Vella v Commissioner of Police (NSW)
[2019] HCA 38
•6 November 2019
HIGH COURT OF AUSTRALIA
KIEFEL CJ,
BELL, GAGELER, KEANE, NETTLE, GORDON AND EDELMAN JJDAMIEN CHARLES VELLA & ORS PLAINTIFFS
AND
COMMISSIONER OF POLICE (NSW) & ANOR DEFENDANTS
Vella v Commissioner of Police (NSW)
[2019] HCA 38
Date of Hearing: 6 & 7 August 2019
Date of Judgment: 6 November 2019S30/2019
ORDER
The questions of law referred to this Court in the special case should be answered as follows:
Question 1: Is subsection 5(1) of the Crimes (Serious Crime Prevention Orders) Act 2016 (NSW) invalid (in whole or in part) because it is inconsistent with and prohibited by Chapter III of the Constitution?
Answer: No.
Question 2: If the answer to Question 1 is "Yes":
(a) to what extent is that subsection invalid?
(b)is that part of the subsection severable from the remainder of the Act?
Answer: Unnecessary to answer.
Question 3: Who should pay the costs of the special case?
Answer: The plaintiffs.
Representation
J K Kirk SC with T O Prince for the plaintiffs (instructed by LawyersCorp Pty Ltd and Birchgrove Legal)
M G Sexton SC, Solicitor-General for the State of New South Wales, with S Robertson for the defendants (instructed by Crown Solicitor's Office (NSW))
S P Donaghue QC, Solicitor-General of the Commonwealth, with J S Stellios and S R Bateman for the Attorney-General of the Commonwealth, intervening (instructed by Australian Government Solicitor)
C D Bleby SC, Solicitor-General for the State of South Australia, with M E Boisseau for the Attorney-General for the State of South Australia, intervening (instructed by Crown Solicitor's Office (SA))
K L Walker QC, Solicitor-General for the State of Victoria, with R A Minson for the Attorney-General for the State of Victoria, intervening (instructed by Victorian Government Solicitor)
J A Thomson SC, Solicitor-General for the State of Western Australia, with K J Chivers for the Attorney-General for the State of Western Australia, intervening (instructed by State Solicitor's Office (WA))
G A Thompson QC, Solicitor-General of the State of Queensland, with F J Nagorcka for the Attorney-General of the State of Queensland, intervening (instructed by Crown Law (Qld))
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
Vella v Commissioner of Police (NSW)
Constitutional law (Cth) – Judicial power – Constitution – Ch III – State Parliament – Institutional integrity of State courts – Where s 5(1) of Crimes (Serious Crime Prevention Orders) Act 2016 (NSW) provides that State court may make order if satisfied that specified person has been convicted of serious criminal offence or involved in serious crime related activity and satisfied that reasonable grounds to believe that making of order would protect public by preventing, restricting or disrupting involvement by that person in serious crime related activities – Where s 6(1) of Act provides that order against that specified person may contain such prohibitions, restrictions, requirements and other provisions as court considers appropriate for purpose of protecting public by preventing, restricting or disrupting involvement by that person in serious crime related activities – Where proceedings under Act are civil proceedings – Whether making order exercise of judicial power – Whether powers conferred by Act incompatible with State court's role as repository of federal judicial power – Whether powers conferred by Act substantially impair institutional integrity of State court.
Words and phrases – "appropriate", "balancing", "facilitates or is likely to facilitate", "future risk", "institutional integrity", "judicial power", "Kable v Director of Public Prosecutions (NSW)", "open-textured", "preventing, restricting or disrupting", "preventive orders", "real or significant risk", "reasonable grounds to believe", "risk assessment", "serious crime related activities", "serious criminal offence".
Constitution, Ch III.
Crimes (Serious Crime Prevention Orders) Act 2016 (NSW), ss 3, 5, 6.
KIEFEL CJ. The first question stated for the opinion of the Full Court is whether "[s] 5(1) of the Crimes (Serious Crime Prevention Orders) Act 2016 (NSW) [('the SCPO Act') is] invalid (in whole or in part) because it is inconsistent with and prohibited by Chapter III of the Constitution". It requires in the first place that s 5(1) be construed in order to determine its operation and what it requires an eligible court to do.
Section 5(1) provides:
"An appropriate court may, on the application of an eligible applicant, make an order (a serious crime prevention order) against a specified person if:
(a)in the case of a natural person – the person is 18 years old or older, and
(b)the court is satisfied that:
(i)the person has been convicted of a serious criminal offence, or
(ii)the person has been involved in serious crime related activity for which the person has not been convicted of a serious criminal offence (including by reason of being acquitted of, or not being charged with, such an offence), and
(c)the court is satisfied that there are reasonable grounds to believe that the making of the order would protect the public by preventing, restricting or disrupting involvement by the person in serious crime related activities."
"Serious criminal offence" has the same meaning as in the Criminal Assets Recovery Act 1990 (NSW) ("CARA"). It is not necessary to set out the definition[1]. It may simply be observed that it is very wide. "Involved in serious crime related activity" refers to the person having engaged in serious crime related activity, conduct that has facilitated another person's engagement in such activity, or conduct that is likely to facilitate such activity[2].
[1]CARA, s 6(2), (3) and (4).
[2]SCPO Act, s 4(1).
Section 6(1) provides:
"A serious crime prevention order may contain such prohibitions, restrictions, requirements and other provisions as the court considers appropriate for the purpose of protecting the public by preventing, restricting or disrupting involvement by the person in serious crime related activities."
Were the operation of s 5(1) free from judicial interpretation at the time that it was enacted, I would have been inclined to a construction of s 5(1), according to its terms, which gives an eligible court such a limited role that it could be concluded that the court had been enlisted by the legislature to do the work of the executive[3]. If that conclusion were reached, the answer to Question 1 would be "Yes".
[3]South Australia v Totani (2010) 242 CLR 1.
Before turning to the context provided by legislative history, I should outline the construction of s 5(1) which may give it the operation to which I have referred.
The scheme which ss 5(1) and 6(1) create comprehends an application to an eligible court for an order against an individual by an eligible applicant, such as the Commissioner of Police[4]. The order sought will contain, as s 6(1) requires, prohibitions, restrictions, requirements or other provisions such as will affect the person's freedom of movement and association.
[4]And also the Director of Public Prosecutions and the New South Wales Crime Commission: see SCPO Act, s 3(1).
So long as the person is at least 18 years of age and the court is satisfied that the person has been convicted of a serious criminal offence, or has been involved in some serious crime related activity, there remains only one other matter in s 5(1) of which a judge of an eligible court need be satisfied before an order is made. It is that "there are reasonable grounds to believe that the making of the order" would prevent, restrict or disrupt involvement by the person in serious crime related activities. The question under s 5(1) for the eligible court is as to the efficacy of the proposed order, and no more.
Section 5(1) does refer to the protection of the public, but it does so in a way which assumes both that that is necessary and that it may be achieved by the making of the order. The need to protect the public follows, inferentially, from the fact of conviction or a finding of involvement in crime and from there being no enquiry as to the risk to the public to be undertaken by the court. The enquiry is not expressed to be whether the public needs protection from the person. Rather, it is as to the efficacy of the order if made. If the making of the order will be effective to prevent, restrict or disrupt the person's involvement in crime, the public is protected. On this construction, much turns on the use of the word "by". The court is only required to have reasonable grounds to believe that the making of the order would protect the public by preventing, restricting or disrupting the person's involvement in serious crime related activities.
Moreover, given the nature of the orders to which s 6(1) refers, it will invariably be the case that they will at the least "disrupt" the potential involvement of the person in crime. It would follow that an order would be made in any case in which prohibitions, restrictions, requirements and other provisions of the kind referred to in s 6(1) are sought. There is no other factor in s 5(1) which would militate against the making of an order. On this construction, the discretion suggested by the use of the word "may" in the sub-section would be illusory.
Reading s 5(1) with s 6(1) cannot expand the court's role. Section 6(1) is concerned with the types of orders that may be made against a person under s 5(1). True it is that the court is required to consider whether the orders are "appropriate", but once again, the enquiry is not whether they are appropriate "for the purpose of protecting the public", but rather whether they are appropriate "for the purpose of protecting the public by preventing, restricting or disrupting involvement by the person in serious crime related activities". The enquiry is whether they are appropriate, which is to say effective, for the purpose of achieving the necessary disruption.
It may be accepted that an assessment of whether orders are appropriate may involve consideration of whether the orders go further than is necessary to achieve that outcome, given the effects of the orders upon the person. The exceptions to some of the orders sought against the plaintiffs in this case furnish examples: the order prohibiting association with known members of a motorcycle gang is expressed not to extend to pre‑arranged and approved family events; and the order preventing the plaintiffs from travelling by motor vehicle during certain hours exempts a circumstance of a genuine medical emergency. But it is to give the word "appropriate" in s 6(1) far too much work to do to read it as requiring or permitting the court to assess the risk to the public. Especially is this so when the terms of ss 5(1) and 6(1) make plain that that is an assumed fact. Importantly, it is a fact assumed in the provision which contains the power to make the orders, s 5(1).
In South Australia v Totani[5], s 10(1) of the Serious and Organised Crime (Control) Act 2008 (SA) gave the Attorney-General, on the application of the Commissioner of Police, power to make a declaration in relation to an organisation if the Attorney-General was satisfied that its members associated for the purpose of organising serious criminal activity and the organisation represented a risk to public safety and order in the State. Section 14(1) of the Act provided:
"The Court must, on application by the Commissioner, make a control order against a person (the defendant) if the Court is satisfied that the defendant is a member of a declared organisation."
A control order could contain prohibitions concerning the persons with whom the person could associate, and other restrictions.
[5](2010) 242 CLR 1.
Section 14(1) was held invalid by a majority of the Court on the ground that it authorised the executive to enlist the court to implement decisions of the executive in a manner incompatible with the proper discharge of its federal judicial responsibilities and with its institutional integrity. Section 5(1) of the SCPO Act does not implement a decision of the Commissioner of Police, or other person eligible to apply for serious crime prevention orders. But in identifying a person with a criminal record or involvement with crime, and requiring the making of an order of the kind referred to in s 6(1) so long as it is effective to disrupt that person's possible involvement in criminal activities, s 5(1) enlists the courts. It gives effect to the outcome sought with respect to the person[6].
[6]South Australia v Totani (2010) 242 CLR 1 at 170 [470].
Such a conclusion is not open where the statute gives the court the task, when making an order to prevent future wrongdoing, of undertaking its own assessment of the connection between the order proposed and the past or likely future conduct of the person, or its own assessment of the connection between the orders and a continuation of past and possible future acts[7]. The question whether, properly construed, s 5(1) permits the court to assess the risk to the public is therefore essential to its validity.
[7]See South Australia v Totani (2010) 242 CLR 1 at 86 [219].
It is explained in the joint reasons of Bell, Keane, Nettle and Edelman JJ that the SCPO Act was modelled on United Kingdom legislation[8]. In R v Hancox[9], the Court of Appeal of England and Wales construed an equivalent provision of the Serious Crime Act 2007 (UK)[10] to require, before an order of this kind is made, that there be a "real, or significant, risk" that the person will be involved in further serious offences, and that the court undertake this future risk assessment. That decision has consistently been followed[11].
[8]At [31].
[9][2010] 1 WLR 1434 at 1437 [9]; [2010] 4 All ER 537 at 540.
[10]Serious Crime Act 2007 (UK), s 19(2). See also s 1(1).
[11]R v Hall [2015] 1 Cr App R (S) 16 at 131 [16]; R v McGrath [2017] EWCA Crim 1945 at [10]; R v Strong [2017] EWCA Crim 999 at [11].
The Court of Appeal went on[12] to determine, in connection with an equivalent provision to s 6(1) of the SCPO Act[13], that for an order to be appropriate, it must be necessary. It must be justified by the benefit to be gained from the order, and the provisions of the order must be commensurate to the risk, which is to say it must be proportionate.
[12]R v Hancox [2010] 1 WLR 1434 at 1437 [10]; [2010] 4 All ER 537 at 540.
[13]Serious Crime Act 2007 (UK), s 19(5). See also s 1(3).
The Court of Appeal, clearly enough, did not interpret the words "by" in the analogue to s 5(1) and "appropriate" in the analogue to s 6(1) in the way described above. The operation which that Court saw as intended must, inferentially, have focused on the word "would" in the analogue to s 5(1) as importing an assessment of future risk. It involves a greater role for the courts in the process leading to the making of the order; one which would not suffer from the problems identified in South Australia v Totani.
The decision of the Court of Appeal in R v Hancox was reported in 2010. The SCPO Act was enacted by the New South Wales Parliament in 2016. Where words have been judicially interpreted, it is possible to interpret a subsequent statute as having the meaning so assigned to those words[14]. It may be assumed that the legislature has adopted the interpretation assigned to the earlier enactment, unless an intention to exclude that interpretation is evident[15]. That presumption may be strengthened by the legislative history of the statute. In Re Alcan Australia Ltd; Ex parte Federation of Industrial, Manufacturing and Engineering Employees[16], certain references in a report by a Committee which preceded the enactment and in the Second Reading Speech provided that context. In the present case, it is evident that the decision in R v Hancox was known to the Parliament and that it was understood that a court must conclude that there is a real or significant risk that the person will commit serious offences before an order of the kind in question is made. So much is evident from the debate on the relevant provisions in the Bill[17].
[14]Barras v Aberdeen Steam Trawling and Fishing Co Ltd [1933] AC 402 at 411; Bennion, Bennion on Statutory Interpretation, 5th ed (2008) at 599-601; Pearce and Geddes, Statutory Interpretation in Australia, 8th ed (2014) at [3.43].
[15]Townsville Harbour Board v Scottish Shire Line Ltd (1914) 18 CLR 306 at 315; Re Carl Zeiss Pty Ltd's Application (1969) 122 CLR 1 at 6.
[16](1994) 181 CLR 96 at 106-107.
[17]New South Wales, Legislative Assembly, Parliamentary Debates (Hansard), 3 May 2016 at 60; New South Wales, Legislative Council, Parliamentary Debates (Hansard), 4 May 2016 at 70-71.
It must therefore be accepted, having regard to the context for s 5(1), that it is to be read as its analogue was in R v Hancox. That interpretation has been adopted in the joint reasons. I agree with those reasons and the conclusions which follow. I would answer the questions stated for the opinion of the Full Court as their Honours propose.
BELL, KEANE, NETTLE AND EDELMAN JJ.
Introduction
This special case concerns the validity of s 5 of the Crimes (Serious Crime Prevention Orders) Act 2016 (NSW) ("the SCPO Act"). That section, read with s 6, empowers the District Court of New South Wales or the Supreme Court of New South Wales to make "preventive orders" that can restrain the liberty of an individual including without proof of the commission of a crime by that person. The plaintiffs challenge the validity of that legislation on the ground that the legislation is incompatible with the institutional integrity of those State courts, relying upon the doctrine developed from the decision of this Court in Kable v Director of Public Prosecutions (NSW)[18].
[18](1996) 189 CLR 51.
This Court has previously dismissed Kable challenges in decisions concerning preventive order legislation involving terrorism[19], organised criminal activity[20], and sexual offenders[21]. None of those decisions was challenged by the plaintiffs. The SCPO Act, and the challenge in this case, involve preventive orders concerning "serious crime related activity". The terms and operation of the SCPO Act are similar in important respects to each of the other regimes. Much of the reasoning of principle underlying the decisions that concluded that those legislative regimes were not incompatible with the institutional integrity of State courts applies also to the SCPO Act.
[19]Thomas v Mowbray (2007) 233 CLR 307.
[20]Wainohu v New South Wales (2011) 243 CLR 181; Condon v Pompano Pty Ltd (2013) 252 CLR 38.
[21]Fardon v Attorney-General (Qld) (2004) 223 CLR 575.
Even if the unchallenged precedent of this Court could be put to one side, the core submission of the plaintiffs should not be accepted. The SCPO Act does not involve the exercise of non-judicial power, nor is it incompatible with the institutional integrity of the District Court or the Supreme Court, because it deploys open-textured phrases which, properly interpreted, give rise to rules requiring the court to conduct an assessment of future risk and to balance criteria within a wide degree of judicial evaluation before making a preventive order. In an area necessarily involving considerable uncertainty it is not antithetical to the judicial process for Parliament to require the courts to interpret and to apply open-textured norms rather than "striving for a greater degree of definition than the subject is capable of yielding"[22].
[22]Fardon v Attorney-General (Qld) (2004) 223 CLR 575 at 593 [22], quoting M v M (1988) 166 CLR 69 at 78.
Ultimately, the plaintiffs' objections to the SCPO Act reduce to an objection to the legislative policy involving a regime of preventive orders that can deprive individuals of liberty even in circumstances where they have not committed any offence in the past and might not be expected to do so in the future. Yet, as Gleeson CJ observed in Fardon v Attorney-General (Qld), "nothing would be more likely to damage public confidence in the integrity and impartiality of courts than judicial refusal to implement the provisions of a statute upon the ground of an objection to legislative policy"[23].
[23](2004) 223 CLR 575 at 593 [23]. See also at 601 [42].
Background
On 5 October 2018, the Commissioner of Police commenced proceedings by summons in the Supreme Court against the plaintiffs in this proceeding, respectively Damien Charles Vella, Johnny Lee Vella, and Michael Fetui. The Commissioner alleged that the first plaintiff is the National President (or, if not, a National Office Bearer), and the other plaintiffs are members, of an organisation known as the Rebels. That organisation was described in the summons, in misleading vernacular[24], as an "Outlaw Motor Cycle Gang".
[24]South Australia v Totani (2010) 242 CLR 1 at 149 [397].
By a further amended summons the Commissioner sought orders under the SCPO Act to restrain and prohibit the plaintiffs, for two years, from various activities. The activities described in the summons include, in broad summary and with limited exceptions, the following: (i) approaching, contacting or associating directly or indirectly with persons associated with any Outlaw Motorcycle Gang (a phrase left undefined in the further amended summons) and producing to the police on demand any electronic device and password to ensure compliance with that prohibition; (ii) travelling in any vehicle between the hours of 9 pm and 6 am except in the case of a genuine medical emergency; (iii) attending or approaching specified types of premises associated with the Rebels Outlaw Motorcycle Gang or any other Outlaw Motorcycle Gang; (iv) possessing or having access to an encrypted communications device or possessing an encrypted application/media application; (v) possessing more than one mobile telephone; (vi) possessing any weapon; and (vii) wearing, possessing or displaying any Rebels insignia or any other Outlaw Motorcycle Gang insignia.
In the summons, the Commissioner asserted that each of the plaintiffs had been convicted of serious criminal offences. In relation to the first two plaintiffs the alleged convictions included offences of robbery in company, firing a firearm in a manner likely to injure persons or property, and obtaining money by deception. The alleged convictions of the third plaintiff included offences of assault occasioning actual bodily harm, resisting an officer in the execution of duty, and affray. The Commissioner also relied upon allegations that each of the plaintiffs had been involved in serious crime related activity for which he had not been convicted, or was acquitted. Few particulars of each matter of alleged involvement in serious crime related activity were provided. Further, by an assertion unsupported by any particulars, the Commissioner alleged that there were reasonable grounds to believe that the making of an order in relation to each plaintiff would protect the public by preventing, restricting or disrupting involvement by each of the plaintiffs in serious crime related activities.
In the special case, the plaintiffs admitted the facts of the convictions and sentences alleged by the Commissioner, and the facts of the charges, withdrawal of charges, acquittals, and charges not proceeded with as alleged by the Commissioner. Despite the breadth of the summons and the lack of clarity in many respects relating to the six steps discussed below, the plaintiffs did not submit that the summons was defective. Rather, the central issue in this proceeding is whether s 5(1) of the SCPO Act is invalid because it is inconsistent with and prohibited by Ch III of the Constitution.
Background to the SCPO Act
The SCPO Act is concerned with a type of order that has been described as a civil "preventive order"[25]. Such orders have long antecedents including, as early as the fourteenth century, in binding-over orders, by which justices of the peace and judges could bind over a person without proof of any offence, requiring payment of a sum of money as a pledge, if there were sufficient apprehension that the person's activities could breach the peace[26]. The Court of Chancery granted writs of supplicavit to restrain anticipated breaches of peace involving bodily harm by taking a person into custody, subject to release only upon security for good behaviour[27]. The severity of the apprehended harm that might attract Chancery's intervention increased over time[28]. The Court of Chancery also ordered injunctions to restrain the anticipated commission of criminal acts or public wrongs, particularly in cases of "public health or comfort or safety"[29], by "balancing the magnitude of the evil against the chances of its occurrence"[30]; in modern times that power has been substantially confined to situations dealing with statutory duties[31], on the general principle that it is not for a court to remedy "what it regards as the defective machinery of a statute"[32].
[25]See, eg, Ashworth and Zedner, Preventive Justice (2014) at 74-94.
[26]Thomas v Mowbray (2007) 233 CLR 307 at 329 [16], 356 [116]. See also Sheldon v Bromfield Justices [1964] 2 QB 573 at 577; R v Wright; Ex parte Klar (1971) 1 SASR 103.
[27]Blackstone, Commentaries on the Laws of England (1769), bk 4 at 249-250; Story, Commentaries on Equity Jurisprudence as administered in England and America, 14th ed (1918), vol 3 at 513-514. See also Thomas v Mowbray (2007) 233 CLR 307 at 356-357 [118].
[28]Jenks, "Writs De Minis and Supplicavit: The History of Surety of the Peace", in Jenks, Rose and Whittick (eds), Laws, Lawyers and Texts (2012) 253 at 262-263.
[29]Ramsay v Aberfoyle Manufacturing Co (Australia) Pty Ltd (1935) 54 CLR 230 at 249.
[30]Earl of Ripon v Hobart (1834) 3 My & K 169 at 176 [40 ER 65 at 68].
[31]The Commonwealth v John Fairfax & Sons Ltd (1980) 147 CLR 39 at 49-50.
[32]Ramsay v Aberfoyle Manufacturing Co (Australia) Pty Ltd (1935) 54 CLR 230 at 243. See also at 249-250, 255-256.
With further antecedents in preventive order regimes consequent upon the curial sentencing process[33], from the late 1990s the United Kingdom Parliament legislated for civil preventive orders in a wide variety of different contexts including sexual harm, molestation, anti-social behaviour, and disruptive and unlawful behaviour at football matches[34]. As Lord Steyn explained in relation to anti-social behaviour orders, "[t]here is no doubt that Parliament intended to adopt the model of a civil remedy of an injunction, backed up by criminal penalties"[35].
[33]Prevention of Crime Act 1908 (UK), s 10.
[34]Ashworth and Zedner, Preventive Justice (2014) at 75.
[35]R (McCann) v Manchester Crown Court [2003] 1 AC 787 at 806 [18].
With similar early twentieth century antecedents[36], legislative regimes involving the making of preventive orders by courts have also been enacted in Australia in areas including domestic and personal violence[37], problem gambling that is ancillary to domestic violence[38], public safety and breaches of the peace[39], sexual and other dangerous offenders[40], groups associated with criminal activity[41], and terrorism[42]. In 2016, the New South Wales Parliament enacted the SCPO Act, relying heavily upon the model of the Serious Crime Act 2007 (UK).
[36]Habitual Criminals Act 1905 (NSW).
[37]Restraining Orders Act 1997 (WA), Pts 1B, 2; Family Violence Act 2004 (Tas); Crimes (Domestic and Personal Violence) Act 2007 (NSW); Domestic and Family Violence Act 2007 (NT); Family Violence Protection Act 2008 (Vic); Intervention Orders (Prevention of Abuse) Act2009 (SA); Domestic and Family Violence Protection Act 2012 (Qld); Family Violence Act 2016 (ACT).
[38]Intervention Orders (Prevention of Abuse) Act 2009 (SA).
[39]Peace and Good Behaviour Act 1982 (Qld); Restraining Orders Act 1997 (WA), Pt 3.
[40]Criminal Procedure Act 1921 (SA), Pt 4, Div 7; Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld); Child Protection (Offenders Prohibition Orders) Act 2004 (NSW); Crimes (High Risk Offenders) Act 2006 (NSW); Dangerous Sexual Offenders Act 2006 (WA); Serious Sex Offenders Act 2013 (NT); Serious Offenders Act 2018 (Vic).
[41]Serious and Organised Crime (Control) Act 2008 (SA); Serious Crime Control Act 2009 (NT); Crimes (Criminal Organisations Control) Act 2012 (NSW); Criminal Organisations Control Act 2012 (WA); Criminal Organisations Control Act 2012 (Vic).
[42]Criminal Code (Cth), Div 104; Terrorism (Police Powers) Act 2002 (NSW); Terrorism (Community Protection) Act 2003 (Vic); Terrorism (Preventative Detention) Act 2005 (Tas); Terrorism (Extraordinary Temporary Powers) Act 2006 (ACT); Terrorism (High Risk Offenders) Act 2017 (NSW).
The operation of the SCPO Act
The SCPO Act creates a regime for the making of serious crime prevention orders by the Supreme Court or the District Court of New South Wales[43]. A serious crime prevention order must not exceed a duration of five years[44]. This special case is concerned only with natural persons, as to whom a breach of the order has a maximum penalty of $33,000 and imprisonment for five years[45].
[43]SCPO Act, s 3(1), definition of "appropriate court".
[44]SCPO Act, s 7(2).
[45]SCPO Act, s 8(b) and Crimes (Sentencing Procedure) Act 1999 (NSW), s 17.
Proceedings for serious crime prevention orders are not criminal proceedings[46]. Other than in relation to an offence against the SCPO Act, the civil burden of proof and rules of evidence apply and any rules of interpretation or evidence that are unique to criminal law do not apply[47]. At the hearing of the application, a person against whom a serious crime prevention order is sought can appear and make submissions[48]. The applicant and the person against whom the order is sought have a right of appeal on any question of law and, with leave, on a question of fact[49]. The applicant and the person against whom the order is sought can also apply to the same court to vary or revoke the order if there has been a substantial change in the relevant circumstances[50].
[46]SCPO Act, s 13(1).
[47]SCPO Act, s 13(2).
[48]SCPO Act, s 5(4).
[49]SCPO Act, ss 11(1), 11(2).
[50]SCPO Act, s 12.
The terms of ss 5 and 6 of the SCPO Act
Section 5(1) of the SCPO Act provides:
"An appropriate court may, on the application of an eligible applicant, make an order (a serious crime prevention order) against a specified person if:
(a)in the case of a natural person – the person is 18 years old or older, and
(b)the court is satisfied that:
(i)the person has been convicted of a serious criminal offence, or
(ii)the person has been involved in serious crime related activity for which the person has not been convicted of a serious criminal offence (including by reason of being acquitted of, or not being charged with, such an offence), and
(c)the court is satisfied that there are reasonable grounds to believe that the making of the order would protect the public by preventing, restricting or disrupting involvement by the person in serious crime related activities."
Section 6(1) of the SCPO Act provides:
"A serious crime prevention order may contain such prohibitions, restrictions, requirements and other provisions as the court considers appropriate for the purpose of protecting the public by preventing, restricting or disrupting involvement by the person in serious crime related activities."
Serious crime related activity is, in short, anything done by a person, whether or not the person was charged or convicted, that is, or was at the time, a serious criminal offence[51]. What is a serious criminal offence is defined in wide terms[52]. It includes: drug trafficking offences; offences involving imprisonment for five years or more involving a wide variety of offences such as theft, fraud, money laundering, extortion, violence, blackmail, perverting the course of justice, tax or revenue evasion, illegal gambling, forgery, or homicide; and offences involving the destruction of or damage to property having a value of more than $500. It also extends to offences outside New South Wales, or outside Australia, if the offence there would have been a serious criminal offence if committed within New South Wales.
[51]SCPO Act, s 3(1), definition of "serious crime related activity".
[52]SCPO Act, s 3(1), definition of "serious criminal offence" and Criminal Assets Recovery Act 1990 (NSW), s 6(2).
The phrase "involved in serious crime related activity" is defined in s 4(1) of the SCPO Act essentially to require the person to engage in serious crime related activity or to engage in conduct that facilitates, or is likely to facilitate, serious crime related activity. Like the United Kingdom legislation upon which it was modelled[53], s 4(1) of the SCPO Act draws from the ordinary meaning of "facilitates", which is "to make easier".
[53]Serious Crime Act 2007 (UK), s 2(3); United Kingdom, Serious Crime Act 2007, Explanatory Notes at [16].
However, the ordinary meaning of "facilitates" is restricted by s 4(2) of the SCPO Act, which provides that when determining whether the conduct of a person has facilitated another to engage in serious crime related activity a court may take into account whether the conduct was reasonable in all the circumstances. The concept of facilitating serious crime related activity in s 4(1) is thus narrower than merely conduct that makes the commission of a crime easier. Conduct will be very likely to be reasonable, and not facilitating conduct, if it was done without the intention of assisting the commission of serious crime related activity and without recklessness or reasonable means of knowing that the conduct would assist the commission of serious crime related activity.
The balancing process required by ss 5 and 6 of the SCPO Act
Sections 5 and 6 of the SCPO Act, when read together, create a power for the court to make a serious crime prevention order. There are six required steps before the court can exercise the power in relation to natural persons.
The first step, in s 5(1)(a), requires the natural person to be at least 18 years old.
The second step, in s 5(1)(b), requires proof that the person against whom the order is sought has been convicted of or been involved in serious criminal offending. This step is backward looking, focusing upon the person's past conviction for a serious criminal offence or past involvement in "serious crime related activity", the definition of which can be described broadly as the commission of a serious criminal offence[54].
[54]SCPO Act, s 3(1), definition of "serious crime related activity".
The proof of past conviction for a serious criminal offence might require only the tender of a criminal record certificate[55]. Either the District Court or the Supreme Court can make a serious crime prevention order based upon such past conviction for a serious criminal offence[56]. In contrast, an order based upon the proof of past involvement in the commission of a serious criminal offence can only be made in the Supreme Court[57]. A hearing for an order based on such past involvement might give rise to disputed questions of fact. In resolving those disputes the Supreme Court can admit and consider hearsay evidence if "(a) the court is satisfied that the evidence is from a reliable source and is otherwise relevant and of probative value, and (b) the person against whom the order is sought to be made has been notified of, and served with a copy of, the evidence before its admission"[58]. However, and conformably with the requirement in s 13(2) that only "civil" rules of evidence apply, the Supreme Court will also take into account the usual principle, in deciding whether a fact has been proved, that without more, the more serious the alleged involvement in unlawful conduct, and the greater the magnitude of the alleged illegality, the more unlikely it will be that a person has acted or will act in the way alleged[59].
[55]Evidence Act 1995 (NSW), s 178.
[56]SCPO Act, s 5(1) read with s 3(1), definition of "appropriate court".
[57]SCPO Act, s 3(1), definition of "appropriate court", para (b).
[58]SCPO Act, s 5(5).
[59]Briginshaw v Briginshaw (1938) 60 CLR 336 at 343-344, 350, 361-362.
The third step, in s 5(1)(c), requires the court to assess whether there is a real likelihood, in other words a real or significant risk, that the person against whom the order is sought will be involved in serious crime related activity. This step might also involve disputed facts. It is a forward-looking requirement.
The requirement in s 5(1)(c) as to the matters that the court must be satisfied that there are "reasonable grounds to believe" is essentially a requirement of "the existence of facts which are sufficient to induce that state of mind in a reasonable person"[60]. The court must have reasonable grounds to believe that the making of the order "would" prevent, restrict or disrupt involvement by the person in serious crime related activities and thus "protect the public" from these public wrongs. The conditional verb, "would", is the language of probability or likelihood[61] in assessing the effect of the order. Without a real likelihood that the person against whom the order is sought will be involved in serious crime related activities, there is no basis for the order because there could not be any likelihood that the order would prevent, restrict or disrupt such involvement in serious crime related activities. The Court of Appeal of England and Wales has thus correctly, and repeatedly, concluded that the making of a serious crime prevention order under the Serious Crime Act regime, upon which ss 5 and 6 of the SCPO Act were based, requires a real or significant risk that the person will be involved in serious offences[62].
[60]George v Rockett (1990) 170 CLR 104 at 112. See also R v Tillett; Ex parte Newton (1969) 14 FLR 101 at 106.
[61]Taylor v New South Wales (1999) 46 NSWLR 322 at 338 [64].
[62]R v Hancox [2010] 1 WLR 1434 at 1437 [9]; [2010] 4 All ER 537 at 540. See also R v Barnes [2012] EWCA Crim 2549 at [9]; R v Hall [2015] 1 Cr App R (S) 16 at 131 [16]; R v McGrath [2017] EWCA Crim 1945 at [10]; R v Strong [2017] EWCA Crim 999 at [11].
The need for the court to conclude that there is a real or significant risk that the person will commit serious offences is thus supported by the text of s 5(1)(c) of the SCPO Act and the preceding judicial interpretation of the United Kingdom legislation upon which ss 5 and 6 were based.
The third step provides a simple answer to the submission by the plaintiffs that a preventive order could be made against a person who had an historical conviction for an offence of stealing clothing from a department store. Without more, a single historical conviction for such a theft would not be sufficient to give rise to a real or significant risk that the person would commit the same offence, or any other serious offence, in the future. In any event, the fourth and fifth steps below are clear reasons to reject the plaintiffs' submission that a preventive order could be made against such a person in terms that require the person to reside at, and not to leave, their home or not to enter department stores.
The fourth step is also required by s 5(1)(c). It may again involve disputed questions of fact. The court must consider whether the facts establish reasonable grounds to believe that the potential order would have the effect of preventing, restricting, or disrupting the person's involvement in serious crime related activities. This step requires the court to survey the range of possible orders and to consider whether there is a real likelihood that the order will prevent, restrict, or disrupt the person's likely involvement in the serious crime related activities. The verbs – prevent, restrict, or disrupt – are not defined and bear their ordinary meaning including a result that is short of entire prevention but which limits the extent of the person's likely involvement in the serious crime related activities.
An example where the fourth step was not satisfied is one of the orders sought in Commissioner of Police v Cole[63], which was to restrict the defendants' internet access to the use of a single nominated computer with additional requirements including providing information to a nominated police officer concerning each defendant's internet service provider, username, and passwords. That order was not made, with Davies J observing that there was "no evidence to suggest that computers have been or are likely to be used in any manner that contributes to serious crime related activities"[64].
[63][2018] NSWSC 517 at [52].
[64][2018] NSWSC 517 at [57]. See also Commissioner of Police v Bowtell [No 2] [2018] NSWSC 520 at [100], [102].
The fifth step, from s 6(1) of the SCPO Act, further constrains the orders that can be made. The "prohibitions, restrictions, requirements and other provisions" ordered are required to be such "as the court considers appropriate for the purpose of protecting the public by preventing, restricting or disrupting involvement by the person in serious crime related activities". Although s 6(1) provides that the court "may" impose the restrictions that it considers appropriate, this is an enabling word with "compulsory force" when what is sought is "in advancement of public justice"[65].
[65]Julius v Lord Bishop of Oxford (1880) 5 App Cas 214 at 225. See also Victorian Building Authority v Andriotis (2019) 93 ALJR 869 at 887 [108] and the authorities cited there.
The constraint that the court must consider the order to be appropriate for its purpose is a familiar one. "Appropriate", in the sense of "suitable or fitting for a particular purpose"[66], embodies the requirements that the order be reasonable and adapted to its purpose. It is particularly a common constraint expressed upon orders, such as civil preventive orders[67], that require an assessment of future possibilities. In Mitchell v The Queen[68], in the context of a provision that empowered a court to impose a sentence of "strict security life imprisonment" without, if the court considered it appropriate, a non-parole period, this Court said that "[t]he phrase 'considers ... appropriate' indicates the striking of a balance between relevant considerations so as to provide the outcome which is fit and proper". And speaking of the power to make "such order or orders as [the court] thinks appropriate" in s 87 of the Trade Practices Act 1974 (Cth), Mason P said that it allowed "the defendant's as well as the plaintiff's interests to be taken into account in moulding a just response"[69].
[66]Macquarie Dictionary, 7th ed (2017), vol 1 at 68, "appropriate", definition 1. See also Oxford English Dictionary, 2nd ed (1989), vol 1 at 586, "appropriate", definition 5.
[67]Criminal Procedure Act 1921 (SA), s 99AA(1)(c); Peace and Good Behaviour Act 1982 (Qld), s 27(1)(b); Restraining Orders Act 1997 (WA), s 34(b); Crimes (High Risk Offenders) Act 2006 (NSW), s 11(1); Serious and Organised Crime (Control) Act 2008 (SA), s 22(2); Intervention Orders (Prevention of Abuse) Act2009 (SA), ss 6(b), 24 read with Problem Gambling Family Protection Orders Act 2004 (SA), s 4(1)(b); Serious Crime Control Act 2009 (NT), s 25(1)(b); Criminal Organisations Control Act 2012 (Vic), ss 45(1), 47(1); Criminal Organisations Control Act 2012 (WA), s 57(1)(b).
[68](1996) 184 CLR 333 at 346.
[69]Akron Securities Ltd v Iliffe (1997) 41 NSWLR 353 at 368.
The balancing process operates as follows. On the one hand, the court will consider the likelihood that an order will prevent, restrict, or disrupt serious criminal activities, and the magnitude of the activity that will be so affected. On the other hand, the court will consider the extent to which an order will intrude upon the defendant's liberty, including the scope of the order and the length of its term. In balancing these matters, if there is a less intrusive order that will achieve broadly the same effect as a significantly more intrusive order then the latter will not be appropriate. For instance, in Commissioner of Police v Bowtell [No 2][70] a condition that prohibited the defendants from attending any licensed hotels, pubs, clubs, and bars was not appropriate as it would add little, if anything, to the disruptive effect of other conditions which prohibited the defendants associating with, or contacting, members of any Outlaw Motorcycle Gang.
[70][2018] NSWSC 520 at [98]-[99].
As earlier explained, ss 5 and 6 of the SCPO Act are modelled on the United Kingdom legislation. The drafter may be taken to have been aware of the interpretation placed by the English courts on the requirement that an order be "appropriate"[71]. Indeed, at the date of its enactment it is evident that members of the New South Wales Parliament were aware of the leading decision of the Court of Appeal of England and Wales in R v Hancox[72]. In that case, the Court of Appeal held that the requirement that the court consider the serious crime prevention order to be "appropriate" involved the same approach as that which applies to anti-social behaviour orders and travel restriction orders under the Criminal Justice and Police Act 2001 (UK): "[s]uch orders can be made only for the purpose for which the power was given by statute. And they must be proportionate." This conclusion was said also to follow from the European Convention for the Protection of Human Rights and Fundamental Freedoms[73]. But the principal reason for the conclusion, independently of any Convention concerns, involved the adoption of the Court of Appeal's earlier reasoning from R v Mee[74] in relation to which travel restriction orders would be appropriate under the Criminal Justice and Police Act[75]. In that case, the Court said of the length of such an order[76]:
"The length should be that which is required to protect the public in the light of the assessment of the degree of risk which is presented by the facts. But, as we have said, it should be tailored to the defendant to such a degree as the court feels able when balanced against the risk."
[71]Re Carl Zeiss Pty Ltd's Application (1969) 122 CLR 1 at 6.
[72][2010] 1 WLR 1434; [2010] 4 All ER 537. See New South Wales, Legislative Assembly, Parliamentary Debates (Hansard), 3 May 2016 at 42, 60; New South Wales, Legislative Council, Parliamentary Debates (Hansard), 4 May 2016 at 70-71, 82-83, 84.
[73]R v Hancox [2010] 1 WLR 1434 at 1437 [10]; [2010] 4 All ER 537 at 540.
[74][2004] 2 Cr App R (S) 81.
[75]R v Hancox [2010] 1 WLR 1434 at 1437 [10]; [2010] 4 All ER 537 at 540.
[76]R v Mee [2004] 2 Cr App R (S) 81 at 438-439 [14].
During oral argument there was dispute about whether an order could ever be appropriate within the terms of ss 5 and 6 of the SCPO Act if the order permitted "detention" of a person. It might be doubted whether the regime contemplates either custodial detention or non-custodial "home detention" rather than, for example, a curfew. But if, as a matter of construction of the sections, an order for custodial detention or "home detention" were possible, and if that construction would make s 5 invalid, then the court could construe s 5 so that it extended only to those orders for which the section might "lawfully be applied"[77]. Since no such order is sought against any of the plaintiffs, it is unnecessary to decide this issue[78].
[77]Interpretation Act 1987 (NSW), s 31(2). See also Newcastle and Hunter River Steamship Co Ltd v Attorney-General for the Commonwealth (1921) 29 CLR 357 at 370.
[78]Knight v Victoria (2017) 261 CLR 306 at 324-325 [33].
The sixth step is that the court should consider whether any appropriate order should be made. Despite the risk of the person offending, and even with the prohibitions, restrictions and requirements as are appropriate, s 5(1) empowers, but does not require, the court to make the order. The fulfilment of the statutory conditions described in the five steps above confers a discretion upon the court to make the appropriate order[79]. To adapt an example given in oral submissions by the Solicitor-General of the Commonwealth, the court's discretion might be exercised not to make an order preventing spouses who share a family home with children from having any contact with each other even if the court were to consider the order to be appropriate for the purpose of protecting the public by disrupting a criminal enterprise between the spouses.
[79]See Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at 544, 551.
No impairment of a court's institutional integrity by other civil preventive order regimes
The plaintiffs submitted that s 5(1) of the SCPO Act is inconsistent with Ch III of the Constitution. They relied upon the principle deriving from the decision of this Court in Kable[80]. The reasons of the Justices in the majority in that case have been synthesised as follows[81]:
"The principle for which Kable stands is that because the Constitution establishes an integrated court system, and contemplates the exercise of federal jurisdiction by State Supreme Courts, State legislation which purports to confer upon such a court a power or function which substantially impairs the court's institutional integrity, and which is therefore incompatible with that court's role as a repository of federal jurisdiction, is constitutionally invalid." (footnotes omitted)
[80](1996) 189 CLR 51.
[81]Attorney-General (NT) v Emmerson (2014) 253 CLR 393 at 424 [40]. See also Kuczborski v Queensland (2014) 254 CLR 51 at 98 [139].
Although it is only extreme legislation that will substantially impair the institutional integrity of a State court, the boundaries of the Kable principle are not sharp. The contours of the categories where State legislation will substantially impair a court's institutional integrity will necessarily emerge slowly. But the categories must develop in a principled, coherent, and systematic way rather than as evaluations of specific instances.
Before turning to the particular grounds upon which the plaintiffs submitted that the SCPO Act substantially impairs the institutional integrity of the District Court and the Supreme Court, it is necessary to explain the striking similarities that the SCPO Act has with other preventive order regimes that this Court has previously held not to infringe the Kable principle. Each regime involves criteria that are necessarily imprecise, since the future is not certain, particularly in relation to the assessment of risk (the third step) and the balancing process (the fifth step). As to the question of risk, some legislation requires a court to be satisfied that there is "an unacceptable risk"[82] or "reasonable cause to believe" in the risk[83]. Other legislation uses criteria that the person threatened has "reasonable grounds to fear"[84] the conduct, or that it is "reasonable to suspect"[85] that the conduct will occur, or "likely" that the conduct will occur[86], or that the person against whom the order is sought has engaged in conduct and is "likely to do so again"[87], or "may again"[88] do so. As to the balancing process in the range of conditions in an order, apart from the common use of "appropriate", other legislation uses a criterion of "necessity"[89], "necessary or desirable"[90], "not inappropriate"[91], or "sufficient grounds"[92].
[82]Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld), ss 13(1), 13(2); Crimes (High Risk Offenders) Act 2006 (NSW), ss 5B(d), 5C(d); Dangerous Sexual Offenders Act 2006 (WA), s 7(1); Serious Sex Offenders Act 2013 (NT), ss 6(1), 31(1); Terrorism (High Risk Offenders) Act 2017 (NSW), ss 34(1)(d), 34(2)(b); Serious Offenders Act 2018 (Vic), ss 14, 62(2).
[83]Child Protection (Offenders Prohibition Orders) Act 2004 (NSW), s 5(1)(a).
[84]Domestic and Family Violence Act 2007 (NT), s 18. See also Restraining Orders Act 1997 (WA), s 10D(1); Crimes (Domestic and Personal Violence) Act 2007 (NSW), ss 16(1), 19(1); Family Violence Act 2016 (ACT), s 34(1)(a).
[85]Intervention Orders (Prevention of Abuse) Act 2009 (SA), s 6(a). See also Terrorism (Police Powers) Act 2002 (NSW), s 26D; Terrorism (Community Protection) Act 2003 (Vic), s 13E(1); Terrorism (Preventative Detention) Act 2005 (Tas), s 7(1); Terrorism (Extraordinary Temporary Powers) Act 2006 (ACT), s 18(4).
[86]Restraining Orders Act 1997 (WA), s 34(a).
[87]Family Violence Protection Act 2008 (Vic), s 74(1). See also Restraining Orders Act 1997 (WA), s 10D(1).
[88]Family Violence Act 2004 (Tas), s 16(1).
[89]Crimes (Domestic and Personal Violence) Act 2007 (NSW), ss 17(3), 20(3), 35(1).
[90]Family Violence Act 2004 (Tas), s 16(2); Domestic and Family Violence Act 2007 (NT), ss 21(1)(a), 21(1)(b); Family Violence Protection Act 2008 (Vic), s 81(1); Domestic and Family Violence Protection Act 2012 (Qld), ss 37(1)(c), 37(2), 47(2), 48(2), 49(3), 57(1).
[91]Restraining Orders Act 1997 (WA), s 10D(2).
[92]Crimes (Criminal Organisations Control) Act 2009 (NSW), s 19(1)(b).
(1) Preventive orders concerning terrorism
Division 104 of the Criminal Code (Cth), as considered in Thomas v Mowbray[93], establishes a preventive order regime "for the purpose of protecting the public from a terrorist act"[94]. Section 104.4 gives an issuing court – the Federal Court of Australia, the Family Court of Australia, or the then Federal Magistrates Court[95] – the power to issue an interim control order which, when confirmed by the issuing court, can last up to 12 months[96]. Various conditions are required. Two central conditions concern the risk assessment (the third step) and the balancing process (the fifth step).
[93](2007) 233 CLR 307.
[94]Criminal Code (Cth), s 104.1.
[95]Criminal Code (Cth), s 100.1(1), definition of "issuing court".
[96]Criminal Code (Cth), s 104.16(1)(d).
The risk condition, in s 104.4, is satisfied either by past commission of a criminal offence relating to training with or from a listed terrorist organisation[97], or by likely future involvement in a terrorist act. It requires the court to be satisfied on the balance of probabilities either "(i) that making the order would substantially assist in preventing a terrorist act; or (ii) that the person has provided training to, or received training from, a listed terrorist organisation"[98]. These criteria give considerable latitude to the court. The notion of "substantial assistance" is inherently imprecise. Further, a "terrorist act" is defined in s 100.1 in terms "which may give an area of choice and discretion"[99] and in broadly expressed criteria including action that "creates a serious risk to the health or safety of the public or a section of the public" and action that "seriously interferes with, seriously disrupts, or destroys, an electronic system"[100].
[97]Criminal Code (Cth), s 101.2.
[98]Criminal Code (Cth), s 104.4(1)(c).
[99]Thomas v Mowbray (2007) 233 CLR 307 at 352 [98].
[100]Criminal Code (Cth), s 100.1(2)(e)-(f) read with s 100.1(1), definition of "terrorist act".
The balancing condition in s 104.4 requires the court to be satisfied on the balance of probabilities that "each of the obligations, prohibitions and restrictions to be imposed on the person by the order is reasonably necessary, and reasonably appropriate and adapted, for the purpose of protecting the public from a terrorist act"[101]. In conducting that balancing exercise the court is required to take into account the impact of the order upon the circumstances of the person subject to it (including their financial and personal circumstances)[102]. The control order that was considered by the issuing Magistrate to meet the balancing criteria subjected Mr Thomas to significant constraints including the following: to remain at his home (or an address notified to the Australian Federal Police) between midnight and 5 am; to report to police three times a week; not to leave Australia without police permission; not to associate with various individuals; and not to use a variety of communications technology either at all, or without approval[103].
[101]Criminal Code (Cth), s 104.4(1)(d).
[102]Criminal Code (Cth), s 104.4(2).
[103]Thomas v Mowbray (2007) 233 CLR 307 at 493-495 [554].
A majority of this Court upheld the validity of this terrorism preventive order regime. Mr Thomas submitted that one basis on which the terrorism preventive order regime was invalid was that it was incompatible with the judicial integrity required by Ch III of the Constitution[104]: it involved the conferral of non-judicial power, or in so far as it did confer judicial power, it authorised the exercise of that power in a manner contrary to Ch III. These submissions were rejected by a majority of this Court in reasoning that applies a fortiori to State legislation[105].
[104]Thomas v Mowbray (2007) 233 CLR 307 at 342 [63].
[105]Thomas v Mowbray (2007) 233 CLR 307 at 343-355 [65]-[110]. See also Fardon v Attorney-General (Qld) (2004) 223 CLR 575 at 655-656 [219].
The reasoning of Gummow and Crennan JJ, in the following respects, was the subject of agreement by Callinan J and Heydon J[106]. Gleeson CJ also wrote to similar effect[107]. Their Honours observed that[108]: (i) the regime involved a judicial procedure[109]; (ii) the orders which could be made were "a familiar part of judicial power to make orders restraining the liberty of the subject"; and (iii) the evaluation of broadly expressed criteria, including "oppressive", "unreasonable", "unjust", or "just and equitable", had long been recognised as consistent with judicial power[110].
[106]Thomas v Mowbray (2007) 233 CLR 307 at 509 [600], 526 [651].
[107]Thomas v Mowbray (2007) 233 CLR 307 at 330-335 [19]-[30].
[108]Thomas v Mowbray (2007) 233 CLR 307 at 344-348 [71]-[79], 351-352 [94]-[97].
[109]See also Thomas v Mowbray (2007) 233 CLR 307 at 508 [599]. See R v Spicer; Ex parte Australian Builders' Labourers' Federation (1957) 100 CLR 277 at 305. See also R v Hegarty; Ex parte City of Salisbury (1981) 147 CLR 617 at 628.
[110]See Insurance Commissioner v Associated Dominions Assurance Society Pty Ltd (1953) 89 CLR 78 at 90; R v Commonwealth Industrial Court; Ex parte The Amalgamated Engineering Union, Australian Section (1960) 103 CLR 368 at 373; Cominos v Cominos (1972) 127 CLR 588 at 593, 599-600, 603-604, 608.
The various judgments in the majority in Thomas v Mowbray also recognised[111] that balancing exercises in many areas of the law involve broadly expressed criteria which constrain the liberty of the subject in circumstances other than in consequence of the commission of a criminal act. Whether those exercises concern bail applications, binding a person over to keep the peace, applications for apprehended violence orders, preventive orders for the continued detention of sex offenders, or even injunctions to constrain the likely commission of an offence, the judicial process and method of applying that balancing exercise is one that develops and refines rules and principles whose clarity increases over time.
[111]Thomas v Mowbray (2007) 233 CLR 307 at 328 [15], 347-348 [79], 507 [595].
Like the SCPO Act, the terrorism preventive order regime permits orders to be made against a person who has not committed a crime and is not expected to commit any crime. Nor does s 104.4(1)(c)(i) of the Criminal Code require that any particular act be committed by the person before an order is contemplated. It is enough that the making of the order would "substantially assist" in preventing a terrorist act[112]. In Thomas v Mowbray itself, the orders were based upon allegations that Mr Thomas, whose convictions had been quashed[113], had admitted training with a listed terrorist organisation, had links to extremists who might exploit his vulnerabilities, and was an available resource for the commission of, or assistance to commit, terrorist acts[114].
[112]Criminal Code (Cth), s 104.4(1)(c)(i).
[113]Thomas v Mowbray (2007) 233 CLR 307 at 488 [537].
[114]Thomas v Mowbray (2007) 233 CLR 307 at 322-323 [1].
(2) Preventive orders concerning sexual offenders
In Fardon[115], this Court considered whether the terms of Queensland legislation that provides for preventive orders for sexual offenders were incompatible with the institutional integrity of the Supreme Court of Queensland. The Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) ("DPSO Act") empowers the Supreme Court of Queensland to make an order against a person serving a period of imprisonment for a sexual offence of a violent nature or against children. The Court can order that the person be detained in custody for an indefinite term for control, care or treatment or that the person be released from custody subject to conditions[116].
[115](2004) 223 CLR 575.
[116]DPSO Act, s 13(5).
The regime contains risk and balancing criteria. The risk criterion is if the person is "a serious danger to the community", defined as involving an unacceptable risk that the prisoner would commit a serious sexual offence if released from custody or released from custody without a supervision order[117]. The Court might decide that it is "satisfied" only if satisfied to a high degree of probability by acceptable, cogent evidence of sufficient weight to justify the decision[118]. The balancing criterion applies in relation to the Court's choice of three orders (detention in custody, conditional release, or no order) and, in relation to conditional release, the conditions that it "considers appropriate"[119].
[117]DPSO Act, s 13(2).
[118]DPSO Act, s 13(3).
[119]DPSO Act, s 13(5)(b).
The Kable challenge to the validity of the sexual offender preventive order regime in Fardon focused upon a variety of aspects of the legislation including civil detention in prison on the basis of a risk of re-offending in the future in the absence of a crime, a trial, and a conviction, what was alleged to be punishment in a manner inconsistent with the essential character of a court and the nature of judicial power, that the prediction of re-offending was unreliable, and that an "unacceptable" risk was an unclear phrase[120]. However, as the Solicitor-General of the State of Queensland observed, the same phrase had been used in the Bail Act 1980 (Qld) and in the context of denying a parent access to a child[121].
[120]Fardon v Attorney-General (Qld) (2004) 223 CLR 575 at 577.
[121]Fardon v Attorney-General (Qld) (2004) 223 CLR 575 at 579. See also at 593 [22].
Six members of this Court dismissed the challenge to the validity of the sexual offender preventive order regime. As Gleeson CJ observed, whilst the legislation conferred "a substantial discretion as to whether an order should be made, and if so, the type of order", the "Queensland Parliament was attempting to ensure that the powers would be exercised independently, impartially, and judicially"[122]. Similarly, McHugh J saw the three discretionary choices as to the order that the Supreme Court might make as a strength, tending to validity, rather than a weakness of the regime[123]. Callinan and Heydon JJ observed that the "process of reaching a predictive conclusion about risk is not a novel one"[124]. The same reasoning must apply to the risk concept in the third step of the analysis under the SCPO Act, which effectively amounts to a requirement that there is a real and significant risk.
[122]Fardon v Attorney-General (Qld) (2004) 223 CLR 575 at 592 [19]-[20].
[123]Fardon v Attorney-General (Qld) (2004) 223 CLR 575 at 597 [34].
[124]Fardon v Attorney-General (Qld) (2004) 223 CLR 575 at 657 [225].
(3) Preventive orders concerning criminal organisations
The Crimes (Criminal Organisations Control) Act 2009 (NSW) ("the CCOC Act") empowered the Supreme Court to make interim and final control orders. There were two criteria. Neither required any unlawful conduct by the person subject to the order, either in the past or the future. The first was the risk criterion. The second criterion was the balancing criterion.
The risk criterion required only that the Supreme Court conclude that the person "is a member of a particular declared organisation", or "is or purports to be a former member of a particular declared organisation but has an on-going involvement with the organisation and its activities"[125]. The assessment of the risk presented by the declared organisation was an anterior issue left to the determination of an "eligible judge", in a persona designata capacity[126], as to whether "members of the organisation associate for the purpose of organising, planning, facilitating, supporting or engaging in serious criminal activity" and the "organisation represents a risk to public safety and order" in New South Wales[127]. The risk criterion of a "risk to public safety and order" was highly elastic. It was concerned only with the organisation with which the individual who was subject to the order might have ongoing involvement and not with any specific threat of harm from the individual. As for the balancing criterion, this required only that the Supreme Court conclude that "sufficient grounds exist for making the control order"[128]. There was no explanation or definition of the grounds that would be sufficient.
[125]CCOC Act, s 19(1).
[126]CCOC Act, s 5.
[127]CCOC Act, s 9(1).
[128]CCOC Act, s 19(1)(b).
In Wainohu v New South Wales[129], the plaintiff challenged the validity of this preventive order regime for criminal organisations on a number of grounds, including that it impermissibly undermined or impaired the institutional integrity of the Supreme Court. Six members of this Court rejected that submission. In a joint judgment, Gummow, Hayne, Crennan and Bell JJ held that although the risk criterion was required to be considered by an eligible judge, Commonwealth legislation would have been valid if the power had been conferred upon a Ch III court[130]. It followed that a State court could have exercised the same judicial power. As for the balancing criterion, despite the elasticity of "sufficient grounds", their Honours, with whom French CJ and Kiefel J agreed on this point[131], held that it was sufficient for validity that the limits to the curial power could 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"[132].
[129](2011) 243 CLR 181.
[130]Wainohu v New South Wales (2011) 243 CLR 181 at 225 [91].
[131]Wainohu v New South Wales (2011) 243 CLR 181 at 220 [72].
[132]Wainohu v New South Wales (2011) 243 CLR 181 at 230 [111].
It is notable that although the preventive order regime for criminal organisations in the CCOC Act contained generally broader and more elastic provisions than the preventive order regime for terrorist acts in the Criminal Code, the joint judgment of Gummow, Hayne, Crennan and Bell JJ in Wainohu v New South Wales[133] supported the validity of the scheme by reference to the judgments of Gleeson CJ, Gummow and Crennan JJ, and Callinan J in Thomas v Mowbray[134], discussed above. Despite the different formulations, the principles underlying the two preventive order regimes were relevantly alike and it would be incoherent to conclude that one preventive order regime did not undermine the institutional integrity of the court but that the other did.
[133](2011) 243 CLR 181 at 230 [111] fn 222.
[134](2007) 233 CLR 307 at 331-334 [20]-[28] per Gleeson CJ, 344-348 [71]-[82], 350-351 [88]-[92] per Gummow and Crennan JJ, 507-508 [596] per Callinan J.
Less than two years later, a challenge was brought against the Queensland preventive order legislation, namely the Criminal Organisation Act 2009 (Qld). One purpose of the legislation was to "disrupt" and "restrict" the activities of members and associates of organisations involved in serious criminal activity[135]. Section 18 of the Criminal Organisation Act authorised the Supreme Court of Queensland to make a control order against a person, which remained in force until revoked[136]. The risk conditions that enabled an order to be made included if the Court was "satisfied" that (i) the person had engaged in serious criminal activity, and (ii) the person "associates with any member of a criminal organisation for the purpose of engaging in, or conspiring to engage in, serious criminal activity"[137]. Serious criminal activity was defined in terms of similar breadth to the SCPO Act, including an indictable offence punishable by at least seven years' imprisonment[138]. And the criteria for a criminal organisation included that it was "an unacceptable risk to the safety, welfare or order of the community"[139]. As for the balancing criterion, s 19 of the Criminal Organisation Act provided, in broader terms than s 6 of the SCPO Act, that the Court could impose conditions that it considered "appropriate".
[135]Criminal Organisation Act 2009 (Qld), s 3(1).
[136]Criminal Organisation Act 2009 (Qld), s 20(3).
[137]Criminal Organisation Act 2009 (Qld), s 18(2).
[138]Criminal Organisation Act 2009 (Qld), ss 6(a), 7(1)(a).
[139]Criminal Organisation Act 2009 (Qld), s 10(1)(c).
In Condon v Pompano Pty Ltd[140] this Court considered, and unanimously rejected, a Kable challenge to this Queensland preventive order regime. The respondents submitted that the regime departed "to a significant degree from the methods and standards which have historically characterised the exercise of judicial power"[141]. The respondents further submitted that the question of whether an organisation presented "an unacceptable risk to the safety, welfare or order of the community" was not suitable for judicial determination and asserted that "the risk assessment which the Court is required to undertake is an executive, rather than judicial, function"[142]. Hayne, Crennan, Kiefel and Bell JJ rejected these submissions, concluding that the legislation was "not different in any relevant way from the tasks held to be validly assigned to courts" by the legislation in issue in Thomas v Mowbray and Fardon. Their Honours emphasised that "[c]ourts are often called on to make predictions about dangers to the public"[143].
[140](2013) 252 CLR 38.
[141]Condon v Pompano Pty Ltd (2013) 252 CLR 38 at 40.
[142]Condon v Pompano Pty Ltd (2013) 252 CLR 38 at 41.
[143]Condon v Pompano Pty Ltd (2013) 252 CLR 38 at 96 [143].
An underlying premise of the decisions of this Court upholding the criminal organisation preventive order regimes in New South Wales and Queensland was that fine distinctions could not be drawn to distinguish the terrorism and sexual offender preventive order regimes that were upheld in Thomas v Mowbray and Fardon from these criminal organisation preventive order regimes. The material features were the risk assessment and the balancing exercise. The validity turned upon the risk and balancing criteria, with a focus upon the conduct of an organisation in the criminal organisation context, as well as a focus on the conduct of an individual in the terrorism preventive order legislation and the sexual offender preventive order legislation upheld in Thomas v Mowbray and Fardon.
The validity of s 5(1) of the SCPO Act
Faced with the decisions discussed above, all of which dismissed Kable challenges to preventive order regimes from different perspectives, the plaintiffs framed their challenge as a scattergun approach occasionally involving submissions in direct opposition to each other. For instance, in written submissions in chief, in written submissions in reply, and in oral submissions, the plaintiffs submitted that the SCPO Act "enlisted" the court to do the bidding of the executive. On this view, as the majority of this Court held in South Australia v Totani, the legislation would be invalid because the court would be deprived of any real opportunity for evaluation[144]. In contrast, the plaintiffs also submitted that s 6 of the SCPO Act imposed an "evaluative criterion of the broadest kind". It suffices to divide the plaintiffs' submissions into three strands.
[144](2010) 242 CLR 1 at 52 [82], 67 [149], 88 [226], 92-93 [236], 160 [436], 173 [481].
The first strand of the plaintiffs' submissions was that the SCPO Act undermines the criminal justice system of State courts. The reasons given for this reduce to two. First, it was said that the SCPO Act undermines the finality of the criminal justice system. It was submitted that this occurs where an order is made imposing further restrictions on the liberty of a person who has previously been convicted and punished for a serious offence or where an order is made imposing restrictions on a person's liberty despite the person's acquittal of a serious offence, including after a trial by jury where guaranteed by s 80 of the Constitution. Secondly, it was said that the SCPO Act establishes a regime that would conflict with the criminal justice system. One example of this conflict was said to be the need for a defendant to elect whether to give evidence in the civil preventive order proceedings, with the risk of adverse inferences if evidence is not given and the risk of assisting a later prosecution if evidence is given. Another example was said to be the ability of prosecuting authorities to elect to use the "easier" route of the SCPO Act rather than a criminal prosecution where there are no reasonable prospects of conviction or a criminal prosecution is not in the public interest.
The error in these submissions is that they seek to equate the civil preventive order regime with the regime for prosecution and punishment for past criminal offences. It is not to the point to ask whether the traditional use of the label "punishment"[145] might be extended to describe orders other than for past offences and where the purpose of the order does not include two of the traditional purposes of punishment: retribution and rehabilitation[146]. Nor is it to the point whether a civil preventive order regime might be brought within an extended conception of a "criminal justice system". The relevant point is that the regime is separate and distinct from traditional criminal justice and its outcomes can therefore be different without inconsistency. Prosecutions for criminal offences involve trials for offences based upon past conduct. The civil preventive order regime for serious crime is not a trial of any offence. It anticipates future risk, albeit with the past commission of an offence as "a step in the decision" about future risk[147]. The regimes thus involve different responses to a different subject matter; no conflict and no double jeopardy is involved[148]. Issues of forensic prejudice to a defendant facing future criminal proceedings can be addressed where necessary by an adjournment or temporary stay of the civil proceedings until the conclusion of the criminal proceedings[149]. These are familiar considerations for courts.
[145]See Fardon v Attorney-General (Qld) (2004) 223 CLR 575 at 596 [34], 610 [74], 655 [219].
[146]See The Commonwealth v Director, Fair Work Building Industry Inspectorate (2015) 258 CLR 482 at 506 [55], quoting Trade Practices Commission v CSR Ltd (1991) ATPR ¶41-076 at 52,152.
[147]Australian Communications and Media Authority v Today FM (Sydney) Pty Ltd (2015) 255 CLR 352 at 371 [33]. See also Duncan v New South Wales (2015) 255 CLR 388 at 407-408 [41].
[148]Compare Gray v Motor Accident Commission (1998) 196 CLR 1 at 14 [42]-[43].
[149]See Commissioner of Australian Federal Police v Zhao (2015) 255 CLR 46 at 58-59 [35]-[37].
The second strand of the plaintiffs' submissions was that the SCPO Act "enlists" the courts to administer a different, and lesser, form of criminal justice. After pointing to the variety of differences between the system of criminal justice concerned with prosecution of persons for past offences and the preventive order regime established by the SCPO Act, the plaintiffs submitted that the effect of the SCPO Act is that the Act empowers applicants for preventive orders – the Commissioner of Police, the Director of Public Prosecutions, and the New South Wales Crime Commission – with a discretion as to which grade of criminal justice would apply to a person. This strand of submissions again incorrectly assumes an identity between the function and purpose of civil preventive orders and the function and purpose of punishment for past offences. The lack of this identity makes the various differences in the regimes readily explicable. Nor is there any enlistment of the court by the executive. The orders are made by the court with substantial judicial discretion as to whether any order should be made as well as the content of the order. In South Australia v Totani[150], Hayne J identified the vice of the legislation there under challenge. His Honour said:
"It is the Executive which chooses whether to apply for an order, and the Executive which chooses the members of a declared organisation that are to be made subject to a control order. So long as the person named as a defendant falls within the definition of 'member', the Court cannot refuse the Executive's application; the Court must make a control order ... [T]he Court is acting at the behest of the Executive."
The SCPO Act is not affected by this vice.
[150](2010) 242 CLR 1 at 89-90 [229].
The third strand of the plaintiffs' submissions relied upon the remarks of Gaudron J in Kable that the legislature had attempted to "dress up" the proceedings as "proceedings involving the judicial process. In so doing, the Act makes a mockery of that process and, inevitably, weakens public confidence in it."[151] Contrary to the plaintiffs' written and oral submissions, the reference by Gaudron J to "public confidence" was not suggesting a licence for the Court to declare legislation invalid based upon its perception of the reaction of the public to the application of that legislation. Rather, public confidence represents "the trust reposed constitutionally in the courts"[152]. That construct of trust depends upon integrity. As Brennan CJ said in Nicholas v The Queen[153]:
"Integrity is the fidelity to legal duty, not a refusal to accept as binding a law which the court takes to be contrary to its opinion as to the proper balance to be struck between competing interests. To hold that a court's opinion as to the effect of a law on the public perception of the court is a criterion of the constitutional validity of the law, would be to assert an uncontrolled and uncontrollable power of judicial veto over the exercise of legislative power. It would elevate the court's opinion about its own repute to the level of a constitutional imperative. It is the faithful adherence of the courts to the laws enacted by the Parliament, however undesirable the courts may think them to be, which is the guarantee of public confidence in the integrity of the judicial process and the protection of the courts' repute as the administrator of criminal justice."
[151]Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51 at 108.
[152]Moti v The Queen (2011) 245 CLR 456 at 478 [57].
[153](1998) 193 CLR 173 at 197 [37].
In written submissions, the features of the SCPO Act that the plaintiffs submitted are a departure from established judicial methods and procedures included: (i) the civil standard of proof and rules of evidence; (ii) the admission of hearsay evidence where the evidence is from a "reliable source"; and (iii) the hearing being before a judge alone, without a jury. However, all of these matters are, or are consistent with, long-established judicial methods and procedures albeit usually in civil rather than criminal trials.
In oral submissions, the plaintiffs relied upon remarks of McHugh J in Kable, in what senior counsel for the plaintiffs accepted to be the "core summary" of the plaintiffs' case, that the SCPO Act is "'not directed to any determination or order which resolves an actual or potential controversy as to existing rights or obligations' which is the benchmark of an exercise of judicial power"[154]. The plaintiffs focused upon the open-textured nature of the criteria by which the court is to evaluate whether to make an order and the terms of the order. This submission is contrary to history, authority and principle.
[154]Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51 at 122 (footnote omitted).
Finally, much more than an ICO, an SCPO is distinctly rule-like in its operation. An ICO (even where confirmed) could be for a period of no more than one year[286] and could be varied or revoked at any time on application by the person against whom it was made if the court was not satisfied that the criteria for its making continued to exist[287]. In contrast, as has already been noted, an SCPO can be made for a period of up to five years and can be varied or revoked on application by the person against whom it is made only if the court is satisfied that there has been a substantial change in circumstances. For so long as it remains in force, its operation from the perspective of the person against whom it is made is indistinguishable from a legislated code.
[286]Sections 104.5(1)(f) and 104.16(1)(d) of the Criminal Code (Cth).
[287]Sections 104.18 and 104.20 of the Criminal Code (Cth).
Where an exercise of a power conferred on a court settles no question as to the existence of any antecedent right or obligation yet results in an order imposing a new and enduring restriction on liberty, some special and compelling feature ought to be found to exist for its inclusion in the category of judicial power to be justified. Characterisation of the power as judicial ought to require at least that the criteria to be applied by the court in making the order are legislatively tailored to the achievement of a legislatively specified protective outcome. That was the case in Thomas v Mowbray. It is not the case here.
Whether the power conferred by s 5(1) of the SCPO Act is best characterised as executive or legislative is perhaps an open question. The "general distinction between legislation and the execution of legislation", being "that legislation determines the content of a law as a rule of conduct or a declaration as to power, right or duty, whereas executive authority applies the law in particular cases"[288], is insufficient to yield an answer. What matters for present purposes is that the power is not judicial for the reason just stated.
[288]The Commonwealth v Grunseit (1943) 67 CLR 58 at 82.
Incompatibility
The reasons given for the conclusion that the criteria set out in s 5(1) of the SCPO Act for the making of an SCPO are inadequately adapted to exercise by an independent judiciary to warrant characterisation of the power to constrain liberty conferred by that provision as a judicial power are also sufficient to justify the conclusion that the conferral of that power to constrain liberty on the Supreme Court and the District Court substantially impairs their institutional integrity.
The attempt by the State and interveners to support s 5(1) of the SCPO Act by analogy to the provision upheld in Fardon and to the legislation considered in Wainohu v New South Wales[289] is misplaced. Like the Commonwealth legislation in Thomas v Mowbray, the State legislation in both of those cases was closely tailored to the achievement of a specified protective end.
[289](2011) 243 CLR 181.
The provision upheld in Fardon[290] enabled the Supreme Court of Queensland, on application, to make in respect of a person serving a sentence of imprisonment either a "continuing detention order" ("that the prisoner be detained in custody for an indefinite term for control, care or treatment") or a "supervision order" ("that the prisoner be released from custody subject to the conditions it considers appropriate that are stated in the order") only if satisfied by "acceptable, cogent evidence" and "to a high degree of probability" that the prisoner constituted "a serious danger to the community" by reason of the existence of an "unacceptable risk that the prisoner will commit a serious sexual offence" in the absence of such an order. The Court was required to have regard to, amongst other things, psychiatric reports indicating an assessment of risk of future serious sexual offending and any participation by the prisoner in rehabilitation programs. A continuing detention order, which was the focus of the analysis in Fardon, was required to be reviewed by reference to the same criterion, and either affirmed or revoked, annually[291]. The majority specifically found in the "yardstick" of an "unacceptable risk that the prisoner will commit a serious sexual offence" a standard sufficiently precise to admit of judicial application[292]. No equivalent yardstick is to be found in s 5(1) of the SCPO Act.
[290]Section 13 of the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld).
[291]Sections 27 and 30 of the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld).
[292](2004) 223 CLR 575 at 593 [22], 597 [34], 616-617 [97]-[98], 657 [225].
Before leaving Fardon, it is relevant to note the importance placed by Gummow J, with whom Hayne J relevantly agreed, on a continuing detention order or a supervision order being able to be made only against a "prisoner", being someone "presently detained in custody upon conviction for an offence of the character of those offences of which there is said to be an unacceptable risk of commission if the appellant be released from custody". His Honour remarked that "[t]o this degree there remains a connection between the operation of the [State legislation] and anterior conviction by the usual judicial processes", adding that "[a] legislative choice of a factum of some other character may well have imperilled the validity of [the provision in issue]"[293]. Although present in the provision of the UK SCPO Act considered in R v Hancox, such a connection to an anterior conviction is wholly absent from s 5(1) of the SCPO Act.
[293](2004) 223 CLR 575 at 619 [108]. See also at 647 [196].
The legislation considered in Wainohu[294], having been found by the majority to be wholly invalid as a result of the infringement of the Kable principle by reference to another aspect of its operation, was said by the majority not independently to infringe the Kable principle by reference to the criteria for the exercise of the power it conferred on the Supreme Court to make a "control order" being cast in terms of satisfaction that the person against whom the order was to be made was a member of a particular declared organisation and that "sufficient grounds" existed for making the order[295]. The majority commented that, although the legislation did not attempt to prescribe what might be "sufficient grounds" for the making of such a control order, those grounds were to be "ascertained by regard to the subject, scope and purpose of the [legislation] including the consequences of the making of an interim control order or control order", and observed that "the conferral of curial powers by reference to such criteria nevertheless may be susceptible to the exercise of judicial power"[296]. A control order under that legislation, however, did not involve the Supreme Court in fashioning any code of behaviour for the person against whom it was made. Its only effect was to bring the person within the definition of "controlled member" so as to become subject to specific and limited prohibitions which the legislation itself imposed on a controlled member[297]. The legislation in that case therefore lacked the feature of elasticity which I consider to be fatal to s 5(1) of the SCPO Act.
[294]Crimes (Criminal Organisations Control) Act 2009 (NSW).
[295]Section 19 of the Crimes (Criminal Organisations Control) Act 2009 (NSW).
[296](2011) 243 CLR 181 at 230 [111]. See also at 220 [72].
[297]Sections 26 and 27 of the Crimes (Criminal Organisations Control) Act 2009 (NSW).
Mention should finally be made of South Australia v Totani[298]. A feature of the provision there found to infringe the Kable principle[299] was that it left the Magistrates Court of South Australia with no option but to make a "control order", triggering prohibitions for which the legislation itself provided[300], once the Magistrates Court was satisfied, on application by the Commissioner of Police, that the person against whom the order was sought was a member of an organisation which had been declared by the Attorney-General. The vice of the provision, in the language of French CJ, was that it "impair[ed] the decisional independence of the Magistrates Court from the executive in substance and in appearance in areas going to personal liberty and the liability to criminal sanctions which lie at the heart of the judicial function"[301]. In the language of Gummow J, in the implementation of a legislative policy "to disrupt and restrict the activities of ... organisations involved in serious crime" and "to protect members of the public from violence associated with such criminal organisations", the Magistrates Court was "called upon effectively to act at the behest of the Attorney-General to an impermissible degree"[302].
[298](2010) 242 CLR 1.
[299]Section 14(1) of the Serious and Organised Crime (Control) Act 2008 (SA).
[300]Section 14(5) of the Serious and Organised Crime (Control) Act 2008 (SA).
[301](2010) 242 CLR 1 at 52 [82].
[302](2010) 242 CLR 1 at 67 [149], read with s 4(1) of the Serious and Organised Crime (Control) Act 2008 (SA).
The provision held to infringe the Kable principle in Totani might be said to have given too little latitude for judgment in constraining personal liberty. The provision here might be said conversely to give too much latitude for judgment in constraining personal liberty. The effect, however, is much the same. Without a lodestar to guide the choice of how much to constrain the otherwise lawful behaviour of a person assessed as having a real chance of involvement in serious crime related activities, the role of the Supreme Court or the District Court must in practice be confined to assessing the appropriateness of the ongoing constraints proposed in the terms of the SCPO that is sought in the application made to it by the Commissioner or the Director of Public Prosecutions or the New South Wales Crime Commission. The judiciary is effectively enlisted by s 5(1) of the SCPO Act to perform a personalised legislative function at the behest of the executive.
The judiciary can, of course, be expected to perform any function that might be legislatively imposed on it, as best it can, in a judicial manner. The judiciary can therefore be expected to fashion for itself workable and consistent decision-making criteria to guide the individualised assessment that it is obliged to make in each case in which it is asked by the executive to make an SCPO. Appellate processes can be expected to be invoked and, over time, a body of principle can be expected to develop. So the process of making an SCPO will be judicialised; and so with the judicialisation of the process the distinctive character of the judiciary as the constitutional arbiter of disputes about rights between the citizen and the State will become increasingly less distinct. Incrementally but inexorably the judiciary will be drawn ever more deeply into a process in which institutional boundaries are blurred and by which its institutional independence is diminished.
Conclusion
The questions raised by the special case should be answered as follows: (1) Yes; (2) The sub-section is wholly invalid; (3) The defendants.
GORDON J. Kable v Director of Public Prosecutions (NSW)[303] held that a State legislature could not give to a State court the task of deciding that a named individual should be subject to restraints on liberty to reduce the risk of that person committing future crime.
[303](1996) 189 CLR 51.
As Gaudron J said in Kable, "[p]ublic confidence cannot be maintained in the courts and their criminal processes if, as postulated by [the impugned provision], the courts are required to deprive persons of their liberty, not on the basis that they have breached any law, but on the basis that an opinion is formed, by reference to material which may or may not be admissible in legal proceedings, that on the balance of probabilities, they may do so"[304].
[304](1996) 189 CLR 51 at 107.
The Crimes (Serious Crime Prevention Orders) Act 2016 (NSW) ("the SCPO Act"), in issue in these proceedings, goes further. It has the Supreme Court and the District Court of New South Wales[305] deciding who, of a wide class of persons, should be subject to special restraints on their individual liberty not on the basis that they breached any law[306] (though they may have), or they belong to any particular criminal organisation[307], or espouse or pursue views antithetical to maintaining a democratic society[308], but on the basis that the court is satisfied that there are reasonable grounds to believe that restraining that individual's liberty would protect the public by preventing, restricting or disrupting involvement by that individual in serious crime related activities[309]. And that involvement may be no more than conduct that is likely to facilitate serious crime related activity by that person or another person[310].
[305]SCPO Act, s 3(1) definition of "appropriate court".
[306]cf Fardon v Attorney-General (Qld) (2004) 223 CLR 575.
[307]Wainohu v New South Wales (2011) 243 CLR 181; Condon v Pompano Pty Ltd (2013) 252 CLR 38.
[308]Thomas v Mowbray (2007) 233 CLR 307.
[309]SCPO Act, s 5(1)(c).
[310]SCPO Act, s 4(1)(c).
The class of persons to which the SCPO Act potentially applies is wide. The bar for restraining the liberty of a person within that class is low. In its legal and practical operation, the SCPO Act requires a State court to draft ad hominem rules restraining the personal liberty of a named individual.
Restraining any person's liberty will always lessen that person's opportunity to commit some form of crime. The fact that an individual has been charged but not subsequently convicted, or for that matter convicted or, indeed, acquitted, of a crime[311] cannot, as postulated by the SCPO Act, require "the courts ... to deprive persons of their liberty, not on the basis that they have breached any law, but on the basis that an opinion is formed, by reference to material which may or may not be admissible in legal proceedings, that on the balance of probabilities"[312] there are reasonable grounds to believe that the restraint would prevent, restrict or disrupt criminal activity by them or another person.
[311]SCPO Act, s 5(1)(b).
[312]Kable (1996) 189 CLR 51 at 107.
The questions raised in the special case should be answered in the manner proposed by Gageler J. I agree generally with his Honour's reasons. The circumstances giving rise to the special case, as well as the provisions of the SCPO Act, are set out in the reasons of the other members of the Court. It is unnecessary to repeat them except to the extent necessary to explain these reasons.
It is necessary to be wary of what might be called the "domino" effect of cases that have distinguished Kable[313]. It is a mistake to take what was said in other cases about other legislation and apply those statements without close attention to the principle at stake.
[313]See Condon (2013) 252 CLR 38 at 94 [137].
The principle at stake here concerns the kinds of issues that may be resolved by the application of judicial power, and the kinds of criteria that may be applied in the exercise of judicial power, in a way that is compatible with the institutional integrity of a State court. The two are intertwined.
It is, however, both necessary and useful to say something separately about each, bearing in mind what Kitto J said in R v Davison[314]: that a distribution of the functions of government amongst separate bodies is a "safeguard of individual liberty", and that that is achieved "by requiring a distinction to be maintained between powers described as legislative, executive and judicial" – by reference not to fundamental functional differences between powers, "but to distinctions ... between classes of powers requiring different 'skills and professional habits' in the authorities entrusted with their exercise".
[314](1954) 90 CLR 353 at 381-382.
It is the legislature that has the power, skills and resources to identify what conduct should be unlawful, to legislate to make that conduct unlawful and then to take any other steps the legislature considers necessary to reinforce the fact that, and to explain why, that conduct is now unlawful. It is the legislature that prescribes norms of conduct which govern the manner in which individuals are required to behave. It is the legislature that determines how best to protect the public against criminal behaviour by determining what conduct should be prohibited, how it should be punished, and what powers and resources the police force should have to detect and prevent crime[315]. By contrast, it is for the courts, in that context, to adjudge and punish criminal guilt[316].
[315]See, eg, Fardon (2004) 223 CLR 575 at 647-648 [196]-[197].
[316]Chu Kheng Lim v Minister for Immigration (1992) 176 CLR 1 at 27.
The issue which the SCPO Act would have the courts in New South Wales decide is whether and how to impose future special restraint on the liberty of a named individual. The central criteria require no more than that that person has been involved in any of a wide range of criminal offences, regardless of whether that person has been charged, convicted, or even acquitted of the alleged offence or offences; that there are reasonable grounds to believe that making the order would protect the public by preventing, restricting or disrupting the person's involvement in serious crime related activities; and that the order is "appropriate" to that end[317].
[317]SCPO Act, ss 3(1) definition of "serious crime related activity", 4(1), 5(1), 6(1).
That is, the SCPO Act requires courts to restrain the future liberty of a named individual:
•not in relation to a "prisoner" presently detained in custody for a serious sexual offence, as in Fardon v Attorney-General (Qld)[318];
•not to prevent harm to an identified individual, as is the issue in an apprehended violence order[319]; and
•not to prevent existential threats to society, such as terrorism, as in Thomas v Mowbray[320];
but on the ground that there are "reasonable grounds to believe" that the restraint on the liberty of a named individual would prevent, restrict or disrupt crime, or someone else's involvement in crime.
[318](2004) 223 CLR 575 at 603 [51], 619 [108].
[319]See, eg, Crimes (Domestic and Personal Violence) Act 2007 (NSW).
[320](2007) 233 CLR 307.
The additional criterion is that the restraint on the liberty of the named individual is "appropriate"[321]. As Gageler J asks: "appropriate to what end?"[322] Treating the word "appropriate" as rescuing the legislation from invalidity would appear to overlook the fact that "appropriate" was the condition for the order in Kable[323]. When approaching legislation whose constitutional validity is challenged, it is important to avoid the temptation to redraft it. As French CJ said in International Finance Trust Co Ltd v New South Wales Crime Commission, "[t]he court should not strain to give a meaning to statutes which is artificial or departs markedly from their ordinary meaning simply in order to preserve their constitutional validity"[324].
[321]SCPO Act, s 6(1).
[322]Reasons of Gageler J at [166].
[323](1996) 189 CLR 51 at 62.
[324](2009) 240 CLR 319 at 349 [42].
However, the question, "appropriate to what end?", is more fundamental than a mere drafting or construction issue about the word "appropriate". That question is more fundamental because of the interconnected and intertwined aspects of the SCPO Act.
First, the class of persons who are intended to be caught by the SCPO Act is defined very widely. The Act applies to any person aged 18 years or older who has been convicted of a serious criminal offence but also applies to a person who "has been involved in serious crime related activity" for which the person has not been convicted (including by reason of being acquitted of, or not being charged with, such an offence)[325].
[325]SCPO Act, s 5(1)(a) and (b) (emphasis added).
That immediately raises the second aspect – the breadth of conduct caught by the SCPO Act. The reference to "serious criminal offence" and "serious crime related activity" is important but should not distract from the fact that because of the way in which the SCPO Act defines "serious criminal offence", it extends to, among other offences, "an offence that is punishable by imprisonment for 5 years or more and involves theft, fraud, obtaining financial benefit from the crime of another, money laundering, extortion, violence, bribery, corruption, harbouring criminals, blackmail, obtaining or offering a secret commission, perverting the course of justice, tax or revenue evasion, illegal gambling, forgery or homicide"[326]. Furthermore, the conduct is not limited to conduct within New South Wales and includes an "offence of attempting to commit, or of conspiracy or incitement to commit, or of aiding or abetting" that broad group of offences[327].
[326]SCPO Act, s 3(1) definition of "serious criminal offence", incorporating Criminal Assets Recovery Act 1990 (NSW), s 6(2)-(4).
[327]SCPO Act, s 3(1) definition of "serious criminal offence", incorporating Criminal Assets Recovery Act 1990 (NSW), s 6(2)(i) and (j).
Next, as just seen, the class of persons caught includes those "involved in serious crime related activity". That last phrase – serious crime related activity – is defined to mean anything done by a person that is or was at the time a serious criminal offence, whether or not the person has been charged with the offence, or, if charged, has been tried, or, if tried, has been convicted or acquitted or had a conviction quashed or set aside on appeal[328]. The class of persons is broadened further by the fact that a person is involved in serious crime related activity if the person has engaged in serious crime related activity; has engaged in conduct that has facilitated another person engaging in serious crime related activity; or has engaged in conduct that is likely to facilitate serious crime related activity whether by that person or another person[329].
[328]SCPO Act, s 3(1) definition of "serious crime related activity".
[329]SCPO Act, s 4(1).
Then, there is the low bar to restraining personal liberty. A court need only be satisfied that there are reasonable grounds to believe that restraining an individual's liberty would protect the public by preventing, restricting or disrupting involvement by that person in serious crime related activities where their involvement may be no more than conduct that is likely to facilitate serious crime related activity by that person or another person[330]. It is not necessary to prove that restraining a person's individual liberty would prevent, restrict or disrupt a person's involvement in such serious crime related activities. It is enough that there be "reasonable grounds to believe" it. In determining these questions, the rules of evidence may not apply – specifically, those in relation to hearsay evidence[331].
[330]SCPO Act, ss 5(1)(c), 4(1)(c).
[331]SCPO Act, s 5(5).
It is in that context that the requirement in s 6(1) that the restraint on a person's individual liberty is "appropriate" is to be considered and assessed. And it is that question, in that context, which identifies the principle at stake. Is that the kind of issue that may be resolved by the application of judicial power, applying those kinds of criteria in the exercise of judicial power, in a way that is compatible with the institutional integrity of a State court?
If the SCPO Act is valid, it would require the Supreme Court and the District Court of New South Wales to apply judicial procedures and, it may be expected, to develop a body of decisions about how the provisions operate and apply. But that is beside the point. The question is whether the task set by the SCPO Act is appropriate for the courts. Should a court draft and impose on an identified person, of a very widely defined class of persons who have potentially done no more than engage in conduct likely to facilitate serious crime related activity (whether or not they have been convicted of any offence), "appropriate" special restraints on that person's individual liberty, not to protect a particular person, or to prevent some particular anticipated danger to the safety of others, but because there are reasonable grounds to believe that those restraints on that person's individual liberty would prevent, restrict or disrupt that person from committing a crime or facilitating another to commit a crime? The answer is "no".
As States "strain to protect their people"[332], there must still be adherence to the rule of law. Thus, even where a State seeks "to fight fire with fire" to repress and prevent, for example, serious terrorist violence, the State "may not use indiscriminate measures which would only undermine the fundamental values they seek to protect"[333]. Here, the SCPO Act does not seek to fight fire with fire. It seeks to fight a potential fire with fire by requiring a State court to draft ad hominem rules restraining the personal liberty of a named individual. That is not compatible with the institutional integrity of a State court.
[332]Bingham, The Rule of Law (2010) at 158.
[333]Bingham, The Rule of Law (2010) at 158-159, quoting Schwimmer, "Preface", in Council of Europe, Guidelines on human rights and the fight against terrorism adopted by the Committee of Ministers on 11 July 2002 at the 804th meeting of the Ministers' Deputies (2002) 5 at 5.
Legislation of this kind has been described as enabling the imposition of "personalised penal codes, where non-criminal behaviour becomes criminal for individuals who have incurred the wrath of the community"[334]. It has "been interpreted as permitting courts to impose wide prohibitions that have the effect of closing off many otherwise lawful and harmless activities"[335]. Preventive orders are, in essence, "a form of criminalisation: an ex ante criminal prohibition, not an ex post criminal verdict", a function that would conventionally be that of the legislature, not the judiciary[336].
[334]Council of Europe, Report by Mr Alvaro Gil-Robles, Commissioner for Human Rights, on His Visit to the United Kingdom, 4th-12th November 2004 (2005) at 37 [110].
[335]Ashworth and Zedner, Preventive Justice (2014) at 85.
[336]Simester and von Hirsch, "Regulating Offensive Conduct through Two-Step Prohibitions", in von Hirsch and Simester (eds), Incivilities: Regulating Offensive Behaviour (2006) 173 at 173, 178 (emphasis in original).
That is not to say that a control orders regime will necessarily be impermissible in all circumstances. It is clear from Thomas[337] that that is not so. The fundamental difference between the SCPO Act, which applies to a broad class with exceedingly low thresholds, "not on the basis that they have breached any law, but on the basis that an opinion is formed, by reference to material which may or may not be admissible in legal proceedings, that on the balance of probabilities, they may do so"[338], and the scheme in Thomas, directed at a narrow class in exceptional circumstances with stringent standards to be met, is plain.
[337](2007) 233 CLR 307.
[338]Kable (1996) 189 CLR 51 at 107.
The problems identified in Kable are not avoided by widening the class to which the law applies or by having the court decide how the liberty of the individual should be restrained. And unlike the legislation in Kable, which required proof that it was more likely than not that Mr Kable would commit a serious act of violence[339], the SCPO Act permits restraints on an individual's liberty if there are reasonable grounds to believe that the restraints would prevent, restrict or disrupt involvement by the person in serious crime related activities.
[339](1996) 189 CLR 51 at 62.
As the reasons of other members of the Court point out, the SCPO Act is modelled on a law enacted by the Parliament of the United Kingdom[340]. The United Kingdom law was enacted, and operates, in a radically different context in which there is no constitutional limit upon the tasks that the United Kingdom Parliament may give the courts. As Gummow J said in Momcilovic v The Queen[341]:
[340]Serious Crime Act 2007 (UK).
[341](2011) 245 CLR 1 at 89-90 [156]-[157] (footnote omitted).
"The system of federal government in Australia is constructed upon the recognition that there rests upon the judicature 'the ultimate responsibility for the maintenance and enforcement of the boundaries within which governmental power might be exercised'[342]. Judicial review of both the validity of legislation and the lawfulness of administrative action is thus an accepted part of the Australian legal landscape.
[342]R v Kirby; Ex parte Boilermakers' Society of Australia (1956) 94 CLR 254 at 276.
By contrast, in the United Kingdom, ... Diceyan notions of parliamentary sovereignty remain influential. Those notions appear to be treated as compatible with the existence of European structures of law‑making and adjudication and with the application of the [Human Rights Act 1998 (UK)] as some superior form of law alongside the application of the European Convention by the European Court of Human Rights. In Jackson v Attorney-General[343], Baroness Hale of Richmond, whilst acknowledging that 'Scotland may have taken a different view', observed that '[t]he concept of parliamentary sovereignty', which since the seventeenth century 'has been fundamental to the constitution of England and Wales', means that 'Parliament can do anything'."
[343][2006] 1 AC 262 at 318 [159].
Neither the enactment of the United Kingdom law, nor the way in which the courts of England and Wales have construed and applied it (within the United Kingdom constitutional context), bears upon the questions this Court must consider.
Vella v Commissioner of Police (NSW) [2019] HCA 38
Phong v Attorney-General for the Commonwealth [2001] FCA 1241
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