Garlett v Western Australia

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.