HCA: court cannot be enlisted to give effect to legislative and executive policy

South Australia v Totani [2010] HCA 39 (11 November 2010)

South Australia’s well publicised anti-association motorcycle legislation Serious and Organised Crime (Control) Act 2008 was dealt a fatal blow in respect of its principle objectives by the High Court on 11 November 2010, declaring Section 14(1) invalid, Heydon J dissenting.

The judgment is lengthy and the media release provides a useful summary. The legislation has been of interest throughout Australia, including the State of Queensland which intervened in the case.

The High Court provides an analysis of the independence of judiciary from the legislative and executive arms of government in very strong and clear terms.  Separate judgments are provided, save Crennan and Bell JJ, who provide a joint judgment.

The tone of the decision per French CJ:


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].


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.


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].


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.

Brisbane Barrister – David Cormack

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