South Australia v Totani [2010] HCA 39
The High Court (
This is the case that Constitutional lawyers have beeen waiting for all year, not least because we all knew that the appeal would be dismissed (at least since the Court asked for further particulars of how it might dismiss the appeal). The case deals with the issue of the validity of control orders under the Serious and Organised Crime (Control) Act 2008 (SA) (i.e. the bikie legislation). The question is the degree to which a Supreme Court of a State can make an order, the subject of which is dictated by the executive (i.e. contrary to Kable). The impugned legislation required the Court to make a determination that individuals were subject to control orders if they are a member of a group which the executive had declared to be a declared organisation. The High Court has held that the Supreme Court of South Australia was correct in determining this to be contrary to the institutional integrity of a Court and therefore constitutionally invalid.
Commissioner of Taxation v Anstis [2010] HCA 40
The High Court has dismissed this appeal against a decision of the Full Court of the Federal Court of Australia.
I have previously set out the findings of the Full Court in some detail, here. The issue is whether a student on Centrelink payments (specifically Youth Allowance) is able to deduct her expenses as an expense for "the purpose of gaining or producing assessable income". The Court dismissed the appeal from the Full Court finding that such a deduction was valid.
Plaintiff M61/2010E v Commonwealth of Australia [2010] HCA 41
The High Court has [allowed (though dismissed in part) an application for judicial review in the High Court's original jurisdiction].
This case concerned the offshore processing procedures of immmigrants currently being engaged by the Australian Government. The High Court has determined that the offshore processing procedure does not - contrary to popular Governmental belief - insulate or immune the Government from requirements of the Migration Act 1958 (Cth) and administrative principles of procedural fairness.
Hi,
ReplyDeleteIt was Heydon J who dissented in the Totani case (not Hayne J).
Cheers, Tom
Re: Totani. Hayne J didn't dissent. Heydon J did.
ReplyDeleteWasn't it Heydon J who dissented in Totani?
ReplyDeleteActually, it was Heydon who dissented in Totani. And, though it pains me to say this (because the SA laws are terrible and, well, Heydon), but he's completely right. If the High Court wanted to overturn these laws, they should have implied freedom of association into the Constitution. Kable, a silly doctrine at the best of times, is nonsense here. Courts make orders predicated, in part, on executive determinations all the time. If the Court really meant what they sent, then significant parts of the criminal law would be invalid: drugs, customs, pornography, you name it.
ReplyDeleteThanks tommyb.
ReplyDelete...and others.
ReplyDeleteJeremy
ReplyDeleteI found Heydon J's reasoning attractive until I read Hayne J's judgment. I think Hayne J makes it clear that the drugs and customs examples are substantially different.
Hayne J describes the SOCCA scheme thus: "What s 14(1) does is permit the Executive to enlist the Magistrates Court to create new norms of behaviour for those particular members who are identified by the Executive as meriting application for a control order. They are to be subjected to special restraint, over and above the limitations that the Act imposes on the public at large, not for what they have done or may do, and not for what any identified person with whom they would associate has done or may do, but because the Executive has chosen them. That function is repugnant to the institutional integrity of the court that is required to perform it."
I think this bluntly illustrates just how neutered and non-judicial the court's role in the SOCCA scheme is, and just how obviously they are merely rubber stamping an Executive decision. I just don't think that the other examples can be described this way.
Here, the Executive determines that a group of people are "bad guys", and then determines that one of them warrants harsh treatment, and the court simply says "Sure", without determining anything other than whether the Executive-selected individual is part of the Executive-selected group.
Compare that with the drugs example. There, the Executive prescribes a particular drug as prohibited. This is in no way analogous to prescribing particular group of known persons as "bad guys". One is an ordinary Executive exercise, the other sounds like the original Kable case just expanded out to a group context.
Not only that, but when a drug is prescribed, carriage of it becomes a crime. However there is no analogy when a group of bad guys is prescribed. The prescribing enables the Executive to single out certain individuals from a pool of known individuals for harsh treatment. It doesn't criminalise membership of the group. It doesn't establish a legal norm that a court can then determine that a defendant has violated.
When an individual is prosecuted for carrying a prescribed drug, the court is determining whether that individual had violated a law. When an individual is the subject of an application for a control order, the court is making no determination about whether that individual's behaviour has been lawful. The court is merely determining whether they are indeed part of the group that the Executive has a vendetta against.
The differences between the two examples are subtle but I don't think they're "silly", and I think there are certainly sound bases on which to distinguish them.
James,
ReplyDeleteThanks for your thoughtful addition. My preliminary thoughts: I tend intuitively to agree with you. An executive order that effectively outlaws certain people seems different to an executive order that outlaws a particular act. In the latter case an individual can do his/her best to avoid doing the act whereas in the former case there is no such option. The latter is in a similar nature to the usual prescriptive Acts of parliament whereas the latter is in the nature of a Act of Attainder. Though, as I look more closely at the case, I find myself a little less convinced by the soundness of those intuitions.
The declaration of a ‘declared organisation’ under the SOCCA scheme restricts itself to the group rather than the specific members. Whilst a person may be a member of a declared organisation at the time of the declaration, they can cease to be so subsequently (or indeed become one, as the Finks unilaterally tried to do to Premier Mike Rann). So unlike Mr Kable, Messrs Hudson and Totani could stop being in breach of the law (of course, they would have to do more than just remove their name from the Finks registry). Accordingly, one primary difference between this and the drug laws is that at the time of making the declaration a person becomes immediately and contemporaneously in violation of the law (in a manner that may subject them to a control order). It therefore has an air of retrospectivity to it.
There are two problems with relying on this distinction. First, this happens all the time. Regulations change, for example in relation to permits for certain sizes of fishing vessels, which render a person in breach unless they remedy the situation. Secondly, we permit retrospective legislation in appropriate circumstances so rendering someone in breach of the law is not necessarily problematic. In each of these cases we have no concern about a court applying these laws. We certainly do not have the same concern for declarations of unlawful drugs, when there may be people happily walking the streets selling them at the time. We say that they have to dispose of them or suffer the consequences.
So if there is little difference between drug laws and the SOCCA scheme, why do we have an intuitive concern about these (now former) laws. Perhaps, as is implicit in Hayne J’s reasons, it is the common law’s apprehension to punish anything other than ‘acts’. Or perhaps, our intuitive concern is because of how much the scheme is in contrast to generally accepted conceptions of political liberty and the rule of law. But of course these two matters are supposed only to be indirectly relevant, if at all, to the Kable doctrine. The primary enquiry should be the institutional integrity of the court.
Any other thoughts??
Harley
ReplyDeleteI might take that in reverse order.
Firstly, the rule of law is more than "indirectly relevant" to the Kable doctrine. Both French CJ and Hayne J identify the rule of law as a constitutional assumption that is relevant for Kable purposes. A legislature cannot give a court a duty that is inconsistent with those constitutional assumptions because that would undermine the institutional integrity of the court.
Hayne J spells out why the s 14(1) scheme is inconsistent with the rule of law: "That guilt is personal and individual is intrinsic in the notion of the rule of law." He then goes on to explain how s 14(1) basically requires to punish a defendant on the basis of guilt by association.
I agree with what you say about apparent retroactivity and how it is in not uncommon in other contexts (e.g. declarations of unlawful drugs). But I cannot accept your next premise, which is that "there is little difference between drug laws and the SOCCA scheme". You have highlighted one difference and shown it to be minor, but there are more substantial differences that you have not mentioned.
I think these differences are missing from your post because you are focusing on the declaration. Declarations may still be validly made. The attack on validity was concerned with the court's obligation to make a control order that is related to the declaration. The real issue is whether the court is being enlisted by the Executive; whether the court is rubber-stamping an Executive act; whether Executive action is being cloaked in judicial robes. These things undermine the institutional integrity of the court.
Whether or not the defendants are able to extract themselves from criminal liability after a control order is made, the fact remains that the court, in making the control order, is basically doing an identity check for the Executive. The court merely asks "Is the defendant a member of a group that you've proclaimed to be criminals?" and if the answer is "Yes", it makes the order. It does this despite the fact that membership of the group is not a crime.
In the drugs context, a court is asked "Was the defendant carrying a substance that the Executive has prohibited?" The real differences between this and the s 14(1) context are as follows:
Firstly, the court here focuses on acts as opposed to a status like membership. (I know Heydon J objects to this distinction but I think his objection is comprehensively answered by Hayne J's comments about how broad membership is.)
Secondly, the court here focuses on a criminal act (as possession of the drug is a crime, and hence the defendant wasn't legally allowed to do it in the first place). Membership of a declared organisation is a crime, and a person is doing nothing illegal in being a member. So the true basis for the court's order is not criminal liability, but selection by the Executive. Kiefel J explores this as well, saying that the order is not explicable by anything the court finds or determines.
Thirdly, in the drugs context there is assessment of the defendant's personal actions and their possible criminality. As Hayne J explains, the structure of the SOCC Act meant that someone could wind up the subject of a control order because of someone else's criminal actions.
The thing that I think Heydon J entirely misses is Hayne J's proposition (with which French CJ specifically agrees) that the key issue has nothing to do with the mere fact that the Executive is able to make a declaration which is then relevant to a court proceeding. The key issue concerns "the nature of the relationship that the SOCC Act establishes between [the Executive and the judiciary]".
On that key issue, I still agree with the majority that the relationship is one of conscription of the courts by the Executive.