South Australia v Totani [2010] HCA 39

HIGH COURT OF AUSTRALIA

FRENCH CJ,
GUMMOW, HAYNE, HEYDON, CRENNAN, KIEFEL AND BELL JJ

THE STATE OF SOUTH AUSTRALIA  APPELLANT

AND

SANDRO PETER TOTANI & ANOR  RESPONDENTS

South Australia v Totani [2010] HCA 39
11 November 2010
A1/2010

ORDER

1.Grant of special leave expanded to include, within the orders appealed from, the order of Bleby J made on 28 September 2009.

2.Proposed further amended notice of appeal treated as filed in the appeal.

3.        Appeal dismissed with costs.

On appeal from the Supreme Court of South Australia

Representation

M G Hinton QC, Solicitor-General for the State of South Australia with G J Parker for the appellant (instructed by Crown Solicitor (South Australia))

B W Walker SC with S J Doyle for the respondents (instructed by Caldicott and Co Barristers and Solicitors)

Interveners

S J Gageler SC, Solicitor-General of the Commonwealth with A M Dinelli intervening on behalf of the Attorney-General of the Commonwealth (instructed by Australian Government Solicitor)

R J Meadows QC, Solicitor-General for the State of Western Australia and R M Mitchell SC intervening on behalf of the Attorney-General for the State of Western Australia (instructed by State Solicitor (WA))

M G Sexton SC, Solicitor-General for the State of New South Wales with J G Renwick intervening on behalf of the Attorney-General for the State of New South Wales (instructed by Crown Solicitor (NSW)) at the hearing on 20 and 21 April 2010

J G Renwick intervening on behalf of the Attorney-General for the State of New South Wales (instructed by Crown Solicitor (NSW)) at the hearing on 17 June 2010

P M Tate SC, Solicitor-General for the State of Victoria with K L Walker intervening on behalf of the Attorney-General for the State of Victoria (instructed by Victorian Government Solicitor)

W Sofronoff QC, Solicitor-General of the State of Queensland with G J D del Villar and A D Keyes intervening on behalf of the Attorney-General of the State of Queensland (instructed by Crown Solicitor (Qld)) at the hearing on 20 and 21 April 2010

P J Davis SC with G J D del Villar and A D Keyes intervening on behalf of the Attorney-General of the State of Queensland (instructed by Crown Solicitor (Qld)) at the hearing on 17 June 2010

M P Grant QC, Solicitor-General for the Northern Territory with S L Brownhill intervening on behalf of the Attorney-General for the Northern Territory (instructed by Solicitor for the Northern Territory)

Notice:  This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

South Australia v Totani

Constitutional law (Cth) – Judicial power of Commonwealth – Constitution, Ch III – Vesting of federal jurisdiction in State courts – Serious and Organised Crime (Control) Act 2008 (SA) ("Act") – Section 10(1) of Act permits Attorney-General to make declaration in respect of organisation, if satisfied members associate for purpose of organising, planning, facilitating, supporting or engaging in serious criminal activity, and organisation represents risk to public safety and order – Section 14(1) of Act provides Magistrates Court of South Australia ("Court") must, on application by Commissioner of Police, make control order (contravention of which is a crime) imposing restrictions on freedom of association of defendant if satisfied defendant is member of declared organisation under s 10(1) – Section 35(1) of Act creates offence of associating with member of declared organisation or person the subject of control order on not less than six occasions during 12 month period – Whether making control order requires determination by Court of what defendant has done or may do, or any determination of criminal guilt – Effect of Attorney-General's declaration on adjudicative process – Whether Court enlisted to implement legislative and executive policy – Whether task given to Court repugnant to, or incompatible with, institutional integrity.

Words and phrases – "control order", "institutional integrity", "judicial power", "member of declared organisation", "serious criminal activity". 

Constitution, Ch III.
Serious and Organised Crime (Control) Act 2008 (SA), ss 10(1), 14(1), 17, 19, 22, 35, 41.

FRENCH CJ.

Introduction

1. Courts and judges decide cases independently of the executive government. That is part of Australia's common law heritage, which is antecedent to the Constitution and supplies principles for its interpretation and operation[1]. Judicial independence is an assumption which underlies Ch III of the Constitution, concerning the exercise of the judicial power of the Commonwealth. It is an assumption which long predates Federation. Sir Francis Forbes, the first Chief Justice of New South Wales, stated the principle in uncompromising terms in 1827 in a letter to the Under-Secretary of State for War and the Colonies[2]:

   "His Majesty may remove the judges here, and so may the two Houses of Parliament at home; but the judicial office itself stands uncontrolled and independent, and bowing to no power but the supremacy of the law."

   It is a requirement of the Constitution that judicial independence be maintained in reality and appearance for the courts created by the Commonwealth and for the courts of the States and Territories[3].  Observance of that requirement is never more important than when decisions affecting personal liberty and liability to criminal penalties are to be made.  Its application is in issue in this appeal, which concerns the validity of a provision of the Serious and Organised Crime (Control) Act 2008 (SA) ("the SOCC Act"). The objects of the SOCC Act include the disruption and restriction of the activities of organisations involved in serious crime and of the activities of their members and associates and the protection of the public from violence associated with such organisations[4].

   [1]Dixon, "Marshall and the Australian Constitution", (1955) 29 Australian Law Journal 420 at 424-425.

   [2]Bennett (ed), Some Papers of Sir Francis Forbes, (1998) 134 at 143.

   [3]North Australian Aboriginal Legal Aid Service Inc v Bradley (2004) 218 CLR 146 at 163 [29] per McHugh, Gummow, Kirby, Hayne, Callinan and Heydon JJ; [2004] HCA 31; Gypsy Jokers Motorcycle Club Inc v Commissioner of Police (2008) 234 CLR 532 at 552-553 [10] per Gummow, Hayne, Heydon and Kiefel JJ; [2008] HCA 4; Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at 363 [81] per Gaudron J; [2000] HCA 63.

   [4]SOCC Act, s 4(1), the text of which appears in the judgment of Hayne J at [160].

2. The Attorney-General for the State of South Australia is given power by s 10 of the SOCC Act to make a declaration in respect of an organisation on the basis that its members are involved in "serious criminal activity"[5] and that it represents a risk to public safety and order in South Australia.  Such a declaration is administrative in character.  It has no text or content but does have legal consequences.

   [5]A defined term:  see n 10 below.

3. One of the legal consequences of a declaration is to be found in s 14(1) of the SOCC Act, which imposes on the Magistrates Court of South Australia an obligation, on application by the Commissioner of Police ("the Commissioner"), to make a control order against a member of a declared organisation. Such an order places, and results in, restrictions upon the freedom of association and communication of the person to whom it applies and others who might wish to associate or communicate with him or her. The Full Court of the Supreme Court of South Australia, by majority, held the sub‑section, and a control order made under it, to be invalid[6].

   [6]Totani v South Australia (2009) 105 SASR 244.

4. The decision of the Full Court was correct. Section 14(1) requires the Magistrates Court to make a decision largely pre-ordained by an executive declaration for which no reasons need be given, the merits of which cannot be questioned in that Court and which is based on executive determinations of criminal conduct committed by persons who may not be before the Court. The SOCC Act thereby requires the Magistrates Court to carry out a function which is inconsistent with fundamental assumptions, upon which Ch III of the Constitution is based, about the rule of law and the independence of courts and judges. In that sense it distorts that institutional integrity which is guaranteed for all State courts by Ch III of the Constitution so that they may take their place in the integrated national judicial system of which they are part. This appeal, by the State of South Australia against the decision of the Full Court, should be dismissed with costs.

   Procedural history

5. On 14 May 2009, the Attorney-General for South Australia published in the South Australian Government Gazette ("the Gazette") a declaration pursuant to s 10 of the SOCC Act. The declaration was "about the Finks Motorcycle Club operating in South Australia (including but not limited to: the Finks MC, Finks M.C. Incorporated, Finks M.C. INC and the Finks)" ("the Club").

6. On 25 May and 4 June 2009, the Commissioner applied to the Magistrates Court (Civil Division) in Adelaide under s 14 of the SOCC Act for control orders against Donald Brian Hudson and Sandro Totani, alleging each was a member of a declared organisation, namely the Club.

7. On 25 May 2009, the Magistrates Court made a control order against Mr Hudson prohibiting him, inter alia, from "[a]ssociating with other persons who are members of declared organisations" and from "[p]ossessing a dangerous article or a prohibited weapon (within the meaning of section 15 of the Summary Offences Act 1953)".  The prohibition was subject to an exception relating to political party meetings which is not material for present purposes.  The order contained a statement that the ground upon which it had been issued was that:

   "The defendant is a member of a declared organisation, namely the Finks Motorcycle Club operating in South Australia (including but not limited to:  the Finks MC, Finks M.C. Incorporated, Finks M.C. INC and the Finks)."[7]

   No control order has yet been made against Mr Totani.

   [7]This statement was said to exclude information classified by the Commissioner as criminal intelligence.

8. On 26 May 2009, Messrs Hudson and Totani commenced their proceedings in the Supreme Court of South Australia. On 3 June 2009, Mr Hudson filed, in the Magistrates Court, a notice of objection under s 17 of the SOCC Act seeking an order, inter alia, that the control order be revoked as unconstitutional.

9. On 3 July 2009, Bleby J in the Supreme Court proceedings reserved four questions for consideration by the Full Court.  The questions and the answers, delivered by majority judgment of the Full Court (Bleby and Kelly JJ, White J dissenting) on 25 September 2009, are set out in the judgment of Hayne J[8].  The effect of the answers was that the Full Court found s 14(1) not to be a valid law of the State of South Australia and the control order in respect of Mr Hudson to be "void and of no effect".  The Full Court ordered that the costs of the reference be costs in the cause.

   [8]Judgment of Hayne J at [155].

10. On the same day that the Full Court delivered its judgment, the Magistrates Court, in light of the judgment, made an order revoking the control order it had made against Mr Hudson.  This rather anticipated the finalisation of the Supreme Court proceedings by Bleby J.  On 28 September 2009, Bleby J made declarations as to the invalidity of s 14(1) and of the control order against Mr Hudson and ordered that the State pay his and Mr Totani's costs of the action.

11. On 12 February 2010, special leave was granted to the State of South Australia to appeal to this Court from the whole of the judgment and order of the Full Court given and made on 25 September 2009.

    SOCC Act

12. The Commissioner may apply to the Attorney-General, under s 8 of the SOCC Act, for a declaration under Pt 2 in relation to an organisation[9].  Section 10(1) empowers the Attorney-General, on the application of the Commissioner, to make such a declaration if the Attorney-General is satisfied that:

    "(a)members of the organisation associate for the purpose of organising, planning, facilitating, supporting or engaging in serious criminal activity^[[10]^]; and

    (b)the organisation represents a risk to public safety and order in this State".

    It is sufficient for the purposes of s 10(1) that the Attorney-General be satisfied that the members of an organisation who are associating for purposes related to serious criminal activity constitute a significant group within the organisation numerically or in terms of their influence[11].  Such purposes need not be the only purposes for which members of the organisation associate[12].

    [9]An "organisation" is defined in s 3 as "any incorporated body or unincorporated group (however structured), whether or not the body or group is based outside South Australia, consists of persons who are not ordinarily resident in South Australia or is part of a larger organisation".

    [10]The term "serious criminal activity" is defined in s 3 as "the commission of serious criminal offences". Such offences are defined in s 3 as "indictable offences (other than indictable offences of a kind prescribed by regulation)" or "summary offences of a kind prescribed by regulation". Regulation 4 of the Serious and Organised Crime (Control) Regulations 2008 (SA) prescribes offences under the Controlled Substances Act 1984 (SA); the Criminal Law Consolidation Act 1935 (SA); the Explosives Act 1936 (SA); the Firearms Act 1977 (SA); the Lottery and Gaming Act 1936 (SA); the Summary Offences Act 1953 (SA); the Explosives Regulations 1996 (SA); and the Explosives (Fireworks) Regulations 2001 (SA).

    [11]SOCC Act, s 10(4)(a).

    [12]SOCC Act, s 10(4)(c).

13. Matters to which the Attorney-General may have regard in considering whether or not to make a declaration include information suggesting that a link exists between the organisation and serious criminal activity.  He may also have regard to the criminal convictions of its current or former members and of persons who associate or have associated with its members[13].  Submissions received from members of the public[14] and any other matter the Attorney-General considers relevant may be taken into account[15]. If the Attorney-General is provided with information classified by the Commissioner as "criminal intelligence", it may not be disclosed to any person except to a person conducting a review of the operation of the Act under Pt 6 or a person to whom the Commissioner authorises its disclosure[16].

    [13]SOCC Act, s 10(3)(a) and (b).

    [14]The Attorney-General is required by s 9(b) to invite submissions from members of the public in relation to the application.

    [15]SOCC Act, s 10(3)(e) and (f).

    [16]SOCC Act, s 13(2).

14. In answer to questions from this Court, the State of South Australia accepted that, before making a declaration, the Attorney-General would have to be satisfied that a significant group of members of the organisation had committed or conspired to commit one or more indictable offences or prescribed summary offences or committed accessorial offences.  In the alternative, it acknowledged the practical reality that almost invariably the Attorney-General would have to be satisfied that a member or members of the organisation had committed one or more identified crimes.

15. The Attorney-General is not required to provide any grounds or reasons for making a declaration other than to a person conducting a review under Pt 6 if that person so requests[17].

    [17]SOCC Act, s 13(1).

16. A declaration has an immediate legal effect upon members of the public and members of the declared organisation. Section 35 makes it an offence for a person to associate, on not less than six occasions during a period of 12 months, with a person who is a member of a declared organisation[18].  A maximum penalty of imprisonment for five years is imposed for the offence[19]. The verb "associate" is widely defined in s 35(11)(a) to include "communicating … by letter, telephone or facsimile or by email or other electronic means". Importantly, the offence provision also applies in relation to association with a person the subject of a control order[20]. The generality of the provision means that it also applies to association between members of a declared organisation. Certain classes of association are to be disregarded for the purposes of s 35 unless the prosecution proves that the association was not reasonable in the circumstances[21].  These include associations between close family members[22].

    [18]SOCC Act, s 35(1)(a).

    [19]SOCC Act, s 35(1).

    [20]SOCC Act, s 35(1)(b).

    [21]SOCC Act, s 35(6).

    [22]SOCC Act, s 35(6)(a) and (11)(b). A "close family member" is defined to include a spouse or a former spouse, a person who is or has been in a "close personal relationship" (as defined in s 11 of the Family Relationships Act 1975 (SA)), a parent or a grandparent, a brother or a sister and a guardian or a carer.

17. Part 3 of the Act provides for control orders to be made by the Magistrates Court of South Australia[23]. The critical provision of Pt 3 is s 14, which provides in sub-s (1):

    "The Court must, on application by the Commissioner, make a control order against a person (the defendant) if the Court is satisfied that the defendant is a member of a declared organisation."

    The grounds of an application under s 14(1) must be verified by affidavit[24]. In such an application the affidavit need not establish more than the existence of a declaration about an organisation and the defendant's membership of that organisation. As appears below, the statutory concept of membership is very broad. Section 14(2) provides for discretionary control orders to be made in circumstances other than those covered by s 14(1)[25].

    [23]The relevant provisions of Pt 3 refer to "the Court", which is defined in s 3 as the Magistrates Court of South Australia.

    [24]SOCC Act, s 14(4).

    [25]The text of s 14(2) appears in the judgment of Crennan and Bell JJ at [404].

18. Section 14(5)(b) defines the minimum content of a control order against a member of a declared organisation. It requires that, except as specified in the control order, the Court must prohibit him or her from associating with other persons who are members of declared organisations and from possessing a dangerous article or a prohibited weapon[26]. In addition, pursuant to s 14(5)(a), the control order may prohibit the defendant from associating or communicating with specified persons or persons of a specified class or from entering or being in the vicinity of specified premises or premises of a specified class. I agree with Hayne J[27] that the Court's power to make exceptions to the minimum content of a control order required by s 14(5)(b) could not be used to make a control order without content. I agree also with Kiefel J that the discretion conferred on the Court does not significantly enlarge its function under s 14(1) and s 14(5)(b)[28].

    [26]Within the meaning of s 15 of the Summary Offences Act 1953 (SA). The text of s 14(5)(b) appears in the judgment of Hayne J at [171].

    [27]Judgment of Hayne J at [172].

    [28]Judgment of Kiefel J at [459].

19. The making of a control order enlivens the prohibition in s 35 against others associating with the defendant[29].  That prohibition is congruent with the prohibition which applies because the defendant is a member of a declared organisation[30]. Under s 22, it is also an offence, punishable by a term of imprisonment not exceeding five years, to contravene or fail to comply with a control order.

    [29]SOCC Act, s 35(1)(b).

    [30]SOCC Act, s 35(1)(a).

20. In s 6 of the Act it is said to be "the intention of the Parliament that this Act apply within the State and outside the State to the full extent of the extra-territorial legislative capacity of the Parliament". While the effect of this provision was not explored on the hearing of the appeal, it indicates a legislative intention that the offence provisions, including s 35, should apply to persons anywhere in Australia communicating or associating with a member of a declared organisation or with a person the subject of a control order[31].

    [31]As to extraterritorial legislative competence of State Parliaments see APLA Ltd v Legal Services Commissioner (NSW) (2005) 224 CLR 322 at 354 [40] per Gleeson CJ and Heydon J, 388-389 [154]-[159] per Gummow J (Hayne J agreeing at 449 [375]), 482-483 [465]-[466] per Callinan J; [2005] HCA 44; Mobil Oil Australia Pty Ltd v Victoria (2002) 211 CLR 1 at 22-26 [7]-[16] per Gleeson CJ; [2002] HCA 27; and see generally Carney, The Constitutional Systems of the Australian States and Territories, (2006), Ch 7; Twomey, The Constitution of New South Wales, (2004) at 53-56.

21. A control order may be issued on an application made without notice to any person[32].  The State of South Australia correctly disclaimed any suggestion that the Magistrates Court was obliged to hear such an application without notice to the affected party.

    [32]SOCC Act, s 14(3).

22. In the making and application of a control order the concept of membership of an organisation has particular significance. The definition of "member" in s 3 of the SOCC Act is non-exhaustive[33].  It includes "an associate member or prospective member"[34], "a person who identifies himself or herself, in some way, as belonging to the organisation"[35] and "a person who is treated by the organisation or persons who belong to the organisation, in some way, as if he or she belongs to the organisation"[36].

    [33]The full definition appears in the judgment of Hayne J at [161].

    [34]SOCC Act, s 3 (definition of "member", par (b)(i)).

    [35]SOCC Act, s 3 (definition of "member", par (b)(ii)).

    [36]SOCC Act, s 3 (definition of "member", par (b)(iii)).

23. The obligation imposed upon the Magistrates Court to make a control order is not conditional upon proof of any involvement by the defendant in any criminal conduct.  Nor is the Court's obligation conditional upon proof of any past or prospective association between the defendant and any person who has engaged in criminal conduct.  It is not necessary that the defendant regards himself or herself as a member of the declared organisation so long as the organisation treats him or her as a member.

24. Section 14(6) specifies matters to which the Court must have regard in considering the prohibitions that may be included in a control order under s 14(1)[37]. Section 14(7) confers power to make consequential or ancillary orders. The verb "associate" is defined non-exhaustively in s 14(8):

    "For the purposes of this section, a person may associate with another person by any means including communicating with that person by letter, telephone or facsimile or by email or other electronic means."

    [37]The full text of s 14(6) appears in the judgment of Kiefel J at [455].

25. A person served with a control order[38] may lodge a notice of objection with the Magistrates Court[39].  The Magistrates Court must consider whether, in the light of the evidence presented by both the Commissioner and the objector, "sufficient grounds existed for the making of the control order"[40].  It may confirm, vary or revoke the control order[41].  It may specify, subject to such conditions as it thinks fit, that the defendant is not prohibited from associating with a particular member or members of a declared organisation[42].  In their application to a control order against a member of a declared organisation, the words "sufficient grounds" suggest a wider basis for objection than actually exists.  In such a case the debate at the objection hearing is likely to be confined to those aspects of the control order which are in the discretion of the Court under s 14.  The Commissioner or an objector may appeal to the Supreme Court against a decision of the Magistrates Court on a notice of objection[43].  Such an appeal lies as of right on a question of law and with permission on a question of fact[44].

    [38]The control order is not binding until served in one of the ways specified in s 16: see s 16(4).

    [39]SOCC Act, s 17.

    [40]SOCC Act, s 18(1).

    [41]SOCC Act, s 18(2).

    [42]SOCC Act, s 18(3).

    [43]SOCC Act, s 19(1).

    [44]SOCC Act, s 19(2).

26. There is a wide-ranging privative provision, s 41. Section 41(1) precludes proceedings for judicial review, declaratory or injunctive relief, writs, orders or other remedies in respect of various things done under, or purportedly done under, the SOCC Act including decisions and declarations. As the State of South Australia accepted, the application of s 41(1) to decisions or declarations "purportedly" under the Act must be read in light of what was said in Kirk v Industrial Court (NSW)[45].  State legislative power does not extend to depriving a State Supreme Court of its supervisory jurisdiction in respect of jurisdictional error by the executive government of the State, its Ministers or authorities[46]. It may be accepted, therefore, that s 41(1) would not prevent review for jurisdictional error of the Attorney-General's decision to declare an organisation.

    [45](2010) 239 CLR 531; [2010] HCA 1.

    [46]Kirk (2010) 239 CLR 531 at 581 [99]-[100].

27. Section 41(2) precludes a challenge in any proceedings to the "validity and legality of a declaration under Part 2". The State of South Australia submitted that this sub-section would not preclude collateral challenge, in proceedings for a control order, to the declaration upon which the application for the control order was based. A challenge to the validity of the declaration would lie, it was said, because an invalid declaration would not have been made "under Part 2". Accepting that self-serving concession, the practical scope of challenge to the declaration would be limited. It would be limited because the Commissioner, in applying for a control order, has to do no more to prove the declaration than to produce the relevant entry in the Gazette. The Attorney-General in making the declaration is under no obligation to give reasons, although in this case he chose to do so. Short of what might be characterised as a "fishing" subpoena, the materials on which the declaration was based would not be before the Magistrates Court. To the extent that they included information classified by the Commissioner as "criminal intelligence", access to them would be constrained by the provisions of s 21 of the SOCC Act[47].  I agree also with the observations of Gummow and Hayne JJ in relation to the availability of judicial review of declarations made under s 10[48].

    [47]The text of s 21 appears in the judgment of Hayne J at n 288.

    [48]Judgments of Gummow J at [128] and Hayne J at [193]-[195].

28. The limited and difficult avenues for challenge to the making of the declaration do not materially alter the nature of the conditions which enliven the obligation to make a control order imposed on the Magistrates Court by s 14(1). The dominance of the executive declaration in the outcome of a control order application is what was intended by the proponents of the SOCC Act and is what, subject to its validity, it achieved.

    Historical and contemporary analogues

29. The Attorney-General in his Second Reading Speech stated the general effect of the SOCC Act when he said[49]:

    "This legislation grants unprecedented powers to the police and the Attorney-General to combat serious and organised crime."

    [49]South Australia, House of Assembly, Parliamentary Debates (Hansard), 21 November 2007 at 1806.

30. The SOCC Act, in effect, empowers the executive government to restrict the exercise of the common law freedoms of expression and assembly[50] by members of declared organisations, persons the subject of control orders and members of the public who might wish to communicate or meet with them.  It authorises the imposition of restrictions regardless of whether the persons affected by them have ever engaged in, or are ever likely to engage in, criminal conduct of any kind or have actively associated with, or are likely to associate with, persons who have engaged or might at some time in the future engage in criminal conduct[51].

    [50]See R (Laporte) v Chief Constable of Gloucestershire Constabulary [2007] 2 AC 105 at 126-127 [34] per Lord Bingham of Cornhill; Evans v New South Wales (2008) 168 FCR 576 at 594-596 [72]-[77]; Fellman, The Constitutional Right of Association, (1963) at 87-101; Keith, Constitutional Law, 7th ed (1939) at 454-456; Jarrett and Mund, "The Right of Assembly", (1931) 9 New York University Law Quarterly Review 1 at 2-10; Jennings, "Current Comment – The Right of Assembly in England", (1931) 9 New York University Law Quarterly Review 217 at 218-221.

    [51]Such matters may be relevant and taken into account by the Commissioner in the exercise of the discretion to seek a control order and in the exercise by the Court of its discretion to specify exceptions to the minimum conditions of the order pursuant to s 14(5)(b).

31. The effect of the SOCC Act on personal freedoms was a matter for consideration by the South Australian Parliament which enacted it. Its merit as a legislative measure is not a matter for this Court to judge[52].  Applying the "principle of legality", courts will, of course, construe statutes, where constructional choices are open, so as to minimise their impact upon common law rights and freedoms[53].  That principle, well known to the drafters of legislation, seeks to give effect to the presumed intention of the enacting Parliament not to interfere with such rights and freedoms except by clear and unequivocal language for which the Parliament may be accountable to the electorate.  Save to the extent that it imposes something approaching a formal requirement of clear statutory language, the principle of legality does not constrain legislative power.  Whether, beyond that imposition, State legislative power is constrained by rights deeply rooted in the democratic system of government and the common law[54] was a question referred to but not explored in Union Steamship Co of Australia Pty Ltd v King[55].  Whatever the answer to the unexplored question, it is self-evidently beyond the power of the courts to maintain unimpaired common law freedoms which the Commonwealth Parliament or a State Parliament, acting within its constitutional powers, has, by clear statutory language, abrogated, restricted or qualified[56].  That having been said, a constitutionally supported freedom of association has been suggested in dicta in this Court as an incident of the implied freedom of political communication[57].  That suggestion may draw some support from the historical connection between freedom of association and the right to petition Parliament under s 5 of the Bill of Rights[58]. No issue arose in this appeal concerning any implied constitutional freedom of association. Nor did any issue arise in relation to the interaction between s 92 of the Constitution and the restrictions on communication imposed by reason of the extended definition of "associate"[59]. On the other hand, the extent of the intrusions upon personal freedom effected by a control order is relevant to the characterisation of the duty imposed upon the Magistrates Court under s 14(1) of the Act and to whether, contrary to assumptions reflected in Ch III of the Constitution, s 14(1) removes or impairs that independence from the executive that is a defining characteristic of courts of law in Australia.

    [52]A restraint applicable to this Court and to all courts:  Ex parte Walsh and Johnson; In re Yates (1925) 37 CLR 36 at 126 per Rich J; [1925] HCA 53, citing Vacher & Sons Ltd v London Society of Compositors [1913] AC 107 at 118 per Lord Macnaghten.

    [53]Bropho v Western Australia (1990) 171 CLR 1 at 17-18 per Mason CJ, Deane, Dawson, Toohey, Gaudron and McHugh JJ; [1990] HCA 24; Coco v The Queen (1994) 179 CLR 427 at 436-437 per Mason CJ, Brennan, Gaudron and McHugh JJ; [1994] HCA 15; Electrolux Home Products Pty Ltd v Australian Workers' Union (2004) 221 CLR 309 at 329 [21] per Gleeson CJ; [2004] HCA 40; K-Generation Pty Ltd v Liquor Licensing Court (2009) 237 CLR 501 at 520 [47] per French CJ; [2009] HCA 4.

    [54]See the cautionary discussion in Zines, The High Court and the Constitution, 5th ed (2008) at 592-595 and dicta in Polyukhovich v The Commonwealth (1991) 172 CLR 501 at 687 per Toohey J; [1991] HCA 32; Nationwide News Pty Ltd v Wills (1992) 177 CLR 1 at 69 per Deane and Toohey JJ; [1992] HCA 46.

    [55](1988) 166 CLR 1 at 10; [1988] HCA 55. Without resolving the unexplored question, this Court held just-terms compensation for the acquisition of property by a State not to constitute such a right in Durham Holdings Pty Ltd v New South Wales (2001) 205 CLR 399 at 410 [14] per Gaudron, McHugh, Gummow and Hayne JJ; [2001] HCA 7.

    [56]Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51 at 71-76 per Dawson J; [1996] HCA 24; Fardon v Attorney-General (Qld) (2004) 223 CLR 575 at 590 [14] per Gleeson CJ; [2004] HCA 46. The rejection of common law constraints upon parliamentary supremacy in Pickin v British Railways Board [1974] AC 765 does not resolve the question for Australia whether there are fundamental common law rights and freedoms which inform constitutional constraints.

    [57]Kruger v The Commonwealth (1997) 190 CLR 1 at 91 per Toohey J, 116 per Gaudron J, 142 per McHugh J; [1997] HCA 27; Mulholland v Australian Electoral Commission (2004) 220 CLR 181 at 234 [148] per Gummow and Hayne JJ; [2004] HCA 41; Australian Capital Television Pty Ltd v The Commonwealth (1992) 177 CLR 106 at 212 per Gaudron J, 231-232 per McHugh J; [1992] HCA 45; and see Gray, "Due process, natural justice, Kable and organisational control legislation", (2009) 20 Public Law Review 290 at 303-305.  As to an implied freedom of association and the Kable doctrine, see Lindell, "The Australian Constitution:  Growth, Adaptation and Conflict – Reflections About Some Major Cases and Events", (1999) 25 Monash University Law Review 257 at 278.

    [58]1 Wm & Mar Sess 2 c 2; see Handley, "Public Order, Petitioning and Freedom of Assembly", (1986) 7 Journal of Legal History 123 at 138-141.

    [59]SOCC Act, ss 14(8) and 35(11). See, eg, in relation to a State law restricting the influx of criminals, R v Smithers; Ex parte Benson (1912) 16 CLR 99; [1912] HCA 96. See also Gratwick v Johnson (1945) 70 CLR 1 at 12-15 per Latham CJ, 17 per Starke J, 19-20 per Dixon J; [1945] HCA 7; Buck v Bavone (1976) 135 CLR 110 at 136-137 per Murphy J; [1976] HCA 24; Miller v TCN Channel Nine Pty Ltd (1986) 161 CLR 556 at 580-581 per Murphy J; [1986] HCA 60; Cole v Whitfield (1988) 165 CLR 360 at 393; [1988] HCA 18; Nationwide News Pty Ltd v Wills (1992) 177 CLR 1 at 81-83 per Deane and Toohey JJ; Australian Capital Television Pty Ltd v The Commonwealth (1992) 177 CLR 106 at 192-195 per Dawson J; Cunliffe v The Commonwealth (1994) 182 CLR 272 at 307-308 per Mason CJ; [1994] HCA 44; AMS v AIF (1999) 199 CLR 160 at 179 [45] per Gleeson CJ, McHugh and Gummow JJ, 211-217 [152]-[165] per Kirby J, 248-249 [276]-[277] per Callinan J; [1999] HCA 26.

32. The SOCC Act is not without historical analogues. It takes its place in a long history of laws concerned to prevent or impede criminal conduct by imposing restrictions on certain classes or groups of persons and on their freedom of association. Some such laws have been described generically as vagrancy and consorting laws. Vagrancy laws, which can be traced back to the 14th century in England, were concerned to identify inchoate criminality and prevent criminal conduct by the regulation of persons defined by such terms as "rogues", "vagabonds" and "sturdy beggars"[60].  A 19th‑century consolidating statute, the Vagrancy Act 1824 (UK)[61], was the model for vagrancy laws in Australia and New Zealand.

    [60]39 Eliz c 4 (1597); 13 Geo II c 24 (1740); 17 Geo II c 5 (1744).  See Holdsworth, A History of English Law, 3rd ed (1945), vol 4 at 392-401.  An abbreviated history of English vagrancy laws is provided by Scott LJ in Ledwith v Roberts [1937] 1 KB 232 at 270‑275.

    [61]5 Geo IV c 83.

33. There have also been examples in the history of English law of statutes restricting freedom of association of persons or members of organisations deemed socially undesirable or thought to pose a threat to social order[62].  However, direct inspiration for consorting laws in the Australian States came from the Police Offences Amendment Act 1901 (NZ), which created the offence of habitually consorting with reputed thieves, prostitutes or persons without visible means of support[63].  The offence was described by Mason J in Johanson v Dixon[64] as "an Australasian contribution to the criminal law".  South Australia, in 1928, was the first Australian jurisdiction to introduce an habitual consorting offence that depended upon the idea of guilt by association[65].  The other States for the most part followed suit over the next decade[66].  In each of the States, when consorting laws were enacted they were justified as a mechanism for the reduction of crime and for dealing with criminal gangs[67].  Concerns that they might impinge on innocent members of the community were expressed in opposition to such laws[68].  Consorting did extend to innocent association with proscribed classes of persons such as reputed thieves or known prostitutes or persons who had been convicted of having no visible lawful means of support[69]. However, unlike the provisions of the SOCC Act providing for ministerial declarations and judicial control orders, the vagrancy and consorting laws created offences, based upon norms of conduct, which did not depend upon the prior existence of an executive or judicial order.

    [62]An early example was Statute 5 Eliz c 20 (1562), which punished those found in the company of gypsies.  The Public Order Act 1936 (UK) prohibited the wearing of political uniforms and the formation of quasi-military organisations.  It was directed at Sir Oswald Mosley and the British Union of Fascists:  see "Public Order and the Right of Assembly in England and the United States:  A Comparative Study", (1938) 47 Yale Law Journal 404 at 404-406. See also the examples given by Hayne J at [235].

    [63]Elements of vagrancy laws in the United Kingdom and the Australian colonies and States foreshadowed consorting laws by prohibiting keepers of public houses from allowing common prostitutes and reputed thieves to assemble at their premises:  13 & 14 Vict c 33 (1850), s 103; General Police and Improvement (Scotland) Act 1862 (25 & 26 Vict c 101), s 337; Habitual Criminals Act 1869 (Imp) (32 & 33 Vict c 99), s 10; Prevention of Crimes Act 1871 (Imp) (34 & 35 Vict c 112), s 10; Vagrancy Act 1835 (NSW), s 2; Police Act 1863 (SA), s 56(7); Police Offences Statute 1865 (Vic), s 35(iv); Police Act 1892 (WA), s 65(7).

    [64](1979) 143 CLR 376 at 382-383; [1979] HCA 23.

    [65]Police Act Amendment Act 1928 (SA), s 5.

    [66]Vagrancy (Amendment) Act 1929 (NSW), s 2(b); Police Offences (Consorting) Act 1931 (Vic), s 2; Vagrants, Gaming, and Other Offences Act 1931 (Q), s 4(1)(v); Police Offences Act 1935 (Tas), s 6; Police Act Amendment Act 1955 (WA), s 2.

    [67]New South Wales, Legislative Assembly, Parliamentary Debates (Hansard), 22 October 1929 at 682; Victoria, Legislative Assembly, Parliamentary Debates (Hansard), 10 November 1931 at 4092; Queensland, Legislative Assembly, Parliamentary Debates (Hansard), 20 October 1931 at 1418; Western Australia, Legislative Assembly, Parliamentary Debates (Hansard), 25 August 1955 at 328.

    [68]New South Wales, Legislative Assembly, Parliamentary Debates (Hansard), 22 October 1929 at 683; Victoria, Legislative Assembly, Parliamentary Debates (Hansard), 10 November 1931 at 4097.

    [69]Johanson (1979) 143 CLR 376.

34. A conceptual ancestor of the modern control order, referred to by Gleeson CJ in Thomas v Mowbray under the general rubric of Blackstone's "preventive justice", was the "ancient power of justices and judges to bind persons over to keep the peace"[70].  Gummow and Crennan JJ pointed out that the jurisdiction to bind over could be exercised in respect of a risk or threat of criminal conduct against the public at large and was not dependent upon a conviction[71].  As their Honours said[72]:

    "The matters of legal history … do support a notion of protection of public peace by preventative measures imposed by court order, but falling short of detention in the custody of the State."

    [70](2007) 233 CLR 307 at 329 [16]; [2007] HCA 33. See Devine v The Queen (1967) 119 CLR 506 at 513-514 per Windeyer J; [1967] HCA 35.

    [71](2007) 233 CLR 307 at 357 [120].

    [72](2007) 233 CLR 307 at 357 [121].

35. The State of South Australia relied upon the analogy between the control order and orders binding persons by recognisance to keep the peace.  It referred to the Summary Procedure Act 1921 (SA), which confers power upon courts to make restraining orders against persons where there is "a reasonable apprehension" that the person may behave in an intimidating or offensive manner or cause personal injury or damage to property[73]. An important feature of such orders, which distinguishes them from the control order under the SOCC Act, is that they depend upon judgments to be made by the court about the conduct and apprehended conduct of the defendant. No such judgment conditions the obligation to make a control order under s 14(1) of the SOCC Act even though it may have a part to play in relation to the conditions which are imposed. On this matter I agree also with the observations of Kiefel J[74].

    [73]Summary Procedure Act 1921 (SA), s 99; see also s 99AA.

    [74]Judgment of Kiefel J at [473]-[474].

36. Commonwealth legislation directed at certain classes of organisation regarded as seditious, subversive or revolutionary has included the Unlawful Associations Act 1916 (Cth)[75], provisions of the Immigration Act 1901 (Cth) relating to the deportation of members of revolutionary organisations[76] and Pt IIA of the Crimes Act 1914 (Cth). The provisions of Pt IIA declare associations which advocate or encourage the overthrow, by revolution, sabotage, force or violence, of the Constitution or the established government of the Commonwealth or a State to be unlawful associations[77].  Part IIA also provides for the Attorney-General to make an application to the Federal Court for a declaration that a body is an unlawful association[78].  These provisions have been little used[79].

    [75]Considered in Pankhurst v Kiernan (1917) 24 CLR 120; [1917] HCA 63.

    [76]Immigration Act 1901 (Cth), s 8AA (inserted by the Immigration Act 1925 (Cth)); as to the validity of this provision see Ex parte Walsh and Johnson; In re Yates (1925) 37 CLR 36.

    [77]Crimes Act 1914 (Cth), s 30A(1)(a).

    [78]Crimes Act 1914 (Cth), s 30AA.

    [79]Douglas, "Keeping the Revolution at Bay:  The Unlawful Associations Provisions of the Commonwealth Crimes Act", (2001) 22 Adelaide Law Review 259; Australian Law Reform Commission, Fighting Words:  A Review of Sedition Laws in Australia, Report No 104, (2006) at 86-100.  See also R v Hush; Ex parte Devanny (1932) 48 CLR 487; [1932] HCA 64.

37. In recent years a range of statutory mechanisms have been adopted in Australia and in other countries to meet the wider challenge of organised crime, which sometimes operates at a national and international level.  Two such mechanisms are civil and criminal assets forfeiture.  Civil assets forfeiture was considered in International Finance Trust Co Ltd v New South Wales Crime Commission[80].  The mechanism under consideration in this case is intended to be preventative.  It strikes at the freedom of association of members of criminal organisations and at participation in the activities of such organisations.  A longstanding example of legislation directed at participation in organised criminal activity in the United States is Ch 96 of Title 18 of the United States Code, entitled "Racketeer Influenced and Corrupt Organizations"[81].  International support for domestic laws directed at criminal organisations is reflected in Art 5 of the United Nations Convention against Transnational Organized Crime (2000)[82], which provides for the criminalisation of active participation in an "organized criminal group".  Examples of legislation directed to participation and membership are to be found, inter alia, in the United Kingdom[83], Canada[84] and New Zealand[85].

    [80](2009) 240 CLR 319 at 344-345 [25]-[29] per French CJ; [2009] HCA 49.

    [81]18 USC §§1961-1968 (2006), replicated in many States of the USA; see generally Mecone, Shapiro and Martin, "Racketeer Influenced and Corrupt Organizations", (2006) 43 American Criminal Law Review 869.

    [82]2225 UNTS 209 (opened for signature 12 December 2000, entered into force 29 September 2003).  Australia signed the Convention on 13 December 2000 and became a party to it on 27 May 2004.

    [83]Serious Crime Act 2007 (UK), Pt 1.  In s 5, provision is made for serious crime prevention orders restricting, inter alia, the means by which a person communicates or associates with others.

    [84]Criminal Code RSC 1985, c C-46, s 467.11 (which creates the offence of participating in or contributing to any activity of a criminal association).

    [85]Crimes Act 1961 (NZ), s 98A.

38. A number of Australian States and Territories have enacted legislation specifically directed against participation in criminal organisations[86].  A meeting of the Standing Committee of Attorneys-General in April 2009 agreed that States and Territories should consider introducing legislative measures including "consorting or similar provisions that prevent a person associating with another person who is involved in organised criminal activity as an individual or through an organisation"[87]. In 2010, the Parliament of the Commonwealth enacted Pt 9.9 of the Criminal Code (Cth) ("the Code"), which creates offences relating to association in respect of serious criminal activity and support for "criminal organisations"[88]. There is no provision for declarations and control orders in Pt 9.9.

    [86]Crimes (Criminal Organisations Control) Act 2009 (NSW); Serious Crime Control Act 2009 (NT); Criminal Organisation Act 2009 (Q).

    [87]Australia, Standing Committee of Attorneys-General, Communiqué, 16-17 April 2009 at 8.

    [88]Introduced into the Code by the Crimes Legislation Amendment (Serious and Organised Crime) Act (No 2) 2010 (Cth).

39. The Code makes provision for the executive listing of "terrorist organisations" by regulation and for the making, by courts, of control orders against participants in such organisations or for the prevention of terrorist acts[89].  The nature of the power conferred upon the Federal Magistrates Court to make such orders was considered in Thomas v Mowbray. The regime created by the Code is significantly different from that created by s 14(1) of the SOCC Act[90]. Importantly, the Code does not purport to impose any obligation upon a court to make a control order upon the basis of an executive determination or otherwise. Whether a control order is made or not is in the discretion of the court[91].  The court cannot make such an order unless it is satisfied, on the balance of probabilities, that to do so would substantially assist in preventing a terrorist act or that the person in question has provided training to, or received training from, a listed terrorist organisation.  The issues in Thomas v Mowbray were not the issues before this Court in this appeal. They were whether the power conferred on a court by Div 104 of the Code was judicial power, whether the Code authorised its exercise in a manner contrary to Ch III and whether there was a head of legislative power to support it.

    [89]Code, Divs 102 and 104.

    [90]The submission of the Solicitor-General for New South Wales, that it was difficult to tell the difference between the two regimes, must be rejected.

    [91]Code, s 104.4.

40. There are differences between the provisions of the SOCC Act relating to declarations and control orders and analogous provisions in other State and Territory jurisdictions. In New South Wales and the Northern Territory declarations of organisations are made on the application of the Commissioner of Police by a judge declared by the Attorney-General, with the judge's consent, to be an "eligible Judge"[92].  Beyond drawing attention to these provisions, it is not necessary for present purposes to express any view on whether eligible judges act as personae designatae or discharge an administrative rather than judicial function in making such declarations[93].  The Commissioner of Police may also apply to the Supreme Court in both of those jurisdictions for interim control orders or control orders which that Court has a discretion to grant or refuse[94].  The Criminal Organisation Act 2009 (Q) provides for the Supreme Court, on the application of the Commissioner of Police and in its discretion, to declare organisations and to make control orders[95].

    [92]Crimes (Criminal Organisations Control) Act 2009 (NSW), ss 5, 6 and 9; Serious Crime Control Act 2009 (NT), ss 12, 13 and 14.

    [93]As to the use of federal judges as personae designatae to exercise non-judicial functions compatible with their judicial role, see Hilton v Wells (1985) 157 CLR 57; [1985] HCA 16; Grollo v Palmer (1995) 184 CLR 348; [1995] HCA 26. The application of compatibility requirements to State judges acting persona designata was raised by McHugh J in Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51 at 117-118 and variously discussed in Campbell, "Constitutional Protection of State Courts and Judges", (1997) 23 Monash University Law Review 397 at 413-415; Carney, "Wilson & Kable:  The Doctrine of Incompatibility – An Alternative to Separation of Powers?", (1997) 13 Queensland University of Technology Law Journal 175 at 191; Johnston and Hardcastle, "State Courts:  The Limits of Kable", (1998) 20 Sydney Law Review 216 at 229-230.

    [94]Crimes (Criminal Organisations Control) Act 2009 (NSW), ss 14, 19 and 21; Serious Crime Control Act 2009 (NT), s 25.

    [95]Criminal Organisation Act 2009 (Q), ss 10 and 18.

41. As appears from the preceding, the SOCC Act does not introduce novel or unique concepts into the law in so far as it is directed to the prevention of criminal conduct by providing for restrictions on the freedom of association of persons connected with organisations which are or have been engaged in serious criminal activity. The area of constitutional scrutiny in this appeal is the interaction between the Attorney-General's executive declaration of an organisation and the conditional obligation imposed upon the Magistrates Court to make a control order on the application of the Commissioner. It was the constitutional propriety of that interaction which concerned the Full Court of the Supreme Court of South Australia.

    The decision of the Full Court

42. In the Full Court, Bleby J, with whom Kelly J agreed[96], summed up his opinion of the operation of s 14(1) of the SOCC Act as follows[97]:

    "Thus it can be seen that the process of depriving a person of their right to and freedom of association on pain of imprisonment for up to five years, although formally performed by a State court which exercises federal jurisdiction, is in fact performed to a large extent by a member of the Executive Government in a manner which gives the appearance of being done by the court.  But the process is devoid of the fundamental protections which the law affords in the making of such an order, namely, the right to have significant and possibly disputed factual issues determined by an independent and impartial judicial officer and the right to be informed of and to answer the case put against the person."

    His Honour characterised s 14(1) of the SOCC Act as requiring the Magistrates Court to "act without question on a declaration which represents the finding of the Attorney-General on matters critical to the making of the control order, and without the right to a fair hearing"[98].  He held that the "unacceptable grafting of non-judicial powers onto the judicial process in such a way that the outcome is controlled, to a significant and unacceptable extent, by an arm of the Executive Government … destroys the court's integrity as a repository of federal jurisdiction"[99].

    [96](2009) 105 SASR 244 at 305 [277].

    [97](2009) 105 SASR 244 at 283 [166].

    [98](2009) 105 SASR 244 at 283 [167].

    [99](2009) 105 SASR 244 at 281 [157].

43. Bleby J attached weight to the requirement of the SOCC Act that the most complex factual matters to be established before a control order could be made were to be determined by the Attorney-General[100]. I agree with Hayne J that the question whether the Magistrates Court is required by s 14(1), in appearance or reality, to act as an instrument of the executive is not determined by a comparison of the respective size or complexity of the tasks undertaken by the executive and the judicial branches of government. Rather it depends upon the nature of the relationship that the SOCC Act establishes between those two branches[101].  The proposition embodied in the second ground of appeal raised by the State of South Australia and set out below is correct but does not lead to a determination of the appeal in favour of the State.

    [100](2009) 105 SASR 244 at 280 [154]-[155].

    [101]Judgment of Hayne J at [199]-[200].

44. Bleby J also placed reliance on the fact that the Attorney-General, in making a declaration, could act upon information classified by the Commissioner as "criminal intelligence", which information could not be disclosed to anyone, including a defendant to a s 14(1) application, without the authority of the Commissioner[102].  His Honour drew a distinction between these matters and the criminal intelligence provisions considered in K‑Generation Pty Ltd v Liquor Licensing Court[103], holding that the protections which preserved the legislation in that case were absent from the SOCC Act[104]. I agree, however, with Gummow J that the distinction drawn by Bleby J between s 21(2) of the SOCC Act and the like provisions in question in K‑Generation Pty Ltd should be rejected[105].

    [102](2009) 105 SASR 244 at 282 [164].

    [103](2009) 237 CLR 501.

    [104](2009) 105 SASR 244 at 282 [163].

    [105]Judgment of Gummow J at [121]-[125].

45. In dissent, White J held that the jurisdiction of the Magistrates Court was not so subordinated to the decision-making power of the executive, and its manner of exercise not so directed, that the Court's independence and capacity to act impartially was impaired[106].  His Honour had regard to the matters upon which the Magistrates Court had to adjudicate in an application under s 14(1), including the fact of the defendant's membership of the organisation[107], the content of the control order[108] and the matters listed in s 14(6)[109]. His Honour also had regard to the need for the Magistrates Court to take into account the freedoms protected in s 4(2) relating to advocacy, protest, dissent and industrial action[110].  His Honour concluded that it could not reasonably be said that s 14(1) directed the Magistrates Court in an impermissible way as to the manner and outcome of the exercise of its jurisdiction.  The obligation to make a control order with a specified minimum outcome was not in context sufficient to warrant that conclusion[111].

    [106](2009) 105 SASR 244 at 305 [273].

    [107](2009) 105 SASR 244 at 287 [190].

    [108](2009) 105 SASR 244 at 288 [192]-[193].

    [109](2009) 105 SASR 244 at 288-289 [195].

    [110](2009) 105 SASR 244 at 289 [196].

    [111](2009) 105 SASR 244 at 291 [207].

    Grounds of appeal

46. In its proposed further amended notice of appeal the State of South Australia asserted that the Full Court misapplied the principle recognised in Kable v Director of Public Prosecutions (NSW)[112] and erred by:

    1.having regard to the process by which the legislature chose to select a particular fact (the declaration of the Club), proof of which, to the satisfaction of the Magistrates Court to the required standard, along with other facts, served as the trigger for a legislatively prescribed consequence;

    2.drawing a comparison between the significance and complexity of the functions conferred by the SOCC Act on the Magistrates Court and those conferred by the Act on the Attorney-General; and

    3.having regard to whether the functions conferred by the Act on the Attorney-General, as opposed to those conferred on the Magistrates Court, might offend the Kable doctrine.

    [112](1996) 189 CLR 51.

47. It is useful, before turning to the merits of the appeal, to review the way in which Ch III of the Constitution rests upon assumptions about the continuing existence and essential characteristics of State courts as part of a national judicial system and the implications that this Court has drawn from those assumptions. The assumptions are historical realities and not the product of judicial implication.

    State courts exercising federal jurisdiction – an economical proposal

48. Early drafts of the Australian Constitution prepared by Andrew Inglis Clark and Charles Kingston proposed distinct State and federal judicatures.  In that respect, they followed the United States model subject to Inglis Clark's "innovation", which provided that the Federal Supreme Court should hear appeals from all final judgments of the Supreme Courts of the States[113].

    [113]Williams, The Australian Constitution:  A Documentary History, (2005) at 69.

49. The proposal that the Parliament should be able to invest State courts with federal jurisdiction did not emerge until the 1897 session of the Australasian Federal Convention in Adelaide.  It appears to have been inspired by concerns raised in the Judiciary Committee of the Convention about the cost of establishing federal courts.  A telegram exchange ensued between Josiah Symon, the chairman of the Committee, James Walker, a member of the Committee, and Sir Samuel Griffith, who was in Brisbane in April 1897 when the proposal was raised.  Griffith gave it his blessing by telegram[114].

    [114]Joyce, Samuel Walker Griffith, (1984) at 204-205; La Nauze, The Making of the Australian Constitution, (1972) at 130-131.

50. In his written critique of the 1897 draft Constitution, Griffith described the proposed power to invest State courts with federal jurisdiction as "[a]n important and valuable alteration in substance", one which would "obviate the immediate necessity of establishing Federal Circuit Courts"[115].  An emphasis on economy was apparent from Symon's explanation, to the 1898 session of the Convention at Melbourne, of the rationale for using State courts[116]:

    "The method adopted in the United States of having circuit courts, and so on, all over the country has been wiped out here, so that the Federal Parliament may save that expense, and the Parliament has been given power to vest the judicial control of matters not to be dealt with by the High Court in the state courts."

    As La Nauze observed[117]:

    "Thus was born, out of practical considerations rather than high constitutional theory, what a famous Chief Justice of the High Court of Australia was to describe in characteristic language as the 'autochthonous expedient of conferring federal jurisdiction on State courts'."

    One does not look first to overarching principles of constitutionalism as a source of the limitations on State legislative power which have been expounded under the general rubric of the "Kable doctrine".  Rather, it is necessary to focus upon the text and structure of Ch III and the underlying historically based assumptions about the courts, federal and State, upon which the judicial power of the Commonwealth can be conferred.  It is in the need for consistency with those assumptions that the implied limitations find their source.

    [115]Williams, The Australian Constitution:  A Documentary History, (2005) at 622.

    [116]Official Record of the Debates of the Australasian Federal Convention, (Melbourne), 31 January 1898 at 298.

    [117]La Nauze, The Making of the Australian Constitution, (1972) at 131.  The "characteristic language" of Sir Owen Dixon appeared in the joint judgment in R v Kirby; Ex parte Boilermakers' Society of Australia (1956) 94 CLR 254 at 268 per Dixon CJ, McTiernan, Fullagar and Kitto JJ; [1956] HCA 10; see also Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51 at 110 per McHugh J, 139-140 per Gummow J, and the references to the economic imperative of the autochthonous expedient in Zines, Cowen and Zines's Federal Jurisdiction in Australia, 3rd ed (2002) at 195, citing The Commonwealth v Limerick Steamship Co Ltd (1924) 35 CLR 69 at 90 per Isaacs and Rich JJ; [1924] HCA 50 and Bailey, "The Federal Jurisdiction of State Courts", (1940) 2 Res Judicatae 109.

51. The linkage between assumptions about courts at the time of Federation and the national character of the Australian judiciary was foreshadowed in the commentary offered by Quick and Garran on s 77 in 1901[118]:

    "It is noteworthy that in this section, as elsewhere in the Constitution, the judicial department of the Commonwealth is more national, and less distinctively federal, in character, than either the legislative or the executive departments. The High Court, as has already been pointed out …, is not only a federal, but a national court of appeal; it has appellate jurisdiction in matters of the most purely provincial character as well as in matters of federal concern. Confidence in the integrity and impartiality of the Bench prevents any jealousy or distrust of this wide federal jurisdiction; and the same confidence makes it possible to contemplate without misgiving the exercise of federal jurisdiction by State courts – subject, of course, to the controlling power of the Federal Parliament."  (emphasis added)

    [118]Quick and Garran, The Annotated Constitution of the Australian Commonwealth, (1901) at 804.

52. It is appropriate in this context to refer to the status of the Magistrates Court of South Australia as a court of the State.

    The Magistrates Court of South Australia

53. At the time of the Convention Debates in 1891 and 1897-1898 each of the Australian colonies had a two- or three-tiered judicial system with a Supreme Court at its apex.  Each of the colonies had an active magistracy as part of that system.  After 1850 the paid magistracy began to be regarded in most jurisdictions as made up of "officials who were basically judicial-style functionaries"[119].  Nevertheless persons could be appointed as magistrates who were not qualified lawyers and not all magistrates were independent of administrative control by heads of department of the executive government.  As Gummow, Hayne and Crennan JJ pointed out in Forge v Australian Securities and Investments Commission, Justices of the Peace and stipendiary magistrates formed part of the colonial and State public services and were subject to disciplinary and like procedures applicable to public servants generally[120].  This was perhaps an example of the general proposition that their Honours advanced that[121]:

    "History reveals that judicial independence and impartiality may be ensured by a number of different mechanisms, not all of which are seen, or need to be seen, to be applied to every kind of court …  The independence and impartiality of inferior courts, particularly the courts of summary jurisdiction, was for many years sought to be achieved and enforced chiefly by the availability and application of the Supreme Court's supervisory and appellate jurisdictions and the application of the apprehension of bias principle in particular cases."

    [119]Castles, An Australian Legal History, (1982) at 327.

    [120](2006) 228 CLR 45 at 82 [82]; [2006] HCA 44.

    [121](2006) 228 CLR 45 at 82-83 [84].

54. From 1985 all appointments of magistrates were made from the ranks of qualified practitioners[122].  Justice Thomas accurately characterised the Australian magistracy when he wrote in 1991[123]:

    "Clearly the Magistrates' Courts are simply the courts of first instance in the judicial structure throughout Australia."

    As a general proposition magistrates courts are courts of the States for the purpose of receiving federal jurisdiction[124].  This is true of the Magistrates Court of South Australia.

    [122]Thomas, "The Ethics of Magistrates", (1991) 65 Australian Law Journal 387 at 389.

    [123]Thomas, "The Ethics of Magistrates", (1991) 65 Australian Law Journal 387 at 389.

    [124]As to the characterisation of members of the Federal Magistrates Court as Justices of a court created by the Parliament under s 72 of the Constitution, see Re Bryant; Ex parte Guarino (2001) 75 ALJR 478 at 480 [13] per Hayne J; 178 ALR 57 at 60; [2001] HCA 5.

55. The history of the magistracy in South Australia dates back to 1837[125].  In 1982, King CJ said of the magistracy[126]:

    "Every consideration which renders a judiciary independent of the government, essential to the proper functioning of society under the rule of law, is as valid in relation to the magistracy as to the other two tiers of the judiciary."

    [125]The history of the magistracy beginning in 1837 with the creation of Courts of General or Quarter and Petty Sessions was set out at length in R v Moss; Ex parte Mancini (1982) 29 SASR 385 at 397-421 per Wells J. See also Lowndes, "The Australian Magistracy: From Justices of the Peace to Judges and Beyond", 74 Australian Law Journal 509 (Part I); 592 (Part II).

    [126]R v Moss; Ex parte Mancini (1982) 29 SASR 385 at 389.

56. The Magistrates Court of South Australia was established by the Magistrates Court Act 1991 (SA)[127].  It is a court of record[128], divided into criminal and petty sessions divisions and three civil divisions[129].  The three civil divisions are "General Claims", "Consumer and Business" and "Minor Claims".  The Court has defined civil, criminal and petty sessions jurisdictions[130] and "any jurisdiction conferred on it by statute"[131].  The rules of the Court may assign particular statutory jurisdictions conferred by or under another Act either to the Civil (General Claims) Division or to the Criminal Division of the Court[132].  There is provision for appeals from the Court to the Supreme Court of South Australia[133] and for reservation of questions of law arising in a civil action (except a minor civil action) for determination by the Supreme Court[134].

    [127]Magistrates Court Act 1991 (SA), s 4.

    [128]Magistrates Court Act, s 5. See Waterside Workers' Federation of Australia v J W Alexander Ltd (1918) 25 CLR 434 at 454-456 per Barton J; [1918] HCA 56.

    [129]Magistrates Court Act, s 7(1).

    [130]Magistrates Court Act, ss 8, 9 and 9A.

    [131]Magistrates Court Act, s 10(1).

    [132]Magistrates Court Act, s 10(2). Rules of the Court are made by the Chief Magistrate, the Deputy Chief Magistrate and any two or more other magistrates: s 49(2).

    [133]Magistrates Court Act, s 40.

    [134]Magistrates Court Act, s 41.

57. The Magistrates Court participates in the State Courts Administration Council pursuant to the Courts Administration Act 1993 (SA). The members of the Court are not members of the Public Service[135].  White J said in Frederick v South Australia[136]:

    "The effect of the regime arising from the Magistrates Act, the Magistrates Court Act, and the [Courts Administration Act] is that magistrates are judicial officers who, as one would expect, exercise their judicial functions independently of the Executive."

    His Honour's remarks and the legislative framework which he considered are to be understood against an historical background in which magistrates in South Australia, like magistrates in the other States of Australia, had been members of the Public Service and often subject, in administrative matters, to the same heads of department as prosecuting counsel appearing before them[137].

    [135]See Public Sector Act 2009 (SA), s 24.

    [136](2006) 94 SASR 545 at 597 [222]. The Magistrates Act referred to was the Magistrates Act 1983 (SA).

    [137](2006) 94 SASR 545 at 597 [223].

58. There is no doubt, and it was not contended otherwise, that the Magistrates Court of South Australia is a court in which the Parliament of the Commonwealth can invest federal jurisdiction under s 71 of the Constitution. Nor is there any doubt, and it was not contended otherwise, that a member of the Magistrates Court is a judge for the purposes of s 79 of the Constitution, which provides that "[t]he federal jurisdiction of any court may be exercised by such number of judges as the Parliament prescribes"[138].  In 2008 there were no fewer than 72 Commonwealth statutes which conferred jurisdiction on the Magistrates Court of South Australia[139].  Established as a court by the State, the Magistrates Court cannot be deprived by the State "of those minimum characteristics of the institutional independence and impartiality identified in the decisions of this Court"[140]. For, as appears below, the continuing existence of those characteristics is an assumption which underlies Ch III of the Constitution.

    [138]See Clark v Federal Commissioner of Taxation (2008) 171 FCR 1 at 9 [35] per Branson and Sundberg JJ.

    [139]Clark v Federal Commissioner of Taxation (2008) 171 FCR 1 at 3 [8] per Branson and Sundberg JJ.

    [140]K-Generation Pty Ltd (2009) 237 CLR 501 at 544 [153] per Gummow, Hayne, Heydon, Crennan and Kiefel JJ.

    Constitutional assumptions about courts

59. The essentials of the British justice system travelled to and settled in the Australian colonies long before the Federation movement began.  The courts of Britain's colonies, including the Australian colonies[141]:

    "in exercising their power to hear and determine, … did so in the manner of their judicial counterparts in the place of the law's origin".

    As Windeyer J said in Kotsis v Kotsis[142]:

    "The nature of a court and the functions of court officers were matters that were well known in England long before the Australian colonies began. The meaning of the word 'court' has thus come to us through a long history; and it is by the light of that that it is to be understood in ss 71, 72 and 73 of the Constitution."

    [141]McPherson, The Reception of English Law Abroad, (2007) at 405.

    [142](1970) 122 CLR 69 at 91; [1970] HCA 61.

60. The 19th-century understanding of a "court of justice", extant at the time of the drafting of the Constitution, was explained in part in the frequently cited judgment of Fry LJ in Royal Aquarium and Summer and Winter Garden Society Ltd v Parkinson[143].  His Lordship spoke of "the fairness and impartiality which characterize proceedings in Courts of justice, and are proper to the functions of a judge"[144].  He described courts as "for the most part, controlled and presided over by some person selected as specially qualified for the purpose" and said "they have generally a fixed and dignified course of procedure, which tends to minimise the risks that might flow from [their] absolute immunity"[145].  The application of that concept to courts contemplated as repositories of the judicial power of the Commonwealth was accepted by Isaacs and Rich JJ in Waterside Workers' Federation of Australia v J W Alexander Ltd, citing Fry LJ in connection with the proposition that[146]:

    "the Federal Constitution is specific that judicial power shall be vested in Courts, that is, Courts of law in the strict sense".

    The understanding of what constitutes "Courts of law" may be expressed in terms of assumptions underlying ss 71 and 77(iii) in relation to the courts of the States.

    [143][1892] 1 QB 431.

    [144][1892] 1 QB 431 at 447.

    [145][1892] 1 QB 431 at 447.

    [146](1918) 25 CLR 434 at 467.

61. There are three overlapping assumptions which, as a matter of history and as a matter of inference from the text and structure of Ch III, underlie the adoption of the mechanism reflected in s 77(iii) of the Constitution. The first is the universal application throughout the Commonwealth of the rule of law, an assumption "upon which the Constitution depends for its efficacy"[147].  The second is that the courts of the States are fit, in the sense of competent, to be entrusted with the exercise of federal jurisdiction.  As Professor Sawer observed[148]:

    "The State Supreme Courts were of a very high and uniform calibre – a situation in marked contrast with that which obtained in the United States shortly after its establishment – and there was no substantial ground for fearing that they would be biased or parochial in their approach to federal questions."

    The generality of the wording of ss 71 and 77(iii) indicates that the assumption of competence extends to all courts of the States, albeit the supervisory role of the Supreme Courts, as was submitted by the Solicitor-General of the Commonwealth, reinforces the independence and impartiality of inferior State courts and contributes to the fulfilment of the constitutional imperative recognised in Kable[149].

    [147]Thomas v Mowbray (2007) 233 CLR 307 at 342 [61] per Gummow and Crennan JJ; APLA Ltd v Legal Services Commissioner (NSW) (2005) 224 CLR 322 at 351 [30] per Gleeson CJ and Heydon J; [2005] HCA 44; Australian Communist Party v The Commonwealth (1951) 83 CLR 1 at 193 per Dixon J; [1951] HCA 5.

    [148]Sawer, Australian Federalism in the Courts, (1967) at 20-21.  And see The Federalist, No 81 (attributed to Hamilton), in The Federalist, (1788), vol 2, 310 at 317.

    [149]For example, Fingleton v Christian Ivanoff Pty Ltd (1976) 14 SASR 530, in which the Full Court of the Supreme Court of South Australia held a special magistrate disqualified from hearing a complaint because, after a departmental rearrangement, the magistrate and the solicitor appearing on the complaint were both in the same department of the Public Service with the same departmental head.

62. The third assumption is that the courts of the States continue to bear the defining characteristics of courts and, in particular, the characteristics of independence, impartiality, fairness and adherence to the open-court principle. This formulation is deliberately non-exhaustive. In considering the attributes of courts contemplated by Ch III of the Constitution it is necessary to bear in mind the cautionary observation of Gummow, Hayne and Crennan JJ in Forge that[150]:

    "It is neither possible nor profitable to attempt to make some single all-embracing statement of the defining characteristics of a court."

    Nevertheless, as their Honours added[151]:

    "An important element, however, in the institutional characteristics of courts in Australia is their capacity to administer the common law system of adversarial trial.  Essential to that system is the conduct of trial by an independent and impartial tribunal."

    At the heart of judicial independence, although not exhaustive of the concept, is decisional independence from influences external to proceedings in the court, including, but not limited to, the influence of the executive government and its authorities[152].  Decisional independence is a necessary condition of impartiality.  Procedural fairness effected by impartiality and the natural justice hearing rule lies at the heart of the judicial process[153].  The open-court principle, which provides, among other things, a visible assurance of independence and impartiality, is also an "essential aspect" of the characteristics of all courts, including the courts of the States[154].

    [150](2006) 228 CLR 45 at 76 [64].

    [151](2006) 228 CLR 45 at 76 [64] (footnote omitted).

    [152]As to the multiple location of judicial decisional independence in separation-of-powers protections providing for "judicial independence" and within the rubric of "due process" and "the rule of law", see Gerangelos, The Separation of Powers and Legislative Interference in Judicial Process, (2009) at 8.

    [153]For a recent discussion of the natural justice hearing rule in this context, see International Finance Trust Co Ltd (2009) 240 CLR 319 at 379-384 [139]-[150] per Heydon J.

    [154]Russell v Russell (1976) 134 CLR 495 at 520 per Gibbs J; see also at 505 per Barwick CJ, 532 per Stephen J; [1976] HCA 23.

63. The Convention Debates reveal implicit reflection on the principle of separation of powers in the context of a provision, later omitted, which would have barred any person holding judicial office from being appointed to or holding any executive office[155].  The limited record of consideration of judicial independence by delegates to the Convention otherwise centred around debate about the mechanism for the removal of federal judges.  A leading contributor in this respect was the South Australian Charles Kingston.  He spoke of his desire "to preserve intact the absolute independence of the judges, both in relation to the Federal Executive and the Federal Parliament; that they may have nothing to hope for, and nothing to fear either; and that in doing their duty they may feel secure in their office"[156].  The absence of any recorded debate about the principle of independence enunciated by Kingston indicates that it was uncontroversial.  The historical record does not indicate that the members of the Convention expressly adverted to the broader concept of the separation of judicial power in their debates[157]. However, that does not detract from the conclusion that the Constitution was framed on the basis of common assumptions, at least among lawyers of the day, about the nature of courts and their independence in the discharge of judicial functions.

    [155]Official Record of the Debates of the Australasian Federal Convention, (Melbourne), 1 February 1898 at 356, 358-359, 361, 363, 368, 371, 372.

    [156]Official Record of the Debates of the Australasian Federal Convention, (Adelaide), 20 April 1897 at 947; see also at 949 (Isaacs); Official Record of the Debates of the Australasian Federal Convention, (Melbourne), 1 February 1898 at 361 (Downer).

    [157]Wheeler, "Original Intent and the Doctrine of the Separation of Powers in Australia", (1996) 7 Public Law Review 96 at 99-103; Gerangelos, The Separation of Powers and Legislative Interference in Judicial Process, (2009) at 59.

64. The assumption of the continuity of the defining characteristics of the courts of the States as courts of law is supported by ss 106 and 108 of the Constitution, which, by continuing the constitutions and laws of the former colonies subject to the Constitution of the Commonwealth, continued, inter alia, the courts of the colonies and their various jurisdictions. That continuity could accommodate the extension, diminution or modification of the organisation and jurisdiction of courts existing at Federation, the creation of new courts and the abolition of existing courts (other than the Supreme Courts). Those powers in State legislatures are derived from the constitutions of the States. Until 1986, they were also derived from s 5 of the Colonial Laws Validity Act 1865 (Imp)[158]. Since 1986, they can be derived from s 2(2) of the Australia Acts[159].

    [158]28 & 29 Vict c 63.

    [159]Australia Act 1986 (Cth); Australia Act 1986 (UK); and the Australia Acts (Request) Act 1985 of each of the States.

65. The assumption that all Australian courts would retain the defining characteristics of courts of law after Federation is also implicit in covering cl 5 of the Constitution[160], which provides that "[t]his Act, and all laws made by the Parliament of the Commonwealth under the Constitution, shall be binding on the courts, judges, and people of every State and of every part of the Commonwealth". Those words represent what Quick and Garran called "a distinctly national feature of the Constitution"[161]. Within their jurisdictions the courts of the States had, by operation of covering cl 5, "jurisdiction to declare and apply the laws of the Commonwealth in all cases in which the judicial power of the Commonwealth is not necessarily exclusive of the judicial power of the States"[162]. Whether covering cl 5 also provides a source of authority for judicial review of the validity of legislation need not be explored here[163].

    [160]Section 5 of the Commonwealth of Australia Constitution Act 1900 (Imp) (63 & 64 Vict c 12).

    [161]Quick and Garran, The Annotated Constitution of the Australian Commonwealth, (1901) at 353.

    [162]MZXOT v Minister for Immigration and Citizenship (2008) 233 CLR 601 at 620 [26] per Gleeson CJ, Gummow and Hayne JJ; [2008] HCA 28, quoting Inglis Clark, Studies in Australian Constitutional Law, (1901) at 177.

    [163]Baxter v Commissioners of Taxation (NSW) (1907) 4 CLR 1087 at 1125; [1907] HCA 76; Kingston v Gadd (1901) 27 VLR 417 at 426 per Williams J, 428 per Holroyd J; Commissioner of Taxes v Parks [1933] St R Qd 306; and see Dixon, "Marshall and the Australian Constitution", (1955) 29 Australian Law Journal 420 at 425; Sawer, Australian Federalism in the Courts, (1967) at 76; cf Lindell, "Duty to Exercise Judicial Review", in Zines (ed), Commentaries on the Australian Constitution, (1977) 150 at 185-186; Thomson, "Constitutional Authority for Judicial Review:  A Contribution from the Framers of the Australian Constitution", in Craven (ed), The Convention Debates 1891-1898:  Commentaries, Indices and Guide, (1986) 173 at 188-192.

435. By reference to the past activities of members of the declared organisation (which do not necessarily include the defendant), it is the Attorney‑General's declaration which provides the essential foundation for the making of the control order. The substantive considerations relevant to whether the making of a control order was reasonably necessary for, or reasonably adapted to, achieving the objects of the Act are matters set out in s 10(1)(a) and (b) of the Act, which have been determined by the Attorney‑General before the Commissioner of Police makes an application to the court for a control order. No discretion is given to the court[594].  In this context, the appellant relied on the court's discretion to vary or revoke the order (s 20).  However, a defendant may only apply to vary or revoke the order with the permission of the court, which is conditional on the court's satisfaction that there has been a "substantial change in the relevant circumstances since the order was made".  Upon the Attorney‑General's declaration and a determination by the court of the defendant's status as a member of a declared organisation, the court must impose a control order which must, as a minimum, prohibit association with other members of declared organisations, except as specified in the order[595].  The power to prohibit association with other members of declared organisations is not conditioned on any satisfaction of the court that such other members of declared organisations engage in, or have engaged in, serious criminal activity.

     [594]Cf Fardon v Attorney‑General (Qld) (2004) 223 CLR 575 and Thomas v Mowbray (2007) 233 CLR 307.

     [595]Section 14(5)(b). Note that such an order must also prohibit possession of a dangerous article or a prohibited weapon, except as specified in the order.

436. These considerations show that, in conferring a power on the court to make control orders under s 14(1), the State requires the court to exercise judicial power to make a control order after undertaking an adjudicative process that is so confined, and so dependent on the Executive's determination in the declaration, that it departs impermissibly from the ordinary judicial processes of an independent and impartial tribunal. Specifically, s 14(1) operates to draw the court into the implementation of the legislative policy expressed in the objects of the Act. The conditions upon which the court must make a control order require the court to give effect to the determination of the Executive in the declaration (which implements the legislative policy), without undertaking any independent curial determination, or adjudication, of the claim or premise of an application for a control order by the Commissioner of Police, that a particular defendant poses risks in terms of the objects of the Act. This has the effect of rendering the court an instrument of the Executive, which undermines its independence. Section 14(1) requires the Magistrates Court of South Australia to act in a way which is incompatible with its constitutional position and the proper discharge of federal judicial responsibilities, and with its institutional integrity.

     Conclusion

437. Section 14(1) is invalid.  We agree with the orders proposed by Gummow J. 

438. KIEFEL J.   In our society it is assumed that, subject only to limitations which may be imposed by the law, each person is free to associate with another.  The Serious and Organised Crime (Control) Act 2008 (SA) ("the Act") contains provisions which have as their purpose the restriction of the ability of certain persons, identified by the Attorney-General, to associate with others. The question raised in these proceedings concerns the participation required, by s 14(1) of the Act, of the Magistrates Court of South Australia ("the Court") in achieving that objective. The question is whether the role and function given to the Court by that provision is incompatible with its role as a court which may, from time to time, exercise federal jurisdiction within the integrated Australian court system provided for by the Constitution[596].  It would be so incompatible if it compromises the institutional integrity of the Court, as explained in Kable v Director of Public Prosecutions (NSW)[597].

     [596]Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51 at 102-103 per Gaudron J, 138, 143 per Gummow J; [1996] HCA 24.

     [597](1996) 189 CLR 51.

439. A majority of a Full Court of the Supreme Court of South Australia (Bleby and Kelly JJ, White J dissenting) gave answers to questions reserved to the effect that s 14(1) of the Act was not valid and a control order made with respect to the second respondent was void and of no effect[598].  Bleby J subsequently made final orders, in the nature of declarations, in the proceedings.  The control order was later revoked by the Magistrates Court.  The issue on the appeal therefore concerns the validity of s 14(1).

     [598]Totani v South Australia (2009) 105 SASR 244.

440. The State of South Australia appeals, by special leave, from the orders containing the answers and seeks special leave to appeal from the final orders made.  In my view, that leave should be granted and the initial grant expanded.  The appeal should be dismissed with costs, for the reasons which follow.

     The facts

441. It was not in dispute in the proceedings before the Full Court of the Supreme Court of South Australia, by way of questions reserved, that the respondents were members of the Finks Motorcycle Club. The Club had been made the subject of a declaration by the Attorney-General for South Australia, on the application of the Commissioner of Police, and was therefore a "declared organisation" for the purpose of the Act. The declaration was made under s 10(1) of the Act. The Commissioner subsequently applied for and obtained a control order against the second respondent from the Court[599].

     [599]The application for an order against the first respondent was adjourned.

442. The control order was made under s 14(1) of the Act, which requires that:

     "The Court must, on application by the Commissioner, make a control order against a person (the defendant) if the Court is satisfied that the defendant is a member of a declared organisation."

     The order prohibited the second respondent from associating with other persons who are members of declared organisations. Such a prohibition is required by s 14(5)(b)(i) of the Act. The order contained one exception to that prohibition, namely an association occurring between members of a registered political party in particular circumstances and subject to certain conditions as to notification. The making of the order had the further consequence, by reason of s 35(1)(b) of the Act, that it would be an offence for any other person to associate with the second respondent on six or more occasions in a 12 month period, subject to the exceptions listed in s 35(6).

     A court's institutional integrity

443. In Forge v Australian Securities and Investments Commission[600], Gummow, Hayne and Crennan JJ explained that a court may be said to lack institutional integrity when it no longer exhibits, in some relevant respect, those defining characteristics which set courts apart from other decision-making bodies.  Their Honours acknowledged that it is not possible to make some all-encompassing statement of the minimum defining characteristics of a court[601].  Nevertheless, consideration might be given, in the first place, to what is usually involved in a judicial process.  Although it is equally difficult to state all the respects in which the institutional integrity of a court may be seen to be compromised, perceptions of a court as independent and impartial must be taken as essential to its integrity[602].

     [600](2006) 228 CLR 45 at 76 [63]; [2006] HCA 44.

     [601]Forge v Australian Securities and Investments Commission (2006) 228 CLR 45 at 76 [64]; see also North Australian Aboriginal Legal Aid Service Inc v Bradley (2004) 218 CLR 146 at 163 [30]; [2004] HCA 31; Gypsy Jokers Motorcycle Club Inc v Commissioner of Police (2008) 234 CLR 532 at 552-553 [10] per Gummow, Hayne, Heydon and Kiefel JJ; [2008] HCA 4.

     [602]Forge v Australian Securities and Investments Commission (2006) 228 CLR 45 at 67-68 [41] per Gleeson CJ, 76 [64] per Gummow, Hayne and Crennan JJ; Gypsy Jokers Motorcycle Club Inc v Commissioner of Police (2008) 234 CLR 532 at 552‑553 [10] per Gummow, Hayne, Heydon and Kiefel JJ.

444. In general terms, courts are understood to have an adjudicative role, the essential function of judicial power being the quelling of controversies[603] and the ascertainment and determination of rights and liabilities[604].  Controversies to be resolved may involve questions or issues arising under statutes.  The process involved, in the exercise of judicial power, is as stated in the often-quoted passage by Kitto J in R v Trade Practices Tribunal; Ex parte Tasmanian Breweries Pty Ltd[605]:

     "the process to be followed must generally be an inquiry concerning the law as it is and the facts as they are, followed by an application of the law as determined to the facts as determined; and the end to be reached must be an act which, so long as it stands, entitles and obliges the persons between whom it intervenes, to observance of the rights and obligations that the application of law to facts has shown to exist."

     [603]Fencott v Muller (1983) 152 CLR 570 at 608; [1983] HCA 12.

     [604]R v Kirby; Ex parte Boilermakers' Society of Australia (1956) 94 CLR 254 at 281; [1956] HCA 10.

     [605](1970) 123 CLR 361 at 374; [1970] HCA 8.

445. The process usually undertaken by courts raises questions about the role given to the Court by the Act. Its determination, of the fact of membership only, stands in contrast with that of the Attorney-General. The Attorney-General considers the activities of members of an organisation and whether those activities warrant the making of a declaration concerning the organisation, thus exposing its members to a control order and other restrictions imposed by the Act. The Court's limited determination does not explain the need for a control order, yet it was clearly considered to be important that the Court be seen to participate in the process of attaching adverse consequences to the fact of membership.

446. The making of the order raises a further question, about the law that the Court is applying.  It is a feature of this legislation that it does not proscribe any organisation and does not make membership of any organisation declared by the Attorney-General unlawful.  It is in this context that the Court's control order assumes some importance, in achieving the restriction of association of those to whom the declaration is directed.  Consideration of these matters leads to the more fundamental question about the role assigned to the Court and its relationship with legislative and executive aims.

     The statutory scheme

     Objects

447. The objects of the Act, as declared by s 4(1), are:

     "(a)     to disrupt and restrict the activities of –

     (i)       organisations involved in serious crime; and

     (ii)the members and associates of such organisations; and

     (b)to protect members of the public from violence associated with such criminal organisations."

448. It may be observed that par (b) contains the more general object.  It assumes some importance in the submissions for South Australia, which seek to explain the control order made by the Court by reference to this object.  Paragraph (a) refers to the means to be adopted in achieving the object in par (b).  A control order may be said to effect restrictions on the activities of members of such organisations, and therefore to disrupt the organisation's criminal activities, assuming of course that the organisation is involved in criminal activities and, more particularly, assuming that the person the subject of the control order is involved in such activities.

449. It was explained in the second reading speech[606] that the targets of the legislation are motorcycle gangs and their associates, because these groups were considered to commit a disproportionate number of serious crimes. But the legislation is not expressed to refer to such groups. The only limitation with respect to its application is the expressed intention that the Act not be used "in a manner that would diminish the freedom of persons in this State to participate in advocacy, protest, dissent or industrial action."[607] Otherwise the Act may extend to any organisation identified by the Attorney-General as a declared organisation, upon application by the Commissioner of Police and upon the information provided by the Commissioner. An organisation is defined to include both incorporated bodies and unincorporated groups[608].

     [606]South Australia, House of Assembly, Parliamentary Debates (Hansard), 21 November 2007 at 1805.

     [607]Serious and Organised Crime (Control) Act 2008 (SA), s 4(2).

     [608]Serious and Organised Crime (Control) Act 2008, s 3, definition of "organisation".

450. As will be explained, the only determination of fact concerning the possible involvement of members of an organisation in criminal activities is made by the Attorney-General and it may have nothing to say about the defendant to an application for a control order.  The Court is given no role to determine whether that person has any connection with criminal activities before it makes a control order.

     The declaration

451. The first step towards restricting association between the members of an organisation and other persons is the declaration made by the Attorney-General.  The Attorney-General may make a declaration with respect to an organisation if the Attorney is satisfied, in terms of s 10(1), that:

     "(a)members of the organisation associate for the purpose of organising, planning, facilitating, supporting or engaging in serious criminal activity; and

     (b)the organisation represents a risk to public safety and order in this State".

     In considering whether to make a declaration the Attorney-General is entitled to have regard to information suggesting a link between the organisation, or its members, and serious criminal activity[609].  Such information may extend to submissions from the public[610].  The Attorney-General may be satisfied that members of the organisation associate for the purpose of organising, planning, facilitating, supporting or engaging in serious criminal activity, whether or not only some of the members do so and whether or not the members also associate for other purposes[611].  A declaration may therefore be made where the information provided by the Commissioner of Police suggests that only some members are associated with criminal activity.

     [609]Serious and Organised Crime (Control) Act 2008, s 10(3).

     [610]In response to a public invitation under Serious and Organised Crime (Control) Act 2008, s 9.

     [611]Serious and Organised Crime (Control) Act 2008, s 10(4).

452. By itself, the Attorney-General's declaration carries no legal consequences for either the organisation or its members. As earlier mentioned, the Act does not proscribe an organisation the subject of a declaration, nor is membership of such an organisation made an offence. The declaration serves the purpose of identifying persons to whom other provisions of the Act will apply. It identifies persons who may be the subject of an application for a control order under s 14(1), on the basis of their membership of an organisation. A "member" is widely defined. It includes an associate member or prospective member; a person who identifies himself or herself, in some way, as belonging to the organisation; and a person who is treated by the organisation as if he or she belongs to it[612]. The declaration also serves to identify persons with whom others may not associate, on account of their membership of a declared organisation, if membership is proved. Section 35(1)(a) (as set out later in these reasons) makes it an offence to associate with them. But it is the purpose of identifying persons as possible subjects for a control order which is directly relevant in these proceedings.

     [612]Serious and Organised Crime (Control) Act 2008, s 3, definition of "member".

     The s 14(1) control order

453. It is no part of the Court's function under s 14(1) to inquire into the participation of the defendant to an application for a control order in any criminal activities.  It is obliged to make a control order without any determination other than whether that person's membership of a declared organisation has been proved.

454. The role of the Court under s 14(1) is to be distinguished from, and contrasted with, that given to the Court by s 14(2). Pursuant to s 14(2) the Court is not obliged to make a control order. It may do so when a person has been a member of a declared organisation, or engages or has engaged in serious criminal activity, and regularly associates with members of a declared organisation. It may also do so where it is shown that the person engages or has engaged in serious criminal activity and regularly associates with other persons who engage or have engaged in such activity. Moreover, the Court is entitled, under s 14(2), to consider the appropriateness of a control order in the circumstances pertaining to the person.

455. Section 14(6) requires the Court, when considering whether to issue a control order under s 14(2) or the prohibitions to be included in an order, to have regard to the following matters:

     "(a)whether the defendant's behaviour, or history of behaviour, suggests that there is a risk that the defendant will engage in serious criminal activity;

     (b)the extent to which the order might assist in preventing the defendant from engaging in serious criminal activity;

     (c)the prior criminal record (if any) of the defendant and any persons specified in the application as persons with whom the defendant regularly associates;

     (d)any legitimate reason the defendant may have for associating with any person specified in the application;

     (e)any other matter that, in the circumstances of the case, the Court considers relevant."

456. Section 14(6) is also expressed to apply to the prohibitions which may be included in a control order under s 14(1). However, as will be explained, because of the provisions of s 14(1) and (5)(b), s 14(6) only provides the Court with a basis for adding further prohibitions to those which automatically follow upon the making of a control order under s 14(1). Section 14(6) does not permit the Court to consider the above factors in connection with whether to make a control order, nor does it permit the Court to limit the order to prohibitions that are necessary in the circumstances of the case.

457. The only matter which is the subject of a determination by the Court before a control order is made under s 14(1), apart from the existence of the declaration, is whether the defendant is a member of the organisation the Attorney-General has identified in the declaration. Where the Court finds that the defendant is a member, as defined, s 14(5)(b) requires that a control order must prohibit the defendant from associating with other persons who are members of declared organisations[613] "except as may be specified in the order."

     [613]And from possessing a dangerous article or a prohibited weapon:  Serious and Organised Crime (Control) Act 2008, s 14(5)(b)(ii).

458. The Solicitor-General for South Australia submitted that the exception provided by s 14(5)(b) allows the Court to reach a conclusion as to the content of a control order made under s 14(1), based upon what is reasonably required, appropriate and adapted to achieve the object of the legislation. A provision such as that described by the Solicitor-General, which incorporates aspects of the principle of proportionality, was a feature of the legislation in Thomas v Mowbray[614], but no such provision appears in this Act. Moreover, the Act does not allow the Court to undertake such a process.

     [614](2007) 233 CLR 307; [2007] HCA 33; Criminal Code (Cth), s 104.4(1)(d).

459. Section 14(5)(b) forecloses the prospect of excepting any member of a declared organisation from the operation of a control order made under s 14(1). These persons must be made the subject of the prohibitions outlined in s 14(5)(b). A possible use of the exception, one which would not negate the prohibition in s 14(5)(b), may be to except some type of association. The order made in the present case provides an example. It excepts associations for political purposes. However, the exceptions which might be made cannot significantly enlarge the function of the Court under s 14(1) and (5)(b). These provisions do not permit the Court to consider the case at hand or the involvement of the particular defendant in criminal activities.

460. The Solicitor-General for South Australia submitted that s 14(6) could be used so that, when a control order is made under s 14(1), the order could "be tailored to meet the circumstances of the individual and the part they play within the organisation that is declared", thereby indicating a greater role for the Court in its determinations. It is difficult to see how this can be so, given that s 14(5)(b) provides the minimum content for an order under s 14(1), regardless of the matters listed under s 14(6).

461. Clearly, the matters referred to in s 14(6) may be considered and applied in the way described by the Solicitor-General when an order is made under s 14(2). But it does not seem possible that such considerations could be applied to alter, or negate, the prohibition required by s 14(5)(b). In the context of an order made under s 14(1), it would seem that s 14(6) could only apply to any further prohibitions sought by the Commissioner of Police[615].

     [615]Which may be made under Serious and Organised Crime (Control) Act 2008, s 14(5)(a).

462. The making of a control order under s 14(1) exposes the person subject to it to punishment for any disobedience of its terms, either by way of contempt or by reason of s 22(1), which renders it an offence to contravene or fail to comply with such an order. This offence carries a maximum penalty of five years imprisonment[616]. However, a control order is productive of serious disadvantage for the person subject to it from the moment it is made. The making of a control order, without more, prevents that person from associating with anyone who falls within the definition of a "member" of a declared organisation. It has the further effect of preventing others from associating with that person, by reason of s 35(1)(b). Section 35(1) provides:

     "A person who associates, on not less than 6 occasions during a period of 12 months, with a person who is –

     (a)      a member of a declared organisation; or

     (b)      the subject of a control order,

     is guilty of an offence."  (emphasis added)

     This offence also carries a maximum penalty of imprisonment for five years.

     [616]So long as the person knew that the act or omission constituted a contravention of, or failure to comply with, the order, or was reckless as to that fact:  Serious and Organised Crime (Control) Act 2008, s 22(2).

463. A person may be taken to "associate" with another person by any means of communication[617].  Only certain associations, such as those between "close family members"[618], and those for professional, business, educational, rehabilitation and some other purposes, are exempt from the operation of s 35[619].

     [617]Serious and Organised Crime (Control) Act 2008, s 35(11)(a).

     [618]Defined by Serious and Organised Crime (Control) Act 2008, s 35(11)(b).

     [619]Serious and Organised Crime (Control) Act 2008, s 35(6).

     Summary

464. The scheme of the Act may be summarised as follows. On the application of the Commissioner of Police, the Attorney-General, if satisfied of a link between some persons connected with an organisation and crime, may make a declaration affecting the organisation as a whole. By that means, each person coming within the wide definition of a "member" of that organisation is liable, upon proof of their membership by the Commissioner of Police, to have a control order made against them, prohibiting their association with other members of the organisation and severely curtailing the ability of other persons to associate with them. The Court, although having determined nothing about the activities of members of the organisation and nothing about whether the defendant to the application has had any connection with criminal activities, is obliged by the Act to make an order, containing the prohibition referred to, the making of which has the effect of further restricting that person's association with others. The Court is obliged to do so although membership of the organisation, declared or otherwise, is not made unlawful by the Act. As was acknowledged in the second reading speech, the legislation "grants unprecedented powers to the police and the Attorney-General", yet itself imposes "no direct punishment on an organisation or its members."[620]  It is the Court that might be seen to provide for some such effect upon the members.

     [620]South Australia, House of Assembly, Parliamentary Debates (Hansard), 21 November 2007 at 1806, 1807.

     The role of the Court

465. It has already been observed that the determination made by the Court under s 14(1) is very limited – to a factual finding about a defendant's membership of an organisation identified by the Attorney-General as a declared organisation.  The Solicitor-General of Queensland, which intervened in the proceedings, pointed out that it is not uncommon for legislation to involve antecedent decision-making by the Executive, to which a court gives effect in later proceedings.  In such cases the Executive's determination may be of a more detailed and complex nature than that of a court.

466. An example provided of such legislation was the Customs Act 1901 (Cth), under which it is an offence to import "prohibited imports"[621].  The offence is one of strict liability[622].  All goods which are the subject of the prohibition are identified by executive determination[623].  The court's role is to determine whether such goods have been imported.  Such a determination may not always be a simple matter.  Nevertheless, the point is made.

     [621]Customs Act 1901 (Cth), s 233.

     [622]Customs Act 1901, s 233(1AB).

     [623]By regulation, under Customs Act 1901, s 50.

467. It may be accepted that a quantitative comparative assessment of a court's role against another's may not be particularly useful in resolving questions about whether the court's institutional integrity is compromised.  A court may have regard to facts established by others, and its role may be more limited, yet that role may still be readily identifiable as involving an independent judicial function, as is the case in the example given.  But the example also invites a comparison with the role given to the Court by s 14(1), a comparison which highlights important features of that role.  The Court, acting under s 14(1), is not involved in a determination as to whether an offence has been committed.  There is no offence to which its processes are directed; yet it is obliged to make an order, the nature of which suggests that some such process has been undertaken.  Far from explaining the role of the Court under s 14(1), this comparison raises questions about it.

468. Other examples may be given of legislation whereunder courts may give effect to anterior decision-making not involving a judicial function[624], but they are not apposite to the role assigned to the Court by s 14(1). The Act does not go so far as to require the recognition of, or that effect be given to, the Attorney-General's declaration by the Court. More relevant is the discrete task the Court is given, one which may be seen to involve something of a traditional judicial function, because it involves a determination of something about a person prior to an order being made.

     [624]See reasons of Gummow J at [136].

469. An order of a court may be understood as the end of the court's process, as was explained by Kitto J in the Tasmanian Breweries Case, in which the law is applied to the facts as found.  But the limited process which precedes the making of an order under s 14(1) does not disclose the basis for an order of a kind which restricts a person's ability to associate.  It is not obvious what legal criterion the Court can be said to be applying when making an order under s 14(1).  There is no offence to which it is directed, no "law" by which a rule of conduct or the existence of a duty is stated[625].  Absent any illegality attaching to membership of an organisation declared by the Attorney-General, it is difficult to see how a control order can be explained as resulting from the Court's processes.

     [625]The Commonwealth v Grunseit (1943) 67 CLR 58 at 82; [1943] HCA 47.

470. Prior to the making of the order under s 14(1), there was no restriction upon the second respondent's ability to associate with others to which the Court could give effect.  It was the Court's order which created the restriction, but not in response to a breach, by the second respondent, of any law.  The Court effects the restriction at the direction of the legislature and with respect to a person who is identified by reference to the Attorney-General's declaration.  The Court's order can only be accounted for by reference to the obligation cast upon it by s 14(1).  The fulfilment of that obligation fills the legislative gap which exists because there is no offence.  It gives effect to the outcome sought with respect to each member of the organisation the subject of the Attorney-General's declaration.

     Preventive orders

471. The Solicitor-General for South Australia submitted that it is not necessary that a court deal with an offence when it makes an order restricting freedom of association.  It was pointed out that, historically, courts have made orders in the nature of involuntary detention, without the person subject to the order having committed any offence.

472. In Chu Kheng Lim v Minister for Immigration[626] it was said that the involuntary detention of a citizen is penal or punitive and can occur only as an incident of the exclusively judicial function of adjudicating and punishing criminal guilt[627].  The statements in Lim were made subject to certain exceptions, namely, where a citizen is detained, involuntarily, in custody pending trial and in cases involving mental illness or infectious disease, but it may be that they require the further qualifications suggested by Gummow J in Fardon v Attorney‑General (Qld)[628].  In particular, some difficulty may attend questions about whether an order effects a punishment, but it is not necessary to consider such questions in this case.

     [626](1992) 176 CLR 1; [1992] HCA 64.

     [627](1992) 176 CLR 1 at 27.

     [628](2004) 223 CLR 575 at 611-612 [78]-[80]; [2004] HCA 46.

473. It may be accepted that the courts have exercised powers to restrict the liberty of persons, in certain circumstances, without an offence having been committed and without having made a determination about the person's past conduct. Orders by which a person is bound over to keep the peace provide an example. They are of long standing and may be considered the origin of modern apprehended violence orders ("AVOs")[629].  Binding over orders were described by Blackstone as expressions of "preventive justice"[630] that look to the possible future conduct of a person.  In Chu Shao Hung v The Queen[631] Kitto J explained that this ancient power of magistrates required for its exercise some conduct which, although not actually contrary to law, was contra bonos mores.  It was a power to oblige those persons, of whom there was probable ground to suspect future misbehaviour, "to give full assurance to the public" that such offence as was apprehended would not happen[632].

     [629]As Gleeson CJ observed in Thomas v Mowbray (2007) 233 CLR 307 at 328-329 [16].

     [630]Blackstone, Commentaries on the Laws of England, 15th ed (1809), bk 4, c 18 at 251.

     [631](1953) 87 CLR 575 at 589-590; [1953] HCA 33, referring to Blackstone, Commentaries on the Laws of England, 15th ed (1809), bk 4, c 18 at 256 and R v Sandbach; Ex parte Williams [1935] 2 KB 192 at 197 per Humphreys J.

     [632]Blackstone, Commentaries on the Laws of England, 15th ed (1809), bk 4, c 18 at 251.

474. It may be observed that such orders differ from the orders made under s 14(1) in at least two respects:  the former orders were directed to an obligation, at common law, to keep the peace in the interests of and for the protection of society; and they were the result of a process which might clearly be described as a judicial function.  As was observed by Gummow and Crennan JJ in Thomas v Mowbray[633], it was necessary, in asking the Federal Magistrates Court to exercise that preventive jurisdiction, to place before it material which enabled it to conclude that, in the absence of an order, there would be a breach of the peace. The Act here in question contains no antecedent obligation to which the order may be directed and allows no consideration by the Court of the need for an order. Binding over orders are therefore an imperfect analogy with control orders under s 14(1).

     [633](2007) 233 CLR 307 at 357 [120].

475. The legislation in Fardon v Attorney-General (Qld) furnishes another example of a preventive order made by a court, for the protection of the public, in accordance with its statutory objective.  The question raised by the statute in that case was whether there was "an unacceptable risk that the prisoner will commit a serious sexual offence" if he was released into the community[634] and it was a question to be answered by the Supreme Court of Queensland.  The Supreme Court could make an order only on the basis of acceptable, cogent evidence which satisfied it to a high degree of probability[635].  Its role clearly involved a judicial process and its resulting order was explicable on that basis.  There was nothing to suggest that the Supreme Court was to act "as a mere instrument of government policy"[636] or "that the jurisdiction conferred is a disguised substitute for an ordinary legislative or executive function."[637]  The institutional integrity of the Supreme Court could not be said to have been compromised by the legislation.

     [634]Dangerous Prisoners (Sexual Offenders) Act 2003 (Q), s 13(2).

     [635]Dangerous Prisoners (Sexual Offenders) Act 2003, s 13(3).

     [636]Fardon v Attorney-General (Qld) (2004) 223 CLR 575 at 592 [19] per Gleeson CJ.

     [637]Fardon v Attorney-General (Qld) (2004) 223 CLR 575 at 597 [34] per McHugh J.

476. The legislation with which the Federal Magistrates Court was concerned in Thomas v Mowbray involved the making of orders directed to the protection of society.  It may also be contrasted with the legislation here in question.  The legislation in Thomas v Mowbray permitted the making of an interim control order by a court if it was satisfied of certain matters, including that the making of the order would substantially assist in preventing a terrorist act or that the person to be subjected to the order had provided training to, or received training from, a listed terrorist organisation[638].  Under the Criminal Code (Cth) it was an offence to be a member of a terrorist organisation[639] or to train or receive training from such an organisation[640].  The Federal Magistrates Court determined matters necessary to these offences.  It was not obliged to make an interim control order but, if it did so, it was required to ensure that the restrictions, prohibitions and obligations to be imposed upon the person by the order were proportionate to the purpose of protecting the public from a terrorist attack, as earlier mentioned[641].  These are matters proper and usual to a judicial process.  They may be contrasted with the role assigned to the Court by s 14(1).

     [638]Criminal Code, s 104.4(1)(c).

     [639]Criminal Code, s 102.3(1).

     [640]Criminal Code, s 102.5(1) and (2).

     [641]Criminal Code, s 104.4(1)(d).

477. The submissions for South Australia sought to align the order made under s 14(1) and the process in which the Court is involved, by reference to the objects section of the Act and its stated purpose of the protection of the public from violence associated with criminal organisations[642].

     [642]Serious and Organised Crime (Control) Act 2008, s 4(1)(b).

478. It is possible that a control order made against a member of a declared organisation might assist in the achievement of this purpose, but this does not mean that it is correct to characterise the Court's role and the processes it undertakes by reference to that purpose.  The Court's determinations under s 14(1) have nothing to say about whether the purpose might be achieved in a particular case.  No regard may be had by the Court to a defendant's history or the prospect that he or she may have been, or might in the future be, involved in criminal activities.  Its order is not explicable on this basis.  It can only be understood to proceed upon some unstated assumption concerning all persons who are identified by the Attorney-General's declaration and by reference to the obligation cast upon the Court to make an order with respect to a person so identified.

     Conclusion

479. In Fardon v Attorney-General (Qld)[643], Gummow J referred to a statement in Mistretta v United States[644] as relevant to the principle in Kable.  It is apposite to this case.  It is that the reputation of the judicial branch may not be borrowed by the legislative and executive branches "to cloak their work in the neutral colors of judicial action."

     [643](2004) 223 CLR 575 at 615 [91].

     [644]488 US 361 at 407 (1989).

480. It is to be inferred from the Act that it is the aim of the Executive that all persons identified by the declaration made by the Attorney-General are to have their liberty to associate restricted. This is the end which the declaration serves but to which it cannot give effect. The Court is directed to bring this result about. Its action, in making the order, gives the appearance of its participation in the pursuit of the objects of the Act. Properly understood, however, the making of the order serves to disguise an unstated premise and the lack of any illegality attaching to membership of a declared organisation.

481. It follows that s 14(1) involves the enlistment of the Court to give effect to legislative and executive policy.  It impinges upon the independence of the Court and thereby undermines its institutional integrity.  Section 14(1) is invalid.