LAW 1504 Lecture Notes - Lecture 5: New South Wales Crime Commission, Gypsy Joker Motorcycle Club, Inter Partes
23 May 2018
School
Department
Course
Professor
Separation of Powers in the States
Determining the validity of state legislation
Kable v DPP (NSW)
• Invalid
• Ad hominem (applied only to Kable)
• Standard of proof amended- Balance of probabilities- not normal
criminal standard
• Rules of evidence changed- Inadmissible evidence
• Scheming Supreme Court implicated in the executive and legislative
plan to keep Kable in prison
• Prediction about likelihood of future breach of law NOT
determination of past breach
• REAL ISSUE: LOOK that was created. SC at behest of L and E- part
of a scheme to keep Kable detained. IMPRESSION- SC was a RUBBER
STAMP for what the EXECUTIVE WANTED to achieve
• Legislature cannot change the character of its Supreme Court so
that it ceases to meet the constitutional description
- Forge v Australian Securities and Investments Commission
• Flexible, cannot be absolute defining characteristics, room for
adaptation- Assistant Commissioner Condon v Pompano Pty Ltd
Preventative Detention
Baker v The Queen (2004)
• Valid- Law not adhominem if it applies to a class of personal (may be
10)
• Criteria of ‘special reasons’ permitted as long as court still preforms
judicial function/ had discretion- ascertaining the facts/ identifying what
the special reasons were.
Fardon v A-G (Qld) (2004)
• Valid- ‘High degree of probability’- closer to criminal standard of
proof
Related to ‘prisoners’ only (court involved in task connected to
previous conviction). Courts had historically assessed whether
person is a ‘danger to the community’
Court had significant discretion. Mimicked judicial process
Minimum characteristics
Judicial process
Process Autonomy
Re Criminal Proceeds Confiscation Act 2002
• Invalid: Parliament cannot instruct or command the judge to hear
matter ex-parte
• Courts must have autonomy in determining procedure to be
followed,
International Finance Trust Co Ltd v New South Wales Crime Commission
• Invalid- option for E to determine inter partes or ex parte..
• Court must determine own procedure Cannot distort institutional
integrity/ capaity as a repository federal jurisdiction. Court had no
power to adjust procedure. Couldn’t exercise JP.
Attorney-General (NT) v Emmerson
Valid- court preformed normal Judicial function.
L cannot direct the court to implement a political decision
without following ordinary judicial processes- independence
and institutional impartiality’
Restraining order over forfeiture of property- Valid-
Court not at the behest of the Executive
Only conferred jurisdiction on a court to determine a
controversy between parties which, when determined, will
engage stated statutory consequences
Evidence autonomy
Gypsy Jokers Motorcycle Club Inc v Commissioner of Police
• Valid: Confidential evidence. Avoided Kable, stat interpretation. IF it
were confidential, it was because the COURT AGREED
K-Generation Pty Ltd v Liquor Licensing Court
• Valid: Court still decided whether information classified as
criminal intelligence
International Finance v NSW Crime Commission
• Invalid: Where the court is directed by the legislation as to the type of
evidence is admissible/how the court should hear a case or evidence, it is
invalid as the court does not determine its own processes- compromises
find more resources at oneclass.com
find more resources at oneclass.com
Document Summary
Sc at behest of l and e- part of a scheme to keep kable detained. Stamp for what the executive wanted to achieve: legislature cannot change the character of its supreme court so that it ceases to meet the constitutional description. Forge v australian securities and investments commission: flexible, cannot be absolute defining characteristics, room for adaptation- assistant commissioner condon v pompano pty ltd. Fardon v a-g (qld) (2004: valid- high degree of probability"- closer to criminal standard of proof. Related to prisoners" only (court involved in task connected to previous conviction). Courts had historically assessed whether person is a danger to the community". Invalid: parliament cannot instruct or command the judge to hear matter ex-parte: courts must have autonomy in determining procedure to be followed, International finance trust co ltd v new south wales crime commission: court must determine own procedure cannot distort institutional.
