High Court of Australia

South Australia v Totani [2010] HCA 39

242 CLR 1; 85 ALJR 19; 271 ALR 662

11 Nov 2010

Case Number: A1/2010


French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel, Bell JJ


Constitutional law (Cth) – Judicial power of Commonwealth - Constitution, Ch III - Vesting of federal jurisdiction in State courts - Serious and Organised Crime (Control) Act 2008 (SA) ("Act") - Section 10(1) of Act permits Attorney- General to make declaration in respect of organisation, if satisfied members associate for purpose of organising, planning, facilitating, supporting or engaging in serious criminal activity, and organisation represents risk to public safety and order - Section 14(1) of Act provides Magistrates Court of South Australia ("Court") must, on application by Commissioner of Police, make control order (contravention of which is a crime) imposing restrictions on freedom of association of defendant if satisfied defendant is member of declared organisation under s 10(1) - Section 35(1) of Act creates offence of associating with member of declared organisation or person the subject of control order on not less than six occasions during 12 month period - Whether making control order requires determination by Court of what defendant has done or may do, or any determination of criminal guilt - Effect of Attorney-General's declaration on adjudicative process - Whether Court enlisted to implement legislative and executive policy - Whether task given to Court repugnant to, or incompatible with, institutional integrity.

Words and phrases – "control order", "institutional integrity", "judicial power", "member of declared organisation", "serious criminal activity".

Constitution – Ch III.

Serious and Organised Crime (Control) Act 2008 (SA) – ss 10(1), 14(1), 17, 19, 22, 35, 41.


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