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(Not) in the High Court of Australia
Karam v The King. Judgment of the (mythical) the Honourable Justice Phantom
Contents.
1. Introduction ...................................................................................................................................... ii
2. The Judgment of the Honourable Justice Phantom ..................................................................... 1
The Applications to this Court ....................................................................................................... 1
The Offences ..................................................................................................................................... 1
The Proceedings Below .................................................................................................................... 1
Irregularities..................................................................................................................................... 2
Constitutional Matters .................................................................................................................... 3
Doctrine of Separation of Powers ................................................................................................... 4
Due Process of the Law ................................................................................................................... 6
Australian International Obligations ............................................................................................. 8
Historical background of Crimes against Humanity .................................................................. 10
The ‘State or Organizational Policy’ element in Crimes against Humanity ............................ 11
Has Victoria genuinely attempted to prosecute the offenders? ................................................. 12
Can the ICC take over the Investigation and Prosecution? ....................................................... 14
Supervisory Duty ........................................................................................................................... 14
Why we should hear this matter ................................................................................................... 15
Proposed Orders ............................................................................................................................ 19
Mark Alfred Clarkson, LL B, LL M, MPPM, MBA, Grad Dip ALLN, Grad Dip Mining
Aspiring Doctoral Student
25 October 2024
https://www.linkedin.com/in/mark-clarkson-3848329b/
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1. Introduction.
This is the judgment that never was. The judgment in the High Court proceedings that could
have followed Karam v The King (“Karam”).
1
The judgment of a brave jurisprudentes – the
nonexistent eighth Justice of the High Court of Australia – Justice Phantom. If delivered, it
would have been a dissenting judgment. All seven of the actual justices of the High Court of
Australia unanimously supported a blanket refusal to hear the case. They sat in secret session
à huis clos at some stage and only ‘on the papers’ without a formal hearing that might have
allowed the issues in the case to be fully ventilated, simultaneously rejected applications for an
extension of time in which to make an application for special leave and dismissed the special
leave applications.
2
The High Court Rules 2004 (Cth) provide that the Court may determine leave and special leave
applications on the papers without an oral hearing. In those cases, the applications are not
listed for hearing but for publication of reasons and pronouncement of orders only. In Karam,
the Full Bench of the High Court of Australia (all seven Justices) seem to have moved in
Tammany Hall-style solidarity with their Irish Roman Catholic brethren from Victoria, ‘the
appalled, but “fair-minded” Justices David Beach, Stephen McLeish, and Maree Kennedy’.
3
No coward sneaking off the battlefield to avoid combat can later claim the mantle of the valiant.
Gone was the feigned outrage earlier expressed by the High Court of Australia at the concept
of police-informer Judges and lawyers.
4
Lost was the opportunity to consider and perhaps
cauterise the apparatus of the quintessential Police State assembled in Victoria as being wholly
inconsistent with the adversarial legal system, any notion of judicial independence, or the
principles notionally expressed in Kable v DPP (NSW),
5
and Attorney-General (Cth) v Huynh.
6
Karam was undoubtedly a case of public importance. The fact that all seven Justices of the
High Court of Australia were involved in dismissing the applications tends to suggest some
1
Karam v The King (“Karam”) [2023] VSCA 318 (14 December 2023).
2
Karam v The King [2024] HCASL 114; Karam v The King [2024] HCASL 115.
3
Mark Alfred Clarkson, ‘On Karram v The King [2023] VSCA 318 (14 December 2023’, ResearchGate, online
at 14 December 2023 <https://www.researchgate.net/publication/3765171273>.
4
AB (a pseudonym) v CD (a pseudonym); EF (a pseudonym) v CD (a pseudonym) [2018] HCA 58; 93 ALJR
59; 362 ALR 1.
5
[1996] HCA 24; (1996) 189 CLR 51.
6
[2023] HCA 13.
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form of admission by conduct to that effect. In what has become a regular routine, a full Court
constituted by two justices regularly dismisses applications for special leave en bloc.
Indeed, on the morning that the case of His Eminence (the late) Cardinal Dr George Pell was
heard without seeming to need special leave, seventeen applications for special leave were
summarily dismissed on the papers without a hearing.
7
His Eminence must have felt very
special indeed!
Historically, matters only proceed to the High Court of Australia by special leave.
8
The criteria
for granting special leave are set by legislation,
9
and by the Court.
10
The ‘doctrine’ followed
by the Court changes.
11
Cases for hearing and determination are unashamedly cherry-picked
for their unique features and characteristics of ‘public importance’.
In Bromley v The King,
12
Gageler CJ, Gleeson & Jagot JJ took the very rare step of explaining
‘the jurisdiction [the Court] exercises in determining an application for special leave to appeal’,
before allowing the even more rare step of allowing full argument on the merits of one aspect
of an application for special leave as if on an appeal. This is so rare that a relevant portion of
the judgment is reproduced below.
[1] …. This Court has emphasised in the past that the jurisdiction it exercises in determining an
application for special leave to appeal “is not a proceeding in the ordinary course of litigation”
but “a preliminary procedure recognized by the legislature as a means of enabling the Court to
control in some measure the volume of appellate work requiring its attention. [
13
] The Court has
explained [
14
]:
Such an application has special features which distinguish it from most other legal
proceedings. It is a long-established procedure which enables an appellate court to control in
some measure or filter the volume of work requiring its attention. Ordinarily, it results in a
decision which is not accompanied by reasons, or particularly by detailed reasons. It involves
the exercise of a very wide discretion, and that discretion includes a consideration of the
question whether the question at issue in the case is of such public importance as to warrant
7
High Court of Australia, Special leave applications results 2020: 11 March 2020
<https://www.hcourt.gov.au/registry/special-leave-applications-results-2020#Mar20>.
8
Judiciary Act 1903 (Cth), s 21; High Court Rules 2004 (Cth), pt 41.
9
Ibid.
10
Anthony Mason, ‘The Regulation of Appeals to the High Court of Australia: The Jurisdiction to Grant Special
Leave to Appeal’, (1996) 15 University of Tasmania Law Review 1; Haig Patapan, Judging Democracy: the new
politics of the High Court of Australia, (Cambridge University Press, 2000).
11
Re Heerey; ex parte Heinrich (2001) 185 ALR 106; Glennan v Commissioner of Taxation (2003) 198 CLR
250; Em v The Queen [2007] HCA 46, [238] (Kirby J).
12
[2023] HCA 42.
13
Citing with approval: Coulter v The Queen 164 CLR 350 at 356.
14
Citing with approval: Smith Kline & French Laboratories (Aust) Ltd v The Commonwealth [1991] HCA 43;
(1991) 173 CLR 194 at 217-218. (citations omitted)
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the grant of special leave to appeal. To that extent at least, the Court, in exercising its
jurisdiction to grant or refuse special leave to appeal, gives greater emphasis to its public role
in the evolution of the law than to the private rights of interests of the parties to the litigation.
[2] Accordingly, the giving of extensive reasons for the refusal of an application for special leave
to appeal has long been extremely rare. And because such reasons have been recognised to create
no binding precedent [
15
], it is important to the maintenance of legal certainty that the giving of
reasons for the refusal of such an application which descend in detail into the merits of the decision
under appeal should remain extremely rare. The Court has for some years scrupulously adhered to
the prudential practice of confining the exposition of its reasons for refusing such an application
to a concise summation of the principal factor or factors informing the exercise of its discretion.
Such a seemingly cogent explanation seems somewhat hollow when comparing the tack taken
in Pell v The Queen (“Pell”),
16
with Karam. In Pell the High Court of Australia did not really
give any reasons satisfactory to the law for allowing His Eminence to jump over the normal
requirement for special leave to appeal. In citing only three cases that on one view might have
had some passing relevance to the issue of special leave,
17
the High Court offered no real
authority in law allowing Pell to jump over the need first to obtain special leave to appeal. That
may be because on any objective view Pell did not have any real grounds for special leave.
Whilst the High Court ‘needs to control in some measure the volume of appellate work
requiring its attention’, hearing and determining only 18 criminal cases in the year to 30 June
2024,
18
does not immediately suggest that the High Court was so bogged down with the volume
of work that it made the reluctant decision not to hear Karam, even though it was a case of
public importance.
In Karam (as in Pell) the High Court does not attempt to eliminate the suspicion that they use
that ‘wide discretion’ they exercise to grant or deny (usually deny) special leave for a range of
usually undisclosed reasons based on politics, religion and the standing in the hierarchy of
society of those involved. Of course, the failure to give cogent detailed reasons for their
decision-making prevents any real challenge to the same. In taking this course, the High Court
seems to ignore the question that is the foundation of all legal systems. Why?
15
Citing with approval: Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd [2015] HCA 37; (2015) 256
CLR 104 at 117 [52], 113 [112], 134 [119].
16
Pell v The Queen (“Pell”) [2020] HCA 12; 268 CLR 123; 94 ALJR 394; 376 ALR 478.
17
Ibid. The judgment N 5 listed Chidiac v The Queen (1991) 171 CLR 432 at 444 per Mason CJ, citing
Chamberlain v The Queen [No 2] (1984) 153 CLR 521 at 618-619 per Deane J; see also M v The Queen (1994)
181 CLR 487 at 494 per Mason CJ, Deane, Dawson and Toohey JJ.
18
See Mark Alfred Clarkson, ‘The High Court of Australia Criminal Matters Annual Report 2024’,
ResearchGate, online at 4 July 2024 < https://www.researchgate.net/publication/382049929>.
2. Judgment of the Honourable Justice Phantom.
The Applications to this Court.
1. The Applicant seeks an extension of time within which to seek special leave to appeal
from the judgment of the Court of Appeal of the Supreme Court of Victoria (“VSCA”)
(Beach, McLeish, Kennedy JJA),
1
dismissing the Applicant’s appeal against
convictions for drug offences, which were dealt with in three separate proceedings.
The Offences.
2. On 1 May 2014, the Applicant pleaded guilty to a drug trafficking charge.
2
3. On 24 May 2012, the Applicant was found guilty at trial on a conspiracy to possess a
commercial quantity of an unlawfully imported border control drug.
4. On 14 November 2014, the Applicant was found guilty at trial of trafficking a
commercial quantity of a controlled drug and three days later the same jury found the
Applicant guilty of conspiracy to possess a commercial quantity of unlawfully imported
border control drugs.
3
5. The Applicant was sentenced to an overall total effective 37 years’ imprisonment with
a non-parole period of 22 years.
4
6. The Applicant was prosecuted in Victoria for federal offences and is now held in
Victorian jails as a Commonwealth prisoner.
5
The Proceedings Below.
7. On 31 March 2015, the VSCA refused leave to appeal the 24 May 2012 conviction and
sentence. On 15 April 2016, this Court refused special leave to appeal.
6
The Applicant
did not initially seek to appeal any of the convictions or sentences other than those
obtained on 24 May 2012.
7
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8. The Applicant made new applications to the VSCA relating to his convictions at two
trials, which he contended must be set aside because of the conduct of his former
barrister, Ms Nicola Gobbo (“Gobbo”). These applications were in essence second or
subsequent appeals. They were referenced to the Trial Division, constituted by a judge,
a series of issues for the purpose of making a reference determination.
8
Irregularities.
9. The VSCA found that such ‘irregularities’ that may have been perpetrated against the
Applicant in order to secure his imprisonment were ‘not fundamental’ nor ‘serious
departures’ from ‘trial processes’.
9
10. A total of 23 ‘irregularities’ were identified involving defence Counsel’s breaches of
duties of loyalty and confidentiality while simultaneously acting for the Applicant and
continuing in her role as a police informer.
10
11. The VSCA appears to have drawn a solid impenetrable line between the strict confines
of a trial commencing with the arraignment of the Applicant and the provision of
collateral legal advice and preparatory trial work, finding that nothing in ‘subsidiary
legal work’ performed by Gobbo could have prejudiced Applicant’s defence at trial.
11
They also found that representing the Applicant with respect to bail and custodial
matters was confined in subject matter and remote from the trials.
12
12. The VSCA appears to have found that the only duty that the criminal administration of
justice owes to an accused is to provide a ‘fair trial’. Extrapolating this logic, it appears
that the VSCA considered that everything and anything however unfair, repugnant, and
downright unlawful, that may have been done to an accused before trial doesn't count,
just as long as in the end the accused received a ‘fair trial’. Moral and mental gymnastics
aside, it is difficult to justify the delineation that the VSCA has made.
13. The VSCA made much of the often senior Counsel who acted for the Applicant as being
independent, honourable and experienced.
13
Without doubting that they held every fine
quality an accused and society could wish to see in barristers, the question remains
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could the best and most exemplary representation at trial undo and repair the egregious
wrongs perpetrated against the Applicant by the prosecutorial forces assisted by Gobbo,
his then police informing defence Counsel before he reached the commencement of his
trial on his arraignment? I do not think that it can.
14. The VSCA appears to have ruled in effect that Lady Justice,
14
will not get sick or die
eating the fruit of the poisonous tree, as long as that fruit is plucked only from the
uppermost branches of the poisonous tree far from its roots, and only then by senior
well-respected honourable fruit pickers operating completely independently from the
apparatchiks who planted, fertilised, watered, and tended the tree whilst it grew. Again,
I do not think this position can be maintained morally, ethically – or as a matter of law.
Constitutional Matters.
15. As for the other Australian States that are component parts of the Commonwealth of
Australia confederated under the Australian Constitution,
15
Victoria follows the United
Kingdom model of a largely unwritten Constitution. Not all the powers and duties of
the otherwise sovereign State of Victoria are committed to writing. The liberties and
freedoms of His Majesty’s subjects resident in the State of Victoria are largely
dependent upon the conventions and customs that are expressed in the protocols that
have built up over millennium. The will of the Legislature is expressed in those Statutes,
Regulations and Rules that are specifically passed or empowered by legislation. There
is no Constitutional protection for any of this legislation, which can be amended or
repealed at any time. Its interpretation is the province of the Courts.
16. Some Statutes are so central to that which defines Victoria, that they are regarded as
written parts of the otherwise unwritten Constitution of the State of Victoria. These
include the Constitution Act 1975 (Vic) and the other Statutes that constitute the Courts
and the Parliament.
16
These Acts are regarded as written parts of the otherwise
unwritten Constitution of the State of Victoria, not because they cannot be amended or
repealed, but because they are not amended or repealed very often, and then only
slowly, and with a good deal of debate and trepidation.
17
At least that is the theory.
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17. However, when Victoria repealed the centuries-old protection against double
jeopardy,
18
there appeared to be much ‘knee-jerk’ style haste, and not much evidence
of debate or trepidation.
19
Gone in a flash was what this Court unanimously found was
a rule ‘properly understood as a value which underpins the criminal law’.
20
Whilst it
may be within the power of the legislature to repeal any legislation, even that defining
values underpinning the criminal law, it is not for this Court to assume the role of the
legislature and repeal Acts of Parliament.
18. In DCM20 v Secretary of Department of Home Affairs,
21
Gordon, J found that three
chapters of the Australian Constitution empowered the Australian Parliament (Ch I),
Executive (Ch II), and the Judiciary (Ch III).
22
Her Honour also considered whether
this Court had the judicial power to consider the appeal in that case, finding that the
privative clause,
23
did not apply as the executive power utilised produced no ‘migration
decision’.
24
Gordon J also observed that clauses purporting to exclude the jurisdiction
of Courts may exceed the constitutional limitations on legislative power.
25
Doctrine of the Separation of Powers.
19. The essence of the Doctrine of the Separation of Powers ‘is that parliament makes law,
the executive administers it, and the judiciary – in the context of adjudicating individual
disputes – decides whether the law has been correctly construed and applied’.
26
20. Writing in 2008, before he became Chief Justice of this Court, the Honourable Stephen
Gageler noted that:
27
The essential elements of the decision-making process of a court are well understood and
can be simply stated. The court finds the facts. The court ascertains the law. The court
applies the law to the facts to decide the case.
21. Sir Harry Gibbs, former Chief Justice of this Court seems to have considered that
Australia followed the United States provisions investing the three powers of
government in separate persons or bodies, without really considering if separation of
powers would work with a constitution that was not presidential but included the British
system of parliamentary government.
28
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22. While initially the principal focus of the doctrine of separation of powers was not the
judiciary, Australian Courts have survived what may be seen as a putsch in Australia
for ever-closer union between the legislature and the executive, even though we have
sometimes struggled to make exacting delineations between the three powers.
29
Notwithstanding any reservations any members of this Court may have about applying
the law as the legislature has enacted it, it is nevertheless the role of this Court under
the Australian Constitution to apply the law as we interpret that law to the facts of the
cases that come before us.
23. In fulfilling this duty, we must not be swayed by what the police forces or other arms
of the executive may wish us to say and do. Nor must we be swayed by political rhetoric
about an increasing crime rate and its consequences. This matter provides this Court
with an opportunity to assert its independence from both the legislature and the
executive. We alone are the guardians of what the law demands.
24. We must also be conscious of that Australian executive agencies are growing in power
and influence, and that their power must be tempered with the appropriate checks and
balances. We should also note the warning from Geoffrey Watson, Director of the
Centre for Public Integrity observed that ‘the [Victorian] government's close
relationship with the powerful police union meant charges would never be laid over the
Lawyer X [Gobbo] scandal. Not under this government, not under this DPP, and not
while ever the most powerful trade union in Victoria is the Police Association, you'll
never get it. Nobody is willing to act to the interest contrary to the other. It's an awful
circumstance’.
30
25. We should also note that in Victoria, the Chief Examiner exercises extraordinary
coercive powers, pursuant to the Major Crimes (Investigative Powers) Act
2004 (Vic),
31
and that Victoria now has unsworn ‘intelligence officers’ acquiring and
using assumed identities, their activities not under the direct control of the Police
Commissioner.
32
These secret police units operate largely autonomously.
26. This Court must act as a foil and a shield against the assumption of absolute executive
power by any executive agency including police forces, secret police units, and any
agency exercising coercive powers, fulfilling our duty to ensure that they all operate
strictly within the confines of the law.
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Due Process of the Law.
27. For more than a thousand years, the proposition that no one shall be imprisoned other
than according to the due process of the law has been fundamental to any concept of
justice and Rule of Law. Central to the concept of due process is the notion that
imprisonment other than in accordance with the due process of the law is unlawful. The
remedy on Habeas corpus is to discharge the prisoner from that imprisonment.
28. The words due process first appear in Magna Carta,
33
and are repeated in several of the
Habeas Corpus Acts,
34
and in the Bill of Rights.
35
They appear in the 5th and 14th
Amendments to the United States Constitution,
36
and in Article 9(1) of the Optional
Protocol of the International Covenant for Civil and Political Rights.
37
They are
notionally incorporated into the Charter of Human Rights and Responsibilities Act 2006
(Vic), s 21(3).
38
The due process and the other requirements of those Imperial Acts
transcribed in the Imperial Acts Application Act 1980 (Vic),
39
are also regarded as
written parts of the otherwise unwritten constitution of the State of Victoria,
40
and are
said to continue to influence the development of the common law in Victoria.
41
29. The due process and the other requirements of those Imperial Acts transcribed in the
Imperial Acts Application Act 1980 (Vic), which remain in full force and effect in
Victoria, were considered by this Court in Dietrich v The Queen (“Dietrich”).
42
We
were then asked whether in Australian there was a right to Counsel for an accused
person facing trial where imprisonment was likely to result. We found that there is no
right to Counsel under Australian law as an adjunct to due process of the law or
otherwise. An accused does have a right to a fair trial, and ordinarily an adjournment
should be granted to allow arrangements to be made for representation of an accused
by Counsel.
30. This Court in Dietrich observed that due process of the law has received scant attention
in Australia,
43
and that it does not mean in Australia what it means in the United
States.
44
However, we did not provide an extensive definition of due process of the law
or outline what it does mean in Australia.
45
Traditionally courts are shy to make broad
definitions obiter dicta, preferring to let definitions and concepts expand and contract
on a case-by-case basis. This should not be seen as this Court saying that in Australia
due process of the law is an entirely meaningless expression, that whatever process
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effected the imprisonment of anyone will be regarded as the due process of the law, or
that we will ignore, or implicitly repeal historical impediments to inquisitorial powers.
46
It is not our role to repeal legislation but to interpret and apply it.
31. Examining the circumstances surrounding the activities of Gobbo has consumed many
public resources. It is appropriate only to summarise the steps here. A Royal
Commission (“RCMPI”),
47
investigated the matter and recommended that the matter be
investigated.
48
Sir David Carruthers KNZM was appointed as ‘Implementation
Monitor’.
49
A retired Justice of this Court, the Honourable Geoffrey Nettle AC KC was
appointed ‘Special Investigator’ to consider whether criminal or disciplinary charges
were warranted in response to the matters uncovered by the RCMPI.
50
His
recommendations to the Victorian Director of Public Prosecutions (“DPP”) that certain
people be charged with criminal offences was rejected.
51
On 2 February 2024, pursuant
to the provisions of the Special Investigator Repeal Act 2023 (Vic), the Office of the
Special Investigator (“OSI”) was decommissioned.
52
32. The then Victorian Attorney-General Jaclyn Symes refused to be drawn on the merits
of that posited by OSI Justice Nettle and DPP Kerri Judd, saying only that ‘the
government was committed to ensuring the debacle would never be repeated’.
53
The
Victorian Premier seems to have interpreted ‘making sure it never happens again’,
54
as
ensuring that no one can ever again name police informer Judges and lawyers, rather
than ensuring that Victoria Police never again recruit them. Consequently, the Human
Source Management Act 2023 (Vic),
55
makes it an offence to disclose the names of
police-informers recruited, including lawyers, Judges, journalists, and children.
33. We should in this light ensure that whatever else due process of the law may mean in
Australia, it cannot permit police, defence Counsel, prosecutor, and Judges all working
in collaboration to pervert the course of justice to secure criminal convictions. Anybody
whose imprisonment is secured pursuant to such a regime has been imprisoned other
than according to the due process of the law. As noted above, the usual remedy is to
discharge that person from their imprisonment by writ of Habeas corpus. The remedy
is not directed to the veracity of the criminal convictions obtained against them, but to
the legality of the means used to imprison them.
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34. It is timely to repeat at this juncture that the requirement for due process of the law is a
statutory requirement in Victoria, and that this requirement applies to Commonwealth
prisoners who are prosecuted and imprisoned in Victoria.
Australian International Obligations.
35. Australia is a signatory to the International Covenant on Economic, Social and Cultural
Rights (‘ICCPR’),
56
its Optional Protocol,
57
and other UN treaties and conventions
dealing with Human Rights, which are built on the due process model. Australia urges
other countries to adopt these international instruments as part of their domestic law.
36. As Mason CJ and McHugh J point out in Dietrich,
58
following the earlier decision in
Bradley v Commonwealth,
59
without specific local domestic enabling legislation, these
international agreements and instruments are not part of Australian domestic law.
60
However, the Australian Commonwealth does have some legislative capacity make
things inspired by international treaties and instruments including the ICCPR part of
Australian domestic law – if it chose to do so. Mostly it chooses not to do so.
37. In a comparatively rare exception, Australia did sign the Statute of Rome (‘Rome
Statute’)
61
constituting the International Criminal Court (‘ICC’) and made it part of
Australian Domestic Law. The International Criminal Court Act 2002 (Cth) came into
force in Australia on 28 June 2002. The Commonwealth of Australia Attorney
General’s Department notes that:
62
The Act establishes mechanisms to facilitate Australia’s compliance with its obligations
under the Rome Statute of the International Criminal Court (the Rome Statute), including
those relating to the provision of investigative assistance and the arrest and surrender of
suspects.
The crimes over which the ICC can exercise jurisdiction under the Rome Statute (genocide,
war crimes and crimes against humanity) are criminalised under Australia’s domestic law
and, in each instance, apply whether or not the alleged offence occurs in Australia and
regardless of whether the alleged offender is an Australian national.
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38. Australia did not ratify 2010 amendments to the Rome Statute, and the ‘crime of
aggression’ is not criminalised under Australian domestic law. In Australia, the
jurisdiction of the ICC is currently limited to the crimes of genocide, crimes against
humanity, and war crimes.
63
But quaere whether these crimes are criminalised only
under Commonwealth domestic law and not the domestic law of the Australian States
or Territories?
39. Extrapolating the decision of the Full Court of the Federal Court of Australia in
Minogue v Human Rights and Equal Opportunity Commission,
64
suggests that the
International Criminal Court Act 2002 (Cth) may only make the crimes over which the
ICC can exercise jurisdiction in Australia under the Rome Statute (genocide, war crimes
and crimes against humanity) an offence against Commonwealth law, but that they
cannot be investigated or prosecuted if perpetrated by or in one of the States, including
Victoria.
40. However, as noted above, the Applicant is a Commonwealth prisoner prosecuted in
Victoria under federal legislative provisions. The Judiciary Act 1903 (Cth) s 68, imports
into Commonwealth law all the laws, practices, and procedures of State criminal law
for disposing of offences against the Commonwealth committed in a State.
Commonwealth offenders, such as the Applicant are tried and sentenced in State courts
following local State trial procedures and practices, as tempered by Commonwealth
law. Commonwealth offenders are held in state gaols.
65
41. The Judiciary Act 1903 (Cth) s 80, provides:
So far as the laws of the Commonwealth are not applicable or so far as their provisions are
insufficient to carry them into effect or to provide adequate remedies … the Common Law
in Australia as modified by the Constitution and the statute law in force in the State … in
which the Court in which jurisdiction is exercised is held shall, so far as is applicable and
not inconsistent with the Constitutional laws of the Commonwealth govern all Courts
exercising Federal jurisdiction in the exercise of their jurisdiction in civil and criminal
matters.
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42. Like the Fourteenth Amendment to the US Constitution but flowing in the opposite
direction these Sections import into Commonwealth law the written due process
requirements of the Imperial Acts the force and effect of which is confirmed by the
Imperial Acts Application Act 1980 (Vic) and in particular the provisions in [1354] 28
Edward III c. III,
66
and [1368] 42 Edward III c. III,
67
considered by this Court in
Dietrich.
68
Historical background of Crimes against Humanity.
43. Some scholars have argued that crimes against humanity are as old as humanity itself,
and were first established to bridge certain gaps in the law of war.
69
For instance, during
the Nuremberg trial, some defendants were charged with war crimes, and crimes against
humanity for certain crimes that would now be defined as genocide.
70
However, other
scholars believe that crimes against humanity can be traced back to World War I after
the enforced displacement and murder of Armenians, denounced by the Allied powers
as ‘crimes against civilization and humanity’.
71
Thereafter the concepts included in
crimes against humanity have been developed in many scholarly writings and
international instruments with slight differences in definitions.
72
44. For instance, the Charter of the International Military Tribunal (‘IMT’),
73
Article 6
defines crimes against humanity as:
Murder, extermination, enslavement, deportation, and other inhumane acts committed
against any civilian population, before or during the war, or persecutions on political,
racial, or religious grounds in execution of or in connection with any crime within the
jurisdiction of the Tribunal, whether in violation of the law of the country where
perpetrated.
45. The Statute of the International Criminal Tribunal for the former Yugoslavia (‘ICTY’)
74
Article 5 defines crimes against humanity in similar fashion to that in the Charter of the
IMT Article 6 but does not include ‘inhumane acts committed … before or during the
war’ and added ‘crimes when committed in armed conflict, whether international or
internal in character’.
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46. Similarly, the International Criminal Tribunal for Rwanda (‘ICTR’),
75
Article 3 added
to the definition of crimes against humanity ‘crimes when committed as part of a
widespread or systematic attack’. Left out of the definition were ‘inhumane acts
committed … before or during the war’ found in the Charter of the IMT Article 6, and
‘crimes when committed in armed conflict’, found in the Statute of ICTY Article 5.
47. Lastly, the Rome Statute Article 7(1) defines crimes against humanity as it is defined in
the ICTR Article 3 but adds ‘with [the attackers] knowledge of the attack’, leaving out
the expressions in both the Charter of the IMT Article 6, and of the Statute of ICTY
Article 5 mentioned above.
The ‘State or Organizational Policy’ element in Crimes against Humanity.
48. While the Rome Statute Article 7(1) defines and lists all the crimes that can amount to
crimes against humanity, Article 7(2)(a) which defines the word ‘attack’ requires that
for crimes against humanity to be prosecuted, it must be committed, ‘in furtherance of
a state or organizational policy…’. However, this does not necessarily mean that the
state or organization must be actively involved in encouraging or promoting the
criminal conduct or crimes against humanity. A state or organizational policy to commit
an attack may include acquiescing in, tolerating, or a failure by a state to prevent or
punish the commission of the crimes as stipulated in the Rome Statute Article 7(1).
49. The elements under the Rome Statute Article 7(1) may also be established when the
acts are being ‘committed as part of a widespread or systematic attack [where the
attacks are] directed against civilian populations, and [the attackers have] knowledge
of the attack’.
Imprisonment in Victoria as a Crime against Humanity.
50. Crimes against Humanity include imprisonment in violation of the fundamental rules
of international law, which are based upon the ICCPR protocols. The actions in Victoria
of both Victoria Police (as an organisation) and the State of Victoria (as a State actor)
violated the ICCPR protocols which are widely regarded as amongst the fundamental
rules of international law, and the due process requirements of those Imperial Acts in
full force in effect in Victoria pursuant to the Imperial Acts Application Act 1980 (Vic).
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51. For more some decades there has been a widespread systemic attack upon certain
sections of the community which seemed particularly levelled against people of a
migrant non-Australian background. The attack was perpetrated by police, lawyers, and
judges acting in concert at the direction of, or with the acquiescence of the State of
Victoria. Quite apart from the ethnicity of the people targeted, Victoria as a State Actor
is guilty of acquiescing in, tolerating, and failing to prevent or punish the commission
of the crimes by Victoria Police as an Organisation. All this makes the matters a crime
against humanity for the purposes of the International Criminal Court Act 2002 (Cth),
and the Rome Statute.
52. Even on the narrower standard for ‘state-like’ organizations posited in dissent by Judge
Kaul in the Pre-Trial Chamber II in the Kenya Situation,
76
Victoria Police would appear
to be an organization, and the State of Victoria, a State actor. But no doubt, Victoria
and Victoria Police would dispute such a finding, preferring to posit the view that the
corruption was perpetrated by only a few ‘bad apples’ and it was never sanctioned by
the State or any organization of the State. Proving the contrary may be difficult, but
more importantly attempting to meet the requirement to prove state or organizational
involvement diverts the resources that might be better employed bringing the culprits
to justice. Victoria has already spent hundreds of millions of dollars attempting to bury
the scandal and appears quite willing to spend a few hundred million more on the quest.
Clearly for the Applicant none of this presents any real remedy.
Has Victoria genuinely attempted to prosecute the offenders?
53. The Australian Attorney-General's Department notes that:
77
Under the Rome Statute a case will be inadmissible before the ICC if the relevant conduct
is being investigated or prosecuted by a State with jurisdiction unless the State is unwilling
or genuinely unable to carry out the investigation or prosecution. Australian authorities
can therefore investigate and prosecute crimes within the ICC’s jurisdiction, allowing
Australia to retain primary jurisdiction over such crimes alleged to have been committed
in Australian territory or by Australian citizens.
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54. The State of Victoria and Victoria Police appear to be seeking not merely to justify the
actions of Gobbo and those particeps criminis in her offending, but to ensure that the
actions of lawyers that emulate those of Gobbo, and her compatriots are allowed to
continue.
55. For example, Dr Olivia Grosser-Ljubanovic, who gained a PhD from the University of
Adelaide for her thesis on Legal Professional Privilege,
78
seems to advocate in her
submission to the RCMPI that Defence Counsel fully cooperating with police should
become a legal duty rather than just a privilege as at present.
79
Other submissions from
police sympathizers and a former Commissioner of Victoria Police are in a similar
vein.
80
Former special gangland crown prosecutor Geoff Horgan, of Senior Counsel,
defending the police said: ‘They were acting, as they saw it in my opinion, in the public
interest’.
81
These are not views expressed by mere fringe groups. What may appear to
be merely a police officer's wish list have now been embraced by the enactment of the
Human Source Management Act 2023 (Vic).
82
56. The imprisonment of the offenders selected, including the Applicant violates the
ICCPR protocols widely regarded as amongst the fundamental rules of international
law, which are based upon the due process requirements of those Imperial Acts in full
force in effect in Victoria pursuant to the Imperial Acts Application Act 1980 (Vic).
Because the corrupt devices are systemic and a widespread attack against that section
of the community, particularly those of a migrant or non-Australian background alleged
to have committed offences, as part of a state and organizational policy, it would seem
to fall within the definition of crimes against humanity.
57. The ICC may well consider the 100 page ‘Victorian Government's Response and
Implementation Plan’
83
a Kenyan-style snow job, but on one view the Kenyans did a
better job! Certainly, the ICC may not consider the appointment of Sir David Carruthers
as Implementation Monitor, and the later appointment of former High Court judge
Geoffrey Nettle as Investigator, as genuine steps towards the prosecution of those who
perpetrated the Crimes against Humanity, but just as devices designed merely to protect
from justice those who systemically committed crimes against humanity in order to
imprison offenders. In essence imprisonment was weaponized.
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58. This is particularly so when viewed against the fact that nobody investigated was
prosecuted, and the OSI then decommissioned. Most of those imprisoned by the
impugned regime, including the Applicant remain in prison. The enactment of the
Human Source Management Act 2023 (Vic),
84
appears to be an attempt to legislatively
entrench the impugned behaviour of everybody involved in prosecutions based on the
‘Gobbo model’ and protect the perpetrators of crimes against humanity in Victoria from
any action that might otherwise be taken against them, and allow them to continue their
activities. More recently, Victoria sought to enact legislation to extinguish civil actions
arising out of the scandal.
85
It was later amended to cap the liability.
Can the ICC take over the Investigation and Prosecution?
59. In the Decision on the Application by the Government of Kenya Challenging the
Admissibility of the Case Pursuant to Article 19(2)(b) of the [Rome] Statute
(ICC.01/09-01/11), the ICC Pre-Trial Chamber II found that the ICC could (and should)
prosecute crimes where a State demonstrated an unwillingness or inability to prosecute.
Supervisory Duty.
60. By exercising our power to supervise and regulate inferior Courts, we supervise and
regulate the whole of the administration of justice the decisions of those Courts portend.
We are not merely an appellate Court strictly so called. We have a range of
jurisdictions. We are not confined under the Australian Constitution to a role
subordinate to the Courts of Appeals of the States, nor should we consider that their
decisions are final, or take the view that we should simply rubber stamp those decisions
and not otherwise interfere. We can hear appeals strictly so called, and where we find
error of law, we can review the decisions of inferior Courts and Tribunals for those
errors.
61. A Full Bench of this Court in The Roy Morgan Research Centre Pty Ltd v
Commissioner of State Revenue,
86
considered the radical difference between leave to
initiate originating judicial process to review a decision of an administrative
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decision-maker for error of law, and leave to initiate an appeal against the decision of
a Court, finding:
In Kemper Reinsurance Co v Minister of Finance [2000] 1 AC 1, the Privy Council
considered whether the provision of the Court of Appeal Act 1964 of Bermuda permitted
an appeal against an order refusing leave to apply for an order of certiorari.
Lord Hoffmann, giving the advice of the Privy Council, considered that it was (at 15) "by
no means obvious that a refusal of leave to challenge [the] legality [of a decision subject
to judicial review] should be final". His Lordship said (at 14-15):
In principle … judicial review is quite different from an appeal. It is concerned with
the legality rather than the merits of the decision, with the jurisdiction of the
decision-maker and the fairness of the decision-making process rather than whether the
decision was correct. In the case of a restriction on the right of appeal, the policy is to
limit the number of times which a litigant may require the same question to be decided.
The Court is specifically given power to decide that a decision on a particular question
should be final. There is obviously a strong case for saying that in the absence of
express contrary language, such a decision should itself be final. But judicial review
seldom involves deciding a question which someone else has already decided. In many
cases, the decision-maker will not have addressed his mind to the question at all. The
application for leave may be the first time that the issue of the legality of the decision
is raised". (emphasis added)
Why we should hear this matter.
62. My fellow justices have indicated that they intend to refuse an extension of time within
which to seek special leave to appeal, on the basis that the application has insufficient
prospects of success to warrant a grant of special leave to appeal, and it would therefore
be futile to grant the extension of time that is sought. They also propose to refuse special
leave to appeal. My judgment must therefore be in dissent.
63. This Court previously dealt with some issues that touch on the periphery of the concept
of police-informer Judges and lawyers,
87
which has the potential to strike at the
fundamentals which constitute the heart of the Australian legal system. We should not
lightly dismiss an application for special leave without allowing these issues to be
ventilated.
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64. This case may an opportunity for this Court to assume leadership and define the
boundaries in the criminal administration of justice, beyond which prosecutorial forces
are not permitted to go. We have an opportunity to bring the ‘do whatever it takes’
mentality back within the confines of the law – so that it becomes ‘do whatever it takes
as long as it is lawful’. And who those prosecutorial forces may ask determines what is
lawful? We have an opportunity to tell them that is what we do!
65. It is not immediately clear that an appeal pitched to a gross violation of the Applicant’s
right to due process of the law can be dismissed out of hand as having insufficient
prospects of success before we have heard argument.
66. Gleeson CJ in Re McBain; Ex parte Australian Catholic Bishops Conference,
88
observed that:
Not all parties to legal disputes submit their disputes for resolution by the judicial process.
If they do not, no occasion for the exercise of judicial power arises. Courts do not have a
mandate to seek out interesting and important questions of law, and decide them,
irrespective of the desire of parties to litigate.
67. The observations of Gleeson CJ should not be interpreted as meaning that this Court
has no interest in ‘interesting and important questions of law’ and merely restricts itself
to the concepts of law that immediately arise in the few cases that come before us. We
all share an interest in the questions that guide the fundamental foundations of the
Australian system of justice, and a duty under the Australian Constitution to provide
overarching supervisory support for the regulation of all the Courts in Australia.
68. Karam raises issues that go beyond the innocence or guilt of the Applicant. As observed
below, the matter puts in question what the Privy Council,
89
and this Court,
90
considered to be the legality not only of the decision-making processes employed in
the investigation, prosecution and defence of the Applicant, but the legality of the
actions taken by all involved. By adding our imprimatur to unlawful actions taken in
order to prosecute crime we risk granting a licence to prosecutorial forces to become
criminals in order to bring criminals to justice. This we cannot do.
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69. This Court has the duty to provide guidance and leadership to Australian Judges,
Prosecutors, Defence Counsel, Police, and other agencies. Through our decisions we
advise what is permitted, and what is not permitted in the Australian administration of
justice. We must not signal that they are expected to behave corruptly and unlawfully
to achieve a preordained result for the ‘greater good’ or in the ‘public interest’.
70. Rarely are any found to have exceeded the permitted ‘accidents of evil means’
91
or
‘accidents of incompetence’
92
and moved to the now proscribed ‘instances of deliberate
or advertent reckless disregard of a duty or obligation’
93
(whatever that may mean from
time-to-time) which might found a permanent stay of the proceedings. There are a lot
of ‘accidents’ in Australian justice. We seem to be making ever more elaborate excuses
for the ever more elaborate corrupt excesses of prosecutorial forces. This we must no
longer continue to do.
71. Appellate courts in California first coined the expression ‘fruit of the poisonous tree’ to
describe the concept of the Protestant/Liberal due process model. Everything that
flowed from a failure to follow the rules for criminal investigation and prosecution
became tainted and inadmissible. Successively state and federal courts throughout
America followed the Californian lead, accepting that this concept was the only
effective way of controlling corrupt and unlawful conduct by investigators, prosecutors,
and Judges.
72. The Protestant/Liberal concept of due process of the law follows the English model.
From when the Roman Catholic King John was forced at the point of a sword to sign
Magna Carta, the concept was coined that no person should be imprisoned other than
according to due process of the law. The whim of the executive was not considered due
process. The concept was repeatedly reaffirmed throughout English history to
constraint the otherwise absolute executive power which the English Crown sought to
wield. The Habeas Corpus Acts provided a check and balance. If anybody was
imprisoned other than according to the due process of the law their release could be
procured on the return of the writ.
73. This English scheme was imported into the fledgling Australian colonies. The
legislative base is contained in the Imperial Acts Application Act 1980 (Vic) and said
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to remain in full force and effect. This Protestant/Liberal concept of due process of the
law and the legislative base on which it is founded are considered written parts of the
otherwise unwritten constitution of the State of Victoria.
94
74. In Karam, the VSCA has reduced the scope of due process of the law just to embrace
the trial process that immediately led to the conviction of an accused. They refused to
embrace the notion that the Protestant/Liberal approach to due process envelops each
and every step in the investigation, arrest, imprisonment, evidence gathering, and the
trial process. In doing so, they have reversed over a thousand years of judicial doctrine
and taken Australian back to the position before Magna Carta – ironically still in full
force and effect in Victoria pursuant to the Imperial Acts Application Act 1980 (Vic).
This application of the Summum bonum of Roman Catholic Law and Doctrine must be
rejected as contrary to Australian law. We are bound by the Australian Constitution
and Australian law, not the Irish Constitution and Roman Catholic Law and Doctrine.
75. The Irish Roman Catholic former Chief Justice of this Court, the Honourable Murray
Gleeson AO KC seems to have been confused when he swore on his appointment to
uphold the Constitution. He apparently thought that meant the Irish Constitution.
Certainly, his missive on ‘Rights and Values’ closely follows the teachings of the
Roman Catholic Church and helped propagate the ‘balancing’ approach to due process
of the law in Australia.
95
76. The ‘balancing’ approach to due process of the law emulates the Fundamental Rights
found in the Irish Constitution,
96
infamously written by John Charles McQuaid,
Archbishop of Dublin, and Éamon de Valera, Taoiseach, on behalf of the Roman Catholic
Church.
97
77. Besides being country to Australian law, this balancing approach is inconsistent with the
ICCPR,
98
and international law. It has led to the modern iteration of the Summum bonum
described as the ‘do whatever it takes’ approach to the criminal administration of justice.
It means just that. Nothing is sacred, no one is barred, and no act is too low in the pursuit
of the mystical ‘greater good’ –even crimes against humanity. We should refuse to add
our imprimatur to this new doctrine.
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78. In asserting our independence from the legislature and the executive, we must hold
ourselves above the criticism that is bound to flow from some sections of the community,
if we make decisions that have the effect of ‘letting criminals go’. We must not apologise
for upholding the law. We must accept that the wiser more enlightened members of the
community will soon come to accept that it was not us who let criminals go. The blame
for that must be attributed to those who stepped outside the norms that govern the
Australian administration of justice.
79. In coopting members of the legal profession as covert police agents, they went too far.
Way too far. The adversarial nature of the justice system depends for its veracity on the
integrity and independence of prosecutorial and defence counsel, and the judiciary.
80. The community-at-large will not long accept that the only person who must obey the law
is the accused sitting in the dock. The community acceptance of the power and prestige
of those involved in the administration of justice is built on the community feeling
comfortable not only with the conviction and sentencing of an accused, but with the
processes employed to achieve that ‘just end’. The application of processes that give the
community cause for disquiet will not long be tolerated. We must not continue to address
these concerns by dismissing them as ‘accidents’ of evil means’
99
or ‘accidents of
incompetence’
100
on the basis that they did achieve a ‘just end’.
Proposed Orders.
81. As noted above, Karam comes before this Court on an application for an extension of
time within which to seek special leave to appeal from the judgment of the Court of
Appeal of the Supreme Court of Victoria (Beach, McLeish, Kennedy JJA),
101
dismissing the Applicant’s appeal against convictions for drug offences.
82. Were the extension of time and the application for special leave to appeal granted, the
matter would then be before us on an appeal strictly so called. However as noted above,
this Court is not restricted in the exercise of its powers to those available only on an
appeal strictly so called. We can also exercise our supervisory and regulatory powers
by making orders in the nature of those available on the return of what have come
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become known as constitutional writs – in particular orders in the nature of Certiorari,
Mandamus, and Habeas corpus.
83. I would grant the extension of time and special leave and refer the matter to a full court
by way of appeal. So that Counsel for the prosecution are fully informed, I would also
foreshadow the making of orders in the nature of Habeas corpus and invite them to
present argument to this Court as if on the return of that writ. Counsel for the
prosecution will no doubt be aware that this Court may make an order in the nature of
Habeas corpus to release the Applicant from his imprisonment on the basis that it was
occasioned other than according to the due process of the law. The Applicant once set
at large on Habeas corpus cannot at any time thereafter be again imprisoned or
committed for the same offences.
102
___________________
1
Karam v The King [2023] VSCA 318 (14 December 2023).
2
Ibid, [4].
3
Ibid, [3].
4
Ibid, [4].
5
See N 65 and related text.
6
Ibid, [2].
7
Ibid.
8
Ibid, [5]-[8].
9
Ibid, [239]-355].
10
Ibid, [208]-[363].
11
Ibid, [231]-[374].
12
Ibid, [252].
13
Ibid, [154]-[157]; [209]; [332]; [352]; [389].
14
Valérie Hayaert, Lady Justice: An Anatomy of Allegory (Edinburgh University Press,
2023).
15
Commonwealth of Australia Constitution Act 1900 (Imp).
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16
Including the Constitution (Appointments) Act 2009 (Vic); Constitution (Council
Vacancies) Act 1984 (Vic); Constitution (Supreme Court) Act 1989 (Vic).
17
McCawley v R (1918) 26 CLR 9, 52 (Isaacs and Rich JJ).
18
Criminal Procedure Act 2009 (Vic), ch 7A—Limitations on rules relating to double
jeopardy (inserted by No. 81/2011 s. 17).
19
Marilyn M McMahon, ‘Retrials of persons acquitted of indictable offences in England and
Australia: Exceptions to the rule against double jeopardy’ (2014) 38 Criminal Law Journal
159, 163.
20
Bui v DPP (Cth) (2012) 244 CLR 638 (emphasis in original), following Pearce v The
Queen (1998) 194 CLR 610, 614; see also Yuce Baykara, Acquitted with an Asterisk:
Implementing the ‘New Double Jeopardy’ Exception into Canadian Law (Master of Laws
Thesis, University of Toronto, 2012) 28-32.
21
[2023] HCA 10 (12 April 2023).
22
Ibid, [68]-[69].
23
Migration Act 1958 (Cth) s 476A(1).
24
Davis & DCM20, above N 42 and related text, [177]-[178].
25
Ibid, [179].
26
John McMillan, ‘Re-thinking the Separation of Powers’, (2010) 38 (3) Federal Law
Review 423.
27
The Hon Stephen Gageler, ‘Fact and law’ (2008) 11 (1) Newcastle Law Review 1.
28
Sir Harry Gibbs, ‘The Separation of Powers—A Comparison’, (1987) 17 (3) Federal Law
Review 151, 152.
29
Cheryl Saunders, ‘Separation of Powers and the Judicial Branch’, (2006) 11 (4) Judicial
Review 337, 347-348.
30
Richard Willingham, ‘Special investigative office probing Lawyer X scandal to be shut
down with no charges laid’, ABC News, online at 27 June 2023
<https://www.abc.net.au/news/2023-06-27/special-investigative-office-lawyer-x-scandal-to-
shut-down/102530866>.
31
Chief Examiner, Chief Examiner (2024)
<http://www.chiefexaminer.vic.gov.au/content.asp?a=OCESite>.
32
Jaclyn Symes, Attorney-General Victoria, ‘More Police Powers To Crack Down On
Organised Crime’ (Media Release, 02 August 2022).
33
[1297] 25 Edward I c. XXIX (Magna Carta).
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34
[1640] 16 Charles I c. X (The Habeas Corpus Act); [1679] 31 Charles II c. II; [1816] 56
George III c. C.
35
[1688] 1 William and Mary Sessions II c. II (The Bill of Rights) 3.
36
Steve Bachmann, ‘Starting Again with the Mayflower... England's Civil War and
America's Bill of Rights’ (2000) 20 (2) Quinnipiac Law Review 193.
37
Optional Protocol to the International Covenant on Civil and Political Rights, opened for
signature 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976).
38
But not ipsissima verba, although there appears to be no real difference in the effect of the
words used.
➢ 5th Amendment: ‘No person shall be … deprived of life, liberty or property without
due process of law…’
➢ 14th Amendment: ‘nor shall any state deprive any person of life, liberty or property
without due process of law…’.
➢ [1354] 28 Edward III c. III: ‘no man shall be put out of land or tenement, nor taken,
nor imprisoned, nor disinherited, nor put to death, without being brought in answer
by due process of the law’.
➢ [1368] 42 Edward III c. III: ‘no man shall be put to answer without … due
process …’.
➢ ICCPR, Art 9(1): ‘No one shall be deprived of his liberty except on such grounds
and in accordance with such procedure as are established by law’.
➢ Charter of Human Rights and Responsibilities Act 2006 (Vic), s 21(3): ‘A person must
not be deprived of his or her liberty except on grounds, and in accordance with
procedures, established by law’.
39
Emulated in some other Australian States: see for example the Imperial Acts Application
Act 1969 (NSW).
40
McCawley v R (1918) 26 CLR 9, 52 (Isaacs and Rich JJ).
41
Antunovic v Dawson (2010) 30 VR 355, 362 [25].
42
(1992) 177 CLR 292.
43
Before Ibrahim. See Dietrich, 304, and the reference to R v Ibrahim [1987] 17 A Crim R
460.
44
Dietrich, 304, following Adler v District Court [1990] 19 NSWLR 317.
45
Ibid 307.
46
For example, the procedures of the Star Chamber emulated by the Chief Examiner are
proscribed by [1640] 16 Charles I c. X (The Habeas Corpus Act), and incarceration to
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facilitate the investigations of a Royal Commission is imprisonment other than according to
due process of the law: [1627] 3 Charles I (Petition of Right) c. I and [1688] 1 William and
Mary Sessions II c. II (The Bill of Rights).
47
Royal Commission into the Management of Police Informants (Linda Dessau AC,
Governor of the State of Victoria, Letters Patent issued 13 December 2018)
<https://www.rcmpi.vic.gov.au/Letters-Patent>.
48
Royal Commission into the Management of Police Informants, (Final Report Summary, 7
December 2020) <https://www.rcmpi.vic.gov.au/summary/final-report-summary>.
49
The Hon Daniel Andrews, Premier of Victoria, ‘Royal Commission Implementation
Monitor Appointed’ (Media Release, 01 March 2021)
<https://www.premier.vic.gov.au/royal-commission-implementation-monitor-appointed>.
50
The Hon Daniel Andrews, Premier of Victoria, ‘Former High Court Judge Appointed As
Special Investigator’ (Media Release, 30 June 2021)
<https://www.premier.vic.gov.au/former-high-court-judge-appointed-special-investigator>.
51
Dan Oakes, ‘Special investigator probing Lawyer X case lashes Victoria's chief prosecutor
for refusing to charge those involved’, ABC News, online at 21 June 2023
<https://www.abc.net.au/news/2023-06-21/lawyer-x-gobbo-investigator-nettle-criticises-
prosecutor-judd/102504738>.
52
On 2 February 2024, the Special Investigator Repeal Act 2023 came into operation,
repealing the Special Investigator Act 2021 and abolishing the Office of the Special
Investigator (OSI).
53
Dan Oakes, ‘Special investigator probing Lawyer X case lashes Victoria's chief prosecutor
for refusing to charge those involved’, ABC News, online at 21 June 2023
<https://www.abc.net.au/news/2023-06-21/lawyer-x-gobbo-investigator-nettle-criticises-
prosecutor-judd/102504738>.
54
Royal Commission into the Management of Police Informants, (Final Report Summary, 7
December 2020) <https://www.rcmpi.vic.gov.au/summary/final-report-summary>.
55
The Hon. Daniel Andrews, ‘Landmark Reforms To Manage Police Informants’ (Media
Release, 07 February 2023) <https://www.premier.vic.gov.au/landmark-reforms-manage-
police-informants>.
56
International Covenant on Economic, Social and Cultural Rights, open for signature 19
December 1966, 999 UNTS 3 (entered into force 03 January 1976).
57
Optional Protocol to the International Covenant on Civil and Political Rights, opened for
signature 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976).
58
(1992) 177 CLR 292, 391.
59
(1973) 128 CLR 557, 582.
60
Reaffirmed in Minister for Immigration and Ethnic Affairs v Ah Hin Teoh (1995) 183 CLR
273, 287.
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61
Rome Statute of the International Criminal Court (last amended 2010), opened for
signature 17 July 1998, 2187 UNTS 90 (entered into force 1 July 2002).
62
Commonwealth of Australia, Attorney-General’s Department Annual Report 2021-22,
Appendix 4. The International Criminal Court (2022), 143
<https://www.ag.gov.au/system/files/2022-10/attorney-generals-department-annual-report-
2021-22.pdf>.
63
Ibid.
64
[1999] FCA 85; 84 FCR 438; 166 ALR 129 (Coram judice: Sackville, North and Kenny
JA).
65
Australian Constitution, s 120.
66
[1354] 28 Edward III c. III provides: ‘… no man shall be put out of land or tenement, nor
taken, nor imprisoned, nor disinherited, nor put to death, without being brought in answer by
due process of the law’.
67
[1368] 42 Edward III c. III provides: ‘… no man shall be put to answer without … due
process …’.
68
Dietrich above N 58.
69
Robert Cryer, Håkan Friman, Darryl Robinson and Elizabeth Wilmshurst, An introduction
to International Criminal law and procedure, (Cambridge University Press, 4th ed, 2019)
230.
70
Ibid, 206.
71
Iryna Marchuk, The Fundamental Concept of Crime in International Criminal Law – A
Comparative Law Analysis (Springer Heidelberg, London, 2014) 82.
72
Above N 15.
73
Charter of the International Military Tribunal - Annex to the Agreement for the
prosecution and punishment of the major war criminals of the European Axis ("London
Agreement") 82 UNTS 279 (signed and entered into force 8 August 1945).
74
Statute of the International Criminal Tribunal for the former Yugoslavia, 2178 UNTS 135
(entered into force 12 April 2002).
75
Statute of the International Criminal Tribunal for the Prosecution of Persons Responsible
for Genocide and Other Serious Violations of International Humanitarian Law Committed in
the Territory of Rwanda and Rwandan Citizens Responsible for Genocide and Other Such
Violations Committed in the Territory of Neighbouring States, between 1 January 1994 and
31 December 1994, Annexed to Security Council Resolution 955 (1994) 33 ILM 1598
(entered into force 8 November 1994).
76
Mathias Holvoet, ‘The State Or Organizational Policy Requirement within the Definition
Of Crimes Against Humanity in the Rome Statute: An Appraisal Of The Emerging
Jurisprudence and the Implementation Practice by ICC States Parties’, (ICD Brief 2,
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P a g e | 25
International Crimes Database, October 2013)
<https://www.internationalcrimesdatabase.org/upload/documents/20131111T105507-
ICD%20Brief%20%202%20-%20Holvoet.pdf>.
77
Commonwealth of Australia, Attorney-General’s Department Annual Report 2021-22,
Appendix 4. The International Criminal Court (2022), 143
<https://www.ag.gov.au/system/files/2022-10/attorney-generals-department-annual-report-
2021-22.pdf>.
78
Olivia Grosser-Ljubanovic, Legal Professional Privilege: The influence of Jeremy
Bentham and John Henry Wigmore on the judicial pronouncement of Lord Taylor of
Gosforth in R v Derby Magistrates’ Court; ex parte B. (Thesis submitted for the degree of
Doctor of Philosophy, Adelaide Law School, The University of Adelaide, April 2018)
<https://digital.library.adelaide.edu.au/dspace/bitstream/2440/118002/3/Grosser-
Ljubanovic2018_PhD.pdf>.
79
Dr Olivia Grosser-Ljubanovic, ‘Royal Commission into the “Lawyer X” / Informer 3838
Scandal’ (Submission) (2019) 12 (3) Journal of the Australasian Institute of Policing Inc 52.
80
Brendan Moss, ‘Submission from Brendan Moss – Royal Commission into the
Management of Police Informants’ (2019) 12 (3) Journal of the Australasian Institute of
Policing Inc 51; Kelvin Glare AO APM and Ivan W Ray, ‘Community Advocacy Alliance
Incorporated Submission to the Royal Commission into Management of Police Informants
26th February 2019’ (2019) 12 (3) Journal of the Australasian Institute of Policing Inc 58.
81
Josie Taylor and Rachael Brown, ‘A gangland killer says his former lawyer Nicola Gobbo
has more to fear from Victoria Police than the criminal underworld’ ABC News, online at 11
August 2020 <https://www.abc.net.au/news/2020-08-11/gangland-killer-tells-what-it-was-
like-represented-by-lawyer-x/12505750>.
82
The Hon. Daniel Andrews, ‘Landmark Reforms To Manage Police Informants’ (Media
Release, 07 February 2023) <https://www.premier.vic.gov.au/landmark-reforms-manage-
police-informants>.
83
State of Victoria, Royal Commission into the Management of Police Informants – Victorian
Government Response and annual reporting (online at November 2022)
<https://www.vic.gov.au/royal-commission-management-police-informants-victorian-
government-response-and-implementation-plan>.
84
The Hon. Daniel Andrews, ‘Landmark Reforms To Manage Police Informants’ (Media
Release, 07 February 2023) <https://www.premier.vic.gov.au/landmark-reforms-manage-
police-informants>.
85
State Civil Liability (Police Informants) Bill 2024 (Vic).
86
[2001] HCA 49.
87
AB (a pseudonym) v CD (a pseudonym); EF (a pseudonym) v CD (a pseudonym) [2018]
HCA 58; 93 ALJR 59; 362 ALR 1.
88
(2002) 209 CLR 372, [7].
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P a g e | 26
89
Above N 53 and related text.
90
Ibid.
91
Moti v The Queen [2011] HCA 50 [106].
92
Tony Strickland (a Pseudonym) and Others v CDPP [2018] HCA 53; 266 CLR 325; 93
ALJR 1; 361 ALR 23; 272 A Crim R 69, [96]-[100].
93
Ibid.
94
McCawley v R (1918) 26 CLR 9, 52 (Isaacs and Rich JJ).
95
The Honourable Murray Gleeson AO KC, ‘Rights and Values’, (Speech given to the
Melbourne Catholic Lawyers Association, Melbourne, 18 June 2004)
<http://www.hcourt.gov.au/assets/publications/speeches/former-
justices/gleesoncj/cj_18june04.html>.
96
Citizens Information Board, Fundamental rights under the Irish Constitution, (2022)
<https://www.citizensinformation.ie/en/government_in_ireland/irish_constitution_1/constitut
ion_fundamental_rights.html>.
97
Niall O’Dowd, ‘Devil Women: How the Church Wrote the Irish Constitution’, Irish
America Magazine, online at 26 July 2022 <https://www.irishamerica.com/2020/07/devil-
women-how-the-church-wrote-the-irish-Constitution/>.
98
International Covenant on Economic, Social and Cultural Rights, open for signature 19
December 1966, 999 UNTS 3 (entered into force 03 January 1976).
99
Moti v The Queen [2011] HCA 50 [106].
100
Tony Strickland (a Pseudonym) and Others v CDPP [2018] HCA 53; 266 CLR 325; 93
ALJR 1; 361 ALR 23; 272 A Crim R 69, [96]-[100].
101
[2023] VSCA 318 (14 December 2023).
102
[1679] 31 Charles II c. II, s 5 (in force and effect pursuant to the Imperial Acts Application
Act 1980 (Vic), s 3).
