''South Australia v Totani'' is a landmark Australian

judgment Judgement (or US spelling judgment) is also known as ''adjudication'', which means the evaluation of evidence to make a decision. Judgement is also the ability to make considered decisions. The term has at least five distinct uses. Aristotle s ...

of the High Court concerning the extent to which the legislative power of an

Australian State The states and territories are federated administrative divisions in Australia, ruled by regional governments that constitute the second level of governance between the federal government and local governments. States are self-governing ...

is limited by the

separation of powers Separation of powers refers to the division of a state's government into branches, each with separate, independent powers and responsibilities, so that the powers of one branch are not in conflict with those of the other branches. The typic ...

in the Commonwealth Constitution. The High Court held that the legislative power of a State does not extend to enacting a law which deprives a court of the State of one of its defining characteristics as a court or impairs one or more of those characteristics.

Background

In 2008 there was a move for controlling the activities of

Outlaw Motorcycle clubs An outlaw, in its original and legal meaning, is a person declared as outside the protection of the law. In pre-modern societies, all legal protection was withdrawn from the criminal, so that anyone was legally empowered to persecute or kill the ...

by numerous Australian State Governments that culminated in the

South Australian Parliament The Parliament of South Australia is the bicameral legislature of the Australian state of South Australia. It consists of the 47-seat House of Assembly ( lower house) and the 22-seat Legislative Council (upper house). General elections are h ...

introducing the Serious and Organised Crime (Control) Act 2008.. The effect of this legislation was to allow… ''the making of declarations and orders for the purpose of disrupting and restricting the activities of criminal organisations, their members and associates''. The essence of the scheme was that the

Attorney-General In most common law jurisdictions, the attorney general or attorney-general (sometimes abbreviated AG or Atty.-Gen) is the main legal advisor to the government. The plural is attorneys general. In some jurisdictions, attorneys general also have exec ...

could make a declaration, to the effect that the members of an organisation were involved in serious criminal activity and that there was a risk to public safety and order. If The Commissioner of Police could then apply to the

Magistrates Court A magistrates' court is a lower court where, in several jurisdictions, all criminal proceedings start. Also some civil matters may be dealt with here, such as family proceedings. Courts * Magistrates' court (England and Wales) * Magistrate's Cou ...

for a control order against any member of a declared organisation. There was no requirement that the person be notified of the application, nor that that person had committed or was ever likely to commit a criminal offence. The court did not have any discretion whether a control order should be made, with the section 14(1) providing:

''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.''

On 14 May 2009 the

considered that the members of the Finks Motorcycle Club were involved in serious criminal activity and made a declaration in relation to the club under section 10 of the Act. The Commissioner of Police applied for a control order against a member of the Finks Motorcycle Club, Donald Hudson, who was not notified of the application and the Magistrates Court made the control order. The Commissioner of Police applied for a control order against another member, Sandro Totani. Both men made an application to the Supreme Court of South Australia, claiming that parts of the Serious and Organised Crime (Control) Act were invalid, and that the declaration made by the Attorney-General was also invalid. The Full Court of the Supreme Court held by a 2:1 majority that section 14(1) of the Act was invalid, but that section 10 which authorised the declaration by the Attorney-General, by itself, was a valid exercise of the legislative power of the State.. Bleby J relied upon the decisions of the High Court in ''

Kable v Director of Public Prosecutions (NSW) ''Kable v DPP'',. is a decision of the High Court of Australia. It is a significant case in Australian constitutional law. The case is notable for having established the 'Kable Doctrine', a precept in Australian law with relevance to numerous i ...

'' and ''

Thomas v Mowbray ''Thomas v Mowbray'', was a decision handed of the High Court of Australia on 2 August 2007 concerning the constitutional validity of "interim control orders" under the Commonwealth ''Criminal Code''. The case was brought by Joseph Terrence Thom ...

''. This included references to the judgement of Gummow and Crennan JJ where their Honours said at 11

As a general proposition, it may be accepted that legislation which requires a court exercising federal jurisdiction to depart to a significant degree from the methods and standards which have characterised judicial activities in the past may be repugnant to Ch III.

Bleby J also cited the dissent of

Kirby J Michael Donald Kirby (born 18 March 1939) is an Australian jurist and academic who is a former Justice of the High Court of Australia, serving from 1996 to 2009. He has remained active in retirement; in May 2013 he was appointed by the United ...

in ''Thomas v Mowbray'' where his Honour said at 66

''Requiring such courts, as of ordinary course, to issue orders ex parte, that deprive an individual of basic civil rights, on the application of officers of the Executive Branch of Government and upon proof to the civil standard alone that the measures are reasonably necessary to protect the public from a future terrorist act, departs from the manner in which, for more than a century, the judicial power of the Commonwealth has been exercised under the Constitution.''

The State of South Australia then appealed that decision to the High Court of Australia.

Decision

This appeal was dismissed by the High Court 6:1 with only Heydon J dissenting. A majority of the Court considered that s 14(1) of the Act obliged the Magistrates Court to impose serious restraints on a person's liberty whether or not that person had committed or was ever likely to commit a criminal offence. The provision authorised the executive to enlist the Magistrates Court in implementing decisions of the executive and that the manner in which that occurred was incompatible with the Magistrates Court's institutional integrity as an independent and impartial tribunal. French CJ held at 6that the legislative power of a State does not extend to enacting a law which deprives a court of the State of one of its defining characteristics as a court or impairs one or more of those characteristics. The courts decision was based in part on their concern that the Act infringed

common law In law, common law (also known as judicial precedent, judge-made law, or case law) is the body of law created by judges and similar quasi-judicial tribunals by virtue of being stated in written opinions."The common law is not a brooding omnipres ...

freedoms for the individuals involved, but mostly on the prospect of a Parliament directing

courts A court is any person or institution, often as a government institution, with the authority to adjudicate legal disputes between parties and carry out the administration of justice in civil, criminal, and administrative matters in accorda ...

was inconsistent with the separation of powers under the Commonwealth Constitution which applied to the state Magistrates Court as a repository of federal judicial power under section 71 of the Constitution.

References

{{reflist, 30em, refs= High Court of Australia cases Separation of Powers in the Australian Constitution cases 2010 in case law 2010 in Australian law