Kable v Director of Public Prosecutions for NSW

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S114 of 1995

B e t w e e n -
GREGORY WAYNE KABLE
Appellant
and
THE DIRECTOR OF PUBLIC PROSECUTIONS FOR NEW SOUTH WALES

Respondent

BRENNAN CJ
DAWSON J
TOOHEY
GAUDRON J
McHUGH J
GUMMOW J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 7 DECEMBER 1995, AT 10.17 AM

SIR M. BYERS, QC: If the Court pleases, I appear with my learned friends, DR G.D. WOODS, QC and MR P.J. LITTLE, for the appellant. (instructed by Brezniak Neil-Smith & Co)

MR K. MASON, QC, Solicitor-General for the State of New South Wales: May it please the Court, I appear with my learned friends, MR P. MENZIES, QC and MR C.L. LONERGAN, for the respondent. (instructed by I.V. Knight, Crown Solicitor for New South Wales)

MR D. GRAHAM, QC, Solicitor-General for the State of Victoria: May it please the Court, I appear with my learned friend, MS P.M. TATE, for the Attorney-General for the State of Victoria, intervening in support of the respondent. (instructed by the Victorian Government Solicitor)

MR B.M. SELWAY, QC, Solicitor-General for the State of South Australia: If it please the Court, I appear with my learned friend, MR J.P. GILL, for the Attorney-General for South Australia, intervening in support of the respondent. (instructed by the Crown Solicitor for South Australia)

MR R.J. MEADOWS, Solicitor-General for the State of Western Australia: May it please the Court, I appear with my learned friend, MR D.N. JONES, for the Attorney-General for Western Australia, supporting the respondent. (instructed by the Crown Solicitor for Western Australia)

BRENNAN CJ: Yes, Sir Maurice.

SIR MAURICE: I gather we are alone, your Honour. The only question in this appeal is the validity of the Community Protection Act. What I would propose to do, subject to any views to the contrary that your Honours pressed on me, would be to take your Honours to the Community Protection Act, then I would take your Honours briefly to section 5 of the 1902 New South Wales Constitution Act, then go back to the 1855 legislation, the Constitution Statute and the Constitution Act, and section 106 of the Constitution and Chapter III which I say shed some light on the legislative power of the New South Wales Parliament.

Could I therefore go to the Community Protection Act. If your Honours have copies of it, your Honours will see it has a somewhat - at least my copy has a somewhat misleading indication but it talks about:

the preventive detention of persons who are, in the opinion of the Supreme Court, more likely than not to commit serious acts of violence.

If your Honours would then turn over and go to page 3, your Honours start of with subsection (1) which says:

The object of this Act is to protect the community by providing for the preventive detention (by order of the Supreme Court made on application of the Director of Public Prosecutions) of Gregory Wayne Kable.

The object of this Act is to protect the community by providing for the detention of Gregory Wayne Kable. That is its object and that is what must be applied. The judge is directed to apply that purpose by reason of section 33 of the Interpretation Act 1987 in the interpretation of the Act. Then they go on and say:

In the construction of this Act -

including, presumably, 3(1):

the need to protect the community is to be given paramount consideration.

That means that the protection of the community overrides any rights that Mr Kable may have to remain at large. Then they say:

This Act authorises the making of a detention order against Gregory Wayne Kable -

who is the appellant -

and does not authorise the making of a detention order against any other person.
(4) For the purposes of this section -

they identify who Mr Kable is. It is a man:

who was convicted.....of the manslaughter of his wife.

So the object of the Act is to protect the community by providing for Kable’s detention, that is it, and that is what the judge must apply the Act for. In doing that, he must treat the protection of the community as the paramount consideration.

That means, really, that there is only one consideration, the protection of the community, because you say there can only be two considerations; liberty and protection of the community. Of those, the paramount one is the community and, therefore, it must override the liberty. The liberty of Kable is subordinated, as a matter of legislative intention, directed to the judge.

Then if your Honours go to section 5, your Honours will see - I do not think I need worry your Honours with the interpretation section, unless my friend wants me to. It says:

On an application made in accordance with this Act, the Court may order that a specified person -

one would assume that Mr Kable is to be treated as a specified person -

be detained in prison for a specified period if it is satisfied, on reasonable grounds:
(a) that the person is more likely than not to commit a serious act of violence; and
(b) that it is appropriate, for the protection of a particular person or persons or the community generally, that the person be held in custody.

TOOHEY J: It is a curious way of dealing with the specified person, is it not? It says “a specified person”. There is no interpretation provision that I can see that would immediately identify who that person is and yet section 3 makes it clear what the intention of the statute is.

DAWSON J: Section 3 was - subsections (2) and (3) were added in the course of the passage of the bill through Parliament, were they not, Sir Maurice?

SIR MAURICE: Yes, your Honour.

DAWSON J: That explains why there is no homogeneity?

SIR MAURICE: Yes, one assumes that is right, but you would have thought, perhaps, time might be spared, but, apparently the rush of legislative business did not allow it. What your Honour Justice Dawson said is correct. So one must, therefore, I assume - and we have always proceeded on the basis that one would construe 5(1) as applying to Kable and to no one else, so that he is the specified person. Now, there are problems - I was going to say dialectically, perhaps semantically - in doing that but that seems to be the legislative intention.

So, your Honours, if one imagines a judge sitting for a moment and one has Mr Kable and the Director of Public Prosecutions and the judge says, “Well, what have I got to do? Well, I have got to give effect to the object of the Act which is to put Mr Kable in prison to secure the protection of the community.” Now, that is what 3(1) says, aided by 3(2). So that what the sort of jurisdiction that is imposed on the Supreme Court is a jurisdiction that it must act as the tool of the Parliament or of the government, so that it is, as it were, a form of automaton and, your Honour, later sections make that clear, and make the inconsistency of the possession of such a person of the judicial power of the Commonwealth, by reason of investiture under section 39, impossible to, in our respectful submission, sustain.

Then (2) says a minimum period is six months. “An order.....may be made against a person”, and I do not think that matters if he is in lawful custody and:

whether or not there are grounds on which the person may be held in lawful custody otherwise -

that is, to me at least, somewhat Delphic, your Honour but, however, there it is. Then it says ‑ and this is what my learned friend the Solicitor relies, naturally ‑ that:

More than one application under this section may be made in relation to the same person.

So, if you read that back into 5(1), it would seem to be a legislative statement but you may have indefinite imprisonment in slabs, or tranches as they say in another context, of six months. So that it may go on and on and on and on.

TOOHEY J: But when you say that the Court is an automaton, Sir Maurice, it must be satisfied, presumably, of the matters that are referred to in section 5(1).

SIR MAURICE: Yes, your Honour, but in coming to that satisfaction, it must apply the dictation contained in section 3 which says that:

The object of this Act is to protect the community by providing for -

his imprisonment. It is difficult to imagine anything clearer. It says the way you protect the community is putting him in gaol. That is what 3(1) makes clear. And then to ram that home, they say the protection of the community is the paramount consideration. That is the overriding consideration. All other considerations are subordinate.

TOOHEY J: But what if the judge said, “Well, I’m not satisfied, on reasonable grounds, that the person is more likely than not to commit a serious act of violence”?

SIR MAURICE: He could do that, your Honour, but he would have to say, “Well, nonetheless, I would have to reach such a conclusion by pursuing the commands in 3(1)”. It as if someone were to say to a Judge of this Court, “The paramount of this statute is that the High Court declare it valid and they must do so as the paramount consideration to, say, to the Commonwealth”, or something of that nature. So that what 3 does is reach into the judge’s mind to capture it and say, “Put him in gaol”.

What difference would there be if you had the Postmaster-General to do it or the sheriff and said, “Well, if you’re sstisfied, you, the sheriff, you just put him into gaol”. A judge is really the sheriff. He is making the order, putting him behind the bars. Section 6 allows warrants for arrest to be issued and then section 7, your Honours, it says:

On an application made in accordance with this Act -

which, presumably, must be by the Director of Public Prosecutions -

the Court may order that the defendant in any proceedings on an application for a preventive detection order be detained in prison for such period (not exceeding 3 months) as the Court determines.

So you have an application. Then you can put the man in gaol for three months. In particular, such an order may be made so as to enable the defendant to be examined, and I take your Honours to section 17(1)(c). That means medical practitioners, psychiatrists and psychologists. That is at, if your Honours have the pamphlet copy, page 6. Section 17(1)(c) says:

may order an examination of the defendant to be carried out by one or more duly qualified medical practitioners, psychiatrists or psychologists.

So they can then put the man in gaol so that psychologists and so on can examine him there.

Then:

reports on the defendant to be prepared.....section 17(1)(d).

If your Honours go to (1)(d):

may require the preparation of reports as to the defendant’s condition and progress by such persons as it considers appropriate -

Your Honours, that could be presumably anyone. It then may allow “other proceedings” - it may make an interim detention order:

to enable.....other proceedings to be brought for the purpose of committing the defendant to custody or other involuntary detention,
before the Court determines the application -

for preventive detention. Then under subsection (3):

the Court may extend the period of an interim detention order for such further period (not exceeding 3 months) as the Court determines ‑ ‑ ‑

GUMMOW J: On its own motion, it seems?

SIR MAURICE: Yes, your Honour, “or on its own motion”. I am not quite sure how it does that, but it must presumably look to these reports with no one there. There is no obligation on the court to say, “Well, we’ll hear the man because, by hypothesis, he’s in gaol. But we’ll look at this report and we’ll make another order; another three months”. Just skipping (4) for a moment, then it says:

(5) An interim detention order may be made, and its period extended -

that is presumably a reference to (3) -

in the absence of the defendant.

So this is the jurisdiction which is conferred on the Supreme Court.

(4) An interim detention order ceases to have effect, regardless of its terms, when the proceedings on the application for a preventive detention order are determined.

They mean “have been determined”, I would imagine. Then:

9.(1) A detention order may be made subject to such conditions -

that does not add much -

(including a condition specifying the particular prison.....as the Court may determine.
(2) A detention order takes effect on the date on which it is made or such later date as is specified in the order.

Your Honour, 10 just says people under 16 cannot be summarily put into gaol under this Act. Section 11 says:

On or as soon as practicable after making a preventive detention order, the Court must make -

its discretion is taken away, it must make:

a further order appointing one or more duly qualified medical practitioners, psychiatrists or psychologists as assessors to observe and report on the detainee during the period for which the order -

that is the preventive detention order -

is in force.

You can put him into gaol under an interim order so that psychiatrists can look at him, and when you do make a preventive detention order you are bound to make a further order directing his examination. So you take away his liberty by compelling - not only by imprisoning him - but by compelling him to submit to these forms of examination.

On making a detention order.....the Court may make a further order directing the Commissioner of Corrective Services to make a specified medical, psychiatric or psychological treatment available to the detainee.

Then, the court can amend - I do not think 13, unless my friend wants me to read it, carries the matter much further. Then section 14:

Proceedings under this Act are civil proceedings -

Manifestly they are not civil proceedings because he is put into gaol. However, the legislative statement is that despite what the Act does, despite its consequences, the State, presumably, is treating it as a civil proceeding:

to the extent to which this Act does not provide for their conduct -

that is the proceedings -

they are to be conducted in accordance with the law (including the rules of evidence) relating to civil proceedings.

We will come back to that later in section 17:

The court must not make a detention order against a person unless it is satisfied that -

he has made his case out “on the balance of probabilities”. That is, as I understand it, a civil onus. They can be commenced by summons but that does not matter particularly, but 17 does. It says:

In any proceedings under this Act, the Court:
(a) is bound by the rules of evidence -

Then (b) is:

may order the production of documents of the following kind in relation to the defendant:
(i) medical records and reports;
(ii) records and reports of any psychiatric in‑patient service or prison;
(iii) reports made to, or by, the Offenders Review Board;
(iv) reports, records or other documents prepared or kept by any police officer;
(v) the transcript of any proceedings before, and any evidence tendered to, the mental Health Review Tribunal; and
(c) may order an examination of the defendant to be carried out by one or more duly qualified -

Your Honours have already read that:

(d) may require the preparation of reports as to the defendant’s condition and progress -

I think I have already read it: Then (e) says it:

must have regard to any report made available to it under paragraph (d)

If one thinks of the conduct of the proceedings, the rules of evidence, which are ostensibly applied by 17(1)(a) are set aside by 17(1)(b), 17(1)(c), 17(1)(d), 17(1)(e), and:

may, if the interests of justice so demand, exclude any person -

except the parties -

from the whole or any part of the proceedings.

Then, it does not affect the right of a person to appear personally or by a representative; or to call witnesses; to cross‑examine; to make submissions. Then (3) says:

Despite any Act or law to the contrary, the Court must receive in evidence any document or report of a kind referred to in subsection (1), or any copy of such document or report, that is tendered to it in proceedings under this Act.

So if your Honours go back. It must receive in evidence:

(i) medical reports and records -

and I am looking at (b) -

(ii) records and reports of any psychiatric in-patient service or prison;
(iii) reports made to, or by, Offenders Review Board;
(iv) reports, records or other documents prepared or kept by any police officer;
(v) the transcript of any proceedings before, and any evidence tendered to, the Mental Health Review Tribunal;

and, presumably, any reports under (c), and then it may require this preparation under (d). It is emphasised there twice. One in (e) and one in subsection (3). If you imagine the hearing and you imagine a police officer in Bourke having heard of a report about a particular person - and that is tendered by the Director of Public Prosecutions - containing assertions that the police have heard some complaints and so on, that must go into evidence, and if it must go into evidence, the judge must give credence to it. What else can he do?

So if one thinks of all these reports and so on, it is obvious that the rules of evidence are not complied with. The reverse is the case. These provisions are inserted to give effect to the legislative dictate, or intention, that the Act is passed in order to have the appellant imprisoned. Your Honours, section 19 just says a detention order enables you to keep the detainee in gaol, or if they are already in gaol, section 20 says it only operates when your sentence expires. At least that is what I understand it as. Then section 21 talks about further reports including, if your Honours go to (3):

A report prepared by an assessor or by the Commonwealth of Corrective Services must contain particulars with respect to the following matters:
(a) a description of his general behaviour.....
(b) an opinion as to whether or not the detainee is still more likely than not to commit a serious act of violence.

So if you have the second application, then you have a statement of opinion which you must give effect to as to whether or not he should be kept in prison. Then they talk about ‑ ‑ ‑

TOOHEY J: Sir Maurice, could I just ask you this? Section 5 provides that an order may be made:

that a specified person be detained in prison for a specified period.

Does the Act throw any light on that expression, or do we just give it its ordinary meaning for any period that is specified.

SIR MAURICE: It says that it is not to exceed six months. If your Honour goes to (2):

The maximum period to be specified in an order -

I am sorry, I beg your Honour’s pardon. It used to be six months; that is the maximum, but then (4) says, “Well, you can make any number of applications against the same person”.

TOOHEY J: There appears to be no provision by which an order may be varied as opposed to running its course or made the subject of an appeal.

SIR MAURICE: There is a provision, I think, about revocation. The Solicitor tells me it is section 13:

On the application the Director of Public Prosecutions or a detainee -

it -

may amend a preventive detention order by reducing the period.....or
may revoke a preventive detention order.

TOOHEY J: Yes. I was really thinking of an application by the person in question.

SIR MAURICE: Yes, the only thing, I suppose, would be a detainee. If he is already in gaol, in other words, one would say - I assume “detainee” is defined. Yes, it is. If your Honour goes to section 4:

“detainee” means a person who is -

well, he need not be in gaol. An order may be made but - I suppose he could be out of gaol. But “detainee” is the person who is subject to the order. So he could make an application to revoke it or to amend it, and you must have regard to the most recent report under section 21, which seems to look to a case where he is in gaol. Section 21, Your Honours, looks to the detainee when he is in gaol, as I understand it. Because it starts off:

While a preventive detention order is in force:
the assessors.....the Commissioner.....

are to make reports to the Director of Public Prosecutions.

That is so he can bring another application or, presumably, not bring it.

Reports.....must be prepared:
at least once during the period -

whenever he asks for it. And:

A report prepared by an assessor or by the Commissioner of Corrective Services must contain particulars -

and there is the matter. When section 13(2) refers to section 21, it is talking about a detainee who is in gaol, at least in part:

In determining an application under this section, the Court must have regard to the most recent reports prepared under section 21.

Which are reports of a person who is imprisoned. So, it rather looks as though 13 would only give you a power to amend or revoke an order where you have been imprisoned. We would submit that is what subsection (2) is directed to. Your Honour, then 22:

A detainee is taken to be a prisoner -

for the purposes of the Prisons Act. These are provisions which say there is nothing in the law that prevents you being a prisoner. Then I do not think I need worry your Honours with (3), unless my friend wants that. Then 23:

A detainee must be discharged from prison at the expiry of the detention order.....unless there is lawful reason for continuing to hold the detainee in custody.

I am not quite sure what that means. “Lawful reason” may be an interim order under 7 or it may be an application.

TOOHEY J: Or he may already be subject to a prison sentence.

SIR MAURICE: Yes:

A detainee must not be discharged from prison, or allowed leave of absence from prison, otherwise than:
at the expiry of the detention order.....
or in accordance with an order made by the Court.

He must not be discharged from prison.

It is difficult to follow that, your Honour. That, I assume, qualifies 23(1) and says you have to have the expiry of the order or an order before you can be discharged and that applies despite any other act or law to the contrary. Then 24:

The jurisdiction of the Court under this Act is exercisable by a single Judge.

And there is a right of appeal. That is all that we wish to refer to. So, what we submit to your Honours is this, that what this Act does, in its application to the Supreme Court, is to dictate to the Supreme Court the order that the judge must make subject, of course, to what your Honour Justice Toohey said and the considerations that he must have regard to. It sets up its own regime of evidence contrary to the ordinary rules of evidence in order to secure his imprisonment. That is what it does.

It allows him to be subject to an interim order in order that a preventive detention order may be made. So that what the Court is doing when it is enforcing this Act is, first of all, putting into prison a person who has committed no offence for the imprisonment. It is said to be a civil thing but what it is is a sort of injunctive imprisonment and you can stay there forever provided the evidence which the Act tailors to secure detention is met and the judge must apply that evidence.

I do not want to read these sections if your Honours are already familiar with them but your Honours will remember that the 1902 Constitution Act ‑ ‑ ‑

BRENNAN CJ: Mr Solicitor, can you tell me what the regime outside the Community Protection Act is in relation to dangerous psychotics in New South Wales?

SIR MAURICE: Dangerous psychotics, your Honour? Perhaps I should ask Dr Woods to assist me on that. Can I answer that question a little later, your Honour?

BRENNAN CJ: Yes. Can I tell you why I am asking the question? First, there is the question of whether or not this Act is simply designed for persons of that calibre or character; and the second, whether or not, if there is presently a regime which would give them custodial care in a mental institution, for example, they are extracted from that regime and, subject to section 3, of course, put into this Act instead.

SIR MAURICE: Well, they are put into prison; that is all one can say.

BRENNAN CJ: If Kable is a dangerous psychotic, apart from this Act it may be - I do not know - that he is liable to have an order made against him under mental health legislation.

SIR MAURICE: But suppose he is not a dangerous psychotic?

BRENNAN CJ: Well, suppose he is not.

SIR MAURICE: He is still liable to have an order made against him under this Act.

BRENNAN CJ: I appreciate that. What I am concerned about is this: if he would have been liable under the Mental Health Act to have an order made against him so that he would be under some sort of care in an institution, is he removed from that and put under this regime instead?

SIR MAURICE: If an order is made against him under this Act, he must be subject to this regime, we would respectfully submit. It is quite clear as to what it says; it says, “You’re going to gaol, you’re going to prison”. The judge can say which prison it is, but it is difficult to call - I think Morisset is a - whether it is for dangerous psychotics I do not know, but it is difficult to think of that as a prison. But this is talking about a prison. This is putting people into prison. That is what it is doing. So, your Honours, it may be that ‑ ‑ ‑

McHUGH J: In New South Wales under the Mental Health Act, when a person is brought before a magistrate and is of the opinion that that person has ceased to be a mentally ill person, then the medical superintendent must release that person from custody, from detention. So it is impossible to see how the two Acts can work together.

SIR MAURICE: We would respectfully submit there is no mention here of unsoundness of mind. All they do is they say the test, the discrimen is: is he likely to commit serious acts of violence? That may not be his true intention but, if a psychiatrist says, “I believe he has that intention. It is my opinion that he would if released be a danger because he would commit serious acts violence”, then however specific his intention may be, he is put into gaol. That has really got nothing to do with, with great respect - it has got nothing to the Chief Justice’s question. There is no glimmer, we would respectfully submit, in this Act that it was to be limited to people who are insane, or whatever the current expression is. I must confess I am not quite au fait with it, but I am sure there is one and I hope your Honours will forgive me.

But at any rate, we submit what it purports to do is to say to a judge, “If you think this person is likely to commit serious acts of violence, put him into gaol”. That is it; simple. No question of there being insanity. In particular, since it only applies to one person, how can it be intended to have another regime for dangerous psychotics? There is no suggestion that the appellant is a dangerous psychotic.

In fact, of course, he has been released but, of course, is always subject to another application, that is why we are here. But, your Honours, in a sense ‑ I say released ‑ Mr Justice Grove ‑ I think it is in our written submissions and I do not want to repeat this sort of thing ‑ I do not want to repeat written submissions, but Mr Justice Grove did make an order saying that he would refuse to make a further preventive detection order, and we have put the date of it in our reply to my learned friend the Solicitor, and we do that only because my learned friend the Solicitor went to some length, presumably to support the validity of the Act, to say what a dangerous person Kable is. In fact a judge has refused to make an order.

Now, your Honour, section 5 of the 1902 Constitution says:

The Legislature shall, subject to the provisions of the Commonwealth of Australia Constitution Act, have power to make laws for the peace, welfare, and good government of New South Wales in all cases whatsoever.

And your Honours will remember that that section ‑ perhaps whilst I am at it, could I just take your Honours over to section 52, Part 9, because, in our submission, there is a State constitutional separation of powers, independently of the application of Chapter III. If your Honour goes to section 52, that was inserted by Act No 106 of 1992, and it refers to “judicial office” and sets out who they are, and then, if your Honour goes to section 53, it says:

(1) No holder of a judicial office can be removed from the office, except as provided by this Part.
(2) The holder of a judicial office can be removed from the office by the Governor, on an address from both Houses of Parliament in the same session, seeking removal on the ground of proved misbehaviour or incapacity.
(3) Legislation may lay down additional procedures and requirements to be complied with before a judicial officer may be removed from office.
(4) This section extends to term appointments ‑

I presume that is the appointment of acting judges ‑

to a judicial office, but does not apply to the holder of the office at the expiry of such a term.

Would your Honour pardon me a moment ‑ I will ask for some instruction ‑ with the great respect ‑ the fount of all knowledge is no wiser than I am ‑ he thinks it may be for future use, your Honour ‑ that is subsection (4) ‑ and it “extends to acting appointments”, and then:

(5)(1) No holder of a judicial office can be suspended from the office except in accordance with legislation ‑
(2) .....entitled to be paid..... ‑
Retirement ‑

and so on. And section 54 says:

does not prevent the abolition by legislation ‑

Now, what happened after that was that the Community Protection Act was passed in 1954 and my learned friend the Solicitor had a somewhat serpentine argument about this, but I will just leave him to develop it, your Honour.

In 1995 the Constitution (Entrenchment) Amendment Act 1992 which was 1995 (No 2), because they had to wait on the referendum, said:

In section 7B(1)(a), after “29,”, insert “Part 9,”.
At the end of section 7B, insert:
(8) The provisions of this section -

That is 7B:

do not apply to a provision of a Bill, being a provision that would, upon its coming into operation, be a law that amends section 52 for the purpose of extending the application of Part 9 to additional judicial offices or classes of judicial offices.

That has, to use my friend’s expression, entrenched it. I think he uses the expression “doubly entrenched it”. I will leave him to elucidate that, too. However, it was clear that in 1992 there was, in the Constitution, sections 52 to 55 providing for judicial independence.

May I just say a word about the Constitution Act 1855 (18 & 19 Vic c 54). This was the Act that was passed by the Imperial Parliament at the urgings, and they were slightly contradictory, of Mr Wentworth and Mr Parkes, as he then was. They had sent over their Bill which, as amended, is Schedule 1 to this Act. The first parts of it go on dealing with the wasteland and the civil list and section 4 which, if your Honours have the pamphlet reprint, is on page 151 of mine, said:

It shall be lawful for the Legislature of New South Wales to make laws altering or repealing all or any of the provisions of the said reserved Bill in the same manner as any other laws for the good government of the said Colony subject however to the conditions imposed by the said reserved Bill on the alteration of the provisions thereof in certain particulars until and unless the said conditions shall be repealed or altered by the authority of the said Legislature.

Then 8 says:

This Act shall be proclaimed in New South Wales by the Governor thereof within one month after a copy thereof shall have been received by such Governor and this Act and the said reserved Bill as amended as aforesaid.....shall take effect in the said Colony -

Section 1 said:

There shall be in place of the Legislative Council now subsisting one Legislative Council and one Legislative Assembly to be severally constituted and composed in the manner hereinafter prescribed -

If your Honours just set that apart for the moment:

and within the said Colony of New South Wales Her Majesty shall have power by and with the advice and consent of the said Council and Assembly to make laws for the peace welfare and good government of the said Colony of all cases whatsoever.

The proviso does not matter which deals with the relation between the houses. What this did, was to introduce representative and responsible government. I think in Clayton v Heffron the majority of this Court refer to the constituent power as deriving from the Act 18 & 19 Victoria.

The passage that I would wish to refer to is at page 251. That is Sir Owen Dixon, Mr Justice McTiernan, Mr Justice Taylor, Mr Justice Windeyer. At about 12 lines down:

There are many reasons for assuming that the assent of the Crown must always remain necessary but what ground is there for supposing that the Legislature must always remain defined in terms of two Houses? The purpose of the provision is to express the full legislative power of a State the authority of which is continued under ss 106 and 107 of the Constitution of the Commonwealth. The Legislature was endowed with constituent as well as ordinary legislative power. Section 5 -

and he is talking about the 1902 Act -

was of course enacted by the Legislature of New South Wales. But it was enacted in the exercise of the State’s constituent legislative power and that in turn depended upon an existing source of authority. That existing source of authority consisted in the Imperial Act (18 & 19 Vict. c. 54), commonly called the Constitution Statute 1855, and the Act of the Colony as amended which forms the schedule of that statute, otherwise 17 Vict. No. 41, commonly called the Constitution Act. To give the history of these two legislative instruments and to explain them would be rather to stray from the material point. They meant the establishment of a new legislature; at the same time the principles of responsible government were introduced and with that came the principles and conventions and general tradition of British parliamentary procedure. But what matters here is that the two instruments contain the source whence the constituent power of the Legislature is derived. It is therefore enough to say that in intended pursuance of a power conferred by ss. 32 and 33 of 13 & 14 Vict. c. 59 upon the then Legislative Council to establish separate legislative Houses and the like the Legislative Council passed a Bill which was reserved for the Royal Assent. In England it was considered to go beyond the power of the council in certain respects. Changes were made in it and the Constitution Statute was passed to enable the Queen to assent to it in its changed form.

Their Honours go on on the next page and come to the conclusion that section 1 of the local statute conferred full constituent power.

So that the 1902 Constitution is derived from 18 & 19 Victoria and its terms echo 18 & 19 Victoria and they could not exceed it because you have a subordinate legislature given legislative power only, there being already in existence a supreme court governed by imperial statutes which are referred to in the written submissions, 4 Geo IV c 96, and the other, the Australian Courts Act and so on.

Then the sole ground is legislative power, in a context in which a new Constitution and new mode of governments is set up and in which the continuance of the judges is expressly provided for. Your Honours, the judges are referred to in sections 38 of the local Act; it just says they continue and in section 42 it says the courts continue ‑ of course, there is power to abolish them. Section 38 ‑ ‑ ‑

BRENNAN CJ: Which Act are we looking at, Sir Maurice?

SIR MAURICE: The 18 & 19 Victoria, the schedule. Does your Honour have the schedule? If your Honour looks at the local Act ‑ I am just indicating the way in which this set up a form of government, namely a representative government, a responsible government and, therefore, no constituent power could take that away because that is imposed by the Constitution statute. You could not set up a dictatorship. Even without the Commonwealth Constitution, you could not do it. You could not do it because you would not have the legislature, would not have the power under the 1902 statute, which has to mirror the content of the legislative power granted in 1855. It cannot exceed it.

BRENNAN CJ: Can it create, for example, a representative legislative council? Because it has.

SIR MAURICE: Yes, of course it can. But what I am saying is it could not install a system which was not a system of representative government which did not possess responsible government.

BRENNAN CJ: But what do you say about the change from non‑representative to representative government?

SIR MAURICE: What I say about it is: that is derived from the Imperial Statute. What the 18 & 19 Victoria did by its own enactments and the local Act to which it gave effect was to set up a system of representative government and if one ‑ ‑ ‑

BRENNAN CJ: That is not so, though, is it, in the case of the Legislative Council?

SIR MAURICE: Yes, your Honour, but if one goes through it - in New South Wales traditionally there were legislative councils or others appointed by the governor initially and thereafter by the assembly. That ensured, until I think quite recent times - in fact I think it is still the case, but then I expect subject to correction there too. So that it is representative government, because the assembly is chosen by the people. Under the sections 9 and 10 and 12, a right to vote is given. What I am saying is you could not have a system of government which dispensed with the right to vote; in other words, ceased to be representative in that sense and ceased to be characterised by responsible government.

But the Act did not allow that because they are the boundaries set down by the Imperial Statute. I do not think it matters for present purposes. I am not saying that the New South Wales legislature is not representative, but I am just making that comment to say that the power is a limited one, of course. Perhaps I am prompted unnecessarily to say that now, because my learned friend is going to say it later, that it is supreme, the Parliament is supreme. As I understand it, that means it is supreme over the Constitution. However, he will say that and perhaps I should just leave that topic now.

Your Honours, those are the two grants of legislative powers: section 5 and section 4, section 1 of the schedule to the Constitution statute. I have taken your Honours to those. In 1901 section 106 provided that:

The Constitution -

that is the 1855 Constitution -

of each State of the Commonwealth shall, subject to this Constitution, continue as at the establishment of the Commonwealth.....until altered in accordance with the Constitution of the State.

“Subject to this Constitution” meant of course subject to Chapter III as well. When one goes to Chapter III, one finds that the Constitution treats as one institution all the judicial institutions of Australia, whether they are created by the Parliament of the Commonwealth or created by the Parliament of the States. I submit that, your Honours, with respect because it says:

The judicial power of the Commonwealth shall be vested in a Federal Supreme Court, to be called the High Court of Australia, and in such other federal courts as the Parliament creates, and in such other courts as it invests with federal jurisdiction.

So it is obviously looking to the courts of the States. Your Honours, the rest of that paragraph does not matter. But then your Honours will remember that under section 77(iii) there is the power to invest State courts with federal jurisdiction. Your Honours I think have been addressed recently about section 78, so I shall not even read it. Section 79:

the federal jurisdiction of any court -

this must apply to an invested court -

may be exercised by such number of judges as the Parliament prescribes.

Now, what it is talking about are courts and judges. Just as the Constitution has elaborated by the decisions of this Court have made it quite clear that there cannot be the investing in a federal judge of a jurisdiction or function incompatible with his exercise of the federal judicial power, so we say, that applies also to the State.

DAWSON J: Why?

SIR MAURICE: Why not?

DAWSON J: Why?

SIR MAURICE: Why? Your Honour, because the Constitution, in our submission, so requires.

DAWSON J: Where do you find that?

SIR MAURICE: I have taken your Honours to section 71. It says the Parliament may invest courts with federal jurisdiction. And section 77 says it may invest the courts:

any court of a State with federal jurisdiction.

That means the judicial power of the Commonwealth. So, if it is the court that must possess that, that is the recipient of the judicial power, so it is as much a recipient of the judicial power of the Commonwealth as is the High Court or the Federal Court, indeed, any court created by the Parliament. These are all courts that derive their federal judicial power, they, in other words possess the federal judicial power because of the laws of the Parliament passed under Chapter III.

DAWSON J: But what it says is that the Parliament can invest federal jurisdiction in a State court.

SIR MAURICE: Of course it does.

DAWSON J: And a State court may be one which, for instance, does not observe the separation of powers. So it says that the federal Parliament may invest jurisdiction in a court if it is a State court which does not observe the separation of powers.

SIR MAURICE: It does not say that at all, with great respect.

DAWSON J: It certainly does not say the opposite.

SIR MAURICE: Your Honour, that does not prove your Honour’s proposition, with great respect. What I am saying is that if you look to what may be invested in State courts it is the judicial power of the Commonwealth.

DAWSON J: Yes. And it has been said time and time again the Parliament investing judicial power in the State courts must take them as it finds them.

SIR MAURICE: Yes. I am not contradicting that. All I am saying is that the person in whom is invested the judicial power of the Commonwealth cannot be the recipient of an incompatible jurisdiction or function, and that applies to every possessor of the judicial power of the Commonwealth. There is nothing said anywhere that says you may have some judicial powers who are not really judges; some possessors of the judicial power are are not really judges and some who are. That is nonsense.

When your Honours recently in Grollo v Palmer, including your Honour Mr Justice Dawson, were speaking about - true it was your Honours were not talking about a State court, but your Honours were talking about the judicial institution and that ‑ ‑ ‑

DAWSON J: I do not understand that. There are Chapter III courts and there are State courts. They belong to different judicial institutions.

SIR MAURICE: They are different in many respects.

DAWSON J: They are different in fundamental respects.

SIR MAURICE: They may be, but not in the fundamental respect I am seeking to submit to your Honours. How can they be different?

DAWSON J: Because they are different institutions, that is why.

SIR MAURICE: The power of investiture is to invest a court of a State with federal jurisdiction. That does not mean the boundary rider riding around the fence. It means a court.

DAWSON J: No, it must be a court, and the courts of the States were existing institutions with existing characteristics.

SIR MAURICE: I am not disputing that, your Honour. All I want to say ‑ ‑ ‑

GUMMOW J: Sir Maurice, you say that, true enough, in 1900 they had these existing characteristics. This Act creates a jurisdiction which will be repugnant to those characteristics.

SIR MAURICE: That is so, your Honour, and is a characteristic which derive in part from Chapter III. The Supreme Court exercises the judicial power of the Commonwealth because it is invested under section 39(2).

McHUGH J: But it exists and if it exists what is there, apart from Part IX, stopping New South Wales from abolishing the Supreme Court?

SIR MAURICE: It would cease to exist.

McHUGH J: Or all its courts?

SIR MAURICE: I am not saying it cannot abolish the courts, your Honour, with great respect. All I am saying is, it cannot tell a judge who is invested with the federal judicial power that he is to be the automaton of the States, that is what I am saying, because that is inconsistent or incompatible, and if it is incompatible where the judge who derives the possession of the judicial power from the grant of the Commonwealth, in the sense that the Commonwealth creates the courts, it is equally inconsistent if he derives possession of the judicial power by the Commonwealth grant to a court. It has to be to a court. Of course the State can abolish the court, but it has nothing to do with it.

GUMMOW J: They would have difficulty in abolishing the Supreme Court, would they not, in the face of section 73 of the Constitution?

GAUDRON J: And section 106, because the court, at least in New South Wales, must be part of the Constitution of the State.

McHUGH J: In Clayton v Heffron, the fact that the then section 15 of the Constitution referred to both Houses of Parliament electing casual vacancies to the Senate was held by this Court not to prevent the State from abolishing its Legislative Council, and it has been done in Queensland.

SIR MAURICE: That might have been putting it a little high, with great respect, but they certainly indicated that Taylor’s Case would apply, I think. I think it is what your Honour has in mind. But they certainly did not say it and it had never arisen but, your Honour, what I am submitting, with respect, is that it is, in a sense, completely irrelevant to what I am saying to say that the Parliament can abolish the Supreme Court. Let me assume that it can. I do not concede it; let me assume it. It has not done it, so you have a court, because this Act invests this jurisdiction in the Supreme Court. So, you have it invested in the Supreme Court and you have a judge who is, in our submission, required to, by the State legislation, act as its automaton, and it may be putting it a bit high, but is required to apply an Act which says that its object is for him to send the man to prison. That is what it is all about, and which changes the law of evidence about it.

BRENNAN CJ: Is this the proposition, Sir Maurice, that if the Judiciary Act authorises, as it does, and, in fact, invests the judicial power of the Commonwealth in the Supreme Court of the States, it is inconsistent with that vesting of jurisdiction for a State Act to impose a jurisdiction on a judge of that court which makes the performance of that purportedly invested jurisdiction, inconsistent with the exercise of federal judicial power?

SIR MAURICE: That is all I have been labouring to say. I have not made myself clear, but that is what I want to say, and I say that derives ‑ ‑ ‑

DAWSON J: If that were so, then the State courts would have to observe the separation of powers which is imposed by Chapter III. That has never been suggested.

SIR MAURICE: Your Honour keeps on saying that to me, but I have not said it.

DAWSON J: It follows logically from the proposition to which you have just assented.

SIR MAURICE: Well, your Honour, I submit it does not. When it talks about the courts of a State, in section 77, it says:

Investing any court of a State with federal jurisdiction.

It is the court that gets it, and if there is no court, then there is no investiture. But, your Honour, to say that the courts have jurisdictions to send people to institutions, or whatever, as they do no doubt under the Mental Health Act and so on, that says nothing, nothing, to what I am submitting to your Honours, because undoubtedly the Supreme Court is invested with the judicial power of the Commonwealth, and for it to be required, or told, to behave in the way this Community Protection Act requires a judge to behave, is inconsistent with the court’s possession of the judicial power, because it is incompatible with the judicial office that the Constitution and the Judiciary Act impose, willy nilly, on the judges of the Supreme Court.

Now, that is what I am saying, and his Honour the Chief Justice has put it much more clearly, perhaps, that I have, and, your Honour Justice Dawson, I hope your Honour will acquit me of trying to say that therefore the Constitution of the Supreme Courts of the State are invalid. Your Honour knows I am not saying that. What I am saying is that once the Supreme Court is invested with federal judicial power, the State cannot make it exercise a jurisdiction inconsistent with the discharge of the federal judicial power any more than the Commonwealth can say to any of your Honours, or any Federal Court judge, “You are to do this; you are to decide the case this way”; you are to decide the case some other way”. It cannot do it because that is inconsistent. What with? The federal judicial power.

GAUDRON J: Sir Maurice, can I ask this: why do you link it to the actual investment of jurisdiction rather than the capacity to have jurisdiction invested?

SIR MAURICE: I say it derives ‑ in fact, in our written submission, we say, as from 1901. So that it really derives from Chapter III so that, as from that moment, the courts of the States are, like the Federal Courts, in potential, not in essay, but whatever the Latin phrase is for “potential” - potentially, the possessors of the judicial power of the Commonwealth. So far as the courts of the States are concerned, they do exist, so when one is looking to section 77 and when one is looking to section 71, one can say, well the courts of the State - the judicial power shall be vested in a Federal Court to be called a Supreme High Court, such other Federal Courts, such other courts as it invests with federal jurisdiction.

McHUGH J: Take the Equal Opportunity Tribunal in New South Wales: I think in Dao’s Case we held ‑ or I think I did anyway ‑ that that was a court. Can that be invested with federal jurisdiction?

SIR MAURICE: It depends on the federal jurisdiction. I do not see, at the moment, why, if it is a court and a court of a State, then it could be invested with federal jurisdiction. Unless one reads down the Constitution. The fact that it may have this other jurisdiction is not to the point, unless you say that the possession of that jurisdiction is inconsistent with the investiture when it comes, then there will be an inconsistency.

McHUGH J: One of my problems with your whole argument is that, while sections such as section 73 assume that Supreme Courts will exist, I have great difficulty in understanding how you can read it into section 73 that they must continue to exist. Is that not really your argument?

SIR MAURICE: Your Honour, it is not really. It is clearly the assumption of the Constitution that there will be courts of a State. Now, it may be only one but what it talks about are such other courts as it invests and 77, as your Honour will remember, says “any court of a State”. So obviously, the Constitution speaks to the then existing situation. There is nothing surprising about it. It could hardly speak, perhaps, to any other, although it envisages the continuance of that situation. What one is talking about here, with great respect, are institutions of government and traditionally, whether it is in England or the States, there is a separation of powers. There is no doubt about that. It is absurd, as well as wrong, to say that the Parliament is a court; it is not a court.

McHUGH J: It is said frequently, “High Court of Parliament punishes for contempt”. The House of Commons is referred to as the High Court of Parliament.

SIR MAURICE: The Parliament of New South Wales is not a court and never has been. It is a subordinate legislature.

McHUGH J: I am not sure that that is an accepted constitution of you, Sir Maurice.

SIR MAURICE: Your Honour, that is my submission. Your Honour may reject it. The reason why the Imperial Parliament is, as your Honour knows, because it is a court. Let us take the legislature of the Northern Territory. One could hardly say that is a court, and I think there is some decision to that effect. Your Honour, if one is thinking about the courts of the State, they have never purported to exercise judicial power until this, never. They have never passed acts of attainder. They have never executed saying, “Byers shall be executed at dawn tomorrow”.

McHUGH J: What about when they expel members of Parliament such as Krick or Armstrong?

SIR MAURICE: Yes, but your Honour might say the same thing about a club. There is a case about Cameron v Hogan, I think it is, years ago; it is probably about a football club.

McHUGH J: What about when the federal Parliament commits Fitzpatrick and Brown to prison? What do they actually do?

SIR MAURICE: Yes, but that is deriving ‑ ‑ ‑

McHUGH J: Are not they acting as a court?

SIR MAURICE: Your Honour is very difficult, if your Honour does not mind me saying so, but your Honour will remember that section 49, which did figure in...... It says:

The powers, privileges, and immunities of the Senate and of the House of Representatives, and of the members and the committees of each House, shall be such as are declared by the parliament, and until declared shall be those of the Commons House of Parliament of the United Kingdom, and of its members and committees, at the establishment of the Commonwealth.

And I speak with a vague recollection of the case, and your Honours’ recollection is obviously much clearer than mine and much more recent butfrom my recollection, section 49 did play some part in the decision to which their Honours came. Whether your Honours agree with it or not, in our respectful submission - and that is what I am here to do is to put the submission ‑ ‑ ‑

DAWSON J: Sir Maurice, can I just make sure that I understand it?

SIR MAURICE: Yes, your Honour.

DAWSON J: That what you are saying is, that a court is not a court, at least within the meaning of Chapter III, unless in the exercise of its functions, the separation of powers is observed.

SIR MAURICE: I am not exactly saying that. I am saying that the power of the Parliament does not extend to disestablishing a court. In other words, to imposing upon a person possessing the judicial power of the Commonwealth’s functions or jurisdictions incompatible with the exercise of the judicial power of the Commonwealth. That is all I am saying, your Honour.

BRENNAN CJ: That is really seeking to apply to the investing of the jurisdiction under the challenged Act here the test which was applied by this Court in Grollo, is that right?

SIR MAURICE: Yes, that is right, and I say the language in Grollo - and I have referred to the language of the joint judgment - your Honours are saying federal judicial institutions. If one thinks of the judicial institutions of the Commonwealth and the judicial institutions possessing the judicial power of the Commonwealth, how can it be said that the Supreme Court is excluded? And it cannot be said.

So it is a judicial institution. In a sense that was the reason for Chapter III, that you will have an Australian judiciary. That is the reason for it. True you will have the laws of the States but you will have the laws of the Commonwealth enforced by judges, by men of independent judgment.

McHUGH J: And women.

SIR MAURICE: I was going to say the greater includes the less, but that is not the right quotation. I am indebted to your Honour, obviously. At any rate, I shall not say any more about it because your Honour succeeds in embarrassing me when - nothing that your Honour has said to date has done that. However, men and women of independent judgment exercising the judicial process without direction. You cannot direct the manner in which the power is to be exercised. I say that that is compatible with - that Grollo is consistent with what I am submitting to your Honours.

BRENNAN CJ: It may be consistent, but are you seeking to apply any different test?

SIR MAURICE: No. How can one apply a different test when the same function is in question? The fact that the possessor has a different route of title, as it were, in one sense - in other words, it makes no difference - perhaps I should clarify it. You have the judge of the Supreme Court, for example, who is appointed to the structure created by the State legislation, but into that institution there is poured the judicial power of the Commonwealth. Thus every possessor of the character of a judge is invested with the judicial power of the Commonwealth which he must exercise in the appropriate case. It is always there for exercise in his judicial office.

Of course, Grollo I think was concerned with these warrants. But if one is concerned with something that occurs in the pursuit of the judicial power, the case is the more obvious. This instant case is where there is one defendant and one judge, one court and one plaintiff and where the investing - the State legislation says, “You are to put this man into prison. You are to do that. I direct you to do it.” That may be a slight overstatement but that ‑ ‑ ‑

DAWSON J: Why do you not simply say - assuming that what you are saying is correct in one sense - that if the court alters its nature or has its nature altered by being required to exercise functions such as this, then that prevents the Commonwealth from investing it with jurisdiction, because it is not a court within the meaning of Chapter III? That is the logical way of going about what you are putting.

SIR MAURICE: Your Honour, I feel somewhat loathe to say that for obvious reasons.

DAWSON J: Of course.

SIR MAURICE: Indeed, in our submission, it is not a true analysis - and I say that with complete respect - of the situation because what - I am not saying the Supreme Court ceases to exist either in the meaning of the Constitution or any other way.

DAWSON J: What you are saying is the Commonwealth Constitution requires the States to keep their courts in such a condition as they are the appropriate receptacles for Commonwealth judicial power and thereby governs the nature of those institutions.

SIR MAURICE: But that is a truism. Of course I am.

DAWSON J: Well, I would have thought so.

SIR MAURICE: But, your Honour, there is no - and I speak subject to correction - rule that the judicial power of the Commonwealth which is invested in the court of a State is invested in persons materially different from the judges.

DAWSON J: But the Commonwealth does not have to invest a jurisdiction.

SIR MAURICE: I know it does not have to, but it has.

DAWSON J: That does not matter.

SIR MAURICE: Your Honour, I know it does not have to do it, but it has done it, and it is the position that exists that I am concerned with.

GAUDRON J: Does that take you to section 109?

SIR MAURICE: On one view, it would be under section 39; you would have an inconsistency. What we would seek, perhaps, to say is that it is Chapter III itself that denies power to the States, that once the implications of Chapter III are elicited then the denial of the State authority is clear. An alternate way to put it is inconsistency.

McHUGH J: Well, the one argument that I thought might be put in this case and it has not been put in this part is that your argument would be that this Act is inconsistent with section 39 of the Judiciary Act because the Judiciary Act has invested the Supreme Court with federal jurisdiction on the basis that it is a court and that this legislation, in effect, may alter the nature of the institution so that it is no longer a court for the purpose of Chapter III, if this Act is valid.

SIR MAURICE: Not that it is no longer a court. What I am saying is that it seeks to impose an incompatible function. That is what I am saying. Therefore, it is invalid. It is invalid either because of Chapter III or inconsistency, but it is invalid and, your Honour, it is not that the court of a State ceases to exist. I mean, how can it cease to exist?

McHUGH J: Well, it cannot cease to exist but it would seek to change its nature. It could still be an institution but it would not be a court for the purpose of the Constitution.

SIR MAURICE: What happens to the judicial power?

TOOHEY J: Your argument does not have to go that far, does it. I understand your argument today to be that your attack is on the jurisdiction conferred in the way that it has been conferred under this Act, not on the institution.

SIR MAURICE: I thought I had made that clear, but obviously I have not. That is my fault, of course. I thought I was saying that there is an incompatibility between this jurisdiction and the possession of the judicial power, and that is all that is necessary to show that the Act is invalid.

TOOHEY J: Could I just ask you this: do you derive any support or is there any relevance to be found in covering clause 5 of the Constitution?

SIR MAURICE: If your Honour has observed it, I am sure there is.

TOOHEY J: No, the question was asked in all innocence.

SIR MAURICE: I have never known a judicial question asked in all innocence in my life. However, there is, of course:

This Act, and all laws made by the Parliament of the Commonwealth under the Constitution, shall be binding on the courts, judges, and people of every State and of every part of the Commonwealth, notwithstanding anything in the laws of any State -

The rest does not matter. There is, I imagine, that what I am seeking to do is to make clear that just as section 106 continued the 1855 Constitution, it did so subject to the Constitution because that is what it says; and subject to the Constitution includes every relevant part of it. A relevant part of it is Chapter III. I have said that, perhaps, ad nauseum and I think your Honours understand, however reluctant some, at least, of your Honours may be to accept that. But, that is the way we wish to look at it.

Then we say that we have addressed in the written submissions - and I am not going to take your Honours through the written submissions - we have addressed them on a basis which I will set aside for a moment - that is the question of Austin and laws, and I will come back to it in a second. Perhaps I should deal with that now. The heading is about bills of attainder and pains and penalties, is relevant because they are all questions of separation of powers and judicial powers.

BRENNAN CJ: Sir Maurice, before you get to that, could I just make it quite clear that your argument on Chapter III is based on incompatibility of function. Is that correct?

SIR MAURICE: That is so.

BRENNAN CJ: So that it is not a question of whether the power that is invested is a non‑judicial power so as to concern us with the subject of separation, but whether the power that is invested, albeit non‑judicial, is incompatible. Is that right?

SIR MAURICE: That is right.

BRENNAN CJ: We now go to a different area of discourse dealing with separation, is that so?

SIR MAURICE: What I had intended - it is incompatible because of the Constitution. In other words, you get to incompatibility because of section 106 and Chapter III. That brings you to incompatibility.

DAWSON J: But incompatibility rests in the function which the Act in question vests in the Supreme Court, is incompatible with the judicial function.

SIR MAURICE: That is right.

DAWSON J: That is a separation of powers.

SIR MAURICE: I thought that is what I was saying.

DAWSON J: But what you are really saying is the Constitution requires the courts of the States to keep themselves free from incompatibility of that sort in order to be suitable receptacles of the judicial power of the Commonwealth.

SIR MAURICE: I am not putting it quite like that, but that is the substance.

DAWSON J: That is what it means, is it not?

BRENNAN CJ: You do not have to ‑ ‑ ‑

SIR MAURICE: Every prevailing or prevalent common law has that effect, and there is no novelty in it.

DAWSON J: It is very novel to me.

SIR MAURICE: Your Honour, I apologise, but I would think possibly it had occurred to your Honour in passing, whether or not your Honour immediately rejected it, but what I am submitting - well, I think I should be quite clear. I do not want to be difficult with your Honour, but I feel some reluctance to accept the chalice that your Honour holds out to me on the view, perhaps, it might be poison, but I do not mean that in any offensive ‑ ‑ ‑

DAWSON J: It was put in a very frank way.

SIR MAURICE: Your Honour is always frank with me and I have been always frank with your Honour, but your Honour understands that your Honour’s language is always precise. So I must, not being precise myself, endeavour to guard my acceptance of what your Honour says to me, and that is why I have been treating your Honour’s comments the way I have.

McHUGH J: Sir Maurice, how does this argument of yours work with, say, the New South Wales Industrial Commission? It exercises both judicial and non-judicial functions. Could this jurisdiction under the Community Protection Act be given to it consistently with Chapter III of the Constitution?

SIR MAURICE: The question is, is it incompatible? What I am saying: is the jurisdiction which the State is imposing on its judicial officer incompatible with his character as a possessor of the judicial power of the Commonwealth and of its exercise? It does not mean that he may exercise non-judicial functions. After all, judges appointed by the Commonwealth exercising non-judicial functions, and your Honours go to some extent to point out in Grollo how that came about and why it was valid. It was a personae designatae with the exception of your Honour Mr Justice McHugh who took the view that it was inconsistent or incompatible with the possession and exercise of the judicial power of the Commonwealth.

His Honour the Chief Justice has said to me, that is what I am putting, and I am putting it in relation to all exercises of power imposing authorities or commands upon persons who possess the judicial power of the Commonwealth from wherever they come, Commonwealth or State. I am saying that Grollo is consistent with that. I do not want to repeat that again, your Honour. I say a reference to the federal institutions emphasises that what we are talking about is those characteristics which a possessor of the judicial power of the Commonwealth, however derived, must possess.

Your Honours, could I set aside Mr Austin and “What’s a Law” just for a moment, because I shall not take your Honours very long on that. We have also submitted to your Honours that the power that the Parliament of New South Wales has is legislative only and that, therefore, it has never been a court, particularly when one bears in mind that, under imperial legislation initially, the Supreme Court was set up. And we gave your Honours the references to the earlier statutes, 9 Geo IV, the Charter of Justice and so on, the Australian Courts Act and I think it is in the Australian Constitution Act.

BRENNAN CJ: But what does that matter, Sir Maurice? We are not talking, in your argument, as I understand it, about an exercise by the Parliament of judicial power, are we? We are speaking about an attempt to invest in the Supreme Court of the State a power which is non‑judicial.

SIR MAURICE: Yes, but because the Parliament has exercised the duty, in a sense. The alternative of that that I want to put: it is non‑judicial in the court because the Parliament has captured ‑ your Honours pardon these metaphors, but what it has done by its dictates as to evidence and its dictates as to section 3, it has captured the mind of the adjudicator by telling him what he shall do. So that there has been, by the Act, an intrusion ‑ in other words, a partial exercise ‑ a usurpation if you like that phrase, one uses that phrase ‑ of the judicial power. That is when it is done, when it says, “You put this man into prison; this is how you’re to do it”. The Parliament is saying, when it says the object of this Act is to put Kable into gaol, it is saying, “I want Kable in gaol” and this is ‑ ‑ ‑

BRENNAN CJ: Say it had said that directly, “Kable shall go to gaol; Kable shall go directly to gaol”, now, if it had said that, what would have been your argument?

SIR MAURICE: If it had said, “Kable shall go to gaol”?

BRENNAN CJ: Yes.

SIR MAURICE: That would have been clearly a judicial exercise.

BRENNAN CJ: Would it have been judicial on that account?

SIR MAURICE: Yes. Suppose it had said, “Kable shall be sentenced to death; Kable shall die” and then said ‑ I do not think there is any hangman at the moment, but suppose said to the hangman, “Hang him up; stick him up”?

DAWSON J: Because he is dangerous?

SIR MAURICE: For whatever reason.

BRENNAN CJ: Yes. Let us assume that there is no reason specified. In other words, it is a completely arbitrary exercise of power by the Parliament. What is the answer to that, because is that not your real case?

SIR MAURICE: Would your Honour just say that again?

BRENNAN CJ: If the Parliament purported to pass an Act which said “Kable shall go to gaol, or Kable shall die”, or whatever it may be and it does not matter for what reason, what would be your answer to that? Because, is that not the real nature of your case?

SIR MAURICE: It is analogous to the real nature of my case.

DAWSON J: I would have thought you would have said it was not because ‑ and that is why I added “because he is dangerous” because in that event, Parliament is passing judgment upon the grounds for which the penalty is inflicted. In the case put to you by the Chief Justice it is different, it is just saying something. And in the latter case, you really get close to exercising judicial power.

SIR MAURICE: I accept what your Honour says. That in a sense - as your Honour sees, there is no command addressed to Kable. It does not say, “Don’t engage in serious acts of violence”. It says nothing to him except that, “You can go to gaol”. That is all it says. It is like a lettres de cachet, “Put him into gaol”, only it is a command directed to a judicial officer.

BRENNAN CJ: That is what seems to me to be the dilemma which your argument faces. If it is right to say that a command “that a person shall go to gaol if he be dangerous” smacks of judicial power and therefore cannot be exercised by the Parliament, that on one construction at all events of section 5 of the Act is the power which has been invested in the Supreme Court. If, on the other hand, section 5 is a mere sham and the true command is that the judge is the mere pawn of the Parliament whose real will is to say, “You shall simply go to gaol, Kable”, then what is the answer to that? It either is judicial power or non‑judicial power.

SIR MAURICE: It is like saying if you impose a punishment on a person without a trial, then that, as I understand it, has been classically said to have been a legislative exercise of judicial power. Your Honours of course had to look at all these cases, Polyukhovich and - I do not think your Honour the Chief Justice found it necessary to do so, but certainly your Honour Justice McHugh did and your Honour Justice Toohey. But if the legislature says, “Gaol officer, put Kable in gaol”, that is a sentence, that is depriving him of his liberty without a judicial intervention. It takes away his freedom. If it says “Execute him”, that also is a judicial exercise because it takes away his life without a trial.

Those functions, those ad hoc functions, specific functions, in other words functions about particular people, nominated people, are what the judges engage in. Here we are with one person involved. We have only got one person involved. There can only ever be one sentence and that is a sentence really dictated by the legislature when it says what the object of it is and when it said, “I have decided that he is dangerous and you have to put him into gaol”. That is what we are saying. That is to intrude into the judicial power. It can do it by trying to tell the judge how he is to exercise his judicial function. That is what I have been labouring to say. That is what this statute does. It says, “This is my object. Put this man into gaol”.

Now, I have also taken the view that he is dangerous to the community. That is what section 3(1) is saying, as Mr Justice Dawson pointed out to me. He says, “Well, the object of this Act is to secure the State by putting him into prison.” Now, that is not the exact language, but that is the substance of it, and then subsection (2) reiterates that idea and then you have (5) where the man who is to do the gaoling is told what he must do. And, what I am saying is that that is inconsistent with the possession of judicial power.

It, in fact, is an exercise by the legislature in part. Now, whether you call it intrusion, usurpation, dictation, what the legislature has done has to take up part of what the judge should be left to do. And it has taken up part of what the judge should be left to do by section 3. Now, it has taken it away and said, “This is my object, and you must apply this Act in accordance with that object. That is how the Interpretation Act works.

TOOHEY J: Is there something particularly significant in the singling out of an individual?

SIR MAURICE: Yes.

TOOHEY J: As opposed, for instance, to the singling out of a group?

SIR MAURICE: Well, the singling out of an individual brings it closer to the judicial power. The judicial power is involved between two individuals. Now, when one has - so there is always something specific about the judicial power. To have a law about one person never intrudes, really, on some views. This is made clear by a quotation in Liyanage v The Queen 1937 AC, the page where their Honours quote Blackstone, at page 291. Their Lordships have set out what the Sri Lankan Court, or the Ceylonese Court then, I suppose, said, and that is at page 291, and then they go:

One might fairly apply to these Acts the words of Chase J.....Calder v Bull: “These acts were legislative judgments; and an exercise of judicial power.”
Blackstone in his Commentaries said:
“Therefore a particular act of the legislature to confiscate the goods of Titius, or to attaint him of high treason, does not enter into the idea of a municipal law -

it is not general, in other words -

for the operation of this act is spent upon Titius only and has no relation to the community in general: it is rather a sentence than a law.”

Now, we are saying those words apply to this Act.

TOOHEY J: I am not sure that that really answers the question, though, does it? Say the Act in section 3 said, “The object of this Act is to protect the community by providing for the preventative detention of the members of X organisation.” Then went on much as the Act is presently framed with section 5. I am not suggesting that the principle would be any different. I am simply asking, “Is there a difference in the singling out of an individual and the members of a group or an organisation?”

SIR MAURICE: There is a difference, your Honour, because for an Act to apply to one person, and in an area which is, as it were, a function of the criminal courts traditionally, to pursue. You see, your Honours, this is something analogous to a crime because it is not expressed as a crime. It is expressed not to be criminal. But what it is is taking away someone’s liberty and it is only taking away one person’s liberty, and it says to the judge, “You must, in our respectful submission, take away this one person’s liberty because he is the only one in issue”. That is it. It is rather the State against Kable. It is done in the form of an Act of the Parliament, but that is what it is, the State against Kable, and that is why 3(1) and (2) are there, to ensure that the State wins the action.

Might I just remind your Honours of some observations Mr Justice Jacobs, in the case of Reg v Quinn 138 CLR 1, and the passage is at page 11, where his Honour says:

The historical approach to the question whether a power is exclusively a judicial power is based upon the recognition that we have inherited and were intended by our Constitution to live under a system of law and government which has traditionally protected the rights of persons by ensuring that those rights are determined by a judiciary independent of the parliament and the executive. But the rights referred to in such an enunciation are the basic rights which traditionally, and therefore historically, are judged by that independent judiciary which is the bulwark of freedom. The governance of a trial for the determination of criminal guilt is a classic example. But there are a multitude of such instances. One of them has been held to be the determination of a status of a person whereby the right to recover money owing by that person is barred.

Now, to take away a person’s liberty, one may think, although one says it is a civil action in form, it is criminal in its consequence. This Act, seeing it applies only to one person, therefore, verges on or becomes closer to an exercise by the legislature of a judicial function.

Now, as your Honour the Chief Justice was saying to me, if they had said, “Well, right, into gaol with you, Kable”, right, that would be a sentence, “for an indeterminate period, but we will have a look at it every six months, be no doubt”. But when they say, “Into gaol with you, Kable, but we will have someone”, namely a judge of the Supreme Court, “upon whom we will impose, according to the rules of his office, the obligation to apply what we say, and what we will say is, ‘He must put you into gaol”. Now, what is the difference?

How can you say of that law that it is a general municipal law? If this quotation ‑ ‑ ‑

DAWSON J: You are really saying it is not a law at all. When the Queen says “Off with his head”, she is not determining rights, she is not ‑ ‑ ‑

SIR MAURICE: That is right, that is the first argument. The first argument we are saying is that this is just not a law. We have relied on what Austin said, that a law relates to laying down a code of conduct. This does not do that. It just says “Into gaol with him”. It does not say to Kable, “Do this; don’t do that”. He cannot do anything except be a defendant in an action; that is all. It does not say, “You must ‑ ‑ ‑

DAWSON J: Be a defendant in an action that is determined at the same instance.

SIR MAURICE: That is so, your Honour. It is predetermined. The whole thing is predetermined. At any rate, I should not go into the language of - I was almost going to say it is a ramp but I shall not, having said it. But your Honour sees that it is predetermined. If there is any validity in the quotation of Blackstone - and we submit there is - then this is rather a sentence than a law. Their Lordships go on to say:

If such Acts as these were valid the judicial power could be wholly absorbed by the legislature and taken out of the hands of the judges. It is appreciated that the legislature had no such general intention.

They had a specific intention here; there is no doubt about that.

It was beset by a grave situation -

and so on. Their Lordships sort of calmed down the appellant, I think.

What is done once, if it be allowed, may be done again -

and so on. What they say is that the Act was invalid. There was a judicial power conferred on people and the legislature told them what to do and it was invalid. What the Act was saying was, if your Honours look at page 291 again, the quotation. They say:

The trial court concluded its long and careful judgment with these words:
“But we must draw attention to the fact that the Act of 1962 radically altered ex post facto the punishment to which the defendants are rendered liable. The Act removed the discretion of the court as to the period of the sentence to be imposed, and compels the court to impose a term of 10 years’ imprisonment, although we would have wished to differentiate in the matter of sentence between those who organised the conspiracy and those who were induced to join it. It also imposes a compulsory forfeiture of property. These amendments were not merely retroactive: they were also ad hoc, applicable only to the conspiracy which was the subject of the charges we have tried. We are unable to understand this discrimination. To the courts, which must be free of political bias, treasonable offences are equally heinous, whatever be the complexion of the Government in power or whoever be the offenders.”

That is what that did, and what this does, I do not want to reiterate it, but not only do they say what it must do, but they change the rules of evidence and they say, “This is to be admissible”, and so on. I have already indicated those which allow ad nauseam opinion evidence of any policeman, review boards, mental health review boards, offenders review boards and so on.

BRENNAN CJ: Sir Maurice, if the Act were shorn of section 3(1), (3) and (4), in other words, eliminated the reference to Kable so that, in form, it appeared to be a general law authorising applications to be made on the condition specified in section 5, what would you say about its validity then?

SIR MAURICE: I would be saying I was talking to a different Act. The question then would be whether the Constitution of New South Wales enabled so radical a departure from the rule of law as to imprisonment to prevent a crime, not a punishment for crime, not imprisonment upon conviction, but imprisonment upon no conviction and imprisonment indeterminate in its length. So that it would then extend, on the assumption your Honour the Chief Justice put to me, to sentences that would last forever.

BRENNAN CJ: Would you be able to distinguish it from the kind of mental health legislation that relates to psychotics?

SIR MAURICE: It has got nothing to do with mental health.

BRENNAN CJ: In point of legal principle, would you be able to distinguish it in the sense that the mental health regime, at all events so far as I can see it in terms of the Mental Health (Criminal Procedure) Act and the Mental Health Act, do allow for the compulsory incarceration of persons who are a danger to others?

SIR MAURICE: Your Honour, there are long traditions of areas where there have been particularly draconian powers. Customs is a classic example, and your Honour will remember Burton v Honan where this Court pointed out that the power to - I think it was a case about selling someone’s motor car. He was an innocent person, but the car happened to be imported without a licence or some such thing, and the Court said, “Well, the Customs has traditionally extended to draconian relief”. You can say that mental health is of a similar nature, but we are not concerned with mental health.

So the way I answer your Honour is to say; you must judge like by like. You cannot judge like by unlike and you cannot say, if a person is considered likely to commit serious acts of violence, or if a psychiatrist comes to that view, you can put him into gaol forever, is the same thing as saying you can put a murderer psychotic into gaol. They are different, they are totally different.

Your Honour, one cannot rewrite the language. That is all the legislature has, and that is all your Honours have and your Honours must, with great respect, proceed upon this legislation by what it says, not by what it does not say. So, if one looks at it by what it says, it says, “If there is this danger of serious acts of violence” ‑ nothing to do with insanity - and the way we would distinguish is the way I have endeavoured to put to your Honour the Chief Justice, and no doubt you can think of hundreds of illustrations but one can think of things that may be done in wartime, where, perhaps Draconian things, like imprisoning people who may be suspected of intercourse with the enemy and things of that sort. They have been supported because of the uniqueness of the occasion, but that is not this case. This is totally different. Your Honours, it is not simply a case about preventive detention, it is a case about preventative detention of one man where the judge is told, in our submission, what to do and where the laws of evidence are changed so that the desired end can be met.

Now, I know I have said that a number of times and I promise your Honours I will not say it again. Your Honours, can I just say a word - so, we say, this is a punishment and that is an intrusion into the judicial power. It is an act of fine ‑ you can call it if you like ‑ fines and penalties, which your Honours discussed in Polyukhovich.

As Dr Woods has reminded me of even so stern a judge as Sir Garfield Barwick said of imprisonment, and the case, your Honour, is Power v The Queen 131 CLR 623, and Sir Garfield Barwick says, at the bottom of page 627, what may be obvious enough, but he says:

It is our opinion that the Act as a whole does not convert a sentence of imprisonment from a punishment into an opportunity for rehabilitation. We cannot understand how a sentence of imprisonment, either with or without hard labour, can, however enlightened the prison system is, be regarded as otherwise than a severe punishment for a crime which has been committed and for which the law has provided imprisonment, or imprisonment with hard labour, as the appropriate penalty. It is true that, in following the legislation of other States and enacting the Parole of Prisoners Act 1966, the New South Wales legislature took a large step towards ensuring that a prisoner can, by his own behaviour while a prisoner ‑

and he goes on. But obviously imprisonment is punishment.

If one thinks of this Act, it perennially hangs over Kable’s head and it is a punishment of him because he is always liable to trial and imprisonment. It is civil action, whatever one cares to call it. Your Honours, we also say ‑ and perhaps I should say something about the rule of law, but your Honours will remember that Sir Owen Dixon said that one of the assumptions of the Constitution of the Commonwealth is the rule of law. We have given your Honour the reference in the Communist Party Case and when one thinks of this Act of 1855 and remembers that you had the competing claims of Mr Wentworth who wanted an aristocracy, rather like the Emperor in Haiti, I think it was who wanted the Duke of....and so on. Mr Henry Parkes, as he then was, did not want an aristocracy.

You cannot envisage that the legislature was envisaging that you were giving to these gentlemen in New South Wales a power to sentence their compatriots to death. In other words, that this power to pass laws would extend to passing a bill of attainder or a bill of pains and pleasure. It obviously was not; there was a Supreme Court there and what they were talking about, in our respectful submission, was a system of representative and responsible government, subject to what I say is none the less representative, although your Honour looks to me with a certain reservation. But, your Honour, that is what we say and we rely upon what this Court has said.

So that what one would imagine would be that the assumption is the condition of the legislature was that it should abide by the rule of law. What they were doing was giving legislative power to a Parliament. That assumes the rule of law because the hypothesis is that the laws will prevail. That is why you give legislative power. So therefore, one is talking about a community in which the law, the rule of law, is the given. Therefore we submit, your Honours, that one would construe the Constitution of 1855 and necessarily, therefore, the Constitution of 1902 as restraining the Parliament from exercises that infringe the rule of law, and we say this is one.

I think I have said all we would wish to say in addition to the written submissions, and those are the submissions the appellant would seek to make.

BRENNAN CJ: Thank you, Sir Maurice. Mr Solicitor for New South Wales.

MR MASON: Your Honours, I wish to start with some general submissions about section 106 and the impact of the federal Constitution upon the power of the State Parliament to make laws defining and redefining the jurisdiction of the State Supreme Court.

The first general submission is that section 106, just by its ordinary meaning, does not operate to make every restraint upon the Commonwealth Parliament a restraint upon the State Parliament. It just does not say that.

To take an example, if my learned friend’s approach to section 106 is correct then presumably section 116 is now to be treated as binding the State Parliament and that would, in my submission, be an absurd and unprincipled approach to the language. So, one has to find something in the federal Constitution that says something relevant to the State Parliament before 106 draws it down.

The next general submission is that 106 by its very terms guarantees or continues, to use the language, the Constitution of each State. The Constitution of New South Wales as it stood in 1900 included the 1855 Constitution Act. Whatever else is involved in the concept of Constitution, it would have been the Constitution Act and that Act, section 42 in particular, expressly conferred power to abolish courts. If I can find my copy of it I will take you to it. It is at page 361 of my print. I do not whether it is in your Honours but going to the schedule, section 42:

All the Courts of Civil and Criminal Jurisdiction within the said Colony and all Charters.....except in so far as the same may be abolished altered or varied by or may be inconsistent with the provisions of this Act or shall be abolished altered or varied by any Act or Acts of the Legislature.....shall continue.

So, here in the Constitution statute was an express power to abolish and vary existing courts.

TOOHEY J: But the argument is a bit circular, is it not, Mr Solicitor, because section 106 continues the Constitution of the States but subject to this Constitution so that if you were able to find in this Constitution some restriction upon the States and some restriction upon altering the function of the Court, and I say if you could ‑ ‑ ‑

MR MASON: Yes.

TOOHEY J: ‑ ‑ ‑ then it would not help very much to point to the Constitution Act itself.

MR MASON: No, I respectfully agree with that. I was addressing so much of my friends argument as said there was a Supreme Court in place in 1900 and something about the text of section 106 standing alone guaranteed that, and at one stage my learned friend said that, in effect, there was a Supreme Court in 1855 and it was referred to in the 1855 statute and therefore by that, as it were, textual means he argued that 106 directly guaranteed the continuation of that Supreme Court. I will certainly have to address the point your Honour is putting.

Your Honours, the third textual reason why 106 does not provide any assistance is the tail-end of those provisions, of 106, because it expressly contemplated that the Constitution of the State may be altered in accordance with it. In another case which stands reserved, McGinty, there was debate about whether those words would allow the State Constitution to build in an entrenching mechanism, but that is not in play here. Our submission is that the power to make laws for the peace, order and good government, or peace, welfare and good government of the State which was in the Constitution of the State in 1900 clearly, by their terms, extend to abolishing or modifying the jurisdiction of the Supreme Court. For that reason, a third reason, section 106 ceases, in effect, to be a springboard for a federal Constitutional argument.

Section 73 was referred to because there is there an express reference to the Supreme Court of a State. My submission is that section 73 assumed that there would be a Supreme Court but did not guarantee it as having any particular nature. Furthermore, an assumption is not the same as a guarantee of continuance any more than the assumption about the Inter‑State Commission in 73(iii) was a guarantee that the Inter-State Commission would be borne and stay alive.

It is certainly reading far too much into 73, in our submission, to say that it amounts to a federal preclusion upon State legislation that, somehow or other, varies in some fundamental way the jurisdiction of the Supreme Court. I have not come to the arguments relating to the receptacle of federal judicial power but I am addressing a more direct approach. So far as section 109 is concerned and section 39 of the Judiciary Act, something that was raised in argument but not in any section 78B notice, and for that reason I submit cannot be properly treated as an issue in the Court. Section 39 speaks of the several courts of the States.

BRENNAN CJ: Could I just interrupt you for a moment? Did the 78B notice extend to the question of Chapter III and the reposing of federal judicial power in State courts?

MR MASON: I do not know the answer. May I have a look at that during the lunch adjournment?

BRENNAN CJ: Yes, perhaps you could have your junior have a look at it because it seems to me that that and the section 39 point are really two aspects of the same matter and it is a matter on which it may be that the States or the Commonwealth would have particular interest.

MR MASON: Yes. I was, by 109, addressing myself to the use of section 109 by reference to 39 of the Judiciary Act rather than some more general implication flowing from section 109. I do not think ‑ ‑ ‑

BRENNAN CJ: Section 39 relates to the investing of the jurisdiction; the Chapter III argument relates to the availability for vesting the jurisdiction and they are really two aspects of the same basic argument.

MR MASON: They have been developed slightly separately this morning.

BRENNAN CJ: Yes, separately.

MR MASON: May I look at that over the luncheon adjournment and put something more specific. So far as anything based on section 39,and reserving the 78B rights such as they are, my submission is that 39 speaks of “the several Courts of the States”, it does not single any one out, and I have a recollection it has been interpreted as having an ambulatory effect in its investiture of federal jurisdiction.

GUMMOW J: If I can just interrupt you for a minute, Mr Solicitor, and I apologise, but it follows from what the Chief Justice was asking you in a sense: is it not the case that the Supreme Court here in this very case which has come here by special leave as an appeal, was it not the case that in this very matter the Supreme Court was exercising federal jurisdiction?

MR MASON: Yes, once the constitutional point was invoked.

GUMMOW J: It certainly was in play in the Court of Appeal?

MR MASON: Yes.

GUMMOW J: So section 39 of the Judiciary Act was crucial to the task of the Supreme Court?

MR MASON: Section 39 meant that it was exercising federal jurisdiction.

GUMMOW J: Yes.

MR MASON: And brought down whatever limitations flow from that. Mr Kable was not an interstate resident but the federal constitutional points were invoked at first instance and on appeal.

As I understand the argument based on section 39, or one aspect of it, was that section 39 somehow or other paralyses the capacity of the State Parliament to pass laws that could interfere with in some way the capacity to receive or the existing reception of federal jurisdiction, and that that is inconsistent with section 39(2).

Presumably the logical consequence of that argument is that once a State court has been invested with federal jurisdiction, it could not be abolished, which would be a very strange consequence of a provision having ambulatory effect and a provision that is expressed in terms of the several courts of the States. Surely it cannot be the case that the courts in 1903, which would have obviously included the Supreme Court, somehow or other became captive in the sense that they could not have their jurisdiction changed by State legislation simply because, by a general provision such as 39(2), the federal Parliament had chosen them as a vehicle for investiture of federal jurisdiction.

None of those submissions have really yet come to the more specific submissions based upon Grollo’s Case and a more direct inconsistency through an incapacity to receive federal jurisdiction via Chapter III, but I will come back to that if I may. I say a few things about the Community Protection Act, your Honours. The provision in section 3, whilst stating an object and a purpose, cannot be equated to reduction of the court to an automaton.

McHUGH J: Although it is very difficult to see how the judge can really have any independent discretion under 5(1)(b), having regard to the terms of sections 3(1) and (2). How could a judge possibly find - if the judge finds that paragraph (a) is made out, how in the case of Kable could he come to any other conclusion than that it was appropriate for the protection of the community generally that Kable be held in custody?

MR MASON: Because 5(1)(b) is a specific restraint upon the relevant power. It is true that 5(1)(b) would be construed with reference to 3(2) and obviously with reference also to the fundamental principles of the common law favouring freedom and requiring a strict construction of any power of this extraordinary nature. I suppose there are two points I am trying to make about 3(2). The first is that ‑ ‑ ‑

McHUGH J: Section 3(1) seems to me to be even more important than 3(2).

MR MASON: Yes. An express statement of an intention of this in one sense is really an expression of the obvious. If such a provision were put into a general Act making a new offence or making murder an offence to say that the purpose of making a crime of murder and providing for a mandatory penalty or a death sentence or whatever is to protect the community would attract no attention. It would be clearly an appropriate thing to say. It would be making explicit what would be implicit anyway.

McHUGH J: I accept that, Mr Solicitor , but obviously the Act was drafted on the basis that it would be of a general application. It is difficult to avoid the conclusion that when it was amended, it was thought either that the judge would play a very perfunctory role or, at most, once the judge found out that he was likely to commit serious acts of violence in the future, then the Act would automatically apply to him and an order against him would be made, but it only applies to him and no other person.

MR MASON: Yes. Your Honour, the constitutionality of an Act must depend upon its proper construction.

McHUGH J: Exactly, yes.

MR MASON: Of course, that has been used against me, but I would use it in partial defence of my submissions, that one has to construe an Act of this nature according to the usual canons of legislative interpretation.

BRENNAN CJ: Could I just ask you this then, Mr Solicitor. If the judge were to form the opinion, or be satisfied as to the matters in 5(1)(a), what circumstance or set of circumstances could in the light of section 3 possibly lead to him refusing to make an order?

MR MASON: Very few, I would accept.

BRENNAN CJ: Any?

MR MASON: Well, one perhaps does not even need to go to section 3. If section 5(1)(a) alone were decided, section 5(1)(b) does not add a great deal once the power to detain is given to the court. So the real protective power and function is indicative as much in the authority given to the judge and its primary trigger, section 5(1)(a), as in section 5(1)(b) or section 3(2), but naturally, of course, I do not accept that that makes the law any worse constitutionally for that.

BRENNAN CJ: We can take that further at 2.15 pm, Mr Solicitor.

AT 12.46 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.16 PM:

BRENNAN CJ: Yes, Mr Solicitor.

MR MASON: Your Honours, if I may I will address the section 78B notice issue when Sir Maurice arrives; he is temporarily indisposed but he will not be long, I believe.

BRENNAN CJ: Yes.

MR MASON: Your Honours, at this stage I will return to the outline of our submissions and speak to those, if I may. We have summarised the facts as found, not so much as to emphasise the contextual basis of the legislation but to indicate that the making of the order by Justice Levine, which is the order that is appealed from, fell in a particular factual context and at a particular point of time. Those facts had changed and another judge was not satisfied at the later point of time when Justice Grove refused to make an order.

There is one correction I would make on page 2 of the summary, paragraph (h). There were not two letters, as we state, there were two counts involving one letter. The facts as found indicate, I would submit, a need, if one puts it at the lowest, for some form of protective response by the community. I will take your Honours shortly to some material that shows that there was a finding that the appellant was not mentally ill and that the problem of persons who are dangerous but not mentally ill is one that has been discussed in the literature, was an issue here and does, if one has to debate the policy of the legislation ‑ and my primary submission is that that is a matter for Parliament ‑ but to the extent that one has to advance reasons why this legislation is an appropriate response to a problem, the problem should be characterised as that of a person who is dangerous, is likely to harm others, has not necessarily committed an offence and is not mentally ill.

Your Honours, on page 3, we address the submission that the Community Protection Act is not a law, and although my learned friend did not say much about Austin and the principles derived from Austin, because the ground of appeal is there, I naturally must address it. The way the matter was put at the special leave application was, in part, that the notion of what is a law should perhaps be determined as at 1855 when the original law-making power was conferred upon the Parliament of New South Wales and on one approach, the argument was that a law which is in the form of a specific directive without an antecedent command, “Do this and that will happen to you”, is, itself, not a law. That was the way the argument is put. It is the way it is advanced in the grounds of appeal to which reference is made. Our submission is that this takes too narrow a view of law, even as expounded by Bentham and Austin, and that it certainly does not reflect the notion of what is law as found in the case law and as found in modern jurisprudence as to the nature of law.

If one has to find a command, there is, in this legislation, commands. There is, in effect, a command to the judge in the form of a conferral of a jurisdiction which, if duly engaged by an application by the Director of Public Prosecutions against the defendant, has to be addressed. There are commands to the appellant, in effect, to submit to the orders that are made by the Court. There are commands to others to respect his status as a prisoner under the Prisons Act if such he becomes.

The suggestion that a law is not a law if it speaks only to one person is to misunderstand what Austin was saying, in our submission. Your Honours, we gave the Court a small bundle, extracts from jurisprudential materials, and within that bundle are the materials which are cited in paragraphs 4 and 5 of our outline of submissions.

BRENNAN CJ: I do not think we do have those, Mr Solicitor.

MR MASON: I am sorry, it is just about to be handed up, then. On the page numbered 3 is an extract from Austin’s Lectures on Jurisprudence, about point 3 he illustrates what he means by a general command. At the very bottom of page 2, he says:

Now where it obliges generally to acts or forbearances of a class, a command is a law or rule. But where it obliges to a specific act or forbearance, or to acts or forbearances which it determines specifically or individually, a command is occasional or particular.

And then this is illustrated about point 3 by two examples of commands from a master to a servant:

If you command your servant to on a given errand, or not to leave your house on a given evening.....occasional or particular.....
But if you command him simply to rise at that hour, or to rise at that hour always.....that you lay down a rule for the guidance of your servant’s conduct.

At page 8 of the bundle there is an extract from Professor Julius Stone’s work, Legal System and Lawyer’s Reasonings, and it is the very first sentence and footnote 64, where the distinction between general and particular commands is illustrated in the first and second sentence. Professor Stone refers to the portion of Austin’s Lecture dealing with the commands to servants that I have referred to.

In the present case, the commands, if that is necessary, of the Community Protection Act are general. If you find state of affairs “X” then do that. As to whether the judge has a sufficient level of independent judicial discretion as not to offend any doctrine of separation of powers, if it exists, I will returned to that in a different context if I may.

However, Austin’s notion about law is command has been, we would submit, discredited in later jurisprudence. Some of the examples given in paragraph 5 of the outline indicate just how many laws by common parlance, including the common parlance of 1855, would not fit in with the notion of law is command. We would include facultative laws such as the Wills Act or the Statute of Frauds; laws constituting public bodies. The Listening Devices Act - the notion there is that here is a power to do that which might otherwise be a trespass because the warrant that issues there may authorise entry into private land. Laws such as tax laws or workers compensation laws that say, “If you do X and you do not have to, then Y follows”.

The jurisprudential works to which reference is made, and extracts are included in this bundle, all involve a departure from Austin’s notion that law was of the narrower concept. A more modern positivist approach to law is that of Hart to which reference is made, and he expounded a doctrine of a rule of recognition that something was law if it was, in effect, regarded as law by informed opinion - my very rough summary of the passages that are referred to there. Clearly, an Act of Parliament, as he illustrated, satisfies that.

Your Honours, in the passages that my learned friend has read from from Clayton v Heffron and which we cite at the bottom of page 4, the High Court expressly addressed the argument that the law‑making power given to the New South Wales legislature was constitutive and included power to pass the 1902 Constitution and to make amendments to it, even though those laws themselves entail no commands. Other specific examples of judicial recognition of laws which are specific in the nature of privilegia are referred to in paragraph 6 of the outline.

We would refer the Court, without reading it, in particular to the discussion by Justice Fullagar in the Australian Communist Party Case 83 CLR at pages 261 and 262. The federal Act that was upheld in Reg v Ludeke; Ex parte BLF 159 CLR 636 was one involving a non‑judicial deregistration of the BLF. Nevertheless, it was clearly regarded by this Court as a law and it survived other types of attack.

DAWSON J: How do you reconcile this with the doctrine of separation of powers where it does exist as, for instance, in the Liyanage Case? Is it because the law is not a law but a judicial act, that you offend the separation of powers, or is it because it is a law that invades the area which is reserved to the judiciary?

MR MASON: That where there is a controlled Constitution with a separation of powers, Parliament may not pass certain Acts.

DAWSON J: A Bill of Attainder, for instance.

MR MASON: A Bill of Attainder, yes, and certain types of laws ‑ ‑ ‑

DAWSON J: Is it that the Bill of Attainder is not a law but in reality a judicial act?

MR MASON: No, it is because it is a law that is forbidden by the Constitution. In Liyanage’s Case, what invalidated it was ‑ ‑ ‑

DAWSON J: But only because it does what the judiciary should be doing and not the legislature. If that is so, why is it a law?

MR MASON: No, it failed in Liyanage’s Case because it did not pass with the two‑thirds majority that was necessary to amend the Constitution. I cannot say that the very matter your Honour is putting to me has been addressed to my knowledge one way or the other but, if one starts, as I submit you do, from the notion of the imperial Parliament’s power to do anything provided it goes through the formality of passing both houses and receiving royal assent, one then asks what are the impediments upon that. The impediments flowing from a controlled separation of powers doctrine may restrain the judiciary from legislating or the legislature from passing certain types of law which interfere with the judicial function.

DAWSON J: Or from judging.

MR MASON: Or from judging.

DAWSON J: But any command “Off with his head” may be simply an executive act; it may be a judicial act or you would say, I presume, if it is in the form of an Act of Parliament, it is a law. It just depends who gives the command.

MR MASON: It is clearly a law; the question is, is it a valid law, in my submission. In the passage of Justice Fullagar in the Communist Party Case he said that a privilegium is definitely a law but then explored whether there are reasons in the Constitution why it should be held invalid.

McHUGH J: But that was at a time when Dicey and doctrines totally controlled the legal thinking. After all, the whole doctrine of parliamentary supremacy and sovereignty is a common law conception, is it? It is an invention of the common law judges. Why, in appropriate cases, cannot the common law judges modify these rules?

MR MASON: Because the common law judges, as the ultimate guardians of the rule of law, must recognised, in my submission, that the rule of law imports a notion of parliamentary supremacy.

McHUGH J: But that seems to be circular because the rule that recognises parliamentary sovereignty and the supremacy of law depends, itself, does it not, on a common law rule? Ultimately, the common law must be the foundation of all these doctrines.

MR MASON: They are, but the common law that confers authority upon particular persons to exercise the judicial function tracks itself through Constitutions and laws so that, ultimately, the authority given to the judiciary is, itself, dependent upon law. The judges are the ultimate determinants and interpreters of that law and, as a theoretical matter, it is self-restraint that determines the exercise of their functions.

McHUGH J: That is true, but self-restraint was imposed by the judges upon themselves.

MR MASON: For good reason I would submit.

McHUGH J: I mean, in the time of Cooke the restraint may not have been confined as it was in later centuries, but once you accept that, why cannot the courts develop a whole doctrine, modify it if necessary?

MR MASON: Ultimately you are asking a political question rather than a legal one.

DAWSON J: It can be approached on a logical basis. The recognition of the supremacy of Parliament is not a conditional recognition of the supremacy of Parliament to be withdrawn when you did not like what Parliament was doing exercising its supreme power. In other words, once you have got to that point, it is only Parliament in the exercise of supreme power that can change the situation. It is a Harris v Donges, “Can a leopard change its spots?” sort of situation, is it not?

MR MASON: But it is a principle and it is a principle that is based on the lessons of history and of common sense.

McHUGH J: Yes, but at some time, probably in the 17th century, the judges said, “We will recognise any Act that the legislature puts forward”. That was a doctrine imposed in particular circumstances. Why is it not like other common law doctrines capable of development or modification?

MR MASON: Development, yes; wholesale abrogation, no.

McHUGH J: No. There may be some cases. I mean, the blue-eyed baby example is always given: can Parliament pass a law to kill all the blue‑eyed babies.

MR MASON: Well, Justice Boothby, as your Honours will be told in more detail by my learned friend from South Australia, and it is in some of the materials he has provided, set about declaring various laws to be invalid because he considered they were repugnant to principles inherited from the common law of England. He would have struck down the first Torrens act.

McHUGH J: Yes.

MR MASON: The response to that obviously had a personal response to him but the institutional response was to pass the Colonial Laws Validity Act which expressly stated that laws which, though they be repugnant to the common law of England, nevertheless are good laws. As to, well, why should the judiciary continue to regard the common law as capable of statutory abrogation, because in one sense that is really what one is debating unless they change the common law ‑ ‑ ‑

McHUGH J: Well, there is a difference between ordinary common law and this fundamental principle. That is why I am putting it at you.

MR MASON: Yes.

McHUGH J: I mean, it is like that case in the Privy Council, Mozambique or something from Rhodesia where, ultimately, the courts recognised the legislation of the usurpers.

MR MASON: Yes.

McHUGH J: I mean, that is the day of Smith - - -

MR MASON: Madzimbamuto v Lardner-Burke.

McHUGH J: And those who overthrew British rule in Rhodesia on a strictly legal analysis were acting totally unlawfully. Every piece of legislation that came out of there was unlawful but, ultimately, the courts recognised it. Now, maybe there is something about power in this, a recognition of power. Maybe it is a matter of technicalities.

MR MASON: Well, it is a recognition of capacity, too.

McHUGH J: Yes.

MR MASON: And some of the principles discussed by your Honour the Chief Justice in Attorney-General v Quinn about the reasons for judges not being involved in merits review at the administrative law area where questions of competence, capacity, information, time and public perception of the proper role of the judiciary all serve to reinforce the judicial restraint that has occurred since the 16th century, of which you speak. One can have also the example of the chaos that occurred in the Boothby era when the individual judgment as to the merits of legislation of an individual or collective judiciary brought about a prolonged period of conflict between two branches of government. In one sense that is the essence of constitutional law and you are asking me a constitutional principle, but I can but give a political and historical answers.

McHUGH J: I think the answer is the political answer, in a sense.

MR MASON: Yes.

BRENNAN CJ: Either that or the Kelsen theory of jurisprudence of revolution.

MR MASON: Yes.

BRENNAN CJ: But what Justice McHugh is putting to you is, perhaps, somewhat similar to the view that has been expressed by Sir Robin Cooke in New Zealand, is it not?

MR MASON: Yes, it is. That, sort of, some rights too deep to touch, as it were, and my submission supported by the authorities in paragraph 7 is that that has not been the approach taken by courts in Australia and, I would submit, for good reasons which I have endeavoured to put to Justice McHugh. What the courts do in a revolution, the sort of situation that occurred in Madzimbamuto v Lardner-Burke can perhaps be explained by some ultimate doctrine of necessity in constitutional theory, but that is not involved in the sort of situation we have here.

If it were otherwise, presumably, as has taken place a little bit in this case already, judicial proceedings will involve the courts debating the policy of legislation, presumably receiving evidence about that. Now, nothing is impossible, but it is, in my submission, not what was the function given. If the separation of powers doctrine is a constitutional principle it cuts both ways, is another way of putting the same proposition.

BRENNAN CJ: What if one just approaches the notion that a rule which says, “Off with Kable to gaol”, if one were to construe the Act that way, is not a law in the sense that it just simply does not prescribe any rule, it prescribes a result?

MR MASON: My submission is that whatever one can say about it, legally or politically, it is a law because many Acts of Parliament which are recognised by the courts and by the people generally, prescribe a result and do not involve a command - the Wills Act and the other examples that I have given. The fact that it is specific to one person is nothing unique about legislation. Laws are passed to permit particular developments to occur; particular projects; to constitute particular church trust bodies. One does not have to worry about private Acts of Parliament, but that is another example sanctioned by long history and by, what I will describe as Hart’s rule of recognition. These have all been universally, in my submission, recognised as laws. The BLF was, in one sense, an “off with his head” law. It certainly did not give the power to the judiciary. The court said Parliament could have done it itself under the power to deal with industrial disputes but the Parliament equally could have given ‑ ‑ ‑

GUMMOW J: But Parliament had set up a system of registration, an element of which was cancellation.

MR MASON: That cancellation power was not enough to dispose of the BLF in the way that the particular Act that was challenged there was. As I understand the holding of the court they said what Parliament had created Parliament could destroy, but it could destroy it by a legislative “off with his head”, by an administrative “off with his head” if the commission thinks it should go, or by a judicial but the choice was Parliaments; but there was no suggestion that any of those three choices would not be a law.

GUMMOW J: We are talking about the right of the citizen to be at liberty here, an entirely different discourse, it seems to me.

MR MASON: A very fundamental right.

McHUGH J: Sometimes where fundamental rights are concerned the courts avoid, in one sense, reject the plain command of the legislature. Take your illustration of the Wills Act. It says that if you are named in the will as a beneficiary you are entitled to receive, yet, the law will say if you have killed the deceased then you cannot take. That is an abrogation of the parliamentary command, because the common law or equity imports some higher principle.

MR MASON: Conversely, they refuse to follow the statute of frauds, one could argue. That is correct and that is an example of the principles of the common law; the reason of the judges impacting upon the expressed reason of Parliament. But, to my knowledge, it has always been done by prescribing rules of interpretation, presumptions, exceptions, but never arrogating or expressing the view, “Well, Parliament has said it but it seems not right to us”. Always there has been a legal principle that has been allowed the judicial power and the statutory power to, as it were, mesh in together. If there was no Constitution invalidity, there was a presumption of reading down, but that is not the attack that is made upon this legislation.

TOOHEY J: Marbury v Madison might never have happened. It happened, but there was no necessary inevitability, perhaps, that it would have ‑ ‑ ‑

MR MASON: No, but Marbury v Madison happened because the judiciary resorted to a positivist approach. They said, “There is this superior law, the Constitution, which the people intended to hold over the congress and who better to hold the ring than the judiciary and who was intended”. Ultimately, the authority given to the judiciary or found by the judiciary to exist in Marbury v Madison was derived from the superior law.

DAWSON J: That is a very different matter to disregarding an expression of will by the legislature.

MR MASON: Yes, very.

McHUGH J: It is in one sense, but on the other hand, there was nothing in the United States Constitution that said the Supreme Court could declare an Act invalid, even accepting the theory of invalidity. Why was it not a matter just for Parliament? There are people ttoday in the United States who argue vigorously that the Supreme Court has no powers of judicial review.

MR MASON: Yes, but there was the Constitution and in a traditional way, the Supreme Court was able to say there is a hierarchy of commands and the command of the Constitution must be obeyed before the command of the congress. Here what has been put against me in the argument involves no hierarchy other than a power which resides in the breast of the judge to disregard an offensive law.

McHUGH J: But why cannot the judges now say, “When we ceded to Parliament in the 17th century” ‑ or whenever it was ‑ “the power to enact legislation which we would faithfully apply, we did not have in mind a piece of legislation like this”.

MR MASON: In one sense, the judges can say what they wish but the question, should they say that, in asking that question of themselves, it might not be wrong to ask the judges to ask what would have happened in the 16th century if the judges had done that; the breakdown of society that occurs if the separation of powers itself is disregarded. In one sense, I am arguing doctrines based on the separation of powers to defend my position because the rule of self‑restraint of the judiciary is an acknowledgment of the independent status of the other branches of government and the need for society that the mutual independence and different roles of the two be recognised within limits. I am not saying there will not be friction.

Your Honours, the only passages I was going to read from those on paragraph 7 are two passages from Polyukhovich 172 CLR 501, if I may. I was proposing to read from Justice Deane at pages 605 and 606 and Justice McHugh at 714. Justice Deane in Polyukhovich, speaking of the words “peace, order, and good government of the Commonwealth” near the bottom of page 605, said that those words:

do not impose an objective qualification upon the subject matters of legislative power. They refer to the intended beneficial operation of laws made with respect to those subject matters and simply express the fact that in “a general and remote sense the purpose and design of every law is to promote the welfare of the community” for which the law is made. It is for the Parliament, not for the Court, to decide whether a law will be or is “for the peace, order, and good government of the Commonwealth”. Where the Parliament decides, by enactment, that a law is “for the peace, order, and good government of the Commonwealth”, that, of itself, provides sufficient connexion between this country and the subject matter of that law for the purposes of s 51.

Your Honour Justice McHugh at page 714 in the first full paragraph said:

Those words do not impose any limitation on the power conferred on the Parliament.....They do not require legislation to be held invalid because, in the opinion of the Court, the legislation does not promote or is not in fact for the peace, order and good government of the Commonwealth. The words.....are a recognition of the fact that, for the purposes of constitutional theory, “the purpose and design of every law is to promote the welfare of the community”.
I suppose another answer I could give to your Honours is the answer of precedent and the relevance of precedent as part of the rule of law itself. I would certainly submit that if there was to be departure from this principle, it would have to be a departure sanctioned by the Court as a whole because of the precedential effect of these and other decisions of this Court.

Your Honours, paragraph 8 really condescends, if I can use that with the utmost respect, to debating the principle of the legislation because, in so far as it has been put that there may be circumstances in which the Court may be judge of the legislature, I seek to indicate the context of this legislation, the purpose it serves and the analogies with other laws properly so found in society. Bale and quarantine can speak for themselves. What we are addressing here is the argument that this must be criminal because he ends up in gaol, that because there is a restraint of liberty, it is of necessity criminal in nature. The response is no, that is not enough to stamp it as criminal in nature, assuming that to be a relevant criterion.

So far as the mental health is concerned, your Honours, we have given the Court references to provisions of the Mental Health Act 1990 which provide, ultimately, for a system of involuntary detention of persons found to be mentally ill, and “mental illness” is defined in section 9(1)(b) of the Mental Health Act of New South Wales as stating:

A person is a mentally ill person if the person is suffering from mental illness and, owing to that illness, there are reasonable grounds for believing that care, treatment or control of the person is necessary:
(a) for the person’s own protection from serious physical harm; or
(b) for the protection of others from serious physical harm.

Note please that there still must be a suffering from mental illness plus other factors. There was a finding in the present case that Mr Kable was not mentally ill. Your Honours, that is to be found at page 186 of the appeal book, where his Honour, after reviewing evidence, said that he is satisfied that:

the defendant does not suffer a mental illness; the defendant has a personality with those traits to which I have referred -

and then he proceeded to outline them. Your Honours, the evidence relating to that, if I can just give the Court some page references: Dr Westmore at page 45, line 30 - these are references to the judgment - Dr McMurdo at 37, line 35; Dr Phillips, 81, line 10; and Professor Mullen at 86, line 40 and 88, line 40.

The distinction between people who are mentally ill and dangerous and sane and dangerous may be lost upon their victims and, in my submission, it could not be said that the Parliament is not acting appropriately in serving to protect the community from the risk of injury that flows from both. One could argue that the person who is not mentally ill and, therefore, has, at least on that account, greater capacity to control his or her actions, is greater deserving of restraint than the other.

May I take the Court to the book of materials that the South Australian Solicitor-General has provided to the article at page 87. It is an article by Professor Williams entitled, “Psychopathy, Mental Illness and Preventive Detention: Issues arising from the David case”. As the Court knows, the blueprint for the Community Protection Act was the Community Protection Act 1990 Victoria which, like the present Act, was specific to one person, provided for preventive detention not dependent upon a criminal conviction.

What Professor Williams explains in that article is the gap caused by the general consensus among psychiatrists that people suffering from borderline personality disorder - page 89 and following - or antisocial personality disorder are not, in the eye of the law, because of the eye of the psychiatrist, mentally ill. There is a passage quoted from Justice Vincent in Victoria near the top of page 165 ‑ ‑ ‑

GUMMOW J: Mr Solicitor, was the Victorian Act of 1990, to any degree, concerned with treatment of this person or merely with incarceration?

MR MASON: There was provision for treatment. As to the level, I will have some inquiries made, your Honour. There is, of course, some provision for treatment in the present case.

Justice Vincent expresses a view that perhaps any lay person might share that someone who mutilates himself and wants to shoot other people must be mentally ill, but the author goes on to point out that that is not the view of the discipline of psychiatry. At page 92 of the book, page 171 of the article, reference is made to the fact that Mr David, the Victorian involved, was found not to be suffering from mental illness. Page 171, point 3:

Following a careful review of the psychiatric evidence the Board concluded that it was not satisfied that David ‘appears to be suffering from a mental illness that requires treatment’. The view of the Board was that the words ‘mental illness’ should be given their technical meaning as understood by psychiatrists.

That was, as it were, the gap.

At page 175 of the article, page 94 of the bundle, there is a reference to the government response, the Community Protection Act, at that stage, a unique piece of legislation. It was David specific, like the present law is Kable specific. It gave the power to the Minister, unlike the present law where the power is given to the DPP, a matter of some significance, in our submission. It provided for six months’ detention. At page 177 near the top there is an expression of opinion by the author that the Act offends the rule of law and the doctrine of separation of powers but it is interesting to note that his response at the end of that paragraph is the better course would have not to involve the judiciary in this but to have passed “an Act giving the Minister power to detain David”. In one sense, this is a little bit like the dilemma the Court was faced with in the Grollo litigation.

GUMMOW J: Then the Minister becomes directly answerable to the public in the electorate without having engaged the utility of the court system.

MR MASON: That assumes that that control is a greater restraint and a greater protector of liberty than conferring a confined power upon a court. Again, I am entering into the politics of the matter but, itself, a debatable proposition.

McHUGH J: Yes, public opinion is not always the best protector of individual liberties in this type of area as witness the imprisonment of the Australia First Movement and other aliens during the Second World War in Australia, people were locked up without any real justification.

MR MASON: Your Honours, at page 178 and following of the article, the author addresses, as it were, the choice that the Parliament faces with the sort of situation posed by people that suffer from these non‑mental illness disorders and argues on page 180 and following the case for preventive detention. I do no more than rely upon that but to show some of the difficulties and some of the advantages from having this form of legislative scheme.

It is interesting that at the bottom of page 182 the author points out that:

Fictions should be avoided. By the simple fiction of deeming David to be mentally ill community protection can be ensured and the claims of civil libertarians and the views of adherents of traditional legal theory accommodated. The experience of the common law, however, is that the adoption of fictions ultimately gives rise to new problems as the internal contradictions of the fiction become apparent. Difficult issues are best faced and faced squarely.

Your Honour Justice Gummow, I am now in position to answer the question. Section 11 of the Community Protection Act 1990 of Victoria provided that ‑ ‑ ‑

GUMMOW J: Yes, I see that. It is rather different to section 12 of the New South Wales Act.

MR MASON: Yes. Mental illness, your Honours, I am reminded, is defined in turn in the Mental Health Act. In Schedule 1 to the Mental Health Act is the dictionary, and there will be found the definition of mental illness.

Your Honours, another example of protective detention ‑ if one wants to use that expression without attribution of guilt, but detention, nevertheless is the treatment of aliens which this Court addressed in Chu Kheng Lim v Minister for Immigration; customs control, wartime security are further examples.

In paragraph 8(g) we address another analogous situation, namely, a disproportionate sentence, and this is the issue of Veen and the like. Those who criticise the present law say that proper recourse is to use the criminal law to make some new offence, if the existing law is not there, and then to arrest the person and lock the person up for a very long time, having regard to the risk that the person would bring to society. That is the approach of the Habitual Criminals Act, an Act which has largely fallen out of use in New South Wales and elsewhere.

McHUGH J: I would wonder whether that Act was repealed. Why has it fallen into disuse?

MR MASON: From the literature that I have read, including some of the literature in this grey book, it is concerned that it imposes a disproportionate sentence to the original crime.

But the difference between that and what the present law does must be acknowledged, but is it a true difference of substance? What is the real difference between saying if you commit an offence you can then be locked away for a very long time if you are a risk to society, and saying without the trigger of initial conviction, provided the court is satisfied to a requisite degree that you will commit a future offence, then the legislation is appropriate? I am not seeking to justify it but simply to argue that this is within the range of a proper decision by Parliament.

May I read a couple of passages, however, from Veen (No 2) 164 CLR 465. I will go particularly to the judgment Justice Deane. Your Honours will, I am sure, recollect the context of the Veen situation. This was the second manslaughter conviction when a sentence of life imprisonment was upheld, but nevertheless the principle of proportionality was reaffirmed by the Court. Justice Deane at page 495 said:

There is one further matter which I would briefly mention. That is that the 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. Such a statutory system could, one would hope, avoid the disadvantages of indeterminate prison sentences by being based on periodic orders for continuing detention in an institution other than a gaol and provide a guarantee of regular and thorough review by psychiatric and other experts. The courts will impede rather than assist the introduction of such an acceptable system if, by disregarding the limits of conventional notions of punishment, they assume a power to impose preventive indeterminate gaol sentences in a context which lacks the proper safeguards which an adequate statutory system must provide -

et cetera. Your Honours, a reference to introduction of legislation is made by Justice Wilson at page 486 and Justice Gaudron at page 496. I think your Honour Justice Gaudron may have been agreeing with Justice Wilson. That was the reason I had that page marked.

Your Honours, my learned friend was critical of section 17 of the Act as tending to show that this was a legislative judgment. There are a couple of questions of interpretation of section 17 which are probably unresolved. Obviously this is legislation that deserves the strictest interpretation, so to some extent I submit I am entitled to put these submissions. Section 17(1)(a) requires the court to be bound by rules of evidence but (b) permits the court to order production of certain types of documents. Subsection (3) provides that despite laws to the contrary:

the Court must receive in evidence any document or report of a kind referred to in subsection (1) -

It is at the very least arguable that that confines itself to a document ordered to be produced by the court. It is not clear, but one could understand a court taking that strict interpretation. In any event, the requirement that it be received in evidence would overcome formal difficulties. It would not necessarily overcome questions of cogency or relevance. It certainly is not, with respect to my learned friend, a requirement that the court must accept as gospel anything that is put in one of these reports.

TOOHEY J: It is difficult to see, Mr Solicitor, how the court could reject hearsay in a report which had been called for in exercise of power under subsection (1).

MR MASON: I would agree with that, with respect. The Court, of course, is not obliged to give hearsay any particular level of weight but your Honour’s question, with respect, prompts the response which I was going to make later but I will make now. The argument that the doctrine of separation of powers prevents legislative tampering with the common law of evidence is a very serious proposition. One can think of extreme cases: a law that said if the indictment alleges that the person is guilty, the Court must take that as conclusive evidence. Clearly, that would interfere with some separation of powers but it cannot be the case, in my submission, that a judicial regime becomes unfair simply because the common law of evidence is amended.

There is a case for which special leave is currently sought, your Honours, where there is an attack made to rape shield laws that have been passed in New South Wales. The argument is that a law which prevents the cross‑examination of a complainant as to his or her prior sexual history is a denial of a fair trial. But that is, perhaps, a difficult illustration of the more general proposition I am making that it cannot be the case, in my submission, that legislative variation of the rules of evidence will, itself, amount to an unfair regime.

TOOHEY J: Certainly my question was not intended to suggest that. It was really only in response, or prompted by your analysis of subsection (3) and what might be admissible by reason of that subsection.

MR MASON: Yes. Subsection (3), of course, cuts both ways and the regime of reports in the present legislation is designed not necessarily to aid the prosecution of the application but also its defence; more importantly, the proper informing of the Court before exercising its power and 17(1)(d) and (e) particularly have regard to preparation of reports about the condition of the defendant, again for or against the interest of the defendant.

Your Honours, the standard of proof, again, cannot, in itself, be an indication of invalidity. Even within the criminal law proper, there are instances where the standard of proof has been modified, either by common law with the principle about insanity or by statute law without any suggestion of invalidity on that account. This legislation is distinct from criminal law for this reason: that it does not involve a declaration of guilt.

It is certainly true that the consequence of an order is a loss of liberty but I have sought to demonstrate that that is not the exclusive mark of the criminal law. But it is significant that there is not that stamp of public disapprobation. It may be said, “Well that is a lot of comfort to Mr Kable”, but if one is driven to characterising this as civil or criminal ‑ and I submit nothing turns upon that ‑ but if one is driven to that, that is a relevant distinction.

BRENNAN CJ: It is not just a loss of liberty, is it? It is a penal loss of liberty. He is not being confined. He is being sent to gaol.

MR MASON: He is deemed to be a prisoner for the purpose of the Prisoners Act, and that would obviously trigger off powers to restrict his liberty.

BRENNAN CJ: Everything except the remission provisions, I would think.

MR MASON: No, except that the Court has power to make orders as to the conditions. It is true they must be in prison and that is a recognition of a difficulty of finding an alternative place but, again, that is a matter of debate about the policy of the legislation, but the court did, in its orders, make, as it is empowered to do under section 9, orders as to the conditions of the detention. They are to be found, your Honours, at 194 and 195, and your Honours will see that there was an appointment of an assessor, a direction as to where the detention occur, and there was considerable debate of a hearing, I am informed, as to what was the preferred place of detention amongst the gaols.

Your Honours, I do not propose to take the Court to the cases referred to in paragraph 9. They are designed to illustrate that some of these issues have been grappled with by the superior courts in the United States and Canada. In the United States, there has been the necessity to distinguish between civil and criminal detention because of the express constitutional guarantees that attend criminal conviction. One additional reference I would ask the Court to note in this context is to the decision in Re Young (1993) 857 P 2d 989. It is referred to in paragraph 13 of the grey bundle from South Australia, a challenge to a preventive detention law in Washington State in the United States where the challenge was rejected by the Supreme Court of that State and it is discussed.

Your Honours, we would submit that any attack based on limitations of peace, order and good government or not law must fail and that one then comes down to questions based upon separation of powers. Our primary submission is that there is no constitutional prohibition upon a bill of pains and penalties, nor is there a doctrine of separation of powers in the relevant sense in the New South Wales Constitution, but we primarily would ‑ ‑ ‑

McHUGH J: Even if there is not a strict separation in New South Wales, is it open to the Parliament to pass laws which interfere with the independent exercise of judicial power by the courts listed in section 52 of the Constitution?

MR MASON: I need to break that in a number of bits because the question may be: is it open after the entrenchment of section 52?

McHUGH J: Yes, after the entrenchment.

MR MASON: And what is involved by interference with the discretion of the courts?

McHUGH J: I will tell you what I have in mind: if you take a certain view of this legislation, it seems to come fairly close to infringing Liyanage, does it?

MR MASON: You are saying, assuming there was an entrenched separation of powers, would this law have the vice of Liyanage?

McHUGH J: I was not quite going so far as to say there is an entrenched separation of powers, but there is certainly an entrenched independence of the judiciary and one would think consistently with that, that Parliament could not pass any law which would infringe on the independent exercise of judicial functions, quite apart from ‑ they might be able to invest judicial power in some other body, a non‑judicial body, but can they do anything that infringes the independence of the judiciary in the exercise of its judicial powers?

MR MASON: In the BLF Case the Supreme Court of New South Wales held that Parliament could ‑ ‑ ‑

McHUGH J: But that was before Part 9 was - - -

MR MASON: Yes, before Part 9. I am sorry, you are asking me then does Part 9 impose that restraint? No, in my submission. Part 9 serves to guarantee the individual holders of judicial office from removal from office; it expressly reserves, in section 56(1), the power to abolish a judicial office but it provides that, if that occurs, then there is a requirement to see that the person is appointed to another judicial office in the same court or in a court of equivalent or higher status.

So that it is a personal right ‑ it is obviously addressing what I will describe as the Victorian situation, or the situation that occurred in McRae’s Case and Quinn’s Case that came to this Court. It guarantees to the individual a right not to have the office cut out from under him or her, but it preserves the right to abolish and with that, the right to change the nature of the jurisdiction, in my submission, so long at least as that person is appointed to another court. It is just not possible, in my submission, to see Part 9 of the Constitution Act 1902 as operating to bring about some implied repeal of certainly legislation previously passed and operative, but legislation passed after its date.

If the Community Protection Act did interfere with the judicial process - let that be assumed - and if Part 9 of the Constitution Act were in force - let that be assumed - it is not abolishing or removing from judicial office a person like Justice Levine whose jurisdiction under the Act is invoked.

McHUGH J: I appreciate that. Perhaps it gives effect to a principle in the same way that this Court has held in Theophanous and other cases.....wider a general principle.

MR MASON: Your Honours, it certainly is a principle earnestly to be sought and recognised. The question is: is to be found entrenched in the Constitution? The matters upon which the separation of powers were found to exist in the federal Constitution in Boilermakers was very much the structure of the Constitution and other aspects of it that are not present in Part 9.

Your Honours, looking at page 9 of the outline, can I address firstly the question of assuming a separation of powers and consequentially the principles in Polyukhovich’s Case being applicable, would the Community Protection Act infringe it? Our submission is that it would not. The argument that it does really confuses two things. It confuses the harshness and the specificity of the legislation with the interference with the judicial function. They are quite distinct.

What the legislation does is confers a discretion upon an independent officer, the DPP, to invoke a statutory jurisdiction given to an independent body, the Supreme Court of New South Wales, which is exercisable upon specified criteria, section 5, which, with respect to the appellant’s argument, are criteria that are avoidable. The argument in the written submissions is that there was nothing Mr Kable could have done to have avoided section 5. He did avoid it the second time around. His conduct had conformed to the extent that the court was not satisfied on the criteria that it was appropriate to make a further order.

But what the court had to decide, when the jurisdiction was invoked, was whether at that point of time - see section 5 - the court was satisfied of the matters there referred to. I have not taken the Court to the judgment. It is a very lengthy one, but your Honours will see that the trial judge, Justice Levine, examined closely matters that were arising on evidence as it was occurring in the course of the hearing. Mr Kable gave evidence. His credibility was in issue, the threats that he was making were renewed in the course of the hearing, so it was not just a simple situation of saying a person who in the past has done something shall be deemed available for this court order. The very fact that the power was given to the Supreme Court brings with it an independent body, a body with obligations to construe legislation strictly, to give effect to the rules of natural justice.

GUMMOW J: Are you saying, Mr Solicitor, that if this had been a law of the Parliament of the Commonwealth, it could have vested jurisdiction in a federal court?

MR MASON: Yes, I am. On this part of the argument I am saying that, yes.

GUMMOW J: So this could have been an exercise of the judicial power of the Commonwealth?

MR MASON: Yes. Can I put to one side the Kable specific aspect of it because that introduces the Leeth question and putting that to one side. Yes, this was very different to the law that was challenged in Polyukhovich. It was not a retrospective law. It was a law where the statutory criterion was declared in advance. To pick up the language of your Honour Justice Toohey, which I thought we referred to somewhere - it is in the middle of paragraph 12. The Act leaves it to the Court to determine judicially whether the appellant fits within “properly general proscriptions duly enacted in advance”. In a couple of minutes I will be referring the Court to a case in 123 CLR that is not on our list. I mention that for the associates.

The very fact that it was given to the court to do is, itself, I accept, not determinative, but it is not irrelevant. The fact that ‑ ‑ ‑

GUMMOW J: It is the heart of the complaint against you.

MR MASON: Yes, it is, and in that sense the complaint is, “Parliament could have done it itself but why make the court do the dirty work for the State”. The response is that the Chapter III separation prevents the court from being required to act in an unfair way, to proceed in an unfair manner, but it does not give the court an immunity from giving effect to harsh laws. This is the distinction that I am seeking to make.

Your Honours, Palling v Corfield in 123 CLR 52, which is not on our list - for that I apologise to my friends - was a case in which the validity of a National Service Act was challenged, and it was section 49(2) of the National Service Act which provided that upon the conviction of a person of an offence the court shall, if the prosecution so requests, ask the convicted person whether he is willing to enter into recognizance. It provides that if he does not the court shall sentence him to imprisonment for seven days. The validity of that section was challenged as infringing the judicial power of the Commonwealth but was upheld.

Chief Justice Barwick addressed the matter at page 58 and 59. The particular passages are at 58, 59, 62, 64, 65, 68 and 69. At page 58, about point 2, the Chief Justice said:

It seems to me that the argument supporting the applicant’s submission.....was founded on a basic misconception as to the exercise of judicial power in relation to the imposition of penalties or sentences.....It is beyond question that the Parliament can prescribe such penalty as it thinks fit for the offences which it creates. It may make the penalty absolute in the sense that there is but one penalty which the court is empowered to impose and, in my opinion, it may lay an unqualified duty on the court to impose that penalty. The exercise of the judicial function is the act of imposing the penalty consequent upon conviction of the offence which is essentially a judicial act. If the statute nominates the penalty and imposes on the court a duty to impose it, no judicial power or function is invaded: nor, in my opinion, is there any judicial power or discretion not to carry out the terms of the statute.

Then he refers to matters of discretion. At the bottom of the page:

Also, it is within the competence of the Parliament to determine and provide in the statute a contingency on the occurrence of which the court shall come under a duty to impose a particular penalty or punishment. The event or the happening on which a duty arises or for that matter a discretion becomes available to a court in relation to the imposition of penalties or punishment may be objective and necessary to have occurred in fact or it may be the formation of an opinion by the court or, in my opinion, by some specified or identifiable person not being a court.

I will not read the rest of that passage. Justice Menzies deals with the matter at the bottom of page 64. He has referred to the death penalty as an example in history earlier on 64, and at the bottom of 64:

Moreover, the making of a request in accordance with s 49 (2) does not interfere with the exercise of judicial power by the court. It is Parliament that has stipulated what the court must do upon the prosecution making the request referred to in s 49 (2) (a) and it cannot be denied that Parliament can, to some extent, validly control the exercise of judicial power.

And he gives an example:

Unless the Constitution otherwise provides, a court exercising federal jurisdiction must always act within the framework of the laws made by the Parliament. The doctrine of the separation of powers does not prevent Parliament from making laws relating to the exercise of judicial power by properly constituted courts.

And Justice Walsh dealt with the matter at some length at pages 68 and 69. Your Honours, one could perhaps say it is of the nature of law itself that Parliament says it makes up its mind if this has happened and someone is found to have done it, then this shall happen to that person. The fact that the judiciary is the body and the sole body that makes the determination of the application of that law and the consequential imposition of the consequence does not involve any abrogation of judicial power.

It is, in my submission, a proper recognition of the nature of judicial power that it is engaged with reference to laws made by Parliament, and as long as the judicial function is to determine the application of those laws to persons who, by their own conduct, bring themselves within the prohibition or otherwise, then there is no infringement of the separation of powers doctrine even on a full Chapter III basis.

Your Honours, no matter how much one construes section 5 up in order to try and bring about invalidity, which is not the normal way one construes an Act of this nature, one cannot escape that it is ultimately a conferral of a function upon a court to be satisfied itself that a person has fallen within a sufficiently defined and prescribed criterion, but a criterion that that person is free to avoid by his own conduct.

The fact that it is specific does not, at least according to the American authorities that are referred to at the bottom of paragraph 12, have anything to say about whether it infringes a separation of powers doctrine or become a bill of attainder. Your Honours, in paragraphs 15 and 16 we address the broader principle of separation of powers and the reasons why this Act does not infringe it; most of which points I believe I have already made.

May I read only from the very last authority mentioned at the bottom of page 10 of the outline, BLF v The Commonwealth 161 CLR 88, at pages 96 and 97, to seek to emphasise, if I may, the distinction between a harsh law and a law that infringes Chapter III, because in the passage at 96 and 97, starting about point 4, the Court upheld the capacity of Parliament to:

legislate so as to affect and alter rights in issue in pending litigation ‑

but held that that did not interfere with the exercise of judicial power in a way inconsistent with Chapter III, and a passage from the judgment of Justice Mason in Humby; Ex parte Rooney is cited, and reference is made to Nelungaloo Pty Ltd v The Commonwealth. Their Honours continued, about point 6:

It is otherwise when the legislation in question interferes with the judicial process itself, rather than with the substantive rights which are at issue in the proceedings. Liyanage v The Queen was such a case where the legislation attempted to circumscribe the judicial process on the trial of particular prisoners charged with particular offences on a particular occasion and to affect the way in which judicial discretion as to sentence was to be exercised so as to enhance the punishment of those prisoners.

And then the distinction between that and current law was emphasised.

Your Honours, we then address at paragraphs 17 and 18 the submission that the separation of powers doctrine does not apply in New South Wales. I do not propose to read any of the authorities mentioned in paragraph 17. I do put the submission that there has been an unbroken line of decision, of courts, including this Court, affirming that the uncontrolled nature of State constitutions does not import a doctrine of separation of powers.

Your Honours, the impact of changing that is a matter appropriately to be taken into account in our submission, because what is at issue is a departure from stare decisis and, in my submission, the legislatures of the States have relied upon that principle, have vested judicial functions in non‑judicial bodies, certainly bodies that do not have judicial tenure, and have vested non-judicial functions in judicial bodies. The Listening Devices Act, unlike the Grollo legislation, vests the power of issuing the warrant in the Supreme Court, for example, and this Court has said in Love’s Case that is clearly a non-judicial function. The Industrial Commission, your Honour Justice McHugh adverted to that this morning. That was the position until about five or six years ago. In fact, there is a new industrial arbitration bill currently before the Parliament which, to some extent, is going to revert to that situation.

Your Honours, then in paragraph 19, we address the argument that is based on Part 9 of the Constitution Act. The difficulty with invoking Part 9 in the present case is that it only became doubly entrenched after the passage of the Community Protection Act, indeed after the making of the order by Justice Levine which is challenged in these proceedings.

Until 2 May 1995, Part 9 of the Constitution Act of New South Wales was a statute and nothing more, and it was a statute predating the Community Protection Act 1994. If there is an inconsistency, which we deny, the general principle would be that the later and more specific provision of the Community Protection Act would prevail, but it cannot have been intended that there would have been an inconsistency. Otherwise, there would have been an implied repeal of Part 9 of the Constitution Act, something that is hardly to be expected.

The Constitution Entrenchment (Amendment) Act 1992 is numbered No 2 of 1995, because it only became law after the passage of a referendum this year, but section 2 of that Act provides that the Act commences on the date of assent. So the relevant part of the New South Wales Constitution only became controlled after the making of the order in the present case and it could not be attributed to the New South Wales Parliament or the people who participated as part of the legislature in the present case an intention to repeal by implication not just the Community Protection Act but all the other State laws that infringe the separation of powers doctrine in New South Wales and do so much more deliberately than the Community Protection Act.

In paragraph 20 is the submission which I think I have mainly deal with, that even if Part 9 had been doubly entrenched, it is very distinct from Chapter III of the Constitution and the structure of the federal Constitution both by what it provides with respect to the judiciary and with respect to what the uncontrolled parts of the balance of the Constitution provide.

Your Honours, in paragraphs 21 and 22 we address an argument which is certainly taken in the grounds of appeal. My learned friend did not say much about it, but I certainly do not understand him to have abandoned it, that there is a relevant principle of equality, that the Leeth principle affects State legislation. I do not understand him to say that this occurs through some sort of trickle‑down process from section 106 of the Constitution but that in some way it is a limitation upon State legislative power free standing. In my submission, that is not the case.

If one looks at the reasons advanced by your Honours Justices Gaudron and Toohey and Justice Deane in Leeth for the equality principle in the federal Constitution, they are matters that are absent from the State Constitution. They were the Chapter III separation of power, the specific prohibitions on discrimination to be found in various parts of the federal Constitution and the notion that the power in the Commonwealth Constitution derives ultimately from the people. None of those three constitutional pegs are present with respect to the formal constitutional structure in New South Wales.

We would submit, as we do in paragraph 23, that even if there were a Leeth principle at play, it is a big step to say that a doctrine of legal equality is infringed by an under‑inclusive law. It is true that some of the American case law based upon their equal rights protection does strike down under‑inclusive laws, but under‑inclusive laws have certainly been a pattern of legislation at both State and federal level in Australia, the BLF Case being an example both at federal and State level. But there are myriad State laws, examples of which are given in paragraph 23, where specific projects or the like have been addressed.

Not all of these have been beneficial laws. We give the example of laws creating sexual offences capable in law of applying only to males. Are these laws to be struck down because one could argue that they should have affected a broader category of persons than those chosen? In our submission, that is not the principle. As an alternative, we would submit that as long as there is a rational basis for limiting the law, that would sustain it. Given the serious nature of the Community Protection Act, whatever one can complain about it, the fact that it is not a universal law is a mixed blessing or a mixed detriment, depending upon which side of the debate you are on.

Your Honours, in one of the written submissions - I am now at paragraph 25 of our outline - a point was taken which again my friend did not develop. This, however, I do take him to have abandoned because he said this morning that this case is all about constitutional issues. It is a point not covered by the existing grounds of appeal or the grant of leave to appeal, namely that the Act on its true construction allows in effect one bite at the cherry. As your Honours have heard, Mr Kable is not currently under detention. The Act of course stands and it may be said that he has an interest in having the Act construed in such a way as it could not come back to haunt him, but that is not a point that has been raised up till now. In any event, it is not a point which has any significant prospect of success, given the clear intent of the Act that successive orders may be sought within the controls of the legislation.

Your Honours, that brings me just to a few concluding matters. The 78B notice, the notice that was served in relation to the appeal said, in effect, “See the grounds of appeal in the notice of appeal”. If your Honours do not have one, I could have copies reproduced, although I do not have them now. Could I ask your Honour Chief Justice, do you have a copy?

BRENNAN CJ: Yes, we have a copy of the notice.

MR MASON: Thank you. It is one dated 22 September.

BRENNAN CJ: Yes.

MR MASON: One is taken back to the notice of appeal. Your Honours, the notice of appeal does not encompass a Chapter III or a section 39 argument. It does say “bill of attainder and separation of powers”. Whether that can be said to include a separation of powers derived via 106 query, I do not claim to have been surprised in any way by that aspect of the argument although my friend only formulated it a couple of days ago. I cannot speak for the other intervening parties. Your Honour, can I supplement what I had said in a couple of respects?

BRENNAN CJ: Yes.

MR MASON: The argument based upon section 73 and the notion that there is some inherent incapacity to receive a vesting of judicial power is one that certainly is not in the notice of appeal, we would contend, or the 78B notice. For my part, I would be content if there were some opportunity to supplement in written form any submissions addressed to that matter. I spoke at lunch time to the Solicitor‑General for the Commonwealth who was present during part of the morning and he indicated that, for his part, if Chapter III becomes part of the issue, the Commonwealth would wish the opportunity to put submissions in but, again by written form.

BRENNAN CJ: No doubt the Commonwealth would be concerned, but the problem seems to me to be this, that if it be said that by reason of either Chapter III of the Constitution or section 39 of the Judiciary Act, there is a restriction on the power of State parliaments to invest particular functions in the courts of the States, that is the subject matter which might well agitate the concerns of those States who are not here represented.

MR MASON: Yes, I, with respect, agree with that. The way it was formulated this morning by my learned friend, it agitates this State as well. But in terms of the convenience of the Court, we certainly do not wish to call matters to a grinding halt. For our part, an opportunity to put in written submissions would be adequate. Might I respectfully submit that the appellant ought to be required to formulate in writing by tomorrow morning such additional grounds of appeal as are sought to be encompassed and that a 78B notice be sent extending to those and then, speaking for myself alone and for the Commonwealth, a right to put in written submissions addressing those additional grounds would be adequate. I cannot speak for the other parties here present or those absent.

DAWSON J: But those absent could be contacted though, could they not? It is only Queensland and Tasmania.

MR MASON: And the Territories, yes.

DAWSON J: Overnight?

MR MASON: Yes, we could certainly contact them.

BRENNAN CJ: Perhaps I should ask Sir Maurice. Sir Maurice, if the Court is of the view that a 78B notice is required in relation to that argument that you put this morning, could that be formulated in a way that could be transmitted to the absent States and Territories overnight?

SIR MAURICE: Yes, your Honour. The points could be very simply stated, yes. We say of course that the allegation in the notice of appeal that there was no capacity in the State to pass a Bill of Attainder and Bills of Pains and Penalties which is based on separation of powers, that states the point and the rest is just a matter of argument. So that the nature of the case is formulated, and that is all that 78B requires. But, your Honours, if that does not commend itself to the Court, then certainly we will send it.

BRENNAN CJ: I think it would be far better if the formulation was more precise so that the issue can be drawn adequately to the attention of those who are likely to be concerned with it.

SIR MAURICE: As your Honour pleases.

BRENNAN CJ: Mr Solicitor for New South Wales, assuming that the arrangements are made for the drawing of the 78B notice and delivery of it, could you undertake to accumulate the responses of the States and the Commonwealth and Territory?

MR MASON: Yes, your Honour. Your Honours, I have only about five minutes to go in the balance of my submissions. Could I leave till tomorrow the response that I would make orally to that part of the submissions in the reformulated notice?

BRENNAN CJ: Yes, Mr Solicitor.

MR MASON: Thank you. Then just leaving, as it were, the section 39 type issue to one side, the only two remaining matters I wish to address are the question of relief and the question of possible severability.

The notice of appeal seeks, by way of relief, that the appeal be allowed, and costs. Now, that notice was filed at a time when Mr Kable was serving detention under the order made by Justice Levine. Subsequently, as the Court has been told, an application for an extended period failed before Justice Grove.

Clearly the appeal raises the question of the validity of the Act. I would submit that the proper course is for the appellant to be asked to formulate an application for a declaration as to the invalidity of the Act. Equally clearly, I do not understand the appeal to involve any question of consequential relief, in terms of any claim for damages with respect to past detention and all of the issues that would be involved in that, but I would submit that it would be appropriate that the appellant, perhaps overnight, give some thought to exactly what relief they are seeking in these proceedings as they are presently constituted..

So, for our part, if the appellant were to succeed and a declaration were made, we could have no complaint about that, but it is certainly our understanding that that is the only matter presently in issue, apart from questions of costs in these present proceedings. I am not foreshadowing any Anshun type point if there were later proceedings consequent upon the declaration of invalidity, but I am just wishing to clarify what the present status of relief is.

Your Honours, just in terms of the severability of the Act and some of the matters that were raised, I certainly do not seek to uphold the Act by having section 3 struck from it. If the Kable specific nature of the legislation is its vice, I accept that the legislation as a whole should go, because Parliament clearly intended it be Kable specific, and if one hypothetically asks, “Would you rather have this law, or no law?”, I cannot give a specific answer to that. If, however, the defect were, with respect, for example, to section 17(3) or some particular aspect of the way the Act deals with the rules of evidence, then it would be appropriate for the Court to consider questions of severability. The relevant section of the New South Wales Interpretation Act corresponding with 5A of the Commonwealth one is section 31 of the Interpretation Act of 1987.

It is not easy at this point of time, and certainly the Court has no material upon which to be able to form any judgment on this, to determine the extent to which the order that was obtained against Mr Kable depended upon the unusual evidentiary provisions of the Act, and I am not wanting to suggest that there was a great resort to it, but I am equally not asserting that there was no reliance upon it, but if that were the only provision struck down, obviously it could affect the question of whether the Court acted within jurisdiction or otherwise in making the order which was the basis for the detention of Mr Kable, and that could have consequences.

The only other provision I would make special reference to is section 28 which provides a legislated immunity for acts done in good faith. I would submit that it would be within the power of a State to legislate to

confer that immunity even upon itself with respect to good faith acts, particularly conducted under judicial order. And I would submit that the invalidity of the Act as a whole would not necessarily strike down 28. Your Honours, subject only then to whatever I would wish to say about the 39 argument and the argument based upon the capacity of the Supreme Court to be a vehicle for federal judicial power now that it has had this extra jurisdiction thrust upon it, those are the submissions which I wish to make.

BRENNAN CJ: Thank you, Mr Solicitor. Mr Solicitor for Victoria.

MR GRAHAM: If the Court pleases, I would anticipate presenting our arguments in relation to the Chapter III point and what I will call the section 39, section 109 point, perhaps following my learned friend, the Solicitor for New South Wales, tomorrow if that is convenient. But I propose, with the Court’s permission, to begin our other submissions at this stage. In the course of the submissions by my learned friend, the Solicitor for New South Wales, reference was made to the concept of an Act or a piece of legislation which prescribes no rule but only prescribes a result. It was suggested that there was a material difference for present purposes between such Acts.

It is perhaps worth pausing to recall that Act 1 Edward VIII Chapter III which was entitled His Majesty’s Declaration of Abdication Act 1936, would probably be correctly categorised as an Act which prescribed only a result and no rule and yet, of course, it provides for the succession to the head of State.

BRENNAN CJ: What did it say.

MR GRAHAM: It is quite interesting, your Honour. What it said was that:

Immediately upon the Royal Assent being signified to this Act the Instrument of Abdication executed by His present Majesty on the tenth day of December, nineteen hundred and thirty-six, set out in the Schedule to this Act, shall have effect, and thereupon His Majesty shall cease to be King and there shall be a demise of the Crown, and accordingly the member of the Royal Family then next in succession to the Throne shall succeed thereto and to all the rights, privileges, and dignities thereunto belonging.

And that took effect in Australia without the need for a requesting Act because, of course, the statute of Westminster had not been adopted in this country, but it would be a highly significant example of an Act prescribing only a result.

If I could take the Court then to our outline of argument‑ ‑ ‑

GUMMOW J: I think the opinion of the law officers at the time was that the application would not be effective without statute as well. I think it was constitutive of the abdication itself.

MR GRAHAM: With respect, your Honour, one would have assumed that must necessarily have been so because that Act must have had at least an implicit effect upon the Act of Settlement which prescribed the order of succession from William I and Mary onwards. If I could take the Court to our outline. It is our submission that there is no limitation, express or implied, upon the exercise of the legislative power of the New South Wales Parliament which precludes the enactment of the Community Protection Act. One cannot find any such limitation either in the New South Wales Constitution Act, nor does any limitation flow from the Commonwealth Constitution so as to restrict the powers of the New South Wales Parliament.

The appellant contends that there are some such limitations upon the legislative competence of the New South Wales Parliament which, as we understood the argument, arise by implication. It seems to be submitted that those limitations prevent the Parliament from enacting legislation which specifically designates a particular individual. It is also suggested, although perhaps not fully articulated, that the Community Protection Act in designating Kable and him alone, was in the nature of a bill of pains and penalties and that the New South Wales Parliament does not have the power to pass such an act.

We would submit there are a number of factors which prevent the recognition of any relevant limitation under the State Constitution of New South Wales. They include the supremacy of the State legislatures within the scope of their grants, and the unrestricted scope of the grant of legislative power, particularly the absence of any non-territorial limitation flowing from the words “peace, welfare and good government”, and we would say - and we will develop this - the inapplicability of the doctrine of separation of powers at the State level.

DAWSON J: What do you say about the suggestion put by Justice McHugh that common law, like the Lord, can giveth and taketh away?

MR GRAHAM: Your Honour, we would respond with very great respect to his Honour by saying that since the 17th century, the judges administering the common law have come to recognise, as a matter of practical reality, the ultimate authority of Parliament subject, in this country, only to the Commonwealth Constitution. In this context, it is interesting to recall, having regard to something that fell from your Honour Justice Toohey in referring to Marbury v Madison, that astonishing remark of President Jackson following the decision in Worcester v Georgia when he said, “John Marshall has made his decision. Now let him enforce it”.

It is all a recognition of the ultimate authority and that we would say, in the 20th century, of the power of the Parliament, and that is the best we can do to answer his Honour’s suggestion, but there is not room for a move back to the views that are perhaps prevalent in earlier times. We would also say that there is no restriction upon State legislative power based upon rights deeply rooted in our democratic system of government. Political restrictions and restraints certainly, but legal restrictions, we would respectfully submit, not at all.

If we can hark back to very basic principles, as we do in paragraph 4 of the outline, the powers of the State legislatures are absolute and supreme, and it is long established for well over a 100 years that the State legislatures and the Commonwealth legislature are not delegates of the imperial legislature. They have unrestricted powers which are equal to that of the Imperial Parliament itself, and we refer to the familiar authorities, Hodge v The Queen, Powell v Apollo Candle Company, Reg v Burah. In Hodge v The Queen, 9 AC 117, the Privy Council said that the Act:

conferred powers not in any sense to be exercised by delegation from or as agents of the Imperial Parliament, but authority as plenary and as ample within the limits prescribed by sect 92 as the Imperial Parliament in the plenitude of its power possessed and could bestow. Within these limits of subjects and area the local legislature is supreme ‑

We would submit that those observations are as true today as they were at the time when that decision was given and, perhaps, reinforced by the provisions of the Australia Acts of 1986.

The issue of supremacy that was raised in Hodge v The Queen and Reg v Burah was raised in the context of a concern that colonial legislatures might be regarded as delegates of the Imperial Parliament and could sub‑delegate their powers but the Privy Council endorsed the general proposition that each dominion legislature was within the limits of its grant and I quote from Burah’s Case at page 904 that they were:

intended to have, plenary powers of legislation, as large, and of the same nature, as those of Parliament itself.

And, indeed, in the Apollo Candle Company Case 10 AC 282, the Privy Council expressly stated, at page 290 that the New South Wales Parliament whose powers were there in question, enjoyed plenary powers of legislation.

DAWSON J: But does your proposition goes so far as to say that State legislature can say what it wants to, it is for the courts to interpret what it says, but they cannot disregard it?

MR GRAHAM: Yes, I do assent to that proposition, your Honour. If I could just give one further citation, this time to Broken Hill South Ltd v Commissioner of Taxation (NSW) 56 CLR 337, Mr Justice Evatt at page 378, referring to the fact that sovereignty was divided between the Commonwealth and the States, but he said:

the legislative authority of the States is of precisely equivalent quality and potency to that of the Commonwealth ‑

and we would add, in some respects more so because of the unlimited nature of the powers granted as distinct from the enumerating powers of the Commonwealth Parliament.

It seems to have been suggested, at least in the grounds of appeal, that the expression in the New South Wales Constitution “peace, welfare and good government” impose some type of limitation upon the scope of the powers of the New South Wales Parliament. It is our submission that those words and their equivalents in all of the other Australian State Constitutions impose no non‑territorial limitation. They do not prescribe criteria to be used by a court to determine whether legislation is valid or invalid. Support for that view, we submit, can be gained from the decision of this Court in Union Steamship Co of Australia v King 166 CLR 1.

The relevant passage is at pages 9 to 10 in the joint judgment of the Court and there are passages in the judgments of some of your Honours and the former Chief Justice in Polyukhovich v The Commonwealth 172 CLR 501. The former Chief Justice at page 529; Mr Justice Deane at pages 605 to 606; Justice Dawson at pages 635 to 636; Justice Gaudron at page 695 and Justice McHugh at page 714.

DAWSON J: The emphasis was not so much on the words “peace, welfare and good government” as upon the word “laws”.

MR GRAHAM: Yes.

DAWSON J: Do you go so far as to suggest that any expression of the legislative will amounts to a law in the sense that if you have an “off with his head” proposition expressed by the Queen, that is not a law; but expressed by the legislature, it would be a law, within the meaning of that phrase?

MR GRAHAM: I would have to be cautious, your Honour, because one might postulate examples which could be difficult to deal with but, generally speaking, yes.

DAWSON J: Can you think of any exceptions where there is a formal expression of the will of the legislature which could not be described as a law within the meaning.....laws of the people?

MR GRAHAM: None that comes to mind, your Honour.

McHUGH J: Can I give you two illustrations? The first is a law which said, “This Act cannot be repealed by any future Parliament”. Is that a law the courts would recognise?

MR GRAHAM: It is not a law, your Honour, because it is, on the face of it, ineffective to accomplish anything, unless it was to be treated in some fashion.

McHUGH J: Supposing it directed the courts irrespective of what some future Parliament decided or held or enacted to enforce the provisions of this legislation. Would that section be a law?

MR GRAHAM: I do not wish to appear to be evading the problem, but I say it is not a law because in the nature of a law passed by Parliament with plenary powers, leaving aside manner and form restrictions, such a provision simply could not be effective to deny a subsequent Parliament the capacity to repeal it.

McHUGH J: Supposing a State for some reason enacted what appeared to be a law was not a law and was not to be treated as law, maybe for the purpose of some other legislation, for example.

MR GRAHAM: I have difficulty in grappling with your Honour’s second example, or formulating it. It would be inoperative in its own terms. In that sense it would be mere brutum fulmen, so in one sense, at least, it would not be a law. In another sense, it would be because it would bear on its face all the indicia of an Act of Parliament.

McHUGH J: It does indicate that merely because you have a piece of paper with some command on it addressed to people and with assent, having passed both houses of Parliament, does not necessarily mean it is a law, even in an uncontrolled Constitution. Particularly the first example. Leave aside the second example.

MR GRAHAM: Yes, your Honour, there may be examples and if I may say, with great respect, your Honour’s first example was a very ingenious one. I am compelled to say that it is not a law because it is inoperative. It does not take effect as a law. It cannot be given effect to because always it has the capacity to be disregarded.

DAWSON J: That is because it is a proposition like “This supreme Parliament is not supreme”. It is an oxymoron, is it not?

MR GRAHAM: Yes, it is, your Honour, but if the Parliament passed a law saying this Parliament shall continue in existence indefinitely, obviously it is open to that Parliament to alter that state of affairs and if that Parliament were dissolved, notwithstanding that prohibition, the new Parliament would, we submit, still be a competent Parliament to enact legislation subsequently. So that there are examples that one can postulate of laws which simply are incapable of being given effect according to their tenor.

DAWSON J: Well, it is a matter of you cannot be heard to deny the power which gives you the power to pass the very law that you were passing ‑ ‑ ‑

MR GRAHAM: Yes.

DAWSON J: ‑ ‑ ‑ because you cannot pull yourself up or down by your own bootstraps.

TOOHEY J: In the State context is there any difference between saying that something is not a law and saying that something is beyond legislative power?

MR GRAHAM: I can think of no relevant difference, your Honour, although one might wish to draw a distinction between invalidity, a law

which was invalid and a law which was inoperative, but in the end it would not be an effective law that was required to be obeyed. There is perhaps one area of difficulty about the proposition that your Honour Justice Dawson put to me and which I assented to. A law passed by a State Parliament which simply purported to abolish that Parliament without provision for any successor legislature might have to be regarded as not a law of the kind contemplated by the grant of legislative power by a provision such as section 5 of the New South Wales Constitution because it would bring about a state of affairs which was chaotic and clearly not contemplated by the grant of the power but, leaving aside that example, we can perceive no other limits upon the legislative powers.

BRENNAN CJ: But the reason why that example raises difficulties is because it is such a radical affection of the structure of the Constitution. Once you acknowledge that as an exception, the question then is: Is a law which says “Off with his head” a law of the same kind? In other words, a radical interference with the structure of the Constitution in the sense that it exposes the individual subject to the arbitrary will of the Parliament.

MR GRAHAM: Your Honour, perhaps, with respect, the answer to the proposition that is perhaps implicit in what your Honour put to me may be dependent upon a proper construction of the expression, “Peace, welfare and good government”, to determine whether there are any limitations arising by implication from those words. I have suggested, in the case of abolishing the Parliament, that there might be. It is another thing to say that an unfair, unjust and monstrously unreasonable law is not embraced by the grant of legislative power.

BRENNAN CJ: Yes. It may be a distinction between the constituent powers of the Parliament and the ordinary legislative powers.

MR GRAHAM: Yes, that may well be so.

BRENNAN CJ: Perhaps you can develop that tomorrow morning at 10.15.

MR GRAHAM: Yes, your Honour.

AT 4.19 PM THE MATTER WAS ADJOURNED
UNTIL FRIDAY, 8 DECEMBER 1955

[1995] HCATrans 366

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