Garlett v The State of Western Australia & Anor

[2022] HCATrans 28

[2022] HCATrans 028

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Perth  No P56 of 2021

B e t w e e n -

PETER ROBERT GARLETT

Appellant

and

THE STATE OF WESTERN AUSTRALIA

First Respondent

THE ATTORNEY‑GENERAL FOR THE STATE OF WESTERN AUSTRALIA

Second Respondent

KIEFEL CJ
GAGELER J
KEANE J
GORDON J
EDELMAN J
STEWARD J
GLEESON J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON FRIDAY, 11 MARCH 2022, AT 9.45 AM

(Continued from 10/3/22)

Copyright in the High Court of Australia

KIEFEL CJ:   Yes, Mr Donaldson.

MR DONALDSON:   If your Honours please.  Could I deal with ‑ ‑ ‑ 

KIEFEL CJ:   Sorry, Mr Donaldson, before you proceed I should say that the Court will sit until 1 o’clock - will have its morning break but will sit until 1 o’clock and resume at 1.45 in an attempt to give the parties a little more time, but the Court will rise at 4.00 pm and if all the addresses are not completed, the matter will stand adjourned.  That is not to require anyone not to make the points that they wish to make, but that is just the reality of having a number of interveners as well as lengthy addresses.  Yes, Mr Donaldson.

MR DONALDSON:   Thank you, your Honour.  Can I respond to three matters before continuing along the road as yesterday.  Justice Gordon asked me a question concerning section 82 of the Act and what, I think, really, what the effect of section 82(1) might be.  As best – I think it relates to this, your Honour, that there are various other parts of legislation in the Western Australian statute book dealing with what are referred to as criminal proceedings.  They have certain effects.  An example is, under the Criminal Investigation Act (WA), evidence obtained improperly is not admissible in a criminal proceeding, other than with exceptions, and there are other things such as in the Evidence Act there is a provision, for instance, that the court can bring up a prisoner in a criminal proceeding.

My answer was rather glib yesterday, but I think subsection (1) probably is intended to incorporate provisions such as that.  It is likely to be a bit more complicated than that in the sense that there are many other circumstances of criminal proceedings being referred to in various legislation that would obviously not be picked up, but one expects that it is really provisions like that it is intended to deal with.

Your Honour Justice Edelman raised an issue with me that I asked to have an opportunity to think about overnight.  The observation and suggestion that your Honour has made is that the declaration that we seek would be more appropriately expressed in the following way, and if your Honours have the – it is at the back of our submissions at page 20, amongst other places, but it is c, and so – and this, I think, was your Honour’s suggestion yesterday, the words in the second line starting:

a serious offender under custodial sentence who has been convicted of the offence of robbery as referred to in –

be deleted ‑ ‑ ‑ 

GORDON J:   Sorry, could you just repeat what is being deleted - I missed that, Mr Donaldson.

MR DONALDSON: Yes, starting at, in the second line “a serious offender” all the way through to “as referred to in” on the next line. So, the declaration that is sought is that the Act is invalid insofar as it applies, item 34 of Schedule 1 of the Act.

EDELMAN J:   It is not really a question of the application of the Act.  It is really that item 34 is invalid, is it not?

MR DONALDSON: Well, I would say that that is to the same effect, your Honour, as that, but alternatively…..declare that the court declare that item 34 of Schedule 1 of the Act is invalid. It is the same effect as it is done with the deletion of those words, your Honour. Your Honour the Chief Justice asked some questions in relation to the similarities or differences between the legislation which is before your Honours in this matter and the legislation in Fardon.  Your Honours may have received some documents that have come in overnight from others that have prepared schedules and the like in relation to those matters.

But could I perhaps deal with this as quickly as I might by – and without taking your Honours, necessarily, to each of the provisions in either Act and say this to your Honours.  There is no equivalent in the Queensland legislation to section 4 of the WA Act, which is the definition that I took your Honours to yesterday.  There is no equivalent in the Queensland Act, or was no equivalent in the Queensland Act to section 6 of the Western Australian Act, and that, your Honours will see, when your Honours reflect on this, has an effect on section 30(2)(f).

When reference is made to a person committing an offence, it does not matter whether the person would ever be charged or convicted of the offence.  So, there was no equivalent of that in Fardon.  There is no equivalent of section 7(4) in the Fardon legislation.  I will have to leave your Honours to perhaps look at that in due course.   In relation to section 8 of the WA Act with the expression of the purposes or the object ‑ ‑ ‑ 

KIEFEL CJ:   I am sorry, where are you?

MR DONALDSON:   In section 8(a), in the ‑ ‑ ‑ 

KIEFEL CJ:   You have gone through section 7.

MR DONALDSON:   Section 7(4).  Sorry, your Honour.  I was just going to say there is no equivalent of section 7(4); there was no equivalent of section 7(4) in ‑ ‑ ‑ 

KIEFEL CJ:   The onus provisions are the same?

MR DONALDSON:   Yes, your Honour. 

KIEFEL CJ:   Section 7(2) and 13(7) ‑ ‑ ‑

MR DONALDSON:   Yes.

KIEFEL CJ:   Yes.

MR DONALDSON:   In section 8(a), in relation to that object, there was no equivalent in the Queensland Act of victims of serious offences, so it was simply to provide detention to ensure adequate protection of the community.  In the Fardon legislation – again, this is not particularly significant – there was no equivalent to certain of the standard conditions, although in Fardon legislation there was the concept of standard conditions on a superficial order.  But the conditions of the Western Australian Act in 31 and 32 dealing with electronic monitoring and curfew were not present in the Queensland legislation. 

The provision I took your Honours to yesterday in section 69(3) dealing with the rights of appeal was not in the Fardon legislation, the Fardon legislation simply providing in section 1 for a right of appeal.  There was no equivalent in the Fardon legislation to section 80 – section 80 provides that it is an offence to contravene a supervision order, and that is a standalone separate offence for which there is a term of imprisonment that can be ordered.  So, there is no equivalent to that, although in the Fardon legislation the Court had a power to make further orders, including implementation of a detention order, but there was no equivalent provision to section 80. 

In section 84(5) of the Western Australian Act, which is a provision dealing with evidence in hearings, and the matters that are referred to there in subsection (5), no equivalent existed in the Fardon legislation, and so, again, it expands the scope of the material that is available to report under this Act that was not available under the Fardon legislation. 

There was no equivalent to sections 41 and 42 which I took your Honours yesterday dealing with the obligations of disclosure by an accused – sorry, by the subject of an application.  So, sections 41 and 42 were not in the Fardon legislation. But can I say this to your Honours. Section 41(1), dealing with the offender’s duty to disclose expert evidence material, that is a provision which exists in the Criminal Procedure Act (WA) in relation to criminal prosecutions.

KIEFEL CJ:   It is a procedural provision in relation to the preliminary hearing, is it not?

MR DONALDSON:   It is a provision which imposes an obligation upon the offender to provide or to disclose expert evidence material as defined.

KIEFEL CJ:   That is going to be relied upon at the hearing.

MR DONALDSON:   Yes – in relation to an expert who is intended to be called.

KIEFEL CJ:   Yes.

MR DONALDSON:   Yes.  So, although that did not exist in the Fardon legislation, I am simply saying to your Honours that provision exists now rather more generally in relation to criminal prosecutions in Western Australia, in any event.  So, that is not an extraordinary rule.  It is not a unique provision to this legislation.

KIEFEL CJ:   But what do all the differences add up to?

MR DONALDSON:   I think your Honour was ‑ ‑ ‑

KIEFEL CJ:   I am sorry, if you have not finished.

MR DONALDSON:   ‑ ‑ ‑ wanting a catalogue.  None of those are in a sense overwhelmingly, your Honours, important in the grand scheme of things.  Can I simply say, in our respectful submission, the two most substantial differences between the Fardon legislation and the Western Australian Act is the operation of section 29 – that is, that under Fardon legislation, if a determination was made under section 13 as to a risk of – that is, that the court was satisfied that the prisoner was a serious danger to the community in the absence of an order being made – that is, that there would be an unacceptable risk that the prisoner would commit a serious sexual offence if released - that was the provision that was dealt with in Fardon - there was no burden on an accused to establish that if a supervision order was made that the supervision order would be complied with substantially or not.  The Court had ‑ ‑ ‑

EDELMAN J:   There is one other difference, Mr Donaldson, that you have not referred to, which is in section 48.  The opening words include it “must”.  The Fardon legislation was made – which a majority of the Court had interpreted to ‑ ‑ ‑

MR DONALDSON:   As “must”.

EDELMAN J:    ‑ ‑ ‑to be discretion.  That is a fairly substantial difference.

MR DONALDSON:   Yes, your Honour is right.  So, there was a discretion on the Court in relation to the making of an order and also a discretion in the Court as to whether the order would be for continuing detention or in relation to a ‑ ‑ ‑

GORDON J:   Can I raise three other questions just so I understand whether this is part of your case as well?  So, in addition to Justice Edelman’s reference to section 48 – as compared to Fardon being discretionary and this appearing to be mandatory – do you also rely upon a fact that the nature and narrow category of offence in Fardon was much narrower than that which is here?

MR DONALDSON:   I was just about to say the final point of substantial – I said there were two substantial differences.

GORDON J:   Yes.

MR DONALDSON:   The second of those, your Honour, is that in Fardon legislation, it related to an obviously much narrower range of offences and they were serious sexual offences.  They were defined – again, for the purpose of the Act – as offence of a sexual nature involving violence or against children. 

GORDON J:   So, does that mean there are three points?  Just so I am clear about what are the three primary matters you rely upon - one is the onus point, the second is the discretionary versus the mandatory point and then the third is the extent to which you have identification of the underlying conduct to which the provisions are to relate.

MR DONALDSON:   Correct.

STEWARD J:   Mr Donaldson, just to complete the shopping list – and going the other way – is there an equivalent to this Act to what is section 13(6)(b) of the Dangerous Prisoners (Sexual Offenders) Act which provides that, in deciding whether to make an order, the court must consider whether adequate protection of the community can be reasonably and practically managed by a supervision order.

MR DONALDSON:   I think your Honour must be looking at the – is your Honour look at a recent ‑ ‑ ‑

STEWARD J:   It may be that it has been put into the Act, I do not know.

MR DONALDSON:   Yes, I think that is a recent iteration.

STEWARD J:   Okay.  It was not before – it was not in the version before the Court in Fardon.

MR DONALDSON:   No, the version which was before the Court does not include that provision, your Honour. 

STEWARD J:   Thank you.

EDELMAN J:   That would be effectively included by implication in the earlier version by having a discretion – in decisions such as Chester this Court said that before a court imposes imprisonment or particularly a term of continuing imprisonment it ought to be a measure of last resort.

MR DONALDSON:   Yes.  So it might have been thought it was implicit and that is when one has regard to the effect of section 29 that would seem to be different to the result that was reached in Chester.

KIEFEL CJ:   Mr Donaldson, would I be wrong in inferring from your written submissions that your principle that you placed emphasis upon, the difference being the narrower range of offences and the extension under the West Australian Act to the offence of robbery?

MR DONALDSON:   That is critical, your Honour, to the submissions that we will be – and the articulation of the principle that we say should guide the Court here, that is, it is centrally premised upon what we will seek to convince your Honours is a real difference between the offence of robbery and the offences that were dealt with in Fardon and the offences that were dealt with or the subject of Benbrika also.

Your Honours, can I then deal with the matter that I commenced on yesterday.  It is put against us by all of the parties who oppose us that, in effect, the orders that we seek and the application of the Kable principle to this legislation is foreclosed by the decisions of this Court in Fardon and ‑ ‑ ‑

KIEFEL CJ:   Just before you go to those decisions, can you summarise what you say the effect of the three principal matters that you point to, how they work to affect the integrity, institutional integrity, of the Court?

MR DONALDSON:   Your Honour, could I perhaps do it this way?  I will, obviously, be answering your Honour’s question but I was hoping to do so after just quickly dealing with Fardon and Benbrika, if your Honour permits me to do so.

KIEFEL CJ:   Very well.  Yes, of course.

MR DONALDSON:   So what is put against us, your Honours, is that this appeal must fail because those two decisions in Fardon and Benbrika are authority for the proposition that legislation that empowers detention will be valid if the purpose of detention is protective or preventive, and it is put that that is what has been determined in those two decisions.  I will take your Honours to both of those to seek to establish that that is not so.

In relation to Fardon, your Honours, we have said a deal about Fardon in our written submissions but having regard to various considerations if I could deal quickly with Fardon and go centrally to the issues in Fardon.  In the judgment of the Chief Justice, could I deal with paragraph 20, and if your Honours are off the bundle it is at page 855 in volume 4.  So the Chief Justice there says:

It might be thought that, by conferring the powers in question on the Supreme Court of Queensland, the Queensland Parliament was attempting to ensure that the powers would be exercised independently, impartially, and judicially.  Unless it can be said that there is something inherent in the making of an order for preventive, as distinct from punitive, detention that compromises the institutional integrity of a court, then it is hard to see the foundation for the appellant’s argument.

What we will be putting in what we say is a principal development of the Kable principle is that what his Honour states there should not be accepted because such an observation would be incorrect, with respect, if detention is a disproportionate response to a risk which the order seeks to protect.  So, although there may be nothing necessarily inherently invalid in the making of preventive orders, that an order is characterised as preventive – as we will seek to demonstrate – is not the sole or entire question.

Could I ask your Honours then to turn to Justice McHugh’s judgment at paragraph 34.  Again, as your Honours know, Fardon – and Justice Gummow, in particular in Fardon, dealt in some detail with the question of whether the Queensland legislation could have been valid had it been a Commonwealth Act, so dealt with a pure judicial power question because that issue was put by the Commonwealth in that case and no doubt was put because it would have founded a contention that if this could be validly done by a Federal Court the Kable doctrine could not necessarily be invoked. 

So, Justice Gummow dealt substantively in some detail with that particular contention.  None other of the judges who sat in that case did so.  Justice Hayne expressly reserved his view in relation to that, the Chief Justice did not deal with it, Justice Kirby agreed with Justice Gummow, and Justices Callinan and Heydon did not really deal with that particular contention either.  It is said that Justice McHugh - it was said by those who oppose us that Justice McHugh dealt with that, and his Honour determined that preventive orders per se would be a valid exercise of judicial power and additionally did not attract the Kable principle.

What is relied upon for that submission is paragraph 34 of his Honour’s judgment, and it is really a sentence in his Honour’s judgment that is relied upon.  If your Honours look at this paragraph, the relevant provisions of the Act are set out in Justice Gummow’s reasons:

The differences between the legislation considered in Kable and the Act are substantial.

Sorry, it is really further down a couple of lines, where his Honour says:

Secondly, when determining an application under the Act, the Supreme Court is exercising judicial power.

So, it is said, well, what that is to be understood to mean is his Honour saying for the purpose of Chapter III that would be the exercise - a valid exercise of the judicial power by a Chapter III court.  But one suspects that really what his Honour is referring to there when saying he is exercising a judicial power is ‑ ‑ ‑ 

GORDON J:   No, it is what follows, is it not?

MR DONALDSON:   That is right.

GORDON J:   He sets out the indicia, which we all know is the concept of judicial power cannot be exhaustively determined.  He identifies the characteristics of the legislation that gives rise to him forming that conclusion.  Is it not the matters that you raise show that this legislation here is different in a number of respects?

MR DONALDSON:   Different in a number of respects, your Honour, and again, it is – the purpose of me taking you this paragraph is to say it just makes too much of that single sentence to say preventive legislation, or legislation with a preventive or protective purpose, necessarily is an exercise of judicial power, which is really the proposition which is put against us.

EDELMAN J:   That is not necessarily inconsistent with your submissions.  I mean, your submissions can say that the exercise of powers under the High Risk Serious Offenders Act involves an exercise of judicial power, but also to say that that exercise of judicial power is in such a manner that it requires the courts to exercise it so injudicially as to be invalid.

MR DONALDSON:   So, your Honour, exactly.  If, in the notion of judicial power it is referred to essentially with a division between means and ends squarely in mind, and I think that is what Justice McHugh is actually referring to here, that is, the normal indicia of the exercise by a court of its power exists in this particular legislation, rather than anything more broad than that.  Could I then take ‑ ‑ ‑ 

GORDON J:   If you took your three indicia about complaint in this Act, and you looked at it, the first one deals with the nature – the first proposition identified by Justice McHugh deals with the narrow nature of the offences the subject of the challenge.

MR DONALDSON:   Yes.

GORDON J:   The second deals with rules of evidence.  Here, as I think you submitted yesterday, as I understood your submission, we are not bound by the rules of evidence, they are subject to adjustment in the way in which you described, and so on.  Is that the way you put it?  In other words, that identifies the process – to take up what Justice Edelman put to you, you can accept what is set out there, but use it, as I understand your argument, as an explanation as to why this is different.

MR DONALDSON:   Yes, there are differences but, your Honour, I think it would be fair to say that the simple departure from the manner in which a court would deal with a criminal prosecution in a process for preventive detention does not necessarily render it invalid.  There can be differences and variations from that.

It is really – as a matter of substance – or as a matter of ends – the real difference between this legislation and Fardon is the narrow scope of the operation of Fardon, and the relationship between the consequence of detention and that narrow field of offending, on the one hand, and as regards means, your Honour, well, there are differences in this legislation and the Fardon legislation, and particularly, as it were, the reversal of the onus of proof in relation to the supervision order in section 29.  Your Honours I am on a very tight timeframe, I regret to say ‑ ‑ ‑ 

KIEFEL CJ:   You should not feel that – it is important that you put the argument that you feel you need to for your client. 

MR DONALDSON:   Grateful to your Honour.  Could I then ask your Honours to turn to Justice Gummow’s judgment, and Justice Gummow did deal with the issue of judicial power at some length, and of course your Honour Justice Gageler in Benbrika dealt in great detail with his Honour’s judgment in that respect. 

GAGELER J:   Do you disagree with my analysis in any way?  If you do, it would be helpful for me to know.

MR DONALDSON:   Your Honour, to the extent that the criticism of Justice Gummow’s judgment was that – can I perhaps deal with this – I was going to go to your Honour’s judgment in Benbrika in a moment or two ‑ ‑ ‑ 

GAGELER J:   That is fine.  There was a disagreement about terminology.

MR DONALDSON:   Yes, I think that is right.  But I will deal with that, if I might, your Honour. 

GAGELER J:   Thank you. 

MR DONALDSON:   So, at paragraph 83 of Justice Gummow’s judgment, if I can take your Honours to that.  His Honour says there:

Preventative detention regimes attached by legislation to the curial sentencing process upon conviction have a long history in common law countries.

Can I just make this observation, your Honour, that in the joint judgment in Benbrika at paragraph 33 there is a sort of paraphrasing of what his Honour says there, but what his Honour is referring to there is not preventive detention per se, but his Honour is referring specifically to preventive detention regimes attached by – that are part of the sentencing process.  So his Honour says, well, these have been around for a while.  Then his Honour goes on to say:

It may be accepted that the list of exceptions to which reference was made in Lim is not closed.

So, his Honour, as we dealt with yesterday, defined judicial power which is at paragraph 80, and then referred to the exceptions to Lim, and stated that the exceptions are not closed. 

But it is not suggested that regimes imposing upon the courts functions detached from the sentencing process form a new exceptional class -

His Honour is saying preventive detention per se is not a new or exceptional case, nor that the detention of the mentally ill for treatment is of the same character as the incarceration of those likely to commit certain classes of offence.  Again, what his Honour is saying there is that, certainly in relation to judicial power, and we would say relevant matters also to the determination of Kable, detention of the mentally ill – which was one of the exceptions that was set down in Lim – does not, as it were, provide a springboard for “any form of preventive detention is a valid exercise of judicial power”.  In fact, his Honour is saying, really, quite the opposite. 

What was the gravamen of his Honour’s determination that the legislation in Fardon would have contravened Chapter III had it been the Commonwealth Act is really his Honour’s emphasis in paragraph 84 upon the detention by reason of apprehended conduct, and it is really that focus of his Honour’s judgment with which your Honour, I think, disagreed in Benbrika. 

It must be said, with respect, that there are many instances – with respect to Justice Gummow – there are many instances of valid exercise of judicial power that respond to apprehended conduct as opposed to past conduct.  But, in any event, the fact that this Act deals with apprehended conduct and not punishment for past conduct is not, we say, the matter which gives rise to its invalidity.

If I can take your Honours to paragraph 90 – so, that was really the extent to which his Honour dealt with federal judicial power – and there is nothing – they are the principal paragraphs in which his Honour deals with the notion of judicial power – or pure judicial power, if I can put it that way.  There is nothing, in our submission, to be taken from that – that a preventive regime is per se the exercise of a judicial power, or preventive detention regime.

His Honour then went on to deal with the Kable principle separately from that, and obviously on the basis that this would not have been a valid exercise of judicial power, therefore the Kable question was squarely invoked.  His Honour’s consideration of these matters is perhaps best summed up, unsurprisingly, on his Honour’s conclusions at 106 – and the reason why his Honour determined in that case that the Kable principle was not invoked or excited could be seen at 106:

the making of a continuing detention order under s 13, could not be attained in the exercise of federal jurisdiction by any court of a State, this circumstance itself cannot dictate a conclusion of repugnancy and incompatibility -

Now, again, we do not disagree with that plainly – we spent some time in our written submissions anyway dealing with the pure judicial power question.  That is not to say, well, if it is not a valid judicial power, therefore Kable does not apply.  That is to show, if it were a valid exercise of judicial power, that would have more or less foreclosed the Kable challenge, and it does not.  So, there is nothing particularly controversial about that.  Then, at 107, his Honour says:

On the other hand, the particular preventative detention regime established by the Act cannot be said to bestow upon the Supreme Court a function which “is an integral part of, or is closely connected with, the functions of the Legislature or the Executive Government”.

That would be similar to a case like Totani, where really the courts were enlisted to fulfil an executive direction – and that is, again, not this case, nor is it Fardon.  His Honour says:

Rather, the regime is sui generis in nature.  That, other things being equal, supports the case by the respondent that no incompatibility in the necessary sense is to be found.

Can I just make this observation in relation to that, your Honours.  With respect to his Honour, if a court by legislation is being asked to undertake tasks that are sui generis or have never been performed by courts in the past, we would say rather than that point to the Kable principle not being excited, it rather points in the opposite direction.  What is incompatible with the institutional integrity of the court, and what affects public confidence in the administration of justice by a court is by courts doing things that courts have never historically done.

KIEFEL CJ:   Mr Donaldson, are you challenging Fardon?

MR DONALDSON:   No.

KIEFEL CJ:   We seem to be going through to the judgments and you pointing out that there is a fundamental problem with each of them.

MR DONALDSON:   I am seeking to really – in my analysis of these judgments in Fardon - do no more than say Fardon does not stand as authority for the proposition that a preventive detention regime that has a protective purpose is necessarily judicial or necessarily could never give rise to the application of the Kable doctrine.  We say Fardon does not decide that – and we say nor does Benbrika, to which I will now turn, if I might, your Honours. 

Perhaps, before doing so, only to make this observation, at paragraph 234, in the joint judgment of Justices Callinan and Hayne – and this is in their Honours’ conclusion – it deals only with Kable, it is important, in our submission, to just note this.  Their Honours say:

The Act does not offend against the principle for which Kable stands.  It is designed to achieve a legitimate, preventative, non‑punitive purpose –

So their Honours look at what the purpose of the Act is.  It is a legitimate purpose, in this case it is preventive, so:

It is designed to achieve a legitimate, preventative, non‑punitive purpose in the public interest –

So, to protect the public:

and to achieve it with due regard to a full and conventional judicial process –

So their Honours are referring there to what is the object of the legislative scheme, and how is that legislative scheme to be implemented and it is – although it does not expressly state so, it is the first step, as it were, in some sort of proportionality‑type analysis between determining whether, using this example, detention is a proportionate means of achieving the objects which their Honours there identify.  But it would be wrong to say that their Honours embark upon that process.

Can I then take your Honours to Benbrika, because again, your Honours, what is put against us in Benbrika is that paragraph [36] of the joint judgment forecloses this appeal.  Consideration of the joint judgment in relation to or leading up to [36] really requires consideration of what went before.  That was a case, of course, that was not determined on Kable grounds because of the nature of the legislation being Commonwealth legislation, and the particular submissions that were before the Court were put in a particular way.  That is to be seen commencing at paragraph 28, and that is in volume 8 at page 2581, volume 8 of the bundle.

So again, in that case the contention was whether the particular legislation there was a valid exercise of judicial power because it fell within one of the exceptions identified in Lim, and then at [29], that notion is, or that contention is addressed.  It refers to the joint judgment in Lim, acknowledging that:

there are exceptions . . . Mr Benbrika’s case that the exceptions identified in Lim . . . all pre‑date federation and are to be taken to have –

they essentially froze at that time.  That particular contention was rejected.  The observation is made at [30], which again is important, that what was central before the Court and being considered by the Court was legislation, the purpose of which was protection of:

the community against the unacceptable risk of harm posed by a terrorist offender.

That is, in effect, by terrorist offences.  This was not some broad‑ranging legislation dealing with a wide range of offences.  It was legislation similar in a sense to Fardon that focused upon a narrow group of offences.  So when we come to [36], that is to be read having regard to the observation that was made at [30], and then enhanced again at [32] where your Honours in the majority noted:

It may be observed that the exceptions to the Lim principle involving the involuntary detention of those suffering from mental illness or infectious disease share a purpose of protection of the community from harm.

Well, that is correct, and then it is said:

His Honour –

and that is Justice Gummow in Fardon:

did not explain why an appropriately tailored scheme for the protection of the community from the harm that particular forms of criminal activity may pose is incapable of coming within an analogous exception.

Again, the emphasis in this passage is upon particular forms of criminal activity, not, as it were, a wide‑ranging class of criminal activity.

KIEFEL CJ: Could I ask you, Mr Donaldson, in relation to the Schedule 1 offences in the West Australian Act, is it your submission that most of them are of the – nature would fall within the protective type of offence with which Fardon was concerned, but that some have a disconnect in their protective purpose?

MR DONALDSON:   Yes.

KIEFEL CJ: You would not say the whole of Schedule 1 – it is just some offences have a disconnect?

MR DONALDSON:   No, that is why this is only an appeal in relation to section 32.  Yes.

KIEFEL CJ: So, Schedule 1 might have to – there might be some offences which have to be excluded from its proper operation.

MR DONALDSON:   Yes.

KIEFEL CJ:   In relation to robbery, do you say there is no proper protective purpose to the community and, if so, how?

MR DONALDSON:   We do not say that there is no protective purpose in relation to robbery.  What we ultimately say in relation to that, your Honour, is that for the legislation to be valid there needs to be proportion between the means that are provided for in the Act to achieve that protective purpose in relation to robbery. 

KIEFEL CJ:   But does any authority have that requirement?

MR DONALDSON:   No.  What we seek in this appeal to advance is a principled expansion of Kable to deal with preventive detention that explains the result in Fardon and would explain the result in Benbrika as well.  What we would be putting to your Honours as a principled expansion of the categories of case in which the Kable doctrine is attracted is where, in relation to preventive detention regimes, detention is a disproportionate response to the purpose or the object of protecting the community from particular types of criminal activity or offending. 

KIEFEL CJ:   You are really saying that the regime should be limited to supervision orders – in every case?

MR DONALDSON:   No, we could not quibble supervision orders in relation to robbery – we do not.  But it is detention.  Nor would we necessarily quibble – although it is not before your Honours – with, say, a supervision regime in relation to certain arson offences or procuring prostitution.

KIEFEL CJ:   But would not the need to protect depend upon the circumstances of a particular case?  In some cases a restriction order might be necessary - in relation to robbery.  In other cases a supervision order would be sufficient. 

MR DONALDSON:   No.  In our submission, your Honour, in relation to robbery detention will always and necessarily be a disproportionate response because there are practical effective alternatives to detention that give effect to the object of protecting the community from robbery that protect the freedom that is deprived or denied by detention or incarceration. 

KIEFEL CJ:   You are in a sense applying sentencing principles to Kable, are you not?

MR DONALDSON:   Well, I was more really seeking to invoke into this process a well-understood principle on dealing with limitations upon legislative power and the constitutional arrangement of cases – the freedom of political communication cases, for instance, and the recent analysis of section 92 in the Palmer case of course deals with the same notions.

GAGELER J:   Rather than putting your submission in terms of an expansion of any doctrine, perhaps another way of looking at it is as an explanation of what amounts to a – for protective detention within the exception in Lim, as I understand it, to characterise detention as protective, one looks at the purpose, but also looks at the means by which that purpose is sought to be achieved by this law and it is in the combination of those two considerations that one arrives at a characterisation as protective or not. 

MR DONALDSON:   Within that, is there an alternative to the means that are being adopted to effect the purpose, short of detention? 

GORDON J:   Or put in different terms, to adopt the language it sets out in 32, is there an appropriately tailored scheme?

MR DONALDSON:   Yes.

GORDON J:   The answer is either yes or no, the combination is as Justice Gageler has put to you, of those two elements.

MR DONALDSON:   Relevant to an appropriately‑tailored scheme, your Honour, is, is there a scheme that is efficacious, or a reasonable efficacious alternative that gives effect to the same purpose without the deprivation of liberty that is associated with detention?  In some cases, your Honour, we would not quibble with the notion that detention could and would be a proportionate response, and we would not quibble with the notion that Fardon - we do not seek to reopen Fardon.  We would say that Fardon is such a case, because Fardon dealt with serious sexual offences.  They were sexual offences involving violence or any sexual offence involving children. 

Now, because of the nature of the offence, the seriousness of the offence, and the vulnerability of future victims to such offending, we would accept that detention would be a proportionate, or could be a proportionate response to that.  It is not to say every such case would give rise to detention.  There would be many cases that would be dealt with by supervision orders, but ‑ ‑ ‑ 

KIEFEL CJ:   There is going to be a range in robbery, too, is there not?  Robbery, as we said yesterday, and you took us to the definition, involves threats of violence.  It can involve home invasions.  I mean, there is a level of seriousness that – robbery comprehends a range of offences, and there will surely be, somewhere, a detention order, a continuing detention order may not be appropriate and supervision is, but it is impossible to say, without knowing the circumstances of the particular case where it would lie.

MR DONALDSON:   With respect, we disagree for this reason.  A suitably‑framed suite of orders that restricted the freedom of a person, short of detention, could deal with any such circumstance, with respect.  So, for instance, a curfew that was monitored, regular drug testing to deal with the issue which your Honour raised yesterday, living in a particular location, reporting regularly to police, wearing an ankle bracelet that could be monitored – I mean, it is ‑ ‑ ‑ 

GLEESON J:   But why could not the same thing be said about a determined sexual offender?

MR DONALDSON:   We say, your Honour, because of the – really, the vulnerability of victims of serious sexual offending.  It is different to the offence in 392 because there it is:

uses or threatens to use violence –

but in that case, your Honour, the nature of the consequence to a victim, of course it is violent ‑ ‑ ‑ 

GLEESON J:   I suppose you cannot – the goal is to provide adequate protection.

MR DONALDSON:   Yes.

KEANE J:   Surely it is not a question for the Court to decide what level of harm is acceptable or not.  Surely that is a question for the legislature.

MR DONALDSON:   Well, I respond to your Honour in ‑ ‑ ‑ 

KEANE J:   How can the level of harm be required to be prescribed as a condition for the validity of a regime designed to prevent harm?

MR DONALDSON:   Because it is – well, certainly the authorities that I have taken your Honour to do deal with harm, refer to harm of particular kinds, so it is what has been stated in previous judgments, but ‑ ‑ ‑ 

KEANE J:   Yes, they deal with – they are cases where the legislature has responded to the need to provide for protection against harm that the legislature has considered to be so grave as to warrant the establishment of such a regime.  But where does the court - where does it become a matter for the judgment of a court to say this level of harm is not sufficient to justify the existence of such a regime?  On what basis does a court make that kind of judgment?

MR DONALDSON:   Well, courts make judgments of that nicety every day of the week, your Honour.

KEANE J:   In the course of a sentencing process – quite.

MR DONALDSON:   Yes.  But, your Honour, if I could perhaps answer or respond to your question rhetorically.  Let us assume that strapped on the back of this legislation was every offence that existed in the West Australia statute book – trivial ‑ ‑ ‑ 

KEANE J:   Because the mechanism in section 7 – and it either does this job or it does not – but because you have a mechanism in section 7 where a judge is required to make an assessment on the facts of a particular case, it is undoubtedly true to say that in many cases of robbery the identification of the proclivity to further harm – proclivity to cause further harm – a judge would say, well, I do not see there is that proclivity. 

But in the case of someone who is an intravenous drug user, for example, who, when released from custody, goes and commits offences almost immediately, no doubt – let us not say no doubt – goes and commits offences because they want to get some money to buy some more methylamphetamine – in the circumstances of such a case it is not hard to see that a judge can say that there was a likelihood of further armed robberies occurring.

MR DONALDSON:   Unless the person is subject to a supervision regime.

KEANE J:   Yes.  Yes, but we are talking here about can you have a regime at all.

MR DONALDSON:   Yes, we are, your Honour, quite so.  We are saying, in relation to this offence ‑ ‑ ‑ 

KEANE J:   You are saying in relation to this offence there cannot be a case in any circumstances where it is constitutionally acceptable for the Parliament to say that there are examples of this kind of offence where the circumstances of the offender may be such that there is an unacceptable risk of harm to the community. 

MR DONALDSON:   No, with respect, I think that misstates the inquiry, with respect.  We would say that in relation to this specific offence the response of detention is not a proportionate response to the risk posed by this kind of offending when there is a ready and efficacious alternative to detention that will give effect to that purpose. 

KEANE J:   Whether that is so or not depends upon an assessment by the court?

MR DONALDSON:   Yes, that is right.

KEANE J:   So that the assessment by the Court is the mechanism – not only the mechanism by which the regime works, it is also the guarantor of its constitutionality.

MR DONALDSON:   Yes, but, your Honour – yes, but that is the case with every implementation of a proportionality – even structured proportionality type analysis, that is, the court makes a judgment as to whether the means that have been chosen to give effect to the statutory purpose are proportionate, and that requires the court to determine whether there are appropriate alternatives that could effect the purpose without the deprivation of liberty.  That is a decision that this Court makes in every – Lange Case, makes in section 92 cases. 

KEANE J:   We are in furious agreement that that judgment is a perfectly orthodox judicial judgment. 

MR DONALDSON:   Yes, and we are seeking to develop or explain how a protective detention mechanism could operate having regard to that similar principle, that is, by effectively implementing that orthodox judicial reasoning technique.  But your Honour is quite right – we are avowedly stating that detention will always be a disproportionate – is necessarily a disproportionate response to this offence.  It would be the case, frankly, with other offences in this list, like procuring prostitution.  It is hard to imagine that detention is a proportionate response to that when there could be supervision orders put in place that would, in effect, eliminate the risk of that. 

But Fardon is different, your Honour, because the consequence of sexual offending – serious sexual offending as it was in Fardon – that is violent sexual offending and sexual offending involving children – the consequence of that and the risk of that, particularly as many of these offenders have a psychological or psychiatric proclivity to such offences, places that in a different nature to this offence.  

KEANE J:   It means that it is much easier for a court to come to the conclusion that the harm is unacceptable and that the response of detention is necessary.

MR DONALDSON:   Yes.

KEANE J:   So, it is just a question of degree.

MR DONALDSON:   Yes – proportionality always is.  As I said, your Honour, what we are urging the Court to do is to either explain what has happened in the past or expand the operation of Kable to deal specifically with preventive detention regimes to infuse into that Kable process the notion of proportionality that I have advanced to your Honour.  But your Honour is quite right – it does require acceptance by the Court that there are adequate alternative means – in the way of supervision – that could deal with robbery.

Could I keep then going quickly with Benbrika because I have not got to paragraph [36] yet?  Perhaps, your Honours, if I could simply say this in relation to Benbrika – and really all that I was taking your Honours to in Benbrika  before was to say that paragraph [36] does not really foreclose what I have just put to your Honours because Benbrika is not authority for the proposition that a preventive purpose per se is either a valid exercise of judicial power or cannot attract the Kable principle.  Your Honours, paragraph [36] starts off with the sentence:

Terrorism poses a singular threat to civil society. 

Similar to the observation of Justice Gordon in that case as to the consequence of terrorism.  Can I pause there to say, your Honours, we would accept that the legislation that was before the Court in Benbrika, based on the majority judgment, would not fall foul of the proportionality‑type analysis that I have articulated.

That is because it can be foreseen that in relation to terrorist offenders – or the risk of terrorist offending – that detention may be a proportionate response.  It may be the only response that can deal with that risk and that is because of the nature of the offending and the serious consequences of the offending and, perhaps, the inability of any supervision regime to preclude terrorists from dealing with each other – would‑be terrorists from dealing with each other – and, as the offences dealt with in Benbrika disclosed, conjuring together these terrorist offences.

EDELMAN J:   Mr Donaldson, when you are talking about proportionality as a restriction, it seems to me you might be sliding between two concepts and it would assist me to know whether you are referring to one or for both of them.  One is to describe the situation where the purpose of the legislation – the protective purpose of the legislation – could, on any view, very easily be met by any alternative that is less restrictive than imprisonment.  The other, is where the protective purpose of the legislation is concerned with matters that are so slight or trivial at one extreme – say speeding offences – that it could never justify detention at all.  Are you talking about the first or the second, or both?

MR DONALDSON:   Both are dealt with by the same means of analysis, your Honour.

GORDON J:   I do not know about that.  The second may be dealt with by looking at purpose and then, as Justice Gageler put to you, looking at the means adopted to achieve, or seeking to achieve, that purpose.  That is, as I understand, the way you would look at it in the secondary category put to you by Justice Edelman.

The first is looking at the outcome and then saying, is there another means available?  I think they do raise different questions, because you are looking at a different part of the analysis in order to determine whether or not – so if you look at, do we have an adequately‑tailored scheme, that is not looking at, arguably, just the last bit.  It is actually looking to see whether the category of the conduct is sufficiently identified, whether the harm is identified, whether the means adopted are means adopted to address that purpose.

MR DONALDSON:   A lot turns on the correct articulation of what the object of the legislation is, when considering this question, and it was a matter addressed squarely by your Honour Justice Gageler in Benbrika.  That is, when one looks at – and it is a real problem with bandying around terms like “preventive” - the object is preventive or protective.  When one looks at a piece of legislation like this in relation to the provision which is challenged, which is the robbery offence, one looks at the object of the Act in relation to that, because that is what we are challenging here.

GORDON J:   Then you look to the legal and practical operation of the Act in relation to that to see whether or not that purpose is achieved and whether or not the scheme put forward is adequately tailored.

MR DONALDSON:   Yes, or, in a sense, proportionate to ‑ ‑ ‑ 

GORDON J:   I do not know why you need that word.  The authorities, both the majority and the minority judgments, recognise that that is an appropriate, or at least an available way of analysing it.

MR DONALDSON:   With the consequence that if the scheme, in this case, detention, is not tailored to give effect to the purpose, then it is invalid.  Yes, we are proposing something different to that, your Honour, as a – bearing in mind Benbrika did not deal with Kable, and in relation to - although what we will be articulating to your Honours would apply to both the judicial power question and also the Kable question, although in the judicial power question in a different context because it is relevant, because your Honour Justice Gageler was indicating it would be relevant as a step in determining whether a particular form of preventive detention was analogous to detention of the mentally ill, whether it was a – can I call it a disproportionate detention scheme, was, in fact, analogous to the exception that was identified in Lim.

But the way that, your Honours, we have sought to - we seek to articulate what we say should be a principled basis upon which the Kable doctrine should apply in cases such as this is as follows, that a law providing for detention in custody that is not a consequential step in the adjudication of criminal guilt for past acts will impair the court’s institutional integrity where detention is not reasonably necessary to protect the community from the risk which the legislation, providing for detention, seeks to effect - that is one way of articulating it - or, where detention is not proportionate to the object of the legislation providing for detention, or which the legislation providing for detention seeks to effect. 

KIEFEL CJ:   Your first proposition would reflect section 7(1).

MR DONALDSON:   Yes.  Well, the first proposition – yes, well, it is a matter of whether there is a proportion between the object of the legislation and detention.  It is only to do with detention.

KIEFEL CJ:   The requirement that the protective regime, the orders under the protective regime are necessary for the protection of the public is what section 7(1) addresses.

MR DONALDSON:   Yes, but if detention could never be, your Honour, you do not get to considering section 7.  The principle that I have just stated to your Honours would be applied in the following way.  First, there would have to be an identification of what the objects of the impugned legislation is.  Now, this legislation, because it deals with such a broad scope of criminal offences, cannot be given an object such as the object of Fardon, so the object of Fardon was to protect the community from an unacceptable risk of the commission of serious sexual offences of the type defined in that Act.

Here, where the challenge is only to the robbery provision, we would articulate the relevant object of this legislation as being to protect the community from an unacceptable risk of the commission of robbery, as defined.  There is nothing particularly odd about a legislation such as this, with such a diverse range of offences in it, to have more than one object.

The second step, having identified the object, is to then identify the meanings that are applied to effect the object.  Here, that which was challenged is detention.  Then the question is to consider the relationship between the object and the means.  There the question is whether detention is – whichever articulation one prefers – reasonably necessary to protect the community from an unacceptable risk of the commission of robbery or whether detention is proportionate to the unacceptable risk of the commission of robbery. 

Detention will never be reasonably necessary to protect the community from that risk or proportionate in the sense stated because there are, in our submission, alternative means – alternative effective means – available to achieve that object, that being protection of the community from the unacceptable risk of robbery where those alternative means are less respective to the liberty of the individual.  The obvious example of that is a supervision order.

We say – without repeating what I said to your Honour Justice Keane earlier – there are certain categories of offences where a supervision order will always be and necessarily is effective – an effective alternative.  We would accept that there are instances where detention will be a proportionate or a reasonably necessary consequence of the risk posed but this, in relation to this offence, is not one of those.

So, we say the further step in the analysis, the Kable analysis, in respect of that proposition is that the legislation to require a Supreme Court to consider the making of a detention order, particularly in the circumstances, having regard to the mechanism of section 29 of this Act – that gets back to your Honour Justice Gordon’s question – that that is an important aspect of the submission. 

To require the Supreme Court to consider making a detention order in that circumstance, where detention is not reasonably necessary to protect the community, will substantially impair the institutional integrity of the court.  That is because, requiring a court to consider making a detention order where detention is not necessary to adequately protect the public, would adversely affect public confidence in the court because the public is entitled to believe that courts will not order detention where it is either not a sentence for a crime or whether it is a disproportionate response to a risk of offending.  We say the Kable principle is attracted in this particular case. 

Dealing with – I was going to take your Honours to, in Vella, paragraph 56, simply to – I will quickly take your Honours to it now.  Vella is in volume 7 of the authorities – because Vella was not a detention case.  Vella – it is at paragraph 56 – the passage I was ‑ ‑ ‑

KIEFEL CJ:   Where do we find Vella in the joint book of authorities? 

MR DONALDSON:   Volume 7.

KIEFEL CJ:   Which tab?

EDELMAN J:   Tab 37.

MR DONALDSON:   Tab 37 – sorry, I do not have tabs in mine, your Honour.  The relevant page for paragraph 56 is page 2349.  Really what I was directing your Honours to this passage for is the second sentence:

The contours of the categories where State legislation will substantially impair a court’s institutional integrity will necessarily emerge slowly.

A category is not preventive detention per se.  So, the contours of the categories will develop:

But the categories must develop in a principled, coherent, and systematic way rather than as evaluations of specific instances.

In our submission, the articulation of the application of Kable and the judicial power notions to legislation such as this is a coherent and principled expansion of the Kable doctrine.  We are not simply saying on an ad hoc basis that this legislation – or this offence of robbery and the risk of reoffending of robbery – is different to the nature of the offences in Fardon or in Benbrika.

So, what we have put to your Honours as a reasoning process that can be applied in determining these questions – or determining this question in relation to preventive detention regimes is a sensible and coherent and principled expansion – or extension of Kable which we urge upon your Honours.

Could I just mention one other matter, your Honour, before I finish?  Could I just mention one other matter to your Honours which arose from something that I said to Justice Gordon yesterday.  The actual substantive hearing of this matter is on Monday.  There is a theoretical possibility that of course that there could no order made against Mr Garlett on Monday – that is neither a supervision order nor a detention order.  If either of those orders were made, then this would still be a live issue as it were. 

It would be a very great pity even if no order was made on Monday that the view was taken that the matter which has been before your Honours is hypothetical – or cannot be concluded – certainly not our contention, your Honours.  But I thought I should bring that to your Honours - - -

KEANE J:   It is certainly not moot now.

MR DONALDSON:   No, it is not moot now, and it could never be moot until Monday.

KEANE J:   Given the likelihood of appeals and so forth, the worst that one could say is that it might become moot.

MR DONALDSON:   Yes.

KEANE J:   But then it might not.

MR DONALDSON:   Yes, and could I say – again, I do not obviously want to foreclose anything that is going on on Monday – or predict anything that is going on on Monday – any issue as to whether the matter was moot could only arise if the application was dismissed on Monday – that is if no order was made at all.

EDELMAN J:   And there was no appeal.

KEANE J:   And there was no appeal.

MR DONALDSON:   No appeal, yes.  In any event, I just brought that matter to your Honours’ attention.  Certainly we would not be contending in any circumstance that the matter would be moot or hypothetical.  If your Honours please.

KIEFEL CJ:   Yes, thank you Mr Donaldson.  Mr Solicitor.

MR THOMSON:   May it please the Court.  Can I commence by saying something about Monday.  It is not our submission that this case would become moot, whatever the outcome is on Monday.  The Court will know that procedurally there were two different things that were decided by Justice Corboy.  One thing was whether a declaration should be made as to the validity of the relevant legislation and he made separately the relevant declaration which is the subject matter of this appeal.

There was also a decision that there was a need for this offender to go from a section 46 hearing to a section 48 hearing.  That was achieved by a different set of orders, and that set of orders could not be appealed according to the legislation, and so what has happened is that there was an appeal in respect of the declaration of constitutional validity to the WA Court of Appeal, and that appeal has been removed into this Court. 

So, that is by way of explanation as to the fact that the thing that is before this Court is part of the appeal about the declaration of constitutional validity insofar as it is dependent upon what might be loosely described as the Kable principle.  There was another aspect to that appeal which was the Racial Discrimination Act, but that was not the subject of removal. 

Can I commence by trying to draw together what appear to be three questions which have emerged at a general level in the course of the submissions that my friend has made.  I propose to identify those questions at the outset, and then I propose to move to the way in which the Act operates because there seem to be some questions about the actual detail of the Act, and then I will return to answering the questions which arise as a matter of law. 

The three questions that appear to have emerged are these.  First, is there a new limitation in existence on State legislative power which means that a State cannot enact a law for preventative detention unless it is assessed by the court as providing for preventative detention which is proportional to the means it is intended to achieve? 

Now, that question, is one that has emerged in the course of the argument that has been made to your Honours this morning.  My friend has candidly said that there is no authority to support that.  He has said that it is based on a concept of proportionality.  He has not offered a constitutional standard for assessing proportionality.  It is a new argument, which has not been notified to us, except to the extent of there being some suggestion of proportionality in the oral outline of submissions which was filed yesterday.  It is a very large question based upon a new constitutional imperative of some nature, which has been sprung upon this Court.  I identify it candidly in that way at the outset because it is a very significant and substantial question for this Court’s consideration. 

So, in our submission, the response of my learned friend, Mr Thomson, to what do you say about putting the whole of the Criminal Code in the back of the Act, which is to say, well, the Act will deal with that, perhaps gives rise to greater issues than it solves.

Your Honours, obviously enough the last day and a half have been concerned with our attempt to seek to find a basis for differentiating cases like Benbrika and Fardon, where we do not contend that a detention regime in relation to those kinds of offences is valid.  A different case for

detention – and examples have been used – let us say a case of detention for not wearing a bike helmet - we have sought to advance to the Court a circumstance or a principled basis upon which a differentiation can be drawn between Fardon and Benbrika on one side, and trivial cases on another. 

That is, I will not repeat myself, but whether detention is a means to affect a relevant object of an Act that is either sufficiently tailored to achieve it or proportionate to it in the sense that I have indicated.  But, with respect, on any analysis it is necessary for there to be a differentiator between cases such as Benbrika and Fardon, and a power of detention for not wearing a bicycle helmet.  May it please the Court.

KIEFEL CJ:   Yes, thank you.  The Court reserves its decision in this matter and adjourns to 2.15 p.m. on Tuesday, 15 March.

AT 3.20 PM THE MATTER WAS ADJOURNED