Academic journal article University of Western Sydney Law Review

Limits to State Parliamentary Power and the Protection of Judicial Integrity: A Principled Approach?

Academic journal article University of Western Sydney Law Review

Limits to State Parliamentary Power and the Protection of Judicial Integrity: A Principled Approach?

Article excerpt


The case of Wainohu v New South Wales (2011) ('Wainohu') was a challenge by Derek Wainohu, a member and former president of the Sydney Branch of the Hells Angels Motorcycle Club, against the constitutional validity of the Crimes (Criminal Organisations Control) Act 2009 (NSW) ('the Act'). The case revisits the limits to State parliamentary power outlined fifteen years ago in Kable v Director of Public Prosecutions (NSW) (1) ('Kable') and the scope of possible exceptions provided by the persona designata rule, against the backdrop of community uproar over gang violence that sparked the enactment of the impugned law.

The shooting of a bikie member at the Qantas terminal of Sydney Airport in March 2009 and the subsequent community outrage and media coverage prompted the New South Wales Parliament to consider and pass the Act all in one day on 2 April 2009. The Act received assent the next day and commenced immediately.

In relation to Derek Wainohu, the Act was enlivened on 6 July 2010 when the New South Wales Acting Commissioner of Police lodged an application with the Registry of the New South Wales Supreme Court seeking a declaration under Pt 2 of the Act by an 'eligible Judge' of the New South Wales Supreme Court that the Hells Angels Motorcycle Club was a 'declared organisation' under the Act. The declaration, if made, would give rise to further powers under the Act, which would have the effect of creating limitations on the activities in which members of the organisation could engage. Under s 35 of the Act, such a declaration could not be reviewed (although as noted in the case of Kirk v Industrial Court (NSW), (2) such ouster clauses have limited effect in relation to claims of jurisdictional error). Significantly, s 13(2)of the Act exempts an eligible Judge from any duty to give reasons for making or refusing to make a declaration (other than to a person conducting a review under s 39 if that person so requests). Under s 39(2), the Ombudsman may require an eligible Judge to provide 'information' about the exercise of police powers pursuant to such a declaration. The right of appeal in s 24 is limited to control orders under Pt 3 of the Act.

The basis for the challenge to the Act's validity was the proposition that the Act confers functions upon eligible Judges of an Australian court that could undermine the institutional integrity of that court. Supporting this proposition was the argument that under the Act an eligible Judge would be exercising an administrative power without being subject to the rules of evidence or providing reasons for decisions. The plaintiff also contended that the Act infringed the freedom of political communication and political association implied from the Constitution.


The majority of Gummow, Hayne, Crennan and Bell JJ ultimately found that Part 2 of the Act was invalid due to the application of the principles found in Wilson v Minister for Aboriginal and Torres Strait Islander Affairs (3) ('Wilson') and Kable. These cases stand for the principle that the appointment of a judge to a position with executive powers could undermine the institutional integrity of the judge's court if the non-judicial function was incompatible with the judge's judicial position. The Court emphasised that the Kable principle applies through the entire Australian integrated court system because the many levels of the national court system cannot provide 'different grades or qualities of justice'. (4)

The majority in Wainohu determined that there was no statutory requirement for reasons to be provided by a judge making a declaration or decision under the Act. (5) The Court then found that the absence of a requirement to provide reasons was incompatible with the Supreme Court's institutional integrity. (6)

According to the majority, reasons are a key aspect of judicial decisionmaking, (7) and there is likely to be an obligation under Public Service Board of NSW v Osmond8 to provide reasons in this instance given the seriousness of the consequences for the person subject to the application. …

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