By Laureate Professor Cheryl Saunders AO
Condon v Pompano Pty Ltd  HCA 7 is the latest in a line of cases invoking the Kable principle to challenge atypical judicial processes mandated by State Parliaments for the purposes of crime control. In issue this time was the Criminal Organisation Act 2009 (Qld). The High Court challenge was brought by the Finks Motorcycle Club and Pompano Pty Ltd (said to be linked to the Finks’ Gold Coast ‘chapter’), bodies that the Queensland police claim are involved in organised crime.
In three of the earlier cases, organised crime control laws had been held to be incompatible with the maintenance of the integrity of State courts; a federal constitutional requirement since 1996, when the High Court struck down a statute permitting the NSW Supreme Court to order the continued detention of a particular soon-to-be-released prisoner, Geoffrey Wayne Kable (International Finance Trust Co Ltd v New South Wales Crime Commission  HCA 49; South Australia v Totani  HCA 39; Wainohu v New South Wales  HCA 24).
In another two earlier cases the laws had been construed so as to preserve their validity (Gypsy Jokers Motorcycle Club Inc v Commissioner of Police  HCA 4; K-Generation Pty Ltd v Liquor Licensing Court  HCA 4). The result was a messy jurisprudence, in which different judges relied on different features of the challenged legislation to draw what sometimes appeared to be fine lines between what was acceptable and what was not.
In Pompano a High Court of six Justices unanimously upheld the validity of the Queensland Act, with some important variations in their reasons. The case offers some insights into the significance of procedural fairness as a defining characteristic of a court. For the moment, however, given differences in emphases amongst the six judges, the scope of the Kable principle remains as indeterminate as ever, exacerbating the inevitable difficulty of predicting its application in practice.
The Finks’ challenge
The Criminal Organisation Act 2009 (Qld) provides a process whereby an organisation might be declared a ‘criminal organisation’ by the Supreme Court of Queensland, potentially exposing its members or associates to restraining orders of various kinds in subsequent court proceedings. In making a declaration, the Court must be satisfied, amongst other things, that the organisation is ‘an unacceptable risk to the safety, welfare or order of the community’: s 10(1). A declaration might be partly based on information declared to be ‘criminal intelligence’ in earlier proceedings, for which the Act also provides in pt 6. An application to so classify information is held in a closed hearing, in the absence of and without notice to an affected person, but in the presence of a Criminal Organisation Public Interest Monitor (COPIM) — typically a retired judge — ‘in the nature of amicus curiae’: . In making this declaration a court may consider whether ‘possible adverse outcomes of disclosure’ outweigh ‘unfairness’ to those affected. Consideration of ‘criminal intelligence’ in subsequent proceedings also takes place in closed court, in the same way. In this case, Assistant Commissioner Condon made an application to the Queensland Supreme Court to declare the Finks Motorcycle Club a criminal organisation, partly on the basis of information that had been declared criminal intelligence in earlier proceedings.
One ground of challenge was readily dismissed by all Justices: that in making a declaration on the basis that an organisation was an ‘unacceptable risk to the safety, welfare or order of the community’ the court exercised a function that was incompatible with its integrity. The Court rejected the imputation that such a power was not judicial when exercised by a State court. Most Justices also reiterated the now familiar point that the ‘full’ Australian doctrine of separation of powers does not apply to the courts of the States. It followed that the Kable requirements for institutional integrity do not ‘simply reflect what Ch III requires’ in relation to the exercise of federal judicial power: . While this does not resolve the question of whether the power in the Queensland statute would be exercisable by a federal court, approving references to an earlier decision involving federal ‘control orders’ directed to suspected terrorists, Thomas v Mowbray  HCA 33, suggest that it would survive in that context too.
A second and more significant group of arguments concerned the procedures established by the Act for making a criminal intelligence declaration and for its use in subsequent proceedings ex parte and in closed court. In various ways, the respondents sought to persuade the Court that these deprived a State court of a ‘defining characteristic’, undermining its constitutionally protected integrity: . The argument was open because of the emphasis placed in previous cases on the significance of both procedural fairness and the open court principle: . It was complicated by the variety of circumstances in which both have been qualified in the face of competing public interests that were deemed to be sufficiently substantial.
On balance: Fair enough
The majority reasons of Justices Hayne, Crennan, Kiefel and Bell essentially upheld the legislation on the basis that, as they construed it, the Supreme Court retained the capacity to act ‘fairly and impartially’: . In doing so, the majority emphasised certain features of the challenged scheme as significant in evaluating the validity of the process as a whole, including the ‘detailed particulars’ that the Commissioner was required to provide in seeking a declaration of a ‘criminal organisation’ all of which (although minus the ‘criminal intelligence’) was available to the respondent (, ) and the obligation of the Supreme Court to balance ‘unfairness to a respondent’ in dealing with an application for a declaration of criminal intelligence: .
The majority reasons acknowledge the potential impact of a criminal intelligence declaration on later proceedings to declare a criminal organisation but assume that the inability of a respondent to have contested this evidence could and would be taken into account by the Court at this later stage: . In reaching their conclusions, the majority Justices were influenced by the competing public interests at stake, although it is unclear precisely how these were weighed in the balance: , . They insist that independence and impartiality () and, perhaps, fairness (), remain the bottom line.
Unease about the Queensland scheme
Each of the remaining two Justices, Chief Justice French and Justice Gageler, delivered separate reasons that evinced greater unease about the scheme, relying in various degrees on the inherent powers of the Supreme Court to avoid abuse of process and ‘injustice’: . Both judges also showed awareness of the difficulties that similar issues are presenting elsewhere in the common law world, placing pressure on features of the common law method on which its legitimacy depends: –, .
For the Chief Justice, while some of the constraints on the judicial process were ‘remarkable’ () the challenged segments of the legislation were saved from invalidity by a combination of the rules of evidence, which on his view continued to apply, and the power of a court to control its own proceedings subject to ‘clear words’ in legislation to the contrary: , . It followed that a court would have discretion to refuse to act in the face of a ‘degree of unfairness’ not contemplated when the original declaration was made: .
The position of Justice Gageler, a relatively new appointment to the High Court, deserves particular attention. In reasons that are likely to attract attention for their clarity and brevity, as well as for their substance, he identified procedural fairness as an ‘immutable characteristic’ of every Australian court: . There is no equivocation here. Justice Gageler identifies fairness as central to institutional integrity in common law legal systems, underpinning the correctness of decisions, their acceptance by litigants and confidence in the institution of the judiciary as a whole: . The content of procedural fairness varies; but it always is unfair for a court to make an order that finally determines a person’s right or interest without giving that person ‘a fair opportunity to respond to evidence on which that order might be made’: . The challenged scheme presented the possibility of unfairness if, for example, a respondent to a substantive application was ‘left without any real practical opportunity to respond to declared criminal intelligence that is relied upon as evidence’: . It was saved from invalidity only by the inherent jurisdiction of a Supreme Court to ‘stay’ (that is, stop) an application where ‘practical unfairness … becomes manifest’: .
It remains to be seen whether the analytical approach of Justice Gageler will be adopted by other Justices in future litigation of this kind. Justice Gageler makes a persuasive case that there is nothing definitive to prevent this in previous decisions of the Court. Such an outcome would not resolve all difficulties about the boundaries of the Kable doctrine. But it offers a clear principle, with rational foundations, which would assist with some.
AGLC3 Citation: Cheryl Saunders, ‘Organised Crime Control and the Promise of Procedural Fairness: Condon v Pompano Pty Ltd’ on Opinions on High (22 July 2013) <https://blogs.unimelb.edu.au/opinionsonhigh/2013/07/22/saunders-pompano/>.
Laureate Professor Cheryl Saunders AO holds a Personal Chair in Law at Melbourne Law School.