In 2010 and 2011, the High Court dealt the governments of South Australia and New South Wales severe blows against their wars on organised crime when their respective ‘Bikie Bills’ were found, in part or in whole, unconstitutional. Gabrielle Appleby traces the history of the State Bikie Bills to their current iterations which were introduced  into the Parliaments this year. In doing so, she considers the reasons behind the High Court’s renewed vigour in its application of the Kable principle. She asserts that while the new forms of the Bills appear to be constitutional based on the High Court’s current position, it is disappointing that the States have failed to consider concerns over the legislation beyond the absolute minimum required by the High Court.

The States and the Bikies

When I moved to South Australia in 2008, the dynamic I encountered between the government and public over ‘bikies’ was quite foreign. For many years, the States have been somewhat constitutionally backed into using tough stances on law and order because they possess little real jurisdiction over other substantive areas. Nonetheless, the South Australian government’s ‘Bikie Bill’ in 2008, with its scheme of control orders against criminal organisations was something of a revelation for me. Here was anti-terror legislation being directly transposed into the criminal sphere, particularly the mechanisms allowing the use of intelligence-based evidence in court that may be inaccessible by respondents, the declaration of organisations as, in effect, criminal, the regime of control orders and the criminalisation of association with persons under control orders and members of criminal organisations. But the anti-terror legislation had been introduced on the basis it was extraordinary, designed to combat an extraordinary evil (this is the language that was used by then Commonwealth Attorney-General Daryl Williams QC). The Bikie Bills raised serious questions about the constitutionality of the measures, and whether the appropriate balance had been achieved between ensuring community security, and protecting individuals’ liberty.

The South Australian legislation

The South Australian ‘Bikie Bill’ legislation, the Serious and Organised Crime (Control) Act 2008 (SOCCA), was a flagship, followed closely by New South Wales, Queensland, and the Northern Territory. Western Australia made noises it was going to enact regime that was even tougher than the South Australian blueprint, but perhaps sensibly waited to see the constitutionality of the statutes in the other jurisdictions, in 2011 it introduced the Criminal Organisations Control Bill 2011 (WA). I will return to the detail of this new Bill later. Victoria made it very clear that it did not believe either that the scheme of declared organisations and control orders were necessary in combating organised crime, or that the Victorian Parliament could enact legislation consistently with the rights contained in the Victorian Charter of Human Rights and Responsibilities. Notably however, the Victorian Attorney-General was represented in both of the challenges to the South Australian and New South Wales regimes, supporting the other States.

The South Australian legislation is different in several respects from that legislation that was subsequently adopted in New South Wales, Queensland, and the Northern Territory. In South Australia, the SOCCA was part of a suite of legislative measures targeting bikies, but it was by far the most touted piece. The original SOCCA contained within it two different regimes revolving around the declaration of an organisation by the Attorney-General. The Attorney could issue a declaration if satisfied the members associated for purposes relating to serious criminal activity. The Attorney was not obliged to provide reasons and there was a tough privative clause that attempted to shield that decision from review in court. There were two main consequences for a ‘declared organisation’. First, members of declared organisations could become subject to control orders made by the Magistrates’ Court on application of the Commissioner of Police. The Court had only to be satisfied that a person was a member of the declared organisation before making a control order, which could restrict the person’s freedom of communication and association, and breach of a control order was punishable by a maximum 5 year prison term. The second consequence was that it became a criminal act to associate with a member of a declared organisation, or a person subject to a control order on more than six occasions, punishable by up to 5 years imprisonment.

The New South Wales Legislation

The legislation in the other jurisdictions was somewhat different. Under the New South Wales Crimes (Criminal Organisations Control) Act 2009 (CCOCA), organisations were declared by individual judges of the Supreme Court, although the judges were not obliged to provide reasons. The Supreme Court ‘may’ issue a control order if satisfied the person is a member of a particular declared organisation and sufficient grounds exist for making the control order. So the New South Wales legislation gave far more significant discretion to the Court in making a control order, and required the judge to consider the threat posed by the individual. In this last respect, it had more in common with the control orders developed in the federal sphere to combat terrorism than the South Australian legislation. The federal legislation had the attraction of already been held constitutional by the High Court in the Jack Thomas case [LINK to Thomas v Mowbray case here].

Early constitutional predictions: A storm in a teacup

Despite what may have been my misgivings about the SOCCA’s infringement on fundamental rights, I had written that I believed it was constitutional (which in itself of course reflected the reality of our Constitution’s limited protection of rights). This was based upon my interpretation of the High Court judgments that had until that point been delivered on similar legislation. The principle at stake is the Kable doctrine (see Kable, available at http://www.austlii.edu.au/au/cases/cth/HCA/1996/24.html). Under this doctrine, while there is no separation of judicial power from the executive and legislature at the State level, State courts, as potential receptacles of federal judicial power under the Constitution, cannot be given functions or required to act in a manner that is incompatible with the exercise of federal judicial power. This test of incompatibility has, in effect, given the independence and integrity of State courts a minimum safeguard. The cases applying the Kable principle subsequently demonstrated that for many years the Court viewed the level of this safeguard as very minimal. In Gypsy-Jokers and K-Generation (these are available at: http://www.austlii.edu.au/au/cases/cth/HCA/2008/4.html and http://www.austlii.edu.au/au/cases/cth/HCA/2009/4.html), the High Court held that provisions that allowed courts to act on evidence classified as ‘criminal intelligence’ by the police, and therefore not to be released to the other side, was constitutional.

On the basis of these earlier cases, I had foreseen little constitutional difficulty with the South Australian SOCCA, and even less with the NSW CCOCA, with its broader grant of discretion. I was proven, much to my delight as both a constitutional scholar and concerned citizen, wrong. We are having what I can only call a ‘rediscovery’ of the Kable principle by the High Court.

Rediscovering Kable  

The areas of constitutional concern in the SOCCA were threefold. First, there was an argument that the provisions which required the Court to ensure evidence classified as criminal intelligence remained secret were unconstitutional. The earlier decisions in Gypsy-Jokers and K-Generation had, however, dismissed this argument. Second, there was some concern about the constitutionality of the privative clause that purported to protect the Attorney-General’s declaration from any type of review in the Courts. The 2010 decision in Kirk (available at http://www.austlii.edu.au/au/cases/cth/HCA/2010/1.html) had held that State legislatures could not completely oust the jurisdiction of State Supreme Courts to review executive decisions for jurisdictional error. As such, the privative clause in the SOCCA had to be constructed so as to ensure this minimal level of review. In any event, if the privative clause had been found unconstitutional, the legislation would not have completely fallen over. The main focus of the challenge then was the direction to the Magistrates Court to make a control order once satisfied that a person was a member of a declared organisation. This removed the Court’s judicial discretion and making the Court, in effect, an agent of the executive, lacking in the proper level of independence and impartiality. It was on this basis that the High Court found this section of the SOCCA invalid in South Australia v Totani (available at http://www.austlii.edu.au/au/cases/cth/HCA/2010/39.html)

A month after the Court handed down the South Australian decision, the States and the Commonwealth lined up before the High Court in the challenge to the New South Wales legislation. They would have done so with their confidence slightly shaken. But the NSW CCOCA gave the Supreme Court far more discretion in making a control order than the South Australian legislation had. They should have been, I thought, rightly confident. The High Court however found that the requirement that judges did not have to give reasons in making a declaration against an organisation meant the whole statute was unconstitutional (available at http://www.austlii.edu.au/au/cases/cth/HCA/2011/24.html). This was because, by giving the function to a Supreme Court judge, the legislation was creating using the Court’s reputation of independence and impartiality, while denying one of the defining characteristics of the office, the giving of reasons. The New South Wales decision was more than just an application of the Kable principle with renewed vigour as the South Australian legislation had been: it applied the principle to judges acting in their personal capacity, what is known as persona designata in legal latin. What this means is that States will have to be careful in future as to how they treat not only State courts, to maintain their independence and impartiality, but also the judges themselves, because courts are, of course, constituted by their judges.

Explaining the changing trajectory

Why did I (and other constitutional experts, to share some of the blame around) predict the outcome of the South Australian and New South Wales decisions so poorly? In part, this can be explained by the change in composition of the court resulting in a reconceptualisation of the Kable principle. During the period of Chief Justice Gleeson’s tenure, the Kable principle was narrowly defined, the judges emphasising the extreme nature of the Kable case (the statute had specifically targeted Mr Kable for continuing detention, in what is known as ad hominem legislation). Second, the judges would attempt to interpret legislation as far as possible to be in accordance with the Constitution, even if those interpretations challenged plain readings of the text, and may have eluded even experienced lawyers, let alone laypersons applying and trying to comply with, the law. In 2008, Chief Justice French replaced Chief Justice Gleeson. There were also three other relatively new appointments to the bench. The largely newly constituted court has been keen to reconceptualise Kable, no longer focussing on the unique aspects of the Kable legislation, but on incursions into judicial process, with much rhetoric around traditional rights of procedural fairness, including the right to be heard, the open justice principle and the right to reasons. More generally, the shift would seem to represent a change from the willing acceptance that the autochthonous expedient built into our Constitution, that is, the framers’ choice to use the State courts as receptacles of federal judicial power as they were, meant State courts could dispense a less rigorous form of justice; to the upholding of a genuine minimum standard across State and federal courts.

In addition to the change in the focus of the High Court, it would appear the States had become complacent with the Kable principle. The States have increasingly tested the boundaries of Kable since its inception in 1996, and there is no doubt the State control order regimes were a new frontier. While they were modelled loosely on the federal anti-terrorism legislation, in many respects they went significantly further in their curtailment of the judiciary’s role in the scheme (particularly the South Australian scheme).

The new Bikie Bills

Where does all of this leave the States’ war against organised crime? It is not, as one may think, all doom and gloom for the States. In Wainohu, the majority of the High Court explicitly found that the control order regime would have been constitutional, if the failure to require reasons had not ruined the whole scheme. So while there is a new state of play in relation to the Kable principle, there is definite room for the States to continue to use control order regimes.

In late 2011, the South Australian Attorney-General announced a ‘repair’ of the SOCCA. At the same time, South Australia has also proposed to update a number of old consorting and association offences, laws which have generally been unused in practice, but the High Court had relied commented on in Totani were constitutionally valid. There is also a new initiative to allow out of court statements to be admitted into evidence, obviously targeted at the ongoing problems of the intimidation of witnesses by organised crime groups. This new step is again pushing frontiers, and runs against the principles which underpin the traditional rules of evidence that require evidence to be tested in court.

Under the Bill updating the SOCCA the Attorney-General no longer declares organisations; it is now an individual judge of the Supreme Court (as was the case under the CCOCA). The Supreme Court, no longer the Magistrates’ Court, may make a control order against a person if satisfied the person is a member of a declared organisation and that the making of the order is appropriate in the circumstances. There is a broader discretion as to the content of the control order. Gone is the direction to the Court that a control order must be made against a member of a declared organisation. In determining whether to make a control order, a number of matters that the Court may have regard to are listed which look at the respondent’s conduct and involvement in criminal activitiy. Both the consideration of the appropriateness of the control order, and the consideration of the individual’s conduct have marked similarities to the anti-terrorism legislation that has already been upheld by the High Court as constitutional in Thomas, and the discretion that already existed in the New South Wales scheme. The Bill was introduced into the South Australian Parliament in February 2012.

In New South Wales, the Attorney-General reintroduced the CCOCA in February 2012 (the whole Act had to be reintroduced because the Court had found it unconstitutional in its entirety on the basis of the single provision about reasons). It was passed in 14 March 2012. The legislation is substantially a re-enactment of the previous Act, with a new obligation for a judge making a declaration to provide reasons. The Government has also inserted new provisions that require judges to take steps to maintain the confidentiality of information classified as criminal intelligence by the police, and this is to be redacted from any reasons provided publicly.

Western Australia, after having held its cards close to its chest, also introduced its legislation with a scheme of control orders in 2011. It adopted the New South Wales model of having a single judge, persona designata, making declarations pertaining to organisations, on the basis that using the Supreme Court, as had originally been proposed in South Australia ‘opens the declaration process to appeal’, where they sought to keep it constrained to lesser forms of review. After the Western Australian Attorney-General had made these comments to the South Australian Attorney, the South Australian draft Bill was also changed to give the declaration power to an eligible judge, not the Court itself.

A mixed report card

The reforms to the bikie legislation in South Australia and New South Wales represent a small win for civil liberties. In striking the difficult and delicate balance between protecting the community from organised crime, and respecting individual liberties, the bills represent a shift towards liberties. However, the States have demonstrated little inclination to go any further than has been constitutionally required by the High Court. One example is the continued use of provisions that maintain the confidentiality of criminal intelligence in such a way that means often respondents will not know the evidence they must confront in a control order hearing. I have advocated in the past while such provisions may have been held to be constitutional, they infringe upon the foundational principles of open justice, and an individual’s right to hear allegations made against them. The High Court has noted this repugnancy, even though it may not reach the level of unconstitutionality. Chief Justice French said such provisions infringe on the open justice principle ‘that is an essential part of the functioning of courts in Australia’, as well as infringing on procedural fairness. There are alternatives: in the United Kingdom and Canada a system of special advocates has been used. The special advocates system recognises the need to keep certain information confidential, but balances this against the individual’s rights by appointing an independent lawyer who may access the confidential information and make submissions to the Court on its veracity and relevance. In the Queensland Criminal Organisation Act 2009, a process involving Public Interest Monitors achieves a similar purpose. It is disappointing that the other States have not shown greater initiative in drafting the legislation beyond responding to the direct constitutional questions.

Gabrielle Appleby is a Senior Lecturer at the Law School, University of Adelaide. Her article, written with Professor John Williams, ‘A New Coat of Paint: Law and Order and the Refurbishment of Kable’ will appear in the upcoming edition of the Federal Law Review.