Kable, K-Generation, Kirk and Totani: Validation of Criminal Intelligence at the Expense of Natural Justice in Ch III Courts

Abstract

Material placed before a court as “criminal intelligence” is prima facie protected from disclosure to the party affected. The reality of procedural fairness has been sacrificed by the High Court’s generous construction of statutory provisions concerning the control and disclosure of criminal intelligence, and that Court’s explanation that the classification of material as criminal intelligence was reviewable by a court, thus avoiding Kable unconstitutionality. But in the 12 months since that approach to criminal intelligence was adopted in K-Generation, the High Court has shown greater concern for the constitutional requirement of natural justice in Ch III courts, and has dismantled the edifice of State legislative privative clauses. Kirk on the latter is relevant to the fate of criminal intelligence, as the High Court is shortly to hear an appeal from the South Australian Supreme Court (Totani). (The High Court decision in Totani has now come down, (South Australia v Totani [2010] HCA 39), but production requirements do not allow alteration of this article to deal with the High Court reasoning, which is greatly at variance with the Full Court, although agreeing in the result. The authors will provide an update of this article in the light of the High Court decision at the soonest possible available time in the production process.) The Full Court of the South Australian Supreme Court found the use of criminal intelligence to be unconstitutional. The privative clause in the statute in question prevented the review of classification which had been relied on in K-Generation (where no privative clause was in issue), but the Supreme Court decision has been overtaken by Kirk destroying the efficacy of privative clauses. The authors are concerned as to the reasoning whereby “criminal intelligence” may be set for further constitutional validation.