Pollentine v Bleijie

Case [2014] HCA 30

HIGH COURT OF AUSTRALIA

FRENCH CJ,
HAYNE, CRENNAN, KIEFEL, BELL, GAGELER AND KEANE JJ

EDWARD POLLENTINE & ANOR  PLAINTIFFS

AND

THE HONOURABLE JARROD PIETER BLEIJIE
ATTORNEY-GENERAL FOR THE STATE OF
QUEENSLAND & ORS  DEFENDANTS

Pollentine v Bleijie

[2014] HCA 30

14 August 2014

B39/2013

ORDER

The questions referred on 28 February 2014 for the consideration of the Full Court be answered as follows:

Question 1

Is s 18 of the Criminal Law Amendment Act 1945 (Qld) invalid on the ground that it is contrary to Chapter III of the Constitution, by way of infringing the principle identified in Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51, or otherwise?

Answer

No.

Question 2

Who should pay the costs of the case stated?

Answer

The plaintiffs.

Representation

S P Donaghue QC with K L Walker and R W Haddrick for the plaintiffs (instructed by Prisoners' Legal Service Inc)

P J Dunning QC, Solicitor-General of the State of Queensland with G J D del Villar and J A Kapeleris for the first and second defendants (instructed by Crown Law (Qld))

Submitting appearance for the third defendant

Interveners

M G Sexton SC, Solicitor-General for the State of New South Wales with N L Sharp for the Attorney-General for the State of New South Wales, intervening (instructed by Crown Solicitor (NSW))

M G Hinton QC, Solicitor-General for the State of South Australia with N M Schwarz for the Attorney-General for the State of South Australia, intervening (instructed by Crown Solicitor (SA))

G R Donaldson SC, Solicitor-General for the State of Western Australia with J D Berson for the Attorney-General for the State of Western Australia, intervening (instructed by State Solicitor (WA))

Notice:  This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

Pollentine v Bleijie

Constitutional law – Constitution, Ch III – Institutional integrity of State courts ­­– Section 18(1) of Criminal Law Amendment Act 1945 (Q) allowed trial judge to direct two or more medical practitioners to inquire as to mental condition of person found guilty of offence of sexual nature committed upon or in relation to child – Where medical practitioners report that offender is incapable of exercising proper control over offender's sexual instincts, s 18(3) allowed trial judge to declare offender to be so incapable and to direct offender to be detained in institution during Her Majesty's pleasure – Section 18(5) required offender to be detained and not to be released until Governor in Council satisfied on report of two legally qualified medical practitioners that it is expedient to release offender – Plaintiffs found guilty of committing sexual offences against children – Plaintiffs declared to be incapable of exercising proper control over sexual instincts – Plaintiffs detained in institution at Her Majesty's pleasure – Whether s 18 repugnant to or incompatible with institutional integrity of State courts.

Words and phrases – "during Her Majesty's pleasure", "expedient to release", "institutional integrity", "is incapable of exercising proper control…

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AGLC
Pollentine v Bleijie [2014] HCA 30
Case
[2014] HCA 30
Decision Date

CaseChat Overview and Summary

The plaintiffs, who had pleaded guilty to multiple sexual offences against children in the District Court of Queensland, were declared incapable of exercising proper control over their sexual instincts and were subsequently detained in an institution during Her Majesty's pleasure. They commenced proceedings in the original jurisdiction of the High Court of Australia, seeking a declaration that section 18 of the Criminal Law Amendment Act 1945 (Qld) was invalid. The parties agreed to state a special case to the Full Court of the High Court, posing the question of whether section 18 was invalid on the ground that it was contrary to Chapter III of the Constitution, by infringing the principle of the institutional integrity of State courts, or otherwise.

The central legal issue before the Full Court was whether section 18 of the Criminal Law Amendment Act 1945 (Qld) was invalid due to its incompatibility with Chapter III of the Australian Constitution, specifically concerning the institutional integrity of State courts. This involved considering whether the provisions of section 18, which allowed for the declaration of a person's incapacity to control their sexual instincts and directed their detention during Her Majesty's pleasure, with release determined by the Governor in Council, infringed upon the constitutional role and integrity of the judiciary. The Court also had to determine the costs of the special case.

The Court reasoned that while the plaintiffs correctly identified that decisions regarding the release of individuals detained under section 18 were made by the Executive, and not by a court, this distinction did not render the provision incompatible with the institutional integrity of State courts. The Court found that the conferral of power on the District Court to make the declarations and directions under section 18 was not shown to be repugnant to the constitutionally mandated position of State courts. Therefore, the arguments for the invalidity of section 18 failed.

The Full Court answered the first question in the special case by stating "No," meaning section 18 of the Criminal Law Amendment Act 1945 (Qld) was not invalid on the grounds raised. The Court further ordered that the plaintiffs pay the costs of the case stated, answering the second question accordingly.

Orders

Orders of the court

The questions referred on 28 February 2014 for the consideration of the Full Court be answered as follows:

Question 1

Is s 18 of the Criminal Law Amendment Act 1945 (Qld) invalid on the ground that it is contrary to Chapter III of the Constitution, by way of infringing the principle identified in Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51, or otherwise?

Answer

No.

Question 2

Who should pay the costs of the case stated?

Answer

The plaintiffs.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

FRENCH CJ, HAYNE, CRENNAN, KIEFEL, BELL AND KEANE JJ GAGELER J
It is right to say, as the plaintiffs did, that decisions about absolute or conditional release of a person detained under s 18 are made by the Executive and not by a court whereas generally similar decisions under the Dangerous Prisoners (Sexual Offenders) Act (examined in Fardon) are made by the Supreme Court. It by no means follows, however, that the provisions of s 18 are incompatible with or repugnant to the institutional integrity of the State courts. And, in the end, the plaintiffs pointed to no feature of the CLA Act, beyond those already dealt with, which they submitted had that effect. Giving the Executive the power to make decisions about absolute or conditional release of persons detained under s 18 is not shown to be incompatible with or repugnant to the institutional integrity of the State courts. Conclusion and orders For these reasons, the plaintiffs' arguments for invalidity must fail. Section 18 of the CLA Act is not repugnant to or incompatible with that institutional integrity of the State courts which bespeaks their constitutionally mandated position in the Australian legal system. The principal question stated in the special case should be answered "No". The plaintiffs should pay the costs of the special case and the second question be answered accordingly. Introduction In separate proceedings in the District Court of Queensland in 1984, each plaintiff pleaded guilty on indictment to multiple offences of a sexual nature committed on or in relation to children under the age of seventeen years. The District Court declared each plaintiff to be incapable of exercising proper control over his sexual instincts and directed that he be detained in an institution during Her Majesty's pleasure. There each plaintiff remains. In a proceeding commenced in the original jurisdiction of this Court, the plaintiffs now claim that the conferral of power on the District Court to make those declarations and directions, by s 18 of the Criminal Law Amendment Act 1945 (Q) ("the CLAA"), is and was in 1984 incompatible with the status of the District Court as a State court able to be invested with federal jurisdiction under s 77(iii) of the Constitution. A special case in that proceeding reserves a single substantive question for the consideration of the Full Court: is s 18 of the CLAA invalid? Construction Section 18 of the CLAA was modelled on s 77a of the Criminal Law Consolidation Act 1935 (SA). In terms equally applicable to s 18, Mason CJ in South Australia v O'Shea described s 77a as providing "for a regime of preventive detention by means of the imposition of an indeterminate sentence on a person who is found guilty of one of a specified class of sexual offences and is declared by the court or judge to be incapable of exercising proper control over his sexual instincts"[43]. [43](1987) 163 CLR 378 at 383; [1987] HCA 39. See also at 396. Given the nature of the plaintiffs' claim, it is sufficient to refer in detail only to those provisions of s 18 of the CLAA which bore on the declarations made and directions given in respect of the plaintiffs in the form in which those provisions stood in 1984. Conformably with the framing of the question reserved, it is convenient to refer to those provisions as they stood in 1984 using the present tense.

Ratio Decidendi

Legal Principle Established

Established by: FRENCH CJ, HAYNE, CRENNAN, KIEFEL, BELL AND KEANE JJ, GAGELER J

The plaintiffs have brought proceedings in the original jurisdiction of this Court claiming relief including a declaration that s 18 of the CLA Act is invalid and orders setting aside the District Court orders directing the indeterminate detention of the plaintiffs. The parties have joined in stating questions of law for the opinion of the Full Court. The principal question is:"Is s 18 of the Criminal Law Amendment Act 1945 (Qld) invalid on the ground that it is contrary to Chapter III of the Constitution, by way of infringing the principle identified in Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51, or otherwise?"They also ask who should pay the costs of the special case.Some preliminary considerations Two points should be made before considering the substantive issues. First, because the plaintiffs' challenge to validity fails, it will not be necessary to consider whether a decision that s 18 is invalid would permit or require the grant of relief quashing the relevant orders requiring continued detention of the plaintiffs. In particular, it will not be necessary to examine what consequences, if any, follow from Mr Radan's appeal to the Supreme Court of Queensland against sentence, or whether he is now to be regarded as detained in accordance with an order of the District Court or an order of the Supreme Court (a superior court of record[18]).[18]cf New South Wales v Kable (2013) 87 ALJR 737; 298 ALR 144; [2013] HCA 26. Second, lying behind the plaintiffs' submissions in this case can be seen two propositions, both of which were recorded by Gummow J in Fardon v Attorney‑General (Qld)[19]. One, made by Professor Norval Morris in 1951[20], is that, in the absence of legal control of punishments (especially indeterminate punishments), there is the risk of administrative arbitrariness. The other, related, point was made[21] by Sir Leon Radzinowicz in 1945, the same year the CLA Act was passed:"Unless indeterminate sentences are awarded with great care, there is a grave risk that this measure, designed to ensure the better protection of society, may become an instrument of social aggression and weaken the basic principle of individual liberty."[19](2004) 223 CLR 575 at 606-607 [62]; [2004] HCA 46.[20]Morris, The Habitual Criminal, (1951) at 22; reprinted in (1967) 13 McGill Law Journal 534 at 552.[21]"The Persistent Offender", in Radzinowicz and Turner (eds), The Modern Approach to Criminal Law, (1945) 162 at 167 (footnote omitted). This Court has said[22] that great care must be exercised in seeking and considering the making of an order for indefinite imprisonment. But it is notions of the kind identified by Professor Morris and the consequences that follow from lack of care in awarding indeterminate sentences which may be seen as animating the plaintiffs' challenge to validity. Whether, or to what extent, the CLA Act lawfully admits of "administrative arbitrariness" depends first and foremost upon its proper construction.[22]McGarry v The Queen (2001) 207 CLR 121 at 132 [29]‑[31]; [2001] HCA 62. See also Chester v The Queen (1988) 165 CLR 611; [1988] HCA 62; Lowndes v The Queen (1999) 195 CLR 665; [1999] HCA 29.Some construction questions