Turning Fortifications into Constitutional Bypasses: Gypsy Jokers Motorcycle Club INC V Commissioner of Police
| Author | Hugo Leith |
| DOI | 10.22145/flr.36.2.6 |
| Published date | 01 June 2008 |
| Date | 01 June 2008 |
| Subject Matter | Article |
TURNING FORTIFICATIONS INTO CONSTITUTIONAL
BYPASSES:
GYPSY JOKERS MOTORCYCLE CLUB INC V COMMISSIONER
OF POLICE
HUGO LEITH *
Gypsy Jokers v Commissioner of Police ('Gypsy Jokers'),1 at least in the Western Australian
Court of Appeal,2 concerned the application of the so-called Kable v Director of Public
Prosecutions (NSW) ('Kable')3 principle (or principles).4 That is, the principle restricting
the State legislatures' powers to confer responsibilities on State courts vested or
capable of being vested with federal jurisdiction, especially State Supreme Courts, as
would be incompatible with the exercise of that federal jurisdiction.5 Kable's focus has
been sharpened and narrowed in subsequent cases to refer to theories of the
'institutional integrity'6 of State courts, or their actual and apparent 'independence and
impartiality'.7
On appeal to the High Court, Gypsy Jokers dramatically shifted from a development
of relatively novel and volatile constitutional principles into an application of canons
of statutory construction, followed by a conclusion of constitutional validity that
bypassed the leading tests. This shift was abrupt, and its basis was not clearly
_____________________________________________________________________________________
* Legal Officer, State Solicitor's Office, Department of the Attorney-General (WA). Tutor and
lecturer, University of Notre Dame, and tutor, University of Western Australia. The views
expressed in this paper are personal and are not those of the State Solicitor's Office or the
government of Western Australia.
1 (2007) 33 WAR 245; (2008) 242 ALR 191.
2 Gypsy Jokers Motorcycle Club Inc v Commissioner of Police (2007) 33 WAR 245, 248 [4] (Martin
CJ), 266 [77] (Steytler P), 281 [129] (Wheeler JA), but also cf 282 [132] (Wheeler JA).
3 (1996) 189 CLR 51.
4 See, eg, Gypsy Jokers Motorcycle Club Inc v Commissioner of Police (2007) 33 WAR 245, 267 [78]
(Steytler P), but cf Gypsy Jokers Motorcycle Club Inc v Commissioner of Police (2008) 242 ALR
191, 215 [99] (Kirby J).
5 Kable (1996) 189 CLR 51; see also Gypsy Jokers Motorcycle Club Inc v Commissioner of Police
(2008) 242 ALR 191, 204 [50] (Kirby J); Gypsy Jokers Motorcycle Club Inc v Commissioner of
Police (2007) 33 WAR 245, 267 [80] (Steytler P).
6 Forge v Australian Securities and Investments Commission (2006) 228 CLR 45, 76 [63]
(Gummow, Hayne and Crennan JJ) ('Forge v ASIC').
7 North Australian Aboriginal Legal Aid Service Inc v Bradley (2004) 218 CLR 146, 163 [29]
(McHugh, Gummow, Kirby, Hayne, Callinan and Heydon JJ); Fardon v A-G (Qld) (2004) 223
CLR 575, 591 [15] (Gleeson CJ) ('Fardon'); see also Gypsy Jokers Motorcycle Club Inc v
Commissioner of Police (2008) 242 ALR 191, 195 [10] (Gummow, Hayne, Heydon and Kiefel
JJ).
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