Garlett v The State of Western Australia & Anor

[2022] HCATrans 27

[2022] HCATrans 027

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 THURSDAY, 10 MARCH 2022, AT 2.15 PM

Copyright in the High Court of Australia

MR G.R. DONALDSON, SC:   If it please your Honours, I appear with my learned friend, MS R. YOUNG, for the appellant.  (instructed by Roe Legal Services)

MR J.A. THOMSON, SC, Solicitor‑General for the State of Western Australia:   May it please the Court, I appear with MR S.R. PACK, on behalf of the second respondent.  (instructed by Solicitor‑General’s Office (WA))

KIEFEL CJ:   I will announce the appearances for the interveners in accordance with the protocol for remote hearings.

MS A.M. MITCHELMORE, SC appears with MR M.A. HOSKING on behalf of the Attorney‑General of the Commonwealth.  (instructed by Australian Government Solicitor)

MR M.G. SEXTON, SC, Solicitor‑General for the State of New South Wales, appears with MS J.S. CALDWELL, on behalf of the Attorney‑General for the State of New South Wales.  (instructed by Crown Solicitor’s Office (NSW))

MR G.A. THOMPSON, QC, Solicitor‑General of the State of Queensland, appears with MS P.M. CLOHESSY and MS F.J. NAGORCKA, on behalf of the Attorney‑General of the State of Queensland.  (instructed by Crown Law (Qld))

MR M.J. WAIT, SC, Solicitor‑General for the State of South Australia, appears with MR S.T. O’FLAHERTY, on behalf of the Attorney‑General for the State of South Australia.  (instructed by Crown Solicitor’s Office (SA))

MS R.J. ORR, QC, Solicitor‑General for the State of Victoria, appears with MS F.I. GORDON and MR T.M. WOOD, on behalf of the Attorney‑General for the State of Victoria.  (instructed by Victorian Government Solicitor’s Office)

MR S.K. KAY, SC, Solicitor‑General for the State of Tasmania, appears with MS J.L. RUDOLF, on behalf of the Attorney‑General for the State of Tasmania.  (instructed by Office of the Solicitor‑General (Tasmania))

KIEFEL CJ:   Yes, Mr Donaldson.

MR DONALDSON:   If your Honours please.  Your Honour, am I at liberty to remove this mask while addressing the Court?

KIEFEL CJ:   Yes, that is the protocol that was put in place was it is removed when you are speaking.

MR DONALDSON:   Thank you, your Honour.  Your Honours, this appeal involves a challenge to the liberty of an aspect of the High Risk Serial Offenders Act 2020 (WA).  I will take your Honours to the legislation presently, but it replaced, as it were, previous legislation ‑ copies of which were also in the papers before your Honours – dealing with sexual offenders legislation similar to the legislation that was considered in Fardon.

The appellant’s circumstances – and before going to the Act, your Honours ‑ are in the papers that are before your Honours.  If I could ask your Honours first to turn to the core appeal book and at page 12 of the book your Honours will see that it is there set out at paragraph 1 of Justice Corboy’s judgment the matters that were the subject of the plea by the appellant in 2019.

The circumstances of the offending are that on that date, 19 November 2017, he, with others, entered or were in the place of two named occupants of a house, without their consent, with the intent to commit an offence.  They were in company immediately before the commission of the offence.  They knew that there were effectively people there.  Then on that date and at the same place he and others stole from one of the named occupants – or the named occupants – with threats of violence, a pendant necklace and $20 cash, which is the property of the named occupants of the house, and that he and others pretended to be armed with a dangerous weapon, namely, a handgun.

Your Honours, this is not in the material, but I can provide a copy to your Honours in due course if required, but the statement of material facts that were before the sentencing judge provided that, in relation to the handgun, that whilst inside the victim’s bedroom, he pulled an item partially from his right pocket and told the victims he was armed with a firearm.  He walked past the two victims and collected a small gold metal necklace from a table belonging to one of the named occupants and walked out of the bedroom towards the rear of the house, and whilst in the living area he stole a $20 note, belonging to one of the named applicants, from the dining table in the dining room.  So they were the circumstances of the particular offending. 

The circumstances of the appellant, your Honour, if I could ask your Honours to turn to page 90 in the core appeal book papers, the history of this particular appellant is set out there.  I will take your Honours to one or two of the paragraphs here, if I might.  If your Honours have paragraph 234 - and can I say, your Honours, that the appellant was born in August 1994, and so at 234, Justice Corboy refers to a report that was before the Children’s Court in relation to an appearance of the appellant in 2009 and certain of the history of the appellant is set out there, that:

the Department had a history with the respondent’s parents ‘going back to at least 1997 regarding spouse abuse’.  The report further stated that the respondent’s parents ‘have a long history of ongoing and severe domestic violence, drug abuse and criminal behaviour’.  The report also noted two allegations of ‘substantiated’ physical abuse against the respondent and one unsubstantiated allegation –

His Honour also recites, at paragraph 235, that the history of the appellant is that he was the subject of a protection order in 2002, so that is when he was eight years of age:

and he was placed –

pursuant to that protection order:

with his maternal grandparents.  In 2004 ­

that is, when he was aged 10:

he was relocated to a station near Fitzroy Crossing.  There was a period towards the end of 2006 –

when he was 12 years of age, where:

his whereabouts was unknown to the Department but he was charged with offences in December 2006 and subsequently detained at the Banksia Hill Detention Centre.

That would have been when he was 12 years of age.  At paragraph 236, his Honour notes that the appellant:

was expelled from school at about the age of 10 years; at about the age of 12 he was living on the streets and already had a problem with alcohol and drug abuse.  [His] criminal history shows that he was convicted of numerous offences –

commencing in 2007, when the appellant was 13 years of age, and his Honour sets out in the balance of that paragraph various interactions by the appellant with the criminal justice system in years following that.  At paragraph 237 it is recited that the appellant:

has a history of substance abuse and he tested positive for methamphetamine, amphetamine and cannabis following his release to the community in September 2017.  He stated that he was injecting methamphetamine daily at the time that he committed the November 2017 Offences.

At 238 of his Honour’s judgment it is also set out that the appellant:

smoked cannabis almost daily between the age of about 10 and 12 years; that he was introduced to amphetamines at the age of 9 years . . . that he had consumed amphetamine intravenously since that time (but stated that he did not use the drug all the time) and had used heroin as a method of coping when coming down from the effects of amphetamine.

So that is the, if I might say, the sad story of the appellant leading to his conviction in 2017, and where he finds himself today.

As indicated, and as your Honours know, we are challenging this appeal as if it were a provision or an aspect of the Act and, perhaps before taking your Honours to the Act, could I also tell your Honours that the offence for which the appellant was charged and convicted – the November 2017 offences – were for robbery.  In volume 2 of the appeal book, the details of that offence are set out.  That is at page 291 of volume 2.  Your Honours will see that:

A person who steals a thing and, immediately before or at the time of or immediately after doing so, uses or threatens to use violence to any person or property in order –

to obtain the thing stolen; or

(a)to obtain the thing stolen; or

(b)to prevent or overcome resistance to its being stolen,

is guilty of a crime –

So, pause there.  As we understand it, the threat of violence in this matter was the reference to the handgun – or the fake gun.  The provision then goes on to provide that the person:

is guilty of a crime and is liable –

(c)if immediately before or at or immediately after the commission of the offence the offender is armed with any dangerous or offensive weapon or instrument or pretends to be so armed -

So, in that circumstance the penalty is – or the offender is liable to imprisonment for life.  Subsection (d) refers to the offence being:

committed in circumstances of aggravation -

Can I say, your Honours – again, unfortunately, this is not in the book – but the definition of “circumstances of aggravation” is provided in section 391 of the Criminal Code.  Your Honours have the last part of section 391 at the top of page 291 of the appeal book. But can I say, your Honours, the rest of the definition – or what precedes that – is effectively in these terms, that there is a definition of “circumstances of aggravation” which is defined to mean that immediately before or after the commission of the offence:

(i)the offender was in company with another person or persons, or

(ii)the offender does bodily harm to any person –

then – your Honours, we are on page 291, or:

(iii)the offender threatens to kill any person;

or

(b)the person to whom violence is used or threatened is of or over the age of 60 years.

So, in relation to this matter, your Honours, there was a circumstance of aggravation because the offender was in company with three other persons, but the other circumstances of aggravation did not apply to the circumstances of this case.  But of course, your Honours, the appellant fell within the definition in section 392(c) in that he pretended to be armed – although it was not a firearm.

Could I then take your Honours to the High Risk Serious Offenders Act.  It, your Honours, is in volume 1 of the bundle, and at page 104, your Honours, the Act commences.  I will come to address your Honours as to what, as it were, the object of the legislation is – or the relevant part of the legislation, but your Honours will see the preamble which provides that it is:

An Act to provide for the detention in custody or the supervision of high risk serious offenders -

The object of the Act is further addressed in section 8 - this is at page 111 - where your Honours will see that it is stated there that:

The objects of this Act are –

(a)to provide for the detention in custody or the supervision of high risk serious offenders to ensure adequate protection of the community and of victims of serious offences;

So, during the course of the submissions that we made to your Honours, your Honours will hear reference to “preventive purposes” and the like – of like terms.  The object of this Act is stated to be to seek to ensure adequate protection of the community.  It does not say “from high risk serious offences” but when I come to address your Honours in relation to section 7 of the Act – which is really the key provision of the legislation – perhaps that object will become clearer in focus.  Then, your Honours, in section 8(b), it is also stated to be an object of the Act:

to provide for continuing control, care or treatment of high risk serious offenders.

When I come, shortly, to take your Honours to sections 26 and 27, it might be thought that object (a) corresponds with the making of continuing detention orders and object, expressed as (b), might be thought to relate to, what are referred to as supervision orders, both of them together being referred to as restriction orders.  Just to assist your Honours with that, if your Honours turn ‑ ‑ ‑

KIEFEL CJ:   Would not the continuing control, care or treatment be whilst in detention?  Supervision orders are alternatives to ‑ ‑ ‑

MR DONALDSON:   It could theoretically be, yes, your Honour, although, when I come to take your Honours to section 7 and section – the interaction of section 7 and section 29 of the Act there does not appear to be any reference to a purpose of care of a high‑risk offender in any of the operative provisions of the legislation or certainly in relation to section 7.  But your Honour is quite right, as a matter of plain language, a detention of a person could be for the purpose of caring for that person but if that ‑ ‑ ‑

KIEFEL CJ:   As in their rehabilitation.

MR DONALDSON:   Yes.  If that were a purpose, your Honours will come to address, it is difficult to think that detention is the most efficacious means or the most appropriate or proportionate means for effecting that.

GLEESON J:   Is that not what section 26(1) says?

MR DONALDSON:   Yes, your Honours.  Section 26(1) does deal with the person being detained for:

an indefinite term for control, care or treatment.

But, again, your Honour, when we go to section 7 – which I will clear out the detail before I can look at the substance, if I might – your Honours will see the manner in which section 7 operates, which is really to provide the integer for the operation of the Act which is the definition of a “high risk serious offender”.  That has little to do with – or nothing to do with – control, care or – has nothing to do with care or treatment of an offender.

Your Honour Justice Gleeson has referred to sections 26 and 27.  Perhaps, if I might, your Honours, before going to those, say that they are both bound up in the definition of a “restriction order” – which your Honours will see in section 3 at page 107.  So, a restriction order is, effectively, both of ‑ ‑ ‑

KIEFEL CJ:   Which section is that?  I think you will find most if not all of us are reading from a pamphlet copy, Mr Donaldson.

MR DONALDSON:   I am sorry, your Honour.  Which page in the appeal book? 

KIEFEL CJ:   Which section are you referring to?

MR DONALDSON:   I am sorry, your Honour, it is in section 3.

KIEFEL CJ:   Thank you.

MR DONALDSON:   So, it is just the general definition section, your Honour, at about point 3 of the page.  It is alphabetical and “restriction order” means a continuing detention order or a supervision order.  Continuing detention orders and supervision orders are provided for in sections 26 and 27 and so they are – a continuing detention order in relation to an offender is an order that the offender be detained in custody for an indefinite term for control, care or treatment.  So, it could theoretically be for any of those purposes, but control is, we would say and when one comes to look at the other provisions of the Act, certainly the overwhelming or overriding basis upon which those orders are made.

Secondary to that is a supervision – well, not secondary, but in addition to a continuing detention order is a supervision order, and your Honours will see that subsection (1) provides that is an order:

in relation to an offender –

that the offender:

is to be subject to stated conditions that the court considers appropriate, in accordance with section 30.

Section 30, your Honours, has, in effect, two principal provisions.  The first of them is subsection (2), and they are – so your Honours will see, these are mandatory conditions:

A supervision order in relation to an offender must require that the offender –

do the matters that are set out in (a) through to (g), one of those being (f), that is, that it must require that the offender:

not commit a serious offence during the period of the order –

We will come to – I will come to explain what significance we attach to that in due course, but they are, as it were, the mandatory conditions, and they, your Honours, are defined as the standard conditions.  So again, if your Honours turn back to section 3, the definition provision, there is a definition there of “standard condition”, and the standard conditions are those that are provided for in section 30(2), that is, the mandatory conditions.

In addition to those, your Honours, there are further discretionary orders that might be made, principal amongst those – principal, central, is subsection (5), so:

A supervision order may contain any other terms that the court thinks appropriate –

(a)to ensure adequate protection of the community –

So again, that gives rise to an understanding of the object or purpose of the legislation, which is protection of the community.  Further, that conditions may be imposed:

for the rehabilitation, care or treatment of the offender –

So these are where a person is not in detention, and:

to ensure adequate protection of victims of serious offences committed by the offender subject to the order.

Your Honours, if I could – so, in effect, that gives a wide scope to orders that can be made by a judge exercising power under this provision to make a supervision order.  Your Honours will also see that subsection (3) provides another discretionary, or a discretion for an order to be made by the judge exercising this power and there are – and again, it may not surprise your Honours that there are, in relation to – well, there were, in relation to supervision orders that were made under the previous Act, and, can I say, your Honours, I think it is uncontroversial that since the enactment of this legislation the overwhelming majority of those who have come before the court in relation to orders have been serving sentences of imprisonment in relation to sexual offences, and in relation to those offenders who are released, or who are subject to supervision orders, there are, as it were, a fairly standard set of orders that are imposed in relation to those offenders who are the subject of those supervision orders.

Section 30 deals with the circumstances or the conditions that could be imposed on a supervision order.  In relation to a continuing detention order, they are simply confined, and confined in prison.  Could I ask your Honours then – so they are the two types of orders that can be made under the legislation – can I ask your Honours then to turn, please, to section 11, just to explain to your Honours how proceedings for the making of either a supervision order or a continuing detention order are commenced.  Your Honours will see in section 11 that:

The Attorney-General may make applications under this Act, and take other proceedings -

They can also be advanced on behalf of the Attorney‑General by the Director of Public Prosecutions or by the State Solicitor.  Your Honour’s will see that in subsections (2) and (3).  So, that is how the process to commence an application for one of these orders is made.  It is made by the Attorney‑General, represented either by the DPP or the State Solicitor’s Office. 

Could I ask your Honours then please to turn to section 35, so your Honours will see that this is the provision that empowers the making of the application:

The State may apply to the Supreme Court for a restriction order –

So that includes both:

in relation to a serious offender custodial sentence -

That is a defined term, your Honours, that can be seen in section 3, which essentially means a person who is in custody for a serious offence and who is:

not a serious offender under restriction.

So, a serious offender under restriction is a person who is the subject of a restriction order.  This provision is the provision that enlivened the power to make the application in this matter because Mr Garlett was a serious offender under a custodial sentence and he was not a serious offender under restriction.  Your Honours will see in subsection (4), that in the making of such applications it is not necessary for the applicant to:

specify whether the restriction order sought is a continuing detention order or a supervision order –

and, again, in the ordinary course your Honour there is a simple application seeking…..  Could I ask your Honours then, please, to turn to section 43 ‑ ‑ ‑

EDELMAN J:   Just before we do, Mr Donaldson, and I do not want to take you out of order, but are you going to deal at any point with whether supervision orders and custodial orders are severable or does your application - the question you are seeking this Court to answer in the same terms that Justice Corboy was addressing one that is concerned with both?

MR DONALDSON:   I was going to address your Honours in relation to severance by simply saying this.  In relation to this matter being the circumstances of the serious offence here and having regard to the manner in which the Act in fact operates, it is not possible to sever a continuing detention order from a supervision order.  That is the validity of the Act cannot be upheld, in our submission, by severing from the process provided for in the Act in relation to this offender in relation to the offence of robbery, the possibility of continued detention ‑ ‑ ‑ 

EDELMAN J:   So, if item 34 is invalid in respect of continuing detention orders, your submission is it must therefore also be invalid in relation to supervision orders because they are inseparable. 

MR DONALDSON:   It must be invalid also, your Honour, because they cannot sensibly be severed because of the manner in which the Act operates.  I will come to say, your Honours, during the course of submissions that of course an alternative and equally efficacious means of effecting the objects of this legislation in relation to this offence may be for there to simply be a supervision order regime.  But – and your Honours will have seen that from the submissions, the submissions deal with detention.  But there cannot be a severance to uphold the validity of the legislation in relation to those orders, your Honours, without – to maintain supervision orders, your Honours – because the two processes are so inexplicably intertwined. 

GORDON J:   Is that because of the interaction of 29 and 48?

MR DONALDSON:   Partly, your Honour, which I have not yet taken your Honour to, but yes ‑ ‑ ‑

GORDON J:   I do not mean to take you out of – is that ‑ ‑ ‑

MR DONALDSON:   No, no, not at all, your Honour, but it is partly for that reason, that is, that the matter that will be going before the Supreme Court on Monday, as it were, for the final determination of the orders – next Monday – in this matter.  There is an application for both, a continuing detention order and a supervision order and, in effect, there always is because of the provision in subsection ‑ ‑ ‑

GORDON J:   It is because of 35(1) and then the interaction, as I understand it, between 29 and 48.

MR DONALDSON:   Yes, and the troublesome 7, which we will come to in due course, your Honour.  So, your Honours, that was section 35.  Could I just explain to your Honours – and hopefully to save your Honours from working this out by looking at the legislation yourselves – the processes which are followed in giving effect to an application.  As a matter of practice, there is a list in Western Australia where matters are set down for a fixing of the date for a preliminary hearing, and this is in section 43.  So your Honours will see in subsection (1):

After a restriction order application is made, the court must fix a day for the matter to come before the court for a preliminary hearing.

So what happens in practice is there is a list which is maintained, where the judge controlling that list sets the dates for preliminary hearings, and it was the preliminary hearing that was before Justice Corboy.  So Justice Corboy on the day that he dealt with the challenge of the validity of the Act also was undertaking the preliminary hearing in relation to this matter.

Your Honours, there are various provisions of the Act that I do not need to take your Honours to in detail, which deal with the papers that need to be filed beforehand.  Your Honours will look at section 39 and the like in due course.  Sections 44 and 45 deal with the opportunity of the subject of the application to put on evidence as well.  Section 46, your Honours, deals with the preliminary hearing.  Your Honours will see in subsection (1) that:

The main purpose of the preliminary hearing is to decide whether the court is satisfied that there are reasonable grounds for believing that the court might, in accordance with section 7, find that the offender is a high risk serious offender.

If the court is satisfied –

f that “the court” – and here is a mandatory obligation:

the court must order that the offender undergo examination by a psychiatrist and a qualified psychologist for the purpose of preparing reports in accordance with section 74 –

Just pausing there to note that that is a mandatory process that occurs plainly whether or not there might be rationally thought to be any underlying psychological or psychiatric basis for the offending.

GORDON J:   Do you propose to take us to section 41 about the offender’s duty of disclosure?

MR DONALDSON:   I was not going to, your Honour, but there is that duty.

GORDON J:   So these are criminal proceedings under this Act, that is how they are described in this Act, and then this section 41 is a requirement before the preliminary hearing that there be disclosure - am I right to read it that way - by the offender?

MR DONALDSON:   Yes, your Honour is right to read it in that way.  Whether others would describe the process under this Act as a criminal proceeding is neither here nor there, your Honour, but your Honour is quite right to say that there are, again, obligations.

GORDON J:   That is a continuous disclosure obligation under subsection (2)?

MR DONALDSON:   Yes, quite so.  So it is in that sense, your Honour, unlike, of course, a regular criminal proceeding.  Your Honours, I will take you to other provisions of the Act which show that the processes that are undertaken in the various processes of this Act are far removed from any sort of criminal trial.  Perhaps the most obvious of them, your Honour, is of course in a criminal trial when a court determines or makes findings of fact in relation to matters the subject of past conduct and those facts are material to the charge, those facts must be proved beyond reasonable doubt. 

But under this Act, and under equivalent Acts - Fardon was the same - when the Court comes to determine whether serious offences may occur, or are apprehended to occur in the future, there is a lesser standard of proof, and where the consequence of that may be that a person remains in gaol there is a lesser burden of proof there.  So, your Honour, thank you Justice Gordon, yes, there is that provision in relation to continuous disclosure, which is unusual. 

Section 46, your Honours, I was dealing with the preliminary hearing, and so in subsection (2)(a) there is a requirement for the court to order that a person undergo psychiatric - review by a psychologist for the purpose of those reports.  Your Honours will see in (b) that:

the court may, on the application of the State or of the offender, order that a person or body named by the court prepare a report in accordance with section 75 –

I will take your Honours to sections 74 and 75 in a moment.  If I could ask your Honours to look at (c), your Honours will see that there is a process which was effected in this case that:

if the offender is in custody and might otherwise be released from custody before the restriction order application is finally decided –

then the offender can be:

detained in custody for the period stated in the order –

That is what has happened to the applicant, or the appellant in this case, and so he has been detained in custody since a date in October of last year, which was when his sentence expired - I think it was 21 October.  It is in the papers in any event, your Honour.  So that was the power that was exercised there.  Section 46 refers to sections 74 and 75.  Could I ask your Honours to turn to those sections and 74 provides a qualified expert – so that is a defined term, your Honour, and basically means a psychiatrist or a psychologist:

A qualified expert providing a report in relation to a subject under this section must –

(a)examine the subject; and

(b)prepare an independent report.

So this is a requirement for a compulsory examination of the subject of an order by a psychologist and/or a psychiatrist, and then, subsection (2):

The report must indicate –

(a)the reporter’s assessment of the level of the risk that, without a restriction order, the subject will commit a serious offence –

and that is a part of section 7 that I will take your Honours to, and:

(b)the reasons for the reporter’s assessment.

In subsection (4):

The reporter must prepare the report even if the subject does not cooperate, or does not cooperate fully, in the examination.

So in relation to a person in custody, what doubtless practically happens is that a psychiatrist and/or psychologist turns up to the prison, prisoner is brought to them for the purposes of assessment, they are not compelled, as it were, to co‑operate, but they can be compelled to be present and to be examined and, in the event that they do not co‑operate, that can be the subject of noting, no doubt, by the qualified expert. 

Again, perhaps following on from the earlier question from Justice Gordon, that is rather an unusual process, certainly compared to the manner in which trials for criminal guilt normally occur.  Section 75 deals with other reports, the preparation of other reports, and again it is similar, so:

A person or body providing a report in relation to a subject under this section must –

(a)examine the subject, if in the reporter’s opinion examination is necessary or desirable having regard to the questions and topics to be addressed in the report; and

(b)prepare an independent report.

Now, your Honours will recall from section 46 that the report under section 75 is discretionary in the sense that that further report is a matter for the judge to determine at the preliminary hearing.  So:

the court may, on the application of the State or of the offender, order that a person . . . prepare a report –

So, if there is an application made by the State to which the court accedes, one then goes to section 75 – and again, there is a provision there requiring for the examiner – or the expert – to examine the subject if thought necessary for the preparation of the report.  Your Honours will see subsection (4) in 75, which has the same effect as subsection (4) in section 74.

If I could then ask your Honours to turn back to section 48.  This – having moved then from the preliminary hearing, and what happens between the preliminary hearing and the final hearing – section 48 deals with the actual hearing.  So, in 48(1):

If the court hearing a restriction order application finds that the offender is a high risk serious offender –

that is section 7:

the court must –

So, this is mandatory order – but I will come to deal with the discretion which is embedded in the court in the definition of “high risk serious offender”, but if the court hearing the restriction order makes the finding in section 7, the court must:

(a)make a continuing detention order in relation to the offender; or

(b)except as provided in section 29, make a supervision order in relation to the offender.

I will go to section 29 presently if I might.  Then in subsection (2) of 48:

In deciding whether to make an order under subsection (1)(a) or (b), the paramount consideration is to be the need to ensure adequate protection of the community.

So that provision, your Honours, rather enhances that the purpose of this legislative scheme is protective of the community rather than might be thought some rehabilitative process in relation to offenders and again - - -

EDELMAN J:   Mr Donaldson, what does “paramount” mean? It would suggest, would it not, there are other considerations.

MR DONALDSON:   Yes, to which - - -

EDELMAN J:   What are they?

MR DONALDSON:   Sorry, your Honour, I did not mean to speak over your Honour, but “paramount” must mean in that circumstance that this – to the extent that anything is inconsistent with this consideration this consideration prevails.

EDELMAN J:   But what other considerations does the Act contemplate?

MR DONALDSON:   Looking at the objects of the Act, your Honour, in section 8, where the object in section (b), if it could be thought that an object of the Act is:

to provide for . . . treatment of high risk serious offenders -

if that were to be thought a relevant consideration, but was inconsistent with an order being made for the adequate protection of the community, then the order that best responds to protection of the community is the order that is made.  But if I can perhaps answer it this way, as well, your Honour, why a word like “paramount” might be used in there is really a matter for the drafter, but what I had put to your Honour Justice Edelman, I think, stresses that when one comes to consider the object of what is sought to be achieved by this legislation, the paramount object is adequate protection of the community - - -

GLEESON J:   As opposed to the best interests of the offender.

MR DONALDSON:   Sorry, your Honour, I am just struggling to hear, your Honour - - -

GORDON J:   I am sorry.  As opposed to what is in the interest of the offender.

MR DONALDSON:   Yes.

EDELMAN J:   The difficulty that I am having – you can probably deal with this later if this suits you, but is understanding how, given that there is no discretion to make the order under section 48(1) if the requirements of a high risk serious offender in subsection (7) are met, how there can be any other considerations other than adequate protection of the community when section 7(1) only refers to the necessity to ensure adequate protection of the community.

MR DONALDSON:   Yes, well I am not disagreeing with your Honour, that is, it is difficult to conceive of what circumstance would fall within any other consideration having regard, really – the practical operation of this subsection, but also subsection (7). 

KIEFEL CJ:   Mr Donaldson, section 48 (1) gives an alternative choice about which restrictive order to place.  Does not subsection (2), by reference to paramount consideration draw attention to the object of the Act, or an object of the Act, in the same that under family law provisions reference is made to the paramount consideration of the interests of the child.  It is a method of drawing attention to what is supposed to guide the choice. 

MR DONALDSON:   Yes, and, your Honour, the choice being between making a detention order or a ‑ ‑ ‑ 

KIEFEL CJ:   Supervision order.

GAGELER J:   The reference to the community is interesting to me.  I see it is defined in section 4 ‑ ‑ ‑ 

MR DONALDSON:   I was just about to take your Honours to that.

GAGELER J:   Does it mean people – is that what it means?

MR DONALDSON:   Well, the State is going to make a submission to your Honours that proper construction of this provision means – as I understand it – the community of Western Australia.

GORDON J:   It does not say that, does it?

MR DONALDSON:   No, it says the exact opposite of that, actually.  But I am just foreshadowing, no doubt, what your Honours will be interested to hear from the Solicitor.  But section 4 is an oddity in this odd Act.  So:

A reference in this Act to the community includes any community and is not limited to the community of Western Australia or Australia.

So, when we come to see how section 7 operates, which is really the integer upon which everything else flows, one has to have regard not only to what effect – or presumably one has to have regard, or the court has to have regard – not only of what a person released on the supervision order might do in the community of Western Australia or Australia, but let us say if they were to be deported on character grounds somewhere else, what they might be doing there.  I do not know. 

As your Honours are aware, the Parliament of Western Australian has legislative power to legislate extraterritorially and that, on a plain reading of it, your Honours, seems to refer precisely to that.  So, when one comes to look at the task that confronts the court under section 7, having regard to that definition, it is an interesting task ‑ ‑ ‑ 

GAGELER J:   I suppose my question is, are we talking about protecting people from some sort of harm or are we talking about protecting the polity from something? 

MR DONALDSON:   I think it is both, your Honour, that would be encompassed by the word “community”. 

KIEFEL CJ:   How can you protect a polity from a person’s conduct?

MR DONALDSON:   Well, one way it could be protected – and if it is the polity, it depends a bit on what one means by polity – but if it is, say, the community of Australia from the existential threat of terrorism, for instance, one means by which this Court has held the polity can be protected is by detaining a person. 

EDELMAN J:   But that would also be to protect people from harm.

MR DONALDSON:   Yes.  I am not saying it is one or the other, your Honour, but that may be a circumstance in which the meaning of “community” could mean something in addition to individual persons or groups within society.  There are some offences which are gravely – or which go essentially and gravely to the existence of the community - the polity as a community. 

GLEESON J:   Section 8 (a) suggests that there is a broader consideration in community than victims of serious offences.

MR DONALDSON:   Yes, well, one assumes that the victims of serious offences would be members of the community, particularly having regard to the definition of “community”, but, yes, and again whether it is past victims or future victims is another matter.  But I am not sure that that adds a huge amount to an understanding of the object of the Act, your Honour.  But, of course, your Honour is quite right.  I am not sure that the further words in subsection (a) give any greater understanding as to what section 4 might be intended to do.

Your Honours, I was at section 48 and I was going to deal with this community issue at some stage, or the definition of “community” and I have taken your Honours to that.  Section 48 in subsection (1)(b) is conditioned by section 29, and I will take your Honours to that presently.  But if your Honours could perhaps keep section 48 – a finger on section 48 as well.  So, the scheme of 48(1) is that the court will order “continuing detention” or a “supervision order”, but effectively it can only make a supervision order if the circumstances of section 29 are not applicable.  So, section 29, your Honours, provides that:

A court cannot make . . . a supervision order in relation to an offender unless it is satisfied, on the balance of probabilities, that the offender will substantially comply with the standard conditions of the order as made, affirmed or amended.

So a court cannot make a supervision order unless it is satisfied ‑ with the onus in subsection (2) on the offender – that the offender would substantially comply with the standard conditions.  They are the conditions in section 30(2) and, of course, the provision of 29 refers to substantial compliance and that makes some sense in relation to some of the matters in 30(2) but not all.

So, one could understand, your Honours, the court wanting to be satisfied prior to making a supervision order as opposed to a detention order that the person would substantially comply with a condition to report to a community corrections officer at designated times and places, and perhaps, your Honours, in relation to each of (a), (b), (c), (d) and (e) – although substantial compliance with not leaving might be thought to be odd, but when one gets to (f), so a supervision order can only be made if the offender, or the subject of the application, can prove on the balance of probabilities that he or she will not commit a serious offence during the period of the order.  Now, in regard to:

not commit a serious offence during the period of the order –

that must mean any serious offence during the period of the order.  One rather asks, rhetorically, when one goes to look at the definitions of “serious offences”, which I will take your Honours to in a moment, there are many such serious offences there provided for in the schedule, and the offender has an onus of proving that he will not commit any of them during the period of the order.

GORDON J:   Is your argument then that in order for somebody to meet an application for a restriction order they must necessarily prove that in 48(2)?  In other words, as I read it – as I understand the argument, under 48(1) the court must make one ‑ ‑ ‑

MR DONALDSON:   One or other.

GORDON J:   ‑ ‑ ‑ or the other of them, and in order to meet it in its entirety one would have to have the offender, in effect, establishing subsection (b) was not met, i.e. they could meet the condition imposed.  Is that right?  In circumstances where, under the continuing detention order, the onus is on the Crown on the lower standard, I accept, and then under (b) for the supervision order the onus is on the offender.

MR DONALDSON:   I think it works this way, your Honour.  A supervision order cannot be made except in the conditions of section 29.  So you go to section 29:

A court cannot make . . . a supervision order . . . unless it is satisfied ‑ ‑ ‑ 

of the following ‑ ‑ ‑ 

STEWARD J:   Does that mean that it might be practically impossible for a supervision order to ever be made, because if you can satisfy a court that you are not going to commit a serious offence how do you then satisfy, practically, the definition of “high risk serious offender”?

MR DONALDSON:   Yes, well, I think that – I think it is the likely consequence of this.

STEWARD J:   All right.

MR DONALDSON:   That is, this is a one‑way street to detention.  That arises because of the operation of section 48 and section 29, I think.  Anyway, section 48 and the entire scheme of the Act, your Honours, hinges on the notion of a high‑risk serious offender, and that is in section 7 of the Act.  So in subsection (1):

An offender is a high risk –

Sorry, could I just pause there to again clarify that section 48 imposes a mandatory obligation on the court to order one or other, if the person is found to be a high‑risk serious offender, so:

An offender is a high risk serious offender if the court dealing with an application under this Act finds that it is satisfied –

Anyway, it is probably nothing more than poor drafting, but anyway, it finds:

by acceptable and cogent evidence and to a high degree of probability, that it is necessary to make a restriction order in relation to the offender to ensure adequate protection of the community against an un unacceptable risk that the offender will commit a serious offence.

Now, again, embedded within this is the term “community”, which is defined and also, your Honours, “serious offence”, so “serious offence” is also a defined term – I will come back to address your Honours on how it might be thought section 7(1) actually operates, but if I could just deal with the definitions.  “Serious offence” is defined in section 5, your Honours, and in effect it is the material in the, or the offences in the schedule and the schedule, your Honours, for those who are working off the bundle, is at page 184 of volume 1.

Can I just make these observations in relation to the schedule.  If your Honours turn to item 34 of the schedule, that is, of course, the offence with which the appellant has been convicted, but when one looks at the other serious offences, and not a huge amount turns on this, but could I make these observations to your Honours about it.  Other than the arson offence, which is item 1 in Subdivision 1, all the rest of – so the offences in Subdivision 2, in Subdivision 3 up to item 8 in Subdivision 3 are all, I would describe as sexual offences.

Similarly, in that subdivision, items 16 through to 29 are also sexual offences of various types.  Also, Subdivision 4, your Honours, they are all sexual offences, what might be broadly referred to as sexual offences, and likewise, your Honour, is Subdivision 2, in a broad sense, offences under the Prostitution Act.

The other offences other than sex offences, your Honours, are, in the first subdivision, lighting or attempting to light a fire likely to injure.  That is a provision under the Bushfires Act in Western Australia.  Again, your Honours may be back one day with somebody who has been convicted of that.  Then, item 9 of Subdivision 3, your Honours, deals with murder. 

Can I just pause there and make this observation, your Honours – again, it is really just an observation as to how this Act practically operates.  In Western Australia, conviction of murder carries a mandatory life sentence with a non‑parole period which is set.  So, this provision could operate in this way – mandatory life sentence is the verdict; there is a non‑parole sentence of 30 years, say; prisoner is released on parole after 30 years.  There would then be an application made under this Act for that person to be in detention – or their detention to continue – even if they have been the subject of parole. 

So, essentially it provides in relation to murder in every case an additional means by which the State can seek to incarcerate persons who have been convicted of offences even if they have been paroled.

KIEFEL CJ:   Mr Donaldson, are there any extrinsic materials which deal with the choice of the offences that explain them? 

MR DONALDSON:   No, your Honours, and we looked at it obviously.

KIEFEL CJ:   Yes.

MR DONALDSON:   There is not much - there is nothing that would give any assistance to your Honours.  What may be of assistance is to compare the schedule with the previous legislation.  We have done that exercise, your Honour, but, essentially, the sexual offences that are in this schedule were the matters which were the subject of the previous Act which was repealed. 

As your Honours know from the naming of the Act, this Act has only been in operation for a relatively short period.  There are transitional provisions, of course, but prior to that they were all dangerous sexual offenders.  But no, your Honour, there is nothing that will assist the Court in seeking to understand any principal basis upon which the various offences that are set out – other than the sexual offences – are in this schedule.

Then, your Honours, I have referred your Honours to the murder provision but, again, your Honours, the non‑sexual offence provisions – within the definition of “serious offences” are essentially the old capital offences of murder, manslaughter.  There is assault causing death, attempted murder basically, acts intended to cause grievous bodily harm, GBH itself.  Then, over in the schedule – and item 15 is – I am not sure how practically that is much different to 294, but the other matters, your Honours, are kidnapping, deprivation of liberty, stalking, child stealing, this offence of robbery, assault with intent to rob and, again, another fire‑lighting offence which is the final provision there.

The other matter, your Honours - there is another fire offence which your Honours will see over the page in Division 2 of the schedule. Section 444 of the Criminal Code is criminal damage where the criminal damage is by fire.  The only other matter in the schedule, your Honours, is dangerous driving causing death or grievous bodily harm.  So, under this legislation, your Honours, a person can be kept in custody, subject to a detention order, if they have been convicted of dangerous driving causing grievous bodily harm.

In fact, as I will come to explain when dealing with section 7, a person can be kept in custody after they have served their sentence – even if they are not inside for dangerous driving causing grievous bodily harm, they may be inside for a sexual offence.  But if it is thought that this person is released – they are a bad driver, they might go out and commit dangerous driving causing GBH, and that would give rise to the operation of section 7 ‑ ‑ ‑ 

KIEFEL CJ:   In practical terms much turns on the fidelity to the object of the Act, does it not, by the judge hearing the matter, in this sense, Mr Donaldson, that it would not be thought usual if a person was convicted of one offence of dangerous driving that they could be said to be – that their continued detention could be said to be necessary for the protection of the community. 

The reference to the offences read with the provisions for restriction orders must contemplate that there be conduct, if not continuing conduct of such a – probably continuing or multiple instances of conduct to cause a particular risk.  It could not surely be said to be capable of applying to a person convicted of a single offence.  I am putting aside that there could be rare cases of the most amazing conduct, but in general terms – in practical terms – one would expect there to be multiple offences. 

MR DONALDSON:   I was just about to say to your Honour that I think there is a practical answer to that which is what your Honour has said.  Briefly, your Honour, as a matter of how the Act can operate there would be no reason ‑ ‑ ‑

KIEFEL CJ:   That is why I said it is the object – the question of what its true object is and whether that is attained by the legislative means is really the key to it. 

MR DONALDSON:   Yes, well it is certainly – as I will come to address your Honours in a moment, the object of the Act here, and what appears to be the object of the Act in relation to – or the object of the Act stated to be adequate protection of the community, that object could be facilitated, logically, by a single instance of a person being convicted of dangerous driving, causing grievous bodily harm, to be thought to be a risk of setting off a bushfire in Estonia, if they were to be released. 

Now, that might be thought not to be a particularly practical or inevitable consequence, your Honour, but this Act could have been drafted so as to ensure that what your Honours describe as its practical operation is its only operation.

GORDON J:   In the second reading speech, as I recall it, it said something like, it was intended to include offenders who commit serious offences and who present an unacceptable risk of reoffending in a like manner.  That would seem to suggest a follow on from the question from the Chief Justice – some limitation upon the extent to which one looks at this very long list of offences.  Do you ‑ ‑ 

MR DONALDSON:   Well, it would if it were in the Act, your Honour. 

GORDON J:   That is why I am asking; do you accept that that is what the Act has done, that is, it has limited to reoffending in a like manner? 

MR DONALDSON:   No, it is not what it does.  It might have been the aspiration, but it is not what it does, and that does not determine the object of it, your Honour, nor does it determine its operation.  Again, as a practical matter one would have thought that when one comes to look at section 7, were a judge to have the unlikely circumstance put before them, a judge might not be satisfied of various things that are required there.

But, again, your Honours – what is, if I can use a technical term – really a dogs breakfast of legislation, could have been dealt with in a more sophisticated and sensible way, whereas particular offences may have had a particular regime which applied to them, and it was not the commission of any serious offence but a serious offence of the type of which the subject of the application has previously been convicted.  But that is not what it does. 

There could also have been separate regimes in relation to separate offences that provided only for supervision orders as opposed to detention orders, but that is not what the Act does, and in fact, the Act, in its practical operation, as I was submitting to Justice Steward, it seems very difficult to see how anybody is ever going to be the subject of a supervision order under this Act, having regard to section 29. 

But no doubt, your Honours, the way in which applications will be brought, they being entirely in the discretion of the Executive Government, will likely be in relation to people, I suppose, such as the appellant, where he does have a history of committing a particular kind of offence.

EDELMAN J:   Mr Donaldson, can I ask you, just in relation to this submission, if this is the reason why the orders that you seek are framed in the particular way that they are because order (c), the declaration that you seek, is not an order that item 34 is invalid, but it is an order that item 34 is only invalid in respect of part of its operation.  Is that because your submissions are only concerned with that part of the operation of section 34 that involves a serious offender under a custodial sentence who has been convicted of robbery, and not concerned with, for example, somebody who has been convicted of some other offence and might then be the subject of a continuing detention order or a supervision order because of the expected possibility of a robbery?

MR DONALDSON:   Yes, your Honour.  Perhaps, if I could answer your Honour’s question in this way, that the order that is sought in (c) is posed in the way, or is drafted in the way that it is because it applies specifically to the appellant who might otherwise not be thought to have standing to bring on an application, and also on an apprehension, your Honour, that the concern that will be raised at the final hearing is as to a propensity to commit further armed robberies, rather than any other sort of offence.

EDELMAN J:   Your case, then, is that if the appellant were convicted of any other offence, any other item in the schedule, then a propensity to commit further robberies would not be an area where the Act is invalid.

MR DONALDSON:   Well, I regret to say I am not sure that I understand your Honour’s question, but ‑ ‑ ‑ 

EDELMAN J:   Well, the declaration you are seeking is only a declaration so far as it applies to a serious offender who has been convicted of the offence of robbery.

MR DONALDSON:   Yes.

EDELMAN J:   The submission that I understood you to have been making is that the continuing detention order, or a supervision order, can be imposed in relation to offences other than those for which a person has been convicted.  So a person gets convicted of manslaughter, and there might be, in the words of section 7, “a high degree of probability” that, in order to ensure the adequate protection of the community, the person needs to be deprived of liberty to prevent robberies, or to prevent child stealing, or stalking, or some other offence.  But the declaration that you are seeking only concerns those persons who are convicted of robbery, not those persons who are convicted of any other offence with the possibility that robbery is the reason why they are going to be detained or subject to a supervision order.

MR DONALDSON:   We do not seek that order - we do not seek that second declaration, your Honour, but we would say that the Act would be invalid to the extent that that was what occurred.

EDELMAN J:   If that is the case, then really the order you are seeking is just to say that item 34 is invalid.  It is not that item 34 is not valid only in that part of its operation that concerns those particular offenders who had been under a custodial sentence for robbery.

MR DONALDSON:   Yes.  Could I perhaps do this, your Honour – reflect on what your Honour has said in relation to that and perhaps come back, because I will be going – I will be back on for a brief period tomorrow morning, and perhaps reflect on whether the declaration that we seek might be – or we might seek a further or an amended declaration.

But the point which your Honour makes is correct in this sense.  We ultimately say this, your Honours, that where a person has been convicted of robbery and where the apprehension is – and the basis upon which a detention order, or an order, is sought is that he has a propensity to rob and is a possibility of committing that offence ‑ it is to confer on a court the discretion under section – or involving the section 7 matter – invokes the Kable doctrine, and we say that, your Honours, because there are alternative means by which the community can be protected generally but more specifically from that harm than incarceration.  But perhaps I will come to that in due course.

EDELMAN J:   Just to be perfectly clear, as I presently understand the order that you are seeking, it would leave open the possibility that a restriction order could still be sought against your client on exactly the same basis – for future apprehended robberies and so on – but not for the offence of robbery but for some prior past offence that had been committed, other than robbery provided it falls within the schedule.

MR DONALDSON:   I understand what your Honour is saying.

KIEFEL CJ:   Just so I am clear about this, is part of your submission, Mr Donaldson, that section 7 could rationally be applied by a judge to make a restriction order based upon a history of robberies but with the possibility of an apprehension that they might – the person might commit an offence of a totally different kind?  I am talking about whether that is rationally and logically possible.

MR DONALDSON:   Yes.  As it is constructed, your Honour, it is rationally possible.

KIEFEL CJ:   But I am talking about not just how one reads the words of section 7(1) on their own, but in relation to the practical operation of the Act and how a judge has to apply protection of the community and what that would involve in relation to whether or not the apprehended – there was any basis for the apprehended offence.  How could it possibly be rational to say that the concern was that a serious offence of the kind of lighting fires could be based upon a person’s history of robbery?

MR DONALDSON:   The only reason why I am being a little coy, if I could put it that way, is because there may be a most unlikely circumstance ‑ most unlikely circumstance ‑ where a person is inside, for instance, for an armed robbery but during the course of the compelled psychiatric examination it is determined that although this person has not committed fire lighting offences in the past, the person actually is psychiatrically predisposed to impulsive behaviour which may manifest itself in lighting fires.  It is just logically possible in the way that the Act operates.  But, again, your Honours, I think – and I am simply doing that – I have been making that submission really to ‑ ‑ ‑

KIEFEL CJ:   Yes, I see.

EDELMAN J:   It is more than logically possible, it is your client’s circumstances, is it not?  I mean, if you are right and you get the declaration that you seek, there is nothing to prevent the State, is there not, from saying, well, your client has committed other offences.  He still has this propensity to commit robbery based upon exactly the same circumstances, although item 34 is invalid to the extent that they rely upon robbery itself, but they can rely upon another offence in the same way you have been putting your submission and then say, well, the propensity is a propensity in relation to robbery.

MR DONALDSON:   Yes, and that is why I am reflecting on what your Honour said to me earlier.  But could I also say to your Honour the Chief Justice and to your Honours, no doubt the practical operation of this legislation is that it is the offences for which the person is in custody and has been in custody that give rise to the operation of section 7, and that is it is the fear of committing those types of offences in the future. 

KIEFEL CJ:   But you say that that object has not been achieved by the mechanisms and the definition? 

MR DONALDSON:   Well, it might have been achieved, but more has been achieved. 

KIEFEL CJ:   I see.  So, a bit of overreach.

MR DONALDSON:   Yes.

KIEFEL CJ:   When we say practical operation, we are talking about what restrictions are placed upon a judge by the sections and what a judge must do under the Act.

MR DONALDSON:   Yes, and of course a judge will only deal with the material that is put before the court.

KIEFEL CJ:   Yes, quite.

MR DONALDSON:   No doubt – and the appellant will be or is in this position, it is his prior offending in relation to robbery offences that is the subject of evidence that will go before the judge for the judge to go through the exercise that is required by section 7, having regard to the objects of the Act.

GLEESON J:   Just before that, Mr Donaldson, at the preliminary hearing stage, is it right to think that the judge has to make a decision about the scope of the risk assessment to be done by the psychiatrist and the qualified psychologist which might involve identifying which of the serious offences in the schedule should be the subject of the risk assessment? 

MR DONALDSON:   Your Honour is quite right that it might.  As to whether that sort of thing practically happens, your Honour, I just do not know, with respect, particularly in relation to those who are not sexual offenders.  In relation to sexual offenders, your Honour, there is a process in all of this sort of legislation that is gone through in relation to psychiatric and psychological assessment.  But how a psychiatric or psychological propensity to rob in the future is determined as a matter of psychiatry or psychology will ‑ ‑ ‑ 

KIEFEL CJ:   It might have regard to drug use.

MR DONALDSON:   It might.  Do not need a psychiatrist ‑ ‑ 

KIEFEL CJ:   Which, as we well know, if quite often associated with robberies and happens to be part of the circumstances of this case. 

MR DONALDSON:   Yes, yes.  It is not obvious you need a psychiatrist for that, your Honour, with respect.

KIEFEL CJ:   Well, addictive behaviour – perhaps you do.

MR DONALDSON:   I am not saying that you could exclude it necessarily ‑ ‑ ‑ 

KIEFEL CJ:   I mean the requirements for a report – there may be issues about the addition of other crimes in addition to the previous regime of sexual offences, but ordinarily the requirement of a psychiatric - or a psychologist’s report is common amongst continuing detention statutory regimes and it probably has its provenance in sentencing where it is also required. 

MR DONALDSON:   Yes, and it may be, your Honour, that it has its provenance in the fact that the prior legislation started off with the Queensland Act that was dealt with in Fardon, which dealt with serious sexual offenders ‑ ‑ ‑

KIEFEL CJ:   Yes, that is right.

MR DONALDSON:   For which there is a well‑understood psychiatric ‑ ‑ 

KIEFEL CJ:   Why a psychiatrist’s report is necessary.

MR DONALDSON:   Psychiatric and psychological association.

KIEFEL CJ:   Yes.

MR DONALDSON:   The legislation that was dealt with in Fardon had a similar‑type provision.  Could I take your Honours to section 7, however?

KIEFEL CJ:   Yes.

MR DONALDSON:   Your Honours might turn up Justice Corboy’s judgment to see how his Honour has interpreted this provision.  So that is in the core appeal book, your Honours, at paragraph 136, which is at page 55 of that bundle.  So, there are, in essence, two ways in which this provision might operate.  The first of them is that the question for the judge is, is it necessary to make a restriction order in relation to the offender to ensure adequate protection of the community against an unacceptable risk that the offender will commit a serious offence.  The adequate protection of the community is, as it were, conditioned by there being an unacceptable risk that the offender will commit a serious offence.

The second way of reading it is – rather deals with the last part first.  This is the manner in which Justice Corboy has construed the provision.  The first question for the court is, is there an unacceptable risk that the offender will commit a serious offence if released and, obviously, if not subject of a restriction.  So, one asks that question first.  If the answer to that is yes, there is an unacceptable risk that the offender will commit a serious offence, then the question is, is it, having regard to that, necessary to make a restriction order in relation to the offender to ensure adequate protection of the community.

Justice Corboy’s construction – which can be seen at paragraph 136 – is of the latter.  Although it is not entirely clear what, in that scheme of things, work is done by the word “against” on the second‑last line, what is explained by his Honour at paragraph 136 is that one starts at the end – ask first, is there an unacceptable risk the offender will commit a serious offence and if there is, is it:

necessary to make a restriction order to adequately protect the community –

One might think that that is the way that it was intended to operate even if not a great deal of work is necessarily done by the word “against”.  As his Honour sets out in his reasons – that is Justice Corboy – there are two evaluative steps in that.  The first is, is there an unacceptable risk that the offender will commit a serious offence and in relation to the – I took your Honours to these provisions before.  The reports that are to be prepared by the experts ask the question – or seek the reporter to make an assessment of the level of risk that, without a restriction order, the subject will commit a serious offence.

So that is, as it were, the second part of the question.  So, there is expert evidence in relation to the risk of reoffending or committing a serious offence and there is expert evidence that is led in relation to that.  Having regard to that expert evidence and whatever other evidence is put before the court, if there is a determination of unacceptable risk, then the court goes on to ask a second question – is it necessary to make a restriction order in relation to the offender to ensure adequate protection of the community.  So, there are two evaluative steps in that. 

The decision as to the exercise of power to determine whether it is necessary to make the order to ensure adequate protection of the community is an evaluative judgment formed, in effect, by the judge without benefit of expert evidence, as it were.

GAGELER J:   So, if the answer at the first step is, yes, there is an unacceptable risk, when would the answer at the second step be, no, it is not necessary to make an order?

MR DONALDSON:   It is more likely, your Honour – in relation to this catalogue of serious offences it may be difficult to think so but, of course, what goes in the list of serious offences can include the whole Criminal Code.  

GORDON J:   Sorry, what did you just say then?  I missed that last bit, Mr Donaldson.

MR DONALDSON:   What goes in the catalogue of “serious offences” could simply be – it could be a schedule that is the whole Criminal Code.

GORDON J:   No, I think the question is more direct.

GAGELER J:   What is the evaluative assessment that goes in at the second step?

MR DONALDSON:   It is the question of whether, accepting that there is an unacceptable risk of commission of a serious offence, a restriction order is necessary – so that is the requirement there, one of necessity in making the order to adequately protect the community.  There may be instances, perhaps not with this schedule of offences, but it is logical, again, that there may be certain offences that are put in a schedule where, even if there is a probability or an unacceptable risk that such a serious offence would be committed, that it was not necessary, thought by a judge in the exercise of power necessary to make a restriction order to ensure adequate protection of the community, because it may be an offence of a type or a nature that is unlikely to give rise to any great impact or effect on the community.

GAGELER J:   Well, look, I will be a bit more specific.  You are concerned with items 34 and 35.

MR DONALDSON:   Yes.

GAGELER J:   So, if step one applied to items 34 and 35, or 35 is yes, there is an unacceptable risk that this offender will commit such an offence – I am struggling to understand when the second step would ever produce a negative answer.

MR DONALDSON:   I am not suggesting that there would be – that there was an obvious circumstance in which a restriction order might not be thought necessary.

KIEFEL CJ:   Do you say, Mr Donaldson, that Justice Corboy’s interpretation, breaking it up into these two evaluative steps, is correct or is there an alternative construction which might be preferable, that it is – that one reads the requirement that to ensure that - to make a restriction order it is necessary that the judge consider that it is necessary to ensure adequate protection of the community against an unacceptable risk that the offender will commit a serious offence as a composite expression?  I just do not know whether you are adopting Justice Corboy’s interpretation as correct, or whether you say that there is another way it should be approached.

MR DONALDSON:   Your Honour, the preferred interpretation, in my submission, is opposite to the interpretation of Justice Corboy.

KIEFEL CJ:   So how do you say it should be read?

MR DONALDSON:   That is, the court considers first, is it necessary to make a restriction order to ensure adequate protection of the community from an unacceptable risk that the offender will commit a serious offence.

KIEFEL CJ:   Well, that is a composite.  You read it as one requirement.

MR DONALDSON:   Yes, and the reason I say ‑ ‑ ‑ 

KIEFEL CJ:   You do not split it up.  Yes.

MR DONALDSON:   Sorry, your Honour.  The reason I say that is the alternative does not - and Justice Corboy’s judgment at paragraph 136 does not deal with the word “against” at all ‑ ‑ ‑ 

KIEFEL CJ:   Yes, I see.

MR DONALDSON:   But it is really that the manner in which his Honour has construed the provision does not leave any work for the word “against” to do, in this formulation.

GORDON J:   Is that construction compelled by section 48(1) as well?  In other words, at the moment we are – we have seemed to split up section 7 from section 48, and I understand why you have done that, Mr Donaldson, I am not being critical, but when one comes to look at section 7, one does not really, cannot really do it without realising it fits in as an element of the section 48 analysis, can you?

MR DONALDSON:   That is right.  I am sorry, your Honour, I was – I agree entirely with what your Honour ‑ ‑ ‑ 

GORDON J:   I am not being critical, I am just ‑ ‑ ‑ 

MR DONALDSON:   No, no, your Honour is quite right.

GORDON J:   It affects the way in which you read section 7, does it not?

MR DONALDSON:   Yes, absolutely.  That is, 7 deals with the first step which is, is it necessary to make a restriction order, and then 48 deals with, well, is it going to be a continuing detention order or is it going to be a supervision order?

KIEFEL CJ:   Well, are you saying section 48 informs the construction of section 7?  I am just not quite sure what you are saying.  Or are you saying that that is what follows after a section 7 determination is made.

MR DONALDSON:   I think it follows, your Honour, because the term in section 7 is, is it necessary to make a restriction order, so that is one or the other.

KIEFEL CJ:   Yes, so, the question posed as to the choice in section 48 has not been reached yet.

MR DONALDSON:   Correct, you are simply asking is it necessary to do one or the other.

KIEFEL CJ:   One or the other.

MR DONALDSON:   Then, when one gets to 48, unless one satisfies the requirements of section 29, it will be a continuing detention order.

KIEFEL CJ:   Yes, I see.

MR DONALDSON:   And that would require a determination in effect by the judge that it is necessary to make a detention order in relation to the offender to ensure – and, on this construction, the words “adequate protection of the community” tend to become something of a – might be thought to be something of a slogan – but it is a necessary to make a detention order to ensure adequate protection of the community from an unacceptable risk that the offender will commit a serious offence.  So, there may be a risk but not an unacceptable risk that he might commit an offence.

So, even though one suspects this was not necessarily intended – because the previous Act did not operate in this way – that is, the previous Act operated in the manner in which Justice Corboy has outlined at 136.  Because of this inclusion – or the way in which it has been done as a composite – because it was split up in the earlier Act – the way it has been done as a composite – and that adequate protection of the community is against effectively the risk of reoffending.  So that is, in our submission, the manner in which the provision operates.

KIEFEL CJ:   While I have you interrupted before you continue, will you be identifying – I could not tell from your outline – whether it is your intention to compare the scheme in Fardon to the scheme here to point out the notable differences – apart from the obvious, of course, which is that there is a more extensive serious offence provision than Fardon dealt with, but I mean in terms of the mechanics of how it operates?

MR DONALDSON:   Yes.  I am sorry if it was not clear from the outline, your Honour, but I was going to take your Honours to Fardon in some detail.

KIEFEL CJ:   Yes.

MR DONALDSON:   There are obvious similarities between the way in which the legislation operates, other than Fardon being limited to sexual offences.

KIEFEL CJ:   Yes.

MR DONALDSON:   There are obvious similarities in the way that the provisions operate, your Honours, but I was going to go to Fardon when dealing with that.

KIEFEL CJ:   In due course then.

MR DONALDSON:   Thank you, your Honour.  And the reason for dealing – and I will be dealing with Fardon and Benbrika in some detail – and the reason for that, your Honours, is because in fact it is put against us in this matter by the respondent and all of the interveners – well, all the State interveners – that Fardon and Benbrika foreclose any contention as to the invalidity.

KIEFEL CJ:   Yes, I understand that.

MR DONALDSON:   So, your Honour, that is how we understand section 7 to operate.  Your Honours will see, 7(1), 7(2) is that there is an onus on the State, 7(3) requires the court have regard the reports under section 74 and other material – and some of these matters, your Honours, will be on the record, so for instance – and again information on whether or not the offender has a propensity to commit serious offences in the future.

Now, in a sense, that does not really make any great sense unless we are talking about offences of the type for which the applicant has been incarcerated, and whether there is any pattern of offending behaviour – I suppose that might be broader than that – and rehabilitation programs and the like, and then the matter to which the court has regard.  So in considering subsection (1), the court must have regard to ‑ in (3)(h):

the risk that, if the offender were not subject to a restriction order, the offender would commit a serious offence ‑

And again, how that actually operates separately from the notion of there being an unacceptable risk that the offender will commit a serious offence is ‑ how it is separate from that requirement of 7(1) is a little bit difficult to understand.  And then (i):

the need to protect members of the community from that risk ‑

It may be, your Honours, that (h) and (i), read together, rather point to the construction of 7(1) that I have preferred, being the correct construction – although it is not decisive, we would accept, but it might be thought to have effect.

So, your Honours, I will be coming back to section 7 on one or two occasions later on, but could I ask your Honours – again if I might traipse through the Act – to turn then to section 64.  I can deal with this quickly, your Honours, because when we go to cases, it is relevant to the determination of whether the power being exercised is judicial or whether anything in this process attracts the Kable doctrine to note that the terms of incarceration or the detention are subject to periodic review, so in section 4 there is a review after one year, and then, after that, if the person remains in custody, there is a review every two years thereafter, or no longer than two years thereafter.

And in 65, there is a process by which the person the subject of such an order can bring on an application there, for its revocation.  And in 69, your Honours, this is the appeal provision – this is an odd provision – but:

Except as provided in subsection (3), the State or a person in relation to whom the court makes a decision under this Act may appeal to the Court of Appeal against the decision.

And then there are various matters where an appeal right does not lie, and they are dealt with in subsection (3).  Your Honours will see:

An appeal does not lie against the following –

. . . 

(e)      a decision on an appeal under this Part.

Now, I do not know what that can mean other than that there is an appeal to the Court of Appeal but it cannot go further than that.  Again, it plainly was not intended that that would be the case one would expect, but another odd nuance of this legislative scheme.

GAGELER J:   What is the content of section 82(1)?

GORDON J:   Can I add to that question, in the context of subsection (2) which says that nothing:

is to be evidenced for the purposes of this Act . . . to a higher standard than is required by section 7(1).

If you go back to section 7, am I right to read that as being acceptable and cogent as distinct from admissible and relevant and admissible?

MR DONALDSON:   Yes, or it must be different.

GORDON J:   It does say to a high degree of probability, I accept, and that sits with – so if you then go to 84(5), just to finish this off, that is evidence – they are the evidence provisions for the hearings which include in subsection (5) broader things as well, is it, including, it would seem in (d):

any relevant material of the kind mentioned in section 7 –

So the answer to Justice Gageler’s question is in that context as well – that broader context?  What does 82(1) mean?

MR DONALDSON:   I do not know, your Honour.  I am sorry that is not a very helpful answer but I do not even know what it could mean.

So, your Honours, there are other provisions of the Act that are referred to in our written submissions but they are the principal provisions of the Act that are material for the determination of this appeal.

Now, your Honours, there are, in effect, three – or in fact two – decisions of this Court which are squarely put against us, Fardon and Benbrika, and to understand what is decided in Fardon and Benbrika it is necessary to have regard to Lim and I will be taking your Honours as well to the decision in Vella where there is – let me put it this way – a scheme of reasoning that we would urge on the Court in considering the validity of this legislation.

Could I take your Honours first to Fardon.  So if your Honours are working off the bundle, it is in volume 4 of the bundle.  So, Fardon was, of course, the challenge to the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) where there was rather than serious offences there were definitions in that case of serious sexual offence, and that involved serious sexual offences against adults and any sexual offences involving children and it was contended that that was invalid on Kable grounds.

Could I ask your Honours to turn to the judgment of the Chief Justice and, in particular, at paragraph 2, and to be clear before looking at this what is put against us in relation to Fardon and Benbrika is essentially this.  A protective purpose, that is, if the purpose of legislation providing for ongoing detention of a person is protective, that is, to protect the community from further harm, or commission of criminal offences by that person, if it is protective in that sense no issue of judicial power arises and that, it is said, to be determined by Benbrika, nor does any Kable, or could any Kable, issue arise and that is said to be determined by Fardon.

So what is put against us is so long as the purpose of a detention regime is protective, that is, it is not associated with punishment for past criminal conduct, so long as it is protective it is valid because it is a thing that courts exercising federal jurisdiction have done and can lawfully do.

So on that contention, which is put against us, one would expect that when one looks at a case like Fardon and Benbrika that the court would say, well, so long as the purpose is protective in that sense and there is a process which is before a court which has the general indicia of a process before a court, so long as you have that, then no issue of invalidity can arise.  One tests that proposition against what has been determined and said by the Court in Fardon and Benbrika because, as I said, it is put against us that that is what Fardon and Benbrika decide.

So, in relation to Chief Justice Gleeson’s judgment at paragraph 2, six lines from the top, his Honour says:

No one would doubt the power of the Queensland Parliament to legislate for the detention of such persons –

So this is dangerous sexual offenders:

if they were mentally ill.

And his Honour there refers to Lim, and the authority for that is Lim at page 28, and I will be taking your Honours to that in due course.

So in both Fardon and Benbrika, the starting position, so far as whether such a power imposed or granted to a court is a judicial power, or a valid judicial power, the starting point of determining that is Lim.

KIEFEL CJ:   His Honour is referring to one of the exceptions identified in Lim.

MR DONALDSON:   Correct.

KIEFEL CJ:   In Benbrika in particular it was said that a protective purpose is also an exception to the Lim rule.  Is that not right?

MR DONALDSON:   I will be coming to address your Honours on what, in our submission, Benbrika does determine in relation to that, and particularly what was said in the joint judgment at paragraph 36 of Benbrika, because it is said that paragraph 36 says and means that, and if Benbrika says and means that, then the consequence of that is this appeal will fail, and any detention, post‑sentence detention ‑ ‑ ‑ 

KIEFEL CJ:   Well, it would mean that a protective purpose, if there is a protective purpose, that does not necessarily mean your appeal would fail.  There is still that large question that looms.

MR DONALDSON:   Sorry, your Honour.  But, so long as legislation is characterised as having a protective purpose ‑ ‑ ‑ 

KIEFEL CJ:   Yes.

MR DONALDSON:   ‑ ‑ ‑ with a judicial process attached to it that is something like the process provided for in Benbrika or Lim, that is valid, both as an exercise of judicial power ‑ this is what is said ‑ both as an exercise of judicial power, so it is something that a Federal Court could do, and also does not attract the operation of the Kable doctrine.  And as your Honour says, the starting point of ‑ certainly, in relation to the Chapter III argument in relation to judicial power ‑ is Lim, and as the Chief Justice refers to in his judgment in Fardon, it is the passage at page 28 of Lim – if I could actually – I might as well deal with that now, your Honours.  Lim is in volume 3 of the authorities, and it is page 28 of the judgment, which is in that bundle at page 789.

KIEFEL CJ:   Which tab is it, Mr Donaldson?

MR DONALDSON:   I do not have tabs, your Honour.

GORDON J:   Tab 19.

KIEFEL CJ:   Thank you.

MR DONALDSON:   So it is at point 3:

There are some qualifications which must me made to the general proposition that the power to order that a citizen be involuntarily confined in custody is . . . part of the judicial power of the Commonwealth entrusted exclusively to Ch. III courts.

So, there are exceptions to that, the most important is recognised for a long time, which is remanding those accused of crime in custody pursuant to a warrant.  And then the second of the exceptions is at about point 7 of the page, immediately after the footnote 63:

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, later cases have explained that what is meant there is that a power to involuntarily detain a person suffering from mental illness can be ordered by a court, and can also be the subject of executive action.  So it is an exception to the general proposition which is stated above.

So it is said ‑ and although this is not referenced, it is said that a court could order involuntary detention in cases of mental illness, and Benbrika and cases like it say, well, if you can do that, what is being done in this Act is analogous to that, and that is where this notion of a preventive or protective purpose essentially comes.  So if the purpose of the incarceration is protective of the community, it is said against us that Benbrika, at least, determines that such orders can validly be made by a court.

So, in Fardon where there is reference to this notion of an analogy to the exception in Lim – that is the matter to which all of their Honours are referring ‑ the Chief Justice goes on at paragraph 13 of his reasons – page 853 of the book, to note this:

Legislative schemes for preventive detention of offenders who are regarded as a danger to the community have a long history.

Now, we deal with this in our written submissions, your Honours, but the reference to a paper – very long paper by Professor Dershowitz ‑ by the Chief Justice, does not particularly make that proposition good.  That paper, if your Honours look at it, and again we deal with it in our written submissions, does not deal with modes of preventive detention, it deals with preventive orders such as what might be referred to as preventive orders, such as orders that have been the subject of cases such as Vella, and Thomas v Mowbray, and again we develop it in our written submission.

The history of there being legislative schemes for detention of offenders who are regarded as a danger to the community, that that has a long history, is, with the greatest respect, difficult to justify, unless one does what might be thought to be or arise from a reading of Vella.  If one equates orders providing for preventive detention with other orders which do not provide for detention, but which are protective of the community, such as the order that was made in Vella, such as the power exercised in Thomas v Mowbray, and such as for instance in this case a power for supervision orders.

EDELMAN J:   It might depend, Mr Donaldson, might it not, on whether one can really draw a sharp distinction between preventive detention orders and preventive control orders.  So, for example, an order for home detention, with detention in inverted commas, subject to strict curfews – is that a control order or a preventive detention order?

MR DONALDSON:   Your Honour, in our respectful submission, there can be a clear line drawn between preventive detention orders and any other form of order, and a preventive detention order is an order where a person is incarcerated or detained in a facility – in a gaol.  And there is, in our respectful submission, a very clear line between that and say home detention, where a person lives with their family, has the benefit of whomsoever they choose to live with, even if there may be some restrictions on that.

But for the State to impose on a person other than in relation to a judgment of criminal guilt that they will be in gaol, is a very different thing, with respect, to any other form of order which is short of that.  It is difficult to think of anything that the State can do to a person other than take their life, which is more serious than a detention order, your Honour.

GLEESON J:   Mr Donaldson, I am not clear about the scope of protective purpose.  In this context there is a reference to danger to the community, which may entail danger to the physical autonomy, and could quite likely extend to psychiatric injury, but could protective purpose extend to financial loss?

MR DONALDSON:   That is, could preventive orders be made to protect the community from, let us say, a person who is a fraudster ‑ ‑ ‑

GLEESON J:   Yes.

MR DONALDSON:   ‑ ‑ ‑ who, if released without restriction, may ‑ and has a propensity to commit those sorts of offences. 

GLEESON J:   Or perhaps more relevant to this case, given that robbery has a property element to it – loss of property. 

MR DONALDSON:   Our answer to your Honour’s question is really that terms like “preventive” and “protective”, although they are used – I have used them – are in some respects not much better than slogans.  It is, from what is the community or part of community being protected from.  In relation to this Act – the subject of this appeal – there are different things that the community is protected from by different provisions of this Act.  So, the community is protected in relation to its operation in relation to sexual offences from all that goes with sexual offences.  That is, all that goes with sexual offences.  But that, your Honour, does not mean that a purpose to protect the community, or a part of the community, from harm is different to that is also the same or is the same protective purpose.  That really, centrally, underlies what we contend for in this matter.

KIEFEL CJ:   Mr Donaldson, of course, an element of robbery is harm – is the threat of violence ‑ ‑ ‑

MR DONALDSON:   Yes.

KIEFEL CJ:   ‑ ‑ ‑ it is not just property related.  That is an essential element of robbery, that there is a threat of violence.

MR DONALDSON:   It is, your Honour, but one – I do not wish to understate at all the circumstances of the victim of this offending – but, your Honour, that is of a very different nature, that violence – and here is an example – somebody reaching into their shirt and pulling out – partially pulling out a fake – or something that purports to be a gun.

KIEFEL CJ:   Except the victim does not know that.

MR DONALDSON:   No, no, but that is of a very different kind, your Honour, to the risk or performance of – or risk of the commission of sexual offences.

KIEFEL CJ:   One can accept that.  They are very different offences.

MR DONALDSON:   Yes, and, if I might say ‑ ‑ ‑

GORDON J:   Is that to say any more though that the nature and extent of the harm – by reference to the schedule – varies greatly?

MR DONALDSON:   I am sorry, I missed the first part of that, your Honour.

GORDON J:   Is that to say any more – as I understand your submission – that the nature and extent of the harm to the community varies greatly depending upon what offence you are looking at in the schedule?

MR DONALDSON:   Yes.  We accept that, your Honour.  The nature of the harm does vary dramatically depending on the nature of the offence.  That is why it is erroneous to say that all that has to be done to contend for the validity of this legislation is to say, it has a protective purpose, because one has to look at the protective purpose of these provisions – of this offence.  We say, when one comes to look at the protective purpose of the legislation of this offence, one also has to look at, well, is detention a proportionate response to the object of the Act being to protect the community from those offences.  When I say “proportionate” – that is, are there any alternatives short of the ultimate revocation of personal rights, being incarceration or detention in a gaol, that would give effect to that object.

KIEFEL CJ:   Is that a question for us, though?  This is not a sentencing appeal.

MR DONALDSON:   It is a question for your Honours because that is what we are – we are putting it to your Honours that that is how the issue in relation to – certainly in relation to Kable – is actually to be addressed.  That is, one looks at the object of the legislation as it applies in this particular case – here is a person with a propensity to, let us say, rob or to commit the offence of robbery.  What is being put is that a proportionate response to that risk is incarceration and involved in the notion of a proportionate response is that there is no alternative effective measures, or practical alternatives to detention to deal with or respond to that object.

And we say, while there are many ways in which, proportionately, the legislation could respond to that object, and the most obvious of them is by making supervision orders.  If supervision orders were made in relation to somebody with a propensity to rob, and those supervision orders were to the effect that there is a curfew, you wear an ankle bracelet, you report to police on regular intervals, the prospect of further robberies being committed ‑ and in response to your Honour’s earlier observation, there are regular drug tests that are undertaken in relation to a person ‑ ‑ ‑ 

EDELMAN J:   I think the orders that were made against Mr Benbrika, short of continuing detention, ran to something like 29 pages.

MR DONALDSON:   Well, there are 37 standard conditions in WA ‑ well, there were under the old dangerous sexual offenders legislation, there were 37 of them, and they are of that sort of type, your Honour.

KIEFEL CJ:   I notice the time, Mr Donaldson.

MR DONALDSON:   I am sorry, your Honour, there was a – just to confirm, there was a proposal that we would start earlier than usual tomorrow, is there not?

KIEFEL CJ:   Yes, on Fridays we normally start at 9.45.

MR DONALDSON:   Thank you, your Honour.

KIEFEL CJ:   Yes.  The Court will adjourn until tomorrow at 9.45 am.

AT 4.21 PM THE MATTER WAS ADJOURNED
UNTIL FRIDAY, 11 MARCH 2022