Birchgrove Legal in the High Court of Australia: A recent case study

In this Case Study, we present a summary of recent work our firm was involved in which saw us represent our client in the High Court of Australia.

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Case Study: VELLA and Ors v COMMISSIONER OF POLICE (NSW) & ANOR [2019] HCA 38

Area of Law: Constitutional Law and Administrative Law

Birchgrove Legal acted in a case concerning the constitutional validity of a section of the Crimes (Serious Crime Prevention Orders) Act 2016 (NSW) [(‘the SCPO Act’)].

The issue before the High Court was whether section 5(1) of the SCPO Act was validly enacted, and in particular whether it was inconsistent with or prohibited by Chapter III of the Constitution. Section 5(1) is read as follows:

1. “An appropriate court may, on the application of an eligible applicant, make an order (a serious crime prevention order) against a specified person if:

(a) in the case of a natural person – the person is 18 years old or older, and

(b) the court is satisfied that:

• the person has been convicted of a serious criminal offence, or
• the person has been involved in serious crime related activity for which the person has not been convicted of a serious criminal offence (including by reason of being acquitted of, or not being charged with, such an offence), and

(c) the court is satisfied that there are reasonable grounds to believe that the making of the order would protect the public by preventing, restricting or disrupting involvement by the person in serious crime related activities.”

Section 6(1) is read as follows:

1. A serious crime prevention order may contain such prohibitions, restrictions, requirements and other provisions as the court considers appropriate for the purpose of protecting the public by preventing, restricting or disrupting involvement by the person in serious crime related activities.”

Essentially, read with s 6 of the SCPO Act – this section empowers the Supreme Court of New South Wales (NSW) to make an order, in civil proceedings, restraining the liberty of a person who has been convicted of a serious criminal offence or who has been involved in serious crime related activity, if the court is satisfied that there are reasonable grounds to believe that the making of the preventive order would protect the public by preventing, restricting or disrupting involvement by the person in serious crime related activities. ‘Preventative orders’ can be made without proof of the commission of a crime by that person.

In their judgment, the High Court explained that the District and Supreme Court must take six (6) steps before the court can exercise the power to make a serious crime prevention order.

1. The natural person must be at least 18 years old;
2. The person must have been convicted of, or there be proof of involvement in, serious criminal offending;
3. The court must assess whether there is a real likelihood that the person against whom the order is sought will be involved in serious crime related activity;
4. The court must consider whether the facts establish reasonable grounds to believe that the potential order would prevent. restrict or disrupt the person’s involvement in serious crime related activities;
5. The order must be appropriate (and suitable) for the purpose of protecting the public by preventing, restricting or disrupting further serious criminal related activities whilst balancing the extent to which the order will intrude upon the defendant’s liberty; and
6. The court must consider whether any appropriate order should be made.

Birchgrove Legal challenged the validity of this section, on the basis that it was incompatible with the institutional integrity of the District Court and Supreme Court, relying upon the principles developed from the decision in Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51 (“the Kable principle”).

One such principle is “that, since the Constitution established an integrated Australian court system, and contemplates the exercise of federal jurisdiction by State Supreme Courts [and other State courts], State legislation which purports to confer upon such a court a function which substantially impairs its institutional integrity, and which is therefore incompatible with its role as a repository of federal jurisdiction, is invalid”.

The plaintiffs made this argument on the following grounds:

1. The SCPO Act undermines the criminal justice system of State courts, particularly in circumstances where an order is made imposing further restrictions on the liberty of a person who has previously been convicted and punished for a serious offence or where an order is made imposing restrictions on a person’s liberty despite the person’s acquittal of a serious offence
2. The SCPO Act establishes a regime that would conflict with the criminal justice system particularly in circumstances where there is a need for a defendant to elect whether to give evidence in the civil preventive order proceedings, with the risk of adverse inferences if evidence is not given and the risk of assisting a later prosecution if evidence is given. Also, the ability of prosecuting authorities to elect to use the “easier” route of the SCPO Act rather than a criminal prosecution where there are no reasonable prospects of conviction or a criminal prosecution is not in the public interest.
3. The SCPO Act enlists the court to administer a different, and lesser, form of criminal justice, doing so at the discretion of the Executive.
4. The SCPO Act undermines the judicial process and weakens public confidence in it.

Ultimately, the majority of the High Court explained that when making a prevention order, the Court has substantial judicial discretion and is not acting at the behest of the executive. The majority of the High Court concluded that there is nothing antithetical to the judicial process, and nothing that could impair the institutional integrity of a State Supreme Court, in open-textured legislation such as the SCPO Act that establishes broad principles to be developed and applied by courts.

Meanwhile, Justice Gageler who formed part of the minority conceded that “the judiciary is effectively enlisted by s 5(1) of the SCPO Act to perform a personalised legislative function at the behest of the executive” and therefore the subsection is wholly invalid. In agreeance, Justice Gordon found that the SCPO Act is “not compatible with the institutional integrity of a State court.”

Outcome

Accordingly, while section 5(1) was deemed constitutionally valid, the High Court applied a strict interpretation of when it was “reasonable” to make a prevention order. Birchgrove Legal argued that the High Court’s strict interpretation meant that the Supreme Court case against our clients was doomed to fail. The case against our clients was discontinued with costs.