Pollentine & Anor v Bleijie & Ors

[2014] HCATrans 124

[2014] HCATrans 124

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B39 of 2013

B e t w e e n -

EDWARD POLLENTINE

First Plaintiff

ERROL GEORGE RADAN

Second Plaintiff

and

THE HONOURABLE JARROD PIETER BLEIJIE ATTORNEY‑GENERAL FOR THE STATE OF QUEENSLAND

First Defendant

JOHN FRANCIS SOSSO, DIRECTOR‑GENERAL, THE DEPARTMENT OF JUSTICE AND ATTORNEY‑GENERAL

Second Defendant

THE CHIEF JUDGE AND JUDGES OF THE DISTRICT COURT OF QUEENSLAND

Third Defendant

FRENCH CJ
HAYNE J
CRENNAN J
KIEFEL J
BELL J
GAGELER J
KEANE J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON TUESDAY, 17 JUNE 2014, AT 10.14 AM

Copyright in the High Court of Australia

____________________

MR S.P. DONAGHUE, QC:   May it please the Court, I appear with my learned friends, MS K.L. WALKER and MR R.W. HADDRICK, for the plaintiffs.  (instructed by Prisoners’ Legal Service Inc)

MR P.J. DUNNING, QC, Solicitor‑General of the State of Queensland:   May it please the Court, I appear with my learned friends, MR G.J.D. DEL VILLAR and MR J.A. KAPELERIS, for the defendants.  (instructed by Crown Law (Qld))

MR M.G. SEXTON, SC, Solicitor‑General for the State of New South Wales:   If the Court pleases, I appear with my learned friend, MS N.L. SHARP, for the Attorney‑General for New South Wales who intervenes in the proceedings.  (instructed by Crown Solicitor (NSW))

MR M.G. HINTON, QC, Solicitor‑General for the State of South Australia:   If the Court pleases, I appear with my learned friend, MS N.M. SCHWARZ, on the instructions of the Attorney‑General for South Australia intervening.  (instructed by Crown Solicitor (SA))

MR G.R. DONALDSON, SC, Solicitor‑General for the State of Western Australia:   If it please your Honours, I appear with my learned friend, MR J.D. BERSON, for the Attorney‑General for Western Australia intervening.  (instructed by State Solicitor (WA))

FRENCH CJ:   Mr Donaghue.

MR DONAGHUE: Your Honours, the first plaintiff, Mr Pollentine, is now 55 years old, and the second plaintiff, Mr Radan, is now 75 years old. Thirty years ago, in 1984, in separate proceedings, each of those plaintiffs was convicted of serious sexual offences against children. Both of them pleaded guilty and in each case after short and essentially uncontested sentencing hearings in the District Court of Queensland, a judge acting pursuant to section 18 of the Criminal Law Amendment Act 1945 (Qld), which I will refer to as the Act, declared that each of the accused was incapable of exercising proper control over his sexual instincts and directed that each be detained in institution at Her Majesty’s pleasure.

In Mr Radan’s case, he was also sentenced to a fixed term of imprisonment of 12 years, which was reduced on appeal by the Court of Appeal to three years, and his counsel in the course of the sentencing hearing affirmatively urged the judge to make the order for indefinite detention so as to facilitate his client’s access to treatment.  Thirty years later, both plaintiffs are still detained as a result of the indefinite detention orders made on those occasions in 1984 and both have spent the entirety of that time, as we understand it, in prison.

Your Honours should, I hope, have our oral outline of argument which you will see divides what we propose to say orally very simply into two halves. First, submissions which will deal in some detail with the proper construction of section 18 of the Act. Obviously, questions of construction are critical to any question of validity, and while it is true that this Court has upheld the validity of some regimes that involve for the preventive detention of offenders, plainly it does not follow from that that any regime that can be characterised as a regime for preventive detention is, therefore, valid.

It is critical to focus on the detail, and we submit that when one does focus on the detail of this regime it becomes apparent that there are fundamental differences between this regime and other regimes – notably, the regime in Fardon but also other regimes for indefinite detention that have been regarded as valid.  Having dealt in some detail with the construction point we will then be able to deal more quickly with the validity points and to address the reasons why, in our submission, this regime is incompatible with the actuality or appearance of Queensland courts as independent and impartial tribunals.

I should emphasise that our argument in that respect does not focus on the procedure that the court adopts in making an order under section 18 which, in most respects, closely resembles an ordinary court procedure. Nor do we suggest that the court is subject to an impermissible direction by the Executive in the exercise of that power. Our argument for invalidity focuses on the nature of the function itself, including that it involves the court in an indefinite detention regime where the criteria for release from detention differ fundamentally – those criteria have been criteria applied by the Executive in deciding whether to release – are very wide and differ fundamentally from the criteria that get a person placed in detention in the first place.

CRENNAN J:   When you say indefinite, there are mechanisms, are there not, for the detention regime to come to an end, either through a decision of the Governor in Council or would there not be a mechanism under the parole legislation?

MR DONAGHUE:   There is a mechanism for a decision by the Governor in Council to release and I am using the phrase “indefinite detention” to mean detained until the Governor decides that that detention should end, the Governor in Council decides that the detention should end.  Our emphasis is both on what we submit is in effect a delegation by the courts to the Executive based on the factum of a court order of a power to detain indefinitely; that is one limb of our objection.  The other major limb of our objection is the disjunction between the circumstances in which one can come to be detained and the circumstances in which the Governor might decide to allow detention to continue.

CRENNAN J:   What about the parole legislation?

MR DONAGHUE:   The parole position is complex, your Honour.  It appears that the position – and varies over the life of this legislation.  So at the time that the legislation was enacted in 1945, there does not appear to have been any capacity to release a person detained on parole under that provision.  There are then provisions under the Mental Health Act that seem to have allowed the Governor in Council, exercising the same release power that one sees in subsection (5), to impose conditions in much the same way as would occur under a parole regime – that is from the mid‑1970s – and then subsequently in, I think around 2002, there was an express amendment obviously very long after this regime came to apply to the applicant.

Your Honours, can I start then with the questions of construction and ask your Honours to turn to the 1945 Act. I am working from a version of the Act as in force in 1984, being the time when the relevant orders were made in respect of the plaintiffs. There was an amendment that renumbered at some point but if your Honours have a version in 1984 and could look first at the long title, you will see that the Act is identified as “An Act to Amend “The Criminal Code,” and “The Justices Acts, 1886 to 1942,” each in certain particulars in respect of, and to make further provision for, the Treatment and Punishment of Offenders convicted of Sexual Offences, and for other purposes”.

While no doubt it is the case that a substantial part of the purpose for orders made under this regime is concerned with matters of community protection, it is notable that that is not one of the things that is identified in the title to the Act.  The focus is on punishment and on treatment and one sees, in some of the provisions I will come to, thematic references back to the treatment idea.  Your Honours will also note near the start of the Act in section 2A, which was inserted shortly after the Act commenced I think in 1946, that there is a definition of the term “offence of a sexual nature” and it is defined to include:

any offence constituted wholly or partly by an act whereby the offender has exhibited a failure to exercise proper control over his sexual instincts ‑

So, one has in the definition of the “offence of  a sexual nature” term which is the criterion that brings one potentially within this regime, already a reference to this concept of “proper control over sexual instincts” but the term is “failure” rather than “incapacity” in the definition. 

Section 18 which is the provision, the validity of which is challenged in this proceeding, contains two distinct pathways, one of which has two branches and I propose to take your Honours through those briefly noting the two pathways – or the pathway and the branch that are not relevant and then focusing on the key branch of the provisions.

But if your Honours could start first at one of the pathways that is not directly in issue in this proceeding - it commences at section 18(4). This is the provision that deals with the situation where a person is already serving a sentence of imprisonment imposed upon him for an offence of a sexual nature but, unlike the provisions that your Honours will need to focus on, this provision was not limited to offences committed against a child.

This section provides – subsection (4) is a different gateway back to the same power that was exercised in this case being the power under 18(3) that I will come to in a moment.  So we submit that because it takes one to the same place, it is worth your Honours considering what light it might shed on the proper construction of 18(3). 

One of the things, in our submission, that is obvious is that when an order is made pursuant to the 18(4) pathway the indefinite detention that might follow clearly is not a sentence.  It is clearly operating in addition and separately to the sentence that was imposed in respect of the crime that caused the person to be in detention and thus to be susceptible to the possible exercise of power under 18(4). 

Some of the differences between this pathway and the main pathway that will concern your Honours is that here it is provided that the power is available only where there are two medical practitioners, one of whom is required to be specially qualified in psychiatry ‑ your Honours will not find that requirement in the provision that we come to shortly.  As I have already mentioned, the section is not limited to offences against children and, most importantly, looking here at (i), (ii) and (iii) within 18(4), the power is available not only in circumstances where the offender:

Is incapable of exercising proper control over his sexual instincts –

but also there are additional criteria.  One, that the –

incapacity is capable of being cured by continued treatment; and

That for the purposes of such treatment it is desirable that such person be detained in an institution after the expiration of his [or her] sentence ‑

We make two points about that.  One, in that provision, Parliament has recognised the possibility that a person who is presently incapable of exercising proper control over his or her sexual instincts may cease to have that incapacity as a result of treatment that might be provided within an institution.  So even if the judgment that is made at the time of the order is properly made that there is such an incapacity, that situation is potentially, at least for some categories of offender, likely to change as a result of possible treatment.

FRENCH CJ:   Now, does subsection (11) effect a carve‑out by way of a different procedure in respect of pre‑enactment convictions in relation to children?

MR DONAGHUE:   Your Honour, we have had some difficulty working out exactly how subsection (11) fits within the regime, because 18(4) does seem to be directed to the same question and to operate in wider terms than subsection (11).  It may be that we failed fully to appreciate the work that it does, but we have had some difficulty.

In addition to the parliamentary recognition that treatment may assist, the other thing that is notable about 18(4) is that this provision is not directed just to a question of community protection, because if a person is incapable of exercising proper control over their sexual instincts but is not capable of being cured, then the provision does not authorise the preventive detention of someone who is serving an existing sentence.  Even if the person does pose a danger, their susceptibility to treatment is a necessary component of the availability of the preventive sentence.

That is the provision that would operate with respect to someone who is already detained, which I have described as one of the pathways.  The other pathway starts at 18(1) and then branches either to 18(3) or to 18(6).  Focusing on 18(1), the first condition that must be satisfied before the power is available is that the person:

has been found guilty of an offence of a sexual nature –

which, as your Honours will recall, is defined to mean “a failure to exercise proper control over sexual instincts”, or to include that –

committed on upon or in relation to a child under the age of seventeen years.

One feature of this regime about which clearly no objection can be taken is that it is engaged only following a conventional exercise of judicial power to make a determination of guilt.  We, of course, accept that that is so.

It is inherent in that possibility, though, that the person who is subject to this regime is capable of being criminally responsible.  If the mental condition of the person is such that they are not guilty by reason of insanity, then this regime cannot apply to them because that finding of guilt will not have been made.  We are concerned with people who are incapable of exercising control, but still of a sufficient level of mental control so as to be capable of engaging in criminal law.  Where such a conviction has occurred, the trial judge is empowered to give a direction that two practitioners inquire into what is described in subsection (1)(a) as inquiring:

to the mental condition of the offender, and in particular whether his mental condition is such that he is incapable of exercising proper control over his sexual instincts –

The reference to “mental condition” is obviously, we submit, a wider inquiry than the question of incapacity to exercise proper control, and the reason for that wider inquiry is because of the pathway that takes one to 18(6), which is the branch of this pathway that is not presently in issue.  The authorities suggest that the question of mental condition is not limited to whether a recognised mental illness – that it is possible for someone’s mental condition to be of the kind specified in the provision even if there is not a recognised mental illness.  The decision of the South Australian Full Court in R v Kiltie (1986) 41 SASR 52 is authority for that, but I will not take your Honours to it.

Having been directed by the trial judge to undertake this inquiry into mental condition, your Honours will note that the specified medical practitioners do not have to include a specialist in psychiatry. The question of whether such a specialist is represented turns not on the question of whether that expertise is needed to make the predictive judgment but whether or not there is an available psychiatrist who can participate. If there is an available psychiatrist, then one of the two medical practitioners should have that specialisation but, otherwise the section contemplates the possibility that any two medical practitioners might give the reports that condition the availability of the power. In section 18(2), you find the only requirements as to the conduct of this inquiry. It is to be by:

personal examination and observation of the offender –

and the medical practitioners are permitted to have:

reference to the depositions and such other records relating to [the offender] as they think necessary, and shall give their report on oath to the judge.

So there is sworn evidence given by the medical practitioners following this personal examination.  Again, there is authority to suggest that it is not necessary to interview the person in order to conduct a personal examination for the purpose of this provision – at least in circumstances where the offender refuses to be interviewed.  It is possible to have a report that engages the section on the authority of decisions of the Full Court of South Australia – this time in R v England.  

Your Honours, it is useful, in my submission, to illustrate the way that this works in practice because it can, we submit, be quite perfunctory, notwithstanding the extraordinary consequences that these reports are capable of having and if I could ask your Honours to turn to the special case book, to take your Honours first – and I will do this briefly – to the facts concerning Mr Radan. 

If your Honours turn to page 65 – this is in the transcript of the evidence of Dr Cameron who was one of the two medical practitioners – all of the practitioners, as it happens in these cases, were psychiatrists.  Dr Cameron was one of the psychiatrists who examined Mr Radan.  On page 65 of the special case book at about line 11, you will see that Dr Cameron saw Mr Radan only once and it is said:

For what period of time?‑‑‑I didn’t take a strict note of it, but it would have been about an hour – not long.

At the time that happened – if your Honours go back to page 57 of the book at about line 37, the trial judge asks Dr Cameron that at the time of the examination:

Were you alerted to the fact that that was the particular question that you were going to be asked?‑‑‑At the time I wasn’t.  I hadn’t access to all the brief.  At the time I saw him, examined him.

So at the time this one‑hour examination occurred, Dr Cameron did not know what the legislative criteria would be.  At page 59 of the book, line 38 – I think that reference is not correct, your Honours.  There are references in the evidence to Dr Cameron not having been aware of the criminal history, the full criminal history at the time of the examination.

CRENNAN J:   I think it is on page 65 in Mr Howell’s question.  She gives that evidence “about an hour” for the personal interview and he then puts to her that ‑ ‑ ‑

MR DONAGHUE:   Yes, thank you, your Honour, that is the reference I was looking for.

CRENNAN J:   That is the reference, yes.

MR DONAGHUE:   At page 66 at line 25, there is a question about ‑ Dr Cameron was giving evidence suggesting that there would have been proper treatment in Adelaide – that is a reference to a period of time where Mr Radan had spent one year in a South Australian psychiatric facility, but Dr Cameron then accepts that she had not checked with the South Australian authorities – had not seen the records of the year that Mr Radan had spent in a psychiatric facility in South Australia and while the other examining doctor, Dr Edwards, had attempted to get those records, he had not succeeded in getting them.

GAGELER J:   Why are we concerned with the quality of the evidence that was placed before the judge in this case?

MR DONAGHUE:   Your Honour, it does not go squarely to the question of constitutionality.  All I am seeking to do is to illustrate by reference to the facts of this case that the conditions – these medical reports, which are the essential foundation for an order for indefinite detention – are medical reports of a kind that can be made under this regime on the basis by people who are not required to be expert psychiatrists and who may make those reports on the basis of an extremely brief examination of the offender. 

Now, in and of itself, that perhaps does not take me that far, but later on in the case, if your Honours contrast this legislative regime with the regimes that apply in some other contexts, such as in a Fardon‑type context, the restrictions that the legislature had put around what has to be done before you can get to the power to detain in a preventative fashion are very much more stringent than we find in this regime, and that is all I am saying.

HAYNE J:   But are not these criticisms that you make of the evidence in this case swamped by the statutory requirement that the judge find the opinion to be proved?  These may be very sound reasons why a judge should have hesitated very long and very hard in these cases, but the statute says, does it not, the judge has to be satisfied of the truth of the opinion.

MR DONAGHUE:   It does say that.  It says the judge has to find the matters reported to be proved.  That is so.  I do not want to give your Honours the impression that our case in any way depends upon the Court accepting the criticisms I am – all I was really seeking to do is illustrate the undemanding nature of the threshold criterion, perhaps I do not need to spend any more time upon that.  In each case, each doctor examined the respective plaintiffs for about an hour, I think in one case, one of them examined him twice; once for an hour and a half, and once for half an hour, so that was the full extent of it, and without a great deal of ‑ ‑ ‑

KIEFEL J:   There were no appeals brought from the making of these orders?

MR DONAGHUE:   There was in Mr Radan’s case and the effect of that appeal was to – he had both a fixed sentence for 12 years and then the indefinite detention order.  The fixed sentence of 12 years was reduced to three, but the court left in place the indefinite detention order.

BELL J: The focus of that appeal was to the sentences imposed for the offences, it being contended that when an order is made under section 18, proper principle dictates that the sentences for the substantive offences are less than would otherwise apply.

MR DONAGHUE:   That is correct.  That was the essential basis for the reduction of the 12 to three.  Interestingly – I will come to this a little later – but there are decisions of this Court, McGarry and Strong amongst them, which would suggest that when the underlying – when the nominal or fixed sentence is varied then the sentencing discretion falls to be re‑exercised by the appellate court and that therefore there should have been, rather than a question of error with the original indefinite detention sentence, there should have been a re‑exercise of that function which might suggest that what happened in the Court of Appeal was not correct, but that is not before your Honours now.

KIEFEL J:   But was it any part of Mr Radan’s appeal that the exercise of discretion miscarried here because of aspects of the preventive detention order?

MR DONAGHUE:   I do not believe the record reveals the answer to that question.

KIEFEL J:   The reason I ask you is that your submissions suggest that we are not so much in Kable territory, except perhaps in one element, as we are in the territory of the invalidity being tested by reference to the Executive performing matters which are a judicial function.

MR DONAGHUE:   Yes, well we will submit that that is one limb – the Kable territory covers a number of different kinds of way in which the institutional integrity of a court might be undermined and that one ‑ ‑ ‑

KIEFEL J:   Separation of powers issues?

MR DONAGHUE:   Of certain kinds.  I do not suggest that there is a congruence between Chapter III separation of powers and the restrictions on State courts but one limb of our argument is that a wholesale delegation of punishment to the Executive does cross the line and I will develop that, if I might.

KIEFEL J:   When you do, I am interested in this – in your submissions you say that there was a delegation by the order.  That has to fit with the notion that there is a statutory discretion in the Court, does there not?  In the Kable sense, that is something that needs to be dealt with.

MR DONAGHUE:   Undoubtedly, and we accept that there is a statutory discretion to make these orders or not make them under subsection (3).  The objection, and I will develop it by reference to some observations your Honours have made in a couple of recent authorities, is that unlike a sentence for life imprisonment which is capable of being reduced by an exercise of Executive power whether through parole or mercy alleviating the burden of the maximum punishment that the Court has imposed to detain ‑ to order detention at His or Her Majesty’s pleasure is not to fix the penalty at all, it is to leave the question of the penalty entirely in the hands of others and that is the vice on that branch of our argument.  If I could, with your Honour’s permission, park that issue and return to it once I have dealt with the statutory framework.

KIEFEL J:   Yes, certainly.

MR DONAGHUE: Your Honours, can I just deal, to really clear it away, with the other branch of section 18 that is not engaged here, which is provided for in subsection 18(6). One comes to section 18(6) if the medical practitioners who conduct the examination under 18(1) and (2) reach the conclusion that the person is not incapable ‑ that is the double negative ‑ of controlling their sexual instincts. So this is a person who, on the medical examination, is capable of controlling their sexual instincts. Such a person might, nevertheless, be subjected to the regime created by section 18 if that person’s:

mental condition is subnormal to such a degree that he requires care, supervision and control in an institution either in his own interests or for the protection of others, and the judge after considering the report and any evidence submitted in rebuttal thereof is of opinion that the offender requires such care, supervision, and control –

Now, can I make a couple of points about that section?  First, if your Honours focus on the first couple of lines of subsection (6) the drafting is difficult but the preconditions appear to be for the balance of the operation of the subsection either that there be a report to the judge, to the particular effect, or in the case under subsection (4) which is the case of the person who is already in detention that the judge has formed an opinion.  There seems to be a difference in the jurisdictional fact that takes one into the balance of the section.  That difference is not found in subsection (3) so I just ask your Honours to note the contrast.

Probably, as Justice Hayne put to me a few moments ago, the better view of section 3 is that it does turn upon the judge forming an opinion about the matters specified in the reports but it does not say so in terms, unlike the opening words of subsection (6), so that is just another anomaly in the way that these provisions work.

Further down, the judge is again required to form an opinion and the opinion is not an opinion that the person is subnormal to such a degree but an opinion that the person requires care, supervision and control.  Having formed that opinion, there is then a difference in the powers that are available.  The judge can direct under (a) either detention for a specified period or detention during Her Majesty’s pleasure. 

That option of a specified period is again not available under the other branch that is the focus here and, at the very end of subsection (6), your Honours will see the criteria that are to be applied in determining whether or not a person who is detained at Her Majesty’s pleasure under this provision is to be released and again there is a difference.  The criteria – these are the very last words of the section - turn upon whether or not:

the Governor in Council is satisfied, on the report of two legally qualified medical practitioners . . . that [the person] is fit to be at liberty.

So there is a fitness criteria applied there which your Honours will note is not to be found under the main pathway.  But having cleared away the parts of the section that are not relevant, can I ask your Honours now to turn to subsection (3)(a) which is the key provision, subsection (3)(a) and its relationship with subsection (5). 

There are, we submit, a number of important questions of statutory construction that arise in relation to (3)(a).  We identify four:  the nature of the jurisdictional fact that must exist before the power is enlivened; the content of the threshold test; the limits of the discretion when it does arise and the question whether or not an order under this section is part of the sentence or a separate function, and if I take those four questions in turn.

In relation to the question of the jurisdictional fact, if one looks just at the first couple of lines of the subsection, the appearance is that the section is engaged where there is in existence a report of the medical practitioners, so the plural is used for practitioners.  It suggests that they need to be unanimous, report to the judge that the offender is incapable and if one just left if there then, in our submission, there would not be any criteria that the judge form that same view.  Having said that, at the end of subsection (3)(a) it is specified that:

no such order shall be made unless the judge shall consider the matters reported to be proved.

That does tend to suggest that the judge is required him or herself to be satisfied of the matters that are the subject of the report ‑ ‑ ‑

FRENCH CJ:   Now, what are the matters proved?  Are they the conclusions of fact, often in the form of an opinion by the medical practitioners as to capacity to control, et cetera?

MR DONAGHUE:   Well, that is part of the difficulty, your Honour, is that the medical practitioners are reporting a conclusion at the end of the day that is based upon both their examination and their assessment of the depositions in the case.  One might say, as in an ordinary expert evidence matter, that what should be proved is the evidence upon which the opinion is based but the section is unhelpful in identifying whether what that means is the judge has to find that the opinion is correct as a matter of fact.

FRENCH CJ:   How does this process engage, if it all, with the rules of evidence?

MR DONAGHUE:   Your Honour, there is nothing that deals with that question, so probably they apply, one would think, at least in the same way as they would apply in the case of sentencing.  I identified one of the questions as being “is this part of the sentence or not”.  If it is regarded as part of the sentencing process, then this Court’s decision in Olbrich would suggest that matters of fact that are relevant to sentencing adverse to an offender need to be proved beyond a reasonable doubt, so if it is part of the sentencing process one would think that when that section says the matters must be proved, it means, in a criminal sentencing context, must be proved beyond a reasonable doubt.

FRENCH CJ:   Medical practitioners can have regard to the depositions under subsection (2).

MR DONAGHUE:   Yes.

FRENCH CJ:   That means pre‑trial depositions.

MR DONAGHUE:   Yes, and that is expressly so provided, but there is not any general dispensation from the rules of evidence.  Our friends, as we understand the case against us, say, yes, this should be reviewed as part of the sentencing process but we can nevertheless establish the matters on the balance of probabilities and, in our submission, there is a tension there.

HAYNE J:   Does 18(3) proceed from the unstated premise that capacity to control over – the offender’s capacity to exercise proper control over his sexual instincts is a question of fact capable of objective determination?

MR DONAGHUE:   It may, your Honour.  It may be that ‑ ‑ ‑

HAYNE J:   Given the time at which this legislation was enacted, would it be an available construction of 18(3) that the Act is proceeding on a premise of that kind?

MR DONAGHUE:   Your Honour, I do not think you have been given the second reading speech or debates but they acknowledge a wide divergence of views within the Queensland Parliament about the matter that your Honour is asking me about.  So there are some people who clearly would have taken the view that your Honour just put to me, there were others who would not, and thus it is difficult to answer the question objectively what the Parliament’s intention was in that respect.  But it does, I accept, seem to proceed upon the footing that this is a matter – well, the matters subject of the report are proved.  It does seem an available construction of the provision that that means the conclusion is proved.

BELL J:   That must follow, must it not, from the fact that not only can the opinion of the medical practitioners be tested in cross‑examination – after all, perhaps they might resile from their opinion – but evidence can be called in rebuttal.  Now, in the event that evidence is called in rebuttal that is a matter that falls to the judge to determine whether the judge is satisfied that the opinion is proved.

MR DONAGHUE:   Yes.

BELL J:   It is very difficult to see another way of ‑ ‑ ‑

MR DONAGHUE:   I think that must be right.

HAYNE J:   Because behind the question lies the further question of what, if anything, is one to make of that construction if – and it is a very large “if” - that legislative presupposition is now to be regarded as open to challenge, or doubtful, or does the Act change over time, what happens?

MR DONAGHUE:   Well, indeed.  One would think that a court now confronted with this legislation with all of its historical anachronisms is nevertheless called upon, if it is valid, to try to give it a workable meaning and one of our complaints is that that is an extremely difficult thing to do, in part for the reasons your Honour has just put to me, but also because if the question was just is this offender incapable of exercising control over his or her sexual instincts then one might more readily see how a medical opinion not least on one world view could go to that question, but that is not the question.  The question is one of proper control which starts to overlay ‑ ‑ ‑

HAYNE J:   There is value judgment in there.

MR DONAGHUE:   A value judgment which makes it difficult to see how as a matter of fact, objective fact, the conclusion can be proved one way or the other.

CRENNAN J:   Is not the predicate that persons have the capacity sometimes described as a will to control sexual instincts?  It does not seem, I am bound to say, all that different although the language is obviously the language of a different decade, but if you take what needed to be required in Fardon it was an unacceptable risk that the prisoner will commit a serious sexual offence.  That was found to be sufficiently precise to engage an exercise of judicial power and in a sense this locution is meant to cover the same idea, is it not?

MR DONAGHUE:   It is possible that it is meant to, your Honour, but the difficulty is that it really does not in the way that the tests have been described, because there is nothing about this regime, at least in its express terms, that requires either the medical practitioners or the court to engage in a predictive task of any kind.  The question is not, “Is this offender going to, whether probably or likely to, commit an offence?” and then if it were to be that question, an offence of a serious kind or any offence of a sexual kind.  Those are the kinds of thresholds that one usually finds in modern legislation.  Here, you are asking just a present question about persons’ capacities to control themselves.

CRENNAN J:   The question appeared to be meaningful to the four psychiatrists in 1984, though.

MR DONAGHUE:   Your Honour, can I take that up because it is – and again, I do not want to drag your Honours too much into the facts – but, in fact, one of the psychiatrists who examined Mr Radan started by saying he thought he did have a capacity to exercise proper control, and the judge effectively said no, it all depends on what you mean by “proper”, which is really a matter for me, and effectively cross‑examined the expert into expressing an opinion that there was an absence of capacity to exercise proper control, which is part of why we submit that the thresholds that this Act creates are not of a workable kind.

HAYNE J:   That brings to the fore the critical point in the argument.  Saying that this is hard to construe is interesting but irrelevant.  It is going to be given a construction.  What is the construction that you urge which you say leads to the conclusion of invalidity?  Simply saying “gee, this is hard” does not get us anywhere.

MR DONAGHUE:   Your Honour, I accept that.  This is a problem that has come up in various regimes of this kind, including the Moffatt regime that your Honour examined in the Victorian courts.  I accept that just saying it is hard does not get me anywhere.  What I am seeking to do is to demonstrate this point, that the criteria that empower the court to make this order are criteria that depart a very long way from the criteria that have previously been accepted in cases like Fardon, which involve, while not depending on a finding of guilt, a prediction to a high level of certainty that there is a high risk that the person will commit a serious offence.

KIEFEL J:   Is that not exactly the question that is being posed for the court under subsection (3)(a), that is, that there is an extremely high level of risk that this person will reoffend in an offence of a sexual nature?  It is just in terms of language that is to be answered by reference to whether or not the person is able to exercise control.  That might be the language of another day, as Justice Crennan has pointed out, but the question for the court is really the same, is it not?  It is a question that the courts have been in this area concerned with for a very long time, the likelihood of reoffence.

MR DONAGHUE:   We submit it is different in a couple of ways, your Honour.  One, it is different because it is asking a question at the present day as opposed to at the point when the risk of offending may arise.  In the case of some of these offenders, that is a very real difference, because in Mr Pollentine’s case, for example, one would expect his offences would have resulted had there been a nominal sentence fixed in a lengthy nominal sentence.

KIEFEL J:   Yes, but you cannot read this alone – this is in subsection (3)(a), and that predictive element for the purpose of the judge’s order is in a regime in which it is expected that there is going to be an examination every three months.

MR DONAGHUE:   Yes, there is an examination every three months by one person who may or may not be a psychiatrist, which may or may not ever lead to a consideration of release but, if I can come back to that point, our point is that whether or not the future medical practitioners think that there is a risk, at the time of the making of this order there is no forward looking inquiry, there is just an inquiry as to now ‑ ‑ ‑

HAYNE J:   Why not?  Why is there nothing forward about asking about incapacity?  Why is that not predicting what – not, has he in the past been incapable, but is he now incapable, that is, tomorrow, what is he going to do?

MR DONAGHUE:   Well, perhaps tomorrow – today, tomorrow – he is present in capacity, but as Parliament acknowledged in subsection (4), that may change, because at least some people who are incapable will be treated, will be able to be treated in prison and so the conclusion that we reach now may say nothing about the risk of reoffending at the time that release would otherwise be possible.

FRENCH CJ:   Do you accept that there may be, consistent with a finding that the matters reported on are proved for the purpose of subsection (3), different levels of risk which may inform the judge’s discretion on whether or not to make an order?

MR DONAGHUE:   Yes, I do accept that, but there would also, we submit, be a very wide range of possible offences, even if one says that there is a correlation between – I will start that again.  There is not a perfect correlation between incapacity to control sexual instincts and propensity to commit a criminal offence because it depends whether the sexual instincts are sexual instincts of a kind that would prompt someone to engage in activities of a kind that are unlawful. 

But, even assuming that they are, for the purpose of this offence – say, for example, a person’s sexual instincts predispose them towards exhibitionism, that might be unlawful, they might be committing offences, but not offences of a kind that pose the level of danger to society of the kind that Parliament, certainly in the Fardon‑type regime that the Court emphasised, not only is there a high risk of the offence occurring but it is a serious offence if it does.  This regime does not ask that question.  It does not require the practitioners or the judge to ask that question.

BELL J:   Does not this regime ask that very question by providing a mechanism for a magistrate dealing with a summary offence to refer the matter to the Supreme Court for consideration of the making of orders of this kind so that if a person has an inability to control exhibitionism and that person has been convicted before a magistrate of exposing themselves in circumstances where the facts disclose a child was present, under this regime, under 18(1)(b), they might be the subject of a referral, might they not?

MR DONAGHUE: They might.  They might then be the subject of an order.

BELL J:   Yes.

MR DONAGHUE:   They might then be detained for 30 years.

BELL J:   Exactly, yes.

MR DONAGHUE:   Because they are incapable of controlling that instinct.  I entirely accept the regime could operate in that way.  Our point is that a regime that operates in that way is a regime that is of an entirely different kind from the regimes that have been upheld which focus upon whether a person represents an unacceptable risk of committing a serious offence.  That has been what Parliament has required as a precondition or a threshold for preventive detention because – and I will develop this at the last part of our argument – this Court has long acknowledged that the detention of a citizen in custody is ordinarily permissible only as an adjunct to a finding of criminal guilt.  An indefinite detention not proportionate to the offence that has been committed cannot, in our submission, be characterised in that way.

So, while Fardon accepts that there is an area beyond punishment for the commission of a crime it is an area that, in our submission, is narrowly conscribed and this regime does not contain the narrow conscription necessary to keep the regime within the validity.  

HAYNE J:   Let me just understand the precise content of that proposition.  Take the exhibitionist case that has been discussed.  Either the Act would permit the making of an order in such a case or it would not, that is, on its true construction the Act would make that disposition either available or not available according to the construction.

MR DONAGHUE:   Yes.

HAYNE J:   If on its true construction the Act provides that that is an available disposition, why it is beyond power of a State Parliament to provide that persons medically assessed to have this characteristic shall be detained indefinitely?  That may be a question about which there might be a real and lively debate about the sensibility of the policy and the like but why is it outside power?

MR DONAGHUE:   To provide that the court might be involved in their indefinite detention.

HAYNE J:   Just so that persons medically assessed to be incapable of controlling exhibitionist tendencies shall be detained indefinitely.  As a question of policy, one may be repelled by it.

MR DONAGHUE:   I appreciate the distinction, your Honour, and really this first part of my submissions is designed to do two things.  One is to establish, as a matter of construction, that the Act can operate in the way that your Honour just put to me because that is the foundation for our constitutional challenge.  The other part of the construction submissions that I have not put yet is to show the disconnect between that conclusion that the Court might reach based on the medical opinions that the person presents a risk of offending in a sexual way and the proposition that at the back end of that process, where the Governor in Council comes to consider whether or not a person should be released, they do not have to ask that question at all.

So that even if the person is clearly not any longer incapable of controlling his or her sexual tendencies the regime would permit the Governor in Council to leave the person detained and if they do leave them detained to say, correctly, the legal source of authority for that detention is the order of the court.  So the order of the court gives cover to a decision that is in fact not based upon the factual circumstances that caused the court to put the person in detention in the first place.  That is a Mistretta‑type argument that, in effect, says that the court order becomes a factum upon which this unconstrained executive power of detention is able to be exercised.

KIEFEL J: May I interrupt you with a structural inquiry about the argument? I know we are not concerned so much with the remedy here because it is an answer to a question that is sought, but the focus in the plaintiff’s argument is so much upon the order made and testing invalidity of section 18 by reference to the order and its effects and the position of the court in making it. It raises the question, does it not, whether or not we – the Court is to approach the question of invalidity by reference to section 18 frozen in time at the point that the order is made which may have been relevant to the question of the validity of the order of the court and whether or not it should have been overturned or should we now look at section 18 in the wider scheme which involves Part 3A and assess section 18 for invalidity today.

Now, normally the answer to that question would be found in whether or not there was an appeal from the original order of the court which, we know, is not before this Court or there would have been some challenge to a process which could have occurred under this legislation such as a demand for the examinations which have not been had combined with an application for parole and judicial review. That would have told us which territory we are in but it just seems to me a rather abstract notion that we are asked to construe section 18 for invalidity just by reference to the making of the order and there seems to be a denial of the context in which section 18 is now placed.

MR DONAGHUE: Your Honour, the reason that we have done that is that if section 18 was invalid in 1984 then there is no order that is capable of having ‑ ‑ ‑

KIEFEL J: That is exactly my point. The question for us is not the validity of the order. We would be expressing an opinion as to – or making a declaration, effectively, answering a question as to the validity of section 18 today. So when you talk about indefinite detention of the Executive, indefinite detention – we have got section – we have got the Executive not being permitted under one aspect of section 18 to permit his release except on certain conditions. We also have the order now and his detention being part of a parole regime which must be read together.

MR DONAGHUE:   Certainly, if the matter before your Honours was framed more by way of judicial review and looking at some of those matters then one would expect that you would look at the Act as it applies to him now, but we submit that the only source of current legal authority for the detention of either plaintiff is the Act that occurred 30 years ago.  It is not anything that has happened since because all that has happened since is people have refused to release both plaintiffs.  There has been a failure to exercise any power but the only affirmative thing that ever happened that provided the legal source of authority to detain is the thing that happened back in 1984.

KIEFEL J:   But a critical element of your argument has to be that the Executive may, as a result of the order, then and now indefinitely detain on this particular condition and it is just not true any more because of the change in the regime.

MR DONAGHUE:   Well, we submit it is still true because there is still (5)(b).  It is still part of the legislative regime which is the provision that permits ‑ ‑ ‑

KIEFEL J:   But do you not have to deal with that read with Part 3A now and it being a later provision and it being detention of a person now being expressly subject to the regime of parole.

MR DONAGHUE:   Well, there is now a capacity – as we understand the regime, there was, as enacted, a capacity to release people or not by the Executive without any capacity to superimpose conditions or other ‑ ‑ ‑

KIEFEL J: I am sorry, I should be more specific. Section 18B, at least at the starting point, says that a person detained:

instead of being detained at Her Majesty’s pleasure, the detainee were a prisoner serving a term of life imprisonment –

for the purpose of the Corrective Services Act.

MR DONAGHUE:   Yes, there is a statutory deeming.  So the person is still detained at Her Majesty’s pleasure but for the purposes of the parole provisions one can assume or treat the person as if they were a person who was serving a life sentence.

HAYNE J:   In which event if the parole provisions are engaged they are at liberty and serving that sentence at large in the community.  They are still subject to sentence.

MR DONAGHUE:   They are still subject to sentence.

HAYNE J:   Your complaint I think has to be that in the nature of – let us leave aside whether this is sentence or order or what it is, but that they are still subject to order at the discretion of the Executive I think is the way you have to frame it.

MR DONAGHUE:   Yes, that is right.  That is correct, your Honour, and they are still ‑ ‑ ‑

HAYNE J:   The bare fact of release is never determinative of whether the sentence has come to an end.  Lifers are always subject to sentence.

MR DONAGHUE:   Lifers are, but people who are detained at Her Majesty’s pleasure are not, and that is part of the point with our delegation argument is that this sentence ends when the Executive says that it ends.  In Mr Pollentine’s case, notwithstanding the very serious offences that he committed, no court ever said this is the punishment that you should serve for those offences.  If the Executive had chosen to release him within a shorter period of time, then that would have been proper because the decision was left entirely in their hands. 

So that is the distinction we draw between lifers, but I embrace what your Honour says as to our approach to the parole regime. But we also do submit that it would analytically be – it is difficult to see analytically how the enactment of that parole regime a long time after both plaintiffs had been detained by force of the order under section 18, could mean that an order that would have been invalid for that period of time somehow became valid because the regime became less objectionable than it had been prior to the grafting on of that parole provision.

So that is why we have focused back in time because ultimately from the perspective of both plaintiffs they say that the regime is invalid but that matters to them because it would inevitably have the consequence that the orders are invalid.

FRENCH CJ:   Just in terms of the interaction between Part 3A and Part 3, does 18H have the effect of if and when released upon parole under Part 3A, the possibility of unconditional release is extinguished?

MR DONAGHUE:   That seems to be so, your Honour, yes, because the possibility of unconditional release arises only from 18(5)(b).

FRENCH CJ:   They are then taken out of any release regime under Part 3.

MR DONAGHUE:   Yes, so you become effectively therefore, perhaps equivalent to, for all purposes, a person who was serving a life sentence, which is what you have been deemed to be by the earlier provision.

FRENCH CJ:   Presumably, parole can be cancelled.  What happens then?

HAYNE J:   A come hither is issued, is it not, and you are returned to custody, as would be the case with cancellation of any parole.

MR DONAGHUE:   Perhaps, then, not being a person who would ‑ ‑ ‑

FRENCH CJ:   Well, that is the question.  Does Part 3 then re‑engage?

MR DONAGHUE:   Does Part 3 then – yes.

HAYNE J:   Now, you speak of the orders under which these men are detained.  The orders in respect of one of them are the orders of a District Court, are they not?

MR DONAGHUE:   Both, your Honour.

HAYNE J:   Both?

MR DONAGHUE:   Yes.

HAYNE J:   One went on appeal to the CCA, which ‑ ‑ ‑

MR DONAGHUE:   Left it there, your ‑ ‑ ‑

HAYNE J:   ‑ ‑ ‑well, allowed the appeal, did it.  Is it its order which is the warrant, or is it the warrant of the District Court judge?

MR DONAGHUE:   I think, your Honour, that what the Court of Appeal said was that it was not disturbing what had been done by the District Court judge and this is why I said before that one might doubt the appropriateness of that, having regard to what this Court said about how that exercise should be undertaken.  But, as we understand it, it is, in both cases, the order of the District Court judge.

CRENNAN J:   It was varied, I think, on appeal.

MR DONAGHUE:   Well, the sentence was varied on appeal but the – it was, yes, varied so that it commenced - your Honour is quite right.  It was varied so that it commenced after the three year sentence instead of after the 12 year.

HAYNE J:   Which rather makes it the Supreme Court’s order, does it not?

MR DONAGHUE:   Yes, that might be so, your Honour.

HAYNE J:   That then runs into the difficulties of orders of the court of record, superior court of record.

MR DONAGHUE:   Valid, until set aside, but would be set aside, we submit, if made pursuant to a statute that was not valid.

GAGELER J:   In these proceedings?

MR DONAGHUE:   No.  Well, not as these proceedings are presently framed.

GAGELER J:   These proceedings are a collateral challenge to the orders in one case of the District Court, and in the other case of the Court of Criminal Appeal, are they not?

MR DONAGHUE:   Yes.  The relief that is sought includes, in paragraphs 4 and 5, relief setting aside those orders.  But it is an unusual kind of collateral challenge, your Honour, in the sense that the consequence, we submit, would inevitably follow in the event that the constitutional proposition is correct.

GAGELER J:   There was after Kable (No 1) a Kable (No 2) where that consequence did not follow.  The inevitability of the consequence is not beyond argument, Mr Donaghue.

MR DONAGHUE:   No.

GAGELER J:   While I have you interrupted, do we read question 1, page 22 of the special case book, which is cast in the present tense as really a question directed to the position in 1984, of your argument?

MR DONAGHUE:   In our submission, yes.  I had not understood that to ‑ ‑ ‑

HAYNE J:   It is now because it was then.  It is now invalid because it was then.

MR DONAGHUE:   Yes, it has always been invalid, in our submission.  It was invalid from the moment it was enacted.  Bits that have been sought to be grafted onto it have not been successfully grafted onto it.  Your Honours, can I briefly make – I do not want to dwell too much longer on the statutory construction issues, but there are a number of other points I do need to make.  First, with respect to the question of discretion, your Honours have asked me do we accept that there is a discretion here, and we do.  In the event that the jurisdictional facts, whatever precisely they might be found to be as a matter of construction, exist, then the court is given a discretionary power to order detention at Her Majesty’s pleasure.  We submit that the decisions of this Court in Chester v The Queen and Buckley v The Queen provide useful guidance as to the limits on that discretion.  In both cases, they indicate that the discretion put properly and lawfully be exercised only in an exceptional case.

Can I take your Honours briefly to both of those cases ‑ Chester v The Queen (1988) 165 CLR 611. Your Honours can see the terms of the provision that was in issue set out in the middle of page 616 of the report; section 662 of the Criminal Code (WA). It is a provision that did not in its terms fetter the circumstances in which an order could permissibly be made to an exceptional or extreme case, just as section 18(3)(a) does not contain such a restriction. There was under that regime a requirement for, as is referred to in the middle of page 617, a requirement for the parole board to furnish written reports every year to the Minister. Then looking at 618 in the joint judgment of five members of the Court, there is a reference from the top of the first full paragraph at about point 2 to the foundations for the argument that had been advanced that this was a section designed to protect the public. Then about seven or eight lines into that paragraph, the Court says:

However, these elements are a slender foundation for the proposition that the court should exercise the power to direct detention of a person who has a propensity to commit serious crimes not amounting to crimes of violence.  After all it is now firmly established that our common law does not sanction preventive detention.  The fundamental principle of proportionality does not permit the increase of a sentence of imprisonment beyond what is proportional to the crime merely for the purpose of extending the protection of society from the recidivism –

citing Veen and Veen [No 2] –

In the light of this background of settled fundamental legal principle, the power to direct or sentence to detention contained in s. 662 should be confined to very exceptional cases where the exercise of the power is demonstrably necessary to protect society from physical harm. The extension of a sentence of imprisonment which would violate the principle of proportionality can scarcely be justified on the ground that it is necessary to protect society from crime which is serious but non‑violent.

So the Court is, in our submission, construing apparently broad power, in some respects analogous to section 18, as properly applying only in respect of the exceptional or very serious case by reason of the fundamental principles of the common law concerning preventive detention and proportionality in sentencing, and one of the things that this regime does in its ‑ certainly one can go two ways in terms of where that leads us – it might either suggest if that limit is properly to be read into the section, then the section is much narrower than it appears to be and might suggest further error made in respect of the orders that were made in these individual cases.

FRENCH CJ:   That goes to the orders.

MR DONAGHUE:   That would go to the orders.

FRENCH CJ:   It does not go to the constitutional question.

MR DONAGHUE:   No.  Indeed, but one needs to know what the width of the power is in order to answer the constitutional question and our submission is that one applying this line of reasoning should reach the conclusion that there are implied limits in the ambit of the power.

CRENNAN J:   The trouble is it is a line of reason which may not be apposite when one is speaking about offences involving the sodomy of children.

MR DONAGHUE:   Your Honour, it is a line of a reasoning that has, in our submission, been deployed in cases of that kind, which is not to say that ‑ and I am thinking in particular of Buckley, which is the next case I was going to go to which is a sexual offence case ‑ ‑ ‑

BELL J:   But the particular matter that the Court was concerned with in Chester was a very broad provision relating to any conviction on indictable offence, taking into account the antecedent’s character, age, health and mental condition of the offender and the Court was drawing a distinction, one might think, between a conviction for larceny and a conviction for an offence of violence.  Perhaps sexual offences fall into another category. 

There are two difficulties.  This legislation is directed to sexual offences, and as for the suggestion reserved only to very exceptional cases in terms of offending, one has to face 18B in the circumstance that the legislature drew the line as the necessary factum, conviction for an offence of a summary kind.

FRENCH CJ:   Thank you, Mr Solicitor.  Yes, Mr Donaghue.

MR DONAGHUE:   Your Honours, a few points in reply.  First, a short point – immediately after lunch, the learned Solicitor‑General for Queensland commenced with a submission that this regime should be regarded as within one of the recognised exceptions to the Lim proposition.  In our submission, your Honours should not accept that contention, and insofar as it was said to be supported by Justice Gummow’s judgment, I would refer your Honours to paragraph 83 of that judgment without taking your Honours to it, where it seems that Justice Gummow thought that it would not fall within such an exception.  The passage is a little unclear.  His Honour said it is not suggested that it falls within such an exception, so it may be that he was referring to it not having been argued, but it appears his Honour did not think that would be so.

Turning to a question of more substance, and the question of the meaning of “expedient” in 18(5)(b), Queensland proffered what was said to be an orthodox or conventional definition and read some words to your Honours.  We submit that does not get one too far.  There are a number of dictionary defined meanings of “expedient” and in addition to those our friends gave you, it means advantageous in a general or particular sense, useful or politic, advisable on practical rather than moral grounds.  So, the word is capable of having a wide range of meanings, and the question for your Honours is what does it mean in this particular legal context.

Your Honour Justice Kiefel put to the Solicitor‑General for Queensland, or asked, does Queensland argue that the criteria line up – the criteria under 3(a) and 5(b), or is there anything beyond risk that would go into the equation and my friend said no.  Your Honours should, in our respectful submission, bear in mind in construing this regime that that position is not a position that is consistent with the approach that Queensland has taken previously to the meaning of these words. 

So, in the Pollentine cases, it was submitted on behalf of the Attorney‑General for Queensland that someone could remain detained even if they were fit for release, and it was submitted that they could remain detained on the basis of anticipated public reaction to removal.

What that illustrates, in our submission – and I should add that the learned Solicitor‑General for South Australia in O’Shea submitted in this Court in respect of a similar regime to the same effect, that public reaction fell within the scope of the discretion.  In our submission, what that illustrates is that the word is so elastic, potentially, that it embraces or leaves room for a range of possible constructions depending on the forensic purpose. 

The forensic purpose in this case, of course, is to limit the distance between those criteria because that would preserve validity.  But the difficulty is a practical one that arises for a plaintiff seeking review because if an application is made under 18(5)(b) to the Governor in Council and the Governor in Council – and that application is made on the basis of two medical reports that recommend release and the Governor in Council does not release, there is no requirement for reasons.  It may well be impossible to subpoena much of the underlying material to the extent that public interest immunity on Cabinet grounds would be involved.

In practical terms, leaving aside grounds like natural justice, it may, therefore, be very difficult to explore what meaning was given to that word - to the question of expedient for release in a judicial review context.  Judicial review is available but how far it gets you in ensuring that the Governor applies the same criteria as the court would have applied, we submit, is doubtful.

HAYNE J:   Well, is that right if you let it be assumed you have two medical opinions which, it is accepted, have gone to the Governor – both of them saying this man now presents no material risk.  Left unexplained, the decision becomes the fourth category of Avon Downs, does it not?

MR DONAGHUE:   If your Honours were to hold in this case that the criteria – that the question is directed towards protection from the public and nothing else, then that may be so although it does, perhaps, assume as, I think, your Honour put to me in my submissions in‑chief a binary universe that might not exist.  It may not be the case that the medical practitioners will say this person represents no risk.  They are more likely to say this person represents a low risk provided they continue their treatment programs and particular conditions are in place.

One then gets to the question your Honour Justice Gageler put to my friend, well, is the question of tolerance for risk necessarily the same as between the court and the Executive, or can the Executive make up its own mind as to the level of risk.  The difficulty with this regime, unlike the regimes that expressly say in terms what the test is – it is an unacceptable risk of a particular category of offence shown to a high degree of probability – this legislation gives you no guidance about that.  There is no – both the court and the Executive are left in a position where, confronted with this regime, they have to give it meaning.  But the meaning that is selected in terms of the level of risk that has to exist before the order can be made is not sufficiently constrained to ensure that there is any marrying up of the entry and exit criteria, to use that ‑ ‑ ‑

KIEFEL J:   You mean it calls out for clarification?

MR DONAGHUE:   Well, it is so vague that the idea that the two criteria marry up is not practicable in the way that the regime would be implemented, in our submission.

FRENCH CJ:   You might accept that there is the same criterion of risk assessment at entry and release, but the question of what is or is not an acceptable risk is a matter of application.

MR DONAGHUE:   If one gets to that question at all, if the tendency ‑ ‑ ‑

FRENCH CJ:   Yes.

MR DONAGHUE:   Incapacity to control tendencies takes one to that question, yes, I accept that.  It is not clear, with respect – our friends say, well, the criteria that we apply is, I think as they put it, absence of degree of control that would prevent an offence being committed, but that just pushes the problem down the line, because what does “prevent” mean?  Is that an absolute guarantee required before – or, to put it another way, does the court order indefinite detention unless it is absolutely certain that the person can control their tendencies or is there some level of possible risk of lack of control that is not sufficient to get one over the line before the order is to be made? 

The legislation provides no guidance as to that question, and so it leaves open the possibility that an order will be made with severe consequences for the liberty of the person concerned on the basis of satisfaction of a very low threshold.

Indeed, as I understood the ultimate position that the Solicitor‑General for Queensland took, it was, in effect, if there is any risk at all, then that might mean that you cannot get released under (5)(b) because parole might kick in at an earlier stage, I think was how he put it, but that is far from being in any way analogous to Fardon.  To completely reverse it because instead of it needing to be satisfied every two years that there is a high risk to justify the continued detention of someone, not for anything they have done, but for something that it is apprehended they might do, instead here, under this regime, the person remains subject to the order under (5)(b) because there is tiny risk that they might commit a future offence and that, we submit, is fundamentally inconsistent with Lim and with Fardon and the approach that they advocate.

Your Honours, finally, with respect to our friend, the learned Solicitor‑General for South Australia’s submission, your Honours will recall he submitted that this function is no part of the sentencing exercise and that is, in fact, our primary submission as well, although much of the argument has proceeded on the alternative supposition, so that the proposition that was put is that this function is something extra, not guided by sentencing principles and a different task.

If that is so, it does not serve to save the legislation because while it might suggest that there is no delegation, to use that shorthand, of the punishment function, what it means is that the court is being enlisted into a regime where, notwithstanding the propositions in Lim that detention is to be an incident except in the exceptional case to be attached to or an incident of a determination of criminal guilt, here, quite separately from a determination of criminal guilt, the court is involved in a process which gives authority to the Executive to continue a detention arrangement at pleasure and that, we submit, directly engages the Mistretta line of analysis because the Executive is able to rely upon the court to cloak what is, in

effect, a largely unfettered exercise of Executive detention.  If the Court pleases, those are our submissions.

FRENCH CJ:   Thank you, Mr Donaghue.  The Court will reserve its decision.  The Court adjourns until 10.15 tomorrow morning.

AT 3.51 PM THE MATTER WAS ADJOURNED