The Constitutionality of the Queensland Criminal Organisation Act: Kable, Procedural Due Process and State Constitutionalism
Guy, Scott, University of Queensland Law Journal
Since the decisions of the High Court in 2008 commencing with Totani, (1) and including those of International Trust Finance, (2) Kirk, (3) and Wainohu, (4) the Kable (5) principle, and State constitutionalism, more generally, has undergone a resurgence and re-conceptualisation. From simply being a requirement that legislation must not compromise the institutional integrity of State Supreme Courts, these decisions have associated the Kable principle with 'due process' and 'natural justice' requirements; the need for public perceptions of judicial impartiality and independence; the requirement that non-judicial functions must not be incompatible with the exercise of judicial power of the Commonwealth; the strict construction of privative clauses and Ex parte hearings to ensure that respondents have a right to be heard and to scrutinise the evidence against them; and, finally, the preservation of the integrity of judicial power against executive encroachment. It is difficult not to overstate the resurgent constitutional checks and the constitutional emphasis on the clear delineation between judicial and executive power which these High Court decisions have had on the Kable principle and how the Kable principle will be interpreted and applied in the future where executive government directs or purports to legislate for how judicial processes will function in the State realm.
This paper will first articulate how the Kable (6) principle operated prior to the series of High Court decisions commencing in 2008 with South Australia v Totani? It will then examine in detail the various decisions of Totani, International Trust Finance, Kirk and Wainohu. These decisions, in the main, sought to criminalise motorcycle 'bikie' organisations and enact legislative 'control' regimes wherein the Executive Government could direct the State Supreme Courts to prohibit motorcycle members and organisations from associating with each other. The paper then examines the implications of these decisions for the Kable principle. The final part of the paper applies the newly conceptualised Kable principle to the current Queensland Criminal Organisation Act 2009 (Qldj. The Criminal Organisation Act 2009 will be the subject of a High Court challenge in early 2014. As will be shown, the legislative scheme, as it is presently enacted, undermines serious procedural or 'due process' rights, such as affording notice to respondent members and organisations of proceedings being for lodged against them for 'declarations' and 'control orders' which seriously impinges on members' rights and freedoms. The failure to adequately persevere the right to a fair trial for members of 'bikie' organisations and infringements on their right to be heard and to cross-examine evidence laid against them goes to the very heart of the newly reconceptualised Kable principle. Additionally, (Queensland) Executive Government encroachment on the integrity and autonomy of the judicial process of the Queensland Supreme Court also, it will be suggested, makes the Criminal Organisation Act more susceptible to constitutional invalidation by the High Court. Brief comments will also be made on how the Criminal Organisation Act potentially trenches on the implied rights to freedom of association and freedom of political communication. (8)
II THE KABLE PRINCIPLE
Before examining the decisions in Totani, (9) International Trust Finance, (10) Kirk (11) and Wainohu (12) it is perhaps helpful to examine the Kable principle since these earlier High Court cases are predicated upon the decision in Kable v Director of Public Prosecutions (NSW). (13) Kable v Director of Public Prosecutions (NSW)X4 was a significant High Court decision regarding Ch. III rights in the Australian Constitution and the scope of power of State courts vested with federal jurisdiction. The New South Wales Parliament enacted legislation called the Community Protection Act 1994 (NSW) which authorised the Supreme Court of New South Wales to make an order requiring that a single individual could be detained in prison if the Court was satisfied that that person posed a significant danger to the public. …