Garlett v Western Australia

[2022] HCA 30

HIGH COURT OF AUSTRALIA

KIEFEL CJ,
GAGELER, KEANE, GORDON, EDELMAN, STEWARD AND GLEESON JJ

PETER ROBERT GARLETT  APPELLANT

AND

THE STATE OF WESTERN AUSTRALIA & ANOR       RESPONDENTS

Garlett v Western Australia

[2022] HCA 30

Date of Hearing: 10 & 11 March 2022
Date of Judgment:7 September 2022

P56/2021

ORDER

The part of the appeal pending in the Court of Appeal of the Supreme Court of Western Australia removed into the High Court of Australia be dismissed.

Representation

G R Donaldson SC with R Young for the appellant (instructed by Roe Legal Services)

Submitting appearance for the first respondent

J A Thomson SC, Solicitor-General for the State of Western Australia, with S R Pack for the second respondent (instructed by State Solicitor's Office (WA))

A M Mitchelmore SC with M A Hosking for the Attorney-General of the Commonwealth, intervening (instructed by Australian Government Solicitor)

M G Sexton SC, Solicitor-General for the State of New South Wales, with J S Caldwell for the Attorney-General for the State of New South Wales, intervening (instructed by Crown Solicitor's Office (NSW))

G A Thompson QC, Solicitor-General of the State of Queensland, with P M Clohessy and F J Nagorcka for the Attorney-General of the State of Queensland, intervening (instructed by Crown Law (Qld))

M J Wait SC, Solicitor-General for the State of South Australia, with S T O'Flaherty for the Attorney-General for the State of South Australia, intervening (instructed by Crown Solicitor's Office (SA))

R J Orr QC, Solicitor-General for the State of Victoria, with F I Gordon and T M Wood for the Attorney-General for the State of Victoria, intervening (instructed by Victorian Government Solicitor's Office)

S K Kay SC, Solicitor-General for the State of Tasmania, with J L Rudolf for the Attorney-General for the State of Tasmania, intervening (instructed by Office of the Solicitor-General (Tasmania))

Mr Derek Ryan appearing as amicus curiae, limited to written submissions

Notice:  This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

Garlett v Western Australia

Constitutional law (Cth) – Judicial power of Commonwealth – Jurisdiction vested in State courts – Institutional integrity of State courts – Where High Risk Serious Offenders Act 2020 (WA) ("Act") required State court to make restriction order in relation to serious offender if satisfied that order necessary to ensure adequate protection of community against unacceptable risk that offender will commit serious offence – Where robbery specified as "serious offence" under item 34 of Subdiv 3 of Div 1 of Sch 1 to Act – Where appellant imprisoned for offences including robbery – Where State sought restriction order in relation to appellant – Whether State court acting under dictation of executive government – Whether function conferred by Act on State court incompatible with State court being repository of judicial power of Commonwealth – Whether function conferred by Act on State court compromises institutional integrity of State court.

Words and phrases – "adequate protection of the community", "dictation from the executive", "high risk serious offender", "indefinite detention", "institutional integrity", "involuntary detention", "Kable principle", "preventive detention", "protective purpose", "public confidence in the judicial process", "repository of federal jurisdiction", "repository of the judicial power of the Commonwealth", "restriction order", "serious offence", "unacceptable risk of harm to the community".

Constitution, Ch III.
High Risk Serious Offenders Act 2020 (WA), ss 7, 48, Sch 1, Div 1, Subdiv 3, item 34.

1. KIEFEL CJ, KEANE AND STEWARD JJ. On 19 November 2017, the appellant ("Mr Garlett"), in company with others, entered a dwelling without consent and, with threats of violence, stole a pendant necklace and $20 in cash. He pretended to be armed with a handgun. He was arrested the following day and remanded in custody. He was charged with, and pleaded guilty to, the offences of robbery and assault with intent to rob, contrary to ss 392 and 393, respectively, of the Criminal Code (WA)[1] ("the November 2017 offending").

   [1]Western Australia v Garlett (2021) 362 FLR 284 at 287 [1].

2. For the November 2017 offending, Mr Garlett was sentenced in July 2019 to a total effective sentence of three years and six months' imprisonment, backdated to commence on 20 November 2017[2]. On 12 January 2021, he was sentenced to a further five months' imprisonment for an offence of criminal damage committed while he was in prison. Mr Garlett's release date was 19 October 2021[3].

   [2]Western Australia v Garlett [2019] WASCSR 74 at [146]‑[147]; Western Australia v Garlett (2021) 362 FLR 284 at 287 [2].

   [3]Western Australia v Garlett (2021) 362 FLR 284 at 288 [3]‑[4].

3. Mr Garlett was 23 years old at the time of the November 2017 offending[4]. He has a lengthy history of offending, which includes numerous aggravated burglaries, aggravated robberies and stealing motor vehicles[5]. Generally speaking, he has a record of poor behaviour while in custody[6]. His history of offending, with his first recorded convictions in April 2007, is related to his abuse of alcohol and drugs, which was already manifest when he was 12 years old. Mr Garlett was released into the community in September 2017 from imprisonment for earlier offending, but shortly thereafter he tested positive for methylamphetamine, amphetamine and cannabis[7]. It is noteworthy that the November 2017 offending occurred only two months later. By his admission, Mr Garlett was injecting methylamphetamine daily at the time of that offending[8].

   [4]Western Australia v Garlett [2019] WASCSR 74 at [50].

   [5]Western Australia v Garlett (2021) 362 FLR 284 at 343 [236], [240].

   [6]Western Australia v Garlett (2021) 362 FLR 284 at 343 [239], 343‑344 [241].

   [7]Western Australia v Garlett (2021) 362 FLR 284 at 343 [236]‑[238].

   [8]Western Australia v Garlett (2021) 362 FLR 284 at 343 [237].

4. In Fardon v Attorney‑General (Qld)[9], Gleeson CJ observed that "difficult questions involving the reconciliation of rights to liberty and concerns for the protection of the community ... typically arise in the case of a small number of unfortunate individuals who suffer disorders which make them dangerous to others". The November 2017 offending, and Mr Garlett's history of offending, associated with his long‑term abuse of alcohol and drugs, particularly methylamphetamine, may be reason for a concern that he is one of these unfortunate individuals.

   [9](2004) 223 CLR 575 at 592 [20].

5. The High Risk Serious Offenders Act 2020 (WA) ("the HRSO Act") is addressed to that concern and to reconciling that concern with the right to liberty. The HRSO Act provides that the first respondent ("the State") may apply to the Supreme Court of Western Australia for a restriction order in relation to a "serious offender under custodial sentence who is not a serious offender under restriction"[10].

   [10]s 35(1) of the HRSO Act; Western Australia v Garlett (2021) 362 FLR 284 at 288 [5].

6. On 29 July 2021, the State applied for a restriction order in relation to Mr Garlett, on the basis of the November 2017 offending. In response to the State's application, Mr Garlett challenged the validity of the HRSO Act or parts of it. Subsequently, his challenge was confined to the validity of items 34 and 35 of Subdiv 3 of Div 1 of Sch 1 to the HRSO Act. These items specify that the offences of robbery and assault with intent to rob[11] – of which Mr Garlett was convicted – are both a "serious offence" for the purposes of the HRSO Act[12].

   [11]Criminal Code (WA), ss 392, 393.

   [12]Western Australia v Garlett (2021) 362 FLR 284 at 288 [6]‑[7], [9].

7. Initially, Mr Garlett's challenge was put on several bases[13]; but the only basis now pursued is that the HRSO Act, insofar as its provisions apply to a person who has been convicted of robbery, as referred to in item 34, is contrary to Ch III of the Constitution by reason of the principle in Kable v Director of Public Prosecutions (NSW)[14]. The decision in Kable[15] established that, by reason of the integrated system of courts postulated by the provisions of Ch III of the Constitution[16], State legislation which purports to confer upon a State Supreme Court a function which substantially impairs the institutional integrity of such a court in its role as a repository of federal jurisdiction is "repugnant to or incompatible with" that role and is, therefore, invalid[17].

   [13]Western Australia v Garlett (2021) 362 FLR 284 at 288 [8].

   [14](1996) 189 CLR 51.

   [15](1996) 189 CLR 51 at 103‑104, 114‑115. See also Fardon v Attorney‑General (Qld) (2004) 223 CLR 575 at 591 [15]; Vella v Commissioner of Police (NSW) (2019) 269 CLR 219 at 246 [55].

   [16]ss 71, 77 of the Constitution.

   [17]Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51 at 103.

8. For the reasons that follow, the question whether item 34 of Subdiv 3 of Div 1 of Sch 1 to the HRSO Act infringes the Kable principle should be resolved in favour of the validity of the HRSO Act. This conclusion accords with the decision of this Court in Fardon, which concerned legislation, the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) ("the DPSO Act"), which is, as will be explained, materially indistinguishable from the HRSO Act.

   The proceedings

9. A preliminary hearing of the State's application for a restriction order was held on 13 October 2021. As Mr Garlett was due to be released from custody soon thereafter, it was necessary to determine promptly whether orders should be made under s 46 of the HRSO Act. That required a decision as well on the challenge to the validity of the impugned parts of the HRSO Act[18].

   [18]Western Australia v Garlett (2021) 362 FLR 284 at 288‑289 [10], [13].

10. The primary judge (Corboy J) concluded that the impugned parts of the HRSO Act did not confer powers on the Court that were repugnant to or incompatible with that Court's role as a repository of federal jurisdiction under Ch III of the Constitution[19]. Relevantly, his Honour declared that none of the provisions of the HRSO Act contravened Ch III of the Constitution, insofar as they apply to a serious offender under custodial sentence who has been convicted of the offence of robbery as referred to in item 34 of Subdiv 3 of Div 1 of Sch 1 to the HRSO Act.

    [19]Western Australia v Garlett (2021) 362 FLR 284 at 289 [14].

11. His Honour also concluded that there were reasonable grounds for believing that the Court might, in accordance with s 7 of the HRSO Act, find that Mr Garlett was a "high risk serious offender"; and consequently held that an order should be made under s 46(2)(c) of the HRSO Act for Mr Garlett to be detained until the application was finally determined[20].

    [20]Western Australia v Garlett (2021) 362 FLR 284 at 289 [14(e)‑(f)].

12. Mr Garlett appealed to the Court of Appeal of the Supreme Court of Western Australia seeking to set aside the declaration on grounds which included the Kable ground. On 21 December 2021, Gordon J ordered that that part of the cause pending in the Court of Appeal concerned with the Kable ground be removed into this Court pursuant to s 40 of the Judiciary Act 1903 (Cth).

13. As the primary judge noted, the legal consequences of the designation of an offence as a "serious offence" attach only by force of other relevant provisions of the HRSO Act, and so it is "not especially meaningful" to consider the validity of item 34 separately from the rest of the HRSO Act[21]. In order to appreciate the arguments agitated by Mr Garlett in this Court, it is necessary to set out the provisions of the HRSO Act at some length.

    [21]Western Australia v Garlett (2021) 362 FLR 284 at 296 [51].

    The HRSO Act

14. The HRSO Act commenced in 2020, save one provision that is not presently relevant[22]. It repealed the Dangerous Sexual Offenders Act 2006 (WA) ("the DSO Act"). The application of the DSO Act was limited to persons who had been convicted of a "serious sexual offence"[23]. The HRSO Act is broader, applying to persons who have been convicted of a "serious offence"[24] as listed in Sch 1 to that Act. The list of serious offences includes, relevantly, robbery[25].

    [22]See item 1 of Subdiv 1 of Div 2 of Sch 1 to the HRSO Act, which is to commence on a date to be fixed by proclamation.

    [23]ss 3, 8(1) of the DSO Act; Evidence Act 1906 (WA), s 106A.

    [24]s 5 of the HRSO Act.

    [25]item 34 of Subdiv 3 of Div 1 of Sch 1 to the HRSO Act; Criminal Code (WA), s 392.

15. Section 8 states the objects of the HRSO Act to be:

    "(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; and

    (b)to provide for continuing control, care or treatment of high risk serious offenders."

16. The relevant "community" is defined in s 4 to include any community and is not limited to the community of Western Australia or Australia.

17. Section 7 was said by the primary judge to be "central" to the contentions concerning the Kable principle[26]. Section 7 defines a "high risk serious offender" in the following terms:

    [26]Western Australia v Garlett (2021) 362 FLR 284 at 296‑297 [56].

    "(1)An offender is a high risk serious offender if the court dealing with an application under this Act finds that it is satisfied, 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 unacceptable risk that the offender will commit a serious offence.

    (2)The State has the onus of satisfying the court as required by subsection (1).

    (3)In considering whether it is satisfied as required by subsection (1), the court must have regard to the following –

    (a)any report prepared under section 74 for the hearing of the application and the extent to which the offender cooperated in the examination required by that section;

    (b)any other medical, psychiatric, psychological, or other assessment relating to the offender;

    (c)information indicating whether or not the offender has a propensity to commit serious offences in the future;

    (d)whether or not there is any pattern of offending behaviour by the offender;

    (e)any efforts by the offender to address the cause or causes of the offender's offending behaviour, including whether the offender has participated in any rehabilitation programme;

    (f)whether or not the offender's participation in any rehabilitation programme has had a positive effect on the offender;

    (g)the offender's antecedents and criminal record;

    (h)the risk that, if the offender were not subject to a restriction order, the offender would commit a serious offence;

    (i)the need to protect members of the community from that risk;

    (j)any other relevant matter.

    (4)In considering whether it is satisfied as required by subsection (1), the court must disregard the possibility that the offender might temporarily be prevented from committing a serious offence by –

    (a)imprisonment; or

    (b)remand in custody; or

    (c)the imposition of bail conditions."

18. Section 11(1) provides, relevantly, that the Attorney‑General for the State of Western Australia may make applications under the HRSO Act in the name of the State.

19. Section 82(1) provides that proceedings under the HRSO Act, or on an appeal under the Act, are taken to be criminal proceedings for all purposes. However, sub‑s (1) does not require anything that is to be evidenced for the purposes of the HRSO Act to be evidenced to a higher standard than is required by s 7(1)[27].

    [27]s 82(2) of the HRSO Act.

20. Part 2 of the HRSO Act creates the High Risk Serious Offenders Board[28]. Its functions are specified in s 15(1), and it has the power to do "all things necessary or convenient to be done for, or in connection with, or as incidental to, the performance of its functions"[29]. The membership of the Board comprises: the chief executive officer or chief employee, or an appointed member of staff, of the Department of the public service principally assisting in the administration of the HRSO Act; the Chief Psychiatrist or an appointed member of staff of the Chief Psychiatrist; the chief executive officer or chief employee, or an appointed member of staff, for a number of government agencies (which are generally concerned with health, housing and police); and community members[30].

    [28]s 14 of the HRSO Act.

    [29]s 15(2) of the HRSO Act.

    [30]ss 3, 17 of the HRSO Act. See also s 18.

21. Two types of restriction order may be made under the HRSO Act: a "continuing detention order" under s 26, and a "supervision order" under s 27. 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[31]. A supervision order, in relation to an offender, is an order that the offender, when not in custody, is to be subject to stated conditions that the Court considers appropriate, in accordance with s 30[32].

    [31]s 26(1) of the HRSO Act.

    [32]s 27(1) of the HRSO Act.

22. Section 29 limits the power of the Court to make a supervision order, rather than an order for continuing detention. It is in the following terms:

    "(1)A court cannot make, affirm or amend 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.

    (2)The onus of proof as to the matter described in subsection (1) is on the offender.

    (3)This section does not apply to the making of an interim supervision order."

23. Section 30(2) states the standard conditions of a supervision order. It relevantly provides:

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

    (a)report to a community corrections officer at the place, and within the time, stated in the order and advise the officer of the offender's current name and address; and

    (b)report to, and receive visits from, a community corrections officer as directed by the court; and

    (c)notify a community corrections officer of every change of the offender's name, place of residence or place of employment at least 2 days before the change happens; and

    (d)be under the supervision of a community corrections officer and comply with any reasonable direction of the officer ...; and

    (e)not leave, or stay out of, the State of Western Australia without the permission of a community corrections officer; and

    (f)not commit a serious offence during the period of the order; and

    (g)be subject to electronic monitoring under section 31."

24. Section 30(5) provides that a supervision order may also contain any other terms that the Court thinks appropriate: to ensure adequate protection of the community; or for the rehabilitation, care or treatment of the offender subject to the order; or to ensure adequate protection of victims of serious offences committed by the offender subject to the order.

25. An application for a restriction order must be accompanied by any affidavits to be relied upon by the State for the purpose of seeking an order or orders under s 46. A copy of both the application and any accompanying affidavits must be provided to the offender within seven days after making the application[33].

    [33]s 37(1), (2) of the HRSO Act.

26. After an application for a restriction order is made by the State, the Court must fix a day for a preliminary hearing before it[34]. Affidavits for use in a preliminary hearing must be confined to evidence that the person making it could give orally, except that they may contain statements based on information and belief if the person making the affidavit states the source of the information and the grounds for the belief[35].

    [34]s 43(1) of the HRSO Act.

    [35]s 45 of the HRSO Act.

1. As to the preliminary hearing, s 46 provides, relevantly:

   "(1)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.

   (2)If the court is satisfied as described in subsection (1) –

   (a)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 to be used on the hearing of the restriction order application; and

   (b)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 to be used on the hearing of the restriction order application on questions or topics set out in the order; and

   (c)the court may –

   (i)if the offender is in custody and might otherwise be released from custody before the restriction order application is finally decided, order that the offender be detained in custody for the period stated in the order; and

   (ii)if the offender is not in custody, order that the offender be detained in custody for the period stated in the order;

   and

   (d)the court must, except as provided in subsection (3), fix a day for the hearing of the restriction order application."

2. An offender must disclose any expert evidence material and may file and serve affidavits upon which the offender proposes to rely prior to a preliminary hearing[36]. Conversely, the State is under a continuing obligation of disclosure, subject to certain exceptions, after a preliminary hearing has been conducted[37].

   [36]ss 41, 44 of the HRSO Act.

   [37]ss 34, 39 of the HRSO Act.

3. Section 48 makes provision for the determination of an application for a restriction order. Its operation depends upon the evaluative judgment contemplated by s 7. Section 48 provides:

   "(1)If the court hearing a restriction order application finds that the offender is a high risk serious offender, 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.

   (2)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."

4. It may be noted that s 48(1) provides that, if the Court finds that the offender is a high risk serious offender in accordance with s 7, the Court "must" make a restriction order.

5. Part 5 of the HRSO Act provides for periodic review of detention under a continuing detention order. In this regard, s 64(2) requires the State to apply for a review to be carried out: as soon as practicable after the end of the period of one year commencing when the offender is first in custody pursuant to the continuing detention order; and as soon as practicable after the end of the period of two years commencing when the detention was most recently reviewed under s 64 or s 65. Alternatively, the offender may, with the leave of the Court, apply for review of his or her continuing detention order[38].

   [38]s 65(1) of the HRSO Act.

6. A continuing detention order must be rescinded if, on a review, the Court does not find that the offender remains a "high risk serious offender". If the Court finds that the offender does remain a "high risk serious offender", it must affirm the continuing detention order, or rescind it and make a supervision order. In deciding which order to make, the paramount consideration is to be the need to ensure adequate protection of the community[39].

   [39]s 68 of the HRSO Act.

7. Part 6 of the HRSO Act provides for appeals against decisions made under the Act, including the making of a restriction order. Either the State or a person in relation to whom the Court makes a decision under the HRSO Act may appeal to the Court of Appeal against the decision. However, an appeal does not lie against, inter alia, a decision on an order made at a preliminary hearing[40].

   [40]s 69(1), (3)(b) of the HRSO Act.

   The primary judge's reasons

8. The primary judge concluded, by reference to Fardon, that the legislature had not compromised the independence or impartiality of the Court by conditioning the making of a restriction order under the HRSO Act upon the commission of a "serious offence" of the kind identified in Sch 1[41].

   [41]Western Australia v Garlett (2021) 362 FLR 284 at 313 [109]. See also 312‑313 [106]‑[108].

9. His Honour made three points about the operation of s 7(3). First, the matters for the Court's consideration were specified by Parliament, and were not specified "by an executive act in any relevant sense"[42]. Secondly, what is a "relevant matter" that the Court is permitted to take into account by virtue of s 7(3)(j) is determined by the objects of the HRSO Act and a consideration of its provisions as a whole[43]. And thirdly, s 7(3) emphasised the evaluative nature of the decision required by s 7(1): it does not constrain the matters which the Court may consider in making a finding under s 7(1)[44].

   [42]Western Australia v Garlett (2021) 362 FLR 284 at 314 [121].

   [43]Western Australia v Garlett (2021) 362 FLR 284 at 314 [122].

   [44]Western Australia v Garlett (2021) 362 FLR 284 at 314 [123], [125].

10. The primary judge held that s 48 of the HRSO Act was to be interpreted as requiring the Court to make the order that is "least invasive or destructive" of the right to liberty of the person subject to the order, while ensuring an adequate degree of protection for the community[45]. In this regard, his Honour followed the approach of Beech J in Director of Public Prosecutions (WA) v DAL [No 2][46] in determining whether a continuing detention order or supervision order should be made under s 48[47].

    [45]Western Australia v Garlett (2021) 362 FLR 284 at 320 [145].

    [46][2016] WASC 212.

    [47]Western Australia v Garlett (2021) 362 FLR 284 at 320 [146].

11. The primary judge held that the HRSO Act incorporated procedures that are the "hallmarks of traditional forms and procedures" of the judicial process: the onus of proof rests on the State; the "ordinary" rules of evidence apply (with one common exception relating to statements of information and belief[48]); the offender has a right to appear and adduce evidence[49]; experts must prepare an "independent report"[50]; the State is under a continuing obligation of disclosure and must serve expert reports; hearings are conducted in public; and there is a right of appeal[51]. Having regard to the circumstances, his Honour concluded that the provisions of the HRSO Act maintained the "essential character" of the Court as a court exercising State and federal judicial power: impartiality, independence, procedural fairness, and open decision‑making[52].

    [48]ss 45, 84 of the HRSO Act.

    [49]ss 84(3)(b), 86(2), (3) of the HRSO Act.

    [50]s 75(1)(b) of the HRSO Act.

    [51]Western Australia v Garlett (2021) 362 FLR 284 at 320‑321 [147].

    [52]Western Australia v Garlett (2021) 362 FLR 284 at 324‑325 [161].

12. The primary judge also concluded that the purpose of the HRSO Act was protective, not punitive. His Honour noted that the central provisions of the HRSO Act and its objects were, in substance, protective and not punitive in character[53]. Three further features of the HRSO Act confirmed its protective character, namely the establishment of the High Risk Serious Offenders Board, the imposition of obligations on "supporting agencies" in respect of serious offenders, and the circumstance that the HRSO Act required periodic reviews and thereby did not provide for indefinite detention in any relevant sense[54].

    [53]Western Australia v Garlett (2021) 362 FLR 284 at 322 [150].

    [54]Western Australia v Garlett (2021) 362 FLR 284 at 322 [151]‑[152].

    Mr Garlett's arguments in this Court

13. While Mr Garlett's challenge to the validity of item 34 of Subdiv 3 of Div 1 of Sch 1 to the HRSO Act invoked the Kable principle, the argument advanced on his behalf conflated the Kable issue with a contention that the power exercisable under ss 7 and 48 of the HRSO Act was not judicial power such as might be conferred upon a court exercising federal jurisdiction consistently with Ch III of the Constitution. In this regard, Mr Garlett relied upon the statement of principle by Brennan, Deane and Dawson JJ in Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs[55] that:

    "putting to one side the exceptional cases to which reference is made below, the involuntary detention of a citizen in custody by the State is penal or punitive in character and, under our system of government, exists only as an incident of the exclusively judicial function of adjudging and punishing criminal guilt".

    [55](1992) 176 CLR 1 at 27.

14. Mr Garlett's argument was not put on the basis that the Court, in exercising the powers conferred on it by the HRSO Act, exercises federal jurisdiction. Rather, it was that its exercise of those powers is inconsistent with it being a repository of federal jurisdiction because the exercise of power pursuant to the impugned provisions is non‑judicial. The manner in which the argument is framed rightly recognises that the power to make a continuing detention order or a supervision order under the HRSO Act has been conferred by a State Parliament on a State court. Whether or not that power is judicial or non‑judicial in character is not determinative as to whether the Kable principle has been infringed. The suggestion that investing a power in a State court to order preventive detention is repugnant to its institutional integrity as a Ch III court cannot stand with this Court's decision in Fardon; and that is so whether or not that power is properly characterised as judicial power[56]. Accordingly, the Lim principle has no application to establish the invalidity of the HRSO Act. Even if the HRSO Act were a law of the Commonwealth, it would not contravene the Lim principle.

    [56]Fardon v Attorney‑General (Qld) (2004) 223 CLR 575 at 591 [18], 598‑601 [36]‑[42], 614 [85]‑[86], 655‑656 [219].

15. Nevertheless, Mr Garlett sought to maintain the submission that the power conferred by the HRSO Act, being non‑judicial in character, was a factor pointing to the conclusion that the impugned provisions of the HRSO Act substantially impair the institutional integrity of the Court. That argument should be rejected. Indeed, the circumstance that the power invested in the Court is recognisable as an orthodox exercise of judicial power may be seen as a positive indicator of validity.

16. Mr Garlett sought to sideline the authority of Fardon by noting differences between the HRSO Act and the DPSO Act. It was said that because s 48 of the HRSO Act provides that the Court must make a restriction order if satisfied of the matters in s 7, the absence of a discretion in the Court not to make the order means that the Court is required to act under dictation from the executive.

17. It was also argued that the HRSO Act is significantly different from the DPSO Act, which applied only to a "serious sexual offence"[57]. This submission was developed by a number of contentions advanced in various ways; but the gravamen of Mr Garlett's argument was that the offence of robbery under s 392 of the Criminal Code (WA) simply cannot be sufficiently "serious" to be a permissible basis for seeking a restriction order. It was also said on Mr Garlett's behalf that because there is no correlation in the HRSO Act between the nature of the "serious offence" which may trigger the operation of the Act, and the risk of harm against which a detention order is to protect, the HRSO Act impermissibly creates a scheme under which the Court may decide that a person, having served a term for rape, should not be released from prison because of the risk that the person might commit a robbery.

    [57]See s 13(2) and Sch 1 of the DPSO Act.

18. Mr Garlett's arguments may now be considered.

    The Lim principle

19. The HRSO Act establishes a non‑punitive scheme that has as its object the protection of the community from harm.

20. The proposition that, under the laws of the Commonwealth, the function of adjudging or punishing criminal guilt is exclusively the province of Ch III courts was stated in Lim in terms which expressly recognised that it did not encompass laws the purpose of which were to protect the community from harm, such as laws relating to quarantine from infectious diseases and laws for the confinement of some categories of mentally ill persons[58]. This Court's decision in Minister for Home Affairs v Benbrika[59] affirmed that the distinction between detention of an individual for the punishment for a crime, and detention of an individual for the protection of the community from a proven unacceptable risk of serious harm, is not illusory.

    [58]Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1 at 27‑28, 58.

    [59](2021) 95 ALJR 166 at 181 [35]‑[36], 183 [41]‑[43]; 388 ALR 1 at 14, 16‑17.

21. In Benbrika, the plurality said of the legislation there under consideration[60]:

    "The order for indefinite detention is founded on the court's assessment, in the exercise of State judicial power, of the danger to society that the offender would present at the completion of the nominal sentence. As Gleeson CJ observed in Fardon, if the lawful exercise of judicial power admits of the judge assessing the danger an offender poses to the community at the time of sentencing it is curious that it does not admit of the judge making such an assessment at or near the time of imminent release when that danger might be assessed more accurately." (footnote omitted)

    [60]Minister for Home Affairs v Benbrika (2021) 95 ALJR 166 at 181 [34]; 388 ALR 1 at 14.

22. The decision in Benbrika confirms the statement of the primary judge that a State law will not be invalid "merely because it provides for the detention of a person as a preventative measure to protect the community from the risk of future harm", and that a determination about the risk of future harm is judicial in nature[61]. The assessment of whether the subject of an application for a restriction order is a "high risk serious offender" involves consideration of the risk of the person committing a "serious offence" and consideration of the harm that may be occasioned to the community if the risk were to materialise.

    [61]Western Australia v Garlett (2021) 362 FLR 284 at 306 [88].

23. It may be said that because the protection of the community is one of the purposes which informs the exercise of the judicial discretion to impose a proper sentence upon an offender following conviction of a crime, it may not be possible to discern the operation of the protective purpose of the criminal law separately and distinctly from the deterrent or retributive purpose of the criminal law. That may well have been so in relation to criminal sentencing in earlier times, but it is not so in relation to orders under the HRSO Act.

24. In the late 18th century, Sir William Blackstone wrote[62]:

    "As to the end ... of human punishments. This is not by way of atonement or expiation for the crime committed ... but as a precaution against future offences of the same kind. This is effected three ways: either by the amendment of the offender himself; for which purpose all corporal punishments, fines, and temporary exile or imprisonment are inflicted: or, by deterring others by the dread of his example from offending in the like way, ... or, lastly, by depriving the party injuring of the power to do future mischief; which is effected by either putting him to death, or condemning him to perpetual confinement, slavery, or exile. The same one end, of preventing future crimes, is endeavoured to be answered by each of these three species of punishment."

    Oliver Wendell Holmes Jr, writing in the late 19th century, said that "probably most English‑speaking lawyers would accept the preventive theory without hesitation"[63].

    [62]Blackstone, Commentaries on the Laws of England (1769), bk 4, ch 1 at 11‑12.

    [63]Holmes, The Common Law (1881) at 43.

25. As is apparent from the passage cited from Blackstone, at the time that author wrote, the protective or preventive purpose of the criminal law was vindicated to the most extreme extent possible by the removal of the offender from the community either by the imposition of the death penalty or by "perpetual confinement, slavery, or exile". And in the United States, when Holmes wrote, the death penalty was routinely imposed for serious crimes. None of the means of prevention of crime mentioned by Blackstone is now available in Australia as a result of legislative intervention to mitigate the extreme harshness of the criminal law of these earlier times. But the merciful development of the criminal law has also meant that the risk to the community posed by the release of a disordered individual who has served his or her proper sentence has been revealed as an issue left unresolved by the enforcement of the criminal law.

26. Late in the 20th century in Australia, the cases of Veen v The Queen[64] and Veen v The Queen [No 2][65] added special poignancy to this unresolved issue. These decisions established as a principle of the criminal law in relation to sentencing that protection of the community from the dangerous propensities of an offender could not justify a sentence disproportionate to the moral culpability of the offender and the need for retribution appropriate to the seriousness of the offending. The principle stated by this Court in Veen [No 1] and Veen [No 2] imposed a limit upon the extent to which the protection of the community from a disordered individual could be taken into account in the exercise of the discretion of a sentencing judge.

    [64](1979) 143 CLR 458 at 467, 468, 482-483, 495 ("Veen [No 1]").

    [65](1988) 164 CLR 465 at 472‑473.

27. In Fardon, Gleeson CJ, in discussing this Court's decisions in Veen [No 1] and Veen [No 2], noted the tension between the practical effect of each of the two decisions[66]. In Veen [No 1], this Court upheld an appeal against a sentence of life imprisonment imposed for the protection of the community upon Mr Veen, who had been charged with murder but convicted of manslaughter on the ground of diminished responsibility, the sentencing judge having taken the view that, by reason of brain damage which could cause uncontrolled aggression when affected by alcohol, Mr Veen was likely to kill or injure someone if he were released. This Court reduced Mr Veen's sentence to imprisonment for 12 years. Subsequently, Mr Veen was released from custody, and nine months later he stabbed and killed a man. For this crime, the Crown accepted a plea of manslaughter on the ground of diminished responsibility. Once again, Mr Veen was sentenced to life imprisonment, on the ground that he was a danger to society, and was likely to kill again when released. This Court upheld that sentence in Veen [No 2].

    [66]Fardon v Attorney‑General (Qld) (2004) 223 CLR 575 at 588‑589 [7]‑[9].

28. In Fardon, Gleeson CJ did not seek to reconcile the outcome in Veen [No 1] with the outcome in Veen [No 2], given that there was no apparent difference of approach in terms of principle; but his Honour observed that "[t]he facts of the case reveal a common problem with which courts and legislatures have to deal"[67]. One legislative response to that problem was the DPSO Act and its analogues, such as the HRSO Act. That response addressed the need to protect the community from disordered individuals in a way that the criminal law as expounded in Veen [No 1] and Veen [No 2] does not; and that response proceeded by way of a regime which eschewed entirely the purposes of deterrence and retribution that characterise punishment under the criminal law.

    [67]Fardon v Attorney‑General (Qld) (2004) 223 CLR 575 at 588 [9].

1. The purpose of a legislative regime, such as the DPSO Act or the HRSO Act, is discernibly distinct from the imposition of retribution or deterrence pursued by the criminal law. To the extent that detention or supervised release is part of the legislative regime, the character of the curtailment of the liberty of the individual offender under the regime can be seen to be protective rather than punitive because any curtailment of liberty must be supported by the risk evaluation contemplated by s 7 of the HRSO Act. In that evaluation, considerations of retribution and deterrence, central to sentencing by way of punishment under the common law, have no part to play. In addition, any curtailment of liberty must be no greater than is necessary adequately to protect the community from the demonstrated unacceptable risk of harm to the community[68]. Further, any curtailment of liberty is subject to regular review to ensure that the evaluation of risk and response remains current. Where detention can be justified only by that evaluation and cannot be continued beyond the currency of such an evaluation, the purpose of detention and of the regime under which it is imposed can readily be seen to be distinct from the purpose of punishment.

   [68]Western Australia v Latimer [2006] WASC 235 at [49]; Western Australia v ACJ [2021] WASC 219 at [32]; Western Australia v Quartermaine [No 2] [2021] WASC 267 at [14]; Western Australia v Dragon [No 2] [2022] WASC 189 at [15].

2. The HRSO Act can be seen to be protective, rather than punitive, in its purpose and effect because:

   (a)it operates by reason of the evaluation by reference to criteria concerned solely with the risk of harm to the community rather than considerations of retribution or deterrence;

   (b)the evaluation of risk to the community is given effect only to the extent that interference with an offender's liberty is necessary to protect the community;

   (c)the processes by which the evaluation is undertaken and given effect are familiar as exercises of judicial power and, as such, serve to ensure the fairness and rationality of the making of, and giving effect to, the evaluation. There was, in the course of argument in this Court, a suggestion that the imposition of the obligation of disclosure upon an offender was a departure from ordinary judicial processes. That suggestion was without foundation: that obligation relates only to material upon which the offender proposes to rely. Moreover, it is a familiar aspect of the process of criminal justice[69]; and

   (d)the provisions for regular review serve to ensure that the restrictions upon an offender's personal liberty do not continue any longer than is necessary for the protection of the community.

   [69]Criminal Procedure Act 2004 (WA), s 62(4)(b). See also Criminal Procedure Act 1986 (NSW), s 143(1)(h); Criminal Procedure Act 2009 (Vic), s 189(1); Criminal Procedure Act 1921 (SA), s 123(4)(e); Criminal Code (Qld), s 590B(1).

   Kable

3. In Kable, the Community Protection Act 1994 (NSW) authorised the Supreme Court of New South Wales to issue a preventive detention order against Mr Kable, who had been convicted of the manslaughter of his wife. A majority of this Court (Toohey, Gaudron, McHugh and Gummow JJ) held that the Community Protection Act was invalid on the basis that it impaired the institutional integrity of the Supreme Court. Essential to the need to maintain the integrity of Ch III courts was the maintenance of their independence from the other branches of government, so that they should be free to act impartially in accordance with judicial process[70]. Where the Court acted as an "instrument of executive government policy", as required by the Community Protection Act, public confidence in the Court "must inevitably be impaired"[71].

   [70]Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51 at 98, 107, 108, 117‑118, 133.

   [71]Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51 at 124.

4. Although the Community Protection Act was framed in general terms, s 3 made it clear that it was confined in its operation to Mr Kable; the ad hominem focus of the legislation was seen to be problematic[72].

   [72]Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51 at 98.

5. In Attorney‑General (NT) v Emmerson[73], French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ said:

   "The ad hominem legislation in Kable (the stated object of which was 'to protect the community'[74]) authorised the Supreme Court of New South Wales to order preventive detention without any breach of the law being alleged or any adjudication of guilt[75]. A majority of this Court found that task incompatible with the institutional integrity of the Supreme Court because the legislation drew the Court into implementing what was essentially a political decision or government policy that Mr Kable should be detained, without the benefit of ordinary judicial process[76]."

   [73](2014) 253 CLR 393 at 425 [42].

   [74]Community Protection Act 1994 (NSW), s 3(1), (2).

   [75]Community Protection Act 1994 (NSW), ss 3(1), (3), 5(1).

   [76]Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51 at 98, 106‑107, 122, 124, 133‑134.

6. The general proposition for which Kable stands[77] must be understood and applied bearing in mind that all legislation reflects political decisions and government policy as a source of laws, substantive and adjectival; and that it is the essential role of the judiciary to enforce those laws by the exercise of judicial power[78]. It is within this context that it can be appreciated that the vice of the Community Protection Act was that it enlisted the Supreme Court to give effect to a decision on the part of the executive government that Mr Kable should remain in detention.

   [77]See Attorney‑General (NT) v Emmerson (2014) 253 CLR 393 at 426 [44].

   [78]Fardon v Attorney‑General (Qld) (2004) 223 CLR 575 at 592‑593 [21].

   Fardon

7. In Fardon, a majority of this Court held that the DPSO Act did not infringe the Kable principle. This Court rejected the contention that the involvement of the Supreme Court of Queensland in deciding whether prisoners who have been convicted of sexual offences should be the subject of continuing detention orders, on the ground that they pose a danger of harm to the community, was incompatible with the role of the Supreme Court as a repository of federal judicial power.

8. Gleeson CJ noted a number of features of the DPSO Act which distinguished it from Kable and supported its validity[79]:

   "The [DPSO] Act is a general law authorising the preventive detention of a prisoner in the interests of community protection. It authorises and empowers the Supreme Court [of Queensland] to act in a manner which is consistent with its judicial character. It does not confer functions which are incompatible with the proper discharge of judicial responsibilities or with the exercise of judicial power. It confers a substantial discretion as to whether an order should be made, and if so, the type of order. If an order is made, it might involve either detention or release under supervision. The onus of proof is on the Attorney‑General [of the State of Queensland]. The rules of evidence apply. The discretion is to be exercised by reference to the criterion of serious danger to the community. The Court is obliged, by s 13(4) of the [DPSO] Act, to have regard to a list of matters that are all relevant to that criterion. There is a right of appeal. Hearings are conducted in public, and in accordance with the ordinary judicial process. There is nothing to suggest that the Supreme Court is to act as a mere instrument of government policy. The outcome of each case is to be determined on its merits."

   [79]Fardon v Attorney‑General (Qld) (2004) 223 CLR 575 at 592 [19].

9. Gleeson CJ then observed[80]:

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

   [80]Fardon v Attorney‑General (Qld) (2004) 223 CLR 575 at 592 [20].

10. His Honour, and most other members of the majority[81], therefore rejected the proposition that there is something inherent in the making of an order for preventive, as distinct from punitive, detention that compromises the institutional integrity of a court. Rather, it was held that the purpose of the DPSO Act was to protect the community, not to impose punishment, or further punishment, on an offender[82]. Their Honours emphasised that the DPSO Act required the Court to act independently of the other arms of government. The Court was required to make, and give effect to, its own evaluative judgment as to whether it was satisfied that there was an "unacceptable risk" that a prisoner would commit a serious sexual offence; and that evaluation was to be made in accordance with the rules of evidence, and other processes that bore the "hallmarks of traditional judicial forms and procedure"[83].

    [81]Fardon v Attorney‑General (Qld) (2004) 223 CLR 575 at 613 [83], 647‑648 [196], 653 [214], 654 [217].

    [82]Fardon v Attorney‑General (Qld) (2004) 223 CLR 575 at 589‑590 [11]‑[14], 602 [44], 653‑654 [214]‑[217].

    [83]Fardon v Attorney‑General (Qld) (2004) 223 CLR 575 at 602 [44], 619 [107], 656 [220].

11. In Emmerson, French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ, having noted the basis on which the Community Protection Act had been held invalid in Kable, went on to say[84]:

    "By comparison with Kable, in Fardon v Attorney‑General (Qld)[85], legislation of general application authorising the continued detention or supervised release of prisoners who were 'a serious danger to the community' was upheld as valid. This was because the adjudicative process required of the State Supreme Court in that case supported the maintenance of the institutional integrity of the Court[86] and the adjudicative process required could be performed 'independently of any instruction, advice or wish of the legislative or executive branches of government'[87]."

    [84]Attorney‑General (NT) v Emmerson (2014) 253 CLR 393 at 425‑426 [43].

    [85](2004) 223 CLR 575.

    [86]Fardon v Attorney‑General (Qld) (2004) 223 CLR 575 at 592 [19]‑[20], 596‑597 [34], 621 [114]‑[115], 648 [198], 658 [234].

    [87]Fardon v Attorney‑General (Qld) (2004) 223 CLR 575 at 621 [116]. See also 598 [35], 600‑602 [41]‑[44].

    The complexity of the task

12. Mr Garlett argued that the application of s 7 of the HRSO Act is a task so complex and difficult that it is inherently incompatible with the judicial function. This contention cannot be accepted. A contention to similar effect was rejected in Fardon[88]; and in Vella v Commissioner of Police (NSW), Bell, Keane, Nettle and Edelman JJ observed that "open‑textured criteria" – such as "an unacceptable risk to the safety, welfare or order of the community", "reasonably necessary", "reasonably appropriate and adapted", "sufficient grounds" and "considers appropriate"[89] – have been deployed by the legislature to confer power on courts without falling foul of the concern that the power so conferred was not properly characterised as judicial power[90].

    [88]See Fardon v Attorney‑General (Qld) (2004) 223 CLR 575 at 593 [22], 596‑597 [34], 657 [225].

    [89]Vella v Commissioner of Police (NSW) (2019) 269 CLR 219 at 258 [84]. See Thomas v Mowbray (2007) 233 CLR 307; Wainohu v New South Wales (2011) 243 CLR 181; Condon v Pompano Pty Ltd (2013) 252 CLR 38.

    [90]Vella v Commissioner of Police (NSW) (2019) 269 CLR 219 at 235 [23]. See also Fardon v Attorney‑General (Qld) (2004) 223 CLR 575 at 593 [22].

13. It is, no doubt, true to say that the evaluative task required of the Court under ss 7 and 48 of the HRSO Act is difficult. But its difficulty should not be exaggerated. It is certainly no more onerous than the task given to the Court by the DPSO Act. In Fardon, Gleeson CJ said[91]:

    "No doubt, predictions of future danger may be unreliable, but, as the case of Veen shows, they may also be right. Common law sentencing principles, and some legislative regimes, permit or require such predictions at the time of sentencing, which will often be many years before possible release. If, as a matter of policy, the unreliability of such predictions is a significant factor, it is not necessarily surprising to find a legislature attempting to postpone the time for prediction until closer to the point of release."

    [91]Fardon v Attorney‑General (Qld) (2004) 223 CLR 575 at 589‑590 [12].

14. The function to be performed by the Court under ss 7 and 48 of the HRSO Act is materially indistinguishable from the function required of the Supreme Court of Queensland by s 13 of the DPSO Act. Just as the DPSO Act was not held to impose on the Supreme Court of Queensland a "grossly unjudicial chore"[92], so the HRSO Act does not require the Supreme Court of Western Australia to carry out an unjudicial task.

    [92]cf Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51 at 133, quoting Hobson v Hansen (1967) 265 F Supp 902 at 930.

    Distinguishing Fardon

15. The arguments advanced on behalf of Mr Garlett did not invite this Court to reconsider its decision in Fardon. Rather, Mr Garlett sought to draw attention to some respects in which the HRSO Act differs from the DPSO Act, in order to take this case outside the authority of Fardon. An examination of these supposed points of difference shows that the two Acts are, in substance, materially indistinguishable.

    "Must" not "may"

16. Section 48 of the HRSO Act contemplates that the Supreme Court "must" make a restriction order if it is satisfied that the offender is a "high risk serious offender". The DPSO Act preserved a discretion in the Supreme Court of Queensland as to whether to make an order where a prisoner was assessed to pose an unacceptable risk of harm to the community[93]. On Mr Garlett's behalf, emphasis was placed on this circumstance as a point of distinction between the two Acts. That submission must be rejected.

    [93]See s 13(1), (5) of the DPSO Act.

17. The terms of s 7(1) must be read in conjunction with s 48[94]. Section 48 authorises and requires the Court to make a restriction order only where a positive determination has been made in accordance with s 7 of the HRSO Act.

    [94]Kelly v The Queen (2004) 218 CLR 216 at 253 [103].

18. The circumstance that the Court is not invested with a residual discretion to decline to make a restriction order does not establish that it is acting upon the dictation of the executive government as to the manner of deciding the case or its outcome. While s 48(1) is couched in mandatory terms, the terms of s 48(2) and the definition of "high risk serious offender" in s 7(1) mean that the judicial evaluation upon which the Court's determination depends is essential to the making of a restriction order. The decisive nature of the Court's evaluation is distinctly inconsistent with the suggestion that it must act upon the dictation of the legislature or the executive as to whether a restriction order should be made in any particular case.

19. Whether or not a risk that an offender will commit a "serious offence" is "unacceptable" is a question which requires the Court's judgment as to the nature and extent of the harm said to be in prospect. Further, whether a restriction order is "necessary" to protect against that risk requires recognition of what would otherwise be the offender's entitlement to be at liberty, an entitlement not lightly to be denied. The Court must consider whether a restriction order is necessary to ensure adequate protection of the community[95]. The Court is required to perform this evaluative exercise and come to its own determination as to whether to make a restriction order; it does not automatically follow from the inclusion of an offence in Sch 1 that a restriction order must be made.

    [95]s 7(1) of the HRSO Act.

20. In Emmerson, French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ observed that the legislation under consideration in that case provided that the "Supreme Court [of the Northern Territory was] authorised to determine whether the statutory criteria set out [were] satisfied and, if they [were], the Court must make the declaration sought" by the executive government[96]. The legislation then "provide[d] the consequences which follow from the Supreme Court's declaration". Their Honours said[97]:

    "Together, these steps are an unremarkable example of conferring jurisdiction on a court to determine a controversy between parties which, when determined, will engage stated statutory consequences."

    [96]Attorney‑General (NT) v Emmerson (2014) 253 CLR 393 at 419‑420 [24], 431 [59]‑[60]. See Misuse of Drugs Act 1990 (NT), s 36A; Criminal Property Forfeiture Act 2002 (NT), s 94(1).

    [97]Attorney‑General (NT) v Emmerson (2014) 253 CLR 393 at 431 [60].

21. The same may be said of ss 7 and 48 of the HRSO Act. This part of Mr Garlett's argument cannot stand with the decision in Emmerson.

    A serious offence?

22. It was submitted on behalf of Mr Garlett that Fardon is authority only for the narrow proposition that legislation empowering a State court to order detention of a person serving a sentence for a "serious sexual offence", for the purpose of protecting the community and on the terms provided for in the DPSO Act, does not attract the Kable principle.

23. It was said that the offence of robbery under s 392 of the Criminal Code (WA) is inherently insufficiently serious to be capable of being regarded as a basis for a restriction order. Mr Garlett focussed on what was said to be the unexceptional nature of robbery as an offence to argue that the making of a restriction order, in addition to the sentence imposed on the offender for the offence of which he or she was convicted, is disproportionate to the seriousness of that offence for which proper punishment has already been imposed. These contentions cannot be accepted.

24. First, Mr Garlett's argument fails to appreciate that the imposition of a restriction order is not by way of further punishment for the "serious offence" of which the offender has been convicted, but a precaution that has been judicially assessed as necessary for the purpose of protecting the community. A restriction order does not contravene the principle of "double jeopardy"[98], in the sense that it punishes the offender twice, for the offence that engages the application of the HRSO Act. The protective purpose of the HRSO Act is not undermined by a lack of correlation between the past offence, which conditions the operation of the legislation, and the harm to the community from the commission of any "serious offence" in the future.

    [98]Fardon v Attorney‑General (Qld) (2004) 223 CLR 575 at 610 [74]; Minister for Home Affairs v Benbrika (2021) 95 ALJR 166 at 220 [214]; 388 ALR 1 at 64‑65.

25. Secondly, Mr Garlett's argument confuses orthodox notions of proportionality in sentencing with the radically different notion of a judicial usurpation of the responsibility of the legislature to determine the degree of culpability appropriate to various categories of misconduct. The determination of the relative seriousness of criminal offences, reflected in the maximum sentences for those offences, is a matter for the legislature.

26. The inclusion of an offence, such as robbery, in Sch 1 to the HRSO Act reflects a legislative judgment as to the kinds of offences which may be such as to cause harm of a kind from which the community needs protection different from that provided by the criminal law. It is not inimical to the institutional integrity of the Court to act upon a legislative judgment that robbery should be included in the serious offences listed in Sch 1. That is especially so where an element of the offence is violence to person or property, or the threat of such violence. It is to be borne in mind that the maximum penalty for a contravention of s 392 of the Criminal Code (WA) ranges between imprisonment for 14 years, 20 years and life, depending upon the circumstances of the contravention.

1. It is also to be noted that the sexual offences in respect of which the operation of the DPSO Act depended covered a range of seriousness, with some offences attracting higher penalties than others, but with any one offence being sufficient to engage the application of the regime. In Benbrika, Edelman J noted that this Court in Fardon respected the judgment of the legislature that all the offences on this spectrum "could potentially involve harm to the community sufficient to permit consideration of a continuing detention order"[99].

   [99]Minister for Home Affairs v Benbrika (2021) 95 ALJR 166 at 224 [230]; 388 ALR 1 at 70.

2. As his Honour also noted, "'conduct is regarded as criminal for the very reason that its commission harms society, or some part of it', and it is rarely the role of a court to second‑guess Parliament's decision about the seriousness of the harm that various crimes will have to the community"[100]. Similarly, in Vella, the range of offending on which the power of the Supreme Court and the District Court of New South Wales was conditioned was acknowledged to be "very wide"[101].

   [100]Minister for Home Affairs v Benbrika (2021) 95 ALJR 166 at 224 [228]; 388 ALR 1 at 69, quoting McGarry v The Queen (2001) 207 CLR 121 at 129 [20].

   [101]Vella v Commissioner of Police (NSW) (2019) 269 CLR 219 at 230 [3].

3. In Magaming v The Queen[102], it was said:

   "The enactment of sentences by the legislature, whether as maxima or minima, involves the resolution of broad issues of policy by the exercise of legislative power. A sentence enacted by the legislature reflects policy‑driven assessments of the desirability of the ends pursued by the legislation, and of the means by which those ends might be achieved. It is distinctly the province of the legislature to gauge the seriousness of what is seen as an undesirable activity affecting the peace, order and good government of the Commonwealth and the soundness of a view that condign punishment is called for to suppress that activity, and to determine whether a level of punishment should be enacted as a ceiling or a floor."

   [102](2013) 252 CLR 381 at 414 [105].

4. Whatever may be said in the abstract of the relative seriousness of an offence designated as a "serious offence" for the purposes of the HRSO Act, it is always for the Court to determine whether there is an "unacceptable risk" that the offender will commit such an offence, having regard to the evidence as to the nature of the offending and the circumstances of the offender. Importantly, the evaluative exercise contemplated by s 7 of the HRSO Act is not an exercise involving the notional ordering in the abstract of the relative culpability of categories of offences. Rather, s 7 contemplates a practical evaluation concerned with the circumstances of the particular offending and the particular offender. While the requirement of an evaluation under s 7 depends upon the offender having been convicted of a "serious offence", ss 7 and 48 do not envisage the possibility that a restriction order might be made to prevent the commission of a serious offence, whether of the same kind or of another kind, unless the risk of further offending involves a real threat of harm to the community[103].

   [103]See Minister for Home Affairs v Benbrika (2021) 95 ALJR 166 at 184‑185 [46]; 388 ALR 1 at 18.

5. In the case of Mr Garlett, that practical evaluation could be expected to involve consideration of the November 2017 offending, and the relationship between his history of offending and his long‑term abuse of methylamphetamine. The Court would be required to consider the implications of these circumstances in relation to the likelihood that he would reoffend, and the nature of that offending, if he were to be released into the community with or without supervision. A restriction order will only be made consequent upon an assessment of all the circumstances of the "serious offence" and the offender. There can be no doubt that a judge tasked with the determination of the State's application for a restriction order against Mr Garlett would make a restriction order of either kind only after anxious consideration of Mr Garlett's prospects of freeing himself from the grip of methylamphetamine and the extent to which those prospects bear upon the likelihood that the community will continue to be exposed to robberies and like crimes involving, for example, the horrors of home invasions[104]. As Derrick J said in Western Australia v Patrick [No 5][105]:

   "The scheme of the [HRSO] Act requires that the court do no more than is necessary to achieve an adequate degree of protection to the community."

   [104]See s 7(3)(e), (f) of the HRSO Act.

   [105][2022] WASC 61 at [56].

6. A similar point was made in the reasons of the plurality in Benbrika in relation to the protective regime under consideration in that case[106]:

   "It is difficult to envisage any circumstances in which a continuing detention order would be made to prevent the risk of the commission of a serious ... offence where that offence is of a kind that could not be seen to pose a real threat of harm to the community .... Correctly understood, a continuing detention order could not properly be made by a Court ... in a case where the only risk of offending identified by the authorities did not carry a threat of harm to members of the community that was sufficiently serious in the assessment of the Court as to make the risk of the commission of the offence 'unacceptable' to that Court."

   [106]Minister for Home Affairs v Benbrika (2021) 95 ALJR 166 at 184‑185 [46]‑[47]; 388 ALR 1 at 18‑19.

7. This aspect of Mr Garlett's argument culminated in a plea that this Court strike down the HRSO Act lest the legislature be emboldened to designate a failure to wear a helmet while riding a bicycle as a "serious offence" for the purposes of the HRSO Act.

8. In Gerner v Victoria[107], this Court, following Amalgamated Society of Engineers v Adelaide Steamship Co Ltd ("the Engineers' Case")[108], observed that "[t]o point to the possibility that legislative power may be misused is distinctly not to demonstrate a sufficient reason to deny its existence". The rhetorical deployment of extreme and distorting examples of the possibility of the abuse of legislative power is an appeal to "a jaundiced view of the integrity or wisdom or practical competence of the representatives chosen by the people"[109]. This kind of rhetorical device provides no substantial basis for regarding robbery as something other than a serious offence.

   Other considerations relating to the institutional integrity of the Supreme Court

   [107](2020) 270 CLR 412 at 423‑424 [18].

   [108](1920) 28 CLR 129 at 151‑152.

   [109]Gerner v Victoria (2020) 270 CLR 412 at 424 [18] (footnote omitted).

   Public confidence

9. It was submitted on behalf of Mr Garlett that preventive detention under the HRSO Act required to be enforced by the Court would adversely affect public confidence in the Court.

10. In Fardon, Gleeson CJ, noting that an aspect of the reasoning in Kable was concerned with the maintenance of public confidence in the judicial process, clarified that those observations were made in the context of a statute that involved the Court in an ad hominem exercise: "[n]othing that was said in Kable meant that a court's opinion of its own standing is a criterion of validity of law"[110]. Gleeson CJ said that[111]:

    "nothing would be more likely to damage public confidence in the integrity and impartiality of courts than judicial refusal to implement the provisions of a statute upon the ground of an objection to legislative policy".

    [110]Fardon v Attorney‑General (Qld) (2004) 223 CLR 575 at 593 [23] (footnote omitted).

    [111]Fardon v Attorney‑General (Qld) (2004) 223 CLR 575 at 593 [23].

11. As Edelman J said recently in Benbrika[112]:

    "[T]he very integrity and impartiality of the courts which the [Kable] principle protects would be seriously impaired if the judiciary could generally refuse to implement statutory provisions on the grounds of an objection to legislative policy[113]."

    [112]Minister for Home Affairs v Benbrika (2021) 95 ALJR 166 at 223 [226]; 388 ALR 1 at 69.

    [113]Vella v Commissioner of Police (NSW) (2019) 269 CLR 219 at 235 [24], quoting Fardon v Attorney‑General (Qld) (2004) 223 CLR 575 at 593 [23].

12. It may be noted here that the legislative removal of procedural safeguards of fairness, characteristic of the exercise of judicial power, has been significant in subsequent decisions where legislation has been successfully challenged as infringing the Kable principle. These cases may conveniently be discussed by reference to the submissions made by Mr Ryan.

    Procedural safeguards

13. Mr Derek Ryan is currently subject to a supervision order under the HRSO Act. Like Mr Garlett, he was convicted of the "serious offence" of robbery. Mr Ryan was granted leave to provide written submissions on the basis that he sought to make submissions "which the Court should have to assist it to reach a correct determination"[114], and which had not then been presented.

    [114]Roadshow Films Pty Ltd v iiNet Ltd [No 1] (2011) 248 CLR 37 at 39 [3].

14. The thrust of Mr Ryan's submissions in this regard was that the HRSO Act enlists the Court to give effect to legislative policy[115].

    [115]See Kuczborski v Queensland (2014) 254 CLR 51 at 98 [140].

15. Challenges to State legislation have succeeded in this Court in International Finance Trust Co Ltd v New South Wales Crime Commission[116], South Australia v Totani[117] and Wainohu v New South Wales[118]. None of these cases was concerned with a preventive detention regime. The legislation challenged in the first of these cases provided for asset‑freezing orders[119]. Totani and Wainohu were concerned with control orders[120]. In each of these two cases, the flaw in the legislation lay in the co‑opting of the courts by the executive to implement decisions of the executive.

    [116](2009) 240 CLR 319.

    [117](2010) 242 CLR 1.

    [118](2011) 243 CLR 181.

    [119]See Criminal Assets Recovery Act 1990 (NSW).

    [120]See Serious and Organised Crime (Control) Act 2008 (SA); Crimes (Criminal Organisations Control) Act 2009 (NSW).

16. Mr Ryan relied particularly upon this Court's decision in Totani. The Magistrates Court of South Australia was required to make a control order on an application by the Commissioner of Police against a defendant if the defendant was a member of a "declared organisation" without any need to determine, by ordinary judicial processes, whether the defendant was actually engaged in serious criminal activity, a "declared organisation" being an organisation declared to be such by another member of the executive government[121]. This was a clear case of enlistment of the Court to give effect to the decision of the executive government in relation to particular individuals.

    [121]South Australia v Totani (2010) 242 CLR 1 at 21 [3]‑[4].

17. Under the HRSO Act, as with the DPSO Act, there is no enlistment of the Court to implement the decisions of the executive government. As has been explained, under the HRSO Act, the Court, in making a restriction order, is required to make a substantial evaluative judgment in order to make that determination. In addition, the Court is obliged to proceed to make that determination by reference to the processes characteristic of the exercise of judicial power. And the Supreme Court must support its determination by giving reasons for its decision.

18. The Court is not permitted to act as the judges acting as "personae designatae" under the provisions challenged in Wainohu were permitted to act, contrary to the characteristic judicial obligation of giving reasons to justify a judicial decision[122].

    [122]Wainohu v New South Wales (2011) 243 CLR 181 at 192 [7], 213‑215 [54]‑[59], 228 [104].

19. In addition, the offender is assured a full opportunity to engage in the process to determine whether or not a restriction order should be made, in contrast to the legislation considered in International Finance Trust which obliged the Supreme Court of New South Wales to proceed to make a restraining order without regard for ordinary judicial processes[123]. The legislation in question purported to direct the Supreme Court as to the manner and outcome of its exercise of jurisdiction[124].

    [123]International Finance Trust Co Ltd v New South Wales Crime Commission (2009) 240 CLR 319 at 355 [56], 366‑367 [97]‑[98], 386‑387 [159]‑[161].

    [124]International Finance Trust Co Ltd v New South Wales Crime Commission (2009) 240 CLR 319 at 360 [77].

    The community

20. On behalf of Mr Garlett it was said that it would be "incredulous" to a fair‑minded lay observer that the HRSO Act requires the Court to assess "adequate protection of the community" by reference to the Western Australian community, and the Australian community, and "all other communities" – apparently even Tunisia[125]. Thus, it was sought to emphasise the excessive scope, and hence the illusory character, of the protective purpose of the HRSO Act.

    [125]See s 4 of the HRSO Act.

21. The scope of the expression "community" is indeed broad, but its use is appropriate to direct attention to the risk of harm that the offender poses to the members of the organised society with whom he or she may happen to live from time to time. Indeed, it is in this sense that the expression is frequently used in legislation and in the reasons for judgment in the cases, such as Fardon[126]: it is the ordinary and natural language of this field of discourse. The references throughout the HRSO Act to protection of the "community", in the extended sense, also serve the practical purpose of ensuring that the protective purpose of the HRSO Act cannot be defeated by the simple expedient of an offender stating an intention to leave Western Australia or the Commonwealth.

    [126]See Fardon v Attorney‑General (Qld) (2004) 223 CLR 575 at 588 [7]‑[8].

    Sections 29 and 30(2)(f) of the HRSO Act

22. It was said on Mr Garlett's behalf, picking up an argument put on behalf of Mr Ryan, that the effect of s 30(2)(f) of the HRSO Act was that the making of a supervision order was a logical impossibility. This was said to demonstrate a restriction upon the independence of the Court inconsistent with the due exercise of judicial power. The problem was said to arise because, given that the State must be taken to have discharged the burden upon it under s 29, the offender could not discharge the onus cast upon him or her by s 30(2)(f).

23. This view of the combined operation of ss 29 and 30(2)(f) fails to appreciate that the evaluation of whether or not an offender can discharge the onus of showing a likelihood that he or she will not commit any further serious offences while under a supervision order must inevitably be affected by the restraints upon the offender's conduct imposed by the other conditions referred to in s 30(2)(a)‑(e) and (g) of the HRSO Act. In this regard, in Western Australia v ACJ[127], Fiannaca J observed:

    "The question of whether the respondent will substantially comply with the standard conditions of the supervision order requires consideration of all of the circumstances, both personal to him and external, which will affect him. External circumstances include the conditions of the supervision order, the available means to monitor, supervise and treat him, and any pro‑social support available to him."

    [127][2021] WASC 219 at [416].

24. These observations by Fiannaca J correctly state the operation of s 30(2)(f). This understanding of the relationship between ss 29 and 30(2)(f) underpins the making of numerous supervision orders by the Court[128]. The argument for Mr Garlett failed to acknowledge these decisions.

    [128]See Western Australia v Lewis[No 2] [2020] WASC 377 at [102]‑[111]; Western Australia v Atkinson [No 2] [2020] WASC 379 at [87]‑[95]; Western Australia v TJZ [2020] WASC 407 at [158]‑[169]; Western Australia v PCA [2020] WASC 478 at [388]‑[406]; Western Australia v Yorkshire [No 2] [2021] WASC 261 at [117]‑[146]; Western Australia v Quartermaine [No 2] [2021] WASC 267 at [155]‑[170]; Western Australia v D'Rozario [No 3] [2021] WASC 412 at [136]‑[140]; Western Australia v Atkins [No 2] [2022] WASC 45 at [140]‑[156].

25. In Attorney‑General v Francis[129], the Court of Appeal of the Supreme Court of Queensland said, in relation to the choice to be made by the Supreme Court of Queensland between a continuing detention order and a supervision order by the analogous provisions of the DPSO Act:

    "The question is whether the protection of the community is adequately ensured. If supervision of the prisoner is apt to ensure adequate protection, having regard to the risk to the community posed by the prisoner, then an order for supervised release should, in principle, be preferred to a continuing detention order on the basis that the intrusions of the [DPSO] Act upon the liberty of the subject are exceptional, and the liberty of the subject should be constrained to no greater extent than is warranted by the statute which authorised such constraint."

    [129][2007] 1 Qd R 396 at 405 [39].

26. That s 29 of the HRSO Act does not require an approach different from that which has been accepted under the DPSO Act has been rightly, and consistently, recognised by the Supreme Court of Western Australia[130]. So, in ACJ, Fiannaca J said of the operation of s 48 with s 7 of the HRSO Act[131]:

    "The court should make the order that is least invasive of the respondent's right to liberty, while at the same time ensuring an adequate degree of protection of the community, having regard to the paramount consideration stipulated in s 48(2)[132]. As was decided in respect of s 17(2) of the DSO Act, that requirement does not exclude other considerations. Further, the use of the word 'adequate' indicates that a qualitative assessment is required. It cannot simply be assumed that the most assured preventative measure is detention and, therefore, the protection of the community will always favour such an order[133]."

    [130]See Director of Public Prosecutions (WA) v DAL [No 2] [2016] WASC 212 esp at [33].

    [131]Western Australia v ACJ [2021] WASC 219 at [32].

    [132]Western Australia v Latimer [2006] WASC 235 at [49].

    [133]Director of Public Prosecutions (WA) v Decke [2009] WASC 312 at [14].

    Conclusion

27. The function of the Supreme Court of Western Australia under the HRSO Act is not incompatible with the role of the Court as a repository of the judicial power of the Commonwealth. The HRSO Act does not require the Court to give effect to any decision of the legislature or the executive government. Rather, the Court, in making a restriction order, is required to act upon its own evaluative judgment, by reference to prescribed criteria, in order to determine whether such an order is necessary for the purpose of protecting the community from harm. The performance by the Court of this function proceeds by processes which are familiar aspects of the exercise of judicial power[134].

    [134]See Fardon v Attorney‑General (Qld) (2004) 223 CLR 575.

28. The challenge to the validity of item 34 of Subdiv 3 of Div 1 of Sch 1 to the HRSO Act fails.

29. That part of the appeal pending in the Court of Appeal of the Supreme Court of Western Australia which was removed into the High Court of Australia should be dismissed.

30. GAGELER J.   This appeal tests the scope and contemporary veracity of the canonical observation in the joint reasons for judgment in Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs[135] that, "exceptional cases" aside, "the involuntary detention of a citizen in custody by the [s]tate is penal or punitive in character and, under our system of government, exists only as an incident of the exclusively judicial function of adjudging and punishing criminal guilt". 

    [135](1992) 176 CLR 1 at 27.

    Ch III: Boilermakers and Kable

1. Applied correctly, therefore, even a judicial assessment of a high probability of an offender committing a robbery would not be sufficient for a restriction order if the anticipated robbery is of a low level of seriousness. Even where an anticipated robbery is sufficiently serious to engage s 7 of the HRSO Act, any concerns arising from the lack of judicial discretion to refuse a restriction order are resolved by the fourth stage of the interpretive process. Given the vast range of possible supervision orders, including even home detention, it should not require more than a modicum of ingenuity to devise supervision orders that will suffice for an offender to establish that they will satisfy the conditions of a supervision order, including not committing the specified serious offence. A continuing detention order would not then be made.

2. Mr Garlett's challenge on this appeal was concerned only with continuing detention orders; supervision orders for anticipated offences of robbery would be invalid only if inseverable in the legislative scheme from continuing detention orders. An important part of the scheme is the discretion to make a supervision order rather than a continuing detention order. That discretion would almost invariably be exercised, other than in the most extreme cases which involve offenders who cannot be the subject of a supervision order. The existence of this "internal" discretion is a reasonable alternative to a discretion as to whether any restriction order should be made. And, in light of the extreme circumstances necessary for a continuing detention order, it cannot be said that the purposes of the protective punishment are slight or trivial compared with the extent of the constraint upon a person's liberty for an anticipated offence.

   Conclusion

3. It is of paramount importance to these reasons to emphasise that, on its proper interpretation, the HRSO Act does not permit the imposition of continuing detention orders for any robbery. In its application to robberies, the HRSO Act permits restriction orders only for anticipated robberies with a sufficiently high degree of seriousness and a sufficiently high magnitude of harm to justify a restriction order that deprives a person of their liberty for an offence that they have not committed. Even then, the restriction order will only be a continuing detention order as a matter of last resort.

4. The real question on this appeal, in the absence of any particular legislative facts, is therefore whether the HRSO Act is invalid in its application to robbery in those extreme cases in which continuing detention orders would be imposed. On its proper interpretation, which involves a very narrow application of continuing detention orders, and in light of the decisions of this Court in Fardon[483] and Benbrika[484], that question must be answered in the negative. As explained at the outset of these reasons, any attempt to distinguish the seriousness of extreme cases of robbery from the sexual offences that were the subject of the legislation considered in Fardon is a futile enterprise because the categories are not independent[485].

   [483](2004) 223 CLR 575.

   [484](2021) 95 ALJR 166; 388 ALR 1.

   [485]See, eg, Western Australia v Hussian [2020] WASCA 186.

5. Whether or not a continuing detention order for an offence that has not been committed can ever be morally justified, the Constitution does not prohibit the Parliament of Western Australia from empowering a court to impose that injustice in the extreme circumstances of an anticipated robbery as permitted by the proper interpretation of the HRSO Act.

6. I agree with the orders proposed by Kiefel CJ, Keane and Steward JJ.

7. GLEESON J.   Legislation providing for a court to order the detention of an offender following completion of (or otherwise in excess of) a sentence of imprisonment was found to be valid in Fardon v Attorney-General (Qld)[486], Pollentine v Bleijie[487] and Minister for Home Affairs v Benbrika[488]. In Fardon and Pollentine, which concerned State legislation, the standard of constitutional validity engaged was that identified in the decision of Kable v Director of Public Prosecutions (NSW)[489], and which has been stated in terms that State (or Territory[490]) legislation may not validly confer upon a court that is a potential repository of federal jurisdiction a function that substantially impairs that court's institutional integrity, such an impairment being incompatible with the court's constitutional position as a potential repository of federal judicial power[491]. In Benbrika, which concerned Commonwealth legislation, the standard of validity engaged was instead supplied by the principle of separation of federal judicial power from the executive and legislative powers of the Commonwealth[492].

   [486](2004) 223 CLR 575.

   [487](2014) 253 CLR 629.

   [488](2021) 95 ALJR 166; 388 ALR 1.

   [489](1996) 189 CLR 51. In Kable, legislation of that general kind, but which had the exceptional feature of being ad hominem, was held invalid.

   [490]Attorney-General (NT) v Emmerson (2014) 253 CLR 393 at 425 [42].

   [491]Vella v Commissioner of Police (NSW) (2019) 269 CLR 219 at 246 [55] (quoting Emmerson (2014) 253 CLR 393 at 424 [40]), 274-275 [138].

   [492]R v Kirby; Ex parte Boilermakers' Society of Australia (1956) 94 CLR 254 at 269-270.

8. Of these decisions, Fardon is most relevant to this case. Fardon concerned the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) ("the DPSO Act"). The appellant did not challenge the correctness of Fardon (or any other decision in which this Court has found legislation providing for preventive orders to be valid). Instead, the appellant contends that, unlike the DPSO Act, the High Risk Serious Offenders Act 2020 (WA) ("the HRSO Act") offends the Kable principle insofar as the HRSO Act applies to a person who has been convicted of robbery.

9. It was recognised in Fardon that the DPSO Act raised "[s]ubstantial questions of civil liberty" and "difficult questions involving the reconciliation of rights to liberty and concerns for the protection of the community"[493]. Those questions are magnified in relation to the HRSO Act to the extent that the Act has the potential to apply to more offenders and may operate to protect the community from a wider array of harms.

   [493](2004) 223 CLR 575 at 586 [3], 592 [20]. In Fardon v Australia, the United Nations Human Rights Committee found that the DPSO Act violated Mr Fardon's rights under Art 9 para 1 of the International Covenant on Civil and Political Rights: Communication No 1629/2007, UN Doc CCPR/C/98/D/1629/2007 (2010) at [7.4].

10. The present case may demonstrate the harsh potential of the HRSO Act: the State of Western Australia sought a continuing detention order from the Supreme Court of Western Australia ("WASC")[494] in respect of a young offender who has spent little of his adolescent and adult life outside of prison. His most recent imprisonment followed a conviction for aggravated armed robbery involving threats of violence but no physical violence, and no weapon but a pretence of being armed with a handgun. However, as it turned out, no continuing detention order was made. Prior to the hearing of the application, the State advised the Court that the State would seek only a supervision order[495], and, ultimately, the State's application was refused. The appellant was not considered to have a propensity to commit any particular "serious offence" as defined in the HRSO Act. Rather, the Court's conclusion was that the appellant had a tendency to commit offences more generally, particularly when in antisocial company and when under the influence of illicit substances.

    [494]As provided for in ss 3 and 26(1) of the HRSO Act, a continuing detention order is "an order that the offender be detained in custody for an indefinite term for control, care, or treatment".

    [495]As provided for in ss 3 and 27(1) of the HRSO Act, a supervision order is "an order that the offender, when not in custody, is to be subject to stated conditions that the court considers appropriate", where the imposition of those conditions is governed by s 30.

11. In any event, and as in Fardon, this case may not be decided upon the basis of concerns about the legislative policy of preventive detention as provided for in the State legislation under challenge. The appellant argued that the case raises for consideration whether the regime in the HRSO Act, designed to protect the community, might render preventive detention so commonplace that its application by the WASC is offensive to the Court's institutional integrity. Put another way, does the HRSO Act provide for so much preventive detention that its application should be impugned as a "grossly unjudicial chore"[496]? The Court's capacity to address broad questions of this kind meaningfully is limited: its task is confined to determining the narrow issue of the validity of the HRSO Act in its application to a person who is under a custodial sentence for robbery.

    [496]See Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51 at 133.

12. I agree with the plurality that the function of the WASC under the HRSO Act in its application to the offence of robbery is materially indistinguishable from the function conferred upon the Supreme Court of Queensland ("QSC") by the DPSO Act. Accordingly, the appellant's challenge to the validity of the HRSO Act must fail. I generally agree with their Honours' reasons that the Act is not offensive to the institutional integrity of the WASC but add the following observations.

    State power to make laws for involuntary detention by the state

13. Despite early criticisms[497], the statement referred to in Benbrika by the plurality as the "Lim principle"[498] and by Gageler J in the present proceeding as the "Lim observation"[499], namely that, exceptional cases aside, "the involuntary detention of a citizen in custody by the [s]tate is penal or punitive in character and, under our system of government, exists only as an incident of the exclusively judicial function of adjudging and punishing criminal guilt"[500], is now well accepted as a statement of a constitutional limit upon Commonwealth legislative power[501]. In Benbrika, the plurality considered that a preventive detention regime imposed by Commonwealth legislation was valid as an exception to the "Lim principle"[502]. Noting that the decision in Lim itself illustrated that the categories of exceptional cases of legal non-punitive detention are not closed, the plurality in Benbrika did not accept that the exceptions were either confined by history or insusceptible of analogical development. For their Honours, it was the protective purpose of the relevant legislation that qualified the judicial power conferred by the legislation as "an exception to a principle that is recognised under our system of government as a safeguard on liberty"[503].

    [497]Kruger v The Commonwealth (1997) 190 CLR 1 at 109-110; Re Woolley; Ex parte Applicants M276/2003 (2004) 225 CLR 1 at 24 [57]; Al-Kateb v Godwin (2004) 219 CLR 562 at 648-649 [258].

    [498]Benbrika (2021) 95 ALJR 166 at 177 [15]; 388 ALR 1 at 8-9.

    [499]Reasons of Gageler J at [110]-[111].

    [500]Chu Kheng Lim v Minister for Immigration (1992) 176 CLR 1 at 27.

    [501]Benbrika (2021) 95 ALJR 166 at 177-178 [19], 187-188 [65], 200-201 [134], 211 [181], 212 [185]; 388 ALR 1 at 10, 22, 39-40, 53, 54; The Commonwealth v AJL20 (2021) 95 ALJR 567 at 576 [22]-[23], 587 [78], 599 [128]; 391 ALR 562 at 569-570, 584, 598.

    [502]Benbrika (2021) 95 ALJR 166 at 181 [36], 185 [47], 185-186 [53]; 388 ALR 1 at 14, 19, 20.

    [503]Benbrika (2021) 95 ALJR 166 at 181 [36]; 388 ALR 1 at 14.

14. It has been suggested that the Lim principle operates as a limit upon the legislative power of the States, as a principle that identifies functions that are incompatible with the institutional integrity of a State court that is the concern of the Kable principle. In the absence of a challenge to Fardon, the question was not fully argued. It would be a significant step to conclude that the Lim principle operates as an additional constraint on State (and Territory) legislative power, over and above the Kable principle.

15. There can be no doubt that the generally penal or punitive character of involuntary detention of a citizen (or any person) in custody does not depend upon whether "the [s]tate"[504] effecting the detention is the Commonwealth, or an Australian State or Territory. Further, at least as a matter of empirical fact, it is the norm throughout Australia that involuntary detention exists only as an incident of the exercise of judicial power to adjudge and punish criminal guilt. However, the Lim principle was articulated as a constitutive part of the doctrine of the separation of Commonwealth judicial power[505], not as a doctrine about the nature of Ch III courts or the characteristics of Ch III courts that are essential to the institutional integrity of those courts, and not in answer to a question about the scope of State legislative power.

    [504]In the sense of that phrase as used in Lim (1992) 176 CLR 1 at 27.

    [505]  Lim (1992) 176 CLR 1 at 27-29.

16. This Court in Fardon did not treat the Lim principle as relevant to the constitutional validity of the DPSO Act, despite an argument (made by the Attorney-General for the Commonwealth) that the DPSO Act would have been valid if enacted as Commonwealth legislation (thereby testing the Act against the Lim principle) and despite an argument (made by the appellant in that case) that the Act was invalid as a Bill of Pains and Penalties, because it inflicted punishment without a judicial trial[506].

    [506]Fardon (2004) 223 CLR 575 at 578, 580.

17. Rather, the majority Justices focussed squarely on whether the DPSO Act impaired the institutional integrity of the QSC in terms of its independence and impartiality. In this regard, the judgments are consistent with the well-established separation between the Kable principle (which relevantly defines limits upon State legislative power) and the doctrine of the separation of Commonwealth judicial power (which relevantly limits Commonwealth legislative power)[507].

    [507]Condon v Pompano Pty Ltd (2013) 252 CLR 38 at 53 [22], 90 [125]; K-Generation Pty Ltd v Liquor Licensing Court (2009) 237 CLR 501 at 529 [84]; Fardon (2004) 223 CLR 575 at 598 [36], 614 [86], 655-656 [219].

18. The common conclusion of the majority Justices in Fardon was that the DPSO Act did not impair the institutional integrity of the QSC, and so did not transgress limits imposed by Ch III of the Constitution. Further, while it is true to say that the legislation in Fardon was directed to a particular class of sexual offender, none of the majority Justices in Fardon reasoned by reference to the special nature of sexual offences, or the exceptional character of the DPSO Act as a scheme tailored to address specific community fears about sexual crimes, or its limited operation, because the legislation was directed to what might be thought to be a very small number of offenders. Nor did their Honours focus attention upon the nature of the risk assessment that the QSC was required to undertake, beyond observing that it involved an evaluative exercise that the Court was well equipped to undertake[508]. Their Honours did not express concerns about the "borrowing of judicial services to do the work of the legislature or the executive"[509], or about the potential "blur[ring]" of institutional boundaries[510].

    [508]Fardon (2004) 223 CLR 575 at 592 [19], 593 [22], 597 [34], 657 [225].

    [509]cf Vella (2019) 269 CLR 219 at 277 [145].

    [510]cf Vella (2019) 269 CLR 219 at 290-291 [180].

19. Although not explicitly addressed to the application of the Lim principle, there are several passages in the majority judgments in Fardon that are inconsistent with the Lim principle as a test for whether State legislation offends the institutional integrity of a State court.

20. Gleeson CJ perceived "the case of the prisoner who represents a serious danger to the community upon release" as an "almost intractable problem" for the criminal justice system, but one which may warrant a legislative response which considers "the protection of the safety of citizens in light of the rights and freedoms accepted as fundamental in our society"[511]. The Chief Justice cited, with apparent approval, Deane J's observation in Veen v The Queen [No 2] that[512]:

    "[T]he protection of the community obviously warrants the introduction of some acceptable statutory system of preventive restraint to deal with the case of a person who has been convicted of violent crime and who, while not legally insane, might represent a grave threat to the safety of other people by reason of mental abnormality if he were to be released as a matter of course at the end of what represents a proper punitive sentence".

    [511]Fardon (2004) 223 CLR 575 at 589 [12], 590 [14].

    [512]Fardon (2004) 223 CLR 575 at 588 [9], quoting Veen v The Queen [No 2] (1988) 164 CLR 465 at 495.

21. After referring to various aspects of the legislation, including that it did not confer functions which were "incompatible" with the proper discharge of judicial responsibilities or with the exercise of judicial power[513], the Chief Justice suggested that, by conferring the relevant powers upon the QSC, "the Queensland Parliament was attempting to ensure that the powers would be exercised independently, impartially and judicially"[514].

    [513]Fardon (2004) 223 CLR 575 at 592 [19].

    [514]Fardon (2004) 223 CLR 575 at 592 [20].

22. McHugh J, who considered the functions conferred upon the QSC to involve the exercise of judicial power[515], stated that it would be a "serious constitutional mistake" to think that either Kable or the Constitution assimilates State courts or their judges and officers with federal courts or their judges and officers. Rather, his Honour said: "Chapter III of the Constitution, which provides for the exercise of federal judicial power, invalidates State legislation that purports to invest jurisdiction and powers in State courts only in very limited circumstances"[516]. Subject to the Kable principle, "when the federal Parliament invests State courts with federal jurisdiction, it must take them as it finds them"[517]. Further, McHugh J considered, State legislative power to make laws "for the peace welfare and good government" of the State is "as plenary as that of the Imperial Parliament" and would authorise a law requiring "breaches of the criminal law to be determined by non-judicial tribunals", that is, in a manner inconsistent with the Lim principle[518]. His Honour concluded that[519]:

    "The bare fact that particular State legislation invests a State court with powers that are or jurisdiction that is repugnant to the traditional judicial process will seldom, if ever, compromise the institutional integrity of that court to the extent that it affects that court's capacity to exercise federal jurisdiction impartially and according to federal law. ... State legislation may require State courts to exercise powers and take away substantive rights on grounds that judges think are foolish, unwise or even patently unjust. Nevertheless, it does not follow that, because State legislation requires State courts to make orders that could not be countenanced in a society with a Bill of Rights, the institutional integrity of those courts is compromised."

    [515]Fardon (2004) 223 CLR 575 at 596 [34].

    [516]Fardon (2004) 223 CLR 575 at 598 [37].

    [517]Fardon (2004) 223 CLR 575 at 599 [37].

    [518]Fardon (2004) 223 CLR 575 at 600 [40].

    [519]Fardon (2004) 223 CLR 575 at 600-601 [41].

23. Gummow J was the only Justice to address the argument that the DPSO Act could have been validly enacted as Commonwealth law. His Honour rejected that argument but, in doing so, reformulated the Lim principle in terms that, "the 'exceptional cases' aside, the involuntary detention of a citizen in custody by the [s]tate is permissible only as a consequential step in the adjudication of criminal guilt of that citizen for past acts"[520]. As his Honour put it, "[t]he vice for a Ch III court and for the federal laws postulated ... would be in the nature of the outcome, not the means by which it was obtained"[521].

    [520]Fardon (2004) 223 CLR 575 at 612 [80].

    [521]Fardon (2004) 223 CLR 575 at 614 [85].

1. Notably, Gummow J did not extrapolate from this reformulation to a conclusion that the DPSO Act was invalid. His Honour (with Hayne J here agreeing) considered that the application of the Kable principle focussed attention on the judicial process under the impugned legislation and whether elements of that process "may ameliorate what otherwise would be the sapping of the institutional integrity of the Supreme Court"[522]. Gummow J did not express any doubt about the impact of the DPSO Act upon either the independence or the impartiality of the QSC. Ultimately, his Honour considered that the nature of the "factum" selected for the attraction of the Act (being a "prisoner"), the subjection of orders to annual "review", the judicial nature of the process with respect to applications, and the Court's independence in the performance of its functions under the Act, combined to support the conclusion that invalidity was not established[523].

   [522]Fardon (2004) 223 CLR 575 at 614 [90].

   [523]Fardon (2004) 223 CLR 575 at 621 [114]-[117].

2. Hayne J (who otherwise agreed with Gummow J) reserved his opinion about whether federal legislation along the lines of the DPSO Act would be invalid[524]. His Honour explicitly adverted to the problem that preventive detention "is at odds with identifying the central constitutional conception of detention as a consequence of judicial determination of engagement in past conduct"[525]. However, his Honour saw this as an issue about judicial power for the reason that legislation requiring a federal court to make an order for preventive detention "would purport to confer a non-judicial function on that court"[526].

   [524]Fardon (2004) 223 CLR 575 at 647 [196].

   [525]Fardon (2004) 223 CLR 575 at 648 [197].

   [526]Fardon (2004) 223 CLR 575 at 648 [197].

3. For their part, Callinan and Heydon JJ stated[527]:

   "Not everything by way of decision-making denied to a federal judge is denied to a judge of a State. So long as the State court, in applying legislation, is not called upon to act and decide, effectively as the alter ego of the legislature or the executive, so long as it is to undertake a genuine adjudicative process and so long as its integrity and independence as a court are not compromised, then the legislation in question will not infringe Ch III of the Constitution."

   [527]Fardon (2004) 223 CLR 575 at 656 [219].

   Significance of the Lim principle for the Kable principle

4. Although in Fardon Gummow J noted that the Lim principle had informed several of the judgments in Kable (including his own)[528], there is reason to doubt its significance for the principle stated in Kable, at least for the purpose of a conclusion that the Lim principle is germane to the institutional integrity of a State court. In Kable, his Honour considered that the requirement of the Community Protection Act 1994 (NSW) ("the NSW Act") that the Supreme Court of New South Wales ("NSWSC") "inflict punishment without any anterior finding of criminal guilt by application of the law to past events, being the facts as found" was "repugnant to judicial process"[529]. However, his Honour was alone in apparently treating that feature of the NSW Act as a sufficient basis for the challenged legislation's incompatibility with the institutional integrity of the NSWSC[530].

   [528]Fardon (2004) 223 CLR 575 at 611 [77].

   [529]Kable (1996) 189 CLR 51 at 134.

   [530]Compare Kable (1996) 189 CLR 51 at 106-107, 121-122.

5. The other Justice who referred explicitly to the Lim principle in Kable was Toohey J, but his Honour reasoned materially differently by rejecting the NSW Act, including because preventive detention under the Act: was not an incident of the exclusively judicial function of adjudging and punishing criminal guilt; was not part of a system of preventive detention with appropriate safeguards, consequent upon or ancillary to the adjudication of guilt; and did not fall within the "exceptional cases" mentioned in Lim, directly or by analogy[531]. These reasons, and in particular his Honour's evident acceptance of the possibility of "appropriate safeguards", do not indicate that Toohey J would have accepted Gummow J's reformulation of the Lim principle without qualification.

   [531]Kable (1996) 189 CLR 51 at 98.

6. Gummow J also noted that the Lim principle was "reflected" in the reasons of Gaudron J and McHugh J in Kable[532]. But neither Justice can be taken to have expressed any general view that State legislation providing for court-ordered preventive detention after sentence, directed to a class of offenders and for a purpose of community protection, was likely to be invalid for repugnancy to the judicial process. While Gaudron J considered that the process provided for by the NSW Act was the "antithesis of the judicial process", her Honour emphasised the Act's provision for formation of an opinion as to the probability of future offending "on the basis of material which does not necessarily constitute evidence admissible in legal proceedings"[533], and concluded that public confidence could not be maintained in a judicial system not predicated on equal justice – an observation directed to the ad hominem nature of the NSW Act[534].

   [532]Fardon (2004) 223 CLR 575 at 611 [77].

   [533]Kable (1996) 189 CLR 51 at 106.

   [534]Kable (1996) 189 CLR 51 at 107.

7. In Kable, McHugh J had stated that "there is no reason to doubt the authority of the State to make general laws for preventive detention when those laws operate in accordance with the ordinary judicial processes of the State courts"[535]. In Fardon, McHugh J explicitly deprecated the phrase "repugnant to the judicial process" as tending to invite error[536]. McHugh J concluded that repugnancy to the traditional judicial process "will seldom, if ever, compromise the institutional integrity of [a State court] to the extent that it affects that court's capacity to exercise federal jurisdiction impartially and according to federal law"[537].

   [535]Kable (1996) 189 CLR 51 at 121.

   [536]Fardon (2004) 223 CLR 575 at 601 [42].

   [537]Fardon (2004) 223 CLR 575 at 601 [41].

   Preventive detention for robbery

8. If it were necessary to test the inclusion of robbery in the HRSO Act against the Lim principle, and if that required demonstration that the relevant law was directed to a grave and specific harm, I would consider that law passes both hurdles.

9. Section 392 of the Criminal Code (WA) creates an offence of robbery in the following terms:

   "Robbery

   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 –

   (a)      to obtain the thing stolen; or

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

   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, to imprisonment for life; or

   (d)if the offence is committed in circumstances of aggravation, to imprisonment for 20 years; or

   (e)      in any other case, to imprisonment for 14 years."

10. The terms of s 392 cover a wide range of offending including conduct that may not cause significant harm to any individual. Potential harms that may be inflicted by an offence against s 392 will necessarily vary according to the particular circumstances of the offence. However, it is reasonable to assume that, by fixing a maximum penalty of life imprisonment in some circumstances, the legislature apprehended that the harm inflicted by a robbery may be very grave. A court is not well placed to compare the gravity of potential harms resulting from categories of offences beyond noting the maximum penalties fixed by the legislature. If the institutional integrity of a court may be compromised by applying a law such as the HRSO Act on the basis that the harm sought to be addressed by the law is not sufficiently grave, then, having regard to the availability of life imprisonment as a maximum penalty, I am not persuaded that the institutional integrity of the WASC may be compromised by the inclusion of robbery as a "serious offence" in the HRSO Act on that account.

11. The HRSO Act as it applies to the Western Australian offence of robbery seeks to balance the liberty interests of both a "high risk serious offender" and those members of the community who may be harmed as a result of an "unacceptable risk that the offender will commit a serious offence"[538], particularly, although not necessarily, the offence of robbery. I respectfully agree with the observation of the plurality in Benbrika that Gummow J's analysis in Fardon did not explain why an appropriately tailored scheme for protection of the community from harm resulting from particular forms of criminal activity is incapable of coming within an "exceptional case" to be identified by analogy to those "exceptional cases" identified in Lim[539]. To my mind, such detention is capable of being seen as analogous to involuntary detention in cases of infectious disease which is necessarily directed to community protection[540]. Involuntary detention in cases of mental illness may also afford an analogy where the detention is not solely for the protection of the detainee.

    [538]HRSO Act, s 7(1).

    [539]Benbrika (2021) 95 ALJR 166 at 180-181 [32]-[33]; 388 ALR 1 at 13-14.

    [540]Benbrika (2021) 95 ALJR 166 at 180 [32]; 388 ALR 1 at 13; see also Kruger (1997) 190 CLR 1 at 110.

    Judicial independence and impartiality under the HRSO Act

12. On its face, there is no aspect of the HRSO Act that compromises the independence of the WASC from either the legislative or executive branches of the Western Australian government, or that compromises the Court's impartiality. To the contrary, and similarly to the DPSO Act, the HRSO Act requires the Western Australian executive to make an application to the Court, in accordance with the legislation. The application is then assessed by the Court in accordance with the legislation. As is illustrative of the independent functions of executive and judiciary under the HRSO Act, in this case the State of Western Australia applied ultimately for a supervision order. That application was rejected by the Court, which was not satisfied that it was necessary to make a restriction order in relation to the appellant to ensure adequate protection of the community against an unacceptable risk that the appellant would commit a serious offence.

    Conclusion

13. The appeal should be dismissed.