Thursday, June 23, 2011

NSW attempt to control bikies fails in the High Court

In Wainohu v State of NSW [2011] HCA 24 the High Court has ruled that the attempt by the former NSW government to control the activities of motorcycle gangs and their members is invalid.

The Crimes (Criminal Organisations Control) Act 2009 (NSW) contains two substantive parts.  Part 2 of the Act provides for the appointment by the Attorney-General of judges of the Supreme Court of NSW as "eligible judges".  The Police Commissioner may apply in writing to an eligible judge for a declaration under Part 2 that an organisation is a "declared organisation" for the purposes of the Act.  The application must set out the grounds upon which  the declaration is sought, and must be supported by an affidavit.  Members of the organisation and other persons who may be directly affected by the outcome of the application must be invited, by public notice, to make submissions to the eligible judge.  The rules of evidence do not apply to the hearing of an application for a declaration.  If the eligible judge is satisfied that members of the organisation associate for the purposes of organising, facilitating or engaging in serious criminal activity, and that the organisation represents a risk to public safety and order, the eligible judge may make the declaration.  The eligible judge is not required to provide any grounds or reasons for the declaration or decision.

Part 3 of the Act deals with the control of members of declared organisations.  It empowers the Supreme Court to make control orders against members.  It is in offence for controlled members to associate with each other.  A controlled member must not recruit another person to become a member of the declared organisation.  And controlled members are prevented from applying for or holding authorisation to conduct certain types of business activities (such as bookmakers, tow truck drivers or motor mechanics, pawnbrokers, security guards, selling liquor or possessing or selling firearms).

The High Court (French CJ and Kiefel J, and Gummow, Hayne, Crennan and Bell JJ, Heydon dissenting) held that Part 2 of the Act offended the so-called Kable doctrine and that because Part 3 of the Act depended upon the operation of Part 2, the whole Act was invalid.

Shortly stated, the effect of the so-called Kable doctrine is that  a State legislature cannot confer on the judges of a State Court administrative functions which substantially impair its essential and defining characteristics as a Court.

The High Court held that the Act effects such an impairment because it provides, in effect, that the jursidiction of the Supreme Court to make control orders against members of an organisation (under Part 3) will be enlivened by a decision of a judge of the Court (under Part 2), following an adversarial proceeding, which requires factual findings of a wide-ranging and complex nature, and the important evaluative judgment that the organisation represents a risk to public safety and order, and for which the Act expressly provides that no reasons are required to be given.  This, it was said, contrasts sharply with the general duty of judges of the Supreme Court to give reasons for their decisions.  The effect of the Act was that the basis of an eligible judge's declaration, a necessary precondition for the making by the Court of a control order against members, was unexplained to the Court, or to anybody else.

Ultimately, this may be a pyrrhic victory for the Hell's Angels who brought the case.  It seems clear from the judgments that so long as there is an obligation on the eligible judge to give reasons for the making of the initial declaration, the Act would otherwise be valid.

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