YBL -v- DIRECTOR of PUBLIC PROSECUTIONS (WA) - [2013] WASCA 221

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: YBL -v- DIRECTOR OF PUBLIC PROSECUTIONS (WA) [2013] WASCA 221

CORAM: McLURE P
BUSS JA
MAZZA JA

HEARD: 8 AUGUST 2013

DELIVERED : 26 SEPTEMBER 2013

FILE NO/S: CACR 28 of 2012

BETWEEN: YBL
Appellant
AND
DIRECTOR OF PUBLIC PROSECUTIONS (WA)
First Respondent
ATTORNEY GENERAL (WA)
Second Respondent

ON APPEAL FROM:
Jurisdiction              :  SUPREME COURT OF WESTERN AUSTRALIA
Coram  :McKECHNIE J
Citation  :Judgment Suppressed

Catchwords:

Criminal Law and Procedure - Dangerous sexual offender - Application of Dangerous Sexual Offenders Act 2006 (WA) to ex-citizen who is presently a lawful non-citizen - Interaction between DSO Act and Migration Act 1958 (Cth)

Constitutional Law - Territorial limits on State legislative power - Validity of legislative amendments extending definitions of 'commit a serious sexual offence' and 'community' in DSO Act - Territorial connections between subject matter of DSO Act and State of Western Australia

Legislation:

Australia Acts 1986 (Cth & UK), s 2
Australian Citizenship Act 2007 (Cth), s 33
Constitution Act 1889 (WA), s 2
Crimes Act 1914 (Cth), s 50BA
Criminal Code (WA), s 320, s 321, s 558
Dangerous Sexual Offenders Act 2006 (WA), s 3, s 4, s 7, s 8, s 14, s 17, s 18, s 25, s 29, s 45
Evidence Act 1906 (WA), s 106A
Interpretation Act 1984 (WA), s 7
Migration Act 1958 (Cth), s 5, s 13, s 14, s 15, s 35, s 142, s 147, s 148, s 150, s 151, s 152, s 153, s 155, s 157, s 158, s 159, s 161, s 189, s 196, s 197AA, s 197AB, s 198, s 501, s 501E, s 503
Migration Regulations 1994 (Cth), reg 1.03, reg 1.09, Sch 2, cl 050.515
Prisons Act 1981 (WA), s 3, s 16
Sentence Administration Act 2003 (WA), s 66

Result:

Appeal dismissed

Category: A

Representation:

Counsel:

Appellant:     Mr D J McKenzie
First Respondent           :     Mr R M Mitchell SC & Ms A B PrestonSamson
Second Respondent       :     Mr R M Mitchell SC & Ms A B PrestonSamson

Solicitors:

Appellant:     David McKenzie Legal Pty Ltd
First Respondent           :     State Solicitor for Western Australia
Second Respondent       :     State Solicitor for Western Australia

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

APLA Ltd v Legal Services Commissioner (NSW) (2005) 224 CLR 322
Balajan v Nikitin (1994) 35 NSWLR 51
Broken Hill South Ltd v Commissioner of Taxation (NSW) (1937) 56 CLR 337
Dauphin v The Queen [2002] WASCA 104
Fardon v Attorney‑General (Qld) (2004) 223 CLR 575
Flaherty v Girgis (1985) 4 NSWLR 248
Hitchcock v Pratt (2010) 79 NSWLR 687
Johnson v Commissioner of Stamp Duties [1956] AC 331
Lipohar v The Queen (1999) 200 CLR 485
Mobil Oil Australia Pty Ltd v Victoria (2002) 211 CLR 1
Pearce v Florenca (1976) 135 CLR 507
Port MacDonnell Professional Fishermen's Association Inc v South Australia (1989) 168 CLR 340
R v Chi Sun Tsui (1985) 1 NSWLR 308
Union Steamship Co of Australia Pty Ltd v King (1988) 166 CLR 1
WASFI v The Commonwealth (1998) 83 FCR 16

McLURE P: The appellant challenges the constitutional validity of amendments made to the Dangerous Sexual Offenders Act 2006 (WA) (DSO Act) by s 3 and s 4 of the Dangerous Sexual Offenders Amendment Act 2011 (WA) (DSO Amendment Act) which extended the extra‑territorial application of the DSO Act. McKechnie J dismissed the constitutional challenge and on 20 January 2012 made a continuing detention order against the appellant under s 17(1)(a) of the DSO Act.
The application under the DSO Act was conducted before McKechnie J on the basis, now accepted by the parties to be erroneous, that the appellant would, but for orders made under the DSO Act, have been deported from Australia on 12 March 2011. It is necessary to outline the scheme of the DSO Act and then explain the factual background and the appellant's status under the Migration Act 1958 (Cth).

The scheme of the DSO Act

The objects of the DSO Act are to provide for the detention in custody, or the supervision, of persons of a particular class to ensure adequate protection of the community and to provide for their continuing control, care or treatment (s 4).
A person of a particular class is a person who is under sentence of imprisonment wholly or in part for a serious sexual offence (s 8), and who is 'a serious danger to the community' (s 17).
Section 17 of the DSO Act relevantly provides:
(1)If the court hearing an application for a Division 2 order finds that the offender is a serious danger to the community, the court may -
(a)order that the offender be detained in custody for an indefinite term for control, care, or treatment; or
(b)order that at all times during the period stated in the order when the offender is not in custody the offender be subject to conditions that the court considers appropriate and states in the order.
Before making a finding that a person is a serious danger to the community, the court has to be satisfied that there is an unacceptable risk that, if the person were not subject to a continuing detention order or a supervision order, the person would commit a serious sexual offence (s 7(1)). The DSO Act lists a number of matters to which the court must have regard in deciding whether a person is a serious danger to the community (s 7(3)). An offender found to be a serious danger to the community will be detained in custody for an indefinite term or be subject to a supervision order not for what they have done in the past, the penalty for which will have to be served, but for what they may do in the future.
The amendments made by s 3 and s 4 of the DSO Amendment Act extend the definition of both 'commit a serious sexual offence' and 'community'. These extensions are at the heart of the constitutional challenge. The expression 'commit a serious sexual offence' is defined in s 3(1) of the DSO Act to include 'to do an act or make an omission outside this State or outside Australia that, if it were done or made in this State, would constitute a serious sexual offence'. The term 'community' is defined in s 3(2) to include any community and is not limited to the community of Western Australia or Australia.
The expression 'detained in custody' in the DSO Act in s 14(2)(b)(i) and s 17(1)(a) means detention in a prison under the Prisons Act 1981 (WA). This is clear from s 45 of the DSO Act which provides that if a court orders that a person be detained in custody under the DSO Act, it must issue a warrant for the person's apprehension, if necessary, and detention in a prison under the Prisons Act.
The term 'prisoner' is defined in s 3 of the Prisons Act to include a person committed to prison on remand or otherwise ordered to be detained in a prison under a law of the State. Thus a person detained in custody under the DSO Act is a 'prisoner' for the purposes of the Prisons Act. Except as otherwise provided by the Prisons Act, a prisoner shall not be confined or kept in any place other than a prison (s 16(2)).

Background

From 11 March 2000 to 12 March 2011 inclusive the appellant was serving terms of imprisonment imposed in respect of a series of child sexual and child pornography offences. Not having been granted parole, the appellant was due to complete his total effective sentence on 12 March 2011.
The appellant was born in England in 1959 and moved to Australia when he was aged around 10. The appellant became an Australian citizen on 23 August 1985. On 5 August 2009, the Department of Immigration and Citizenship (DIAC) received an application dated 20 July 2009 from the appellant to renounce his Australian citizenship.
On 4 March 2010 the appellant's application to renounce his Australian citizenship was granted, with the result that the appellant ceased to be an Australian citizen: Australian Citizenship Act 2007 (Cth), s 33(8).
As a result, the appellant became a 'non‑citizen' for the purposes of the Migration Act, s 35(3). On ceasing to be an Australian citizen, the appellant was taken to have been granted an ex‑citizen visa, which is a permanent visa: Migration Act, s 35(3).
On 30 July 2010 DIAC issued to the appellant a notice of intention to consider cancellation of his ex‑citizen visa under s 501(2) of the Migration Act.
On 19 August 2010 DIAC received a letter from the appellant in which he provided comments in relation to the possible cancellation of his ex‑citizen visa. The appellant requested 21 or 28 days to see family and finalise affairs before departing Australia. The appellant stated 'my whole family is here in Western Australia'.
On 9 December 2010 a delegate of the Minister for Immigration and Citizenship (the Minister) cancelled the appellant's ex‑citizen visa on character grounds. Also on that date, the appellant was granted a bridging visa, known as a 'Class WE‑050 bridging visa', on the basis that he was in 'criminal detention' because he was serving terms of imprisonment following conviction for an offence.
On 21 December 2010 notification of the decision to cancel the appellant's ex‑citizen visa was sent to the appellant by registered mail. On 11 January 2011 the appellant signed a Request for Removal from Australia form.
On 2 March 2011 the amendments made by s 3 and s 4 of the DSO Amendment Act came into operation.
On 4 March 2011 the first respondent (the Director of Public Prosecutions (WA)), filed an application for orders under s 14 and s 17(1) of the DSO Act.
On 9 March 2011 the appellant was charged with a single count of conspiring with E under s 558(1)(a) of the Criminal Code (WA) to do any act in Thailand or Vietnam or both which, if done in Western Australia, would be an indictable offence under s 320 of the Criminal Code, and which is an offence under the laws in force in Thailand or Vietnam or both (State conspiracy charge).
On 10 March 2011 DIAC issued the appellant with a Notice of Removal from Australia, indicating that he would be removed from Australia on 12 March 2011 at 15:35 hours WST.
On 11 March 2011 the appellant was remanded in custody on the State conspiracy charge and DIAC was informed that the appellant was no longer due to be released from criminal custody on 12 March 2011.
Also on 11 March 2011, at a preliminary hearing under the DSO Act, McKechnie J made an order under s 14(2)(b)(i) that the appellant be detained in custody pending the final hearing under the DSO Act.
On 20 January 2012 McKechnie J ordered that the appellant be detained in custody for an indefinite term for control, care or treatment pursuant to s 17(1)(a) of the DSO Act.
Before going to the relevant provisions of the Migration Act, it is necessary to complete the picture concerning other criminal charges against the appellant.

Charges against the appellant

At various times there were up to three different sets of charges against the appellant being (1) conspiracy charges, (2) charges laid in March 2012 (the March 2012 charges) and (3) charges laid in April 2012 (the April 2012 charges).
I have already referred to the State conspiracy charge. As noted, on 11 March 2011 the appellant was remanded in custody for that offence. No bail application was made.
On 19 August 2011 the appellant was charged with the offence of conspiring with G and E to commit the offence of, whilst outside Australia, engaging in sexual intercourse with a person or persons who is or are under 16, contrary to s 50BA of the Crimes Act 1914 (Cth) (Commonwealth conspiracy charge).
The Commonwealth conspiracy charge was with respect to essentially the same conduct as that alleged in the State conspiracy charge. On 26 August 2011 the appellant appeared in the Perth Magistrates Court on the Commonwealth conspiracy charge and was remanded in custody. Both the State conspiracy charge and the Commonwealth conspiracy charge were transferred to the Stirling Gardens Magistrates Court.
On 17 August 2012 an indictment was filed at the Supreme Court with respect to the Commonwealth conspiracy charge. The indictment pleaded three distinct counts of conspiracy to sexually penetrate children under 16 whilst outside Australia contrary to s 50BA of the Crimes Act.
On 17 May 2013 the appellant was convicted after trial of two of the three counts the subject of the Commonwealth conspiracy charge and sentenced by Hall J to a total sentence of 6 years 6 months' imprisonment, with a non‑parole period of 4 years. The sentencing judge found that the appellant and E, while both in prison, had developed a plan that on their release they would travel to Thailand, each set up a type of business that would provide them with access to young children, and continue to sexually offend against children.
The State withdrew the State conspiracy charge some time after the filing of the indictment on the Commonwealth conspiracy charge. Neither conspiracy charge involved a 'serious sexual offence' for the purposes of the DSO Act.
The March 2012 charges comprise 17 charges with respect to complainant Y which primarily relate to alleged sexual offences in or about 1993. The charges include seven counts of sexually penetrating a child over 13 and under 16 years contrary to s 321(2) of the Criminal Code, seven counts of indecently dealing with a child over 13 and under 16 years contrary to s 321(4) of the Criminal Code and one count of indecently recording a child over 13 and under 16 years contrary to s 321(6) of the Criminal Code. At the time of the hearing of the appeal, the March 2012 charges had not been tried.
The April 2012 charges comprise 14 charges with respect to complainant Z relating to alleged sexual conduct between approximately 1977 and 1984. There are 12 counts of indecently dealing with a child under the age of 14 years contrary to s 183 of the Criminal Code as it existed between 1977 and 1984, one count of unlawful carnal knowledge, and one count of attempted unlawful carnal knowledge, of a girl under the age of 13 years contrary to s 185 of the Criminal Code as it existed between 1977 and 1984. Those charges had not been tried as at the hearing of the appeal. Some of the March 2012 charges and the April 2012 charges are of 'serious sexual offences' for the purposes of the DSO Act.
In summary, when the DSO Act application was filed on 4 March 2011 and when the preliminary hearing was held on 11 March 2011, the appellant was in custody serving his existing sentence which would be completed on 12 March 2011. It is unclear whether the order made on 11 March 2011 remanding the appellant in custody on the State conspiracy charge was made before or after the preliminary hearing on the same day.
Immediately prior to the making of the continuing detention order on 20 January 2012 the appellant was in custody (1) under the preliminary detention order under the DSO Act and (2) on remand in respect of both the State conspiracy charge and the Commonwealth conspiracy charge.
At the hearing of this appeal on 8 August 2013, the appellant was in custody (1) serving the sentences for the Commonwealth conspiracy offences and (2) on remand in respect of the March 2012 charges and the April 2012 charges.
Section 29 of the DSO Act provides for annual reviews of continuing detention orders under the DSO Act. However, the first annual review of the appellant's detention will not take place for some years because s 29(2)(a) provides that reviews have to be carried out:
[A]s soon as practicable after the end of a period of 1 year commencing when the person is first in custody on a day on which the person would not have been in custody had the order not been made.
At no time since the continuing detention order was made on 20 January 2012 has the appellant been in custody on a day when he would not have been in custody had the continuing detention order not been made. However, the continuing detention order continues in effect in accordance with its terms from the time the order is made until rescinded by a further order of the Supreme Court (s 25). No rescission order has been made.

The Migration Act framework

Section 13(1) of the Migration Act provides that a non‑citizen in the migration zone (which includes a State) who holds a visa that is in effect is a lawful non‑citizen. Section 14(1) provides that a non‑citizen in the migration zone who is not a lawful non‑citizen is an 'unlawful non‑citizen'.
Section 15 of the Migration Act provides:
[I]f a visa is cancelled its former holder, if in the migration zone, becomes, on the cancellation, an unlawful non‑citizen unless, immediately after the cancellation, the former holder holds another visa that is in effect.
On 10 October 2012, in reviewing the appellant's case, DIAC took the view that the appellant's WE‑050 bridging visa had ceased by operation of law on 12 March 2011 on completion of his sentence of imprisonment. On 12 October 2012, the appellant was granted a further WE‑050 bridging visa which remained in effect at the time of the hearing of the appeal. Thus the appellant's migration status is that he is a lawful non‑citizen on a WE‑050 bridging visa (the Bridging Visa).
Clause 050.515 of Sch 2 of the Migration Regulations 1994 (Cth) provides for when a WE‑050 bridging visa ceases to have effect. It relevantly provides:
1.In the case of a visa granted, or taken to have been granted, to a non‑citizen who is in criminal detention - visa coming into effect on grant and ceasing on:
(a)the non‑citizen's unconditional release from criminal detention; or
(b)the non‑citizen's release on bail; or
(c)if the non‑citizen is in prison:
(i)the non‑citizen completing a sentence of imprisonment; or
(ii)subject to subclause (2), the non‑citizen's release on parole; or
...
(iv)the non‑citizen escaping from prison; or
(ca)subject to subclause (2), in the case of a non‑citizen who is subject to an order for periodic detention - the completion of the period of periodic detention imposed by that order; or
(d)the signing of a deportation order against the non‑citizen; or
(e)the grant of another visa to the holder; or
(f)if the non‑citizen is subject to an order for periodic detention - the non‑citizen's [sic] breaching a condition of that order.
(2)Subparagraph (1)(c)(ii) and paragraph (1)(ca) apply only in the case of a non‑citizen who has actually served a part of a term of imprisonment.
The expression 'criminal detention' is defined (reg 1.03; reg 1.09) as follows:
For the purposes of these Regulations, a person is in criminal detention if he or she is:
(a)serving a term of imprisonment (including periodic detention) following conviction for an offence; or
(b)in prison on remand;
but not if he or she is:
(c)subject to a community service order; or
(d)on parole after serving part of a term of imprisonment; or
(e)on bail awaiting trial.
Imprisonment pursuant to a continuing detention order under s 17(1) of the DSO Act is not 'criminal detention' as defined.
If and when the appellant's Bridging Visa ceases, the appellant will become an unlawful non‑citizen for the purposes of the Migration Act unless a new visa is granted to the appellant.
In the event the appellant becomes an unlawful non‑citizen, s 189(1) of the Migration Act would require the appellant to be detained. Section 197AA and s 197AB provide that the Minster may, if he or she thinks that it is in the public interest, make a residence determination to the effect that a person required by s 189 to be detained is to reside at a specified place, instead of being detained at a place covered by the definition of 'immigration detention' in s 5(1) of the Migration Act. DIAC's practice is to detain unlawful non‑citizens released from criminal custody regardless of whether they have been released at the end of a sentence of imprisonment or are on parole.
Under s 196(1), the appellant would have to be kept in immigration detention until removed or deported from Australia or granted a visa. The term 'immigration detention' is defined in s 5 of the Migration Act to include being held in a detention centre, prison or remand centre or 'another place approved by the Minister in writing'. If the appellant were placed in immigration detention, it would be for the Commonwealth authorities to determine where the appellant is to be detained and whether he would have the ability to contact other detainees or other members of the community in that location. Moreover, immigration detention is not detention in custody within the meaning of that expression in the DSO Act.

Section 198 of the Migration Act deals with the removal of unlawful non‑citizens who, like the appellant, request removal from Australia. Section 198(1) provides:
An officer must remove as soon as reasonably practicable an unlawful non‑citizen who asks the Minister, in writing, to be so removed.
It is relevant to consider the appellant's position, absent any order under the DSO Act, after the completion of his sentence on 12 March 2011 and before his conviction and sentence on the Commonwealth conspiracy charge. The appellant was in custody on remand on the State conspiracy charge for the whole period and on remand on the Commonwealth conspiracy charge from 26 August 2011 until his conviction on 17 May 2013. During the period when the appellant was in custody solely on remand, it was open to him to apply for bail. It is relevant to consider the statutory framework if the appellant was granted bail.
Section 153 of the Migration Act provides that if that Act requires the removal or deportation of a non‑citizen and no criminal justice certificate or warrant is in force, a State law such as the DSO Act does not prevent removal or deportation (WASFI v The Commonwealth (1998) 83 FCR 16, 22).
Given a charge against the appellant for a Commonwealth offence or a State offence for which he was granted bail, it would be open to the Commonwealth Attorney‑General or an authorised State official to give a certificate under s 147(1) or s 148(1) of the Migration Act that a stay of the appellant's removal was required for the administration of criminal justice. The 'administration of criminal justice' is defined in s 142 of the Migration Act to include the prosecution of a person for an offence. Certificates issued under s 147 or s 148 are known as 'criminal justice stay certificates'.
Section 150 of the Migration Act provides that if a criminal justice stay certificate about a non‑citizen is in force, the non‑citizen is not to be removed or deported.
In addition a court may, for the purposes of the administration of criminal justice, issue a warrant to stay the removal or deportation of an unlawful non‑citizen (s 151(1)). Such a warrant is described as a 'criminal justice stay warrant'. If a criminal justice stay warrant about a non‑citizen is in force, the non‑citizen is not to be removed or deported (s 151(2)).
However, if a criminal justice stay certificate or a criminal justice stay warrant about a non‑citizen is in force and the non‑citizen does not have a visa, the certificate or warrant does not limit any power under the Migration Act relating to the detention of the non‑citizen (s 152). That is, the non‑citizen can be held in immigration detention but not removed from Australia.
If a criminal justice stay certificate or a criminal justice stay warrant was issued to the appellant, it would be open to the Minister in his absolute discretion to issue a criminal justice stay visa: Migration Act, s 155(2), s 157 ‑ s 159. However, there is no provision for a non‑citizen in that position to apply for the grant of such a visa.
If a criminal justice stay visa is issued, the non‑citizen would have permission to remain in Australia and, if in immigration detention, would be entitled to be released from that detention: Migration Act, s 161(2).
In all circumstances other than the grant of bail pending trial, the appellant's Bridging Visa would cease. In particular:
(a)if there were a withdrawal or acquittal of all the charges against the appellant, he would be released from custody and his Bridging Visa would cease under cl 050.515(1)(a), Sch 2;
(b)if non‑custodial sentences were imposed on the appellant, his Bridging Visa would cease because that would be an 'unconditional release from criminal detention' under cl 050.515(1)(a), Sch 2;
(c)if the appellant were convicted and then released on parole after serving part of a term of imprisonment, his Bridging Visa would cease under cl 050.515(1)(c)(ii), Sch 2; and
(d)if the appellant were convicted and then released after completing the whole of his term of imprisonment, his Bridging Visa would cease under cl 050.515(1)(c)(i), Sch 2.
In summary, in the above circumstances, the appellant's Bridging Visa would cease and, unless he obtained another visa, he would have to be detained under s 189(1) and, if his request had not been withdrawn, removed from Australia as soon as reasonably practicable under s 198(1) of the Migration Act.
DIAC is regularly informed of the pending release of unlawful non‑citizens and WE‑050 bridging visa holders granted on criminal detention grounds, and takes steps to arrange removal where applicable.
It appears that the appellant cannot apply for a visa while he is in Australia because his ex‑citizen visa was cancelled under s 501 of the Migration Act on character grounds: Migration Act, s 501E. None of the limited exceptions apply.
The next issue is, if removed from Australia, whether the appellant can return. Section 503 of the Migration Act provides, inter alia, that where a person's visa has been cancelled on character grounds the person is not entitled to enter Australia or to be in Australia at any time during the period determined under the regulations.
The appellant would not be eligible for the grant of a visa of a class to which 'special return criterion' 5001 applies because that excludes a person whose visa has been cancelled under s 501 on character grounds. Special return criterion 5002 accommodates the appellant's circumstances. It applies, relevantly, if the applicant for a visa has been removed from Australia under s 198 and the application is made more than 12 months after the removal. However, the interrelationship of s 503 and special return criteria is unclear.

Summary and conclusion - risk to the Western Australian community

Whether, absent an order under the DSO Act, the appellant poses a risk to persons in Western Australia will depend on a number of future events including:
(a)whether the appellant's current charges will be tried before the completion of his non‑parole period, or if parole is not granted, the completion of his sentences for the Commonwealth conspiracy offences; if not, and if he was granted bail on the outstanding charges, whether a criminal justice stay certificate, criminal justice stay warrant and/or a criminal justice stay visa would issue;
(b)if the appellant is kept in immigration detention in Western Australia, the form of that detention;
(c)if the appellant is to be removed from Australia, the period before which that removal occurs;
(d)whether the appellant is granted some other form of visa.
In all the circumstances it cannot be said there is no possibility that the appellant will not remain in or return to Western Australia for some period after being released from prison in Western Australia. The appellant's statement of his current intentions not to apply for bail or apply to return to Western Australia cannot bind him and cannot determine the outcome of the DSO Act application.
Thus the application of the DSO Act to the appellant does not depend on the validity of its extra‑territorial reach effected by the DSO Amendment Act. Even if the amendments exceed the limits of the legislative power of the State, the DSO Act would be valid to the extent to which it is not in excess of that power: Interpretation Act 1984 (WA), s 7.
Notwithstanding that conclusion, I propose to determine the appellant's challenge to the primary judge's conclusion that the DSO Act is a valid law for the peace, order and good government of Western Australia notwithstanding its extra‑territorial application.

The Constitutional issue

Section 2(1) of the Constitution Act 1889 (WA) and s 2 of the Australia Acts 1986 (Cth) and (UK) are central to a consideration of the territorial limits on the legislative power of the Parliament of Western Australia.
Section 2(1) of the Constitution Act provides:
There shall be, in place of the Legislative Council now subsisting, a Legislative Council and a Legislative Assembly: and it shall be lawful for Her Majesty, by and with the advice and consent of the said Council and Assembly, to make laws for the peace, order, and good Government of the Colony of Western Australia and its Dependencies: and such Council and Assembly shall, subject to the provisions of this Act, have all the powers and functions of the now subsisting Legislative Council.
Section 2 of the Australia Acts provide:
(1)It is hereby declared and enacted that the legislative powers of the Parliament of each State include full power to make laws for the peace, order and good government of that State that have extra‑territorial operation.
(2)It is hereby further declared and enacted that the legislative powers of the Parliament of each State include all legislative powers that the Parliament of the United Kingdom might have exercised before the commencement of this Act for the peace, order and good government of that State but nothing in this subsection confers on a State any capacity that the State did not have immediately before the commencement of this Act to engage in relations with countries outside Australia.
The effect of s 2 of the Australia Acts on the power of State Parliaments to legislate extra‑territorially was considered by the High Court in Union Steamship Co of Australia Pty Ltd v King (1988) 166 CLR 1. The Court said in a joint judgment that the words 'peace, order and good government' had been considered the source of whatever territorial limitations exist on State Parliaments (12). In considering s 2(1) of the Australia Acts, the Court held that it was appropriate to maintain the need for some territorial limitation in conformity with the grant, noting that it may do no more than recognise what had already been achieved in the course of judicial decisions (14). In this respect, the Court approved the test applied by Gibbs J in Pearce v Florenca (1976) 135 CLR 507 for determining whether the territorial limitations on State legislative power had been exceeded.
In Pearce v Florenca, Gibbs J said:
[T]he test whether a law is one for the peace, order and good government of the State is, as so stated, exceedingly vague and imprecise, and a rather more specific test has been adopted; it has become settled that a law is valid if it is connected, not too remotely, with the State which enacted it, or, in other words, if it operates on some circumstance which really appertains to the State. ...
[I]t is obviously in the public interest that the test should be liberally applied, and that legislation should be held valid if there is any real connexion - even a remote or general connexion - between the subject matter of the legislation and the State (517 ‑ 518).
This test has been approved in subsequent decisions of the High Court, including Port MacDonnell Professional Fishermen's Association Inc v South Australia (1989) 168 CLR 340, 372; Lipohar v The Queen (1999) 200 CLR 485 [123]; Mobil Oil Australia Pty Ltd v Victoria (2002) 211 CLR 1 [9], [48]; APLA Ltd v Legal Services Commissioner (NSW) (2005) 224 CLR 322 [40], [158], [465].
The Gibbs J test has its origins in Broken Hill South Ltd v Commissioner of Taxation (NSW) (1937) 56 CLR 337 in which Dixon J said:
The power to make laws for the peace, order and good government of a State does not enable the State Parliament to impose by reference to some act, matter, or thing occurring outside the State a liability upon a person unconnected with the State whether by domicil, residence or otherwise. But it is within the competence of the State legislature to make any fact, circumstance, occurrence or thing in or connected with the territory the occasion of the imposition upon any person concerned therein of a liability to taxation or of any other liability. It is also within the competence of the legislature to base the imposition of liability on no more than the relation of the person to the territory. The relation may consist in presence within the territory, residence, domicil, carrying on business there, or even remoter connections. If a connection exists, it is for the legislature to decide how far it should go in the exercise of its powers (375).
That approach is reflected in the judgment of McHugh JA in Flaherty v Girgis (1985) 4 NSWLR 248 in which he said:
Domicile, residence or even presence within the jurisdiction is always sufficient to give the legislature power to impose any liability whatsoever on the person so residing, domiciled or present (267).
Johnson v Commissioner of Stamp Duties [1956] AC 331 appears to be the singular exception to that proposition.
An issue in this appeal is the time at which the necessary connection between the subject matter of the DSO Act and the State must exist. As I understand the submission put on behalf of the appellant, it is that the connection must exist at the time when the appellant would, but for the making of an order under the DSO Act, be released from custody into the community in England. There is no merit in that submission. The necessary connection must exist at the time of the making of the application under s 8 of the DSO Act or by no later than the time at which orders can be made under the DSO Act. In the case of the appellant, it is not possible to determine when he will be released from prison in Western Australia having regard to the outstanding March 2012 and April 2012 charges, some of which are also 'serious sexual offences' for the purposes of the DSO Act. It is a nonsense to suggest that the necessary territorial connection must post‑date the making of final orders under s 17. Further, the liability to be detained in custody under the DSO Act means custody in prison in Western Australia, not in immigration detention until the appellant's release in England.
In broad terms, the subject matter of the DSO Act is the detention or supervision of persons who at the time of the application thereunder are serving a sentence of imprisonment for a serious sexual offence and who pose a serious danger to the community by reason of the unacceptable risk that those persons will in the future commit a serious sexual offence if not detained or supervised.
More specifically, the relevant liability in this case is the liability of an offender serving a sentence of indefinite detention in custody in this State because of an unacceptable risk that the offender will, in the future, engage in conduct outside Australia that, if done in this State, would constitute a serious sexual offence.
The respondent analysed the territorial connections between the subject matter of the Act and the State by reference to (1) the persons who are subject to orders made under the DSO Act (the 'who'), (2) the action which the Act authorises to be taken against those persons (the 'what'), and (3) the reasons for taking that action against those persons (the 'why').
Starting with the 'who'. An application under s 8 of the DSO Act can be made only in relation to a person who is 'under sentence of imprisonment' wholly or in part for 'a serious sexual offence'.
A 'serious sexual offence' is defined by reference to s 106A of the Evidence Act 1906 (WA) which in turn defines the term solely by reference to offences against the laws of Western Australia.
Being 'under sentence of imprisonment' has a meaning that is consistent with the Sentence Administration Act 2003 (WA), s 66. A person must be either in the custody of the Chief Executive Officer of the Western Australian Department of Corrective Services (Prisons Act, s 16(1)), or under a Western Australian parole or re‑entry release order.
Thus being under sentence of imprisonment under Western Australian law for an offence against the laws of Western Australia is an essential precondition for the making of an application under the DSO Act. That Act takes as the factum for its application the status or condition of the appellant as a prisoner: Fardon v Attorney‑General (Qld) (2004) 223 CLR 575 [73].
Further, the sentence of imprisonment must have been imposed by a Western Australian court. Thus the person must be, or be able to be brought within, the territorial limits of the jurisdiction of the Supreme Court of Western Australia so as to be amenable to its processes.
I turn now to 'what' the DSO Act authorises. The Act empowers the court to order the offender to be detained in custody on an interim basis under s 14(2)(b) and for an indefinite term under s 17(1)(a). Under s 45, referred to above, if the court orders the detention of a person under the DSO Act, that person will be detained under the Prisons Act in a Western Australian prison.
Under s 17(1)(b), the court has the power to make a supervision order. A mandatory condition of a supervision order is that the person not leave, or stay out of, the State of Western Australia without the permission of a community corrections officer (s 18(1)(e)). It is clear from the conditions as a whole that the supervision for which the DSO Act provides must occur wholly or substantially in Western Australia. It is unnecessary to determine in this case what the position would be, having regard to the provisions of the Migration Act to which I have referred, if the primary judge had determined that the unacceptable risk that the appellant poses could be addressed by the making of a supervision order.
The 'why' directs attention to the purpose of the DSO Act. It is the case that the risk of harm that the Act seeks to avoid may, wholly or substantially, materialise outside Australia. However, the source of that risk is an offender under sentence of imprisonment for serious sexual offences committed in this State who, at the time the court's jurisdiction is engaged, is located in the State and amenable to the process of the court. There are analogies with the approach to the sentencing of offenders for offences committed in this State. A sentencing judge is required to take into account the need to protect the community and personal deterrence in the sentencing process whether or not the victims are in Western Australia (possession of child pornography being an example) or the offender is to be deported upon release from custody: Dauphin v The Queen [2002] WASCA 104 [21] ‑ [22]; R v Chi Sun Tsui (1985) 1 NSWLR 308, 311.
The appellant relies on Balajan v Nikitin (1994) 35 NSWLR 51 and Hitchcock v Pratt (2010) 79 NSWLR 687 in support of his claim of invalidity. Both cases are distinguishable. In each case, testator's family maintenance legislation of the New South Wales Parliament was held to be invalid insofar as it purported to confer upon a court the power to make

an order for family provision in respect of property outside New South Wales of a deceased person who was domiciled outside New South Wales. The appellant was both domiciled and resident in Western Australia when he committed the offences in respect of which he was 'under sentence of imprisonment' at the time of the application under the DSO Act.

The connections between the subject matter of the DSO Act and the State detailed above are many and various and go well beyond the threshold necessary for constitutional validity. The primary judge was correct to conclude that there is a real connection between the subject matter of the DSO Act and the State of Western Australia.
For these reasons, the appeal should be dismissed.
BUSS JA: I agree with McLure P.
MAZZA JA: I agree with McLure P.