Fardon v Attorney-General (Qld)
[2004] HCATrans 39
[2004] HCATrans 039
IN THE HIGH COURT OF AUSTRALIA
Office of the Registry
Brisbane Nos B104 and B105 of 2003
B e t w e e n -
ROBERT JOHN FARDON
Appellant
and
RODNEY JON WELFORD, ATTORNEY-GENERAL FOR THE STATE OF QUEENSLAND
Respondent
GLEESON CJ
McHUGH J
GUMMOW J
KIRBY J
HAYNE J
CALLINAN J
HEYDON J
TRANSCRIPT OF PROCEEDINGS
AT CANBERRA ON TUESDAY, 2 MARCH 2004, AT 10.16 AM
Copyright in the High Court of Australia
MR S.R. SOUTHWOOD, QC: If the Court pleases, I appear on behalf of the appellant with MR P.D. KEYZER. (instructed by Prisoner’s Legal Service)
MR P.A. KEANE, QC, Solicitor‑General of the State of Queensland: May it please the Court, I appear with my learned friends, MR R.V. HANSON, QC and MR R.W. CAMPBELL, for the respondent. (instructed by Crown Solicitor for the State of Queensland)
MR H.C. BURMESTER, QC: If it please the Court, I appear with my learned friend, MS N.L. SHARP, for the Attorney‑General of the Commonwealth intervening. (instructed by Australian Government Solicitor)
MR R.J. MEADOWS, QC, Solicitor‑General for the State of Western Australia: May it please the Court, I appear with my learned friend, MS K.H. GLANCY, on behalf of the Attorney‑General for Western Australia intervening and with my learned friend, MR S.G.E. McLEISH, on behalf of the Attorney‑General for Victoria intervening. (instructed by Crown Solicitor (Western Australia) and Victorian Government Solicitor)
MR M.G. SEXTON, SC, Solicitor‑General for the State of New South Wales: If the Court pleases, I appear with my learned friend, MR J.G. RENWICK, for the Attorney‑General for New South Wales who intervenes in the proceedings. (instructed by Crown Solicitor (New South Wales))
MR C.J. KOURAKIS, QC, Solicitor‑General for the State of South Australia: If the Court pleases, I appear with my learned friend, MR C.D. BLEBY, for the Attorney‑General for South Australia intervening. (instructed by Crown Solicitor (South Australia))
GLEESON CJ: Yes, Mr Southwood.
MR SOUTHWOOD: If the Court pleases, it is the appellant’s submission that the starting point of this appeal should be what is the proper characterisation of the operation and effect of sections 8 and 13 of the Dangerous Prisoners Act. In relation to the approach to be taken to such characterisation, in our written submissions we have referred the Court to Bachrach and to the decision of the Court in Ha. Perhaps if I could just briefly take your Honours to the decision in Re Wakim; Ex parte McNally (1999) 198 CLR 572 at paragraph 103, there is the statement to the following effect:
It was suggested in argument that, in considering the validity of the legislation, significance should be attached to the statement in the preamble as to the legislative purpose of ameliorating what is identified as inconvenience and expense occasionally caused to litigants by jurisdictional limitations in federal, State and Territory courts. However, the purposes, motives or intentions of the relevant legislatures and their members do not provide a criterion by which validity is to be determined. Rather, it is the operation and effect of the law in question which defines its constitutional character.
GUMMOW J: What paragraph is that?
MR SOUTHWOOD: That is paragraph 103, your Honour, on page 572.
GUMMOW J: Thank you.
MR SOUTHWOOD: Adopting that approach, the operation and effect of sections 8 and 13 of the Dangerous Prisoners (Sexual Offenders) Act are punitive in character. The sections authorise the imposition of a criminal sanction – indeed, the ultimate criminal sanction – indefinite imprisonment on persons who have already completed a sentence of imprisonment in that that was imposed following conviction for a sexual offence. The imposition of such a sanction is punishment. In support of that proposition, if I could refer your Honours firstly to the decision of the Court in Witham v Holloway (1995) 183 CLR 525 at 534, to the passage at the top of page 534 which is to the following effect:
Moreover and, perhaps, of more importance, nothing is achieved by describing some proceedings as “punitive” and others as “remedial or coercive”. Punishment is punishment, whether it is imposed in vindication or for remedial or coercive purposes. And there can be no doubt that imprisonment and the imposition of fines, the usual sanctions for contempt, constitute punishment.
If I could also refer your Honours to the decision of Kable v Director of Pubic Prosecutions 189 CLR 51 and if I may firstly refer your Honours to page 122 of that decision, to your Honour Justice McHugh’s reasons for decision in that case. At the top of the page:
in the exercise of non‑judicial functions or that it provides for punishment by way of imprisonment for what the appellant is likely to do as opposed to what he has done.
If I could then refer your Honours to page 125 of that decision, to the paragraph commencing on that page:
However, as will appear, the appellant had not convicted of any such contravention of the law. The legal and practical effect of the orders of the Supreme Court was to penalise him by imprisonment for a period of six months, but not by reason of any contravention of the criminal law.
If I could also refer your Honours to page 131.
KIRBY J: Is it the passage from Lim and Justice Gaudron’s statement which is inserted there?
MR SOUTHWOOD: Yes it is, thank you, your Honour.
KIRBY J: Could I just say that, whilst I understand what you are doing and have read the written submissions, picking up little bits and pieces from what Judges say in Kable, though it is helpful in a general way, does not really get clear in our minds from the outset what you say is the principle for which Kable stands. I think one should get the principle right, then you look at the way it is elaborated and explained and then you seek to apply it. What do you say is the principle for which Kable stands which is applicable to the circumstances of this case?
MR SOUTHWOOD: The principle which we say is applicable is that punishment in circumstances such as this is incompatible with the exercise of federal judicial power.
GLEESON CJ: That is a very modest principle, is it not? You are not concerned with the rights of Mr Kable, you are concerned with the reputation of the judges.
MR SOUTHWOOD: No, I am concerned, so far as this legislation is concerned, not with the reputation, but to what is the effect on the integrity of the performance of the most important function of a court, namely, the adjudication and punishment of criminal guilt.
GLEESON CJ: Well, take the proposition that you drew attention to on page 131, which is that the tension in custody in circumstances not involving some breach of the criminal law is offensive to ordinary notions of the just society.
MR SOUTHWOOD: Yes.
GLEESON CJ: Why do you not stop there? Why did Kable go on, then, from that premise to reach a conclusion via a series of additional premises about the exercise of judicial power? Is there not a principle that can be expressed in terms of the rights of Mr Kable?
MR SOUTHWOOD: So far as the rights are concerned, it probably is in this sense that you cannot be subject to what is, in effect, quintessentially arbitrary detention in circumstances such as this.
HAYNE J: Much turns on the content of the epithet “arbitrary” because how do these submissions sit with provisions dealing with preventive detention imposed at the time of original sentence?
MR SOUTHWOOD: Those provisions, in our submission, are not arbitrary because in that circumstance they are connected to a relevant predicate act. There has been a trial and a conviction and then it arises in the ordinary context of sentencing.
GLEESON CJ: Does that mean it would be within the legislative authority of a State to empower a sentencing judge to order chemical castration of a sex offender?
MR SOUTHWOOD: I do not know that I can answer that question immediately, your Honour. At one level it may be, but subject to certain other principles it may not be.
KIRBY J: You have to ask, could a Parliament of a State impose life imprisonment for jaywalking. Is there anything that the Court could do in accordance with some understanding of the Kable principle to say that you cannot impose that duty upon a judge because it is so totally disproportionate, or would the Court say this is just within the powers of the State Parliament?
MR SOUTHWOOD: Probably it would be said that that is within the power of the State Parliament.
KIRBY J: We might have a division of opinion.
MR SOUTHWOOD: But so far as that goes, attached to that specific principle of proportionality, it remains something to be determined. The fundamental difficulty in this instance is that punishment is being imposed in circumstances where there has been no crime.
HAYNE J: That is not right, is it? First, it applies only to persons who are offenders serving imprisonment. Is that right?
MR SOUTHWOOD: Yes, but it applies – sorry, your Honour.
HAYNE J: The question becomes, if preventive detention could be validly legislated for as an available sentencing option at original sentence, what is it that makes the subsequent imposition, at the end of sentence, incompatible, because the answer that some of the European authorities might suggest is that at the end of sentence the task of prediction, difficult as it is, is at least a little less difficult than the task of prediction at the time of original sentence, say, for a term of 15 years. What is the incompatibility to which you point?
MR SOUTHWOOD: It is the function of what the Court is asked to do in circumstances such as this. Certainly so far as determining the class is concerned, a requirement is that the person who is the subject of such an application be in prison, having been sentenced to prison, but it really occurs at the end of the person’s punishment.
HAYNE J: So does it come to a point of double punishment, double jeopardy or some of those related ideas? Is that where the incompatibility is said to lie? I know you say it is incompatible. What I want you to do is to attempt as best you can to unpack that idea. Why is it incompatible?
MR SOUTHWOOD: It is fundamentally incompatible because it is involved with the imposition of a criminal sanction in circumstances where there is no crime which gives rise to the occasion of the punishment. Although the criteria used ‑ ‑ ‑
GUMMOW J: No fresh crime, you mean?
MR SOUTHWOOD: No fresh crime. That is what we submit is the fundamental aspect of it. The whole basis of the criminal system, so far as it has gone to date, is based upon there being essentially a proven crime ‑ a charge of a proven crime, a conviction and then penalty. This approach, in effect, sets that on its head in circumstances where there is no legitimate exception to the detention. That is the fundamental point. It, in effect, turns the whole notion of punishment on its head because what a person is subject to is the ultimate penal sanction of imprisonment. That, in my submission, is really the fundamental issue in the case of Kable.
HAYNE J: Now, the premise for that is that punishment is necessarily once for all. Now, I am not saying that is a bad premise. It may be that that is sufficient for the argument, but does not the argument proceed from that starting point, that the courts can only impose punishment once?
MR SOUTHWOOD: Yes.
HAYNE J: And once for all.
MR SOUTHWOOD: Yes.
HAYNE J: You cannot have progressive review.
MR SOUTHWOOD: Yes, but more than that, they cannot impose punishment if you have not committed a crime. Although the criteria is, that is in terms of defining the class, that you have committed a crime and are in prison, there is no crime for which Mr Fardon, the appellant, is in prison. There is no fresh crime. His punishment was, in effect, complete, or close to being complete, the application being made as the Act requires within six months of the lapse of the full term of his sentence. So it is that fundamental aspect which is the difficulty.
GUMMOW J: Now, at the time Mr Fardon was first sentenced, this Act was not in operation, was it? Initially ‑ ‑ ‑
MR SOUTHWOOD: When he was sentenced ‑ he was sentenced in 1989 and the Act came into operation on 1 June 2003. So it was not something which he could have had cognisance of in any sense at the time he was sentenced.
HAYNE J: Could he, at the time of his original sentence, consistent with Veen [No 2], have had his sentence fixed by reference, amongst other things, to the need to protect the community by preventing him being at large?
MR SOUTHWOOD: I do not think so, your Honour. The provisions in the Sentencing Act to that effect equivalent to the provisions considered by the Court of Appeal in Victoria in R v Moffatt only came into force in 1990 is my understanding of the position. So those provisions were not available at the time he was sentenced.
HAYNE J: It was not the statutory provisions that I had in mind; it was the principles described in the joint judgement in Veen [No 2] (1988) 164 CLR 465, particularly at 475 at about point 5 of the page where their Honours say:
It is one thing to say that the principle of proportionality precludes the imposition of a sentence extended beyond what is appropriate . . . it is another thing to say that the protection of society is not a material factor in the fixing –
It seemed to me at least, uninstructed, that Veen [No 2] permitted, indeed, perhaps required, taking account of the need to protect society, presumably against future offending, when you fix a sentence.
MR SOUTHWOOD: Yes.
KIRBY J: Well, you accept that protection of society is one of the purposes of criminal punishment and that has been said ‑ ‑ ‑
MR SOUTHWOOD: Yes, in ‑ ‑ ‑
KIRBY J: You say the time for determining that is at the time of sentence and that that time has passed and now ex post facto an attempt is made by the State Parliament without any fresh intervening crime to involve a court of the State and of the judicature of the nation in imposing a new punishment.
MR SOUTHWOOD: Yes. What we say, in terms of the Court of Appeal’s decision, that is the majority of the Court of Appeal’s decision, is this, that the majority of the Court of Appeal in Queensland, we say, incorrectly characterised the Act as a general law authorising non‑punitive detention. They did so in essence because it was said the express purpose of the Act is ensuring adequate protection of the community and that the ordinary judicial process applies to the making of the order, the purpose of which is the protection of the community.
Now, in relation to that, it is not sufficient that the stated object of the legislation is the protection of the community. That is an insufficient basis to characterise the legislation as non‑punitive. A goal of the criminal law is, indeed, the protection of the community from harm and, indeed, that is one of the purposes of punishment. For example in their book, Sentencing: State and Federal Law, Professors Fox and Freiberg list the following factors now as factors which go to justifications or purposes of punishment: retribution, just desserts and proportionality, deterrence, rehabilitation, denunciation, protection of the community and incapacitation. So that ordinarily that aspect of the sentencing process, the protection of the community, presumably was taken into account at the time although ‑ ‑ ‑
KIRBY J: The question is, what is it in the nature of the judicial process and of the judicature of the nation that is inconsistent with this proposition that after several years of serving a sentence it is found that a person can be shown by some evidence to be a risk to the community. Why then can a court not, according to some general principle, say, in effect, “Well, the sentence that was imposed at the beginning was not sufficient to discharge that fifth element and we can now consider whether that fifth element can be shown to have been insufficiently satisfied” and in relation to the original crime the court can then impose additional punitive sanctions on the criminal for the original crime, but in the light of evidence that has come to indicate that the original sentence was not enough? I know it is not what we have done in the past but what is it that is inimical to the judicial process that offends the Kable principle?
MR SOUTHWOOD: Perhaps if I could refer your Honours to the bottom of page 27 of Chu Kheng Lim v Minister for Immigration.
GLEESON CJ: Do not assume that there is no need to read the references to these cases on to the record. The lists of authorities are for the benefit of our associates.
MR SOUTHWOOD: I am sorry, your Honour. For the purposes of the record, Chu Kheng Lim v Minister for Immigration (1992) 176 CLR 1. At the bottom of page 27 there is this statement:
putting to one side the exceptional cases to which reference is made below, the involuntary detention of a citizen in custody by the State is penal or punitive in character and, under our system of government, exists only as an incident of the exclusively judicial function of adjudging and punishing criminal guilt.
KIRBY J: That does not really answer my question because it is still in the hands of the judiciary. Let it be punishment, let it be additional punishment based upon a criterion of provable facts which suggest that the fifth element has not been adequately dealt with. What is inimical to the judicial process of involving judges, as distinct from say a parole board or a body of that kind, release on licence board, in adding to the original punishment on a premise that the original punishment was not enough? First of all, is that how this Act proceeds and, secondly, if it does, is that impermissible under the Constitution?
MR SOUTHWOOD: No. That is not how the Act proceeds. In effect, the Act starts afresh in terms of its application to a person, based on an assessment of risk of reoffending. So that it is not in any sense a reinvestigation of the original sentence. What is involved is a specific application for incarceration based upon a set of criteria that the legislature has deemed appropriate. That is the fundamental basis upon which the Act proceeds.
KIRBY J: You do have under the Act to have the premise that the person is a person who is convicted, who is in prison, is convicted of a sexual offence and that the application is made under the Act, in effect, to extend the original punishment.
MR SOUTHWOOD: That is its effect in a sense, but what is really being imposed is new punishment based upon whether the person falls within the legislatively determined criteria or not. So it comes afresh in that sense. It, in effect, arises because the legislature has taken the view that a class of prisoner has not adequately responded in terms of how rehabilitation is said to be required to proceed.
HAYNE J: Let that characterisation be assumed; let it be assumed it is the imposition of further additional fresh punishment. What is the incompatibility? Is it simply deviation from the principle of punish once for all? Is it, do you say, in effect enlisting the judiciary to do work that the Executive could do? That would seem to be at odds with your submissions, but is that the way you put incompatibility?
MR SOUTHWOOD: Incompatibility arises in this sense. The nature of the punishment of a person who has been convicted and dealt with pursuant to the criminal law changes from one being based on the establishment of a past offence to preventive detention based upon or justified by quantitative estimates of future offending unconnected to any of the other recognised exceptional categories in which preventative detention may apply and be said to be non‑punitive. It is the fact that the punishment ceases to be connected to the adjudication and determination of guilt. That is the fundamentally incompatible proposition. If I may refer your Honours to Justice Gummow’s decision in Kable (1996) 189 CLR 51 to page 132 of that decision, what is stated there by his Honour is:
But the most significant of them –
this is in terms of the difficulty with Kable’s legislation –
is 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, in my view, 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.
That, we submit, is the fundamental difficulty with the legislation at present. Those problems are not in any sense overcome. Although there is arguably a higher degree of proof required and there are certain review mechanisms put in place, that fundamental difficulty with the legislation remains. The great difficulty with legislation which moves in this way unconnected to clear examples where it is non‑punitive, such as a quarantine context, true mental illness situations, it is quintessentially arbitrary.
McHUGH J: What is arbitrary about it? When sentencing principles were simpler than they are today, judges used to be directed to take into account three aspects in sentencing somebody: the punitive aspect, the protective aspect and the rehabilitative aspect. Now, in determining a sentence originally, are judges entitled to take into account the protection of the community in determining what is the appropriate sentence? Why cannot the legislature do it in two stages? Why does the protective element have to be confined to the point of sentence immediately upon conviction? Why can it not be done as it is done here, where you take a person who is serving a sentence and you then determine whether or not that person’s release is a danger to the community and, therefore, at that stage you are in a position to make a better judgment than you were the moment after the person was convicted? Why is it not connected to the original sentence? I mean, it flows out of his guilt. You do not get within the Act’s operation unless you have a person who is serving a sentence.
MR SOUTHWOOD: Yes, but that person is subject, or at least at the time he was sentenced, to a finite final order and ordinarily there would be a presumption that at the completion of that sentence he would be entitled to his liberty.
GLEESON CJ: It is a little more complicated than that, is it not? I am not saying this is either for you or against you. I do not know what the position was with Mr Fardon, but in the case of some people who would fall within the definition of serious sex offenders, at the time they were sentenced there was a maximum penalty which could be far less than the amount of time they would spend in prison if made the subject of one of these orders. A serious sexual offence as defined in this legislation includes any offence against a child.
MR SOUTHWOOD: Yes.
GLEESON CJ: Presumably they do not all carry a maximum penalty of life.
MR SOUTHWOOD: No, the penalties would vary.
GLEESON CJ: What, if any, significance does it have for the purpose of your argument that the person the subject of an order under this legislation might find himself or herself in prison for a period of time greater than the maximum penalty that existed at the time of original sentencing? Is that relevant at all?
MR SOUTHWOOD: It is perhaps relevant in this sense, that, in effect, it is potentially retrospectively – the effect of the legislation is to retrospectively extend the sentence in circumstances where there is no further offence.
GLEESON CJ: What was the maximum penalty for the offence for which Mr Fardon was sentenced?
MR SOUTHWOOD: I think it was 14 years and he got the maximum was my understanding, your Honour.
KIRBY J: And has served it.
MR SOUTHWOOD: And has served it now, certainly, yes. It may have been life but ‑ ‑ ‑
GLEESON CJ: Maybe Mr Fardon’s case does not raise the problem that I have just adverted to. I do not know.
MR SOUTHWOOD: I will have to come back to that if I may, your Honour. I will enquire as to what was the position in relation to the maximum sentence. It was my recollection, and I may be wrong, that he, in fact, did get the maximum which was 14 years at the time.
HAYNE J: This Act would engage, I think, in a case of exhibitionism to a child. It would surprise me if exhibitionism was subject to a life sentence perhaps, but it would surprise me. So the point arises, whether in the facts of Mr Fardon’s case or not, that a person may be the subject of this Act and under it incarcerated for longer than the maximum term prescribed for the offence of which that person was convicted.
MR SOUTHWOOD: Yes. I do not know that I can ‑ ‑ ‑
HAYNE J: It seems to me at the moment there are at least two counters on the board. There is the counter about once for all punishment. There is a counter also on the board about increasing exposure to penalty after the penalty was imposed. Now, it may be that that goes to the issue of incompatibility – maybe it does not. I do not know.
MR SOUTHWOOD: In addition to that there is the aspect of it, in fact, being double punishment.
McHUGH J: But even if you accepted your premises, you have a long way to go to strike down State legislation. As Justice Gaudron pointed out in Kable, the prohibitions that Chapter III place on State legislatures is very different from the prohibitions that are placed on Commonwealth legislation. You have to show that in some way, I think Justice Gummow said in Kable, that the legislation there made the judiciary seem nothing but an arm of the Executive Government who are simply implementing the will of the legislature. I spoke about it, that it was necessary that the State Supreme Courts be perceived to be independent of the legislative and Executive Government.
Now, even accepting your premises, how does it impair the vesting of federal jurisdiction in State Supreme Courts? Who is going to think that State Supreme Courts cannot render federal jurisdiction impartially because they have to carry out this legislation? Kable’s Case was an extraordinary case. It was a one‑off. They amended the legislation just to get this guy. It is one of the criticisms the Commonwealth makes of your submissions that you treat the case as if you are attacking a piece of legislation of the Federal Parliament.
MR SOUTHWOOD: That is not the intention of the attack. As I think we have set out in – if I may take your Honours to our reply, in particular to paragraph 9 of our written reply which commences on page 2 and proceeds through to page 5.
GLEESON CJ: If there is a reason, and I am not saying there is or is not one way or the other, but if there is a reason why a State Parliament cannot impose the death penalty for jaywalking, it has not much to do with whether the State Supreme Court is an appropriate receptacle for federal jurisdiction, has it?
MR SOUTHWOOD: I am sorry, your Honour ‑ ‑ ‑
KIRBY J: His Honour is going back to my question earlier about whether at a certain point a State law imposing the greatest punishment available for jaywalking would offend the Constitution. The question is whether or not, if a State law imposed the death penalty for jaywalking, is that offensive to the Constitution on the ground that it would offend the Kable principle that you cannot impose upon a State court functions that would be incompatible with the judiciary of the State serving as institutions in which can be best at federal jurisdiction?
MR SOUTHWOOD: I do not think it necessarily would. It is our submission that really the sentencing cases are quite distinct in this regard from what the Court is being asked to do in this instance. This is not a review of the position, for example, following an indeterminate sentence which may be imposed at the time of conviction. The fundamental difficulty with this Act is the fact that it imposes a penalty in circumstances where all that is involved is, in a sense, mere speculation as to whether the person is a risk of reoffending.
Now, the fact that a criminal sanction can be imposed in that circumstance is fundamentally at odds with the ordinary criminal process, and the effect of permitting such a process to go ahead must ultimately devalue all of those fundamental principles which have been put in place in terms of the operation of the criminal law and which are ultimately there not merely for the protection of the individual but are there also for the maintenance of confidence in the integrity of the system.
McHUGH J: Mr Southwood, do you concede that a State can pass legislation authorising a judge to order that an insane person be put in custody? Do you concede that?
MR SOUTHWOOD: If certain criteria were met, and it was proportionate and appropriate.
McHUGH J: Now, “irresistible impulse” did not constitute insanity for the purposes of the criminal law. Could the State pass legislation that empowered courts to order the detention of people who were subject to irresistible impulses so that the community would be protected against those persons?
MR SOUTHWOOD: If it fell within the ordinary mental illness component, because that is a recognised category of circumstance which is arguably non‑punitive. The purpose of the incarceration is towards a non‑punitive end.
McHUGH J: Then why can the State not say that people who are likely to constitute serious dangers to the community not be detained while they are a serious danger to the community? It is true that it departs from the traditions that have existed in Commonwealth countries since the 12th century, but why can legislators not say that such persons should be locked up for the good of the community? What is wrong with them saying that that power should be given to a Supreme Court provided certain criteria are met and the evidence is in accordance with certain traditional methods of proof?
MR SOUTHWOOD: In relation to the mentally ill person, ordinarily such people are not detained in prisons. What is involved here is a specific criminal sanction, detention in a prison.
GUMMOW J: Where do we find that in the statute, the nature of the incarceration?
MR SOUTHWOOD: It is in the statute.
KIRBY J: Is there any provision for treatment or rehabilitation or endeavours to improve the person so that they are fit to be released into the community?
MR SOUTHWOOD: Not within this statute.
KIRBY J: You had better take us to what the Act says.
CALLINAN J: The court can impose conditions, can it not, in relation to supervision and treatment? Can they not be conditions of the order for continuing detention?
MR SOUTHWOOD: Not pursuant to this Act, your Honour, no, not in the case of indefinite detention. Certainly section 16 of the Act does provide an alternative to indefinite detention in prison in the sense that you may be subject to a supervisory order with certain conditions but ‑ ‑ ‑
McHUGH J: Mr Southwood, does not section 13(5) allow a court to order a person be detained in custody indefinitely for control, care or treatment?
MR SOUTHWOOD: It says that. The effect of the section is that a person is detained in prison as a prisoner pursuant to the Corrective Services Act.
GUMMOW J: Where do we see that? Is that section ‑ ‑ ‑
MR SOUTHWOOD: If I could just take you directly to section 14(2) which specifically deals with the effect of the continuing detention order and, in particular, to subsection (2).
GUMMOW J: The term “prisoner” is defined in section 5(6), is that right?
MR SOUTHWOOD: Yes. Perhaps if I could come back to that, your Honour, but if I could also ‑ ‑ ‑
GUMMOW J: Just a minute:
“prisoner” means a prisoner detained in custody who is serving a period of imprisonment for a serious sexual offence –
so the effect of the order is that the person remains of that status.
MR SOUTHWOOD: Yes. It obviously was punishment when he was sentenced there in the first place. The effect of this legislation is to leave him where he was without any variation in terms of his treatment. Indeed, some of the ‑ ‑ ‑
GUMMOW J: It is more than that. It continues his status as a person serving a period of imprisonment for a serious sexual offence. That is what it says.
KIRBY J: And in a prison, not in a mental institution of any kind.
MR SOUTHWOOD: Yes.
HAYNE J: That may require amplification, I think, not qualification, may it not, first by reference to section 50 of the Dangerous Prisoners Act?
MR SOUTHWOOD: I was coming to section 50 ‑ ‑ ‑
HAYNE J: The order is taken to be a warrant committing the prisoner into custody for the Corrective Services Act.
MR SOUTHWOOD: Yes.
HAYNE J: If you go to section 6 of the Corrective Services Act, section 6 requires that:
A person sentenced to a period of imprisonment, or required by law to be detained for a period of imprisonment, must be detained for the period in a corrective services facility.
I assume that is what was once known as a gaol.
MR SOUTHWOOD: Yes.
HAYNE J: Division 7 of the Corrective Services Act, section 53 and following provides that:
A corrective services officer –
not a court –
may make an order that transfers a prisoner from a corrective services facility to –
amongst other places –
(b)a place for –
(i) medical or psychological examination or treatment -
but, prima facie, the person who is to be confined in gaol subject to whatever operation Division 7 of the Corrective Services Act 2000 may have. Is that the end point?
MR SOUTHWOOD: That is the end point. Fundamentally, he is back where he started.
GUMMOW J: It is a starting point in a way. It is the starting point for your argument, I would have thought.
KIRBY J: This Court has said many times that in deciding constitutional questions, the starting point is to understand the operation of the Act because until you understand it you do not really know what you are testing against the Constitution. So I am just not exactly sure where the Corrective Services Act leaves the prisoner relevant to your argument. What is your contention from the statutory provisions you have just taken us to?
MR SOUTHWOOD: Our contention is essentially this, your Honour, that when Mr Fardon was sentenced in 1998 to his 14 years, that sentence was to be served in a corrective services institution subject to the Corrective Services Act and, of course, there have been amendments to the Act since that time. Now, an order with that result constitutes the imposition of a criminal sanction upon Mr Fardon.
KIRBY J: Well, it is undoubtedly punishment, the judicial order of punishment.
MR SOUTHWOOD: Yes, and is therefore punishment. The effect of the order made pursuant to section 13 which is said to have the effect provided by section 14(2) and given the other provisions of the Dangerous Prisoners (Sexual Offenders) Act was essentially to either reincarcerate him or to continue his incarceration pursuant to precisely the same regime.
McHUGH J: That may be, but I do not think it is correct to say that when a detention order is made that the person is serving a sentence of imprisonment for the offence because “prisoner” is define to mean a person:
detained in custody who is serving a period of imprisonment for a serious sexual offence –
but section 14(1) says:
A continuing detention order has effect in accordance with its terms –
(a) on the order being made or at the end of the prisoner’s period of imprisonment, whichever is the later –
So the continuing detention order does not bite until the prisoner’s period of imprisonment has expired. So the definition of “prisoner”, although it grounds the application, does not seem to me at the moment to apply to a person who is imprisoned or detained under a continuing detention order.
KIRBY J: That depends a bit on whether you put emphasis on imprisonment or on period.
GUMMOW J: It has to, because otherwise the Corrective Services Act will not bite, will it?
MR SOUTHWOOD: No. There are provisions in this statute which, in effect, from the moment the order is made pursuant to subsection (8), the interim detention order, which have the effect or, indeed, the setting down for the substantive hearing of deeming the person to continue to be a prisoner pursuant to the Corrective Services Act, so that ‑ ‑ ‑
KIRBY J: We had better have a look at that. What is that section?
MR SOUTHWOOD: Perhaps if I could backtrack a bit, your Honour, and I will start with section 5 of the Act.
GUMMOW J: This is the Corrective Services Act?
MR SOUTHWOOD: I am sorry, your Honour, of the Dangerous Prisoners (Sexual Offenders) Act. It enables the Attorney-General to:
apply to the court for an order or orders under section 8 and a division 3 order in relation to a prisoner.
So that the starting point is that the person is a prisoner who is defined to be a person – this is by section 5(6):
detained in custody who is serving a period of imprisonment for a serious sexual offence, or –
a term which includes such a sentence of imprisonment. Subsection (2)(c) provides that such an order is to:
be made during the last 6 months of the prisoner’s period of imprisonment.
So the context in which the order starts is with such a prisoner in prison. Section 8 then deals with preliminary hearings. Section 8 first provides that:
(1) If the court is satisfied there are reasonable grounds for believing the prisoner is a serious danger to the community –
and that means a person who is an unacceptable risk of committing another serious sexual offence –
in the absence of a division 3 order, the court must set a date for the hearing of the application for a division 3 order.
So that is the first ‑ ‑ ‑
KIRBY J: Just pause there. I have a recollection from my work in the Law Reform Commission that the Australian Institute of Criminology did a major study on predictions of dangerousness and came up with the view that it is a very, very uncertain science. It is not an easy thing and it is often fraught with inaccuracy and error. It is what they called the “foresight saga”.
MR SOUTHWOOD: Yes. If I may take your Honours in relation to that matter to the appeal book to the judgment of Justice White, which starts at page 71 of the appeal book, but if I may take your Honours to page 88 and to really what is the position, to paragraph [76] of her Honour’s judgment on that page, which is an important fact in relation to Mr Fardon generally:
All of the psychiatrists concluded that the respondent does not suffer from a disease of the mind and neither is he unable to control his sexual instincts. For many years he has been diagnosed as suffering from an Anti-Social Personality Disorder brought about by his early developmental experiences and consolidated by prolonged periods of institutionalisation.
So the starting point is we are not dealing with someone who lacks control.
KIRBY J: But you are getting us down into the engine room of this particular case. The point I was making was a slightly different one. Though the Act gives to judges of the Supreme Court of Queensland the obligation which on the face of things is expressed in a short phrase, “serious danger to the community”, it may be that the wisdom of the English judges and of centuries of practice in fixing a sentence save for indeterminate sentences once and for all, even though you know that sometimes you are going to be too high and sometimes too low in some ex post objective basis, is that the English judges knew that you just cannot be sure in predicting whether there is going to be a danger to the community.
MR SOUTHWOOD: If I may take your Honour to page 89, paragraph 78. I just wanted to go to that earlier paragraph as a precursor to the difficulties which do really arise, and I highlighted, as your Honour raises, in paragraph [78] at approximately line 14, her Honour there states:
It is appropriate to consider Professor Ogloff’s report and evidence when considering that of Dr Moyle. Both Dr Moyle and Professor Ogloff were careful to stress that present scientific tools did not permit a determination, with a reasonable degree of accuracy, of an individual’s likelihood of being violent or re‑offending sexually.
GLEESON CJ: We do not want to be too expansive with this concept of centuries of practice, because over most of those centuries they solved this problem by sentencing them to death. Now, let us suppose that looking forward a little instead of looking back, it becomes more predictable – danger becomes more predictable. In terms of constitutional principle that might make a difference, will it?
MR SOUTHWOOD: Not in my submission, your Honour, no, because the exercise which is embarked upon is fundamentally non‑judicial, non‑judicial in the sense that prior to exercising the power to imprison someone there has not been a charge, trial or conviction, and the whole of this kind of assessment is simply based upon, really, refined statistical ways of determining the likelihood of recidivism of a particular offence, and it is largely based upon a category of persons.
All that happened in relation to – so far as the doctors could really take it in relation to this case and the extent of the development of the science as is set out in that paragraph, the best that could be done was to say, looking at dangerousness across the board, Mr Fardon was in a category of prisoner in respect of a sample of say 100, slightly more than 50 would reoffend by committing a dangerous act upon release. As to the specific offence of a serious sexual offence, he was in a category of slightly greater than 25, in a group of 100, so ‑ ‑ ‑
GUMMOW J: How then did section 13(3) be satisfied?
MR SOUTHWOOD: Because what was proven was a risk of a specific kind and it was determined that such a risk was unacceptable.
GUMMOW J: But this notion of unacceptability is not defined, is it?
MR SOUTHWOOD: No, it is not defined.
GUMMOW J: Which is a problem.
MR SOUTHWOOD: It is a problem with the provision, but ‑ ‑ ‑
GUMMOW J: Acceptable to whom and by what criteria?
MR SOUTHWOOD: Yes, what is involved there is presumably some assessment of a correlation between the degree of harm and degree of risk.
KIRBY J: Where is the word “unacceptable” referred to?
MR SOUTHWOOD: If I could take your Honour to section 13, subsection (1) provides:
This section applies if, on the hearing of an application for a division 3 order, the court is satisfied the prisoner is a serious danger to the community in the absence of a division 3 order –
Subsection (2) goes on to provide:
A prisoner is a serious danger to the community as mentioned in subsection (1) if there is an unacceptable risk that the prisoner will commit a serious sexual offence –
So what has to be proven to the level set out in subsection (3), that is to a high degree of probability, is the existence of that risk. The fact which has to be proven prior to the incarceration is the unacceptable risk, not as is, for example, often the case in the American legislation where what has to be established is that the mental abnormality makes it likely with a causative connection to some degree that there will be reoffending.
KIRBY J: You see, we have to ask ourselves whether or not legislation of this kind, not particularly posited on sexual offences, but if it became a general principle, would offend the Constitution. We have a concrete case but the Constitution principle is raised by whether this form of legislation is acceptable. You could at least postulate the possibility that legislation of this kind could become a general rule. Judges do not release people if there is a so‑called unacceptable risk that there will be a further offence.
MR SOUTHWOOD: Yes. The Court referred the ‑ ‑ ‑
KIRBY J: Though it is true that in the English experience many people were hanged, many, many were hanged, and subject to other punishment – burning, drowning and so on – many, many people were imprisoned under the English system. They were put in hulks off the rivers. Ultimately that led to large numbers of them being sent to the American colonies and eventually to Australia. So they were a big imprisoning country, but they worked on a basis that it was sentence once.
MR SOUTHWOOD: Yes.
KIRBY J: They did not have judges coming back and having a second bite at the cherry. Why is there not a provision in this Act for releasing prisoners who are not a danger to the community? We are now a very high imprisoning country; 148 per 100,000 I saw yesterday in the newspaper. That is a very high imprisoning country, and it is a very expensive process.
MR SOUTHWOOD: The Court referred the parties to an article by Mr Pfaffenroth which is entitled “The Need For Coherence: States’ Civil Commitment Of Sex Offenders In the Wake of Kansas v Crane”, (2003) 55 Stanford Law Review 2229. That article discusses the issue your Honour Justice Kirby raised in terms of the potential consequence of the promulgation of such legislation.
GLEESON CJ: Testing the law against a constitutional requirement of substantive due process.
MR SOUTHWOOD: Yes.
GLEESON CJ: Now, maybe we ought to have a Constitution that contains a requirement of substantive due process, but you are inviting us, as I understand it, to test this law against the suitability of the Supreme Court of Queensland to act as a receptacle for federal jurisdiction. Is that right?
MR SOUTHWOOD: Yes.
GLEESON CJ: Well, that is the concern to which we have to address ourselves; not to whether it is a good law or a bad law, or whether it constitutes substantive due process, or whether it is overly expensive to administer, but whether it makes the Supreme Court of Queensland an unfit receptacle for federal jurisdiction.
MR SOUTHWOOD: Yes. The reason why we say it is unconstitutional is essentially this: so far as the criminal jurisdiction of a federal court is concerned, the effect of the decision in Chu Kheng Lim and Kable is that a federal court can only pass a sentence of imprisonment in circumstances where there has been the relevant predicate offence, trial and conviction. So that sets up a specific judicial procedure which is required to be undertaken prior to the imposition of a criminal sanction. So that in that sphere that is, in effect, the scope of the judicial power, as it were. Now, the effect of providing a system on a court which also exercises that jurisdiction, the two notions are, in effect, repugnant.
GLEESON CJ: Your entrance point into your argument was the proposition that what is going on here is punishment.
MR SOUTHWOOD: Yes.
GLEESON CJ: I am just concerned that there may be an element of circularity about an aspect of this argument. What, if any, light is thrown on the validity of that proposition by the consideration that what is going on here may take place not only after the expiration of the term of the person’s sentence, but also after the expiration of the maximum period of imprisonment prescribed by law for the offence? Does that throw any light on whether what is going on here is an exercise in punishment?
MR SOUTHWOOD: Unfortunately, I cannot see that what has gone before necessarily impacts upon what is facilitated by the Act in terms of the characterisation of the effect of the Act.
GLEESON CJ: I have no doubt from Mr Fardon’s point of view what is going on here is punishment, but have a look at section 3 which states the objects of the Act. Does section 3 throw any light on whether what is going on here is punishment?
MR SOUTHWOOD: It potentially throws some light on whether what is going on is punishment or not, but the fact that the object of the legislation is expressed to be the protection of the community is an insufficient basis to characterise it as non-punitive, because its effect is punitive, and it is punitive for the following ‑ ‑ ‑
GUMMOW J: There is a false dichotomy, is there not? It runs through the submissions for Queensland, I think. There is this false dichotomy between prevention and punishment.
MR SOUTHWOOD: Yes.
GUMMOW J: There is a useful discussion of that, I think, in Justice McColl’s decision in Rich v ASIC (2003) 203 ALR 671 at 733 and following. It is a dissenting judgement, but it is pretty cogent on this. If you set up a false dichotomy you can get wonderful results.
HAYNE J: On the same line there is Norval Morris’ piece written over half a century ago. It is reproduced in 13 McGill Law Journal at pages 534 and following, where he points out that from the utilitarian point of view the only purpose of punishment is prevention, to prevent recurrence of crime.
MR SOUTHWOOD: Yes.
GLEESON CJ: The expression that is sometimes used is “incapacitation” which is why I asked the question I asked earlier about compulsory sterilisation, which is one form of incapacitation.
MR SOUTHWOOD: Yes, but as I understood your Honour’s question, that was specifically directed to the context of sentencing. Given the state of the law in relation to sentencing, that may or may not be permissible. It is certainly not permissible, in our submission, if for example, you were to substitute incapacitation for incarceration in a penal institution, based on the fact that a person is merely a risk of reoffending.
GLEESON CJ: But if it is right, as I think it is, that there is a false dichotomy between the words “punitive” and “incapacitating”, that tells you that you should not use either word, does it not?
MR SOUTHWOOD: Yes, but ultimately ‑ ‑ ‑
GLEESON CJ: That you should search for some non-value laden or neutral description of what is going on here.
MR SOUTHWOOD: But it is more than a search for a word, we would submit, your Honour. It is really a question of what is the effect of the legislation. The effect of the legislation, regardless of how it is categorised or what is expressly stated to be its object, is to keep Mr Fardon in prison, so that the operation and effect of the Act is punitive. To simply say that the Act states that it has a preventive purpose or a community protection purpose of itself simply is not sufficient. The false dichotomy ‑ ‑ ‑
GLEESON CJ: It has a number of aspects. It has a punitive aspect. It has an incapacitating aspect. It has a protective aspect.
MR SOUTHWOOD: Yes.
KIRBY J: It does not seem to have much of a rehabilitative aspect.
MR SOUTHWOOD: No, and also, those other incidents are ordinarily caught up in what are justifications and purposes of punishment, at least under all current regimes.
The Court also referred the parties to a decision in the Canadian Supreme Court, I think it is, of R v Lyons [1987] 2 SCR 309. That dealt with ‑ ‑ ‑
GUMMOW J: I am reading the French at the moment. I had better get myself an English copy.
GLEESON CJ: What was that page number again, Mr Southwood?
MR SOUTHWOOD: The case starts at page 309, your Honour. If I could ‑ ‑ ‑
KIRBY J: It is ordinary old Supreme Court Reports on 310, SCR. That is all it is. It is the Supreme Court of Canada all right.
MR SOUTHWOOD: If I could refer your Honours firstly to page 311 to part of the headnote which appears before points b and e. Then if I could refer your Honours to page 327, the paragraph at the bottom of the page going over to the end of the paragraph first appearing at the top of page 328, and then page 329, the second paragraph between points d and f.
GUMMOW J: This process was undertaken by the court as part of the trial, was it not?
MR SOUTHWOOD: Yes. The position in Canada appears to be similar, although not identical, to the preventive detention provisions of most sentencing legislation, so akin to the legislation which was considered in the decision of R v Moffatt and also similar to the legislation which was enacted in Queensland in 1990. It has some differences in that proof is beyond reasonable doubt, although all that has again been proven is a risk, and also that incarceration is in an institution designed to deal with this circumstance. Otherwise, the order is made at the time of sentencing and it is also similar to many of the Australian provisions, an order made really in lieu of a specific term, although, for example, the legislation in Victoria did require an assessment of what was or would otherwise have been the penalty imposed.
GUMMOW J: Now, the Queensland legislation you spoke of, that came into effect when? The earlier – it is 1990, is it?
MR SOUTHWOOD: I understand it was 1990, but my learned friend the Solicitor-General may be able to correct me.
GUMMOW J: Any how, it seems that it was too late for Mr Fardon’s trial.
MR SOUTHWOOD: It was, as I understand it.
HAYNE J: The indefinite sentence regimes which are quite common in Europe have given rise to what might be seen, perhaps, as the mirror image of this problem that we confront. You can find them discussed in R (Giles) v Parole Board [2004] 1 AC 1 where the European question that has arisen is, if somebody is sentenced to an indeterminate period – I think the Belgians have it put at the disposition of the State – what review mechanisms do you have? The Europeans have insisted that there must be periodic judicial review. Administrative review is not enough. Administrative review is not enough because the circumstances which give rise to the indefinite detention may change over time and judicial supervision is required lest there be an arbitrary deprivation.
The point that is perhaps relevant for this case is, if you pursue that line of thinking, if you admit that the possibility of imposition of an indefinite sentence at the time of initial sentence, is it incompatible, is it repugnant to engage the judiciary in the review process, as is common in the legislation, for example, considered in Moffatt’s Case, or have you departed from this once for all notion which at least in part is underpinning your present submissions? So where do we go? What do we learn, if anything, from this European experience finding reflection, for example, in the legislation considered in Moffatt, where you have the judiciary involved after initial sentence involved in reviewing whether it is right that this offender should be further detained? Does that not cut under one of your basic premises?
MR SOUTHWOOD: No, we would submit, your Honour, because, in effect, of the form of the order made at the time it is made. When an order for indefinite detention is made, for example, pursuant to the Victorian legislation, it is made with all of those attributes in place, so that within that mechanism comprehended by the final order made on sentence is that review. So that in that context no complication arises for what is happening here which is a circumstance where what is being undertaken is not review in any sense and ‑ ‑ ‑
GLEESON CJ: That is the first time. There is provision for annual judicial review under Part 3.
MR SOUTHWOOD: Yes, the first time. Yes, quite so, your Honour, but at the time the application and order is first made it is not made in the context of review; it is made in circumstances where a person, for all intents and purposes, is about to finish.
GLEESON CJ: Yes, it is made once and then it is judicially reviewed at least once a year or more frequently on the application of the person.
MR SOUTHWOOD: Yes, but the context of the original order is not a context of review. That is a fundamentally different circumstance to the circumstance which prevails under either European or Victorian legislation, so that the problem, namely, the nature of the function which the court is being asked to perform, is qualitatively different.
HAYNE J: Because it seems to me that that may shift the argument at least a little to an argument that founds on what loosely I call the retrospective aspect of this, that is that Mr Fardon was not exposed to this risk when first sentenced; new legislation comes in, he is now exposed to the risk now. Now, is that part of the element of incompatibility?
MR SOUTHWOOD: Yes it is.
KIRBY J: That has been dealt with in the European Court of Human Rights, that sort of problem, in cases such as Stafford v United Kingdom (2002) 35 EHRR 1121. These matters are coming up all the time in other jurisdictions, but, of course, they come up either under the Convention on Human Rights or the Human Rights Act or the Charter of Rights. We do not have that regime. Your only leg-in to the Constitution is Kable, at least the only leg that you are arguing, as I understand it.
MR SOUTHWOOD: Yes, that is the argument we make, your Honour. That is right.
McHUGH J: But why should you regard this legislation as punitive? Let me challenge the basic premise of your argument. Not all detention is punitive. When Patty Hearst was kidnapped and kept detained for several years you would not say she was being punished. She was certainly being deprived of her liberty, but you would not say it was punishment. Why is the proper characterisation of this legislation quite different from the ordinary sentencing process? The ordinary sentencing process has at least four characteristics. It has a punitive element; it has a deterrent element; it has a protective element and it has a rehabilitative element.
This legislation says nothing about the punitive element; it says nothing about the deterrent element. It concentrates on the other two aspects of the ordinary sentencing process, namely protection of the community and rehabilitation of the prisoner. A judge exercising power under this legislation cannot take into account deterrence, cannot take into account retribution or punishment. It is only protection and rehabilitation that the judge is to take into account. So why is not the proper characterisation of this simply that it is protective legislation, notwithstanding that it deprives some person of his or her liberty?
MR SOUTHWOOD: Although those elements your Honour has referred to, which are taken into account at the time of sentencing to formulate the appropriate sentence, what is ultimately imposed is a criminal sanction. The imposition of that criminal sanction is clearly punishment. It is for that reason that fundamentally what occurs here remains. The qualitative nature of the sanction is identical.
Further, we would say the following factors make this legislation punitive. Firstly, in order for a statute to be characterised as facilitating civil commitment there must be factors that set the conditions of confinement apart from criminal incarceration, and there are no such factors present in this instance.
Secondly, the sanction imposed involves an affirmative disability and constraint. Thirdly, the incarceration is in addition to a completed sentence and not in lieu of it. Fourthly, the sanction has been historically and traditionally regarded as punishment. Fifthly, the predicate act, namely the crime, is not used merely for evidentiary purposes; conviction and sentence is a precondition to the making of an order of imprisonment pursuant to the Act.
Next, the Act pursues criminal justice aims ‑ and those passages which I referred your Honours to in that Canadian case demonstrate this – protection of the public is the principal object of the criminal law and a chief purpose of punishment. Community protection and punishment are by no means unrelated things. The Act’s operation promotes the traditional purposes: justification and aims of punishment. The primary purpose of the Act is incapacitative rather than therapeutic. Its purpose is the institutionalisation of sex offenders for a very long time. General deterrence, although it is not taken into account, is arguably an effect of the legislation. In other words, once you are in as a serious sexual offender, you may never get out.
The prisoner is effectively being denounced by this legislation for failing to rehabilitate himself. There is no requirement of proof of serious difficulty controlling behaviour. The Act permits imprisonment based purely on past conduct. There is no need for mental abnormality. The nature of imprisonment does not bear a reasonable relationship to a non‑punitive objective. The sanction is excessive in relation to the stated purpose. The circumstances which may result in imprisonment are not exceptional. So that for all those reasons its effect is punitive.
Applying the test that the Court delineated in Kruger (1997) 190 CLR 1, what was stated at page 162 was:
The question whether a power to detain persons or to take them into custody is to be characterised as punitive in nature . . . depends upon whether those activities are reasonably capable of being seen as necessary for a legitimate non‑punitive objective.
So, in all of those circumstances, the sanction is plainly punitive. Perhaps in that regard generally, your Honour, if I could refer you to the Court’s decision in Ha v New South Wales (1997) 189 CLR 465 at 498 and to the last paragraph on that page.
KIRBY J: What is the point you want to get out of Ha?
MR SOUTHWOOD: The point in determining whether the law is punitive involves a consideration of what is the practical operation of such provision. The practical operation of an order pursuant to section 13 is to keep or put the person who is subject to an order in a penal institution.
GLEESON CJ: Accepting that one of the purposes of the system of criminal justice is the protection of the community, is the administration of criminal justice the only way in which the legislature can protect the community?
MR SOUTHWOOD: In a criminal context or generally, may I ask, your Honour?
GLEESON CJ: Why does the legislature have to commit itself exclusively to the system of criminal justice as a method of protecting the community, subject to qualifications that you mentioned earlier like quarantine and mental health?
MR SOUTHWOOD: It does not have to, in our submission. There are other legislative provisions that a State Parliament could enact in order to deal with a whole variety of circumstances. The difficulty arises in this instance because a non‑judicial incompatible function has been given to the Supreme Court of Queensland.
GUMMOW J: Suppose there was no judicial involvement at all, purely Executive activity, to operate this Act.
MR SOUTHWOOD: The State Parliament would be able to pass such legislation.
GLEESON CJ: So you could repose the power in a panel of psychiatrists.
MR SOUTHWOOD: Yes.
GLEESON CJ: But not a judge.
MR SOUTHWOOD: Not a court, no.
GUMMOW J: Of course, the legislature will have to wear that.
MR SOUTHWOOD: Yes. It is our submission that the overall effect of this legislation is no different to the position in Kable, and I am speaking relatively generally. Obviously, Kable, in the sense that it was ad hominem, did involve a particular person but, in effect ‑ ‑ ‑
GLEESON CJ: But, in one sense, a stronger case than your case, because it involved, as I recollect, a particular person who had made some quite specific threats to harm other people.
MR SOUTHWOOD: Yes, but so far as the overall structure of this Act, the legislature has really employed the court to carry into effect the legislature’s determination that people who are imprisoned for sexual offences should be dealt with in a particular fashion with deprivation of liberty if they answer specific criteria. That law ‑ ‑ ‑
McHUGH J: Yes, but legislatures do that all the time. They ask courts to exercise functions that judges might not like to do, might strongly disagree with. Judges must be very sensitive souls in the State jurisdictions if you can give these powers to psychiatrists but you cannot give them to judges to protect their integrity or reputation.
KIRBY J: Well, the judges in Queensland did not prove particularly sensitive.
McHUGH J: You had Justice White, who had a detailed hearing in this particular case. He considered a great amount of evidence in accordance with the criteria in the legislation and came to a particular decision. What is wrong with that? How does that impair the capacity of the Supreme Court of Queensland to receive federal jurisdiction under section 77 of the Constitution?
MR SOUTHWOOD: It is our submission that the ultimate effect of legislation such as this, not so much dealing with reputation, is to destroy the court’s integrity in the performance of its most important judicial function, which is the adjudication and punishment of criminal guilt. Ultimately, it will impair the integrity in that performance ‑ ‑ ‑
McHUGH J: So what should Justice White have done? Resigned? Said, “I am not going to be part of this charade”, on your argument?
MR SOUTHWOOD: No.
KIRBY J: Was a constitutional point taken before her Honour? It was, was it not?
MR SOUTHWOOD: No, the constitutional point was not taken before her. It was dealt with firstly before Justice Muir and then before the Court of Appeal. The constitutional point taken before Justice Muir was confined to section 8. In the Court of Appeal, both section 8 and section 14 were held by the majority to be constitutionally valid.
KIRBY J: So Justice White, Justice Atkinson and one other judge simply proceeded on the footing of what Justice Muir decided?
MR SOUTHWOOD: Justice White proceeded on the basis of what the Court of Appeal had decided, your Honour.
KIRBY J: Well, that was entirely appropriate.
MR SOUTHWOOD: Yes. Justice White had no option but to do as she did.
KIRBY J: She was fulfilling the order that the Court of Appeal had made.
MR SOUTHWOOD: Yes. The difficulty is really a difficulty which will arise over a period of time as a result of having, in effect, two incompatible systems operating together. One is based upon guilt, trial, conviction and punishment. The other is based upon mere assessment as to whether you may reoffend in the future.
McHUGH J: But the hypothesis of sentencing is that at the completion of the sentence the community is protected, and that may or may not be right in practice, but that is the hypothesis upon which sentences are imposed.
KIRBY J: Is that correct? Because we do know, if we sit in courts, you will see the record of people. They get convicted and they offend again. Many people do, especially young offenders. It happens all the time. You look at their list of convictions. So it has not worked to that extent.
MR SOUTHWOOD: Also in a sense the notion of proportionality, taking aside the advent of indeterminate sentencing provisions, some of the principles are in a sense contradictory to some degree that that notion in terms of making the punishment fit the crime is not necessarily totally consistent with 100 per cent specific deterrent result.
McHUGH J: Yes, but on either way it seems to me you are caught in a cleft stick. If in practice the term of imprisonment does not protect the community, then the legislature is justified in taking the steps it has done here. If it does ordinarily protect the community but you have exceptional individuals, then again it is arguable the legislature is entitled to do what it has done.
MR SOUTHWOOD: I cannot do anything other than repeat your Honour’s view.
GLEESON CJ: Mr Southwood, I have not noticed – do the factors that a court may take into account in making an order like this include any threats of harm that might have been made by a prisoner?
MR SOUTHWOOD: The criteria are set out, your Honour, in subsection (4) ‑ ‑ ‑
GLEESON CJ: Subsection (4)(j).
MR SOUTHWOOD: Yes. Subsection (4)(j) includes “any other relevant matter”.
GLEESON CJ: And perhaps (4)(i). I have in mind, for example, not in relation to legislation concerning sexual offenders, but suppose you had a serial arsonist who while in prison said, “The moment I get out I’m going to start a bushfire on the outskirts of Canberra”. That, I suppose, would come in under paragraph (i) or paragraph (j) if you had legislation about arsonists of the same kind that you have about sex offenders.
MR SOUTHWOOD: Yes, and, indeed, the science behind this, psychiatrists’ reports are required, is specifically directed to their assessment of the risk. The various tests and applications which have been developed in order to determine whether a person falls within one category or not does include consideration being given to threats. Indeed, there was some evidence in this case that Mr Fardon had made threats of harm to others. However, they were not threats of committing another serious sexual offence. So it is complicated. Arguably one threat which would ordinarily be excluded as irrelevant to that issue is not excluded as a result.
GLEESON CJ: In a particular case – not necessarily Mr Fardon, but in a particular case evidence of danger might be constituted by the making of threats.
MR SOUTHWOOD: Yes, it can be, your Honour.
GUMMOW J: It all comes back – a thimble and pea in the way - to this undefined expression of acceptable risk. That is the pivot on which it all turns when you go into it. This definition of “serious danger to the community” in subsection (1) is not really very informative, is it? …..you get to subsection (2), which gets you down to “unacceptable risk”. You are never told what that is. What makes a risk unacceptable apart from high risk? Why does it not say “high risk” or “significant risk”?
MR SOUTHWOOD: It does not even say high risk, your Honour, because on one view the risk here is not what you would say high in the sense that you are in a category of person in respect of whom more than 50 per cent of people are likely to commit the same act.
GUMMOW J: What then is the significance of (3)(b), “a high degree of probability”? The probability of what, of there being an unacceptable risk?
CALLINAN J: What about 13(4)(h)? The court must have regard to:
the risk that the prisoner will commit another serious sexual offence -
Why do you not read that with section 3 - I am sorry, not section 3, the section which refers to unacceptable risk. Why is not the unacceptable risk, the risk to which the Court must have regard, that the prisoner will commit another serious sexual offence if released?
KIRBY J: But how is the Court to know this? We do not get issued with a crystal ball on appointment to judicial office. It is hard enough to deal with facts that have occurred; there are conflicts over those.
CALLINAN J: The courts make predictions daily about what is going to happen in the future.
KIRBY J: Not normally taking liberty away on the result of it.
McHUGH J: They do, in one sense. They have to make a value judgment. When they say that this evidence should or should not be admitted because the risk of prejudice outweighs the probative value, or does not outweigh the probative value, the courts are making a value judgment and they may be wrong or they may be right. There is no mathematical criterion for determining it.
MR SOUTHWOOD: The difficulty, I suppose, with this legislation is it is not as if by contrast with, say, the American legislation where there has to be an assessment that the condition, whatever it is, of the person is such that it makes it likely, presumably, more probable than not that a person would commit a serious sexual offence, and arguably ‑ ‑ ‑
GUMMOW J: The expression “serious sexual offence” is rather mischievously defined too.
MR SOUTHWOOD: Yes.
HAYNE J: It covers a very broad range of conduct because it includes any sexual offence ‑ what is it, involving or against - against children.
GUMMOW J: Or involving violence.
HAYNE J: Now, that is a wide range of behaviours. It would, as I say, include the exhibitionist whose victim is a child.
KIRBY J: Mr Crane, who is mentioned in that American article that you handed up, was an exhibitionist and he got 35 years in prison. He did commit ‑ ‑ ‑
GLEESON CJ: He was an exhibitionist and an activist.
KIRBY J: Mainly an exhibitionist.
HAYNE J: And the 35 did not hold. The prosecutor was trying to avoid that the 35 did not hold. Can we come back to this unacceptable risk, given that you have got a range of behaviours that is covered.
MR SOUTHWOOD: Yes. I do not know whether your Honours have been provided with my learned friend the Solicitor‑General for Queensland’s pages which were handed to us earlier, which refer to a case of M v M (1988) 166 CLR 69. There is at page 78 of that decision some discussion of the weighing up involved in terms of considering such risks. Presumably, what is taken into account, given a notion such as “unacceptable”, is some correlation between the risk – that is, the actual chance – of a particular criminal event occurring and the detriment which is likely to follow as a result of the particular act.
So, for example, what Justice Muir touched upon in his decision was circumstances where the act may be, for example, touching a child outside her clothing, those sorts of issues. The chances of it occurring may be high, the damage, depending upon a particular person’s point of view, may or may not be so serious. So, in that circumstance, if there was a 50 per cent likelihood and that is all the damage that had flowed, the risk may not be unacceptable.
GLEESON CJ: I presume that a point that your opponent is said to make against you is that, day by day, judges of the Family Court assess allegations that children are at risk of sexual abuse if a particular kind of custodial order is made, as a routine part of their judicial function.
MR SOUTHWOOD: Yes. Those provisions, however, do not answer the fundamental inconsistency.
GLEESON CJ: Does that cover the point you wanted to make, Mr Southwood?
MR SOUTHWOOD: Yes, it does, your Honour. The only thing that I specifically do is refer to the judgment of President McMurdo in the Court of Appeal below. She goes through in some detail the sorts of problems that do arise as a result of the operation of this kind of legislation. If the Court please.
GLEESON CJ: Thank you, Mr Southwood. Yes, Mr Solicitor.
MR KEANE: If the Court please. In relation to the notion of the concept of unacceptable risk, the reason we have given your Honours reference to M v M 166 CLR 69 is particularly for the passage at 78, which begins at the top of the page:
Efforts to define with greater precision the magnitude of the risk which will justify a court in denying a parent access to a child have resulted in a variety of formulations. The degree of risk has been described as a “risk of serious harm” (A v A), “an element of risk” or “an appreciable risk” (Marriage of M), “a real possibility” (B v B (Access)), a “real risk” (Leveque v Leveque), and an “unacceptable risk”: In re G (A minor). This imposing array indicates that the courts are striving for a greater degree of definition than the subject is capable of yielding.
GUMMOW J: Yes, but the subject there is parental access, is it not?
MR KEANE: The interests of the child, which are paramount, your Honour.
GUMMOW J: Yes, that is right.
MR KEANE: In this legislation, the provision providing paramountcy is in section 13(6).
GUMMOW J: Yes. To justify the court in denying a parent access to a child.
MR KEANE: Here, it is the notion of an unacceptable risk to deny the prisoner the liberty to which he would otherwise become entitled. Can we just read on though, your Honour, because the actual phrase itself is one of judicial creation. So that far from being something about which judges stand before dumbfounded, it is actually something which judges think is of assistance. Their Honours say:
In devising these tests the courts have endeavoured, in their efforts to protect the child’s paramount interests, to achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access. To achieve a proper balance, the test is best expressed by saying that a court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of sexual abuse.
We might also mention apropos of the concern that “unacceptable risk” is a concept with which judges are unfamiliar is that it is, in fact, the phrase taken from section 16 of the Bail Act (Qld) which operates to provide that courts may deny bail where there is an unacceptable risk that the offender would fail to reappear.
GLEESON CJ: What is the year of that Act?
MR KEANE: I think it is 1980, your Honour.
GLEESON CJ: Tell us after lunch, will you?
MR KEANE: I will.
HAYNE J: I think that expression is possibly used in other State bail legislation. I think the expression is used.
MR KEANE: It would not be surprising, your Honour, because it is probably the best way of putting what the Court should be concerned about.
GUMMOW J: The inspiration for the draftsman in the family law field is apparent in section 13(6) too, “paramount consideration”.
MR KEANE: Yes, your Honour, that is correct. There are a couple of other things we should say in relation to the legislative scheme that have not been quite mentioned yet. Our learned friends did take your Honours to section 3(b) which identifies one of the objects of the Act being:
to provide continuing control, care or treatment of a particular class of prisoner to facilitate their rehabilitation.
Attention has been drawn to the terms of section 13(5), where:
the court may order –
(a) that the prisoner be detained in custody for an indefinite term for control, care or treatment –
That is, indeed, the order that Justice White made, as your Honours will see if your Honours go to the conclusions in her Honour’s judgment commencing at page 95, her conclusion. The particular order is made at page 96 at [102]. Apropos of your Honour Justice Kirby’s concern in this regard, can we invite your Honour to read what her Honour has said in paragraph [100] a the bottom of page 95 and going over to [101] on page 96 where her Honour refers to Professor James’ evidence:
of ‘a sense of increasing hope … that appropriate forms of psychotherapy in particular might prove efficacious.’ Professor Ogloff hinted in oral evidence that the SOTP program might not be the most appropriate for the respondent and, indeed, this was recognised by Mr Tessman‑Keys at the time. This could be further explored. The goal must be one of rehabilitation if the respondent is to remain detained and, with the respondent’s co‑operation, appropriate treatment together with staged reintegration as recommended by Dr Moyle may lead to a positive outcome when this order is reviewed. But until that occurs, the respondent must be detained so that the community may be adequately protected.
Your Honour, in relation to what her Honour referred to at page 95 in paragraph [100] as to Mr Fardon’s choice “not to take some responsibility for his own rehabilitation”, can we refer your Honours particularly to her Honour’s reasons at paragraph [51] at the top of page 82. I invite your Honours to read that. Can we mention, in relation to the way in which this Act links up with the Corrective Services Act ‑ your Honours have been taken by our learned friend to section 50. One then is sent to the corrective services regime. Your Honour Justice Hayne mentioned section 53. That is a provision that provides that:
A corrective services officer may make an order that transfers a prisoner from a correct services facility to ‑
(a) another corrective services facility; or
(b) a place for ‑
(i) medical . . . treatment –
and your Honours should also be aware of section 189 of the Corrective Services Act. Your Honours have been given, I think, a short excerpt of that Act. Section 189 provides:
(1) The chief executive must make administrative policies and procedures to facilitate the effective and efficient management of corrective services.
(2) The policies and procedures must take into account the special needs of offenders.
Then section 190(1) provides:
The chief executive must establish services or programs ‑
(a) for the medical welfare of prisoners; and
(b) to help prisoners to be integrated into the community after their release from custody –
and section 190(2) provides:
The services and programs must take into account the special needs of offenders.
So that the provisions of section ‑ ‑ ‑
GUMMOW J: Now, is this the duty of imperfect obligation?
MR KEANE Your Honour, one recalls that in ‑ ‑ ‑
GUMMOW J: I am referring to sections 189 and 190. What happens if they do not? What happens if they do but do not actually administer it?
MR KEANE Your Honour, whether there is a remedy by way of judicial review, I am not in a position to say to your Honour, but can I mention them, or the reason we mention them is that ‑ ‑ ‑
KIRBY J: But, generally speaking, once people are committed to prison they are in the hands of the Executive Government. Unless there is some power in legislation judges can make these statements, but whether they are followed up in any way is entirely a matter for the Executive Government. Many judges will not say anything because of that delineation of powers.
MR KEANE Well, I suppose, your Honour, the first point is that the Parliament has said these things. It may be of imperfect obligation, as Justice Gummow says, but one does not ‑ ‑ ‑
KIRBY J: Well, there is nothing in the Act to permit a judge. I mean we are talking about liberty here on a prediction of dangerousness.
MR KEANE We are, your Honour, and I am addressing your Honours in relation to your Honour’s suggestion there does not seem to be much in the Act about rehabilitation. I am making the point that, with respect ‑ ‑ ‑
KIRBY J: Well, there is no power in a judge. There are two words in the Act – but what I am saying is there is no power for judicial intervention to order rehabilitation to take place and meanwhile you have thrown away the key.
MR KEANE: And, in that regard, the key has not been thrown away; the key is still available. Section 27 provides for review after one year and then at least one year after that and section 28 provides for review on application by the prisoner.
GUMMOW J: Yes, I know, but let us take it step by step. Look at page 97. That is the order that Justice White made. It was a purposive order to “be retained in custody for an indefinite term for control, care and treatment”. I assume at the time of one of these review steps in section 27 there is a question as to the absence of care and treatment. Does that enter it into the equation of 27? Assume the judge is not satisfied as to the extent of care and treatment that has been extended this prisoner, what happens? Is it a justiciable question at all at this review stage? You see the bottom line is, is order 1 just a motherhood statement?
MR KEANE: If it is just a motherhood statement, then the court may well take the view that supervised release is a preferable course because rehabilitation, being of care, control and treatment, being the purpose for ordering detention under section 13(5), is not being observed. Therefore, a better course might be to allow supervised release with conditions for supervised release in accordance with section 16, which the court can impose under section 30 on a review hearing on the footing, your Honour, that the continued detention for the purpose of care, control and treatment is, if you like, by the State’s own default, demonstrated not to be necessary or demonstrated not to be efficacious.
GUMMOW J: This phrase, “control, care or treatment”, reflects the jurisdiction conferred, does it not, to make the order? Where do we find that?
MR KEANE: Your Honour will find it in the objects of the Act.
GUMMOW J: I know it is in the objects.
MR KEANE: Your Honour will find it in section 13(5):
If the court is satisfied as required under subsection (1), the court may order –
(a) that the prisoner be detained in custody for an indefinite term for control, care or treatment ‑ ‑ ‑
GUMMOW J: Yes, but the court does not have to be satisfied, under subsection (1), as to any matters going to the existence of programs for care or treatment, does it?
MR KEANE: That is true, your Honour. Your Honours, while we are here can we take up the point your Honour Justice Hayne raised ‑ ‑ ‑
GUMMOW J: Just a minute. So is the court then making an order of imperfect obligation as well?
MR KEANE: The court is making an order that the prisoner be detained for the particular purpose. If the court’s order is flouted ‑ ‑ ‑
GUMMOW J: The court does not have to enter upon, at the time it makes its decision, the attainability of that purpose. It may be a futility.
MR KEANE: It is possible that it may. That might be a reason why the court would refuse to make the order but, your Honour ‑ ‑ ‑
HAYNE J: That would be an oddity.
MR KEANE: That would indeed be an oddity, but it might not be an oddity on review.
HAYNE J: But let it be assumed that the offender concerned cannot be helped. Nothing you can do is ever going to help this person to stop offending.
GUMMOW J: And that seems to be the case with this gentleman - paragraph [100].
MR KEANE: With respect, that is not what we would draw out of paragraph [100]. We would rather draw out of it the suggestion that there is hope.
GUMMOW J: Anyhow, I am distracting you from answering Justice Hayne.
MR KEANE: Your Honour Justice Hayne raised the point that there might be many grades of seriousness of offences that are serious sexual offences. Justice Muir referred to that possibility in his reasons at page 29, paragraph [54] in giving an example of a case where, in the exercise of the true discretion conferred by section 13(5), a court might decline to make a detention order. The example your Honour gives of the serial exhibitionist may be another. We rather urge those examples on your Honour as illustrating that there is a real discretion in section 13(5).
GUMMOW J: Wait a minute. Is the discretion between (a) and (b) and nothing or just between (a) and (b)?
MR KEANE: We submit it is a discretion to make an order as to (a) or (b) or not at all because of the kind of example that his Honour Justice Muir gave that the Chief Justice referred to at page 105 in paragraphs [14] and [15].
HAYNE J: That is a result you get to only, it seems to me, by giving the word “unacceptable” a very great deal of work to do.
MR KEANE: Your Honour, one can get to it either as part of the evaluative process involved in coming to a view about an acceptable risk, or one can come to it simply by reading the language of section 13(5) when it says “the court may order” as ‑ ‑ ‑
GUMMOW J: Why would the court not order at all?
MR KEANE: For the sort of reason that Justice Muir gave, that there is indeed a risk, and indeed it may be a very high risk, that there will be a serious sexual offence committed within the meaning of the legislation, but that it will be effectively a victimless crime.
GLEESON CJ: To be a serious danger to the community, can it be sufficient that you are a serious danger to one individual?
MR KEANE: We would submit so, if for no other reason than subsection (4)(c), says:
information indicating whether or not there is a propensity on the part of the prisoner to commit serious sexual offences in the future;
If there is plain evidence of a particular obsession, then the answer would be yes.
GLEESON CJ: Or a specific threat.
MR KEANE: Or a specific threat, quite, your Honour. Indeed, subsection (c) might encompass the threat situation your Honour was referring to earlier. But in such a case it might be that the proper order – that the court would make an order for supervised release under section 16 imposing as a condition of that order a condition under subsection (2):
The supervision order may contain any other order the court thinks appropriate –
(a) to ensure adequate protection of the community –
The examples given are:
1. That the prisoner not knowingly reside with a convicted sex offender.
2. That the prisoner must not, without reasonable excuse, be within 200 m of a school.
It is not a large leap to say that that would also include a condition that the prisoner not harass or go within 200 metres of the home of a named individual or that individual’s family.
GUMMOW J: Just going back to this order that was made here, it is expressed disjunctively, is it not?
MR KEANE:
be detained in custody for an indefinite term for control, care and treatment.
GUMMOW J: But the section is disjunctive, is it not?
MR KEANE: For control, care or treatment - in our respectful submission, it is not difficult to read that as being control, care or treatment, or all of them.
GUMMOW J: Who works that out?
MR KEANE: The judge, your Honour and apparently not with any particular difficulty.
GUMMOW J: I will not say anything.
MR KEANE: Your Honour, can I say, apropos of what your Honour is raising with us, your Honour does recall that there is an appeal on foot in relation to Justice White’s order.
GUMMOW J: Yes, I do.
MR KEANE: Yes.
KIRBY J: But it is enough, is it not, to fulfil the object of continuing control. If it is disjunctive it is enough that it should be to continue the control.
GUMMOW J: We are worried about the ‑ ‑ ‑
KIRBY J: That is what, given that it is in a prison, which is not, one would think, the most appropriate place for a pure regime of care and treatment, it would seem to be that that is the object of the Act. That is the sort of thing judges can do.
MR KEANE: It is a regime that does accommodate care and treatment as well as control, and your Honour, if it were the case, if one had - and one does not wish to use ridiculous examples - a case where one had an absolutely hardened irretrievable, then one might simply make an order for control because nothing else might serve any purpose.
KIRBY J: Although, on that assumption, although the sentencing judge has sentenced, and although the person has discharged, completed that sentence by subsequent order of another judge before the sentence is complete, the person is effectively made additionally subject and in this case, retrospectively, to punishment by way of control.
MR KEANE: Well, your Honour, the use of the word “punishment” is controversial, obviously ‑ ‑ ‑
KIRBY J: That would not pass muster in the European Court of Human Rights. That would be called arbitrary detention.
MR KEANE: Your Honour, it would not be called arbitrary detention here. Even if it were called arbitrary detention, notwithstanding the fact that it is legislated by Parliament as a part of a program to deal with a problem in general terms rather than ad hominem, so that if it can be said that that type of regime is arbitrary, then accepting what your Honour puts to us, then there is no reason, with the greatest respect, why that would constitute a reason to bring the Act down. If the Act ‑ ‑ ‑
HAYNE J: I am not entirely sure that the premise about Europe is right. Account would have to be taken of Van Droogenbroek v Belgium (1982) 4 EHRR 443, which concerned the Belgian legislation dealing with indefinite detention, and E v Norway (1990) 17 EHRR 30. I must say on a quick look at those this morning, it seemed to me that the only point of concern there was whether the subsequent reviews were judicially based or administratively based, but the initial imposition of indefinite detention was not seen as arbitrary.
MR KEANE: Because it does seem a little late in the day to be suggesting that there is something arbitrary about it when it is a regime. It has been around for some time.
KIRBY J: But I was referring to Stafford which was a case concerning the imposition of a punishment after a person had completed the sentence or the tariff, as it was put, of the sentence that was originally imposed. That is the difference and that is the similarity to this particular case.
MR KEANE: Your Honour, with respect, the similarity is, in our submission, distant. If the Dangerous Prisoners Act is to be held invalid on the footing that it is beyond the power of the Queensland Parliament in its perhaps imperfect wisdom, then that can only be because it alters the character of the Supreme Court of Queensland as a court or ‑ ‑ ‑
KIRBY J: I do not think that is the criterion expressed in Kable at all.
MR KEANE: - - - or that it diminishes the capacity of the Supreme Court to exercise the judicial power of the Commonwealth. In our respectful submission, that is the criterion; the latter aspect is the criterion. We put two. The latter, we submit, is the criterion that was engaged in Kable, for reasons which we will develop by reference to the decision after lunch. In our respectful submission, if the legislation is to be brought down, it is because it answers one or both of those descriptions. This legislation does not answer either. That the Parliament takes facts that as a matter of history concern the commission of an offence and continued incarceration and taking those facts creates a general regime, the objective of which is to secure the protection of the community in circumstances where there is a sufficient body of evidence for the Parliament in its perhaps imperfect wisdom to regard the creation of such a regime as necessary for the protection of the community, then, with the greatest respect, this says nothing that might be likely to diminish or alter the character of the Supreme Court of Queensland as a court or to diminish its capacity to exercise the judicial power of the Commonwealth.
KIRBY J: That would be so if we could predict the protection of the community.
GUMMOW J: This protection is achieved by giving the court a power under 13(5)(a) and (b), detention “in custody for an indefinite term for” any one or more of “control, care or treatment”. Is that right?
MR KEANE: Yes, and that there has not been such a regime previously is a comment one can make about Australia. It has been a regime that has been around in the United States for some time. That it is perhaps novel might also reflect the fact that recognition of a particular kind of problem with which one is concerned is a recognition which has overwhelmingly come to public knowledge in very recent times.
GLEESON CJ: Is that a convenient time, Mr Solicitor?
MR KEANE: It is, your Honour.
GLEESON CJ: We will adjourn now. We will resume at 2.15.
AT 12.43 PM LUNCHEON ADJOURNMENT
UPON RESUMING AT 2. 14 PM:
GLEESON CJ: Yes, Mr Solicitor.
MR KEANE: Thank you, your Honours. We have had circulated to your Honours copies of sections 15 and 16 of the Bail Act 1980 (Qld), which we referred to before lunch.
GLEESON CJ: Thank you.
MR KEANE: We do not need to refer your Honours to it any further than we have already.
GUMMOW J: You said, Mr Solicitor, that the factum upon which this Act operated was the status, if you like, of being a prisoner.
MR KEANE: Yes, your Honour.
GUMMOW J: Would it be consistent with your submissions that any other factum could have been used - suspicion, for example, that a person might begin to launch on this path of criminal conduct? Is anterior conviction a necessity?
MR KEANE: So far as our submission is concerned, there is, in truth, the connection, historically, with the fact of a conviction.
GUMMOW J: Yes, but is it essential?
MR KEANE: But, in our submission, it is not essential.
KIRBY J: Then you are really challenging what was said in Lim, are you not, that the exceptions to detention are really limited and they are historical and they are set in stone and should not be extended, otherwise every time a government says, “Well, this person is a terrorist or an enemy of the people” then we lock them up and throw away the key and involve the judiciary in doing so.
MR KEANE: We have rather read the decision in Lim and the observations made in Kruger about it as indicating not that those exceptions are set in stone, rather that they are not closed, and, indeed ‑ ‑ ‑
KIRBY J: The categories are not closed.
MR KEANE: Yes, and indeed, that the express exceptions in relation to mental illness and quarantine point, as Justice Gaudron said, to broader categories such as community protection.
KIRBY J: But I can understand it if this had been framed in terms of a mental illness, but all the evidence suggests that this appellant has no mental illness.
MR KEANE: Your Honour has been taken to the passage that suggests he has a recognised and diagnosed disorder, which makes him particularly dangerous to others and, indeed, in a very real sense, to himself.
KIRBY J: But it has not been framed as a piece of legislation dealing with detention of a person on the ground of mental illness.
MR KEANE: Not in terms of mental illness, because, your Honour, with the greatest respect, that is a particular description of a condition. Section 11 ‑ ‑ ‑
KIRBY J: Well, you will understand a little caution every time a new category is put up and especially when it involves the judiciary. It is one thing for the Executive to go off and do these things, but to involve the judiciary in what is effectively punishment, a continuation of punishment, is really to start on the slippery slope. Enemy of the people is really in my mind. “This person is an enemy of the people therefore we will find a formula to lock them up.”
MR KEANE: Well, perhaps we should worry about legislation of an enemy of the people when someone wants to pass ‑ ‑ ‑
KIRBY J: No, the time is now, Mr Solicitor. That is why this Court is here.
MR KEANE: Your Honour, this is not about people who are enemies of the people. This is about people who in respect of whom there must be a report under section 11(2) and that report must include:
(a) the psychiatrist’s assessment of the level of risk that the prisoner will commit another serious sexual offence ‑
(i) if released from custody; or
(ii) if released from custody without a supervision order being made; and
(b) the reasons for the psychiatrist’s assessment.
Then under section 13(4) of the Act:
In deciding whether a person is a serious danger to the community . . . the court must have regard to the following ‑
(a) the reports prepared by the psychiatrists under section 11 and the extent to which the prisoner cooperated in the examinations by the psychiatrists;
(b) any other medical, psychiatric, psychological or other assessment relating to the prisoner;
(c) information indicating whether or not there is a propensity –
The list goes on. Might we say, with respect, all these various considerations are considerations which go to the level of risk of another serious sexual offence. None of these criteria or factors which the court is obliged to consider in coming to its decision as to whether or not to exercise its discretion are the kind of thing that your Honour is referring to, with respect.
CALLINAN J: Mr Solicitor, can you assist me with this. Section 8(2) says:
If the court is satisfied as required . . . it may make either or both of the following orders –
Then (a) makes provision for examination by the two psychiatrists. Then section 13(4), to which you have just been referring, requires the court in (a) to have regard to the reports. Could the court, however, make an order for continuing detention without those two reports, bearing in mind that there seems to be a discretion in 8(2)? It seems unlikely that a court would, but is it a theoretical possibility at least?
MR KEANE: Your Honour, I would have to say that, as I will apprehend the way in which the Act is meant to work, if the court was not minded to make ‑ ‑ ‑
CALLINAN J: To order the examinations it would order release, but I do not know whether that is a necessary consequence.
MR KEANE: Your Honour may be right.
GUMMOW J: The use of “either or both” in 8(2), which is one of those sections that confers jurisdictions and creates rights, as it were, does not sit all that well with 13(5) which is just, may do (a) or (b).
CALLINAN J: It really looks as if it is a matter of construction. There is a theoretical possibility that there could be continuing detention without psychiatric reports.
MR KEANE: That does seem to be a possibility ‑ ‑ ‑
CALLINAN J: It is probably very unlikely in practice, but it seems to be a possibility.
MR KEANE: Your Honour, I have to say, as his Honour Justice Gummow points out, it does seem to be that that is a theoretical possibility.
CALLINAN J: It would be better if the court were obliged to act only if there were reports and ‑ ‑ ‑
MR KEANE: Yes. Of course, the Court is not obliged to act on them. It must have regard to them in this case ‑ ‑ ‑
CALLINAN J: Have regard to them if they are there.
MR KEANE: In this case, I think her Honour declined to act on one of them.
HAYNE J: But then much turns on ‑ ‑ ‑
MR KEANE: Page 74, paragraph 13.
HAYNE J: Much turns then on the premises from which you begin. Is offending a psychiatric problem? Is offending explained in terms broader than those familiar to the skill of psychiatry? Again, I keep going back to this piece by Norval Morris simply because it is prescient, written in 51 or 52. He says that:
At present the psychiatrist regards society’s official reaction to crime as ideally a therapeutic endeavour, the lawyer as inter alia vindicating the law and preserving the King’s peace, the writer on juvenile delinquency as a pedagogic problem, and so on.
Theories of punishment, theories of the way in which the criminal law works all begin from some premise about human behaviour. Does this Act begin from the premise that human behaviour relevantly is entirely explained by the discipline of psychiatry?
MR KEANE: With respect, no, it does not, your Honour, and one can see that by the considerations that are mentioned to be addressed by a judge. It proceeds on the footing that, no doubt, the discipline of the psychiatrist has a lot to tell us, but not necessarily always and not necessarily the whole story. The judgment that is to be made by addressing the considerations in section 13(4) plainly goes beyond that and requires the judge to inform his or herself about other matters and to come to the judge’s own view about the risk that the prisoner will commit another serious sexual offence if released into the community, a decision that can be informed, in some cases, by statements made by the prisoner himself.
To answer your Honour’s question, no, it is not linked inexplicably and essentially to the discipline of psychiatry but it is one of the disciplines to which reference is made. The nature of the psychiatric report that is required indicates the nature of the concern which the legislature seeks to address just as the other considerations in 13(4) also indicate that the concern, which the legislature has, is not one about punishment.
Your Honours, we mentioned before lunch that we intended to go to Kable. Our submission is that the decision in Kable does not determine the outcome of this case or point to the outcome of this case in the appellant’s favour. The legislation before your Honours is what Sir Maurice Byers said the legislation in Kable was not, namely “a carefully calculated legislative response to a general social problem”. Sir Maurice said that at page 62, point 3 in the course of argument, where he said:
The question is not about preventive detention in general terms but the preventive detention of one person and the intrusion of the legislature into the judicial process. The Act is not a carefully calculated legislative response to a general social problem. It is contradictory, speaking at one point generally but later being confined to the appellant.
Now, before we go to the various members of the majority where one sees Sir Maurice’s submissions being accepted, in our submission, we just mention your Honour the Chief Justice mentioned earlier that Kable was a case where Mr Kable had sent threatening letters through the mail before the legislation was introduced. Your Honours will see that is correct at 189 CLR at 52 and your Honours will see in the synopsis of the case at about point 7 on the page:
The Director of Public Prosecutions of New South Wales applied under the Act for a detention order. It was alleged that Kable had sent threatening letters through the mail. Kable was in custody pending the hearing of seventeen charges arising from his sending letters through the mail.
So it appeared that he had actually been charged and that rather than wait for the outcome of the process that had been thus commenced, the Act was passed and judicial process sought to be put in train. Of course, I should also mention, particularly in response to your Honour Justice Kirby, the general social problem to which we refer is that which is identified by Justice Deane in Veen [No 2] 164 CLR 465 which is referred to in paragraph 20 of our submissions.
HAYNE J: Which page is that on in Veen? I know the passage, but what page?
MR KEANE: The passage is at 495, your Honour. If we could then ask your Honours to go to the judgement firstly, if we may, of Justice Gaudron at 104 and your Honours will see halfway down ‑ ‑ ‑
KIRBY J: Can you assure us that the concern is the matter referred to by Justice Deane rather than tabloid headlines?
MR KEANE: Yes, your Honour. We have set the passage out in our written submissions. Your Honour will recall the problem in Veen was that there could not be a sentence which was greater than that which was proportionate to the crime, notwithstanding that one could take into account the need to protect the community.
KIRBY J: And he did reoffend, did he not?
MR KEANE: Yes. It was a case where he had reoffended a number of times and it was a situation of diminished responsibility. Justice Deane said:
the protection of the community obviously warrants the introduction of some acceptable statutory system of preventive restraint to deal with the case of a person who has been convicted of violent crime and who, while not legally insane, might represent a grave threat to the safety of other people by reason of mental abnormality if he were to be released as a matter of course at the end of what represents a proper punitive sentence.
KIRBY J: But that does seem to be a case that would fall within the category of exception of a mental illness.
MR KEANE: His Honour is saying it is not a case of mental illness.
KIRBY J: That would be a matter for medical evidence.
MR KEANE: Well, that is why one is reluctant, with respect, to attribute some talismanic quality to the taxonomy that ‑ ‑ ‑
KIRBY J: I think that is a fair comment, that otherwise you simply construct the mental illness in order to resolve the problem.
MR KEANE: Quite.
KIRBY J: But that would be a way more conformable with the way the English law and our law have dealt with this issue in the past, that we punish people for what they have done, pursuant to a trial, great protections and orders of a judge. We do not punish people for what they might do in the future.
MR KEANE: Yes.
KIRBY J: That is really one of the ideas that I think lay behind the Communist Party Case that we do not deal with people for what we think they might do, but for what they are proved to have done against the law. That is the problem with this case, that it is really punishing the person because he stays in prison in exactly the same cell as he was in, not for what he has done, for he has served that sentence, but for what he might do in the future. It is a new taxonomy and not a very nice one.
MR KEANE: Your Honour, it is no doubt a problem which we all wish did not exist, but it is a problem with which the Parliaments have sought to grapple.
KIRBY J: The Parliament acts subject to the Constitution. They do their thing and we do what the Constitution requires of us.
MR KEANE: It does. To return to your Honour’s point about the Communist Party, of course, that was the Commonwealth Parliament could not pass that Act because they did not have a head of power other than the defence power which was held not to be engaged.
KIRBY J: That was one of the problems. They also ran into a Chapter III problem which is what is alleged to be the case here.
MR KEANE: But if a State Parliament had wanted to ban the Communist Party, there would not have been a problem.
McHUGH J: There was no Chapter III problem in the Community Party Case because that was dismissed out of hand. It was a ridiculous argument.
MR KEANE: No, quite. With respect, we would adopt those observations. So, your Honour, yes, there has been an identified problem – Justice Deane identified it – and this legislation with which we are concerned is addressing it and ‑ ‑ ‑
GUMMOW J: It is addressing it from a particular viewpoint, namely, what about the people who were already under sentence and in prison? It is not identifying the whole problem.
MR KEANE: Your Honour, in that regard, can we say two things. The first is that to the extent that there is some undercurrent under our learned friend’s submissions to the effect that the judicial finger having writ and moved on the legislature can have no more to say about the problem. Then, we, of course, refer to the Builders Labourers Case, Bachrach, all the cases that recognise that there can be a legislative reversal of a judicial decision. We are not talking about that. We are talking about a legislative addition to a judicial Act.
The other thing we would say is that insofar as the legislation takes the circumstance that someone is a prisoner serving a sentence for that kind of offence, that is not, in our submission, an inappropriate basis on which to start. One is starting with the Attorney-General making an application in respect of persons who, as they say, have fallen.
GUMMOW J: Yes. One of the mischiefs that is discussed in some of the United States writing about this is that when you have the system that this Act sets up, in effect, the Executive is encouraged to have a second go and they have not got – which is not this case – the maximum sentence they thought they should get, and you wait and then you come along and you have a second go.
MR KEANE: The Kansas v Crane sort of thing?
GUMMOW J: Yes.
MR KEANE: Yes. As your Honour says, that is not this case.
GUMMOW J: No, but it could be.
MR KEANE: Yes. There is the possibility of abuse, but that would be a political question.
KIRBY J: But it is coming back to the question Justice Hayne asked at the beginning, whether notions of double jeopardy are raised by this, because it was Justice Deane who said of the principle of double jeopardy that one of the reasons that a principle like that has developed in Australia is because of the great resources and power of the State as against the individual who is subjected to the criminal process and serves the sentence and can normally be expected to be free after he or she has done that.
MR KEANE: And, your Honour, in the State of Queensland double jeopardy is a question of statute and the proper interpretation of that statute, which was recently before this Court, was expounded by this Court. But no one would suggest for a moment, with the greatest respect, that the Parliament of Queensland which created the rule could not alter the rule as expounded by this Court without infringing ‑ ‑ ‑
McHUGH J: I do not know, Justice Kirby may think ‑ ‑ ‑
MR KEANE: Well, no one else has suggested ‑ ‑ ‑
KIRBY J: Justice McHugh in an article in his Byers lecture might have suggested so, too.
GLEESON CJ: The United Kingdom has recently done so, has it not?
MR KEANE: I think that is right, your Honour.
KIRBY J: All sorts of bold ideas were put forward in that lecture.
MR KEANE: The other thing we should say, your Honour Justice Kirby, is that the constitutional principle of double jeopardy, of course, which is the principle that is engaged in the American authorities, comes from express provisions in the Constitution and hence the relevance of – or the need to draw the dichotomy in the American cases between what the Americans call civil and criminal commitment, because if it is not criminal – if it is civil – then one does not have a problem with double jeopardy. But we are 12,000 miles away from double jeopardy. The question is whether there is some invalidating principle coming from Chapter III in respect of this legislation of the Queensland Parliament dealing with this problem and, in our respectful submission, it is a big stretch. We were taking your Honours to Kable, if your Honours ‑ ‑ ‑
GLEESON CJ: Yes, you are at page 104.
MR KEANE: Yes, if that is convenient. We were making the point from her Honour Justice Gaudron’s judgment, particularly by reference to the last paragraph on the page, where her Honour says:
It is necessary to refer to certain other provisions of the Act. First, s 3(2) provides that “[i]n the construction of [the] Act, the need to protect the community is to be given paramount consideration”. Clearly, the effect of that directive is to require the making of an order under s 5(1) if the conditions specified in s 5(1)(a) and (b) are satisfied.
Your Honour Justice Gummow expressed a similar view – sorry, before we go to that I should also give your Honours what her Honour said at page 106 at point 8:
The power purportedly conferred by s 5(1) of the Act requires the making of an order, if the conditions specified in s 5(1) are satisfied, depriving an individual of his liberty, not because he has breached any law, whether civil or criminal, but because an opinion is formed, on the basis of material which does not necessarily constitute evidence admissible in legal proceedings, that he “is more likely than not” (s 5(1)(a)) to breach a law by committing a serious act of violence –
and her Honour concludes at 107, in the paragraph that begins at about point 2:
Moreover, when regard is had to the precise nature of the function purportedly conferred by s 5(1), the matters to be taken into account in its exercise and its contrariety to what is ordinarily involved in the judicial process, the effect of s 5(1) is, in my view, to compromise the integrity of the Supreme Court of New South Wales and, because that court is not simply a State court but a court which also exists to exercise the judicial power of the Commonwealth, it also has the effect of compromising the integrity of the judicial system brought into existence by Ch III of the Constitution.
Now, we will not read the other passages but, in our respectful submission, what is being said there is that because there was a legislative direction to the court as to how it shall conduct itself, the institutional integrity of the court has been compromised. Now, there is no such direction in this case. We might say, with respect, that ‑ ‑ ‑
GUMMOW J: Well, that turns on the construction of 13(2).
MR KEANE: Yes, but whether one construes it, as we would urge, as enabling the discretion to be exercised between detention or supervision or nothing at all, or just attention or supervision, in our respectful submission there are real discretions that are opposed in the court.
GUMMOW J: Well, what is the content of this discretion to do nothing at all?
MR KEANE: To do nothing at all?
GUMMOW J: Yes.
MR KEANE: In the sort of case where there is not an unacceptable risk, or where ‑ ‑ ‑
GUMMOW J: Well, if there is no unacceptable risk you do not get off the ground.
MR KEANE: Quite.
GUMMOW J: Because that is a condition precedent to the existence of the discretion. I am postulating the preconditions are made out if the discretion is not exercised.
MR KEANE: What we were saying before lunch is that unacceptable risk involves an exercise of evaluation. That is the judicial task, making the evaluation by reference to the considerations in 13(4). Even after that exercise has been done, one comes to the sort of example that Justice Muir gave at first instance and the Chief Justice accepted as demonstrating that the discretion is not illusory.
GUMMOW J: What is the content of the discretion apart from one example that comes out of ‑ ‑ ‑
MR KEANE: The content of the discretion discerned from the nature of the subject matter ‑ ‑ ‑
GUMMOW J: That is just a fact-based example. That does not tell me anything.
MR KEANE: Because the content of the discretion is to be discerned from the nature and subject matter of the Act. The nature and subject matter of the Act involves an interference with the rights of someone who would otherwise be set at liberty in circumstances where the court has a power to make those orders in the circumstances we have mentioned. In our respectful submission, there is a real discretion. In the kind of case Justice Muir gave or in the kind of example Justice Hayne gave, there is a real argument and a real discretion that, having regard to the absence of any likely harm as opposed to the theoretical legal commission of an offence, the court would not make that order. Of course, one would hope as well ‑ ‑ ‑
GUMMOW J: But that in a way flies in the face of the deliberate choice of this wide definition of “serious sexual offence”. You say the discretion is regulated by the scope and purpose of the Act and that is true, but part of the purpose of the Act is to be seen by this wide dragnet definition of “sexual offence”.
MR KEANE: To prevent the occurrence of harm to the community by the recurrence of those kind of offences. One would hope that the Attorney would not move in respect of those who were serial exhibitionists perhaps but, if he did, then the court would have a real discretion.
McHUGH J: Mr Solicitor, does not the word “may” in subsection (5), given the alternative orders, suggest that it is being used in a Julius v Bishop of Oxford point? It is a power that is given to a court. Are you not on stronger grounds for saying there is no discretion once the court comes to the view that there is a serious danger to the community but, in the exercise of the judicial role, the court has to consider a large variety of matters and then make a judgment.
MR KEANE: In that regard one is coming in from the other end, the evaluation end, at unacceptable risk. That may be a stronger ground. We advance both submissions.
McHUGH J: But it is significant that, for instance, there is no paragraph (c) in subsection (5) which says ‑ ‑ ‑
MR KEANE: “Or no order at all”.
McHUGH J: “No order at all”.
GLEESON CJ: By hypothesis, the risk is unacceptable. Presumably that means unacceptable to the judge making the order.
MR KEANE: Yes, that is true.
GLEESON CJ: Which must mean it is a risk the judge is not prepared to accept.
MR KEANE: Yes, that is true.
GUMMOW J: I think the answer probably is that the passage you were taking us to in Justice Gaudron’s judgment does bite.
MR KEANE: In our respectful submission, no, because here there is a real exercise for the court to perform rather than something which all members of the majority seemed to regard as a foregone conclusion that there was a direction from the legislature which would have no other outcome but the making of the order.
GLEESON CJ: Mr Solicitor, I do not think we have yet had a look at what is involved in this supervision which is the alternative. Perhaps, without necessarily going to the full detail of that, what does that involve? Is it like being on parole?
MR KEANE: Largely, if such an order is made, then the order must contain requirements that the prisoner do the things set out in section 16(1)(a) which involve reporting conditions, receiving visits from corrective service officers and notifications of changes of address and so forth:
(d) be under the supervision of a corrective services officer; and
. . .
(f) not commit an offence of a sexual nature during the period of the order.
And such other orders as the court may think appropriate:
(a) to ensure adequate protection of the community; or
. . .
(b) for the prisoner’s rehabilitation or care or treatment.
So that the kind of orders one would expect to see in a probation order would be the kind of requirements or the kind of directions one sees fleshed out in the supervision order.
GUMMOW J: The effect of non-observance of the supervision order?
HAYNE J: Division 5, sections 20 and following.
MR KEANE: It is section 21, your Honours, and 22:
If the court is satisfied, on the balance of probabilities, that the released prisoner is likely to contravene, is contravening, or has contravened, the supervision order, the court may –
(a) make a continuing detention order, if satisfied as required under section 13(1); or
(b) amend the conditions of the supervision order; or
(c) make any other order the court considers appropriate to achieve compliance with the supervision order or that is necessary to ensure adequate protection of the community.
GLEESON CJ: Sometimes I have seen in criminal cases voluntary undertakings by sexual offenders to undergo chemical sterilisation put forward in mitigation of sentence. Could a condition like that be imposed?
MR KEANE: Voluntarily, your Honour.
GLEESON CJ: I am just saying I have seen it done voluntarily in cases that I have looked at.
MR KEANE: Could it be imposed without consent? I must say it does not leap to the eye that it could. I might say, having regard to the kind of problem that is being addressed here, I am not necessarily sure that it would work, because the problem is different from simple sexual urges. Mr Fardon’s problem is a different one.
The other passages in the judgement of Kable to which we wish to go, in the judgement of Justice McHugh at 121, point 1 to 121, point 8, that is the passage that begins at the top of the page:
In my opinion, those who initiated and passed the Act, plainly expected and intended that the imprisonment of the appellant would continue after the expiration of the sentence for manslaughter of his wife. The object of the Act, its ad hominem nature and the grounds and method of proof of the s 5 order together with provision for s 7 interim orders leave no other conclusion open.
We would invite your Honours to read the balance of that, and at the bottom of the page, last sentence:
It is not merely that the Act involves the Supreme Court in the exercise of non-judicial functions or that it provides for punishment by way of imprisonment for what the appellant is likely to do as opposed to what he has done. The Act seeks to ensure, so far as legislation can do it, that the appellant will be imprisoned by the Supreme Court when his sentence for manslaughter expires. It makes the Supreme Court the instrument of a legislative plan, initiated by the executive government, to imprison the appellant by a process that is far removed from the judicial process that is ordinarily invoked when a court is asked to imprison a person.
In your Honour Justice Gummow’s judgment, at 129 point 9 and over the page, your Honour makes the Julius v Bishop of Oxford point and we can refer your Honour back to your Honour’s recounting of the submissions that were made, 127, last sentence referring to the steps in the appellant’s submissions:
The second step is that the Constitution, and especially Ch III, assumes and requires, at least as regards the Supreme Courts of the States, an institutional integrity of the State court structure which may not be undermined by the reposition in them of authorities and powers of the nature of those in the Act.
Justice Toohey, at page 98 point 5 where his Honour said:
The extraordinary character of the legislation and of the functions it requires the Supreme Court to perform is highlighted by the operation of the statue upon one named person only. In this respect the Act is virtually unique. It does not define “a specified person” by reference to any class or category and it carries no consequences for any person, other than the appellant, to whom its language might otherwise be applicable.
The Act answers that aspect of incompatibility which was identified in Grollo v Palmer as “the performance of non-judicial functions of such a nature that public confidence in the integrity of the judiciary as an institution . . . is diminished”.
He goes on to speak of the function offending that aspect of what Chapter III requires.
GLEESON CJ: Sir Maurice’s argument went a great deal wider than the point on which the case turned.
MR KEANE: It did.
GLEESON CJ: The argument against you, as I understand it, is not that you cannot do this to people but that you cannot involve judges in the process.
MR KEANE: In that regard, can we say a couple of things. Firstly, in our submission, this Act vests real discretions in the Court rather than giving directions to the Court as to how it should go about achieving a result - it is pre-ordained - to be exercised in accordance with the judicial process, rules of evidence, high probability, by reference to considerations relating to the protection of the community. So we say that makes it different. Insofar as there is a concern that what invalidates this Act is the involvement of judges of the Supreme Court of Queensland, we submit, with respect, that there is no basis on which to say that the exercise that is being required of them is apt either to alter the character of the Supreme Court of Queensland as a court or to diminish its capacity to discharge its obligations or its functions as a repository of the judicial power of the Commonwealth.
We would submit, with respect – and we adopt what was said by both the Chief Justice and Justice Williams below – that surely it is better that these decisions be made in public by judges exercising the judicial process to resolve these questions by determining the balance between competing arguments than having a number of faceless bureaucrats doing it.
KIRBY J: Yes, but that is not stating the true alternatives. It may be that if the law does restrict punishment to acts done after judicial order following a criminal trial, then faceless bureaucrats cannot do it either. After all, the appellant’s case before this Court is very simple and syllogistic. The law of Australia does not permit punishment except pursuant to a judicial order, though there are some exceptions for detention of which this is not one. This is punishment because he is staying in the same cell in prison, and it is not within the exceptions, therefore it cannot be done by judicial order or by anyone else – simple syllogism.
MR KEANE: In that event, then if the involvement of the judiciary is not an aspect of the problem then there cannot be a Chapter III basis for invalidating this legislation, because the Chapter III cases, Chu Kheng Lim, Nicholas and so forth, are cases concerned with the separation of powers, so that so far as the Commonwealth is concerned, detention for punishment is necessarily a judicial act. That distribution of powers does not affect the States so that so far as the States are concerned, if the States wished to have a non‑judicial tribunal, as some States have from time to time had in relation to mental health, they can make orders for putting people into custody ‑ ‑ ‑
KIRBY J: Quite, but that is one of the recognised exceptions, but the whole point of Lim is to say, though the actual applications are not closed, the rule about punishment is very clear. You can only do it after a trial with all the protections and you cannot involve the judiciary of this nation because it is integrated in proceeding to do this. You punish people for what they are proved to have done. You do not punish them for what they might do. That has risks. There will occasionally be people who will reoffend, but that is the way we settle the liberty of the individual in Australia.
MR KEANE: Your Honour puts to me the problem, and involved in the proposition your Honour puts to us is you cannot involve the judiciary in it. What I was saying to your Honour is that do not use the ordinary categories of mental illness, use the case of people who are shown by a committee of psychiatrists to have this particular anti‑social disorder. The judiciary is not involved at all, and they are put into custody.
McHUGH J: I am surprised, Mr Solicitor, that you accept that there is an integrated judiciary. Is it not an integrated court system?
MR KEANE: Yes, we certainly raise that as well, your Honour.
McHUGH J: You can get rid of State judges on Lim if you want to. Parliament can pass legislation dealing with its judiciary as it wants to.
KIRBY J: You cannot get rid of the supreme courts. They are in the Constitution.
MR KEANE: No, quite. It cannot get rid of the court as an institution, your Honour, and it cannot alter its character so that it is no longer recognisable as a court, because there has to be one for the purposes of section 73 and other provisions of the Constitution.
With respect, we would adopt what Justice McHugh says, that we do not have an integrated judiciary, we have an integrated court system, and the level of integration is not such as to remove those features that distinguish the Supreme Court of Queensland from federal courts, and the circumstance that something which in a federal court would be regarded as non‑judicial and hence not able to be vested in a federal court, some such tasks can, and it has always been accepted can be vested in the Supreme Courts. So to come back to your Honour Justice Kirby’s question, our submission is that if there is not a Chapter III problem, if it is not a problem about involving the judiciary, that that is not the problem, then, with respect, there would not be a problem in having a committee of psychiatrists making orders for detention.
KIRBY J: I am not sure that I would agree with that. If it is punishment, it is judicial after a criminal trial. I agree that there can then be debates about is it punishment and what are the exceptions and is this within the unclosed exceptions, but this one looks awfully like punishment. He is sitting in the cell one day pursuant to his criminal sentence and he is sitting in the cell the next day pursuant to an order under this Act. It is not just he who would be entitled to think this is punishment; it is whole world.
MR KEANE: Well, they might be better informed if they read the Act and understood why he was there, because they would see that his continued detention is a consequence of the consideration of the possibility, apparent perhaps at the end of his sentence as it could not be at the beginning, that the rehabilitative processes and so forth have not worked, and that Parliament is making a provision for limited continued detention subject to review with a view towards the possibility of a safer and more successful rehabilitation. Now, your Honour, if those who wonder why he is still there trouble to read the Act, they will see that is why he is there.
KIRBY J: Well, if they see it, they might look at it that way, but they might look on it as this Court, I think, is commanded by the Constitution to look on it. What happens if this becomes the general rule, just make everybody subject to a review and you do not get out of prison unless you can establish to somebody, a psychiatrist, that you are no possible risk to the community. One can imagine in certain circumstances that being quite a popular policy.
MR KEANE: Your Honour, to be fair the onus is on the Attorney to demonstrate that he is an unacceptable risk.
KIRBY J: Well, that is under the present legislation.
MR KEANE: Yes.
KIRBY J: But we have to look down the years, you see. That is the role of this Court.
MR KEANE: Your Honour, one does. One does have to look down the years, but one should do it on the footing that this Court does not have to do everything. The Court can sensibly work on the basis that the extreme examples which your Honour apprehends may not occur because Parliaments and those who elect them have an attachment to liberty too.
KIRBY J: Some people may think this is an extreme example. It has been posited by the appellant as an extreme example. He has virtually finished a long sentence and just as he is about, and entitled, to think he will go at liberty, which is a precious right, in comes this piece of legislation which snaps that away from him.
MR KEANE: And your Honour has seen ‑ ‑ ‑
KIRBY J: For no extra offence. He has not committed another offence. Unusual legislation.
MR KEANE: Novel legislation for a novel problem, your Honour.
KIRBY J: It is very unusual legislation in our legal tradition and constitutional tradition. It is punishing people for what they might do in the future, not for what they have been proved beyond reasonable doubt to a jury of citizens to have done in the past. That, against all the knowledge of criminology that is collected in the books, that it is extremely difficult or impossible to predict dangerousness. Just because a person has a psychiatric qualification, a medical degree, does not mean they are good at it.
MR KEANE: No, your Honour, but, with respect, that observation your Honour is making to us sounds like your Honour doubts the wisdom, perhaps, of what Parliament has done. Your Honour may be on firm ground, but wise or not Parliament is entitled to try – and it may not succeed, but guaranteed success is not a criterion of constitutional validity. Parliaments are entitled to have a go and to work on the best knowledge available to them in the absence of some invalidating principle.
What we are struggling with, with the greatest respect, is this chimera of some invalidating principle which, with the greatest respect, has not yet been articulated in the course of colloquy we have been having.
KIRBY J: I think, arguably, it has been articulated. This is a gross departure from principles that have informed our constitutional and ordinary criminal law for centuries.
MR KEANE: And, your Honour, Parliaments have been making and changing the criminal law vigorously, and more vigorously over the last half a century.
KIRBY J: Yes, but when they do it in fundamentals, it raises a constitutional question, and that is where we come in.
MR KEANE: The only constitutional question one can see is whether this legislation diminishes the State Supreme Court as the repository of federal judicial power and it is, with the greatest respect, a fantasy to suggest it does. The other possibility is that it somehow alters the structure of the Supreme Court as an institution so that it is no longer recognisable as a court, and that is even more fantastic a suggestion that this legislation has that consequence.
McHUGH J: If we strike down this legislation, people in the position of Mr Fardon may be worse off because judges may then give them indeterminate sentences under section 163 of the Penalties and Sentences Act and then they are in there until the Executive Government decides to let them out.
MR KEANE: Your Honour, with respect, it is better for judges to act on what they can know rather than what they guess at. At the end of the period of detention they may be better fitted to make an order about Mr Fardon’s continuing detention than they would have been had they been in the position your Honour suggests, that they take a view that is harder against him rather than exercising the sentencing discretion on the footing that the issue of community protection can be addressed more sensibly, with more information and with the benefit of the rehabilitation programs at the end of the period.
Coming then to the point that has been urged that our characterisation of this legislation as preventative detention, as protective rather than punitive, is erroneous, can we say, first of all, that as has been recognised recently and in terms in R v Home Secretary; Ex parte Venables [1998] AC 407 at 482 in the speech of Lord Goff at line A where his Lordship observed:
detention during Her Majesty’s pleasure as originally applied to lunatics was regarded as purely preventative –
It is detention and it has been detention in prison and it has been, notwithstanding that circumstance, regarded as preventive, just as, as is apparent from the legislation that we put in the bundle that we have distributed to your Honours, that there are Acts of the Commonwealth Parliament that provide for detention in prison in circumstances where one would not speak of those Acts as inflicting punishment. We have in mind, particularly, the Migration Act. That is in our bundle and, in particular, section ‑ ‑ ‑
KIRBY J: But Lim said that that was one of the recognised exceptions, that this is detention, not punishment.
MR KEANE: But it is detention in a prison, as appears from section 178, and in terms of people who are not criminally responsible, not guilty by reason of insanity under the Crimes Act (Cth), both at the committal stage when there is a question as to their fitness to be tried they may be detained in a prison under section 20B(4).
KIRBY J: This is under the Migration Act, is it?
MR KEANE: I am sorry, your Honour, I have moved to the Crimes Act. Section 178 is the relevant provision of the Migration Act but under the Crimes Act where people are not fit to be tried, they may be detained in prison - sections 20B(4) or 20BC – and when they are not guilty on the grounds of insanity, they must be “detained in safe custody in prison or in a hospital” - section 20BJ. So that what we are addressing here, your Honour, is the proposition that if the relevant custody is in a prison, that characterises the nature of the detention as punitive. Our submission is that that illustrates the point that simply pointing to detention in a prison cannot make good the proposition that that detention is necessarily a punishment.
In Chu Kheng Lim (1992) 176 CLR 1, if we can take your Honours first to the judgment of your Honour Justice McHugh where the point is made at page 71 in the first full paragraph of text on the page that begins at about point 2:
Secondly, no punishment or penalty is imposed by Div 4B in its ordinary operation. Although detention under a law of the Parliament is ordinarily characterized as punitive in character, it cannot be so characterized if the purpose of the imprisonment is to achieve some legitimate non-punitive object.
If we could invite your Honours to read the balance of that paragraph. The “legitimate non‑punitive object” that is pursued by this legislation is avowedly, not as a matter of show or window dressing, by reference to the considerations to which the court is directed.
KIRBY J: This sounds like, “I’m from the government; I’m here to help you”.
CALLINAN J: There is a very full right of appeal. There seems to be a right of appeal in respect of all decisions.
MR KEANE: Yes, that is right, your Honour. Of course, if the vice is in introducing the judiciary, that would go too. If it is bad because the judiciary is involved, there would be no rights of appeal either.
CALLINAN J: They are very ample rights when they are unrestricted, are they not? Any decision under the Act, I think.
MR KEANE: That is right, your Honour, and it is full appeal. It is not limited judicial review type things.
CALLINAN J: There are only two things that can be decided on the papers, I think, are there not? The preliminary hearing, I think, and whether there may be an amendment to a supervision order.
MR KEANE: That seems to be correct, your Honour.
GUMMOW J: How does this review section work, section 30, Mr Solicitor?
CALLINAN J: Well, the Attorney‑General has to make the application, does he not? It has to be done annually.
MR KEANE: Yes, the review provision in section 30 applies on the hearing of a review under section 27, which is the periodic review which the court must undertake, and the Attorney‑General must make an application to enable that to happen, 27(2). Section 28, which is also referred to in 30, is a review application by a prisoner who may make an application at any time after the court makes its first review under section 27(1):
if the court gives leave to apply on the ground that there are exceptional circumstances that relate to the prisoner.
GUMMOW J: Yes, and then we get to section 30.
MR KEANE:
On the hearing of the review, the court may affirm the decision only if it is satisfied . . . that the evidence is of sufficient weight –
that is, the evidence having regard to all the new circumstances that have happened in the period since the previous review –
to affirm the decision.
GUMMOW J: I do not quite understand that. To affirm the initial decision, I suppose, is it?
MR KEANE: And then, after that ‑ ‑ ‑
GUMMOW J: 20 years from now, they could be affirming the decision of Justice White. Is that how it would work?
MR KEANE: I think one would read that as – from section 30(1):
if, on the hearing of a review under section 27 or 28 and having regard to the matters mentioned in section 13(4), the court affirms a decision that the prisoner is a serious danger ‑ ‑ ‑
HAYNE J: You would have to read that as, he is at the time of review. The language is awkward, but I think you could possibly get it out of there, could you not?
MR KEANE: Yes, your Honour, bearing in mind that so far as previous reviews are concerned, it has been reviewed and affirmed, so it is an affirmed decision.
GUMMOW J: That is right. Review is not the right word. It is renew, not review. Subsection (3), how does that operate?
If the court affirms the decision –
to renew, I suppose –
the court may order that the prisoner–
(a)continue to be subject to the continuing detention order; or
(b)be released from custody subject to a supervision order.
That is it, is it not? That “may” means “must”, does it not, there? It must do one or the other.
MR KEANE: Yes, except, though, your Honour, the court may under subsection (2) not affirm the decision. The court may, in the exercise of its function under section 30(2), not affirm the decision, so that then there would be no applicable decision for detention.
GUMMOW J: I am just wondering how that system works with section 13(5), that is all, which is the initial decision. The use of the word “may”, which you say in 13(5) has a paragraph (c) attached to it – there is no paragraph (c) in section 30(3).
MR KEANE: We would submit, with respect, that 13(5) does not apply so far as 30(2) is concerned or 30(2) operates.
GUMMOW J: It is just a different system. We have agreed that this review, in fact, revolves a renewal or an extension because you are looking at new facts at a new time. The discretion that is then said to be enlivened under 30(3), is that of the same nature as the initial discretion that was enlivened under 13(5)? Is it wider or narrower?
MR KEANE: It may be different.
GUMMOW J: Julius v Bishop of Oxford crops up twice. I just wonder if the Bishop does not speak differently.
McHUGH J: I think you are forced to say, Mr Solicitor, that upon a review, the original order is spent unless the court affirms the decision.
MR KEANE: Yes, and that is ‑ ‑ ‑
McHUGH J: There does not seem to be any power to say ‑ ‑ ‑
MR KEANE: That is the point of subsection (2) saying the court may affirm the decision only if it is satisfied ‑ ‑ ‑
McHUGH J: Yes, but by implication you have to say that the order being reviewed is spent, unless the court ‑ ‑ ‑
MR KEANE: Unless affirmed.
McHUGH J: Unless affirmed.
HAYNE J: That then has to take account of section 30(5). Section 30(5) says, if you do not make the order, you rescind, and you have these awkwardnesses about timing. You have to do it within 12 months, so that you are not going from fixed time to fixed time; you are doing it at an interval, the outer limits of which are marked.
MR KEANE: That may be so, your Honour, but the point of subsection (5) is to make sure that the court gives effect to its refusal to affirm by going on to rescinding the continuing detention order, so there is no longer a warrant of the kind ‑ ‑ ‑
HAYNE J: And there has to be a point at which the custodial authorities know whether or not they can detain the person or whether or not he is bound to be released.
MR KEANE: Yes, and that would mean that once it is rescinded there would no longer be the warrant committing the prisoner into custody for the Corrective Services Act for the purposes of section 50. Your Honours, we were addressing this question of the characterisation of this legislation and it may be that it does not need to be characterised ‑ ‑ ‑
GUMMOW J: Section 30 is critical to understanding what the scheme of the legislation is, whether it is a one year renewable or it has these other characteristics.
MR KEANE: Yes, your Honour.
GUMMOW J: I am not criticising you, but we have to understand how 30 works before one can write a judgement it seems to me.
MR KEANE: Our submission is that the annual review provisions in Part 3 are the kind of provision one would expect to find in legislation concerned with, or concerned to interfere with Mr Fardon’s liberty no longer than is necessary in terms of a current assessment by the court as to the considerations in section 13(4), all of which are concerned with community protection and which may be affected by rehabilitation..
GUMMOW J: I understand that, but what is section 30(2) doing? The evidence is of sufficient weight to “affirm the decision”. What is that saying?
MR KEANE: It means that if it is not, if that onus is not satisfied, then the decision is not affirmed, the court does not make the order under (3)(a) and “the court must rescind” under (5).
GUMMOW J: But it is really to continue the detention, is it not, having regard to the annual state of affairs?
MR KEANE: Yes. The prisoner might apply under 28, and if the prisoner applies, and if in that contest the Attorney does not discharge the onus that is on him to persuade the court under (2) to “affirm the decision” under (3) then the order under (5) would be made, and the prisoner’s application would succeed.
Your Honours, we were addressing this question of the characterisation of the legislation and we note that it has been said that our submissions draw false dichotomy between protection and punishment. Whether or not such a distinction needs to be drawn or should be drawn may be debatable. Whether or not the distinction is drawn, it seems to us, with respect, and we make the submission that however one characterises this legislation, it is what it is, it does what it does, it does what it says, and it is reasonably capable of being seen as necessary for the purpose of communicative protection, and it is just as reasonably capable of being seen as necessary for that purpose as laws for the detention of the criminally insane.
To the extent that it might be said that it is a more difficult question to work out whether a person with the kind of condition that is being assessed should continue to be detained is not an issue which, in our respectful submission, puts it into a different category. Insofar as it may be necessary or insofar as it is desirable to characterise this legislation, yes, it may, so far as looking at things from Mr Fardon’s perspective, be punitive, but in terms of what the Parliament is seeking to do it is not. That that is so is apparent from the text of the legislation and from the second reading speech which is the second item in the bundle of authorities we have given the Court.
It is also apparent, in our respectful submission, when one looks at observations such as those by Justice McHugh in Chu Kheng Lim at 71 and, indeed, in the joint judgment of Justices Brennan, Deane and Dawson, to which your Honours were taken this morning - our learned friends took your Honours to page 27, and may we take your Honours to 28, and at 28, at about point 7:
Involuntary detention in cases of mental illness or infectious disease can also legitimately be seen as non‑punitive in character and as not necessarily involving the exercise of judicial power.
Now, “mental disease”, as Justice Gaudron says in Chu Kheng Lim at 55, that these categories point to - mental disease, quarantine, point to broader categories of community protection, and those categories are not closed.
So that, in our respectful submission, to the extent that it is necessary to characterise this legislation by reference to its predominant features as either punitive or protective, we submit that it is the later, but in any event our submission is that, however one characterises its predominant character, it does not alter the character of the Supreme Court of Queensland as a court and it does not diminish its capacity to exercise judicial power of the Commonwealth. Your Honours, unless your Honours have some further questions for us, those are our submissions.
GLEESON CJ: Thank you, Mr Solicitor. Yes, Mr Burmester.
MR BURMESTER: May it please the Court. The Commonwealth would adopt the submissions just made by the Solicitor‑General for Queensland. The Commonwealth, as does Queensland, contends that the proper characterisation of the legislation is preventive and that it is not punitive. The appellant seeks to characterise it as punitive for the purpose of then saying that that characterisation means there is a parallel system of punitive detention and that that in some way is incompatible with the Kable principle. But, in our submission, properly viewed, this law ought not to be characterised as punitive and its preventive features are clearly predominant.
GUMMOW J: Suppose the factum on which it operated was perception by the Executive of the individual was in a class of persons who were regarded as security risks. Invalid?
MR BURMESTER: Your Honour, whether the law in a particular case has the character of a preventive law depends on examining the law in terms of how it operates, its substance and context. As some of the American cases literature indicate, there is a concern that a law that, as it were, enabled someone to be plucked off the streets on mere suspicion may, in fact, not properly be characterised as non‑punitive. So in the example ‑ ‑ ‑
GUMMOW J: No, not plucked off the streets; subjected to the mechanisms of this statute ‑ ‑ ‑
MR BURMESTER: Your Honour, in this particular statute the ‑ ‑ ‑
GUMMOW J: ‑ ‑ ‑ on the basis that the person was perceived to be a security risk.
MR BURMESTER: And because of that risk and danger to the community.
GUMMOW J: Yes.
MR BURMESTER: Yes.
GLEESON CJ: And this is a law of the Queensland Parliament we are talking about.
MR BURMESTER: It is a law of the Queensland Parliament, your Honour.
GLEESON CJ: In the example that his Honour has given.
MR BURMESTER: As a law of the Queensland Parliament, we would say that would not be a problem.
GUMMOW J: And as a law of the Commonwealth Parliament?
MR BURMESTER: As a law of the Commonwealth Parliament, then it would be incumbent on the Commonwealth to show the way it operated, having regard to its context and substance, was reasonably capable of being seen as appropriate and adapted to a legitimate non‑punitive end. So that would require an examination of the particular circumstances which triggered the power to detain someone. Here, we would say, where there is a process for judicial assessment of a person’s actual danger to the community, if that was an integral part of the scheme, then it would be non‑punitive – it would be a valid Commonwealth law.
GUMMOW J: All criminals, I suppose, in one sense, are a danger to the community - embezzlers just as much as child molesters.
GLEESON CJ: Arsonists certainly.
MR BURMESTER: Yes, your Honour, and it depends on assessing the nature of the risk to the community, the nature of the propensity of the person concerned based on evidence properly considered before a body like a court.
GUMMOW J: The bottom line of your submission seems to be that the whole of the Commonwealth criminal law could be turned into some sort of quia timet injunction – injunction jurisdiction.
MR BURMESTER: No, your Honour, if the purpose, the proper characterisation of the law is punitive, then we accept that that does not enable the Executive, as it were, through application to the Court to detain someone.
GUMMOW J: This characterisation idea is just the sort of thing which, when applied to section 51, you would say was not an attractive method of dealing with the Constitution, is it not? It postulates false dichotomies.
MR BURMESTER: Your Honour, based on the cases like Lim and Kruger, there is an acceptance in those cases that where one finds detention one then has to look closely to work out what is the purpose behind that detention. If it is punitive then it requires the ordinary criminal process to operate. If it is properly characterised as non‑punitive for a legitimate purpose and adopts appropriate and adapted means to secure that legitimate purpose ‑ ‑ ‑
GUMMOW J: What does legitimate mean?
MR BURMESTER: Your Honour, it ultimately comes down to an assessment of all the circumstances about how a particular law operates. It is not a novel concept when it comes to characterisation of laws where purpose becomes a key and critical factor.
GLEESON CJ: If the Parliament of Queensland enacted the law entitled “Dangerous Persons (Terrorists) Act”, what would be the purpose for which you would set about characterising the law?
MR BURMESTER: Your Honour, on one view, as a State law the purpose is irrelevant. Kable does not require this Court to ascertain the purpose. What Kable requires this Court to ascertain is whether the operation of the law in some way impugns the institutional independence or impartiality of the Court.
GLEESON CJ: And if the Parliament of Queensland enacted a “Dangerous Persons (Terrorists) Act” which empowered a dangerous persons tribunal consisting of security experts to order the preventive detention of a person, what would that have to do with Chapter III of the Constitution or with Kable?
MR BURMESTER: Nothing, your Honour.
KIRBY J: If it was punishment. If it was classified by the Court as punishment, it would. Taking away a person’s liberty gives them a step‑up, in my book, to demonstrating that their detention is punishment.
MR BURMESTER: But, your Honour, even assuming the detention was properly characterised as punishment then as a State law we would say Chapter III does not operate to prevent that administrative body imposing punishment, that Chapter III only operates to the limited extent of Kable of ensuring the independence and impartiality of the State courts as institutions. The position at the Commonwealth level might be quite different.
KIRBY J: In Lim the joint reasons say under our system of government you can only punish by orders of the court after a trial conducted on the appropriate step. That is why this is the first premise in the syllogism which the appellant puts before this Court and if it can only be done by a court then it can only be done by a State court acting in the appropriate judicial way. That is the way the Constitution is integrated to prevent people being punished, except by court orders.
MR BURMESTER: In our submission, your Honour, that would be to take Kable and the principles of Lim, which concerned our Commonwealth law, into new areas, which has never previously been the case. It would be to import, in relation to State law ‑ ‑ ‑
KIRBY J: They might need it in new areas.
MR BURMESTER: ‑ ‑ ‑ protections from Chapter III, which this Court has said, in previous cases like Bachrach, do not apply to State laws.
KIRBY J: New legislation may provoke new constitutional answers.
GLEESON CJ: But it is not new, is it? If that proposition were correct, then there is a huge amount of time wasted in Kable. The law in Kable was punitive, was it not?
MR BURMESTER: It was characterised by the Court as punitive, yes, your Honour.
GLEESON CJ: Once the Court characterised it as punitive, why was that not the end of the matter? Why did the Court get into this business about State courts being appropriate receptacles of federal jurisdiction and so forth?
MR BURMESTER: As I say, your Honour, the proposition Justice Kirby is putting to me would take constitutional principles into new realms.
KIRBY J: Kable was already a big step for the Court to take, but once you enter upon the notion that Chapter III speaks to the State judiciary you have to have a theory of how the State judiciary operates within the aegis of the judicature, as it is called in the Constitution, and the whole nation.
MR BURMESTER: The principle we say Kable stands for is a limited proposition designed to protect the institutional independence and partiality of the State court system. It is not designed to import some substantive Chapter III protections into State Constitutions, or to import a due process set of requirements that might be derived from other systems like the United States Constitution.
KIRBY J: I think Kable and other cases, including Nicholas, say these protections are not for the judges. They are there for the integrity of the constitutional system.
MR BURMESTER: Imported at the Commonwealth level through Chapter III, your Honour, but not imported, as this Court has consistently said, into the State constitutions.
McHUGH J: I suppose you would say, Mr Burmester, that although the Federal Parliament could not pass a law imprisoning anybody, there is nothing to stop the State Parliament from passing a law to imprison me or anybody else.
MR BURMESTER: That is correct, your Honour.
KIRBY J: If that is done, that remains to be seen.
MR BURMESTER: Unless it was a law which was found, as in Kable, to somehow use the judiciary as an arm of the executive. Apart from that, I would agree. Your Honour, if I could just briefly refer to a couple of United States authorities, which make the point that in terms of characterising a law ‑ and, as this exchange has indicated, we say as a State law the characterisation ultimately does not matter, but the appellant has sought to put his argument and to have the core of his argument depend on the characterisation given to this law ‑ ‑ ‑
GUMMOW J: By characterisation, you mean one characterisation.
MR BURMESTER: Yes.
GUMMOW J: Something cannot have two characters. That strikes me as preposterous.
MR BURMESTER: No, your Honour, it may have several characters. In the context, for instance, of a criminal law imposing punishments, it is accepted that it may have a preventive purpose as well as the purpose of deterrence or retribution. In a sense, the fact that it has those multiple purposes or those multiple characterisations is part of one’s assessment of what its true character or significant character is. In Kansas v Hendricks 521 US 346 (1997), at the bottom of page 361, the last two lines, they say:
As a threshold matter, commitment under the Act does not implicate either of the two primary objectives of criminal confinement. And the conditions surrounding that confinement do not suggest a punitive purpose on the State’s part.
In that case, the approach of the court was to inquire whether there was a retributive or deterrent purpose of the law, because if it had those particular purposes, that might establish that it was in fact a punitive law.
GLEESON CJ: But what was the constitutional peg on which this argument was hanging? It was substantive due process, was it not?
MR BURMESTER: Well, yes, your Honour, and double jeopardy and things like that, yes.
GLEESON CJ: It was not an argument about whether it was a nice law or a nasty law. It was a question about whether it offended a provision of their Constitution.
MR BURMESTER: That is correct your Honour.
GLEESON CJ: And the provision was the amendment to their Constitution which imported a requirement of substantive due process, was it not?
MR BURMESTER: Yes your Honour, and which we do not have and which we say ‑ ‑ ‑
GLEESON CJ: Introduced after the Civil War, was it not?
MR BURMESTER: Indeed, your Honour.
McHUGH J: I think it was the ex post facto clause and the double jeopardy clause that they were ‑ ‑ ‑
MR BURMESTER: That as well, your Honour. It was important for those purposes, for due process, for ex post facto and double jeopardy, to characterise the law either punitive or non-punitive and in doing that they looked to see whether it had a retributive or deterrent purpose. Having concluded it did not, they then looked at the other circumstances surrounding the law and concluded that it was, in fact, a genuine non‑punitive law.
HAYNE J: It is by the way, but I simply note in the footnote at page 360 the court there mentioned that it recognised:
that psychiatric professionals are not in complete harmony in casting paedophilia, or paraphilias in general, as “mental illnesses.”
So that, at least in the United States at that time, significant forms of sexual offending were not all generally regarded and universally regarded as subject to psychiatric classifications. As I say, it is by the way.
MR BURMESTER: Yes. Your Honour, that leads to the other case I was going to mention, Seling v Young 531 US 251 (2001) at 261. They say at the top of page 261:
In Hendricks, we explained that the question whether an Act is civil or punitive in nature is initially one of statutory construction. A court must ascertain whether the legislature intended the statute to establish civil proceedings. A court law reject the legislature’s manifest intent only where a party challenging the Act provides the clearest proof that the statutory scheme is so punitive in either purpose or effect as to negate the State’s intention.
Your Honour, what the court is clearly saying there is that because of the uncertainty with things like the definition of what is mental illness or the precise danger that a person might pose to the community, there is a need for the court to only reject what has been the legislature’s clear manifest intention to establish a non-punitive ‑ ‑ ‑
HAYNE J: But the issue in Seling was an as applied challenge.
MR BURMESTER: It was, your Honour.
HAYNE J: The question was whether the law as it was applied was ‑ ‑ ‑
MR BURMESTER: And that was the second proposition I was going to mention, that it was saying you do not look at how it applies in a particular case; you look at the substance and context, and in doing that one has this regard to the clear manifest intent of the legislature.
GLEESON CJ: As a matter of history in the United States, Mr Burmester, have these prophylactic laws been confined to sex offenders? I suppose you do not need them in the case of homicide because that could carry a death penalty and it could be taken into account.
MR BURMESTER: That is right.
GLEESON CJ: What about arsonists?
MR BURMESTER: I am not aware of any arson statutes, but there may well be, your Honour.
GUMMOW J: Yes, there is one about embezzlement in Connecticut.
MR BURMESTER: The cases I have referred to here involve six offenders, but in principle there is no reason why ‑ ‑ ‑
GUMMOW J: The State of Connecticut v Lafferty it is called, 472 A.2d 1275, decided in 1984 – compulsive gambler. We have plenty of them.
MR BURMESTER: Thank you, your Honour. To the extent that characterisation is essential, we say the Queensland law, as the Solicitor for Queensland has demonstrated, is clearly one that operates by reference to non‑punitive purposes and effect. The requirement for propensity to be demonstrated by psychological reports points to the non‑punitive purpose and it cannot properly be seen as an extension of some original sentence, nor does the fact that detention in prison is the outcome mean that the law can properly be characterised as punitive. I think the Solicitor for Queensland has dealt with that and given some examples of Commonwealth laws which, in fact, involve detention in prison. We say in our written submissions in paragraph 21 that the place where a person is detained may be relevant in characterisation but it is certainly not determinative.
Your Honours, if characterisation is not relevant and one is simply seeking to apply the Kable test, then, as our written submissions indicate in paragraphs 10 to 12, the focus has to be on what the effect of the State law is and whether it affects or impairs or, in fact, whether it destroys the institutional independence and impartiality. It will only be in exceptional and very unusual cases that a State law would have that particular effect.
GLEESON CJ: What, in your submission, is the significance in the application of the Kable test if the fact that the court you are dealing with is a Supreme Court? Suppose that this jurisdiction under the Act with which we are concerned in Queensland was vested in the Queensland District Court and did not involve the Supreme Court at all. Applying the Kable test if the argument against you is correct, would that produce the consequence that the law was invalid or would it produce the consequence that the Parliament of the Commonwealth could not invest the District Court of Queensland with federal jurisdiction?
MR BURMESTER: Your Honour, it may mean that it would not be a suitable repository for federal jurisdiction. That is certainly the consequence and ‑ ‑ ‑
GUMMOW J: The postulate of 77(iii) of the Constitution is that the States will have their courts available for this.
MR BURMESTER: That is correct, your Honour, and there must be certainly a Supreme Court.
GUMMOW J: I did not limit anything I wrote in Kable to the Supreme Court.
MR BURMESTER: No, your Honour, I was about to say if one reads paragraphs 10 to 12 of the Commonwealth’s submissions, we do not single out the Supreme Court as somehow in a separate ‑ ‑ ‑
GLEESON CJ: What if it was vested not in a court at all but in a tribunal, what used to be called in New South Wales the Serious Offenders Review Board?
MR BURMESTER: Your Honour, there would no Kable problem with that. The Commonwealth cannot invest State tribunals, non‑judicial bodies, with judicial power, so they would not be potential recipients of federal jurisdiction, so there would be no Kable problem.
KIRBY J: Unless you take the view that nowhere in this nation can you punish a person except by judicial order.
MR BURMESTER: Yes, your Honour, leaving that proposition aside. On the Kable principle in terms of suitable repository, State tribunals are not competent to receive federal jurisdiction if they are not courts properly described, because federal judicial power can only be invested in State judicial bodies as well as federal judicial bodies. So there would be no Kable problem.
In paragraph 31 of our written submissions, your Honour, we set out what we say are the critical differences between this law and the Kable law. The attempt by the appellants to equate the two by identifying common features, which they set out in their written submissions, ignores, in our submission, three particularly significant differences. Firstly, this law is not directed at a named individual, like the New South Wales law. It does require a higher standard of proof than the mere balance of probabilities, and the Executive cannot dictate the outcome. As the discussion with the Solicitor for Queensland indicated, there are a number of options open including supervised release. There is not only one option only, namely, detention in prison, full stop; there are proper discretions exercisable by the court. We say, for those three reasons in particular, this law cannot be equated with the Kable law despite what might seem superficial similarities.
GUMMOW J: Your primary submission, really – and this is your interest, I would have thought – is in Part III, is it not, on page 6 of your submissions, that the Commonwealth could have passed an Act like this?
MR BURMESTER: Yes, your Honour, that is the starting point of our submissions. We say that if it can properly be characterised as non‑punitive, then if there was a relevant head of power and this could be seen as reasonably appropriate and adapted to meeting that legitimate purpose, then it could be enacted as a Commonwealth law.
GLEESON CJ: Is there a difference between saying it ought/ought not be characterised as punitive and saying it has a substantial non‑punitive purpose notwithstanding its punitive effect?
MR BURMESTER: Your Honour, the way you put it is probably a preferable way of putting it, because essentially one is asking what is the legitimate purpose or object of the law and one has to look at its substantive operation ‑ ‑ ‑
GUMMOW J: Be one legitimate purpose. That is where I get confused, because I just do not understand.
MR BURMESTER: Your Honour, there may be more than one legitimate purpose, but if it has ‑ ‑ ‑
GLEESON CJ: Laws may have more than one character.
MR BURMESTER: That is correct, your Honour ‑ ‑ ‑
GLEESON CJ: We got to that point back in the 1920s.
MR BURMESTER: But where one is looking at a limitation that may restrict the purpose, then one clearly has to look at what is the substantive purpose and effect of the law ‑ ‑ ‑
KIRBY J: Query whether you do not sell the pass once you concede that there might be just a little tiny bit of punishment in there.
MR BURMESTER: Well, your Honour, it is not that there is only a tiny little bit of punishment, the answer is that it properly ‑ ‑ ‑
KIRBY J: As punishment it must be done by judges.
MR BURMESTER: ‑ ‑ ‑ considered it is not punitive. It does not have a punitive effect and object ‑ ‑ ‑
KIRBY J: Well, then it is not punishment.
MR BURMESTER: ‑ ‑ ‑ and hence it is not punishment. So it is not a question of saying there is a little bit of punishment and that is all right; rather, you say properly viewed in a totality, in its total context and operation, it could be seen as serving in an appropriate and adapted way a legitimate non‑punitive purpose. If it please the Court.
GLEESON CJ: Thank you, Mr Burmester. Yes, Mr Solicitor for Western Australia.
MR MEADOWS: Your Honours will no doubt be pleased to learn that we only have one small matter we want to address. That is in relation to the definition of “prisoner”. Your Honours were ‑ ‑ ‑
GUMMOW J: It is in the schedule as well.
MR MEADOWS: Yes, your Honour, in the dictionary, which takes you back to the Corrective Services Act ‑ ‑ ‑
GUMMOW J: Which we do not have the definition section for, I do not think at the moment.
MR MEADOWS: Well, it is in the schedule and ‑ ‑ ‑
GUMMOW J: No, but in the Corrective Services Act. Do we have it?
MR MEADOWS: I am sure we could make that available to you, but it is in schedule 3 of the Corrective Services Act where “prisoner” is defined to mean – and relevantly in paragraph (b) “a person who is in the chief executive’s custody”.
KIRBY J: Where does that lead?
MR MEADOWS: I just wanted to be sure that the Court understood that the definition of “prisoner” in section 5 was not the only definition which was relevant to the construction of the Act.
GUMMOW J: It is that definition that triggers the Attorney’s power, is it not?
MR MEADOWS: Quite so, your Honour, yes. Other than that, if it please the Court, we adopt the submissions that have been put by my learned friend the Solicitor‑General for Queensland and my learned friend Mr Burmester and we are content to rely on our written submissions.
GLEESON CJ: Thank you, Mr Solicitor. Mr Solicitor for New South Wales.
MR SEXTON: If the Court please. Your Honours, there is only one point we wish to add to our written submissions, which is to say that there would not be any doubt, in our submission, that a State Parliament would have the power to detain a person – to legislate for the detention of a person who was a genuine danger to the community, just putting to one side for the moment ‑ ‑ ‑
GUMMOW J: What if the person was not a genuine threat to the community?
McHUGH J: Why do you confine it to that? Why can they not detain blue‑eyed babies?
MR SEXTON: I thought the blue‑eyed babies would emerge this afternoon, your Honour.
KIRBY J: Or an enemy of the people.
GUMMOW J: Or elderly barristers.
KIRBY J: These are not purely theoretical questions, Mr Solicitor. In our history, we had legislation against Communists. It is not inconceivable there might be legislation against terrorists, very loosely and generally defined, so we have to look at this very seriously. It is not a joke, as far as I am concerned.
MR SEXTON: No, it is not, your Honour. Those questions at the State level can probably be answered “yes”, in our submission, but they are far removed from this case or any of the cases that have been before the Court in recent times.
KIRBY J: Yes, but if you have to look at a particular case – I do not want to say this – Immanuel Kant taught it in philosophy and this Court has to do it every time it deals with a constitutional problem. You have to ask what happens if this becomes the general rule.
MR SEXTON: Your Honour, what comes out of this case, or the starting point in our submission, is danger to the community. I was just putting to one side how that might be established because that itself could be the subject of arguments, but if one assumes that it has been established, and can I say that it could ‑ ‑ ‑
GUMMOW J: But does danger to the community mean any more than, another way of saying, risk of commission of further crimes?
MR SEXTON: It could possibly, your Honour, be a situation where there had not been an initial crime perhaps, but certainly a risk of further crimes, and it could of course, be a danger that arises during the course of a person’s time in prison serving the original sentence. It might be that at the initial sentence the danger was not apparent, and that it becomes apparent during the time of the sentence and that, therefore, there could not be a question ‑ ‑ ‑
GUMMOW J: But it is not a danger of a commission of acts, which some people might think are offensive, but which are not criminal, is it?
MR SEXTON: In the example that I am giving, your Honour, the acts would be criminal.
GLEESON CJ: Mister Solicitor, I think there was a time when the Crimes Act of New South Wales had particular provisions about dealing with recidivists. I cannot remember ever having had to apply them myself, but they used to be there. Did they operate on the basis that it was just, as it were, an aggravating factor in imposing a sentence, or did they operate independently? Do you know?
MR SEXTON: I do not know the answer to that. Your Honour is not talking about the habitual criminal ‑ ‑ ‑
GLEESON CJ: Yes, the habitual criminal.
MR SEXTON: Those provisions have caused - I think we have referred to them in our written submissions in terms of their origins, but they are still in existence. I cannot say that I have seen a case of their application ‑ ‑ ‑
McHUGH J: Why? There used to be plenty in the 60s.
MR SEXTON: Yes, well you Honour ‑ ‑ ‑
GLEESON CJ: But do they just operate as an aggravating factor when you are sentencing for the original offence or what?
GUMMOW J: It is the 1906 Act, is it not?
HAYNE J: There was the Habitual Criminals Act 1957 (NSW).
MR SEXTON: Yes, your Honour.
McHUGH J: That was the one piece of legislation that used to terrify the professional criminals. They used to talk about the key; throwing away the key.
MR SEXTON: It was additional to the sentence, but it is section 4 and section 6 of the Habitual Criminals Act 1957, as Justice Hayne says.
HAYNE J: At that time, such legislation was common throughout the Commonwealth. The Crimes Act 1958 (Vic), Criminal Law Consolidation Act (SA), the Queensland Code, the Western Australian Code, where you were detained at the Governor’s pleasure if you were declared, the Tasmanian Code, similar to the Western Australian Code.
MR SEXTON: I think it started in New South Wales, your Honour, but yes, it spread. When I said I had not seen an example in recent times – but as your Honour says, at one time it was a statute that was employed.
GLEESON CJ: Was that punitive or protective or both?
MR SEXTON: It has elements of both under that statute, your Honour.
KIRBY J: It may be the Executive Government has not prosecuted for this because of Kable intuitions. It is still on the books, you say. It is still a valid law in New South Wales – or it is still a law.
MR SEXTON: Yes. Your Honour, I was simply going to add, in relation to that question of danger, that it would not rationally, in our submission, be dependent on whether it arose out of some traditional category of mental illness, although arguably anyone who was a genuine danger might be thought to have some sort of personality disorder, probably a severe one, that gave rise to the danger itself – the serial arsonist example that the Chief Justice has used.
If all that be so, the question left is really whether, at the State level, the decision in relation to such a person is to be made by a court on the basis of certain standards of evidence and proof, which is what is done under the Queensland legislation, or whether it could be done by an administrative body, possibly on a less rigorous basis. Justice Hayne referred to the discussion in R (Giles) v Parole Board [2004] 1 AC 1 of the European system and the requirement for periodic judicial review there, because that was considered to be a safer alternative than review by an administrative body.
In terms of Kable, it really poses the question that was asked initially by the Chief Justice as to whether Kable was only about the reputation of the courts, rather than the rights of the individual. In our submission, it is about the reputation of the courts and the Queensland statute here, in our submission, is not something that would affect the courts of the State of Queensland in the way that was considered to be a constitutional problem in Kable. Your Honours, unless there are any other matters, those are our submissions.
GLEESON CJ: Thank you, Mr Solicitor. Mr Solicitor for South Australia.
MR KOURAKIS: If the Court pleases, at paragraph 36 of our submissions, we set out the history of the habitual offenders legislation. We have filed material which effectively is the second reading speech when that legislation was introduced in South Australia, and it did copy the legislation which was introduced for the first time in the world in New South Wales just two years earlier in 1905. It provided for additional sentencing, often indefinite terms of imprisonment, in addition to the proportionate sentence.
KIRBY J: Is it still utilised in South Australia?
MR KOURAKIS: No, in South Australia it has been replaced with what I might call Moffatt‑style legislation for sexual offenders, that is, at the time of sentencing following conviction an indefinite term might be imposed if there is a risk, an unacceptable risk essentially of further sexual offending, but that is immediately after conviction. It is not legislation such as this where it is reviewed close to the end of a determinant sentence.
KIRBY J: When was that amendment made?
MR KOURAKIS: In 1988.
KIRBY J: Is the purpose of that amendment or reason revealed at all?
MR KOURAKIS: Your Honour, I have not gone to the second reading speech - no doubt it is, but it is, as I say, similar to the legislation that was considered in Moffatt, Victorian legislation, and it, no doubt, has been copied elsewhere. There was reference to such earlier legislation being enacted in Queensland, in fact, prior to this particular legislation.
KIRBY J: There must have been a point at which Executive Governments throughout the country with these habitual criminal laws came to a view that they were exceptions to the general principle and that punishment should be imposed at the time of sentencing after the trial, because you see that at least gets the prisoner the advantage of jury verdicts on disputed matters and for the conviction, whereas this is something that is ex post facto and it has no jury involved, and it is just done by a judicial officer.
MR KOURAKIS: Your Honour, there are advantages and disadvantages in imposing the sentence immediately after conviction. Certainly the prisoner has the certainty; they do not serve their determinant sentence not knowing whether an application would be made. On the other hand, they lose the opportunity to, through treatment and other measures that might be available to them, show that they are an acceptable risk to be released. If all the decisions are made by the courts early on then the prisoners lose the access to a court to determine after a period in gaol, perhaps with treatment, that, in fact, they are now an acceptable risk, so in terms of the general merits there are advantages and disadvantages, if the Court pleases.
Just on the question of the habitual offenders legislation, that legislation was applied by courts throughout Australia throughout most of last century at the same time that the State courts were exercising federal judicial power with no question of there being any incompatibility. Certainly Kable was only decided much later, but ‑ ‑ ‑
KIRBY J: None was detected because Kable came very late in the century.
MR KOURAKIS: Yes, but there was no real difficulty. That is, the work went on. Kable is premised on there being a compromise of the capacity of the courts to exercise federal judicial power if they are given these sorts of functions. That was not evident at all, for example, in that time that they exercised this jurisdiction under the habitual offenders legislation.
KIRBY J: It may have been evident, but no one raised it because that was before the Kable enlightenment.
MR KOURAKIS: If your Honour pleases. Can I make some submissions about the function exercised under section 13 because, in my submission, it is not far removed from the function that is commonly exercised in criminal sentencing. The common law of Australia requires a proportionate sentence to be imposed but an element of that is preventative detention, so although courts in Australia have always imposed a proportionate sentence, they have had to turn their minds to the question of preventative detention to factor that into the proportionate sentence that is in the end imposed.
GLEESON CJ: The element of prevention or incapacitation to which you refer is just a very clear example of the fact that sentencing is done by judges, not by juries. Judges might have to make determinations on sentencing about whether a person is a danger. A jury would never make a decision about whether a person is a danger.
MR KOURAKIS: If your Honour pleases, that is certainly the case, but, importantly, in factoring in the amount of time that is necessary for incapacitation courts must, although it is not often expressed and articulated, make decisions about after what period of time would the risk of release be acceptable. All that section 13 does is elevate that. In England, of course – and Veen marks the departure between England and Australia –as a matter of common law development, it was accepted that at the time of sentence courts might impose a sentence longer than the Australian proportionate sentence, a sentence which was based on an assessment of the risk of reoffending.
Now, Australia parted company with the English common law in Veen, but it was never suggested that the English development in fact had the English courts exercising something other than judicial power and, of course, cases like Moffatt illustrate that if by statute in Australia the position has changed and courts are given the function of imposing sentences based on the paramount importance of preventative detention, that remains an exercise of judicial power.
HAYNE J: I have collected in the reasons I gave in Moffatt [1998] 2 VR 229 legislation that was in force at the time of Kable in the States dealing with indefinite or preventative detention. That is at 252 at lines 25 and following.
MR KOURAKIS: Your Honours, the real point of difference then simply comes to the timing, that is, that the question of whether further detention for preventative purposes is necessary under this Act occurs towards the end of the determinate period of imprisonment. That cannot change the nature of the function that assessment ‑ ‑ ‑
GUMMOW J: Your State does not have such legislation, does it?
MR KOURAKIS: As this, no. The time at which the function is undertaken by the court cannot change its nature. It raises other problems, the double jeopardy, finality and sentencing sort of problem, but as I submitted earlier that has both advantages and disadvantages for the prisoner if during some imprisonment an assessment can be made that they were effectively safe and that would work to their advantage.
Your Honours, in Canada the Charter there protects fundamental notions of justice from any legislative infringement. There is obviously no such principle here. Whether or not it could ever be implied from Chapter III at a Commonwealth level is one thing, but there is no separation of powers at a State level that provides even the starting base for that sort of implication, in my submission.
KIRBY J: Has any other State Parliament enacted a law like the one that is before us today?
MR KOURAKIS: Not to my knowledge, your Honour. If the Court pleases, they are my submissions.
GLEESON CJ: Thank you, Mr Solicitor. Yes, Mr Southwood.
MR SOUTHWOOD: If the Court pleases. If I could just mention two matters for clarification first. I was asked before lunch whether the
sentence which could have been imposed, or was imposed, on the appellant was the maximum sentence. It was not. At the time, the maximum sentence was life.
The other matter is, I think, during my learned friend the Solicitor‑General for Queensland’s submissions there was some discussion of the Penalties And Sentences Act 1992 (Qld). There is provision for review also in that legislation, and that is dealt with in section 171 of that Act. So it is not an Act without review.
If I could then also state that, of course, the appellant does rely on its written submissions, both the original and the reply, which I did not go to in any specific detail. Finally, the position so far as the appellant is concerned is that the purpose of Chapter III is to preserve liberty and the independence of court to that end and support for that is found in Wilson v Minister for Aboriginal and Torres Strait Islanders (1996) 189 CLR 1 at 11.
The next proposition is that States cannot make laws which violate Chapter III. That is not a proposition which merely arises from Kable but, of course, goes back as early as 1975 to the Commonwealth v Queensland (1975) 134 CLR 298 at 303 and 315.
GUMMOW J: That is the Queen of Queensland Case.
GLEESON CJ: Does that mean you want to alter an answer you gave me this morning when I asked you whether this law would have been valid if it provided for these powers to be exercised by a panel of psychiatrists?
MR SOUTHWOOD: That may be something which flows from it, but I do not think it is necessary for me to go into that in order to maintain our argument. I am simply not able to take that further, regrettably, at this stage, if your Honour pleases.
KIRBY J: Well, I think you had better deal with it, because that was put to us as a reason why, if you look at the operation of the Constitution, it would be, at least on one view, much preferable and more consonant with the Constitution that a decision of this kind, a so‑called dangerousness to the community, be made by a judge on evidence and able to refuse it and able to review it and powers of appeal, than that it just be done by a panel of psychiatrists acting within the Executive Government, taking away liberty in secret. That was urged upon us as a reason why, if you look at our Constitution and how it is intended to operate, this is much more consonant with the protection of liberty and the judicial role therein than to simply leave it to a panel of psychiatrists.
MR SOUTHWOOD: Yes.
KIRBY J: You had better deal with that, either now or in writing later, but it has to be dealt with.
GUMMOW J: Another question that has to be dealt with is whether these appeal provisions, section 43, for example, produce an order in the Queensland Court of Appeal which, absent the constitutional question as there is here, can be brought here under section 73.
MR SOUTHWOOD: Can I come back to that question shortly, if your Honour pleases?
GUMMOW J: There are some species of State court order that cannot get here under section 73.
MR SOUTHWOOD: Yes.
GLEESON CJ: You need to face up to that earlier question because, although Mr Keane was far too polite to put it in this way, the effect of one of his arguments was that it would not be very bright of us to produce the consequence that Parliament can only enact legislation of this kind if it leaves judges out of the Act. As I say, Mr Keane did not put it quite that bluntly, but I think that was the bottom line.
MR SOUTHWOOD: Yes.
KIRBY J: It may be that the answer is the one I suggested to Mr Keane, but you will have to make whatever submission you can.
MR SOUTHWOOD: Yes. I wonder if I could be given an opportunity to deal with that in writing.
GLEESON CJ: Yes, certainly. You can have seven days and your opponents can have a further seven days to put anything they want to put in answer to it.
MR SOUTHWOOD: If your Honours please. If I may just deal with it in a very limited sense now, we do rely on this statement which appears in Chu Kheng Lim v Minister for Immigration at page 27. I took your Honours to that this morning, but if I may go to it again, it is at the bottom of page 27 and what is stated there is:
The reason why that is so is that, putting to one side the exceptional cases to which reference is made below, the involuntary detention of a citizen in custody by the State is penal or punitive in character and, under our system of government, exists only as an incident of the exclusively judicial function of adjudging and punishing criminal guilt.
Now, true, that is said in the context of federal legislation, but it, in our submission, is a fundamental point, at least at the federal level ‑ ‑ ‑
GLEESON CJ: It is said in the context of a discussion of the separation of powers.
MR SOUTHWOOD: Yes. So I take it no further for the point. I have sought an opportunity to put it in writing and I will, if I may, just deal with ‑ ‑ ‑
GLEESON CJ: It is in a context that is introduced by a sentence that begins:
The Constitution is structured upon, and incorporates, the doctrine of the separation of judicial from executive and legislative powers.
The passage you have just read is an elaboration of that.
MR SOUTHWOOD: Yes, it is. If I may continue, though, in relation to this point, coming back in a sense, as it were, to the Kable propositions, what is then said following that statement is this, that:
Every citizen is “ruled by the law, and by the law alone” and “may with us be punished for a breach of law, but he can be punished for nothing else”.
Now, that certainly is the position so far as the exercise of federal jurisdiction is concerned.
GLEESON CJ: Now, that proposition you have just read looks to me very much like the argument that Sir Maurice Byers put unsuccessfully in Kable.
KIRBY J: Maybe he did not need it. Maybe there was another invalidating clause.
MR SOUTHWOOD: If I may go on just with these propositions. The purpose of that is to comply or to follow the rule of law, so it is in that context that those principles apply at least at the federal level. Importantly, in relation to the statement in paragraph 27, if I can just emphasise that that power:
exists only as an incident of the exclusively judicial function of adjudging and punishing criminal guilt.
So it “exists only as an incident” in that context so far as the federal jurisdiction is concerned.
Now, one of the notions which has been raised, or the arguments put, in relation to this legislation is that it is potentially a two‑stage process. In relation to that, we simply wish to submit that the provisions of the Dangerous Prisoners (Sexual Offenders) Act are in no way incidental to the exercise, or in no way:
an incident of the exclusively judicial function of adjudging and punishing criminal guilt –
because they, in effect, come into play after the judicial power which is a predicate, that is, the imprisonment, has already been exercised, so that the extent of that power is exhausted. What sections 8 and 13 do is, in effect, to perform a double function in both providing for substantial liabilities and giving jurisdiction to the court in relation to them.
What is fundamentally repugnant by the creation of this statute, the Dangerous Prisoners (Sexual Offenders) Act, is that the notions of imprisoning someone in circumstances where there has been no crime, where, in effect, there is double punishment, is fundamentally inconsistent with the rule of law principles which I have picked up in that statement at the bottom of page 27. To that extent, the fact that that jurisdiction is granted to the Supreme Court of Queensland does make the court a court which is not able to – if that were allowed to persist – receive the judicial power of the Commonwealth, because of that inconsistency.
KIRBY J: The answer to Mr Keane’s point about the secret court of psychiatrists may be either (a) that Kable did not have to deal with the State judicial power question because there was another way to come to the solution and that you cannot impose upon judges in the State to do things that are inconsistent with their being receptacles for federal jurisdiction. If that means that it has to be done in the Executive Government by a tribunal of psychiatrists, let the burden of doing it be on them and not on the judiciary. The judiciary should not be involved in it. To come back 14 or 15 years later and to add to a person ‑ ‑ ‑
GUMMOW J: If I could just interrupt, that was a lot of the reasoning in Kable. If you look at the argument in Kable that is what is being said, namely, of course they could have achieved that result in Kable by non‑judicial means, but they would have had to bear the burden of having the Executive do it.
MR SOUTHWOOD: Yes, that was the submission I think I, in effect, made this morning in answer to your Honour the Chief Justice’s question, namely that ‑ ‑ ‑
GUMMOW J: It is not a new problem. The people who decided Kable were well aware of it.
MR SOUTHWOOD: I was more trying to give myself a leg up.
GUMMOW J: I can just hear Justice Gaudron’s voice ‑ ‑ ‑
GLEESON CJ: When you are putting in your written submissions on this point, in particular what you say about pages 27 and 28 of Chu Kheng Lim, you will have to ask yourself the question and answer it in your written submission as to whether what you are really contending for is that the principle of separation of powers extends into the State area, at least in this respect.
MR SOUTHWOOD: Yes, I understand that, your Honour.
GUMMOW J: I would also be interested in knowing, both from you and Mr Keane, the answer to this question. If the Act is valid does, it mean that Part 4, in a non‑constitutional case, engages section 73 of the Constitution and thus the judicial power of the Commonwealth, or is the appellate provision in Part 4 of the Queensland statute cut off from that because it is a Holmes v Angwin type State jurisdiction which does not get here under section 73 because it is not judicial power?
MR SOUTHWOOD: May I also deal with that in writing, your Honour?
GUMMOW J: Yes.
MR SOUTHWOOD: If the Court pleases. Those are our submissions on behalf of the appellant.
GLEESON CJ: Thank you, Mr Southwood. We will reserve our decision in this matter. We will adjourn until 10.15 tomorrow morning.
AT 4.24 PM THE MATTERS WERE ADJOURNED
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