LAW 1504 Lecture Notes - Lecture 5: Gypsy Joker Motorcycle Club, New South Wales Crime Commission
23 May 2018
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Department
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KABLE ANSWER
Step : There is no separation of powers in SA Gilbertson v State of South Australia or in any other
state: Kable
Step : But, as a result of the federal separation of judicial power, there is the Kable principle which
reasons:
. That due to the )ntegrated Australian Judicial System, the constitution requires there be state
supreme courts that can exercise federal jurisdiction in addition to federal courts (Aus Const. s 71 and
s77(iii)). HC also has the ability to hear appeals from State Supreme Courts (Aus Const. s 73))
. )n light of this, the quality of justice must remain the same in all jurisdictions to ensure that no two
classes of justice form.
Thus: No functions incompatible with the exercise of federal judicial power can be given to state
courts.
Re-phrased in NAALAS v Bradley: state courts must be and appear to be independent and impartial
tribunals
Step : Define issues:
)SSUE : eg: ex parte
Statutory power s…gives the… power to and what it allows for:
make sure the provision has actually been invoked
Closely analogous to_____ because…. therefore
Step .. ASK
)s there an interference with the operation of the court and the court’s usual processes?
• Draw analogy/ distinguish facts given to facts of the applicable cases:
Judicial process
Process Autonomy
(1) Re Criminal Proceeds Confiscation Act 2002
(2) )nternational Finance Trust Co Ltd v New South Wales Crime Commission
(3) Attorney-General NT v Emmerson
Evidence autonomy
(1) Gypsy Jokers Motorcycle Club )nc v Commissioner of Police
(2) K-Generation Pty Ltd v Liquor Licensing Court
Procedural Fairness
(1) Gypsy Jokers / K-Generation
Reasons
(1) Wainohu
)ndependence
Nature of Powers Exercised
(1) (uman Rights Declarations
(2) Organised Crime Control Orders
Supervisory Jurisdiction
(1) Lower courts, executive and legislative
Step : ALWAYS note- Discretion given to the court broad or narrow
Step : ASK: context and extent of interference- is the independence and impartiality of the court lost?
Providing the court remains an independent and impartial tribunal, appearance and reality- no breach
Step : Conclude [thus, there is no objection to… valid] or [as no power can be given to a state court
which is incompatible with its exercise of JP… invalid]
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Document Summary
Step (cid:883): there is no separation of powers in sa (cid:523)gilbertson v state of south australia(cid:524) or in any other state: kable. Step (cid:884): but, as a result of the federal separation of judicial power, there is the kable principle which reasons: (cid:883). )n light of this, the quality of justice must remain the same in all jurisdictions to ensure that no two classes of justice form. Thus: no functions incompatible with the exercise of federal judicial power can be given to state courts. Re-phrased in naalas v bradley: state courts must be and appear to be independent and impartial. Statutory power (cid:523)s gives the power to(cid:524) and what it allows for: (cid:523)make sure the provision has actually been invoked(cid:524) )s there an interference with the operation of the court and the court"s usual processes? tribunals. )ssue (cid:883): (cid:523)eg: ex parte(cid:524: draw analogy/ distinguish facts given to facts of the applicable cases:
