NSW Serious Crime Prevention Orders Are Lawful, High Court Rules

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By Paul Gregoire and Ugur Nedim

On 5 October last year, NSW police commissioner Mick Fuller commenced civil proceedings in the NSW Supreme Court seeking to have serious crime prevention orders (SCP0s) imposed upon alleged Rebel motorcycle gang members Damien Charles Vella, Johnny Lee Vella, and Michael Fetui.

The orders sought to restrain and prohibit the men from various activities for the period of two years. These included associating with any motorcycle gang members, travelling in a vehicle between 9 pm and 6 am – except in an emergency – and possessing more than one mobile phone.

In calling for the SCPOs, the commissioner asserted that all three had prior serious crime convictions, along with a string of acquittals and withdrawn charges over similar matters. And he claimed the orders would protect the public by preventing their involvement in further such crimes.

Despite the NSW police commissioner relying upon a dearth of particulars in regard to their past criminal activity, or evidence as to why the preventative orders were needed, the three men didn’t object to proceedings in the Supreme Court.

Rather, the Vellas and Fetui choose to challenge the validity of the orders in the High Court of Australia, arguing that the SCPO laws are unconstitutional, because they undermine the integrity of the courts.

The SCPO regime

The Baird government passed the Crimes (Serious Crime Prevention Orders) Act (NSW) (SCPO Act) in 2016, amongst widespread furore over the trespass upon individual freedoms the laws make, as well as that these measures subvert basic criminal justice system principles.

In spruiking the laws that are based on similar mechanisms enacted in the UK in 2007, then NSW police minister Troy Grant cited the usual suspects – terrorists and motorcycle gangs – in relation to why they were warranted.

The SCPO Act enables the commissioner, the Director of Public Prosecutions or the NSW Crime Commission to apply to the NSW Supreme Court or District Court for the imposition of an order, which can last for up to 5 years.

Breaching the conditions of a serious crime prevention order can lead to a maximum penalty of up to 5 years imprisonment and/or a fine of $165,000.

SCPOs can place wide-ranging restraints upon the subject of the order. These include restrictions around employment, movement, the imposition of a curfew, prohibitions on associating with others or the requirement to check in with police.

The orders can be imposed upon individuals that have been convicted of a serious criminal offence in the past. However, courts have the discretion to apply them to individuals who’ve been acquitted of such crimes or were initially charged, but had the charges withdrawn or haven’t even charged.

Encroaching upon the courts

The three plaintiffs alleged that subsection 5(1) of the SCPO Act is invalid, because it’s inconsistent with the third chapter of the Australian Constitution, in that it undermines the independence and integrity of the courts in requiring them to impose these orders.

Subsection 5(1) sets out that an order can be issued if the subject is 18 years or older, they’ve been convicted of a crime or involved in such activity but not convicted, and it’s satisfied an order would “protect the public by preventing, restricting or disrupting involvement” in further criminal activity.

While subsection 6(1) of the SCPO Act stipulates that an order “may contain such prohibitions, restrictions, requirements and other provisions as the court considers appropriate for the purpose of protecting the public by preventing, restricting or disrupting involvement” in serious crime activity.

The plaintiffs’ argument relied on the principle established in the High Court’s 1996 case Kable v the Director of Public Prosecutions, which provides that the Constitution establishes “an integrated court system, and contemplates the exercise of federal jurisdiction by state Supreme Courts”.

So, any state laws that seek to establish power that “substantially impairs the court’s institutional integrity” are incompatible with the court’s role “as a repository of federal jurisdiction” and therefore, are “constitutionally invalid”.

Imposing an order

In its findings, the majority of the High Court set out six steps undertaken in imposing a SCPO. The first being that the subject is over the age of 18. The second is the requirement of proof that outlines an individual has been convicted of a serious crime or has had involvement in one.

The third step requires the court to assess whether there is “a real or significant risk” that a person will be involved in serious crime activity in the future. The fourth requires the court to pass judgement on whether there are reasonable grounds that an order will prevent further crimes.

The fifth step requires High Court justices to decide upon what sort of restrictions the order must make upon a subject’s life. And the final step requires that the court then decides whether the order remains appropriate after it has considered the requirements of the initial steps.

Different systems of law

The plaintiff’s argument contained three strands. The first was that the SCPO regime undermines the NSW criminal justice system, in that, in the case of a prior conviction, it imposes further punishment, or in a case where no conviction against a person is possible, it interferes with their liberty.

The second strand was that the SCPO regime provides that courts issue a “different, and lesser, form of criminal justice”. And the third was that the regime departs from the criminal justice process, in ways that include the admission of hearsay evidence and the imposition of a civil standard of proof.

However, the court reasoned that these arguments don’t hold, as while SCPO proceedings involve “a judicial procedure for orders that affect the liberty of the subject”, these are civil matters that courts have been exercising since the 14th century, and criminal justice principles don’t apply.

The court listed a string of challenges to similar Australian order regimes based on Kable that it has dismissed. Although, in 2010’s South Australia versus Totani, the court did find an order regime invalid, as it left courts no room to assess and then deny an order request once it was sought.

The current challenge to the NSW SCPO regime was found not to be unconstitutional as the laws do not encroach upon the court’s authority, as it’s left up to the court to consider whether an order should be issued, which is in keeping with properly discharging its duties.

Courts’ integrity not infringed upon

On 6 November this year, the majority of the High Court of Australia ruled that subsection 5(1) of the SCPO Act is not invalid because it’s inconsistent or prohibited by chapter three of the Australian Constitution.

Their Honours explained that there’s nothing within the process of making a SCPO that prevents the NSW Supreme Court or District Court from exercising its “substantial judicial discretion”, and in imposing an order, it’s in no way simply acting on the command of the executive.

And the High Court ruled that the plaintiffs must pay the costs of the case.

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