Today’s High Court judgment in Gypsy Jokers Motorcycle Club Incorporated v Commissioner of Police  HCA 4 differs from the usual trend of the High Court refusing to apply Kable. Typically, the Court has been willing to endorse just about any state legislation as compatible with the Kable principle. But, today, the Court found a different way to avoid laying the Kable: adopting a strained interpretation of a statutory provision. It’s as if the Court was bound by the Charter’s interpretation mandate….
The provision in question was part of a scheme to allow the Western Australian police to de-fortify various organised crime premises (i.e. bikie headquarters.) Parliament allowed the bikies a limited, one-off right of review of a de-fortification order by a Supreme Court judge, but imposed this condition on the review:
76(2) The Commissioner of Police may identify any information provided to the court for the purposes of the review as confidential if its disclosure might prejudice the operations of the Commissioner of Police, and information so identified is for the court’s use only and is not to be disclosed to any other person, whether or not a party to the proceedings, or publicly disclosed in any way.
Until the case reached the High Court, everyone though that this provision gave the Commissioner of Police (a member of the executive) the authority to conclusively decide what information must be treated as confidential (i.e. to keep sensitive investigative or operational material, such as the identities of informers or undercover operatives out of the hands of the bikies.) A dissenting judge in the WA Court of Appeal held that this authority amounted to an executive direction to a court that is incompatible with its constitutional role as a potential vessel for the purity of federal judicial power. If this was a Victorian statute, the Supreme Court could apply similar reasoning to declare the provision incompatible with the right of Victorian litigants to a decision by an ‘independent’ court (although that would be subject to any justification under Charter s. 7(2).)
However, six judges of the High Court adopted an all-new reading of s. 76(2), which saw the Commission of Police’s identification power as nothing more than the ability to point to the information and invite a court to decide whether it ought to be confidential. Justice Kirby thought this interpretation was ‘artificial’, given that the section doesn’t mention the court making any decisions or identify how such a decision should be made. In Victoria, this issue would come down to whether the interpretation mandate could ‘save’ the provision from a declaration of inconsistent interpretation. Perhaps surprisingly, the Court’s least activist judges appear more willing to stretch the interpretation of a provision than its most activist judge. Interesting to see if this decision affects how Charter s. 32 is applied.