth laws in cases of inconsistency between state and Commonwealth laws, by virtue of section 109 of the Constitution. Nonetheless, we recognise the significance of the High Court’s decision in Kable and therefore adopt the year it was handed down (1996) as the starting point for the review period in the present study. Kable was critical to ‘[t]he move to centre stage of Ch III of the Constitution’, which has been described as ‘one of the defining features of … Australian constitutional law’ during the 1990s. Kable is widely and rightly seen as a pivotal event in the emergence of the public interest strategy of pursuing constitutional validity to statutes which are alleged to effect overcriminalisation in one way or another.
Part II of this article explains the project’s research design, including research questions and methodology. Part III presents a brief quantitative snapshot of the dataset. Part IV discusses the project’s major findings regarding the use of High Court constitutional challenges as a strategy for influencing the parameters of criminal law and procedure legislation in Australia.Meanwhile the Victorian Premier, in one of those moments that will power a generation of law tutorials, has followed up AB (a pseudonym) v CD (a pseudonym); EF (a pseudonym) v CD (a pseudonym) [2018] HCA 58 by announcing a royal commission into the state's use of a senior barrister as a 'super grass' in high profile crime litigation.
The Andrews Labor Government has today announced that it will establish a Royal Commission to independently inquire into Victoria Police’s recruitment and management of one of its informants.
The informant was a criminal defence barrister for several people who were convicted of criminal offences over the past two decades. At the same time, this barrister acted as an informant to Victoria Police about some of these people.
The decision of the High Court released today calls into question whether some convictions have occurred fairly and in accordance with law.
The integrity of the criminal justice system is paramount and all people charged with crimes are entitled to a fair trial, no matter who they are.
The Victorian Government has received assurances from Victoria Police that its practices have changed since the barrister’s recruitment as an informant, and an IBAC report in 2015, which inquired into Victoria Police’s management of informants, did not find that any unlawful conduct had occurred.
The Victorian community, however, has a right to further independent assurance that these past practices have been stamped out, as well as an understanding of what happened in this instance. The Royal Commission will provide that assurance.
The terms of reference will be finalised once Commissioners are appointed, but the inquiry will consider matters including:
- The number of, and extent to which, cases were affected by the conduct of informant 3838 as a human source, and the recruitment, handling and management of 3838 as a human source by Victoria Police
- The adequacy of current management processes for human sources with legal obligations of confidentiality or privilege, including continued compliance with the recommendations of the 2015 IBAC report
- The use in the criminal justice system of information from human sources who are subject to legal obligations of confidentiality or privilege. including whether there are adequate safeguards in the way in which cases are assessed and recommended for prosecution, and prosecuted by Victoria Police and the Office of Public Prosecutions
- Recommended measures that may be taken to address any systemic or other failures in Victoria Police’s processes for the recruitment, handling and management of human sources who are subject to legal obligations of confidentiality or privilege, and in the use of such human source information in the broader criminal justice system, including how those failures may be avoided in future.
The inquiry will provide an interim report by 1 July 2019 and provide a final report by 1 December 2019.The Premier might be wise to doubt future 'assurances from Victoria Police'.
The HCA judgment states
Early in February 2015, the Victorian Independent Broad-based Anti-corruption Commission provided to the Chief Commissioner of Victoria Police ("AB"), and AB in turn provided to the Victorian Director of Public Prosecutions ("CD"), a copy of a report ("the IBAC Report") concerning the way in which Victoria Police had deployed EF, a police informer, in obtaining criminal convictions against Antonios ("Tony") Mokbel and six of his criminal associates ("the Convicted Persons"). The Report concluded among other things that EF, while purporting to act as counsel for the Convicted Persons, provided information to Victoria Police that had the potential to undermine the Convicted Persons' defences to criminal charges of which they were later convicted and that EF also provided information to Victoria Police about other persons for whom EF had acted as counsel and who later made statements against Mokbel and various of the other Convicted Persons. Following a review of the prosecutions of the Convicted Persons, CD concluded that he was under a duty as Director of Public Prosecutions to disclose some of the information from the IBAC Report ("the information") to the Convicted Persons.
In the months which followed, Victoria Police undertook an assessment of the risk to EF if CD were to disclose the information to the Convicted Persons. The conclusion reached was that, if the information were disclosed, the risk of death to EF would become "almost certain". On 10 June 2016, AB instituted proceedings in the Supreme Court of Victoria seeking declarations that the information that CD proposed to disclose and other information in the IBAC Report was subject to public interest immunity and thus that CD is not permitted by law to make the proposed disclosures. On 11 November 2016, EF was added as a plaintiff to the proceeding. On 15 November 2016, EF instituted a separate proceeding in the Supreme Court of Victoria seeking similar relief on the basis of an equitable obligation of confidence.
Both proceedings were heard together in camera without notice to the Convicted Persons and with publication of the proceedings being suppressed. The Convicted Persons' interests were, however, amply represented throughout the proceedings and subsequently on appeal to the Court of Appeal of the Supreme Court of Victoria, and before this Court, by amici curiae. The Victorian Equal Opportunity and Human Rights Commission intervened in the proceeding instituted by AB and the Commonwealth Director of Public Prosecutions was granted leave in the Court of Appeal to intervene in support of disclosure.
On 19 June 2017, Ginnane J gave judgment in each proceeding dismissing AB's and EF's claims for relief. Relevantly, his Honour dismissed the claim for public interest immunity on the basis that, although there was a clear public interest in preserving the anonymity of EF as a police informer, and thus in keeping her and her children safe from the harm likely to result from disclosure of the information, there was a competing and more powerful public interest in favour of disclosure because of the assistance that the information might afford the Convicted Persons in having their convictions overturned and, more fundamentally, in order to maintain public confidence in the integrity of the criminal justice system.
On 21 November 2017, the Court of Appeal of the Supreme Court of Victoria (Ferguson CJ, Osborn and McLeish JJA) dismissed AB's and EF's appeals from the orders of Ginnane J. Like Ginnane J, the Court of Appeal held that, despite the risk to EF and her children, the very great importance of ensuring that the court's processes are used fairly and of preserving public confidence in the court meant that the public interest in disclosure outweighed the public interest in immunity.
On 9 May 2018, AB was granted special leave to appeal to this Court on grounds to the effect that the Court of Appeal erred in failing to appreciate that there is a discrete public interest in the State of Victoria adhering to the responsibility which it assumed by reason of the assurances given by Victoria Police to EF that her identity as a police informer would not be disclosed. At the same time, EF was granted special leave to appeal on grounds to the effect that the Court of Appeal erred by assuming, contrary to the evidence, that EF might choose to enter into the witness protection program once it was determined that the information would be disclosed, by finding and taking into account that EF's refusal to enter witness protection may become unreasonable, and by not concluding that the public interest favoured non-disclosure given the gravity of the consequences of disclosure to EF and her children.
The full written arguments thereafter presented by all parties and interveners made it apparent, as it was not apparent at the time of granting special leave to appeal, that the only arguable issue underpinning the various grounds of appeal was whether it was no longer possible adequately to protect the safety of EF and her children in the event of disclosure. Accordingly, in order to clarify the relevant facts that had been the foundation of the grant of special leave, the Court sought from AB, and was provided with, further detailed evidence as to what can be done to secure the safety of EF and her children in the event of disclosure. The effect of that evidence is that the safety of EF and her children may adequately be protected if EF agrees to enter into the witness protection program.
Given that conclusion, the parties were invited to present oral argument as to why special leave to appeal should not now be revoked, and, today, their oral arguments were heard in camera. Having now considered those arguments, the Court is unanimously of the view that special leave to appeal should be revoked.
As Ginnane J and the Court of Appeal held, there is a clear public interest in maintaining the anonymity of a police informer, and so, where a question of disclosure of a police informer's identity arises before the trial of an accused, and the Crown is not prepared to disclose the identity of the informer, as is sometimes the case, the Crown may choose not to proceed with the prosecution or the trial may be stayed.
Here the situation is very different, if not unique, and it is greatly to be hoped that it will never be repeated. EF's actions in purporting to act as counsel for the Convicted Persons while covertly informing against them were fundamental and appalling breaches of EF's obligations as counsel to her clients and of EF's duties to the court. Likewise, Victoria Police were guilty of reprehensible conduct in knowingly encouraging EF to do as she did and were involved in sanctioning atrocious breaches of the sworn duty of every police officer to discharge all duties imposed on them faithfully and according to law without favour or affection, malice or ill-will. As a result, the prosecution of each Convicted Person was corrupted in a manner which debased fundamental premises of the criminal justice system. It follows, as Ginnane J and the Court of Appeal held, that the public interest favouring disclosure is compelling: the maintenance of the integrity of the criminal justice system demands that the information be disclosed and that the propriety of each Convicted Person's conviction be re-examined in light of the information. The public interest in preserving EF's anonymity must be subordinated to the integrity of the criminal justice system.
To say so is not to overlook that, on the evidence before the courts below and now before this Court, EF and her children will be at grave risk of harm unless EF agrees to enter into the witness protection program. Nor is it to ignore that, thus far, EF has declined to do so, taking the view that Victoria Police cannot be trusted to maintain confidentiality and apparently that she would prefer to wear the risk than subject herself and her children to the limitations and burdens that witness protection would surely entail. It is further not without significance that Victoria Police may bear a large measure of responsibility for putting EF in the position in which she now finds herself by encouraging her to inform against her clients as she did. But large though those considerations may be, they do not detract from the conclusion that it is essential in the public interest for the information to be disclosed.
Generally speaking, it is of the utmost importance that assurances of anonymity of the kind that were given to EF are honoured. If they were not, informers could not be protected and persons would be unwilling to provide information to the police which may assist in the prosecution of offenders. That is why police informer anonymity is ordinarily protected by public interest immunity. But where, as here, the agency of police informer has been so abused as to corrupt the criminal justice system, there arises a greater public interest in disclosure to which the public interest in informer anonymity must yield. If EF chooses to expose herself to consequent risk by declining to enter into the witness protection program, she will be bound by the consequences. If she chooses to expose her children to similar risks, the State is empowered to take action to protect them from harm.
Either way, however, it is appropriate that special leave to appeal be revoked in these two proceedings and the decision of the Court of Appeal be allowed to take effect.
