Jacka v Australian Capital Territory & Anor

[2015] HCATrans 81

[2015] HCATrans 081

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Canberra  No C7 of 2014

B e t w e e n -

MITCHELL JACKA

Applicant

and

AUSTRALIAN CAPITAL TERRITORY

First Respondent

CHIEF EXECUTIVE, DEPARTMENT OF JUSTICE AND COMMUNITY SAFETY

Second Respondent

Application for special leave to appeal

KIEFEL J
KEANE J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON FRIDAY, 17 APRIL 2015, AT 9.29 AM

Copyright in the High Court of Australia

MR J.S. STELLIOS:   May it please the Court, I appear for the applicant.  (instructed by Ken Cush & Associates)

MR P.J.F. GARRISSON, SC:   May it please the Court, I appear with my friend, MS H. YOUNAN, on behalf of the respondents.  (instructed by ACT Government Solicitor)

KIEFEL J:   Yes, Mr Stellios. 

MR STELLIOS:   Your Honours, the application concerns the validity of section 68(2)(f) of the Crimes (Sentence Administration) Act (ACT) authorising an administrative body, the Sentence Administration Board, to cancel the periodic detention of an offender, the result of which is that the offender must serve the sentence on a fulltime basis rather than periodically.

The applicant contends that the provisions are invalid on two independent bases. The first basis has two steps in it. The first step is that the cancellation order involves an exclusive exercise of judicial power. The second step under the first ground is that Chapter III of the Constitution prevents the ACT Legislative Assembly from conferring judicial power on a body that is not a court.

The second independent ground is a Kable ground, your Honours.  The argument is that the cancellation order contravenes the requirements of the Kable principle.  The ACT Court of Appeal rejected the first step in our argument under the first ground but did not consider the second step, and the Court of Appeal also rejected the second ground.  Your Honours, I will leave the second step of the first ground to our written submissions and in oral submissions I will focus on the first step in the first ground and the second ground ‑ ‑ ‑

KIEFEL J:   That is not the least because you do not get to the second ground unless you establish the first, so your special leave point either inheres in there or it does not.

MR STELLIOS:   That is correct, your Honour, and we do not get to the second step if we are successful on the second ground.  Your Honours, before I move to our substantive submissions, it is put against us that the periodic detention provisions are being phased out and consequently the question is of limited operation or application.

Your Honours, to demonstrate the impact the scheme has had on the liberty of a considerable number of people, we have handed up a table of statistics in relation to periodic detention over the last five years.  The figures are drawn from the annual reports of the relevant ACT Government department. 

Now, just some caveats about the figures, your Honours - there was some inconsistency across the reporting years in the way in which some figures were categorised so this table represents really our best efforts in providing a snapshot of a number of offenders who have been affected by the cancellation provisions or potentially affected by the cancellation provisions.

Your Honours, you will see in the first row, it sets out the average daily number of periodic detention orders over the last five years.  Now, it is not entirely clear from the annual reports what those figures represent.  Our best guess is that it represents the average daily number of offenders who are subject to a detention order, so on any given day what the average number of offenders, subject to those orders, has been.

Now, that would represent the absolute minimum number of persons in the year who would have been subject to a periodic detention order, on the assumption that each of those offenders was sentenced to a 12‑month periodic detention period over the same 12‑month period, but you can see from the figures in the rest of the table those daily rates are likely to be much more than those absolute minimums.

KEANE J:   So far as your client is concerned though – just looking at this particular case and its utility – your client served his sentence.  Is that right?

MR STELLIOS:   Yes, that is right, your Honour.  Two lots of sentences, yes.

KEANE J:   Success on this appeal will be of no utility to him.

MR STELLIOS:   The utility, your Honour, is that the applicant is entitled to a declaration as to whether or not his detention, his imprisonment on a fulltime basis was valid or invalid. 

KIEFEL J:   But the imprisonment – if one goes back to the original sentence – he was always sentenced to imprisonment.  Periodic detention was an alternative so long as conditions were complied with.

MR STELLIOS:   Yes, your Honour.

KIEFEL J:   So, it is not as if he is in a position where he is seeking to set aside the original sentence of imprisonment.

MR STELLIOS:   Your Honour, one of the arguments that I will get to is what is very important about the scheme is that there is a significant difference between periodic detention – two days a week – the difference between that and fulltime detention – seven days a week. 

KIEFEL J:   I think we can comprehend that.

MR STELLIOS:   If the applicant was entitled, over the period of his detention, to serve that detention on a periodic basis, the severity of that detention is significantly less than fulltime detention.

KEANE J:   So is this case the first step on the road to an action for false imprisonment?

MR STELLIOS:   It may well, your Honour - certainly a declaration that detention, fulltime detention was invalid would provide a basis for that kind of claim.  Yes, your Honour.

KIEFEL J:   As to that, under the Act, is it not the case that under sections 68 and 69 where there was a breach of the periodic detention obligations, the Board was obliged to cancel his periodic detention.

MR STELLIOS:   That is correct, your Honour.

KEANE J:   So if one just ignores the position of the Board for a minute and looks at the effect of the Act – one forgets about the Board – under the Act there was an order for periodic detention.  Under the Act, if your client breached the requirements of that order, the Act required the periodic detention to come to an end – so that if you did not have the Board there, all you would have had is the police coming to collect your client and put him into permanent detention.

MR STELLIOS:   In those circumstances, your Honour, the applicant would have access to the courts to determine whether or not the provisions of the Act had been complied with.

KEANE J:   Did he not have access to the courts to review any decision of the Board?

MR STELLIOS:   Yes, your Honour, there was the possibility of judicial review.

KEANE J:   So he had the prospect of review.

KIEFEL J:   Justice Refshauge reviewed the matter.

MR STELLIOS:   In the companion case of Lewis.

KEANE J:   Apart from that, in the material we have there does not seem to be a suggestion that your client did not breach the conditions of his order.

MR STELLIOS:   That is correct, your Honour.

KEANE J:   So looking at it with the benefit of a sense of reality, the situation is that there is no question that your client breached the order, there is no question that the Act required that his periodic detention be determined and he go into fulltime detention, and that is without having regard to the involvement of the Board at all.

MR STELLIOS:   Your Honour, I will say two things about that.  The first is that the power of the Board to cancel is not limited to situations where the exercise is ‑ ‑ ‑

KEANE J:   No, no, we were talking about the obligation of the Board to cancel.  The situation is that under sections 68 and 69, your client’s entitlement to periodic detention ceased and it ceased by force of the Act.

MR STELLIOS:   Your Honours, section 69 is only enlivened in circumstances where the Board has the power to cancel at section 68.

KIEFEL J:   But there are repeated failures to perform and that ‑ ‑ ‑

MR STELLIOS:   Yes, certainly.  I am not disputing that, your Honours, but ‑ ‑ ‑

KIEFEL J:   The question that the Board addresses is whether there are repeated failures to perform.  Is that not right?

MR STELLIOS:   In the circumstances of the applicant, yes, your Honour, but there are many other circumstances under section 68 which require a much more evaluative process to be undertaken by the Board.  So, for example, if the sentencing court put in place a good behaviour order as a condition on the periodic detention, if the sentencing court put in place a restriction order or a non‑association order that apply as periodic detention obligations ‑ ‑ ‑

KIEFEL J:   But these are hypotheticals, are they not, Mr Stellios, because it was section 69 that applied to your client?

KEANE J:   There might be cases where the Board gets it wrong but there is not the ghost of a suggestion that this is one of them.

MR STELLIOS:   Your Honours, it is not hypothetical in the sense that you cannot dissect the power within section 68 in its application.  If the power under section 68 is affected by invalidity - and, your Honours, I will get on to the arguments why we think they are invalid - but if it is affected by invalidity then its application to the applicant is the same, irrespective of the circumstances of the applicant. 

It is not hypothetical in that sense.  We have an exercise of power by the Board, granted - required by section 69, but we have an exercise of power by the Board to cancel the applicant’s periodic detention and, irrespective of the actual circumstances that gave rise to that cancellation, if the power itself, which is contained in section 68, is affected by invalidity then, your Honours, it is invalid in its application to the applicant.

KIEFEL J:   Well, moving then to the question of where the exercise of judicial power actually lies on your argument ‑ ‑ ‑

MR STELLIOS:   Yes, your Honours.  Just to complete the submission, so I am on the point that that is put against us, your Honours, our submission is that the scheme has had a considerable impact on the liberty of individuals, including the applicant.  It will continue to do so until July 2016 and, as we explained in our written submissions, there is scope for the provisions to apply beyond July 2016.

Your Honours, in light of the time, I will take you to – I was going to take your Honours through the provisions of the legislation but just to capture the operative provisions, we have two pieces of legislation.  We have the Crime (Sentencing) Act and then we have the Sentence Administration Act. 

The first Act, for present purposes, identifies the sentencing option.  So, imprisonment – fulltime imprisonment is the starting point, but it is only a starting point if there is no other option.  Periodic detention is an alternative to fulltime detention.  A suspended sentence is an alternative to fulltime detention.

KIEFEL J:   What were the terms of the order for sentence made here?  I am not sure I saw it in the original sentence.

MR STELLIOS:   No, it is not in the ‑ ‑ ‑

KIEFEL J:   In the materials.

MR STELLIOS:   ‑ ‑ ‑ in the materials, your Honour.

KIEFEL J:   Can you tell us?

MR STELLIOS:   There were two periods – two relevant periods.

KIEFEL J:   There would have to be first an order for a sentence of imprisonment for a term.  This is for a driving offence.

MR STELLIOS:   That is correct, yes, your Honour.  So, in terms of the first period, there was a sentence for three months fulltime detention to be served entirely on a periodic basis.  In terms of the second sentence, there was a period of eight months fulltime detention, four of which were to be suspended and then four of which were to be served on a periodic basis.  But on top of that ‑ ‑ ‑

KIEFEL J:   So, in each case, when the Board comes to consider whether or not there has been a breach of the obligations which would lead to a cancellation of periodic detention, the order for imprisonment is in situ.  All that happens is that the possibility of periodic detention is removed.

MR STELLIOS:   Your Honours, in our submission, we would characterise the provisions in the following way.  The periodic detention provisions – the sentence, your Honours, sets outs the rights and duties of the offender.  The extent to which the offender is entitled to be at liberty in the community and the corresponding obligations and the corresponding rights on the State to keep the offender in detention and deprive the offender of their obligation is identified in the sentence.  If a periodic detention period is identified in the sentence, then the offender is entitled to the extent of liberty that is identified by those provisions.

KIEFEL J:   Subject to maintaining – keeping to the obligations.

MR STELLIOS:   Absolutely, your Honour.  They are conditional but they are nonetheless rights and duties.

KIEFEL J:   Well, what then is the nature of the function and order of the Board?  It determines, as a question of fact, whether or not there has been a breach of the obligations and then, section 69(2), if there is such a finding, attaches to that and the consequence is that there is cancellation.

MR STELLIOS:   The consequence of the cancellation order, your Honour, is that the rights, the contingent rights and duties of fulltime detention that were identified in the sentence are then triggered.  It is the cancellation of the periodic detention which triggers the greater deprivation of liberty by fulltime detention.

KIEFEL J:   But it is triggered by operation of the Act.

MR STELLIOS:   It is triggered by the operation of the decision of the Board, your Honour.  It may be automatic in some circumstances under 69 but it is triggered by the decision of the Board.

KIEFEL J:   By the finding of fact of the Board.

MR STELLIOS:   By the finding of fact by the Board, your Honours, but, nonetheless, it is the decision of the Board that triggers the severity ‑ ‑ ‑

KIEFEL J:   But the consequences which are the hallmark of what you in your argument rely upon to identify the exercise of judicial power are provided for by the statute.  They are not part of the Board’s decision.

MR STELLIOS:   Your Honour, the question is whether or not the statute can validly create a scheme in this way.  It has created a scheme that confers on a board the power to make a cancellation decision.  Now, that cancellation decision may well be discretionary in many circumstances and it may be a requirement in circumstances covered by section 69, but it is the decision of the Board and, in our submission, the relevant question is what the character of that decision of the Board is and we would say, for the reasons that I have put forward, that the sentence identifies a set of conditional rights and obligations which is to periodic detention - they are conditional, but they are nonetheless rights and obligations.  The sentence also identifies a set of contingent rights and obligations, and that contingency is only triggered by the exercise of power by law to cancel the periodic detention.

Your Honours, for those reasons we argue that the cancellation, particularly when it may involve supervision of orders made by the court – good behaviour orders, non‑association orders, place restriction orders – particularly because of that, we say that the exercise of power by the Board requires an exercise of judicial power.  Your Honours, if I can very quickly move on to our Kable submissions and, your Honour, the Kable submissions arise – the case for invalidity can be presented in different ways. 

First of all, if we are correct on the character of the cancellation power, then the Board’s cancellation can be seen as directing the operation of the sentence which we say undermines the institutional integrity of the court.  Secondly, your Honours, the legislative scheme denies the court the power ‑ ‑ ‑

KIEFEL J:   It does not alter the order of the court.

MR STELLIOS:   Well, if our character of the cancellation power as involving an exercise of judicial power, if that were accepted, your Honours, then it does. 

KIEFEL J:   It probably means you do not need the Kable point then.

MR STELLIOS:   Well, no, your Honour, but there are added elements to our Kable argument.  The legislative scheme also brings in the court into this periodic detention scheme, requires it or authorises it to make certain orders – good behaviour orders, place restriction orders, non‑association orders – provides that they are to be conditions of the periodic detention sentence but then denies the court any role in supervising those orders.  The supervision of those orders is shifted to the Board and we say that that undermines the institutional integrity of the courts. 

KEANE J:   Even though it is subject to review?

MR STELLIOS:   Even though it is subject to review, your Honour.  The possibility of judicially reviewing the decision of the Board is no substitute for the court policing its own conditions.  Finally, your Honours, we would say that the way in which the Administration Act operates, whereby it splits the supervision of court orders across the courts and the Executive, operates in a way to blur the lines of accountability. 

Your Honours, I see that my red light has turned on.  To take the applicant as an example, a good behaviour order was made on the second occasion to condition both the suspended sentence and the periodic detention order.  The court supervises the good behaviour order for the purposes of the suspended sentence, but it is then the Board that supervises the good behaviour order for the purposes of the periodic detention, both of which impact on the liberty of the individual and we would say, blur the lines of accountability.

KIEFEL J:   We do not need to trouble you, Mr Garrisson.

The Court considers that there is no evident utility in the grant of special leave in this matter and that there are insufficient prospects of success to warrant the grant of special leave to appeal.  Special leave is refused.

AT 9.51 AM THE MATTER WAS CONCLUDED