Lewis v Chief Executive of the Department of Justice and Community Safety of the Australian Capital Territory - [2013] ACTSC 198

HUMAN RIGHTS ACT
STEVEN JAMES LEWIS v CHIEF EXECUTIVE DEPARTMENT OF JUSTICE AND COMMUNITY SAFETY AND ORS
[2013] ACTSC 198 (1 October 2013)

ADMINISTRATIVE LAW – delegation – whether retrospective delegation is invalid – whether statements suggesting invalid delegation are binding upon a party – whether delegation was invalid as unauthorised subdelegation – whether invalid delegation is validated by s 242(1) of the Legislation Act – whether officer may act without delegation under the Carltona principle – whether the Sentence Administration Board could act regardless of the validity of the delegation – delegation valid
ADMINISTRATIVE LAW – validity of meetings – effect of the invalidity of the meeting of the Sentence Administration Board – whether resolutions at that meeting were valid regardless of the meeting’s invalidity – resolutions valid and binding
ADMINISTRATIVE LAW – particular tribunals or bodies – the Sentence Administration Board (ACT) – requirement to comply with the rules of natural justice – exercise of power under the Crimes (Sentence Administration) Act 2005 (ACT) not judicial power
ADMINISTRATIVE LAW – natural justice – content of the natural justice requirement on the Sentence Administration Board – requirement to give notice – whether personal service of notice is required – not required -- whether the presence of the accused at an inquiry of the Sentence Administration Board is required – turns on the circumstances – presence of the accused not always required – right of an accused to be present at an inquiry of the Sentence Administration Board – not a necessity for the accused to be present
CONSTITUTIONAL LAW – judicial power – characteristics of judicial power – sentencing as judicial power – powers of the Sentence Administration Board not sentencing – distinction between imposing sentence and the way a sentence is to be served
CONSTITUTIONAL LAW – territories – particular territories – the Australian Capital Territory – establishment of the ACT Legislative Assembly under the Australian Capital Territory (Self-Government) Act 1988 (Cth) was not a delegation of the Commonwealth nor does the Legislative Assembly exercise Commonwealth legislative power – complication of s 48A of the Australian Capital Territory (Self-Government) Act 1988 (Cth)
CONSTITUTIONAL LAW – territories – particular territories – the Australian Capital Territory – no requirement for separation of powers in the ACT under the Commonwealth Constitution – judicial power of the ACT courts not the judicial power of the Commonwealth – establishment of ACT courts was under s 122 not s 71 of the Commonwealth Constitution – laws of the ACT do not ‘arise under’ a law of the Commonwealth
CONSTITUTIONAL LAW – territories – particular territories – the Australian Capital Territory – interference with or impairment of the institutional integrity of the ACT Supreme Court – no interference or impairment
CRIMINAL LAW – sentencing – options for imprisonment – periodic detention – approach to in the ACT – purpose for and operation of the legislative scheme – whether periodic detention is consensual – it is – distinction between the setting of a sentence and setting a period of periodic detention
CRIMINAL LAW – jurisdiction, practice and procedure – requirement for the presence of an accused during trial or sentence – accused required subject to exception
STATUTES – acts of parliament – validity of legislation – Crimes (Sentence Administration) Act 2005 (ACT) – validity of ss 68(2)(f), 69, 79 and 82 of the Crimes (Sentence Administration) Act 2005 (ACT) – sections all valid

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No. SCC 353 of 2009
No. SCC 354 of 2009

Judge: Refshauge ACJ
Supreme Court of the ACT

Date: 1 October 2013

IN THE SUPREME COURT OF THE     ) No. SCC 353 of 2009
  )          No. SCC 354 of 2009
AUSTRALIAN CAPITAL TERRITORY           )

BETWEEN: STEVEN JAMES LEWIS
Plaintiff

AND:CHIEF EXECUTIVE OF THE DEPARTMENT OF JUSTICE AND COMMUNITY SAFETY OF THE AUSTRALIAN CAPITAL TERRITORY
First Defendant

AND:SENTENCE ADMINISTRATION BOARD OF THE AUSTRALIAN CAPITAL TERRITORY
Second Defendant

ORDER

Judge:  Refshauge ACJ
Date:  1 October 2013
Place:  Canberra

THE COURT DECLARES THAT:

Sections 68(2)(f) (so far as it relates to cancellation of an offender’s periodic detention for failure to perform 2 or more periods of periodic detention), 69, 79 and 82 of the Crimes (Sentence Administration) Act 2005 (ACT) are valid.
The Legislative Assembly of the ACT has the power to invest the Sentence Administration Board with the jurisdiction arising from ss 68(2)(f), 69, 79 and 82 of the Crimes (Sentence Administration) Act 2005 (ACT)

AND THE COURT ORDERS THAT:

The decision of the Sentence Administration Board on 8 July 2008 be set aside.

The parties be heard in relation to any other orders that should be made.

The events which led to this hearing started one Friday night in late 2007 when a fight occurred outside a Fyshwick tavern, regrettably but unsurprisingly, when two groups of males were drinking alcohol and watching football on the tavern’s television.

A member of one of the groups, the victim of the offence referred to below, lost his wallet. He thought that the members of the other group, which included the plaintiff, Steven James Lewis, had either taken it or knew who had.

After some limited and unfriendly interaction between the groups, the victim found his wallet and told the members of the other group “that he had found his wallet and that everything was okay”, as the police Statement of Facts put it.

It appears that this did not resolve the hostility that had apparently developed between the groups; indeed an apology offered by the victim was met by Mr Lewis responding with aggressive and threatening conduct and language. Later, as the victim was standing outside and at a window of the tavern, finishing a cigarette while watching the football, Mr Lewis smashed a glass into the victim’s face, causing him injuries that required ten stitches to repair and severing the nerves in the area.

Mr Lewis was charged with recklessly or intentionally inflicting actual bodily harm, an offence against s 23 of the Crimes Act 1900 (ACT), and was sentenced for the offence on 24 January 2008. The Magistrates Court imposed a term of imprisonment for twelve months and, under s 11 of the Crimes (Sentencing) Act 2005 (ACT) (the Sentencing Act), set the whole of the period of imprisonment to be served by periodic detention.

On a number of occasions thereafter, Mr Lewis failed to attend at the periodic detention centre to serve that imprisonment and application was made to the Sentence Administration Board (the Board) under s 59 of the Crimes (Sentence Administration) Act 2005 (ACT) (the Sentence Administration Act) for an inquiry under s 66 of that Act.

Ultimately, an inquiry was held on 8 July 2008 at which Mr Lewis was not present. The Board cancelled Mr Lewis’ periodic detention under s 68(2)(f) of the Sentence Administration Act and issued a warrant for his arrest under s 82(3) of that Act.

Mr Lewis was arrested on 5 January 2009 and commenced serving the balance of his sentence of imprisonment calculated in accordance with s 79 of the Sentence Administration Act.

THE PROCEEDINGS

On 25 March 2009, Mr Lewis commenced these proceedings seeking an order under s 18(6) of the Human Rights Act 2004 (ACT) to have him brought before the court to determine the lawfulness of his detention, an order for habeas corpus for his release from detention, a declaration that ss 68(2)(f), 79 and 82 of the Sentence Administration Act are invalid and such other orders as the court considers appropriate and for costs.

On 27 March 2009, the learned Chief Justice granted Mr Lewis bail pending the hearing of these proceedings.

On 10 June 2009, the court directed that the hearing of the proceedings be conducted in two parts. The first part, to be heard on 2 July 2009, was limited to what were described as the “administrative law matters” raised by Mr Lewis, that is, issues relating to the validity of the proceedings before the Board based on suggested failures to comply with mandated procedures and the duty of procedural fairness.

The second part, dealing with the constitutional validity of the relevant sections of the Sentence Administration Act, was to be heard on 16 November 2009.

I shall, accordingly, deal with the issues and consideration of the proceedings as to each of these matters separately. Before doing so, however, it is appropriate to describe and analyse the sentence of periodic detention which is at issue.

PERIODIC DETENTION

As a sentencing option for courts, periodic detention takes a number of forms. It was introduced in New Zealand on 28 November 1962, the first jurisdiction to do so, though the concept of “gaols operating at week-ends” had been suggested by the Member for Lane Cove in the NSW Parliament, Mr E D Darby, in a speech to the NSW Legislative Assembly as early as 10 December 1946 (New South Wales, Parliamentary Debates, Legislative Assembly, 10 December 1946).

In Australia, the NSW Parliament in 1970 passed the first legislation to provide for periodic detention, the Periodic Detention of Prisoners Act 1970 (NSW) (later replaced by the Periodic Detention of Prisoners Act 1981 (NSW)) and later that year, the Queensland Parliament passed the Weekend Detention Act 1970 (Qld). Other States, such as Western Australia and Victoria, considered introducing such a scheme but decided not to do so.

Some overseas jurisdictions, such as Britain, the Netherlands and Belgium also made provision for it: Peter Prisgrove, “Periodic Detention: A Critical Examination” (1973) 6(3) Australian and New Zealand Journal of Criminology 147.

The ACT introduced periodic detention with the Periodic Detention Act 1995 (ACT) which was subsequently replaced by relevant provisions in the Sentencing Act and the Sentence Administration Act.

The ACT is now the only jurisdiction in Australia that provides this sentencing option.

The scheme in Queensland “soon fell into desuetude when it was found to be too difficult to administer, too expensive to run, and too disruptive on other inmates of the prison”: I Potas, S Cumines and R Takach, ‘A Critical Review of Periodic Detention in New South Wales’ (Monograph No 5, Judicial Commission of New South Wales, 1992) at 10. In NSW, despite a research publication of the relevant department (J McHutchison, ‘Outcomes for NSW periodic detention orders commenced 2003-2004’ (Research Publication No 48, NSW Department of Corrective Services, 2000) at 28), finding that “[p]eriodic detention is a valuable sentencing option as it has reparative and rehabilitative merit”, periodic detention ceased as a sentencing option in that State in October 2010.

The ACT legislation followed a review conducted by the ACT Corrections Review Committee. Its report, Paying the Price - A Review of Adult Corrective Services and Juvenile Justice in the ACT (ACT Government, 1992)(Paying the Price) recommended, at Recommendation 35, that periodic detention should be available as an alternative sentencing option. It accepted the purpose of periodic detention which had been accepted in New South Wales as follows (at 79):

to provide a viable and economic alternative to full-time imprisonment, a corrective influence upon the offender, with minimal disruption to family and community life.

It cited a monograph of the Judicial Commission of New South Wales, B Bray and J Chan, ‘Community Service Orders and Periodic Detention as Sentencing Options’ (Monograph Series No 3, Judicial Commission of NSW, 1991) at 80 as reporting the main aims of periodic detention seen by judicial officers as “punishment and deterrence in giving offenders a taste of gaol while avoiding the negative effects of full-time imprisonment”.

The ACT government accepted the recommendation and prepared a bill which became the Periodic Detention Act; the Explanatory Memorandum for the Bill explicitly acknowledged the genesis of the legislation in the report, Paying the Price, as did the then Attorney-General, Mr G Humphries MLA, in the Presentation Speech. He specifically referred to the advantage that offenders subject to periodic detention orders would make a positive contribution to the community through unpaid work while in detention and the potential saving where suitable offenders would otherwise have been sent to gaol.

In Paying the Price (at 80), the option was said, on a continuum of severity, to be placed “between community service orders and imprisonment”. This accords with authority such as R v Hallocoglu (1992) 29 NSWLR 67 at 74-5 and R vQi (1998) 102 A Crim R 172 at 176, though it is a sentence of inconvenience as described in R v Niga (Unreported, NSW Court of Criminal Appeal, Gleeson CJ, Kirby P and Ireland J, 13 April 1994), clearly disturbing the ordinary affairs of the life of the offender and restricting their liberty.

Section 4 of the Periodic Detention Act made it clear that the option was an alternative sentencing option by providing:

4. (1) A court—
(a)which convicts a person of an offence against a law of the Territory; and
(b)which, but for the option of making an order under this section, would otherwise sentence the person to a term of imprisonment of not less than 3 months but not more than 24 months;
may, instead of sentencing the person to imprisonment, by order—
(c)sentence the person to complete such number of detention periods at a detention centre, as the court specified; and
(d)direct that the person be released from custody subject to any order that may be made under subsection 10(2).

If an offender was subsequently convicted of an offence and sentenced to a term of imprisonment, s 29 provided that the court may cancel the order for periodic detention. Similarly, under s 30, the court was also empowered to cancel the order for periodic detention where, for example, the offender has failed to report for three or more detention periods. In the event of cancellation, s 31 provided that the offender was to serve any remaining periods of detention “as a separate term of imprisonment imposed at the time of cancellation” at the rate of one week per each detention period that the offender would otherwise have been required to serve.

The Periodic Detention Act was repealed on 2 June 2006 and the provisions for periodic detention were incorporated into the Sentencing Act and the Sentence Administration Act.

Structure of Sentences under the Sentencing Act

Section 11 of the Sentencing Act, which appears in Part 3.2 “Sentences of Imprisonment”, provided a somewhat different structure for the sentence as follows:

(1) This section applies if—
(a) an offender is convicted of an offence; and
(b) the court sentences the offender to imprisonment for the offence.

(2) The court may, in the order sentencing the offender to imprisonment, set a period of the sentence of imprisonment (a periodic detention period) to be served by periodic detention.
Note A periodic detention period may be part of a combination sentence together with other sentencing options (see pt 3.6).

(3) The periodic detention period—
(a) may be for all or part of the offender’s sentence of imprisonment; but
(b) must be for a period of at least 3 months and not longer than 2 years.

(4) When the court sets the periodic detention period, the court must state—
(a) when the periodic detention period starts and ends; and
(b) the day the first detention period under the Crimes (Sentence Administration) Act 2005 for the offender is to start.

(5) The court may also recommend any condition, not inconsistent with this Act or the Crimes (Sentence Administration) Act 2005, that the court considers appropriate for the offender’s periodic detention.
Examples of conditions
see the examples to section 13 (3) (g) (Good behaviour orders)
Note 1 A condition recommended by the court is, under the Crimes (Sentence Administration) Act 2005, an additional condition of the offender’s periodic detention (see that Act, s 40, def additional condition, par (a)).
Note 2An example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act, s 126 and s 132).

(6) This section is subject to chapter 5 (Imprisonment).
Note See, in particular, pt 5.4 about eligibility and suitability for, and other matters in relation to, periodic detention.

This provision is similar in structure to s 12 which permits a court to make an order suspending all or part of a sentence of imprisonment. Section 12(1) is identical to s 11(1). The courts have held that such sentences are sentences of imprisonment with elements of retribution and general deterrence involved: R v Valentini (1980) 48 FLR 416. This reasoning would appear then to apply equally to periodic detention orders: see R v Creighton [2011] ACTCA 13 at [50].

Chapter 5 of the Sentencing Act deals with imprisonment, much of which is implicitly (e.g. backdating sentences – s 63) or expressly (e.g. non-parole periods – s 64(3)(b)) not applicable to periodic detention. Division 5.4, however, applies expressly to periodic detention and provides for eligibility and suitability. As to the former, s 77 relevantly provides:

(1)The court must not set a periodic detention for the offender unless satisfied that—
(a)periodic detention is suitable for the offender (see section 78); and
(b)it is appropriate for the offender to serve all or part of the sentence by periodic detention; and
(c)there are appropriate facilities available at a correctional centre for the offender to serve any period of periodic detention set by the court; and
(d)the offender has signed an undertaking to comply with the offender’s periodic detention obligations under the Crimes (Sentence Administration) Act 2005.

Determination of suitability for periodic detention

Suitability is determined under s 78 which also refers to s 79, both of which provisions are in the following terms:

78 Periodic detention—suitability
(1)The court must not set a periodic detention period for the offender unless a pre-sentence report is given to the court about the offender's suitability to serve a sentence (or a part of a sentence) by periodic detention.
(2)In deciding whether to set a periodic detention period for the offender, the court must consider the following:
(a)the pre-sentence report;
(b)any medical report about the offender given to the court;
(c)any evidence given by the person who prepared the pre-sentence report;
(d)any evidence given by a corrections officer about the offender.

(3)Subsection (2) does not limit the matters that the court may consider.
(4)In considering the pre-sentence report, the court must consider any indicators of unsuitability mentioned in table 79, column 3 that are stated in the report to apply to the offender.
(5)The court may set, or decline to set, a periodic detention period for the offender despite—
(a)any recommendation in the pre-sentence report about the offender's suitability to serve a sentence (or a part of a sentence) by periodic detention; or
(b)any evidence given by the person who prepared the pre-sentence report or a corrections officer.

(6)The court must record reasons for its decision to set, or decline to set, a periodic detention period for the offender if—
(a)the pre-sentence report recommends that the offender is suitable but the court decides not to set a periodic detention period for the offender; or
(b)the pre-sentence report recommends that the offender is not suitable but the court decides to set a periodic detention period for the offender.

(7)Failure to comply with subsection (6) does not invalidate the periodic detention order.

79. Periodic detention—pre-sentence report matters
For section 42 (3) (Pre-sentence reports by assessors), the matters for assessing the offender’s suitability to serve a sentence (or a part of a sentence) by periodic detention are the matters mentioned in table 79, column 2.
Table 79 Assessment of suitability—periodic detention

column 1 column 2 column 3

Item matter Indication of unsuitability

1 degree of dependence on alcohol or a controlled drug major problem with alcohol or a controlled drug

2 psychiatric or psychological condition major psychiatric or psychological disorder

3 medical condition potential unfitness to report for periodic detention

4 criminal record serious criminal record

5 employment and personal circumstances potential impracticability of regular reporting for periodic detention

The Sentence Administration Act sets out in Chapter 5 the structure of the regime that is constituted by an order for periodic detention in three substantive parts.

Obligations and the status of persons serving periodic detention

Part 5.2 sets out the obligations and status of offenders serving periodic detention. Thus, s 42(2) sets out the basic obligations of the person serving periodic detention as:

(a) to perform periodic detention in accordance with Part 5.3;

(b) to comply with the “core” conditions (such as not to commit certain offences, to report certain matters) set out in s 43;

(c) to comply with any additional conditions which the court might recommend under s 11(5) of the Sentencing Act;

(d) to comply with any non-association or place restriction orders made under Pt 3.4 of the Sentencing Act; and

(e) to comply with any other requirement under the Sentence Administration Act (such as to obey a direction given by the chief executive under s 44 or to give a sample for alcohol and drug testing under s 45, or to submit to a search under s 46) or under the Corrections Management Act 2007 (ACT).

The offender is, while performing periodic detention, taken to be in the custody of the chief executive or, if being escorted, in the custody of the escort: s 47.

Section 48 provides that periodic detention ends at the end of the periodic detention period set by the court under s 11(4) of the Sentencing Act, subject to extensions under ss 57, 58 and 60 of the Sentence Administration Act, or when earlier cancelled under Pt 5.4 of the latter Act.

Performance of periodic detention

Part 5.3 provides for performing periodic detention. It requires the offender to report for each detention period (s 49), at the reporting place notified to the offender (s 50) on the day of the week notified (s 51), at the times specified for beginning and finishing each detention period (s 52) and to carry out activities as directed (see ss 53, 54). Provisions for non-performance, leave of absence and extension where a detention period is not performed are also provided for in the Part. It is, of course, the failure to report as required under these provisions that led to the cancellation of the periodic detention order of Mr Lewis.

Supervision of periodic detention

Part 5.4 of the Sentence Administration Act regulates the supervision of periodic detention. As some of these provisions are critical for this matter, it is necessary to refer to them in some detail.

Section 63 requires a corrections officer who believes that an offender has breached any of his or her periodic detention obligations, including a failure to report for a detention period, to report the breach to the Board. Sections 64 and 65 provide mechanisms to bring such an offender before the Board.

The most significant change from the Periodic Detention Act is the role given to the Board, much of which was formerly performed by the court.

Section 66 empowers the Board to conduct an inquiry to decide whether an offender has breached any of his or her periodic detention obligations. It may do so on its own initiative or on application of the chief executive. It must then, under s 67, give notice of the inquiry to certain persons, including the offender, such notice to include the reasons for the inquiry.

Section 68 sets out the powers of the Board if it decides that an offender has breached any of his or her periodic detention obligations. In particular, s 68(2)(f) permits the Board to “cancel the offender’s periodic detention”. Specifically, s 69 requires the Board, where it finds that an offender has failed to report (or been directed to leave the reporting place or not to perform periodic detention) on two occasions, to cancel the offender’s period detention under s 68(2)(f).

Section 73 also empowers the Board to conduct an inquiry “to review an offender’s periodic detention” and do so on its own initiative. It is by no means clear what the difference, if any, is between an inquiry under this section and that under s 66, save that the former is “to review an offender’s periodic detention” and the latter is “to decide whether an offender has breached any of the offender’s period detention obligations”. The two purposes obviously have considerable overlap. The Explanatory Statement provides no assistance as, regrettably, is often the case.

The Board is given powers under s 75 to give effect to the results of its inquiry under s 73, though these powers are somewhat different to the powers under s 68. It does, however, include, at s 75(1)(e), the power to cancel the offender’s period detention or under s 75(1)(f) to refer the matter back to the sentencing court.

There are provisions about notices of the Board’s decisions and when they take effect. Section 79 provides that when the Board cancels an offender’s periodic detention, the offender must serve “the remainder of the sentence” by full-time detention until when the periodic detention period would have ended apart from the cancellation and, under s 82, the Board must order the offender to be placed in the chief executive’s custody for that purpose.

Not directly relevant to this matter, s 82A permits the court, on a referral under s 75(1)(f), to cancel the offender’s period detention or to re-sentence the offender, thereby implying, as one would expect, that cancellation is not in itself a re-sentencing of the offender.

I note that in New South Wales, breach of periodic detention was supervised by the Parole Authority which had the power to revoke the order and have the offender taken into custody to serve the remainder of the sentence: s 86 of the Crimes (Administration of Sentences) Act 1999 (NSW). It is the NSW Parole Authority and not the court which had the authority to revoke the order: s 163 of the Crimes (Administration of Sentences) Act.

This, however, does not apply to offenders who have committed offences against a law of the Commonwealth (federal offenders). Under s 20AB of the Crimes Act 1914 (Cth), certain of the State and Territory sentencing options can be imposed on federal offenders. This includes an order to serve imprisonment by periodic detention. Breach action, however, must be taken under s 20AC of the Crimes Act, which requires that a summons be issued by a Magistrate requiring a federal offender who is alleged to have breached a sentence so imposed to appear before the sentencing court to be dealt with by imposition of a pecuniary penalty, revocation of the sentence and the re-sentencing of the federal offender. This procedure is said to be required because the adjudication of a breach of a sentencing order involves the exercise of federal judicial power which for federal matters cannot be exercised by a non-judicial body: Australian Law Reform Commission, Same Crime, Same Time, Report No 103 (2000) at 455; [17.18], 457; [17.23]-[17.24].

It seems to me that this analysis leads me to the following characterisation of what the periodic detention is under the Sentencing Act when made in respect of a sentence of imprisonment. I formulate it as follows:

The order of the Courts setting a period of periodic detention is the authority for a person on whom a sentence of imprisonment has been imposed (where the offender, who attends at the place of detention every weekend on which he or she has not been granted a leave of absence and while he or she complies with the other conditions, including directions legally given to him or her) to serve a term of imprisonment imposed on them by detention between 7:00 pm each Friday until 4:00 pm the following Sunday, but otherwise in full-time detention.

Since these proceedings, the references in the Sentencing Act and the Sentence Administration Act to the “chief executive” have been replaced by the term “Director-General” following a re-organisation of the ACT Public Service. As it was the term at the time and to avoid confusion, I shall refer to the legislation at the relevant time and so to “the chief executive”.

THE FACTS

As noted above (at [5]), Mr Lewis was sentenced on 24 January 2008 to imprisonment for twelve months and the court set the whole of that period to be served by periodic detention.

Mr Lewis attended a number of the detention periods between that date and 11 May 2008 when he stopped attending. Prior to that, however, he had failed to attend and thus to perform periodic detention for the periods commencing 1 February 2008, 28 March 2008 and 4 April 2008.

A report of the first two breaches was made to the Board by Mr Ray Giucci, Deputy Superintendent of the Periodic Detention Centre, on 29 March 2008 in which report he applied to the Board for an inquiry under s 66 of the Sentence Administration Act into the fact that s 58 of that Act may apply to Mr Lewis for a second or subsequent detention period. A further breach report, in respect of the failure to attend the period commencing on 4 April 2008, was made to the Board by Mr Giucci on 7 April 2008, making a similar application.

When Mr Lewis attended on 11 April 2008, he was subjected to breath analysis screening which showed that his blood alcohol reading was 0.037%, amounting, under s 133 of the Corrections Management Act 2007 (ACT), to a positive test sample for alcohol. This constituted to a breach of one of the core conditions for periodic detention in s 43 of the Sentence Administration Act (see s 43(1)(e)), for which breach, under s 58(3), Mr Lewis may be, and was, directed not to perform detention for that period and to leave the periodic detention centre, being taken, therefore, not to have performed periodic detention for that period. Mr Giucci made a further report of this failure, this time under s 45 of the Sentence Administration Act.

As a result, the Board, constituted by a division under s 182 of the Sentence Administration Act, met on 15 April 2008. I shall refer to meetings of the division as meetings of the Board, as is authorised by the Act. The Board resolved under s 66 of the Act to hold an inquiry on 13 May 2008 into the matters reported by Mr Giucci. That section authorises the Board to conduct an inquiry to decide whether an offender has breached any of his or her periodic detention obligations. Curiously, the Board decided to conduct an inquiry also under s 73 of that Act which permits the conduct of an inquiry to review an offender’s period detention.

Two letters about those inquiries were sent to Mr Lewis at his residence by express post on 17 April 2008 and he acknowledged receipt of those letters on 19 April 2008. Those letters included copies of the reports made by Mr Giucci and noted, inter alia, that he was not required to attend the inquiry but that he could make a written submission by 7 May 2008.

On 13 May 2008, the Board resolved to hold a hearing under Pt 9.2 of the Sentence Administration Act on 24 June 2008 “on the grounds that natural justice would not be satisfied if the inquiry were completed without a hearing.”

At the 13 May meeting, Mr Lewis was directed, under s 205 of the Act, to attend the hearing on 24 June 2008. It is clear that the Board is bound to respect and comply with the rules of natural justice: Singh v Sentence Administration Boardof the ACT [2004] ACTSC 74. Given the serious consequences likely to flow from the Board’s consideration of the applications, it was appropriate for a hearing to be held, and, ordinarily in such cases, should be held. As Lord Bingham of Cornhill said in R (on the application of Smith) v Parole Board [2005] 1 WAR 350 at 361-2; [35] about the consideration of the revocation of a licence of a prisoner to be at liberty “[e]ven if important facts are not in dispute, they may be open to explanation or mitigation, or may lose some of their significance in the light of new facts.” An oral hearing would, in most cases, be at least highly desirable if not required.

Letters were again sent by express post to Mr Lewis at his residence advising him of the resolution of the Board and directing him to attend the meeting. No acknowledgement of those letters was received; however, on 12 May 2008, he left Canberra, without informing ACT Corrective Services, to work on an orange orchard in Griffith, New South Wales in the place of his father, who was suffering from emphysema.

His mother, with whom he had until then been living, received letters at her address which were addressed to Mr Lewis and kept them for him. She did not send them on to him while he was in Griffith.

Mr Lewis worked on the farm for about nine weeks and committed no offences during that time but had no contact with ACT Corrective Services, either on his initiative or through his mother or other people.

Thus, he failed to attend for his periodic detention at any time after 12 May 2008. As a result, reports of his failures were made to the Board by Mr Damian Froome on 17 May 2008 and 7, 14, 21 and 31 June 2008 and by Mr Peter Divorty on 24 May 2008 and 4 and 6 July 2008, all said to be under s 59 of the Sentence Administration Act.

The Board, constituted by the same Division, met on 24 June 2008. Mr Lewis did not attend. He was not represented at the hearing. It purported to conduct a hearing into the breaches of Mr Lewis’ periodic detention by his failure to attend on 1 February, 28 March and 4 April 2008 and the deemed failure on 11 April 2008. After receiving submissions from a solicitor employed in the ACT Government Solicitor’s Office and from a prosecutor of the Office of the Director of Public Prosecutions, the Board, noting that under s 69 of the Sentence Administration Act it was required to do so, purported to cancel Mr Lewis’ periodic detention under s 68(2)(f) of the Act and issue a warrant for his arrest under s 82(3) of the Act.

The Board also decided, in the light of its decision to cancel the periodic detention order, to take no further action on the reports about Mr Lewis’ absence on 23 and 30 May 2008 and on 6 June 2008. The documents are a little confusing but it seems that, at the same time, the Board decided to take no action in respect of the absences on 16 May and 13 and 20 June 2008.

Orders, warrants, notices and letters were prepared and sent or issued thereafter to give effect to these decisions but, in circumstances not entirely clear to me, and probably of no particular moment for these reasons, it was discovered that the Board had no quorum at its meeting on 24 June 2008.

Accordingly, a letter was sent from the Board to Mr Lewis on 30 June 2008 advising him that the “decision at it’s [sic] meeting on 24 June 2008 was ultra vires” and that the matters involving him would be heard at another date.

The Board met on 2 July 2008 for an “email meeting” and reconsidered the reports of Mr Giucci as to absences on 29 March, 7 and 11 April 2008. The Board noted it could not conduct the hearing as no parties had been informed so it decided to hold a hearing on 8 July 2008. It also resolved to conduct an inquiry on 8 July 2008 into the reported breaches of failure to attend on 16, 23 and 31 May and 6, 13 and 20 June 2008, and that Mr Lewis be notified. Each of the members of the Division of the Board confirmed that they agreed with the resolutions.

Letters were sent on 2 July 2008 to Mr Lewis at his mother’s address about the inquiries and the hearing. He was directed to attend. Although the letters were not sent on to Mr Lewis by his mother, Mr Lewis said in his affidavit:

When I arrived back at my mother’s house, there were 5-6 letters for me. I believe these letters were from ACT Corrective Services. I panicked and did not read the letters.

The Board then met on 8 July 2008. Mr Lewis was not present nor was he represented. A solicitor employed in the ACT Government Solicitor’s Office was present as was a prosecutor of the Office of the Director of Public Prosecutions. The Board considered the reports and the failure of Mr Lewis to attend at the Periodic Detention Centre on 28 March, 4 April 2008 and the deemed failure on 11 April 2008. Curiously, there was no reference to the absence on 1 February 2008. It was noted that the later absences were also before the Board but not for hearing.

Again, the Board resolved to cancel Mr Lewis’ periodic detention under s 68(2)(f) of the Sentence Administration Act and to issue a warrant under s 82(3) of the Act.

Although the transcript of those proceedings does not record it, and that may be because it is only the transcript of the hearing and not the other inquiries, the Board is recorded in a Certificate made under s 189 of the Sentence Administration Act as resolving to take no further action in respect of the other breaches because of the cancellation.

Orders, warrants, notices and letters were prepared again and issued or sent to give effect to these decisions.

To deal with the complaints made by Mr Lewis in respect of the administrative law matters, it will be necessary to address some further facts, but it is convenient to have this broad background and to refer to the other matters below.

ADMINISTRATIVE LAW MATTERS – COMPLAINTS

Mr Lewis made a number of complaints about the procedures followed by the Board in dealing with these matters. I shall deal with each in turn.

Delegation

Mr Lewis complains that Mr Giucci was not authorised to make a report that enlivened the Board’s jurisdiction to conduct an inquiry which led to the hearing that cancelled his periodic detention because he had not been properly delegated to do so. This alleged lack of delegation is the first complaint.

The reports which initiated the process that led to the hearing were purported to be made under s 59 of the Sentence Administration Act. That provided at the time:

The chief executive must apply to the board for an inquiry under section 66 (Board inquiry—breach of periodic detention obligations) if section 58 applies to an offender for a second or subsequent detention period of the offender’s period detention period.

Section 58 applied at the time to an offender if he or she:

(a) fails to report to perform periodic detention for the detention period without having been given approval not to do so; or

(b) reports in a way that results in the chief executive giving him or her a direction not to perform detention and to leave the reporting place because:

(i) he or she reports more than four hours after the required time, when the chief executive must give such a direction; or

(ii) he or she reports less than four hours after the required time without approval to do so, when the chief executive may give such a direction; or

(iii) he or she reports and fails to comply with reporting requirements given to him or her when the chief executive may give such a direction; or

(iv) he or she reports and gives a positive test sample when undergoing an alcohol or drug test, when the chief executive may give such a direction.

Mr Giucci was not, at the time he made the reports, the chief executive. He could, therefore, arguably only give a report under section 59, it was submitted, if he was properly delegated to do so. The genesis of this complaint made by Mr Lewis came from a response that the ACT Government Solicitor gave to Mr Lewis’ solicitor who had sent an e-mail request for the Instrument of Delegation for Mr Giucci and Mr Divorty. The response of 19 November 2008 was:

Neither Mr Giucci nor Mr Divorty have ever filled the positions which are listed in the delegation instrument in relation to s 59 of the Act.

On request, Mr Lewis’ solicitor was provided with a copy of a document about these delegations. I am not able to say from the evidence before me exactly what was provided. What, however, was tendered before me was a copy of a document entitled Chief Executive Authority (Justice and Community Safety) (No 15) made on 7 December 2007, by which the chief executive of the Department of Justice and Community Safety exercised the powers set out in the schedules to it. Schedule 4, which was certainly provided, was the schedule by which the Chief Executive delegated certain functions under the Sentence Administration Act to the holders of positions specified by position number.

In particular, the chief executive had delegated her functions for s 59 of the Sentence Administration Act, to officers holding positions numbered E00232, E00233, 11198 and 48955.

Subsequently, a review of the relevant delegations was undertaken and on 10 March 2009, the ACT Government Solicitor provided to Mr Lewis’ solicitor a copy of a Temporary Transfer Form which showed that Mr Giucci had been transferred temporarily to Position Number 48955 for the period 14 June 2007 to 1 August 2008.

The two delegation issues

There were two issues that were agitated in the hearing:

· whether Mr Giucci had actually occupied a position where he had been entitled to exercise a power under s 59 of the Sentence Administration Act; and

· whether any delegation to him had been invalid as being an unauthorised sub-delegation.

(i) Did Mr Giucci occupy a position entitled to exercise the s 59 power?

While the document referred to above (at [77]), seemed at the hearing not to be the appropriate document, another two relevant documents were tendered at the hearing before me.

The first showed that, on 10 January 2008, Mr Howard Jones, Superintendent in ACT Corrective Services, a Branch within the Department of Justice and Community Safety, approved the temporary transfer of Mr Anthony Johnston to the position of Superintendent in the ACT Corrective Services Branch of the Department, Position Number 11198, from 2 February 2008 to 1 June 2008. At the time, Mr Jones occupied Position Number 48955, a Senior Officer Grade A in ACT Corrective Services.

On 2 April 2007, the then Chief Executive of the Department made, under s 36(4) of the Public Sector Management Act 1994 (ACT) (the PSM Act), a delegation of a number of her functions to various designated officers.

One of the matters delegated was specified in the List of Delegations (being Part C to the document) to be the power to give a direction under s 100(1) of the PSM Act for an officer to perform temporarily the whole or part of the duties of an officer in the Department. That was delegated to an officer who was classified in Group C, but the power was limited to transfers to a position which was below their own level and only in relation to an organisational unit (which I understood to include a Branch) under the delegate’s control.

It thus seemed that Mr Jones may have been giving a direction to Mr Johnston to perform the duties of his own office, which may have been inconsistent with the limit of his delegation. For reasons that appear below, I do not have finally to decide this.

In any event, Mr Johnston on 12 February 2008, in his role as Acting Superintendent (for he was then occupying the position of superintendent (Position Number 11198) after the temporary transfer), approved, also under s 100 of the PSM Act, a temporary transfer of Mr Giucci to a position as Custodial Officer 4 (Position Number 48955), which, it appears, was the position of Deputy Superintendent of the Periodic Detention Centre.

That position, namely Position Number 48955, was one of the positions to which, under the Authority of 7 December 2007, had been delegated the chief executive’s powers under s 59 of the Sentence Administration Act (see [78]). Thus, as occupant, albeit temporarily, of that position, Mr Giucci was authorised to apply to the Board for an inquiry into breaches of periodic detention and which he did in his Reports.

The matter was complicated by the fact that on 19 February 2009, a new Authority was signed by the chief executive, the Chief Executive Authority (Justice and Community Safety) (No 18h). That effected delegations by reference not to Position Numbers but to positions by reference to the title of the position.

That Authority provided that certain sections of the instrument were to commence “on the date [the Authority] is signed or such earlier date as may be provided”. In particular, by Schedule 6 of the Authority, it delegated the chief executive’s authority under s 59 of the Sentence Administration Act to positions described as “Executive Director”, “Deputy Executive Director”, “Superintendent”, “Deputy Superintendent/s” and “Custodial Officer Grade 3”.

This Authority seemed to be irrelevant save that, presumably later that day, a further Chief Executive Authority (Justice and Community Safety) (No 18i) was signed also on 19 February 2009, which omitted the words quoted above (at [89]) and substituted “2 June 2006”. This then applied to Schedule 6 in which the above positions identified above to apply to the Board under s 59 of the Sentence Administration Act retrospectively from 2 June 2006. It thus applied to the relevant period in which Mr Giucci made the application to the Board under that section.

Thus, if these arrangements were effective, then Mr Giucci, whose nominal position was as a Deputy Superintendent and whose temporary position was as Acting Superintendent under the transfer direction given by Mr Johnston, was a position authorised to make applications under s 59.

(ii) Was the delegation to Mr Giucci invalid?

This delegation, however, was challenged by Mr Lewis on the ground that the retrospective delegation did not “have the legitimising retrospective effect relied upon by the defendants”. It was further submitted that the defendant was bound by the admission that there was no relevant and effective delegation. Finally it was challenged on the basis that the granting of this power to Mr Giucci was an improper or invalid delegation. The argument was, as I understood it, that Mr Jones “did not have the power/ability to sub-delegate to Anthony Johnston”.

Validity of the retrospective delegation to Mr Giucci

I refer first to the submission that the retrospective delegation was not effective. Section 76 of the Legislation Act 2001 (ACT) provides:

(1)A statutory instrument may provide that a non-prejudicial provision of the instrument commences retrospectively.

...
(4) In this section:
non-prejudicial provision means a provision that is not a prejudicial provision.

prejudicial provision means a provision that operates to the disadvantage of a person (other than the Territory or a territory authority or instrumentality) by—
(a)adversely affecting the person’s rights; or
(b)imposing liabilities on the person.

It seems to me that a delegation of the kind with which I am dealing is clearly a non-prejudicial provision. I am unable to see any adverse effect on the rights of Mr Lewis or anyone else by the delegation nor can I see the imposition of any liability by it. None were drawn to my attention in submissions. In my view, the retrospective delegation was effective by virtue of s 76 of the Legislation Act.

Was the purported admission of the ACT Government Solicitor binding?

As to the second matter, Mr F J Purnell SC, who appeared with Mr S Gill for Mr Lewis, submitted at the hearing that the response by the ACT Government Solicitor that Mr Giucci (and Mr Divorty) had never occupied a position which had been delegated to make an application under s 59 of the Sentence Administration Act (see [76] above), was an admission made with authority under s 87 of the Evidence Act 1995 (Cth) and which thus bound the defendants in these proceedings.

The evidence about the actual delegation made and to which I have referred above is, however, inconsistent with that submission. No objection was taken to the adducing of the evidence on which my findings above are based.

I accept that a lawyer has authority to make admissions on behalf of his or her client, as held in Hoy Mobile Pty Ltd v Allphones Retail Pty Ltd [2008] FCA 369 at [18]. While it may have been an admission of this kind, however, it was certainly not a formal admission of the kind that would require leave before it is withdrawn (Jeans v Commonwealth Bank of Australia Ltd (2003) 204 ALR 327 at 330-1; [17]-[22]). It seems to me that it is more in the nature of the kind of matters referred to in Davison v Vickery’s Motors Limited (In Liq) (1925) 37 CLR 1 at 7. See also, Termijtelen v Van Arkel [1974] 1 NSWLR 525 at 529. Thus, it was not an admission that was determinative of the issue; there was plenty of other evidence that showed it was probably stated in error, both by the later review of delegations referred to above (at [78]. [87]-[89]) and by the evidence tendered and admitted at the hearing.

If it was, in fact, an admission of the kind for which Mr Purnell contended, then it would have required that the evidence of the delegations and temporary transfers to have been rejected on Mr Purnell’s objection. The fact is, however, he did not object; indeed, Mr Purnell expressly did not object to the defendant’s Tender Bundle, which became an exhibit and which contained the material inconsistent with the “admission”. That is not determinative of its status but is strongly confirmatory.

It does not seem to me that the admission precluded the other evidence being admitted and I prefer the other evidence. I do not rely on the admission, if such it could truly be called.

It was next submitted that when a call was made at an interlocutory stage of these proceedings, documents were produced which included a delegation that was said to be a nullity because it was not signed. That document, however, was, so far as I could tell, not before me. It may be that what was produced was an unsigned copy of a document, the original copy of which was signed. I am unable to tell. I can only deal with the evidence before me and, on the evidence before me, there were general delegations and they were signed.

(iii) Was Mr Giucci’s delegation invalid as an unauthorised subdelegation?

Finally, it was submitted that, as the delegation had been to Mr Johnston, his delegation to Mr Giucci was a sub-delegation and so was invalid. This argument relies on the maxim delegatus non potest delegare, that is to say, a delegated authority cannot be re-delegated (R H Kersley (ed), A Selection of Legal Maxims (Sweet & Maxwell Ltd, 10th ed, 1939) 570). See De Bussche v Alt (1878) 8 Ch D 286 at 310.

In Lord Woolf and Jeffery Jowell, De Smith, Woolf & Jowell Judicial Review of Administration Action (Sweet & Maxwell, 5th ed, 1995) (Judicial Review) at 358; [6-104] it is said of this maxim:

The maxim delegatus non potest delegare does not enunciate a rule that knows no exception; it is a rule of construction which makes the presumption that ‘a discretion conferred by statute is prima facie intended to be exercised by the authority on which the statute has conferred it and by no other authority, but this presumption may be rebutted by any contrary indications found in the language, scope or object of the statute’.

The quote in the above passage is taken from an article by John Willis, “Delegatus non potest delegare” (1943) 21 Canadian Bar Review 257. The footnote, in referring to that article, says that “[t]his article contains an excellent review of the earlier authorities.” Both, this article and the passage in the first edition of Judicial Review, were described by the Full Court of the Supreme Court of New South Wales in Ex parte Forster; Re University of Sydney (1963) 63 SR(NSW) 723 at 733 as setting out the general effect of the “numerous” cases on the maxim and “the relevant principles.”

The authors of the 5^th edition of Judicial Review go on to say:

But the courts have sometimes assumed that the maxim does lay down a rule of rigid application, so that devolution of power cannot (in the absence of express statutory authority) be held to be valid unless it is held to fall short of delegation. In this way an unreasonably restricted meaning has often been given to the concept of delegation.

It seems to me, however, that the maxim is simply inapplicable here. The question is not one of delegation by the delegate. The delegation of the power to report under s 59 of the Sentence Administration Act is to an office, described by a title or position number. Thus, the person who from time to time occupies that office is the repository of the relevant delegated power.

Thus, what Mr Johnston was doing was not delegating to Mr Giucci a power that had been delegated to him. He was doing something quite different; he was transferring Mr Giucci temporarily to a different employment position. In the position to which he was transferred, Mr Giucci was, ex officio, entitled to exercise the powers that had been given to the holder of that office from time to time by the delegations of the chief executive. So much would be obvious and appropriate. If one is acting in another position, it would be expected and necessary that one had the powers and authority of that other position, else the point of occupying it would be rendered at least in part illusory.

Thus, there is no substance in this argument. As, however, there is an unresolved issue in relation to the power exercised by Mr Jones to transfer Mr Johnston into what appeared to be a position at the same level as that occupied by himself, contrary to a limitation apparently imposed on the delegation to him, I need to consider at least one other submission of the defendants.

(iv) Validity of the Board’s actions regardless of whether Mr Giucci’s delegation was invalid

The defendants submitted that the applications made to the Board by Mr Giucci, even if his appointment is invalid, would not invalidate the decisions of the Board if the decision of the Board:

(1) was saved by the Legislation Act 2001 (ACT); or

(2) relied on reports validated in accordance with the so-called “Carltona principle”; or

(3) was not invalidated by invalid reports.

Validity of the report to the Board due to the Legislation Act

As to the first issue, s 242(1) of the Legislation Act provides:

A delegation, or anything done under a delegation, is not invalid only because of a defect or irregularity in or in relation to the delegation.

This provision is similar to s 26 of the Acts Interpretation Act 1954 (Qld). Neither provision seems to have been the subject of judicial consideration.

These provisions appear to be a legislative expression of at least an aspect of what is known as the de facto officer’s doctrine, namely that “[t]he acts of a de facto public officer done in apparent execution of his office cannot be challenged on the grounds that he has no title to the office” as stated by McHugh JA in G J Coles & Co Ltd v Retail Trade Industrial Tribunal (1986) 7 NSWLR 503 at 525, and approved by the High Court in Cassell v The Queen (2000) 201 CLR 189 at 193; [19].

The limits of the doctrine are said not to be clear. See E Campbell, “De Facto Officers” (1994) 2 Australian Journal of Administrative Law 5; O Dixon, “De facto officers” (1938) 1 Res Judicatae 285. What limits there are, or should be, on the statutory validation in s 242 of the Legislation Act are not clear. It is, for example, not limited to formal defects, such as those which do not invalidate bankruptcy notices under the bankruptcy legislation: Adams v Lambert (2006) 228 CLR 409 at 415-6; [18]. The statutory provision is cast in wide terms, using the words “anything done under a delegation” and the broad connector “or in relation to the delegation”. As to the latter, an expression “of wide import” see, inter alia, Victoria v Commonwealth (1971) 122 CLR 353 at 359 (Windeyer J).

The precise limits of s 242 of the Legislation Act must await for another day. It appears to have very wide application. In any event, I am satisfied that it would validate any report that was made by Mr Giucci under s 59 of the Sentence Administration Act were his appointment to an office, by which he was delegated to exercise the power under that section, to be found to be invalid in fact.

Validity of the report to the Board due to the Carltona principle

The defendants also submitted that, even were Mr Giucci not formally delegated, the law recognised that a chief executive of a Department of the government may act through officers of the department without need for a formal delegation. This, it was submitted, is established in relation to Ministers of the Crown by decisions such as Carltona Ltd v Commissioners of Works [1943] 2 All ER 560. The principle, sometimes called “the Carltona principle” has been applied in Australia and extended to heads of government departments in cases such as O’Reilly v Commissioners of the State Bank of Victoria (1983) 153 CLR 1 at 11-2 (Gibbs CJ), 30-1 (Wilson J).

The application of the principle depends upon the nature of the power and all the other circumstances of the case as noted by Ormiston JA, with whom Phillips CJ and Callaway JA agreed, in R v Ngo [1999] 3 VR 265 at 271-282; [21]-[49].

The existence of an express and limited statutory power of delegation does not necessarily exclude the existence of this implied power to act through departmental officers: Re Patterson; Ex parte Taylor (2001) 207 CLR 391 at 449; [176] (Gummow and Hayne JJ). Where the power to be exercised does not involve a discretion, the power may more readily be implied, as explained by von Doussa J, with whom Spender and French JJ agreed, in Secretary, Department of Social Security v Alvaro (1994) 50 FCR 213 at 223-5.

Here, there is no real discretion; the section says that the “chief executive must apply” if the conditions are met. The application is a formal process to start the operation of the processes of the Board. I see no reason why, if necessary, the Carltona principle should not apply. That would validate the Board’s reliance of Mr Giucci’s reports.

The Board’s actions as not invalidated because of invalid reports

Finally, the defendants say that, in any event, a proper construction of the Sentence Administration Act does not require that the Board’s inquiry be invalidated should an application not be made by an appropriately qualified person. That is to say, an act done in breach of a condition regulating the exercise of a statutory power such as that in s 59 of the Sentence Administration Act is not necessarily invalid or ineffective. Whether it is or not depends upon the legislative purpose that must be identified and whether that purpose requires invalidity where there is no compliance with the condition: Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 388-9; [91].

It seems to me that the intention of s 59 of the Act is that:

(a) there is a recognition that the breach process is best initiated by the person who has the information about whether there is a second or subsequent breach, namely the chief executive who, through her officers, has the custody of the offender during the detention period and who will know whether the offender has attended;

(b) the person has some status within the administration so as to be likely to exercise the power with an appropriate degree of responsibility; and

(c) there is an obligation, whether there is a second or subsequent breach that the breach process under the Act be initiated.

The determination of whether there is, in fact, such a breach is a matter for the Board and not, finally, for the chief executive or her delegate. The Board is an independent body and, therefore, a protector of the offender’s rights. This protection does not reside in the initiator of the process, nor does the legislation locate it there. Thus, the process is similar to the filing of an application for the issue of a summons on information which, the Appeal Division of the Supreme Court of Victoria held in Director of Public Prosecutions v His Honour Judge Fricke [1993] 1 VR 369 at 371-4, could be done through an agent.

In any event, despite all this, s 66 of the Sentence Administration Act permits the Board to conduct an inquiry on its own initiative. Thus, the making of a report is not a condition precedent to the validity of the inquiry. Indeed, were the Board to be informed by a person it considered reliable that there had been a breach or there had likely been a breach, it would be perfectly valid for the Board to initiate an inquiry. Why Mr Giucci, whether the recipient of a proper delegation or not, would not be a proper source of such information is difficult to imagine.

This ground has not been made out, even if Mr Giucci was not properly the recipient of a valid delegation.

Convening of meetings

Validity of the resolutions of the Board meeting on 2 July 2008

Mr Lewis next complains that the meeting of the Board on 2 July 2008 which convened the hearing on 8 July 2008 was invalid and thus the hearing was invalid.

The circumstances are that the Board purported to meet on 2 July 2008 at which it “resolved to conduct a s 73 inquiry at the meeting on 8 July 2008.” It then directed that notices be sent to Mr Lewis and others as required by s 204 of the Sentence Administration Act.

An evidentiary certificate as to that meeting was tendered. It is admissible under s 189 of the Sentence Administration Act. It is “evidence of the matters recorded”. That is to say, it is not conclusive but only prima facie evidence of the matters recorded and, for example, could be excluded in the exercise of a discretion under the Evidence Act 1995 (Cth) as was held by Austin J in Australian Securities and Investments Commission v Rich (2005) 216 ALR 320 at 371-2; [229]-[232].

In particular, it may be displaced by other evidence which is to the contrary. In this case, material tendered shows that there was no actual meeting. The members of the Board in this case did not actually meet. The evidence showed the minutes were entitled “Via E-Mail”.

What the evidence shows is that the acting Secretary prepared the minutes of what appears to have been intended to be a meeting which was “facilitated” by the acting Secretary. That consisted of the draft of what would be the minutes of the proposed meeting being circulated by email and the members of the Board advising by email whether they agreed or not with the terms of the matters set out in the document. Two of the members sent an email of 2 July 2008 in which one said that he “agree[d] with the record of decisions” (with one exception) and the other said he “endorse[d] the findings and outcomes of the meeting” (with the same exception). The third member, the Chair, orally advised that she “endorsed the proposed actions” and subsequently signed the minutes.

The 2 July 2008 meeting was invalid

Mr Lewis submitted that this could not amount to a valid meeting. He referred, through his counsel, to s 187(3) and (4) of the Sentence Administration Act, which provides:

(3)A meeting may be held using a method of communication, or a combination of methods of communication, that allows a member taking part to hear what each other member taking part says without the members being in each other’s presence.
Examples
phone link, a satellite link
NoteAn example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act, s 126 and s 132).

(4)A member who takes part in a meeting conducted under subsection (3) is taken to be present at the meeting.

That submission is correct. Email does not permit the other users, even if online at the same time in real time, to hear what the other member is saying. In any event, one member sent his email at 11:48 am and the other sent his at 1:06 pm. It seems unlikely that they were online at the same time. What occurred on 2 July 2008 was not a meeting of the Board.

The resolutions of the Board on 2 July 2008 were valid

That, however, is not the end of the matter. Section 187(5) provides:

(5)A resolution of the board is valid, even if it is not passed at a meeting of the board, if—
(a)all members agree, in writing, to the proposed resolution; and
(b)notice of the resolution is given under procedures decided by the board.

This is an alternative method of making decisions. It does not, however, constitute a meeting. Thus, as Professor Stephen Bottomley wrote in “From Contractualism to Constitutionalism: A Framework for Corporate Governance” (1997) 19(3) Sydney Law Review 277 at 305

These requirements [namely of notice, quorum, voting, proxy and minutes] are premised on the idea that the meeting is a forum in which issues will be put, arguments will be heard, and decisions made. In short, the premise is that of deliberation. One aim of deliberative decision-making is to achieve corporate decisions that can rely on a deeper claim to validity than simple majority support. If the process of decision-making is to have this result, it must offer real opportunities for involvement and influence. Amongst other things, this means creating a sense that input into decision-making is important and will be taken into account equally with other contributions.

See Re Compaction Systems Pty Ltd [1976] 2 NSWLR 477 at 485; Wagner v International Health Promotions (admin apptd) (1994) 15 ACSR 419 at 421-2; Re Ferguson (1995) 58 FCR 106 at 111.

Although what occurred was not a meeting, an agreement in writing is a decision of the Board where it is in the form of a resolution. Given that such a decision is made in the absence of a debate, as otherwise would happen at a meeting, it is often the case that a higher level of agreement is required for such decisions; here the section requires that the decision must be unanimous.

Was this satisfied in this case? I am satisfied that the agreement by email was, for the purposes of s 187(5), an agreement “in writing”. In my view, the definition of “writing” in Pt 1 of the Dictionary of the Legislation Act 2001 (ACT), namely “includes any way of representing or reproducing words in visible form”, applies to email.

The Chair, however, did not send an email. She simply telephoned her agreement to the acting Secretary who recorded her agreement in a file note. That did not comply with the requirement for writing in s 187(5). She did, however, later sign the “minutes of the meeting” which incorporated the matters to which the other members had agreed (or endorsed). That, it seems to me, was sufficient compliance with the sub-section; it was an agreement in writing.

Only three members of the Board agreed in writing. The issue to be determined is whether this satisfied the s 187(5) requirement, which requires “all members” to agree. It is arguable that all members of the Board as constituted under the Sentence Administration Act are required to agree to the resolution. In my view, however, ss 181 and 182 of the Sentence Administration Act answer this contention. These sections relevantly provide:

181 Exercise of board’s supervisory functions
(1)The supervisory functions of the board must be exercised by a division of the board.
(2)In exercising a supervisory function, the division of the board is taken to be the board.

182 Constitution of divisions of board
(1)The chair must ensure that there are enough divisions of the board for the proper exercise of the board’s supervisory functions.
(2)Each division is to consist only of the following members assigned by the chair:
(a) a judicial member;
(b) 2 non-judicial members.

(3) To remove any doubt—
(a) a division of the board, as constituted at any time, may exercise any supervisory function of the board; and
(b) the chair may assign board members to a division from time to time for the exercise of the board’s supervisory functions in a particular case or in any case; and
(c) a judicial member or non-judicial member may be assigned to 2 or more divisions at the same time.

The decision in relation to the periodic detention of Mr Lewis was a “supervisory function” (s 180). Thus, the relevant division is, for that purpose, “taken to be the board”. If exercising a supervisory function, a resolution signed by all members of a division would be sufficient for s 187(5).

What the “minutes” show is much more than a resolution. I have no doubt that the procedure may be used for multiple resolutions. They show, however, other matters such as matters that were “noted”, directions that were given and an indication of what would be considered at the hearing on 8 July 2008. None of these things could be nor were validly done by this procedure.

That is not to say, however, that this caused some invalidity in this case. The resolution to conduct an inquiry was validly made. The direction by the Chair to give notice to Mr Lewis is a direction that the Chair may given under s 205 at any time and not necessarily at a meeting.

In any event, it is by no means clear that the Board can only hold a hearing if a resolution of the Board at an earlier meeting resolved that it do so.

The resolutions of 2 July 2008 to conduct an inquiry under s 73 of the Sentence Administration Act were valid. There is no substance in this ground.

It may be that the High Court’s reference to the common law of Australia, a unified common law in Farrah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89 at 152; [135] re-inforces the reference to the “unified nature of the legal and judicial system” referred to in (4) as supporting the views set out in (3).

The arguments propounded on behalf of Mr Lewis are powerful and persuasive. They are clearly supported by a strongly discernible trend in the High Court’s jurisprudence in this area to favour an “integrationist approach” to s 122 of the Australian Constitution which would undermine or set aside the “disparate and non-federal” (Attorney-General of the Commonwealth v The Queen (1952) 95 CLR 529 at 545) approach to that section and its powers, on which much of the earlier jurisprudence has been based.

I note, however, that such a finding would be significantly disruptive of much of the arrangements for the administration of justice in the ACT which has been based on what Mr Mossop described as “[t]he orthodox position”. Such restraint where decisions of long-standing have been acted upon was referred to by Gaudron J in Northern Territory v GPAO (1999) 196 CLR 553 at 603; [127]. While that cannot stand in the way of what I conceive the law nevertheless to be, it perhaps imposes an obligation to be quite certain of that and take particular care in coming to a conclusion that would have such significant practical and potentially disruptive consequences.

Having given the matter anxious and careful thought and not without some hesitation, I am of the view that the current state of authority is that there is no applicable doctrine of the separation of powers flowing from the Australian Constitution that applies in the ACT as an independent self-governing territory, and that, while the ACT courts may be invested with federal jurisdiction, as are the State courts, the judicial power of the ACT is not the judicial power of the Commonwealth. I make this finding for four reasons.

In the first place, it seems to me that the laws by which ACT courts are created are exercised under s 122 and not s 71 of the Constitution. This distinguishes them from federal courts which owe their existence to the implication from s 71(i), as there is no express power to create such courts in the Australian Constitution. Given the long established principle that Chapter III of the Australian Constitution is the exclusive repository of the judicial power of the Commonwealth (R v Kirby; Ex parte Boilermakers’ Society of Australia at 270, 290; In Re Judiciary and Navigation Acts (1921) 29 CLR 257 at 265), the creation of courts under s 122 of the Australian Constitution cannot be an exercise in judicial power.

This source of the authority for the creation of the ACT courts distinguishes them from federal courts which are bound by the strict doctrine of separation of powers effected by the Australian Constitution. See Stephen McDonald “Territory Courts and Federal Jurisdiction” (2005) 33(1) Federal Law Review 57 at 90.

Secondly, it appears to me that what might be suggested is the principle that is stated in Federal Capital Commission v Laristan Building & Investment Co Pty Ltd as set out above (at [318]) is not relevant to self-governing territories. Because of the clear establishment in those situations of a separate polity with plenary powers (subject, of course, to their own constitutional limitations, as, for example, are seen in the Self-Government Act), the powers exercised by the self-governing territorial legislature are those of the body politic established thereby and not those of the Commonwealth government.

All the authorities on which Mr Lewis relied were cases in which legislative instruments of the Commonwealth were involved, not of self-governing polities; none were of a self-governing legislature. There are suggestions that this makes a difference. For example, relying expressly upon Capital Duplicators Pty Ltd v Australian Capital Territory, Gaudron J in Kruger v Commonwealth said (at 109):

In my view, there is no convincing reason for treating the words ‘[t]he judicial power of the Commonwealth’ in s 71 of the Constitution as not extending to the determination of justiciable conflicts by application of laws enacted by the Parliament of the Commonwealth pursuant to s 122. However, it may be that different considerations apply to laws enacted by the legislature of a self-governing Territory.
[citation omitted]

This reservation was echoed by Gummow and Hayne JJ in Re Governor, Goulburn Correctional Centre; Ex parte Eastman (1999) 200 CLR 322 at 349; [69].

In Northern Territory v GPAO, Gaudron J expressed the view (at 603; [126]) that a court created simply to exercise jurisdiction in a Territory with respect to matters arising in that Territory “is not a federal court for the purposes of s 71 because its jurisdiction is confined within the limits of s 122”.

That matters arising under laws made by a self-governing legislature are not matters that arise under laws of the Commonwealth is, as was pointed out by the defendants, consistent with the approach taken to Article III(2) of the United States Constitution, on which s 76(ii) of the Australian Constitution is based. That this is so was pointed out in John Quick and Robert Garran, The Annotated Constitution of the Australian Commonwealth (Legal Books reprint, 1976) 797. The defendant’s submission was:

Article III(2) of the Constitution ... provides that the ‘judicial power shall extent to all cases ... arising under ... the laws of the United States’. That requirement is picked up in statutes investing certain federal and other courts with jurisdiction. In Puerto Rico v Russell & Co (1933) 288 US 476 (a decision referred to by Latham CJ in R v Commonwealth Court of Conciliation and Arbitration; Ex parte Barrett (1945) 70 CLR 141 at 153) the Supreme Court of the United States held that a claim to recover taxes levied under a statute made by the Puerto Rican legislature was not a claim ‘arising under’ laws of the United States. This was notwithstanding the fact that the legislature of Puerto Rico was established under a law of the Congress. A similar approach has been taken in relation to cases arising under laws of other self-governing territories such as Guam: see Republican Party of Guam v Gutierrez (2002) 277 F 3d 1086 and the Virgin Islands: see Club Comanche Inc v Government of Virgin Islands (2002) 278 F 3d 250.

Thirdly, the defendants submit that matters arising under laws made by the Legislative Assembly do not, in fact, “arise under” a law made by the Commonwealth Parliament. The link through the Self-Government Act is, they submit, insufficient for that conclusion.

In the recent decision of North Australian Aboriginal Legal Service Inc v Bradley (2004) 218 CLR 146 at 163; [28], McHugh, Gummow, Kirby, Hayne, Callinan and Heydon JJ said:

The first [step of the appellant’s argument] is that a court of the Territory may exercise the judicial power of the Commonwealth pursuant to investment by laws made by the Parliament. That proposition, to which there was no demurrer by the Territory or by the Attorney-General of the Commonwealth who intervened in this Court, is supported by the citations of authority by Gaudron J in the above passage from Ebner. It should be accepted.

The passage from Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at 363; [81] by Gaudron J is as follows:

Impartiality and the appearance of impartiality are necessary for the maintenance of public confidence in the judicial system. Because State courts are part of the Australian judicial system created by Ch III of the Constitution and may be invested with the judicial power of the Commonwealth, the Constitution also requires, in accordance with Kable v Director of Public Prosecutions (NSW) [(1996) 189 CLR 51], that, for the maintenance of public confidence, they be constituted by persons who are impartial and who appear to be impartial even when exercising non-federal jurisdiction. And as courts created pursuant to s 122 of the Constitution may also be invested with the judicial power of the Commonwealth, it should now be recognised, consistently with the decision in Kable, that the Constitution also requires that those courts be constituted by persons who are impartial and who appear to be impartial.
[footnotes omitted]

The defendants point out that these statements make it clear that Territory courts do not invariably exercise federal judicial power (see the reference to “may exercise”).

Laws made by the Territory legislature are not laws of the Commonwealth for the purpose of s 76(ii) of the Australian Constitution.

In the same way, the preservation of the Constitution’s parliamentary powers and laws of the States do not make those laws and powers matters “arising under” the Australian Constitution. They would not, for example, be amenable to Federal parliamentary power to provide original jurisdiction for the High Court in respect of these matters under s 76(i) of the Australian Constitution.

While such strong statements are to be carefully respected, I do note that there are what may be relevant differences between the Northern Territory (which was the polity under consideration in North Australian Aboriginal Legal Service Inc v Bradley) and the ACT. There is, in the Northern Territory (Self-Government) Act 1978 (Cth), for example, no section equivalent to s 48A of the Self-Government Act.

Indeed, the Supreme Court of the Northern Territory was created by the Supreme Court Act 1979 (NT), though provisions in it, and in the Northern Territory Supreme Court (Repeal) Act 1979 (Cth), deemed references to the court created by the Northern Territory Supreme Court Act 1961 (Cth) and proceedings in the Court pending at the date of the relevant legislation to be to the Court and proceedings in the Court created by the 1979 Act. Thus, the court which the High Court was considering was a creature of the remit to the Northern Territory Legislative Assembly of a power to make laws for the peace, order and good government of the Territory. As presently advised, however, it does not seem to me that this is a relevant difference and does not render the submissions of the defendants, which I accept, irrelevant or distinguishable.

Fourthly, Mr Lewis submitted that, unless I could distinguish Falconer, I would be bound by it. I accept that proposition. This would, it was submitted, would be sufficient to dispose of the argument on this basis. Mr Lewis submitted that Falconer was wrongly decided, which could be discerned from more recent statements of some members of the High Court, in cases such as those to which I have referred above.

Despite such references, and clearly the jurisprudence in relation to the judicial power of territory courts is in a state of flux, it is not for me to decide that Falconer was wrongly decided and the High Court, despite opportunities to do so, has not yet so decided.

As to distinguishing it, Mr Lewis submitted that because it was decided prior to self-government, with the transfer of responsibility for the ACT courts to the Legislative Assembly and the conversion of relevant Commonwealth acts and ordinance to enactments of the Legislative Assembly, effected by s 34 of the Self-Government Act, it no longer applied to the situation I now face.

It seems to me, however, that the effect of self-government is to re-inforce the approach in Falconer and the arguments that succeeded in that case. The power to create a territorial body politic must be found in s 122 of the Australian Constitution and this re-inforces the reasoning in Falconer.

Accordingly, I am satisfied that even were the powers of the Board to cancel periodic detention the exercise of a judicial power, contrary to my finding, then the Legislative Assembly has power to invest the Board with that jurisdiction. I shall make a declaration accordingly.

Does the grant of such power to the Board impair the institutional integrity of the ACT Supreme Court?

The third constitutional challenge by Mr Lewis was based on the assumption that this court is, and at least could be, invested with federal jurisdiction. Whether or not the legislative remit authorising a decision by the Board to cancel periodic detention is an exercise of judicial power, it is submitted that the grant of that power to an executive body such as the Board impairs the integrity of this Court as, at least, a potential repository of federal judicial power that the legislation providing that authority is invalid.

The source of this argument is the decision of the High Court in Kable.

As Kirby J observed in Baker v The Queen at 541; [74]:

The decision in Kable does not yield a clear, single statement of principle. There are differences in the way the judges in the majority express the implication of incompatibility (or repugnance) that led them severally to the conclusion that the Community Protection Act 1994 (NSW), in contest there, was constitutionally invalid.

His Honour went on (at 543; [82]) to suggest the following reconciliation of the differently expressed views:

The principle expounded in Kable was one of general operation, derived from the Constitution; from the integrated character of the Judicature, federal and State; from the peculiar arrangement for the vesting of federal jurisdiction in State courts; and from the role of this Court at the apex of the entire system. From these constitutional characteristics of the Australian Judicature, this Court derived the conclusion that a State Parliament may confer jurisdiction upon a State Supreme Court as it chooses, but only so far as that jurisdiction is not incompatible with the exercise of federal jurisdiction by such a court. As I said in Silbert v Director of Public Prosecutions (WA):
Kable holds that Ch III of the Constitution limits the power of State Parliaments to confer non-judicial functions or non-judicial characteristics on State courts that are incompatible with, or repugnant to, the core requirements of such courts as potential recipients of federal jurisdiction, as provided for in the Constitution. The core requirements referred to include those of the manifest independence and impartiality of the judiciary in the discharge of their functions. This includes independence from legislative directions over individual judicial decisions and in the findings of fact and law that are necessary to them.

[footnotes omitted]

By reference to the increasing number of cases which have referred to the “Kable doctrine”, Brendan Lim, “Attributes and Attribution of State Courts – Federalism and the Kable Principle” (2012) 40 Federal Law Review 31 at 33-4, summarised the present position of the doctrine, writing:

Attempts at neat formulation, however, risk being either over- or under-inclusive. For now, it suffices to say that the principle disables legislatures from impairing the ‘institutional integrity’ of non-federal courts capable of receiving federal jurisdiction, whether impairment be inflicted by conferring an incompatible function, removing an essential function, altering impermissibly the court’s composition, modifying repugnantly the court’s procedures or processes, enlisting the court in service of political ends, or using incompatibly members of the court acting as personae designatae. The apparent reach of the principle so-stated should be tempered by recognition of the fact that, Kable itself aside, the High Court did not invalidate any statute in Kable grounds until 2009. Since then, the principle has been revived in a number of cases. The article seeks to understand not only the principle’s substance, but also its waning and waxing over time.
It is uncontroversial that ‘the source of [the Kable principle] is not the separation of powers’, which has no constitutional basis in the states. As presently understood, however, the function of the principle is to protect from impairment those attributes of state courts that are said to be their ‘defining characteristics’, including impartiality, decisional independence, adherence to the open court principle and observance of procedural fairness. Identifying those attributes and their impairment shades into separation-of-powers analysis because it engages efforts to ‘mark a court apart from other decision-making bodies’.
[footnotes omitted]

That the principle applies to the ACT Courts seems clear from what McHugh, Gummow, Kirby, Hayne, Callinan and Heydon JJ said in North Australian Aboriginal Legal Aid Service Inc v Bradley (at 163; [29]).

All the cases that have applied the Kable doctrine, however, have, as will be apparent from the summary above, concerned laws which have conferred functions or power on State or Territory Courts or dealt with the institutional arrangements for those courts. That is to say, they have not dealt with laws that deal with the other bodies within the administration of justice but which do not alter or impinge upon the actual conduct of the Court’s business or the work of the judges that compose the courts.

In this case, Mr Lewis seeks to extend the principle to the granting of a power to another body which is said to impair the courts integrity while not directly affecting the conduct of the court itself. It is submitted for him that the work of the Board in cancelling periodic detention does infringe on the work of the ACT courts.

Thus, the fact that the Board cancels the periodic detention is said to have an effect on the institutional integrity of this Court. As Mr Lewis’ submissions put the argument:

as a matter of logic, the reasoning underpinning Kable and its progeny must extend to a law that purports to confer on a non-judicial body a power, the exercise of would tend to undermine the independence of the State or Territory courts from executive and hence undermine their institutional integrity. That is, the Kable doctrine does not operate only in relation to laws that confer powers or functions in courts; it operates in relation to any law that might undermine the independence of court capable of exercising federal jurisdiction.

For this argument, Mr Lewis relied on what McHugh J had said in Kable (at 119) that the boundary of legislature power

is crossed when the vesting of those functions or duties might lead ordinary reasonable members of the public to conclude that the [Territory] court as an institution was not free of government influence in administering the judicial functions invested in the court.

The difficulty for Mr Lewis, however, is that there is here no “government interference”, for the statute mandates the relevant outcome and the Board is merely the agent for the taking of the mandated step. Where there can be no discretion in the Board, it is difficult to see how there is “government interference”.

Mr Lewis relied on the challenge to the South Australian Serious and Organised Crime (Control) Act 2008 (SA). At the time, only the decision of the Court of Appeal of South Australia, Totani v South Australia (2009) 105 SASR 244, striking down that legislation, had been made. It was to that decision reference was made in argument. Since then, the High Court has dismissed an appeal from that decision: South Australia v Totani.

In that case, the Act empowered the Magistrates Court to make control orders. Those orders, however, were dependent upon a declaration by the Attorney-General made on the application of the Commissioner for Police in relation to an organisation (defined in s 3 of the Act) that the Attorney-General was satisfied that

(a)members of the organisation associate for the purpose of organising, planning, facilitating, supporting or engaging in serious criminal activity; and
(b)the organisation represents a risk to public safety and order in this State.

See South Australia v Totani at 23; [12] per French CJ.

Upon that declaration, the Magistrates Court was then required under s 14(1) of the Act to make a control order if satisfied that a person was a member of the organisation.

Given the dependence of the court on the declaration of the Attorney-General, a majority of the Court held, at 52; [82] (per French CJ), 67; [149] (per Gummow J), 160; [436] (per Crennan and Bell JJ) and 173; [481] (per Kiefel J) that the legislation

authorises the executive to enlist the Magistrates Court to implement decisions of the executive in a manner incompatible with that Court’s institutional integrity.

See also at 52; [82] (per French CJ) and 92-3; [236] (per Hayne J).

There was no capacity for the court to go behind the declaration made by the Attorney-General. Bleby J in the South Australian Court of Appeal, with whom Kelly J agreed, pointed out (at 280; [157]) that it was

the integration of the administrative function with the judicial function to an unacceptable degree which compromises the institutional integrity of the court.

French CJ put it (at 52; [82]) as follows:

Section 14(1) represents a substantial recruitment of the judicial function of the Magistrates Court to an essentially executive process. It gives the neutral colour of a judicial decision to what will be, for the most part in most cases, the result of executive action. That executive action involves findings about a number of factual matters including the commission of criminal offences. None of those matters is required by the SOCC Act to be disclosed to the Court, nor is the evidence upon which such findings were based. In some cases the evidence, if properly classified as ‘criminal intelligence’, would not be disclosable. Section 14(1) impairs the decisional independence of the Magistrates Court from the executive in substance and in appearance in areas going to personal liberty and the liability to criminal sanctions which lie at the heart of the judicial function.

The submission of Mr Lewis was that, as in South Australia v Totani, the Board here was, though after, not before, the making of the relevant court order, being given “impermissible control over the order of the court”.

Mr Lewis also relied on International Finance Trust Co Ltd v New South Wales Crime Commission (2009) 240 CLR 319. Section 10 of Criminal Assets Recovery Act 1990 (NSW) required a court to receive an ex parte application, but also to hear and determine it ex parte if the Executive, in the form of the New South Wales Crime Commission, so sought.

French CJ said (at 354; [56]-[57]):

In my opinion the power conferred on the Commission to choose, in effect, whether to require the Supreme Court of New South Wales to hear and determine an application for a restraining order without notice to the party affected is incompatible with the judicial function of that Court. It deprives the Court of the power to determine whether procedural fairness, judged by reference to practical considerations of the kind usually relevant to applications for interlocutory freezing orders, requires that notice be given to the party affected before an order is made. It deprives the Court of an essential incident of the judicial function. In that way, directing the Court as to the manner of the exercise of its jurisdiction, it distorts the institutional integrity of the Court and affects its capacity as a repository of federal jurisdiction.
The preceding conclusion involves a judgment about the quality of the Executive’s intrusion, sanctioned by the legislature, into the judicial function ...
Nor is it to the point to say that the particular intrusion upon the judicial function authorised by s 10 is confined in scope and limited in effect both in time and by the facility to seek ancillary or exclusion orders. Such a calculus will not accord sufficient significance to the quality of the intrusion upon the judicial function. An accumulation of such intrusions, each ‘minor’ in practical terms, could amount over time to death of the judicial function by a thousand cuts.

Gummow and Bell JJ said (at 366-7; [97]-[98]):

The Supreme Court is conscripted for a process which requires in substance the mandatory ex parte sequestration of property upon suspicion of wrong doing, for an indeterminate period, with no effective curial enforcement of the duty of full disclosure on ex parte applications. In addition the possibility of release from that sequestration is conditioned upon proof of a negative proposition of considerable legal and factual complexity.
Section 10 engages the Supreme Court in activity which is repugnant in a fundamental degree to the judicial process as understood and conducted throughout Australia.

Heydon J, the other member of the majority, agreed with the orders proposed by Gummow and Bell JJ. His Honour said (at 385-8; [155]-[156], [159] and [165]):

If there is no procedure by which the person subject to a s 10(2) restraining order made ex parte may approach the Court to have it set aside once that person has learnt of the order, the effect of s 10 is to compel the supreme Court of New South Wales to engage in activity which is repugnant to the judicial process in a fundamental degree.
The element which is repugnant is not the grant of a power to make restraining orders ex parte. That is a very well-known aspect of Australian judicial process in relation to injunctions, although the power should only be exercised in exceptional or special cases, where there is some special hazard or cause of urgency. A risk of dissipation of assets in such a fashion as to frustrate the objects of the law can be in that category
...
The repugnance arises if the legislation ensures that there is no facility for the Court to entertain an application to dissolve an ex parte restraining order once the defendant has received notice of its grant pursuant to s 11(2). If that facility existed, the potential injustice flowing from the preceding three characteristics of s 10 would be nullified or mitigated. But if it does not exist, there is the potentiality for extreme injustice in a fashion repugnant to the judicial process in a fundamental degree.
...
In short, the strict, confined, specific and tight regulation of the powers granted excludes recourse by analogy or otherwise to the general power and traditional procedures of the Supreme Court in its administration of equitable relief. The ‘reasonably plain intendment’ of the legislation is that Pt 2 does not, in this respect at least, take the Supreme Court of New South Wales as it finds it.
[footnotes omitted]

Application of these principles, it was submitted for Mr Lewis, meant that in the case of the cancellation of periodic detention, the Executive was interfering with the order of the Court and, therefore, impermissibly undermining its institutional integrity.

The defendants pointed out, however, that what was involved here was quite different from those cases in which the Kable doctrine had been applied, which was where the court or judges were directly affected in their judicial conduct or proceedings. Here was the reverse, namely the conferring of a power away from the court.

To some extent, this harks back to the position referred to earlier (at [242]-[248]) where the Executive may ameliorate a sentence by remissions, parole, release on licence and pardon. Neither authority nor principle suggest that these types of executive action interfere with the institutional integrity of a court. Yet, they actually also involve a discretion on the part of the Executive whereas the cancellation of periodic detention does not; the requirement of cancellation by the Board is automatic where there has been a failure to attend to perform periodic detention on two or more occasions.

There is some suggestion of authority in this area. In Crump v New South Wales, the High Court had to consider whether s 154A of the Crimes (Administration of Sentences) Act 1999 (NSW) was valid.

Briefly, the circumstances were as follows. In 1974, Taylor J in the Supreme Court of New South Wales sentenced Mr Crump to life imprisonment for murder. In 1989, a statute permitted a prisoner such as Mr Crump to apply for a re-sentencing to impose a minimum term and an additional term. Mr Crump applied; the minimum term would permit him to apply for parole on its expiry.

In 1997, McInerney J re-sentenced Mr Crump and set a minimum term of thirty years. That would have permitted Mr Crump to apply for parole to commence on or after 13 November 2003.

As from 19 July 2001, however, s 154A commenced which prevented the grant of parole except in specific circumstances such as where the prisoner was dying or permanently incapacitated. This validity of the section was challenged; it was submitted that the section was an interference with a judicial order, thereby interfering by legislative action with the rights and entitlements created by the court order made by McInerney J.

The court unanimously dismissed Mr Crump’s claim. The decision is not, of course, directly in point because the plaintiff’s case attacked what was said to be a legislative effect on the order of the court.

Some of the statements by the court are, however, apposite. In the first place, the claim of Mr Crump was said by French CJ (at 18; [33]) to raise “large questions”, including

·whether a law of a State altering a judicial decision would be purported exercise of judicial power by the legislature of the State;
·whether the State Constitution authorises the exercise of judicial power by the legislature;
·whether, in any event, the State legislature is prevented from enacting such a law by an implication drawn from the provisions of Ch III of the Constitution.

[footnotes omitted]

Reference in the second dot point was made to Kable and, perhaps, all three raise questions which involve consideration of the Kable doctrine. His Honour did not consider it necessary to consider these “large questions”. I take that description to mean that, despite the reference in the submissions on behalf of Mr Lewis, the question of whether the logical “reverse” of the Kable doctrine follows is by no means certain.

Further, however, it seems to me that a number of comments made are applicable to the present case. Thus, French CJ said (at 19; [34])

The exercise of judicial power by McInerney J was complete when the order [determining the minimum period] was made.

This is consistent with what was said by Gummow, Hayne, Heydon, Crennan and Kiefel JJ in Elliott v The Queen (2007) 234 CLR 38 at 41-2; [5]:

Subject to the appellate system established by the Criminal Appeal Act, the exercise of judicial power with respect to the trials upon indictment of Elliott and Blessington was spent upon the subsequent imposition of the sentences upon them. The controversy represented by the indictment had been quelled and, allowing for any applicable statutory regime, the responsibility for the future of the appellants passed to the executive branch of the government of the State.

On the description of the regime that is periodic detention, that description applies here. On the sentencing of Mr Lewis to prison and the setting of a period for periodic detention, the exercise of judicial power was complete.

To paraphrase the words of Gummow, Hayne, Crennan, Kiefel and Bell JJ in Crump v New South Wales (at 26; [59]), the responsibility of the Executive branch of government for the future of Mr Lewis after sentence was imposed on him remained regulated by the Sentence Administration Act and implemented, as regularly are sentences orders made by all courts.

While there are relevant differences between parole and periodic detention, it seems to me that, again, I can appropriately paraphrase in terms applicable to this case from what their Honours said in Crump v New South Wales (at 26; [60]), namely that as a matter neither of form nor substance did the sentences imposed on Mr Lewis create any right or entitlement in him to serve his sentence of imprisonment by weekend detention if he failed to attend on two or more occasions for periodic detention. Thus, the cancellation did not interfere with the court order, it implemented it.

It seems to me that the periodic detention regime established by the Sentence Administration Act does not impair the institutional integrity of the ACT Courts and, at least so far as the automatic cancellation of periodic detention for a failure to attend for two or more periodic detention periods is concerned, is valid. I expressly decline to consider the position in relation to those provisions which empower the Board to cancel periodic detention as a matter of discretion, though they may well also be valid. They were not before me and not argued.

CONCLUSION

In conclusion, I have found that ss 68(2)(f), 69, 79 and 82 of the Sentence Administration Act are valid and I will so declare.

I have, however, found that the decision to cancel the periodic detention of Mr Lewis was flawed and it should be set aside and the decision remitted for reconsideration. Whether s 75(5) of the Sentence Administration Act applies is, of course, a matter for the Board.

I shall make orders to give effect to these conclusions.
I certify that the preceding three hundred and ninety-five (395) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Acting Chief Justice Refshauge.
Associate:
Date: 2013

Counsel for the Plaintiff: Mr F J Purnell SC and Mr S Gill (2, 3 July 2009), Mr P J Hanks QC and Ms K Walker (16 November 2009)

Solicitor for the Plaintiff: Ken Cush & Associates

Counsel for the Defendants: Mr A Robertson SC and Mr D J C Mossop (2, 3 July 2009) and Dr M A Perry QC and Mr D J C Mossop (16 November 2009)

Solicitor for the Defendants:  ACT Government Solicitor
Date of hearing:  2-3 July, 16 November 2009
Date of judgment:  1 October 2013

column 1	column 2	column 3
Item	matter	Indication of unsuitability
1	degree of dependence on alcohol or a controlled drug	major problem with alcohol or a controlled drug
2	psychiatric or psychological condition	major psychiatric or psychological disorder
3	medical condition	potential unfitness to report for periodic detention
4	criminal record	serious criminal record
5	employment and personal circumstances	potential impracticability of regular reporting for periodic detention