Constitutional law (Cth) – Judicial power of Commonwealth – Constitution, Ch III – Vesting of federal jurisdiction in State courts – Serious and Organised Crime (Control) Act 2008 (SA) (“Act”) – Section 10(1) of Act permits Attorney-General to make declaration in respect of organisation, if satisfied members associate for purpose of organising, planning, facilitating, supporting or engaging in serious criminal activity, and organisation represents risk to public safety and order – Section 14(1) of Act provides Magistrates Court of South Australia (“Court”) must, on application by Commissioner of Police, make control order (contravention of which is a crime) imposing restrictions on freedom of association of defendant if satisfied defendant is member of declared organisation under s 10(1) – Section 35(1) of Act creates offence of associating with member of declared organisation or person the subject of control order on not less than six occasions during 12 month period – Whether making control order requires determination by Court of what defendant has done or may do, or any determination of criminal guilt – Effect of Attorney-General’s declaration on adjudicative process – Whether Court enlisted to implement legislative and executive policy – Whether task given to Court repugnant to, or incompatible with, institutional integrity.
Words and phrases – “control order”, “institutional integrity”, “judicial power”, “member of declared organisation”, “serious criminal activity”.
Heydon J (dissenting)
268 Reviewable for jurisdictional error? It is likely that by “unreviewable” the Full Court meant “unreviewable for jurisdictional error”. If so, those propositions are incorrect for the reasons explained in Kirk v Industrial Court (NSW). Section 41 does not remove the supervisory jurisdiction of the Supreme Court for jurisdictional error including breaches of the obligation to give procedural fairness. In this Court the respondents treated the Full Court’s error about judicial review as being without significance. That contrasts with the approach successfully urged on the Full Court, which saw the supposed lack of judicial review as fatal.
269 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 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. 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. 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. Section 13(2), like s 21(1) and (2)(a), considered below, 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. 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.
270 In any event, a subpoena seeking production of documents which were before the Attorney-General when consideration was being given to the making of the declaration would not be set aside if it had a legitimate forensic purpose. While the party issuing the subpoena could not look at criminal intelligence, the court could examine the relevant material to see whether it was in fact criminal intelligence, for s 13(2) prohibits disclosure of it to “any person”, but not to a court.
271 The respondents submitted that seeking review for jurisdictional error would be a very difficult and unproductive enterprise. The enterprise is difficult, but not necessarily unproductive. It may be that strait is the gate, and narrow is the way, and few there be that find it. That is a common feature of attempts to obtain judicial review of administrative action. But a person bringing a claim that the Attorney-General has acted beyond the power conferred by s 10 can do so without hindrance from s 41. The Full Court’s excessive discounting of possible judicial review is revealed by its description of the Attorney-General’s declaration as a “certificate”. There is no statutory warrant for this dismissive expression. Its use reveals an erroneous assumption that the Magistrates Court proceedings are no more than a mere formality.