Pollentine & Anor v Bleijie & Ors [2014] HCATrans 124 (17 June 2014)

Last Updated: 17 June 2014

[2014] HCATrans 124

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Brisbane No B39 of 2013

B e t w e e n -

EDWARD POLLENTINE

First Plaintiff

ERROL GEORGE RADAN

Second Plaintiff

and

THE HONOURABLE JARROD PIETER BLEIJIE ATTORNEY-GENERAL FOR THE STATE OF QUEENSLAND

First Defendant

JOHN FRANCIS SOSSO, DIRECTOR-GENERAL, THE DEPARTMENT OF JUSTICE AND ATTORNEY-GENERAL

Second Defendant

THE CHIEF JUDGE AND JUDGES OF THE DISTRICT COURT OF QUEENSLAND

Third Defendant

FRENCH CJ
HAYNE J
CRENNAN J
KIEFEL J
BELL J
GAGELER J
KEANE J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON TUESDAY, 17 JUNE 2014, AT 10.14 AM

Copyright in the High Court of Australia

____________________

MR S.P. DONAGHUE, QC: May it please the Court, I appear with my learned friends, MS K.L. WALKER and MR R.W. HADDRICK, for the plaintiffs. (instructed by Prisoners’ Legal Service Inc)

MR P.J. DUNNING, QC, Solicitor-General of the State of Queensland: May it please the Court, I appear with my learned friends, MR G.J.D. DEL VILLAR and MR J.A. KAPELERIS, for the defendants. (instructed by Crown Law (Qld))

MR M.G. SEXTON, SC, Solicitor-General for the State of New South Wales: If the Court pleases, I appear with my learned friend, MS N.L. SHARP, for the Attorney-General for New South Wales who intervenes in the proceedings. (instructed by Crown Solicitor (NSW))

MR M.G. HINTON, QC, Solicitor-General for the State of South Australia: If the Court pleases, I appear with my learned friend, MS N.M. SCHWARZ, on the instructions of the Attorney-General for South Australia intervening. (instructed by Crown Solicitor (SA))

MR G.R. DONALDSON, SC, Solicitor-General for the State of Western Australia: If it please your Honours, I appear with my learned friend, MR J.D. BERSON, for the Attorney-General for Western Australia intervening. (instructed by State Solicitor (WA))

FRENCH CJ: Mr Donaghue.

MR DONAGHUE: Your Honours, the first plaintiff, Mr Pollentine, is now 55 years old, and the second plaintiff, Mr Radan, is now 75 years old. Thirty years ago, in 1984, in separate proceedings, each of those plaintiffs was convicted of serious sexual offences against children. Both of them pleaded guilty and in each case after short and essentially uncontested sentencing hearings in the District Court of Queensland, a judge acting pursuant to section 18 of the Criminal Law Amendment Act 1945 (Qld), which I will refer to as the Act, declared that each of the accused was incapable of exercising proper control over his sexual instincts and directed that each be detained in institution at Her Majesty’s pleasure.

In Mr Radan’s case, he was also sentenced to a fixed term of imprisonment of 12 years, which was reduced on appeal by the Court of Appeal to three years, and his counsel in the course of the sentencing hearing affirmatively urged the judge to make the order for indefinite detention so as to facilitate his client’s access to treatment. Thirty years later, both plaintiffs are still detained as a result of the indefinite detention orders made on those occasions in 1984 and both have spent the entirety of that time, as we understand it, in prison.

Your Honours should, I hope, have our oral outline of argument which you will see divides what we propose to say orally very simply into two halves. First, submissions which will deal in some detail with the proper construction of section 18 of the Act. Obviously, questions of construction are critical to any question of validity, and while it is true that this Court has upheld the validity of some regimes that involve for the preventive detention of offenders, plainly it does not follow from that that any regime that can be characterised as a regime for preventive detention is, therefore, valid.

It is critical to focus on the detail, and we submit that when one does focus on the detail of this regime it becomes apparent that there are fundamental differences between this regime and other regimes – notably, the regime in Fardon but also other regimes for indefinite detention that have been regarded as valid. Having dealt in some detail with the construction point we will then be able to deal more quickly with the validity points and to address the reasons why, in our submission, this regime is incompatible with the actuality or appearance of Queensland courts as independent and impartial tribunals.

I should emphasise that our argument in that respect does not focus on the procedure that the court adopts in making an order under section 18 which, in most respects, closely resembles an ordinary court procedure. Nor do we suggest that the court is subject to an impermissible direction by the Executive in the exercise of that power. Our argument for invalidity focuses on the nature of the function itself, including that it involves the court in an indefinite detention regime where the criteria for release from detention differ fundamentally – those criteria have been criteria applied by the Executive in deciding whether to release – are very wide and differ fundamentally from the criteria that get a person placed in detention in the first place.

CRENNAN J: When you say indefinite, there are mechanisms, are there not, for the detention regime to come to an end, either through a decision of the Governor in Council or would there not be a mechanism under the parole legislation?

MR DONAGHUE: There is a mechanism for a decision by the Governor in Council to release and I am using the phrase “indefinite detention” to mean detained until the Governor decides that that detention should end, the Governor in Council decides that the detention should end. Our emphasis is both on what we submit is in effect a delegation by the courts to the Executive based on the factum of a court order of a power to detain indefinitely; that is one limb of our objection. The other major limb of our objection is the disjunction between the circumstances in which one can come to be detained and the circumstances in which the Governor might decide to allow detention to continue.

CRENNAN J: What about the parole legislation?

MR DONAGHUE: The parole position is complex, your Honour. It appears that the position – and varies over the life of this legislation. So at the time that the legislation was enacted in 1945, there does not appear to have been any capacity to release a person detained on parole under that provision. There are then provisions under the Mental Health Act that seem to have allowed the Governor in Council, exercising the same release power that one sees in subsection (5), to impose conditions in much the same way as would occur under a parole regime – that is from the mid-1970s – and then subsequently in, I think around 2002, there was an express amendment obviously very long after this regime came to apply to the applicant.

Your Honours, can I start then with the questions of construction and ask your Honours to turn to the 1945 Act. I am working from a version of the Act as in force in 1984, being the time when the relevant orders were made in respect of the plaintiffs. There was an amendment that renumbered at some point but if your Honours have a version in 1984 and could look first at the long title, you will see that the Act is identified as “An Act to Amend “The Criminal Code,” and “The Justices Acts, 1886 to 1942,” each in certain particulars in respect of, and to make further provision for, the Treatment and Punishment of Offenders convicted of Sexual Offences, and for other purposes”.

While no doubt it is the case that a substantial part of the purpose for orders made under this regime is concerned with matters of community protection, it is notable that that is not one of the things that is identified in the title to the Act. The focus is on punishment and on treatment and one sees, in some of the provisions I will come to, thematic references back to the treatment idea. Your Honours will also note near the start of the Act in section 2A, which was inserted shortly after the Act commenced I think in 1946, that there is a definition of the term “offence of a sexual nature” and it is defined to include:

any offence constituted wholly or partly by an act whereby the offender has exhibited a failure to exercise proper control over his sexual instincts -

So, one has in the definition of the “offence of a sexual nature” term which is the criterion that brings one potentially within this regime, already a reference to this concept of “proper control over sexual instincts” but the term is “failure” rather than “incapacity” in the definition.

Section 18 which is the provision, the validity of which is challenged in this proceeding, contains two distinct pathways, one of which has two branches and I propose to take your Honours through those briefly noting the two pathways – or the pathway and the branch that are not relevant and then focusing on the key branch of the provisions.

But if your Honours could start first at one of the pathways that is not directly in issue in this proceeding - it commences at section 18(4). This is the provision that deals with the situation where a person is already serving a sentence of imprisonment imposed upon him for an offence of a sexual nature but, unlike the provisions that your Honours will need to focus on, this provision was not limited to offences committed against a child.

This section provides – subsection (4) is a different gateway back to the same power that was exercised in this case being the power under 18(3) that I will come to in a moment. So we submit that because it takes one to the same place, it is worth your Honours considering what light it might shed on the proper construction of 18(3).

One of the things, in our submission, that is obvious is that when an order is made pursuant to the 18(4) pathway the indefinite detention that might follow clearly is not a sentence. It is clearly operating in addition and separately to the sentence that was imposed in respect of the crime that caused the person to be in detention and thus to be susceptible to the possible exercise of power under 18(4).

Some of the differences between this pathway and the main pathway that will concern your Honours is that here it is provided that the power is available only where there are two medical practitioners, one of whom is required to be specially qualified in psychiatry - your Honours will not find that requirement in the provision that we come to shortly. As I have already mentioned, the section is not limited to offences against children and, most importantly, looking here at (i), (ii) and (iii) within 18(4), the power is available not only in circumstances where the offender:

Is incapable of exercising proper control over his sexual instincts –

but also there are additional criteria. One, that the –

incapacity is capable of being cured by continued treatment; and

That for the purposes of such treatment it is desirable that such person be detained in an institution after the expiration of his [or her] sentence -

We make two points about that. One, in that provision, Parliament has recognised the possibility that a person who is presently incapable of exercising proper control over his or her sexual instincts may cease to have that incapacity as a result of treatment that might be provided within an institution. So even if the judgment that is made at the time of the order is properly made that there is such an incapacity, that situation is potentially, at least for some categories of offender, likely to change as a result of possible treatment.

FRENCH CJ: Now, does subsection (11) effect a carve-out by way of a different procedure in respect of pre-enactment convictions in relation to children?

MR DONAGHUE: Your Honour, we have had some difficulty working out exactly how subsection (11) fits within the regime, because 18(4) does seem to be directed to the same question and to operate in wider terms than subsection (11). It may be that we failed fully to appreciate the work that it does, but we have had some difficulty.

In addition to the parliamentary recognition that treatment may assist, the other thing that is notable about 18(4) is that this provision is not directed just to a question of community protection, because if a person is incapable of exercising proper control over their sexual instincts but is not capable of being cured, then the provision does not authorise the preventive detention of someone who is serving an existing sentence. Even if the person does pose a danger, their susceptibility to treatment is a necessary component of the availability of the preventive sentence.

That is the provision that would operate with respect to someone who is already detained, which I have described as one of the pathways. The other pathway starts at 18(1) and then branches either to 18(3) or to 18(6). Focusing on 18(1), the first condition that must be satisfied before the power is available is that the person:

has been found guilty of an offence of a sexual nature –

which, as your Honours will recall, is defined to mean “a failure to exercise proper control over sexual instincts”, or to include that –

committed on upon or in relation to a child under the age of seventeen years.

One feature of this regime about which clearly no objection can be taken is that it is engaged only following a conventional exercise of judicial power to make a determination of guilt. We, of course, accept that that is so.

It is inherent in that possibility, though, that the person who is subject to this regime is capable of being criminally responsible. If the mental condition of the person is such that they are not guilty by reason of insanity, then this regime cannot apply to them because that finding of guilt will not have been made. We are concerned with people who are incapable of exercising control, but still of a sufficient level of mental control so as to be capable of engaging in criminal law. Where such a conviction has occurred, the trial judge is empowered to give a direction that two practitioners inquire into what is described in subsection (1)(a) as inquiring:

to the mental condition of the offender, and in particular whether his mental condition is such that he is incapable of exercising proper control over his sexual instincts –

The reference to “mental condition” is obviously, we submit, a wider inquiry than the question of incapacity to exercise proper control, and the reason for that wider inquiry is because of the pathway that takes one to 18(6), which is the branch of this pathway that is not presently in issue. The authorities suggest that the question of mental condition is not limited to whether a recognised mental illness – that it is possible for someone’s mental condition to be of the kind specified in the provision even if there is not a recognised mental illness. The decision of the South Australian Full Court in R v Kiltie (1986) 41 SASR 52 is authority for that, but I will not take your Honours to it.

Having been directed by the trial judge to undertake this inquiry into mental condition, your Honours will note that the specified medical practitioners do not have to include a specialist in psychiatry. The question of whether such a specialist is represented turns not on the question of whether that expertise is needed to make the predictive judgment but whether or not there is an available psychiatrist who can participate. If there is an available psychiatrist, then one of the two medical practitioners should have that specialisation but, otherwise the section contemplates the possibility that any two medical practitioners might give the reports that condition the availability of the power. In section 18(2), you find the only requirements as to the conduct of this inquiry. It is to be by:

personal examination and observation of the offender –

and the medical practitioners are permitted to have:

reference to the depositions and such other records relating to [the offender] as they think necessary, and shall give their report on oath to the judge.

So there is sworn evidence given by the medical practitioners following this personal examination. Again, there is authority to suggest that it is not necessary to interview the person in order to conduct a personal examination for the purpose of this provision – at least in circumstances where the offender refuses to be interviewed. It is possible to have a report that engages the section on the authority of decisions of the Full Court of South Australia – this time in R v England.

Your Honours, it is useful, in my submission, to illustrate the way that this works in practice because it can, we submit, be quite perfunctory, notwithstanding the extraordinary consequences that these reports are capable of having and if I could ask your Honours to turn to the special case book, to take your Honours first – and I will do this briefly – to the facts concerning Mr Radan.

If your Honours turn to page 65 – this is in the transcript of the evidence of Dr Cameron who was one of the two medical practitioners – all of the practitioners, as it happens in these cases, were psychiatrists. Dr Cameron was one of the psychiatrists who examined Mr Radan. On page 65 of the special case book at about line 11, you will see that Dr Cameron saw Mr Radan only once and it is said:

For what period of time?---I didn’t take a strict note of it, but it would have been about an hour – not long.

At the time that happened – if your Honours go back to page 57 of the book at about line 37, the trial judge asks Dr Cameron that at the time of the examination:

Were you alerted to the fact that that was the particular question that you were going to be asked?---At the time I wasn’t. I hadn’t access to all the brief. At the time I saw him, examined him.

So at the time this one-hour examination occurred, Dr Cameron did not know what the legislative criteria would be. At page 59 of the book, line 38 – I think that reference is not correct, your Honours. There are references in the evidence to Dr Cameron not having been aware of the criminal history, the full criminal history at the time of the examination.

CRENNAN J: I think it is on page 65 in Mr Howell’s question. She gives that evidence “about an hour” for the personal interview and he then puts to her that - - -

MR DONAGHUE: Yes, thank you, your Honour, that is the reference I was looking for.

CRENNAN J: That is the reference, yes.

MR DONAGHUE: At page 66 at line 25, there is a question about - Dr Cameron was giving evidence suggesting that there would have been proper treatment in Adelaide – that is a reference to a period of time where Mr Radan had spent one year in a South Australian psychiatric facility, but Dr Cameron then accepts that she had not checked with the South Australian authorities – had not seen the records of the year that Mr Radan had spent in a psychiatric facility in South Australia and while the other examining doctor, Dr Edwards, had attempted to get those records, he had not succeeded in getting them.

GAGELER J: Why are we concerned with the quality of the evidence that was placed before the judge in this case?

MR DONAGHUE: Your Honour, it does not go squarely to the question of constitutionality. All I am seeking to do is to illustrate by reference to the facts of this case that the conditions – these medical reports, which are the essential foundation for an order for indefinite detention – are medical reports of a kind that can be made under this regime on the basis by people who are not required to be expert psychiatrists and who may make those reports on the basis of an extremely brief examination of the offender.

Now, in and of itself, that perhaps does not take me that far, but later on in the case, if your Honours contrast this legislative regime with the regimes that apply in some other contexts, such as in a Fardon-type context, the restrictions that the legislature had put around what has to be done before you can get to the power to detain in a preventative fashion are very much more stringent than we find in this regime, and that is all I am saying.

HAYNE J: But are not these criticisms that you make of the evidence in this case swamped by the statutory requirement that the judge find the opinion to be proved? These may be very sound reasons why a judge should have hesitated very long and very hard in these cases, but the statute says, does it not, the judge has to be satisfied of the truth of the opinion.

MR DONAGHUE: It does say that. It says the judge has to find the matters reported to be proved. That is so. I do not want to give your Honours the impression that our case in any way depends upon the Court accepting the criticisms I am – all I was really seeking to do is illustrate the undemanding nature of the threshold criterion, perhaps I do not need to spend any more time upon that. In each case, each doctor examined the respective plaintiffs for about an hour, I think in one case, one of them examined him twice; once for an hour and a half, and once for half an hour, so that was the full extent of it, and without a great deal of - - -

KIEFEL J: There were no appeals brought from the making of these orders?

MR DONAGHUE: There was in Mr Radan’s case and the effect of that appeal was to – he had both a fixed sentence for 12 years and then the indefinite detention order. The fixed sentence of 12 years was reduced to three, but the court left in place the indefinite detention order.

BELL J: The focus of that appeal was to the sentences imposed for the offences, it being contended that when an order is made under section 18, proper principle dictates that the sentences for the substantive offences are less than would otherwise apply.

MR DONAGHUE: That is correct. That was the essential basis for the reduction of the 12 to three. Interestingly – I will come to this a little later – but there are decisions of this Court, McGarry and Strong amongst them, which would suggest that when the underlying – when the nominal or fixed sentence is varied then the sentencing discretion falls to be re-exercised by the appellate court and that therefore there should have been, rather than a question of error with the original indefinite detention sentence, there should have been a re-exercise of that function which might suggest that what happened in the Court of Appeal was not correct, but that is not before your Honours now.

KIEFEL J: But was it any part of Mr Radan’s appeal that the exercise of discretion miscarried here because of aspects of the preventive detention order?

MR DONAGHUE: I do not believe the record reveals the answer to that question.

KIEFEL J: The reason I ask you is that your submissions suggest that we are not so much in Kable territory, except perhaps in one element, as we are in the territory of the invalidity being tested by reference to the Executive performing matters which are a judicial function.

MR DONAGHUE: Yes, well we will submit that that is one limb – the Kable territory covers a number of different kinds of way in which the institutional integrity of a court might be undermined and that one - - -

KIEFEL J: Separation of powers issues?

MR DONAGHUE: Of certain kinds. I do not suggest that there is a congruence between Chapter III separation of powers and the restrictions on State courts but one limb of our argument is that a wholesale delegation of punishment to the Executive does cross the line and I will develop that, if I might.

KIEFEL J: When you do, I am interested in this – in your submissions you say that there was a delegation by the order. That has to fit with the notion that there is a statutory discretion in the Court, does there not? In the Kable sense, that is something that needs to be dealt with.

MR DONAGHUE: Undoubtedly, and we accept that there is a statutory discretion to make these orders or not make them under subsection (3). The objection, and I will develop it by reference to some observations your Honours have made in a couple of recent authorities, is that unlike a sentence for life imprisonment which is capable of being reduced by an exercise of Executive power whether through parole or mercy alleviating the burden of the maximum punishment that the Court has imposed to detain - to order detention at His or Her Majesty’s pleasure is not to fix the penalty at all, it is to leave the question of the penalty entirely in the hands of others and that is the vice on that branch of our argument. If I could, with your Honour’s permission, park that issue and return to it once I have dealt with the statutory framework.

KIEFEL J: Yes, certainly.

MR DONAGHUE: Your Honours, can I just deal, to really clear it away, with the other branch of section 18 that is not engaged here, which is provided for in subsection 18(6). One comes to section 18(6) if the medical practitioners who conduct the examination under 18(1) and (2) reach the conclusion that the person is not incapable - that is the double negative - of controlling their sexual instincts. So this is a person who, on the medical examination, is capable of controlling their sexual instincts. Such a person might, nevertheless, be subjected to the regime created by section 18 if that person’s:

mental condition is subnormal to such a degree that he requires care, supervision and control in an institution either in his own interests or for the protection of others, and the judge after considering the report and any evidence submitted in rebuttal thereof is of opinion that the offender requires such care, supervision, and control –

Now, can I make a couple of points about that section? First, if your Honours focus on the first couple of lines of subsection (6) the drafting is difficult but the preconditions appear to be for the balance of the operation of the subsection either that there be a report to the judge, to the particular effect, or in the case under subsection (4) which is the case of the person who is already in detention that the judge has formed an opinion. There seems to be a difference in the jurisdictional fact that takes one into the balance of the section. That difference is not found in subsection (3) so I just ask your Honours to note the contrast.

Probably, as Justice Hayne put to me a few moments ago, the better view of section 3 is that it does turn upon the judge forming an opinion about the matters specified in the reports but it does not say so in terms, unlike the opening words of subsection (6), so that is just another anomaly in the way that these provisions work.

Further down, the judge is again required to form an opinion and the opinion is not an opinion that the person is subnormal to such a degree but an opinion that the person requires care, supervision and control. Having formed that opinion, there is then a difference in the powers that are available. The judge can direct under (a) either detention for a specified period or detention during Her Majesty’s pleasure.

That option of a specified period is again not available under the other branch that is the focus here and, at the very end of subsection (6), your Honours will see the criteria that are to be applied in determining whether or not a person who is detained at Her Majesty’s pleasure under this provision is to be released and again there is a difference. The criteria – these are the very last words of the section - turn upon whether or not:

the Governor in Council is satisfied, on the report of two legally qualified medical practitioners . . . that [the person] is fit to be at liberty.

So there is a fitness criteria applied there which your Honours will note is not to be found under the main pathway. But having cleared away the parts of the section that are not relevant, can I ask your Honours now to turn to subsection (3)(a) which is the key provision, subsection (3)(a) and its relationship with subsection (5).

There are, we submit, a number of important questions of statutory construction that arise in relation to (3)(a). We identify four: the nature of the jurisdictional fact that must exist before the power is enlivened; the content of the threshold test; the limits of the discretion when it does arise and the question whether or not an order under this section is part of the sentence or a separate function, and if I take those four questions in turn.

In relation to the question of the jurisdictional fact, if one looks just at the first couple of lines of the subsection, the appearance is that the section is engaged where there is in existence a report of the medical practitioners, so the plural is used for practitioners. It suggests that they need to be unanimous, report to the judge that the offender is incapable and if one just left if there then, in our submission, there would not be any criteria that the judge form that same view. Having said that, at the end of subsection (3)(a) it is specified that:

no such order shall be made unless the judge shall consider the matters reported to be proved.

That does tend to suggest that the judge is required him or herself to be satisfied of the matters that are the subject of the report - - -

FRENCH CJ: Now, what are the matters proved? Are they the conclusions of fact, often in the form of an opinion by the medical practitioners as to capacity to control, et cetera?

MR DONAGHUE: Well, that is part of the difficulty, your Honour, is that the medical practitioners are reporting a conclusion at the end of the day that is based upon both their examination and their assessment of the depositions in the case. One might say, as in an ordinary expert evidence matter, that what should be proved is the evidence upon which the opinion is based but the section is unhelpful in identifying whether what that means is the judge has to find that the opinion is correct as a matter of fact.

FRENCH CJ: How does this process engage, if it all, with the rules of evidence?

MR DONAGHUE: Your Honour, there is nothing that deals with that question, so probably they apply, one would think, at least in the same way as they would apply in the case of sentencing. I identified one of the questions as being “is this part of the sentence or not”. If it is regarded as part of the sentencing process, then this Court’s decision in Olbrich would suggest that matters of fact that are relevant to sentencing adverse to an offender need to be proved beyond a reasonable doubt, so if it is part of the sentencing process one would think that when that section says the matters must be proved, it means, in a criminal sentencing context, must be proved beyond a reasonable doubt.

FRENCH CJ: Medical practitioners can have regard to the depositions under subsection (2).

MR DONAGHUE: Yes.

FRENCH CJ: That means pre-trial depositions.

MR DONAGHUE: Yes, and that is expressly so provided, but there is not any general dispensation from the rules of evidence. Our friends, as we understand the case against us, say, yes, this should be reviewed as part of the sentencing process but we can nevertheless establish the matters on the balance of probabilities and, in our submission, there is a tension there.

HAYNE J: Does 18(3) proceed from the unstated premise that capacity to control over – the offender’s capacity to exercise proper control over his sexual instincts is a question of fact capable of objective determination?

MR DONAGHUE: It may, your Honour. It may be that - - -

HAYNE J: Given the time at which this legislation was enacted, would it be an available construction of 18(3) that the Act is proceeding on a premise of that kind?

MR DONAGHUE: Your Honour, I do not think you have been given the second reading speech or debates but they acknowledge a wide divergence of views within the Queensland Parliament about the matter that your Honour is asking me about. So there are some people who clearly would have taken the view that your Honour just put to me, there were others who would not, and thus it is difficult to answer the question objectively what the Parliament’s intention was in that respect. But it does, I accept, seem to proceed upon the footing that this is a matter – well, the matters subject of the report are proved. It does seem an available construction of the provision that that means the conclusion is proved.

BELL J: That must follow, must it not, from the fact that not only can the opinion of the medical practitioners be tested in cross-examination – after all, perhaps they might resile from their opinion – but evidence can be called in rebuttal. Now, in the event that evidence is called in rebuttal that is a matter that falls to the judge to determine whether the judge is satisfied that the opinion is proved.

MR DONAGHUE: Yes.

BELL J: It is very difficult to see another way of - - -

MR DONAGHUE: I think that must be right.

HAYNE J: Because behind the question lies the further question of what, if anything, is one to make of that construction if – and it is a very large “if” - that legislative presupposition is now to be regarded as open to challenge, or doubtful, or does the Act change over time, what happens?

MR DONAGHUE: Well, indeed. One would think that a court now confronted with this legislation with all of its historical anachronisms is nevertheless called upon, if it is valid, to try to give it a workable meaning and one of our complaints is that that is an extremely difficult thing to do, in part for the reasons your Honour has just put to me, but also because if the question was just is this offender incapable of exercising control over his or her sexual instincts then one might more readily see how a medical opinion not least on one world view could go to that question, but that is not the question. The question is one of proper control which starts to overlay - - -

HAYNE J: There is value judgment in there.

MR DONAGHUE: A value judgment which makes it difficult to see how as a matter of fact, objective fact, the conclusion can be proved one way or the other.

CRENNAN J: Is not the predicate that persons have the capacity sometimes described as a will to control sexual instincts? It does not seem, I am bound to say, all that different although the language is obviously the language of a different decade, but if you take what needed to be required in Fardon it was an unacceptable risk that the prisoner will commit a serious sexual offence. That was found to be sufficiently precise to engage an exercise of judicial power and in a sense this locution is meant to cover the same idea, is it not?

MR DONAGHUE: It is possible that it is meant to, your Honour, but the difficulty is that it really does not in the way that the tests have been described, because there is nothing about this regime, at least in its express terms, that requires either the medical practitioners or the court to engage in a predictive task of any kind. The question is not, “Is this offender going to, whether probably or likely to, commit an offence?” and then if it were to be that question, an offence of a serious kind or any offence of a sexual kind. Those are the kinds of thresholds that one usually finds in modern legislation. Here, you are asking just a present question about persons’ capacities to control themselves.

CRENNAN J: The question appeared to be meaningful to the four psychiatrists in 1984, though.

MR DONAGHUE: Your Honour, can I take that up because it is – and again, I do not want to drag your Honours too much into the facts – but, in fact, one of the psychiatrists who examined Mr Radan started by saying he thought he did have a capacity to exercise proper control, and the judge effectively said no, it all depends on what you mean by “proper”, which is really a matter for me, and effectively cross-examined the expert into expressing an opinion that there was an absence of capacity to exercise proper control, which is part of why we submit that the thresholds that this Act creates are not of a workable kind.

HAYNE J: That brings to the fore the critical point in the argument. Saying that this is hard to construe is interesting but irrelevant. It is going to be given a construction. What is the construction that you urge which you say leads to the conclusion of invalidity? Simply saying “gee, this is hard” does not get us anywhere.

MR DONAGHUE: Your Honour, I accept that. This is a problem that has come up in various regimes of this kind, including the Moffatt regime that your Honour examined in the Victorian courts. I accept that just saying it is hard does not get me anywhere. What I am seeking to do is to demonstrate this point, that the criteria that empower the court to make this order are criteria that depart a very long way from the criteria that have previously been accepted in cases like Fardon, which involve, while not depending on a finding of guilt, a prediction to a high level of certainty that there is a high risk that the person will commit a serious offence.

KIEFEL J: Is that not exactly the question that is being posed for the court under subsection (3)(a), that is, that there is an extremely high level of risk that this person will reoffend in an offence of a sexual nature? It is just in terms of language that is to be answered by reference to whether or not the person is able to exercise control. That might be the language of another day, as Justice Crennan has pointed out, but the question for the court is really the same, is it not? It is a question that the courts have been in this area concerned with for a very long time, the likelihood of reoffence.

MR DONAGHUE: We submit it is different in a couple of ways, your Honour. One, it is different because it is asking a question at the present day as opposed to at the point when the risk of offending may arise. In the case of some of these offenders, that is a very real difference, because in Mr Pollentine’s case, for example, one would expect his offences would have resulted had there been a nominal sentence fixed in a lengthy nominal sentence.

KIEFEL J: Yes, but you cannot read this alone – this is in subsection (3)(a), and that predictive element for the purpose of the judge’s order is in a regime in which it is expected that there is going to be an examination every three months.

MR DONAGHUE: Yes, there is an examination every three months by one person who may or may not be a psychiatrist, which may or may not ever lead to a consideration of release but, if I can come back to that point, our point is that whether or not the future medical practitioners think that there is a risk, at the time of the making of this order there is no forward looking inquiry, there is just an inquiry as to now - - -

HAYNE J: Why not? Why is there nothing forward about asking about incapacity? Why is that not predicting what – not, has he in the past been incapable, but is he now incapable, that is, tomorrow, what is he going to do?

MR DONAGHUE: Well, perhaps tomorrow – today, tomorrow – he is present in capacity, but as Parliament acknowledged in subsection (4), that may change, because at least some people who are incapable will be treated, will be able to be treated in prison and so the conclusion that we reach now may say nothing about the risk of reoffending at the time that release would otherwise be possible.

FRENCH CJ: Do you accept that there may be, consistent with a finding that the matters reported on are proved for the purpose of subsection (3), different levels of risk which may inform the judge’s discretion on whether or not to make an order?

MR DONAGHUE: Yes, I do accept that, but there would also, we submit, be a very wide range of possible offences, even if one says that there is a correlation between – I will start that again. There is not a perfect correlation between incapacity to control sexual instincts and propensity to commit a criminal offence because it depends whether the sexual instincts are sexual instincts of a kind that would prompt someone to engage in activities of a kind that are unlawful.

But, even assuming that they are, for the purpose of this offence – say, for example, a person’s sexual instincts predispose them towards exhibitionism, that might be unlawful, they might be committing offences, but not offences of a kind that pose the level of danger to society of the kind that Parliament, certainly in the Fardon-type regime that the Court emphasised, not only is there a high risk of the offence occurring but it is a serious offence if it does. This regime does not ask that question. It does not require the practitioners or the judge to ask that question.

BELL J: Does not this regime ask that very question by providing a mechanism for a magistrate dealing with a summary offence to refer the matter to the Supreme Court for consideration of the making of orders of this kind so that if a person has an inability to control exhibitionism and that person has been convicted before a magistrate of exposing themselves in circumstances where the facts disclose a child was present, under this regime, under 18(1)(b), they might be the subject of a referral, might they not?

MR DONAGHUE: They might. They might then be the subject of an order.

BELL J: Yes.

MR DONAGHUE: They might then be detained for 30 years.

BELL J: Exactly, yes.

MR DONAGHUE: Because they are incapable of controlling that instinct. I entirely accept the regime could operate in that way. Our point is that a regime that operates in that way is a regime that is of an entirely different kind from the regimes that have been upheld which focus upon whether a person represents an unacceptable risk of committing a serious offence. That has been what Parliament has required as a precondition or a threshold for preventive detention because – and I will develop this at the last part of our argument – this Court has long acknowledged that the detention of a citizen in custody is ordinarily permissible only as an adjunct to a finding of criminal guilt. An indefinite detention not proportionate to the offence that has been committed cannot, in our submission, be characterised in that way.

So, while Fardon accepts that there is an area beyond punishment for the commission of a crime it is an area that, in our submission, is narrowly conscribed and this regime does not contain the narrow conscription necessary to keep the regime within the validity.

HAYNE J: Let me just understand the precise content of that proposition. Take the exhibitionist case that has been discussed. Either the Act would permit the making of an order in such a case or it would not, that is, on its true construction the Act would make that disposition either available or not available according to the construction.

MR DONAGHUE: Yes.

HAYNE J: If on its true construction the Act provides that that is an available disposition, why it is beyond power of a State Parliament to provide that persons medically assessed to have this characteristic shall be detained indefinitely? That may be a question about which there might be a real and lively debate about the sensibility of the policy and the like but why is it outside power?

MR DONAGHUE: To provide that the court might be involved in their indefinite detention.

HAYNE J: Just so that persons medically assessed to be incapable of controlling exhibitionist tendencies shall be detained indefinitely. As a question of policy, one may be repelled by it.

MR DONAGHUE: I appreciate the distinction, your Honour, and really this first part of my submissions is designed to do two things. One is to establish, as a matter of construction, that the Act can operate in the way that your Honour just put to me because that is the foundation for our constitutional challenge. The other part of the construction submissions that I have not put yet is to show the disconnect between that conclusion that the Court might reach based on the medical opinions that the person presents a risk of offending in a sexual way and the proposition that at the back end of that process, where the Governor in Council comes to consider whether or not a person should be released, they do not have to ask that question at all.

So that even if the person is clearly not any longer incapable of controlling his or her sexual tendencies the regime would permit the Governor in Council to leave the person detained and if they do leave them detained to say, correctly, the legal source of authority for that detention is the order of the court. So the order of the court gives cover to a decision that is in fact not based upon the factual circumstances that caused the court to put the person in detention in the first place. That is a Mistretta-type argument that, in effect, says that the court order becomes a factum upon which this unconstrained executive power of detention is able to be exercised.

KIEFEL J: May I interrupt you with a structural inquiry about the argument? I know we are not concerned so much with the remedy here because it is an answer to a question that is sought, but the focus in the plaintiff’s argument is so much upon the order made and testing invalidity of section 18 by reference to the order and its effects and the position of the court in making it. It raises the question, does it not, whether or not we – the Court is to approach the question of invalidity by reference to section 18 frozen in time at the point that the order is made which may have been relevant to the question of the validity of the order of the court and whether or not it should have been overturned or should we now look at section 18 in the wider scheme which involves Part 3A and assess section 18 for invalidity today.

Now, normally the answer to that question would be found in whether or not there was an appeal from the original order of the court which, we know, is not before this Court or there would have been some challenge to a process which could have occurred under this legislation such as a demand for the examinations which have not been had combined with an application for parole and judicial review. That would have told us which territory we are in but it just seems to me a rather abstract notion that we are asked to construe section 18 for invalidity just by reference to the making of the order and there seems to be a denial of the context in which section 18 is now placed.

MR DONAGHUE: Your Honour, the reason that we have done that is that if section 18 was invalid in 1984 then there is no order that is capable of having - - -

KIEFEL J: That is exactly my point. The question for us is not the validity of the order. We would be expressing an opinion as to – or making a declaration, effectively, answering a question as to the validity of section 18 today. So when you talk about indefinite detention of the Executive, indefinite detention – we have got section – we have got the Executive not being permitted under one aspect of section 18 to permit his release except on certain conditions. We also have the order now and his detention being part of a parole regime which must be read together.

MR DONAGHUE: Certainly, if the matter before your Honours was framed more by way of judicial review and looking at some of those matters then one would expect that you would look at the Act as it applies to him now, but we submit that the only source of current legal authority for the detention of either plaintiff is the Act that occurred 30 years ago. It is not anything that has happened since because all that has happened since is people have refused to release both plaintiffs. There has been a failure to exercise any power but the only affirmative thing that ever happened that provided the legal source of authority to detain is the thing that happened back in 1984.

KIEFEL J: But a critical element of your argument has to be that the Executive may, as a result of the order, then and now indefinitely detain on this particular condition and it is just not true any more because of the change in the regime.

MR DONAGHUE: Well, we submit it is still true because there is still (5)(b). It is still part of the legislative regime which is the provision that permits - - -

KIEFEL J: But do you not have to deal with that read with Part 3A now and it being a later provision and it being detention of a person now being expressly subject to the regime of parole.

MR DONAGHUE: Well, there is now a capacity – as we understand the regime, there was, as enacted, a capacity to release people or not by the Executive without any capacity to superimpose conditions or other - - -

KIEFEL J: I am sorry, I should be more specific. Section 18B, at least at the starting point, says that a person detained:

instead of being detained at Her Majesty’s pleasure, the detainee were a prisoner serving a term of life imprisonment –

for the purpose of the Corrective Services Act.

MR DONAGHUE: Yes, there is a statutory deeming. So the person is still detained at Her Majesty’s pleasure but for the purposes of the parole provisions one can assume or treat the person as if they were a person who was serving a life sentence.

HAYNE J: In which event if the parole provisions are engaged they are at liberty and serving that sentence at large in the community. They are still subject to sentence.

MR DONAGHUE: They are still subject to sentence.

HAYNE J: Your complaint I think has to be that in the nature of – let us leave aside whether this is sentence or order or what it is, but that they are still subject to order at the discretion of the Executive I think is the way you have to frame it.

MR DONAGHUE: Yes, that is right. That is correct, your Honour, and they are still - - -

HAYNE J: The bare fact of release is never determinative of whether the sentence has come to an end. Lifers are always subject to sentence.

MR DONAGHUE: Lifers are, but people who are detained at Her Majesty’s pleasure are not, and that is part of the point with our delegation argument is that this sentence ends when the Executive says that it ends. In Mr Pollentine’s case, notwithstanding the very serious offences that he committed, no court ever said this is the punishment that you should serve for those offences. If the Executive had chosen to release him within a shorter period of time, then that would have been proper because the decision was left entirely in their hands.

So that is the distinction we draw between lifers, but I embrace what your Honour says as to our approach to the parole regime. But we also do submit that it would analytically be – it is difficult to see analytically how the enactment of that parole regime a long time after both plaintiffs had been detained by force of the order under section 18, could mean that an order that would have been invalid for that period of time somehow became valid because the regime became less objectionable than it had been prior to the grafting on of that parole provision.

So that is why we have focused back in time because ultimately from the perspective of both plaintiffs they say that the regime is invalid but that matters to them because it would inevitably have the consequence that the orders are invalid.

FRENCH CJ: Just in terms of the interaction between Part 3A and Part 3, does 18H have the effect of if and when released upon parole under Part 3A, the possibility of unconditional release is extinguished?

MR DONAGHUE: That seems to be so, your Honour, yes, because the possibility of unconditional release arises only from 18(5)(b).

FRENCH CJ: They are then taken out of any release regime under Part 3.

MR DONAGHUE: Yes, so you become effectively therefore, perhaps equivalent to, for all purposes, a person who was serving a life sentence, which is what you have been deemed to be by the earlier provision.

FRENCH CJ: Presumably, parole can be cancelled. What happens then?

HAYNE J: A come hither is issued, is it not, and you are returned to custody, as would be the case with cancellation of any parole.

MR DONAGHUE: Perhaps, then, not being a person who would - - -

FRENCH CJ: Well, that is the question. Does Part 3 then re-engage?

MR DONAGHUE: Does Part 3 then – yes.

HAYNE J: Now, you speak of the orders under which these men are detained. The orders in respect of one of them are the orders of a District Court, are they not?

MR DONAGHUE: Both, your Honour.

HAYNE J: Both?

MR DONAGHUE: Yes.

HAYNE J: One went on appeal to the CCA, which - - -

MR DONAGHUE: Left it there, your - - -

HAYNE J: - - -well, allowed the appeal, did it. Is it its order which is the warrant, or is it the warrant of the District Court judge?

MR DONAGHUE: I think, your Honour, that what the Court of Appeal said was that it was not disturbing what had been done by the District Court judge and this is why I said before that one might doubt the appropriateness of that, having regard to what this Court said about how that exercise should be undertaken. But, as we understand it, it is, in both cases, the order of the District Court judge.

CRENNAN J: It was varied, I think, on appeal.

MR DONAGHUE: Well, the sentence was varied on appeal but the – it was, yes, varied so that it commenced - your Honour is quite right. It was varied so that it commenced after the three year sentence instead of after the 12 year.

HAYNE J: Which rather makes it the Supreme Court’s order, does it not?

MR DONAGHUE: Yes, that might be so, your Honour.

HAYNE J: That then runs into the difficulties of orders of the court of record, superior court of record.

MR DONAGHUE: Valid, until set aside, but would be set aside, we submit, if made pursuant to a statute that was not valid.

GAGELER J: In these proceedings?

MR DONAGHUE: No. Well, not as these proceedings are presently framed.

GAGELER J: These proceedings are a collateral challenge to the orders in one case of the District Court, and in the other case of the Court of Criminal Appeal, are they not?

MR DONAGHUE: Yes. The relief that is sought includes, in paragraphs 4 and 5, relief setting aside those orders. But it is an unusual kind of collateral challenge, your Honour, in the sense that the consequence, we submit, would inevitably follow in the event that the constitutional proposition is correct.

GAGELER J: There was after Kable (No 1) a Kable (No 2) where that consequence did not follow. The inevitability of the consequence is not beyond argument, Mr Donaghue.

MR DONAGHUE: No.

GAGELER J: While I have you interrupted, do we read question 1, page 22 of the special case book, which is cast in the present tense as really a question directed to the position in 1984, of your argument?

MR DONAGHUE: In our submission, yes. I had not understood that to - - -

HAYNE J: It is now because it was then. It is now invalid because it was then.

MR DONAGHUE: Yes, it has always been invalid, in our submission. It was invalid from the moment it was enacted. Bits that have been sought to be grafted onto it have not been successfully grafted onto it. Your Honours, can I briefly make – I do not want to dwell too much longer on the statutory construction issues, but there are a number of other points I do need to make. First, with respect to the question of discretion, your Honours have asked me do we accept that there is a discretion here, and we do. In the event that the jurisdictional facts, whatever precisely they might be found to be as a matter of construction, exist, then the court is given a discretionary power to order detention at Her Majesty’s pleasure. We submit that the decisions of this Court in Chester v The Queen and Buckley v The Queen provide useful guidance as to the limits on that discretion. In both cases, they indicate that the discretion put properly and lawfully be exercised only in an exceptional case.

Can I take your Honours briefly to both of those cases - Chester v The Queen [1988] HCA 62; (1988) 165 CLR 611. Your Honours can see the terms of the provision that was in issue set out in the middle of page 616 of the report; section 662 of the Criminal Code (WA). It is a provision that did not in its terms fetter the circumstances in which an order could permissibly be made to an exceptional or extreme case, just as section 18(3)(a) does not contain such a restriction. There was under that regime a requirement for, as is referred to in the middle of page 617, a requirement for the parole board to furnish written reports every year to the Minister. Then looking at 618 in the joint judgment of five members of the Court, there is a reference from the top of the first full paragraph at about point 2 to the foundations for the argument that had been advanced that this was a section designed to protect the public. Then about seven or eight lines into that paragraph, the Court says:

However, these elements are a slender foundation for the proposition that the court should exercise the power to direct detention of a person who has a propensity to commit serious crimes not amounting to crimes of violence. After all it is now firmly established that our common law does not sanction preventive detention. The fundamental principle of proportionality does not permit the increase of a sentence of imprisonment beyond what is proportional to the crime merely for the purpose of extending the protection of society from the recidivism –

citing Veen and Veen [No 2] –

In the light of this background of settled fundamental legal principle, the power to direct or sentence to detention contained in s. 662 should be confined to very exceptional cases where the exercise of the power is demonstrably necessary to protect society from physical harm. The extension of a sentence of imprisonment which would violate the principle of proportionality can scarcely be justified on the ground that it is necessary to protect society from crime which is serious but non-violent.

So the Court is, in our submission, construing apparently broad power, in some respects analogous to section 18, as properly applying only in respect of the exceptional or very serious case by reason of the fundamental principles of the common law concerning preventive detention and proportionality in sentencing, and one of the things that this regime does in its - certainly one can go two ways in terms of where that leads us – it might either suggest if that limit is properly to be read into the section, then the section is much narrower than it appears to be and might suggest further error made in respect of the orders that were made in these individual cases.

FRENCH CJ: That goes to the orders.

MR DONAGHUE: That would go to the orders.

FRENCH CJ: It does not go to the constitutional question.

MR DONAGHUE: No. Indeed, but one needs to know what the width of the power is in order to answer the constitutional question and our submission is that one applying this line of reasoning should reach the conclusion that there are implied limits in the ambit of the power.

CRENNAN J: The trouble is it is a line of reason which may not be apposite when one is speaking about offences involving the sodomy of children.

MR DONAGHUE: Your Honour, it is a line of a reasoning that has, in our submission, been deployed in cases of that kind, which is not to say that - and I am thinking in particular of Buckley, which is the next case I was going to go to which is a sexual offence case - - -

BELL J: But the particular matter that the Court was concerned with in Chester was a very broad provision relating to any conviction on indictable offence, taking into account the antecedent’s character, age, health and mental condition of the offender and the Court was drawing a distinction, one might think, between a conviction for larceny and a conviction for an offence of violence. Perhaps sexual offences fall into another category.

There are two difficulties. This legislation is directed to sexual offences, and as for the suggestion reserved only to very exceptional cases in terms of offending, one has to face 18B in the circumstance that the legislature drew the line as the necessary factum, conviction for an offence of a summary kind.

MR DONAGHUE: Well, as the factum to engage the existence of the power.

BELL J: To engage the power, yes.

MR DONAGHUE: But the question then, we submit, is in what circumstances is the discretion then properly to be exercised.

BELL J: I understand that, but one might think that any offence of a summary nature is of a character that is difficult - - -

MR DONAGHUE: Would not pass the test.

BELL J: - - - to fit into the category that you speak of. That is the point.

MR DONAGHUE: If it is thought that the sexual instincts that are unable to be controlled are limited to the offences that caused the summary conviction in the first place, though, in our submission, the legislation does not tie one in forming an assessment of sexual instincts, just to the events that caused the conviction that then engages the power.

Your Honours in Buckley [2006] HCA 7; (2006) 80 ALJR 605 applied the Chester reasoning in the context of a legislative regime that did deal with sex offenders and, in our submission - and I am referring particularly to paragraph [6] where, in the judgment of the Court, a few lines in, their Honours acknowledged that this is a case where:

On any view of the matter the appellant was facing a long sentence -

as a result of the seriousness of the criminality in which he had engaged, but said:

Even so, it is important to bear in mind what was said in Chester and McGarry about the imposition of an indefinite sentence. Such a sentence involves a departure from the fundamental principle of proportionality. The statute assumes that there may be cases in which such a departure is justified by the need to protect society against serious physical harm; but a judge who takes that step must act upon cogent evidence, with a clear appreciation of the exceptional nature of the course that is being taken.

FRENCH CJ: Can I just go back for a moment to 1.5 in your outline, on the assumption that the Court has to:

be satisfied of the offender’s “incapacity to exercise proper control –

and you say -

Even assuming that to be so, the Court plainly is not required to be satisfied as to any particular level of risk of further offending, or that any particular level of harm will occur –

You accept nevertheless, I think, as you did in answer to an earlier question I put to you, that those matters would inform the discretion of the Court as to whether to make an order?

MR DONAGHUE: Yes.

FRENCH CJ: And they would no doubt be – well, would they be matters of a mandatory, relevant character?

MR DONAGHUE: Matters such as the seriousness of the offending?

FRENCH CJ: The seriousness with the incapacity of the level of risk associated with it.

MR DONAGHUE: Yes, we would think so, your Honour. So in 1.5 we are making a point about the jurisdictional fact or the threshold - - -

FRENCH CJ: I understand that - - -

MR DONAGHUE: - - - but 1.7, I accept, it would come – well, my submission at the moment is that Chester and Buckley would suggest that there are, or there should be, as a matter of construction, limits read in, but they are not limits that are apparent on the face of the legislation, and as Justice Bell puts to me, there might be some contra indicators, at least insofar as the summary limb suggests that these orders can be made against – with respect to much lower level of offending conduct.

GAGELER J: Mr Donaghue, it is a very long time since Chester.

MR DONAGHUE: Yes.

GAGELER J: Has Chester been argued to apply to this provision since then?

MR DONAGHUE: Well, not to this particular provision, but in Buckley in 2006 and in Yates in, I think, 2012, your Honours treated Chester as an accurate statement of the relevant approach.

HAYNE J: I think also in some of the other indefinite sentencing cases we may have referred to Chester, I am not sure, but I know that the Court had a run of indefinite sentencing cases, I think principally coming out of Western Australia.

MR DONAGHUE: Yes, at the very least there is McGarry, there is Yates, there is Buckley, there is Strong – there are a line of cases in which, as far as I am aware, there is no doubts being cast upon the very strong statements that the Court has made about the truly exceptional nature of an indefinite detention sentence. Partly – we endorse that, and we rely upon it as part of our constitutional argument, at which I have almost arrived.

Can I just, finally, address your Honours in respect of the meaning of 18(5)(b), which is the release criteria, because if the Court is satisfied that a person is incapable of exercising proper control over his sexual instincts and makes the order for detention at Her Majesty’s pleasure, that order then continues to provide a lawful source of authority for detention until – well, it requires detention in an institution, an institution is defined in subsection (10) to mean a prison or a gaol, as defined in the Prisons Act, or any other institution claimed by the Governor in Council, and the relevant institution is selected under (5)(a) by the Governor in Council, not by the court.

So at the time a court makes an order under this provision, it cannot choose or direct that a person be detained in a mental institution or somewhere where they will receive treatment; there is the possibility, as eventuated in these cases, of detention as a prisoner in the general prison population. That then continues, subject to (5)(b), that the person:

Shall not be released until the Governor in Council is satisfied on the report of two legally qualified medical practitioners that it is expedient to release him.

That subsection, in our submission, makes it a precondition of release that there be the report of the two practitioners, but it does not require the release, even in the event that the practitioners unanimously formed the conclusion that release should occur.

There are a number of decisions – two decisions of the Queensland courts construing this provision in cases brought by Mr Pollentine that I will take your Honours to about how the Queensland courts construe this and unless your Honours were to indicate that those constructions are incorrect, the result is that this is a power – the expediency test is one of extreme width, such that the Executive may properly decline release for reasons that include anticipated public reaction to the release of the offender.

If that is correct as a matter of law, then the court’s order, based upon a judgment about perhaps if construed as your Honours have been putting to me, construed as a judgment about the person’s risk of reoffending, becomes irrelevant to how long the person or certainly not determinative to how long the person might remain detained, it being reasonable to expect that there is likely to be adverse public reaction to the release of a very great many people who might come to be subject to a regime of this kind.

Can I take your Honours quickly to three cases. First, Pollentine (No 1) [1995] 2 Qd R 412. This is a decision of Justice Thomas and it is a case where Mr Pollentine sought judicial review of a failure to release him on grounds that included denial of natural justice and he was successful in this proceeding. If your Honours start at 413, you will see in 413 there is some reference to history, the various treatment programs and other matters that the applicant had participated in within detention. Then at the bottom of 414, Justice Thomas says about line 49:

It may further be noted that the discretion reposed in the Governor in Council is a very wide one, limited only by the notion of expediency of release. The potential risk of further harm to innocent members of the community, particularly children, is not one that would be expected to be taken without a very high level of assurance that his particular person will not reoffend.

So instead of – it is the reverse of what operated in the Fardon-type regime. You needed a very high satisfaction that they would reoffend in order to keep someone detained under that regime. Here it is being said you would need the reverse, a very high level of satisfaction that they would not:

When one considers that the basis of the guarded expert opinion –

I can pass over that sentence –

In turn the fear of risk to the community may be raised, and the decision-maker may be justified in holding that it is not yet expedient to release him, notwithstanding relatively favourable medical reports.

Then later down that page at line 40 under the heading “Procedural Fairness”, Justice Thomas makes some, we submit, accurate criticisms of this legislative regime in that he identifies that under this regime it is very hard to see how one even engages the power for the Governor in Council to consider releases:

It is very difficult to deduce from the legislation just how the occasion is expected to arise when the Governor in Council will give consideration to the question of release.

There is a reference to what one might expect to happen in a practical sense but his Honour points out that the three monthly reviews, which is by one doctor, themselves are incapable of satisfying the requirement that there be two reports so there has to be some mechanism of getting a second report. Even when the reports are produced, there is not any requirement that they be given to the Governor in Council or that the matter be brought to the attention of the Governor in Council. So at the end of that page:

There is simply no prescribed system or machinery which will cause two reports to be produced or which will automatically transmit them to the Government in Council when the question of release ought fairly to be considered.

Then at line 13:

It is plain however that s. 18 is seriously defective in regard to any procedure through which this important decision-making power is to be accessed, and that s. 46A –

is a power to impose conditions -

In the absence of any prescribed procedure, and for that matter of any limitation upon an applicant’s participation in such a procedure, it is difficult to envisage the means by which the Governor in Council is to be called upon to exercise the power. How often and on what occasions? Is it envisaged that it must consider the three-monthly reports under s. 18(8)? If so, how it is to be ensured that there will be reports from two medical practitioners -

et cetera. We rely upon that. So there are evident difficulties in this regime about how one even engages the power and when the power is engaged, as Justice Thomas says on 412 at line 29, one has engaged a power that he describes as:

the extreme breadth of the ultimate question (expediency of release) it can be seen as a process far removed from conventional adversarial notions.

So the Court is implicated in this not by itself applying that criteria, but by being the factum upon which the rest of the regime turns and turns in a way that means that the Executive is permitted lawfully to leave a person detained – whether or not they represent an ongoing risk, whether or not they are still incapable of controlling their sexual tendencies – but simply because a decision is made that it is not expedient to release. The width of the power was also addressed by the Court of Appeal of Queensland in - - -

KEANE J: Just before you go on, at page 416 at line 30, his Honour says:

Despite these weighty practical considerations, I am constrained by authority to hold –

and then he goes on and over the page, 417, at line 35 he says:

On this basis I would consider that a request from a prisoner, particularly when evidence exists to justify consideration of the question of release, places the Attorney-General and Minister for Justice under the duty of bringing it to the Governor in Council. In such an event, procedural fairness would demand -

et cetera. Do you accept the correctness - - -

MR DONAGHUE: Yes. His Honour found a breach of procedural fairness in this case and it was sent back which led to the process that led to the next case, but I do accept that that is so. One can contrast a regime where on an application by a prisoner – possibly needing to be enforced by mandamus if there is no other – if the matter is not referred and the second medical report is not generated – the question of expediency can be raised with the statutory regime with which your Honours will be familiar in most equivalent contexts where the statute actually says, the court must look at this question every year or every two years and must, itself, address its mind to usually exactly the same criteria as led to detention in the first place and must decide whether those criteria are still satisfied so as to authorise the ongoing preventive detention. This regime is far removed from that.

Your Honours, Pollentine (No 2) [1998] 1 Qd R 82 is the decision of the Court of Appeal of Queensland. Your Honours might note that at the start of the judgment of President Fitzgerald on page 88 of the report at line 40, the Attorney-General for Queensland at that time accepted that had Mr Pollentine:

been sentenced to a specified term of imprisonment, the likely period has now elapsed.

So that is back in December 1996. The Attorney-General of Queensland accepted that the punitive period of the sentence that might have been imposed would have been over, so we are clearly well beyond that now and for a long period of time the only basis for detention must have been the protected one.

Now, at page 89, your Honours might just note at line 10 a reference in the reasons that were made there for refusing release. There is a reference to the fact that one of the experts had said that “the likelihood of persons such as Mr Pollentine re-offending” was “15% even after” treatment and on medication. It is that risk that seems to have been treated as sufficient to justify the ongoing detention of Mr Pollentine. So, if your Honours then turn to page 91 at the bottom of the page, line 49:

Expediency is materially related not to the decision-maker’s or advice-giver’s personal or party political interests but to the public interest, material aspects of which can be seen in the Preamble and Governing Principles stated in the Penalties and Sentences Act 1992. In my opinion, when a decision is made under s. 18(5)(b) . . . and, where appropriate, s. 46A . . . it is necessary to take into account not only the applicant’s claim to liberty, whether conditional or unconditional, but also factors which bear upon community safety –

The top part of that passage down to around line 10 or even 15 bears on matters that we submit are unobjectionable as matters that are able to be taken into account in exercising the power to consider release. But then from line 15 there is a reference to:

The Attorney-General submitted that it is also permissible to take into account likely, or perhaps even possible, community reaction –

and the President said:

consideration of community reaction could only be legitimate to the extent that anticipated adverse community reaction was seen to have a rational basis; for example, justifiable community concern at the risk presented by the release of an offender or if the release might reasonably diminish public confidence in the criminal justice system.

They are, we respectfully submit, extremely diffuse criteria and criteria that a serious sex offender is likely to find it extremely difficult - - -

HAYNE J: Is not the President to be understood as disfavouring the Attorney’s submission and rejecting it?

MR DONAGHUE: We think not. Perhaps confining it somewhat, your Honours, but the point that is – the third case that I was going to take your Honours to is South Australia v O’Shea [1987] HCA 39; (1987) 163 CLR 378 in this Court where the Court appeared to accept in respect of what might be thought – and this is a case on the South Australian equivalent but very closely analogous provision, the relevant terms of which your Honours can see set out on page 384.

The case concerns 77a of the Criminal Law Consolidation Act and if your Honours look back on 383 near the bottom of the page you will see this was a power where the person was declared to be incapable of exercising proper control of sexual instinct, so the same test. But the release power was somewhat different at the top of 384:

(b) shall not be released unless –

(i) The Governor is satisfied, on the recommendation of the Parole Board, that he is fit to be at liberty –

So we submit that if anything the “fit to be at liberty” test would direct one more to the question of risk than a general question about expediency. But Chief Justice Mason, Justices Wilson and Toohey and Justice Brennan all appear to accept that one could properly have regard to political-type considerations in deciding whether or not to release under that section. So in Chief Justice Mason’s case at 388 there is from the second paragraph down a discussion of this point. From halfway through that paragraph around point 4 on 388 the Solicitor-General for South Australia submitted that:

the assessment of what is in the public interest involves an element of policy or political judgment. Indeed, he goes further and says that in making this judgment members of Cabinet would be influenced by their assessment of the possibility of an adverse public reaction to the offender’s release. According to the argument, these are matters of political judgment on which the offender is not entitled to be heard.

HAYNE J: Well, the next sentence is quite important, is it not?

MR DONAGHUE: It was not submitted that it stood outside, yes, indeed. What the Chief Justice does is he is prepared there to proceed on the assumption that the submission was correct. He does not actually decide that the submission was correct. But as we read Justices Wilson and Toohey at 402, their Honours from just under the quotation near the top of the page treat the powers as:

an expression of an unfettered discretion as to what the public interest requires –

in particular cases. They refer to there being procedural fairness, and then –

But beyond that he is in the hands of the Government, which must accept political responsibility for his release.

Now, the issue in this case is obviously different. The question was one about procedural fairness and the case is authority for the proposition that procedural fairness at the stage of the parole board meant that there was no requirement for procedural fairness at a later stage, but insofar as their Honours address the regime, and Justice Brennan did so at the bottom of page 410 and discussed the matter in terms that again appear to suggest that political considerations are able properly to be taken into account in the exercise of this power, and that being so, the task of an offender in policing the boundaries of the lawful exercise of that discretion is an extremely difficult one.

It is able to be done in a procedural fairness case, as Justice Thomas’ decision demonstrated, but otherwise the concatenation of circumstances involved in a power where there is no requirement to give reasons, there is what we submit is a vague test about proper capacity, there is a likely inability to secure by reason of public interest immunity, at least to the extent that Cabinet is involved in recommendations to the Executive Council as to how the order is to be exercised, there is a very real extent to which a person who is detained by reason of an order of the court is thereafter unable to ensure that they are released by reference to appropriate considerations.

FRENCH CJ: So is your constitutional objection directed not so much to the fact that it is the Executive which determines the date of release as to the mechanism by which that is done? Would your argument be the same if there were the interpolation of a requirement for an annual parole board review and recommendation to the Governor?

MR DONAGHUE: Our constitutional attack wears a number of different dimensions. On one aspect of our argument, if the release criteria and the release process was different then our argument would not arise because we submit that on that branch of the argument it is the difference between the wide political discretion reposed in the Executive and the function of the court in ordering detention that causes the constitutional objection. So if the parole board were involved in making a recommendation by reference to the same criteria, capacity to control sexual instincts, and that was then the criteria to be applied in deciding release, then that objection would fall away.

I have, your Honours, at last, arrived at the constitutional part of the argument, and, having dealt in detail with the Act I can deal with it reasonably quickly, I think. We accept, of course, that there is a considerable history in this country of State regimes providing for orders for preventive detention and that some of those regimes even provide for indefinite detention, although most of those have long since been repealed.

Insofar as those regimes are of any help to your Honours, and our friends rely on many of them, we do note that for most of the period within which such regimes have operated this Court had not yet identified that Chapter III imposed any constraints at all upon what a State Parliament could properly do by way of the conferring of functions or powers upon its State Supreme Courts and it was not until that was recognised in Kable that there was any lens or yardstick against which one could have raised a question of the assessment of the validity of these regimes, and it should not, we submit, be assumed automatically that because nothing was said adverse to validity, there could have been no question as to the validity of those regimes.

KEANE J: Well, it is, perhaps cautionary, when one looks at O’Shea, that the judges who decided O’Shea, who also decided Kable, did not detect any problem with the validity of the legislation they were looking at.

MR DONAGHUE: To an extent, we accept that, your Honour, but there are – Kable, I think it is fair to say, came as a surprise to the legal profession at the time that it was decided and it looked with a new lens or new light upon the provisions and identified, as the cases since then have demonstrated, a mode of analysis that just had not previously been applied to State structures.

Since Kable, as far as we are aware, there has only been one case where a regime of this kind has been challenged on Kable-type grounds, and that was Moffatt in the Supreme Court of Victoria, where the challenge failed, but it failed with respect to – sorry, one case, I am told that was also made in South Australia and England, so there have been two decisions.

In Moffatt’s case, the regime that was upheld was a regime that provided for indefinite sentences, but also provided for the court to be involved in regular scrutiny – or, sorry, regular review of those sentences by reference to the same criteria of risk and, indeed, that was the basis for the Kable complaint that was made – it was said the court should not have been involved in that ongoing scrutiny. So, we submit that from the perspective of authority there is little to guide the Court.

The argument for invalidity, in our submission, starts from the fundamental proposition recognised by the Court in Lim, and regularly endorsed by this Court since, which is helpfully set out in Fardon [2004] HCA 46; 223 CLR 575 in Justice Gummow’s judgment. If your Honours could go to that and then to page 611 of the report you will see at paragraph 77 that Justice Gummow refers to a proposition drawn from Chu Kheng Lim and that the proposition is that:

“the involuntary detention of a citizen in custody by the State is penal or punitive in character and, under our system of government, exists only as an incident of the exclusively judicial function of adjudging and punishing criminal guilt.”

That proposition has a number of things tied up within it. One concerns the organ of government that can properly be involved in the imposition of detention, that is the courts as opposed to the Executive, but it goes further than that. Not only may only the courts be involved in that kind of function, subject to the exceptions recognised in Lim, but even courts can detain only in limited circumstances, that is, as an incident of the function of judge in punishing criminal guilt. As Justice Gummow points out just under the quotation, that passage was a step in the reasoning in Kable and it was also foundational to the reasons of Justice Gummow with which your Honour Justice Hayne agreed, save insofar as it expressed opinions about whether the Commonwealth could have enacted a regime of the relevant kind.

The point that we make arising from Lim, and we make it by reference to the passages in Buckley and Chester that I have already mentioned, is that insofar as an indefinite sentence is imposed, it is a sentence that departs from the fundamental principle of proportionality in sentencing, and that is why it was said in Chester and Buckley to be an exceptional order and that is important because being disproportionate to the offence that is being punished or to the offence that has been committed it is no longer possible, in our submission, to accurately describe an order for indefinite detention as an order for the punishment of a criminal offence. It goes beyond that by definition because to the extent that it exceeds what would otherwise be proportionate, there is an element – a protective element to the order that is unable to be explained by reference to the criminality that has occurred.

HAYNE J: Well, that all depends upon a series of binary distinctions, does it not, which are ironclad and binary distinctions of a kind that may not be possible when it comes to, for example, the general question of imposing sentence? There are many factors at play in determining sentence.

MR DONAGHUE: I accept that, your Honour - - -

HAYNE J: Criminality is a large part, protection is another part, the two intersect.

MR DONAGHUE: I fully accept that, and deterrence is another part, and Veen identifies that there are all of those components properly part of the sentencing exercise, but we submit that the point that is made in Chester and Buckley is accepting all of those things – and your Honours will recall Chester cites Veen – is that an indefinite sentence goes beyond what can properly be imposed by reference to ordinary sentencing principles, excepting that those ordinary sentencing principles will include a preventive function. One could not, in our submission, contemplate that a 30 year sentence could validly have been imposed upon either of the plaintiffs in this case by reference to - - -

FRENCH CJ: Mandatory sentence of that length for an offence of that character would be - - -

MR DONAGHUE: Well, sorry, no, I am not saying by Parliament, your Honour. I am saying by a court applying ordinary sentencing principles of the kind recognised in Veen. It could not - - -

FRENCH CJ: That is where the statute allows a discretion and it is a principle which informs the exercise of sentencing discretion.

MR DONAGHUE: Yes, but a mandatory sentence would raise a different set of questions, but - - -

HAYNE J: But statutorily your point is made by the reference to in addition to or in lieu of the sentence imposed. Once the Governor’s pleasure order is in addition to the sentence, presumably sentence properly determined, your point I suspect is that that of itself demonstrates that you have gone beyond the determination of sentence.

MR DONAGHUE: That is right. The function is not – and this is really my jumping off point for the three specific complaints we make – the function is not a function of the kind that Lim would recognise as a conventional thing that courts do. It is something different to that. It cannot be answered simply by reference to saying because it is done after an offence has been committed, your Honours should not be concerned, it is just a sentence. But the point in – and it is expressly put in this way, I think, in Buckley – an indefinite sentence is not just another sentencing option. It is something different and far more extreme and extraordinary than that.

From there, your Honours, we make three specific attacks. The first, and I think it is fair to say widest, attack is the delegation argument that I have already foreshadowed to your Honours. In support of that argument, can I take your Honours to the decision in Crump v New South Wales [2012] HCA 20; (2012) 247 CLR 1. Crump, your Honours will recall, was a case about changes to the parole regime that was said to be invalid because they had the effect of depriving someone of an entitlement to parole that they said that they would otherwise have had. To that extent, the case obviously is not directly on point, but if your Honours turn to page 21 in the plurality judgment of five members of the Court, at paragraph 41 there is a quotation from the earlier decision of this Court in Baker where the point is made, particularly in the second half of that passage, that:

in no sense (whether as a matter of substance or as a matter of form) can later legislation, altering the circumstances in which such mercy could or would be extended to a prisoner sentenced to life imprisonment, make that sentence of life imprisonment more punitive or burdensome –

then in paragraph 42 –

Under this system, and the present parole system, it could not be said, as it has been said of systems in other jurisdictions, that the sentence is determined not in the exercise of judicial power, but by the executive branch of government.

There is a footnote, (95), that takes one down to Browne v The Queen, the decision of the Privy Council on appeal from St Christopher and Nevis, where the Privy Council had held:

the selection of a sentence is an integral part of the administration of justice which cannot be committed to the executive and held invalid a law which required a court to impose a sentence of detention at the pleasure of the executive.

If I can take your Honours to Browne [2000] 1 AC 45, there your Honours will see – this was a case involving a defendant convicted of murder when he was 16 years old who was sentenced to be detained at the pleasure of the Governor-General, and the Privy Council was concerned with the validity of that sentence having regard to constitutional provisions in the Constitution; section 5 quoted in footnote 2 at the bottom of the first page:

A person shall not be deprived of his personal liberty save as may be authorised by law in any of the following cases . . . (b) in execution of the sentence or order of a court –

The argument was that in order for detention at the Governor’s pleasure was not an order of that character, because it was wholly delegating to the Executive the capacity to decide what the punishment should be for the offence that had been committed, and that argument was upheld and the relevant provision was held to be invalid.

GAGELER J: The section in that case was mandatory, of course. The requirement, I think it is at the top of page 47 of the section, was that:

the court shall sentence -

MR DONAGHUE: Shall sentence, yes, and that provision was invalid because it required the court to do something that the Constitution did not permit because it required a sentence to be imposed – well, it required punishment - the person to be deprived of their liberty, other than as a result of something done by the court.

GAGELER J: Is there a difference where the court has a discretion?

MR DONAGHUE: Well, in my submission, no, because the reasoning that led to the conclusion, your Honours will see from the bottom of page 47, where the Privy Councillor explaining the earlier holding in Venables Case, which was the case relating to the children who murdered James Bolger in the United Kingdom, and there the discussion, I am reading from about G, was that the question was whether a sentence of this kind:

was it a form of life sentence or was it a sentence for discretionary custody of such duration as should thereafter be decided? There was a division of opinion on this question . . . The view which prevailed was that it was not a life sentence but was a wholly discretionary sentence. Lord Browne-Wilkinson said [1997] UKHL 25; [1998] A.C. 407, 498:

“detention during Her Majesty’s pleasure is wholly indeterminate in duration: it lasts so long as Her Majesty (i.e. the Secretary of State) considers appropriate . . . [It is not] a sentence of the same kind as the mandatory life sentence imposed on an adult murderer, the duration of which is determined by the sentence of the court -

that is the life sentence -

and is for life. In cases of detention during Her Majesty’s pleasure the duty of the Secretary of State is to decide how long that detention is to last -

So the objection was not that the legislature had made it mandatory, it was that the court was delegating to the Executive the function of determining how much punishment there should be. Indeed, at about E on page 48, the point is made that:

the sentence is not one which is determined by the court but one which is determined by the Secretary of State or the Governor-General, including its punitive element.

So it is unlike a sentence that has a fixed punitive component and there can then be detention thereafter for protective purposes. The whole of the sentence, including its punishment, is delegated to be exercised by the Executive.

Your Honours might also note that in the recent decision of the Court in Attorney-General for the Northern Territory v Emmerson 88 ALJR at 522, having restated - and it is I think the Court’s most recent restatement of the Kable principle and another endorsement and this Court of the US Supreme Court’s remarks in Mistretta upon which we rely, that is at paragraph 40 and 41. If your Honours go to page 536 at [53], there is a reference to arguments evoking:

constitutional principles and common law values, rooted in British legal history, which preclude the arbitrary exercise of sovereign power -

and then in the second half of that paragraph -

Detention of a person in custody without just cause is also prohibited, which evokes the constitutional principle derived from Ch III of the Constitution stated in Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs and referred to in Kable: “adjudging and punishing criminal guilt” is an “exclusively judicial function”, not to be delegated to the Executive.

Now, obviously, that case did not involve a regime of this kind, but we submit that in Crump and in Baker there was an emphasis on the fact that the regimes there in question did not involve any such delegation. The decision in Browne squarely points to the proposition that a sentence of this kind, detention at the Governor’s pleasure, is to delegate the sentencing function to the Executive and Emmerson again recognises that such a delegation would not sit well with Lim.

All of that points, in our submission, to the proposition that to confer upon a court a function that contemplates, empowers that court to deal with a criminal case before it not by imposing a sentence such that it determines is appropriate, which is able to then be commuted by the Executive if it chooses, but to entirely outsource to the Executive the question of what punishment or what sentence should be imposed is to do something that departs so fundamentally from the core judicial function recognised in Lim as to impinge or undermine the institutional integrity of that court.

HAYNE J: Now, that submission depends upon treating the intermediate step of the necessity for finding of incapacity to control sexual instincts as irrelevant.

MR DONAGHUE: No, your Honour, in my submission, just as the court - - -

HAYNE J: Because that is no part of a sentencing exercise, is it?

MR DONAGHUE: The initial finding?

HAYNE J: The finding of incapacity to control sexual instincts, which is necessarily forward looking, is no necessary part of sentencing, is it?

MR DONAGHUE: I apologise, your Honour, I am struggling to keep up with that question. Is it in the context of this particular - - -

HAYNE J: Probably because the question is less than artfully formed, Mr Donaghue. It is not your fault. It seems to me that your submission that to confer a function which empowers that a person standing for sentence be sentenced in this way – “outsources punishment” - is one which treats as irrelevant to the proposition the statutory requirement that the court be satisfied that the person is incapable of controlling sexual instincts.

MR DONAGHUE: Your Honour, our submission, I think, on this limb of our case, would – does treat that as irrelevant in the same way as it would treat as irrelevant the fact that the court might have found that an offender has actually committed the offence. The fact that there has been a judicial function exercised at some prior point in time in our submission is not enough to save a regime that then says that the consequence that follows, rather than be determined by a court in the exercise of judicial power should be given to someone else. That is the point at which we identify the constitutional infirmity.

HAYNE J: To put the proposition that you now advance in different terms, but I think to no different effect, you say it is beyond the legislative power of a State to give a State court the power but not the obligation, in addition to or in lieu of imposing a determinate sentence, to dispose of a prisoner standing for sentence by ordering that because you, the prisoner, are now determined to be incapable, you must be detained beyond the sentence imposed until the Executive concludes that you are capable.

MR DONAGHUE: That is a long proposition, your Honour. I think it is in the same substance as the proposition that I have advanced. Now, that proposition is - as I say, we have three separate limbs to the constitutional attack. They are identified in 8.3, 8.4 - - -

KIEFEL J: Might I just interrupt you on that point? Is there not a distinction between the court having been satisfied of a fact which leads to detention indeterminately perhaps and the Executive being given the power to release? They are two distinct functions. It is the court that has determined the detention.

MR DONAGHUE: In our submission, the court has started the detention and it might finish tomorrow, it might finish in a week, it might finish in a month, it might never finish.

KIEFEL J: But the Court has effectively said that the person is not to be released. That is the effect of the order under the statute.

MR DONAGHUE: In our submission, the court has said it is not to be released until you, the Executive, think should by reference to effectively almost any criteria that we choose.

HAYNE J: That is the expedience argument. It may be that that has to be reined in.

KIEFEL J: That is a separate argument.

MR DONAGHUE: Indeed, but that is why I have spent the time on the constructional point because if that power has the width that O’Shea and that the two Queensland cases suggest - - -

KIEFEL J: Then we may be in different territory but if it is just limited to a narrow release on the basis of overcoming in the future the basis upon which detention had been provided for that is a bit narrower.

MR DONAGHUE: That is a – it is a different regime. That is really our second point, we say. If one could marry up the two as a matter of construction so that you read down the expediency power so that when the medical practitioners say this person is capable then that means the person should be released, then that would be, we submit, quite a different regime but if your Honours find that that is the proper construction then the second limb of our constitutional case would not bite but - - -

BELL J: On this present limb, does it follow that legislation of the habitual criminal’s character is invalid?

MR DONAGHUE: It depends in what manifestation. In its initial manifestation that legislation, as I understand it, did provide for indeterminate detention and it would seem to have the vice that we identify.

BELL J: Yes.

MR DONAGHUE: Around the 1950s most of that legislation was either repealed or replaced with a regime that permitted a further determinate period of detention to be imposed on an habitual criminal. So you might get an extra 10 years as a head sentence, as an habitual criminal. That is obviously different but the reason I said this argument is our widest argument is that this argument would, I think, if accepted, have the consequence that some historical regimes that provided for indeterminate detention at Her Majesty’s pleasure would be invalid.

BELL J: Yes.

MR DONAGHUE: That is not a difficulty that confronts the second argument which I think I have probably already explored sufficiently but that is the differential criteria.

FRENCH CJ: I am sorry, just going back to the first argument. The vice is that it is entirely in the discretion of the Executive as to when the detention ends. In other words, there is no controlling factor - - -

MR DONAGHUE: No controlling factor.

FRENCH CJ: - - - on your characterisation of how it works unless you, as Justice Hayne says, rein in expediency somehow.

MR DONAGHUE: Yes, so no judgment by a court as to what the appropriate penalty should be and no constraint on the Executive in setting out that topic – in determining that question.

FRENCH CJ: Is that first step necessary? The court says indefinite detention on the basis of criteria. The vice is, it seems to me, you are saying that that means whatever the Executive thinks is a good thing, in effect, and that is unconstitutional. On the other hand, if the Executive is required to release upon certain conditions coming into existence, for example, a report that incapacity no longer exists, that overcomes the problem?

MR DONAGHUE: Yes, because then you do not - - -

FRENCH CJ: The problem addressed by that widest argument.

MR DONAGHUE: Yes, because then there is not the wholesale delegation. There is a limit.

HAYNE J: But on this second branch of the argument about differential criteria for imposition and release it would be an unusual statutory provision affecting liberty that it was unbounded. You do not go so far as to say that the release criteria are unbounded, do you?

MR DONAGHUE: Here, no, but they are very wide.

HAYNE J: But what then are the bounds?

MR DONAGHUE: The bounds on the authority seem to be a public interest criterion.

HAYNE J: Leave aside the authorities – we read them, we understand what they say. What do you say they should be understood to be?

MR DONAGHUE: I do not submit that those authorities are wrong. I submit that those authorities are – on those authorities which we do not challenge there is a very great differentiation between the entry and exit criteria that leads to invalidity. I do not understand anyone on the other side of the Bar table to challenge those authorities either, but if your Honours find that they are wrong and that there are constraints upon the release criteria such that there is an obligation to release once the person is not a risk, then that would be a different thing.

But we submit that is a hard construction to reach for 5(b) and as is illustrated in these cases here, Mr Pollentine, for example, has been engaging in treatment programs and is now on drugs to treat his sexual tendencies and has been for a long period of time. The experts were saying that they thought even with that people with his characteristics may well represent a 15 per cent chance. Is 15 per cent chance enough to get you released or not. It would not be likely to be enough under the modern criteria to show that someone was an unacceptable risk of committing a serious offence usually has to be proved to a high standard of probability under that kind of regime.

But here there is no guidance to tell us whether or not on that fact there is or is not an obligation to release the person but, in our submission, it would be difficulty to find, on the balance of probabilities, if that is the right standard now on the material that Mr Pollentine is incapable of controlling his sexual instincts. If you could not make that finding then, in our submission, the fact that the Executive can permit executive detention or can permit detention to continue, even without the criteria that led to that detention commencing and can do so with the colour of saying the court ordered indefinite detention of this person is what attracts the constitutional difficulty of the second limb of our argument.

KIEFEL J: If one was construing the word “expedient” today in the current legislative regime, would it be a correct approach to construction to have regard to the test for release, namely “unacceptable risk to the safety of others” in determining what the word “expedient” might comprehend?

MR DONAGHUE: I apologise, your Honour. Where has your Honour lifted those words from?

KIEFEL J: Section 18E.

MR DONAGHUE: From the parole provision, yes. If one was construing it - - -

KIEFEL J: Today.

MR DONAGHUE: - - - today – it is a difficult question, your Honour. One would normally read legislation as always speaking but to say yes to your Honour’s question would suggest that the meaning of that statutory criteria has changed with the introduction of the parole regime.

KIEFEL J: Or that it is given meaning.

MR DONAGHUE: Or that it is given meaning.

KIEFEL J: To a term which was always devoid of much content.

MR DONAGHUE: It may have limited or confined the content that the word would otherwise have had. I think I have to accept - - -

KIEFEL J: Given that you have to construe it consistently - - -

MR DONAGHUE: One now has to construe it in the scheme in which it appears.

KIEFEL J: - - - with notions of release.

MR DONAGHUE: Indeed, and one now has to construe that power because that is a power that still falls to be exercised with respect to the plaintiff in the context of the statutory scheme as it now exists, so I think I have to accept that that is so.

BELL J: Can I just take you back for a moment to the habitual offenders’ legislation? I think we had reached the position that you acknowledged on one branch of your argument the historic models for legislation of that kind such as the 1905 New South Wales Act would be constitutionally infirm but I inferred you would not submit that the more modern variations on legislation of that kind are and I just want to take up with you how that fits with your submission at 2.1 and 2.2 drawing on common law sentencing principles of proportionality.

If one accepts that upon a finding of guilt and sentencing in relation to an offence it is open to a court under a regime for dealing with habitual criminals to impose some further sentence, one is necessarily outside the realm of proportionate sentencing on common law principles, but you do not take issue with that mechanism?

MR DONAGHUE: I do not because we accept, and I think we have to accept consistently with Fardon, that one can move beyond those principles. The question is, we submit, how far? Really, the last of our constitutional arguments at 2.5 is directed to the proposition that not far is the answer to that question.

BELL J: But 2.2 really is difficult to sustain, is it not? You seem to be making an argument there that a direction that is necessarily disproportionate is not the exercise of the judicial function of punishing criminal guilt.

MR DONAGHUE: No, your Honour, in my submission, the habitual offender case that your Honour put to me is not a case where the habitual offender is being – if the additional sentence is imposed is not being punished in respect of – that that sentence is serving a protective purpose.

BELL J: Yes, but – I am sorry, I may not be understanding your outline - - -

MR DONAGHUE: I apologise, I am sure it is me, your Honour.

BELL J: It is paragraphs 2.2 and 2.1 I was inclined to read together.

MR DONAGHUE: Yes.

BELL J: So the point that seemed to be being made was that the power of the court to order detention is an incident of the exclusively judicial function of a judge in punishing criminal guilt. The making of a detention order that is necessarily disproportionate does not answer that description.

MR DONAGHUE: Yes.

BELL J: Accepting those things, one nonetheless accepts that it is within the capacity of a State legislature to empower a court to make an order for the detention of a person, consequent upon a finding of criminal guilt, for a protective purpose which by its nature is outside the notion of proportionate sentencing on common law principles.

MR DONAGHUE: I accept that that is possible, as I think I must consistently with Fardon.

BELL J: Yes, all right.

MR DONAGHUE: But, it is possible, not in an unfettered way, but only in a way that, in our submission, respects the proposition that the starting point is the Lim starting point, and thus that while there might be some functions that can be taken that can expand one beyond what Lim would otherwise permit, the whole structure of the analysis of the Court in Fardon was that the components of that regime that led to it being upheld included high standards of proof before one could detain, proper processes, capacity to challenge, all manner of safeguards associated with making sure that if the court is engaged in that kind of function, it does not do so in a way that will bring disrepute or undermine its institutional integrity. So while it is possible for that kind of function to be conferred, it is not possible for it to be conferred, in our submission, by a regime with the very loose, and at times, somewhat contradictory structure that section 18 follows.

Your Honours, unless your Honours have any – one moment, your Honours. Just before I sit down, your Honours, I think I may have

been incorrect in an answer that I gave your Honour Justice Hayne about what happened in the Court of Criminal Appeal in Radan. The order that I have just been shown states the sentence of imprisonment is varied so the appellant will serve a period of:

three years’ imprisonment with hard labour in relation to each of the eight offences to which the appellant pleaded guilty and, of course, each of those three-year sentences would be served concurrently.

The direction as to the detention in an institution is not to be disturbed, full stop; that is what the order said. If the Court pleases.

FRENCH CJ: Thank you, Mr Donaghue. Solicitor-General for Queensland.

MR DUNNING: Your Honours, in our respectful submission, the case for the plaintiffs remains ultimately, as it must, a challenge that these provisions of longstanding are ones that are repugnant to, in this case, the District Court of Queensland, in the exercise of its judicial function. As to what is involved in that concept might we but briefly take your Honours please to two decisions of this Court? May we first please take your Honours to Assistant Commissioner v Pompano [2013] HCA 7; (2013) 87 ALJR 458? In that regard, may we ask your Honours please to go to page 487 of the report in the reasons of Justices Hayne, Crennan, Kiefel and Bell?

HAYNE J: Paragraph?

CRENNAN J: Paragraph number?

MR DUNNING: Starting at paragraph [122] there is a discussion of the applicable principles, but I wanted only to take your Honours, please, to some specific passages of what follows. May we first of all take your Honours please to paragraph [123] and at about line E where your Honours held:

As Gummow J further pointed out, and as is now the accepted doctrine of the Court, “the essential notion is that of repugnancy to or incompatibility with that institutional integrity of the State courts which bespeaks their constitutionally mandated position in the Australian legal system” –

Then going on to paragraph [124], there were three points to be made –

First, “the critical notions of repugnancy and incompatibility are insusceptible of further definition in terms which necessarily dictate future outcomes” –

Could I then take your Honours please to the third at about line B –

content must be given to the notion of institutional integrity of the State courts, and that too is a notion not readily susceptible of definition in terms which will dictate future outcomes –

Then, your Honours, at [125] in the second sentence –

Independence and impartiality are defining characteristics of all of the courts of the Australian judicial system. They are notions that connote separation from the other branches of government, at least in the sense that the State courts must be and remain free from external influence. In particular, the courts cannot be required to act at the dictation of the Executive.

Then, your Honours, starting with paragraph [127], there was an analysis of the decision in Kable and the cases that had followed it relevant to what might constitute the relevant repugnancy. May we simply draw attention to these passages, dealing first of all with that which appears in paragraph [128], but over on page 489 – perhaps I can just take your Honours to paragraph [129]:

For present purposes it is important to recognise that the conclusion in Kable proceeded from consideration of the whole of the Act in question and all of the features which it presented. In Fardon, Gummow J described those features as including “the apparent legislative plan to conscript the Supreme Court of New South Wales to procure the imprisonment of the appellant by a process which departed in serious respects from the usual judicial process”.

Then there is reference to Justice Gaudron’s reasons at about line D, speaking of the Act as –

not involving “the resolution of a dispute between contesting parties as to their respective legal rights and obligations” and as directing, in some circumstances, the Supreme Court to decide what order should be made under that Act “having regard to material which would not be admissible as evidence in legal proceedings”.

Then finally, in effect, these were features of –

conscripting the Supreme Court to procure the imprisonment of a named person.

There was then an analysis of what was resolved in International Finance, and if we can take your Honours please to these passages in [130]. There was a description of what the CAR Act did, and then three lines from the bottom of the first column:

Section 10 provided that the Supreme Court must make that restraining order if a law enforcement officer suspected that the person who owned the property had committed any of a broad range of crimes, or the officer suspected that the property was derived from criminal activity –

Then in paragraph [131], in discussing that which had divided the court, at about line (b):

the CAR Act prevented the Supreme Court from reviewing and reconsidering an order made ex parte under that section for what, in effect, was the sequestration of property. The majority construed . . . that s 10 thus required the Supreme Court to make ex parte orders for the sequestration of property upon suspicion of wrongdoing, for an indeterminate period, with no effective curial enforcement of the duty of full disclosure –

and then went on to speak of some of the other drawbacks of that, and then - - -

HAYNE J: What exactly do you want us to take away from this reading of – what is written we can read for ourselves – what is the point?

MR DUNNING: The point, your Honour, is this: that whilst the concept of repugnancy is insusceptible of precise definition, the recent statements of this Court as to what does and does not connote the relevant repugnancy informs, in our respectful submission, the approach to the provisions in the Queensland legislation that is the subject of these challenges.

HAYNE J: Well, I would have thought that might not be terribly controversial as a proposition. It is not susceptible of definition, look at what you have done in the past, does seem a useful starting point, Mr Solicitor. Where do we go from that starting point?

MR DUNNING: Well, your Honour, in our respectful submission, where one goes from that starting point – whilst it may be insusceptible of definition it is nonetheless relevant and informative to see that which has already been mapped out as those things that might be identified as repugnant to a court exercising its judicial function compared with those things that are not, or those things that might be contrasted with it as not exhibiting those characters.

GAGELER J: Mr Solicitor, do you propose to address questions of construction, in particular whether Chester applies to the exercise of discretion in section 18?

MR DUNNING: Yes, your Honour, I was proposing to do that. Your Honours, may we also draw attention, I hope, briefly, to these passages of the description of Totani and Wainohu in paragraph [133] of the decision in Pompano. The objection was:

the executive to enlist the Magistrates Court to implement the decisions of the executive in a manner repugnant to or inconsistent with its continued institutional integrity.

FRENCH CJ: This all feeds into paragraph 4 of your outline.

MR DUNNING: Yes, your Honour, it does.

FRENCH CJ: There are a lot of things that this law does not do that laws found to offend against the repugnancy criterion have been found to do.

MR DUNNING: Your Honours, may we take you to the decision of Attorney-General of the Northern Territory v Emmerson [2014] HCA 13; (2014) 88 ALJR 522. Our learned friends took your Honours to paragraph [53] on page 536 and, your Honours, may we make the observation that that appears to be in fact a recitation of the submissions that were being made to the Court. One sees that, in our respectful submission, on page 535 second column, above paragraph [48]. If one goes to above paragraph [49] it appears to be those of the first respondent.

As to the fate of those submissions, can we take your Honours, please, to paragraph [56] on page 537? The ultimate conclusion was that the Northern Territory laws did not require the Supreme Court to give effect to any decision made by the Executive or the DPP. Might we also direct your Honours’ attention to paragraph [58] from the fourth line to the end of that paragraph. Then at paragraph [60], your Honours, the second sentence and then may I ask your Honours, please, to go to paragraph [65].

FRENCH CJ: So again, what bearing does that have upon the criticisms made of this - - -

MR DUNNING: Your Honours, we seek to identify the circumstances in which parallels may be drawn to the relevant statutory provisions in question here.

FRENCH CJ: Well, maybe we should go straight to parallels?

MR DUNNING: Thank you, your Honours. In that regard may we ask your Honours, please, to take up section 18 of the Queensland Act and, in our respectful submission, your Honours, the matters that indicate the consistency with judicial function of the application of this law may be found in these aspects of it. If first of all we start in section 18(1), there is the requirement that there be a finding of criminal guilt and it be of a certain characteristic, that is, as the law presently stands:

an offence of a sexual nature committed upon or in relation to a child under the age of 16 years -

At the relevant time it was under the age of 17. Now, as our learned friends can see that means that the approach to dealing with these statutory provisions starts with the very orthodox notion in a sentencing sense that there has been a finding of criminal guilt, either - a finding by jury beyond reasonable doubt or by plea of guilty.

The next feature that we would invite your Honours to notice is that which is contained in 18A and that is that if the judge presiding at the trial exercises his discretion to direct that two or more medical practitioners named by the judge conduct the examination - and again it is inconsistent with any notion that the judiciary is doing the bidding of the Executive. There is no - - -

FRENCH CJ: I do not think that argument is put.

MR DUNNING: Your Honour, I appreciate that but, in our submission, one needs to see the statutory regime in its totality. I appreciate that the ultimate concern that is put by the plaintiffs, at least if I have understood it correctly today, is that there is, in effect, a disconnect between the basis upon which the declaration might be made and therefore the indefinite detention commenced and the circumstances in which the indefinite detention may be brought to an end. But, in our submission, that is obviously the issue which we must confront, but in confronting that, one needs to look at all of this as a legislative scheme, see ultimately if it does bear the objectionable characteristic of, in effect, becoming the Executive’s bidding, as it were.

Your Honours, I will move through them very quickly. The other features that are consistent with it are, for example, the requirement of unanimity, at least as the case was held of the two doctors, the matters they can inquire into under subsection (2) and then the fact that it is for the judge, even once receiving that medical expert report, to make the determination. So again, there is not the capacity for the legislature to dictate it and the provisions in subsection (3)(a) by way of procedural fairness.

At that point, one, in our respectful submission, would see it as a regime that provided a method that was in every sense consistent with judicial function to arrive at the passing of the sentence, and I will come to deal a little later with the submissions we make as to why it - - -

HAYNE J: Mr Solicitor, how does any of this engage with the three challenges that are made to validity? They are: there is a delegation of the Executive, that there is application of different criteria for imposition of the order and for release and that there is an absence of judicial safeguards. Those are understood to be the three arguments against you. How does any of this engage with those arguments?

MR DUNNING: Your Honour, might I respond in summary to those three propositions and move on from the submission that I have been making. In relation to delegation, in our respectful submission, the scheme of the Act is not to delegate to the Executive any more than it is to delegate the post-sentence treatment of a person under parole, that is, that it is consistent with the recognised circumstances that courts determine guilt and sentence. After sentence, the court’s function is complete and it is a matter for the Executive the circumstances in which they are released.

As to the second of the issues, the question of differential - in our respectful submission, the differential that our learned friends contend for is ultimately more apparent than real. Your Honours, would that be a convenient time?

FRENCH CJ: Yes, all right. We will adjourn until 2.15.

AT 12.43 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.14 PM:

FRENCH CJ: Yes, Mr Solicitor.

MR DUNNING: Thank you, your Honour. Your Honours, may I move firstly to the argument of delegation, and perhaps direct my submissions specifically to the matters raised in 2.1 to 2.3 of our learned friend’s oral outline document. Might we first of all in respect of 2.1 draw attention to the qualification that it starts with and that is that ordinarily detention is only for a purpose of punishment. In our respectful submission, the instant case is one of those recognised exceptions to that.

Can we take your Honours please to Fardon in that regard[2004] HCA 46; , (2004) 223 CLR 575. Our learned friends took your Honours on page 611 to paragraph 77, and indeed in that paragraph, Justice Gummow referring to the decision in Lim in fact recognises that there are specific exceptions, one of them is mental illness, and it also recognises that there might be other exceptional cases, and we would make the submission that the legislation in question is concerned with somebody who does have some form of mental impairment, though obviously still fit to plead.

But could we also draw attention to the reasoning that preceded it and, in particular, at paragraph 70 on page 609. In paragraph 72, his Honour refers to the decision of the Western Australian Court of Appeal in McGarry to which we will take your Honours a little later. Then in 73, his Honour identified that this was – and that was the purpose of this analysis was really to indicate that Fardon was a different case. It was not about indefinite detention at the time of sentence for conviction of the offence. It was, as we all know, about indefinite detention at a time at which the sentence was on the cusp of being complete and that leads his Honour to say what he said in 77.

In our respectful submission, when one then returns to the point that is made against us, we respectfully submit that, whilst that might ordinarily be the case, we are here concerned with one of the recognised exceptions, or something that at least ought to be considered one of the recognised exceptions. Can we then move to the second proposition upon which this is founded and that is the lack of proportionality of an indefinite term of imprisonment in the present case. Ultimately, in our respectful submission, the Parliament of Queensland, as all of the State Parliaments are, was competent to legislate to include a component of the sentencing that was protective in character. That is, whilst it might be right to say that the general law position is that sentencing should exhibit that feature of proportionality, it is competent for the Parliaments to adjust that. Can we make that point by reference to the two authorities our learned friends in fact rely upon. May we first of all, please, take your Honour to Buckley v The Queen [2006] HCA 7; (2006) 80 ALJR 605. Can we take your Honours, please, on page 607, to paragraph 6.

The Court distinguishes in terms of the instant case Chester and McGarry and about line C – sorry, between line C and line D, the Court records “Even so” - if I can invite your Honours please to read from “Even so” to the end of that paragraph. May we then take your Honours, please, to page 612 and to the first sentence of paragraph [40] and then may we invite your Honours, please, to read paragraph [42] at the foot of that page over to just past the middle of between lines A and B on the next page.

Then may we take your Honours, please, to this Court’s decision in Chester v The Queen [1988] HCA 62; (1988) 165 CLR 611 at 618 – the foot of page 618 in the decision of the Court. At the foot of that page there is reference to the fact that it was a power to be reserved for only exceptional cases. Then, going to about the fifth line on 619 can we invite your Honours, please, to read the sentence that starts “The stark and extraordinary nature” reflecting, in our respectful submission, that in terms it is permissible for the Parliament to enact a regime whereby a period of imprisonment is imposed but is one as the court there says is ultimately “terminable by executive”.

Similarly, your Honours, in Veen (No 2), one can see authority for the proposition that it is legitimate to take into account protective components and thereby impose something that relies on more than just proportionality or is ultimately disproportionate, as our friends would say. Veen (No 2) [1988] HCA 14; (1988) 164 CLR 465 and may we take your Honours please to page 486 in the readings of Justice Wilson at about point 7 on the page, the sentence that starts:

Of course, it is always open to a legislature to provide for preventive detention -

through to the end of that paragraph. Then finally, your Honours, in Kable itself there was recognition that such sentencing regimes were permissible, Kable v Director of Public Prosecutions [1996] HCA 24; (1996) 189 CLR 51. May we first of all take your Honours, please, to page 97 in the reasons of Justice Toohey and at about point 2 on the page can we ask your Honours to notice the reasoning there that accepted the propriety of indefinite sentences.

May we also ask your Honours, please, to go to page 121 in the reasons of Justice McHugh and notice his Honour’s reasoning at about point 6. It is really the whole of that paragraph – the whole of the paragraph is relevant, but, in particular, about five lines down:

Moreover, there is no reason to doubt -

It is on the strength of those arguments that we would respectfully submit that the disproportionality to which our learned friends complained is not a legitimate complaint here, it was something that the Parliament was competent to do. Can we then move to what that is ultimately said to lead to in paragraph 2.3, and that is said to be this delegation, offensive as it is said to be, because it involves the Executive determining:

the period in which an offender will be deprived of his or her liberty.

May we first of all take your Honours – sorry, may we make the submission that historically that has been a feature of indefinite sentencing regimes and one that certainly State courts are competent to do and can we give your Honours these references in that regard? First of all R v Moffatt [1998] 2 VR 229 and in the reasoning of Justice Hayne, when a member of that court, on page 252 at about point 9 your Honours will see a paragraph that starts “No doubt it was with this background in mind” and, more particularly, the next sentence “Most of the legislation”.

Then, your Honours, may we please take you to the decision of the Western Australia Court of Appeal in McGarry. Your Honours will find that at [2005] WASCA 252; 159 A Crim R 216 or [2005] WASCA 252 and may I take your Honours please to the reasoning of Justice Wheeler, and in particular on page 224 where her Honour’s analysis starts at the foot of that page, at paragraph 34 and we invite your Honours please to read paragraph 34. Then her Honour reasons at paragraph 36 as to the desirability of it being an executive function to determine when such imprisonment might come to an end and that caused her Honour to conclude at paragraph 39 - - -

HAYNE J: Just before you come to 39, what do you say as to paragraph 37?

MR DUNNING: Your Honour, we would respectfully agree with that and without pre-empting it - - -

HAYNE J: Agree with it and say it is applicable to the current legislation?

MR DUNNING: Yes, your Honour, and when I come to deal with the two Pollentine decisions, I hope to make good the submission that that is consistent with the reasoning in those cases. May I then take your Honours, please, to paragraph 39, from the second sentence to the end of that paragraph, which in our respectful submission is inconsistent with the proposition our learned friends put to your Honour. Then in paragraph 40, her Honour considers whether the principle in Lim might be offended, and expresses a view that it is not.

Your Honours, might I briefly take you to the decision in Pompano in just one respect[2013] HCA 7; , (2013) 87 ALJR 458, and I ask your Honours please to go to page 488 in paragraph [126] starting at the top of the second column, and the first proposition that is set out there in the first line. Finally, your Honours, before leaving this topic, our learned friends referred your Honours to the decision in Browne v The Queen. Can we simply make these observations about that case. First of all, if I can take your Honours please to the decision in Browne [2000] 1 AC 45. The reasoning that was adopted there – can I take your Honours please to page 48, and at about line F, your Honours will see that there is reference and ultimately reliance upon an earlier decision in Hinds v The Queen. Can I then take your Honours please to the decision in Hinds [1975] AC 195 - - -

KIEFEL J: It is 1977, I think, Mr Solicitor.

MR DUNNING: Thank you, your Honour, my apologies, 1977. May I ask your Honours, please, to go to page 227? At about line C, there is a discussion of the topic but there does not seem to be an analysis, at least in respect of how that law is developed in this country, in relation to how indefinite detentions work. In our respectful submission, Browne is not a safe basis upon which your Honours might come to the conclusion that is contended for for the delegation.

Rather, in our respectful submission, the present case is one consistent with settled authority in this country of the capacity to – at least to the State Parliaments, to enact legislation providing for indefinite detention that is not properly characterised as, at least in the way offensive to those courts delegating the question of release – sorry, delegating the judicial function by allowing the Executive to become responsible for the topic of release.

KIEFEL J: What do you say about the width of the discretion then given to the Executive and, in particular, the argument about expediency as an all-encompassing political policy choice?

MR DUNNING: Of course, really consistently with the answer I gave to Justice Hayne a little while ago, we would submit that broader political considerations would not be relevant to the determination of what is expedient or what is not, but rather expediency is referrable to the propensity to reoffend. I am going to take your Honours - - -

KIEFEL J: Is that because the decision is confined to a rational or reasonable basis as it would be under judicial review?

MR DUNNING: That is certainly a reason, your Honour, but, in our respectful submission, there would be others including as myself and my friend has taken your Honour to, the acceptance of the relevant rarity of making orders such as this. That is the statutory framework that is being considered. It would seem to follow from that. Ultimately, in a textual sense it follows, particularly after the provision such as 18E regarding the - - -

KIEFEL J: Are you arguing for some – a kind of symmetry in the legislation whereby the court can sentence by reference to two medical opinions about risk behaviour which poses a problem – a risk to the public and need for protection and at the other end, the release having to effectively line up, that the release would have to respond to the same criteria?

MR DUNNING: In a general sense, in the sense that the consideration is relevant on an application for release would be relevant to those risk factors so it is the same in that sense. Obviously, on a factual level it ought to have changed between when first sentence and - - -

KIEFEL J: Quite so, but the essential question is the same, the risk to the public. Is there anything more beyond that criterion, the risk to the public and the protection of society that would inform the discretion?

MR DUNNING: No, there would not be. It is not suggestion to derive in this case. Conceivably, there might be circumstances where in the interests of the prisoner’s own safety might bear upon it but that does not seem to arise in the instant case.

KIEFEL J: You mean there might be some factual matters which have arisen during the process of confinement which are as on a parole consideration?

MR DUNNING: I was not just thinking of that, your Honour, that might be the case but if you had, for example, a prisoner who was prone to – as a result of inability to contain the instinct, go and do something that was likely to cause that prisoner to find himself in a situation where he was likely to be harmed, that might also inform it but it does not seem to arise on - - -

KIEFEL J: To what extent now does the provision under section 18(5)(b) and the parole provisions intersect?

MR DUNNING: In our respectful submission, they do intersect because in reality the parole provisions state explicitly that which, in effect, was always necessary in respect of 5(b) – albeit that the machinery provision might not have been there.

CRENNAN J: What does 18H(2) suggest on this issue?

MR DUNNING: In our respectful submission, your Honour, it suggests that ultimately these are alternate means by which release might be achieved.

KIEFEL J: Does that mean that the parole provision is superior to 18(5)(b)?

MR DUNNING: No, your Honour. It means that, in our respectful submission, they all alternatives and in a sense the enactment of the parole provisions was to give a person so detained an additional route by which - - -

KIEFEL J: Do you mean by that that they run in parallel, the two procedures, but that parole takes its normal course and if parole is granted then 18(5)(b) cannot be given effect to?

MR DUNNING: Sorry, your Honour, might I ask for that question again?

KIEFEL J: Yes. Do you mean by that – when you say they are alternatives – that the 18(5)(b) process which may or may not arise at any particular point is intended to run in parallel with the process for parole under Part 3A or the Corrective Services Act more generally but that it is assumed that the parole process will, in the normal course, come up for consideration and that if parole is granted by way of conditional release, then the alternative process under 18(5)(b) cannot be. That is, parole will ordinarily be first considered, or if it is the other cannot.

MR DUNNING: The latter not the former because there may be circumstances in which the prisoner would sooner ask for release under 18(5)(b) - - -

KIEFEL J: Yes.

MR DUNNING: - - -rather than parole because, in effect, it would be an unconditional release. So there may be circumstances where that means is attempted – perhaps even more than once – to see how that goes and if that is unsuccessful one would then permit the parole.

FRENCH CJ: Once he is released on parole, does 18H have the effect that he continues thereafter as if a prisoner serving a term of life imprisonment under the Corrective Services Act and that the possibility of unconditional release under 18(5)(b) is permanently displaced?

MR DUNNING: For so long as he is on parole, your Honour, the answer to that question is yes.

HAYNE J: Entirely.

FRENCH CJ: Totally.

HAYNE J: Totally.

FRENCH CJ: Because if he falls under the Corrective Services Act, presumably he falls under provisions relating to revocation or cancellation of parole as though he were a prisoner serving a life term. So 18H(2) seems to have a degree of permanency about it, in terms of the application of Part III.

HAYNE J: Is not the position you get to that if there is release under 18(5), the release is absolute, the order is spent?

MR DUNNING: Yes, your Honour.

HAYNE J: If at any point, there is release on parole, the effect of 18H is that you are admitted to parole, and the order will never be spent during the life of the prisoner. The prisoner will be subject to the order for the balance of the life of the prisoner.

MR DUNNING: Yes.

HAYNE J: And the prisoner will therefore be subject to parole board control for the balance of the prisoner’s life, as is a life term prisoner.

MR DUNNING: Yes, your Honour. The one distinction - and perhaps I expressed this poorly - conceivably parole might be revoked, you return to prison, but that is – the prospects of – I did not take your Honour’s question to be directed at that issue. In substance, if you were admitted to parole, you would, as your Honour says, like somebody serving a life sentence, remain under that sentence, yes, but subject to the conditions of parole.

GAGELER J: I think at least a question might be, do you read subsection (2) of section 18H as speaking to the time during which a person remains released on parole, or do you read it as applying to that person thereafter, whether they return to prison or not?

MR DUNNING: In our submission, the former basis, your Honour. Your Honours, unless there were any other questions, I was then proposing to move to the third issue, and this is really addressed to paragraph 2.4 of our learned friend’s oral submissions, and this gets to this conception of expediency. As we understand it, the complaint made against us is that there is a different criteria for sentence and for release, and as I have indicated by some of my earlier answers, we respectfully submit that that is not what one sees from the law as it has developed in this regard.

Your Honours, my starting point, in our respectful submission, is just the ordinary meaning of the word “expedient”. We would submit an uncontroversial definition is, tending to promote some proposed or desired object, fit or suitable for the purpose, proper in the circumstances. Now, if one adopts, as I say, that orthodox view of the word “expedient”, it tends to reinforce the view that expediency or inexpediency in terms of release is referrable to criteria concerning public safety.

In our submission, Pollentine (No 2) is not inconsistent with that, and in large measure, really by reasons of some of the observations that fell from Justice Hayne during the – made by Justice Hayne during his exchange with my friend, can I ask your Honours please to take up Pollentine (No 2) (1998) 1 Qd R 82, and in the reasons of the President, with whom Justices Thomas and White agree, and your Honours, that is at 93 and 95, is their Honours’ agreement. But can we take your Honours please to page 91, at about line 50? Your Honours will see there that the President says:

Expediency is materially related not to the decision-maker’s or advice-giver’s personal or party political interests –

So he is in terms rejecting, in our respectful submission, that expediency is referrable to things like political interest or personal concern, and then his Honour says it is about the public interest and then goes to develop what he says that that means.

Now, our learned friends took your Honours to those considerations at lines 1 to 25 and I will not repeat them because our learned friends accept that they were relevant considerations. The concern, as we understand it, is what appears at about lines 15 to 20 where his Honour is talking about community - sorry about line 15 - where his Honour talks about community reaction, but the critical words are at about line 18, however:

(3) That consideration of community reaction could only be legitimate to the extent that anticipated adverse community reaction was seen to have a rational basis.

For example, justifiable community concern at the risk presented by the release of the offender. Now, if one takes that consideration into account, all his Honour is really saying is the only legitimate consideration that you can have regarding public reaction is if it is a rational reaction about the risk that might be presented and that gets back to the very thing that was the basis for the making of the original declaration and remains at the end, the basis for considering release. His Honour considers one other aspect - - -

KIEFEL J: Well, is that to say it is no more than the reality of the risk in fact?

MR DUNNING: Indeed, your Honour, yes.

HAYNE J: In particular, it is an informed public response, not an ignorant public response.

MR DUNNING: Correct, your Honour, yes, and - - -

FRENCH CJ: I suppose that poses the question, why one needs to mediate that consideration through public response at all.

HAYNE J: Exactly.

MR DUNNING: We would respectfully agree with that, but to the extent it is said to be relied upon, it would be relied upon, as it has been in Queensland, in a way that is unexceptional in respect to the concern that has been raised against us by the plaintiff’s here; that is, it is public concern that is rational concern, that is in effect a subset, as it were, of the risk that is the relevant consideration and really much the same might be said of concerns about reasonably diminishing public confidence in the criminal justice system.

Well, again, the only matters that will be apt to do that will be matters that would see a person released where the risk that the legislation was intended to guard against was present and that his Honour was - - -

HAYNE J: The reference to public reaction is all too easily used as a means of sloughing off responsibility. “I am satisfied that the public might reasonably be concerned” is a statement that might appear too readily, as distinct from the relevant question of whether the decision-maker has formed a view for himself or herself.

MR DUNNING: With that proposition, your Honour, we would not cavil, nor with that put to us by the Chief Justice, that does this really add to the formulation.

FRENCH CJ: Well, then, are the considerations relevant to the question of release, assuming that the process of decision-making on release is enlivened in some way any wider than the considerations which are relevant to the exercise of the judge’s discretion in making the order in the first place?

MR DUNNING: No, your Honour, they are not.

GAGELER J: Is the Executive bound to accept the same tolerance for risk as the judge did?

MR DUNNING: No, your Honour.

GAGELER J: So the Executive can make up its own mind as to what an acceptable level of risk is?

MR DUNNING: Yes, it can.

GAGELER J: In doing that, can the Executive take its view of public opinion into account?

MR DUNNING: Only insomuch as it is a rational view that that level of risk is an unacceptable one and it was really, your Honour, in relation to those sorts of concepts that I think perhaps in answer to Justice Kiefel a little earlier I said that the considerations – the principle is the same but the consideration at time of release might be different.

KIEFEL J: But the decision is judicially reviewable?

MR DUNNING: Yes.

KIEFEL J: It would be tested by reference to whether there was evidence to support the opinion reached by matters such as what was a relevant consideration and so far as public opinion was said to inform it questions such as rationality and reasonableness in the sense discussed in Minister v Li. These are all matters which – the fact that it is judicially reviewable cannot be unimportant if one is to compare it with the decision which is made in the first place.

MR DUNNING: Yes.

KIEFEL J: It somewhat focuses the matters which are to inform the decision.

MR DUNNING: Yes, it does.

HAYNE J: If at some point before you sit down you would be good enough to formulate in the form of a question the question which the decision-maker would have to consider in determining whether it is expedient, I may be assisted by such a formula.

MR DUNNING: Certainly, your Honour. Your Honours, can I finally direct attention then to the fact that what appears between about lines 30 and 40 in the President’s reasons, in our respectful submission, reflects the fact that his Honour had in mind that the considerations were those that went to the risk of reoffending because his Honour makes it clear that a real risk was not a relevant requirement.

Your Honours were taken to the reasoning of this Court in O’Shea. I do not think I need to trouble your Honours to take up O’Shea other than to make the point that this point was not specifically raised. The passage to which you were taken to, in effect, assumes it for the purpose of some of his Honour’s analysis and it is not a basis, in our respectful submission, for saying that there – it is not a basis for saying that that case is authority for the proposition that considerations unrelated to public safety are relevant.

Can I move then to the final topic and that is that which is really developed at 2.5 of our learned friend’s outline. We take the criticism to be not an absence of safeguards for the making of the declaration, but if we be wrong about that, those matters that I raised before lunch as to the structure of the Act would, in our respectful submission, amply demonstrate that appropriate safeguards are there, but rather there is an absence of safeguards after the sentence has been made by the court below.

Might we make these submissions? Firstly, respectfully, we do not apprehend the relevant connection between that criticism, even if it were right, and how it is said to interfere with the institutional integrity of the District Court of Queensland. But in any event, in our respectful submission, it is a submission that is not right. Might we observe these aspects of the safeguards that are in the legislation? Such determination by a sentencing judge is capable of being appealed from. It is possible to have efficacious judicial review of the decision not to release somebody once the subject of one of these orders.

That is, in our respectful submission, illustrated in Pollentine (No 1), and if we could ask your Honours please to take up that decision, (1995) 2 Qd R 412. Can I ask your Honours please to go to page 416? I will not go back to them, but Justice Keane took our learned friends to a passage at about line 30 on page 416, and again at line 35 on 417. But could we also draw your Honours’ attention, please, to the top of page 416, and in addition to the protections or the safeguards that Justice Thomas records there for a person subject to one of these orders and how seeking release might be efficaciously judicially reviewed, one sees more generally from the case the discussion of why he was made the subject of an order in the first place and how his condition has been seen to have changed in the meantime were all matters that informed the judicial review that took place in that case.

An additional safeguard is that the Governor in Council has always had – that is, back to 1984 – a power to refer somebody for consideration for parole originally under section 39 of the Mental Health Act, and then subsequently under section 46A, there is now the (3A) regime by which the person the subject of an order like this can now choose the parallel route of making an application for parole. The applications for parole are in terms capable of being judicially reviewed, and in that case there is a requirement to give reasons for the refusal of parole, but as Pollentine (No 1) shows, the absence of reasons does not stand in the way of an efficacious judicial review.

Now, in our respectful submission, they are the sorts of safeguards that can be identified from this legislative regime and they are adequate safeguards. It is not, in our respectful submission, to the point that they are in some respects different from the safeguards that were important to the Court in Fardon and our learned friends place considerable reliance upon those passages in Fardon. Can we take your Honours, please, to Fardon [2004] HCA 46; (2004) 223 CLR 575 and to the safeguards that were important to our learned friends.

The first exposition of the safeguards that our friends refer to are those that appear in paragraph 34 on page 596 in the judgment of Justice McHugh but if one looks at those things that his Honour saw as distinguishing Fardon from Kable they are the same things that distinguish this case, so at about four lines into paragraph 34 that it applies to persons of a particular class, not just an individual person. Then, if we go down a couple of additional lines, the Court has to be satisfied:

“there is an unacceptable risk that the prisoner will commit a serious sexual offence” –

The test is differently framed here but it is nonetheless a test - in this case the inability to control sexual instincts and, as was noticed on page 597 at about point 3, that was said to be:

a standard sufficiently precise to engage the exercise of State judicial power.

In our respectful submission, the same may be said here. The third point his Honour made at paragraph 4 was the Court had a discretion as to whether it should make an order under the Act, exactly the same situation as obtains here. At about point 5 on the page:

Fourthly, the Court must be satisfied of the “unacceptable risk” standard “to a high degree of probability” –

As we have dealt with in our written outline it is the Briginshaw test that applies here. It is also one that can only be satisfied if there is unanimity amongst the medical practitioners. Can we notice what is said at “Fifthly” that it was “designed to protect the community”? The same applies here. Then, towards the foot of the page, sixthly, there is nothing to suggest:

the jurisdiction conferred is a disguised substitute for an ordinary legislative or executive function.

Again, in our respectful submission, no aspect of what is a part of the statutory regime here could be so described. Our learned friends also rely upon the reasoning of Justice Gummow starting at paragraph 108 on page 619. Paragraph 108 requires there to be a factum to attract the operation of the Act. In Fardon it was the prisoner. Here, it was a conviction beyond reasonable doubt. Then, in paragraph 109, again, that is discretionary as to whether such an order is made which is in identical terms here. In 110 there is an obligation on the Attorney-General to cause an annual review.

Now, a different mechanism is applied here but just because it is different does not mean that it is inferior, much less that it means it is sufficient to render the District Court unable to be – repugnant to the exercise of its Commonwealth jurisdiction. In that case, the Attorney-General has to approach the court annually in relation to the prisoner’s continuing detention. The regime in the present case is that the prisoner has to be reviewed quarterly in relation to the state of his condition and there is, as we have seen developed in previous argument, the ability to judicially review the decisions that flow from those quarterly reviews. So, they are different but they are real in respect of section 18, just as they are real in respect of Fardon. Then, at 113 at the foot of that page, his Honour noticed that it had to be a regular review that:

does not, with the passage of time, become no more than a periodic formality –

Well, again, there is greater regularity here and as Pollentine (No 1) demonstrated, 10 years, more than 10 years after Mr Pollentine had been sentenced, there was the capacity to have that matter judicially reviewed successfully and that particular decision remade. Our learned friends also rely upon the joint reasons of Justices Callinan and Heydon starting on page 656 and at paragraph 220 onwards.

I will not trouble to take your Honours to those but suffice it is to say that considerations of a similar character are identified by their Honours there. When one compares it to Fardon – which is the case that is put against us – that there is the absence of safeguards that were present in Fardon and important to the Court’s decision there, in our respectful submission, it does not bear scrutiny. There are adequate safeguards here. Some are identical. Some are different. But there are, in a relevant sense, those safeguards. Unless your Honours have any other questions about that final point, they were the submissions we were going to make in that regard which leaves only Justice Hayne to answer your questions.

HAYNE J: Can I unpack the question a little so that we can see the territory a bit?

MR DUNNING: Certainly.

HAYNE J: If we get to the point of considering the expediency question – there may be reasons to get there, there may be reasons not to get there - the statutory question is expressed as is it expedient to release it? That is the statutory question. That question has to be understood in light of the fact that it is release absolutely, that is the order is then spent.

It is not released subject to supervision which is the different set of issues presented by parole – whether under 39 of the Mental Health Act of 1974; later, 46A of the Mental Health Act; now, is it 18C of this Act? Release subject to supervision and conditions may perhaps present a different question putting the bar lower than the bar that has to be set for complete discharge.

If “expedient to release” is to be understood in light of what gets the offender into the system the question is then capable of reformulation as being is it shown that the prisoner is no longer incapable of exercising proper control over his sexual instincts? That is the mirror of what it is that got him into the system.

MR DUNNING: Yes.

HAYNE J: The difficulty comes if you start to unpack that question into questions of degree. The question is framed as binary – capacity, incapacity. Absolutely incapable is, in effect, the notion that seems to be in play. If you accept that, well, that is posing an unreal test and you are unpacking it into questions of degree of risk it is at that point I fall off the cliff and do not quite know what the question is that has to be asked. Do you understand the difficulty?

MR DUNNING: I do, your Honour, yes.

HAYNE J: Over to you, Mr Solicitor.

MR DUNNING: Thank you. Would your Honours give me just one moment? There is something in my submission that I want to turn up. Your Honours, at paragraph 16 of our written outline we made the submission in the context the words ‘incapable of proper control over his sexual instincts’ referred to the absence of that degree of self-control that would prevent a person from committing an offence of a sexual nature. It is ultimately that approach that would be the relevant consideration on release and, really, just for exactly the reasons, if I may respectfully submit, that you put it to me that you cannot quite put it in absolute terms in the sense that, yes, the question posed is capability or incapability.

HAYNE J: And proper control is a value laden term?

MR DUNNING: That is right. So the question is not, is that vehicle capable of going at 100 kilometres an hour, or not, to which there is, as it were, a precisely measurable answer – rather it is that value laden conception, so that upon a claim for release, the question will really be, is there that presence of the degree of self-control that would prevent a person from committing a sexual offence.

GAGELER J: What does “would prevent” mean? Is that some absolute notion? Is it some risk assessment notion?

MR DUNNING: It is an assessment that the propensity that the person was found to have exhibited at the time of sentence is no longer there.

GAGELER J: At all?

MR DUNNING: No, because there is this conception of self-control, that is that the question that was posed for the purpose of the sentence was not, might a person never offend in a way that would connote – constitute a sexual assault but, rather, was that person incapable of controlling his sexual instincts, and that might well mean that there is certain proclivities, but there is the human resource, as it were, to contain them. So, in answer to your Honour’s question, might they never have that – well, no, they might have it, but they are determined to have the level of self-control to respond to it and not sexually offend in the same way that the finding was made at the time of their imprisonment that they did not have that level of self-control.

KIEFEL J: In the end result, will not the ultimate question be, really, the same as that which is posed for parole – that is, an unacceptable risk of reoffending in the way in this – in the characteristics of the offence?

MR DUNNING: Yes, your Honour, because - - -

KIEFEL J: And it will be no more less, or less certain or more certain than an unacceptable risk will ever be.

MR DUNNING: Correct, your Honour, yes.

KIEFEL J: Although there will be different results flowing from the two methods of release on parole or - - -

MR DUNNING: Yes.

KIEFEL J: That poses the question, perhaps, because there are different consequences which follow, does that mean that the question about a release – complete release – under 18(5)(b) requires the question to be something more than an acceptable risk?

MR DUNNING: On reflection, I have perhaps answered your Honour’s question a little imprecisely. The question will be the same, the satisfaction of the question might be different, in the sense that what might be satisfaction of a level of self-control for release by the Governor in Council so that the order is spent might be proof of a greater level of self-control than somebody who is paroled on certain terms.

KIEFEL J: Because it could never be reconsidered. It would have to be an almost complete level of satisfaction, would it not? It cannot be the same question as the parole question where they are subject to continuing review.

MR DUNNING: Your Honour, I would submit it cannot be the same answer to the same question but I do not want to split hairs.

KIEFEL J: We are playing with words, yes.

MR DUNNING: Yes, and I am not meaning to.

KEANE J: Well, except there is a reality here in the sense that if there is a level of risk that is said to be unacceptable – sorry, if there is a level of risk that is said to be acceptably low, in circumstances where the offender is on a program of drugs and other forms of rehabilitation, absolute release has to be understood as involving the absence of those programs. Now, it may be that there is an acceptable risk for the purposes of parole, subject to conditions which involve continuing to adhere to the programs, including taking the drugs. Whereas absolute release, the level of satisfaction of the person’s ability to control his instincts has to factor in the circumstance that there is no way to ensure he stays on the drugs.

MR DUNNING: Yes, and we would respectfully agree with that and that is why we say that at what point you might be satisfied might differ with whichever route you are taking and why the parole route, in effect, offered an alternative and perhaps valuable route for a person who is the subject of one of these orders who might never get to the point where he is considered to have enough self-control not to do this. Take the parole example, the medication, one of the attractions of the parole is not only might it be made a condition of the parole but there it can be put in place a mechanism to

ensure that that condition is being adhered to which would not be the case in respect of an unconditional release. The point of inquiry remains the same and that is the level of risk that the person will cease to be able to control his sexual instincts, but the satisfaction of that inquiry is apt to be at different levels for those reasons.

HAYNE J: Which I think drives you to the point – and this may be of no damage to your case at all - it may mean that release is only where there is no substantial risk, substantial being used in the sense of of substance, not large, great or weighty, but no substantial risk of reoffending.

MR DUNNING: Yes, and - - -

HAYNE J: In effect, de minimis apart, no risk.

MR DUNNING: Yes, non-material.

HAYNE J: No material risk is perhaps a better description, yes.

MR DUNNING: I would not suggest it necessarily is, but at a risk at so low a level of risk that it would be appropriate to allow an unconditional release without those facilities that Justice Keane was referring to. Your Honours, unless there is anything we can assist you with any further - - -

FRENCH CJ: Thank you, Mr Solicitor. Solicitor-General for New South Wales.

MR SEXTON: If the Court pleases. Your Honours, it seems to us that there are two possible bases for the orders that are under challenge here. One is that the orders constitute a sentence so that there is an analogy with the effect of a life sentence under regimes like those that existed in New South Wales until 1989 where there was no provision for a minimum non-parole period but the offender might be released on licence at some stage at the discretion of the Executive. That regime is discussed in Baker v The Queen [2004] HCA 45; (2004) 223 CLR 513 at pages 527 to 528, paragraphs 27 to 29. I will not take your Honours to that, although as Chief Justice Gleeson noted at paragraph 7 on page 520 to 521, even release upon licence might not mean:

release into the community; it might mean release into a psychiatric institution, sometimes without any realistic expectation of –

release into the community.

To similar effect, your Honour the Chief Justice in Crump v New South Wales [2012] HCA 20; (2012) 247 CLR 1 at 16, paragraph 28, and 19, paragraph 36, where your Honour said:

Subject to the particular provisions of the applicable statute, once sentenced the responsibility for the future of a prisoner passes to the executive branch of the government of the State.

I think my learned friend, Mr Donaghue, accepted that if there had originally been a parole regime in relation to the existing provisions, there would not be any basis for the challenge that is being made today.

Secondly, your Honours, even if the order does not derive its authority from the sentencing process, it might be seen as one of preventive detention for the protection of the community and it would still be, in our submission, a valid exercise of judicial power as in Fardon where the relevant provision allowed the court to order detention in custody for an indefinite term if the court was satisfied that the person in question was a serious danger to the community, that is, that there was an unacceptable risk that he or she would commit a serious sexual offence if released from custody or released without a supervision order. The order for detention continued until rescinded by the court.

It might be noted that the plaintiffs do not contend that preventive detention is necessarily a contravention of Chapter III and we just give one example that the concept of preventive detention is reflected in the current New South Wales legislation concerning persons found not guilty by reason of mental illness or persons found unfit to be tried? It is the Mental Health (Forensic Provisions) Act 1990 (NSW).

I will not take your Honours to the provisions, but in the case of a person found not guilty by reason of mental illness, the court may make an order that the person be detained until released by due process of law. Once that order is made, the person in question becomes a forensic patient and once detained, they are initially reviewed by the Mental Health Review Tribunal and then reviewed every six months. The ultimate release is a matter for the Tribunal, having regard to their own and the public’s safety and the question of less restrictive care, although the decision of the Tribunal can be reviewed by the Supreme Court.

In the case of a person found unfit to be tried, there are various courses available, but one is where the court conducts a special hearing. Various verdicts are then possible, but one is where the court imposes a limiting term and refers the person in question to the Tribunal. After the Tribunal has determined that person’s medical condition, the court may order that the person be detained.

That results in the person becoming a forensic patient, and that again takes one back to the regime of review by the Mental Health Review Tribunal subject again to ultimate review by the court. That is the only aspect that we wish to add to the submissions of our learned friend from Queensland.

FRENCH CJ: Thank you, Mr Solicitor. Solicitor-General for South Australia.

MR HINTON: If the Court pleases, can I close quarters immediately with the delegation argument and I propose to only deal with the delegation argument. As I understand that argument, it was put succinctly by your Honour Justice Hayne in the following terms - and you will forgive me if my note is slightly imperfect.

It is beyond the legislative power of a State Parliament to confer on a State court a power, but not an obligation, to declare that an offender is incapable of exercising proper control over his sexual instincts and direct that the offender be detained during Her Majesty’s pleasure, in addition or in lieu of imposing any other sentence because such offender is then detained until the Executive determines that it is expedient that they be unconditionally released.

My learned friend, Mr Donaghue, succinctly put his case in terms of sentencing being outsourced or, alternately, he said the power to determine punishment is delegated and it is by virtue of that outsourcing or that delegation of function by the judicial power that there is the repugnant interaction with the executive power that causes section 18 to be invalid.

With respect, that characterisation of the function, sentencing is outsourced or punishment is delegated is inaccurate. Section 18(3)(a), the function there conferred on the court, forms, in my submission, no part of the sentencing exercise for the predicate offences. By the predicate offence or offences, I mean the offence of a sexual nature committed upon or in relation to a child under the age of 17, subsequently 16 years, for which the offender was found guilty.

Here, the court has a power to declare in addition to or in lieu of. That question is not determined having regard to the common law principles or the principles in Queensland statutorily prescribed for the determination of the appropriate sentence. The discretion vested is not guided by the objectives of deterrence, personal, general, rehabilitation, protection and incapacitation, bounded by proportionality. The task under section 18(3)(a) is significantly different. We are not punishing for the predicate offence. We are involved in a completely different exercise, one that is a matter of preventive detention, indeterminate detention for preventive purposes.

The submission made by my learned friend, Mr Donaghue, sentencing is outsourced, punishment is delegated, also suggests a function that travels well beyond what section 18(3)(a) actually commits to the District or Supreme Court of Queensland. What the court does under section 18(3)(a) at a particular point in time is, if satisfied that the offender is convicted of the relevant predicate offence, and satisfied that two reports from the two experts both arrive at an opinion – at the opinion that he or she is incapable of exercising proper control over his or her sexual instincts, enlivens a discretion as to whether or not the declaration should then be made.

That order, that declaration, requires no assessment of any question of for how long it should be in place, or any indication of the sorts of things that should be taken into account in determining how long it should be in place. It reflects nothing more than a finding at a particular point in time and the exercise of a discretion that it is appropriate in light of that finding and other relevant factors that this person be declared and detained accordingly.

The court could not determine, engaged in an exercise of preventative detention, for how long in any event. The facts relevant to determining that question are simply not there. They depend upon the occurrence of or non-occurrence of future events. The court’s function is one of whether, as I have said, at a particular point in time, having regard to the prescribed criteria it is appropriate to order detention indefinitely and nothing more. Thus, in my submission, nothing is delegated. There is no - - -

FRENCH CJ: Do those figures of speech, “delegate” and “outsource”, actually make any difference to the thrust of Mr Donaghue’s arguments?

KEANE J: Well, they do. They do – they are the hallmarks of separation of powers arguments and the separation of powers argument does not get you there.

MR HINTON: Can I start here - - -

FRENCH CJ: Try mine first.

MR HINTON: I will come here - - -

HAYNE J: Good luck.

MR HINTON: - - - because it is very important that I deal with your Honour Justice Keane’s question and the authority of Browne. In answer to your Honour the Chief Justice’s question, they tend to suggest an intermingling of function which brings us to the separation of powers argument. My point I am trying to make, perhaps not very well, is that there is no interleaving of the judicial function under section 18(3) with the executive function under 18(5).

We come to the separation of powers argument. My learned friend, Mr Donaghue, relied in particular upon Browne v The Queen. My learned friend, Mr Dunning, has taken your Honours to it. I do not want to take your Honours to it again. We have been over it twice already but there are three points that I seek to make about it as to why it can be distinguished.

The first one is the constitutional framework in which that case fell to be considered. It was a separation of powers case. We are not concerned here with a separation of powers question. We are dealing with the States of the Federation. What we are concerned with here is a question of repugnance or incompatibility with matters of institutional integrity. We are concerned with the fitness of State courts as being repositories of federal judicial power. So the starting position is entirely different.

Secondly, Browne was concerned with the imposition of sentence for the commission of an offence, murder. We are not concerned here with that exercise. We are concerned here, not with punishment but preventive detention. Thirdly, Browne being concerned with the imposition of the appropriate penalty - all the facts are there for the court to determine what the appropriate penalty is. That is not this case. We are looking into the future and possibilities, risks.

In those circumstances, in my submission, Browne is distinguishable. It is a separation of powers case. Here, we do not have the interleaving of judicial function and Executive function which those descriptors, those labels – sentencing is outsourced, or punishment is delegated – tend to overlook.

GAGELER J: Browne also concerned mandatory sentencing.

MR HINTON: Yes, your Honour.

GAGELER J: So the Court had no option but to impose the sentence that left, entirely to the Executive, the time the person would be spending in gaol.

MR HINTON: As I recall, that is correct. It was a child convicted of murder, therefore capital punishment did not apply. This was the..... Yes,

your Honour. If my submission as to the characterisation of the judicial function in this case is accepted, then the ultimate submission for the plaintiff on the delegation argument has to be, as we have set out in paragraph 1 of our oral hand up, and it has the consequence set out in paragraph 2. We then, as my learned friends have referred to, and everyone - the interveners and the defendants have referred to – point to history as the answer.

As to the significance of history, in this area of discourse, the Kable principle, we would refer your Honours to what your Honour the Chief Justice wrote in Totani, paragraphs 47 to 51 and 59 to 66. With this addition, the importance of what your Honour there wrote highlights the fact that what we are concerned with here is the content of the defining characteristics of a court of a State within the meaning of section 77(iii). That is the constitutional framework in which this case is to be determined, one poles apart from that in which Browne fell to be considered. If the Court pleases, those are our submissions.

FRENCH CJ: Thank you, Mr Solicitor. Solicitor-General for Western Australia.

MR DONALDSON: If your Honours please. Can we deal first, your Honours, with a response to a question asked by her Honour Justice Kiefel earlier today and it related to the difference between the Queensland regime which is the subject of this matter and more recent dangerous sexual offender type regimes? We have referred your Honours in our outline of oral submissions to our written submissions at paragraph 16 and, in effect, your Honours, the more recent regimes focus upon a finding or a determination of the actual risk of reoffending.

The older schemes proceeded on a doctrinal basis that if there was a finding of a person being incapable of exercising proper control over sexual instincts they were, in effect, statutorily deemed to be a risk of reoffending. There is an explanation of that, your Honours, in an academic paper which, I regret, is not referred to in our written submissions, but it is Smallbone and Ransley and it is “Legal and Psychological Controversies in the Preventive Incapacitation of Sexual Offenders” [2005] UNSWLawJl 19; (2005) 28 University of New South Wales Law Journal 299. The learned authors there track through, as it were, the policy bases of the change from this older style preventative detention regime to the more recent dangerous sexual offender regimes.

In any event, your Honours, it makes little difference, with respect, for the purposes of this legislation and that is because if one looks to O’Shea and I will not ask your Honours to turn it up but it is O’Shea in the judgment of Justices Wilson and Toohey at page 396, their Honours say there that the basis of the South Australian scheme which is identical to the Queensland scheme here was to protect the community, so the purpose of this legislation is protective even though a different formulation was used.

In point 2 of our oral outline, your Honours, we deal with my learned friend Mr Donaghue’s second argument as to invalidity, and as your Honours have dealt with that extensively already I will say only one or two things. Of course, if the provision in section 18(5) is construed properly, then the contention as to invalidity falls away. We have proffered, your Honours, at the first bullet point what we say is the proper construction or meaning of the term “expedient to release” in section 18(5).

If that were to be – and that is simply the flip side of the question asked for determining whether the person ought be subject to detention in the first place - if that question were to be asked today the question would likely be is the detainee by reason of his mental condition incapable of exercising proper control over his sexual instincts and for whom release on parole is not appropriate. I say that would be the question today because, of course, in 1984 there was no parole provision in this particular legislation and so that would not have been the question asked in 1984 or that could not have been the meaning of the term “expedient to release” in 1984 in section 18(5).

HAYNE J: No account would have had to be taken of, first, section 39 of the Mental Health Act 1974 and later 46A of the Mental Health Act, both of which provided for orders in the nature of parole.

MR DONALDSON: I think that is right, your Honour, that is, if the particular detainee fell within any of those and was eligible for release there, then they would fall within that. The words that I have added, “and for whom release on parole is not appropriate”, would encompass in 1984 those earlier statutory regimes.

The second dot point, your Honours, is simply to be understood – and I am not going to proffer countless alternatives – but the second dot point simply raises this point. Your Honours will have understood that the South Australian legislation which was identical to the Queensland legislation has been amended to remove the requirement of a mental condition, so a person who does not suffer from any mental incapacity or a mental condition but who is incapable of exercising proper control over his sexual instincts can be the subject of an order in South Australia, even though not in Queensland. We deal with that in our written submissions at paragraph 24.

The only change that that might make to the construction of “expedient” is whether it would delete the words “by reason of mental

condition” when coming to give a meaning to “expedient”. The only other matter we have raised there, your Honours, is if one were to take a view of “expedient” that meant anything more than, in our respectful submission, it should, which is why were they detained in the first place, then it might be that a relevant consideration could be continued protective detention for the purpose of protecting the detainee, that is, if the detainee were to be or may be subject to some sort of vigilantism it might be thought inexpedient or not expedient to release in those circumstances.

In our submission, your Honours, to dispose of my friend’s second argument, one needs nothing more than the first bullet point that we have stated. In relation to my friend’s first argument, could I just make one observation about that? My friend says, in effect, in answer to a question from Justice Bell – and your Honour put to my friend, I think, a couple of times “Well, of course, if your proposition is correct, that means that all of these historical preventative detention or indefinite detention regimes are and have been invalid”, to which my friend responded “That is probably right, but they were all before the Boilermakers’ Case, so we can disregard them” – or it might have been “or before the Kable Case, so we can disregard them”. With respect to my friend, that is in fact a reversion of how those matters relate here.

What those historical examples illustrate is that courts have historically exercised this jurisdiction. They have been an acceptable aspect of judicial power – certainly State judicial power – in this country. As such, it is difficult in our submission to contend that they are incompatible with, or the continued exercise of those powers is incompatible with exercising federal jurisdiction, or would result in a diminishing of public confidence in the courts who continue to exercise those longstanding powers. The third matter has been dealt with already, your Honours. If your Honours please.

FRENCH CJ: Thank you, Mr Solicitor. Yes, Mr Donaghue.

MR DONAGHUE: Your Honours, a few points in reply. First, a short point – immediately after lunch, the learned Solicitor-General for Queensland commenced with a submission that this regime should be regarded as within one of the recognised exceptions to the Lim proposition. In our submission, your Honours should not accept that contention, and insofar as it was said to be supported by Justice Gummow’s judgment, I would refer your Honours to paragraph 83 of that judgment without taking your Honours to it, where it seems that Justice Gummow thought that it would not fall within such an exception. The passage is a little unclear. His Honour said it is not suggested that it falls within such an exception, so it may be that he was referring to it not having been argued, but it appears his Honour did not think that would be so.

Turning to a question of more substance, and the question of the meaning of “expedient” in 18(5)(b), Queensland proffered what was said to be an orthodox or conventional definition and read some words to your Honours. We submit that does not get one too far. There are a number of dictionary defined meanings of “expedient” and in addition to those our friends gave you, it means advantageous in a general or particular sense, useful or politic, advisable on practical rather than moral grounds. So, the word is capable of having a wide range of meanings, and the question for your Honours is what does it mean in this particular legal context.

Your Honour Justice Kiefel put to the Solicitor-General for Queensland, or asked, does Queensland argue that the criteria line up – the criteria under 3(a) and 5(b), or is there anything beyond risk that would go into the equation and my friend said no. Your Honours should, in our respectful submission, bear in mind in construing this regime that that position is not a position that is consistent with the approach that Queensland has taken previously to the meaning of these words.

So, in the Pollentine cases, it was submitted on behalf of the Attorney-General for Queensland that someone could remain detained even if they were fit for release, and it was submitted that they could remain detained on the basis of anticipated public reaction to removal.

What that illustrates, in our submission – and I should add that the learned Solicitor-General for South Australia in O’Shea submitted in this Court in respect of a similar regime to the same effect, that public reaction fell within the scope of the discretion. In our submission, what that illustrates is that the word is so elastic, potentially, that it embraces or leaves room for a range of possible constructions depending on the forensic purpose.

The forensic purpose in this case, of course, is to limit the distance between those criteria because that would preserve validity. But the difficulty is a practical one that arises for a plaintiff seeking review because if an application is made under 18(5)(b) to the Governor in Council and the Governor in Council – and that application is made on the basis of two medical reports that recommend release and the Governor in Council does not release, there is no requirement for reasons. It may well be impossible to subpoena much of the underlying material to the extent that public interest immunity on Cabinet grounds would be involved.

In practical terms, leaving aside grounds like natural justice, it may, therefore, be very difficult to explore what meaning was given to that word - to the question of expedient for release in a judicial review context. Judicial review is available but how far it gets you in ensuring that the Governor applies the same criteria as the court would have applied, we submit, is doubtful.

HAYNE J: Well, is that right if you let it be assumed you have two medical opinions which, it is accepted, have gone to the Governor – both of them saying this man now presents no material risk. Left unexplained, the decision becomes the fourth category of Avon Downs, does it not?

MR DONAGHUE: If your Honours were to hold in this case that the criteria – that the question is directed towards protection from the public and nothing else, then that may be so although it does, perhaps, assume as, I think, your Honour put to me in my submissions in-chief a binary universe that might not exist. It may not be the case that the medical practitioners will say this person represents no risk. They are more likely to say this person represents a low risk provided they continue their treatment programs and particular conditions are in place.

One then gets to the question your Honour Justice Gageler put to my friend, well, is the question of tolerance for risk necessarily the same as between the court and the Executive, or can the Executive make up its own mind as to the level of risk. The difficulty with this regime, unlike the regimes that expressly say in terms what the test is – it is an unacceptable risk of a particular category of offence shown to a high degree of probability – this legislation gives you no guidance about that. There is no – both the court and the Executive are left in a position where, confronted with this regime, they have to give it meaning. But the meaning that is selected in terms of the level of risk that has to exist before the order can be made is not sufficiently constrained to ensure that there is any marrying up of the entry and exit criteria, to use that - - -

KIEFEL J: You mean it calls out for clarification?

MR DONAGHUE: Well, it is so vague that the idea that the two criteria marry up is not practicable in the way that the regime would be implemented, in our submission.

FRENCH CJ: You might accept that there is the same criterion of risk assessment at entry and release, but the question of what is or is not an acceptable risk is a matter of application.

MR DONAGHUE: If one gets to that question at all, if the tendency - - -

FRENCH CJ: Yes.

MR DONAGHUE: Incapacity to control tendencies takes one to that question, yes, I accept that. It is not clear, with respect – our friends say, well, the criteria that we apply is, I think as they put it, absence of degree of control that would prevent an offence being committed, but that just pushes the problem down the line, because what does “prevent” mean? Is that an absolute guarantee required before – or, to put it another way, does the court order indefinite detention unless it is absolutely certain that the person can control their tendencies or is there some level of possible risk of lack of control that is not sufficient to get one over the line before the order is to be made?

The legislation provides no guidance as to that question, and so it leaves open the possibility that an order will be made with severe consequences for the liberty of the person concerned on the basis of satisfaction of a very low threshold.

Indeed, as I understood the ultimate position that the Solicitor-General for Queensland took, it was, in effect, if there is any risk at all, then that might mean that you cannot get released under (5)(b) because parole might kick in at an earlier stage, I think was how he put it, but that is far from being in any way analogous to Fardon. To completely reverse it because instead of it needing to be satisfied every two years that there is a high risk to justify the continued detention of someone, not for anything they have done, but for something that it is apprehended they might do, instead here, under this regime, the person remains subject to the order under (5)(b) because there is tiny risk that they might commit a future offence and that, we submit, is fundamentally inconsistent with Lim and with Fardon and the approach that they advocate.

Your Honours, finally, with respect to our friend, the learned Solicitor-General for South Australia’s submission, your Honours will recall he submitted that this function is no part of the sentencing exercise and that is, in fact, our primary submission as well, although much of the argument has proceeded on the alternative supposition, so that the proposition that was put is that this function is something extra, not guided by sentencing principles and a different task.

If that is so, it does not serve to save the legislation because while it might suggest that there is no delegation, to use that shorthand, of the punishment function, what it means is that the court is being enlisted into a regime where, notwithstanding the propositions in Lim that detention is to be an incident except in the exceptional case to be attached to or an incident of a determination of criminal guilt, here, quite separately from a determination of criminal guilt, the court is involved in a process which gives authority to the Executive to continue a detention arrangement at pleasure and that, we submit, directly engages the Mistretta line of analysis because the Executive is able to rely upon the court to cloak what is, in

effect, a largely unfettered exercise of Executive detention. If the Court pleases, those are our submissions.

FRENCH CJ: Thank you, Mr Donaghue. The Court will reserve its decision. The Court adjourns until 10.15 tomorrow morning.

AT 3.51 PM THE MATTER WAS ADJOURNED