Garlett v Western Australia

Case [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…

Continue reading Garlett v Western Australia

Sign in free to access the full text

Details
AGLC
Garlett v Western Australia [2022] HCA 30
Case
[2022] HCA 30
Decision Date

CaseChat Overview and Summary

The High Court of Australia considered an appeal by Mr Garlett concerning the constitutional validity of provisions within Western Australia's *High Risk Serious Offenders Act 2020* (the Act). The State sought a restriction order against Mr Garlett, who had been imprisoned for offences including robbery, which is defined as a "serious offence" under the Act. The central dispute revolved around whether the Act, by requiring a State court to make a restriction order if satisfied of certain conditions, impermissibly encroached upon the judicial power of the Commonwealth and compromised the institutional integrity of State courts.

The legal issues before the High Court were whether the function conferred by the Act on a State court was incompatible with that court being a repository of federal jurisdiction, and whether this function compromised the institutional integrity of the State court, particularly in light of the *Kable* principle. This principle concerns the limitations on State legislatures in conferring functions on State courts that are incompatible with the essential nature of judicial power, especially when those courts also exercise federal jurisdiction. The Court was required to determine if the Act compelled State courts to act under the dictation of the executive government or legislature, thereby undermining public confidence in the judicial process.

The High Court reasoned that the function conferred by the Act on the Supreme Court of Western Australia was not incompatible with its role as a repository of the judicial power of the Commonwealth. The Court held that in making a restriction order, the court is required to exercise its own evaluative judgment based on prescribed criteria to determine necessity for community protection, rather than acting under the dictation of the executive or legislature. The Court found that the processes involved in making such an order are familiar aspects of the exercise of judicial power, and that the legislative removal of procedural safeguards of fairness, which has been significant in previous challenges under the *Kable* principle, was not present here. The Court also noted that the Act does not preclude the court from considering the least invasive order necessary to ensure community protection, and that the possibility of legislative misuse does not invalidate the legislation.

The High Court dismissed the part of the appeal pending in the Court of Appeal of the Supreme Court of Western Australia that had been removed into the High Court. The Court concluded that the challenge to the validity of the relevant provisions of the Act failed.

Orders

Orders of the court

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.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

KIEFEL CJ, KEANE AND STEWARD JJ GAGELER J GLEESON J
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 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. The challenge to the validity of item 34 of Subdiv 3 of Div 1 of Sch 1 to the HRSO Act fails. 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. 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 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.

Ratio Decidendi

Legal Principle Established

Established by: KIEFEL CJ, KEANE AND STEWARD JJ, GAGELER J, GLEESON J

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 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. 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]. 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]. 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 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].