Essay and case summary & analysis Example

  • Category:
    Law
  • Document type:
    Assignment
  • Level:
    Undergraduate
  • Page:
    4
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    2974

Page 10 of 10

Question No. 1: Institutional Integrity of the Courts after Kable v Director of Public Prosecutions

The case of Kable v Director of Public Prosecutions1 represents a significant development in Australian case law because it has explicitly outlined the role of the courts in the government bureaucracy vis-à-vis those of the legislative and the executive. The case defined and established the principle of institutional integrity of the courts. The dictum pronounced in the Kable case is that any legislative provision that grants courts the power that destroys its integrity is an invalid provision or law. This contemplates a law that compels the courts to do something that is inconsistent with its “defining characteristics” as judicial bodies, such as for example, obliging them to render a decision that has been predetermined by the executive compelling courts to implement executive policies. The underpinning of this principle is that federal and state courts together form part of a judicial hierarchy as mandated by the Constitution and state legislatures, therefore, do not have an unfettered discretion to alter their powers or jurisdiction.2

In Kablee, the bone of contention was a law called Community Protection Act 1994 passed by the New South Wales Parliament. It granted the NSW Supreme Court the power to extend the sentence of an individual serving a prison sentence if such an individual poses serious threat to the community. The appellant in this case, a prisoner, wrote threatening letters to certain individuals he deemed prevented him access to his minor children. For that act, he was sentenced an additional 16 months in prison. After finishing his sentence, the NSW Parliament passed the aforecited law specifically naming him and granting the NSW SC the power to continue detaining him in prison for being a serious threat to the community. The High Court (HC hereafter) held the law to be unconstitutional and invalid on the ground that the power granted to the SC was non-judicial in nature and therefore, incompatible with Chapter III of the Commonwealth Constitution.

In light of the dictum laid down in Kable, the courts have been emboldened to invalidate several state laws that were deemed to have impaired the courts’ institutional integrity. Earlier however, there were doubts as to the impact of Kable considering that in its immediate aftermath, a couple of HC decisions upheld state laws that granted powers to state SCs to extend sentences to persons considered posing risk to society making one justice wonder whether the Kable principle has been reduced to “‘a constitutional guard-dog that would bark but once.”3 Recently, a spate of cases has proved this observation wrong with the HC even extending its applicability to other courts beyond state SCs. Some of the cases recently decided embodying these developments include the following: International Finance Trust Co Ltd v New South Wales Crime Commission4; South Australia v Totani & Anor
5; The Public Service Association and Professional Officers’ Association Amalgamated of NSW v Director of Public Employment6, and; Wainohu v New South Wales7.

In International Finance, the impugned law was §10 of the Criminal Assets Recovery Act 1990 passed by the NSW legislature. It provides, amongst others, that the Crime Commissioner may make an ex parte application to the SC for a restraining order against the property of a person suspected as being derived from serious crimes. The HC rendered the provision invalid on the ground that it impaired judicial integrity because it obligates the courts to impose an executive determination. In addition, the circumstances under which §10 is made operative is “repugnant to the judicial process in a fundamental degree” because of the aforecited nature of the application, the obligation imposed on the SC and the stringent requirements for the discharge of the restraining order, which is available only upon the termination of the court proceeding or upon proof that it is more probable than not that the property in question is not unlawfully acquired.8

In Totani, the assailed law was the Serious and Organised Crime (Control) Act 2008 passed by the South Australian Parliament. Section 14(1) of said Act states: “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 Commissioner of Police applied for, and was granted, a declaration to the Attorney General that a motorcycle club was an organisation engaged in serious criminal activities and therefore, a risk to public safety. Subsequently, an application for a control order with the Magistrates Court was made against two of its members without notifying them. The HC invalidated the provision on the ground that it impaired the institutional integrity of the courts when it enlisted them in imposing a penalty that is predetermined to give it the appearance of judicial character. Moreover, the law denied due process to potential defendants because if granted, a sweeping generalisation is presumed against all members, whether such members have in fact, committed crimes or not. 9

Similarly, the HC struck down a parallel NSW law called Serious and Organised Crime (Control) Act 2008. In Wainohu, NSW’s Crimes (Criminal Organisations Control) Act 2009 was assailed for its unconstitutionality. Like the SA case, the law granted the Police Commissioner the power to make an application to declare an organisation criminal. The appellant, a member of an organisation petitioned to be declared as criminal, brought a suit to object to the application on the ground that it would risk him to be subjected to a control order. The law allegedly impaired the institutional integrity of the courts because it gives, in effect, a power to the SC that is not consistent with its judicial nature because of the ministerial duty imposed on it. The HC in declaring the law invalid sustained this position and held that the judge is deprived of the opportunity to develop justifications and reasoning for his decision and merely relies upon a list of grounds already provided by the law reducing his role to administrative. It was also in this case that the HC considered the broader implication of the principle as going beyond state SCs to other bodies performing judicial functions. 10

In The Public Service Association case, however, the Court withheld its discretion to render the law in question as invalid. The impugned law here was the Industrial Relations Act 1996 (NSW), and the judicial body involved is the Industrial Court of NSW. The law provides, amongst others, that the Commissioner must give effect to government policies in determining any award or order and this was assailed as an impairment of the Court’s judicial character. The HC disagreed on the ground that the law does not provide an explicit policy to be followed by the Court, but merely a general set of principles and neither does it obligate the Commissioner to follow an executive direction, but merely to reinforce a policy which is already part and parcel of the law being applied by the Commissioner.

The Kable case has impacted state judicial systems by emboldening them to reinforce their independence from the executive and legislative branches. This has revalidated the longstanding and well-understood, but sometimes ignored, features of the country’s judicial system. The cases above discussed illustrated the courts’ resolve to exercise their independence, but they also highlighted the vacillation of the Court in its understanding of the principle.

Question No. 2: Summary of Emmerson v The Director of Public Prosecutions & Ors11

The appellant in this case, Reginald Emmerson, had a substance abuse problem and had been convicted on three occasions of offences related to drugs: in 2007 for 4 counts of drug possession and 1 count of self-administration of drugs; in 2010 for 2 counts of drug possession, and; in 2011 for 1 count of possession and 1 count of supplying of prohibited drugs. After conviction for the third set of offences, the DPP applied for a restraining order under s 94(1) of the Criminal Property Forfeiture Act (CPFA hereafter) in connection with s. 36A of the Misuse of Drugs Act (MDA hereafter). Under s. 36A of the MDA, the Director of Public Prosecutions (DPP hereafter) is given the option to apply to the SC for the declaration of a person as a drug trafficker provided such person has been convicted twice or more of specific drug related cases specified under the law within a period of ten years.12 On the other hand, CPFA, amongst others, empowers the SC to issue a restraining order on the property of a drug trafficker so declared under the MDA upon application by the Director of Public Prosecution (DPP hereafter).13

During his trial for the third set of offence, the DPP applied for a restraining order on some of his property, submitting three affidavits for that purpose attesting to the appellant’s impugned acts upon which the charges were based. An interim order was issued against the appellant’s property, real and personal. He was subsequently convicted of the charges against him and the DPP moved to have him declared a drug trafficker, to which the appellant objected. The SC dismissed the appellant’s objections and declared him a drug trafficker in a decision dated 15 August 2012. The matter was elevated to the NTCA.

There are several issues involved in the Emmerson case, but the most salient one that is relevant to the topic at hand is whether the legislative scheme presented by the combined provisions of §35A of the MDA and §94 of the CPFA violates the institutional integrity principle laid down in the Kable case. The institutional integrity principle is controversial because many in the bench and bar have “struggled to make sense of,” it and which the Totani case referred to as one even “intermediate appellate courts have found difficult to understand.”14 This confusion and divergence in the understanding of the principle is highlighted in the case of Emmerson.

The divergence in the perspectives of the three justices hearing the Emmerson case illustrated the unclear underpinnings of the principle, which has made it difficult for justices to agree on what constitutes impairment of the principle. CJ Riley, for example, believed that the term “drug trafficker” should not be taken in its ordinary meaning, but is simply a description given by the law to a set of criteria predefined by it. Thus, when the Court declares a person a drug trafficker because he fits the criteria set out by the law, the Court is not deprived of its discretion to determine for itself whether such person is really one using the ordinary meaning of the term. Justice Barr, however, did not share this point-of-view believing that there is no way the term “drug trafficker” can be given any other meaning other than one who makes possible the movement of drugs from one place to another or from one person to another. Thus, when the Court declares a person a drug trafficker, it is making a statement of fact and declaring a person to be so without actually determining the extent to how such person dealt with drugs, but merely relying on the criteria set forth by the legislative scheme impairs the Court’s judicial character.

Steyler & Field accounted this confused and troublesome application of the Kable principle to the fact that, amongst others, there is “really no clearer definition of the critical notions of repugnancy and incompatibility [that] emerged, the High Court regarding these notions as being ‘insusceptible of further definition in terms which necessarily dictate future outcomes.’”15 As a matter of fact, the Kable case was originally pinned on the concept of public confidence – that the judicial institution should continue to appear as independent as possible in the public eye so that the latter will continue to have faith in it. The instability of Kable’s logic is illustrated by an eventual shift of its underlying rationale from public confidence to the incompatibility doctrine and finally, to institutional integrity.16 However, even institutional integrity is suspected to be actually all about judicial preservation rather than what it claims to be. George Winterton, for example, noted that “Courts have always shown exceptional sensitivity to infringement on their domain; many of the dicta suggesting limits on parliamentary supremacy based on ‘implied freedoms’ or ‘fundamental law’, for example, have arisen in this context. […] As Brian Galligan has aptly remarked, ‘The Communist Party Case was not primarily about civil liberties, but about the limits of legislative and executive power and the supremacy of the judiciary in deciding such questions’.”17 This seems to be validated in the Emmerson case where the word “discretion” in reference to courts appeared consistently as the yardstick used to determine institutional integrity. Justice Kelley, for example, largely based his opposition to the legislative scheme as deprivation of the courts’ discretion as a consequence of legislative imposition through the set criteria laid down in the legislations.

Ratnapala & Crowe summarised HC decisions touching on the courts’ institutional integrity and lumped them all under the umbrella of negation of the “defining characteristics” of state SCs, with the latter term largely boiling down to independence from the legislative and executive in determining judgments. This intrusion is often done through legislations that vest on state courts powers and functions that are not in harmony with such defining characteristics.18 In Emmerson, this intrusion into the courts defining characteristics came in the form of the grant of the power to declare a person a drug trafficker upon application by the DPP as well as the deprivation by the legislative scheme of the courts of their power to determine the extent of a person’s involvement into drugs that would merit him to be labeled as a drug trafficker. These aspects were highlighted by the opinions of Justices Kelley and Barr who both believed that the legislative scheme is an enlistment of the judicial institution to impose a legislative and executive policy to give it an appearance of judicial character.

The Emmerson case reflected the judicial divide in the understanding of the institutional integrity principle as first handed down in Kable. Part of this divide is being attributed to the lack of set indicia provided by the HC, which lower courts have attempted to remedy by filling in some blanks. Gogarty & Bartl reported that lower courts have attempted to make sense of the Kable principle by offering justifications and by suggesting terms such as “structural guarantees of independence” and “practical political sanctions” to accompany their decisions on matters touching institutional integrity. However, even these suggestions are divergent highlighting the weakness of the principle brought about by the “broad generalities of the High Court [that] permit such wide-ranging views to operate at lower levels” with the HC itself often vacillating at certain points and often taking contradictory positions19 as illustrated in the Emmerson case.

References:

Criminal Property Forfeiture Act

Dickfoss v. Director of Public Prosecutions (2012) 31 NTLR 16 at 31–4 [52]–[65].

Emmerson v Director of Public Prosecutions & Ors (2013) NTCA 04

Gavin, T Extending the Reach of Kable: Wainohu v New South Wales (Sydney Law Review, 2012, vol. 34: 395-410).

Gogarty, B and Bartl, B Tying Kable Down: The Uncertainty about the Independence and Impartiality of State Courts Following Kable V DPP (NSW) and Why it Matters (UNSW Law Journal, 2009, vol. 32(1): 75-105).

International Finance Trust Co Ltd v New South Wales Crime Commission (2009) 240 CLR 319

Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51

Misuse of Drugs Act

Ratnapala, S and Crowe, J Broadening The Reach Of Chapter Iii: The Institutional Integrity Of State Courts And The Constitutional Limits Of State Legislative Power (Melbourne University Law Review, vol. 36: 175-215)

South Australia v Totani & Anor (2010) HCA 39

The Northern Territory Act of 1978

Steytler, C and Field, I The ‘Institutional Integrity’ Principle: Where Are We Now, and Where Are We Headed? (35 UWA Law Review 2011, vol, 35:227-264)

The Public Service Association and Professional Officers’ Association Amalgamated of NSW v Director of Public Employment [2012] HCA 58

Wainohu v New South Wales (2011) 243 CLR 181

1
Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51

2 Suri Ratnapala and Jonathan Crowe, Broadening the reach of chapter iii: the institutional integrity of state courts and the constitutional limits of state legislative power (Melbourne University Law Review, Vol 36:175-215) 176.

3 Cited in Ratnapala, S and Crowe, J Broadening The Reach Of Chapter Iii: The Institutional Integrity Of State Courts And The Constitutional Limits Of State Legislative Power (Melbourne University Law Review, vol. 36: 175-215)177

4
International Finance Trust Co Ltd v New South Wales Crime Commission (2009) 240 CLR 319

5
South Australia v Totani & Anor(2010) HCA 39

6
The Public Service Association and Professional Officers’ Association Amalgamated of NSW v Director of Public Employment [2012] HCA 58

7
Wainohu v New South Wales (2011) 243 CLR 181

8
International Finance Trust Co Ltd, supra

9 Totani, supra.

10 Wainohu, supra

11
Emmerson v. The Director of Public Prosecutions & Ors [2013] NTCA 04

12 §36A, Misuse of Drugs Act

13 §94, Criminal Property Forfeiture Act

14 Cited in Chris Steytler and lain Field, The ‘Institutional Integrity’ Principle: Where Are We Now, and Where

Are We Headed? (35 UWA Law Review 2011, vol, 35) 228

15 Cited in Chris Steyler and Iain Field, The ‘Institutional Integrity’ Principle: Where Are We Now, and Where Are We Headed? (35 UWA Law Review 2011, vol, 35:227-264) 233

16 Tarsha Gavin, Extending the Reach of Kable: Wainohu v New South Wales (Sydney Law Review, 2012 vol.34) 407

17 Cited, ibid, 232

18 Ratnapala, supra, 200.

19 Bogart Gogarty and Benedict Bratl, Tying Kable Down: The Uncertainty about the Independence and Impartiality of State Courts Following Kable V DPP (NSW) and Why it Matters (UNSW Law Journal, 2009, vol. 32(1): 75-105) 101