Vella & Ors v Commissioner of Police (NSW) & Anor [2019] HCATrans 148 (6 August 2019)

Last Updated: 6 August 2019

[2019] HCATrans 148

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S30 of 2019

B e t w e e n -

DAMIEN CHARLES VELLA

First Plaintiff

JOHNNY LEE VELLA

Second Plaintiff

MICHAEL FETUI

Third Plaintiff

and

COMMISSIONER OF POLICE (NSW)

First Defendant

STATE OF NEW SOUTH WALES

Second Defendant

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

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON TUESDAY, 6 AUGUST 2019, AT 10.00 AM

Copyright in the High Court of Australia

____________________

MR J.K. KIRK, SC: May it please the Court, I appear with my learned friend, MR T.O. PRINCE, for the plaintiffs. (instructed by LawyersCorp Pty Ltd)

MR M.G. SEXTON, SC, Solicitor‑General for the State of New South Wales: If the Court pleases, I appear with my learned friend, MR S. ROBERTSON, for both defendants. (instructed by Crown Solicitor’s Office (NSW))

MR S.P. DONAGHUE, QC, Solicitor‑General of the Commonwealth of Australia: If the Court pleases, I appear with MR J.S. STELLIOS and MS S.R. BATEMAN for the Commonwealth Attorney‑General intervening. (instructed by Australian Government Solicitor)

MR C.D. BLEBY, SC, Solicitor‑General for the State of South Australia: May it please the Court, I appear with my learned friend, MR M.E. BOISSEAU, for the Attorney‑General for the State of South Australia intervening. (instructed by Crown Solicitor’s Office (SA))

MS K.L. WALKER, QC, Solicitor‑General for the State of Victoria: If the Court pleases, I appear with my learned friend, MR R.A. MINSON, for the Attorney‑General for the State of Victoria intervening. (instructed by Victorian Government Solicitor)

MR J.A. THOMSON, SC, Solicitor‑General for the State of Western Australia: May it please the Court, I appear with MS K.J. CHIVERS on behalf of the Attorney‑General for the State of Western Australia intervening. (instructed by State Solicitor’s Office (WA))

MR G.A. THOMPSON, QC, Solicitor‑General of the State of Queensland: May it please the Court, I appear with my learned friend, MS F.J. NAGORCKA, on behalf of the Attorney‑General of the State of Queensland intervening. (instructed by Crown Law (Qld))

KIEFEL CJ: Yes, Mr Kirk.

MR KIRK: Your Honours, as you will see in our oral outline I propose first to address the facts, such as they are, mainly because they themselves serve as a useful illustration of the scope and operation of the Act. Then I will take your Honours through the Act in question. I will then seek to develop the main argument and then I will take your Honours to Kable, Fardon and Thomas where the latter two cases in particular are said to be key cases against us.

So if I could start, your Honours, with the facts and go to the special case book and take your Honours to page 53 of the case book, which you will see is the further amended summons from the proceedings brought by the Commissioner of Police against my clients in the Supreme Court of New South Wales.

Your Honours will see at page 53 that the orders sought for a period of 24 months by the Commissioner against my clients, whom I will call the plaintiffs, are first in 1a. So 1 deals with restrictions - 1a, in essence, is an association restriction restricting association or any form of contact with any person known by the relevant plaintiff, as I will call them, to be a member associate, hangaround or prospect of what is called an “Outlaw Motor Cycle Gang”.

I note that that label has no particular statutory significance so far as we are aware. It is implicitly going to presumably be refined at some further date to identify something more specific. Nothing turns on that here.

In b there is a travel restriction: travelling in any vehicle overnight between “9pm to 6am except in the case of a genuine medical emergency”. So that is a significant restriction on movement. My clients, if the order is made, will be allowed to walk but otherwise not much else in terms of movement at night.

Then c: “Attending or approaching any of the following premises”. So this is another type of movement restriction, perhaps connected with an association restriction. It is a restriction on movement such that my clients would not be able to approach any residence, workplace or place frequented by any members, associates, hangarounds or prospects of a so‑called “Outlaw Motor Cycle Gang”.

At d is a limited carve‑out from 1a and 1c for the first two of my clients who are related and is a carve‑out for prearranged family events which have been approved by the NSW police force.

Proposed order 2 is a set of prohibitions – so the first is restrictions, the second is prohibitions. That reflects language in the Act which I will come to. The first prohibition is on possession or having access to various – what are called “encrypted communications” devices and various apps are there identified, some of them fairly common apps which are used for messaging, in effect. “WhatsApp, wickr, snapchat” at least are all messaging apps. Then b, “Possessing more than one mobile telephone”; c – “Possessing any weapon”; d – “Wearing, possessing or displaying any” insignia of the motorcycle group which my clients are said to be associated with.

The grounds are then set out further down that page. They are said to be “persons over the age of 18 years” which is a requirement and then, 1(b), it is said that they have:

(i) been convicted of a serious criminal offence . . . and/or

(ii) been involved in serious crime related activity -

I will give your Honours page references, but then actually go back to the special case where these are spelt out most usefully. At page 63 the convictions are noted. At page 59 the allegations as to serious crime related activity are noted. But they are best captured actually in the special case. The special case starts at page 37 of the special case book. But if your Honours go to page 38 your Honours will see next to line 10 a heading “The Supreme Court Proceedings” and paragraph 5 says:

In the Supreme Court Proceedings, the Commissioner alleges –

various things and paragraph (d) is:

that the plaintiffs to this proceeding have each been convicted –

So (d) deals with the convictions:

of the following offences which the Commissioner alleges are “serious criminal offences” –

Before going through them, I note that at paragraph 6b it is admitted by the plaintiffs:

that the facts of the convictions and sentences set out -

here are correct. So then turning to what the convictions are, for the first plaintiff, as identified in subparagraph i, the first two convictions are theft‑related offences for which the first plaintiff was convicted and imprisoned. The offences were committed some 13 years ago. The first plaintiff was imprisoned for two and a half years; for the second, 12 months.

At the top of the next page, page 39, dealing with the second plaintiff, the first conviction was a larceny offence committed some 18 years ago for which he was convicted and fined $500. Now, 2 and 3 are similar convictions to the convictions for the first plaintiff, theft‑related offences in 2006, and the same terms of imprisonment were imposed.

For the third plaintiff the first conviction is a resist arrest, for which a good behaviour bond was ordered. The second was affray, back in 2011, for which also a good behaviour bond was ordered. The third is an assault for which he was imprisoned for 12 months, a non‑parole period of nine months. The fourth and fifth are offences of affray and resisting. Your Honours will note that for both of them there was a community correction order imposed, including in particular non‑association and place restriction orders. I will come in the not too distant future to the relevant provisions in the Crimes (Sentencing Procedure) Act to illustrate what is involved in those types of orders.

So they are the convictions which are relied upon. As to the serious criminal offences not based upon convictions alleged against my clients, these are set out at subparagraph e on page 40. So roman numeral i, for all three plaintiffs there is an allegation that they participated in a criminal group contrary to a section of the Crimes Act (NSW). So that is uncharged offences – alleged offences.

Subparagraph ii, for the first and second plaintiffs there is a reference in numbered paragraph 1 to an assault occasioning ABH where there was an acquittal by direction, thus before a jury, before the District Court some 12 years ago. Paragraphs 2 and 3 were a set of offences not proceeded with before the District Court some 12 years ago.

Paragraph roman numeral iii, dealing with the third plaintiff, there is an allegation of affray in 2014 for which a charge was brought in the Local Court but withdrawn four and a half years ago. Then at the top of page 41 there are offences alleged to have occurred in Queensland for which my client, the third plaintiff, has been charged. I should note again your Honours will see paragraph 6c. It is agreed that the fact of the withdrawal of charges and acquittals and so forth are as set out in subparagraph b.

What the further amended summons thus usefully illustrates is the range of operation of the impugned act in this case and in particular that it covers serious criminal offences which have been the subject of convictions and punishments, acquittals, charges but not yet heard or matters which have not been the subject of charges.

GAGELER J: Mr Kirk, are there pleadings in the Supreme Court?

MR KIRK: No. This is as good as it gets.

GAGELER J: I would be assisted by understanding what it is that the Commissioner of Police contends the Supreme Court should find as a matter of fact in order to make the orders that are sought. That need not be comprehensive but if he took order b, for example, the travelling in a vehicle order. What findings of fact is it contended the Supreme Court needs to make in order to make that order?

MR KIRK: I will have inquiries made as to what degree of specificity has been provided to my clients in the course of the Supreme Court proceedings and we will let your Honour know over the course of the day.

GAGELER J: Thank you.

MR KIRK: I should say, obviously enough, that it is a constitutional challenge to the Act. The facts of the allegations put here are, in substance, illustrative of the range of the Act. It is not as though validity of this Act is going to turn on particular matters relevant to my client, but as it happens they are a nice illustration. I should note there is no issue as to standing in the case; that is admitted on the pleadings in this Court.

Can I then take your Honours to the Act, which is in volume 1, tab 3 of the joint bundle of materials, starting at, relevantly, page 16. I will just go through it, starting from the top. Your Honours will see that the Act is called the Crimes (Serious Crime Prevention Orders) Act 2016.
Starting with the definitions which pick up key operative terms in section 3(1), your Honours will see first there is a definition of “appropriate court”:

if the ground for making the order is that the person has been convicted of a serious criminal offence –

then that includes either the Supreme or the District Courts, but if the allegation is not based on a conviction then it is only the Supreme Court. So far as we could see from the extrinsic materials no explanation was given as to why a distinction was drawn in that regard. It may perhaps be that the Supreme Court was seen as more appropriate for the disputed issues of fact which would arise and/or for the legitimacy it would grant or be perceived to grant to the process. “Eligible applicant”, your Honours will see there are three of them:

(a) the Commissioner of Police,

(b) the Director of Public Prosecutions,

(c) the New South Wales Crime Commission.

Without going to our written submissions, as we know, in primary submissions 49 and reply paragraph 12, the DPP, the principal function of the DPP – not the only function, but the principal function is of course prosecuting offences. The Commissioner of Police, as we explain in our written submissions, and police officers commonly do bring charges in Local Courts, which may then either be dealt with in that court or are then the subject of an indictment in a higher court.

The New South Wales Crime Commission does not have a function of commencing prosecutions. It is an investigative body, but one function of which is to assemble evidence and provide that to the DPP. Without going to it, I note the Crime Commission Act 2012, section 10(1)(b).

Down the bottom of the page, your Honours will see a definition of “serious crime related activity”, meaning:

anything done by a person that is or was at the time a serious criminal offence –

Just pausing there, “is or was at the time” picks up “at any time”, including prior to the operation of this Act. That is made clear at page 23, Schedule 1, clause (2), where it is indicated that it has that degree of respective operation.

Before turning over the page, can I also note that where it says “means anything done by a person that is or was at the time a serious criminal offence”, we suggest that that includes everything involved in the offence, including mens rea, that is to say, a person would not have done something that was a serious criminal offence unless they had done something to satisfy all elements of the criminal offence, including whatever mens rea element there is.

Now, before the colon there are the words “whether or not” and then over the page it covers the four possibilities I alluded to earlier, namely “charged” - so whether or not a person has been charged so it includes where the person has not been charged or, if charged, whether they have been tried, tried and acquitted or convicted, including convicted where the conviction has been quashed or set aside. All possibilities are covered.

Just before I come to the definition of “serious criminal offence”, can I note that the only significance of the word “activity” in “serious crime related activity” is to pick up those variants, namely, whether or not you have been tried, tried and acquitted, and so forth. What in substance is being dealt with by this notion is a serious criminal offence as defined. The word “activity” adds little except those variants, as I have said.

As to what is a serious criminal offence, your Honours will see that is said to have the same meaning as in the Criminal Assets Recovery Act. Can I jump to that Act which is at the next tab, tab 4, relevantly at page 27 of the joint book. Section 6(2) your Honours will see it says:

In this section, a reference to a serious criminal offence is a reference to -

Subsection (a) covers a predecessor of the main drug Act in New South Wales, which was enacted in 1985. So that itself illustrates how far back this may reach. Subsection (b) is:

a drug trafficking offence –

which your Honours will see is further defined in subsection (3) down that page. In essence, that picks up most indictable drug offences under the 1985 Act, that is to say, the Drug Misuse and Trafficking Act 1985 (NSW). Going back to subparagraph (c):

a prescribed indictable offence . . . that is of a similar nature to a drug trafficking offence, including –

under laws elsewhere in Australia. Subparagraph (d) is the most significant subparagraph because it is the most encompassing. Your Honours will see that it picks up any offence which fits into any one of those very broad range of categories: theft, dishonesty, violence, perverting the course of justice, even tax – where the potential punishment is five years or more.

Subparagraph (e) is some firearm offences in a drug premises offence. Subparagraphs (f) and (g) are certain sexual offences. We have noted the details in our primary written submissions. Subparagraph (g) is specific provisions in the Crimes Act about participating in or receiving material benefit from criminal activities of a criminal group. Your Honours will recall that that is one of the allegations against my clients which has not been the subject of any previous charge. That is (g1), sorry, I should have said. Subparagraph (h) is also significant - an offence relating to:

the destruction of or damage to property having a value of more than $500 –

so a relatively insignificant offence potentially. Subparagraph (i) is significant:

an offence under the law of the Commonwealth or a place outside this State (including outside Australia) which, if the offence had been committed in this State, would be a serious criminal offence -

So anything done anywhere, if it would be an offence in New South Wales, is also captured by the notion of serious criminal offence and subparagraph (j) encompasses variance of extended liability. The net result is that the term “serious criminal offence”, as defined here and picked up in the impugned Act, covers the great bulk of non‑summary offences in New South Wales with the notable exception, as we have referred to in our written submissions, of common assault, for which there is a maximum penalty of two years, but that is the most notable exception.

Can I note we said in our primary written submissions at paragraph 50 words to the effect of what I have just said, that it covers most non‑summary offences and that has not been gainsaid in any response from the defendants.

Going back then to the impugned Act, I had got to the end of section 3. Can I go to section 4 ‑ your Honours will see that is on page 17 – which defines a notion of “involved in serious crime related activity”. That is the term defined back in section 3. There are three variants of involvement: one, that the person has engaged in that serious crime related activity; second, that they have facilitated another person doing so or that they are likely to facilitate.

We note in our written submissions that there does not appear to be any mens rea element for (b) and (c), but for (a), because it is engaged in serious crime related activity, as I put earlier, that would involve the standard mens rea element for any particular offence. It is fair to say that our focus in challenging the Act is insofar as it operates by reference to the definition in (a): “engaged in serious crime related activity”.

Turning then to Part 2 headed “Serious crime prevention orders”, section 5(1) sets out what might be called the jurisdictional facts which must exist before an order can be made under section 6(1). The first is that if it is a natural person they have to be an adult. I note for completeness it could also be a company. That, of course, is something readily capable of objective satisfaction and establishment. Then:

(b) the court is satisfied that:

(i) the person has been convicted of a serious criminal offence, or

(ii) the person has been involved in serious crime related activity for which the person has not been convicted -

and then in what is perhaps strictly superfluous but a matter of emphasis, it says:

(including by reason of being acquitted of –

et cetera. It is strictly superfluous because that is part of the definition of “serious crime related activity” in any event.

The first of those, (b)(i), is obviously capable of ready establishment by tender of a certificate or such like; (b)(ii) insofar as it is focused on having engaged in some serious criminal offence would involve a trial essentially like a criminal trial. Was there an offence done? Was the actus reus satisfied? Was there mens rea? That may potentially be – in fact, perhaps commonly will be the key focus, certainly a key focus of any trial where one of these orders is sought and disputed. The next jurisdictional fact, in subparagraph (c), is:

the court is satisfied that there are reasonable grounds to believe that the making of the order would protect the public by preventing, restricting or disrupting involvement by the person in serious crime related activities.

Now, if I could make a series of points about this. First, reasonable grounds ‑ your Honours would be very well familiar with that territory, and it is reasonable grounds to believe. Without going to it, in paragraph 25 we refer to the usual passages from George v Rockett. As your Honours well know, that means reasonable grounds – that is to say, grounds that would persuade a reasonable person by way of inclining here the judge’s mind to assenting to the proposition.

That is the language from George v Rockett. Belief is an inclination of the mind and, as explained by this Court in George v Rockett, that can be more slender than proof. So it is deliberately picking up a phrase well known to the law and one which is deliberately relatively easily satisfied on evidence that may be more slender than proof.

GAGELER J: Does anybody actually have to hold the belief? Does the Court have to believe on reasonable grounds or is this a more amorphous test?

MR KIRK: There is an ambiguity there as often arises with those expressions, to put it simply, as to whether there is a subjective element as well as an objective element. It does not state that there is a subjective element. It just says “is satisfied that there are reasonable grounds to believe”. Given what that phrase means in the well‑recognised notion of it and given that is something more slender than proof, it would certainly not be the case that the court, the judge needs to be satisfied or actually to believe these things, just that there are reasonable grounds meeting the George v Rockett test, in our respectful submission.

Then, moving on in the phrase, it talks about “would protect the public by preventing”, et cetera. Your Honours would have seen in the written submissions that Victoria suggests that that is itself almost a quasi element of the phrase. We respectfully submit the word is “by” not “and”. In other words it “would protect the public” not as a generic requirement of which the judge must be satisfied but would do so by doing one of those things.

So if it is established that there are reasonable grounds to believe that the making of the order would prevent, disrupt or restrict involvement by the person in serious crime related activities that is enough. It is not some additional requirement that it also has to be seen to protect the public.

Thirdly, about this jurisdictional fact, it is future looking because it is looking to doing one of those things: preventing, restricting, disrupting involvement, et cetera. But for the reasons I have already sought to articulate it may be readily satisfied, as a judge may readily be reasonably inclined to accept that a wide range of orders may prevent involvement by the defendant to the proceedings in some serious criminal activity where that of course picks up the same, very broad definition as before.

We gave an example in our written submissions from a case actually about a – a criminal asset recovery case where someone had stolen five jumpers from David Jones and then was ordered to forfeit certain property. It was a different regime, but it is illustrative that relatively – and that is larceny, which would be covered, that a relatively low threshold is required to persuade a judge that some order might restrict a person from engaging in further theft, or any other serious crime related activity.

It is important to note there is no requirement that the court find the person is likely to commit future offences. I am going to come, towards the end of my oral submissions, to Fardon, but that is a very significant distinguishing feature from Fardon.

EDELMAN J: Well, at some stage you are going to have to unpack section 6(1).

MR KIRK: I am coming to that, yes.

EDELMAN J: And whether likelihood has any role in section 6(1).

MR KIRK: To pick up your Honour’s point, because of what – can I just make one point and then I will come back to that, if I may. We also note that within (c) there is no requirement of reasonable necessity or such like. Nor is there in section 6. We have referred in our primary submissions at paragraph 26 to the legislative history.

There was quite an extended debate about this legislation in the Upper House which is reproduced, without taking your Honours to it, at volume 5, tab 46. The Opposition proposed quite extensive amendments to section 5 to spell out what was involved in reasonable grounds to believe but those amendments were rejected. Without going to it, that is at page 2308 at tab 46 of volume 5.

The hurdle in 5(1)(c) is, yes, it is forward looking. It is, as I have sought to say, likely to be fairly readily satisfied, likely to be a less significant hurdle in most cases than establishing what is involved in 5(1)(b), insofar as it depends on (2), as opposed to prior convictions.

Now, then to pick up the issue your Honour Justice Edelman raised with me. If your Honours look at section 6(1), which is the power actually to make the order, your Honours will see that the language is very much the same in terms of the condition, namely:

for the purpose of protecting the public by preventing, restricting . . . in serious crime related activities.

But here it introduces a couple of notions. First, what the order may do – prohibitions, restrictions, requirements and other provisions – and, secondly, the level of persuasion or the guide to judgment, namely what the court considers appropriate. So to unpack that a little – sorry, Mr Prince has corrected me.

GORDON J: It is not a power, is it?

MR KIRK: No.

GORDON J: Section 5 is the power.

MR KIRK: Yes.

GORDON J: Section 6 just sets out what the orders may or may not contain.

MR KIRK: That was Mr Prince’s correction of me. Your Honour is quite right, with respect. Section 5 is the power. Your Honour has articulated it correctly, with great respect. In terms of section 6, it may contain a wide range of restrictions. So

prohibitions, restrictions, requirements and other provisions –

It does not spell out, in terms, what those may be. In subsection (2), it spells out what they may not be. So, for example, it may not be:

to answer questions or to provide information orally –

but, by implication, could, in writing. There is protection of client legal privilege and certain other privileges or confidences and so forth – see (c). Oddly, there is a protection for banking businesses in (d) and (e) picks up other disclosures covered by the Evidence Act. But that is a very limited list of exclusions illustrating, conversely, the broad range of matters that may be covered by an order under section 6(1). It would certainly encompass positive or negative requirements, provide information unless excluded by subsection (2), answer questions in writing, provide documents, restrictions on communication, movement, association or conduct.

We would suggest it would encompass, for example, a restriction that someone stay at a particular location for certain periods of the day. In fact, what is sought against my client is not quite that but approaches it because there is something approaching a night time curfew. If you can have something approaching a night time curfew there is no reason you could not have a curfew – you have to stay at home between 9.00 pm and 6.00 am. If you can have that you could have something saying you have to stay at home except at lunchtime. It could be very, very significant restrictions.

As to the word “appropriate” which I think is implicitly also one of the ones your Honour Justice Edelman was raising with me there is no – it is obviously a familiar word in the law and I am not going to suggest it is not. It comes up in a range of contexts. The defendants point out in section 87 of the Competition and Consumer Act the broad range of remedies that might be given for breach. I think it is used there.

But what is distinguishing here about it is that there is essentially no guidance as to what might be considered appropriate for the purpose of protecting the public. There is argument put against us by many of the interveners and implicitly by the defendants that, for example, it is said some notion of proportionality is brought in by “appropriate”.

The States, I cannot help but notice, seem rather keener on proportionality here than perhaps they are in other contexts. But the reference that they rely on is an English Court of Appeal case called Hancox which, for completeness, is at volume 4, tab 35 of the bundle, a decision of the English Court of Appeal overtly relying upon the European Convention on Human Rights as incorporated in the UK by the Human Rights Act 1998 which, of course, is a distinguishing feature from New South Wales.

So, to read in such a restricting notion does not have a statutory basis of the kind that it does in the UK where, I should note, as your Honours would appreciate, this legislation has a United Kingdom progenitor. I think it is called the – it is in the bundle – the Serious Crimes Act 2007 – it is at tab 14 of the bundle. What will happen in practice, given the submissions we have sought to make about section 5(1)(c) and it being a relatively low threshold, is that the ‑ ‑ ‑

EDELMAN J: Sorry, on this last one, on section 6(1), you accept, do you, that the court considering appropriate is a restriction upon the power in 5(1)(c)?

MR KIRK: Only of the broadest kind. It is hard to think of what broader word could be used. It is a very open ended – it is not a discretion, of course, but it is an evaluative criterion of the broadest kind.

EDELMAN J: Why would not the criterion be exercised in a similar way to the restriction in constitutional terms of “appropriate and adapted”?

MR KIRK: Well, that is to read in an awful lot to a Crime (Serious Crime Prevention Orders) Act from a very different context. Where this is intended ‑ ‑ ‑

EDELMAN J: Proportionality has been applied across a very, very wide range of contexts apart from constitutional contexts.

MR KIRK: It depends of course, too, on what one means by “proportionality”.

EDELMAN J: Reasonable necessity, adequacy in the balance and so on.

MR KIRK: That sort of three‑level notion of proportionality is the sort of proportionality that the English Court of Appeal was speaking about in Hancox, but very much influenced by the European Convention case law as ‑ ‑ ‑

EDELMAN J: One sees it in competition law; one sees it in various other different areas of the law.

MR KIRK: In somewhat different ways. I am not going to deny that those sorts of concepts come up in a range of ways but not in quite the same structured way as the European notion of proportionality as picked up in the United Kingdom and in constitutional case law here.

We would also note that there is no real guidance from the statute here as to what “appropriate” means, save for that criterion “appropriate for the purpose of protecting the public by preventing”, et cetera. So the driver of the judgment is, is it appropriate to prevent or restrict, disrupt involvement by the person in serious crime related activities. That is the judgment that is to be made in the end.

Insofar as there is any analogous guidance, the best guidance is probably going to be criminal law sentencing, insofar as protection of the public is one of the elements of sentencing, as your Honours will appreciate. It is one of the four key elements as identified by the judgment of this Court in Veen (No 2). I will come back to that point.

KIEFEL CJ: Before one gets to section 6(1), of course the court has to face whatever it is required to do under 5(1)(c).

MR KIRK: Yes, and the two will tend to blur in together.

KIEFEL CJ: Well, it has to first be satisfied about something to make its orders. The content of the orders comes later, on one view.

MR KIRK: Yes.

KIEFEL CJ: Under 5(1)(c), the court is charged with regulating the behaviour of a particular person and the sole basis is protection of the public.

MR KIRK: By doing one of those things – preventing, restricting or disrupting involvement by that person in future serious crime related activities.

KIEFEL CJ: But if you were talking about lack of guidance, would not your focus be here?

MR KIRK: Because the statutory language is very much the same, save for the word “appropriate”, they tend to run together, but your Honour may well be right.

EDELMAN J: But you also have “the order” in 5(1)(c).

MR KIRK: Indeed. Justice Davies in the New South Wales Supreme Court, in a case which is referred to in our written submissions, has suggested that the order means that one must have an order in contemplation, illustrating that 5(1)(c) and section 6(1) tend to run together in practice. It is one of the decisions which has considered the – I will give your Honour the reference in a second - operation of this Act prior to this case being brought. It is in our primary submissions.

Dealing with other aspects of the statutory scheme, if I can go to aspects of – back to section 5(5) on page 18. Your Honours will see that there is a – sorry, your Honours, just to complete what I was saying. The decision of his Honour Justice Davies in the New South Wales Supreme Court is referred to in footnote 28 of our primary submissions. It is Commissioner of Police v Cole [2018] NSWSC 517.

Going back to section 5(5), your Honours will see there is a special provision made in relation to hearsay evidence. The relevant criterion, apart from notice requirement in 5(b), is in (a), namely that:

the court is satisfied that the evidence is from a reliable source and is otherwise relevant and of probative value –

I note that the defendants say at paragraph 52 of their written submissions that this implies it is only if it is necessary to rely on such evidence that it might be admitted. We would say there is no textual basis for reading in that requirement.

Can I also note just whilst I am here, a point which sounds right, at the end of my submissions, about severance, that in practical terms this hearsay special provision will be of significance to 5(1)(b)(ii), where the court is trying, whether or not a defendant has committed a serious criminal offence without having been convicted. That is where it will have work to do. It will not have work to do of any conceivable substance in relation to 5(1)(b)(i), because if there is conviction they will just tender a certificate or some such thing illustrating the convictions of some part of the court process.

Going over to page 19, I note section 6(3). Your Honours would recall there are exclusions in section 6(2) as to what an order might require. Section 6(3) indicates that any:

answer given, or document or other information provided . . . is not admissible as evidence against that person -

So that illustrates that such material can be required to be provided but there is no restriction on derivative use or so forth. Section 7(2) identifies the potential length of an order, and it is up to five years. Section 8 deals with contravention of an order, and there is a potential penalty of five years’ imprisonment.

Sections 9 and 10 deal with winding up of corporations and disillusion of partnerships if they have contravened orders. Section 11, on page 21, deals with rights of appeal and an “applicant for the order” or the person against whom the order is made has an appeal as of right on questions of law – see subsection (2) – and with leave on a question of fact. Section 12 is significant, and deals with variation or revocation. Subsection (1) empowers the court which made the order to vary or revoke it at any time on application by either the applicant, the Commissioner or DPP, et cetera, or the subject of the order.

But subsection (2) indicates that if it is the subject of the order who seeks a variation or revocation leave is only to be granted to make such an application if the Court is satisfied there has been a substantial change in the relevant circumstances since the order was made or last varied. So there is a threshold which must be met before the applicants then seek to have the order changed or varied.

That, as I will come to, is another very significant contrast to Fardon and tends to remove or weaken any arguments that this is all just about ongoing current protection because, as was spelt out in the judgments in Fardon, implicitly spelt out, to have a focus on ongoing protection requires an easy ability to keep things under constant review. In the Fardon legislation there was a requirement for annual review where each time the onus was back on the effective applicant to re‑justify it every year. So these can go for up to five years without rejustification and an impediment to seeking revocation or variation by the person subject to the order. Section 13(1) is significant:

For the purposes of this Act, proceedings on an application for a serious crime prevention order are not criminal proceedings.

Then subsection (2) spells out something about rules of construction in criminal law not applying and:

the rules of evidence applicable in civil proceedings (including as to the burden of proof) apply, and those applicable only in criminal proceedings to not apply –

So the section makes clear that any special protections applying to accuseds in the criminal process do not apply in the context of this regime. One illustration of that, again, nicely brought home, with great respect, by the judgment of Justice Davies that I referred to a couple of minutes ago, is that the principle in Jones v Dunkel can and does apply to persons the subject of these proceedings. So if you do not give evidence as a defendant then inferences may be drawn against you of the usual kind. I note, for completeness, that we pleaded that point at the further amended statement of claim, paragraph 21, namely, the Jones v Dunkel point and that is admitted in the amended defence, paragraph 21.

They are the key provisions of the Act. Before I go on to the argument can I take your Honours ‑ ‑ ‑

GORDON J: Can I ask two aspects about the statutory structure just to make sure that I am clear. You accept, as I understand the way you put it, the lack of criteria against which the court is to determine this that two things are open. One is it can extend to restrain otherwise lawful conduct. Is that right?

MR KIRK: Yes.

GORDON J: Second, that this does not have the minimum provision you see in some of the other statutory schemes – that is, one is to adopt a minimum view about – one does not make order X if Y will do, this sort of usual statutory direction about the way in which the court might even look at it, having determined what the range of possible orders is.

MR KIRK: Yes, precisely so, and recalling, too, there is no requirement of establishing likelihood of committing any particular offences. That is not to say there is no future‑looking element because the court does have to be satisfied about preventing, restricting or disrupting involvement. But, in contrast, to say the scheme of ‑ ‑ ‑

GORDON J: Thomas.

MR KIRK: That Fardon or Thomas is very future focused about significant likelihood of very bad things happening, nothing like that is set out here.

KIEFEL CJ: They were addressing a risk.

MR KIRK: Sorry, your Honour.

KIEFEL CJ: They were addressing a risk.

MR KIRK: Yes, and very identified risks of a very specific kind. Whereas here, it picks up, as I put earlier, nearly all indictable offences in New South Wales plus offences outside of New South Wales, including Commonwealth offences.

EDELMAN J: So, the 6(1) condition, in your submission, would not, for example, restrict in the example you give of a potential order being made against a person who had stolen five jumpers from David Jones requiring the person not to leave their house or not to attend any department store?

MR KIRK: Yes.

EDELMAN J: “If the court considers it appropriate” would not bite then.

MR KIRK: To be clear, I am not suggesting that the court in every case is going to go ordering home detention because a person has stolen five jumpers from David Jones, but they certainly might readily be persuaded it was appropriate to exclude them from David Jones or all department stores, or so forth.

EDELMAN J: Home detention would be possible.

MR KIRK: Would be possible.

EDELMAN J: Does the phrase “if the court considers it appropriate” do any work at all?

MR KIRK: The court must ultimately be prepared to say that, yes, this is:

appropriate for the purpose of protecting the public by preventing, restricting or disrupting involvement by the person –

So, there must be some threshold of persuasion as to appropriateness. But, very little guidance as to what is involved in that, beyond, as I said, perhaps analogies from criminal sentencing insofar as that takes account of protection of the public.

GORDON J: Can I ask one more question and it is about the actual object and purpose of this Act? In very broad terms, do we get anything out of the extrinsic materials about what is actually being tried to achieve here? In your submission, you have got a wide range of potential people that this Act is exposed to – a low bar – and, as I understand it, a largely unrestrained lack of criteria against which the Court is to assess this application. The Act says it is an act to make serious crime prevention orders which is not very helpful.

MR KIRK: No.

GORDON J: What is the purpose of it?

MR KIRK: There is not a lot of guidance given but if I could take your Honour to the second reading speech in the Legislative Council which is at volume 5, tab 46, page 2270, and recognising that this second reading speech actually related to two Bills. So, your Honours will see at about point 5, there are two headings – the heading for this Bill and also the Criminal Legislation Amendment (Organised Crime and Public Safety) Bill. And then in the first paragraph, second sentence, it says:

The purpose of these bills is to deliver on the Government’s election commitment to introduce tough new powers to give police the upper hand in the fight against serious crime.

Now, I recognise that that may encompass both Acts but it does appear to encompass both Acts. Then, there is a reference to:

These powers include United Kingdom‑style serious crime prevention orders to disrupt the activities of serious criminals.

Then, over the page, at 2271, internal page 46, at about point 2 or 3, the Minister said:

I now turn to the detail –

of the relevant Bill and the Minister goes through it, refers to having adopted:

some aspects of the United Kingdom’s . . . provisions . . . and adapted them to suit the New South Wales legislative framework.

There is not, otherwise, a lot of exposition that would assist to answer your Honour’s question.

KIEFEL CJ: There have been no challenges to the provisions of the Serious Crime Act in the United Kingdom, even under the Human Rights Act?

MR KIRK: Not so far as I am aware.

EDELMAN J: There has been an enormous volume of literature as to how discretions ought to and do operate in relation to control orders and provisions of the 2007 Act. Is any of that of any relevance?

MR KIRK: There is the case relied on by a few parties against us, which is Hancox that I have referred to. I think that is probably the high point of what is put against us. The legislation is not quite identical, but it is very similar. In further very indirect answer to your Honour Justice Gordon, can I note just for completeness that New South Wales has two other relevant pieces of legislation which are part of the milieu here. New South Wales has Fardon‑style legislation which is called the Crimes (High Risk Offenders) Act 2006 and it also has Wainohu legislation, that is to say, after this Court invalidated the legislation considered in Wainohu was re‑enacted but the problem in respect to reasons was fixed, and that is the Crimes (Criminal Organisations Control) Act 2012. So those pieces of legislation preceded this and this is ‑ ‑ ‑

GORDON J: I think that is why I asked my question, and that is is that one – it is asking what is the gap that it is filling that is not provided by either existing legislation, or in an extreme case in a civil context application by injunction for the restraining of in exceptional circumstances threatened criminal conduct which we know from those authorities is only exceptional, and courts are very reluctant to grant injunctions in equity in that area. So what is the purpose of this gap – what is the gap it is filling, if any?

MR KIRK: I cannot answer that question because it does not appear in the extrinsic materials.

GORDON J: It is not just the extrinsic materials. It is trying to identify if it has a particular purpose that is otherwise not ‑ ‑ ‑

MR KIRK: In a sense that is probably more a question for my learned friend, the Solicitor‑General for New South Wales. Your Honours would see from the second reading debate in the upper house that the legislation was not without controversy.

GAGELER J: Mr Kirk, just returning to section 5(1)(c) for a moment, I understand your submission to be that there is no threshold of likelihood of involvement by the person in a serious crime related activity.

MR KIRK: Correct.

GAGELER J: So all that needs to be done by the Court is that the person has at any time been convicted of a serious criminal offence and that is 5(1)(b)(i), or (ii) can come into play.

MR KIRK: Yes.

GAGELER J: Then it is sufficient, is it, that the Court is satisfied that there are reasonable grounds to believe that if the person were to be involved in a serious crime related activity, this order would in some way disrupt that involvement. Is that all that is involved, in your submission?

MR KIRK: It may be a little more than that, that it is:

would protect the public by preventing, restricting or disrupting involvement by the person in serious crime related activities.

So I am not suggesting there is no aspect of making some assessment as to whether they may be engaged in serious crime related activities in future. But it is not the threshold of likelihood or high degree of likelihood or so forth that they will be.

GAGELER J: Is there some threshold that the court has to discern for itself, or is there no threshold at all? That is really my question.

MR KIRK: It is wrapped up, we would respectfully submit, in “reasonable grounds to believe” in the George v Rockett sense. So the judge has to have an inclination of the mind towards assenting to the proposition that to make this order sought would prevent, disrupt or restrict involvement by this person in serious crime‑related activities in the future.

EDELMAN J: If you read the order, as I understand you do, as this order sought, is it not necessary then to link the condition that the court considers it appropriate to the prevention, restriction and disruption of the involvement by the person in serious crime‑related activities? In other words, the court has to consider the order appropriate in order to prevent, restrict, disrupt involvement?

MR KIRK: I would not dispute that. I seek to reiterate one critical feature of all this, that even apart from seeking to disinter what is involved in 5(1)(c) and section 6(1), a key point that I will seek to emphasise over the course of the argument is that a core focus of the court in considering whether to make such an order is the 5(1)(b) criterion and particularly 5(1)(b)(ii), which as I put earlier may involve in substance, say, a quasi‑criminal trial.

Before I move to the argument can I just take your Honours to one other piece of legislation, which is at volume 1, tab 9. I said I would come to this. It is the familiar Act, the Crimes (Sentencing Procedure) Act 1999, which your Honours know is the main sentencing guidance in statute in New South Wales. Can I take your Honours first to page 207 in the book, section 3A, “Purposes of sentencing” and just ask your Honours to read that?

Although expressed slightly differently, in essence they cover what was identified in Veen (No. 2), namely retribution, reform, deterrence and protection of the community. I will come back to the significance of that shortly in my argument. I just wanted to draw attention to it now.

On page 208 in section 7 at the bottom of the page – this is actually within Division 2 “Custodial sentences” – your Honours will see a heading “Intensive correction orders” and section 7(1) says:

A court that has sentenced an offender to imprisonment . . . may make an intensive correction order directing that the sentence or sentences be served by way of intensive correction in the community.

What is involved in that is spelt out in Part 5, as alluded to in subsection (4), and I will come to that part in a second. A non‑custodial alternative is a community correction order – section 8(1) – instead of imposing a sentence of imprisonment. So an ICO is if the court is going to impose imprisonment, it can then do it in another way, in effect. A CCO is instead of a sentence of imprisonment, the court may make a community correction order and the details of that are spelt out in Part 7.

At page 212, section 17A, Division 4A is “Non‑association and place restriction orders”. Subsection (1) of 17A sets out when the section applies, so something “punishable by imprisonment for 6 months or more”, so that would pick all the sorts of offences the impugned Act is concerned with. Subsection (2) says:

When sentencing an offender . . . a court may make either or both of the following orders . . .

(a) a non‑association order . . . or

(b) a place restriction order . . .

if it is satisfied that it is reasonably necessary to do so to ensure that the offender does not commit any further offences –

Your Honours will note in passing that language of reasonable necessity there, in contrast to section 6(1). As to what those orders are, they are fairly self‑explanatory. They are expanded on a bit in subsection (3). Subsection (5) says it:

must not exceed 12 months.

But subsection (6) says:

This section does not limit the kinds of prohibition or restriction that may be imposed on an offender by means of any other order or direction under this or any other Act –

So the relevance of that is that type of order can be made under Part 5, and under an intensive order, or Part 7, a community correction order, and for a longer period than 12 months. Your Honours would recall that I think it was for the third plaintiff, he was the subject of a community corrections order, and had non‑association orders and place restriction orders placed on him for two of his convictions.

To then go to Part 5 at page 266 of the book, so this is spelling out what is involved in intensive correction orders.

BELL J: What section is this?

MR KIRK: Sorry, your Honour, section 66.

BELL J: Thank you.

MR KIRK: It actually starts at 64, but I will go to 66. Subsection (1):

Community safety must be the paramount consideration when the sentencing court is deciding whether to make an intensive correction order –

Without going through section 67 in detail, that spells out when one cannot make an ICO for certain types of offences. Section 68, at the bottom of page 267, says:

An intensive correction order must not be made . . . if the duration of the term of imprisonment imposed for the offence exceeds 2 years.

So to put that another way, if the judge would wish to imprison the accused for up to two years, that term of imprisonment can, in effect, be deemed to be served by one of these ICOs but not if they are inclined to imprison them for more than two years.

Section 72, at the bottom of page 268, spells out three types of conditions in an ICO ‑ standard, additional, further. Standard conditions in section 73 are essentially not commit any further offence, and submit to supervision. 73A deals with additional conditions and subsection (1) says:

the sentencing court must at the time of sentence impose . . . at least 1 of the additional conditions –

Those are then spelled out in subsection (2). We would say, or respectfully submit, that all of those with the possible exception of (d), which might be arguable, could be encompassed by a serious crime prevention order including, of course, a non‑association condition or a place restriction condition, which are the very types of orders sought against my client in the Supreme Court.

As to the third type of condition, further conditions, that is dealt with in 73B and is a sort of generic discretion to impose further conditions with certain limitations. So that is intensive correction orders. Part 7, starting on page 270, starting at section 84, deals with community correction orders. The term of a CCO may be up to three years – see section 85(2).

Section 87, again, is the same format. You must have standard conditions. You can have additional conditions or further conditions. The standard condition is section 88(2). The additional conditions are section 89. Interestingly, it says:

The sentencing court may at the time of sentence, or subsequently on the application of a community corrections officer or juvenile justice officer or the offender -

impose any additional conditions or vary or revoke. So it can change, presumably over the specified time of the community correction order, up to three years and it can change for the better from the offender’s point of view or for the worst, in terms of having more conditions imposed on them. So it is a very flexible sentencing regime.

As to the additional conditions, they are spelt out in 89(2). They include a curfew, et cetera, and again, all of those except perhaps the community work, which would be arguable, would be encompassed by an order under the impugned legislation here.

BELL J: Well, you contend indeed that the limitation, for example, on a curfew under 89(2)(a) does not necessarily apply under this challenged legislation.

MR KIRK: Yes, your Honour is right about that, with respect. For CCOs, they are a bit more restricted than ICOs because it is a lesser form of punishment. So see subsection (3). A CCO cannot encompass home detention and that little tension illustrates the point in the sense your Honour just drew my attention to. A distinction is drawn between home detention and something like a night‑time curfew or electronic monitoring or a curfew exceeding 12 hours, et cetera. Then section 90, over the page at page 273, is the third category of further conditions. That is the generic power, subject to the limitations above.

The point of taking your Honours to that Act is to illustrate that under current sentencing law for the criminal offences in New South Wales it is a very flexible regime which encompasses making very much the type of orders by reference to purposes which include protection of the community as could be made under the impugned legislation.

That brings me to a key argument put against us. Before I develop our arguments can I seek to deal with one key argument put against us by essentially everybody, which is to seek to draw a distinction between protective and penal regimes. They key answer put in various ways by all parties against us is that this impugned scheme should be characterised as protective, not penal in purpose and character, such that it does not undermine or form an alternative to the criminal justice system.

Some parties also seek to place great weight on the fact that it is designated “civil” and not “criminal”. New South Wales, for example, says at paragraph 9 of its submissions that it is not punishing for past conduct. None of those variants of the argument are an answer to our case, in our respectful submission, for the premise is, of that type of argument, that one can put proceedings neatly into one box and not the other and that premise is wrong.

In relation to protective purpose, I have already identified section 3A of the Crimes (Sentencing Procedure) Act and referred to Veen (No 2) which illustrates a common law and its statute, protection of the public in Australia in contradistinction to, perhaps, some United States jurisdictions as discussed by Justice Gummow in Fardon. In Australia, protection of the public is seen as one of the key purposes of punishment and in New South Wales in particular.

The point is driven home, of course, in Rich v ASIC which your Honours will find, if I can go to it, at volume 2, tab 20 – for the record [2004] HCA 42; (2004) 220 CLR 129. If I could take your Honours to page 144, which is page 772 of the book.

EDELMAN J: Sorry, which volume?

MR KIRK: It is volume 2, tab 20, page 772 of the book or page 144 of the CLRs, paragraph 30. So at paragraph 30 in the majority judgment their Honours said:

The decisions of the primary judge and the majority in the Court of Appeal proceeded from the premise that a distinction between “punitive” and “protective” proceedings was possible and useful . . . There are several reasons to reject that reasoning.

Your Honours would recall the issue in the case was whether the privilege against penalty or forfeiture applied to disqualification proceedings brought against company directors. In developing reasons to reject that reasoning – jumping to paragraph 32 – their Honours said, first two sentences:

Secondly, and more fundamentally, the supposed distinction between “punitive” and “protective” proceedings or orders suffers the same difficulties as attempting to classify all proceedings as either civil or criminal –

There is a reference there to Labrador which I will come to momentarily:

At best, the distinction between “punitive” and “protective” is elusive.

Then, jumping over the page to paragraph 35, the majority said:

That it may be possible to characterise proceedings as having a purpose of protecting the public is not determinative. And to begin the inquiry from an a priori classification of proceedings as either protective or penal invites error. It invites error primarily because the classification adopted assumes mutual exclusivity of the categories chosen when they are not, and because the classification is itself unstable.

Thus, it cannot be said that because there is a protective element, there is no overlap with the criminal justice system.

As to the distinction between “civil” and “criminal”, in the next tab of this volume – so tab 21 of volume 2 – there is CEO of Customs v Labrador – which for the record is (2003) 215 CLR 161. Your Honours would be familiar with, in particular, his Honour Justice Hayne’s judgment in this case. If your Honours could go to page 198 of the CLR which is 846 of the book, paragraph 114.

Your Honours would recall the issue in this case was what standard of proof applied to customs proceedings and it was held it was beyond reasonable doubt. Chief Justice Gleeson and Justice McHugh agreed with Justice Hayne. At paragraph 114, his Honour – I will not read it out, but I invite your Honours to read paragraph 114. Then if I could jump to paragraph 135, which is page 853 of the book, 205 of the CLR. So his Honour is going on to address the issue at stake about onus and degree of persuasion and his Honour said:

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

Then jumping to the next paragraph:

Those tentative conclusions do not depend upon attributing a description of “civil” or “criminal” to the proceedings as a whole or seeking to identify some “essential character” of the proceedings. (By what process of distillation the “essential character” of proceedings could be revealed is not apparent.) Rather, the conclusions proposed focus upon, and attach significance to, the kinds of orders which the proceedings seek. In particular, proceedings are distinguished according to whether or not they seek the conviction of the defendant for an offence.

Then at paragraph 137 his Honour goes on to discuss what is involved in conviction. I invite your Honours to read that paragraph. In our reply submissions at paragraph 7, without going to them, we give a further reference to Maxwell, as indeed his Honour Justice Hayne does in some of these citations where there is some discussion of the notion of conviction. But the core notion, as Justice Hayne alludes to, is:

an adjudication by the court that the defendant has contravened a provision of the Act.

It is in effect a finding of guilt of the crime. That is very much what is involved insofar as it is a 5(1)(b)(ii) issue under this Act. The court will be required to find that the defendant the subject of the proposed order has contravened laws, including all elements of the laws, including mens rea, such as to satisfy that jurisdictional fact.

What then occurs of course under the statutory regime if such a finding is made is no automatic statutory consequence of such a finding so, in other words, that finding – if there is a finding of a contravention of a criminal provision, that is no mere minor factum, but opens up the very broad powers that we have discussed to potentially impose restrictions on liberty of a kind very similar to sentencing purposes, powers and processes. Is that a convenient time?

KIEFEL CJ: That would be a convenient time, thank you.

AT 11.14 AM SHORT ADJOURNMENT

UPON RESUMING AT 11.30 AM:

KIEFEL CJ: Yes, Mr Kirk.

MR KIRK: Thank you, your Honour. Can I just come back to what your Honour Justice Gageler asked me? As I understand it, there is no more formal articulation of what is pressed against us or sought against us than what is in the further amended summons and the related documents. In the Supreme Court proceedings, affidavits have been filed, which is evidence obviously, and indeed submissions were filed because it was set down to a trial prior to this case being commenced, but there is no articulation of particulars or so forth, or anything more formal than what is in the third amended summons.

Can I make this further point. Given that section 5(1)(b) is a jurisdictional fact of which the court must be satisfied, it will be necessary, prior to any order being made, that the court makes some formal finding that it is satisfied, most particularly, that the person has been involved in serious crime related activity.

GAGELER J: My real concern is with what needs to be found to make out 5(1)(c). That was the point of my question.

MR KIRK: Right. As a matter of practice, I have given the best answer that that is as good as it gets.

KIEFEL CJ: At paragraph 58 of your written submissions you say in that regard that it purports to authorise the making of an order of almost unrestricted scope without specifying any meaningful objective criteria. Do you go so far as to say that it is not an exercise of judicial power?

MR KIRK: We put it more this way, that it is one aspect of the Kable analysis, to which I will come, that it is an extraordinarily broad evaluation that is to be made by the court where there is no meaningful guidance other than perhaps guidance from sentencing law.

KIEFEL CJ: It is directed to restrictions on the conduct of a particular person?

MR KIRK: Yes.

KIEFEL CJ: Does your argument engage then with the notion of the Executive wishing those restrictions and the court being enlisted to provide them?

MR KIRK: That is one aspect. It is not the primary aspect but it is one aspect of the Kable analysis which we seek to put.

KIEFEL CJ: Is that in your traditional judicial functions aspect of your argument?

MR KIRK: Yes. Can I move from that to then seek to draw together some of the strands of what I have articulated so far as to what are the key features of the Act or the scheme, I should say, which are significant for current purposes and, to save your Honours writing, we have set it out in paragraph 5 of our outline of written submissions, but if I might go through them.

The scope of the offences covered by the scheme is extensive and it covers, as I have said, most of the indictable offences in New South Wales, that applicants for an order under the Act are either the prosecuting authorities of the State, the DPP and to an extent the Commissioner of Police or also the Crimes Commission, which has the role of investigating crime to assist the DPP in prosecuting crime.

A critical element of any application insofar as it depends on 5(1)(b)(ii) and insofar as the focus is what the person themselves has done in the past then a key focus of the case, perhaps the main focus of the case in terms of factual dispute will be whether or not the person has committed some offences in the past.

The element in terms of futurity as to preventing, restricting, disrupting involvement is one fairly readily satisfied. The legislation applies to persons who have been convicted or acquitted or who have not been charged. The period is for up to five years, which is very significant, involving potentially substantial restrictions on individual liberty.

The orders that may be made substantially overlap with what in New South Wales is available as part of ordinary criminal sentencing. The fact that orders under this Act are not labelled as sentences and are said to be for protecting the public does not detract from their objective character as imposing what can be called punishment for past criminal conduct.

There is no provision for annual review and there is a threshold which a subject of an order must meet in order to seek a review in terms of raising new material and that weakens a characterisation that the scheme is responsive to ongoing present dangers.

The standard of proof is on the balance of probabilities rather than beyond reasonable doubt. The proceedings are before a judge alone rather than a jury and that is so, even though this scheme may apply for people alleged to have breached Commonwealth indictable offences for which section 80 of the Constitution would require a jury trial in the State where the offence was alleged to have occurred.

GAGELER J: How does that arise? I do not understand that.

MR KIRK: Because the definition of “serious criminal offences” picks up potential breach of equivalent Commonwealth criminal offences which, if done in New South Wales, would have been a breach of New South Wales law. So that might be a breach of a Commonwealth offence in Queensland and that that would be so, namely, trial by jury even if the person – trial by judge of an application for an order under this Act, even if they had been acquitted by a jury, acting pursuant to section 80 of the Constitution.

The proceedings are deemed to be civil proceedings, so inferences of the Jones v Dunkel type may be drawn against them if they do not give evidence and the civil, not criminal, rules of evidence apply. Any protections involved in the criminal justice process are excluded and the ordinary rules in civil proceedings apply.

A criminal trial and an application for an order under this Act are closely linked by applicant, character and content, purpose and remedy, but a lower standard of justice is provided without many of the safeguards and characteristics of the criminal process. But the criminal process still remains available, so this is not some alteration of the criminal process; this is in substance an alternative to it.

The Kable principle, just briefly to remind your Honours if reminder is needed of the core principles - the core principle is summarised in Emmerson, without going to it[2014] HCA 13; , (2014) 253 CLR 393, at paragraph 40, by the plurality:

State legislation which purports to confer upon such a court a power or function which substantially impairs the court’s institutional integrity, and which is therefore incompatible with that court’s role as a repository of federal jurisdiction, is constitutionally invalid.

What meets the test is incapable of precise definition. See, for example, Condon [2013] HCA 7; (2013) 252 CLR 38, at paragraph 124. There are, as your Honours know, different strands or variants of argument in the cases. These are, with respect, well captured by Chief Justice French and your Honour Chief Justice Kiefel in Wainohu v New South Wales – without going to it – (2011) 243 CLR 181 at paragraphs 44 to 46. One relevant strand of importance here, to quote that judgment at paragraph 46, is that:

legislatures cannot validly enact a law . . . which would confer upon any court a function (judicial or otherwise) incompatible with the role of that court as a repository of federal jurisdiction.

Kable analysis is heavily dependent on the particular terms and operation of the impugned legislation as the plurality said in Condon – referring to Kable, itself – the conclusion, quote:

proceeded from consideration of the whole of the Act in question and all of the features which it presented.

So, that is Condon, at paragraph 129.

GORDON J: Is that consistent with what Justice Gummow said in Fardon at 105 where he talks about this idea that it, in a sense, depends upon complete reflection of human affairs and the different roles of the Executive and both of executive and legislative activity and then one has to actually step back and look at the Act and the way in which it works and its complexities?

MR KIRK: Yes. We would say that is consistent with it. Also, paragraph 104 of his Honour’s judgment at page 618 – his Honour, as you know, was expanding on the notion of repugnancy and incompatibility and in the last sentence his Honour said:

That a particular constitutional doctrine requires close attention to the detail of impugned legislation and that its invalidating effect may be demonstrated infrequently does not, as the history of the application of Melbourne Corporation over fifty years shows, warrant its description at any one time as a dead letter.

Then, the paragraph your Honour referred to. So, it is a matter of close.....of any particular Act in the milieu in which it operates.

Having sought to identify the key features of the legislation, can I seek to examine the consequences of the legislation for the four possibilities where there is an allegation of having committed an offence – namely, conviction, acquittal, charged, not charged. So, dealing first with where there is a previous conviction – in some senses the easiest case that would fall within 5(1)(b)(i) ‑ so you just tender a certificate of conviction.

In such circumstances, the case will be brought by, likely, the DPP or the police, although it could be the Crime Commission. So, likely, the prosecutorial authorities, acting on behalf of the State in the public interest, seeking a range of further restrictions which substantially overlap with punishment that will already have been imposed pursuant to sentencing regime without any time limitation as to how far back the offences may be taken into account - your Honours will recall the facts here go back to offences in 2001. Nor, how many times – there is no restriction on how many times those offences may be the subject of an SCPO and order.

In other words, those 2001 offences – if, ultimately, relevant against my relevant client – might be taken into account now and in five years’ time and in another five years’ time if it fits into the statutory criteria. All of that undermines the finality of the initial court resolution of the controversy the first time round, and I say judiciable court because it may have involved a jury and then punishment imposed by a judge.

That argument overlaps with the arguments I am about to make in relation to the second category, namely, where there was a previous criminal trial and acquittal. An application for an order under this Act will again likely involve the prosecutorial authorities acting on behalf of the State, having another go at proving guilt in a regime without the relevant protections of the criminal justice process to achieve a similar result to the criminal justice process, not identical, but similar. So to do undermines the core principle of finality.

If I could take your Honours for convenience to our reply at paragraph 8 on page 3 we quote there from the plurality judgment of four judges in D’Orta [2005] HCA 12; (2005) 223 CLR 1 at paragraph 34, namely:

A “central and pervading tenet of the judicial system is that controversies, once resolved, are not to be reopened except in a few, narrowly defined, circumstances”.

That passage was recited and indeed in a sense expanded on in Atwells and we have given the reference at footnote 10 of our reply. As we say with the reference to footnote 11:

Any exceptions, such as for appeals, must be limited and consistent with maintenance of (and respect for) the judicial system.

This scheme is not a narrow targeted exception to that notion of finality where such an exception might be consistent with this core feature of the judicial power. It is not like an appeal. It is not even like allowing a new trial on the grounds of fresh evidence. There is no such requirement for fresh evidence. There is a lower standard applied, not a higher one, let alone an additional one, before orders can be made or sought.

Having such a scheme undermines the ability of the public to have confidence that an acquittal means what it says. It undermines section 80 of the Constitution by allowing a new kind of trial in substance of criminal guilt without a jury where of course that requirement is one that cannot be waived – see Alqudsi – and we have given the reference to that in our primary submissions at paragraph 52.

Various parties against us invoke other circumstances in which it is said that civil proceedings are alternatives to and overlap with the criminal process and it may be accepted that it is not uncommon for courts to have to determine facts going to whether a person has committed a crime in the course of civil proceedings. So much was noted, without going to it, in Today FM [2015] HCA 7; (2015) 255 CLR 352 at paragraph 32.

But there are significant differences between the alternative regimes put against us and this regime. So the first leading example put against us is civil damages claims, and a few of the parties give the example of assault. So there might be a trial for a criminal assault and then a tortious claim. But a tortious claim, for example, for assault, involves different parties, a plaintiff rather than the State. It involves different remedies, damages rather than punishment – and tied to that, a different purpose, compensation, rather than the four purposes, or however many you wish to articulate, of punishment.

An illustration and forceful reminder of principles in this area is to be found in this Court’s decision in R v Carroll [2002] HCA 55; (2002) 213 CLR 635 which is at volume 4, tab 34, if I could take your Honours to it. Starting at the headnote, by way of convenient summary:

The respondent was charged with perjury –

in Queensland. The alleged perjury was saying he did not kill the victim, where he had been acquitted of having done so. This Court held that the indictment was an abuse of process and should have been stayed. If I can go to page 1578 in the bundle, 643 in the CLR, paragraph 21, in the judgment of Chief Justice Gleeson and Justice Hayne their Honours say:

A criminal trial is an accusatorial process –

I might just invite your Honours to read paragraph 21 and the first six lines of paragraph 22. So down to:

Further, finality is an important aspect of any system of justice.

Those are obvious, in our respectful submission, basic principles as to what is involved in a criminal trial, and involved in the judicial power in relation to criminal trials. Here in New South Wales that system is nominally preserved – it still exists, obviously – but actually undermined by the availability of this regime. If I could then go to the judgment of Justices Gaudron and Gummow at page 1595, or 660 in the CLRs, paragraph 84.

NETTLE J: Carroll has been undermined by legislation, has it not?

MR KIRK: I am not sure about in Queensland. It was a Queensland case, so I confess I do not know.

NETTLE J: Certainly most States, I think, have undermined it, have they not, in providing that people can now be indicted for perjury?

BELL J: I think most States did so following a COAG undertaking to do so.

MR KIRK: Right.

BELL J: So that I think the point being made against you on this aspect is to take us to principles of the kind articulated in Carroll is not to deny the capacity of the Parliament of a State to abrogate them.

MR KIRK: That may well be right, and with this qualification, that as discussed in D’Orta, and the passage we referred to by reference to our reply, undermining of the principle of finality where that is a critical defining feature of the judicial power and thus of courts, any exceptions to this must be limited, and capable of being seen as consistent with what is necessarily involved in courts. So there are always going to be issues potentially of degree and of what justification is provided as to the particular undermining of the principle of finality.

The point we seek to make is that here the undermining, particularly vis-à-vis acquittals, is significant and seen together with the other aspects that we seek to impugn are such as to undermine the institutional integrity of what is involved in the criminal justice process and undermine thus the courts which provide that criminal justice process.

BELL J: The abrogation of the principle of double jeopardy by the legislation in New South Wales is subject to limitation under that legislation but do you suggest that the Parliament of New South Wales, if it cared to, would not have the legislative power consistent with Kable to provide that in any case in which new evidence came to light it was open to the prosecution to bring an indictment notwithstanding an earlier acquittal?

MR KIRK: No is the answer to your Honour’s question and there is of course such legislation in New South Wales which has been the subject of some public attention lately, but that legislation involves – I forget the exact criterion – a criterion of there being some fresh evidence and so forth. So that is a distinguishing characteristic. There is no such ‑ ‑ ‑

BELL J: I think the present legislation is more confined than that but the point that is being raised is the capacity of the Parliament to provide in essence that notwithstanding an acquittal it is open to the prosecuting authorities to bring a fresh indictment in circumstances no more demanding than some further evidence has become available. If you accept that that is open, I am not quite sure how this aspect of your argument assists you.

MR KIRK: The answer is that it will all depend. For Chapter III federal courts and for Chapter III non-federal courts finality is a fundamental, indeed defining feature of judicial power. Now, that is not to say that there cannot be some abrogations of it, including of the kind your Honour has raised with me, but it will always be a question of degree and context.

One of the features that is important here is that this is an alternative system. So it is not as though there is an express bringing of a new prosecution recognising, for example, that there is fresh evidence and so there is in a sense a new controversy that might be said to arise by reference to that evidence. Rather, the acquittal is left over there and, without any particular high thresholds to be met, in the civil justice system another go can be had by the prosecuting authorities by reference to the same evidence without restrictions as to criminal process and so forth. So there is an undermining by this system of what has already occurred, an undermining of the acquittal.

Bearing in mind what your Honours have raised with me, can I draw to attention paragraph 86 in Justices Gaudron and Gummow’s judgment at page 1596, or 661 of the CLR, which we invoke to support the point I was seeking to make about ‑ ‑ ‑

EDELMAN J: Why would not punitive damages for a criminal assault for which a person has been acquitted, maybe even acquitted after a private prosecution, undermine finality in exactly the same way?

MR KIRK: Well, it is still a different party in ‑ ‑ ‑

EDELMAN J: Not in a private prosecution. It would be exactly the same party.

MR KIRK: If it was private prosecution in which damages were sought, it is relevantly as regards damages a civil claim. It may be brought together with a criminal prosecution potentially, but it is still a civil claim brought by a person to compensate them, recognising punitive damages go beyond mere compensation to express disapproval. So there is some degree of overlap, but as with all of these questions and as explained by Justice Gummow in the passage your Honour Justice Gordon drew my attention to earlier – paragraphs 104 and 105 – there are always issues of degree involved here and one has to assess all the features of the Act.

One further point from this case and then I will move from it. In Justice McHugh’s judgment at page 1607 of the book, page 672 of the CLR, paragraph 128, if I could invite your Honours to read that paragraph.

BELL J: Again, his Honour is speaking here of the fundamental principles of the common law of crime. Accepting for the moment that this scheme involves the court, on your analysis, making a finding of criminal guilt on a lesser standard than that of proof beyond reasonable doubt and in imposing consequences that are equivalent to a range of criminal punishments, provided the court is doing that by a court‑like process, what in Kable terms is the objection?

MR KIRK: There are a range of objections, to put it in Kable terms, but it undermines finality where finality is one critical feature and, indeed, a defining feature of judicial power in courts. It exhibits a marked and significant departure from traditional methods, functions and procedures. It creates a second class alternative to the criminal justice system and in so doing undermines the criminal justice system at the discretion of prosecutorial bodies in circumstances where that system remains available but is undermined and thereby creates, it might be said, two grades of justice at the instigation of the same authorities to much the same ends in the one court.

BELL J: Do you not have to bring yourself within the second of those matters to which you just referred me – the procedures, undermining the procedures that courts adopt?

MR KIRK: That is one aspect of the argument. As with all Kable arguments, you have to look at the whole Act, but that is certainly a significant part of the argument. Then there is also the issue your Honour the Chief Justice raised with me about enlisting the court in giving effect to an application by the Executive in the way we discussed earlier.

NETTLE J: It does not do that in this case, does it? I mean, there is a cerebral function there for the court to perform, exiguous though it is. It nonetheless is not a rubber stamp saying, “You must act upon that”.

MR KIRK: No, I would not say it is a rubber stamp. I accept that, but it comes back to the point I was seeking to make earlier about the breadth of the section 6(1) criterion and so forth. Then there was the discussion I had with ‑ ‑ ‑

NETTLE J: That is Justice Bell’s point, is it not? It undermines the institutional integrity by requiring the court to proceed by procedures which are antithetical to the way in which it normally goes about its work.

MR KIRK: In circumstances too, we would add, where those procedures remain available. It is not as though we – we would not say, for example, it is not part of our case to say that you cannot alter rules of evidence in criminal process, you cannot alter burden of proof and so forth. There is a lot of authority against that. We are not saying to the contrary, but that system is still there and preserved. It is just that it is undermined by there being the availability of this alternative system, which is much easier, instigation of the same authorities at their discretion, to much the same ends. It thus undermines the criminal justice system as it still exists within the Supreme Court and the District Court of New South Wales.

GORDON J: Even if you put the undermining to one side though, as I understand the way you put it by reference both to the size of the potential category of persons subject to these orders, the low bar, and then I will put the form of the order to one side under section 6, is your complaint in the sense that the legislative and the Executive have delegated the rule‑making power to the courts in respect of a particular individual? In other words, they have said you, the court, in effect draft a set of criminal - piece of legislation, a set of rules, a set of orders that are to apply to a particular individual. Is that part of the way in which you put it?

MR KIRK: That is also a part of it and that is in distinction, for example, to Fardon, to which I am going to come, the legislation considered there, which had a very simple result, a draconian one but a simple one – namely, you are detained for six months. Here it is much more broad and unconstrained and unrefined.

GORDON J: With the consequence that if you breach this particular set of orders for this person you are subject, of course, to contempt in a criminal offence?

MR KIRK: Correct. Your Honour referred earlier to, for example, the reluctance of the courts to draft injunctions which might have that type of effect.

GORDON J: The court would not do it. I mean we all know that the rules are exceptional circumstances, apprehended threat, real threat, and it is a very different approach, a different set of criteria, the principles have been clear. So that has been put to one side.

MR KIRK: Yes, exactly so.

EDELMAN J: There is a bit of tension though between the different factors that you are relying on. For example, there may be some tension between a factor of marked departure from judicial method and the point you have just made in response to Justice Gordon, which is that this is a very wide power which would, of its nature, require the careful exercise of judicial principle.

MR KIRK: But we know no principles guiding the exercise of the evaluation are provided by the statute.

EDELMAN J: A very good starting point might be the parliamentary debates where some of the Members of Parliament referred to Hancox and thought that the approach that was taken in the United Kingdom would be exactly the same approach that is taken here.

MR KIRK: Yes, I think your Honour may be referring – so it is in volume 5, tab 46.

EDELMAN J: Page 2249.

MR KIRK: Page 2249, thank you. So that is a statement by Mr Henskens.

EDELMAN J: Second‑last paragraph.

MR KIRK: Indeed, and a reference to some submissions by the Bar Association on the point or, indeed, an article by the President of the Bar Association. So that may have been the view of Mr Henskens. It was not the view, for example, taken by the Opposition. So if your Honours go to the Legislative Council debates at tab 46, page 2275, at the bottom of that page – so this is the lead speaker for the Opposition, Mr Searle, and at the bottom of page 2275 he refers to:

The United Kingdom model also occurs in the context of very strong domestic human rights legislation -

Over the page in the next full paragraph he notes that:

In the United Kingdom the guidelines for the Crown Prosecution Service make it clear that if there is evidence to support a criminal prosecution, that should be pursued. An SCPO should be pursued only where there is no real prospect of a criminal conviction. The proposed New South Wales model has no such protection, giving rise to a real risk that over time law enforcement will use the much easier civil process –

et cetera. Then at the bottom of that page he referred to Hancox. So that is the bottom of 2276. Then after the quote at the top of 2277 he refers to the absence of human rights legislation. Then, for completeness, since your Honour has raised it with me, at 2307 he moved an amendment to spell out in much greater detail by way of inclusion of subsection (2) in – the new subsection (2) in section 5, what is involved in “reasonable grounds to believe”, et cetera. That amendment was not accepted to be a fair - Mr Clarke, who was leading for the government at page 2309 said:

The Government opposes this amendment. In making a serious crime prevention order the court must be satisfied that there are reasonable grounds to believe the order would protect the public . . . The list of factors included in the proposed amendment would already be likely to be taken into account by the court -

Mr Shoebridge, leading for the Greens, asks:

I am curious to know the basis upon which the Parliamentary Secretary says that this long and detailed list of considerations would already be likely to be taken into account by a court. On what basis can that possibly be said? It is not mentioned in the Act –

So there was division within the Parliament as to quite how this was to be interpreted.

EDELMAN J: The principle of statutory interpretation where words have been used in a manner that has been judicially interpreted and Parliament then uses the same words, Parliament is then taken to have intended that that judicial interpretation will be the meaning of the words, subject to different matters of context, does that apply as well where the interpretation is of the same words in foreign legislation?

MR KIRK: That would be a very large step to import – there is a lovely phrase and I cannot remember it now, but about the danger of seeking to transplant law from one system to another.

KIEFEL CJ: I think that might have been Chief Justice Gleeson in relation to foreign law. I am not sure that you are going to call UK law foreign law.

MR KIRK: No. Well, except that the UK law is relevantly directly influenced by the ECHR and the Human Rights Act. So it would be a very – accepting the principle your Honour has stated. But that principle is generally – but it might be a bit flexible in Australia. The starting point is it is the same jurisdiction. It might be more flexible if there is a well‑established regime in Victoria, and it is enacted in New South Wales, you may well apply that principle. But to apply it to the UK system, which is so influenced – was expressly influenced, as reflected in Hancox by the European law applying, would be a very large step which we would resist.

NETTLE J: Mr Kirk, can I ask you one question relevant to this area. If, by process of construction, it were concluded that the court was bound in determining whether an order was appropriate to be made, but it needed to be satisfied that what it was going to order was proportionate to the risk of involvement in future offending, would it get over the problem of lack of constitutionality for which you contend or would it still be insufficient?

MR KIRK: Still insufficient. It would take away one of our arguments, but we have a multifactorial attack on the legislation.

NETTLE J: Why, in those circumstances, would it undermine the institutional integrity of the court to the point that it should be held unconstitutional?

MR KIRK: Well, without going back over what I said earlier, it is still offering an alternative system of justice, as articulated by Mr Searle, quite well, with respect, an alternative system of justice, with lower standards, without the protective process of the criminal justice system which still remain in place in New South Wales as a matter of formality but which can be undermined by the prosecutorial authorities going this easier route.

GORDON J: In response to that, can I ask you one question, and then I will not ask any more. In New South Wales, is it the position under the Criminal Records Act that offences for which you are convicted are expunged after 10 years and is this Act not reflecting that Act?

MR KIRK: The answer to that is somewhat complex.

GORDON J: Sorry, I did not mean it to be complex.

MR KIRK: No. No, Mr Prince gave me a note on that very point, your Honour. The relevant legislation in New South Wales is the Criminal Records Act 1991.

GORDON J: Yes.

MR KIRK: Section 12(c) says that a reference to a conviction of a person in legislation only refers to convictions which are not spent. Prima facie, that would suggest that the reference in 5(1)(b)(i) does not include spent convictions. However, section 16(1) of that Act says that:

Section 12 does not apply to . . . the making of a decision by a court –

So probably section 12 does not apply to applications made under section 5 of the impugned Act. Further, there is a limit on when convictions are spent. So offences where the person has been sentenced to imprisonment for six months or more are never spent – see section 7(1)(a) - and you generally also need to be offence free for 10 years before your convictions are spent – see section 8(1).

So there are limitations which apply specifically, which would apply, for example, to my clients. But also more generally, it seems, that it does not apply to the making of a decision by a court. So that is a long‑winded way of saying this is not answered by the spent conviction legislation.

If I can go back a little, I was seeking to address some of the analogies put against us, and I referred to tortious claims for assault. Another one put against us is proceeds of crime laws. Consistently with what I have put, every scheme has to be judged upon its particular features, so there are dangers in generalising to say well, they are all okay, so this must be too. That said, laws providing for the forfeiture of property are not novel and are well established historically - see Emmerson, without going to it[2014] HCA 13; , (2014) 253 CLR 393 at paragraphs 15 to 19. So there is an historical analogue.

Forfeiture of property is not the same as and does not closely resemble the orders made in ordinary criminal sentencing to the degree that is at issue here, thus it is hard to say that civil forfeiture of property laws undermines the criminal justice system or sets up a parallel system.

In Emmerson, as your Honours would recall, the DPP could apply for forfeiture orders, very notably in the facts in that case. But that was, in the scheme there, only after three relevant convictions in 10 years, so there was a preceding requirement that there actually be three relevant convictions in 10 years before the scheme came into operation, built off the convictions. Here the DPP, for example, does not need to have a conviction. He, she, can go down this alternative route.

As for civil penalty regimes, which I think Victoria and the Commonwealth refer to, again, it depends on the particular scheme. But, typically, the Commonwealth, as your Honours know, quite often will have mirroring civil penalty provisions and in criminal provisions you see it in the EPBC Act, for example. You see it notably and difficultly in the cartel provisions in the Competition and Consumer Act. But, as is brought home very clearly in the cartel provisions, for example, there is typically a mens rea element for the criminal variant and not for the civil variant. So the elements of the provisions are not the same.

I was dealing with the four variants and I have dealt now with conviction, acquittal. Can I deal with where a charge is pending, which is the case here for the third plaintiff.

BELL J: Just before you move to that, I think another instance raised against you is the ancient power to bind over people to keep the peace and more recently the quite elaborate provisions permitting a court to make some form of domestic violence order with restrictions on the respondent’s freedom of movement, restrictions on the ability to enter the home that they own and the like.

MR KIRK: In relation to both of those examples, which are both raised against us, again one needs to focus on each particular scheme or law in the case of common law of binding over and scheme in the case of AVOs. But for AVOs, for example – I forget what the exact criteria are and no doubt they are going to vary – the focus is current risk to the people to be protected.

It is more of the nature of a Fardon‑type regime, much broader of course, but in terms of a key focus on: is this person at risk from this person in light of what I know, such that I should make an order protecting one from the other? It is in very confined circumstances. It is far different from the breadth of the scheme that operates here.

In relation to binding over to avoid possible breach of the peace, again the focus is, without claiming I know the exact criterion at common law, but broadly it is do I need to bind this person over from some period in order to avoid an impending breach of the peace? That is the key focus.

KIEFEL CJ: That is the point, is it not, that with the binding over there is an antecedent obligation to keep the peace and the order simply enforces that obligation in the face of a risk. I think this is dealt with at some length in Totani in some of the reasons.

MR KIRK: Yes, I think your Honour is right. Can I go back to where I was? I was just coming to the third area where a person has been charged and the charge is pending but has not yet been determined. As I have already noted, the Supreme Court has held and it has been admitted by the defendants that Jones v Dunkel principles will apply.

The defendant thus faces an invidious choice of giving evidence, proceeding under this Act, in order to avoid an order under the Act, or not, where to do so may well assist the prosecution in the criminal proceedings and it is a choice which affects not just about whether they themselves give evidence but about the whole conduct of their defence in the SCPO proceedings.

KIEFEL CJ: But these are within the power of the court to control proceedings – are they not?

MR KIRK: That is the answer put against us, that there can be a stay ‑ ‑ ‑

KIEFEL CJ: Why is that not a good answer?

MR KIRK: I was just coming to that, your Honour. There may be a stay that can be sought of the kind that was issued. For example, I cannot remember the reference, but there is a reference - it is in the bundle of materials, to Zhao in this Court which was an issue about a stay in, I think it was forfeiture proceedings or such like where there were some criminal proceedings. First, however, whether or not a stay is granted must be determined in the context of the Act, which plainly intended to provide for an alternative regime, including where charges are laid but not determined. That is one of the things expressly covered.

KIEFEL CJ: But, Mr Kirk, is not the point that this submission really focuses upon how an accused person’s position might be rendered more difficult? It does not explain how the court’s powers are in any way confined by this legislation.

MR KIRK: We do not suggest that they are relevantly confined in terms of removing the ability of a stay, that whether a stay is granted has to be judged in the context of this Act, but even if a stay were granted it will not be a permanent stay. The Commonwealth at paragraph 33 seems to imply it may be, but it will not be a permanent stay. It would only be until any criminal trial had been resolved, which then brings you back into either there is going to be a conviction or an acquittal and then a second go at having the matter dealt with by the courts.

It also of course does not solve the issue if no charge is yet pending and can I deal with that fourth possibility now. The same invidious choice arises. I think the defendant has to decide how much of his/her defence to reveal and whether or not he or she gives evidence, where there is of course no limitation period on non‑summary offences in New South Wales. So they are exposing themselves to risk.

The potential for double punishment arises here, as with other variants, because if one had been the subject of an SCPO, the sentencing legislation has not been amended to say that must be taken into account by way of reduction of sentence or the sentence that might subsequently be imposed in the criminal process.

EDELMAN J: It is not a factor that could be taken into account?

MR KIRK: It may be that it could be but it is very much the argument put to justify this scheme by the defendants that it is a completely separate scheme with completely separate purposes. So, if that argument is correct and the validity of the scheme depends, in part, on accepting that sort of argument, then that would undermine any argument that it should be taken into account to reduce sentence at any subsequent criminal sentence.

The other aspect to this iteration is that it illustrates the point I have made a number of times that the prosecutorial authorities have a choice where they think the person has committed an offence such as the allegation about 93T of the Crimes Act alleged against all of the applicants ‑ as I referred to earlier at page 40, without going back to it, of the special court book – that it said that all three plaintiffs participated:

in a criminal group contrary to s 93T of the Crimes Act 1900 (NSW) ‑

Those types of offences are not necessarily easy to prove, for reasons well known. The Commissioner of Police has not sought to prove it to the criminal standard against my clients. He has sought to do it to the civil standard under this process in the orders sought in the Supreme Court.

What I might then do, if I may, your Honours, is take your Honours to just three cases – first to Kable, itself, which is in volume 3 of the book at tab 30. I recognise, of course, that in Kable there were many strands of argument in the different judgments, and I also recognise that one key feature of the scheme there was the ad hominem nature of the legislation and, if anything, our complaint here is the other way around – that the legislation is so encompassing, it encompasses, essentially, all indictable offences, et cetera.

That being said, can I still take your Honours to a couple of points about it? Just to remind your Honours, if you go to page 1402, which is page 128 of the CLR, within his Honour Justice Gummow’s judgment, there were two key provisions of the Act – section 3 and section 5. Section 3 is at page 1402/128 which set out the object of the Act which was directed at one person. It said:

the need to protect the community is to be given paramount consideration ‑

in construction of the Act. Then, section 5 is at the next page, 129. Oddly, section 5 was expressed generically but could only apply to the specified – the identified individual and your Honours would note (1)(b):

that it is appropriate, for the protection of a particular person or persons or the community generally, that the person be held in custody –

and it provided for a custodial period of six months, renewable.

If I could go first to her Honour Justice Gaudron’s judgment at page 1377, or 103 of the CLR, there is a passage there in the first full paragraph beginning “Two other matters of significance” to “different grades or qualities of justice”. Now, that is part of what we invoke. It is absolutely true, as the Commonwealth has pointed out, that what her Honour said and was said by other members of the Court was focused on different grades or qualities of justice between the State or federal courts. But I will take your Honours shortly to a passage in Wainohu at paragraph 105 which suggests a rather broader view of that notion of different grades or qualities of justice. Still within her Honour’s judgment, if you go to 1380, which is 106 of the CLR, at about point 3, the last sentence of that paragraph, her Honour said:

And, at least in some circumstances, the Act directs that that guess [as to the future] be made having regard to material which would not be admissible as evidence in legal proceedings.

Then on the next page, 107, at about point 4, the paragraph beginning “The integrity of the courts”, if I could invite your Honours to read that paragraph. Part of what we seek to draw from that is that it is in a sense the most important of judicial functions to determine guilt and then punish accordingly, and that that is done by the State through the criminal justice process and that is undermined by the Act, as I sought to articulate. Over the page at 108 of the CLR her Honour said about the seventh or eighth line:

They are proceedings –

that is under the Act:

which the Act attempts to dress up as proceedings involving the judicial process. In so doing, the Act makes a mockery of that process and, inevitably, weakens public confidence in it.

Then if I can go to his Honour Justice McHugh’s judgment at 1396, which is page 122 of the CLR, beginning in the first full paragraph if I could invite your Honours to read that paragraph, “The Act expressly removes”, and the first sentence of the next paragraph.

NETTLE J: At the end of the day that is your case, is it not, that paragraph?

MR KIRK: It is a good summary of many of our complaints. I am not sure it captures all of them, because I have sought to put it in quite a few ways, but it is a core summary of our complaints, yes. As I said, including the first sentence in the next paragraph:

The Act is thus far removed from the ordinary incidents of the judicial process.

Then his Honour Justice Gummow – and I recognise I am cherry picking a bit because there is a lot in these judgments. There are a lot of different strands. I am not saying I am being exhaustive of all the strands in the judgments. In Justice Gummow’s judgment at the bottom of page 1398, which is 124 in the CLR, his Honour noted right at the bottom of that page:

The Director holds office under the Director of Public Prosecutions Act 1986 (NSW) (the DPP Act). Section 7(1) of that statute identifies one of the principal functions and responsibilities of the Director as the institution and conduct in the Supreme Court and in the District Court, on behalf of the Crown, of prosecutions (whether on indictment or summarily) for indictable offences.

That remains true:

The foregoing would suggest that Gregory Wayne Kable (the appe1lant) was to be incarcerated pursuant to orders of the Supreme Court consequent upon and by reason of conviction for an offence against the criminal law or, perhaps, as punishment for contempt . . .

However, as will appear, the appellant had not been convicted of any such contravention of the law.

That is very similar to what we complain about here. Then the last seven lines of the next paragraph – the paragraph begins “However, as will appear”, where it says:

The Act is directed to one individual –

and leaving aside the aspect about the individual, that last sentence:

Moreover, the penalty is not inflicted upon, and by reason of, conviction –

is important too. Then I want to deal with Fardon but before I go to the case could I actually take your Honours to the legislation, which is in volume 1, tab 13. This is the legislation as passed and, as thus, was considered by this Court in Fardon, the Dangerous Prisoners (Sexual Offenders) Act 2003. If I could go, first, to page 417 of the book, section 5. The applicant, for orders under 5(1), was the Attorney‑General. Section 5(2)(c) indicated that:

(2) The application must –

. . .

(c) be made during the last 6 months of the prisoner’s period of imprisonment –

presupposing they had been convicted in prisons. “Prisoner” is defined in subsection (6) to be someone:

detained in custody who is serving a period of imprisonment for a serious sexual offence, or . . . that includes a term of imprisonment for a serious sexual offence –

That term “serious sexual offence” is defined in the dictionary, without going to it, at page 438, as being an offence involving violence or against children. We will actually go to it, if your Honours will forgive me. The last page of this tab – it is:

an offence of a sexual nature, whether committed in Queensland or outside Queensland –

(a) involving violence; or

(b) against children.

So it is a very confined class of offences. If your Honours could then go to page 420, section 13, which was the orders that might be made. Section 13(1):

This section applies if, on the hearing of an application for a division 3 order, the court is satisfied the prisoner is a serious danger to the community in the absence of a division 3 –

“Serious danger” is elucidated in subsection (2), namely:

an unacceptable risk that the prisoner will commit a serious sexual offence –

if released. Subsection(3) was important in upholding the legislation, namely, that the court had to be satisfied:

by acceptable, cogent evidence –

Pausing there, it was accepted that the rules of evidence would apply:

to a high degree of probability;

that the evidence is of sufficient weight to justify the decision.

So it is a high standard. Subsection (4) then set out nine mandatory matters to which the court had to have regard ‑ for example:

(c) information . . . [about] propensity –

(d) . . . pattern of offending behaviour –

(e) efforts by the prisoner to address the cause –

and (f) whether they had participated in rehabilitation programs and if that had had a positive effect. If the Court was persuaded of the criteria in sub (5):

the court may order –

(a) that the prisoner be detained . . . for an indefinite term for control, care or treatment –

or that they be released subject to a supervision order, and (6):

In deciding . . . the paramount consideration is . . . protection of the community.

(7) The Attorney‑General has the onus –

If your Honours then jump to page 427, section 27, as I referred to earlier, there had to be at least annual reviews so long as the prisoner was subject to the order, and if your Honours jump to section 30(2), the same requirement of satisfaction applied. So as I referred to earlier, the Attorney would have to meet the same requirement on an ongoing basis at least every year. So it was a much narrower scope of offences with a high persuasive onus for people already serving a term of imprisonment and very much focused on future conduct.

So to have been convicted of something was a simple condition precedent; it was not a matter of trying, whether they committed offences not convicted of. The focus was very much on the future with the protections built in.

If I could then go to the case, which is in volume 3, tab 27 of the record [2004] HCA 46; (2004) 223 CLR 575. Again, just picking some key aspects, if I could start with his Honour Justice Gummow’s judgment at page 610, which is 1183 of the book, 610 of the CLR. Paragraph 74, his Honour refers to the principle of double jeopardy but says that the scheme impugned did not constitute any infringement of that. Recognising the discussion we have already had, we would compare that to here, in the ways that I have already articulated, where it is quite different. The focus is on past conduct, and then doing something in response to that. Then at paragraph 76 his Honour, after quoting Justice Gaudron in Nolan, said:

The making by the Supreme Court of a continuing detention order . . . is conditioned upon a finding, not that the person has engaged in conduct which is forbidden by law, but that there is an unacceptable risk that the person will commit a serious sexual offence.

So very forward‑looking. In paragraph 77 his Honour quoted the well‑known statement in Lim by Justices Brennan, Deane and Dawson. His Honour then went on to discuss that, as your Honours would know. At paragraph 78 he indicated there are some indeterminacies, in his Honour’s view, in that formulation. At paragraph 79 at page 612, one of the indeterminacies was the phrase “criminal guilt” and he then quoted Justice Hayne in Labrador and then after the quote said:

However, what is involved here is the loss of liberty of the individual by reason of adjudication of a breach of the law. In such a situation, as Kirby J remarked in Labrador, that loss of liberty is “ordinarily one of the hallmarks reserved to criminal proceedings conducted in the courts, with the protections and assurances that criminal proceedings provide”.

Then at paragraph 80 he reformulated somewhat how he would put the Lim principle to focus on involuntary detention. We made reference to this principle in our written submissions. We do accept that that statement of the principle or the earlier statement in Lim and its iterations in other judgments of this Court does focus on detention and really probably imprisonment. We do not suggest the scheme rises so high here as to be imprisonment other than perhaps home detention in the way that I already addressed.

So we do not say we are directly within the Lim‑type principle or the reformulation of it by Justice Gummow, but it is approaching that and that does become a relevant factor, in our respectful submission, that where very significant restrictions on liberty can be imposed, that is an important factor in assessing the whole scheme.

BELL J: Justice Gummow in paragraph 80 is tying the analysis to the prior adjudication of criminal guilt. Now, in one of the ways you put your argument, parallel systems, that is not raised because there is a determination you would say, on one way you put your case, under 5(1)(b), of criminal guilt, your complaint is it is on a lower standard.

MR KIRK: Yes, I accept that. If I could then jump to page 1189, page 616, paragraph 97, still within his Honour Justice Gummow’s judgments, and if I could invite your Honours to read paragraphs 97 and 98. Then finally within Justice Gummow’s judgment if I could take your Honours to page 619 of the CLR, paragraphs 108 and 109 and invite your Honours to read those two paragraphs. We obviously give particular significance for the purposes of our case to 108, the last two sentences.

What Justice Gummow’s analysis illustrates is that, contrary to the impression your Honours may gain from some of the interveners’ submissions, Fardon was no blank cheque for preventative conduct regimes. Rather, it was, with respect, a very careful analysis of the terms of the legislation which was found to pass constitutional muster in light of the particular features of the legislation. It was not “anything goes”. His Honour Justice Hayne agreed with Justice Gummow, save that he reserved the question of whether the Commonwealth could enact such legislation. Part of Justice Gummow’s reasoning was that the Commonwealth could not. In so doing, he was rejecting submissions of the Commonwealth Attorney‑General. That is at paragraph 196 at page 647.

Can I take your Honours, finally, within this judgment, to the joint judgment of Justices Callinan and Heydon at page 654 of the CLR, 1227 of the book, paragraphs 216 and 217, and invite your Honours to read those two paragraphs. Their Honours, obviously, took more of a focus – differentiating between “protection” and “penal” – and I have sought to address that already but we would draw particular attention to the last sentence of 217. Again, it is no blank cheque for preventative regimes.

The final main point I would seek to deal with is in relation to Thomas v Mowbray. Can I take your Honours first to the legislation, which is at volume 1, tab 6, starting at page 68, which is Division 104 – this is an extract from the Criminal Code (Cth), as it existed at the relevant time.

As your Honours know, the scheme dealt with control orders. The way the scheme worked is that first an interim control order would be made under Subdivision B, and then later sought to be confirmed. But the criteria and confirmation were the same as the criteria for interim control orders, so it is sufficient to go to 104.4 at page 70 where it provided:

The issuing court may make an order under this section in relation to the person, but only if:

.....

(c) the court is satisfied on the balance of probabilities:

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

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

So (c)(ii) is backward‑looking, but it is the only backward‑looking part and it is an objective fact; (c)(i), they are alternatives, is forward‑looking. It also involves a high degree of assistance in preventing a terrorist act and it is only in relation to terrorist acts, without going to it in the interests of time, that term is defined in section 100.1 at page 42 of this book and involves a high degree of threat in a limited set of circumstances. The further criterion then is (d), that:

the court is satisfied on the balance of probabilities that each of the obligations –

et cetera, are both:

reasonably necessary, and reasonably and adapted, for the purpose of protecting the public from a terrorist act.

Again, a high degree of focus. Your Honour Justice Edelman put to me earlier why would not “appropriate” be read as appropriate and adapted and so forth or reasonably necessary and your Honour raised with me, too, legislative forebears. Well, there are legislative forebears which the drafter in New South Wales plainly could have referred to and he/she did not pick up that type of language.

EDELMAN J: That submission is a submission as to the better interpretation. Do you accept that an appropriate and adapted or a formulation that would import notions of proportionality as I had raised with you is an interpretation that would still be open in the sense that if constitutionality depended upon the application of the provision in a way that was subject to those notions of proportionality, that construction should be adopted?

MR KIRK: We would say no to that question construing – and without going back over the whole ‑ ‑ ‑

EDELMAN J: But it is not even open?

MR KIRK: No, we would say that construed in context it is meant to be a very broad open relatively easily satisfied regime as regards the 5(1)(c)/6(1) aspect. The key focus is upon the 5(1)(b) aspect in terms of any trial. Going back to this regime, in 104.5(1)(f), a control order could be for a period up to 12 months, and if and when a control order was confirmed, it is similarly only dated 12 months from the date the interim order had been made. Without going to it, that is 104.16(1)(d). Section 104.5(3) sets out the types of restrictions that could be imposed and, without going through them, we would say all of those were similarly possible under the New South Wales Act.

The distinguishing features thus are it was not dependent in any way on a finding of criminal guilt. With the exception of providing training to a listed terrorist organisation it was all forward focused. It had a high degree of satisfaction and targeting required in relation to a very limited range of offences and for a period of only 12 months.

The effect on the defendant was expressly – I should have noted this. In section 104.40(2) the effect on the defendant was expressly required to be taken into account. If I can go to a case very briefly, it is at volume 5, tab 41. I will just go to one paragraph in the Chief Justice’s judgment, paragraph 18, page 330 of the CLR and page 1935 of the book. First in the long paragraph 18 and almost exactly halfway down the paragraph his Honour said:

It may be accepted that control orders may involve substantial deprivation of liberty, but we are not here concerned with detention in custody; and we are not concerned with executive detention.

That was in answer to a Lim type argument and I note that to note as I put earlier that we do not say the Lim principle is directly applicable here but something like it is relevant. Jumping the next two sentences, his Honour said:

It is not correct to say –

and down to the end of that paragraph. That was in summary a key rejection of the argument put there but it was a different type of argument to the argument that is at issue here. It is a very different scheme.

The final topic for me to address very briefly – I will only be two minutes or so, your Honours, if not less – in fact two issues: severance and costs. The only severance argument put against us is that it is suggested by the defendants that if just section 5(1)(b)(ii) is invalid then the remainder of the scheme could survive. We respectfully suggest otherwise. For reasons we have outlined in writing, that was plainly intended to be, both from the structure of the Act and from the debates, a central feature of the Act.

For example, as I put earlier, the hearsay special provision only really has work to do in relation to 5(1)(b)(ii), not in relation to the other parts of the scheme. In that context it should be concluded that the Parliament intended the Act to work as a whole or not at all.

Related to that point in relation to costs, finally and very briefly, the only dispute about costs following the event either way is that the defendants say that if we were to win on invalidity of 5(1)(b)(ii) but lose on severance such that 5(1)(b)(ii) is cut out we should not get our costs, say the defendants. We respectfully say otherwise. To cut out even 5(1)(b)(ii) would directly and significantly affect the case to be put against the plaintiffs in the Supreme Court proceedings and thus will count as significant success in relation to the plaintiffs’ interests. They are the submissions for the plaintiffs.

KIEFEL CJ: Yes, thank you, Mr Kirk. The Court will adjourn until 2.15.

AT 12.48 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.15 PM:

KIEFEL CJ: Yes, Mr Solicitor.

MR SEXTON: If the Court pleases. Your Honours have been taken to the legislation, but we will put it into this context, if we may, and start by saying that there are five points of judgment for a court considering an application under this legislation. The first is that the court must be satisfied that the subject of the application has been convicted of a serious criminal offence or has been involved in a serious crime related activity for which he or she has not been convicted of a serious criminal offence ‑ that is section 5(1)(b) ‑ and specifying classes of persons against whom the order can be made.

The second point of judgment is that the court must be satisfied that there are reasonable grounds to believe that the making of the order would – and we emphasise the word “would” – prevent, restrict or disrupt the involvement by the person in question in serious crime related activity, section 5(1)(c). This is, we would say, a forward‑looking judgment and it turns on the court being satisfied that there is a real likelihood, not merely a possibility, that the making of the order will achieve the protective or preventative purpose of the legislation.

I will come back to that last term in a moment. But, if I could just – on that question of likelihood – take your Honours to one case in the book of authorities? It is at volume 4, tab 40, and the relevant page is 1904. This was a case about ‑ ‑ ‑

GORDON J: What page of the case is that please, Mr Solicitor?

MR SEXTON: Page 338, your Honour.

BELL J: I am sorry, and the name of the case?

MR SEXTON: The name of the case is Taylor v New South Wales, your Honour. This was a provision of the Workers’ Compensation Act and, obviously, well removed from this kind of legislation. But, there is a passage there from Acting Justice Sheppard on page 338 at paragraph 64 where he says that:

“Would” derives from the verb “will”; “might” from the word “may”. Both are usually applied to events which are to take place in the future but “will” and “would” usually imply a probability or likelihood whilst “may” or “might” are the language of possibility.

I would simply draw attention to that passage.

On the question of preventative or protective purposes, as opposed to punitive implications in the legislation, it may well be, as my learned friend, Mr Kirk, said, that there are instances that are close to the line and difficult to determine, but we would say it is not so in this particular case, that what the provisions do is to inhibit future activities to prevent criminal conduct. They do not punish for past conduct and there is really an analogy here – I will come back to Fardon at a later stage, but there is an analogy here, we would say, with Fardon where the provisions were held to be protective and not punitive. As my learned friend also pointed out, there is a different regime and also a different objective, in a sense, in Fardon, but it was the same concept of protection rather than imposing a penalty on the person in question.

So the third point of judgment in relation to the legislation is that the court must be satisfied that there are reasonable grounds to believe that the order would protect the public. I will not take your Honours to these in the books, but if I just mention them, that Chief Justice Gleeson in Thomas v Mowbray noted that predictions as to danger to the public are regularly part of the business of courts. Similarly in Condon v Pompano [2013] HCA 7; (2013) 252 CLR 38 at page 96, paragraph 143, it is in volume 2 of the authorities, tab 20, and this is at page 637, Justices Hayne, Crennan, Kiefel and Bell said that:

Courts are often called on to make predictions about dangers to the public.

This was in the context of, there, a court making a finding about an organisation – and I am quoting:

based on an assessment of what its members have done, are suspected of having done, and may do in the future –

And the Court’s conclusion, in this case, that the making of the order would prevent, restrict or disrupt involvement in serious crime related activities may go some way to establishing that the order would protect the public but whether the public would be protected is, nonetheless, a matter about which the Court must also be satisfied.

GAGELER J: Protected from what?

MR SEXTON: From the serious ‑ ‑ ‑

GAGELER J: I understand protected from a serious crime related activity, but that is just point 3 collapsing into your point 2. What additional element is added by the reference to protecting the public?

MR SEXTON: Well, your Honour is quite right to say that these are very closely allied concepts and it may well be that in most cases they would, in a sense, be considered – as your Honour points out – together. I suppose it would be possible, for example, to suggest that in the case of conflict between two rival organisations that the primary dangers were to those bodies themselves and perhaps not to the public but, arguably, there is a danger to the public there as well. But we would say that there are two separate concepts here, but they are very closely allied.

GAGELER J: Well, what is the content of this separate concept of protecting the public once you get beyond protecting it from a serious crime related activity?

MR SEXTON: That is so, your Honour, but just in the example I gave, you might be able to make an argument that although you were disrupting serious criminal activities you were not necessarily protecting the public.

GORDON J: I do not quite understand that submission. What role does the word “by” have – to protect the public by doing something? It is not at large. Are you suggesting it has some meaning beyond what follows the words?

MR SEXTON: Only this, your Honour, that it seems to us that the court would have to consider both things: does this disrupt serious criminal activity and does that protect the public? Normally, the answer to the second would follow from the first; we agree with that.

GAGELER J: Going back to your point two, is it part of your point two that the court has to consider whether there are reasonable grounds to believe that there is a real likelihood that the individual would engage in serious crime related activity in the absence of an order being made?

MR SEXTON: Well your Honour, if there is not some sort of likelihood of criminal conduct on the part of this particular person, it is hard to see the basis for the order.

GAGELER J: So that is yes?

MR SEXTON: Yes, your Honour.

EDELMAN J: Could there be possibly an independent role for the notion of protecting the public independently of your second point if one were dealing with an offence which is more concerned with an individual’s inward looking conduct, possession of drugs, for example, without any intention to sell or supply, which might not involve any issue about endangering the public?

MR SEXTON: Well that is possibly another example, your Honour. As we say, normally the answer to the second question would follow from the first. But your Honour’s example is one where it may not.

GORDON J: Mr Solicitor, does that mean your response to – your answer to Justice Gageler that I should read paragraph 12 of your submissions as including that additional limitation? I did not understand that to be your position in your written submissions.

MR SEXTON: If your Honour would just give us one moment to look at this. Well, your Honour, normally, the protection of the public will result from the disruption of criminal conduct and on that basis the court would have a reasonable belief as to whether that might and will occur in the future.

GORDON J: Sorry, I had understood in your - in response to Justice Gageler that you accepted that the test, or the way in which the section should be construed was that the court have reasonable grounds to believe that there was a real likelihood the person would engage in serious criminal related activity absent the order being made, is my note.

MR SEXTON: Or being involved in it, your Honour, yes.

GORDON J: No, absent the order being made, yes. I am trying to work out, am I right that that is the ‑ ‑ ‑

MR SEXTON: Well, the purpose of the order is to prevent the conduct taking place.

GAGELER J: Or inhibit the conduct taking place, disrupt the conduct. It can be much less than prevent, surely.

MR SEXTON: Well, or restrict or disrupt, yes.

NETTLE J: But Mr Solicitor, you do say that there must be a real likelihood that but for the order the person would engage in or be involved in serious crime related activity.

MR SEXTON: I think that is right, your Honour, yes.

KIEFEL CJ: Where do you gain that from the words of the section 5(1)(c)?

NETTLE J: It is from the “would”, is it not, in (c)?

MR SEXTON: Yes, it is from the “would”.

NETTLE J: Because you say that implies a probability or real likelihood, having regard to Taylor’s Case.

MR SEXTON: That will achieve the preventative purpose or the disruptive purpose of the legislation.

KIEFEL CJ: Is that right, or if one reads section 5(1)(c), particularly if one reads it with 6(1), is it not just self‑fulfilling because any order of the kind referred to in 6(1) which contains prohibitions, restrictions, requirements in relation to a person is likely to reduce the prospect that they will engage in criminal activities particularly if they have the risk of the threat of contempt of court over their heads and if that is – I should allow you to answer that.

MR SEXTON: No, I think you are ‑ ‑ ‑

KIEFEL CJ: Well, so where is the risk assessment?

MR SEXTON: Well, the risk assessment is based on ‑ ‑ ‑

KIEFEL CJ: The past conduct.

MR SEXTON: Well, in past conduct, yes. There may be other evidence, of course, in this particular case. In these particular cases there may be other evidence as well.

KIEFEL CJ: On these particular cases, it is because they are bikies - bikers. Is the word “disrupting” ever used otherwise than in relation to persons associated with these outlaw motorcycle gangs?

MR SEXTON: I do not know the answer to that.

KIEFEL CJ: I think it came into the statutory parlance in relation to them. But that must be so, must it not? If you make an order of the kind mentioned it is going to restrict anyone from criminal activity.

MR SEXTON: That is right. But it is forward‑looking if the order is made to have that effect.

KIEFEL CJ: It is forward‑looking to a risk which has never been identified or assessed.

MR SEXTON: The risk is – the risk arises from the evidence before the court, including evidence of past conduct.

KIEFEL CJ: So anyone who has been guilty of any serious criminal offence is a risk.

MR SEXTON: Not necessarily, your Honour, no. It depends on the offences and it would depend on additional material. That is why these provisions create for the court the task of considering a range of factors before an order would be made.

KIEFEL CJ: One might accept, Mr Solicitor, that there is a protective purpose – the public. But, nevertheless, the Act in its operation is simply targeting a particular person and restricting their conduct. That is how it operates and that is what it involves the court in doing by making these orders.

MR SEXTON: But that is how it protects the public, your Honour, or that is how it is designed to protect the public because of the impact of these – or the risk of the impact of these persons’ activities.

KIEFEL CJ: So, the Commissioner of Police comes to the court with a series of orders seeking to restrict the conduct of a particular person in particular ways and asks the court to make them in order to protect the public when it is self‑evident that it will have the restricting and preventative effects.

MR SEXTON: That is what it is designed to do. If your Honour takes the example of driving at night, for example – which is, I think, one of the orders that is sought in this case – between certain hours, it would seem to be reasonably clear that criminal conduct is perhaps more likely to take place at night, more likely to take place if persons have access to motor vehicles – if those persons, by way of their criminal history, for example, demonstrate a propensity for that kind of conduct.

KIEFEL CJ: But the court is not engaged in that kind of adjudication, is it?

MR SEXTON: It is making a connection, your Honour, between the past conduct and possible future conduct.

KIEFEL CJ: But the connection in 5(1)(c) for the court is the making of the orders. It is not the connection to an identified future risk – an assessed risk.

MR SEXTON: It is not, your Honour, in the sense that it – the question is how is the public to be protected and unless there is a risk there is no need to protect the public.

EDELMAN J: It is really the work that is being done by the words “the order” there because you would say that there is no real likelihood that a person is going to be engaged in serious crime related activities and the order could not prevent, restrict or disrupt serious crime related activities because there is no possibility of those activities.

MR SEXTON: Your Honour points out it is a reference to the order, so in a sense the court has to have an order in mind which will carry out the purposes of the provision.

EDELMAN J: Presumably that also then brings in restrictions about appropriateness.

MR SEXTON: Yes. I will come to that in a moment.

KIEFEL CJ: So you agree that section 5(1)(c) should be read with section 6(1). At the time the court is making the order the court has in mind particular orders.
s
MR SEXTON: Yes, your Honour.

KIEFEL CJ: So the question for the Court is the effectiveness of the orders to prevent, restrict or disrupt involvement and thereby protect the public. Is that the question?

MR SEXTON: Yes. It is a composite scheme, 5 and 6, your Honour, so that as your Honour says they need to be considered together. Your Honour, I think I had got to three of our points of judgment. The fourth is that even if the court is satisfied of those earlier requirements, by reason of the word “may” in section 5(1) it still has a discretion as to whether or not to make an order and that, apart from anything else, arises from section 9(1) of the Interpretation Act 1987 (NSW). I do not need to take your Honours to that. So the court has to be persuaded to exercise its discretion to make the order. Now, the fifth point of judgment ‑ ‑ ‑

GAGELER J: When would it not make an order, apart from a trivial case?

MR SEXTON: That is one example, your Honour. It simply provides a final discretion here but at that point there is still that element of discretion.

NETTLE J: But there would be no discretion if (b) and (c) were satisfied, would there? The court would be bound to make the order. “May” means may only there in those circumstances. To put it another way: on what basis could a judge properly refuse to make an order if he or she were satisfied of the criteria there set out?

MR SEXTON: Well, it would be unusual.

NETTLE J: It would be impossible, would it not? It would be unjudicial?

MR SEXTON: There could be some basis why. I can only say that it is unusual. It provides some kind of ultimate discretion.

EDELMAN J: You are about to come to the requirement that it be appropriate as well.

MR SEXTON: I am coming to that, your Honour – which is the fifth point, that even if the first four points are met, that the court has a further evaluation to make as to what prohibitions, restrictions, requirements or other provisions should be imposed and those prohibitions and the like may only be imposed where the court considers them to be appropriate for the purpose of protecting the public by preventing, restricting or disrupting involvement in serious crime related activities.

GORDON J: So there, Mr Solicitor, the focus again is on this protection of the public question. It does not seem to have that limitation that you seem to accept, in answer to Justice Gageler, which is this limitation that one does not make the order unless it is clear that absent the order they are going to engage in the activity.

MR SEXTON: Well, it is protection by preventing, restricting or disrupting the involvement. So, unless there is a risk of involvement, it is hard to see how one would get to the stage of protection of the public. On that term “appropriate” we have given examples in our written submissions, at paragraph 56, of statutes that allow a court to make orders or impose penalties that it thinks to be appropriate. Western Australia, in its written submissions at paragraph 49, has given some examples of how this term has been used by way of a judicial standard.

The most appropriate analogy, in many ways, in terms of the decisions of this Court is, with the current legislation, we would say is in Thomas v Mowbray. Your Honours have been taken to that provision. I will not take your Honours to it, but it is in volume 1 at tab 6, page 70, the relevant provision of the Criminal Code (Cth).

EDELMAN J: Just before you move to that, just so I understand, your submission about 6(1) is that the requirement that the court consider the order to be appropriate is doing something more than merely what 5(1)(c) does, which is require an assessment of a real likelihood of engagement in those activities so that even if there is a real likelihood that the person would engage in serious crime related activities, the appropriateness further constrains what the court can do in making orders that would prevent, restrict or disrupt that real likelihood.

MR SEXTON: That is so, your Honour. I just perhaps jump ahead and say there that it seems to us that because of the reference to the disrupting – I will just use that term for the others – of the criminal conduct and the question of public serving, public protection, that the content of the orders would need to be directed towards those concepts so that it is far from open‑ended. There was some reference to notions of proportionality in the Court this morning, when being addressed by my learned friend.

Perhaps I can jump ahead and take your Honours to one passage in the parliamentary proceedings. It is in volume 5, tab 46, page 2295. That is a reply by the member of the Legislative Council who gave the second reading speech so it is, in a sense, still part of that explanation of the legislation. Your Honours will see right at the bottom of the page almost, Mr Clarke says:

While decisions of courts in the United Kingdom are not binding in New South Wales, the principles I have outlined in respect of serious crime prevention orders may offer useful guidance.

Notably, they state that a serious crime prevention order must address a real or significant risk of future offending behaviour. It must be proportionate and commensurate with that risk. A serious crime prevention order should be practical, enforceable, precise and certain.

EDELMAN J: Are those principles being developed out of the same wording?

MR SEXTON: Is that the same wording?

EDELMAN J: To what extent is the wording of the 2007 UK Act different?

MR SEXTON: It is rather similar. I do not have it in front of me, your Honour, but I think it is similar. But in a sense it is a question of really what the term “appropriate” can mean in this context.

GORDON J: For my part, I find that a difficult submission, Mr Solicitor. Not only is the language slightly different, but who can apply for the order in the UK is different and we do not have the guidelines that they have, do we, or anything like it.

MR SEXTON: No, your Honour, I am only saying that because the question of proportionality was raised, it is referred to in what is in effect the second reading speech. It was something that was considered in relation to the legislation. But we would say that, whatever term is used, the expression “appropriate” is in a sense confined by the notion of the protection of the public and the requirement of disrupting criminal conduct.

GAGELER J: Do you say it imports some notion of proportionality?

MR SEXTON: Well, I do not have to use that term necessarily, your Honour. I am only saying that it is one way of looking at it. It was referred to in the parliamentary proceedings. But we really put it on the basis that it is confined by those two notions.

GAGELER J: What about necessity? You mentioned Thomas v Mowbray and I think the legislation there refers to “reasonable necessity” as well as “reasonably appropriate and adapted”. Drawing a distinction between the terminology do you say “appropriate” involves a looser notion than “necessity”?

MR SEXTON: Well, the term was “reasonably necessary” I think in Thomas v Mowbray. I think “necessity” is too high.

GAGELER J: Can the disruption be in any degree?

MR SEXTON: Well, if one looks at the protection of the public, it perhaps could be a slight and trivial form of disruption and that would also go to the content of the orders, whether they were appropriate or not.

GAGELER J: Would it be correct to say that on your analysis there is no single appropriate order?

MR SEXTON: In any particular case?

GAGELER J: Yes.

MR SEXTON: It will come out of the evidence.

EDELMAN J: Put it in the negative then. If there were an order that – or two orders that were contemplated, one which would achieve much the same effect, but with far less restrictive consequences for the individual, would it be an error to make a second type of order?

MR SEXTON: Yes.

NETTLE J: Because it would not be a proportionate response to the risk?

MR SEXTON: And it would not reflect the two purposes that are set out.

GORDON J: The two purposes being?

MR SEXTON: The disruption of criminal conduct and the protection of the public.

GORDON J: They both do – both orders do. That is the point. One just has more draconian or more – has harsher consequences for the person involved.

MR SEXTON: But one does it in a different way.

EDELMAN J: To flesh it out further, with Mr Kirk’s example, one order which imposes home detention on someone who steals five jumpers from David Jones and the second order that prohibits them from attending David Jones.

MR SEXTON: The first of those orders, we would say, would not be appropriate.

KIEFEL CJ: The second would?

MR SEXTON: Might be, your Honour, yes. I am not sure that this example of Mr Kirk’s is a particularly useful one.

KIEFEL CJ: It is perhaps not his best point.

EDELMAN J: You would say you would have to get into questions of reasonable likelihood then as well, and so on.

MR SEXTON: That is where the various terms in legislation have work to do. But, appropriate, we say there must be some notion of balance here and that while, of course, it would be – one could say that you could stop the attendance at David Jones in a range of ways but obviously you do not need to – really, in a sense, the question is that the word “appropriate” means that it is not appropriate to go any further than you have to in this context. That is a question for the court as to how far it is necessary to go to achieve those things.

Your Honours, I was just looking at Thomas v Mowbray where the provision says that the court – I will not take your Honours right through the provision, but that the court needs to be satisfied on the balance of probabilities that the making of the order would substantially assist in preventing a terrorist act. Then it is satisfying the balance of probabilities that each of the obligations, prohibitions and restrictions to be imposed is reasonably necessary and reasonably appropriate and adapted for the purpose of protecting the public from a terrorist act.

We would say that the first of those might be considered closely analogous to the requirement in section 5(1)(c), that the court is satisfied that there are reasonable grounds to believe that the making of the order would protect the public and the second requirement in the Thomas provision we would say is analogous to the requirement in section 6(1) – that it may only contain restrictions, prohibitions, et cetera, that are considered appropriate for the purposes that we say are reflected in that provision.

GAGELER J: Does the court under section 5(1)(c) need to have belief?

MR SEXTON: The court’s satisfaction is that there are reasonable grounds to believe ‑ ‑ ‑

GAGELER J: That somebody might think it.

MR SEXTON: Yes – or, presumably, an objective.

NETTLE J: So, it is not a Briginshaw comfortable level of satisfaction that the offence would be committed but for the order?

MR SEXTON: No. No, the court’s satisfaction is that there are reasonable grounds for a belief that the making of the order.

NETTLE J: So, a judge could say, “I don’t think he is going to do it but there are reasonable grounds to believe that he might”.

MR SEXTON: Yes, or that he – reasonable grounds to believe that this is perhaps likely.

KIEFEL CJ: And the belief is that the making of the order will prevent, restrict or disrupt involvement in criminal activities and thereby protect the public. That is how one reads it. Could you think of an instance where an order containing provisions such as those in section 6(1) would not satisfy that requirement, that is to say an order containing prohibitions, restrictions, requirements in relation to a person’s conduct, obviously. For instance, those of the kind here in question would not satisfy the description of “preventing, restricting or disrupting involvement” and thereby protecting them.

MR SEXTON: Well, section 6(1) in many ways goes to the content of the orders. So it is the notion of disruption may go to the ‑ ‑ ‑

KIEFEL CJ: Yes.

MR SEXTON: But on the other hand there is the notion of having an order in 5(1)(c), the notion of an order in contemplation to test it against the requirements of section 5(1)(c). Then again in 6(1), to test it against the notion of what is appropriate. Can I just mention one more thing about – or two things about Thomas? In Thomas, the obligations, prohibitions and restrictions that could be imposed by the provision included prohibitions or restrictions on the person being at specified areas or places, on leaving Australia, communicating or associating with specified individuals, and also requirements to wear a tracking device, and to report to specified persons and specified times and places.

That is noted in Thomas at – I will not take your Honours to these, but at paragraph 49. The order made in that case included a requirement that Mr Thomas remain at his home, or at another address notified in writing to the Australian Federal Police, between midnight and 5.00 am each day, that he report to the police three times a week, and that he be prohibited from leaving Australia without the permission of the police – that is at page 309, prior to the judgments.

Chief Justice Gleeson drew the analogy at paragraph 16 with bail conditions, apprehended violence orders, and the binding of persons over to keep the peace. Justices Gummow and Crennan noted at paragraph 48 that the relevant provisions contemplated an ex parte procedure, but the proceedings were taken to be interlocutory, so that the hearsay rule did not apply if evidence of the source of the hearsay evidence was adduced by the party leading it.

Now, can I come, your Honours, to Fardon [2004] HCA 46; (2004) 223 CLR 575, which is at volume 3, tab 27, page 1170. In some ways, Fardon is a slightly different case from Thomas because it was about continuing detention orders, not about control and association orders. Those orders, continuing detention order, were made against Mr Fardon notwithstanding the fact that his original sentence had expired.

The point of comparison, we would say, is that the court considered that the relevant Queensland legislation was valid because its purpose was to protect the community and not to punish Mr Fardon. I think your Honours have already been taken to the passages that indicate that. Could we just add that Chief Justice Gleeson noted at paragraph 20 that by conferring the powers in question on the Queensland Supreme Court the legislation was, in his words:

attempting to ensure that the powers would be exercised independently, impartially, and judicially.

Can I just come back to David Jones for a moment, your Honours. The plaintiffs do not suggest that an order could be made requiring custody of a person in a corrective services regime but they do suggest that it could extend to what they describe as home detention or confined at some other location.

There was of course a form of limited home detention in the order made against Mr Thomas, but the scope of the orders that might be made under that legislation and under this legislation must be considered in the light of the principle of legality, in addition to the notion of appropriateness which we have already referred to. Chief Justice Gleeson noted in Al‑Kateb v Godwin [2004] HCA 37; (2004) 219 CLR 562 at 577, paragraph 19 ‑ it is in volume 2 at tab 16, page 492, but if I just read this sentence to your Honours:

Courts do not impute to the legislature an intention to abrogate or curtail certain human rights or freedoms (of which personal liberty is the most basic) unless such an intention is clearly manifested by unambiguous language, which indicates that the legislature has directed its attention to the rights or freedoms in question, and has consciously decided upon abrogation or curtailment.

There is a similar reference by Chief Justice French and your Honours Justices Kiefel and Bell in North Australian Aboriginal Justice Agency Ltd v Northern Territory [2015] HCA 41; (2015) 256 CLR 569 at 582, paragraph 11 that the principle of legality is properly applied. This is in a case where the purpose of the relevant statute involves an interference with the liberty of the subject.

GAGELER J: How does that translate here? What does that mean for present purposes? That the order cannot extend to detention? Is that all it means?

MR SEXTON: Yes, your Honour. There may be an argument about the meaning of detention, for example, if you look at notions of curfews and so on, but we would say that if one looks at the notion of home detention, which is what my learned friends refer to, we point to the language of the statute. One would not read it in that way because of this principle of legality, amongst other things, apart from, we would say, that on its face you would not read it in that way.

EDELMAN J: I do not understand that. Home detention is what it is. What does the principle of legality have to say about how you would characterise home detention?

MR SEXTON: It is how you would construe the provision, your Honour. It talks about prohibitions and restrictions. We would say that you would not read that as extending to a period of home detention, although in the case, for example, of Mr Thomas there was a period effectively of home detention. But at least in terms of general detention, in other words, that someone is not allowed to leave the home 24 hours a day, but an extended period.

GORDON J: Is that a distinction drawn between the Australian legislation and the UK legislation then?

MR SEXTON: Is the situation different in the United Kingdom?

GORDON J: About detention, home detention.

MR SEXTON: I do not think the legislation refers to the concept, your Honour, so arguably one would construe it in the same way. Can I just say then, your Honours, that there are a number of things, having explained what the legislation does – but there are a number of things that the legislation, we would say, does not do. It does not impose a penalty for past conduct without the process of a criminal trial.

The previous convictions – or if established the previous criminal conduct that has not been the subject of conviction are simply the factums selected by the legislature to form the basis for particular consequences, in this case the making of the relevant orders in circumstances where the object here is the protection of the public in the future, and that is another sense in which it is analogous to the legislative scheme considered in Fardon.

Secondly, for essentially the same reasons, the legislation does not affect in any way and certainly does not undermine the previous verdicts of criminal trials or any sentences that resulted from those verdicts. We acknowledge of course that there may be instances where the applicant for orders under the legislation relies on conduct that was the subject of an acquittal in criminal proceedings, as opposed to conduct that was the subject of a criminal conviction or has never been the subject of a criminal charge.

But we say that does not cut across the acquittal verdict because any finding of criminal conduct in the course of an application under the legislation would be made on the civil standard of proof, not the criminal standard. That has always been possible in some other areas of the law - there is some discussion of assault cases this morning – as, for example, being open to publish that a person acquitted of murder was in fact guilty of the crime and to assist an action in libel by pleading truth to be established on the balance of probabilities. Your Honours were taken this morning to the statement in Australian Communications and Media Authority that courts are required often to determine the facts that establish that a person has committed a crime.

Third, we would say the legislation does not enlist the court to act at the behest of the legislature or the Executive. It is already noted, even when the court is satisfied that there are reasonable grounds to believe that the making of an order would protect the public and the other preconditions are satisfied, it may nevertheless refuse to make an order or, if it does, may impose different and lesser prohibitions, restrictions or requirements than those sought by the applicant.

BELL J: Mr Solicitor, here the applicant approaches the court by its further amended summons on page 52 of the special case book and it seeks orders in the terms there set out and then it pleads the grounds, namely, that they are persons over the age of 18 years who have been convicted of a serious criminal offence or have been involved in serious criminal related activity, as particularised in annexure A. Then it is simply asserted that there are reasonable grounds to believe the making of the order would protect the public by preventing, restricting or disrupting involvement in serious crime‑related activities.

So in terms of enlistment of the court the applicant comes to the court seeking tailored orders which include limiting the means of communication of the respondents to the application and limiting their movement between the hours of 9.00 pm and 6.00 am, amongst other things. It establishes that they are people who, in the past, have been convicted of or involved in serious criminal activity.

It is difficult to see how the court might not conclude that there objectively exist reasonable grounds for the belief that by restricting their movement at night and restricting their means of communication with other human beings one might disrupt at least any serious criminal activity that they may be inclined to involve themselves in.

Just referring to your pleading, what criteria do you identify beyond the fact of the offences particularised in annexure A and then the assertion of the statutory test?

MR SEXTON: They are not before your Honours, but in this particular matter there are substantial affidavits in terms of evidentiary materials that would also - that the court would consider. As your Honour says, this is ‑ ‑ ‑

GORDON J: What are they directed at?

MR SEXTON: The risk of future criminal activity, amongst other things, your Honour.

EDELMAN J: But on your case they should also be directed to why these orders are appropriate as opposed to more extreme orders.

MR SEXTON: Yes, your Honour.

EDELMAN J: Or less extreme orders.

MR SEXTON: Well, the extent of the orders will – something that will arise out of the evidence, assuming some orders are made. Of course it does not follow that the orders that are sought by the applicant will be the ones, if any are granted – that it will be in exactly those or substantially those terms. They may be lesser orders than the ones that are sought.

GORDON J: The reason why Justice Bell’s question is so important is because if you take page 59 and just take the first defendant, we are dealing with offences in 2006, 13 years ago, not guilty by direction, not proceeded with, not proceeded with. So, put that to one side, other than an assertion that they have participated in a criminal group contrary to section 93C with no factual identification about what that means.

MR SEXTON: Well, that is obviously ‑ ‑ ‑

GORDON J: So, then that is the reason why with that material, as Justice Bell says, objectively there exist reasonable grounds to believe that by making orders sought they have described some sort of criminal activity absence something to confine the exercise.

MR SEXTON: It is a pleading, your Honour, but the evidence ‑ ‑ ‑

GORDON J: It is not a pleading. It is the basis for the summons, is it not?

MR SEXTON: It is, your Honour, but the evidence will, firstly, in a sense, reflect whether any orders are made and, secondly, what the content of those orders will be. If the court is not satisfied of the requirements of the statute for, for example, some of the reasons that your Honour raises, then the orders will not be made.

KIEFEL CJ: But, Mr Solicitor, as Justice Bell points out, the nature and terms of the orders are such that they would at the very least disrupt involvement, make it difficult to be involved in criminal activities. What more would a court need and how could a court refuse to make an order on that basis?

MR SEXTON: The court needs to be satisfied that there is a need to protect the public in this instance.

KIEFEL CJ: But that is met by the orders themselves. That is why I said before it is self‑fulfilling. If the making of the orders has the desired result, that protects the public. A restriction or disruption of involvement in criminal activities has the result that the public is protected. That is really how the paragraph reads, does it not, and logically it follows.

MR SEXTON: But there needs to be initially the notion of “would disrupt”, I will just use “disrupt” term for the moment. In other words, there has to be a likelihood of disrupting.

KIEFEL CJ: That is the efficacy of the order, though. That is the court’s concern there with the terms and nature of the order being effective for that purpose. But assuming that to be the case and they will almost always be given the types of orders that are here sought, if it does have that effect it would follow that it would protect the public to an extent, on what basis could the court refuse to make the order?

MR SEXTON: It is a question of the risk that is involved.

KIEFEL CJ: That is the point. How do you read a requirement for an assessment of risk into paragraph (c)? Frankly, that is the difficulty I am having.

NETTLE J: Do you not say, Mr Solicitor, that it must be appropriate apparently to the court that making such an order would, as it were, balance the risk of contravention against the effect of the order on the subject? Is that not the way it is put, or have I missed something?

MR SEXTON: No, no.

EDELMAN J: In other words, the order does not do anything if there is no risk. The order has no effect at all because if there is no risk, then making the order does nothing. It is only if there is a real risk, or a real likelihood that the order is going to do something and disrupt.

MR SEXTON: Yes, yes – which is why – we are assuming that the court would not make orders without any purpose in this kind of exercise.

NETTLE J: Because it would not be appropriate to do so.

MR SEXTON: Amongst other things, yes. As I say, the two provisions need to be – when they are considered together – have that effect.

NETTLE J: The two provisions are in the one section in the English legislation from which they are taken. They are different subsections of the one section. Do you agree with Mr Kirk this morning, or is there any scope of suggestion put to him by Justice Edelman that this Court is entitled to take into account that the Parliament of New South Wales enacted this legislation, effectively, in English form, after it had been construed in England as importing a requirement of proportionality?

MR SEXTON: That seems to follow from the passage that I took your Honours to from the second reading speech.

NETTLE J: That is the second reading speech but is there authority that we may do so? There certainly used be.

MR SEXTON: Yes.

NETTLE J: I have a feeling that it changed a little over time. But, in the early years of this Court they used to follow.

MR SEXTON: I think it is still available to take into account the second reading speech in terms of the legislation – where there is some possible doubt as to the meaning and the construction.

NETTLE J: I had rather more in mind to taking into account that the Parliament of New South Wales had enacted it in the English form after it had been construed by the courts in England as importing proportionality.

MR SEXTON: That, in a sense, seems to be what is reflected in that paragraph that I took your Honours to.

NETTLE J: Yes, I see, thank you.

GAGELER J: When you adopt the notion of “proportionality”, what are you adopting? Is it the Human Rights Act?

MR SEXTON: These were the words that were used and it does not necessarily reflect some aspects of that proportionality about which there are different categories, in a sense.

GAGELER J: Even what goes into the so‑called balancing exercise what are we balancing – some European human rights?

MR SEXTON: No.

GAGELER J: Then what?

MR SEXTON: Your Honour, we have put it in terms of a balancing exercise which comes back to the word “appropriate” - in other words that the court would make the orders that it considers to be suitable in this case, but not going beyond that requirement.

KIEFEL CJ: Perhaps more akin to a sentencing process where it is in proportion and reasonable.

MR SEXTON: Your Honour, and the - it is a little like the “beyond a reasonable doubt” in the criminal law where all attempts to expand this reus have been, in a sense, unsuccessful. But it is the same with perhaps terms like “appropriate” and “reasonable” that it leaves this in a sense up to the court itself applying – acting in a judicial fashion – but it is still certainly provides a discretion.

EDELMAN J: I thought you accepted earlier that at least the essence of what it meant was that it was an order that was reasonably necessary to achieve its purposes.

MR SEXTON: Yes.

EDELMAN J: In other words, that if there were at least a more obvious, less restrictive alternative, then it would be an error to make the more extreme order.

MR SEXTON: Yes, your Honour, I do.

EDELMAN J: At least that is my understanding of where the English are going with it.

MR SEXTON: It follows, we would say, that that would essentially be true for this provision. Your Honours, I think I was dealing with things that
the legislation does not do and I have only one left, I think, which is the fourth one that it does not depart in any significant way from traditional judicial functions and methods, makes specific provision for procedural fairness in section 5(3) and (4), and if an order is granted in some form there is provision for an appeal as of right on questions of law and by leave on questions of fact in section 11.

The only departure from normal procedures really is the modification of the hearsay rule which your Honours have been taken to this morning and the adjustment of evidentiary provisions as this Court has said always being open to the legislature and that is evidenced by decisions such as Nicholas v The Queen, and again, the court has an ultimate discretion of course.

The plaintiffs say at paragraph 58 in their written submissions that the requirement of section 1 about appropriateness is not susceptible of judicial decision‑making. It is already noted we have given some examples at paragraph 56 in our written submissions of other statutes that use their approach.

I am reminded of Baker v The Queen – it is not in the book – [2004] HCA 45; (2004) 223 CLR 513 where the argument was made that the term “special reasons” of which the Court had to be satisfied was a criterion devoid of content or meaning and that argument was rejected by the Court. As Chief Justice French explained in Pompano at paragraphs 23 to 24, where a statute employs a broad standard a court will necessarily have regard to the objects of the legislation in applying that standard.

I should say finally something about the situation where the conduct relied on in the application is the subject of criminal charges that have not yet been heard and it is a question of prejudice that might be caused by these circumstances to the person responding to an application.

That is in a sense a matter for the court hearing the application which would have the power as part of its inherent or implied jurisdiction sometimes in the exercise of express statutory powers to adjourn or to stay the application proceedings if it was considered that it was in the interests of justice to do so. Justice Gageler discussed that question in Pompano at paragraph 187. Unless there are any other matters, your Honour, those are our submissions.

KIEFEL CJ: Thank you. The Solicitor‑General for the Commonwealth.

MR DONAGHUE: Your Honours, I propose to focus in oral submissions first on two discrete issues concerning the proper construction of the Act, both of which have featured in the discussions in the hearing to date. And then second, to develop the submission that the Commonwealth could confer an equivalent power to that found in section 5 of the Act itself, and to answer the Kable challenge in that way.

Can I start with the questions of construction, and ask your Honours to turn to section 5? There are, as has been noted, two quite different kinds of criteria that one finds within section 5 that need to be satisfied in order to enliven the power. There does not seem to be any real debate at the level of construction about the first category, which are the conditions found in 5(1)(a) and 5(1)(b), both of which involve an inquiry into either present or past facts.

There is, I think, some debate about the constitutional validity of 5(1)(b), insofar as it involves an assessment of criminality, including criminality with respect to matters where a person may not have been charged, or may have been charged or acquitted. We submit that there is not a constitutional problem with the provision in that form, but I will defer my submissions on that until the constitutional validity part of the case.

The issues of construction concern a second set of criteria, which we identify as found together in 5(1)(c) when read with section 6(1). The two points that I seek to develop are, first, the meaning of the word “appropriate”, including, in particular, whether proportionality of some kind – and I will come to what I mean by that – is required between the prohibitions and the restrictions that a court might think are appropriate in order to protect the public and the rights and liberties of the person who is the subject of the order, so that is my first topic.

The second topic concerns the content of the reasonable grounds to believe requirement, including, in particular, what must be believed. But can I start with “appropriate”. Your Honours have heard the debate in the case between the parties as to the extent to which the impact of the order on the person who is the subject of the order is something that can be taken into account.

The submission of the plaintiff late in the day ended with a submission in answer to your Honour Justice Edelman that it was not even open to construe the legislation as allowing an inquiry of that kind. For the four reasons that I am about to develop, our submission is that the task of the court under section 6(1) is as follows – and we have set out the text of what I am about to say in paragraph 3 of our oral outline.

In our submission, the court must consider whether, in all the relevant circumstances, each prohibition, restriction or requirement that is sought is justified by reference to its contribution to protecting the public in the identified way, by preventing, restricting or disrupting the person’s involvement in a serious crime related activity.

It follows from that that, in our submission, if the benefit to the public is slight, but the burden on the person is great, the court would conclude that the imposition of that prohibition, restriction or requirement is not appropriate. Now, I know I need to develop how we get to that, and, as I say, there are four reasons.

The first is, in our submission, that to approach the meaning of 5(1)(c) together with 6(1) in that way is consistent with the ordinary meaning of the word “appropriate” insofar as if the order goes beyond the degree of restraint that the reasonable protection of the public requires, it is difficult to see why a court would impose that particular prohibition, restriction or requirement in circumstances where the court has a choice not to do so.

The power has been conferred on a court expected to act judicially in the context of legislation that is evidently designed to protect the public from an identified risk. If the court thinks to make a particular order would go beyond that purpose, why would it do it? So, in our submission, one gets quite some distance just by looking at the ordinary meaning of the word and the repository of the power.

EDELMAN J: The ordinary meaning of the word actually, it is not just whether it goes beyond a purpose. I mean ad proprius is to be adapted to a purpose.

MR DONAGHUE: To the purpose; I accept that, your Honour. An example that occurs to us that illustrates the clear need to take into account the impact on the person is if your Honours hypothesise a case where there are objectively reasonable grounds to believe that a person and his or her spouse, being people who are living together, perhaps raising children together, are also jointly engaged in criminal activity. In that scenario, a serious crime prevention order that required them not to associate with each other for a period of five years would rationally advance the purpose of protecting the public from the criminal activity of the couple.

But, in our submission, it cannot be the case that a court confronted with that scenario could not, as a matter of construction of the legislation, take into account the impact that making the order would have on the relationship of the couple involved. In our submission, it is difficult to conceive and this might be an example where your Honours said, well, is there any role for the residual discretion? It might be an example where the court would say, “Even though I think that the order would advance the purpose of protecting the public, I am still not going to do it”, having regard to the policy of the law in protecting marital relationships. But I do not need your Honours to go that far. My point with the example is simply to illustrate it cannot be right that the court cannot, in deciding whether or not a particular order is appropriate, think about the impact it would have in that kind of fact scenario.

GAGELER J: Mr Solicitor, in articulating that example, you referred to protecting the public from criminal activity. Is that the way you read the reference to protecting the public “by preventing, restricting”, et cetera?

MR DONAGHUE: By preventing or restricting, yes.

GAGELER J: So all that public protection is referring to is the absence of criminal activity?

MR DONAGHUE: The serious crime related activity referred to. I do not seek – I know some other parties have ‑ I do not seek to give any additional content to the words “protecting the public”. In my submission, the legislation is premised on the proposition that if one does restrict, prevent or disrupt the serious criminal activity, then that has a protective purpose.

KIEFEL CJ: So as long as the orders conform in the way you say, they are appropriate in the burden that they place? So long as they prevent, restrict or disrupt, they meet the description of protecting the public?

MR DONAGHUE: No, because, in my submission, in the formulation that we have set out in paragraph 3 one is weighing each prohibition, restriction or requirement by reference to its contribution to protecting the public but asking the question: does it impose a greater degree of restraint than the reasonable protection of the public requires? There may be some work being done by “reasonable” in that formulation. But it does not show that an order is appropriate just to show that it rationally advances the purpose. In our submission, one also looks at the balance between how much protecting of the public you are getting versus how much restraint on the liberty of the person.

KIEFEL CJ: Which order does this exercise take place in? Is it done initially so that you have the orders defined to see if it meets section 5(1)(c) or does it happen subsequently?

MR DONAGHUE: We have said in writing and I maintain – it may be an iterative process but we submit that you start at section 6(1) because of the order in section 5(1)(c). You need to have an order with content and then you need to ask the question: would it advance the statutory purpose? As I will come to in a minute, that is the way the Supreme Court of New South Wales has actually done it in some of the few cases under consideration.

Your Honours, our second point was rather anticipated by Justice Edelman this morning and Justice Nettle this afternoon which concerns the relevance of the interpretation of the UK statute. As your Honours know, the statute we are now concerned with was modelled on the Serious Crime Act 2007 – modelled on it to the extent that, while there are obviously differences, the language you see in 5(1)(c) and 6(1) is virtually identical, although as Justice Nettle pointed out, they appear in one section in the UK Act and are separated here.

Not only is the language virtually identical but the leading case concerning the meaning of the UK Act, R v Hancox, which I am going to take your Honours to in a moment, was decided in 2010, well before the enactment of the Act now in question in 2016 and so had a settled meaning in United Kingdom law at the time that the New South Wales Act was adopted. That, in our submission, does bring in the presumption to which Justice Edelman referred, that where words of an Act have received a judicial construction in a superior court it is presumed that they have the same construction in a subsequent Act.

We have given your Honours a few additional materials. One of them that I hope your Honours have is an extract from the text by Herzfeld and Prince, “Statutory Interpretation Principles” in 2014. If your Honours have that – I will just pause while we give it to my ‑ ‑ ‑

GORDON J: I do not think we have it.

MR DONAGHUE: I apologise, your Honours. I thought it had been handed up with our oral outline.

GAGELER J: What words were you interpreting by reference to the English statute?

MR DONAGHUE: At the moment my particular focus is on the word “appropriate” but the point I am about to make could be applied to the whole of 5(1)(c) and 6(1) because the language of both of those two subsections is the same in the two Acts.

GAGELER J: Where is “appropriate” in the English statute?

MR DONAGHUE: Section 1(1), I think, your Honour. Just give me a moment. In 1(3), which is structured differently but is, in my submission, materially the same as section 6(1) of the State Act.

KIEFEL CJ: Where were you taking us to in the extract?

MR DONAGHUE: In the Herzfeld and Prince text, if your Honours have page 211, paragraph [6.45], the learned authors are dealing with the presumption from re‑enactment or amendment. They identify that there is such a presumption but it is said that it:

is generally a weak presumption.

In the second paragraph of [6.45] explaining why it is said:

In many fields today –

the view is taken, in effect, that it is:

artificial [because] the mechanics of law‑making no longer provide it with the foundation in probability which the doctrine was supposed once to have possessed”.

If your Honours then turn over the page, though, their Honours on 212 identify some contexts where it has more strength, and it has more strength, it is said, “in specialised and technical fields”, where judicial decisions are given particular scrutiny. It “may be sound” and “have real force”. Then in the last sentence of that paragraph:

Even outside these fields, the presumption may be applicable because the legislative history shows an awareness of the judicial interpretation in question.

There are a number of authorities in this Court cited in support of that proposition. Then picking up in answer to your Honour Justice Edelman’s question in the next paragraph the second sentence:

It has been applied to Australian legislation enacted after a decision of an English court on English legislation in the same terms.

Again a number of decisions are cited in support of that proposition. So an area in which it is suggested that this presumption does have real significance is where the legislative history shows an awareness of the judicial interpretation in question and that is precisely this case because, as your Honours have already been told, in the debates that follow the second reading there was quite considerable reference to R v Hancox and to the proportionality approach that had been adopted in that case.

It is true that opposition speakers said that that might not be followed in New South Wales because they have a Human Rights Act there and we do not have one here and the government response to that was to say that the UK approach did not depend on the Human Rights Act context. It follows from the meaning of the words and we would expect that courts in New South Wales would adopt the same approach that has been adopted by the UK courts.

So the government speakers certainly were aware of Hancox and so it is not in any way artificial to apply the presumption that the words enacted here mean the same as they meant there is to do the very thing that the New South Wales Government, in sponsoring this legislation, expected.

I will not take your Honours to the passages in the debates. Your Honours have already been taken to some of them but could I just note one in the Legislative Assembly, in volume 5 behind tab 45. At the very top of page 60 in the discussion there is a speech given by the Deputy Premier of New South Wales who, at the relevant time, was also the Minister for Justice and Police. At the top of page 60 it is suggested that:

Those opposite should be satisfied that this legislation will not be abused. It is there to address a specific purpose, that is, to keep our community safe . . . In addition, while the decisions of the United Kingdom courts spoken of in this debate are not binding in New South Wales, the principles they outline in relation to serious crime prevention orders do offer useful guidance for Australian judges into the future. Notably, they state that a serious crime prevention order must address a real or significant risk of future offending behaviour. It must be proportionate and commensurate with that risk.

I am going to take your Honours to the case now but, in my submission, your Honours are properly entitled, by reference to the various cases that are cited in the footnotes of that passage I have just handed up to give particular weight to the fact that the legislation that was being copied had been interpreted as I am about to show you it was interpreted.

EDELMAN J: In addition there is also the decision of the Supreme Court of the United Kingdom in Lachaux v Independent Print [2019] UKSC 27; (2019) 3 WLR 18, at paragraph 13.

MR DONAGHUE: Thank you, your Honour. So if your Honours could turn to Hancox, which is in volume 4, tab 35. It is R v Hancox [2010] EWCA Crim 102; [2010] 1 WLR 1434. If your Honours could then turn to paragraph 9 on page 1437. I should note that your Honour Justice Gageler asked me where the word “appropriate” appears. It appears in the provision identified in 1(3). The structure of the UK Act has mirroring provisions dealing with the Crown Court that uses the same terms and the relevant mirroring provision is section 19.

So when your Honour sees discussion here of section 19, it is using – it is the Crown Court version of the same language. So at paragraph 9, it is pointed out:

The order may be made if but only if the court has reasonable grounds to believe that an order would protect the public by preventing restricting or disrupting involvement by the defendant in serious crime –

Obviously the same language.

It follows that the court, when considering making such an order, is concerned with future risk. There must be a real, or significant, risk (not a bare possibility) that the defendant will commit further serious offences –

I have not taken your Honours to it, but at the start of this case, it is said by the Court of Appeal that this case provided them with an opportunity to set out the principles that would guide the operation of this statute. Then in paragraph 10, which is the most important paragraph:

If an order is made, it may contain such provisions as the court considers appropriate for the purpose of protecting the public by preventing, restricting or disrupting involvement by the defendant in serious crime –

Again, the same language. Then there are some references to some other statutes of a similar kind in England. If your Honours go about six lines down, it says:

this one is not expressly couched in terms of necessity. But we doubt that the different form of words make a significant difference in practice. It was common ground before us that the principles set out by this court in R v Mee . . . in the context of the similarly worded power to make travel restriction orders . . . apply equally to SCPOs. Such orders can be made only for the purpose for which the power was given by statute. And they must be proportionate.

Now, just pausing there, I am about to take your Honours to R v Mee. But to that point, the reasoning seems to be saying you need proportionality. It does not matter that it says “appropriate” instead of “necessary” and that is not dependent on the ECHR. Then the court does admittedly go on to say the necessity for proportionality also follows from the fact that it is likely that Article 8 of the European Convention will be engaged, and that they would need to be proportionate for that reason as well. Then at the end of paragraph 10:

it is not enough that the order may have some public benefit in preventing, restricting or disrupting involvement by the defendant in serious crime; the interference which it will create with the defendant’s freedom of action must be justified by the benefit; the provisions of the order must be commensurate with the risk.

At the top of the next page, paragraph 12:

Like other forms of preventive order, a SCPO is not an additional or alternative form of sentence. It is not designed to punish.

So when Hancox was being referred to in the debate and it is said that proportionality is required under these provisions; that was what was being discussed.

BELL J: Article 8 is concerned with the privacy and autonomy of individuals, is it?

MR DONAGHUE: Sorry, Article 8?

BELL J: Article 8.

MR DONAGHUE: Article 8, yes.

BELL J: Yes. Appreciating that the first portion of that analysis did not refer to it, nonetheless the concept that one is to take into account a balancing exercise between protection of the public and a consideration of the effect on the autonomy of the individual infuses the judgment, does it not? That reflects no small amount of time devoted to the jurisprudence of the European Convention.

MR DONAGHUE: Well, your Honour, I cannot say that it is not one of the strands of the reason. It clearly is one of the strands of reasoning, but the notion that there needs to be some proportionality between an order that is going to have an impact on an individual’s rights or liberties and the purpose that the order is supposed to serve is one, in my submission, that does not need the European Convention to bring it in. It is an approach that would be naturally followed, in my submission, by a court in dealing with a regime of this kind.

BELL J: But it is notable that the scheme does not, in terms, invite consideration of the intrusion on individual liberty by contrast with the criteria under the Code considered in Thomas v Mowbray.

MR DONAGHUE: Well, your Honour, that is true. There is a difference between the two, likely explained by the fact that this legislation in relevant respects copied the other legislation. So, in my submission, not too much turns on that. The case I am about to take your Honours to –Mee - is perhaps relevant in this respect.

KIEFEL CJ: Just before you do, Mr Solicitor, in Hancox does the Court actually consider the question of risk, as in making a finding about it, or does it proceed upon the basis that this is what the provision is directed to?

MR DONAGHUE: Your Honour, I will have to check the answer to that question. I am not actually sure how they applied it on the individual facts of that case. I must say I had assumed in light of the clear articulation of the principles that that is how it would have been applied. But I will ask my juniors to check that. Could I take your Honours to Mee while that is occurring ‑ ‑ ‑

KIEFEL CJ: Sorry, just before you do, do you say in relation to section 6(1) that there is an assessment of risk necessarily involved? It follows from what you just said I expect that there is.

MR DONAGHUE: Your Honour, I would prefer not to separate them out because, in my submission, one needs to have the order under 6 and to then put it into the context of the power under 5(1)(c). I say yes, if you read the two together.

KIEFEL CJ: You said before that the assessment under 6 precedes the consideration of making the order under 5(1)(c).

MR DONAGHUE: I said it also might need to be iterative ‑ ‑ ‑

KIEFEL CJ: I see.

MR DONAGHUE: ‑ ‑ ‑ because the court might ‑ ‑ ‑

KIEFEL CJ: I had not picked up on what you said. Thank you.

NETTLE J: In paragraph 22 they applied the assessment of risk.

MR DONAGHUE: Thank you, your Honour.

GAGELER J: Section 19 of the English Act seems to be about the Crown Court going on after a conviction and sentence, effectively immediately to deal with one of these orders. So it is very much like the sentencing provisions we were taken to earlier today by Mr Kirk, I think.

MR DONAGHUE: Possibly, your Honour, but again it also reflects the distinction one finds in the New South Wales Act between the Supreme Court and the District Court where the District Court can make the order if the person has been convicted, so there would be one case, but where the person has not been convicted only the Supreme Court can do it.

So there may be a temporal issue in that your Honour puts to me while it looks like it happens immediately on the sentence but, functionally, when one looks at section 1 and one does not have that same requirement there, one has a superior court engaged in a predictive exercise using the same criteria and then a narrower set of circumstances in which a lower court can do much the same thing. That structurally is, in my submission, the same as the New South Wales Act.

The point that your Honour puts to me is perhaps even more apparent in Mee. I hope your Honours were given R v Mee at the same time you were given the Herzfeld and Prince extract. So this is the authority that was mentioned in paragraph 10 of Hancox as the agreed basis for proportionality being relevant, and it is about a different kind of preventive order called a travel restriction order and it is an order even more clearly of the kind that your Honour Justice Gageler puts to me in that if your Honours look at paragraph 5 you will see it imposes a duty on the court on sentencing the offender to consider whether it would be appropriate for the sentence to include the travel restriction order.

So this is in some respects akin to a sentencing disposition or an additional sentencing disposition in a way, although it is accepted in paragraph 8 that it is imposed for protective purposes in the event – in order to produce the risk of reoffending after the person is released from prison. So it is serving an avowedly protective purpose.

It is obviously quite different from the order we are now concerned with, unlike the Hancox situation, but the discussion of principle that is picked up in Hancox is from paragraph 11 through to paragraph 14, in my submission, and your Honours will see that the Court of Appeal says in the second sentence of paragraph 11:

the starting point should be a careful consideration of the circumstances of the offence and of the offender with a view to making a realistic assessment of the risk which arises from the facts of the case.

Assuming that a risk can be identified, and a need for an order arises, the principles of proportionality and fairness require a balanced approach to the length of the restriction –

It is noted that it could be quite onerous. Then in paragraph 14:

Having regard to the impact of the restrictions, the length of an order should be measured to the defendant. Some factors can be enumerated by way of example; his age, his previous convictions, the risk of re‑offending, which can be assessed generally, and of course, as we have mentioned, family contacts, employment considerations and so forth. The length should be that which is required to protect the public in the light of the assessment of the degree of risk which is presented by the facts. But as we have said, it should be tailored to the defendant to such a degree as the court feels able when balanced against the risk.

So when we have used the word “proportionality” in our submissions, we are using it in this kind of sense which, in my submission, is not a strict proportionality of the ECHR kind. It is closer to the sentencing proportionality idea as your Honour the Chief Justice identified. That, we submit, is appropriate in this context, bearing in mind that the nature of the constitutional challenge that is raised before your Honours is not an implied freedom challenge where if one was constraining the legislation there would be reason to do it by reference to a McCloy proportionality‑type approach so as to align the statutory power with the constitutional limit.

But here where the challenge is a Chapter III one, your Honours have clearly held that a McCloy‑style proportionality analysis is not appropriate because Chapter III is not a limit of a kind which can be infringed provided you had a good enough reason. You cannot confer non‑judicial power on a Chapter III court just because you have good reasons for wishing to do so.

So the kind of analysis that McCloy calls for is inapt, and your Honours said that – I will not take your Honours to it, but in Falzon v Minister for Immigration [2018] HCA 2; (2018) 262 CLR 333 at paragraph 32. It is in volume 3, tab 26 but, as I say, your Honours do not need to go to it.

The final thing that I have handed up is a decision of the New South Wales Supreme Court in Commissioner of Police v Bowtell (No 2) and we have done this really in order to show your Honours that the construction that is being urged is not one of – we have not gone down the path of a construction designed to preserve validity. This is actually what the court does when it applies this legislation.

So, if your Honours turn to paragraph 81 – or, in fact, perhaps your Honours could start with 79 just to make good a comment I made to the Chief Justice a short time ago. So, in paragraph 79 the court says about four lines down:

it is difficult to see how the s 5 determination can be made without considering the particular prohibitions etc that should be put in place.

So, there the court was contemplating the need to look at section 6 before section 5. Then, in paragraph 81:

The Commissioner accepts that at this point (ss 5(1)(c) and 6(1)) a balancing exercise is involved between the need to protect the public in that way and the restrictions that will be imposed –

One sees then, if you jump forward to paragraph 90, how it actually worked. The court was concerned about the effect of some of the restrictions, raised them with senior counsel for the Commissioner which caused the Commissioner to go away and reformulate. One of the concerns raised was that the order would have prevented contact with the father, who was also a member of the relevant motorcycle club and the father had been diagnosed with cancer so the Commissioner went away and reformulated and you see the revised restrictions set out in paragraph 92 that were sought which includes in 1b a carve‑out to prevent the order, or to ensure the order did not stop association with immediate family members. Your Honours might also note 1c which was a prohibition on:

Attending any licenced hotels, pubs, clubs and bars in New South Wales.

I ask your Honours to note that because when the court got to that one at paragraph 98 it did not accept that the restriction was reasonable. It went beyond what was necessary. There was evidence before the court that the Nomads had resorted to congregating in hotels or clubs or bars but the court was not satisfied that that was sufficient in order to justify an order of that kind for the reasons given at paragraph 99. It:

is a serious restriction on a person’s liberty . . . need to be strong justification –

and the court was not satisfied. Your Honours might also note that at 102 another order was refused about limiting computer use and I think your Honour Justice Edelman asked a question about the relationship between these orders and sentences and whether they could be taken into account as part of the sentencing process. That actually happened in this case, so at paragraph 108, the judge who was making the serious crime prevention order said that:

The restrictions, prohibitions and conditions of the orders I make should operate only until such time as a sentence is imposed on any of the defendants if such a sentence would be inconsistent with the present orders. Otherwise the present orders should only act to the extent that that they are not inconsistent with any sentence imposed.

The order ultimately made in subsection (3) reflected that. So, the way this works in practise does embody a loose proportionality or a sentencing‑type proportionality of the kind that we have relied on.

The final matter on “appropriate” – which I can deal with very quickly – which is that the scheme itself appears, particularly in sections 5(3) and 5(4) which give natural justice rights to the person against whom an order is sought – that things that that person has to say will bear on the exercise of power under section 5(1)(c). That, in itself, points to the idea that one is not just looking for a rational connection between the order and the protective purpose, that there is scope or balance of the kind that we have referred to. Your Honours, those are the submissions I would seek to make about “appropriate” and in support of the idea that there is that proportionality understood in the way I have just described inherent in the process.

The other statutory construction ground concerns the phrase, “reasonable grounds to believe”, or perhaps more completely, “reasonable grounds to believe that making the order would protect the public. There are three points we seek to make about construction of this provision. The first is in answer to your Honour Justice Gageler’s question – I think to both of my friends – does the court need to hold the belief? As your Honour knows, that formulation is used a lot in legislation. Usually, the answer to that question is yes.

GAGELER J: Because, usually, the legislation makes clear who is to have the belief.

MR DONAGHUE: Usually, it does, but unfortunately not always, which is why there is some body of authority in the Court about this. So, in George v Rockett itself, it did not require the person to have the belief because of the way the section had been structured. There is quite a helpful discussion which I will not take your Honours to in Chief Justice French’s judgment in Stuart v Kirkland‑Veenstra about this question but his Honour makes the point in paragraph 56 that, ordinarily, one would require not just the objective grounds but the belief to be held.

In our submission – it is, ultimately, not my legislation – but, in my submission, I would say this. If your Honours thought it mattered to the validity of the provision – that the belief be held – you could certainly construe the provision in such a way that the court had to hold the belief. In my submission, that is a respectable construction, even if you do not think you need to read it in that way, because clearly the court has to be – the difference is about the court being satisfied itself that the reasonable grounds to believe or just being satisfied that some other person might be able to have the belief. But, in circumstances where it is the court that is taking the action and making the order, it would be a slightly strange intellectual process for the court to engage in – for the court to say, even though I do not actually believe this order is necessary, I am still going to make an order, having all of these terms.

GORDON J: So, is that how we are to read paragraph 4.2 of your outline? That is, that you say that we are to read it in?

MR DONAGHUE: Paragraph 4.2.

GORDON J: Of your oral outline.

MR DONAGHUE: Yes, if it has the ‑ if it has, that is right. So, my first point is that one could easily construe it in that way. Probably, I do not need to go so far as that your Honours should but, in my submission, it is a perfectly respectable and sensible reading of the legislation that the court has to have the belief.

GAGELER J: To administer section 6(1) – as you say it works – does the court have to have the belief anyway?

MR DONAGHUE: The court would certainly have to have the belief that it was appropriate to make particular orders and it is hard to see how that could happen without, so, yes. I do not want to tie myself in knots by my effort not to make too forceful a submission. I think my submission is the better interpretation if the court has to have the belief and that sits conformably with the court clearly having to think that the making of the order is appropriate. There is no question that the court must have that state of mind.

NETTLE J: Thus Briginshaw would apply?

MR DONAGHUE: Your Honour, I am not sure that Briginshaw would apply at that level. Briginshaw would certainly apply at 5(1)(b), about past facts. How Briginshaw would apply to a forward‑looking or predictive inquiry is perhaps more complicated. In my submission, the statute itself identifies the level of satisfaction that the court is required to have, but, as I am about to develop, it is a strong one. It is much stronger than has been suggested.

KIEFEL CJ: Mr Solicitor, in the Bowtell Case was there any assessment of the risk undertaken? Certainly, findings under (5)(b)(ii) were made, but on my quick reading I cannot see that there was any assessment of risk.

MR DONAGHUE: It depends, I think, your Honour, on exactly how detailed the finding had to be. So there was, for example, a discussion around paragraphs –

KIEFEL CJ: Paragraph 73.

MR DONAGHUE: Yes. I was going to go on a bit.

KIEFEL CJ: There is the Briginshaw standard.

MR DONAGHUE: Yes.

KIEFEL CJ: Do you say it just follows from those findings and the risk was identified?

MR DONAGHUE: The risk was identified. Some orders were accepted. For example, 95 is an illustration. There is a finding of fact that the defendants in question:

are office holders in the Nomads and exercise to a greater or lesser extent, influence and control over members of the Nomads.

In the case of the third defendant, a lesser level of involvement. It looks like what the court did was to look at the affidavit evidence as to what these particular defendants had done and their offending in the past. It then used that as the basis for its decision as to which controls were appropriate and which were not, tying in the controls that were made to the kinds of risks that had been identified. That was part of the reason why (1)(c) was that the pubs/clubs prohibition was regarded as going too far. But it was not an elaborate risk assessment. I accept that.

Your Honours, the second point of construction about reasonable grounds to believe is that the plaintiffs submitted that there is no role for a likelihood assessment of offending in this regard. We respectfully disagree with that submission. Your Honours have already seen in Hancox, in paragraph 9, the court said the contrary on the UK legislation. There must be, the court said there, a real or significant risk not a mere possibility that the defendant will commit further serious offences.

We get that principally from the word “would”, which, as the learned Solicitor for New South Wales has noted, has been construed in various places, including in Taylor. In our submissions in paragraph 11, at footnote 8, we cite a number of references that support that understanding of the word “would”, including discussions of Justices Kirby and Callinan in this Court on appeal from Taylor. Their Honours were dissenting but I think not relevantly on this point. I withdraw that.

The second aspect of the construction of this phrase that I seek to address is the subject matter of the reasonable grounds to believe or, to put it differently what is it that must be believed? The answer to that, in our submission, fairly clearly is that the making of the order would have an effect, would protect the public. It is – I think what I am about to say is consistent with what your Honour Justice Edelman put to the Solicitor for New South Wales near the end of his submissions.

A court cannot, in my submission, have objectively reasonable grounds to believe that making an order with the terms identified under section 6 would have the effect of protecting the public unless it is satisfied that there is a real likelihood that the person will offend again, because unless so satisfied, there is nothing for the order to intercept.

Take the example of a court asked to make such an order that, on the evidence before it, it is satisfied that the person has served a sentence of imprisonment and has reformed, has gone clean, and is not going to be involved in crime any more. A court that is satisfied of that cannot make an order under this provision because it cannot conclude – even though it might say, “Well, if I made an order, having all of these terms, it would make it much harder for the person to reoffend,” that is not the question. The question is: would it protect the public in the identified way? And if the person is not going to be involved in serious crime related activity, if you do not believe that the person is going to be involved in crime related activity, then you cannot believe that making the order is going to stop or inhibit or ‑ ‑ ‑

EDELMAN J: In short, the order will do nothing.

MR DONAGHUE: Yes, it will not satisfy the statutory test. So consistently with the way Hancox approached this, the court does need to make a prediction of future risk of offending and then it needs to consider how the order it is contemplating making will intercept with that offending, will it prevent it, restrict it or disrupt it? If yes, then the criteria can be satisfied.

Now, I have jumped slightly ahead there in that I have anticipated my submission that I was going to make about George v Rockett and I do not seek to take your Honours back to this. But our friends, particularly in their written reply, have tended to align the concept of reasonable grounds to believe with the notion that surmise or conjecture is enough. They basically said, “Well, you can have reasonable grounds to believe based on surmise or conjecture”; you see that a few times in the reply.

That is not what George v Rockett establishes. The key passage – and I will not take your Honours back to it – says:

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

So it is true that you can have some surmise or conjecture in the mix. But, in my submission, that passage falls well short of saying that reasonable grounds to believe can be based merely on surmise or conjecture.

Your Honours looked at this question in Prior v Mole. As I have mentioned, Chief Justice French looked at it in Stuart v Kirkland‑Veenstra. And, in my submission – and this is really the bottom line of our submission as to how 5(1)(c) works – what that section does is empower the court to make an order only if the court has a positive inclination of mind based on objectively reasonable grounds that there is a real likelihood or probability – that is the “would” – that the person will engage in future serious crime related activity and that, making the order on the terms proposed, would protect the public by preventing, restricting or disrupting that activity. That is the statutory question.

KEANE J: You are reading a fair bit into that. I just wonder whether there may not be a simpler way of looking at it. Section 5(1)(c) requires a satisfaction in the court that there reasonable grounds to believe a certain thing. That satisfaction is also consistent with satisfaction that there are reasonable grounds to believe otherwise.

MR DONAGHUE: Well, your Honour, in my submission ‑ ‑ ‑

KEANE J: If that is right – so, there is a possibility that there are reasonable grounds to believe that making the order would protect. There are also reasonable grounds to believe that maybe it is not necessary and then 6, 6 solves the problem by telling you that the order may contain the prohibitions as the court considers appropriate for that purpose. So that there may indeed be a balancing in terms of the sufficiency of the evidence, the strength of the evidence, that there are reasonable grounds both ways, but it is appropriate to make the order because the evidence is sufficient to suggest that it is appropriate to make the order because that would prevent et cetera ‑ prevent, disrupt et cetera ‑ that it is actually inherent in the nature of the test that enlivens the jurisdiction in (c) and the use of the word “appropriate” that you are necessarily doing this balancing exercise and you are making the orders by reference to the extent of the risk. It is kind of analogous to an application for an interlocutory injunction where in terms of the balance of convenience, the strength of the order you make reflects a view of the seriousness of the risk but on that view you do not have to get into all of this reading in.

MR DONAGHUE: Well, your Honour, I am seeking to ‑ I think I accept most of what your Honour put to me save that certainly except that there is what the court considers appropriate for the purpose of protecting the public does involve that balancing in the way that I have tried to describe and it might be the case – and one then needs to have that order and go back and say, well, would making that order with the terms and conditions I have in mind, meet the statutory criteria.

One might, at that point, think, well, no, or it might be that that order seems to – balancing the extent of the protection of the public against the burden on the person involved, it might seem that one needs to at least have enough content to achieve the protective purpose that is required under section 5(1)(c). So, it could be that you, at that point, say, well, we need to do a little bit more in order to protect the public, would that still be appropriate and that is the iterative process.

KIEFEL CJ: Mr Solicitor, would you argue that section 5(1)(c) read with section 6(1) is sufficient for an implication that there needs to be a need to protect the public?

MR DONAGHUE: Your Honour, I say that that is not an implication. In my submission, that appears from the words ‑ ‑ ‑

KIEFEL CJ: That is a matter of construction.

MR DONAGHUE: It is a matter of construction of the words “would protect the public”, making of the order “would protect the public”, that is the point I am seeking to develop now. So, the only qualification I would have on my agreement ‑ ‑ ‑

KIEFEL J: You are reading in words in (c), are you not? You are reading in “the making of the order is necessary to and would protect the public”?

MR DONAGHUE: I am seeking to give content to the word “would”, is likely to, or real probability, that is the way Hancox read it, that is the way Taylor read it in an admittedly different context, that it has that likely effect. Then, I am just reading the words saying, how could it do that unless there is a risk against which the public requires protection? So, a person who is not a threat of reoffending or, perhaps to put it more accurately, a person where the court does not have a positive inclination of mind because, again, that is not implication, that is the reasonable grounds to believe. So, unless you have a positive inclination of mind that the person is going to reoffend, that is the end, because, as your Honour Justice Edelman said, there is nothing for the order to do.

So, I do not accept that I am reading that in. In my submission, that is what your Honours have said in other contexts, “reasonable grounds to believe” means. Positive inclination of mind – positive inclination of mind as to what? Well, that the order would – meaning likely to – protect the public. So, if you do not need to protect the public, you are done. If you do need to protect the public, then you need to go on and say, what would be appropriate in order to achieve that purpose.

GORDON J: How low do you go in assessing that question?

MR DONAGHUE: How low?

GORDON J: Is there a bar? You can protect public, at what level?

MR DONAGHUE: At the level that the court considers appropriate. That is where these submissions I just made about proportionality come in. So, you do not break up the married couple to achieve some relatively minor – you might not break them up even to achieve a relatively major protection, but you certainly do not for a relatively minor. You might decide restricting someone to one mobile phone is not all that onerous a restriction. So, that the benefit that needs ‑ ‑ ‑

GORDON J: I was more concerned with the “risk” question. How much risk to the public do you need?

MR DONAGHUE: How much risk to the public you need. Well, you need – tracking the statutory language, to – the court needs to have a positive inclination of mind to think that making this order will help, will achieve that purpose. I do not think I should substitute for the text.

GAGELER J: You are using the word “protecting the public”, but I think you agreed earlier that all you mean by that ‑ ‑ ‑

MR DONAGHUE: I did.

GAGELER J: ‑ ‑ ‑ is inhibiting criminal activity.

MR DONAGHUE: Inhibiting criminal activity that you have a positive inclination of mind will occur; you are inhibiting that activity. I am using it as a shorthand.

GAGELER J: Mr Solicitor, do you in some way call in aid paragraph (b) as justifying the constitutional validity of paragraph (c) or is it simply neutral?

MR DONAGHUE: Yes, I do not need it, in my submission.

GAGELER J: So you could take section 5(1)(a) and (c) together, and you say that the Commonwealth could enact such provision, and it would confer judicial power, is that right ‑ as I understood your opening remarks?

MR DONAGHUE: Yes. No. Your Honour, I think that the answer to that question is yes, but I do need to qualify in this way. The regime that we are concerned with here is basically a control order regime. I would not make that submission if it were a regime that involved detention in custody. So the submission that I am going to develop shortly, that the Commonwealth could make the order, recognises that detention in custody has been given a particular status by the decisions of this Court, following from Lim. Kable and Fardon are obviously cases of that kind, they are detention in custody cases. They are cases where the person could serve their criminal sentence and stay in the same cells that they were in before, under a protective order.

I am not saying that is a matter for ‑ I am not saying anything one way or the other. I am not saying the Commonwealth could not do it; I am saying it is a matter for another day as to whether or not the Commonwealth could enact a regime of that kind. When one is dealing with restrictions of a lesser character, in my submission, I certainly do not need satisfaction (b)(i), and (b)(ii), given that it is an inquiry about satisfaction of involvement in a category of conduct which may not have been charged at all or the subject of the criminal justice system, that is not, in my submission, a constitutionally required factum for a protective order of this kind.

I need a sufficiently clear standard to engage the exercise of judicial power but, for the reasons I am about to come to, I would have that in the example your Honour puts to me.

GAGELER J: So effectively in the area of personalised legislative regimes designed to inhibit behaviour that might lead to a criminal offence ‑ might contribute to a criminal offence.

MR DONAGHUE: We are in the realm of behaviour of a power conferred on a court with all that that carries with it, which I will come to, that if satisfied to the requisite standard, which here, as I have said, is positively satisfied, that the order will have a particular effect, that would,
in my submission, be a non‑punitive protective effect, that would be an exercise of judicial power.

EDELMAN J: Just before you move away from the risk point, and it may just be a structural point, but is it necessarily then right to see a stepped approach as beginning with a question of appropriateness, or should one more accurately start with the question of risk in 5(1)(c) and ask whether – because if there is no risk that a person would be involved in serious crime related activities, then you would never get to the question of appropriateness, and appropriateness would then logically come second if you are feeding that into 5(1)(c).

MR DONAGHUE: Yes, it is hard to see how the court could be satisfied that any order is appropriate for protecting the public if it does not think that there is risk, so there would have to be a risk assessment. Whether that happens as the first step of the section 6 inquiry or whether it happens under section 5 and then you go to section 6 and then you go back, I am not sure it matters, your Honour, which is why I said one must read them together. But certainly there is a risk assessment as a first step and I thought that when Justice Gageler put to me, well, the court might need to be satisfied about that anyway, that that was why, because, in my submission, the court would need to be satisfied about it in order to rationally undertake the section 6 exercise.

Your Honours, I said in relation to the constitutional part of the case that the way that I was proposing to approach it was to develop that the Commonwealth could enact a law of that kind. I will not take your Honours to the cases, but in footnote 19 of our written submissions we cited the line of cases which includes Bachrach v Queensland and Baker and Condon where the Court has recognised that if the Commonwealth could confer a power of the relevant kind itself consistently with Chapter III, that is, consistently with Boilermakers Chapter III standards, then it necessarily follows that Kable is not contravened.

So that is the logical underpinning for the submission that I am going to make. I am going to make that submission principally by reference to three cases: Thomas v Mowbray, which I want to spend a little bit of time on, and then quite quickly Wainohu and Condon. I am happy to launch into that now, if that would be convenient, but I am ‑ ‑ ‑

KIEFEL CJ: I think it might be an appropriate time to adjourn.

MR DONAGHUE: Yes. Thank you, your Honour.

KIEFEL CJ: Thank you. The Court adjourns to 9.30 am tomorrow for pronouncement of orders, and otherwise to 10.00 am.

AT 4.14 PM THE MATTER WAS ADJOURNED
UNTIL WEDNESDAY, 7 AUGUST 2019