Part 2 of the Act empowers an ‘eligible judge’ of the Supreme Court to declare an organisation if satisfied some members of the organisation associate for the purpose of ‘serious criminal activity’, which includes conduct constituting serious indictable offences or serious violent offences (s 3(1)). Section 13(2) provides that in making a declaration or decision, the eligible judge is not required to provide any grounds or reasons, except in the case of review by the Ombudsman under s 39. There is no appeal from the judge’s decision. Part 3 of the Act empowers the Supreme Court to make interim control orders and control orders against members of a declared organisation.
The making of a declaration under Part 2 is an administrative, not a judicial act. It is well established law that non-judicial, or administrative functions can be conferred upon federal and state judges, in their individual capacity as ‘designated persons’, rather than as judicial officers of the court of which they are also members. Whether or not this is an appropriate function for a judicial officer remains contentious.
Six members of the High Court held that because the duty to give reasons is generally a defining characteristic of a court, the exemption of eligible judges from any duty to give reasons for a determination under s 13(2) of the Act infringes the constitutional principle identified in Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51, namely that:
a State legislature cannot confer upon a State court a function which substantially impairs its institutional integrity, and which is therefore incompatible with its role, under Ch III of the Constitution, as a repository of federal jurisdiction and as a part of the integrated Australian court system. (per French CJ and Kiefel J at ).
The majority concluded that because the making of a declaration under Part 2 by the eligible judge is a condition precedent to the exercise of the Supreme Court’s jurisdiction to make control orders and interim control orders under Part 3, the operation of Part 3 assumes the valid operation of Part 2. Since the substantive provisions in Part 2 and 3 are invalid, the other parts of the Act (Part 1 and Part 4) necessarily fail. The majority rejected the plaintiff’s contention that the Act infringes the freedom of political communication and freedom of association implied from the Constitution.
GREG MARTIN teaches socio-legal studies at the University of Sydney.