Question of Law Reserved (NO. 1 OF 2019) - [2019] SASCFC 149

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
Question of Law Reserved (NO. 1 OF 2019)
[2019] SASCFC 149
Judgment of The Court of Criminal Appeal
(The Honourable Justice Stanley, The Honourable Justice Nicholson and The Honourable Justice Doyle)
3 December 2019
CONSTITUTIONAL LAW - THE NON-JUDICIAL ORGANS OF GOVERNMENT - THE LEGISLATURE - LEGISLATION AND LEGISLATIVE POWERS - EXAMINATION OF VALIDITY OF LEGISLATION BY COURTS
Schedule 2 of the Sentencing Act 2017 (SA) (Sentencing Act) provides that the Director of Public Prosecutions (Director) may apply for judicial reconsideration of an order authorising the release on licence of persons subject to detention under s 23 of the Criminal Law (Sentencing) Act 1988 (SA) (repealed Act) or s 57 of the Sentencing Act.
The Director made an application under Schedule 2 of the Sentencing Act to reconsider the release on licence of Colin Humphrys (respondent), being a person whose release on licence had, before the commencement of Schedule 2, been authorised by the Supreme Court under s 24 of the repealed Act. On the hearing of the Director’s application under Schedule 2 the Court referred the following question for the consideration of the Full Court pursuant to s 49 of the Supreme Court Act 1935 (SA):
"Is Schedule 2 of the Sentencing Act 2017 invalid on the basis that it infringes the principle enunciated in Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51."
In 2006 the respondent was convicted, after a trial by jury, of five counts of unlawful sexual intercourse with a person under 17 years of age. The respondent was sentenced by a Judge of this Court to ten years imprisonment, commencing on 3 December 2003. In 2009 a Judge of this Court made an order for the respondent’s indefinite detention pursuant to s 23 of the repealed Act. On 27 March 2018 a Judge of this Court made an order pursuant to s 24 of the repealed Act authorising the release on licence of the respondent. The Director brought an appeal against that decision.
Before the Court of Criminal Appeal gave judgment on that appeal, the Parliament of South Australia enacted Schedule 2 of the Sentencing Act. Schedule 2 commenced operation on 25 June 2018. On the same date the Court of Criminal Appeal dismissed the Director’s appeal.
The respondent submits that Schedule 2 is invalid. The Director submits to the contrary. This gives rise to a question of construction.
Held, per Stanley J (Nicholson and Doyle JJ agreeing) the question reserved should be answered “No”.
Sentencing Act 2017 (SA) s 57, s 59, Schedule 2; Criminal Law (Sentencing) Act 1988 (SA) s 23, 2 24; Acts Interpretation Act 1915 (SA) s 22A(1); Statutes Amendment (Attorney-General’s Portfolio) (No. 2) Act 2017 (SA) s 9(2); Criminal Law Consolidation Act 1935 (SA) s 50, referred to.
Residual Assco Group Ltd v Spalvins (2000) 202 CLR 629; Question of Law Reserved (No 1) of 2018 [2018] SASCFC 128; HA Bachrach Pty Ltd v Queensland (1998) 195 CLR 547; Baker v The Queen (2004) 223 CLR 513; Chiro v The Queen (2017) 260 CLR 425, discussed.
R v Humphrys [2018] SASC 39; R v Humphrys [2018] SASCFC 69 ; Vella & Ors v Commissioner of Police (NSW) & Anor [2019] HCA 38; K-Generation Pty Ltd v Liquor Licensing Court (2009) 237 CLR 501; Australian Education Union v Department of Education and Children’s Services (2012) 248 CLR 1; Hoare v The Queen (1989) 167 CLR 348; Palace Gallery v Liquor and Gambling Commissioner (2014) 118 SASR 567; Knight v Victoria (2017) 261 CLR 306; Australian Education Union v Fair Work Australia (2012) 246 CLR 117, considered.

Question of Law Reserved (NO. 1 OF 2019)
[2019] SASCFC 149
Court of Criminal Appeal: Stanley, Nicholson and Doyle JJ
STANLEY J:
Introduction

Schedule 2 of the Sentencing Act 2017 (SA) (Sentencing Act) provides that the Director of Public Prosecutions (Director) may apply for judicial reconsideration of an order authorising the release on licence of persons subject to detention under s 23 of the Criminal Law (Sentencing) Act 1988 (SA) (repealed Act) or s 57 of the Sentencing Act.
The Director made an application under Schedule 2 of the Sentencing Act to reconsider the release on licence of Colin Humphrys (respondent), being a person whose release on licence had, before the commencement of Schedule 2, been authorised by the Supreme Court under s 24 of the repealed Act.[1] On the hearing of the Director’s application under Schedule 2 the Court referred the following question for the consideration of the Full Court pursuant to s 49 of the Supreme Court Act 1935 (SA):
Is Schedule 2 of the Sentencing Act 2017 invalid on the basis that it infringes the principle enunciated in Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51.
[1] R v Humphrys [2018] SASC 39
In 2006 the respondent was convicted, after a trial by jury, of five counts of unlawful sexual intercourse with a person under 17 years of age. The respondent was sentenced by a Judge of this Court to ten years imprisonment, commencing on 3 December 2003. In 2009 a Judge of this Court made an order for the respondent’s indefinite detention pursuant to s 23 of the repealed Act. On 27 March 2018 a Judge of this Court made an order pursuant to s 24 of the repealed Act authorising the release on licence of the respondent.[2] The Director brought an appeal against that decision.
[2] [2018] SASC 39.
Before the Court of Criminal Appeal gave judgment on that appeal, the Parliament of South Australia enacted Schedule 2 of the Sentencing Act. Schedule 2 commenced operation on 25 June 2018. On the same date the Court of Criminal Appeal dismissed the Director’s appeal.[3]
[3] [2018] SASCFC 69.
The respondent submits that Schedule 2 is invalid. The Director submits to the contrary. This gives rise to a question of construction.
Principles of statutory construction
The principles applicable to statutory construction were discussed in Certain Lloyds Underwriters v Cross[4] in the joint judgment of French CJ and Hayne J as follows:[5]
[4] [2012] HCA 56, (2012) 248 CLR 378.
[5] [2012] HCA 56 at [23]-[26], (2012) 248 CLR 378 at 388-390.
It is as well to begin consideration of this issue by re-stating some basic principles. It is convenient to do that by reference to the reasons of the plurality in Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue:
“This Court has stated on many occasions that the task of statutory construction must begin with a consideration of the text itself. Historical considerations and extrinsic materials cannot be relied on to displace the clear meaning of the text. The language which has actually been employed in the text of legislation is the surest guide to legislative intention. The meaning of the text may require consideration of the context, which includes the general purpose and policy of a provision, in particular the mischief it is seeking to remedy.”
The context and purpose of a provision are important to its proper construction because, as the plurality said in Project Blue Sky Inc v Australian Broadcasting Authority, “[t]he primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute” (emphasis added). That is, statutory construction requires deciding what is the legal meaning of the relevant provision “by reference to the language of the instrument viewed as a whole”, and “the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed”.
Determination of the purpose of a statute or of particular provisions in a statute may be based upon an express statement of purpose in the statute itself, inference from its text and structure and, where appropriate, reference to extrinsic materials. The purpose of a statute resides in its text and structure. Determination of a statutory purpose neither permits nor requires some search for what those who promoted or passed the legislation may have had in mind when it was enacted. It is important in this respect, as in others, to recognise that to speak of legislative “intention” is to use a metaphor. Use of that metaphor must not mislead. “[T]he duty of a court is to give the words of a statutory provision the meaning that the legislature is taken to have intended them to have” (emphasis added). And as the plurality went on to say in Project Blue Sky:
“Ordinarily, that meaning (the legal meaning) will correspond with the grammatical meaning of the provision. But not always. The context of the words, the consequences of a literal or grammatical construction, the purpose of the statute or the canons of construction may require the words of a legislative provision to be read in a way that does not correspond with the literal or grammatical meaning.”
To similar effect, the majority in Lacey v Attorney-General (Qld) said:
“Ascertainment of legislative intention is asserted as a statement of compliance with the rules of construction, common law and statutory, which have been applied to reach the preferred results and which are known to parliamentary drafters and the courts.”
(Footnote omitted.) The search for legal meaning involves application of the processes of statutory construction. The identification of statutory purpose and legislative intention is the product of those processes, not the discovery of some subjective purpose or intention.
A second and not unrelated danger that must be avoided in identifying a statute’s purpose is the making of some a priori assumption about its purpose. The purpose of legislation must be derived from what the legislation says, and not from any assumption about the desired or desirable reach or operation of the relevant provisions. As Spigelman CJ, writing extra-curially, correctly said:
“Real issues of judicial legitimacy can be raised by judges determining the purpose or purposes of Parliamentary legislation. It is all too easy for the identification of purpose to be driven by what the particular judge regards as the desirable result in a specific case.”
(Emphasis added.) And as the plurality said in Australian Education Union v Department of Education and Children’s Services:
“In construing a statute it is not for a court to construct its own idea of a desirable policy, impute it to the legislature, and then characterise it as a statutory purpose.”
(Footnote omitted.)
[Footnotes omitted.]
In the context of answering the question reserved to the Court it is also important to bear in mind the provisions of s 22A(1) of the Acts Interpretation Act 1915 (SA) that provide that an enactment and every provision of an enactment is to be construed so as not to exceed the legislative power of the State. The rule of construction is that the legislature intends “to enact legislation that is valid and not legislation that is invalid”.[6] An enactment that exceeds the legislative power of the State is nevertheless a valid enactment to the extent to which it does not exceed that power.[7]
The Kable principle
[6] Residual Assco Group Ltd v Spalvins [2000] HCA 33 at [28], (2000) 202 CLR 629 at 644.
[7] Acts Interpretation Act 1915 (SA) s 22A(2).
The Kable principle has recently been explained by Hinton J, with whom Lovell J agreed, in Question of Law Reserved (No 1) of 2018,[8] in the following terms:[9]
[8] [2018] SASCFC 128.
[9] [2018] SASCFC 128 at [55]-[63].
The constitutional principle enunciated in Kable has undergone considerable refinement since that case was decided. In Attorney-General (NT) v Emmerson (Emmerson) the joint reasons conveniently stated the principle as follows:
The principle for which Kable stands is that because the Constitution establishes an integrated court system, and contemplates the exercise of federal jurisdiction by State Supreme Courts, State legislation which purports to confer upon such a court a power or function which substantially impairs the court’s institutional integrity, and which is therefore incompatible with that court’s role as a repository of federal jurisdiction, is constitutionally invalid.
[footnotes omitted]
Kable was a case concerning the institutional integrity of the Supreme Court of New South Wales, hence the principle as stated in the passage reproduced above is stated in terms of its application to State Supreme Courts. The principle applies, however, to all courts of the States.
The limitation on State legislative power for which the Kable principle stands arises in the first place because the legislative power conferred by the constitutions of each State, which since federation have owed their existence to s 106 of the Constitution, is expressed by s 106 to be subject to the Constitution and by s 107 to be reduced to the extent of any withdrawal effected by the Constitution. In the second place, because s 77(iii) of the Constitution empowers the Federal Parliament to invest “any court of a State with federal jurisdiction”, it mandates that such body answer the constitutional description, a court of a State. The consequence of this is that a State legislature cannot confer on a court to which s 77(iii) applies a function that is incompatible with, or repugnant to, the role that s 77(iii) contemplates for such a court. Put slightly differently, the courts of the States in which the Federal Parliament may invest federal jurisdiction must at all times be “courts” within the meaning of s 77(iii). In the third place, s 77(iii) contemplates that in the exercise of the judicial power of the Commonwealth no different grade of justice is administered as between federal courts and the courts of the States.
The limitation on State legislative power must, however, accommodate the fact that the separation of powers does not apply in the states. It is not the case then that a court of a State in which the judicial power of the Commonwealth may be invested must mirror in every respect a court created under Ch III of the Constitution. Chapter III creates an integrated national court system, not a uniform national court system. Accepting this, it follows that despite the fact that courts created under Ch III and the courts of the States may exercise the judicial power of the Commonwealth and that, in that regard, in the exercise of federal judicial power no different grade in the administration of justice is contemplated, the courts of the States are nonetheless different creatures which may perform functions that Ch III denies federal courts. Consequently, the conferral of a non‑judicial function upon a court of a State will not of itself be enough to trigger the Kable principle. That said, “though the existence of State courts depends on State law, and they remain State courts when co-opted into the federal Judicature, so that the Commonwealth Parliament must take such courts as it finds them”, and though the courts of the States may be invested with non-judicial functions, the Kable principle emphasises that the Constitution nonetheless insists that whatever function is conferred upon a court of a State by State legislation, or howsoever the court is structured, it must not lose its essential character as a court, fit to exercise the judicial power of the Commonwealth. In Forge v Australian Securities and Investments Commission Gummow, Hayne and Crennan JJ explained:
… as is recognised in Kable, Fardon v Attorney-General (Qld) and North Australian Aboriginal Legal Aid Service Inc v Bradley, the relevant principle is one which hinges upon maintenance of the defining characteristics of a “court”, or in cases concerning a Supreme Court, the defining characteristics of a State Supreme Court. It is to those characteristics that the reference to “institutional integrity” alludes. That is, if the institutional integrity of a court is distorted, it is because the body no longer exhibits in some relevant respect those defining characteristics which mark a court apart from other decision-making bodies.
[footnotes omitted]
The defining characteristics of a court are not susceptible of exhaustive statement. In Condon v Pompano Pty Ltd French CJ said:
The “institutional integrity” of a court is said to be distorted if it no longer exhibits in some relevant aspect the defining characteristics which mark a court apart from other decision-making bodies. The defining characteristics of courts include:
•      the reality and appearance of decisional independence and impartiality;
•      the application of procedural fairness;
•      adherence as a general rule to the open court principle;
•      the provision of reasons for the courts’ decisions.
Those characteristics are not exhaustive. As Gummow, Hayne and Crennan JJ said in Forge v Australian Securities and Investments Commission:
“It is neither possible nor profitable to attempt to make some single all-embracing statement of the defining characteristics of a court. The cases concerning identification of judicial power reveal why that is so.”
The defining or essential characteristics of courts are not attributes plucked from a platonic universe of ideal forms. They are used to describe limits, deriving from Ch III of the Constitution, upon the functions which legislatures may confer upon State courts and the commands to which they may subject them. Those limits are rooted in the text and structure of the Constitution informed by the common law, which carries with it historically developed concepts of courts and the judicial function. Historically evolved as they are and requiring application in the real world, the defining characteristics of courts are not and cannot be absolutes. Decisional independence operates within the framework of the rule of law and not outside it. Procedural fairness, manifested in the requirements that the court be and appear to be impartial and that parties be heard by the court, is defined by practical judgments about its content and application which may vary according to the circumstances. Both the open court principle and the hearing rule may be qualified by public interest considerations such as the protection of sensitive information and the identities of vulnerable witnesses, including informants in criminal matters.
[footnotes omitted]
In North Australian Aboriginal Justice Agency Ltd v Northern Territory French CJ, Kiefel and Bell JJ reduced the many statements in the authorities concerning the content of the Kable principle to the following seven propositions:
1.    A State legislature cannot confer upon a State court a function or power which substantially impairs its institutional integrity, and which is therefore incompatible with its role, under Ch III of the Constitution, as a repository of federal jurisdiction and as a part of the integrated Australian court system.
2.    The term “institutional integrity” applied to a court refers to its possession of the defining or essential characteristics of a court including the reality and appearance of its independence and its impartiality.
3.    It is also a defining characteristic of courts that they apply procedural fairness and adhere as a general rule to the open court principle and give reasons for their decisions.
4.    A State legislature cannot, consistently with Ch III, enact a law which purports to abolish the Supreme Court of the Stateor excludes any class of official decision, made under a law of the State, from judicial review for jurisdictional error by the Supreme Court of the State.
5.    Nor can a State legislature validly enact a law which would effect an impermissible executive intrusion into the processes or decisions of a court.
6.    A State legislature cannot authorise the executive to enlist a court to implement decisions of the executive in a manner incompatible with the court’s institutional integrity or which would confer on the court a function (judicial or otherwise) incompatible with the role of the court as a repository of federal jurisdiction.
7.    A State legislature cannot enact a law conferring upon a judge of a State court a non-judicial function which is substantially incompatible with the functions of the court of which the judge is a member.
[footnotes omitted]
Expanding on (1)-(3), the Kable principle prohibits a State legislature enacting a law that requires a State court to depart to a significant degree from the ordinary methods and standards of the judicial process and from directing such a court in the performance of the judicial function to arrive at a particular outcome.
In that same case Gageler J explained:
The principle as explained in Forge operates to invalidate a State or Territory law which confers on a State or Territory court “a power or function which substantially impairs the court’s institutional integrity, and which is therefore incompatible with that court’s role as a repository of federal jurisdiction”. Yet the operation of the principle is not confined to invalidating a law by reference to impairment of institutional integrity in the nature or manner of exercise of a power or function which the law confers on a court.
Cases in which the principle has been applied to hold State laws invalid have included those in which impairment of the institutional integrity of a court has been seen to arise from the nature of the task which a court was required to perform. They have also included cases in which impairment of the institutional integrity of a court has been seen to arise from the nature of the incidents of a function conferred on a person, rather than a court, and by reference to the position in which a court is placed within an overall legislative scheme.
The cases show that a tendency to undermine public confidence in a court is indicative of a law which impairs the institutional integrity of that court. They show that the character of a law as impairing the institutional integrity of a court can also be indicated by a legislative plan which builds on public confidence in that court to bolster what is essentially legislative or executive action, so as metaphorically “to cloak their work in the neutral colors of judicial action”.
In Kable itself, both of those tendencies combined in legislation seen to conscript a court in a legislative plan for the procurement of the continuing imprisonment of an identified individual after the expiration of the sentence which had earlier been imposed by a court for the crime of which he was convicted. The proposition that punitive detention ordinarily exists under our system of government only as a consequence of the judicial adjudication of criminal guilt, as expounded in Lim, was reflected in the reasoning of members of the majority in concluding that the institutional integrity of the court was impaired.
…
A law which confers a power or function on a court which is “repugnant to the judicial process in a fundamental degree” is a law which is for that reason alone incompatible with the institutional integrity of that court. A law which gives to a court a role in a legislative scheme designed to facilitate punitive executive detention must surely be within the same category. The role is antithetical to the existence of the court as an institution for the administration of justice; repugnant in a fundamental degree to the judicial status.
Courts are defined as much by what they don’t do as by what they do and how they do it. Implicit in a tradition which reserves punitive detention presumptively to the judicial power is an understanding that punitive detention imposed in the exercise of judicial power is in consequence of adjudication by a court acting in accordance with a judicial process. Part of what sets courts apart from other institutions within our system of government is that they do not participate in a punitive deprivation of liberty by another arm of government.
From the above it is clear that the Kable principle is a functional principle necessitating an inquiry into the legal and practical operation of the impugned law.
[Footnotes omitted.]

More recently in Vella & Ors v Commissioner of Police (NSW) & Anor[10] in their joint judgment Bell, Keane, Nettle and Edelman JJ emphasised the limited operation of the principle:[11]
Although it is only extreme legislation that will substantially impair the institutional integrity of a State court, the boundaries of the Kable principle are not sharp. The contours of the categories where State legislation will substantially impair a court's institutional integrity will necessarily emerge slowly. But the categories must develop in a principled, coherent, and systematic way rather than as evaluations of specific instances.
[10] [2019] HCA 38.
[11] [2019] HCA 38 at [56].
Schedule 2
Schedule 2 of the Sentencing Act provides:
Schedule 2—Re‑consideration of authorisations to release on licence under section 24 of repealed Act or section 59 of this Act
1—Re‑consideration of authorisations to release on licence under section 24 of repealed Act or section 59 of this Act
(1) This clause applies to a person subject to an order for detention under section 23 of the repealed Act or section 57 of this Act who, before the commencement of this clause, has been authorised by the Supreme Court under section 24 of the repealed Act or section 59 of this Act (as the case may be) to be released on licence.
(2)     After the commencement of this clause, the Supreme Court may, on application by the DPP—
(a)cancel the release on licence of a person to whom this clause applies; or
(b)confirm the release on licence of a person to whom this clause applies.
(3)     For the purposes of proceedings under this clause, the DPP may apply to a magistrate for a warrant for the apprehension and detention of the person pending determination of the proceedings.
(4)     A magistrate must, on application under subclause (3), issue a warrant for the apprehension and detention of a person unless it is apparent, on the face of the application, that no reasonable grounds exist for the issue of the warrant.
(5)     The release on licence of a person to whom this clause applies must not be confirmed unless the person satisfies the Supreme Court that—
(a)the person is both capable of controlling and willing to control the person's sexual instincts; or
(b)the person no longer presents an appreciable risk to the safety of the community (whether as individuals or in general) due to the person's advanced age or permanent infirmity.
(6)     The Supreme Court must, before determining an application under this clause, direct that at least 2 legally qualified medical practitioners (to be nominated by a prescribed authority for the purpose) inquire into the mental condition of the person and report to the Court on whether the person is incapable of controlling, or unwilling to control, the person's sexual instincts.
(7)     The paramount consideration of the Supreme Court when determining an application under this clause must be to protect the safety of the community (whether as individuals or in general).
(8)     The Supreme Court must also take the following matters into consideration when determining an application under this clause:
(a)the reports of the medical practitioners (as directed and nominated under subclause (6)) provided to the Court;
(b)any relevant evidence or representations that the person may desire to put to the Court;
(c)a report provided to the Court by the appropriate board in accordance with the direction of the Court for the purposes of assisting the Court to determine the application, including—
(i)any opinion of the appropriate board on the effect that the release on licence of the person has had, or would have, on the safety of the community; and
(ii)     —
(A)if the person has been released on licence—a report as to the current circumstances of the person; or
(B)if the person has not yet been released on licence—a report as to the probable circumstances of the person if the person is so released; and
(iii)the recommendation of the appropriate board about whether the person is suitable for release on licence;
(d)evidence tendered to the Court of the estimated costs directly related to the release of the person on licence;
(e)     any other report required by the Court under section 61 of this Act;
(f)    any other matter that the Court thinks relevant.
(9)     The Supreme Court, when determining an application under this clause, must not have regard to the length of time that the person has spent in custody or may spend in custody if the person's release on licence is cancelled or not confirmed.
(10)   A copy of any report provided to the Supreme Court under subclause (8) must be given to each party to the proceedings or to counsel for those parties.
(11)   For the purposes of this clause—
appropriate board, in relation to proceedings under this clause, means—
(a)if the person the subject of the proceedings is being detained in a training centre, or has been released on licence from a training centre—the Training Centre Review Board;
(b)     in any other case—the Parole Board;
repealed Act means the Criminal Law (Sentencing) Act 1988.
Sections 23 and 24 of the repealed Act provided:
23—Offenders incapable of controlling, or unwilling to control, sexual instincts
(1)     In this section—
institutionmeans—
(a) a prison; and
(b) a place declared by the Governor by proclamation to be a place in which persons may be detained under this section; and
(c) in relation to a youth, includes a training centre;
person to whom this section applies means—
(a) a person convicted by the Supreme Court of a relevant offence; or
(b) a person remanded by the District Court or the Magistrates Court under subsection (2) to be dealt with by the Supreme Court under this section; or
(c) a person who is the subject of an application by the Attorney-General under subsection (2a);
relevant offence means—
(a) an offence under section 48, 48A, 49, 50, 56, 58, 59, 63, 63A, 63B, 69 or 72 of the Criminal Law Consolidation Act 1935; or
(b) an offence under section 23 of the Summary Offences Act 1953; or
(ba) an offence against a corresponding previous enactment substantially similar to an offence referred to in either of the preceding paragraphs; or
(c) any other offence where the evidence indicates that the defendant may be incapable of controlling, or unwilling to control, his or her sexual instincts; or
(d) an offence of failing to comply with a reporting obligation relating to reportable contact with a child without a reasonable excuse where the defendant is a registrable offender within the meaning of the Child Sex Offenders Registration Act 2006;
unwilling—a person to whom this section applies will be regarded as unwilling to control sexual instincts if there is a significant risk that the person would, given an opportunity to commit a relevant offence, fail to exercise appropriate control of his or her sexual instincts.
(2)     If, in proceedings before the District Court or Magistrates Court, a person is convicted of a relevant offence and—
(a) the court is of the opinion that the defendant should be dealt with under this section; or
(b) the prosecutor applies to have the defendant dealt with under this section,
the court will, instead of sentencing the defendant itself, remand the convicted person, in custody or on bail, to appear before the Supreme Court to be dealt with under this section.
(2a) If a person has been convicted of a relevant offence, the Attorney-General may, while the person remains in prison serving a sentence of imprisonment, apply to the Supreme Court to have the person dealt with under this section.
(2b) The Attorney-General may make an application under subsection (2a) in respect of a person serving a sentence of imprisonment whether or not an application to the Supreme Court to have the person dealt with under this section has previously been made (but, if a previous application has been made, a further application cannot be made more than 12 months before the person is eligible to apply for release on parole).
(3)     The Supreme Court must, before determining whether to make an order that a person to whom this section applies be detained in custody until further order, direct that at least 2 legally qualified medical practitioners (to be nominated by a prescribed authority for the purpose) inquire into the mental condition of a person to whom this section applies and report to the Court on whether the person is incapable of controlling, or unwilling to control, his or her sexual instincts.
(4)     The Supreme Court may order that a person to whom this section applies be detained in custody until further order if satisfied that the order is appropriate.
(5)     The paramount consideration of the Supreme Court in determining whether to make an order that a person to whom this section applies be detained in custody until further order must be the safety of the community.
(5a) The Supreme Court must also take the following matters into consideration in determining whether to make an order that a person to whom this section applies be detained in custody until further order:
(a) the reports of the medical practitioners (as directed and nominated under subsection (3)) furnished to the Court;
(b) any relevant evidence or representations that the person may desire to put to the Court;
(c) any report required by the Court under section 25;
(d) any other matter that the Court thinks relevant.
(5b) A copy of a report furnished to the Supreme Court under subsection (5a) must be given to each party to the proceedings or to counsel for those parties.
(5c) If a person to whom this section applies refuses to cooperate with an inquiry or examination for the purposes of this section, the Supreme Court may, if satisfied that the order is appropriate, order that the person be detained in custody until further order having given—
(a) paramount consideration to the safety of the community; and
(b) consideration to any relevant evidence and representations that the person may desire to put to the Court.
(6)     If a person to whom this section applies has not been sentenced for a relevant offence, the Supreme Court will deal with the question of sentence at the same time as it deals with the question whether an order is to be made under this section and, if the Court decides to make such an order, the order may be made in addition to, or instead of, a sentence of imprisonment.
(7)     If the detention is in addition to a sentence of imprisonment, the detention will commence on the expiration of the term of imprisonment, or of all terms of imprisonment that the person is liable to serve.
(8)     A person detained in custody under this section will be detained—
(a) if the defendant is under 18 years of age—in such institution (not being a prison) as the Minister for Youth Justice from time to time directs;
(b) in any other case—in such institution as the Minister for Correctional Services from time to time directs.
(9)     The progress and circumstances of a person subject to an order under this section must be reviewed at least once in each period of 12 months—
(a) if the person is detained in, or released on licence from, a training centre—by the Training Centre Review Board; or
(b) in any other case—by the Parole Board,
for the purpose of making a recommendation about whether the person is—
(c) if the person is in custody—suitable for release on licence under section 24; or
(d) if the person has been authorised to be released, or has been released, on licence under section 24—suitable to be so released.
(10) The results of a review under subsection (9), including the recommendation of the relevant Board, must be embodied in a written report, a copy of which must be furnished to the person the subject of the report, the Attorney-General and—
(a) in the case of a report of the Training Centre Review Board—to the Minister for Youth Justice;
(b) in the case of a report of the Parole Board—to the Minister for Correctional Services.
…
24—Release on licence
(1) The Supreme Court may, on application by the Director of Public Prosecutions or the person, authorise the release on licence of a person detained in custody under this Division.
(1a) The Supreme Court must, before determining an application under this section for the release on licence of a person detained in custody under this Division, direct that at least 2 legally qualified medical practitioners (to be nominated by a prescribed authority for the purpose) inquire into the mental condition of the person and report to the Court on whether the person is incapable of controlling, or unwilling to control, his or her sexual instincts.
(1b) The paramount consideration of the Supreme Court when determining an application under this section for the release on licence of a person detained in custody under this Division must be the safety of the community.
(1c) The Supreme Court must also take the following matters into consideration when determining an application under this section for the release on licence of a person detained in custody under this Division:
(a)     the reports of the medical practitioners (as directed and nominated under subsection (1a)) furnished to the Court;
(b)     any relevant evidence or representations that the person may desire to put to the Court;
(c)     a report furnished to the Court by the appropriate board in accordance with the direction of the Court for the purposes of assisting the Court to determine the application, including—
(i) any opinion of the appropriate board on the effect that the release on licence of the person would have on the safety of the community; and
(ii) a report as to the probable circumstances of the person if the person is released on licence; and
(iii) the recommendation of the appropriate board as to whether the person should be released on licence;
(d)     evidence tendered to the Court of the estimated costs directly related to the release of the person on licence;
(e)     the reports resulting from the periodic reviews under section 23(9) on the progress and circumstances of the person tendered to the Court;
(f)      any other report required by the Court under section 25;
(g)     any other matter that the Court thinks relevant.
(1d) A copy of any report furnished to the Supreme Court under subsection (1c) must be given to each party to the proceedings or to counsel for those parties.
(2) On the Supreme Court authorising the release of a person under subsection (1), the appropriate board must order the release of the person on licence on the day specified by the Court.
(2a) Subject to this Act, every release of a person on licence under this section is subject to the following conditions:
(a)     a condition prohibiting the person from possessing a firearm or ammunition (both within the meaning of the Firearms Act 2015) or any part of a firearm;
(b)     a condition requiring the person to submit to such tests (including testing without notice) for gunshot residue as may be reasonably required by a person or class of persons or body specified by the appropriate board.
(3) Without limiting subsection (2a), the release of a person on licence under this section will be subject to such conditions as the appropriate board thinks fit and specifies in the licence (including a condition that the person be monitored by use of an
(4) Where the Supreme Court has refused a person's application for release on licence, the person may not further apply for release for a period of six months, or such lesser or greater period as the Court may have directed on refusing the application.
(5) The appropriate board may—
(a)     on application by the Director of Public Prosecutions or the person, or of its own motion, vary or revoke a condition of a licence or impose further conditions; or
(b)     on application by the Director of Public Prosecutions, or of its own motion, cancel the release of a person on licence, if satisfied that the person has contravened, or is likely to contravene, a condition of the licence.
(5a) A board cannot exercise its powers under subsection (5) of its own motion in relation to a person released on licence unless the person and the Crown have been afforded a reasonable opportunity to make submissions to the board on the matter, and the board has considered any submissions so made.
(5b) The appropriate board may only vary or revoke the conditions imposed by subsection (2a) on the release of a person on licence if the board is satisfied that—
(a)     there are cogent reasons to do so; and
(b)     the possession of a firearm, ammunition or part of a firearm by the person does not represent an undue risk to the safety of the public.
(6) For the purposes of proceedings under subsection (5), a member of the appropriate board may—
(a)     summon the person the subject of the proceedings to appear before the board; or
(b)     in the case of proceedings for cancellation of release—
(i) with the concurrence of a second member of the board—issue a warrant for the apprehension and detention of the person pending determination of the proceedings; or
(ii) apply to a justice for a warrant for the apprehension and detention of the person pending determination of the proceedings.
(7) Where a person who has been summoned to appear before the appropriate board fails to attend in compliance with the summons, the board may—
(a)     determine the proceedings in his or her absence; or
(b)     direct a member of the board to—
(i) issue a warrant; or
(ii) apply to a justice for a warrant,
for the apprehension and detention of the person for the purpose of bringing him or her before the board.
(8) A member of the appropriate board may apply to a justice for a warrant for the apprehension and return to custody of a person whose release on licence has been cancelled by the board.
(8a) A justice must, on application under this section, issue a warrant for the apprehension and detention of a person or for the apprehension and return to custody of a person, as the case may require, unless it is apparent, on the face of the application, that no reasonable grounds exist for the issue of the warrant.
(9) The appropriate board may, if it thinks good reason exists for doing so, cancel a warrant issued under this section at any time before its execution.
(10) Where a person who has been released on licence commits an offence while subject to that licence and is sentenced to imprisonment for the offence, the release on licence is, by virtue of this subsection, cancelled.
(11) Where a person has been subject to a licence under this section for a continuous period of three years, the order for his or her detention under this Division will, unless the Supreme Court, on application by the Director of Public Prosecutions, orders otherwise, be taken to have been discharged on the expiration of that period.
(12) For the purposes of this section—
the appropriate board, in relation to proceedings under this section, means—
(a)     if the person the subject of the proceedings is being detained in a training centre, or has been released on licence from a training centre—the Training Centre Review Board;
(b)     in any other case—the Parole Board.
Sections 57 and 59 of the Sentencing Act provide:
57—Offenders incapable of controlling, or unwilling to control, sexual instincts
(1) In this section—
institution means—
(a)     a prison; and
(b)     a place declared by the Governor by proclamation to be a place in which persons may be detained under this section; and
(c)     in relation to a youth, includes a training centre;
person to whom this section applies means—
(a)     a person convicted by the Supreme Court of a relevant offence; or
(b)     a person remanded by the District Court or the Magistrates Court under subsection (2) to be dealt with by the Supreme Court under this section; or
(c)     a person who is the subject of an application by the Attorney-General under subsection (3);
relevant offence means—
(a) an offence under section 48, 48A, 49, 50, 56, 58, 59, 63, 63A, 63B, 69 or 72 of the Criminal Law Consolidation Act 1935; or
(b) an offence under section 23 of the Summary Offences Act 1953; or
(c)     an offence under a corresponding previous enactment substantially similar to an offence referred to in either of the preceding paragraphs; or
(d)     any other offence where the evidence indicates that the defendant may be incapable of controlling, or unwilling to control, the defendant's sexual instincts; or
(e)     an offence of failing to comply with a reporting obligation relating to reportable contact with a child without a reasonable excuse where the defendant is a registrable offender within the meaning of the Child Sex Offenders Registration Act 2006;
unwilling—a person to whom this section applies will be regarded as unwilling to control sexual instincts if there is a significant risk that the person would, given an opportunity to commit a relevant offence, fail to exercise appropriate control of the person's sexual instincts.
(2) If, in proceedings before the District Court or Magistrates Court, a person is convicted of a relevant offence and—
(a)     the court is of the opinion that the defendant should be dealt with under this section; or
(b)     the prosecutor applies to have the defendant dealt with under this section,
the court will, instead of sentencing the defendant itself, remand the convicted person, in custody or on bail, to appear before the Supreme Court to be dealt with under this section.
(3) If a person has been convicted of a relevant offence, the Attorney-General may, while the person remains in prison serving a sentence of imprisonment, apply to the Supreme Court to have the person dealt with under this section.
(4) The Attorney-General may make an application under subsection (3) in respect of a person serving a sentence of imprisonment whether or not an application to the Supreme Court to have the person dealt with under this section has previously been made (but, if a previous application has been made, a further application cannot be made more than 12 months before the person is eligible to apply for release on parole).
(5) The Supreme Court may, if the Attorney-General has made an application under subsection (3) in respect of a person who is in prison serving a sentence of imprisonment, make an interim order that the person is to remain in custody pending determination by the Supreme Court as to whether to make an order under this section that the person be detained in custody until further order.
(6) The Supreme Court must, before determining whether to make an order that a person to whom this section applies be detained in custody until further order, direct that at least 2 legally qualified medical practitioners (to be nominated by a prescribed authority for the purpose) inquire into the mental condition of a person to whom this section applies and report to the Court on whether the person is incapable of controlling, or unwilling to control, the person's sexual instincts.
(7) The Supreme Court may order that a person to whom this section applies be detained in custody until further order if satisfied that the order is appropriate.
(8) The paramount consideration of the Supreme Court in determining whether to make an order that a person to whom this section applies be detained in custody until further order must be to protect the safety of the community (whether as individuals or in general).
(9) The Supreme Court must also take the following matters into consideration in determining whether to make an order that a person to whom this section applies be detained in custody until further order:
(a)     the reports of the medical practitioners (as directed and nominated under subsection (6)) provided to the Court;
(b)     any relevant evidence or representations that the person may desire to put to the Court;
(c)     any report required by the Court under section 61;
(d)     any other matter that the Court thinks relevant.
(10) A copy of a report provided to the Supreme Court under subsection (9) must be given to each party to the proceedings or to counsel for those parties.
(11) If a person to whom this section applies refuses to cooperate with an inquiry or examination for the purposes of this section, the Supreme Court may, if satisfied that the order is appropriate, order that the person be detained in custody until further order having given—
(a)     paramount consideration to protecting the safety of the community (whether as individuals or in general); and
(b)     consideration to any relevant evidence and representations that the person may desire to put to the Court.
(12) If a person to whom this section applies has not been sentenced for a relevant offence, the Supreme Court will deal with the question of sentence at the same time as it deals with the question whether an order is to be made under this section and, if the Court decides to make such an order, the order may be made in addition to, or instead of, a sentence of imprisonment.
(13) If the detention is in addition to a sentence of imprisonment, the detention will commence on the expiration of the term of imprisonment, or of all terms of imprisonment, that the person is liable to serve.
(14) A person detained in custody under this section will be detained—
(a)     if the defendant is under 18 years of age—in such institution (not being a prison) as the Minister for Youth Justice from time to time directs;
(b)     in any other case—in such institution as the Minister for Correctional Services from time to time directs.
(15) The progress and circumstances of a person subject to an order under this section must be reviewed at least once in each period of 12 months—
(a)     if the person is detained in, or released on licence from, a training centre—by the Training Centre Review Board; or
(b)     in any other case—by the Parole Board,
for the purpose of making a recommendation about whether the person is—
(c)     if the person is in custody—suitable for release on licence under section 59; or
(d)     if the person has been authorised to be released, or has been released, on licence under section 59—suitable to be so released.
(16) The results of a review under subsection (15), including the recommendation of the relevant Board, must be embodied in a written report, a copy of which must be provided to the person the subject of the report, the Attorney-General and—
(a)     in the case of a report of the Training Centre Review Board—the Minister for Youth Justice;
(b)     in the case of a report of the Parole Board—the Minister for Correctional Services.
…
59—Release on licence
(1) The Supreme Court may, on application by the DPP or the person, authorise the release on licence of a person detained in custody under this Division.
(1a) A person detained in custody under this Division cannot be released on licence unless the person satisfies the Supreme Court that—
(a)     the person is both capable of controlling and willing to control the person's sexual instincts; or
(b)     the person no longer presents an appreciable risk to the safety of the community (whether as individuals or in general) due to the person's advanced age or permanent infirmity.
(2) The Supreme Court must, before determining an application under this section for the release on licence of a person detained in custody under this Division, direct that at least 2 legally qualified medical practitioners (to be nominated by a prescribed authority for the purpose) inquire into the mental condition of the person and report to the Court on whether the person is incapable of controlling, or unwilling to control, the person's sexual instincts.
(3) The paramount consideration of the Supreme Court when determining an application under this section for the release on licence of a person detained in custody under this Division must be to protect the safety of the community (whether as individuals or in general).
(4) The Supreme Court must also take the following matters into consideration when determining an application under this section for the release on licence of a person detained in custody under this Division:
(a)     the reports of the medical practitioners (as directed and nominated under subsection (2)) provided to the Court;
(b)     any relevant evidence or representations that the person may desire to put to the Court;
(c)     a report provided to the Court by the appropriate board in accordance with the direction of the Court for the purposes of assisting the Court to determine the application, including—
(i) any opinion of the appropriate board on the effect that the release on licence of the person would have on the safety of the community; and
(ii) a report as to the probable circumstances of the person if the person is released on licence; and
(iii) the recommendation of the appropriate board as to whether the person should be released on licence;
(d)     evidence tendered to the Court of the estimated costs directly related to the release of the person on licence;
(e) the reports resulting from the periodic reviews under section 57(15) on the progress and circumstances of the person tendered to the Court;
(f)      any other report required by the Court under section 61;
(g)     any other matter that the Court thinks relevant.
(4a) The Supreme Court, when determining an application under this section, must not have regard to the length of time that the person has spent in custody or may spend in custody if the person is not released on licence.
(5) A copy of any report provided to the Supreme Court under subsection (4) must be given to each party to the proceedings or to counsel for those parties.
(6) On the Supreme Court authorising the release of a person under subsection (1), the appropriate board must order the release of the person on licence on the day specified by the Court.
(7) Subject to this Act, every release of a person on licence under this section is subject to the following conditions:
(a)     a condition prohibiting the person from possessing a firearm or ammunition or any part of a firearm;
(b)     a condition requiring the person to submit to such tests (including testing without notice) for gunshot residue as may be reasonably required by a person or class of persons or body specified by the appropriate board.
(8) Without limiting subsection (7), the release of a person on licence under this section will be subject to such conditions as the appropriate board thinks fit and specifies in the licence (including a condition that the person be monitored by use of an electronic device approved under section 4 of the Correctional Services Act 1982).
(9) If the Supreme Court has refused a person's application for release on licence, the person may not further apply for release for a period of 6 months, or such lesser or greater period as the Court may have directed on refusing the application.
(10) The appropriate board may—
(a)     on application by the DPP or the person, or on its own initiative, vary or revoke a condition of a licence or impose further conditions; or
(b)     on application by the DPP, or on its own initiative, cancel the release of a person on licence, if satisfied that—
(i) in the case of a person released on licence on the ground referred to in subsection (1a)(b)—there is evidence suggesting that the person may now present an appreciable risk to the safety of the community (whether as individuals or in general); or
(ii) in any case—the person has contravened, or is likely to contravene, a condition of the licence.
(11) A board cannot exercise its powers under subsection (10) on its own initiative in relation to a person released on licence unless the person and the Crown have been afforded a reasonable opportunity to make submissions to the board on the matter, and the board has considered any submissions so made.
(12) The appropriate board may only vary or revoke the conditions imposed by subsection (7) on the release of a person on licence if the board is satisfied that—
(a)     there are cogent reasons to do so; and
(b)     the possession of a firearm, ammunition or part of a firearm by the person does not represent an undue risk to the safety of the public.
(13) For the purposes of proceedings under subsection (10), a member of the appropriate board may—
(a)     summon the person the subject of the proceedings to appear before the board; or
(b)     in the case of proceedings for cancellation of release—
(i) with the concurrence of a second member of the board—issue a warrant for the apprehension and detention of the person pending determination of the proceedings; or
(ii) apply to a magistrate for a warrant for the apprehension and detention of the person pending determination of the proceedings.
(14) If a person who has been summoned to appear before the appropriate board fails to attend in compliance with the summons, the board may—
(a)     determine the proceedings in the person's absence; or
(b)     direct a member of the board to—
(i) issue a warrant; or
(ii) apply to a magistrate for a warrant,
for the apprehension and detention of the person for the purpose of bringing the person before the board.
(15) A member of the appropriate board may apply to a magistrate for a warrant for the apprehension and return to custody of a person whose release on licence has been cancelled by the board.
(16) A magistrate must, on application under this section, issue a warrant for the apprehension and detention of a person or for the apprehension and return to custody of a person, as the case may require, unless it is apparent, on the face of the application, that no reasonable grounds exist for the issue of the warrant.
(17) The appropriate board may, if it thinks good reason exists for doing so, cancel a warrant issued under this section at any time before its execution.
(18) If a person who has been released on licence commits an offence while subject to that licence and is sentenced to imprisonment for the offence, the release on licence is, by virtue of this subsection, cancelled.
(20) For the purposes of this section, the appropriate board, in relation to proceedings under this section, means—
(a)     if the person the subject of the proceedings is being detained in a training centre, or has been released on licence from a training centre—the Training Centre Review Board;
(b)     in any other case—the Parole Board.

It can be seen that the scheme of Schedule 2 provides for reconsideration by this Court of authorisations to release on licence, either under s 24 of the repealed Act or s 59 of the Sentencing Act, a person subject to an order for detention under s 23 of the repealed Act or s 57 of the Sentencing Act. The Court may, on application by the Director, cancel or confirm the release on licence of that person. The Court cannot confirm the release of such a person unless he has satisfied the Court that he is capable of controlling and willing to control his sexual instincts or he no longer represents an appreciable risk to the safety of the community due to his advanced age or permanent infirmity. Before the Court determines the application it must direct that at least two medical practitioners report to the Court on whether the person is incapable of controlling, or unwilling to control, his sexual instincts. The reconsideration is informed by the considerations prescribed in clause 1(7), (8) and (9) of Schedule 2.
Evidence of Parliamentary debates
The respondent sought to put before the Court extrinsic material, namely, remarks made by members of Parliament during the debate on the bill that ultimately enacted Schedule 2. The respondent sought to rely upon this material as evidence that the legislation targeted him. This evidence goes beyond the Second Reading Speech. The respondent seeks to rely upon speeches made not only by the Minister but opposition members of Parliament. Further, the purpose of seeking to adduce this extrinsic material is not concerned with identifying the mischief to which the legislation was directed. Counsel for the respondent sought to justify the admission of the extrinsic evidence to explain the “context” in which Schedule 2 was enacted. The context included the content of the debates and the timing of the legislation relative to the appellate proceedings.
I am not prepared to receive this material on that basis. In HA Bachrach Pty Ltd v Queensland[12] the plaintiff unsuccessfully appealed to the Queensland Planning and Environment Court against the re-zoning of an area that had the consequence that a particular shopping centre could be built. Before the plaintiff appealed to the Supreme Court of Queensland the Queensland Parliament passed legislation that had the effect of permitting the development. The plaintiff instituted proceedings in the High Court contending that the legislation permitting the development involved an interference with the exercise of judicial power. In the High Court the plaintiff referred to statements made by the relevant Minister in the Queensland Legislative Assembly as evidence of a design on the part of the Parliament to interfere in pending litigation and nullify decisions of the courts. After referring to the possible ramifications of Parliamentary privilege, the High Court said:[13]
Whether the Act constitutes an impermissible interference with judicial process, or offends against Ch III of the Constitution, does not depend upon the motives or intentions of the Minister or individual members of the legislature. The effect of the legislation is to be considered in context, and the plaintiff is entitled to point to the litigious background for such assistance as may be gained from it. However, it is the operation and effect of the law which defines its constitutional character, and the determination thereof requires identification of the nature of the rights, duties, powers and privileges which the statute changes, regulates or abolishes. An adequate appreciation of the operation of the Act, and its proper characterisation, as a matter of substance and not merely of form, may require consideration of the history of the plaintiff's pursuit of its legal rights under the Planning and Environment Act. However, it does not advance the plaintiff's argument to attribute malevolent designs to the Minister or to other persons who promoted or supported the legislation.
[Citation omitted].
[12] [1998] HCA 54, (1998) 195 CLR 547.
[13] [1998] HCA 54 at [12], (1998) 195 CLR 547 at 562.
Evidence of Parliamentary debates is inadmissible save and except that the Second Reading Speech of the responsible Minister is admissible for the purpose of identifying the mischief which the legislation addresses or to identify the purpose of a statutory provision.[14] It is not admissible for the respondent’s purpose which is to identify the effect of the proposed enactment.[15] Whether the legislation impermissibly targets the respondent is to be decided upon the construction of Schedule 2. It is not answered by the subjective views of members of Parliament. Accordingly I would not accept the extrinsic material sought to be relied on by the respondent.
Does Schedule 2 infringe the Kable principle?
[14] K-Generation Pty Ltd v Liquor Licensing Court [2009] HCA 4 at [51], (2009) 237 CLR 501 at 522; Australian Education Union v Department of Education and Children’s Services [2012] HCA 3 at [33], (2012) 248 CLR 1 at 15; Hoare v The Queen (1989) 167 CLR 348 at 360-361; Palace Gallery v Liquor and Gambling Commissioner [2014] SASCFC 26, (2014) 118 SASR 567 at [49].
[15] Palace Gallery v Liquor and Gambling Commissioner [2014] SASCFC 26, (2014) 118 SASR 567 at [49].
The respondent submits that Schedule 2 infringes the Kable principle in two ways. First, on the basis that, like Kable, the statute is ad hominem legislation targeting him exclusively for preventive detention, thereby impairing the institutional integrity of the Court. Second, on the basis that it interferes with the judicial process that was under way at the time of its enactment in effectively subverting the outcome of the appeal to the Court of Criminal Appeal from the judgment of Kelly J in order to achieve the Parliament’s stated objective of indefinitely detaining the respondent. Accordingly, he submits Schedule 2 impairs the institutional integrity of the Court and impermissibly interferes with the judicial process in a manner incompatible with its role as a receptacle of federal judicial power.
I do not accept that submission.
It is convenient to commence with the proper construction of clause 1 to Schedule 2. It concerns the application of Schedule 2. The respondent submits that, as a matter of construction, Schedule 2 applies to a person who was subject to an order of detention before 25 June 2018; who had been authorised to be released on licence before that date; and who had not been released as at that date. The Director submits that the applicability of Schedule 2 to a person is determined only by the first two criteria identified by the respondent. The Director submits that clause 1 applies to a person who satisfies the first two criteria even if that person had been released on or before 25 June 2018.
In my view the question of the application of clause 1 of Schedule 2 must be resolved in favour of the construction for which the Director contends. For the clause to apply to a person clause 1(1) of Schedule 2 does not require that the person was still in detention on or before 25 June 2018.
Clause 1(1) provides that the clause applies to those persons who, before the commencement of the clause on 25 June 2018, were subject to an order for detention either under s 23 of the repealed Act or s 57 of the Sentencing Act, and who, before the commencement of the clause, had been authorised by the Supreme Court, either under s 24 of the repealed Act or s 59 of the Sentencing Act, to be released on licence. Contrary to the respondent’s submission, it is not the case that clause 1 is confined in its application to persons in those circumstances who were not in fact released on licence as at 25 June 2018 pursuant to s 24 of the repealed Act or s 59 of the Sentencing Act.
The respondent’s construction turns on the meaning of the words “to be released on licence”. It would confine the application of clause 1 to persons who, as at 25 June 2018, had not yet been released. This construction attributes an exclusively temporal significance to the words. That is not justified. It is not supported by a textual analysis. Syntactically, the phrase “to be released” is in the passive infinitive. It is a prepositional phrase that follows the present perfect passive “has been authorised”, which identifies the present status of the subject person. The prepositional phrase provides the content of that present status. The phrase speaks from the time the authorisation was given. Read in their context, the words take their meaning from the preceding phrase “has been authorised by the Supreme Court under s 24 of the repealed Act or s 59 of this Act (as the case may be) …”. The words “to be” are merely a part of the descriptor of that which the Supreme Court has authorised. The fact of the authorisation exhausts the criteria for the application of the clause. The focus of clause 1(1), and the condition for the application of the clause, is that the authorisation has been given before 25 June 2018. It is not that the person has not been released before 25 June 2018. Moreover, the respondent’s construction is inconsistent with the terms of clause 1(3) and (4) which expressly contemplate that a person the subject of an application may not be in detention. In this context it is also pertinent to observe that s 59(1a) of the Sentencing Act applies the same test as clause 1(5) of Schedule 2 for all future applications for release on licence. Accordingly, the Parliament can be seen to intend that the new statutory regime it is enacting applies both to applicants for release on licence in the future as well as those whose release on licence has already been authorised by the Court.
The rejection of the respondent’s construction is significant to consideration of his contention that Schedule 2 infringes the Kable principle.
By reason of the construction I have given clause 1(1), the respondent’s first contention that Schedule 2 is legislation solely directed at him must be rejected. Schedule 2 applies to a class of persons. The respondent falls within that class. It is common ground that on the construction I have adopted another person also falls within that class.[16]
[16] Agreed fact 13. See also affidavit of Nikki Ireland sworn 12 March 2019. This affidavit was admitted de bene esse on the hearing of the referral. I would admit it over the objection of the Director as it provides evidence relevant to the respondent’s submission that Schedule 2 infringes the Kable principle on the basis that it is ad hominem legislation.
In any event, the fact that Schedule 2 applies to a very narrow class of persons does not make it invalid. As was observed in Knight v Victoria[17] there are “circumstances in which the party-specific nature of legislation can be indicative of the tendency of that legislation to interfere with an exercise of judicial power”. However, as French CJ observed in Australian Aboriginal Justice Agency Ltd v Northern Territory[18] the focus must be upon the effect of the legislation on the institutional integrity of the Court, not whether the legislation is directed to a wide or narrow class of persons. In Nicholas v The Queen[19] Gaudron J said that legislation which is specific rather than general, is not invalid if it neither infringes the requirements of equal justice nor prevents the independent determination of the matter in issue. It follows that ad hominem legislation is not necessarily inconsistent with the requirements of Chapter III courts or other courts invested with federal jurisdiction. It is a question of context.[20] While the ad hominem nature of the legislation in Kable was held to be invalid, the invalidity arose because, as the High Court found, the legislation drew the Court into implementing what was essentially a political decision initiated by the executive that Mr Kable should be detained without the benefit of ordinary judicial process.[21]
[17] [2017] HCA 29 at [26], (2017) 261 CLR 306 at 323.
[18] [2015] HCA 42 at [39]-[44], (2015) 256 CLR 569 at 593-596.
[19] [1998] HCA 9 at [83], (1998) 193 CLR 173 at 211-212.
[20] Knight v Victoria [2013] HCA 29, (2017) 261 CLR 306; Baker v The Queen [2004] HCA 45, (2004) 223 CLR 513.
[21] Kable v DPP (NSW) (1996) 189 CLR 51 at 122.
The statutory scheme in Schedule 2 operates in a fundamentally different fashion from the legislation in Kable. That legislation applied exclusively to Mr Kable who was identified by name in the statute. The legislation did not apply to any class or category of persons other than Mr Kable, and it had no consequences for any other person or persons. The legislation on its face sought to direct the Court to implement a predetermined executive decision in respect of Mr Kable. The Act provided:
(1)The object of this Act is to protect the community by providing for the preventive detention (by order of the Supreme Court made on application of the Director of Public Prosecutions) of Gregory Wayne Kable.
…
(3)This Act authorises the making of a detention order against Gregory Wayne Kable and does not authorise the making of a detention order against any other person.
Schedule 2 is clearly distinguishable from the legislation in Kable. It applies to a category of persons and does not direct an outcome in relation to a particular individual.
In Baker v The Queen[22] the legislature enacted a statutory regime applicable to persons sentenced to life imprisonment. It enabled a person serving an existing life sentence to apply to the Supreme Court of New South Wales for the determination of a minimum term of imprisonment that the person must serve and an additional term during which the person might be released on parole. Prior to the enactment of these laws a small class of persons had been sentenced to life imprisonment with a recommendation that they were not to be released. The effect of the legislation was to diminish the prospects of their release in the future. The legislation provided that a person who was the subject of a non-release recommendation was not eligible for the determination of a minimum term and an additional term unless the Court was satisfied that special reasons existed that justified making the determination. Mr Baker fell into that small class of persons. He applied to the Supreme Court for a determination. The Court dismissed his application on the basis it was not satisfied that special reasons existed. Mr Baker contended on appeal that the requirement that the Court be satisfied that special reasons exist to justify a determination fixing a minimum term and an additional term during which he might be released on parole, was invalid as infringing the Kable principle.
[22] [2004] HCA 45, (2004) 223 CLR 513.
The High Court, distinguishing Kable, upheld the validity of the provisions. In their joint reasons, McHugh, Gummow, Hayne and Heydon JJ found there was nothing repugnant to the notion of judicial power in the taking of a past non-release recommendation as a legislative criterion for the operation of a subsequent statutory regime. They held that if the provisions under challenge had been laws of the Commonwealth, they would have complied with the principles in Ch III for the exercise of federal jurisdiction by federal courts and by State courts invested with federal jurisdiction. They did not offend the less stringent test in Kable. Their Honours said “that, in general, a legislature can select whatever factum it wishes as the ‘trigger’ of a particular legislative consequence”.[23]
[23] [2004] HCA 45 at [43], (2004) 223 CLR 513 at 532.
The ultimate question is whether the legislation infringes the requirements of equal justice in a manner incompatible with the Court’s institutional integrity or prevents the independent judicial determination of the matter in issue. Notwithstanding the narrow class of persons to whom Schedule 2 applies, the Schedule does not impair the institutional integrity of the Court in applying it. It provides a process whereby the Director may apply to the Court for it to exercise a judicial function in undertaking a reconsideration at a different time, of an existing authorisation that a person should be released on licence. In applying the Schedule, this Court is not constrained or directed in the exercise of that function. The exercise of the function is conditioned on an application by the Director. On that application the Court is empowered, upon reconsideration, to cancel or confirm the release. Whether either of the thresholds prescribed by clause 1(5) is satisfied is determined judicially, having regard to the opinions of at least two legally qualified medical practitioners and the exercise of the Court’s jurisdiction is informed by the matters prescribed in clause 1(6), (7), (8) and (9). These matters must be considered afresh irrespective of whatever deliberations informed the Court’s previous decision on release. Whatever the trigger for the exercise of the Court’s jurisdiction, the nature of the function conferred by Schedule 2 on the Court remains judicial in character.
No aspect of the function impairs the Court’s character as a Court or impugns its integrity. Unlike the impugned legislation in Kable Schedule 2 does not direct the Court in the exercise of its function or with respect to the respondent. Proceedings under Schedule 2 are to be conducted in accordance with the ordinary judicial processes of State courts.[24] Schedule 2 does not confer jurisdiction that is “purely executive in nature”.[25]It would not be proper to characterise the function of the Court pursuant to Schedule 2 as an instrument of executive policy.[26]
[24] Kable v DPP (NSW) (1996) 189 CLR 51 at 121.
[25] Kable v DPP (NSW) (1996) 189 CLR 51 at 122.
[26] Kable v DPP (NSW) (1996) 189 CLR 51 at 124.
The respondent’s second contention that Schedule 2 interferes with the judicial process that was underway at the time of its enactment, subverting the outcome of the appeal to the Court of Criminal Appeal in order to achieve the legislature’s stated objective of indefinitely detaining the respondent, also must be rejected.
The respondent is subject to an order made by this Court authorising his release on licence. The Director has made an application in respect of the respondent pursuant to clause 1(2) of Schedule 2. The order and the Director’s application invoke the jurisdiction established by Schedule 2. That order and the Director’s application for reconsideration provide the trigger that sets in train a judicial process.[27] Rather than being repugnant to the judicial power, conferral of jurisdiction on the Court to undertake a reconsideration of the authorisation to release on licence relies upon the judicial power reposed in the Court. The Schedule confers a process whereby the Court’s jurisdiction is invoked and a separate exercise of judicial power is undertaken. Schedule 2 does not purport to re-litigate a controversy already determined, or have the effect that that exercise be repeated within the controversy previously resolved by the exercise of the judicial power.
[27] Baker v The Queen [2004] HCA 45, (2004) 223 CLR 513.
Schedule 2 does not interfere in the judicial process that culminated in the Court of Criminal Appeal’s dismissal of the appeal from Kelly J. That process ran to its conclusion. Clause 1(2) establishes a further jurisdiction from that which has been exercised and concluded by the judgment of the Court of Criminal Appeal. Clause 1(2) prescribes the parameters of a new controversy that operates subsequent to that which was decided by this Court pursuant to s 24 of the repealed Act. It confers power on the Court, on application by the Director, to either cancel or confirm the release on licence of a person to whom the clause applies.
The Director applied for reconsideration of the authorisation to release on licence after the appeal from Kelly J’s orders was determined by the Court of Criminal Appeal. In that sense there is nothing retrospective about the law. Schedule 2 operates prospectively. Nonetheless, its prospective operation may affect rights, duties and liabilities the subject of previous curial determination. Even if the law is retrospective in its operation, Parliament may alter retrospectively the substantive rights, duties and liabilities of persons who have obtained a court’s adjudication on those rights, duties or liabilities.

In Polyukhovich v The Commonwealth[28] McHugh J, with whom Mason CJ and Dawson J agreed, said[29] that the enactment of a law having a retrospective operation does not infringe the Constitutional guarantee that the judicial power of the Commonwealth can be exercised only by courts established and judges appointed in accordance with Ch. III of the Constitution, and by such other courts as are invested with federal jurisdiction. The Constitution does not prohibit the making of criminal laws having a retrospective operation. Retrospectivity is not itself sufficient to offend Ch. III of the Constitution. It is not the case that the determination of guilt or innocence is foreclosed by a criminal law which has a retrospective operation. The law will be valid if it leaves for determination by a court the issues which would arise at a trial under that law. Under such a law, it is still the jury, and not the legislature, which determines what the facts of the case are and which applies the law, as determined by the judge, to those facts for the purpose of determining whether the accused is guilty or not guilty of the charge against him or her. Such a law is not an exercise of, or an interference with the exercise of, judicial power.
[28] (1991) 172 CLR 501.
[29] (1991) 172 CLR 501 at 719 and 721.
Further, Parliament may legislate to alter rights, duties and liabilities where they are in issue in pending litigation and where Parliament’s motive is to forestall any decision that might be given in those proceedings.
In Australian Building Construction Employees’ and Builders Labourers’ Federation v The Commonwealth[30] the High Court said that it is well established that Parliament may legislate so as to affect and alter rights in issue in pending litigation without interfering with the exercise of judicial power. This principle is described in Australian Education Union v Fair Work Australia[31] as the “changed law rule”.[32] This is to be contrasted with the “direction principle” that prohibits the legislature from directing courts as to the manner and outcome of the exercise of their jurisdiction.[33] As previously noted, Schedule 2 does not direct the Court as to the conclusion of any application brought by the Director. The Court can cancel or confirm the release on licence of the respondent.
[30] (1986) 161 CLR 88 at 96.
[31] [2012] HCA 19, (2012) 246 CLR 117.
[32] [2012] HCA 19 at [87], (2012) 246 CLR 117 at 153.
[33] [2013] HCA 19 at [48] and [87], (2012) 246 CLR 117 at 140-141 and 153.
The respondent seeks to rely upon the decision of this Court in Question of Law Reserved (No 1) of 2018.[34] That is misconceived. Question of Law Reserved (No. 1) of 2018 concerned a challenge to the validity of s 9(2) of the Statutes Amendment (Attorney-General’s Portfolio) (No. 2) Act 2017 (SA) on the basis it infringed the Kable principle. Section 9(2) was enacted to address the circumstances of persons who had been found guilty of the offence of persistent sexual exploitation of a child contrary to s 50 of the Criminal Law Consolidation Act 1935 (SA) (CLCA) but not yet sentenced for that offending following the judgment of the High Court in Chiro v The Queen.[35]Section 9(2) requires a sentencing court to decide which acts of sexual exploitation, for which the person found guilty is to be sentenced, are proved beyond reasonable doubt. The mischief that Hinton J, with whom Lovell J agreed, identified in that case was two-fold. First, that where the judicial power had been exercised to quell the first stage of the controversy by the entry of the jury’s verdict of guilty, s 9(2) requires that prior exercise of the judicial power to be repeated by the sentencing judge.[36] Second, the judicial process by which the accused had put himself upon the country for trial[37] carried certain protections, specifically, that he could only be punished by the State for offences of which the jury had found him guilty. Section 9(2) requires the Court to repeat the same exercise in respect of the same controversy, i.e. the sentencing component at the trial, without affording the defendant the protections that it had attached to the initial exercise of judicial power in respect of his trial for the charged offences of which he had been found guilty. There is no parallel with this case. While Schedule 2 deals with reconsideration of authorisations to release on licence, it establishes this regime by enacting a further jurisdiction for judicial resolution, on application by the Director, of a new and subsequent controversy (which includes a fresh fact finding process), not by revisiting the earlier controversy.
[34] [2018] SASCFC 128.
[35] [2017] HCA 37, (2017) 260 CLR 425.
[36] [2018] SASCFC 128 at [169].
[37] CLCA s 284(1) (now repealed) and re-enacted as s 129 of the Criminal Law Procedure Act 1921 (SA).
The respondent has not established that the purpose of Schedule 2 is to interfere with the judicial process. Rather, the true construction of the Schedule makes clear that the Parliament has conferred an additional jurisdiction upon the Court to determine a new controversy between the parties concerning a person’s release on licence. The enactment of Schedule 2 merely establishes the statutory facility for that new controversy to be decided subsequent to the previous controversy. This is determined judicially at a different time and on a different set of facts found for that purpose.
In undertaking a reconsideration prescribed by Schedule 2 the Court has substantial judicial discretion and is not acting at the behest of the executive. To adopt the language of the majority of the plurality in Vella, there is nothing antithetical to the judicial process, and nothing that could impair the institutional integrity of the Court, in legislation such as Schedule 2 that establishes broad principles that are to be developed and applied by the Court.[38] On the contrary, this is intrinsic to the very nature of the judicial process.
[38] [2019] HCA 38 at [89].
For these reasons I consider Schedule 2 does not impair the institutional integrity of the Court, nor does it impermissibly interfere with the judicial process in a manner incompatible with its role as a receptacle of federal judicial power.
Conclusion
I would answer the question reserved in the negative.
NICHOLSON J: I agree that the question reserved should be answered in the negative. I agree with the reasons of Stanley J.
DOYLE J: I agree with the reasons of Stanley J. For the reasons he gives, I would also answer the question reserved in the negative.