At Friday’s special leave hearings, the High Court only granted leave to appeal in one case decided by the NSW Court of Appeal, a corporations law matter. However, the Court also ruled that it will hear and decide another case that is before the NSW Court of Appeal but which that court is yet to rule upon. The case is an ongoing prosecution of three people for committing the NSW crime of consorting. Even though there hasn’t been a trial so far, the matter was before the NSW Court of Appeal to determine whether or not the provision setting out the offence is invalid. Friday’s ruling means that the High Court will now be the first and final court to rule on that question.

What is the challenge about? Section 93X of the Crimes Act 1900 (NSW) provides:

(1) A person who:
(a) habitually consorts with convicted offenders, and
(b) consorts with those convicted offenders after having been given an official warning in relation to each of those convicted offenders,
is guilty of an offence.
Maximum penalty: Imprisonment for 3 years, or a fine of 150 penalty units, or both.

The history of these types of laws is discussed by Sydney’s Andrew McLeod in a recent article in the Melbourne University Law Review. The grounds for the defendants’ challenge to this provision are not yet on the public record. The NSW Supreme Court has mentioned that one of their arguments is that the section ‘impermissibly infringes upon the implied freedom of communication on political and government matters said to be guaranteed by the Commonwealth Constitution’. The argument may be that, because ‘consorts’ is defined to include not only consorting ‘in person’ but also ‘by any other means, including by electronic or other form of communication’, it stops convicted offenders who have been given a warning from communicating with each other about political matters. The ‘official warning’ element may also raise an argument under the Kable doctrine, which prevents state parliaments from making state courts a tool of the executive. A press release from the NSW Attorney-General refers to ‘a similar constitutional issue’ presently before the High Court. That may be the reported challenge to Queensland’s anti-bikie laws.

Another question is: why is the matter going straight to the High Court? Section 40(1) of the Judiciary Act 1903 (Cth) allows any pending constitutional matter in a lower court to be ‘removed’ (ie, moved)  to the High Court ‘upon application of a party for sufficient cause shown’. In 2011, the High Court rejected a similar application in the Monis case to move a pre-trial constitutional challenge involving the prosecution of two men for writing offensive letters to dead soldiers’ families directly to the top court. In that case, French CJ said:

Orders for removal under section 40(1) interrupt the processes of the lower courts and deny this Court the benefit of the reasons of the lower courts on constitutional issues. They also allow the parties to bypass the special leave and leave requirements of the Judiciary Act. Accordingly, a removal order is only appropriate if an application raises constitutional issues ripe for consideration which require this Court’s urgent decision.

In his press release, the NSW Attorney-General  explains that he asked for the High Court to hear the matter so ‘[w]e just want an end to these delays, so police can get on with their job’, suggesting that the urgency was that the dispute was hampering the enforcement of NSW’s laws.

The 2011 case reveals that the decision about whether the High Court will hear a challenge first or on appeal can sometimes affect not only the timing of the decision, but also its outcome, in the rare event of a tie in the national court. In that case, after the issue eventually came to the High Court on appeal, the judges split 3:3. Because the case had already been decided by a lower court, that decision (ruling against the defendants) stood. However, if the High Court had been the first court to hear the matter, then the tie would have been broken by the Chief Justice (who ruled for the defendants). Friday’s ruling means that it is the latter rule that will apply in the consorting case, in the (unlikely) event that it is also the subject of a tie in the High Court.