The State of Western Australia v Garlett - [2021] WASC 387

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
CITATION:   THE STATE OF WESTERN AUSTRALIA -v- GARLETT [2021] WASC 387
CORAM:   CORBOY J
HEARD:   13 OCTOBER 2021
DELIVERED          :   18 OCTOBER 2021
PUBLISHED           :   10 NOVEMBER 2021
FILE NO/S:   SO 8 of 2021
BETWEEN:   THE STATE OF WESTERN AUSTRALIA
Applicant
AND
PETER ROBERT GARLETT
Respondent
THE ATTORNEY GENERAL OF WESTERN AUSTRALIA
Intervenor

Catchwords:

Constitutional law - High Risk Serious Offenders Act 2020 (WA) - Whether the High Risk Serious Offenders Act is repugnant to or incompatible with the institutional integrity of the Supreme Court as a Chapter III Court - Whether the High Risk Serious Offenders Act is punitive or preventative legislation - Whether the High Risk Serious Offenders Act is inconsistent with s 9(1A) of the Racial Discrimination Act 1975 (Cth)

Criminal law - Preliminary hearing under s 46 of the High Risk Serious Offenders Act - Whether reasonable grounds for belief that a restriction order might be made - Whether interim detention orders should be made

Legislation:

Dangerous Sexual Offenders Act 2006 (WA)
High Risk Serious Offenders Act 2020 (WA)
Racial Discrimination Act 1975 (Cth)
Sentence Administration Act 2003 (WA)
Sentencing Act 1995 (WA)

Result:

High Risk Serious Offenders Act held not to be repugnant to or incompatible with the institutional integrity of the Supreme Court as a Chapter III Court
High Risk Serious Offenders Act held not to be inconsistent with s 9(1A) of the Racial Discrimination Act
Orders made under s 46(2)
Interim detention order made

Category: A

Representation:

Counsel:

Applicant	:	Mr B Meertens
Respondent	:	Mr P A Sheiner
Intervenor	:	Mr J Thomson SC & Ms H Richardson

Solicitors:

Applicant	:	State Solicitor's Office (WA)
Respondent	:	Roe Legal Services
Intervenor	:	State Solicitor's Office (WA)

Case(s) referred to in decision(s):

Assistant Commissioner Condon v Pompano Pty Ltd [2013] HCA 7; (2013) 252 CLR 38
Attorney‑General (NT) v Emmerson [2014] HCA 13; (2014) 253 CLR 393
Attorney-General for the State of Queensland v Phineasa [2012] QCA 184; (2012) 221 A Crim R 200
Australian Hospital Care Pty Ltd v Swinbank [1999] QCA 247
Australian Medical Council v Wilson (1996) 68 FCR 46
Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs [1992] HCA 64; (1992) 176 CLR 1
Director of Public Prosecutions (WA) v DAL [No 2] [2016] WASC 212
Director of Public Prosecutions (WA) v Decke [2009] WASC 312
Director of Public Prosecutions (WA) v Free [2010] WASC 255
Director of Public Prosecutions (WA) v GTR [2008] WASCA 187; (2008) 38 WAR 307
Director of Public Prosecutions (WA) v Williams [2007] WASCA 206; (2007) 35 WAR 297
Duncan v Independent Commission Against Corruption [2015] HCA 32; (2015) 256 CLR 83
Ebber v Human Rights & Equal Opportunity Commission (1995) 129 ALR 455
Fardon v Attorney-General for The State of Queensland [2004] HCA 46; (2004) 223 CLR 575
Forge v Australian Securities and Investments Commission [2006] HCA 44; (2006) 228 CLR 45
George v Rockett [1990] HCA 26; (1990) 170 CLR 104
Gerhardy v Brown [1985] HCA 11; (1985) 159 CLR 70
H A Bachrach Pty Ltd v State of Queensland [1998] HCA 54; (1998) 195 CLR 547
International Finance Trust Company Ltd v New South Wales Crime Commission [2009] HCA 49; (2009) 240 CLR 319
Italiano v The State of Western Australia [2009] WASCA 116
Kable v The Director of Public Prosecutions for the State of New South Wales [1996] HCA 24; (1996) 189 CLR 51
Kuczborski v The State of Queensland [2014] HCA 36; (2014) 254 CLR 51
Mabo v The State of Queensland [No1] [1988] HCA 69; (1988) 166 CLR 186
Maloney v The Queen [2013] HCA 28; (2013) 257 CLR 168
Minister for Home Affairs v Benbrika [2021] HCA 4; (2021) 95 ALJR 166
Nicholas v The Queen [1998] HCA 9; (1988) 193 CLR 173
North Australian Aboriginal Justice Agency Ltd v Northern Territory of Australia [2015] HCA 41; (2015) 256 CLR 569
R v Jeffrey [1967] VR 467
The State of South Australia v Totani [2010] HCA 39; (2010) 242 CLR 1
The State of Western Australia v Corbett [No 5] [2017] WASC 115
The State of Western Australia v Garlett [2019] WASCSR 74
The State of Western Australia v Latimer [2006] WASC 235
The State of Western Australia v Nelson [2021] WASC 215
The State of Western Australia v PAS [2020] WASC 405
The State of Western Australia v Rao [2019] WASC 93
The State of Western Australia v Ward [2002] HCA 28; (2002) 213 CLR 1
The State of Western Australia v West [2013] WASC 14
Thomas v Mowbray [2007] HCA 33; (2007) 233 CLR 307
Tilbrook v Attorney-General for the State of Queensland [2012] QCA 279
Vella v Commissioner of Police (NSW) [2019] HCA 38; (2019) 269 CLR 219
Wainohu v The State of New South Wales [2011] HCA 24; (2011) 243 CLR 181
Woods v Director of Public Prosecutions (WA) [2008] WASCA 188; (2008) 38 WAR 217

CORBOY J:

The Application, the issues and the result

On 24 June 2019, the respondent, Peter Robert Garlett, pleaded guilty to the following charges (the November 2017 Offences):
(1)On 19 November 2017 at Rivervale, [he] and [others] entered or were in the place of Nakyung Lee and Sojung Lee without their consent, with intent to commit an offence therein
And that [he] and [others] were in company with each other
And that immediately before the commission of the offence [he] and [others] knew or ought to have known that there was another person in the place
And that the place was ordinarily used for human habitation.
(2)On the same date and at the same place as in Count [1], [he] and [others] stole from Nakyung Lee and Sojung Lee, with threats of violence, a pendant necklace and $20.00 cash the property of Nakyung Lee and Sojung Lee
And that [he] and [others] pretended to be armed with a dangerous weapon, namely a handgun
And that [he] and [others] were in company with each other.
On 2 July 2019, the respondent was sentenced by Fiannaca J to a total effective sentence of 3 years 6 months' imprisonment. The sentence was backdated to commence on 20 November 2017. A parole eligibility order was made.[1]
[1] The State of Western Australia v Garlett [2019] WASCSR 74.
On 12 January 2021, the respondent was sentenced to five months imprisonment in the Magistrates Court for the offence of criminal damage. The sentence was ordered to be served cumulatively on the sentence imposed for the November 2017 Offences. The offence was committed while the respondent was in prison serving his sentence for the November 2017 Offences.[2]
[2] Annexures 'B' to 'D' to the supplementary affidavit of Brent Douglas Meertens affirmed 23 September 2021.
The respondent was not released to the community on parole. His release date was 19 October 2021.[3]
[3] Annexure 'B' to the affidavit of Brent Douglas Meertens affirmed 3 August 2021 (Mr Meertens' Affidavit).
In February 2021, the High Risk Serious Offender Review Committee referred the respondent to the State Solicitor's Office to consider whether an application should be made under s 35 of the High Risk Serious Offenders Act 2020 (WA) (HRSO Act).[4] That section provides that the State of Western Australia may apply to the Supreme Court for a restriction order in relation to a 'serious offender under custodial sentence who is not a serious offender under restriction'. A 'serious offender under custodial sentence' is a person who is under a custodial sentence for a 'serious offence'. Relevantly, a 'serious offence' is defined by s 5 of the Act to mean an offence specified in sch 1 div 1 to the Act.
[4] Attachment 'SB1'to the affidavit of Shenaya Beverley Barnard affirmed 3 September 2021.
By application dated 29 July 2021 (the Application), the State applied for:
(1)a restriction order under s 48 of the HRSO Act;
(2)orders pursuant to s 46(2)(a), (b) and (d) of the HRSO Act;
(3)an order that, until the conclusion of the hearing and judgment on the Application:
(a)the respondent be detained in custody;
(b)alternatively, with effect from the date of the order, the respondent be released subject to the conditions required by s 30(2) and such other conditions as the court considered appropriate.
The Application was first mentioned before Fiannaca J on 7 September 2021. Counsel for the respondent, Mr Sheiner, advised that he was instructed to challenge the validity of the HRSO Act or parts of the Act.
By letter dated 10 September 2021, s 78B of the Judiciary Act 1903 (Cth) notices were given to the Attorney General for the Commonwealth of Australia and the Attorney General for each State and Territory. The notices foreshadowed two matters arising under the Constitution:
(a)whether the HRSO Act, or parts of the Act, are incompatible with Ch III of the Constitution;
(b)whether certain provisions of the Act are inconsistent with s 9 of the Racial Discrimination Act 1975 (Cth) (RDA) and are accordingly, invalid by reason of s 109 of the Constitution.
Subsequently, written submissions filed on behalf of the respondent limited the question of validity to items 34 and 35 of sch 1 div 1 to the HRSO Act. Item 34 specifies that robbery (s 392 of the Criminal Code (WA)) is a 'serious offence' for the purpose of the Act. Item 35 specifies that the offence of assault with intent to rob (s 393 of the Code) is also a 'serious offence'.
On 24 September 2021, the Chief Justice fixed 13 October 2021 as the date for the preliminary hearing of the Application. There was, at the time of the directions hearing before his Honour, a possibility that the preliminary hearing might be adjourned to a date sometime in November to allow the parties and the court further time to prepare for the preliminary hearing given the constitutional challenge. However, that possibility was contingent on matters that could not be subsequently agreed between the parties and the preliminary hearing proceeded on 13 October 2021.
The Attorney General for Western Australia intervened on the matters raised by the s 78B notice. The Solicitor General, Mr Thomson SC, and Ms Richardson appeared for the Attorney General.
Mr Meertens represented the applicant at the preliminary hearing. He confined his submissions to the application for orders under s 46 of the HRSO Act.
As the respondent's release date was 19 October 2021, it was necessary to determine whether orders should be made under s 46 of the HRSO Act at, or immediately following, the preliminary hearing. That, in turn, required a decision to be made on the validity of the challenged parts of the Act.
On 18 October 2021, I held that:
(a)the challenged parts of the HRSO Act do not confer powers on the Supreme Court that are repugnant to or incompatible with the court's exercise of federal jurisdiction;
(b)the HRSO Act is preventative not punitive in character and the Act is not invalid because of the effect a restriction order has on an offender found to be a high risk serious offender;
(c)the HRSO Act is not invalid according to the 'Lim principle',[5] when considered with the 'Kable' principle;[6]
(d)the effect of the HRSO Act is not inconsistent with s 9(1A) of the RDA;
(e)there are reasonable grounds for believing that the court might, in accordance with s 7 of the HRSO Act, find that the respondent is a high risk serious offender; and
(f)an order should be made under s 46(2)(c) of the HRSO Act for the respondent to be detained until the Application is finally determined.
[5] Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs [1992] HCA 64; (1992) 176 CLR 1. The plurality in Minister for Home Affairs v Benbrika [2021] HCA 4; (2021) 95 ALJR 166 termed the relevant principle as 'the Lim principle' and the underlying proposition as 'the Lim general proposition' [18] (Kiefel CJ, Bell, Keane and Steward JJ).
[6] Kable v Director of Public Prosecutions for the State of New South Wales [1996] HCA 24; (1996) 189 CLR 51.
It was not possible in the short time available to provide detailed reasons for those findings at the hearing on 18 October 2021. These are my reasons for the findings and orders made at that hearing.

The scheme of the HRSO Act

The long title to the HRSO Act states that the Act is an Act 'to provide for the detention in custody or the supervision of high risk serious offenders, to repeal the Dangerous Sexual Offenders Act 2006 (DSO Act) and to make consequential and other amendments to various Acts'. Section 8 states the objects of the Act:
(a)to provide for the detention in custody or the supervision of high risk serious offenders to ensure adequate protection of the community and of victims of serious offences; and
(b)to provide for continuing control, care or treatment of high risk serious offenders.
Section 11 of the HRSO Act provides that the Attorney General may make applications under the Act, or take other proceedings for which the Act provides, in the name of the State. The section further provides that the Attorney General may authorise, among others, the State Solicitor to exercise those powers in the name of the State. Section 82 provides that proceedings under the HRSO Act, or on appeal under the Act, are taken to be criminal proceedings for all purposes. However, that section 'does not require anything that is to be evidenced for the purposes of [the Act] to be evidenced to a higher standard than is required by s 7(1)'.
As mentioned above, s 5 of the HRSO Act defines a serious offence to include an offence specified in sch 1 div 1 to the Act. Section 7(1) defines who is a 'high risk serious offender':
An offender is a high risk serious offender if the court dealing with an application under this Act finds that it is satisfied, by acceptable and cogent evidence and to a high degree of probability, that it is necessary to make a restriction order in relation to the offender to ensure adequate protection of the community against an unacceptable risk that the offender will commit a serious offence.
Section 7(2) provides that the State has the onus of satisfying the court that an offender is a high risk serious offender. Section 7(3) states that in considering whether it is satisfied that an offender is a high risk serious offender, the court must have regard to:
(a)any report prepared under section 74 for the hearing of the application and the extent to which the offender cooperated in the examination required by that section;
(b)any other medical, psychiatric, psychological, or other assessment relating to the offender;
(c)information indicating whether or not the offender has a propensity to commit serious offences in the future;
(d)whether or not there is any pattern of offending behaviour by the offender;
(e)any efforts by the offender to address the cause or causes of the offender's offending behaviour, including whether the offender has participated in any rehabilitation programme;
(f)whether or not the offender's participation in any rehabilitation programme has had a positive effect on the offender;
(g)the offender's antecedents and criminal record;
(h)the risk that, if the offender were not subject to a restriction order, the offender would commit a serious offence;
(i)the need to protect members of the community from that risk;
(j)any other relevant matter.
Part 2 of the Act creates the High Risk Serious Offenders Board. Section 15 specifies the functions of the Board:
(a)to develop and promote the development of knowledge, understanding, skills and expertise in all aspects of the assessment and management of offenders;
(b)to facilitate cooperation between and the coordination of relevant agencies in the performance of their serious offender functions;
(c)to facilitate information‑sharing between relevant agencies in relation to the performance of their serious offender functions;
(d)to develop best practice standards and guidelines for the performance by relevant agencies of their serious offender functions;
(e)to advise relevant agencies in relation to resourcing, service provision and training relevant to the performance of their serious offender functions.
The membership of the Board comprises the Chief Executive Officer of the Department of the public service principally assisting in the administration of the HRSO Act (she or he is to be the chair of the Board); the Chief Psychiatrist or an appointed member of staff of the Chief Psychiatrist; the Chief Executive Officer or chief employee or an appointed member of staff for a number of agencies (agencies concerned with health, housing and policing) and community members. Section 18 specifies that the attributes of a community member may include a knowledge and understanding of Aboriginal culture local to the State of Western Australia and a knowledge and understanding of risk assessment and 'management frameworks' that are appropriate for Aboriginal people.
Part 3 of the Act provides for cooperation and sharing of information between 'supporting agencies'. The term 'supporting agency' is defined by s 3. The definition includes a 'relevant agency'. That term is also defined by s 3. Supporting agencies comprise the Department principally assisting in the administration of the Act; Departments relating to health, housing and policing; the Department principally assisting in the administration of the Prisons Act 1981 (WA); the Office of the Director of Public Prosecutions; the Prisoners Review Board; the Supervised Release Review Board and any other public sector body designated by the Regulations as a supporting agency.
Supporting agencies are required to cooperate in performing 'serious offender functions'. 'Serious offender functions' are defined by s 3 as functions that are 'concerned with the assessment or management of serious offenders under custodial sentence or serious offenders under restriction'. Section 24(3) provides that cooperation between supporting agencies in the performance of serious offender functions may include the development of multi-agency management plans for offenders and providing assistance and support to offenders through joint programs.
Part 4 of the Act provides for the restriction of offenders. Section 26 provides for continuing detention orders and s 27 for supervision orders. A continuing detention order is an order that the offender be detained in custody for an indefinite term for control, care, or treatment. A supervision order is an order that the offender, when not in custody, is to be subject to stated conditions in accordance with s 30 of the HRSO Act.
Section 29 limits a court's power to make a supervision order:
(1)A court cannot make, affirm or amend a supervision order in relation to an offender unless it is satisfied, on the balance of probabilities, that the offender will substantially comply with the standard conditions of the order as made, affirmed or amended.
(2)The onus of proof as to the matter described in subsection (1) is on the offender.
Part 4, div 2 concerns applications for a restriction order. Reference has already been made to s 35 which forms part of div 2. Section 37 provides that a restriction order application must be accompanied by any affidavit to be relied on by the State for the purpose of seeking orders under s 46. The application, and any accompanying affidavit, must be provided to the offender within seven days after making the application.
Section 39 imposes an obligation of disclosure on the State after a preliminary hearing has been conducted. The State is under a continuing obligation to disclose 'evidentiary material' as defined by s 34.
Section 41 requires an offender to disclose any expert evidence material and to file and serve affidavits prior to a preliminary hearing. Section 45 provides that an affidavit for use in a preliminary hearing must be confined to evidence that could be given orally, except that it may contain statements based on information and belief if the source of the information and the grounds for the belief are stated.

Relevantly, s 46 provides:
(1)The main purpose of the preliminary hearing is to decide whether the court is satisfied that there are reasonable grounds for believing that the court might, in accordance with section 7, find that the offender is a high risk serious offender.
(2)If the court is satisfied as described in subsection (1) -
(a)the court must order that the offender undergo examination by a psychiatrist and a qualified psychologist for the purpose of preparing reports in accordance with section 74 to be used on the hearing of the restriction order application; and
(b)the court may, on the application of the State or of the offender, order that a person or body named by the court prepare a report in accordance with section 75 to be used on the hearing of the restriction order application on questions or topics set out in the order; and
(c) the court may -
(i)if the offender is in custody and might otherwise be released from custody before the restriction order application is finally decided, order that the offender be detained in custody for the period stated in the order; and
(ii)if the offender is not in custody, order that the offender be detained in custody for the period stated in the order;
and
(d)the court must, except as provided in subsection (3), fix a day for the hearing of the restriction order application.
Section 48 states:
(1)If the court hearing a restriction order application finds that the offender is a high risk serious offender, the court must -
(a)make a continuing detention order in relation to the offender; or
(b)except as provided in section 29, make a supervision order in relation to the offender.
(2)In deciding whether to make an order under subsection (1)(a) or (b), the paramount consideration is to be the need to ensure adequate protection of the community.
Section 30(2) provides that a supervision order must require an offender to:
(a)report to a community corrections officer at the place, and within the time, stated in the order and advise the officer of the offender's current name and address; and
(b)report to, and receive visits from, a community corrections officer as directed by the court; and
(c)notify a community corrections officer of every change of the offender's name, place of residence or place of employment at least 2 days before the change happens; and
(d)be under the supervision of a community corrections officer and comply with any reasonable direction of the officer (including a direction for the purposes of section 31 or 32); and
(e)not leave, or stay out of, the State of Western Australia without the permission of a community corrections officer; and
(f)not commit a serious offence during the period of the order; and
(g)be subject to electronic monitoring under section 31.
Section 30(5) provides that a supervision order may also contain any other terms that the court thinks appropriate:
(a)to ensure adequate protection of the community;
(b)for the rehabilitation, care or treatment of the offender subject to the order;
(c)to ensure adequate protection of victims of serious offences committed by the offender subject to the order.
A supervision order may provide that, for the period specified in the order, the offender is to be subject to electronic monitoring pursuant to s 31 of the HRSO Act and/or to a curfew under s 32. Section 31 permits a community corrections officer to direct an offender to wear an approved electronic monitoring device. A community corrections officer may also give any reasonable direction necessary for the proper administration of a curfew requirement imposed by a supervision order. Section 33 enables a community corrections officer to take certain steps to enforce electronic monitoring and curfew requirements. The section also creates offences (removing or interfering with an electronic monitoring device; failing to comply with a direction given by a community corrections officer; and hindering an officer exercising the powers conferred by s 33 to enforce electronic monitoring and curfew requirements).
Part 5 provides for periodic review of a continuing detention order. Section 64(2) requires the State to apply for a review to be carried out as soon as practicable after:
(a)the end of the period of one year commencing when the offender was first in custody pursuant to the continuing detention order;
(b)the end of the period of two years subsequently while the continuing detention order remains in effect.
Section 65 provides for an application by the offender to review a continuing detention order. An offender requires the leave of the court to make the application.
Section 68 requires that a continuing detention order must be rescinded if, on a review, the court finds that the offender does not remain a high risk serious offender. If the court finds that the offender remains a high risk serious offender, it must confirm the continuing detention order or rescind the order and make a supervision order. In deciding which order to make, the paramount consideration is the need to ensure the adequate protection of the community.
Part 6 of the Act provides for appeals. However, s 69(3) provides that an appeal does not lie against a decision on an order made at a preliminary hearing.
Section 80(1) provides that an offender subject to a supervision order must not, without reasonable excuse, contravene a requirement of the order. Section 51 provides that a magistrate may issue a warrant for the arrest of a person where there are reasonable grounds for suspecting that the person has or is likely to contravene a supervision order. A police officer who suspects on reasonable grounds that an offender has committed an offence under s 80(1) may, without a warrant, arrest the offender.
The penalty for contravention of a supervision order is imprisonment for three years. The procedure applicable to a charge under s 80(1) is the procedure applicable to a charge of any other simple offence.

The Sentence Administration Act and the Sentencing Act

The respondent contended that the HRSO Act is to be interpreted in the context and having regard to a 'legislative scheme' which includes pt 5A of the Sentence Administration Act 2003 (WA) and s 98 of the Sentencing Act 1995 (WA).
Part 5A of the Sentence Administration Act requires the Prisoners Review Board to consider whether a post-sentence supervision order (PSSO) should be made in respect of a prisoner. In determining whether an order should be made, the Board is required to have regard to:
(a)the considerations specified in s 74B of the Act;
(b)the report made by the Chief Executive Officer of the agency principally assisting the Minister in administering pt 8 of the Act;
(c)any other information about the prisoner brought to the Board's attention.
The standard obligations of a PSSO require a supervised offender to report to a Community Corrections Centre within 72 hours after being released and to comply with the obligations imposed by s 76 of the Act. The Board may also impose additional requirements pursuant to s 74G, including a requirement that the supervised offender wear an electronic monitoring device.
Section 98 of the Sentencing Act empowers a superior court to impose indefinite imprisonment in sentencing an offender. Section 98(2) provides that indefinite imprisonment must not be ordered unless the court is satisfied on the balance of probabilities that when the offender would otherwise be released from custody in respect of the nominal sentence or any other term, he or she would be a danger to society or a part of it because of one or more of the factors specified in s 98(2). Section 98(3) provides that, in deciding whether an offender would be a danger to society or a part of it, the court is not to decide that the offender would not be a danger merely because of the possibility that an order might be made in respect of the offender under the HRSO Act.

The issues

The s 46 issues

The issues to be determined under s 46 of the HRSO Act were:
(a)whether the court was satisfied of the matter stated in s 46(1);
(b)and if so, whether the respondent should be detained in custody pending the final determination of the Application or whether an interim supervision order should be made under s 58 of the HRSO Act.

The validity issues

In his written submissions, the respondent contended that items 34 and 35 of sch 1 div 1 to the HRSO Act are invalid in that:
(a)they are 'contrary to the requirements of Chapter III of the Australian Constitution'; and/or
(b)'the provisions operate in a manner that is inconsistent with the operation of s 9 of the [RDA] and are therefore invalid by operation of s 109 of the Constitution'.[7]
[7] Respondent's Submissions on Constitutional Validity of the HRSO Act dated 22 September 2021 (the Respondent's Submissions on Constitutional Validity), pars 1.1 and 1.2.
As to the first of those matters, the respondent submitted that the challenged provisions of the HRSO Act were repugnant to or incompatible with the institutional integrity of the Supreme Court as a repository of federal jurisdiction: Kable. One aspect of that submission concerned what the plurality in Minister for Home Affairs v Benbrika referred to as the 'Lim principle' and the 'Lim general proposition': Chu Kheng Lim v Minister for Immigration.
As to the second of those matters, the respondent contended that the effect of the HRSO Act was to indirectly discriminate against Aboriginal offenders given the disproportionally high rates of conviction and imprisonment of Aboriginal people and aspects of the risk assessment required by s 7 of the Act: s 9(1A) of the RDA. The respondent presented evidence in the preliminary hearing which he submitted established the constitutional facts required for that contention.
The respondent further clarified the scope of his challenge to the validity of the HRSO Act in a letter to the State Solicitor's Office dated 6 October 2021. A copy of the letter was handed up during the preliminary hearing. The letter stated in part:
In the respondent's submissions as filed, it is contended that it is unnecessary for the court to decide the constitutional validity of the HRSO Act save for items 34 and 35 of Schedule 1 Division 1 of the Act. The respondent intends to modify this submission to argue in the alternative that if it is necessary to decide the validity of the other provisions of the Act then sections 48, section 29, and section 30(2)(g) are invalid for the reasons set out in paragraphs 1 to 76 of the submissions. The respondent also contends that these provisions are invalid by reason of the RDA [RDA] for the reasons set out in paragraphs 77 to 95.
The Attorney General submitted it was necessary to identify the extent of the challenge to the validity of the HRSO Act as that would 'help clarify thought processes' and because the end point of the issue could be declaratory relief: '[w]e would not wish to be in a position where your Honour has a free-roaming look at the Act, and declares various parts of it valid, or invalid, which would go way outside the declarations that ought to have been sought and have not really been identified.'[8]
[8] ts 85.
The respondent's challenge, so the Attorney General submitted, 'may be described as a challenge to the inclusion of the offences of robbery and assault with intent to rob as offences which give rise to a restriction order'. It was also noted that the letter of 6 October 2021 referred to a challenge to those provisions of the HRSO Act that provided for electronic monitoring as a standard condition of a supervision order.[9] The Attorney General's concern with the width of the respondent's challenge was further explained by the Solicitor General: 'this is not a challenge to everything in schedule 1, nor could it be, because there is a diversity of offences, and it is not a challenge to anything which is a standard part of the supervision orders, apart from electronic monitoring'.[10]
[9] ts 85.
[10] ts 86.
Items 34 and 35 of sch 1 div 1 merely identify two offences which are defined as 'serious offences' for the purposes of the HRSO Act. They are, in effect, the serious offences identified by the State for the purpose of s 7(1) of the Act.[11] However, legal consequences only attach to the designation of an offence as a 'serious offence' by force of other relevant provisions of the Act. Subject to the comments that follow about the respondent's intent, and the Attorney General's concerns, it is not especially meaningful to speak of the validity or invalidity of two items of sch 1 div 1 divorced from the Act.
[11] The applicant submitted that the respondent's offending history indicated that he had a propensity to commit armed robberies. The applicant further submitted that the pattern of the respondent's offending involved recurrent stealing using violence and committing violent offences in the course of the theft/robbery: Applicant's Outline of Submissions for Preliminary Hearing dated 17 September 2021 (the Applicant's Preliminary Hearing Submissions), pars 32 and 36.
There are several further points to be noted about the scope of the respondent's challenge to the validity of parts of the HRSO Act.
First, the respondent, in effect, recognised the point made immediately above. He advanced arguments to the effect that the Act, as a whole, might be invalid only to the extent that it purported to apply to an offender who had been convicted of robbery and/or assault with intent to rob and/or an offender in respect of whom it was alleged that there was an unacceptable risk that they would commit either of those offences in the future. The respondent was content to adopt that approach as a finding that the Act was invalid on that limited basis would still be sufficient to deny the court jurisdiction over the Application.
Second, that approach apparently accorded with the Attorney General's understanding of the scope of the challenge to the validity of the HRSO Act. The Attorney General was concerned to ensure that any declaration of invalidity should be confined to precisely what was put in issue by the respondent so that the validity of the Act, as it applied to other serious offences, would not be affected by any finding made in this matter.
Third, in substance, the issue raised by the respondent is the court's power to make orders under s 46 of the HRSO Act. As the respondent's letter of 6 October 2021 recognised, that matter raised a further issue concerning the validity of s 48 given the purpose of a preliminary hearing. Sections 46 and 48 are at the heart of the scheme created by the HRSO Act. That is made plain by the long title to the Act and a review of its objects and provisions. A finding that those sections are valid or invalid is, in a real sense, a finding about the validity of the HRSO Act as a whole.
Fourth, the meaning and effect of s 7 was central to the respondent's contentions concerning Kable repugnancy or incompatibility and the alleged inconsistency of the HRSO Act with s 9(1A) of the RDA. Although the respondent did not directly challenge the validity of s 7, the section would have no purpose if ss 46 and 48 were held to be invalid.
Fifth, the contention that the HRSO Act was inconsistent with the RDA relied on an allegation that the effect of the former Act was to indirectly discriminate against Aboriginal prisoners. The HRSO Act does not, by its terms, draw any distinction between Aboriginal and non-Aboriginal offenders. It would have been possible on the respondent's contentions to have found the HRSO Act invalid if the State sought to apply the Act to Aboriginal offenders (s 109 of the Constitution inconsistency) but valid when applied to non-Aboriginal offenders. In the event, I found the effect of the HRSO Act was not inconsistent with s 9(1A) of the RDA.
I deferred making any order concerning the validity of the HRSO Act at the hearing on 18 October 2021 to enable the parties to consider these reasons. The orders made at the hearing were solely for the purpose of the final hearing of the Application under s 48. Those orders were necessarily premised on a finding that those parts of the HRSO Act that related to the Application were valid. I will hear further from the parties on the form of any declaration that might be sought by the Attorney General.

The evidence

The applicant relied on the following affidavits in support of that part of the Application that sought orders under s 46 of the HRSO Act:
(a)affidavit of Brent Douglas Meertens affirmed 3 August 2021 with annexures (Mr Meertens' affidavit);
(b)affidavit of Nadine Christina Minnock affirmed 17 September 2021;
(c)supplementary affidavit of Mr Meertens affirmed 23 September 2021 with annexures (Mr Meertens' supplementary affidavit).
The respondent relied on the following affidavits in support of his challenge to the validity of the HRSO Act:
(a)affidavit of Shenaya Beverley Barnard affirmed 3 September 2021 with attachments;
(b)affidavit of Associate Professor Anna Maria Ferrante sworn 9 September 2021 with attachments;
(c)affidavit of Ms Barnard affirmed 13 September 2021 with attachments;
(d)affidavit of Professor Patricia Dudgeon sworn 22 September 2021 with attachments;
(e)affidavit of Dr Stephane Shepherd sworn 22 September 2021 with attachments;
(f)affidavit of Mark David Gregson sworn 6 October 2021 with attachments.

Kable incompatibility and repugnancy

The Kable principle

In Kable, the majority of the High Court held that the Community Protection Act 1994 (NSW) was invalid. Section 5 of the Act empowered the Supreme Court of New South Wales to order that a 'specified person be detained in prison for a specified period' on being satisfied about certain matters. Although the power was expressed generally, the objects of the Act included protecting the community by providing for the preventative detention of the appellant and that '[t]his 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.'[12]
[12] Section 3 of the Act.
Broadly stated, Kable established that State Parliaments cannot confer on State courts powers or functions that impair the capacity of those courts to exercise federal jurisdiction invested under Ch III of the Constitution. As the Commonwealth Parliament can, and has, conferred federal judicial power on State courts under ss 71 and 77 of the Constitution, State courts form part of an integrated judicial system:[13]
Under the Constitution, therefore, the State courts have a status and a role that extends beyond their status and role as part of the State judicial systems. They are part of an integrated system of State and federal courts and organs for the exercise of federal judicial power as well as State judicial power. Moreover, the Constitution contemplates no distinction between the status of State courts invested with federal jurisdiction and those created as federal courts. There are not two grades of federal judicial power.
And:[14]
The second and, perhaps, the more significant matter which emerges from a consideration of the provisions of Ch III is, as I pointed out in Leeth v The Commonwealth, that State courts, when exercising federal jurisdiction "are part of the Australian judicial system created by Ch III of the Constitution and, in that sense and on that account, they have a role and existence which transcends their status as courts of the States". Once the notion that the Constitution permits of different grades or qualities of justice is rejected, the consideration that State courts have a role and existence transcending their status as State courts directs the conclusion that Ch III requires that the Parliaments of the States not legislate to confer powers on State courts which are repugnant to or incompatible with their exercise of the judicial power of the Commonwealth.
[13] Kable, 114 -115 (McHugh J).
[14] Kable, 103 (Gaudron J).

There were references in the judgments in Kable to maintaining public confidence in the judicial processes of the courts. However, as will be explained, the notion of public confidence in the courts has a particular connotation. In Fardon, Gleeson CJ observed:[15]
In some of the reasons in Kable, references were made to the capacity of the legislation there in question to diminish public confidence in the judiciary. Those references were in the context of a statute that was held to impair the institutional integrity of a court and involve it in an ad hominem exercise. Nothing that was said in Kable meant that a court's opinion of its own standing is a criterion of validity of law. Furthermore, nothing would be more likely to damage public confidence in the integrity and impartiality of courts than judicial refusal to implement the provisions of a statute upon the ground of an objection to legislative policy. If courts were to set out to defeat the intention of Parliament because of disagreement with the wisdom of a law, then the judiciary's collective reputation for impartiality would quickly disappear.
[15] Fardon v Attorney-General for the State of Queensland [2004] HCA 46; (2004) 223 CLR 575 [23].
The legislation considered in International Finance Trust Company Ltd v New South Wales Crime Commission (IFT),[16] provided for the ex parte sequestration of property on suspicion that the property was derived from serious crime related activity. The legislation limited the ability of the Supreme Court of New South Wales to enforce the Commission's obligation to give full disclosure when making an ex parte application and to ensure that appropriate steps could be to taken to accord procedural fairness. Further, a party affected by an order under the legislation was confronted with significant obstacles in seeking to have the sequestered property released.
[16] International Finance Trust Company Ltd v New South Wales Crime Commission [2009] HCA 49; (2009) 240 CLR 319.
The majority of the High Court held that the legislation was 'repugnant to the judicial process'. That was consistent with observations made by Gaudron and Gummow JJ in Kable to the effect that the provisions of the Community Protection Act were antithetical or repugnant to the judicial process.[17]
[17] Kable, 106 and 134.
McHugh J criticised 'repugnancy to the judicial process' as a criterion for determining constitutional validity in Fardon. The criticism suggested that there were differences at the time over the basis for, and reach of, the decision in Kable.[18] However, the criticism reflected a concern that the validity of State laws should not be determined according to judicial value judgments about legislative policies:[19]
The bare fact that particular State legislation invests a State court with powers that are or jurisdiction that is repugnant to the traditional judicial process will seldom, if ever, compromise the institutional integrity of that court to the extent that it affects that court's capacity to exercise federal jurisdiction impartially and according to federal law. State legislation may alter the burden of proof and the rules of evidence and procedure in civil and criminal courts in ways that are repugnant to the traditional judicial process without compromising the institutional integrity of the courts that must administer that legislation. State legislation may require State courts to exercise powers and take away substantive rights on grounds that judges think are foolish, unwise or even patently unjust. Nevertheless, it does not follow that, because State legislation requires State courts to make orders that could not be countenanced in a society with a Bill of Rights, the institutional integrity of those courts is compromised.
The pejorative phrase – "repugnant to the judicial process" – is not the constitutional criterion. In this area of constitutional discourse, it is best avoided, for it invites error. That which judges regard as repugnant to the judicial process may be no more than a reflection of their personal dislike of legislation that they think unjustifiably affects long recognised rights, freedoms and judicial procedures. State legislation that requires State courts to act in ways inconsistent with the traditional judicial process will be invalid only when it leads to the conclusion that reasonable persons might think that the legislation compromises the capacity of State courts to administer invested federal jurisdiction impartially according to federal law. That conclusion is likely to be reached only when other provisions of the legislation or the surrounding circumstances as well as the departure from the traditional judicial process indicate that the State court might not be an impartial tribunal that is independent of the legislative and the executive arms of government. (original emphasis)
[18] Professor Appleby observed that the 'inherent uncertainty of the principle, together with its almost constant reformulation and re-explanation had led to much confusion' (Gabrielle Appleby, The High Court and Kable; A Study in Federalism and Rights Protection (2014) 40(3) Monash University Law Review 673.
[19] Fardon v Attorney-General (Qld) [41] - [42].
It is now settled that the limitation on State legislative power identified in Kable is concerned with, and explained by, a constitutional requirement that the institutional integrity of State courts invested with federal jurisdiction be maintained. Consequently, a State Parliament cannot validly enact a law which would be repugnant to or incompatible with the institutional integrity of a State court as an element of a nationally integrated judicial system.[20] In Vella v Commissioner of Police (NSW), the plurality stated:[21]
The principle for which Kable stands is that because the Constitution establishes an integrated court system, and contemplates the existence 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.
[20] Fardon v Attorney-General (Qld) [101] (Gummow J); Kuczborski v The State of Queensland [2014] HCA 36; (2014) 254 CLR 51 [38] (French CJ), [102] (Hayne J) and [139] (Crennan, Kiefel, Gageler and Keane JJ).
[21] Vella v Commissioner of Police (NSW) [2019] HCA 38; (2019) 269 CLR 219 [55] (Bell, Keane, Nettle and Edelman JJ). The statement of the principle reproduces what was said by the plurality in Attorney‑General (NT) v Emmerson [2014] HCA 13; (2014) 253 CLR 393 [40].
The plurality in Attorney-General (NT) v Emmerson explained the constitutional vice in the Community Protection Act in the following passage:[22]
The ad hominem legislation in Kable … authorised the Supreme Court of New South Wales to order preventive detention without any breach of the law being alleged or any adjudication of guilt. A majority of this Court found that task incompatible with the institutional integrity of the Supreme Court because the legislation drew the Court into implementing what was essentially a political decision or government policy that Mr Kable should be detained, without the benefit of ordinary judicial process.

The propositions established by Kable and subsequent cases

[22] Attorney‑General (NT) v Emmerson [42].

Fardon

In Fardon, the High Court held that the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) (DPSO Act) was validly enacted as it did not impair the institutional integrity of the Supreme Court of Queensland. The following features of the legislation were identified by Gleeson CJ as establishing the Act's validity:[23]
The Act is a general law authorising the preventive detention of a prisoner in the interests of community protection. It authorises and empowers the Supreme Court to act in a manner which is consistent with its judicial character. It does not confer functions which are incompatible with the proper discharge of judicial responsibilities or with the exercise of judicial power. It confers a substantial discretion as to whether an order should be made, and if so, the type of order. If an order is made, it might involve either detention or release under supervision. The onus of proof is on the Attorney-General. The rules of evidence apply. The discretion is to be exercised by reference to the criterion of serious danger to the community. The Court is obliged, by s 13(4) of the Act, to have regard to a list of matters that are all relevant to that criterion. There is a right of appeal. Hearings are conducted in public, and in accordance with the ordinary judicial process. There is nothing to suggest that the Supreme Court is to act as a mere instrument of government policy. The outcome of each case is to be determined on its merits.
[23] Fardon [19].
His Honour added:[24]
It might be thought that, by conferring the powers in question on the Supreme Court of Queensland, the Queensland Parliament was attempting to ensure that the powers would be exercised independently, impartially, and judicially. Unless it can be said that there is something inherent in the making of an order for preventive, as distinct from punitive, detention that compromises the institutional integrity of a court, then it is hard to see the foundation for the appellant's argument.
[24] Fardon [20].
The other members of the majority identified similar features of the DPSO Act in holding that the legislation was valid. In particular:
(a)The Act was preventative not punitive.
(b)The Act required the court to make evaluative judgments and exercise discretions. In determining whether it was satisfied that there was an unacceptable risk that a prisoner would commit a serious sexual offence, the court was exercising judicial power; the standard of unacceptable risk was 'sufficiently precise to engage the exercise of State judicial power'.[25] The determination was made in accordance with the rules of evidence and 'the forms and procedures prescribed by the Act [bore] the hallmarks of traditional judicial forms and procedures'.[26]
(c)The 'preventative detention regime established by the Act [could not] be said to bestow upon the Supreme Court a function which "is an integral part of, or is closely connected with, the functions of the Legislature or the Executive Government." Rather, the regime is sui generis in nature'.[27] The terms, background and parliamentary history of the Community Protection Act (the legislation under review in Kable) created a perception that the Supreme Court of New South Wales might be acting in conjunction with the New South Wales Parliament and the executive government to keep one specified person in prison. It could not be concluded from the DPSO Act that the Supreme Court of Queensland 'might not render invested federal jurisdiction impartially in accordance with federal law'.[28]

Other decisions

[25] Fardon [34] (McHugh J).

[26] Fardon [220] (Callinan and Heydon JJ).

[27] Fardon [107] (Gummow J).

[28] Fardon [44] (McHugh J).

In addition to IFT, the High Court has held that the State legislation considered in The State of South Australia v Totani[29] and Wainohu v The State of New South Wales[30] was invalid on the ground of Kable repugnancy and incompatibility.
[29] The State of South Australia v Totani [2010] HCA 39; (2010) 242 CLR 1.
[30] Wainohu v The State of New South Wales [2011] HCA 24; (2011) 243 CLR 181.
The reasons for the High Court holding that the legislation in IFT was invalid were briefly mentioned above. The legislation considered in Totani was held to be invalid principally as it 'authorised the executive to enlist the Magistrates Court to implement decisions of the executive in a manner incompatible with the proper discharge of its federal judicial responsibilities and with its institutional integrity'.[31] The legislation reviewed in Wainohu provided that control orders could be made by the Supreme Court in respect of members or former members or prospective members of a 'declared organisation'. The legislation was held to be invalid as it exempted a judge from the duty to give reasons in connection with making an order declaring an organisation to be a 'declared organisation'.
[31] See the headnote to TheState of South Australia v Totani, 2.
On the other hand, challenges to State laws on the ground of Kable repugnancy and incompatibility failed in Attorney-General (NT) v Emmerson, Kuczborski v The State of Queensland, Assistant Commissioner Condon v Pompano Pty Ltd and Vella v Commissioner of Police (NSW). It is to be noted the legislation considered in Condon v Pompano Pty Ltd empowered the Queensland Supreme Court to declare an organisation a 'criminal organisation'. That required the court to decide whether the organisation was 'an unacceptable risk to the safety, welfare or order of the community'. The High Court held that the power to make that determination was judicial in nature.
In North Australian Aboriginal Justice Agency Ltd v Northern Territory of Australia,[32] French CJ, Kiefel and Bell JJ concluded that Kable, and decisions following it, established the following propositions:[33]
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 State or 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.
[32] North Australian Aboriginal Justice Agency Ltd v Northern Territory of Australia [2015] HCA 41; (2015) 256 CLR 569.
[33] North Australian Aboriginal Justice Agency Ltd v Northern Territory of Australia [39].
Nevertheless, there is no single comprehensive statement of the content to be given to the essential notion of repugnancy to or incompatibility with the institutional integrity of State courts.[34] The notions of repugnancy and incompatibility are not susceptible of further definition in terms which will necessarily dictate the outcome of future cases.[35]
[34] Kuczborski v The State of Queensland [38] (French CJ), [106] (Hayne J).
[35] Condon v Pompano Pty Ltd [124] (Hayne, Crennan, Kiefel and Bell JJ).
Further, in Kuczborski, Hayne J observed:[36]
The questions of validity presented in this case 'cannot be decided simply by taking what has been said in earlier decisions of the Court about the validity of other laws and assuming, without examination, that what is said in the earlier decisions can be applied to the legislation now under consideration'. But likewise, observing that what is said in those other cases does not fit precisely with the issues presented in this case does not conclude the question. It remains necessary to grapple with that 'essential notion' of repugnancy to or incompatibility with the institutional integrity of the State courts and to do that by recognising that there cannot be any single, let alone comprehensive, statement of the content to be given to that essential notion.

The 'defining characteristics' of a court

[36] Kuczborski [106] (Hayne J). See also, Condon v Pompano Pty Ltd in which the plurality stated that 'the critical notions of repugnancy and incompatibility are insusceptible of further definition in terms which necessarily dictated future outcomes' [124].

One of the 'Kable propositions' stated by French CJ, Kiefel and Bell JJ in North Australian Aboriginal Justice Agency Ltd v Northern Territory of Australia was to the effect that the expression 'institutional integrity' refers to the defining or essential characteristics of a court. In Condon v Pompano Pty Ltd, French CJ cited the observation of Gummow, Hayne and Crennan JJ in Forge v Australian Securities and Investment Commission,[37] that it was not possible to make 'some single all-embracing statement of the defining characteristics of a court'. His Honour continued:[38]
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.
Nevertheless, his Honour noted that the defining characteristics of courts included the reality and appearance of decisional independence and impartiality; the application of procedural fairness; adherence as a general rule to the open court principle; and the provision of reasons for the court's decisions.[39]
[37] Forge v Australian Securities and Investments Commission [2006] HCA 44; (2006) 228 CLR 45.
[38] Condon v Pompano Pty Ltd [68].
[39] Condon v Pompano Pty Ltd [67].
Similarly, the plurality in Condon v Pompano Pty Ltd noted that content must be given to the concept of institutional integrity. Their Honours then observed that independence and impartiality are defining characteristics of all courts in the Australian judicial system. They are notions that 'connote separation from the other branches of government, at least in the sense that the State courts must be and remain free from external influence. In particular, the courts cannot be required to act at the dictation of the Executive'.[40]

Benbrika, the judicial power of the Commonwealth and the 'Lim principle'

[40] Condon v Pompano Pty Ltd [125].

Chu Kheng Lim v Minister for Immigration, concerned the validity of provisions in the Migration Act 1958 (Cth) that allowed for the apprehension and detention in custody of a 'designated person' by an 'officer' (that is, a member of the Commonwealth executive) for the purpose of expulsion or deportation. The grounds on which the provisions were challenged included that they usurped the judicial power of the Commonwealth vested by Ch III in the federal judicature. Consequently, the question of validity concerned, in part, the judicial power of the Commonwealth and the separation of powers mandated by the Constitution. (It is well established that the separation of powers is not implied in the constitutions of the States.)

In that context, the plurality in Lim v Minister for Immigration made the following observations about the judicial power of the Commonwealth:[41]
The Constitution is structured upon, and incorporates, the doctrine of the separation of judicial from executive and legislative powers. Chapter III gives effect to that doctrine in so far as the vesting of judicial power is concerned. Its provisions constitute "an exhaustive statement of the manner in which the judicial power of the Commonwealth is or may be vested ... No part of the judicial power can be conferred in virtue of any other authority or otherwise than in accordance with the provisions of Chap III". Thus, it is well settled that the grants of legislative power contained in s.51 of the Constitution, which are expressly "subject to" the provisions of the Constitution as a whole, do not permit the conferral upon any organ of the Executive Government of any part of the judicial power of the Commonwealth. Nor do those grants of legislative power extend to the making of a law which requires or authorizes the courts in which the judicial power of the Commonwealth is exclusively vested to exercise judicial power in a manner which is inconsistent with the essential character of a court or with the nature of judicial power.
There are some functions which, by reason of their nature or because of historical considerations, have become established as essentially and exclusively judicial in character. The most important of them is the adjudgment and punishment of criminal guilt under a law of the Commonwealth. That function appertains exclusively to and "could not be excluded from" the judicial power of the Commonwealth. That being so, Ch.III of the Constitution precludes the enactment, in purported pursuance of any of the sub-sections of s 51 of the Constitution, of any law purporting to vest any part of that function in the Commonwealth Executive.
[41] Lim v Minister for Immigration, 26 - 27 (Brennan, Deane and Dawson JJ).
In Benbrika, the plurality identified what their Honours referred to as the 'Lim principle' and the 'Lim general proposition'. The 'Lim principle' was stated to be:
[P]utting to one side the exceptional cases to which reference is made below, the involuntary detention of a citizen in custody by the State is penal or punitive in character and, under our system of government, exists only as an incident of the exclusively judicial function of adjudging and punishing criminal guilt.[42]
[42] Lim v The Minister for Immigration, 27 (Brennan Deane and Dawson JJ).
The 'Lim general proposition' was expressed to be:
[T]he power to order that a citizen be involuntarily confined in custody is, under the doctrine of the separation of judicial from executive and legislative powers enshrined in our Constitution, part of the judicial power of the Commonwealth entrusted exclusively to Ch III courts.[43]
[43] Lim v The Minister for Immigration, 28.
The 'Lim principle' was as stated by the plurality in Lim v Minister for Immigration. In Fardon, Gummow J sought to reformulate the principle in the following terms: "'exceptional cases" aside, the involuntary detention of a citizen in custody by the State is permissible only as a consequential step in the adjudication of criminal guilt of that citizen for past acts'[44] (emphasis added). That formulation eschewed the phrase 'penal or punitive in character' and the application of the principle to preventive legislation intended to protect the community from future harm.
[44] Fardon [80].
The plurality in Minister for Home Affairs v Benbrika noted that the recognised exceptions to the 'Lim principle' included the involuntary detention of persons suffering from mental illness or infectious disease. Those exceptions involved detention for the purpose of protecting the community from harm. Their Honours observed that Gummow J had not explained why 'an appropriately tailored scheme for the protection of the community from the harm that particular forms of criminal activity may pose is incapable of coming within an analogous exception'.[45] It was also noted that the power to impose indefinite imprisonment in sentencing an offender (s 98 of the Sentencing Act) was not repugnant to or incompatible with the institutional integrity of State courts. Their Honours continued:
The order for indefinite detention is founded on the court's assessment, in the exercise of State judicial power, of the danger to society that the offender would present at the completion of the nominal sentence. As Gleeson CJ observed in Fardon, if the lawful exercise of judicial power admits of the judge assessing the danger an offender poses to the community at the time of sentencing it is curious that it does not admit of the judge making such as assessment at or near the time of imminent release when that danger might be assessed more accurately.[46]
[45] Minister for Home Affairs v Benbrika [32].
[46] Minister for Home Affairs v Benbrika [34].
At issue in Minister for Home Affairs v Benbrika was the validity of the preventative detention orders regime created by pt 5.3, div 105A of the Criminal Code (Cth). The object of the division is to allow persons to be taken into custody and detained for a short period so as to 'prevent a terrorist act that is capable of being carried out, and could occur, within the next 14 days, from occurring'.[47] Consequently, the question of validity concerned the judicial power of the Commonwealth.
[47] Section 105.1 of the Criminal Code (Cth).
The majority of the High Court in Minister for Home Affairs v Benbrika held that the power to make a continuing detention order under s 105A was within the judicial power of the Commonwealth and was a power that could be validly conferred on a State Supreme Court. In that context, the plurality observed:
Terrorism poses a singular threat to civil society. The contention that the exceptions to the Lim principle are confined by history and are insusceptible of analogical development cannot be accepted. There is no principled reason for distinguishing the power of a Ch III court to order that a mentally ill person be detained in custody for the protection of the community from harm and the power to order that a terrorist offender be detained in custody for the same purpose. It is the protective purpose that qualifies a power as an exception to a principle that is recognised under our system of government as a safeguard on liberty. Demonstration that Div 105A is non-punitive is essential to a conclusion that the regime that it establishes can validly be conferred on a Ch III court, but that conclusion does not suffice. As a matter of substance, the power must have as its object the protection of the community from harm.[48]
[48] Minister for Home Affairs v Benbrika [36].
Self-evidently, a State law will not be repugnant to or incompatible with the institutional integrity of a State court if the law could have been enacted by the Commonwealth Parliament to validly confer power on courts exercising federal jurisdiction.[49] Consistently with cases such as Fardon, the decision in Minister for Home Affairs v Benbrika illustrates that a State law will not be invalid – will not be repugnant to or incompatible with the institutional integrity of a State court - merely because it provides for the detention of a person as a preventative measure to protect the community from the risk of future harm. The decision also confirms that determinations about the risk of future harm are judicial in character.

The validity of the HRSO Act: Kable incompatibility and repugnancy

[49] See, for example, H A Bachrach Pty Ltd v State of Queensland [1998] HCA 54; (1998) 195 CLR 547 and Duncan v Independent Commission Against Corruption [2015] HCA 32; (2015) 256 CLR 83.

The respondent's contentions

In summary, the respondent contended that:
(a)While 'arguably' the DSO Act fell within the category of legislation considered in Fardon, the HRSO Act is not limited to sexual offenders but purports to apply to a wider category of offenders who have been convicted of non-sexual offences. Further, the HRSO Act is 'distinguishable from, and has been imposed on top of, the existing regime for indefinite detention of dangerous criminals under s 98 of the Sentencing Act'.[50]
(b)The 'impugned' provisions, read in the context of the HRSO Act as a whole, operate as 'an impermissible impairment on the ability of the Supreme Court to exercise the judicial power of the Commonwealth under Ch III of the Constitution' as:
(i)the provisions 'impermissibly constrain the discretion able to be exercised by the Supreme Court and for that reason seeks to enlist the Supreme Court to do the bidding of the Executive';
(ii)the overriding object of the provisions cannot properly be characterised as the protection of the community and/or their purpose is punishment;
(iii)the provisions 'do not operate so as to provide equal justice for Aboriginal people and undermine public confidence in the Courts'.[51]

Fardon and the DSO Act

[50]Respondent's Submissions on Constitutional Validity, par 42.

[51]Respondent's Submissions on Constitutional Validity, par 45.

The Attorney General submitted that the validity of the DSO Act was effectively determined by the reasoning of the majority in Fardon. I accept that submission. In my view, there is no material difference between those aspects of the DPSO Act identified in Fardon as being consistent with the institutional integrity of the Supreme Court of Queensland and the repealed DSO Act. The objects of both Acts were, in substance, identical and the scheme of each Act similar. Under the DSO Act:
(a)The court was required to make an evaluative judgment on whether it was satisfied that there was an unacceptable risk that the offender would commit a serious sexual offence if not subject to a continuing detention order or a supervision order. That judgment was judicial in nature. It was to be made by reference to relevant matters (s 7(3) of the Act).
(b)The DPP or the State carried the onus of satisfying the court about that matter by acceptable and cogent evidence and to a high degree of probability.
(c)The court was required to hold both a preliminary hearing and a hearing for a div 2 order. The rules of evidence applied to a hearing for a div 2 order and the offender was entitled to be present. The applicant was required to give disclosure and the Act stipulated that relevant expert evidence (that is, independent and impartial evidence) had to be obtained.
(d)The court was required to give detailed reasons for making a continuing detention order or a supervision order at the time that the order was made. There was a right of appeal.
(e)The court could make either a continuing detention order or a supervision order on finding that the offender was a serious danger to the community.[52] Although it was necessary to include certain conditions in a supervision order, the court had a discretion over whether further conditions should be imposed. The Act provided for periodic reviews of a continuing detention order.
[52] A majority of the Court of Appeal held in Director Public Prosecutions (WA) v Williams [2007] WASCA 206; (2007) 35 WAR 297 that the word 'may' in s 17(1) meant 'must' (the section was subsequently amended to substitute the word 'must' for 'may'). That construction of the section was affirmed by the Court of Appeal in Director of Public Prosecutions (WA) v GTR [2008] WASCA 187; (2008) 38 WAR 307 and Woods v Director of Public Prosecutions for the State of Western Australia [2008] WASCA 188; (2008) 38 WAR 217. The effect of those decisions on questions of Kable repugnancy or incompatibility are considered later when the HRSO Act is compared with the DSO Act.
Further, like the DPSO Act, the DSO Act has been characterised as preventative not punitive legislation. For example, Murray AJA observed in DPP (WA) v GTR:[53]
It seems to me to be absolutely clear that the extraordinary powers provided in the Act are intended to be exercised, not for the purpose of imposing additional punishment on an offender who has served his or her sentence and is discharged from that service, but for the ultimate purpose of the protection of the community, not only by continuing to exercise control over the person the subject of an order, but also by providing for the care and treatment of the offender in the hope that thereby the danger posed by that individual to the community or sections of it, will be reduced.
[53] DPP (WA) v GTR [97]. In The State of Western Australia v West [2013] WASC 14, I accepted what was said by Murray AJA (at [52(g)]).
Similarly, in the context of periodic reviews, Hall J observed in The State of Western Australia v Corbett [No 5]:[54]
Detention under the DSO Act is not a punishment for a past offending: it is a protective mechanism designed to prevent the risk of future serious sexual offending from being realised.
…
It is a significant thing to deprive a person of his liberty, not for something he has done, but for something that he might do in the future. In order to justify detention on these grounds the evidence must be acceptable and cogent and establish the existence of a serious danger to the community to a high degree of probability … Such a finding requires satisfaction that there is an unacceptable risk that the person would commit a serious sexual offence if not placed under a supervision order or detained.
…
The justification for making a continuing detention order is the existence of an unacceptable risk of serious sexual offending that cannot be adequately controlled by conditional release. However, detention also serves the purpose of allowing treatment and care in a secure environment … This confirms an obligation on the part of prison authorities to facilitate change by offering programmes and access to counselling.
If the risk changes or resources improve to enable more efficacious condition, then the need for detention may dissipate. In these circumstances, continuing detention may be unjust.
The review process is intended to ensure that detention only continues where necessary. It mitigates the otherwise draconian effect of imprisoning people for crimes that they have not committed.
[54] The State of Western Australia v Corbett [No 5] [2017] WASC 115 [8] – [13].
Those views reflected the objects of the DSO Act and essential aspects of its intended operation. An offender could only be found to be a serious danger to the community if the court was satisfied that there was an unacceptable risk of future offending; the paramount consideration in determining whether to make a continuing detention order or a supervision order was the need to ensure adequate protection of the community; a continuing detention order could only be made for the purpose of the control or care or treatment of the offender; the mandatory conditions for a supervision order reflected the need for control and supervision of an offender; and the court could impose other conditions in a supervision order that were thought to be appropriate to ensure adequate protection of the community and the rehabilitation, care or treatment of an offender.
The Attorney General submitted that cases decided since Kable established that preventative legislation (that is legislation that has as its object the protection of the community from the risk of future harm) is not, by its very subject matter, repugnant to or incompatible with the institutional integrity of State courts invested with federal jurisdiction. That proposition was said to provide the starting point for determining the validity of the HRSO Act. I accept that submission having regard to cases in which preventative legislation conferring powers on State courts, including powers of control and detention, have been held to be valid.[55]

Does the HRSO Act 'impermissibly constrain' the court?

Vella v Commissioner of Police (NSW) – risk assessment and balancing elements

[55] Fardon, Kuczborski v The State of Queensland, Condon v Pompano Pty Ltd, Minister for Home Affairs v Benbrika and Vella v Commissioner of Police (NSW). See also Thomas v Mowbray [2007] HCA 33; (2007) 233 CLR 307.

It is convenient to commence with the respondent's contention that the 'impugned' provisions of the HRSO Act 'impermissibly constrain' the court and seek to 'enlist the Supreme Court to do the bidding of the Executive'. The respondent developed that contention by reference to the reasoning of the plurality in Vella v Commissioner of Police (NSW).
The Crimes (Serious Crime Prevention Orders) Act 2016 (NSW) (SCPO Act) empowered the Supreme Court of New South Wales to make a 'serious crime prevention order'. The plurality noted that there were six required steps before the court could exercise the power to make such an order. The third step required the court to assess whether there was a real likelihood that a person against whom the order was sought would be involved in serious crime related activity. That was a forward‑looking risk assessment requirement. The fifth step required the court to undertake what was described as a 'balancing process': the 'prohibitions, restrictions, requirements and other provisions' ordered were required to be such 'as the court considers appropriate for the purpose of protecting the public by preventing, restricting or disrupting involvement by the person in serious crime related activities'.[56] An 'appropriate' order was an order that was reasonable and adapted to its purpose.
[56] Vella v Commissioner of Police (NSW) [49].
Their Honours considered that there were 'striking similarities' between the SCPO Act and other preventative order regimes that have been held not to infringe the Kableprinciple: '[e]ach regime involves criteria that are necessarily imprecise, since the future is not certain, particularly in relation to the assessment of risk (the third step) and the balancing process (the fifth step)'.[57] The DPSO Act was said to be an example of a 'preventative order regime' that contained risk and balancing criteria:[58]
The risk criterion is if the person is 'a serious danger to the community', defined as involving an unacceptable risk that the prisoner would commit a serious sexual offence if released from custody or released from custody without a supervision order. The Court might decide that it is 'satisfied' only if satisfied to a high degree of probability by acceptable, cogent evidence of sufficient weight to justify the decision. The balancing criteria applies in relation to the Court's choice of three orders (detention in custody, conditional release, or no order) and, in relation to conditional release, the conditions that it 'considers appropriate'.
[57] Vella v Commissioner of Police (NSW) [57].
[58] Vella v Commissioner of Police (NSW) [66].
The respondent contended that the reasoning of the plurality in Vella v Commissioner of Police (NSW) established that:
(a)the incorporation of risk assessment and balancing elements underpinned the constitutional validity of 'preventative order regimes' such as the DPSO Act and the regime created by div 104 of the Criminal Code (Cth) considered in Thomas v Mowbray;
(b)the balancing criterion involved an exercise of 'tailoring' any order made by the court so as to 'intrude on personal liberty only to the extent necessary';
(c)the discretion conferred by the HRSO Act was limited as there were restrictions on the risk assessment criteria that were not present in the DPSO Act;
(d)the HRSO Act did not contain any effective balancing criterion.
The respondent submitted that the restrictions on risk assessment imposed by the HRSO Act, which were not present in the DPSO Act impermissibly constrained the court's discretion, were:
(a)The offences 'deemed' to be sufficiently serious to attract the application of the HRSO Act are prescribed solely by reference to offences under the Criminal Code, whereas the DPSO Act defines a 'serious sexual offence' as an offence of a sexual nature involving violence or against children.
(b)Accordingly, the court under the DPSO Act is required to make an evaluative assessment about whether a prisoner had committed an offence of a sexual nature involving violence or against children. The HRSO Act, on the other hand, removes any discretion over the types of offences or offending which are sufficient to justify a restriction order.
(c)The court's discretion under the HRSO Act is constrained by the matters specified in s 7(3) that must be considered in determining whether an offender is a 'high risk serious offender': 'the Executive has made its own value judgment as to the evidence which the Court must have regard in determining risk'.[59]
(d)The court is compelled by the HRSO Act to have regard to factors such as the offender's 'disturbed background' only to the extent that it elevated the level of risk and the court was 'simply tasked with an exercise in assessing the probability of future offending based on prescribed criteria'.[60]
[59] Respondent's Submissions on Constitutional Validity, par 56.
[60] Respondent's Submissions on Constitutional Validity, par 57.

The respondent also contended that the words 'could' or 'would' may be substituted for the word 'might' when used in s 46(1) without changing the meaning or 'intention' of the section.[120] The respondent referred to the decision of the Queensland Court of Appeal in Australian Hospital Care Pty Ltd v Swinbank[121] and the judgment of Gillard J in R v Jeffrey[122] in support of that proposition.
[120] Respondent's Outline of Responsive Submissions for Preliminary Hearing on 13 October 2021 (Respondent's s 46 Submissions), par 5.
[121] Australian Hospital Care Pty Ltd v Swinbank [1999] QCA 247.
[122] R v Jeffrey [1967] VR 467.
The issue in Australian Hospital Care was the proper construction of an exclusion clause in an insurance policy. The clause excluded liability for a claim arising out of malpractice prior to the commencement date of the policy if the assured could, among other things, have reasonably foreseen that such malpractice 'might be expected to be the basis of a claim'. The primary judge had held that 'the element of certainty attaching to the word "expect" is somewhat qualified by the element of possibility or conditionality rather than probability introduced into the exclusion clause by the adverb "might"'.
On appeal, Chesterman J concluded that the word 'might' is not 'an adverb used to indicate possibility and so to qualify the primary meaning of "expect". Its function is as an auxiliary verb to render the phrase, "might be expected", into the subjunctive mood appropriate for the connotation that any claim is hypothetical or prospective. It would have been possible to omit 'might' without altering the sense or subjunctive form'.[123] The respondent relied on those observations to contend that the word 'might' appearing in s 46(1) of the HRSO Act merely indicated that the determination to be made under s 48 was prospective.
[123] Australian Hospital Care [20].
The observations of Chesterman J were made in an entirely different context to the interpretation of s 46(1). As his Honour explained, the word 'might', when used in the exclusion clause, was substantively redundant; the operative part of the clause was to be found in the expressions 'reasonably foreseeable' and 'be expected'. The word 'might' merely indicated that the reasonably foreseeable expectation concerned past malpractice giving rise to a claim made after the inception date of the policy.
That is not the function performed by the word 'might' in s 46(1). The word denotes not just that a finding may be made in the future. Unlike in Australian Hospital Care, the word 'might' cannot be struck from s 46(1) without altering its meaning and intended effect. The word identifies the matter about which the court must be satisfied there are reasonable grounds for believing: the possibility of a finding that, in accordance with s 7, the offender is a high risk serious offender.
Similarly, the judgment of Gillard J (sitting in the Full Court of the Supreme Court of Victoria with Barry and Smith JJ) in R v Jeffrey concerned an issue that was entirely different to any question about the interpretation of s 46(1) of the HRSO Act. In that case, the trial judge directed the jury on the defence of provocation by reference to acts being of such a character as would cause an ordinary person to lose self control. Gillard J noted that there were authorities referring to 'would' as the correct test and other authorities referring to 'could'. His Honour was not persuaded that the trial judge had necessarily erred in his direction to the jury but, in any event, a miscarriage of justice had not occurred. The respondent's contention gave undue weight to the use of one word in the context of a lengthy charge.
Barry J likewise held that the trial judge's direction had not caused a miscarriage of justice. The direction was 'adequate and completely fair in the circumstances of this trial'.[124] Smith J, however, considered that the proper test was 'could' not 'would' and that there was a material difference between the two words. His Honour concluded that there was a misdirection of law and the appeal should have been allowed.
[124] R v Jeffrey, 478.
The discussion in R v Jeffrey about 'would' and 'could' does not assist in construing s 46(1) and provides no support for the respondent's contention. Self-evidently, there is a substantive difference between the meanings denoted by the words 'would' and 'might'. To substitute, in effect, the word 'would' for 'might' in s 46(1) would fundamentally alter the operation of the section. To substitute the word 'could' for 'might' would do less violence to the operation of the section but it is not the word used in the statute and there is no ambiguity in the meaning and effect of the word Parliament chose to use in enacting the HRSO Act.
In my view, there is no substantive difference between the views expressed by McKechnie J in Director of Public Prosecutions (WA) v Free, on the one hand, and Allanson J and Quinlan CJ in The State of Western Australia v PAS and The State of Western Australia v Nelson. I also do not consider that the approach taken by the Chief Justice and Allanson J is inconsistent with the observations made by Callinan and Heydon JJ in Fardon.
As McKechnie J observed, it is probably not helpful to characterise the requirement imposed by s 8 of the DSO Act and s 46 of the HRSO Act in terms of either a high or low threshold. The court is required to determine whether it is satisfied about the matter stated in s 46(1) on a proper construction of the statutory wording. The expression 'reasonable grounds for believing' is used in a variety of legal contexts and has a well understood meaning – an inclination of mind towards assenting to, rather than rejecting, a proposition. The word 'might' means a possibility. The Chief Justice's reference to a 'low threshold' is to be understood in the context of a comparison made with a finding under s 48 that an offender is a high risk serious offender. The reference by Callinan and Heydon JJ to a 'formidable threshold' is likewise to be understood in the context of their Honours' observations about the operation and validity of the DPSO Act.

Are there reasonable grounds for believing?

Section 46(1) requires the court to consider the matters stated in s 7(3) of the HRSO Act as they govern the determination of whether an offender is a high risk serious offender. The court is required to assess the evidence adduced in the preliminary hearing by reference to the s 7(3) matters to decide whether it is satisfied there are reasonable grounds for believing that an offender might be found to a high risk serious offender.
Independently of the s 7(3) matters, it is possible a court might not be satisfied for the purpose of s 46(1) by inadequacies or defects in the evidence presented in the preliminary hearing. I was satisfied in this instance that the evidence contained in Mr Meertens' Affidavit, and in his supplementary affidavit, provided a proper basis on which to determine whether there were reasonable grounds for the required belief. There was nothing raised by the respondent, and nothing apparent on a review of the evidence, to suggest otherwise. The materials annexed to Mr Meertens' Affidavit, and his supplementary affidavit, present an internally consistent account of the respondent's history of offending, his personal circumstances, the likely causes of his offending, his participation in treatment programmes and his conduct while in custody.

The respondent's antecedents and criminal history – s 7(3)(g)

The respondent's personal circumstances were summarised in the remarks made by Fiannaca J in sentencing the respondent for the November 2017 Offences. The respondent was charged with committing the November 2017 Offences with others, including his sister, Ms Garlett‑Exell. He and Ms Garlett-Exell were sentenced together by Fiannaca J.
As his Honour observed, both the respondent and Ms Garlett-Exell 'had a sad and difficult upbringing, lacking in proper emotional nurturing and positive role models'. In their early childhood, they were exposed to domestic violence inflicted by their father on their mother and to drug and alcohol abuse in the home by both parents.[125] The respondent was placed in foster care at the age of 7, apparently on his parents being sentenced to a term of imprisonment.
[125] The State of Western Australia v Garlett [46].
A report for the Perth Children's Court dated 19 March 2009 and prepared by an officer of the Department for Child Protection noted that the Department had a history with the respondent's parents 'going back to at least 1997 regarding spouse abuse'. The report further stated that the respondent's parents 'have a long history of ongoing and severe domestic violence, drug abuse and criminal behaviour'. The report also noted two allegations of 'substantiated' physical abuse against the respondent and one unsubstantiated allegation of abuse.[126]
[126] Annexure 'AB' to Mr Meertens' Affidavit.
The report provided a detailed history of the Department's involvement with the respondent. The history indicated that a protection order was made in respect of the respondent in 2002 and he was placed with his maternal grandparents. In 2004, he was relocated to a station near Fitzroy Crossing. There was a period towards the end of 2006 in which his whereabouts was unknown to the Department but he was charged with offences in December 2006 and subsequently detained at the Banksia Hill Detention Centre. That corresponds with his first recorded convictions in the Children's Court in April 2007.
It appears that the respondent was expelled from school at about the age of 10 years; at about the age of 12 he was living on the streets and already had a problem with alcohol and drug abuse. The respondent's criminal history shows that he was convicted of numerous offences, including aggravated burglaries and aggravated robberies between 2007 and 2012. He was sentenced to several periods of juvenile detention. In February 2013, he was sentenced to a total effective sentence of 3 years' imprisonment for numerous offences including aggravated robbery (three offences); aggravated burglary (three offences); stealing motor vehicles (three offences) and escaping lawful custody. On 12 December 2013 he was sentenced to a further 12 months' imprisonment cumulative on the sentences imposed in February 2013. He was released from prison on 5 September 2017 and made subject to a PSSO under pt 5A of the Sentence Administration Act. The November 2017 Offences were committed a little more than two months following his release.[127]
[127] The respondent's criminal record is annexure 'A' to Mr Meertens' Affidavit.
The respondent has a history of substance abuse and he tested positive for methamphetamine, amphetamine and cannabis following his release to the community in September 2017. He stated that he was injecting methamphetamine daily at the time that he committed the November 2017 Offences.
The respondent advised the author of a pre-sentence report dated 15 January 2013[128] that he smoked cannabis almost daily between the age of about 10 and 12 years; that he was introduced to amphetamines at the age of 9 years by an older half-brother; that he had consumed amphetamine intravenously since that time (but stated that he did not use the drug all the time) and had used heroin as a method of coping when coming down from the effects of amphetamine.
[128] Annexure 'AC' to Mr Meertens' Affidavit.
A parole assessment report dated 5 August 2015 noted that the respondent had incurred 15 prison charges, including charges relating to drug use.[129] A parole review report dated 11 July 2019 noted that the respondent had been found to have used or possessed an illicit drug while in custody in December 2018 and had charges relating to using or possessing illicit drugs referred to a court in March 2019.[130] However, there is no record of a conviction for those offences.
[129] Annexure 'AF' to Mr Meertens' Affidavit.
[130] Annexure 'AL' to Mr Meertens' Affidavit.
The State provided an aide memoire summarising the history of the serious offences for which the respondent had been convicted. That disclosed that the respondent has been convicted of four offences of aggravated armed robbery; one offence of armed robbery; three offences of aggravated robbery and one offence of aggravated armed assault with intent to rob. Save for the November 2017 Offences, the offences were committed while the respondent was a juvenile.
It appears from the reports annexed to Mr Meerten's Affidavit that the respondent has a poor record of behaviour while in custody. A PSSO report dated 20 July 2017 described the respondent's prison conduct record as 'appalling'.[131] According to the report, the respondent had been involved in fighting and assaults, threatening behaviour and drug charges. Further, as previously noted, the criminal damage offence for which the respondent was convicted in January 2021 occurred while he was in custody.

Assessments of the respondent – s 7(3)(b)

[131] Annexure 'AJ' to Mr Meertens' Affidavit.

There were no psychiatric or psychological reports annexed to Mr Meertens' Affidavit. There was a reference in a parole assessment report dated 1 August 2019 to the respondent having 'had a counsellor as a juvenile who he trusts and engaged well with but is highly resistant of engaging with any other service or individual'.[132] However, there was no report annexed to Mr Meertens' Affidavit from a person who could have been the counsellor and I was unable to find references in other reports to the respondent having participated in one-on-one personal counselling. The respondent received a reasonably positive report from his participation in a treatment programme while in custody at Casuarina Prison. He was 21 at the time he participated in that programme.[133]
[132]Annexure 'AM' to Mr Meertens' Affidavit, p 314.
[133] Cognitive Skills Program, annexure 'AG' to Mr Meertens' Affidavit.
In a pre-sentence report dated 15 January 2013, the respondent was described as presenting with no insight into his offending, limited recollection of antecedence, poor demonstration of victim empathy and justification for his behaviour.[134] A Cognitive Skills Program completion report noted that the respondent trusted only a few family members who were close to him as a result of his past experiences. In a report dated 25 June 2019, the author noted that the respondent was currently on anti-depressant medication which the respondent reported helped to calm him. The author of the report commented that '[t]here may be some benefit in further exploration of underlying mental health issues which have led to his entrenched substance misuse'.[135]
[134] Annexure 'AC' to Mr Meertens' Affidavit.
[135] Annexure 'AK' to Mr Meertens' Affidavit.
It is, perhaps, surprising that there was not more evidence of the respondent having been referred to, at least, a psychologist while in detention or custody given his apparently abusive and emotionally impoverished childhood. It is possible a court may find that the respondent has personal counselling needs that are different to, and have not and will not be fully met, by participation in other custodial treatment programs. That finding might be made having regard to the respondent's personal history; the young age at which he commenced committing significant and serious offences such as aggravated burglary and armed robbery; the repetitive nature of his offending; his prison conduct, and references in reports to anger and emotional volatility.

Propensity and pattern of offending – s 7(3)(c) and (d)

The word 'propensity' is taken to have its ordinary meaning in the context of the criminal law. In DPP (WA) v GTR, Murray AJA stated that:
[Propensity] means that the offender has an inclination or tendency, a disposition to commit serious sexual offences generally, in a particular way, or upon a particular type of victim. The word refers to some identifiable characteristic of the offender, something in his makeup or personality which may or may not be of the quality of a diagnosable mental illness or personality disorder.[136]
[136] DPP (WA) v GTR [178].
Those remarks were made in the context of the DSO Act. They might more appropriately apply to an offender who has a history of serious sexual offending. In the case of an offender who has a history of committing offences of the kind committed by the respondent, the question of propensity will substantially overlap with the question whether of there is a pattern of offending behaviour by the offender.
The respondent has accumulated a significant history of serious offending. In addition, he has been convicted of numerous other offences which are not designated serious offences for the purpose of the HRSO Act but which could be found to be relevant to the pattern of the respondent's offending and his propensity to commit particular types of offences. Most relevantly, he has 22 convictions for burglary offences - the majority of his burglary convictions were for aggravated burglary and committing an offence in a dwelling. The respondent also has convictions for stealing and receiving, assault, drug possession, breach of bail and escaping lawful custody.
To the extent that propensity for the purpose of s 7(3) comprises an inclination to commit a particular type of offence, it is possible a court may find that the respondent's criminal history discloses a propensity to steal, sometimes armed and in the company of others. His offending, including by committing serious offences, is persistent. He was aged 12 years when he committed his first armed robbery. He was convicted on 30 April 2007 of, among other things, two aggravated armed robbery offences committed on 4 December 2006, an armed robbery offence committed the following day, an aggravated robbery offence committed on 13 December 2006 and an aggravated armed assault with intent to rob committed on 20 December 2006. The respondent was subsequently convicted of armed robbery or aggravated robbery offences committed on 11 and 12 January 2009, 10 September 2009, 24 January 2012, 24 February 2012 (two offences committed on that day) and 19 November 2017. As previously noted, the last offence was committed approximately two months after the respondent had been released from a term of imprisonment of four years.
It also possible that a court may find that there is a pattern to the respondent's offending – repeated robberies, sometimes armed and mostly in company. The statements of material facts annexed to Mr Meertens' Affidavit for the armed and aggravated robbery offences and the sentencing remarks of Fiannaca J raise the possibility of a finding that the robbery offences were largely unplanned, reasonably spontaneous, involved vulnerable victims and, on occasions, the use of physical force.

The respondent's participation in treatment programmes – 7(e) and (f)

The respondent commenced the 'Think First' programme at Casuarina Prison in August 2013. He was 19 years of age at the time. The objective of the program is to help individuals acquire, develop and apply a series of social problem-solving and associated skills to assist in managing a participant's personal difficulties and to avoid future offending. The respondent was removed from the programme in about September 2013 after being involved in an incident at the prison and after missing three sessions. He completed 12 out of the 30 scheduled sessions. It was stated in the programme non-completion report that the respondent appeared to be progressing well with his self-development in the programme. He was attentive and displayed an understanding of the causes of his offending.[137]
[137] Annexure 'AD' to Mr Meertens' Affidavit.
The respondent was offered a further opportunity to participate in the 'Think First' programme in September 2014. He declined the offer stating that he would not be attempting to obtain parole.[138] A parole assessment report dated 5 August 2015 noted that the respondent had been unable to participate in programmes for addiction offending (Pathways Programme) and violent offending (Intensive Programme) due to 'active alerts'. The assessment report noted that the respondent had nine active prison alerts at that time, including for returning positive results on three urinalysis tests.[139]
[138] Annexure 'AE' to Mr Meertens' Affidavit.
[139] Annexure 'AF' to Mr Meertens' Affidavit.

The respondent completed the 'Think First' programme in September/October 2015. He received a generally positive completion report noting that he was an enthusiastic group member who was always keen to volunteer information about himself and be involved in group discussions. He had made gains in the ability to think and develop alternatives, awareness of consequences and impulsivity. He stated that after completing the programme he was more aware of his victims' feelings.[140]
[140] Annexure 'AG' to Mr Meertens' Affidavit.
In October 2016, the respondent waived participation in the 'Pathways Programme'. The waiver form noted he believed that participating in the programme would 'place more pressure on him' and that prison officers in his unit 'would try to get him to "muck up"'.[141]
[141] Annexure 'AI' to Mr Meertens' Affidavit.
It is apparent that the respondent's abuse of substances, particularly methamphetamine, is a significant contributing factor to his offending. The respondent has admitted in the past his problems with illicit substances and that he has been under the influence of methamphetamine and alcohol while committing offences.
The sentencing remarks by Fiannaca J stated that the respondent had advised he had received drug and alcohol counselling while in custody. There is no record of that having occurred in the reports annexed to Mr Meertens' Affidavit. As noted earlier, the reports indicate that the respondent was unable to participate in an addictions offending programme. In any event, Fiannaca J noted that the respondent tested positive for methamphetamine, amphetamine and cannabis following his release in September 2017 on the PSSO.
His Honour further noted a pre-sentence report in which the author stated that she believed the respondent suffered from mental health issues which have led to his entrenched substance misuse. It was suggested that the respondent would benefit from intensive substance abuse counselling and psychological counselling to develop the skills necessary to refuse peer pressure to use drugs.
It is possible that a court may find that the respondent has unmet treatment needs for substance abuse; that he requires personal counselling for emotional issues; that he may benefit from other psychological and treatment problems to address decision-making, impulsivity, anger management and the development of work and social skills; and that the factors contributing to his history of offending have not been adequately addressed in the past.

Risk and community protection – s 7(h) and (i)

Having regard to the respondent's history of offending, the pattern of his offending, his substance abuse problems and his apparent on-going treatment and counselling needs, it is possible a court may find that (a) there is a risk that the respondent would commit a serious offence and (b) there is a need to protect the community from that risk.

Conclusion

I am satisfied that there are reasonable grounds for believing that the court might, in accordance with s 7, find that the respondent is a high risk serious offender having regard to the matters referred to above.

Interim detention order or supervision order?

Section 46(2)(c)(i) provides that the court may order an offender to be detained in custody until an application for a restriction order has been finally decided. The order may be made in circumstances where the court is satisfied of the matters stated in s 46(1) and the offender is in custody but might otherwise be released from custody before the restriction order application is finally decided. The court is not compelled to make an interim detention order but can release an offender on an interim supervision order under s 58 of the HRSO Act.
The respondent submitted than an interim supervision order should be made. It was contended that the State's case was weak; the affidavit of Mr Minnock established that the respondent could reside with his partner; he had a three year old daughter; he would be subject to a PSSO on release and he had spent long periods in custody as a juvenile and adult.
The State opposed an interim supervision order being made. The State relied principally on the respondent's history of offending and his problems with substance abuse. The State contended that there was a risk of re-offending despite any supervision conditions that might be imposed, if the respondent was released to the community
The discretion whether to make an interim detention order or a supervision order must be exercised judicially by reference to the objects and provisions of the HRSO Act. It is necessary to keep in mind that an interim detention order has the effect of detaining the respondent in custody after completion of his sentence. Nevertheless, I concluded that an interim detention order should be made.
It is not appropriate to provide detailed reasons for the exercise of that discretion or to comment on whether the State's case against the respondent is, or is not, weak lest any observation I make is misinterpreted given that there is to be a final hearing of the Application pursuant to s 48. It is appropriate to only observe that I have exercised the discretion after considering all of the evidence that was adduced in the preliminary hearing and the matters referred to in these reasons.

ANNEXURE 1

IN THE SUPREME COURT OF WESTERN AUSTRALIA

SO 8 of 2021

IN THE MATTER of Sections 35, 46 and 48 of the High Risk Serious Offenders Act 2020

B E T W E E N

THE STATE OF WESTERN AUSTRALIA

Applicant

and

PETER ROBERT GARLETT

Respondent

_________________________________________________________________

RESPONDENT'S STATEMENT OF PROPOSED CONSTITUTIONAL FACTS

_________________________________________________________________

Date of Document: 13 October 2021

Filed on behalf of: Respondent

Date of Filing: 13 October 2021

Prepared by:

Roe Legal Services   Tel:      +08 9325 4396
Level 10   Fax:      +08 6270 4464
16 St Georges Terrace   Ref:      11905
PERTH WA 6000   Paul Sheiner

___________________________________________

1.Aboriginal people comprise approximately 40% of the adult prison population in Western Australia.[142]
[142]. In 20/21 2662 of 6662 prisoners in WA were Aboriginal or Torres Strait Islander people: Affidavit of Mark Gregson sworn 6 October 2021 MDG 3 at 13.
2.Aboriginal people comprise at least 40% of the prisoners currently serving a custody or sentence for a serious offence as defined in the HRSO Act.[143]
[143] Refer Respondent Submissions on Constitutional Issues at paragraph [88].
3.Aboriginal prisoners are more likely than non-Aboriginal prisoners to;
(a)have a prior history of incarceration and juvenile detention;
(b)suffer from poor mental health;
(c)have lower education levels;
(d)use illicit drugs;
(e)have experienced family violence; and/or
(f)experience greater levels of socio-economic disadvantage.[144]
[144] Refer Table of Evidence; Respondent Submissions on Constitutional Issue at [90]-[93] and cases cited.

4.Aboriginal prisoners currently serving a custody or sentence for a serious offence as defined in the HRSO Act are more likely than non-Aboriginal prisoners to;
(a)have a prior history of incarceration and juvenile detention;
(b)suffer from poor mental health;
(c)have lower education levels;
(d)use illicit drugs;
(e)have experienced family violence; and/or
(f)experience greater levels of socio-economic disadvantage.

ROE LEGAL SERVICES

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
IC
Associate to the Honourable Justice Corboy
10 NOVEMBER 2021