[2] The effect of this legislation was to allow… the making of declarations and orders for the purpose of disrupting and restricting the activities of criminal organisations, their members and associates.

The essence of the scheme was that the Attorney-General could make a declaration, to the effect that the members of an organisation were involved in serious criminal activity and that there was a risk to public safety and order.

[4] Bleby J relied upon the decisions of the High Court in Kable v Director of Public Prosecutions (NSW)[5] and Thomas v Mowbray[6].

This included references to the judgement of Gummow and Crennan JJ where their Honours said at [111]:As a general proposition, it may be accepted that legislation which requires a court exercising federal jurisdiction to depart to a significant degree from the methods and standards which have characterised judicial activities in the past may be repugnant to Ch III.

[6] Bleby J also cited the dissent of Kirby J in Thomas v Mowbray where his Honour said at [366]:Requiring such courts, as of ordinary course, to issue orders ex parte, that deprive an individual of basic civil rights, on the application of officers of the Executive Branch of Government and upon proof to the civil standard alone that the measures are reasonably necessary to protect the public from a future terrorist act, departs from the manner in which, for more than a century, the judicial power of the Commonwealth has been exercised under the Constitution.