In a 2-1 judgment in Totani v State of South Australia Justices David Bleby and Trish Kelly (Justice Richard White dissenting) found that s.41 of the Serious and Organised Crime (Control) Act SA is constitutionally invalid.
The section requires the court to “act without question” on applications by the Police Commissioner for control orders.
The key issue in Kable was whether the legislation interfered with the institutional characteristics of the court as an impartial tribunal that is independent from the executive arm of government under Chapter III of the Constitution.
On May 14, 2009 the SA Attorney General, Michael Atkinson (pic), announced that the Finks Motorcycle Club was a “declared organisation” under s.10.
Section 10 empowers the Attorney General to decide that any group is a “declared” or criminal organisation.
On May 25, 2009 the Magistrates Court of South Australia made a control order on Donald Hudson under s.14(1) of the Control Act on the basis that he was a member of the Finks. (Hudson was the second plaintiff in these proceedings.)
The order prohibited Hudson from associating with anyone from the Finks and from possessing a dangerous article or prohibited weapon.
On June 4 the Police Commissioner made an application for a similar order on Mr Totani (the first plaintiff).
The hearing of that application was adjourned on the application of Totani. Section 14(1) of the Control Act states that the Court, “must, on application by the Commissioner, make a control order against a person … if the Court is satisfied that the defendant is a member of a declared organisation”.
Bleby held that this provision compromised the institutional integrity of the court to an “unacceptable degree” because the Attorney General’s decision was both binding on, and not reviewable by the Court.
“In a very real sense the court is required to [act] as an instrument of the executive.”
“It is the unacceptable grafting of non-judicial powers onto the judicial process in such a way that the outcome is controlled to a significant and unacceptable extent, by an arm of the executive government which destroys the court’s integrity as a repository of federal jurisdiction.”
A person who breaches a control order is subject to imprisonment for up to five years.
The person over whom the order is made does not have to be given notice that s.14(1) proceedings are underway.
As well, if the Attorney General’s or the Police Commissioner’s decision is based on information deemed to be “criminal intelligence”, the “controlee” cannot be told what that information is.
This happened in the case of Hudson and the Finks, where much of the 53 pages of reasons given by the Attorney General for the decision was redacted and marked “criminal intelligence”.
Justice Bleby emphasised that these factors contravene the fundamental right of a person facing trial, “to be informed of the case that is put against that person, of the evidence which, in a forensic contest, will have to be met and answered, and … to be afforded an opportunity to answer that case.”
He said that the statute, by requiring the court to disregard this fundamental rule of law would deprive the court of, “those defining characteristics which mark a court apart from other decision making bodies”.
The judge continued:
‘It can be seen that the process of depriving a person of their right to and freedom of association on pain of imprisonment for up to five years, although formally performed by a state court which exercises federal jurisdiction, is in fact performed to a large extent by a member of the executive government in a manner which gives the appearance of being done by the court.
But the process is devoid of the fundamental protections which the law affords in the making of such an order, namely the right to have significant and possibly disputed factual issues determined by an independent and impartial judicial officer and the right to be informed of and to answer the case put against the person.”
Bleby and Kelly concluded that the control order placed on Donald Hudson and the Finks Motorcycle Club was “void and of no effect”.
The decision will no doubt have implications for challenges to the law in NSW, which in large part has some of the same characteristics of the South Australian legislation.
The South Australian government will appeal the decision.