High Court upholds validity of Queensland's Criminal Organisation Act 2009

A challenge to the constitutional validity of various provisions of the Criminal Organisation Act 2009 (Qld) (the Act) by the Finks Motorcycle Club (Gold Coast Chapter) was heard on 4 and 5 December 2012 in Canberra by the High Court.

On 14 March 2013, the High Court unanimously upheld the validity of provisions of the Act that relate to the use of criminal intelligence in support of applications to the Supreme Court of Queensland to have an organisation declared a criminal organisation. The High Court held that the relevant provisions did not impair the institutional integrity of the Supreme Court and therefore did not infringe Chapter III of the Constitution.

The decision resulted from an application filed in the Supreme Court on 1 June 2012 by the Assistant Commissioner of the Queensland Police Service seeking a declaration that the Finks Motor Cycle Club, Gold Coast Chapter, and Pompano Pty Ltd – said to be a part of that Chapter (together the respondents) – was a criminal organisation under s 10 of the Act (the substantive application).

In support of the substantive application, which is still pending, information that the Supreme Court had previously declared to be criminal intelligence was relied on. Criminal intelligence, for the purposes of the Act, is information that relates to actual or suspected criminal activity, the disclosure of which could reasonably be expected to “prejudice a criminal investigation”, “enable the discovery of the existence or identity of a confidential source of information relevant to law enforcement”, or “endanger a person’s life or physical safety”.

In October 2012, the parties filed an agreed special case, which set out the questions to be answered by the High Court. Most of those questions were concerned with:

1. the validity of provisions in Part 6 of the Act that relate to the declaration of information as “criminal intelligence”
2. the use of declared criminal intelligence in applications for the declaration of criminal organisations under Part 2 of the Act.

The Attorneys-General of the Commonwealth, New South Wales, Victoria, South Australia, Western Australia and the Northern Territory intervened in support of the validity of the Act.

As required by the Act, the Supreme Court heard the application to declare that particular information was criminal intelligence without notice to the respondents and in a “special closed hearing”. Because the Supreme Court made the declaration sought, it will be required to order any part of the hearing of the substantive application in which the criminal intelligence is to be considered a closed hearing. The effect is that the criminal intelligence will not be revealed to the respondents.

In the High Court, the respondents argued that those provisions of the Act (among others) were invalid because they amounted to a denial of procedural fairness. They argued that procedural fairness was a defining characteristic of the Supreme Court.

The High Court upheld the validity of the provisions. The Court held that while the provisions may depart from the usual incidents of judicial process and procedure, the Supreme Court nonetheless retains its capacity to act fairly and impartially. The Court held that the provisions do not impair the essential characteristics of the Supreme Court, or its continued institutional integrity.

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