Australia: High Court says, on your bike!

Public law report

In Wainohu v New South Wales (2011) 278 ALR 1, the High Court of Australia declared invalid legislation enacted by the New South Wales Parliament to target organised criminal groups, in particular "bikie" groups that had been the subject of significant media attention in 2009.

The Crimes (Control of Criminal Organisations) Act 2009 (NSW) (the Act) is an Act for "the making of declarations and orders for the purpose of disrupting and restricting the activities of criminal organisations and their members".

On 6 July 2010, the Acting Commissioner for Police for NSW made an application under the Act for a declaration that the Hells Angels Motorcycle Club was a "declared organisation". If successful, this would have exposed its members to the possibility of a "control order". One of its members, Derek Wainohu, commenced an action in the original jurisdiction of the High Court seeking an order that the Act was invalid.

The Act established a two step process:

  • first, an application has to be made by the Commissioner for Police for a declaration under the Act that a group is a "declared organisation"
  • secondly, a person who is a member of a "declared organisation" can be made the subject of a "control order", which imposes restrictions on that person aimed at preventing their activity within the "declared organisation".

The first step in the process is an administrative decision, and the second is a judicial decision. Both, however, are made by judges of the NSW Supreme Court, and the High Court's reasoning in invalidating the Act focused on the connection between the two steps and the consequences of the first step for the integrity of the judiciary as an independent branch of government.

While judges often make administrative decisions (such as issuing warrants allowing interception of telecommunications), the power to do so is conferred on them as individuals (or designated persons) rather than as judges of the court. This use of judges as designated persons is a solution to the problem created by the interpretation of the Constitution that, by creating separate judicial, executive, and legislative branches of government, it prohibits laws that confer non-judicial (or administrative) functions on courts that are established under Chapter III of the Constitution.

The problem identified in Wainohu was that the administrative decision to declare an organisation under the Act was so closely tied to the exercise of judicial power, and was of a character that was incompatible with the exercise of judicial power, such that conferring it on judges of the Supreme Court violated the principle that the judicial branch must remain separate from the executive (administrative) branch.

Chief Justice French and Justice Kiefel said that the principle enabling the use of federal judges as designated persons was subject to the limitation that the function conferred on them could not be incompatible with their position as a member of the judicial branch. Incompatibility would arise if, relevantly, the (at [38]):

"non-judicial function were such that the capacity of the judge to perform his or her judicial functions with integrity would be compromised or impaired; or the non-judicial function were of such a nature that public confidence in the integrity of the judiciary as an institution or in the capacity of the judge to perform his or her judicial functions with integrity would be diminished."

The principle above is one example of the broader principle that the institutional integrity (or independence) of the federal judiciary under Chapter III of the Constitution cannot be undermined by the legislative or executive branches.

The High Court has also developed the "principle that a state legislature cannot confer on a state court a function which substantially impairs its institutional integrity" and so is incompatible with its role as a court that exercises federal judicial power (at [44], [105]). In essence, the integrated nature of the Australian judicial system, in particular the fact that state superior courts exercise federal judicial power, means that state courts are subject to the same principle that their institutional integrity must be protected in the same way that federal courts are.

In Wainohu, the High Court applied to a state court the test of incompatibility described above: whether the performance of the nonjudicial function by judges of the court, in making a declaration under the Act, would impair the defining characteristics of the court (at [47]).

There were a number of features of the process of declaring an organisation under the Act that the majority (Justice Heydon dissenting) found to be incompatible with the exercise of judicial power. The process involved a judge of the court, as a designated person, hearing evidence, none of which need be admissible in a court, often in private, and without the need to give reasons for their decision to declare, or not, an organisation (at [36]).

It was the exclusion in s13(2) of the Act of the obligation to give reasons that ultimately led the High Court to declare that the Act was ultra vires (at [53]-[59]). The centrality of giving reasons for the exercise of judicial power to the judicial function was emphasised by the majority. While, as the lone dissentient Justice Heydon noted, the Act did not proscribe reasons being given, the fact that the Act expressly allowed none to be given was enough for the majority to conclude that the power conferred under the Act infringed the principle of compatibility (at [68]). It should be noted that the complex questions of fact and evaluative judgments involved in a declaration under the Act made the giving of reasons particularly important in the majority's view, and it distinguished the Act from one conferring the power to issue a warrant, for example, where invalidity may not arise (at [66], [109]). It was also important that a declaration by a judge was a condition precedent to the exercise of judicial power in making a control order under the Act as part of the two step process (at [66]). This close connection between administrative and judicial decision making strengthened the degree to which the non-judicial functions were said to impair the integrity of the court.

This decision is one in a series of cases where the High Court has invalidated state legislation on the basis of federal constitutional principle. In his dissent, Justice Heydon accepted that while the Act did not require reasons for a declaration, judges of the Supreme Court would know when they were appropriate and when they were not. He also noted that the main basis of the majority's judgment was not a ground that the plaintiff argued or that was dealt with in any detail in oral submissions:

"[t]here is thus incomplete contact between the grounds on which the plaintiff is to succeed, the arguments which he advanced and the arguments which his opponents advanced".

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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