Minister for Home Affairs v Benbrika

[2020] HCATrans 218

[2020] HCATrans 218

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M112 of 2020

B e t w e e n -

MINISTER FOR HOME AFFAIRS

Plaintiff

and

ABDUL NACER BENBRIKA

Defendant

KIEFEL CJ
BELL J
GAGELER J
KEANE J
GORDON J
EDELMAN J
STEWARD J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 10 DECEMBER 2020, AT 9.46 AM

Copyright in the High Court of Australia

KIEFEL CJ:   In accordance with the current practice, I shall announce the appearances for counsel. 

Appearing for the plaintiff is MR A.P. BERGER, QC.(instructed by Australian Government Solicitor)

Appearing for the defendant is MR R. MERKEL, QC with MR C.J. TRAN and MS E.S. JONES.  (instructed by Doogue + George Lawyers)

Appearing for the Commonwealth as intervener is MR S.P. DONAGHUE, QC, Solicitor‑General of the Commonwealth of Australia, with MR M.A. HOSKING.  (instructed by Australian Government Solicitor)

KIEFEL CJ:   Yes, Mr Merkel.

MR MERKEL:   If the Court pleases, do your Honours have the respondent’s outline of oral argument?

KIEFEL CJ:   Yes, thank you.

MR MERKEL:   I take it your Honours have had an opportunity to read it.

KIEFEL CJ:   I think we can catch up, if we have not.

MR MERKEL:   Yes, thank you, your Honour.  Can we say, at the outset, that we would summarise the key propositions for which we are contending in our submissions as follows.  Firstly, we would say that the decision of this Court in Lim is authority for the principles stated in paragraphs 2 and 3 of our outline of oral argument…..The second submission is that the reasoning of Justice Gummow in Fardon – to which Justice Gummow and Justice Crennan adhered with Justice Hayne and agreeing in Thomas – establishes two propositions.  The first is that the preventive detention jurisdiction considered in Fardon is not an exception to the Lim principle.  Secondly, as a consequence, the jurisdiction in Fardon could not be validly conferred or invested as judicial power of the Commonwealth under Chapter III of the Constitution.

The third proposition is that it follows that the preventive detention jurisdiction in Division 105A of the Criminal Code purportedly invested in State and Territory courts under section 77(iii) of the Constitution is, firstly, penal or punitive in character and, secondly, has been invested contrary to Chapter III of the Constitution.   The fourth submission is that the decision of this Court in Kable (No 2) should not be accepted as determining that preventive detention jurisdiction is able to be invested or conferred under section 77 of the Constitution as part of the judicial power of the Commonwealth.

Our submissions will cover four principle topics.  The first is that we will address the Court’s decision in Lim and subsequent decisions that have applied Lim.  Secondly, we will consider Justice Gummow’s judgments, particularly his Honour’s judgment in Fardon; thirdly, we will outline what we will contend is the punitive character of Division 105A of the Criminal Code; and, finally, we will address briefly the Court’s previous decisions in Thomas and Kable (No 2). 

Could I just start with a brief factual introduction?  The respondent, Mr Benbrika, was, until 5 November 2020, serving a 15‑year sentence with a non‑parole period of 12 years, for terrorist offences.  The two offences were intentionally being a member of a terrorist organisation and intentionally directing the activities of a terrorist organisation knowing it was a terrorist organisation, and those were offences under sections 102.3(1) and 102.2(1) of the Criminal Code. 

He has been detained since the expiry of his sentence under an interim continuing detention order under Division 105A of the Code. Proceedings by the Minister seeking a continuing detention order under section 105A.7(1) of the Criminal Code are ongoing in the Supreme Court of Victoria.  I understand those proceedings are almost completed and are expected to be completed in the next day or two.

KIEFEL CJ:   Mr Merkel, is Mr Benbrika currently subject to an interim detention order?

MR MERKEL:   Yes.

KIEFEL CJ:   That is to say, is the initial order made by Justice Tinney, which expired on 2 December - has that been extended?

MR MERKEL:   Yes, your Honour.  I think the final order has to be made by 30 January, your Honour.  It is expected that will occur, either one way or the other as the outcome of the present proceedings.  The application is able to be brought against Mr Benbrika because he has been convicted of serious Part 5.3 offences under the Code, is detained in custody and is over the age of 18 being the requirements of section 105A.3(1).

The Minister brought his application under section 105A.5 and the orders sought in the application was for a period of three years which is the longest available single order under section 105A.7(5), although, under the Act, successive orders can be made, therefore there is the potential for indefinite detention under section 105A.7(6).

In accordance with section 105A.7(1)(b) and (c) the Supreme Court may make an order for a continuing detention order in relation to Mr Benbrika if the Court is satisfied (a) having regard to the matters in section 105A.8:

to a high degree of probability, on the basis of admissible evidence –

that Mr Benbrika:

poses an unacceptable risk of committing a serious Part 5.3 offence if [he] is released into the community.

Secondly:

there is no other less restrictive measure that would be effective in preventing the unacceptable risk. 

If the order is made under section 105A.3(2), the effect of the order will be to commit Mr Benbrika to continuing his detention in prison for the period of the order.  I should add, more recently, based on his conviction, the Minister has revoked the respondent’s citizenship under section 36D of the Australian Citizenship Act.  He has a special visa as part of that process but that visa can be revoked if, for example, he left prison, at which point of time it would be expected if it were revoked he would be placed in immigration detention as an unlawful non‑citizen.

Can we go at the outset of our submissions to this Court’s decision in Lim v The Minister; that is in volume 2, tab 9. Can we go, firstly, to page 27 of the decision. The judgment has been cited time and again of Justice Brennan, Justice Deane and Justice Dawson. At point 5 of the page, their Honours make the point that the judgment and punishment of criminal guilt is exclusively judicial and at point 7 their Honours make the point that concern under the Constitution “is with substance and not mere form”.

At point 8, because the focus was on substance as well as form, can I just read from paragraph 33 on what their Honours said, explaining why the problem of substance over form gives rise to what their Honours find.  Their Honours say at line 33:

The reason why that is so is that, putting to one side the exceptional cases to which reference is made below, the involuntary detention of a citizen in custody by the State is penal or punitive in character and, under our system of government, exists only as an incident of the exclusively judicial function of adjudging and punishing criminal guilt.

Can I ask your Honours to note, we take our system of government to cover both the Executive and the judicial branches.  Then their Honours say:

Every citizen is “ruled by the law, and by the law alone” –

and then their Honours go on to refer to Blackstone.  We say that what their Honours are then saying at the bottom of that page and over the page is that it follows that except in exceptional cases – and we will come to address that in more detail – a person cannot be imprisoned except for guilt because imprisonment was the same as punishment. 

We take the following from the passages that we have just relied on at pages 27 and 28.  We say, first, unless it is an exceptional case, detention in custody is punishment; second, except in an exceptional case, no branch of government can detain a person and therefore no branch of government can punish, except for guilt.  We say that no branch follows from the statement about our system of government being both executive and judicial arms and certainly thus far nothing in them supports the Commonwealth’s argument that punishment means imprisonment imposed for breach of the law such that imprisonment for any other reason is not punishment.

At page 28 their Honours identify exceptional cases including remand and detention due to mental illness or infectious disease.  A point we develop in our submissions is that these exceptional cases are justified not only because they can be seen to be non‑punitive, but because historically they are so seen to have treated.  We say that is quite an important principle which has been adhered to in all of the decisions, we would submit, of this Court since Lim which have applied Lim – that detention follows is not permissible without the proper exercise of the judicial power of the Commonwealth merely because it is said to have a non‑punitive purpose without more, which conflicts directly with the position the Commonwealth takes, which is a non‑punitive purpose is sufficient standing alone. 

Could I go to 28, point 10?  The analysis of the joint judgment at that point states – and can I read from line 38 at page 28 where their Honours say:

Involuntary detention in cases of mental illness or infectious disease can also legitimately be seen as non‑punitive in character and as not necessarily involving the exercise of judicial power.  Otherwise, and putting to one side the traditional powers of the Parliament to punish for contempt and of military tribunals to punish for breach of military discipline, the citizens of this country enjoy, at least in times of peace, a constitutional immunity from being imprisoned by Commonwealth authority except pursuant to an order by a court in the exercise of the judicial power of the Commonwealth.

Their Honours are there talking of as a consequence of a judgment of guilt and not otherwise.  I should indicate at page 32, point 4 there is an important passage where their Honours consider the exceptions.  Can I go down to about line 17 where their Honours, after referring to the historical exception of detention for the purpose of expulsion or deportation, their Honours then at line 17 say:

By analogy, authority to detain an alien in custody, when conferred in the context and for the purposes of executive powers to receive, investigate and determine an application by that alien for an entry permit and (after determination) to admit or deport, constitutes an incident of those executive powers.

What we draw from their Honours’ passage there is that we do not say exceptional cases are frozen into defined historical categories, we accept that they can be extended by analogy, but by an analogy that is appropriate and is adapted to the principle exception which makes the analogy an incident of that exception and not something that would be able to be spread at large.  And then their Honours go on in the last sentence, talking about:

Ch. III’s exclusive vesting of the judicial power of the Commonwealth in the courts which it designates.

Their Honours say:

The reason why that is so is that, to that limited extent, authority to detain in custody is neither punitive in nature nor part of the judicial power of the Commonwealth.  When conferred upon the Executive, it takes its character from the executive powers to exclude, admit and deport of which it is an incident.

We say, relying on those passages, our case on invalidity sits comfortably within the stated principle in Lim, and that is for three reasons. The first is Division 105A permits the involuntary detention of a citizen in custody by the State. Secondly, that detention is not part of, or incidental, to the adjudging and punishment of criminal guilt, it is based upon a prospective assessment of what the person detained might, or is at risk of, doing in the future. And thirdly, such detention does not fall within one of the exceptions that have been recognised, nor can any analogue be drawn as an incident of those exceptions ‑ ‑ ‑

EDELMAN J:   Mr Merkel, if your proposition two is not correct, but your other propositions are correct, in other words, if this regime is properly construed as a regime involving the imposition of punishment, as an incident of sentencing process, an extended sentencing process, do you take any point about the retrospective nature of…..

MR MERKEL:   We…..our submissions in two parts, your Honour.  We say that, properly understood, what Lim’s Case is being accepted as saying, what we say Justice Gummow indicates in his reasoning in Fardon, is that involuntary detention in custody of the State is punitive unless it falls within an established exception, so that that is sufficient to look at the punitive element. But we say, as an alternative submission, if that be rejected, we say on the proper analysis of Division 105A, the retrospective aspects of it, and the extensive overlap between what occurs in the sentencing process and in the 15 years of imprisonment, and the continuation of that, is such that the division cannot displace the punishment overlay that is involved in the continuing detention.

But we are conscious of the fact that Justice Gummow disavowed that overlay, but relied entirely on the first point, but we say if the Court arrives at the conclusion that the first point, for any reason, is wrong, we fall back on the second point and take the retrospectivity, the overlay, and the continuity, plus the fact that this jurisdiction is only exercisable in respect of a person in prison, which we say undermines the sole preventive purpose argument that the Commonwealth puts.  I hope that is an answer to your Honour’s question.

KEANE J:   Mr Merkel, does the preventive purpose have to be the sole purpose of detention in order that the law that permits its imposition be characterised as other than a law for the punishment of criminal guilt?

MR MERKEL:   We would say, on our fallback position, yes, your Honour.  We say on the fallback position the preventive purpose must be such – Justice McHugh described as “purely preventive” – but we say it must be such that it displaces any element of punishment, and we say when we come to this division it fails to do that.

GORDON J:   Mr Merkel, can I ask a question about that.  In relation to the division – I know you are going to come to it – does the warning that is to be given – and I know this does not apply to your client because the provisions came in after he was sentenced – as part of the sentencing process, the court must warn the offender that they may be subject to one of these applications, should it not?

MR MERKEL:   Yes, your Honour.

GORDON J:   Does that not alter the way in which you just put that last proposition  ‑ that is, it actually has a couple of purposes; it is both preventative but also part of the sentencing?

MR MERKEL:   Yes, your Honour.  I am cautious, because the primary position we put is that put by Justice Gummow, but we say that, amongst other aspects, shows that it is not possible to diverge the sentencing process from the continuing detention process.  We say they are integrated and bound up with each other.  In paragraph 8 of our outline this morning we have referred specifically to the provisions that we say are that overlap and the provision your Honour just took me to is one of the provisions in paragraph 8, but we will come to that in more detail.

EDELMAN J:   If that is correct, though, Mr Merkel, how then can you make good the proposition that this preventative type of order is not incidental to the punishment of criminal guilt if it is part of and inseparable from the whole of the sentencing regime, including by reference to the provision that Justice Gordon took you to and also by provisions such as 105A.8(1)(g)?

MR MERKEL:   Your Honour, it is an overlap that we have recognised that in accordance with decisions of this Court - and it may be that this case comes up as an exception - the prior convention – and this happened in Fardon – and the serving of the sentence, which was a prerequisite for the operation of the regime in Fardon, was regarded as the factum upon which the later regime of prospective detention, which is said to be preventive, operates, and it is said that that is a line of demarcation.

What we say if we get to our fallback…..is that line of demarcation as a matter of substance does not prevent the overlap and it is our submission that that overlap is sufficient to displace the purely preventive purpose, if one has to put it that way, or if one calls it a preventive purpose, that preventive purpose does not displace the punitive regime and the judicial power is being enlisted in a way that we say is contrary to the decision in Lim.

EDELMAN J:   But how is there anything contrary to Lim then if, properly characterised, it is the exercise of judicial power to punish as an incident of criminal guilt?

MR MERKEL:   Because, your Honour, the purpose is said not to be punitive.  It is said to be preventive.  The line of demarcation is said to be that the order is made for continuing detention solely on what the offender might do, not based upon what he has done.  So we say that it is not regarded as a resentencing for the original conviction because it is spent.  We say, your Honour, it would be wrong to treat this as part of the sentencing. 

We draw on the distinction drawn in Veen (No 2) – which is referred to on a number of occasions by Justice Gummow – where there is a delicate line between fixing the maximum sentence based upon and taking into account protection of the community and rehabilitation, amongst other matters, or going beyond that line and imposing something additional to the appropriate sentence based upon protection of the community.

In the majority judgment, that second step was said to be impermissible and to approach what your Honour has put to me would be taking that second impermissible step that is using preventive detention as a basis for going beyond the punitive sentence that has been imposed having regard to rehabilitation and protection of the community which the court has fixed at 15 years.  So we say that it is not properly regarded as part of the sentencing process so, we would, with respect ‑ ‑ ‑

EDELMAN J:   When you say “is impermissible” under Veen (No 2), do you mean impermissible at common law or constitutionally impermissible?

MR MERKEL:   That is more difficult to answer, your Honour.  It was a State jurisdiction.  Their Honours used the word “impermissible” in the judgment in Veen.  But we would say it would be impermissible because that is not what the sentencing process is for – it is to find the appropriate sentence, having regard to all of the relevant factors including rehabilitation and community protection but not to add on above that sentence.  

Three judges differed with the majority but only on the point of whether the appropriate sentence could have included what the majority saw as not an add‑on.  The minority saw it as an add‑on.  What your Honour is suggesting, if it were viewed as part of the sentencing process, we say that that is not correct.  We would not accept that premise.

When we take your Honours to the regime, it is very difficult to get that premise that your Honour has put to me from the regime because it is discrete; it is comprehensive; it has regard to the factors that are to be taken into account – the factors that are not.  So we would say it comes up more in the context that your Honour Justice Gordon put to me as something independent but overlapping with and stemming from the regime in a way that we say transgresses the principle in Lim.   

GORDON J:   I do not think you should misunderstand me, Mr Merkel.  I do not know that I was putting it as independent.  In fact, what I was suggesting was that 105A.23 seemed to suggest that as part of sentencing a person, the court is obliged to warn the person that an application may be made.  In other words, it is seen as part of the sentencing – at least, arguably – having regard to the terms of 105A.23. 

MR MERKEL: Your Honour is correct but we say the warning does not convert what 105A segregates as a fully independent process based entirely on what you might do and if using what you have done in the past as a factum for the operation of the section extend Division 105A into part of the sentencing process and we say that ‑ ‑ ‑

EDELMAN J:   I am sure you will come to this but 105A.8(1)(g) does appear to be operating as more than just a factum.  It is a factor to which regard must be had in deciding whether to make the order.

MR MERKEL:   Your Honour, I suppose ‑ ‑ ‑

EDELMAN J:   Subsection (h) as well, which is the views of the sentencing court at the time the sentence is imposed.

MR MERKEL:   Your Honour, they are matters, amongst others, that we have regard to but, your Honour, I will need to come to 105A in due course, if I can do it comprehensively because, we say, it definitely sets up its own independent regime, and based upon this Court’s approach to the similar problem in the migration case that was in Falzon but also in Fardon and also the way Justice Gummow analysed it in Fardon, one does not convert the factum which is a necessary trigger for the operation of the section as being the operation of the section being based upon what you have done in the past.  It is necessarily divorced from that.

If you can take the present case, Mr Benbrika has served 15 years, he has fully served his sentence, and at the expiration of the sentence ‑ and this trigger only arises at the expiration of his sentence ‑ the entirety of the inquiry is on what he might do; it is based upon propensity into the future rather than based upon the past. 

But, we say, what your Honours are putting to me, in effect, establishes almost beyond argument, a punitive element, whether that punitive element or purpose is not disqualifying because it is an incident of the sentencing process is a question we will address if I can come to it in more detail when I come to the various aspects of the division, but we say it does stand independently of the original sentence and should not be regarded as an extension or continuation of it.

Your Honour is clearly correct to draw our attention to it, an oddity in the present case is that, of course, was not in existence when Mr Benbrika was sentenced, but we say that only makes good our point that that should not matter because it does not produce the result that the division is an incident of the sentencing process and therefore can be part of what may be called the established exceptions.

Can I go back to Lim?  Justice Gaudron – I do not need to read it, your Honours, but Justice Gaudron took a different approach.  Her Honour found at page 55, point 3 ‑ her Honour supported the general principle but said is it absolute because:

there are other situations in which persons may lawfully be held in custody.

But she did say at line 12 at page 55 that:

Detention in custody in circumstances not involving some breach of the criminal law and not coming within well‑accepted categories . . . is offensive to ordinary notions of what is involved in a just society. 

But it is not:

necessarily and inevitably offensive to Ch. III.

Her Honour at page 57 adopts what we say has been accepted as flowing from Lim, that the provisions must not exceed what is reasonably necessary for the purposes, in that case, of deportation, of allowing entry applications to be made, and the implication from the decisions is that if it goes further than reasonably necessary that entitles an inference, or justifies an inference that there is also a punitive element.  Justice McHugh at 65, point 9, again adopts the “reasonably necessary” criterion as a limitation and at page 71, his Honour refers to a “non‑punitive object”, if there is a legitimate non‑punitive object.  Later on, in other judgments, his Honour refers to a “purely protective” purpose.

We say that the Court’s later cases have not departed from the fundamental propositions that we have identified in paragraphs 2 to 4 of the outline.  Can we now go to those cases to make good that point that we made?  If I could just take your Honours to Kruger, which is in tab 16 of volume 4, and the passages I want to go to are Justice Gaudron – I will refer to as Justice Gaudron’s criticism of Lim.  I do not need to take your Honours to what her Honour said in detail, but what her Honour said at page 110, point 3, is that her Honour was critical of the view that the exceptions could be regarding as establishing any general rule.  What her Honour said, they:

serve so many different purposes –

that her Honour says, at 110, point 5, that the exceptions are neither clear nor precise within defined categories.  We would make the following observations about what her Honour has said.  We would say later cases, as was the case in Lim, have treated the exceptions as confined to historical categories that will, of course, differ, when considered in relation to executive and judicial power or, as I indicated earlier, to their analogues, so we say that her Honour’s criticism has not been followed or backed up in the later decisions. 

We also say that it is not open to the Commonwealth properly to call in aid what Justice Gaudron said, because what it is proposing to do is a unification of all the possible exceptions under one criterion, which is the presence of a non‑punitive purpose.  We say that converts the exception into a general rule and ‑ ‑ ‑ 

KIEFEL CJ:   Mr Merkel, I had understood you to say earlier that you accept that the exceptions referred to in Lim are capable of being extended by analogy.

MR MERKEL:   Yes, your Honour.

KIEFEL CJ:   To do that, one would look at what those exceptions might have in common.  They might be thought to have in common a purpose protective of the community, or of the person subject of a detention order and if that is so, why would this legislation not fall within an extension of the historical exceptions by analogy?

MR MERKEL:   We would have a number of answers to your Honour.  The first is that we say the extension by analogy is by reference to the exception in question, so the example given in Lim was the example of exclusion and removal, or removal for the purpose of exclusion would, by analogy, include a person in detention pending an application for a visa to see whether they should be removed. 

KIEFEL CJ:   What about the exception of a person who is mentally ill in such a way as might be a danger to the community?  What is the distinction you draw between the exception which recognises a danger arising from the person and a need to protect the community?  I am not saying every mentally ill person produces this, but some conditions might, and the position here, where a person who has an ideology which involves the infliction of harm upon the community, is seen to be a danger and the community needs to be protected from them.

MR MERKEL:  Your Honour, the mental illness can have two purposes:  one is protection of the community, as your Honour puts to me, but also protection of the individual themselves.  That is an historical ‑ ‑ ‑

KIEFEL CJ:   But it is only an example of a person presenting a physical or other danger to the community and the courts accepting that it is a proper exercising of judicial power to detain the person for the protection of the community.

MR MERKEL:   Your Honour, we say that that is looking at a breadth of exceptions which we say goes beyond what is suggested in the cases.  The historical analogue is an extension not of an underlying general principle that might be adopted from an exception, but we say mental illness is a long way from what we are concerned with here.  But what your Honour is putting to me raises a more fundamental question, in my respectful submission, and that is, there is almost no victimless crime, assuming that or they are rare exceptions, all crime causes harm to the community.

If preventive detention, we accept it as a principle within the judicial power, then the extension is not within exceptions, the extension is that any exercise of judicial power to prevent harm to the community based on prospective conduct is an analogue and we say that is a very, very big extension.  I will come to ‑ ‑ ‑

KIEFEL CJ:   How much further do - you would have to take Vella into account then, would you not?

MR MERKEL:  Yes, your Honour, but when I come to Division 105A and Part 5.3 offences, to say that they fall into a category of exceptions requires consideration of the range and breadth of offences. Not only do terrorist offences in that division start with terrorist acts but go through to supporting a terrorist organisation, being associated, funding – there is a whole range of offences.

Also, they almost all have extraterritorial jurisdictions, so the community that is being protected under this regime is not the Australian or any local community; it is the international community.  We say that that is a very far cry from harm that one individual can cause by reason of a mental illness. 

To say that harm to the community that can be caused by crime and the community being extended not only to Australia but to the international community we say that is certainly not an analogue, but if it goes to the point of the exception being, if it is preventive, which is the case that the Commonwealth, in fairness, is putting against us, we say that no longer is within the exception or the analogue rule, that is creating a separate principle.  It is interesting, your Honour, that Chief Justice Gleeson in Thomas – this is at volume ‑ ‑ ‑

KIEFEL CJ:   Just before you go on to that, another exception referred to in Lim is a person with an infectious disease.  That, too, has in common with a person having a mental illness which might – this might have as an aspect of it, physical danger to the community.  So, too, would an infectious disease.  So, you have at least two examples where it is accepted that a law, having a purpose protective of the community, might be one which is appropriate to the exercise of judicial power if other things being – the other requirements of judicial power, of course, being present.  But, the nature of the law itself is one having a protective purpose in both of those examples.  I am sure there are others.

MR MERKEL:   Your Honour, we give two answers to your Honour’s example.  We would say the analogue of the person with infectious diseases and the prevention of danger to the public could easily see that protection going to, not only ensuring that person was maybe isolated, but taking other measures ‑ ‑ ‑

KIEFEL CJ:   Quarantine does come to mind, does it not?

MR MERKEL:   Yes, it does, your Honour.  But that is a quarantine directed to the infectious disease, your Honour.  Also, one would look at treatment – or some response that is not punitive – for example, to put that person who had the infectious disease in prison rather than in hospital would classically fall outside any justifiable exception.

KIEFEL CJ:   What is the distinction between being required to be in a hotel room unable to mix in the community and I know there is some distinction with being in prison, but it is still a form of detention, is it not?

MR MERKEL:   It is, your Honour.  That is because there is a pandemic and people who have come from overseas have been found to be the source of the spread of the infection in Australia.  So it is obviously an incident of protecting individuals from becoming infected to ensure ‑ ‑ ‑

KIEFEL CJ:   Under the regimes which operated in recent times, there was no suggestion of a judicial order but would you submit that a court could not make such an order requiring a person to quarantine themselves and in a particular place and not even to be taken to a place of quarantine as in the olden days and not be permitted to mix in the community.  Would you say that is beyond the judicial power of the Commonwealth for a Chapter III Court to make such an order? 

MR MERKEL:   No, your Honour.  We would say that would probably be falling within the ambit of what was considered in Thomas where certain preventive powers could be conferred on a court, but it was recognised that those powers stopped short of detention in prison.  Our concern, in the present case, is the basic premise of Justice Gummow’s analysis in Fardon and, we say, in Lim, itself, is that detention in prison is a category of its own and involves punishment unless within an established exception. 

So your Honour’s examples to me have all stopped short of detention in prison and if they did involve detention in prison, we would say that would immediately run counter to the “no more than reasonably necessary” test.  That is why I gave the example of hospital versus prison as an incident of the kind of problem your Honour raised with me.

KIEFEL CJ:   So when you say “detention in prison”, you mean detention in a place which is recognised by statute as a correctional centre, but you would distinguish from that detention at, say, an island off the coast of Australia which was not designated a correctional centre, but from which people could not move?

MR MERKEL:   Your Honour, we draw that distinction, although the premise in Lim is concentrating on detention in custody of the State.  We say detention in prison is the classic or ultimate example of what their Honours would regard as punitive.  If detention on an island were found to be no more than reasonably necessary, for example, like a quarantine centre in a remote area of the Northern Territory, then that would be capable of falling within the judicial power that Thomas recognised, but we are talking about something qualitatively different, and that is that ultimate detention in prison and it is as part of the criminal justice system and it is, in our submission, divorced from the judgment of guilt because it is prospective, which is the matter I took your Honours to earlier.  We do say that it is important that these cases do establish that the use of history and analogy is closely geared to the historical source and the way in which ‑ ‑ ‑

KEANE J:   Mr Merkel, how can history be controlling?  How can history be controlling when Blackstone had never heard of terrorism?  How can it possibly be said that the powers of the Parliament are limited to the measures that were taken hundreds of years ago to deal with problems that were problems of the time but by people who had no reason to envisage the difficulties of dealing with people who take it as part of their religious duty to actually kill other members of the society?  I mean, to say that the Parliament is straitjacketed in how it is to deal with problems that are today’s problems and to say that that prevents appropriate analogies being drawn just seems to be unduly sclerotic in terms of its thinking.

MR MERKEL:   Your Honour, terrorism may be the most recent form of civil violence, but at 1900 and prior to that there were many forms of civil unrest and civil violence that were part and parcel of the process that Parliament had to deal with and the judicial and executive powers had to deal with.

We say the following, your Honour.  I was going to say that Chief Justice Gleeson in Thomas at paragraph 18 - I do not need to take you to it, it is at volume 6, tab 26 - when talking of the judicial power, did say that the categories of historical exceptions were carefully confined and this Court in each of the cases I will take you to has not expressed the view that your Honour has put to me that history is merely an incident of this but not limiting in any way or form. 

We say that time and again, and particularly in Thomas when we are looking at the judicial power, the power of the courts in 1901 was regarded as extremely significant and the journey of Lim into exceptions were all historically based and Lim was not in an era, your Honour, back 50 years ago and the kind of problems that we are confronting of violence in this community or violence in overseas community are not new problems but, more importantly, your Honour, the exception that is being contended for by the Commonwealth is actually an exception against recidivism whether it be drugs, terrorism, domestic violence, one can go through any range of criminal conduct that causes harm out there to the community. 

If this preventive detention regime is allowed to be preventive as an exception then it covers the whole range and makes the whole learning on Lim just a bypass or byword of history.  The courts have concentrated on it because as Chief Justice Gleeson said these categories are carefully confined.  What the Executive might be ‑ ‑ ‑

KEANE J:   You do not suggest, do you, that Fardon’s Case is wrongly decided?

MR MERKEL:   No, no, it was decided under a State regime.

KEANE J:   That is right.  So what is about Commonwealth judicial power that is different in terms of its nature and quality to State judicial power.

MR MERKEL:   We say the entirety of the answer to that question resides in Chapter III in two particular aspects.  State judicial power is not subject to separation of powers which was the reason why Kable (No 1) was decided as it was.  You would not have to worry about institutional integrity if separation of powers existed in the States or the Commonwealth separation of powers made no difference to the exercise of the judicial power.  The second, which is not part of the case we are putting here, is the Commonwealth judicial power must be exercised in respect of the matter.  That is not an impediment to State judicial power.

KEANE J:   So, do you accept that the Commonwealth Parliament could authorise the Executive Government to simply lock someone like your client up, no problem with judicial power, no judicial oversight, no judicial involvement at all?  Do you say that is a possibility?

MR MERKEL:   Your Honour, it only becomes a possibility if the word “exclusive” is taken out of the judgment and the ruling in Lim so that our primary position is that based on Lim, which has not been departed from, we would say, with respect, the detention in prison is exclusively with the judicial power as part of the judgment…..criminal process.  So, the first answer we would give to your Honour is that the word “exclusive” would have to be taken out and that would have the result that the power would then maybe fit in with a chameleon power or would be one that the Executive might be able to exercise.

We say “might” because we recognise that the subject matter of the executive power which relates to administering the laws of the Commonwealth, say, under section 61 of the Constitution, is a very different subject matter to the judicial power determining and resulting controversies in accordance with Chapter III.  So, there may be a wider ambit for executive power to be expanded - we do not say to put people in prison, but the exceptions that are relevant to the executive power cannot be equated to exceptions that might be relevant to the judicial power. 

That is why in Thomas, the cases that were referred to as historical exceptions or analogues were cases giving examples of protection of the judicial power not protection of society generally which may be the subject of executive activity.  The power in Thomas was chameleon so it could be exercised by the judiciary or by the Executive.  But we say what is not controlling in this controversy is where it is more desirable for the power to reside if it is chameleon and can reside in the judiciary and the Executive, that is a decision for Parliament. 

One example is the matter I took your Honours to this morning in respect of Mr Benbrika. The original amendments to the Citizenship Act entitled: “A person whose citizenship is cancelled can contest the basis of the cancellation on the merits in a Chapter III Court”. The amendments to the regime gave the Minister satisfaction in respect of the requisite elements so it converted what was within the judicial arena into the executive arena, challenging the Minister’s satisfaction. Both are obviously pathways that were open if the power is a chameleon one and can be exercised either way.

But we would say, with respect, the answer to your Honour’s question really resides in what are the terms of the legislation and could it be said, on a fair view of that legislation, that it either contravenes the Lim principle if “exclusive” is taken out of it, or is it empowering the Executive to impose punishment.  That would give rise to the kind of debate we are already having with respect to Division 105.A.

I was taking your Honours to Al‑Kateb.  That is at volume 2, tab 6.  The point of this is really to make good our submission that, by the historical analogues – historical analogues lie at the heart of these decisions – but, also, that the idea of treating “preventive” and “punitive” as binary concepts, we say is an unstable way to approach them because there is no clear dividing line and for that to become the critical criterion raises the issues of where that line is and, we say, it is a very unstable line and it has been recognised as such.

Can I go to Al‑Kateb?  Again, I do not need to read it in detail to your Honours, but Chief Justice Gleeson’s reasons, at paragraph 4, made it clear that, in the context of migration, this did not involve punishment.  I would ask your Honours to note the reference to his Honour’s comment at paragraph 14, that the detention, even for migration purposes:

may take on a different aspect when the detention is indefinite, and possibly for life.

We note that the current regime in Division 105A certainly has that potential.

At paragraph 44, Justice McHugh refers to framing the question of punishment as being whether the “object is purely protective” and we would say that if we get to our fallback argument, that is the criterion rather than is it a continuation of the sentencing process.  His Honour at 45 to 47 found that the detention was purely protective if it is for the immigration purpose of exclusion or removal, which was the power considered in Lim.  We will not deal with Justice Gummow here because we will deal with that as part of his discussion of his decision in Fardon.

Could I go to Justice Hayne.  Again, I will not take your Honours to read it, could I ask your Honours to note at paragraphs 251, 254 and 255 it is clear that his Honour’s observations were all geared to the historical context which takes into account exclusion for the purpose of removal and we would say historical context was purely a matter of interest.  The concentration on justifying removal in that context would have been a side trip by their Honours and it never has been in this jurisdiction.

Then at 264 to 265 his Honour discusses whether it is appropriate to view detention as punishment.  Could I go to line 7 at page 637.  Just before I take your Honours to it, at the bottom of page 636, which in the papers is page 438 at the bottom, his Honour discusses punishment and judicial power.  His Honour then makes reference to H L A Hart, identifying the central concepts or standard concepts and elements of punishment and then his Honour, after referring to Professor Hart, says:

That is not say, of course, that it may not be appropriate to identify treatment of persons as punitive where those persons are not offenders.  But punishment is not to be inflicted in exercise of the judicial power except upon proof of commission of an offence.

Then his Honour later goes to Lim at line 30 and discusses the concept of immunity.  Then his Honour says at line 37 that whether it is punitive or not:

must be done by reference to the purpose of the detention.  Neither the bare fact of detention nor the effluxion of some predetermined period of time in detention is said to suffice to engage Ch III.

So we say his Honour there does not deny ‑ and paragraph 267 his Honour does not deny the Lim immunity, but considers it was not unqualified by reference to the purpose of detention which in this case has been immigration.  Justice Callinan – and again I will give your Honour the references – at paragraph 287 and 291, again anchored his Honour’s reasoning in historical examples and in the historical context. 

Can I go next to Behrooz which is volume 2 at tab 8.  In Behrooz at paragraph 20 his Honour refers to Lim and, again, to immigration detention.  If I go to page 499 where his Honour the Chief Justice refers to Lim and then referring to ‑ at about line 16 Justices Brennan, Deane and Dawson said:

in the context and for the purposes of executive powers to receive, investigate and determine an application for an entry permit and, after determination, to admit or deport, is not punitive in nature, and not part of the judicial power of the Commonwealth.  In the case of a citizen, what is punitive in nature about involuntary detention (subject to a number of exceptions) is the deprivation of liberty involved.  But an alien does not have a right –

and so forth.  Down, in the next paragraph at 21:

That being the nature of the power of detention, there is no warrant for concluding that, if the conditions of detention are sufficiently harsh, there will come a point where the detention itself can be regarded as punitive, and an invalid exercise of judicial power.  Whatever the conditions of detention, the detention itself involves involuntary deprivation of liberty.  For a citizen, that alone would ordinarily constitute punishment.

So, one still finds, echoing there, that is the principle his Honour the Chief Justice regarded as flowing from Lim.  Justice Hayne at paragraph – I will just refer your Honours to Justice Hayne at 171, I will not read it, and Justice Callinan at 218 but, again, one finds the application of Lim without any challenge to it.  I will pass over Fardon in the chronological sequences.  I will come to that later.

Could I come next to Vasiljkovic v Attorney‑General of Queensland which is in volume 7 at tab 27.  In the judgment of Justice Hayne and Justice Gummow with whom Justice Heydon agreed, they referred at paragraph 84 to the principle in Lim.  Can I ask your Honours if I could read paragraph 84 where their Honours refer to the invitation to go to the statement in Lim, and then said at the top of page 643:

But subsequent consideration indicates that the beneficiaries of this principle derived from Lim are not necessarily limited to citizens.

So, again, there is no suggestion of reading back what was said in Lim.  Can I go next to paragraph 109.  This was in the judgment of Justices Gummow and Hayne, after their Honours refer to the examples given, again historical examples, and their Honours say:

All of the above examples, in particular that concerned with committal to custody to await trial, were well established at the time of the adoption of the Constitution.  So also detention as a step to extradition.  The law and practice of extradition had a long history in the United Kingdom.  In the United States, the first reported extradition case occurred in 1799 –

So, again, one finds this concentration of focus on historical analysis. 

Can I go next to North Australian Aboriginal Justice Agency Ltd v Northern Territory, volume 7, tab 20.  In the plurality judgment of Chief Justice French, your Honour Justice Kiefel and your Honour Justice Bell set out at paragraph 37 the general proposition from Lim and consider that case to fall within the important exception in Lim at 28, which relates to arrest and detention in custody pending a criminal justice process.  That then found that it was entered into that exception, but at paragraph 38, your Honours noted – it was noted that:

If the maximum period for which a person could be held in detention . . . were significantly greater than that specified ‑

the detention might be characterised as punitive rather than administrative.  Justices Nettle and Gordon, at paragraphs 236 and 237 reasoned similarly.  We say that the Court, looking at it as a matter of substance, does not determine whether detention is punitive by simply asking whether it is imposed for a breach of the law.  Again, the extent to which the breach invades liberty raises always the question of whether it was reasonably necessary.

In paragraph 94, your Honour Justice Gageler identified the start – and the difference between the dissent with your Honour and the other majority judgments was really on the interpretation of the statute and its purpose.  But your Honour Justice Gageler at paragraph 94 identified the starting point for the constitutional analysis with the Lim principles and your Honour noted the foundational reason for that starting point was for:

the concern . . . of personal liberty lying at the core of our inherited constitutional tradition ‑

Then your Honour referred to exceptions at paragraph 98.  Can I just say that what lies behind and is central to our submissions is the separation of powers is just not a concept of separation between the three branches of government but the separation of powers has always been recognised as the bulwark of liberty in this constitutional setting and in any other separation of power setting.  Your Honour Justice Gageler sets out the background to that and I do not need to read it but we say that it is that point of principle which justifies the concern in Lim about detention in prison in custody of the State being an infringement subject only to exceptions.  Can I read what your Honour Justice Gageler said at paragraph 98 – this is at page 611:

The joint reasons in Lim also acknowledged that the exceptional circumstances in which involuntary detention might not be penal or punitive would include cases of detention under mental health legislation and detention under quarantine legislation.  Other limited forms of protective or preventive detention might well be envisaged.

We would say, “limited forms” means one extent by analogy by reference to the subject matter, not by the reference to some overarching principle:

Cases subsequent to Lim have illustrated the difficulty of seeking to draw a bright‑line distinction between penal or punitive detention and protective or preventive detention.  The difficulty of drawing any distinction between detention which is penal or punitive and detention which is not highlights the significance of default characterisation:  any form of detention is penal or punitive unless justified as otherwise.  The question is always one of characterisation of the detention, in respect of which the object sought to be achieved by the law authorising detention is a relevant consideration, but not the only consideration.

Then your Honour goes to two criteria in respect of executive detention, which is not an issue in the present case, although I will come to that more indirectly when I analyse Division 105A. Your Honour concludes at paragraph 103:

This is not an occasion to mince words.  The form of executive detention authorised by Div 4AA is punitive.  Because it is punitive, the imposition of the detention involves the exercise of a function which our constitutional tradition treats as pertaining exclusively to the exercise of judicial power.

Your Honour then, at paragraph 103 ‑ sorry, that is including your Honour’s conclusion at 103.  We have taken the Court through those judgments to demonstrate the principles that Lim stands for had not been departed from, and are those set out in paragraphs 3, 4, and 5 of our outline.

Could I now go to Justice Gummow’s judgment in Fardon, which ultimately is the judgment that we invite this Court to apply and adopt in the context of Division 105A. Fardon is in volume 2 at tab 11.  At paragraph 68 his Honour identifies the argument put by the Commonwealth, which was that the Fardon regime could be enacted under federal law.  In the last line of paragraph 68, his Honour said it is said by the Commonwealth that the Fardon jurisdiction could be conferred on a Chapter III court:

even though the detention which the Act provides is preventative, not punitive, in nature.

His Honour then goes to what I had referred to earlier as a disclaimer by his Honour in paragraph 69, where his Honour refers to Veen (No 2) and considers the overlap between:

the objectives of the sentencing process include the various and overlapping purposes of “protection of society, deterrence of the offender and of others who might be tempted to offend, retribution and reform”.

And later he disclaims that as part of his reasoning because his Honour anchors on a central concept in Lim, which is simply that detention in custody of the State is penal subject to the recognised exceptions.  His Honour at paragraphs 69 to 73 notes that protection of the community is a legitimate sentencing objection, but notes that the detention order is not imposed as part of the sentencing process, notwithstanding that the Act took as the fact of its application the status of the person as a prisoner, and we say that no different result arises in respect of the current statutory regime.  It was not part of the sentencing process, nor could it be said in respect of Mr Benbrika.

At paragraph 75, his Honour identifies the Commonwealth’s argument that the judicial power of the Commonwealth can be employed to imprison a person with criminal propensity, not criminal guilt.  His Honour at paragraph 76 quotes Justice Gaudron in Re Nolan that determining breach of the law and pronouncement of the consequences is at the heart of the judicial power, and observed that power in Fardon sat outside that paradigm.

Then his Honour at 77 drew analysis to the constitutional principle in Lim and he sets out that at about line 47, after referring to Lim, and then says: 

That passage was applied as a step in the reasoning in Kable of Toohey J and Gummow J, and is reflected in that of Gaudron J and McHugh J.

Then his Honour – can I read these passages at page 612 where his Honour refers to the problems of criminal guilt, at line 79.  Then, can I jump down to about line 20:

However, what is involved here is the loss of liberty of the individual by reason of adjudication of a breach of the law.  In such a situation, as Kirby J remarked in Labrador, that loss of liberty is “ordinarily one of the hallmarks reserved to criminal proceedings conducted in the courts, with the protections and assurances that criminal proceedings provide”.

His Honour then says:

I would prefer a formulation of the principle derived from Ch III in terms that, the “exceptional cases” aside, the involuntary detention of a citizen in custody by the State is permissible only as a consequential step in the adjudication of criminal guilt of that citizen for past acts.

Then, his Honour comments back, further down at paragraph 81:

That formulation also eschews the phrase “is penal or punitive in character”.  In doing so, the formulation emphasises that the concern is with the deprivation of liberty without adjudication of guilt rather than with the further question whether the deprivation is for a punitive purpose.

Then, going down at paragraph 83, about line 28, his Honour says:

But it is not suggested that regimes imposing upon the courts functions detached from the sentencing process form a new exceptional class, nor that the detention of the mentally ill for treatment is of the same character as the incarceration of those “likely to” commit certain classes of offence.

We would say that, with respect, is a succinct answer that we would proffer some of the questions your Honour has asked of us.  Then, in paragraph 84:

Another of the well‑understood exceptions to which the Court referred in Lim, with a citation from Blackstone, was committal to custody, pursuant to executive warrant of accused persons to ensure availability to be dealt with by exercise of the judicial power.  But detention by reason of apprehended conduct, even by judicial determination on a quia timet basis, is of a different character and is at odds with the central constitutional conception of detention as a consequence of judicial determination of engagement in past conduct.

Then, at paragraph 85, his Honour says:

It is not to the present point, namely, consideration of the Commonwealth’s submissions, that federal legislation, drawing its inspiration from the Act, may provide for detention without adjudication of criminal guilt but by a judicial process of some refinement.  The vice for a Ch III court and for the federal laws postulated in submissions would be in the nature of the outcome, not the means by which it was obtained.

We would say that particularly applies to Division 105A. Then, his Honour says:

The repugnancy doctrine in Kable does not imply into the Constitutions of the States the separation of judicial power mandated for the Commonwealth by Ch III.  That is fundamental for an understanding of Kable.  No party or intervener submits otherwise. 

Then, his Honour refers to the joint judgment in Silbert:

it was emphasised that the repugnancy doctrine in Kable operates upon the footing that the outcome provided for by the State law in question could not be obtained in the exercise of federal jurisdiction.

So, that is his Honour’s reasoning.

BELL J:   Mr Merkel, could I just take you back to paragraph 83?  You relied on his Honour’s analysis in that paragraph as an answer to some of the questions that you had been asked earlier in the course of submissions.  His Honour there speaks of the long history of preventative detention regimes and his Honour goes on to say:

But it is not suggested that regimes imposing upon the courts functions detached from the sentencing process form a new exceptional class –

If one were to take by way of example the regime in Chester v The Queen which provided that the sentencing judge having imposed the sentence which ones takes to be the correct sentence incorporating all the purposes of punishment, including protection of the community, was then empowered to make an order for the effectively indefinite detention of the person based on considerations quite separate to the considerations that informed the sentencing process and that would seem to be directed clearly enough to the evident risk the person posed for the commission of offences upon release of that sentence.

It is not clear to me what his Honour is saying in paragraph 83 with respect to a provision of that character.  Do you say the provision of the – I think it was the West Australian Criminal Code that enabled the sentencing judge to make an order of that kind is beyond the judicial power of the Commonwealth.

MR MERKEL:   No, if I understand it correctly, your Honour, the reason I would answer “no” is because Parliament can stipulate the ambit of the sentencing process and what is required to be taken into account, both at a federal or a State level, and that fixes the outer limit of the sentencing.  If it be an outer limit of indefinite imprisonment, so be it.  If it be without a non‑parole period and that is authorised by statute, again, so be it.  But if what occurs is not part of that sentencing process and not part of the process for sentencing as a result of a judgment of guilt for past conduct but something residing in another court on a later occasion at the conclusion of the sentence that was not part of the sentencing process under the relevant statute, we say that is what his Honour is referring to. 

BELL J:   I understand, but just to be clear about it; if, as part of the sentencing process after the judge has imposed the correct sentence for the offence in the sense of the sentence that comports with the statutory requirements in the particular jurisdiction as to the considerations to be taken into account in sentencing, if at that time on top of that, as it were, the judge makes an order authorised by statute for effective indeterminate sentencing on the basis of the judge’s assessment of the likelihood that the offender would commit a serious violent offence at the conclusion of the appropriate sentence for the offence, that you accept would be an exercise within the judicial power of the Commonwealth.

MR MERKEL:   One would have to look at the particular regime.  The distinguishing point we say is relevant for present purposes is:  is the sentence of imprisonment imposed by the sentencing judge based upon the sentence that Parliament has provided for as part of the sentencing judge’s function as a result of the crime in question?  We say what your Honour has put to me has all left within the sentencing judge a discretion which might in that situation be added to by reason of conduct in prison.  Normally that would be the parole board’s function to assess whether someone should be released on parole because of rehabilitation or no threat to society.  If that was part of the judicial function, that may raise its own question.  But it is still part of the sentencing process entirely premised upon what that person has done in the past.

KIEFEL CJ:   Thank you, Mr Berger.  Yes, Mr Tran.

MR TRAN:   If the Court pleases.  The first point in reply is, in our submission, the preferable characterisation of this legislation if it is not to be seen to be punitive, which is of course our primary submission, is that it is striving to prevent crimes.  It is not attempting to prevent harm.  So of course there is a fine distinction between those two, but we think that the legislation falls on the side of preventing crime and the reason for that is this.

Your Honours will appreciate from R v Abdirahman‑Khalif that Part 5.3 criminalises preparatory or anticipatory acts which would not usually be regarded as criminal.  Your Honours in the majority cited Lodhi, Ul-Haque and Benbrika in the Court of Appeal for that proposition.

KIEFEL CJ:   Mr Tran, is there something of a difficulty in your submission in that the affliction of harm upon members of the community almost invariably involves a crime?

MR TRAN:   It does, your Honour.  But what we have fixed on in particular is the fact that one of the criteria for the making of this order is that essentially it is necessary to prevent a serious Part 5.3 offence.  We would say that when one scrutinises those Part 5.3 offences they go beyond the actual commission of a terrorist act, for example.  A good example is section 101.6 which is one of the offences that Mr Berger just referred to.

If your Honours look at – I am not sure if your Honours will have it but section 101.6 is an offence of engaging in any act in preparation for a terrorist act and it does fall into the category of a “serious Part 5.3 offence” because the maximum penalty for that is life imprisonment.  That kind of offence goes well beyond criminalising conduct which would ordinarily be regarded by the criminal law as criminal and so insofar as the CDO regime seeks to prevent the commission of that offence and other preparatory acts, in our submission, it is better regarded as seeking to protect the community from the commission of crimes, serious Part 5.3 offences, rather than protecting the community from harm.  I think that was one of the questions ‑ ‑ ‑

EDELMAN J:   How is that different from an attempts regime?  Is not the purpose of criminalising attempts to protect the community from the risk of harm and to deter attempts to commit that particular crime?

MR TRAN: It is similar to an attempt, your Honour Justice Edelman, but it goes beyond. In section 11.1 of the Criminal Code it is not an attempt in developing the conduct – was not more than merely preparatory and the purpose of Part 5.3 is to go beyond that.  So, for example, in Abdirahman‑Khalif Justice Kelly in dissent in the Full Court, which was then upheld by the majority in this Court, said that taking steps to become a member went beyond and criminalised more than a mere attempt under section 11.1 to be a member.

That is the first point that we sought to make in response, I think, to questions raised by your Honour Justice Gageler to my learned leader, Mr Merkel, and to the Solicitor‑General.  If the Court considers it to be relevant to ask whether or not this is seeking to protect the community from harm or alternatively, simply seeks to prevent a commission of crimes, we say the latter characterisation is preferable.

The second point I want to make, very briefly, is to address Kable (No 2) - I will be very brief, because our principle response in relation to Kable (No 2) is that this Court simply was not asked to consider, and did not decide, that the detention order regime in Kable (No 1) involved the exercise of the judicial power of the Commonwealth when Justice Levine made his Honour’s order. 

So whatever else may have been said in that case, the issue that your Honours are currently presented with simply did not arise, and that case cannot, therefore, be authority against us.  We have otherwise addressed it in quite some detail in writing, but like the learned Solicitor‑General, I am content to rely upon what we have said in writing.

The third point in reply, your Honours, is to return to Lim and the exceptions.  So the Commonwealth’s submission is that there is an all‑encompassing exception to Lim for detention for non‑punitive purposes.  The first point in response to that, we say, is that is inconsistent with Justice Gaudron’s judgment in Kruger at page 110 that the learned Solicitor‑General referred your Honours to, because Justice Gaudron did indeed criticise the joint judgment in Lim, but her Honour’s criticism was to the effect that the exceptions lack any single guiding principle.  They were not clear and lacked one guiding principle.

What the Commonwealth is seeking to have your Honours do here is to endorse one underlying principle, which is that detention is permissible, subject to what they refer to as the ordinary separation of powers principles, if it is for a non‑punitive purpose, and we say that is not supported by Justice Gaudron’s critique.  Nor, do we say, is it consistent with this Court’s later authorities.

In our submission, all of the cases postdating Lim can be understood as cases that fall within established exceptions within the rubric of Lim other than Thomas, but Thomas was seen to be closely analogous dividing over orders and the like, analogous to…..exception.  That may raise the question why is it that the Court in each of those cases was turning its mind to whether or not the detention was punitive.  We explain that in this way. 

In each of those cases the starting point was that the detention was within an exceptional category.  All of the immigration cases, for example, all of those are in an established category of executive detention for immigration purposes.  If it were the case that detention under those regimes, despite being prima facie within an exceptional case in fact or in substance did lead to punishment then, in our submission, that would result in invalidity because even though the detention began in an exceptional case, because that detention was punitive it falls outside of the exceptional case and is invalid applying Lim.  The fact that this Court in those cases inquired into whether or not the detention was punitive did not discard or do away with the necessity of identifying a relevant exceptional category within the Lim rubric.

The last point we make, your Honours, in reply is just to note the consequences if the Court were to accept the Commonwealth Solicitor‑General’s distinction between punitive and non‑punitive punishment as opposed to a distinction between punitive and protective punishment.  Your Honours will recall that the Solicitor‑General suggested that the correct distinction was between punishment and non‑punishment.

If the Court were to accept that submission, in our submission, it will then actually favour the respondent.  A point made by Justice Gummow in Fardon which your Honour the Chief Justice referred in Totani in paragraph 472 is that punishment is indeterminate because protection may have an element of punishment to it.  For that reason, the distinction between punishment and protection may be regarded as somewhat fuzzy. 

By contrast, in our submission, a purpose cannot be said to be non‑punitive if it has any punitive element.  One may see, as Justice Gummow identified in Fardon, that something may look protective, even though it has a degree of punishment to it but, in my submission, it cannot be said that detention is relevantly non‑punitive if it has any punitive element to it.  That is especially clear if the Commonwealth distinction is endorsed.  Otherwise, your Honours, that concludes the respondent’s submissions, if the Court pleases.

KIEFEL CJ:   Mr Tran, just before you sit down, could you expand a little upon this idea that an order - the question of orders for costs might be the subject of further consideration either by a single Judge or otherwise.  The Solicitor‑General has submitted that costs would follow the event either way, success or not.  What sort of arguments would the respondent put – what is contemplated that could not be dealt with in a judgment made on the substantive matter?

MR TRAN: Your Honour, when this matter was removed by Justice Nettle into this Court, the respondent put our written submissions to Justice Nettle that costs should be ordered under provision of Division 105A on the basis that his Honour Justice Tinney had considered appropriate to make such an order to find the defence of the CDO provision – the CDO proceeding. It is section 105A.15A, your Honours “When a terrorist offender is unable to engage a legal representative”.

In our submission, in circumstances where it was considered appropriate by the primary judge to make an order which would cover the costs of Mr Benbrika’s defence on the CDO proceeding in the Supreme Court, in circumstances where this question came to the Court of Appeal as a question arising from that very same proceeding, which question is then removed into this Court, in those circumstances, an order should also be made under 105A.15A in respect of the proceeding before this Court.  May it please the Court, unless I can be of further assistance, your Honours.

KIEFEL CJ:   Yes, thank you, Mr Tran.  The Court reserves its decision in this matter and adjourns to 9.30 am tomorrow.

AT 3.35 PM THE MATTER WAS ADJOURNED