Assistant Commissioner Michael James Condon v Pompano Pty Ltd

• Jurisdiction: Australia Federal only
• Court: High Court
• Judge: French CJ,Hayne,Crennan,kiefel,belL JJ.,Gageler J.
• Judgment Date: 14 March 2013
• Neutral Citation: [2013] HCA 7,2013-0314 HCA A
• Date: 14 March 2013

[2013] HCA 7

HIGH COURT OF AUSTRALIA

French CJ, Hayne, Crenna, Kiefel, Bell and Gageler JJ

Assistant Commissioner Michael James Condon

Applicant

and

Pompano Pty Ltd & Anor

Respondents

Representation

W Sofronoff QC, Solicitor-General of the State of Queensland with G J D del Villar for the applicant (instructed by Crown Law (Qld))

B W Walker SC with A J Kimmins and P Kulevski for the respondents (instructed by Potts Lawyers)

Interveners

J T Gleeson SC, Acting Solicitor-General of the Commonwealth with N J Owens and D M Forrester for the Attorney-General of the Commonwealth, intervening (instructed by Australian Government Solicitor)

M G Sexton SC, Solicitor-General for the State of New South Wales with J G Renwick SC and K M Richardson for the Attorney-General for the State of New South Wales, intervening (instructed by Crown Solicitor (NSW))

W Sofronoff QC, Solicitor-General of the State of Queensland with G J D del Villar for the Attorney-General of the State of Queensland, intervening (instructed by Crown Law (Qld))

M P Grant QC, Solicitor-General for the Northern Territory with R H Bruxner for the Attorney-General for the Northern Territory, intervening (instructed by Solicitor for the Northern Territory)

M G Hinton QC, Solicitor-General for the State of South Australia with L K Byers for the Attorney-General for the State of South Australia, intervening (instructed by Crown Solicitor (SA))

S G E McLeish SC, Solicitor-General for the State of Victoria with G A Hill for the Attorney-General for the State of Victoria, intervening (instructed by Victorian Government Solicitor))

R M Mitchell SC with F B Seaward for the Attorney-General for the State of Western Australia, intervening (instructed by State Solicitor (WA))

Assistant Commissioner Michael James Condon v Pompano Pty Ltd

Constitutional law — Constitution, Ch III — Institutional integrity of State courts — Section 10(1) of Criminal Organisation Act 2009 (Q) (‘Act’) allowed Supreme Court of Queensland on application of commissioner of police service to declare organisation ‘criminal organisation’ — Where criminal organisation application supported by ‘criminal intelligence’ — Sections 66 and 70 of Act required closed criminal intelligence hearing with no notice given to respondents — Section 78(1) of Act required Supreme Court to close part of criminal organisation hearing when criminal intelligence considered — Whether provisions of Act denied procedural fairness to respondents to criminal organisation application — Whether provisions of Act repugnant to or inconsistent with continued institutional integrity of Supreme Court — Whether question of organisation being ‘unacceptable risk to the safety, welfare or order of the community’ suitable for judicial determination — Whether ss 9 and 106 of Act prevented Supreme Court from extending time for respondents to file response to criminal organisation application.

Words and phrases — ‘closed hearing’, ‘continued institutional integrity’, ‘criminal intelligence’, ‘criminal organisation’, ‘procedural fairness’, ‘unacceptable risk to the safety, welfare or order of the community’.

Constitution, Ch III.

Criminal Organisation Act 2009 (Q), ss 8–10, 63–66, 70, 71, 76–78, 80, 82, 106.

ORDER

The questions asked by the parties in the Special Case dated 26 October 2012 and referred for consideration by the Full Court be answered as follows:

Question 1

Is s 66 of the Criminal Organisation Act, by requiring the Court to hear an application that particular information is criminal intelligence without notice of the application being given to the person or organisation to which the information relates, invalid on the ground that it infringes Chapter III of the Constitution?

Answer

No

Question 2

Is s 70 of the Criminal Organisation Act, by requiring the Supreme Court to exclude all persons other than those listed in s 70(2) from the hearing of an application for a declaration that particular information is criminal intelligence, invalid on the ground that it infringes Chapter III of the Constitution?

Answer

No.

Question 3

Is s 78 of the Criminal Organisation Act, by requiring a closed hearing of any part of the hearing of the substantive application in which the court is to consider declared criminal intelligence, invalid on the ground that it infringes Chapter III of the Constitution?

Answer

No.

Question 4

Is s 76 of the Criminal Organisation Act, by providing that:

• (a) an informant who provides criminal intelligence to an agency may not be called or otherwise required to give evidence;

• (b) an originating application and supporting material need not include any identifying information about an informant; and

• (c) identifying information can not otherwise be required to be given to the court,

invalid on the ground that it infringes Chapter III of the Constitution?

Answer

No.

Question 5

Is s 10 of the Criminal Organisation Act, insofar as it requires the Court to have regard to information that is declared criminal intelligence which a respondent or a respondent's legal representative has not heard or received because of the effect of ss 66, 70, 76, 77, 78, 82 and 109 of the Criminal Organisation Act, and when read with ss 63(5), 64(2), 64(8), 65(4), 71(2) and 80(2), invalid on the ground that it infringes Chapter III of the Constitution?

Answer

No.

Question 6

Question 2 Is s 10(1)(c) of the Criminal Organisation Act invalid on the ground that it infringes Chapter III of the Constitution because of the nature of the judgment that it requires the Court to make?

Answer

Question 2 No.

Question 7

Is s 9 of the Criminal Organisation Act, when read with s 8(5) and s 106, invalid on the ground that it infringes Chapter III of the Constitution?

Answer

Question 2 No.

Question 8

Question 2 Who should pay the costs of the special case?

Answer

The respondents.

French CJ

Introduction

1 At the heart of the common law tradition is ‘a method of administering justice.’ 1 That method requires judges who are independent of government to preside over courts held in public in which each party has a full opportunity to present its own case and to meet the case against it. Antithetical to that tradition is the idea of a court, closed to the public, in which only one party, a government party, is present, and in which the judge is required by law to hear evidence and argument which neither the other party nor its legal representatives is allowed to hear.

2 The common law informs the interpretation of the Constitution and statutes made under it. It carries with it the history of the evolution of independent courts as the third branch of government and, with that history, the idea of a court, what is essential to that idea, and what is not.

3 The common law may be changed or abrogated by parliaments. The courts must apply the laws enacted by the parliaments. However, where the Constitution limits legislative powers and the purported exercise of those powers is challenged, the courts must also decide whether those limits have been exceeded. Their decisions will be informed by the text of the Constitution, implications drawn from it, and principles derived from the common law.

4 This Court has been asked to determine whether provisions of the Criminal Organisation Act 2009 (Q) (‘the COA’), a law of the State of Queensland, exceed constitutional limits. The limits derive from Ch III of the Constitution. State and Territory legislatures cannot confer or impose upon State or Territory courts functions which substantially impair their defining or essential characteristics as courts. The Queensland law, which is said to exceed those constitutional limits, is directed to the disruption and restriction of the activities of criminal organisations and their members and associates. It imposes upon the Supreme Court of Queensland requirements for closed hearings and the use of secret evidence known only to the judge and one of the parties, being the government party, which seeks to tender it. The provisions which are challenged concern the use, in proceedings under the COA, of information designated ‘criminal intelligence’ and the way in which the Supreme Court is required to decide whether information falls into that category. The question going to validity is whether those provisions of the COA substantially impair the defining or essential characteristics of the Supreme Court of Queensland as a court.

5 Like most cases about constitutional limits the answer is not black and white. The deeply rooted common law tradition of the open court, presided over by an independent judge according procedural fairness to both parties, is adapted to protect the public interest in cases such as those involving national security, commercially sensitive documents and the protection of police informants. Similarly, the constitutional limits do not prevent parliaments from making laws for the protection of the public interest in such areas.

6 For the reasons that follow, the impugned provisions of the COA do not substantially impair the essential characteristics of the Supreme Court of Queensland. That is to say, they have not been shown to transgress constitutional limits.

Procedural background

7 The COA provides for ‘the making of declarations and orders for the purpose of disrupting and restricting the activities of organisations involved in serious criminal activity, and of their members and associates’ 2.

8 On 1 June 2012, the Assistant Commissioner of the Queensland Police Service filed an application in the Supreme Court under s 8 of the COA seeking a declaration under s 10 that the Finks Motorcycle Club, Gold Coast Chapter and Pompano Pty Ltd, said to be ‘part of’ that Chapter (together ‘the organisation’), constitute a criminal organisation. A list of persons...