South Australia v Totani [2010] HCA 39

South Australia v Totani [2010] HCA 39 - HCA 2010 case summary — Zoe

[175]

All of these features of the task that is given to the Magistrates Court are important to the conclusion that performance of that task is repugnant to, or incompatible with, the institutional integrity of the Court. The task is repugnant to, or incompatible with, the institutional integrity of the Court because the Court is enlisted, by the Executive, to make it a crime, for particular persons upon whom the Executive fixes, to associate together when, but for the Court's order, the act of association (as distinct from repeated and persistent associations of the kind with which s 35 deals) would not be a crime. Those whom the Executive chooses, for the compulsory imposition of a special regime by order of the Magistrates Court, must be drawn from a group determined by the Executive to be an organisation that "represents a risk to public safety and order in [the] State"[328]. But it is no part of the function of the Magistrates Court under SOCCA to determine what the particular defendant has done, or may do in the future. The Court is required to act on the assumption that "membership" of a declared organisation requires imposition of limitations on the freedom of the defendant which are not otherwise imposed, when the legislation does not make either the fact of membership of the organisation, or the continued existence of the organisation, unlawful. That is, upon the motion of the Executive, the Court is required to create new norms of conduct, that apply to a particular member of a class of persons who is chosen by the Executive, on the footing that the Executive has decided that some among the class (who may or may not include the defendant) associate for particular kinds of criminal purposes. It is not the business of the courts, acting at the behest of the executive, to create such norms of conduct without inquiring about what the subject of that norm has done, or may do in the future. To be required to do so is repugnant to the institutional integrity of the courts. It is desirable to amplify a number of aspects of these points.

[198]

It is a serious step partly because there are very limited respects in which the Constitution explicitly prohibits a State from enacting legislation. Section 107 of the Constitution preserves "[e]very power of the Parliament of a Colony" which has become a State, unless that power is exclusively vested in the Parliament of the Commonwealth or withdrawn from the Parliament of the State by the Constitution. Thus s 52(i) gives the Commonwealth exclusive power to legislate with respect to the seat of government of the Commonwealth, and all places acquired by the Commonwealth for public purposes. Section 52(ii) gives the Commonwealth exclusive power to legislate with respect to public service departments, the control of which was transferred to the Executive Government of the Commonwealth pursuant to s 69. Section 52(iii) gives the Commonwealth exclusive power to legislate with respect to other matters declared by the Constitution to be within the exclusive power of the Parliament. Of these other matters there are well-known examples. Section 90 deprives the States of power to impose duties of customs and excise, and to grant bounties on the production or export of goods. Section 92 prevents the States from making laws protective of their trade. Section 111 provides that if a State surrenders part of its territory to the Commonwealth, upon acceptance by the Commonwealth, that part becomes subject to the exclusive jurisdiction of the Commonwealth. Section 114 prevents the States from raising or maintaining naval or military forces or imposing any tax on Commonwealth property without the consent of the Commonwealth. Section 115 prevents the States from coining money and from making anything but gold or silver coin legal tender in payment of debts. Section 117 prevents a State from discriminating against residents of other States. Section 109 does not prevent a State from enacting legislation, but it renders State legislation inoperative to the extent of its inconsistency with valid Commonwealth legislation for so long as the inconsistency continues.

[229]

It is true that invoking judicial review is not made easy: the Attorney-General is not required to give reasons for the declaration (s 13(1)), criminal intelligence**[394]** supplied by the Commissioner to the Attorney-General cannot be made available to the claimant for review (s 13(2)), and public interest immunity may be claimable by the Attorney-General for other material. The absence of a duty on the Attorney-General to give reasons scarcely deprives the Magistrates Court of institutional integrity: in this respect s 13(1) of the impugned Act simply follows the common law**[395]. The duty of the Attorney-General to preserve criminal intelligence may create difficulties in relation to a subpoena seeking material capable of being tendered in evidence to demonstrate a lack of jurisdiction in the Attorney-General. But the rule restricting access to criminal intelligence overlaps with similar common law rules of public interest immunity[396]. The general problem exists in many fields in relation to documents for which public interest immunity may be claimed without depriving the court of capacity to entertain administrative law challenges[397]. Section 13(2), like s 21(1) and (2)(a), considered below[398], is simply an illustration of the difficulty created by the existence of immunities or privileges from production. The form which these immunities or privileges take represents the result of legislative or judicial choices between conflicting interests or principles. This Court itself has gone so far as to strike the balance between the public interest in clients being able to have confidential consultations with lawyers and the interests of accused persons in seeking to raise a reasonable doubt about their guilt by holding that there is no common law right in an accused person to the production of, or access to, documents protected by legal professional privilege[399]**. In some other jurisdictions, legislation came into force around that time which took a different course (Evidence Act 1995 (Cth), s 123 and Evidence Act 1995 (NSW), s 123). If the choice this Court made is open to a court administering the common law, it is hard to see why the legislative choice reflected in ss 13(2) and 21 is a ground of constitutional invalidity.

[287]

313 For one thing, the Full Court's last question - membership - is not necessarily simple or brief. It is true that the matters relevant to the making of a declaration may often be more complex than the matters relevant to finding membership. The legislative scheme may contemplate that this potential for complexity makes the Attorney-General a more rational person to select as decision-maker on s 10(1) issues than the members of the Magistrates Court. That is because the Attorney-General provides a single answer to the threshold question posed by s 10, rather than a series of potentially conflicting decisions by individual magistrates; is perhaps more capable of assessing risks to "public safety and order in the State"; and is perhaps more capable of handling criminal intelligence. But whether or not the circumstances make the Attorney-General a more rational person to select as a decision-maker on s 10(1) issues, it does not follow that resolution of those issues is invariably more important, essential, significant, complex or major than s 14 issues. This is partly because membership may be a very informal matter in relation to some organisations. It is partly because of the extreme and ill-defined width of the definition of "member" in s 3 to include an "associate" member, a "prospective" member, a person who "identifies himself or herself, in some way, as belonging to the organisation" and "a person who is treated by the organisation or persons who belong to the organisation, in some way, as if he or she belongs to the organisation"[453]. There is considerable room for debate on the application of the statutory definition. There is also room for extensive factual inquiry. Often membership will be incapable of proof by simple means like tendering a membership roll or a document evidencing payment of a subscription. The structure of serious criminal gangs may exhibit considerable variety. Membership may be both fluid and clandestine. Proof of membership is thus a task which may be neither easy nor simple.

[291]

In relation to the s 14(5)(b) discretion, by reason of the factors to which the Magistrates Court is required by s 14(6) to have regard, it is relevant for the Magistrates Court to consider the many circumstances in the personal life of the defendant and in the personal lives of those in the defendant's circle - the educational needs of the defendant or the defendant's family, the need to obtain health services, the defendant's employment position, the defendant's habits in relation to communicating with family members and friends, the defendant's practices in relation to social, religious, political and recreational affairs - all the many ways in which and the purposes for which human beings associate so far as they may relate to the defendant. It is also relevant under s 14(5)(b) to consider the extent to which the members of the declared organisation associate for the purpose of organising, planning, facilitating or engaging in serious criminal activity, and the extent to which it represents a risk to public safety and order in South Australia. The Magistrates Court is bound to act on a valid declaration in the sense that if membership is proved the control order must be made, but it is not bound to accept the Attorney-General's estimate of the preconditions which led to the declaration being made. The reasons for the s 10 declaration may relate to a condition of affairs which significantly predates the time when the s 14(1) application for a control order is made to the Magistrates Court, and they will not necessarily be focused on the particular position of the defendant (s 14(6)(a)-(b)) and the defendant's associates, whether regular (s 14(6)(c)) or potential (s 14(6)(d)). As White J said, the Attorney-General's declaration is not the equivalent of a court order. It founds no res judicata. It creates no issue estoppel. While the Magistrates Court cannot disagree with an intra vires decision of the Attorney-General to make a s 10(1) declaration, it can, for s 14(5)(b) purposes, reach a different assessment of the strength and nature of the factors referred to in s 10(1)[456].

[306]

Environment Act. The Solicitor-General of the State of Queensland gave an example depending not on regulations, but on Ministerial instruments. Section 178(1) of the Environment Protection and Biodiversity Conservation Act 1999 (Cth) ("the Environment Act") imposes on the Minister a duty, by instrument published in the Gazette, to establish a list of threatened species divided into six categories: extinct, extinct in the wild, critically endangered, endangered, vulnerable and conservation dependent. Those categories are defined in s 179. Thus a "native species" may be listed as "vulnerable" only if it is not "critically endangered" or "endangered" and is "facing a high risk of extinction in the wild in the medium-term future, as determined in accordance with the prescribed criteria": s 179(5). Regulation 7.01 of the Environment Protection and Biodiversity Conservation Regulations 2000 prescribes five criteria, satisfaction of any of which would justify listing. The first is that the native species has undergone, is suspected to have undergone, or is likely to undergo in the immediate future, a substantial reduction in numbers. The second is that its geographic distribution is precarious for the survival of the species and is limited. The third is that the estimated total number of mature individuals is limited and either evidence suggests that the number will continue to decline at a substantial rate, or the number is likely to continue to decline and its geographic distribution is precarious for its survival. The fourth is that the estimated total number of mature individuals is low. The fifth is that the probability of its extinction in the wild is at least 10 percent in the medium-term future. Assessment of whether any of the criteria are satisfied would obviously require expert analysis and receipt by the Minister of expert advice. The Environment Act envisages a complicated listing process, involving the formal obtaining of scientific advice from a Threatened Species Scientific Committee established under s 502 of the Environment Act before a native species can be listed as a "threatened species" because it is "vulnerable": Pt 13, Div 1, subdiv AA. Section 196(1) provides that a person is guilty of an offence if the person "takes an action" and the action results in the death of a "member" of a listed threatened species. In relation to whether the dead thing is a member of a listed threatened species, the offence is one of strict liability: s 196(2).

[331]

The devisers of the plan must have seen as minimal the risk of the plan failing. Section 5 of the relevant Act gave the Supreme Court "power" to detain Gregory Wayne Kable if satisfied on reasonable grounds that he was more likely than not to commit a serious act of violence and that it was appropriate, for the protection of a particular person or persons or the community generally, that he be held in custody. In substantial respects the Supreme Court was compelled to receive material whether it complied with the rules of evidence or not (s 17). Section 7 gave the Supreme Court power to make interim detention orders for a period not exceeding three months pending the making of a s 5 order of detention for six months - without the need to satisfy the s 5 criteria and without granting any capacity to appeal. The relevant Act declared the proceedings to be civil proceedings even though the Supreme Court was not asked to determine the existing rights and liabilities of any party or parties. Proceedings under the relevant Act bore very little resemblance to the ordinary processes and proceedings of the Supreme Court. The jurisdiction of the Supreme Court was purely executive in nature. The relevant Act asked the Supreme Court to "speculate whether, on the balance of probabilities, it is more likely than not [that Gregory Wayne Kable] will commit a serious act of violence."[487] In view of the notorious difficulty in predicting dangerousness, the Supreme Court could make only "an informed guess"[488]. McHugh J quoted the observation of a commentator on similar Victorian legislation: "It would take a brave Supreme Court judge to find that the case for placing [the defendant] in preventive detention had not been made out." It brought the process and the courts which administered it into public disrepute because it gave the impression that the judiciary was ratifying a political decision that one man should be incarcerated without findings of criminal conduct, and this created the impression in the public mind that the judiciary was simply an arm or an instrument of the Executive implementing the will of the legislature**[489]**.

[341]

In both that case and this, an anterior determination by the Executive is part of the scheme (s 10(1)/reg 4A). In both cases past events are involved (becoming a member and the matters listed in s 14(6)(a) and (c)/providing or receiving training pursuant to s 104.4(1)(c)(ii)). In both cases an assessment of future conduct is involved (s 14(6)(a) and (b)/s 104.4(1)(c)(i)). In both cases the order is to be adapted to the particular circumstances (s 14(5)(b) and (6)/s 104.4(1)(d)). In both cases the process involves no adjudication of criminal guilt. It may be said that the primary difference between s 14(1) and s 104.4 is that s 14(1) creates a duty on the Magistrates Court to make a control order if satisfied of proof of the elements referred to in s 14(1), while s 104.4(1) (commencing: "The ... court may") creates only a discretion; the s 104.4(1)(d) factors go to the question of whether an order should be made at all, while the s 14(6) factors go only to the form of the order. However, this alone is not repugnant to Ch III**[505]. Why, then, is s 104.4 valid but not s 14(1)? The supposed distinction between mandatory s 14(1) orders and discretionary s 104.4 orders is insubstantial. First, as noted earlier[506]**, though s 14(1) is mandatory, the operation of s 14(6) can make particular orders quite narrow. Secondly, there is only a limited sense in which interim control orders can be called discretionary. They cannot be refused on a whim. Provided the conditions referred to in s 104.4(1) are satisfied and the considerations referred to in s 104.4(2) and (3) are taken into account, an interim control order should flow as of course unless some special reason to the contrary exists. Thus it is not true to say that the court always has a discretion to grant the order, because in certain circumstances it will have a duty to do so. When that duty arises, the court will be required to act on an anterior determination by the Executive. It is true that the arguments advanced by the respondents in the present case were not advanced in Thomas v Mowbray. Yet if the court's function in relation to an anterior determination of the Executive is fatal to validity on the ground that it removes one of the essential characteristics of a Ch III court, it is surprising that this striking phenomenon was not observed by any of the 15 barristers involved in Thomas v Mowbray or their instructing solicitors.

[363]

There are numerous examples of legislation permitting the grant of injunctions in the nature of an apprehended violence order which may significantly restrict a person's freedom of association with others and which do not necessarily require prior criminal conduct as a condition of their grant**[522]**. The Family Law Act 1975 (Cth), s 68B, permits a court to grant injunctions for the welfare of a child, the child's parents and other specified people, including injunctions restraining the defendant from entering or remaining in a place of residence, employment or education of the child. Section 114 contains similar powers in relation to certain proceedings between the parties to a marriage. The Summary Procedure Act 1921 (SA), s 99, gives the Magistrates Court power to make an order restraining the defendant as the Magistrates Court considers necessary or desirable in order to prevent the defendant from causing personal injury or damage to property or behaving in an intimidating or offensive manner. Section 99AA of that Act gives the Magistrates Court power to make an order restraining certain classes of defendant from loitering near children, using the internet or owning, possessing or using a device capable of being used to gain access to the internet. Sections 4 and 5(2)(a)-(e) of the Domestic Violence Act 1994 (SA) give the Magistrates Court power to make a domestic violence restraining order prohibiting the defendant from being in particular premises and locations, from approaching a family member and from contacting a family member or any other person at a place where a family member resides or works. Section 16 of the Crimes (Domestic and Personal Violence) Act 2007 (NSW) gives power to make an apprehended domestic violence order and s 18 gives power to make an apprehended personal violence order. Section 35(2)(a)-(c) gives power to impose in each order prohibitions or restrictions on the defendant's ability to approach the protected person and on access by the defendant to particular places. The Domestic and Family Violence Act (NT) gives power to grant domestic violence orders (s 18), which can include orders requiring the defendant not to reside in or enter premises occupied by a protected person (s 22). Sections 11A and 11B of the Restraining Orders Act 1997 (WA) give a court power to make a violence restraining order in relation to acts of family and domestic violence. Section 13(2)(a)-(d) gives power to include in a violence restraining order restraints on approaching certain premises or persons, or communicating with certain persons. Section 36(1) gives the court power to make a misconduct restraining order against intimidatory or offensive behaviour. Section 36(2)(a)-(d) gives power to include in a misconduct restraining order restraints of the same kind as are referred to in s 13(2)(a)-(d). Sections 4, 4A and 5(1)(a)-(d) of the Crimes (Family Violence) Act 1987 (Vic) give power to make an intervention order restricting access by the defendant to the aggrieved family member or to particular locations.

[364]

Another category consists of enactments criminalising association with persons who may not have committed crimes. They have been quite common. Their enforcement has not been seen as compromising courts in any way, let alone in ways relevant to the Kable doctrine. Although sometimes the legislation turned on consorting with convicted persons, it often made or makes it an offence habitually to consort with reputed thieves or criminals or known prostitutes**[523]. A person can be a reputed thief or a reputed criminal without actually being a thief or a criminal, and a person can be a known prostitute without having committed a criminal offence. In Johanson v Dixon[524]** Mason J said that the gist of the offence in the Victorian legislation under consideration was "habitual association with persons who fall into the designated classes, whether the association is for unlawful purposes or not." Two of the three designated classes were reputed thieves or known prostitutes. The offence did not require any prior convictions or misconduct on the part of the defendant. Mason J went on to say that the policy of the legislation "was designed to inhibit a person from habitually associating with persons of the three designated classes, because the association might expose that individual to temptation or lead to his involvement in criminal activity"[525] - even if the individual had never succumbed to temptation in the past, or been involved in criminal activity in the past. Section 35 of the impugned Act replaced a provision of this kind - s 13 of the Summary Offences Act 1953 (SA), which rendered it an offence habitually to consort with reputed thieves, prostitutes or persons having no lawful visible means of support. It is a novel suggestion that legislation which attempts to forestall and prevent crime before it is committed by persons who might be likely to do so if they associate together (whether or not those persons have committed crimes in the past) is constitutionally invalid.

At a glance

Court

Decision date

Before

Source

Judgment (1129 paragraphs)

Parties

Legislation Cited (22)

Cases Cited (124)

South Australia v Totani [2010] HCA 39 (11 November 2010)