Wainohu v New South Wales

French CJ AND Kiefel J.

On 6 July 2010, the Acting Commissioner of Police for New South Wales applied to a judge of the Supreme Court of New South Wales for a declaration under Pt 2 of the Crimes (Criminal Organisations Control) Act 2009 (NSW) (‘the Act’) in respect of the Hells Angels Motorcycle Club of New South Wales (‘the Club’). The declaration sought is an administrative, not a judicial act. The judge from whom it is sought is an ‘eligible judge’ so designated under the Act by the Attorney-General of New South Wales.

If the eligible judge makes the declaration which is sought then, under Pt 3 of the Act, the Supreme Court will be empowered, on the application of the Commissioner of Police, to make control orders against individual members of the Club 1. A member against whom such an order is made is called a ‘controlled member’ 2. It is an offence for controlled members to associate with one another 3. They are also barred from certain classes of business and occupation 4.

The plaintiff, Derek Wainohu, is a member of the Club and has been a member for 20 years. If the Club is declared as an organisation under the Act, he is at risk of being made subject to a control order. He has commenced proceedings in this Court seeking a declaration that the Act is, or particular provisions of it are, invalid. He challenges the Act's validity on the basis that it confers functions upon eligible judges and upon the Supreme Court which undermine the institutional integrity of that Court in a way that is inconsistent with the national integrated judicial system for which Ch III of the Constitution of the Commonwealth provides. He also contends that the Act infringes the freedom of political communication and political association implied from the Constitution.

The State of New South Wales filed a defence to the claim. The parties agreed a special case pursuant to r 27.08.1 of the High Court Rules. On 15 October 2010, Heydon J referred the special case to the Full Court.

The Act creates two important functions, both of which are exercised by judges of the Supreme Court of New South Wales. It was not in dispute that a declaration under Pt 2 made by an eligible judge is an administrative act. Nor was it disputed that a control order under Pt 3 is a judicial act. Although the two functions are linked as part of the one statutory scheme, the making of a declaration under Pt 2 is neither an incident nor an element of the judicial function of making a control order under Pt 3.

An eligible judge may make a determination under Pt 2 upon information and submissions, without regard to the rules of evidence 5, partly based on information and submissions not able to be disclosed to the organisation or its members 6, and with no obligation to provide reasons for the determination which is made 7. The Act thus provides for the enlistment of judges of the Supreme Court to determine applications for declarations using processes which, if adopted by the Court itself, would be repugnant to the judicial function.

The making of a declaration by an eligible judge is a necessary condition for the exercise by the Court of its jurisdiction to make a control order. It is well established that a State legislature, untrammelled by a doctrine of separation of powers derived from the Constitution of the State, can confer administrative functions on a court of the State or on judges of the court. It cannot confer administrative functions on a court which are incompatible with the court's essential and defining characteristics as a court and thereby with its place in the national integrated judicial system for which Ch III of the Constitution provides. Nor, as is explained in these reasons, can a State legislature confer upon judges of a State court administrative functions which substantially impair its essential and defining characteristics as a court. The Act effects such an impairment. It does so because it provides, in effect, that the jurisdiction of the Supreme Court to make control orders against members of an organisation will be enlivened by a decision of a judge of the Court, after an adversarial proceeding, on complex and important matters of fact, for which the Act provides that no reasons need be given. The Act also creates an impression of a connection between the performance of a non-judicial function and the following exercise of judicial power, such that the performance of that function may affect perceptions of the judge, and of the court of which he or she is a member, to the detriment of that court. The plaintiff's challenge to the validity of the Act should succeed.

The object of the Act, as appears from its long title, is ‘to provide for the making of declarations and orders for the purpose of disrupting and restricting the activities of criminal organisations and their members’. It is an object which has been pursued in the long history of laws restricting the freedom of association of certain classes, groups or organisations of persons involved or likely to be involved in the planning and execution of criminal activities 8. It is an object legitimised by the incidence and sophistication of what is generally called ‘organised crime’. It is nevertheless an object which must be pursued within the framework of the Constitution so as to maintain the integrity, independence and authority of the courts that may be required to determine whether persons charged with offences under federal, State or Territory laws are guilty of those offences, and to punish them if they are.

Under Pt 2 of the Act the Attorney-General may declare judges of the Supreme Court of New South Wales, who give their prior written consent, to be eligible judges for the purposes of Pt 2 9. The Commissioner may apply in writing 10 to an eligible judge for a declaration under Pt 2 that an organisation is a declared organisation for the purposes of...