Vella & Ors v Commissioner of Police (NSW) & Anor

[2019] HCATrans 149

[2019] HCATrans 149

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S30 of 2019

B e t w e e n -

DAMIEN CHARLES VELLA

First Plaintiff

JOHNNY LEE VELLA

Second Plaintiff

MICHAEL FETUI

Third Plaintiff

and

COMMISSIONER OF POLICE (NSW)

First Defendant

STATE OF NEW SOUTH WALES

Second Defendant

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

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 7 AUGUST 2019, AT 10.02 AM

(Continued from 6/8/19)

Copyright in the High Court of Australia

____________________

KIEFEL CJ:   Yes, Mr Solicitor.

MR DONAGHUE:   Your Honours, this morning it remains for me to address paragraphs 6 and 8 of the written outline that we have handed up.  I will pass over paragraph 7 in the interests of time.  What that involves is that I propose to take your Honours to three cases, in each case starting briefly with the legislation that was in issue and then turning to the relevant parts of the Court’s analysis of that legislation.

Can I start with the legislation that was at issue in Thomas, which was Division 104 of the Criminal Code, which your Honours will find in volume 1, tab 6 of the books.  When your Honours have that, I ask you to turn to section 104.1, which I think you will find on page 68 of the joint book.  Section 104.1 sets out the objects of the division and your Honours will see that they are expressly protective:

to allow obligations, prohibitions and restrictions to be imposed on a person by a control order for the purpose of protecting the public from a terrorist act ‑

quite widely defined earlier in the Act, but I do not need to take your Honours to it.  It is obviously narrower in its coverage than serious criminal activity.  The operative provision for the purpose of making interim control orders is 104.4, a couple of pages on in the book.  I make five short points about this provision before turning to the discussion in Thomas.

First, your Honours will see in the first few words that the power is conferred on an issuing court.  An issuing court was defined – I will not take your Honours to it – in section 100.1 to mean the Federal Court, the Family Court or the then Federal Magistrates Court.  So it is three Federal Courts.  We are concerned with the regime where the Commonwealth Parliament confers power to make protective orders on Federal Courts and so the analysis is a Boilermakers analysis, not a Kable one.

The second point is that the power was not conferred in terms that required any finding to any standard of past involvement in criminality whether or not charged or if charged whether or not convicted or acquitted.  You see that from paragraph (1)(c)(i), which is one of the two alternative conditions in (c):

the court is satisfied on the balance of probabilities:

(i)that making the order would substantially assist in preventing a terrorist act –

That provision is, in our submission, wholly forward looking.  And, similarly, it is possible under (d) for the court’s inquiry to be wholly forward looking.

So when I answered your Honour Justice Gageler yesterday afternoon, “Could the Commonwealth Parliament enact section 5 without an equivalent of (b) focusing on past criminal involvement?” that was why I answered in that terms, it has already done so in that analysis.

The third point is, in a sense, the reverse of the point I just made, which is while there does not need to be a finding of past criminal involvement in criminal conduct, there can be a finding of involvement in past criminal conduct and you get that from (1)(c)(2):

that the person has provided training to, or received training from, a listed terrorist organisation –

Because that conduct, “provided training to, or received training from,” is an offence under the Criminal Code.  Again, I will not take your Honours to it, but it is an offence against 101.2 of the Code, which is on page 50 of the book.

So that one possible way that you could get a control order under this regime is by the Federal Court asking itself, “Has the person engaged in conduct of a kind that is criminalised by Commonwealth law, whether or not the person has been convicted?” and, if so, then you go on to the inquiry under (d).  That is structurally very similar to what you see in section 5(1)(b) of the State Act.  You ask yourself that inquiry about criminal involvement, and then you go on to the forward‑looking protective inquiry.

GAGELER J:   Did the definition of “terrorist act” link it to criminal activity?

MR DONAGHUE:   The definition of “terrorist act” is then used to create criminal activity.  So, it does not have to be criminal in and of itself to be a terrorist act because engaging in a terrorist act is then criminalised.  So, you have to be engaging in acts of violence for ideological purposes, et cetera, in a variety of different ways.  But it did not have to be criminal in a pre‑existing sense.

The essence of that point that I just made is that Thomas demonstrates, in my submission – and you will see when I come to the case that Mr Thomas had engaged in conduct of the kind referred to in roman (ii) – that requiring a court to engage in an inquiry about whether or not someone has done something that is criminal is not objectionable and that is so whether or not the person has been charged and if they have been charged, whether or not they have been acquitted – which, in a sense, one sees from Thomas because Mr Thomas had been convicted, he had appealed to the Victorian Court of Appeal and had had his appeal allowed and a retrial ordered and before the retrial came about the control order was made.  That was the chronology, which your Honours will see in paragraph 537.  Justice Callinan sets that out in Thomas.  

So, this order, the order that triggered the hearing in Thomas v Mowbray, was an order made following conviction and then allowing of the appeal.  That is significant because insofar as our friends’ case here, one of the strands of it is the asserted undermining of the finality of the verdict.  One could have made that same complaint about the control order regime that was upheld in Thomas.

The fourth point about 104.4 is that while it is true that the threshold one sees in paragraph (d) is expressed in different language and applies to a narrower range of offences than is the case in relation to sections 5 and 6, both of them have the ultimate purpose of the protection of the public from criminal activity and, in my submission, nothing in the reasoning in Thomas I am about to come to turns on the precise language in which those thresholds were expressed.  It was necessary for them to be sufficiently precise to engage in exercise of judicial power, but beyond that the precise language was not critical.

The final point is that, as was mentioned I think yesterday in subsection (2), your Honours will see an express obligation to balance the obligations, prohibitions and restrictions against the impact on the person’s circumstances.  We do not have that expressly in the State Act but for the reasons I developed in some detail yesterday in relation to “appropriate”, if your Honours were to accept the construction that we advanced, you do in determining what orders are appropriate under section 6(1) engage in an inquiry of a relevantly analogous kind to that expressly required by subsection (2).  So all of that is to say there are very close similarities between this regime and the regime that your Honours are now concerned with.

If I could ask you now to turn to Thomas v Mowbray, which is volume 5, tab 41, (2007) 233 CLR 307. The Court by a majority dismissed a Chapter III challenge to the provisions I have just shown your Honours. There were multiple judgments and multiple issues in Thomas ‑ head of power questions and Chapter III questions.

The leading judgment on the Chapter III issues was given by Justices Gummow and Crennan and in most respects their Honours’ reasons reflect the reasoning of at least four members of the Court.  The reason I say that – and your Honours do not need to turn to it – but in paragraph 600 Justice Callinan agreed with Justices Gummow and Crennan on the Chapter III issues and he added some brief additional reasons of his own.

At paragraph 651, Justice Heydon agreed with specific parts.  He identified two paragraph ranges of the judgment of Justices Gummow and Crennan and he agreed with those and with one exception the paragraphs I am about to take your Honours to are within those paragraph ranges.  So in those respects you have the reasons of four members of the Court.

Chief Justice Gleeson’s reasons, with whom Justice Heydon also agreed, are relevantly similar but in the interests of time I will not take your Honours to those passages, although I will give you some references.  Justices Kirby and Hayne dissented on the Chapter III issues.

If your Honours start just to pick up the facts on page 322, paragraph 1, the first paragraph of the Chief Justice’s judgment, you will see near the bottom of the page:

The grounds on which the order was made were . . . 

“1.Mr Thomas has admitted that he trained with Al Qa’ida in 2001.  Al Qa’ida is a listed terrorist organisation –

under the regulations.  So we were within the territory of (c)(ii) at least.  The particular order that was made is summarised by the Chief Justice on the next page in paragraph 2.  If your Honours wish to see the full text of the orders, Justice Callinan sets them out at 554 of his judgment but the summary at paragraph 2 is sufficient. 

Some of this was mentioned yesterday, so I will not dwell on it but you have a requirement “to remain at his residence” for five hours “between midnight and 5 am each day”, requirements to report to police on a regular basis, prohibitions on leaving Australia, but relevantly about probably eight lines down, prohibitions on “communicating with certain named individuals” and “using certain communications technology”.

So you had amongst the orders that were imposed on Mr Thomas orders that are in many respects similar to the orders sought by the Commissioner in this case, although they were markedly more burdensome, in my submission.

In terms of how the Court analysed this, if your Honours then turn to the judgment of Justices Gummow and Crennan at paragraph 71 on page 344, there is a heading “Absence of legal criteria?”, where their Honours pose the question:

Is there in s 104.4 an absence of legal standards or criteria governing the exercise of the jurisdiction conferred upon the issuing courts ‑

I should say that this paragraph is within the range Justice Heydon agreed with.  He agreed in relevant part with 71 to 79.  The paragraphs I am about to mention are within that field.  So is there an absence of legal criteria?  At paragraph 72 their Honours say:

What is critical is the presence in s 104.4 of what may be said to be adequate legal standards or criteria.  It should be said at once that the case law shows acceptance of broadly expressed standards.

Their Honours then discuss – and I will not take your Honours through it all – a number of the authorities that make good that proposition before coming to the conclusion at 79:

In assessing whether the courts have adequate legal standards or criteria “for the purpose of protecting the public from a terrorist act” it is relevant to note, not only that a judicial procedure has been laid down, but also that the orders which may be made are a familiar part of judicial power to make orders restraining the liberty of the subject, for the purposes of keeping the peace or preserving property.  Orders, which are not orders for punishment following conviction, but which involve restraints upon the person to whom they are directed, can be made after a judicial assessment of a future risk.  Such orders are familiar in the context of binding over orders discussed later –

So, the judicial procedure was significant.  The historical analogy with protective orders based on an assessment of future risk was significant.  Paragraph 79 was the end of the first page wherein Justice Heydon agreed with, so that is four members of the Court.

If your Honours could then go on to page 351, at paragraphs 91 to 92.  These are the two paragraphs that are exceptions.  They did not fall within the range Justice Heydon agreed with, although it is unlikely, I respectfully submit, that his Honour actually disagreed with what is said here.  In paragraph 91, there is a reference to a familiar passage in Professor Zines’ work where standards of criteria:

have a penumbra of uncertainty under which the deciding authority will have room to manoeuvre – an area of choice and of discretion; an area where some aspect of policy will inevitably intrude . . . Given a broad standard, the technique of judicial interpretation is to give it content and more detailed meaning on a case to case basis.  Rules and principles emerge which guide or direct courts in the application of the standard.

Their Honours, then, in the next paragraph, 92, expressly apply that to 104.4.  So, in the last sentence:

consideration of the legislation on a case by case basis it may be expected that guiding principles will emerge –

Their Honours were expecting the judicial technique to flesh out the content of those standards.  Then, you see the heading, above 94, “Conclusions respecting ‑ ‑ ‑

GORDON J:   Before you leave that, can I just ask about 93 which I know is not a paragraph that you seek to take us to, but it seems that one of the factors that influenced the assessment by at least Justices Gummow and Crennan, and those who agreed to it, is that it seemed to align – that is, the test set out in the legislation which was, as you accept, a much higher standard than it was here, aligned with what the considerations the court might take into account in granting the injunction – i.e., exceptional – this sort of predictive assessment required in terms of the considerations that one would approach when considering a quia timet injunction.  Do you accept that?

MR DONAGHUE:   Your Honour, in my submission, the standard in 104 was not as high as it would have been for a quia timet injunction under the ordinary law.

GORDON J:   I know, but it is reflective of the sort of considerations – exceptional – we have the terrorist act, the nature of the offence.  You have a much higher standard than you have here.

MR DONAGHUE:   In my submission, your Honour, I do not accept that it is a much higher standard required because, in my submission, the necessity inquiry – is it necessary to protect the public – is, as the UK Court of Appeal held in Hancox – relevantly in this context not different from the appropriateness standard.  If the Court is asking is it appropriate for me to make an order imposing conditions that will restrict the liberty of a person, it will not do so unless it thinks that those orders are warranted by the risk to the public and that is essentially ‑ ‑ ‑

GORDON J:   If you are wrong about the way in which you interpret “appropriate”, does it hold true?

MR DONAGHUE:   Well, if “appropriate” were to be as low a standard as the plaintiff suggested, which was a very low bar indeed, then that would be a distinguishing feature.  I accept that that is so.

EDELMAN J:   Well, there is an intermediate position as to whether your ‑ if the plaintiff is correct, whether your construction is, however, open.

MR DONAGHUE:   Yes.  In my submission, it is certainly open if necessary in order to preserve validity.  I would go further and submit it is the appropriate construction, but I agree with what your Honour says.

Now, from 94 onwards Justice Heydon again agreed, so your Honours are again dealing with the reasons of a majority.  At paragraph 95 their Honours, in expressing their conclusions, state that:

Section 104.4 is not so expressed as to be insusceptible of strictly judicial application.

And there is a cross‑reference to an earlier discussion that I will take your Honours to in a minute:

indicates that issuing courts are intended to exercise judicially and not otherwise these powers with respect to interim control orders.

And that is identified as an important consideration in favour of validity.  Without taking your Honours to it, Chief Justice Gleeson, at paragraph 12, also emphasises that factor.  The cross‑reference to the section earlier, under the heading “The jurisdiction of issuing courts”, is to a heading that appears back at paragraph 52 of their Honours’ reasons where you will see the heading in question.

If your Honours could just go on, still under that heading, to paragraph 59, which is at the end of the discussion, there is a quote set out from Justice Kitto in R v Spicer; Ex parte Australian Builders’ Labourers’ Federation.  That statement, which I invite your Honours to read, is a familiar statement of what is often nowadays referred to as the chameleon doctrine that the significance in ascertaining the character of the power of the character of the intended repository is where you give the power to a court you expect it to be exercised by the court by “strict adherence to the standards which characterise judicial activities”.

So, in our submission, a very major factor in favour of the validity of section 5 is that section 5 chooses to confer that power on a court.  Parliament, having made that choice, it brings with it the expectation of strict adherence to the standards which characterised judicial activity which, in part, include the Professor Zines process of the court, working out incrementally and case by case, the content of a broadly express standard such as “appropriate to protect the public” or such as “would protect the public” in the identified ways.

KIEFEL CJ:   Is it therefore critical to your argument respecting section 5 that section 5(1)(c) gives to the court the power to determine for itself whether there is a risk to the public?

MR DONAGHUE:   Yes, that is ‑ ‑ ‑

KIEFEL CJ:   Without that, you would say there was no judicial power being exercised?

MR DONAGHUE:   Your Honour, I prefer not to go that far in this context because ‑ ‑ ‑

KIEFEL CJ:   It is critical in this context?

MR DONAGHUE:   Where it exists, it is a very strong indicator in favour of validity and, conversely, in Totani, where it did not exist to the same extent it was an important indicator the other way.

KIEFEL CJ:   I think that was a point made by Justice Hayne ‑ ‑ ‑

MR DONAGHUE:   Yes.

KIEFEL CJ:   ‑ ‑ ‑ that in each of these cases, including assessments of future risks, it is for the court to determine for itself whether or not that risk exists.

MR DONAGHUE:   As I say, when that factor exists it powerfully points to judicial power.  The reason I qualified my answer slightly is that the nature of the judicial task sits upon a spectrum so that sometimes what the court has to be satisfied of is the acceptance of a number of conditions which might not always involve a risk assessment but might involve a judicial task of a different kind, working ‑ ‑ ‑

KIEFEL CJ:   I think Justice Hayne was talking about a judicial assessment of whether or not an obligation should be imposed ‑ ‑ ‑

MR DONAGHUE:   Imposed.

KIEFEL CJ:   ‑ ‑ ‑ and whether the conditions exist to give rise to the requirement for the obligation.

MR DONAGHUE:   Indeed, however they are expressed.  So that where it is a rubber stamping task because that task does not arise then that creates problems.  But here, having conferred the power on the court with the characteristics that your Honour the Chief Justice puts to me and in light of the principle in Spicer there and picked up by the majority at 95, we submit it is a very important indicator of validity and that one would not lightly conclude that a power conferred on a court in that way was to be exercised in such a way that it undermined the institutional integrity of the court, as the plaintiffs are asking here to find.  If your Honours could go back to ‑ ‑ ‑

GAGELER J:   Mr Solicitor, is it part of your submission – or it must be I suppose – that the words “restricting or disrupting involvement” express an adequate legal standard or criterion to amount to an exercise of judicial power?

MR DONAGHUE:   As part of the whole phrase, yes.  So that the court is deciding whether there are reasonable grounds to believe that the making of the order would have that consequence.  That is a sufficient judicial standard, in my submission, and it is in fact a more precise standard than has been upheld in some of the cases that I am about to come to.  Perhaps I could answer your Honour’s question better in the terms of section 6(1) which uses the same words.  Is the order appropriate to have the effect of disrupting, et cetera, the criminal conduct?  I do submit that that is a sufficiently clear standard.

Back in paragraph 96 on page 352 their Honours are dealing with the listed terrorist organisation criteria and they say in the middle of that paragraph about five lines down it is a criteria that:

presents issues of fact to be considered on the evidence ‑

Their Honours evidently did not consider there was any difficulty with requiring a Chapter III court to consider issues of facts that overlapped with the question of whether or not someone had engaged in conduct that constituted an offence.  In paragraph 97 they deal with the other subparagraph in (c), noting that it could extend to a person other than the perpetrator, which also underlines the point that there is no need for any finding of past involvement in a crime.  Going on to 108 at the bottom of page 354, from three lines down their Honours hold:

That legislation may confer jurisdiction upon a federal court and stipulate as a criterion for the making of an order the satisfaction of the issuing court, on the balance of probabilities –

as here, which is said to be:

a distinctively judicial activity – that each proposed obligation, prohibition and restriction would be reasonably necessary and appropriate and adapted – other familiar terms of judicial discourse – for that purpose of public protection.

In my submission, your Honours could apply that same observation to paragraph 6.  Chief Justice Gleeson says much the same thing at paragraph 15 and Justice Callinan likewise at 597.  Then going on to paragraph 111, you see the heading “Exercise of power in a manner contrary to Ch III”, which was another basis of challenge.  Their Honours at paragraph 113 deal with the complaint about the standard of proof which is, in some respects, similar to that advanced here.  There is no problem with “satisfaction on the balance of probabilities” in terms of consistency with Chapter III.  Then at 114 there is the complaint that:

the restrictions imposed upon personal liberty quia timet and without adjudication of criminal guilt.

Their Honours at 116 reject the idea that a control order is analogous to detention in custody, which is similarly rejected by Chief Justice Gleeson and then at 120 and 121 return, as was foreshadowed in 95, to the question of binding over orders and the like, noting in the first sentence of 120 that:

The assistance provided by historical considerations may not, and does not here, furnish any immediate analogy –

So their Honours are not suggesting that there is an immediate analogy with any of these historical examples.  The point that is being made, as emphasised in 121, is that legal history supports the notion – do support the notion that the protection of public peace by preventative measures imposed by court order, falling short of detention in custody, is not repugnant to Chapter III.  That, in my submission, is precisely what your Honours are confronted with here. 

So, in our submission, Thomas v Mowbray provides strong support for the submission that the Commonwealth Parliament itself could do something analogous to section 5 and section 6 and if your Honours accept that the Kable challenge must fail.

I said I would pass over paragraph 7.  Your Honours can see we have cited there three cases that, like Thomas, support the proposition that there is no constitutional difficulty with a court exercising civil jurisdiction finding facts that would also establish, if proved to the criminal standard, that the person has committed a crime – and Today FM is a good example.  In Today FM, there is mention of a case where a civil court does that very thing after a person has been acquitted of murder, but I will not take your Honours to any of those passages.

Turning then to paragraph 8 of the outline, one significant strand, as we understand the plaintiff’s argument, is that they say that this regime erects an alternative justice system, in part because of the breadth of its coverage, because the criminal offences in question are not as targeted as they were in Thomas to terrorist acts, or in Fardon to serious sexual offences.

Your Honours have examined legislation that has similarly broad coverage, and considered Kable challenges to it on at least two occasions where those challenges have relevantly failed.  First, can I ask your Honours to turn to the legislation considered in Wainohu, which was volume 1, tab 8, the Crimes (Criminal Organisations Control) Act2009.  When your Honours have that, if you could go to section 9, which is in Part 2 of the Act. 

This was a two‑part regime where you had a declaration as to a criminal organisation and then you had control orders in the next part.  So Part 2 is dealing with the declarations.  It empowered an eligible judge – which was defined back in section 5 as a Supreme Court judge who both consented and was then appointed by the Attorney‑General.  So the eligible judge could make a declaration if satisfied that members of the organisation associate for the identified purpose of engaging in serious criminal activity and that there is a risk to public safety:

the organisation represents a risk to public safety –

not, I note, a particularly precise or narrow criteria – it is just a risk assessment.

In answering that question, subsection 9(2) identifies various matters to which the eligible judge may have regard.  In (a) you see that “a link exists” between the organisation and crime, so again no requirement to find that there has actually been any particular crime committed, just a link; or in (b) that there have been convictions; or in (c) that there is information that suggests current or former members have been involved in serious criminal activity again, whether or not they result in criminal convictions.  Those criteria, in my submission, overlap quite substantially with what you see in section 5(1)(b).

“Serious criminal activity” is defined back in section 3 and there are two key concepts within it. It uses the words “serious indictable offence” and “serious violence offence” and it also extends to the conduct committed outside New South Wales that would have constituted an offence if it had been committed in New South Wales – a similar extension to that noted by the plaintiffs yesterday in relation to section 5. “Serious indictable offence” is not defined in this Act, we imagine because it picks up section 21 of the Interpretation Act 1987 (NSW) which says that in any Act:

“serious indictable offence” means an indictable offence that is punishable by imprisonment for life or for a term of 5 years ‑

So “serious indictable offence” is anything punishable by five years or more.  “Serious violence offence” is defined in the next definition down in the terms that your Honours can see but it includes:

(b)serious injury to a person or serious risk of serious injury to a person, or

(c)serious damage to property in circumstances endangering the safety of any person, or

(d)perverting the course of justice -

So the regime, in terms of its coverage in relation to serious indictable offences is evidently very wide, not in my submission materially narrower than that your Honours see.

If you turn to Wainohu (2011) 243 CLR 181, volume 5, tab 43, and when your Honours have that if you go to page 224, paragraph 90. This is in the joint reasons of Justices Gummow, Hayne, Crennan and Bell. There is a heading “The structure of Pt 2” near the bottom of that page. In paragraph 90 their Honours say:

Several further points respecting the structure of Pt 2 should be made here.  The first is the subsistence of a declaration under Pt 2 of an organisation is the factum –

for the making of the control orders under Part 3.  Then in 91:

Secondly, as the Solicitor‑General of the Commonwealth submitted, similar functions to those of the eligible judge under Pt 2 could be susceptible of exercise under federal law by a Ch III court.

So those functions under section 9, their Honours held, have the character of powers that could have been conferred by the Commonwealth Parliament on a court, predictive judgments about involvement in serious risk.

Now, of course, your Honours held this Act invalid but the Court did so only because of the express requirement not to provide reasons that were found in section 13(2).  Certainly, Wainohu was explained as turning on that fact in Pompano at 135.  I will not take your Honours to that now, but there were, other than that attack on reasons, other attacks on the validity of this regime, which failed.  They included – and I should have taken your Honours to this before I moved to the case.

If your Honours still have the Act with you, which was volume 1, tab 8, and you turn onto section 19, which is in Part 3 – this is in the provisions concerning control orders.  The exercise that the court had to engage in, and this was the court, not an eligible judge:

may make a control order . . . [if] satisfied that:

(a)      the person:

(i)     is a member of a particular declared organisation –

So that is not a risk assessment at that point.  The risk assessment has been undertaken by the eligible judge in declaring the organisation.  What the judicial task was, “Are you a member of a declared organisation, or a former member?” and:

(b)      sufficient grounds exist for making the control order.

That is the task; that is the standard.  Now, it is said in Wainohu, one of the attacks that was advanced in Wainohu, that standard is not sufficiently precise to engage judicial power and your Honours said of that argument that it was wrong and you see that at paragraph 110 and 111 in the joint judgment, on page 230, under the heading:

Other submissions by the plaintiff –

There were:

a range of further arguments as to why the Act was invalid . . . These submissions should not be accepted, noting in particular the following.

First, the conferral of jurisdiction on the Supreme Court under Pt 3 by s 14(1) and (3) is to be understood as bringing with it the usual incidents of the exercise of the jurisdiction of the Supreme Court –

That is the point I have already made by reference to Thomas.  And then if you go down about eight lines:

Thirdly, while the Act does not attempt to prescribe what might be “sufficient grounds” for the making of a control order . . . these must be ascertained by regard to the subject, scope and purpose of the Act including the consequences of the making of an interim control order or control order; there are numerous authorities establishing that the conferral of curial powers by reference to such criteria nevertheless may be susceptible to the exercise of judicial power –

citing Baker and Thomas.  So “sufficient grounds” was precise enough.  Now, in my submission, appropriate for the purpose of protecting the public by doing particular things is a much more precise standard than that and yet an equivalent attack failed.  Your Honour the Chief Justice and Chief Justice French agreed with those paragraphs of the reasons at paragraph 72 so six members of the court dismissed that challenge.

Finally, and very briefly, your Honours, Condon, starting with the legislation that was at issue in that case, which was very similar to the legislation I have just taken your Honours to.  It is in volume 1, tab 12, the Criminal Organisation Act of 2009.  If your Honours could go to section 10.  It is again a two‑part structure, declarations as to the organisations in one part, then control orders in the next part.  But unlike the New South Wales legislation, the declaration function was not conferred on an eligible judge; it was also conferred on the court.

The court had to be satisfied of the matters that your Honours can see set out in section 10, which includes the term “serious criminal activity.”  And there was then a forward‑looking assessment, this time expressed in terms of:

unacceptable risk to the safety, welfare or order of the community.

But again one is clearly concerned with an order designed to protect the community from serious criminal activity, as we have here.

In making that assessment under 10(1), the relevant matters included those identified in 10(2).  In 10(2)(a)(i), the link is again there but in paragraphs roman (ii) and (iii), past convictions or information suggesting involvement:

in serious criminal activity . . . whether or not the involvement  resulted in convictions ‑

So, in my submission, there is no relevant difference between roman (ii) and roman (iii) on the one hand, and 5(1)(b) on the other in relation to the declaration function. 

“Serious criminal activity” is defined in section 6, a few pages earlier, to mean:

a serious criminal offence –

or:

an act done . . . outside Queensland . . . [that] would have been or would be a serious criminal offence ‑

if committed in Queensland.  “Serious criminal offence” is defined in section 7:

(a)an indictable offence punishable by at least 7 years imprisonment . . . 

(b)      an offence against this Act;

(c)an offence against a section of the Criminal Code mentioned in schedule 1.

Schedule 1 is at the back of the Act on page 99 of the print and your Honours see a long list: “Threatening violence”, “Deceiving witnesses”, perverting the course of justice, various sexual offences, “Wounding”, assaults of a variety of kinds, “Threats”, stalking, “Fraud”, “Assault with intent to steal”.  Again, there is no material difference between the broad coverage of this regime protecting from serious criminal activity and that you see in section 5.

If your Honours go to section 19, you can find that – sorry, I should start with section 18.  Section 18 is the power to make control orders.  If satisfied, membership of the organisation, backward‑looking inquiry:

engages in, or has engaged in, serious criminal activity –

Again, no requirement to find a conviction – not relevantly different once again to section 5(1)(b).  Then, in 19(1):

In making a control order . . . the court may impose the conditions on the respondent the court considers appropriate.

So, to the extent it is different from section 6, it is different because it is wider in that it does not guide the content of the appropriateness assessment.  The challenge to this legislation was dismissed entirely in Condon.  Condon is volume 2, tab 17, 252 CLR 38.

Now, it was a Kable challenge.  I cannot say to your Honours that the Kable challenge was formulated in exactly the same way that it was formulated here.  Partly I cannot say that because, as is common in challenges of this kind and as Mr Kirk put it yesterday, there are various threads of the argument.  There are lots of different ways that it was being put.  So, one cannot see exact congruence between arguments.  But, the fundamental argument that was being put in an attack on this legislation was that by involving the Supreme Court in making control orders – protective of serious crime – it was contrary to the institutional integrity of the State court. 

So, I accept that there are nuances in the way that it can all be put.  But, that fundamental attack on this legislation failed.  Your Honours see, at paragraph 143, it being dealt with in the joint judgment of Justices Hayne, Crennan, Kiefel and Bell, that there was a particular attack on the unacceptable risk assessment and your Honours will note that the attack on the appropriateness standard here is advanced in somewhat similar terms, critical of the precision of the standard:

That submission should not be accepted.

Their Honours say four or five lines down:

Its acceptance would be contrary to the decisions in Fardon and Thomas v Mowbray and the reasoning that underpinned them.  To determine whether a disfavoured status should be accorded to an organisation based on an assessment of what its members have done, are suspected of having done, and may do in the future is not different in any relevant way from the tasks held to be validly assigned to courts by the legislation in issue in those cases.  Courts are often called on to make predictions about dangers to the public.

Chief Justice French, with whom your Honour Justice Gageler agreed, at paragraphs 22 and 23 of the judgment, said something very similar.  Can I,

without reading it to your Honours, particularly emphasise what one sees in paragraph 23.

So our submission, your Honours, is that the function conferred by sections 5 and 6 of the New South Wales Act is, relevantly, indistinguishable in all material respects from regimes that were upheld in Thomas in the context of Commonwealth legislation and in Wainohu – well, in Condon and which would have been upheld in Wainohu but for a defect in the legislation that does not exist here.

Wainohu and Thomas both indicate the Commonwealth itself could confer that power on a court and, if your Honours accept that, the Kable challenge fails.  Unless your Honours have any questions, those are our submissions.

KIEFEL CJ:   Thank you, Mr Solicitor.  Solicitor‑General for South Australia.

MR BLEBY:   If the Court pleases.  On the construction issue we rely on our written submissions and the oral submissions of the Commonwealth.  I simply want to develop a couple of aspects of that and I propose to address what might be said to be the relatively low threshold for engagement of the jurisdiction under section 5(1)(c) by operation of the words “would protect”.

We join with the Commonwealth in submitting that this requires an assessment of the risk of the person’s involvement in serious crime related activities and we adopt the submissions of the Commonwealth that requires a real likelihood.  But the assessment of risk also requires an assessment of the gravity of the consequences of that anticipated involvement.  That is made relevant by the question of appropriateness of the order for the purpose of protecting the public under section 6(1) because the sections must be read together, and the threshold for the jurisdiction is consequently not simply a linear assessment of likelihood somewhere between not at all likely and certain.  A necessary risk assessment also considers the gravity of the consequences, that that consideration is necessary in order to consider whether the proposed order would have any work to do.

So, for example, whether there is a small risk of catastrophic consequence or a high risk of relatively lower consequence all feeds into the evaluative judgment of the appropriateness of the order of protecting the public.  Then, in this evaluative judgment, the word “appropriate” further recognises that there is an interest not just of the person in question but a public interest in there being no greater curtailment of liberty than is sufficient to address the risk.

That is the point that we make at paragraph 25 of our written submissions and at footnote 14 of that submission we draw on the authorities in respect of orders for indefinite detention and supervised release to support that reasoning.  I will not be taking the Court to any of those cases; I simply refer to them.  But it is that analogy that really shows the word “appropriate” to require a form of proportionality that is, as the Commonwealth Solicitor‑General submitted yesterday, akin to proportionality in sentencing.

The plaintiff’s construction of the word “appropriate” – and that was specifically in answer to a question of your Honour Justice Edelman yesterday – in effect reduced the meaning of that word to “effective”, that is, effective in disrupting or…..a particular consequence.  That gives the word “appropriate” no work to do because the need for - the effectiveness of the order is covered off by section 5(1)(c).

It follows from this, relevant to this question of how low is the threshold, that the mere factum of there having been historically serious crime related activity is quite unlikely on its own to establish the risk that would be required for the order and, as we say at paragraph 28 of our written submissions, age or health‑related factors might ameliorate or nullify what would otherwise be a risk.  Alternatively, a person might have severed their ties with a motorcycle club or there may simply just not be a rationale apparent from which one can conclude that risk exists from previous activity.

The only other point on construction and the requirement of this sort of proportionality that I wish to make is this.  The Commonwealth Solicitor‑General yesterday referred to the second reading debates and in particular a statement by the Minister for Justice in reply, and that is at volume 5, tab 45, page 2267 of the books.  I will not take the Court back to that, but we rely on this passage also, but simply as an extrinsic material to the legislation in the ordinary way to assist in construing the word “appropriate” as a matter of parliamentary intention rather than actually applying directly the construction that has been given in a foreign jurisdiction to the same or similar words.  That passage provides an orthodox source of extrinsic reference to the intention of Parliament to import a form of proportionality.

Can I just turn briefly then to the constitutional point?  It is an essential step in the reasoning in the plaintiff’s case that the scheme established by sections 5 and 6 undermines the criminal justice system by establishment of a parallel regime.  This system level focus looks to what is said to be an undermining of the finality and public confidence in the sentencing process, the finality of acquittals and public confidence in the process of criminal justice.

Those complaints lie on a very particularly abstract plane in that they rely on the existence of a separate process that may have an identity of parties that relies at least in part on a substratum of facts that has already informed or may inform a different criminal justice process and it has as an effect punishment.  That impugned judicial process, as Mr Kirk pointed out, can be described as being parallel to some other criminal justice process.  The question is then where is the intersection by which one detracts from the other?  The scheme does nothing that requires the court in the exercise of that parallel criminal jurisdiction to act in a manner that is inconsistent with the reality or appearance of impartiality and independence.

Similarly, the process of applying for a serious crime prevention order has no element that could be said to be so inconsistent, and that is the question of enlistment that your Honour Justice Bell raised yesterday having regard particularly to the simplicity of the drafting of the summons.  That question of enlistment is answered by the construction submissions that the Commonwealth put yesterday and that we have adopted.  But, in any event, I would just draw the Court’s attention to Emmerson which is in volume 2 at tab 18, page 699 at paragraph 65 where the plurality of Chief Justice French, Justices Hayne, Crennan, your Honour the Chief Justice and your Honours Justice Bell and Keane that the determination of whether ‑ ‑ ‑

GORDON J:   Sorry, what passage was this, Mr Solicitor?

MR BLEBY:   It is paragraph 65, I beg your pardon, your Honour.  It is the last part of that paragraph:

That the determination of whether the statutory criteria are satisfied may readily be performed, because of ease of proof of the criteria, does not deprive the process of its judicial character.

Of course, the plaintiff has not mounted an argument based on enlistment.  The Kable offensiveness is rather said to arise from the very existence of an alternative and lesser criminal justice regime and that is perhaps best captured in the plaintiff’s written submissions at paragraph 41 in respect of sentence where there an undermining of the sentencing.  The plaintiff says:

Here, the definition of “serious criminal offence” is so broad that it captures a very large proportion of ordinary criminal offences, and there is no high level of future risk required.  The breadth of the scheme is thus apt to undermine ordinary finality and confidence in the ordinary sentencing process.

Then, in respect of where a person has been acquitted, at paragraph 42 the plaintiff says:

That approach allows lip‑service to be paid to the acquittal, but diminishes it by prosecutors having another bite at the cherry.

But to assert such an undermining of finality and public confidence at such a level of abstraction does not establish an undermining of the institutional integrity of the court when the process remains entirely judicial if to some degree novel, because if legislation provides for a jurisdiction to be exercised judicially but the statutory criteria are relatively easily satisfied – and I have qualified that in my earlier submissions on construction – that does not undermine the institutional integrity of the court.  It simply reflects a legislative policy choice that sits around a mischief of the sort to be addressed, and the Solicitor‑General for the Commonwealth has taken the Court through, with respect, considerable precedent of that approach.

But this abstract challenge also depends on persuading the Court that this is an alternative punitive criminal justice regime.  Now, the integers of this, what is said to be this regime, are its operation is based on a factum of past criminal conduct, and it results in orders that are, in some sense, restrictive of liberty.

It is these integers that are said to render it punitive, even if it carries some protective purpose, and the plaintiff points to the protection of society being a material consideration in fixing any appropriate sentence by way of criminal punishment to identify that the distinction between punishment and protective purposes are unclear, my words.

But there is a material distinction between punishment that has a protective purpose and a regime of this kind in that where you have - this is a legislative measure that is expressed by Parliament to be only for a protective purpose.  It can only be made in furtherance of that purpose.  It must be tailored to that purpose and it will, of course, cause some level of detriment to the person in question. 

The purpose of the provision, as we say at paragraph 46 of our written submissions, is of primary significance to its characterisation as punitive.  That is a matter of characterisation of the legislation.  But where, in essence, you have a civil proceeding with orders that are expressly and contextually directed at manifestly protective purposes, to say that that amounts to a lower grade of criminal justice is, with respect, to cast a fiction that ignores that rather than being a lesser form of criminal justice it is actually no form of criminal justice at all.  May it please the Court.

HER HONOUR:   Thank you, Mr Solicitor.  Solicitor‑General for Victoria.

MS WALKER:   If the Court pleases, I am hoping that the Court has a revised outline of oral argument and in addition we provided two further documents, with that, one being an extract from the Albarran Case, which I will come to, and one being some extracts from an apprehended violence order regime from South Australia.  I am not going to go to those immediately.  I just want to make sure that the Court has those documents available with our revised outline.

Your Honours, the submissions for Victoria in a sense flow quite directly from the submissions that the learned Solicitor‑General for South Australia was just putting to the Court in relation to the utility of a distinction between a protective regime, a regime directed to the purpose of protecting the public, and a regime directed to the purpose of punishing criminal guilt. 

Can I start by indicating that we also adopt the oral submissions of the Commonwealth Solicitor‑General in relation to the construction of the legislation.  Can I add one thing to that, just to respond to a question that the Chief Justice asked yesterday about whether there was in the UK cases a distinct identification or ascertainment of risk.  Can I just point the Court to footnote 14 of our written submissions.  I do not need to take your Honours there but we do there point out the case of R v Carey, [2012] EWCA Crim 1592 at paragraphs 12 to 14.

We pointed that out because in that case the trial judge had found that the risk of future reoffending was very low but had nonetheless made an SCPO and on appeal the UK Court of Appeal set aside the order because to find a risk to be very low was not sufficient to enliven the power.  We thought that might be of some assistance in relation to the matter your Honour the Chief Justice raised.

BELL J:   I am sorry, but what was the paragraph number in your submissions that you referred to where there is the reference to that case?

MS WALKER:   It is footnote 14, which is a footnote to ‑ ‑ ‑

BELL J:   I am sorry, I have found it.

MS WALKER:   Sorry, I did not give the paragraph number, your Honour.  Now, aside from that we are certainly content to rely on what the Commonwealth had to say about construction.  In relation to the distinction between a protective regime and a punitive regime we say first that contrary to the submissions of the plaintiffs, ASIC v Rich, upon which they relied in their reply at paragraph 6 and also in oral argument yesterday does not assist the plaintiffs.

I want to make good that proposition using two slightly distinct bases.  The first is to take the Court to the decision in Albarran. If I can ask the Court to go to that it is a 2007 decision reported in 231 CLR 350. That case, as your Honours might well recall – does everyone have that case? My apologies, your Honours.

KIEFEL CJ:   Yes, we do, thank you.

MS WALKER:   That concerned a disciplinary power and the argument was put that the effect of suspending the registration of a liquidator or cancelling the registration of a liquidator which was to be exercised by a non‑judicial entity was invalid because it involved imposing a penalty or otherwise punishing the person for their past behaviour, and that that was judicial and could not be exercised by the relevant executive body, the board, which was the respondent.

Now, the appellants in that case sought to rely on the comments from ASIC v Rich that the plaintiffs seek to rely on in this case.  The very short point we make, your Honours, is that effectively we contend that in the judgment of Chief Justice Gleeson, Justices Gummow, Hayne, Callinan, Heydon and Crennan at page 356, paragraph 9, that the plurality there effectively confined the effects of the comments in Rich to what they described as a different field of discourse, namely, the application of the body of law concerning privileges against penalties and forfeitures to court proceedings under particular provisions of the Corporations Act in the context of discovery.

So the passage from Rich really, in my submission, has been confined in that way in Albarran and then the second reason we give for contending that that passage from ASIC v Rich does not assist the plaintiffs is that the distinction between laws having a punitive effect and a punitive purpose and a non‑punitive or protective purpose has been considered by this Court to be relevant in a number of cases that postdate ASIC v Rich in the context of determining the validity of a law by reference to Chapter III.

We have set out in the outline of oral argument the passages in which one sees most clearly – we have not sought to be exhaustive in that regard – the reiteration of the significance of the distinction between legislation enacted for a protective purpose and legislation enacted for a punitive purpose.  Your Honours will see we have mentioned Fardon which, of course, concerned detention – this case does not – Thomas v Mowbray, and the learned Solicitor‑General for the Commonwealth has taken your Honours to some of those passages. 

In fact, the passages we rely on in Fardon, from Justices Callinan and Heydon, Mr Kirk for the plaintiffs took the Court to yesterday and one could see in those passages a reference to this distinction and then, of course, most recently, this Court’s decision in Falzon and, again, I do not think I need to take the Court to those passages.  We have set them out.  But what we say is there has been, since ASIC v Rich, a recognition that drawing a distinction between a protective regime and a punitive criminal regime is indeed relevant.

Can I also, your Honours, make some brief remarks about the reliance of the plaintiff on the judgment of Justice Hayne in the Labrador Case.  That case is in volume 2 of the bundle at tab 21, and can I ask your Honours to go to page 166 of the CLR, first, to the judgment of Chief Justice Gleeson.  Now, before I in fact perhaps turn to the passage it is important to recall that the case concerned provisions dealing with the prosecution of offences under the Customs legislation and the question was what standard of proof should apply in a prosecution for a conviction.

Now, in paragraph 1, Chief Justice Gleeson indicates his agreement with the judgment of Justice Hayne and I will come to that judgment.  But his Honour the Chief Justice says: 

As to the question of standard of proof, the statutory provisions invoked by the appellant in these proceedings refer to offences, guilt, conviction and punishment . . . the legislative description of the conduct alleged, and of the orders which the appellant seeks, should be accepted at face value.  That being so, the common law requires –

the beyond reasonable doubt standard.  That, in our submission, is important because our legislation that is in issue in this case is quite different.  It does not speak of guilt, conviction and punishment because it is not concerned with those things.

If I could just go back to the passages that Mr Kirk took the Court to commencing at page 205 of the report in the judgment of Justice Hayne, bearing in mind again the question that his Honour is directing himself to, which is in a context where the statute does not provide expressly for the standard of proof, if the Court could go to paragraph 135, his Honour articulates the question:

What does the common law require?

He observes:

Where what is sought is conviction of the defendant for an offence against a law of the Commonwealth, it must be strongly arguable that nothing short of proof beyond reasonable doubt will do.

He does then go on to say – and Mr Kirk did not take the Court through this part of the reasoning:

If no conviction is sought, but other relief is (as, for example, a declaration that the defendant contravened identified provisions of the relevant Act coupled with orders for payment of monetary penalties), it must be strongly arguable that, in proceedings conducted according to civil procedures, proof to the civil standard will suffice.

Subject really to Briginshaw.  Over the page his Honour goes on to point out that:

the conclusions proposed focus upon, and attached significance to, the kinds of orders which the proceedings seek.  In particular, proceedings are distinguished according to whether or not they seek the conviction of the defendant for an offence.

The statutory regime here does not seek the conviction of the defendant for an offence.  In fact, in paragraph 138 his Honour describes:

Seeking to obtain the conviction of a person accused of contravening written or unwritten law lies at the heart of the criminal process.

So again the context of this Act involved legislation that identified the task to be ultimately, if found to be guilty, the person would be convicted of an offence – very, very different.  Finally, your Honours, at paragraph 139 commencing at the top of page 207, his Honour refers to the fact that:

both federal and State companies legislation has provided for recovery of what are described as “civil penalties” on . . . the civil standard of proof but the operation of those provisions did not, and does not, extend to proceedings for an offence.

So in that context his Honour ought to be understood as focusing on the particular regime which was a regime providing for conviction for a criminal offence.  He leaves open that lesser relief not directed to conviction for a criminal offence is in a different category and might certainly permit of a lower standard of proof.

The final matter, your Honours, that I would like to deal with is the analogy between an SCPO made under the New South Wales Act and an apprehended violence order which has been raised to some extent already in argument, but can I take the Court to Thomas v Mowbray just to indicate the fact that as part of the reasoning, at least in this case, but we would say there are others, members of the Court have referred to the existence of apprehended violence regimes as indicating that it is permissible to enact a regime that focuses on limiting a person’s behaviour, including limiting their behaviour which might otherwise be lawful, in order to achieve the protective purpose.  In the context of an AVO of course that would be a protective purpose directed to one or perhaps a small group of individuals, and we say that that is not materially different.

The particular passages I wanted to draw your Honours’ attention to in Thomas v Mowbray, which is in volume 5, at tab 41 – the first is on page 328.  It is paragraph 16 of his Honour Chief Justice Gleeson’s judgment where he gives two examples of a judicial power to create new rights and obligations which may restrict a person’s liberty, one being bail and one being apprehended violence orders.  He goes on at the top of 329 to say:

Apprehended violence orders have many of the characteristics of control orders, including the fact they may restrain conduct that is not in itself unlawful.  For example, an apprehended violence order may forbid a person to approach another person, or to attend a certain place. 

He then observes that those have their origins in the binding‑over jurisdiction. 

Can I then ask your Honours to go, briefly, to page 348 of the report?  This is in the judgment of Justices Gummow and Crennan and it is really just an additional part of the passage that the learned Solicitor‑General for the Commonwealth took your Honours to.  At the top of 348, the judgment mentions that:

In addition to the injunctive relief available under –

certain sections of the Family Law Act – which is another example of the protective jurisdiction often conferred upon courts:

every State and Territory has enacted legislation with power to make and tailor orders for the protection of targets of violence against those who have either perpetrated or threatened it.

The learned Solicitor‑General for the Commonwealth also noted that, of course, Justices Callinan and Heydon agreed with that paragraph in that judgment.

GAGELER J:   Is the Victorian legislation in similar terms to the Crimes (Domestic and Personal Violence) Act 2007 (NSW)?

MS WALKER:   Each State’s legislation is slightly different, your Honour.  So, there is a degree of similarity.  I could bring it up but what I have sought to do, really, is to give your Honours the South Australian example and to provide that because, in a sense, it is the most similar to the New South Wales regime.  The Victorian regime is, I think, a little bit more complex in terms of what is required to be proved and the nature of the matters that the court might have to have regard to.  But, if the Court could go to the extract from the South Australian legislation, can I ask the Court to go to section 6, which is on page 7 of the extract.  It follows the objects of the Act which I need not take the Court through but your Honours will see the grounds for issuing an intervention order against a person, the defendant.  There are grounds for issuing an order if:

it is reasonable to suspect that the defendant will, without intervention, commit an act of abuse against a person; and

the issuing of the order is appropriate in the circumstances.

Plainly, there are some differences there.  It is reasonable to suspect – not believe – that is a slightly lower threshold in terms of satisfaction – that the defendant will – is materially, we would say the same as the defendant would because it is a forward‑looking exercise.  Without intervention, perhaps makes express what – as the Commonwealth Solicitor‑General has submitted and, I think, your Honour Justice Edelman was raising with various parties, is implicit in the New South Wales regime.

Of course, what has to be suspected is that the person will commit an act of abuse against another person.  That is perhaps, on one view, a more narrow question than whether the person has committed one of a range of serious offences.  But your Honours will see in section 8, and I am not going to take your Honours through it, because it is quite extensive, but your Honours will see an extended definition of “abuse” which:

may take many forms, including physical, sexual, emotional, psychological or economic abuse.

So it in fact is really quite a broad term, capable of capturing conduct which might not be criminal – some will be, some will not be.  Then, of course, the requirement that the issuing of the order is appropriate in the circumstances – again, very close to the New South Wales scheme with which the Court is presently concerned.

Can I then refer the Court to section 12, which commences on page 12 of the extract.  This section sets out what might be contained in an intervention order.  It provides that:

An intervention order may do any 1 or more of the following -

and your Honours will see it does include things that would not otherwise be criminal, that it deals with being “on” on even just “within the vicinity of” certain premises; from “being in a specified locality”; from:

approaching within a specified distance of a protected person –

So the order may contain prohibitions that restrain conduct that would otherwise be lawful conduct.

GORDON J:   Does this have criteria that it is to be assessed by it, this Act?

MS WALKER:   The criterion is that it is appropriate, your Honour.

GORDON J:   Are there principles, though, for the way in which it is to be assessed, which are absent?

MS WALKER:   Well, can I come back to that in one moment, your Honour, and just say before I leave the list of one or more of the things that might be done, the final thing that might be done is:

impose any other requirement on the defendant to take, or to refrain from taking, specified action.

So that is a very open‑ended thing that might be included in an intervention order which then feeds back to the question of whether the order is appropriate.  Now, section 10 does contain principles for intervention against abuse.  It provides a list of things that must be recognised and taken into account in determining whether it is appropriate to issue an intervention order, and in determining the terms of an intervention order.

I will not read all of those matters to the court, but we would submit that the presence of those principles does not alter the proposition that the ultimate question for the Court is whether the order is appropriate.  None of these principles do expressly provide that there must be a balancing of the order against the interests of the defendant and yet we would submit that would be a necessary feature of the exercise in determining whether an order is appropriate, for the reasons given by others before me.

GAGELER J:   What is the equivalent legislation in your State?

MS WALKER:   In Victoria the equivalent legislation – I do not have it to hand.

GAGELER J:   Are you saying the South Australian provisions are typical?

MS WALKER:   It is hard to say what is typical, your Honour, because we did look ‑ ‑ ‑

GAGELER J:   Why are you taking us to them?

MS WALKER:   I am taking the Court to the provisions firstly because there is reference both in judgments and in argument yesterday to apprehended violence orders being the kind of orders that historically have been made that the Court has understood, perhaps through obiter remarks, to be a valid exercise of judicial power.

Then, of course, it seemed inappropriate for me to spend time going through every single State regime to indicate to the Court the variety of ways with which the State Parliaments have chosen to approach the question of apprehended violence orders.  What we selected was one that operated in a manner we would submit is materially similar to the way in which the New South Wales legislation operates in terms of the structure of the principle test.  First, you identify a risk, then you ask what order is appropriate to respond to that risk.

I totally accept that there are differences between the text of the South Australian legislation and the New South Wales Act in issue.  There will be differences between each of the State Acts and the regime that the Court is concerned with here.  The Victorian legislation is the Personal Safety Intervention Orders Act2010.

As I say, your Honours might well benefit from reviewing each of the State laws, but that did not seem to be a productive exercise.  So what I have chosen to do, your Honour, is find what we consider to be the example that was closest to the legislation with which the Court is concerned because we thought that would be the most useful analogy.  If the Court would be assisted by provision of other regimes, of course we could undertake to do that.

KIEFEL CJ:   I do not think that will be necessary.

MS WALKER:   Thank you, your Honour.

KIEFEL CJ:   Will you be a little longer?

MS WALKER:   I will I think just have a very short moment to conclude.  I think that the main point to finish with, your Honours, is to say that apprehended violence orders of either the South Australian kind or other State analogies ‑ and each State does have such legislation but they are not uniform –one can say of those regimes that they are directed to the protection of an identified person.

One might say that is the difference between the New South Wales Act in issue here and an apprehended violence order, but we would say that that difference would not lead to invalidity of the SCPO Act because there is nothing impermissible in the Parliament seeking to protect the public more generally rather than to protect an identified individual and that the exercise of identifying risk and tailoring orders to meet that risk is judicial when it is done in the context of an apprehended violence order; it is equally judicial when it is done in the context of making an SCPO.

Can I finally mention in relation to the South Australian regime that a police officer may apply for the order under section 20 and proof is on the balance of probabilities under section 28.  If the Court has no further questions, those are the submissions.

KIEFEL CJ:   Thank you, Ms Solicitor.  The Court will take its morning break.

AT 11.23 AM SHORT ADJOURNMENT

UPON RESUMING AT 11.37 AM:

KIEFEL CJ:   Yes, Mr Solicitor.

MR THOMSON:   May it please the Court.  There are six points that I propose to make about the proper construction of the legislation and I then propose to deal with whether the legislation purports to confer an unconstitutional function upon New South Wales courts or whether it impermissibly interferes with the decision‑making of those courts.

It appears to us that six issues have emerged about the proper construction of the legislation over the last day and a half.  Two of those are more general issues about section 5 and the last four issues are specific issues about section 5(1)(c).  The first issue concerns the purpose of a prevention order.  The purpose of a prevention order, in our submission, is significant for the arguments that come later about the function of making a prevention order being unconstitutional because it has a penal purpose and effectively involves either double punishment or reopening of the finality of a conviction or undermining public confidence in the orthodox criminal justice system.

It is not particularly relevant, we say, whether it is classified as a civil or criminal proceeding, except to understand that the purpose has an effect related to what I have just mentioned.  In our submission, the sole purpose of a prevention order is to protect the public against serious crime related activity and not to punish a defendant.  The name of such orders demonstrates that was what was intended.  They are called prevention orders.  They are protection of the public and against harm that may occur in the future is the basis for making such an order.

EDELMAN J:   H.L.A. Hart, I think, once said that a prisoner who was told that he was going to be in prison for an extra three years as a measure of social protection and not punishment might think he was being tormented by a barren piece of conceptualism.

MR THOMSON:   Certainly, and that would be the case if it was a prisoner, but this is not a prisoner and that is a point that we would make.  A question was asked about an example when you could not make a protection order and we would say that such an order cannot be made if there was no risk to the public, and a good example of that is a situation where the defendant is in prison because there is no risk to the public in that situation.  And that is the precise reason why the legislation in Fardon would only allow the making of an application for a protection order just before the end of the sentence.  So that is the best example of a situation where you could not seek a protection order.

The second, general point of construction that has emerged is about the significance of the limited class of defendants who may be the subject of a prevention order.  Prevention orders can only be made against those convicted of a serious criminal offence or those who are proved on the balance of probabilities to have been involved in serious crime related activity.  That is by virtue of section 5(1)(b).  That class is defined by the past actions of those people.  Our submission is that the limitation upon the class of defendants does not affect the purpose of prevention orders as concerned with possible future public harm and we would say that, even if section 5(1)(b) did not exist, section 5(1)(c) can operate independently and therefore the validity and constitutional effect of section 5(1)(c) needs to be assessed separately.

That brings me to the next set of points which concern the operation of the criteria in section 5(1)(c).  The first is the question about proof of whether there is risk to the public or not.  In our submission, it is necessary to look at the criteria and then ask about the essential steps that would be necessary in the chain of reasoning to apply those criteria, because we accept that there is an element of being rolled up in the way the legislation is expressed.  But in order for section 5(1)(c) to be activated, the Court must be satisfied that if a prevention order is made there are reasonable grounds to believe that the terms of the order if obeyed or enforced would, on balance, protect the public by preventing, restricting or disrupting the involvement by the defendant in the serious crime related activity.

We say that logically there are two steps that need to be taken to apply that legislative task.  The first essential step to reach a state of satisfaction that is required under section 5(1)(c) is to form the view that, unless a prevention order is made, there exist grounds to believe, on balance, that the defendant will be involved in serious crime related activity.  If you cannot form that view, for example, because the defendant is in prison, then you could not be satisfied that there was any need to make the order.

EDELMAN J:   I suppose this goes back to your earlier answer to my question, but what if the person is about to be released from prison or is going to be released from prison shortly and there might be that apprehension then?

MR THOMSON:   Well, in that case it is still a question about the next point, and that is an assessment of whether an order is necessary to prevent that person from becoming involved in the future in serious crime related activity.  So that is the second essential step that is necessary in order to apply the criteria that is expressed in section 5(1)(c).

EDELMAN J:   Do you accept the submission by the Solicitor‑General for New South Wales that the order could never extend to extending detention?

MR THOMSON:   Yes, and we have come to – I think it is our last point of construction about preventative detention and I will develop that point in due course, because some of that depends on how you interpret the word “appropriate”.  But we would suggest that you could never get to a point of it being appropriate to have effectively preventative detention in respect of a particular criminal activity that is to be prevented, because detention prevents all forms of activity, whereas what is necessary is for there to be the application of a criteria of appropriate to prevent a particular activity that is the subject of the order.

The fourth point of construction relates to the question about what state of satisfaction a court must possess to make a prevention order.  We make the submission that the court must itself be satisfied that there are reasonable grounds to believe that a prevention order would protect the public.  The requirement that there be reasonable grounds for belief, as interpreted by the Court in George v Rockett at page 112, is that there be reasonable grounds ‑ or that there exist facts which are sufficient to induce a particular state of mind in a reasonable person.

It would be a strange situation if a court and a reasonable person differed about reasonable grounds for the relevant belief.  In effect, the court should be acting as a reasonable person would be acting, and that submission is confirmed by the fact that the court itself has to be actually satisfied about the terms of the order being appropriate to prevent the relevant activity.  That is by reason of section 6(1).  So our submission is that the relevant state of belief has to be one that is possessed by the court.

I come then to a submission about “appropriate.”  The meaning of “appropriate” in the Oxford English Dictionary is it means something that is:

Suitable or proper in the circumstances.

And therefore we say that “appropriate” has a dual functionality.  It both permits what is suitable or proper to prevent a defendant being involved in a particular serious crime related activity.  It also has a limiting function; it limits what may be ordered to the minimum level of order which is suitable or proper to prevent, restrict or disrupt such involvement.  That limiting function is simply because it would not be appropriate – that is, it would not be proper or suitable – to make an order which exceeds what is necessary to prevent or disrupt or restrict the relevant particular criminal activity.

GAGELER J:   Why does it have to be a particular criminal activity?

MR THOMSON:   Well, because the application which is made has to be an application which is made to prevent, restrict or disrupt the involvement of a person in serious crime related activities.  There would have to be identification of what serious crime related activities are to be prevented so I have used “an activity”, it may be a plural of “activities”, but it would be necessary to identify what it is that there are reasonable grounds to believe is the activity that is going to be the subject of the order.  So that is why we say it would have to be particular activity or activities.

GAGELER J:   So the summons here is defective?

MR THOMSON:   Well, perhaps I am drawing this distinction ‑ that you could not reason that because somebody was, for example, a member of an outlaw motorcycle gang, and that they had in the past engaged in certain activities, and that there was a likelihood that the gang itself would continue to be engaged in activities in the future, but you cannot identify what particular activities, you could not say, “Well, simply because you are a member of an outlaw motorcycle gang, that therefore the position is that we can get some form of order to prevent you going out at night”, for example.

So that is why my suggestion is that it is necessary to identify a particular activity or activities.  To the extent that that is not implicit in the summons that is before the court that has activated these proceedings, that particular summons might be defective.  It has no bearing upon the constitutional validity of the legislation entirely.

The last constructional issue is the one that I have already mentioned about the nature of the orders not authorising preventative detention.  There is nothing about actually being taken into custody and in our submissions we make the point that there is no legislative machinery which would facilitate actual detention in a prison, or something of that nature.

The way the argument has developed is to suggest that, in effect, there is an analogy with perhaps home detention or something of that nature.  And as I have indicated, it is difficult to see how a blanket restriction could ever be seen as appropriate to prevent a particular criminal activity as that would almost certainly go beyond what is necessary in respect of the particular activity.

BELL J:   Why would not the requirement that the respondent to such an application not leave his or her place of residence operate to restrict or disrupt that person’s involvement in criminal activity?

MR THOMSON:   It certainly would but then this comes back to the question of appropriateness so that is why I start with the position of asking what is the particular criminal activity that will be the subject ‑ that needs to be prevented or disrupted and if it is, for example, consorting to carry out a robbery or something of that nature ‑ ‑ ‑

BELL J:   Let us say it is to manufacture methylamphetamine or to be, in some way, involved in the production or distribution of that illegal drug.  Why would not an order confining a person to their home be effective under this scheme, in the sense of “appropriate”, to disrupt their involvement in that activity?

MR THOMSON:   Let me deal with two parts of that question.  The first is the manufacture of it.  If this restriction that I have suggested about appropriate is correct and the manufacture is known to occur in a particular suburb, then it would be simply appropriate to prevent going into that suburb.  If the question is about the distribution of the methylamphetamine, for example, then what is appropriate might well just simply require not consorting with named persons.  So, those things are what would be suitable and proper in the circumstances and it would exceed what is suitable and proper to say, you cannot go out at all.

EDELMAN J:   You go as far as to say that there could never be circumstances where it would be appropriate to say you are subject to home detention for a period.

MR THOMSON:  The qualification of “for a period” might have significant consequence, so if it was for a very short period, perhaps, but it is difficult to envisage a situation where it would be tantamount to, effectively, home detention which is tantamount to punishment.  I do not exclude it but it comes back to the concept of the application of “appropriate” as a judicial standard.

I think to some extent, it reflects a little bit of his Honour Justice Gageler’s comment yesterday about personalised regimes and it is a question of assessing a number of different functions that need to be understood.  So that in assessing what is appropriate, there are three things that will need to be considered.  Those three things would be the particular relationship between the future nature of the potential public harm.

GAGELER J:   Can I just stop you there?  What do you mean by that?

MR THOMSON:   Sorry, I was going to identify three things that you need to look at the relationship between in order to understand what might be an appropriate order.

GAGELER J:   Yes, but what do you mean by the first?  What is the potential for public harm?  Where does that come into the assessment and what does it mean?

MR THOMSON:   I was using that as a shorthand phrase to identify what we had made a submission about in terms of proper construction concerning risk to the public.

GAGELER J:   Yes, but implicit in your paragraph 4 is that the words “protect the public by” add nothing to the substantive operation of section 5(1)(c).

MR THOMSON:   Sorry, I did not ‑ ‑ ‑

GAGELER J:   Implicit in your paragraph 4, is the Solicitor‑General for the Commonwealth’s submission that the words “protect the public by” add nothing to the substantive operation of section 5(1)(c).  All you are looking at is the serious involvement in serious crime related activity equals non‑protection of the public, or failure to protect the public.

MR THOMSON:   I would accept that, yes.

GAGELER J:   So what do you mean by “potential for public harm” in paragraph 7?

MR THOMSON:   Potential for the public to be exposed to serious criminal activity.

GAGELER J:   The public?  Does that add anything?  

GORDON J:   Or is it just the potential for serious criminal activity?

MR THOMSON:   That is precisely right.

GORDON J:   I do not want to know whether it is precisely right.  I am asking whether that is your submission.

MR THOMSON:   Yes, it is because, in effect, as a matter of substance, this is a piece of legislation which, if I adopt your Honour Justice Gordon’s analogy, is a little bit similar to seeking a quia timet injunction to prevent criminal activity and that is the purpose that is identified.  Clearly, there is a benefit to the public in preventing unlawful activity and it goes no further than that.

GAGELER J:   The legislature has told us that certain activity is serious criminal activity.

MR THOMSON:   Yes.

GAGELER J:   Does the court then assess the seriousness of particular serious criminal activity?

MR THOMSON:   I think that is involved in the other two elements of what I was going to identify.  The court would have to assess the reasonableness of the grounds for the belief and the nature of the activities which need to be prevented, restricted or disrupted and, taking the three things I have identified, it can them formulate the appropriate order.

So coming back to the example that your Honour Justice Bell gave about the manufacture or distribution of methamphetamine, it seems to me that you could make an example where you look at the seriousness of that where you would prevent or disrupt it by preventing somebody going to the relevant suburb, so you do not have to keep them in home detention completely and you may disrupt or prevent it, if it is a distribution question, by preventing them having contact with particular named people.  That is the type of balancing exercise that, in our submission, would be justified and could be undertaken.

BELL J:   Would some activities that answer the description of serious criminal activity, having regard to the breadth of that statutory term, never justify the making of an order ‑ a fraud offence, the risk that a person might commit credit card fraud in the future?  Is the Court involved in saying unlike other forms of serious criminal activity this is not a form of serious criminal activity that justifies constraints on the otherwise lawful behaviour of an individual to prevent that risk? 

MR THOMSON:   It may be that there is a wide breadth of serious criminal activity and it may be that credit card fraud possibly encompasses a wide range of circumstances.  So that if you are talking about a risk of a credit card fraud which is based upon an internet scam that might affect many people, you can imagine that some form of order could be made to prevent visiting particular IP sites or putting certain material upon the internet.

That might well be justified and it might be something that would prevent or disrupt that particular type of credit card fraud.  But if you are talking about – it may well be that if you suspect that there might be some other form of credit card fraud, it would be more difficult to prevent or to disrupt it.

It has been suggested that the steps that are needed to prevent or disrupt different types of serious criminal activity may be of various means, and that they may not be appropriate in the circumstances.  It is a little difficult to say in advance but, in our submission, you can postulate the application of a judicial standard, based upon the type of examples that have fallen from the Court.

BELL J:   Do I take it from that that in a circumstance in which the court is persuaded there exist reasonable grounds to believe that the making of an order would prevent, restrict or disrupt the involvement of the person in some serious crime related activity, the court might nonetheless properly determine not to make the order sought because of the court’s assessment that though it is serious crime related activity, it does not present a risk that justifies any form of intrusion on the liberty of the respondent to the application even though the test under 5(1)(c) is satisfied?

MR THOMSON:   Yes.  Well, that would be our submission about the proper construction of the legislation because it confers jurisdiction, or an authority or a power – perhaps I do not need to identify which ‑ and in those circumstances it is there to be exercised by the court according to normal judicial principles.  There is no mandatory requirement to make an order.

Having then gone through what we would say are the important matters of proper construction, there are two constitutional validity questions that arise, in our submission.  The first is whether any function that is conferred upon the New South Wales courts by this legislation is inherently invalid, and cannot be conferred upon a Chapter III court.

Having identified the nature of the proper construction, the relevant functions that we say are conferred are the function of assessing whether there are reasonable grounds to believe that a defendant from within a limited class will be involved in serious crime related activities and, if so, there is a further function of determining whether to make an order, and the terms of an order to prevent, restrict or disrupt that person from being so involved.  Now, we say that there is nothing inherently unconstitutional in those functions being conferred upon a Chapter III court, because they do involve judicial matters.

We say that this is unlike the situation in Totani, where the assessment of the relevant risk was effectively something that was undertaken by the Executive and then the Executive was enlisted to enforce orders to take away that risk and it was the fact that the Executive was enforcing an assessment of risk – sorry.  It was the fact that the judiciary was being asked to enforce an assessment of risk made by the Executive, rather than by the judiciary, which caused the problem.  That is not this case, if the construction that we have advanced is accepted.

There are a number of points that have been made by the plaintiffs in respect of whether this is an inherently unconstitutional function.  One is that what is involved here is undermining a punitive criminal justice system.  Our submission is that there is a different legal basis and purpose here for these orders, these prevention orders, which is distinct from punitive orders, and we have pointed out that a civil jurisdiction to restrain possible breaches of the criminal law has always existed in Chapter III courts, even if it is only exceptionally exercised.

There have been some significant submissions made about finality of a previous criminal prosecution being undermined.  We say the finality here should be understood in the particular sense of meaning the end of claim for criminal penalties.  It is not the case that finality has meant the end of all legal consequences arising from a factual incident.  In those circumstances, nothing about a prevention order therefore undermines a punitive criminal justice system. 

Insofar as you are talking about pending proceedings or proceedings which may occur, the New South Wales courts will retain their overall supervisory power to regulate the conduct of their own proceedings and therefore they may adopt an appropriate process to protect the integrity of those pending or concurrent criminal proceedings.

Another point that has been made is that prevention orders will practically undermine confidence in the justice system and our submission would be that once the proper purpose of them is appreciated then that is not going to be the effect because a properly informed person therefore understands the different basis and the different purpose of a prevention order. 

There has been a submission also made about prevention orders conferring the function of administering a different and lesser grade of punitive justice upon New South Wales courts.  In our submission, it is not a matter of punitive justice and, to the extent that it has been suggested that it matters that the applications are made by prosecuting authorities, we point out that other applications which are not punitive are made by such authorities.  Typically confiscation orders and compensation orders are sought by such prosecuting authorities.

The next question about constitutional validity then is, if there is no inherently constitutional function, has the legislation intruded into judicial decision‑making in an impermissible way, either by impairing it or effectively dictating the outcome of judicial decision‑making.  The first point that has been made is that there is a different standard of proof but clearly a standard of proof on the balance of probabilities is not unconstitutional in and of itself.  It is a recognised standard and it is an entirely appropriate standard, with respect, where assessments are being made about future action.  You cannot prove things beyond reasonable doubt for the question of future matters generally speaking.

The modification of the hearsay rule in civil proceedings is not constitutionally invalid.  Really this question about impermissible intrusion comes down to the question of appropriateness and whether that is a standard which imports a judicial criteria.  For the reasons that I have gone through in terms of the proper construction, we say that it does and we say that it is similar to the standard that has been adopted in other similar‑type cases such as in Fardon where there is unacceptable risk. 

The last point that has been made is the question about the fact that the prevention order may range for up to five years.  However, of course that is not a mandatory requirement that it should be five years.  The length of any prevention order must depend upon what is appropriate in the circumstances and, in any event, if circumstances do change there is with the leave of the court the ability to make an application to vary or alter the order.  So that in and of itself is not an impermissible interference with judicial decision‑making because it still comes back to the standard of “ appropriate”.

GAGELER J:   Is disruption of involvement in a crime a judicial function?

MR THOMSON:   Well, we go back to the ability to have quia timet criminal injunctions and clearly that has been well accepted to be an inherent function that Chapter III courts can perform.  In substance there is nothing different here.

GORDON J:   That is not quite right, though, is it?  I mean, disruption in those circumstances is subject to exceptional and there is an absolute apprehended view that, but for it, the conduct would have occurred.  It is a bit different.

MR THOMSON:   It is different and that is because those are standards that have been formulated by the common law or equity interacting with the criminal law.  What has occurred here is, instead, that a statute has dictated what the outcome might be.  New statutory standards have been implemented.  It is consistent with what was said in Attorney‑General v Emmerson at paragraph 60 which says that the legislation can devise its own statutory standards for the court to then apply.

With respect, there has been no submission that the statutory standards here make it inherently unconstitutional and my point was simply in response to the question from Justice Gageler that the function of granting injunctive relief to prevent criminal conduct is not inherently unconstitutional because it happens.  The circumstances in which that jurisdiction is exercised is a different question and that has been defined by statutory standard here.  Those are our submissions.

KIEFEL CJ:   Thank you, Mr Solicitor.  Solicitor‑General for Queensland.

MR THOMPSON:   May it please the Court.  We adopt the submissions made orally by the Commonwealth Solicitor‑General in relation to the question of construction, making some further short points about that if we may.  We would also seek to address the alternative criminal justice regime advanced by the plaintiff.  Again, just some brief points.

We agree with the Solicitor‑General for Western Australia as to the purpose of the Act being to protect the public by preventing, restricting or disrupting the involvement of a person in serious crime related activities, as we address in our written submissions.  Turning to the question of construction, logically, in our submission, there are at least four judicial steps comprehended by sections 5(1)(c) and 6(1). 

The following analysis, we would submit, is necessarily implicit in those provisions.  The first step, in our submission, is the court has to make an assessment that there is a risk of serious crime related activities which the person may in the future be involved in.  That comes from the concluding words of 5(1)(c), “involvement by the person in serious crime related activities”.

To respond to Justice Nettle’s question yesterday – at line 3960, page 89, of the transcript – that may be a Briginshaw question, informed in part by the person’s criminal history, propensity for criminal activity and, presumably and perhaps, necessarily, other evidence of relevant association or activity.  Briginshaw can apply in the context of assessing future risk. 

We have distributed a decision – or an extract from a decision of the Victoria Court of Appeal in NOM v DPP (2013) 38 VR 618 where, at 648‑649, paragraphs 92 to 98, Justices Redlich, Harper and Acting Justice Curtain, identify that, having considered cases such as Sellars and Poseidon, a Briginshaw test can apply in the context of assessing future risk.

That analysis, in the first stage, is a forward‑looking question.  It defines and limits one of the aspects of risk against which the order must protect.  It identifies the prospect of the risk occurring.  It involves identification and magnitude of the risk and the nature of the criminal activity involved.  It then leads to, in our submission, the second logical analysis where the court has to make an assessment that there is a risk that the public would be adversely affected by serious crime related activities identified in the first step by the person, which includes identification of the nature of that risk, its scope and the persons likely to be adversely affected.

That, again, is a necessarily forward‑looking question and defines another aspect of the relevant risk for the purposes of moving to the third step.  It is only after the first two steps have been undertaken that the court can logically engage in the process required by section 6(1).  There must be an order in terms that the court considers appropriate for the purpose of protecting the public by preventing, restricting, or disrupting the involvement of the person in serious crime related activities – defined in steps 1 and 2, we would submit. 

Section 6(1) limits the prohibitions, restrictions, requirements and other provisions in the order to those the court considers appropriate for the purpose of protecting the public by preventing, restricting or disrupting the involvement by the person in serious crime related activities.  So, necessarily, we would submit, the serious crime related activities are limited to the kinds which are considered in the analysis identified in the first two steps, being those that the court is satisfied that there is a risk of occurring in respect of the particular group of the public. 

Finally, section 5(1)(c) requires the court to be satisfied that there are reasonable grounds to believe - we would submit the reasonable grounds to believe are a standard which the court must arrive at - that the making of the order, as picked up from 6(1), would protect the public by preventing, restricting or disrupting the involvement of the person in serious crime related activity, which we would submit necessarily derives from the preceding analysis.

We agreed with the Solicitor‑General for the Commonwealth that that may involve in practice a nutritive process.  It involves balancing; it involves taking into account the limits of restrictions identified in steps 1 and 2 and the competing considerations of protection of the public, as identified, which may involve an evaluation of the magnitude of the risk in the second step, as we mentioned, on the one side, and the degree of infringement of liberties of the persons on the other.

The Court is familiar, in our submission, with balancing that kind of process. As the analogy proffered by Justice Keane yesterday in respect of interlocutory injunctions amply illustrates, that is precisely the approach taken, for example, in Lenah Meats.  It is a judgment evaluation commonly undertaken in the judicial process, as Justice Gleeson identified in Thomas v Mowbray at paragraph 20 and as identified and recognised in Thomas at paragraph 108 by Justices Gummow and Crennan as referred to by the Solicitor‑General for the Commonwealth.

Put another way, in our submission the process necessarily involves identifying the order appropriate as adapted reasonably necessary to achieve the preventative purpose described in paragraph 28 of our written submissions and which we identified in our oral speaking notes as an attenuated form of proportionality:  do the terms of the order exceed what is necessary for the protection of the public in all the circumstances of the case?

GAGELER J:   What do you mean by “protection of the public” ‑ anything different from Solicitor‑General for the Commonwealth?

MR THOMPSON:   In our submission, there are a number of steps involved in answering that question.  Firstly, it is necessary to identify who the public are, which is being done relevantly in the process we identify as the second step.  So it will not be the whole of the public necessarily ‑ it may be a portion of the public geographically or temporally exposed to the particular risk – and then identifying what the criminal activity is and how it would impact on the particular identified group of the public.  So it is not a question, in our submission, that one can answer in the abstract without undertaking what are necessarily implicit steps, we would submit, in the construction of sections 5(1)(c) and 6(1).

Although in Falzon it was said that structured proportionality cannot arise under Chapter III for the reasons which are there explained, in McCloy in paragraph 3 – I will not take the Court to it – there is a recognition that the concept of proportionality in Australian law describes a class of criteria developed by this Court over many years and which has been applied for multiple purposes including the application to purposive powers.  There is no reason in principle why that approach should be not be apt to the interpretation of this Act and to formulation of the order required under section 6(1).

EDELMAN J:   Is the difference between that type of structured proportionality and the proportionality exercised that you say is applied for appropriateness that although both employ, I think, as you have described it, reasonable necessity, the constitutional structured proportionality also applies a doctrine of adequacy in the balance?

MR THOMPSON:   Yes, your Honour. 

EDELMAN J:   Is that right then here?  If, for example, there were the possibility of an order that may even be beyond reasonably necessary – may be essential – to disrupt activity, such as an order to prevent a person from attending a particular place or a particular suburb, being either reasonably necessary or essential but, for example, that may be the only place where the person can obtain an essential medicine or a life‑saving medicine, would that not be a consideration that would be taken into account?

MR THOMPSON:   By analogy, can I invoke the Solicitor‑General for the Commonwealth’s point about married couples?  It is not so far removed from separating married couples in that analogy.

EDELMAN J:   It does sound an awful lot like adequacy in the balance type considerations. 

MR THOMPSON:   Yes, your Honour.  Can I come back to saying that the analysis which we submit is appropriate in terms of the steps which

have to be followed to arrive at section 6(1), whether one sees them as being necessarily implied into 5(1)(c) or whether one sees them as being part of a combined reading of 5(1)(c) and 6(1), those inquiries at that preliminary stage will inform the question that your Honour has asked. 

Can I then just make some short points about the issue of preventive and punitive?  It may be accepted, as submitted by our learned friend, Mr Kirk, that the line between legislative provisions which are preventive and punitive and as between civil and criminal proceedings is blurred, subject to the qualifications which have already been submitted concerning ASIC v Rich, and the observations by Chief Justice Gleeson in Fardon have made it difficult to maintain a strict division between punitive and preventive detention – for example, at paragraph 20.

Nonetheless the important point in this case, in our submission, is that the plaintiffs’ case ultimately depends upon characterising an order under this Act as adjudging and punishing criminal guilt and is based on there being an alternative criminal justice regime.  That is made clear by the plaintiffs’ reply submissions, at paragraph 7.  It is also made clear, in our respectful submission, by what was said by our learned friend at pages 30 to 31 of the transcript yesterday – lines 1275 to 1279 – where our learned friend puts the proposition this way:

The fact that orders under this Act are not labelled as sentences and are said to be for protecting the public does not detract from their objective character as imposing what can be called punishment for past criminal conduct. 

In our submission, that is the extent to which the plaintiff has to put the case before this Court.  In our submission, properly construed, the Act is not directed to the purposes of adjudging and punishing criminal guilt.  They are preventive in nature.  May it please the Court.

KIEFEL CJ:   Thank you, Mr Solicitor.  Reply, Mr Kirk?

MR KIRK:   Thank you, your Honour.  Can I start with and indeed focus upon issues of construction and address in particular the submissions put by my learned friend for the Commonwealth.  Wrapped up within what my learned friend said were three propositions that I seek to address and will do so in turn, the first relates to the relationship between section 6(1) and section 5(1)(c) where my friend says one starts with 6(1) rather than 5(1)(c).  The second is that section 6(1) requires some kind of proportionality exercise apparently based on the word “appropriate”. 

The third proposition is that section 5(1)(c) requires an assessment of the degree of risk.  So, dealing with those in turn, the first being the relationship between section 6(1) and section 5(1)(c), the Commonwealth’s position as set out in its written submissions at paragraph 9 is that:

the court must engage in an evaluative inquiry under s 6(1) in order to determine the content of the SCPO.

And only then does one turn to section 5(1)(c).  That seems to treat section 6(1) as though it were, in effect, a further jurisdictional precondition, and that was very much how it was put this morning by South Australia.  But the jurisdictional facts as we labelled them are the three matters identified in paragraphs (a), (b) and (c) of section 5(1).

KIEFEL CJ:   I thought the Commonwealth Solicitor‑General said that it was more of an iterative process, that one would start with the orders proposed and then look to section 5(1)(c) and then perhaps return to section 6(1) for the final conclusion, but perhaps I have misunderstood what he was saying.

MR KIRK:   Sorry, your Honour.  My learned friend certainly did use the word “iterative”.  But, even if it is put in that way, it suggests a shuttling back and forth between the two as those in 6(1) were very much racked up in the 5(1)(c) assessment.  That is not so, in our respectful submission.  The orders – or the order, singular – that is referred to in 5(1)(c) must be an order that is proposed by an eligible applicant.  An eligible applicant comes to the Court and proposes – based on this set of facts of which I will seek to persuade you – here is the order of which you can be satisfied that there are reasonable grounds to believe, et cetera. 

There are myriad orders that might achieve a purpose of disrupting serious crime related activity.  It is an almost completely open field, subject to the restrictions in section 6(2), of course.  The role of section 6, in our respectful submission, is to identify the possible range of content of such orders.

So, it has to be matters capable of being considered appropriate for the purpose of protecting the public, et cetera, by disrupting, et cetera – falling into the category of prohibitions, restrictions, requirements and other provisions and not falling into the exclusions in subsection (2).  It sets the outer limit of what might be done but, otherwise, it is the Executive which proposes of the myriad, infinite range in the spectrum of available possibilities, here is what we propose and we seek to persuade you that it satisfies the jurisdictional fact requirements in section 5(1).

EDELMAN J:   Are you saying that the order in 5(1)(c) is the order that is proposed by the applicant?

MR KIRK:   Yes.

EDELMAN J:   How does that fit with the opening words of 5(1), which is:

An appropriate court may . . . make an order –

Is not the order referring to the order that the appropriate court may make? 

MR KIRK:   It all comes back to what order is proposed.  The applicant must come to a court with a summons or it might be better to have  ‑ ‑ ‑

EDELMAN J:   The court does not have to make the order that is proposed by the applicant.

MR KIRK:   But it is that order which must – it is some order proposed which must ultimately satisfy relevantly the jurisdictional facts in section 5(1)(c).  It is for the ‑ ‑ ‑

NETTLE J:   Why would it not be the order that is actually made by the court that needs to satisfy those criteria?

MR KIRK:   Because – no doubt the order that is ultimately made must meet that but what is being considered is what is being proposed.  It is the applicant which comes to the court and says here is the order we seek of the myriad possible orders and we seek to persuade you that there are reasonable grounds to believe et cetera that this order will disrupt.  Otherwise it is plainly not – sorry, I cut across your Honour, if I just finish the sentence.

NETTLE J:   Not at all.  I was just thinking of so often people make applications for things like injunctions or apprehended violence orders or orders of that kind where they shoot for the stars but in the end get something considerably less.  What we want in life and what we get are frequently two different things and it is so in litigation, surely?

MR KIRK:   Absolutely true, your Honour, but it is always the applicant which is putting up.  Now, I am not suggesting that what they are stuck with, whatever they have put in their first version of the summons, they can obviously put variants but it is still ultimately for them to propose.  It is not for the judge to draft the order.  It is always for them to propose and to seek to meet the criteria in section 5(1)(c).

Now, I recognise, by the way, what I have said about section 6(1) leaves aside the issue of “appropriate” and I am going to come back to deal with that in relation to the third proposition.  But can I come then to what I articulate is the Commonwealth’s second proposition, which is building in – in fact, this does, in part, address the “appropriate” issue – building in some notion of proportionality or such like to section 6(1).

The first point we seek to make about this is that, as your Honour Justice Gageler has pointed out to a number of my learned friends, the Commonwealth Solicitor‑General conceded twice that he did not seek to give any particular extra work to do to the words “protect the public”, that he accepted, as we put, that it is protect the public by doing one of the relevant things.

But if I could take your Honours to the Commonwealth’s outline of oral propositions which captures, in a sense, the heart of the Commonwealth’s construction issue on this point quite well at paragraph 3.  In the main portion of paragraph 3, the Commonwealth says:

Under s 6(1), the court must consider whether, in all the relevant circumstances, each prohibition . . . that is sought is justified by reference to its contribution to protecting the public, in the sense that it does not impose a greater degree of restraint than the reasonable protection of the public requires.

So there are two slides there.  One is to start speaking about protection of the public simpliciter.  Secondly and critically, it is to throw in the common law’s favourite word of restraint, “reasonable” where what is put there bears no relationship to what is articulated in either section 5(1)(c) or in section 6(1).

EDELMAN J:   So a court can consider an unreasonable order to be appropriate?

MR KIRK:   Yes, it could do.  It could do.  And then that leads me to address the word “appropriate” and the Commonwealth put four strands of argument as to why some notion of proportionality or such like should be built in and the first was to start with ordinary words.  It said that its construction was consistent with ordinary words.  It builds in a great deal of baggage where the first definition of “appropriate” in the Macquarie Dictionary, for example, is:

suitable or fitting for a particular purpose, person, occasion, etc.

Suitable or fitting for a particular purpose, et cetera.  That is a low level requirement of assessment of suitability where here the purpose is identified.

NETTLE J:   It is the same as “adapted”.  The two things mean the same thing.

MR KIRK:   Or rationally achieves the end of.

NETTLE J:   We routinely accept that the words “appropriate” and “adapted” or the concept expressed in those words is equivalent to proportionality.

MR KIRK:   Not quite, with respect, your Honour, because it is qualified by the key word “reasonably” ‑ “reasonably appropriate or adapted”.  There are other variants of it as well.

NETTLE J:   Well, it comes back to Justice Edelman’s point perhaps.

MR KIRK: That is not what is used here, and that leads me to this point. This is, of course ‑ even leaving aside all the analogies that we are familiar with from a whole range of areas of law, just focusing on this type of area of preventative regimes, this is hardly an unploughed legal field. The Commonwealth was very keen to refer to the Commonwealth progenitor of this scheme, but there are plenty of Australian ones, including Division 104 of the Criminal Code, and the parliamentary drafter must have been aware and could have used any of the language of “reasonably appropriate”, “reasonably necessary”, “reasonably appropriate and adapted”, “proportionate”, “taking account of effects of the defendant” or any other variant, and the drafter did not.  Moreover ‑ ‑ ‑

NETTLE J:   Is it significant that they photocopied the English legislation?

MR KIRK:   It is obviously relevant to take account of it, and I will not go back over the debate we had yesterday about the extent to which one takes – actually I will come back to the point about the Herzfeld and Prince text but ‑ ‑ ‑

NETTLE J:   It is just that the English do not have the tautological hendiadys of appropriate and adapted.  They stick with appropriate as meaning the same thing.  Why would one not take the Parliament of New South Wales to have intended by adopting it to mean the same thing?

MR KIRK:   I will come to Hancox shortly but can I answer in another way first.  On any view of it, one has to read section 6(1) in context and together with section 5(1)(c), among other provisions.  It is critical, in our respectful submission, that section 5(1)(c) represents a deliberate choice of a low standard – namely, reasonable grounds to believe.

Section 5(1)(c), for example – I am dealing with a few issues here, but to come back to an issue your Honour Justice Gageler raised with me and a few others – does not state the court believes on reasonable grounds, it does not even state the court has reasonable grounds for believing; it states the court is satisfied that there are reasonable grounds to believe.  So that does not require a subjective element; it is the purely objective element.

The Commonwealth seems to accept that in submissions but then seeks to read everything back in, including the requirement of reasonableness and proportionality through the word “appropriate”.  But to read everything back in that way is to undermine the Parliament’s deliberate choice of a low standard in the jurisdictional fact in section 5(1)(c).

As your Honour Justice Keane put yesterday, if there are reasonable grounds to believe that the making of the order would achieve those objectives, there will commonly be reasonable grounds not to believe.  That is the very point of the criterion.  It is to open it up to recognise there is a range of potential opinion but they must ultimately be in the scope of reasonable.

The Commonwealth sought to criticise our submissions for suggesting that it is a low standard.  Without going to it ‑ it is actually in volume 328 ‑ can I just remind your Honours of what this Court said unanimously in George v Rockett (1990) 170 CLR 104 at 116:

the assent of belief is given on more slender evidence than proof.  Belief is an inclination of the mind towards assenting to, rather than rejecting, a proposition and the grounds which can reasonably induce that inclination of the mind may, depending on the circumstances, leave something to surmise or conjecture.

That key choice by the Parliament undermines, in our respectful submission, the whole construction of the Commonwealth.  Still postponing part of my answer to Justice Nettle’s question, can I deal at this point briefly with Briginshaw.

BELL J:   Just before you do, if one accepts George v Rockett, the notion of the inclination of the mind to assent to a proposition means that if the grounds for belief and non‑belief are in equipoise, one would not pass the test.  Surely what is required is that, for the grounds to reasonably support the assent of the mind to the proposition, they must favour it.

MR KIRK:   Yes.  I think that is implicit in the quote from George v Rockett about an inclination of the mind.

BELL J:   Yes, indeed.

MR KIRK:   I accept that, your Honour.  It is convenient to deal at that point with Briginshaw, recognising I am still dealing with a few issues at once, because Briginshaw was raised, including by my learned friend for Queensland.  We accept that it has work to do in relation to fact finding for, for example, section 5(1)(b)(ii):  did they do the offences?  It does not have work to do in relation to section 5(1)(c).  Briginshaw is about proof. To quote Justice Dixon (1938) 60 CLR 336 at 361:

when the law requires the proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence before it can be found.

For 5(1)(c) – to go back to what I just said – the Parliament has specifically legislated the standard to be met.  It is a low standard involving less than proof.  And, thus, to deal with Queensland’s point – whether or not Briginshaw can apply to future risk is not to the point, given Parliament’s choice here.

My learned friend for the Commonwealth placed great significance on Hancox – and this comes back to what your Honour Justice Nettle was raising with me a short time ago.  There are a series of problems with the Commonwealth’s reliance on Hancox and, first, as illustrated this morning, in a sense, it proves too much.  In Hancox, the English Court of Appeal clearly invokes a European sense of proportionality by reference to the structured proportionality well developed there and where, as your Honour Justice Bell pointed out to my learned friend, there is a balancing with identified rights or interests ‑ relevantly, in Hancox, Article 8(1) of the ECHR, namely, everyone has the right to respect for his private and family life, his home and his correspondence. 

Clearly, that notion, or the other panoply of rights in the ECHR, would not be taken to be imported into Australian law by the use of the word “appropriate” in section 6(1).  It would require much more work than that to do such a major task.  Faced with that argument, the Commonwealth opted for some lesser notion of proportionality which, in the end, seemed to be something like proportionality in sentencing.  I think that was raised by your Honour the Chief Justice and my friend accepted it.  Queensland, this morning, opts for a different variant – what is called an attenuated form of proportionality and my learned friend for Queensland referred to McCloy.

The difference between the two points to the complete lack of statutory guidance as to what sort of test is proposed, what sort of factors are required to be taken into account.  A little out of order but may I deal with it here.  Although the South Australian AVO provision scheme on its face bears some resemblance in section 6(1) to the acted issue here, as my learned friend for Victoria accepted, in section 10 there is a range of relevant matters that are required to be taken into account including, for example, understandably in the context, how an intervention order might affect contact between the protected person or the defendant and any child and how it might affect property of the defendant. 

That, in a sense, is part of the answer too to the Commonwealth’s hard example put against us about a couple against whom orders are sought.  There is simply no articulation in this scheme of the sorts of matters that must be taken into account in stark contrast to the South Australian legislation.

Just whilst I am dealing with the AVO point, in the time available, we just had a quick look at the New South Wales Act; suffice to say, the New South Wales Act is in no way similar to the South Australian scheme and there does not appear to be a general model.  For the record, it is the Crimes (Domestic and Personal Violence) Act 2007, see Parts 4 and 5 which, again, articulate matters that must be considered by the court.

As to the reliance placed on the Herzfeld and Prince text and the presumption about awareness of past judicial interpretation, here we obviously accept there was an awareness of Hancox in the proceedings but the presumption, as discussed in the text, rests ultimately on the idea that the legislature is taken to have considered and accepted the interpretation.

Here, there was dispute as to the applicability of Hancox, and I took your Honours to some of the discussion in the upper house about that, for the very sort of reason I have just identified.  Namely, that it was applying in a very different statutory context in the UK, where the ECHR applied.  It was to deal with that uncertainty that Mr Searle proposed detailed amendments to seek to articulate the sort of matters that must be taken into account, and those amendments were rejected in the upper house.  That parliamentary history rejects – or, sorry, undermines the premise of the argument, namely, that the Parliament should be taken implicitly to have adopted the construction in England.

My friend for the Commonwealth also referred to the decision of his Honour Justice Davies in Commissioner of Police v Bowtell (No 2).  Suffice it to note that the issue of balancing, which is what my learned friend relied on the case for, was conceded by the Commissioner at paragraph 81, and there was no significant discussion of the proper construction of the provisions.

The final point in support of this proposition that the Commonwealth put was that there is nothing in the Act to suggest it is a one‑sided contest, and invoked section 5(3) and (4), indicating that a person may appear and be heard.  That people like my clients may appear and be heard says nothing as to the construction of the Act.  It is an odd submission, with respect, to say that a statutory provision should be read broadly because both sides of a case might appear to argue about how it applies.  In any event, there is plenty of work for procedural fairness to do because if it is alleged that people such as my clients have been involved in serious crime related activity, it might be anticipated that commonly that will fiercely be resisted.

That brings me to the Commonwealth’s third proposition, namely, that 5(1)(c) requires an assessment of the degree of risk of the defendant being involved in serious crime related activity in the future.  This seemed to depend – and my learned friend the Solicitor‑General for New South Wales put a similar submission – seemed to depend particularly on the word “would” in section 5(1)(c) and section 6(1), as understood in Taylor’s Case. 

If I can take your Honours for the umpteenth time back to the text of the provision, particularly 5(1)(c).  What the “would” relates to is that the making of the order:

would protect the public by –

to shorten it:

disrupting involvement by the person in serious crime related activities.

It goes to whether there will be disruption, whether this order will disrupt, would disrupt.

GORDON J:   If there are reasonable grounds to believe that it would.

MR KIRK:   Yes, absolutely.  So it is qualified by what is there at the start and one cannot simply ignore the words there at the start.  An order which prevents a person leaving their home – to take Mr Thomson’s example, for example; I think it might have originated from your Honour, a suspicion about being involved in production of methamphetamine.  An order which prevents them leaving their home would disrupt their potential involvement in serious crime related activity, at least to the standard of reasonable grounds to believe.

Section 5(1)(c) is effectively determined by the content of the order submitted by the Executive and almost any order which restricts the activity of a person may be capable of satisfying that there are reasonable grounds to believe that that order would disrupt involvement by this person in serious crime related activities.

EDELMAN J:   Would you accept that a person, to use your example, who is committed of larceny of five jumpers from David Jones 20 years ago, there would be reasonable grounds to believe that the making of, say, a home detention order would disrupt that person’s involvement in the manufacture of methamphetamine?

MR KIRK:   Is that going to stop them stealing jumpers, making methamphetamine, or doing one of any range of other things?  Yes.  If Parliament had meant to include a risk assessment, it readily could have done so, compare sections without going back to it, 13(1) and (2) of the Fardon scheme which your Honours will recall the language of a “serious danger to the community” which was then further defined in the sense of unacceptable risk and that phrase of unacceptable risk is used in New South Wales equivalent law to the Fardon law which I identified yesterday, the Crimes (High Risk Offenders) Act 2006, see section 5B.

A further point about all this, of course, as I think raised by your Honour Justice Gageler but to answer some of my learned friends on this, what is identified in 5(1)(c) is serious crime related activities simpliciter as a whole.  It is any such activities.  It does not identify – it does not require that the applicant or the court identify any particular types of crimes or any particular likelihood that this particular person will engage in particular types of crimes.  It is will this order – are there reasonable grounds to believe that this order will disrupt involvement by this person in any serious crime related activities.  Western Australia sought to read in some restrictions which are simply not supported by the words which are there.

Unless your Honours had any other questions on construction, I was going to deal fairly briefly with some other points, not strictly by way of reply, but if you will forgive me can I raise one point in response to a point your Honour Justice Edelman raised with me yesterday about punitive damages.  Can I draw the Court’s attention to Gray v Motor Accident Commission (1998) 196 CLR 1 at paragraph 40 where the majority, I think it was, said:

Where, as here, the criminal law has been brought to bear upon the wrongdoer and substantial punishment inflicted, we consider that exemplary damages may not be awarded.

So the Commonwealth seeks to avoid double punishment in that respect. A small point in answer to something said by the Commonwealth. My learned friend took your Honours – I will not go back to it – to the provisions of Division 104 of the Criminal Code and gave emphasis to 104.4(1)(c)(ii).  It was one of the two criteria where it was not future looking, it was that he had been involved in terrorist training or such like. 

My learned friend, Mr Donaghue, made the point, well, this is an offence in equivalent terms.  That is no doubt right, but a distinction between that expression and this scheme is that where it is expressed in that way in 104.4(1)(c)(ii), it is that you have done the objective acts of participating in terrorist training, not that you have committed the offence as defined in section a hundred – whatever it is – and there may be a difference, in particular the mental element may be not required for 104.4(1)(c)(ii) where it is required for the offence.

My learned friend for the Commonwealth, in particular, relied on certain cases.  Can I remind your Honours what the plurality said in Condon (2013) 252 CLR 38, paragraph 137, quote:

the constitutional validity of one law 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.

Can I also remind your Honours what Justice McHugh stated in Coleman v Power (2004) 220 CLR 1 at paragraph 79:

Cases are only authorities for what they decide.  If a point is not in dispute in a case, the decision lays down no legal rule concerning that issue.

Wainohu was invoked by the Commonwealth.  The scheme there was, of course, quite different and it was held invalid, in any event, but the Commonwealth relied on some points made at the end of the plurality judgment.  My learned friend referred to something said at paragraph 90 by the plurality that such a power could be exercised by a Federal Court.  That was said about what was in Part 2 of the Act which was the part about declaring organisations, not Part 3 of the Act about control orders.

The challenge to control orders was quite confined. If I can take your Honours briefly to volume 5, tab 43, it is 243 CLR 181. The challenge was – to go to the argument – at the bottom of page 184, which is 2171 of the book and up to 185, I will not read it out – suffice to say, that identifies a limited challenge to sections 14 and 19 which are about interim and final control orders and they were challenges of a different kind. It was that challenge which was rejected.

Can I also take your Honours to page 228 at paragraph 105 in response to something South Australia said about two grades of justice and so forth.  I invite your Honours to read paragraph 105 in the plurality judgment.  I alluded to this yesterday, I think. 

I acknowledged yesterday that in Kable the references to two grades of justice were as between federal and State courts.  In this passage in paragraph 105, that type of principle seems to be read in a broader way in that it is referring, as we read the passage, to different grades of quality of justice, even within a Federal Court system, and we respectfully invoke that notion as part of our broader constitutional argument.

KIEFEL CJ:   Mr Kirk, you may not be keeping your eye on the time.

MR KIRK:   I am sorry, your Honour.

KIEFEL CJ:   Do you have any more points to make?

MR KIRK:   I will be five minutes.

KIEFEL CJ:   I am watching the clock.

MR KIRK:   I apologise; I should have noticed it.  My learned friend relied on Pompano.  Without going to it, in the interests of time, with respect, my learned friend did not present a fair picture of this case.  The provisions challenged in the case, as identified in the case – for example, the headnote – were sections 9, 10, 66, 70, 76 and 78.

The provisions relating to control orders, sections 18 and 19, were not challenged.  The essential basis of the challenge was about, as your Honours know, non‑disclosure to defendants of criminal intelligence material on which the court was able to act.  To suggest, as the Commonwealth effectively did, “Well, no one raised the point and so it must all be okay and so it is authority” ignores, with respect, the point made by Justice McHugh from Coleman that I quoted.

South Australia, this morning, suggested that we do not invoke the principle of enlistment.  That is incorrect – see our primary submissions, paragraph 36, reply paragraph 13, and my oral submissions yesterday.  My learned friend for Victoria raised Albarran, in paragraph 9.  All that was said in that paragraph, in our respectful submission, was that Rich v ASIC was of no assistance in that case, which was a case about whether the Company and Liquidators Auditors’ Board exercised judicial power.  It did not suggest that what was discussed in Rich v ASIC should be placed in a narrow box and forgotten.

Finally, as to the distinction between protective and punitive, your Honour Justice Edelman raised H.L.A. Hart this morning.  It was on

the tip of my tongue, too, your Honour.  So if I could take your Honours, briefly, to volume 2, tab 16, in Al‑Kateb (2004) 219 CLR 562, at page 565 of the book, page 650 of the CLR. Could I invite your Honours to read paragraphs 264 and 265 of what Justice Hayne said?

We would say that the five elements that Professor Hart identified are met here, including:

(ii)      It must be for an offence against legal rules.

Where 5(1)(b)(ii) is in play that will be so, and what is occurring is some detrimental imposition of pain or other consequence of an actual or supposed offender for, inter alia, his offence.  I say “inter alia” because 5(1)(c) brings in an additional element, but still inter alia, punishing him or her for what they have done in the past.  They are the submissions in reply.

KIEFEL CJ:   The Court reserves its decision in this matter and adjourns until 3.00 pm.

AT 12.55 PM THE MATTER WAS ADJOURNED