Evans v Strachan
[1999] TASSC 115
•1 November 1999
[1999] TASSC 115
CITATION: Evans v Strachan [1999] TASSC 115
PARTIES: EVANS, Kim Ronald
v
STRACHAN, David Campbell
TITLE OF COURT: SUPREME COURT OF TASMANIA
JURISDICTION: Original
FILE NO/S: M305/1998
DELIVERED ON: 1 November 1999
DELIVERED AT: Hobart
HEARING DATES: 6, 8 October 1999
JUDGMENT OF: Slicer J
CATCHWORDS:
Constitutional Law (Commonwealth) - Operation and effect of the Commonwealth Constitution - General nature of Commonwealth powers - Separation of powers - Judicial power - Executive power - Act empowering a court to implement control orders against specified classes of people - Consistency with judicial process - The Constitution, ChIII.
Living Marine Resources Management Act1995 (Tas), Pt9, Div7.
Commonwealth of Australia Constitution Act 1900, ChIII.
Kable v The Director of Public Prosecutions (1997) 189 CLR 51, distinguished.
Chu Kheng Lim v Minister for Immigration (1992) 176 CLR 1; R v Toohey; ex parte Northern Land Council (1980 - 1981) 151 CLR 170; Moffat v R (1997) 91 A Crim R 557; Kruger v Commonwealth of Australia (1997) 146 ALR 126; Nicholas v R (1998) 99 A Crim R 57, considered.
Aust Dig Constitutional Law [136]
Constitutional Law (Commonwealth) - Operation and effect of the Commonwealth Constitution - Full faith and credit to state laws - Double jeopardy - Whether implementation of a control order creates double jeopardy - Purpose and scope of legislation.
Living Marine Resources Management Act1995 (Tas), Pt9, Div7.
Commonwealth of Australia Constitution Act 1900, s118.
Moffat v R (1997) 91 A Crim R 557, followed.
Gratwick v Johnson (1945) 70 CLR 1; Renkon v Renkon (1918) 25 CLR 291; Breavington v Godleman (1988) 169 CLR 41; McKain v R W Miller & Co (SA) Pty Ltd (1991) 174 CLR 1; Merwin Pastoral Co Pty Ltd v Moolpa Pastoral Co Pty Ltd (1933) 48 CLR 565, considered.
Aust Dig Constitutional Law [137] [254]
REPRESENTATION:
Counsel:
Applicant: F C Neasey
Respondent: G Wendler
Solicitors:
Applicant: Director of Public Prosecutions
Respondent: Baker Tierney & Wilson
Judgment Number: [1999] TASSC 115
Number of Paragraphs: 30
Serial No 115/1999
File No M305/1998
KIM RONALD EVANS v DAVID CAMPBELL STRACHAN
REASONS FOR JUDGMENT SLICER J
1 November 1999
The applicant seeks the making of a control order against the respondent, a former licensed fisherman, in accordance with the Living Marine Resources Management Act 1995 ("the Act"), Pt9, Div7. The respondent has numerous convictions commencing in 1970 for breaches of fisheries legislation in Tasmania and Victoria. On 12 March 1997, the respondent was convicted of seven offences contrary to the Sea Fisheries Regulations 1962, such offences occurring on 15 January 1995 and was sentenced to a term of imprisonment of six months and fined (with special penalties) a total of $8,550. On 24 April, he was sentenced to a term of imprisonment for four months and fined (with special penalties) a further sum of $132,500 following his conviction, pursuant to the Act, s60. By virtue of the latter conviction alone, he became a person in respect of whom 200 demerit points were in force at all relevant times and who had been convicted under a law of Tasmania relevant to the making of a control order. By virtue of the Act, s242, the fine constituted the equivalent of 1,325 demerit points.
Legislative scheme
The purpose of the legislation is:
"… to promote the sustainable management of living marine resources, to provide for management plans relating to fish resources, to protect marine habitats …".
Those objectives are stated by the Act, s7, which provides:
"7 ¾ (1) The purpose of this Act is to achieve sustainable development of living marine resources having regard to the need to ¾
(a)increase the community's understanding of the integrity of the ecosystem upon which fisheries depend; and
(b)provide and maintain sustainability of living marine resources; and
(ba)take account of a corresponding law; and
(c)take account of the community's needs in respect of living marine resources; and
(d)take account of the community's interests in living marine resources.
(2) A person must perform any function or exercise any power under this Act in a manner which furthers the objective of resource management."
Part 9 provides a scheme of enforcement, which includes a power of restriction of movement on proscribed categories of persons. Section 242, Div6, provides that when a person is convicted of an offence under the Act:
"… one demerit point for each penalty unit imposed by way of a penalty or special penalty for that offence is allocated ¾
(a)to the person; and
(b)to the licence under which the person was operating when the offence was committed; and
(c)to the fishing certificate on which the fishing licence is specified."
By virtue of s245:
"(1) A demerit point is in force for a period of 5 years from the date of commission of the offence in respect of which the demerit point has been allocated.
(2) An offence is taken to have been committed on the date on which the act or conduct constituting the offence occurred."
The allocation of those demerit points to a particular licence is determined by the Secretary or a person delegated in accordance with the Act, s20 and a register (to which a right of inspection attaches) of allocated demerit points is required by s249. An affected person may apply to a magistrate for an order correcting the register.
Certain consequences follow once a person, partnership or body corporate accumulates 200 demerit points. One of the consequences to a person is the making of a control order. The respondent contends that the statutory provisions offend the constitutional principles of the exercise of judicial power and ought be declared either ultra vires of the Tasmanian Parliament or inconsistent with the Commonwealth of Australia Constitution Act 1900 ("the Constitution").
The Secretary is given a wide discretion in relation to the commencement of proceedings giving rise to the making of a control order. Section 251 provides:
"251 ¾ (1) The Secretary may apply to the Supreme Court for a control order against a person ¾
(a) in respect of whom 200 or more demerit points are in force and who the Secretary reasonably believes is likely to commit further offences under this Act; or
(b) who has been convicted under any law of Tasmania or another State or Territory of the Commonwealth of an offence which the Secretary considers relevant to the making of the order.
(2) An application for a control order must be accompanied by -
(a) a draft control order in accordance with section 252; and
(b) any evidence and argument to justify the making of the control order.
(3) An application is to be made in accordance with Rules of Court in force under the Supreme Court Civil Procedure Act 1932."
The draft control order referred to must specify the person affected, describe the conduct to be restricted, specify the relevant period and describe any relevant circumstances giving rise to the making of the order.
Upon the making of an application, the Act, s253 provides:
"253 ¾ (1) The Supreme Court ¾
(a) may issue the control order applied for; or
(b) if satisfied that to do so would be unreasonably harsh and unjust, may ¾
(i) amend the control order; or
(ii) refuse to issue the control order.
(2) A person must not fail to comply with a control order.
Penalty:
Fine not exceeding 1 000 penalty units or imprisonment for a term not exceeding 1 year."
The challenge to the validity of the legislation is based on the principles of judicial power as stated by the High Court in Kable v The Director of Public Prosecutions (1997) 189 CLR 51 and the effect of the Constitution, s118, on the capacity of the Secretary to have regard to convictions imposed in other jurisdictions in any decision to commence proceedings.
Judicial power
The contention of the respondent is:
1Proceedings are commenced by the Executive against an individual chosen from a class of persons (those with 200 demerit points or a previous conviction for an offence) on an arbitrary basis.
2The application is accompanied by a draft order directed to the individual stating the required restrictions.
3The procedure affords the Supreme Court power to make the order sought and has the effect of involving a judicial officer in implementing the requirement of the Executive.
4No criteria are attached to the provisions of the Act, s253, and the Court is, in reality, required to give effect to the executive criteria imposed by s251.
5The Supreme Court is invested with Federal judicial power.
6The exercise is inconsistent with the exercise of the judicial power and the legislative provision is thereby void or beyond power.
The contention is rejected. Although provisions of the Act are punitive in nature, the primary purpose is the preservation and development of a natural resource. Whilst licensing provisions, temporal and area restrictions on harvesting a resource and quotas on the type and quantity of marine produce are restricted and enforced by sanction, the legislature is not that of the criminal law per se. It is appropriate to restrict all or classes of persons from particular locations if intrusion would damage the resource. It is appropriate to restrict entry into or use within a geographical location. It is appropriate to define a class of persons who may be prohibited from entry. The issue becomes that of the manner in which an individual member of that class can be so restricted. If the individual was nominated by the Executive and a judicial officer obliged to give effect to that nomination, then there would be an improper and void recourse to the exercise of judicial power. That was the basis on which the High Court declared invalid legislation which permitted a detention order to be made against a named individual. In Kable v Director of Public Prosecutions (supra), the High Court was required to consider the provisions of the Community Protection Act 1994 (NSW). The legislation applied to a named individual and purported to be for the future protection of the community. The legislation permitted no defence but gave the court a discretion as to whether or not a detention order could be made. However, it only authorised the making of such an order against Kable, and did not "authorise the making of a detention order against any other person". The reasoning of the majority, each of whom delivered a separate judgment, focused on the doctrines of judicial power and the constitutional requirement of the separation of powers. Since the Constitution, s71, provided for the exercise of Federal power by State Supreme Courts, any vesting of power in those courts which conflicted with the exercise was invalid. In the words of Toohey J, the incompatibility of function resulted from the legislative requirement that the Supreme Court was:
"… required to participate in a process designed to bring about the detention of a person by reason of the Court's assessment of what that person might do, not what the person has done." [Toohey J at 96 - 97.]
In his opinion, the operation of the statute, on one named person only, required the performance of non - judicial function which affected the integrity of the judiciary as an institution. However, his Honour did not equate the legislation with that permitting the declaration of a person as a dangerous criminal or the imposition of an indeterminate sentence, stating, at 97:
"If the power to detain were the consequence of the actual commission of a serious act of violence, it might be little different from the power to impose an indeterminate sentence to be found in various statutes. See, eg, Criminal Code (WAS), ss661, 662.. In those cases, however, some prior conduct in the form of the commission of an offence of a prescribed nature is the basis upon which an indeterminate sentence may be ordered. The appellant's complaint is that, while prior conduct may bring him to the attention of the authorities, no such conduct is identified as the basis for the making of an order under s 5."
He regarded the consequence of detention as penal or punitive in character in the same manner as stated by Brennan, Deane and Dawson JJ in Chu Kheng Lim v Minister for Immigration (1992) 176 CLR 1. Gaudron J also considered the legislation as impinging on public confidence as permitting the courts to:
"… deprive persons of their liberty, not on the basis that they have breached any law, but on the basis that an opinion is formed, by reference to material which may or may not be admissible in legal proceedings, that on the balance of probabilities, they may do so." [Gaudron J at 107.]
It is relevant to observe that the Tasmanian legislation does not purport to affect the basis of admissibility of evidence in proceedings involving a control order. In Gaudron J's view, the New South Wales legislation was not, in reality, what it claimed to be, and was on:
"… proceedings which the Act attempts to dress up as proceedings involving the judicial process. In so doing, the Act makes a mockery of that process and, inevitably, weakens public confidence in it." [Gaudron J at 108.]
This approach of looking at the reality of the legislation, rather than its stated form or purpose, is consistent with that earlier taken by the High Court in R v Toohey; ex parte Northern Land Council (1980 - 1981) 151 CLR 170. McHugh J accepted that reasoning, although he did not believe that the Constitution, ChIII, prevented:
"… a State from conferring non - judicial functions on a State Supreme Court in respect of non - federal matters, those non - judicial functions cannot be of a nature that might lead an ordinary reasonable member of the public to conclude that the Court was not independent of the executive government of the State." [McHugh J at 117.]
In his view, it was plain:
"… that the legislature and the executive government which introduced the Act into the Parliament of New South Wales passed the Act for the purpose of ensuring that the appellant was kept in prison." [McHugh J at 120.]
That conclusion, based on the specificity of the purpose of the legislation, did not, in his opinion, give reason:
"… to doubt the authority of the State to make general laws for preventive detention when those laws operate in accordance with the ordinary judicial processes of the State courts."
A significant matter, in the opinion of Gummow J, stated at 132, was that:
"… whilst imprisonment pursuant to Supreme Court order is punitive in nature, it is not consequent upon any adjudgment by the Court of criminal guilt. Plainly … such an authority could not be conferred by a law of the Commonwealth upon this Court, any other federal court, or a State court exercising federal jurisdiction. Moreover, not only is such an authority non - judicial in nature, it is repugnant to the judicial process in a fundamental degree."
His Honour regarded the specificity and procedures of the legislation as fundamentally different from other general protective legislation such as the Inebriates Act 1900 (NSW), Mental Health Act 1990 (NSW) and the Mental Health (Criminal Procedure Act) 1900 (NSW) and did not suggest that their detentive powers were repugnant to the proper exercise of judicial power.
It is not necessary in this case to determine the validity of the Act by reference to public perception of the judicial process, nor to consider how a court can give effect to a legal principle by reference to an assessment of such public opinion. There is no equivalence between the two pieces of legislation. The real vice of the New South Wales legislation was that it attempted to extend the period of custody of a person sentenced to a finite term of imprisonment following a conviction. It was the extension of a sentence already served.
The Tasmanian legislation is not a penal statute. It is regulatory in nature and, although a restriction of movement can be regarded as punitive (Gratwick v Johnson (1945) 70 CLR 1) in nature, there is no additional penalty imposed over and above that already suffered by the respondent as a consequence of his conduct. His right of movement is restricted in the same way as a person subject to bail conditions or a person made subject to a restraint order, but the restriction is designed to form part of a management regime governing a resource.
The provisions of the Act, s151, are a condition precedent to the commencement of proceedings. The Secretary or delegate is the only person authorised to commence proceedings, in the same way as a Crown Law Officer is the only person entitled to file an indictment (Criminal Code (Tas), s310). In some instances, certain proceedings may only be commenced with the consent of a Minister or particular public officer (eg, Criminal Code (Qld) ss442, 561, Criminal Code (Tas), s125A(7)). The Secretary has a wide discretion, which might be susceptible to judicial review (Elliott v Seymour (1993) 119 ALR 1, Maxwell v R (1993) 135 ALR 1) but is required to ensure the existence of certain minimum pre - conditions before the commencement of proceedings. That exercise of discretion in no way impinges on the responsibility of the court to form its own opinion or conclusion, independent of any held by the Secretary as part of his or her reasoning. The court has, subject to the principles of judicial constraint, unfettered discretion in relation to its determination. It may grant, reject or modify any application (the Act, s253). A court is required to ensure that the application has been properly brought, and evidence might be required to prove previous conviction or the accumulation of demerit points. But it is not required to consider the reasonableness or otherwise of the decision made by the Secretary. It must conduct its own inquiry and determine the admissibility of, and only act on, the evidence placed before it by the respective parties. Material relevant to the decision of the Secretary might differ from, and be inadmissible in, the proceedings determined by the court (cf Community Protection Act 1994 (NSW), s17). Given that a demerit point remains in existence for a period of five years from the date of the commission of an offence (the Act, s245), the delay between the commencement of proceedings and the hearing might result in their extinguishment, with the result that the pre - condition to commencement no longer applies. Such a circumstance would not deprive the court of jurisdiction. The requirement to provide a draft order (the Act, s252), does not govern the orders which might be made by the court, rather it exists to afford procedural fairness to a respondent (Kanda v Government of Malaya [1962] AC 322, R v Solicitors Disciplinary Tribunal; ex parte L (A Solicitor) [1988] VR 757.
The class of persons against whom proceedings may be taken, given the provisions of the Act, s251(1)(b), is broad, and whilst there might be selectivity in the decision of the Secretary, none is required for the court to exercise power. Each case is to be determined on its merits.
A similar challenge has been made to the Sentencing Act 1991 (Vic), s18A - P. That legislation permitted the imposition of an indefinite sentence upon conviction for a serious offence. The Tasmanian equivalent is contained in the Sentencing Act 1997, Div3. In Moffatt v R (1997) 91 A Crim R 557, the Victorian Court of Appeal rejected a constitutional challenge to the legislation. The court rejected an argument based on equivalence with Kable and, in dealing with the nature of indeterminate sentences, Hayne JA stated, at 579:
"The indefinite sentencing provisions now under consideration are very different from the Community Protection Act. First, an indefinite sentence may be imposed only upon an offender found guilty of a particular offence. Secondly, unlike the Community Protection Act the indefinite sentencing provisions of the Sentencing Act are general in their application; they are not directed to any particular individual. Thirdly, there is nothing in the legislation or the circumstances existing at the time of its enactment which would lead reasonable members of the public to conclude that the Supreme Court or County Court was being called on to act as no more than an instrument of the executive government.
It may be accepted that the common law does not sanction preventive detention and that the imposition of an indefinite sentence cuts across well - recognised and established principles of proportionality. (See Chester at 618 - 619; Veen at 472 - 474; Baumer (1988) 166 CLR 51 at 57; 35 A Crime R 340 at 345).
But the existence of these common law principles does not mean that the legislature may not provide that the courts may impose indefinite sentences in certain circumstances on persons found guilty of offences or even go so far as to require the courts to impose such sentences on such persons. Leaving aside questions of incompatibility of legislation with the Commonwealth Constitution, the power of the State Parliaments to make laws with respect to sentencing offenders, is not fettered. It may be that Dicey's precept that Parliament is sovereign is not a sufficient answer to every question concerning the limits of State legislative power, but there is, in my view, no basis for concluding that a State Parliament cannot, by suitably worded legislation, determine what kinds of sentence may be imposed and, if thought fit, change the principles to be applied by courts in sentencing offenders for crime."
Any analogy between sentencing legislation which is criminal in nature in all respects and protective legislation, an incident of which is control of movement, enhances the reasoning that the Act is valid and in no way offends the principles of judicial power or independence.
In Chu Kheng Lim v Minister for Immigration (supra), the High Court had determined the provisions of the Migration Act 1950 (Cth), whereby courts were required to consider the cases of persons designated in a particular manner, did not impinge the Constitution, ChIII. A challenge to the limits of legislative power, based on infringement of judicial power, was also rejected by the Court in Kruger v Commonwealth of Australia (1997) 146 ALR 126. Dawson J, with whom McHugh J agreed, considered the question of detention as dealt with in Kable and concluded that powers which were incidental to the purpose of protection did not constitute an exercise of judicial power and as such did not offend the requirements of the Constitution, ChIII. That is not to say that the exercise of power under the Act, s253 is not an exercise of judicial power, but it illustrates the distinction between principles relevant to protection as against criminal legislation.
In Kruger (supra), Gaudron J, who was in the majority in Kable, had reason to consider the claim that detention inevitably was an exercise of judicial power. She did not regard the consequence of custody (in the circumstances of this case, restriction of movement) as necessarily conflicting with the requirements of the Constitution, ChIII, stating, at 192:
Arrest and custody pursuant to warrant pending trial, detention by reason of mental illness or infectious disease, and punishment for contempt of Parliament and for breach of military discipline were recognised by Brennan, Deane and Dawson JJ in Lim as exceptions to the immunity which their Honours would there acknowledge (1992) 176 CLR 1 at 28; 110 ALR 97. And of course, it was held in Lim that aliens might lawfully be detained in custody for the purposes of expulsion and deportation and, also, for the purposes of the receipt, investigation and determination of applications for admission to this country.
At one level, the existence of so many acknowledged exceptions to the immunity for which the plaintiffs contend and the fact that those exceptions serve so many different purposes tell against the implication of a constitutional rule that involuntary detention can only result from a court order. And that is so even if the supposed rule is one that is subject to exceptions. Of greater significance, however, is the consideration that it cannot be said that the power to authorise detention in custody is exclusively judicial except for clear exceptions. I say clear exceptions because it is difficult to assert exclusivity except within a defined area and, if the area is to be defined by reference to exceptions, the exceptions should be clear or should fall within precise and confined categories.
The exceptions recognised in Lim are neither clear nor within precise and confined categories. For example, the exceptions with respect to mental illness and infectious disease point in favour of broader exceptions relating, respectively, to the detention of people in custody for their own welfare and for the safety or welfare of the community. Similarly, it would seem that, if there is an exception in war time, it, too, is an exception which relates to the safety or welfare of the community.
Once exceptions are expressed in terms involving the welfare of the individual or that of the community, it is not possible to say that they are clear or fall within precise and confined categories. More to the point, it is not possible to say that, subject to clear exceptions, the power to authorise detention in custody is necessarily and exclusively judicial power. Accordingly, I adhere to the view that I tentatively expressed in Lim, namely, that a law authorising detention in custody is not, of itself, offensive to Ch III.
In doing so, she acknowledged constraints which should be placed on any extended interpretation which should be given to the ratio in Kable.
A further argument based on ChIII was advanced in Nicholas v R (1998) 99 A Crim R 57, a case involving the impugned validity of legislation enacted to reverse the effect of an earlier decision of the court in Ridgeway v R (1995) 184 CLR 19. The court held that the amendment, which permitted the involvement of public officers engaged in a controlled operation of drug importation, did not involve the usurping of the judicial power of the Commonwealth. The court was unanimous in holding that the legislative intention by way of permitting otherwise tainted evidence to be received by a court did not infringe the principle of exercise or separation of judicial power. The fact that the legislation was directed at a limited number of people did not infringe the principles stated by the Privy Council in Liyanage [1967] 1 AC 259 since it fell far short of the specificity relied on in Kable (supra). Nothing said in Nicholas (supra) affects the conclusion that the Act, Pt9, is within power and is not void by reason of constitutional principles.
Double jeopardy and full faith and credit
The Secretary made his decision to commence proceedings on the basis of accumulated demerit points and the existence of prior convictions in Tasmanian and Victorian Courts. In doing so, he relied upon both limbs of the Act, s251, which, in part, permitted regard to be had to convictions:
"251 ¾ (1) …
(b) who has been convicted under any law of Tasmania or another State or Territory of the Commonwealth of an offence which the Secretary considers relevant to the making of the order."
The Secretary had taken into account a relevant conviction under the Tasmanian legalisation and it was not necessary for regard to be had to the Victorian conviction. If reference to a conviction imposed in another jurisdiction renders the legislation ultra vires or inconsistent, that finding would not avail the respondent, since the offending provision could be severed and it is not a requirement of this Court to review the basis on which the Secretary reached the decision to commence proceedings. Even if improper regard was had to the existence of the Victorian conviction, there remained the accumulated demerit points and the Tasmanian conviction which afforded a basis for the exercise of discretion.
The challenge made by the respondent is on the basis that a Tasmanian court ought give full faith and credit to the conviction and penalty imposed by a court in another jurisdiction. The imposition of penalty brings that matter to an end and the circumstances giving rise to conviction and penalty ought not be used afresh to ground a further application of a punitive law. The commencement of different proceedings, based on a conviction and penalty already met, amounts to "double jeopardy" and is inconsistent with the Constitutional requirement to give credit to the laws of another jurisdiction.
In one respect, the argument is equally applicable to a Tasmanian conviction. On the respondent's argument, the use of conduct already punished ought not be used to ground a further penalty, ie, one of restriction of movement.
The Constitution, s118, provides:
"Full faith and credit shall be given, throughout the Commonwealth to the laws, the public Acts and records, and the judicial proceedings of every State."
The relevance of the Constitution, s118, ordinarily attaches to questions of enforceability (Renkon v Renkon (1918) 25 CLR 291) or choice and application of law (Breavington v Godleman (1988) 169 CLR 41, McKain v R W Miller & Co (SA) Pty Ltd (1991) 174 CLR 1). In the circumstances of this case, its import is that courts in Tasmania are required to accept and act upon the law of the State of Victoria and the result of the legal proceedings and, accordingly, issues of public policy and the like have no place in recognition (Merwin Pastoral Co Pty Ltd v Moolpa Pastoral Co Pty Ltd (1933) 48 CLR 565). The Victorian convictions are to be regarded in the same manner as if they were Tasmanian convictions. The question then becomes whether the principle of "double jeopardy" applies. In cases where there is a conviction, a court might, as part of its sanction, impose a restrictive order such as provided for by the Sentencing Act, s70. However, many provisions of the Act confer jurisdiction on the Court of Petty Sessions, whereas jurisdiction to make a control order vests in the Supreme Court. Thus, it is impossible, in most cases, to treat the control order as an incident to conviction. The issue is whether a temporal lapse between conviction and application vitiates the legislation by reason of using circumstances already punished as a basis for further penalty. The ready answer to this proposition is that the restriction order attaches to the protective or managerial purpose of the legislation. A person is not liable to sanction (over and above restriction of movement) unless the order is breached. It should be borne in mind that one of the matters relevant to the decision of the Secretary in the exercise of discretion under the Act, s251, is whether he or she "reasonably believes [that the person] is likely to commit further offences under [the] Act". Although the court is not required by statute to have regard to the same consideration, reason requires that it be considered as a relevant factor. Thus, the making of an order is not wholly dependent upon past conduct. The question of temporal disjunction was considered by Hayne JA in Moffatt (supra), when he stated, at 581:
"Counsel for the applicant sought to characterise this process as the court being involved in the 'continuing administration' of the sentence which it imposed after conviction and to this end sought to draw analogies between this process and the parole system. Perhaps characterising the review as the court being involved in the continuing administration of the sentence might be said to be literally accurate, but even if it is, I do not accept that that characterisation entails that the Act is invalid.
This contention on behalf of the applicant appeared to proceed from the unstated premise that the judicial function could be exercised in the criminal law only by passing a sentence which required no further judicial working out or reconsideration except by way of appeal. That is, I understood the contention to be one which necessarily proceeded from the premise that the judicial function required a once - for - all determination of the fate of the offender leaving any subsequent decision about his continued incarceration to the executive. I doubt that judicial power is limited in this way. Of course, many familiar exercises of judicial power lead to the making of orders which do not permit, let alone require, any later reconsideration. Thus, when a court awards damages for negligence, it does so once and for all. But is that to say that the legislature would not be providing for an exercise of a judicial function if it were to provide for the periodical re - assessment of damages by a judge according to the determination of the issue whether the defendant injured by the negligence of the plaintiff was still incapacitated at the time of the review? In any event, even if such a function could not be given to a Ch III court because it is not a judicial function (and I express no view on that issue) is such a task so antithetical to the exercise of judicial power as to led to the conclusion that a State legislature may not validly pass an Act requiring the courts of the State to undertake such tasks? I think not."
I adopt both his reasoning and conclusion. The fact that the order might be sought and made at a time subsequent to conviction and penalty, is no basis for determining that there is "double jeopardy". Different jurisdictions are involved and some time might be needed to calculate whether sufficient demerit points have accumulated. Conduct of a person subsequent to conviction might be relevant to "future risk".
The legislation offends neither the provisions of the Constitution, s118 or the principles of autre fois convict or "double jeopardy".
Conclusion
The legislation is within power and does not offend the principles governing the proper exercise of judicial power.
The evidence in this case has been received. Counsel have argued the challenge to the validity of the legislation and these reasons deal with those arguments. The parties had requested that, dependent on the terms of this determination, separate argument be had in relation to discretion and the terms of any order (if any) which might be made. Counsel will be afforded that opportunity.
6
2