Minister for Home Affairs v Benbrika [2020] HCATrans 218 (10 December 2020)

Last Updated: 14 December 2020

[2020] HCATrans 218

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Melbourne No M112 of 2020

B e t w e e n -

MINISTER FOR HOME AFFAIRS

Plaintiff

and

ABDUL NACER BENBRIKA

Defendant

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

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 10 DECEMBER 2020, AT 9.46 AM

Copyright in the High Court of Australia
KIEFEL CJ: In accordance with the current practice, I shall announce the appearances for counsel.

Appearing for the plaintiff is MR A.P. BERGER, QC. (instructed by Australian Government Solicitor)

Appearing for the defendant is MR R. MERKEL, QC with MR C.J. TRAN and MS E.S. JONES. (instructed by Doogue + George Lawyers)

Appearing for the Commonwealth as intervener is MR S.P. DONAGHUE, QC, Solicitor‑General of the Commonwealth of Australia, with MR M.A. HOSKING. (instructed by Australian Government Solicitor)

KIEFEL CJ: Yes, Mr Merkel.

MR MERKEL: If the Court pleases, do your Honours have the respondent’s outline of oral argument?

KIEFEL CJ: Yes, thank you.

MR MERKEL: I take it your Honours have had an opportunity to read it.

KIEFEL CJ: I think we can catch up, if we have not.

MR MERKEL: Yes, thank you, your Honour. Can we say, at the outset, that we would summarise the key propositions for which we are contending in our submissions as follows. Firstly, we would say that the decision of this Court in Lim is authority for the principles stated in paragraphs 2 and 3 of our outline of oral argument.....The second submission is that the reasoning of Justice Gummow in Fardon – to which Justice Gummow and Justice Crennan adhered with Justice Hayne and agreeing in Thomas – establishes two propositions. The first is that the preventive detention jurisdiction considered in Fardon is not an exception to the Lim principle. Secondly, as a consequence, the jurisdiction in Fardon could not be validly conferred or invested as judicial power of the Commonwealth under Chapter III of the Constitution.

The third proposition is that it follows that the preventive detention jurisdiction in Division 105A of the Criminal Code purportedly invested in State and Territory courts under section 77(iii) of the Constitution is, firstly, penal or punitive in character and, secondly, has been invested contrary to Chapter III of the Constitution. The fourth submission is that the decision of this Court in Kable (No 2) should not be accepted as determining that preventive detention jurisdiction is able to be invested or conferred under section 77 of the Constitution as part of the judicial power of the Commonwealth.

Our submissions will cover four principle topics. The first is that we will address the Court’s decision in Lim and subsequent decisions that have applied Lim. Secondly, we will consider Justice Gummow’s judgments, particularly his Honour’s judgment in Fardon; thirdly, we will outline what we will contend is the punitive character of Division 105A of the Criminal Code; and, finally, we will address briefly the Court’s previous decisions in Thomas and Kable (No 2).

Could I just start with a brief factual introduction? The respondent, Mr Benbrika, was, until 5 November 2020, serving a 15‑year sentence with a non‑parole period of 12 years, for terrorist offences. The two offences were intentionally being a member of a terrorist organisation and intentionally directing the activities of a terrorist organisation knowing it was a terrorist organisation, and those were offences under sections 102.3(1) and 102.2(1) of the Criminal Code.

He has been detained since the expiry of his sentence under an interim continuing detention order under Division 105A of the Code. Proceedings by the Minister seeking a continuing detention order under section 105A.7(1) of the Criminal Code are ongoing in the Supreme Court of Victoria. I understand those proceedings are almost completed and are expected to be completed in the next day or two.

KIEFEL CJ: Mr Merkel, is Mr Benbrika currently subject to an interim detention order?

MR MERKEL: Yes.

KIEFEL CJ: That is to say, is the initial order made by Justice Tinney, which expired on 2 December - has that been extended?

MR MERKEL: Yes, your Honour. I think the final order has to be made by 30 January, your Honour. It is expected that will occur, either one way or the other as the outcome of the present proceedings. The application is able to be brought against Mr Benbrika because he has been convicted of serious Part 5.3 offences under the Code, is detained in custody and is over the age of 18 being the requirements of section 105A.3(1).

The Minister brought his application under section 105A.5 and the orders sought in the application was for a period of three years which is the longest available single order under section 105A.7(5), although, under the Act, successive orders can be made, therefore there is the potential for indefinite detention under section 105A.7(6).

In accordance with section 105A.7(1)(b) and (c) the Supreme Court may make an order for a continuing detention order in relation to Mr Benbrika if the Court is satisfied (a) having regard to the matters in section 105A.8:

to a high degree of probability, on the basis of admissible evidence –

that Mr Benbrika:

poses an unacceptable risk of committing a serious Part 5.3 offence if [he] is released into the community.

Secondly:

there is no other less restrictive measure that would be effective in preventing the unacceptable risk.

If the order is made under section 105A.3(2), the effect of the order will be to commit Mr Benbrika to continuing his detention in prison for the period of the order. I should add, more recently, based on his conviction, the Minister has revoked the respondent’s citizenship under section 36D of the Australian Citizenship Act. He has a special visa as part of that process but that visa can be revoked if, for example, he left prison, at which point of time it would be expected if it were revoked he would be placed in immigration detention as an unlawful non‑citizen.

Can we go at the outset of our submissions to this Court’s decision in Lim v The Minister; that is in volume 2, tab 9. Can we go, firstly, to page 27 of the decision. The judgment has been cited time and again of Justice Brennan, Justice Deane and Justice Dawson. At point 5 of the page, their Honours make the point that the judgment and punishment of criminal guilt is exclusively judicial and at point 7 their Honours make the point that concern under the Constitution “is with substance and not mere form”.

At point 8, because the focus was on substance as well as form, can I just read from paragraph 33 on what their Honours said, explaining why the problem of substance over form gives rise to what their Honours find. Their Honours say at line 33:

The reason why that is so is that, putting to one side the exceptional cases to which reference is made below, the involuntary detention of a citizen in custody by the State is penal or punitive in character and, under our system of government, exists only as an incident of the exclusively judicial function of adjudging and punishing criminal guilt.

Can I ask your Honours to note, we take our system of government to cover both the Executive and the judicial branches. Then their Honours say:

Every citizen is “ruled by the law, and by the law alone” –

and then their Honours go on to refer to Blackstone. We say that what their Honours are then saying at the bottom of that page and over the page is that it follows that except in exceptional cases – and we will come to address that in more detail – a person cannot be imprisoned except for guilt because imprisonment was the same as punishment.

We take the following from the passages that we have just relied on at pages 27 and 28. We say, first, unless it is an exceptional case, detention in custody is punishment; second, except in an exceptional case, no branch of government can detain a person and therefore no branch of government can punish, except for guilt. We say that no branch follows from the statement about our system of government being both executive and judicial arms and certainly thus far nothing in them supports the Commonwealth’s argument that punishment means imprisonment imposed for breach of the law such that imprisonment for any other reason is not punishment.

At page 28 their Honours identify exceptional cases including remand and detention due to mental illness or infectious disease. A point we develop in our submissions is that these exceptional cases are justified not only because they can be seen to be non‑punitive, but because historically they are so seen to have treated. We say that is quite an important principle which has been adhered to in all of the decisions, we would submit, of this Court since Lim which have applied Lim – that detention follows is not permissible without the proper exercise of the judicial power of the Commonwealth merely because it is said to have a non‑punitive purpose without more, which conflicts directly with the position the Commonwealth takes, which is a non‑punitive purpose is sufficient standing alone.

Could I go to 28, point 10? The analysis of the joint judgment at that point states – and can I read from line 38 at page 28 where their Honours say:

Involuntary detention in cases of mental illness or infectious disease can also legitimately be seen as non‑punitive in character and as not necessarily involving the exercise of judicial power. Otherwise, and putting to one side the traditional powers of the Parliament to punish for contempt and of military tribunals to punish for breach of military discipline, the citizens of this country enjoy, at least in times of peace, a constitutional immunity from being imprisoned by Commonwealth authority except pursuant to an order by a court in the exercise of the judicial power of the Commonwealth.

Their Honours are there talking of as a consequence of a judgment of guilt and not otherwise. I should indicate at page 32, point 4 there is an important passage where their Honours consider the exceptions. Can I go down to about line 17 where their Honours, after referring to the historical exception of detention for the purpose of expulsion or deportation, their Honours then at line 17 say:

By analogy, authority to detain an alien in custody, when conferred in the context and for the purposes of executive powers to receive, investigate and determine an application by that alien for an entry permit and (after determination) to admit or deport, constitutes an incident of those executive powers.

What we draw from their Honours’ passage there is that we do not say exceptional cases are frozen into defined historical categories, we accept that they can be extended by analogy, but by an analogy that is appropriate and is adapted to the principle exception which makes the analogy an incident of that exception and not something that would be able to be spread at large. And then their Honours go on in the last sentence, talking about:

Ch. III’s exclusive vesting of the judicial power of the Commonwealth in the courts which it designates.

Their Honours say:

The reason why that is so is that, to that limited extent, authority to detain in custody is neither punitive in nature nor part of the judicial power of the Commonwealth. When conferred upon the Executive, it takes its character from the executive powers to exclude, admit and deport of which it is an incident.

We say, relying on those passages, our case on invalidity sits comfortably within the stated principle in Lim, and that is for three reasons. The first is Division 105A permits the involuntary detention of a citizen in custody by the State. Secondly, that detention is not part of, or incidental, to the adjudging and punishment of criminal guilt, it is based upon a prospective assessment of what the person detained might, or is at risk of, doing in the future. And thirdly, such detention does not fall within one of the exceptions that have been recognised, nor can any analogue be drawn as an incident of those exceptions ‑ ‑ ‑

EDELMAN J: Mr Merkel, if your proposition two is not correct, but your other propositions are correct, in other words, if this regime is properly construed as a regime involving the imposition of punishment, as an incident of sentencing process, an extended sentencing process, do you take any point about the retrospective nature of.....

MR MERKEL: We.....our submissions in two parts, your Honour. We say that, properly understood, what Lim’s Case is being accepted as saying, what we say Justice Gummow indicates in his reasoning in Fardon, is that involuntary detention in custody of the State is punitive unless it falls within an established exception, so that that is sufficient to look at the punitive element. But we say, as an alternative submission, if that be rejected, we say on the proper analysis of Division 105A, the retrospective aspects of it, and the extensive overlap between what occurs in the sentencing process and in the 15 years of imprisonment, and the continuation of that, is such that the division cannot displace the punishment overlay that is involved in the continuing detention.

But we are conscious of the fact that Justice Gummow disavowed that overlay, but relied entirely on the first point, but we say if the Court arrives at the conclusion that the first point, for any reason, is wrong, we fall back on the second point and take the retrospectivity, the overlay, and the continuity, plus the fact that this jurisdiction is only exercisable in respect of a person in prison, which we say undermines the sole preventive purpose argument that the Commonwealth puts. I hope that is an answer to your Honour’s question.

KEANE J: Mr Merkel, does the preventive purpose have to be the sole purpose of detention in order that the law that permits its imposition be characterised as other than a law for the punishment of criminal guilt?

MR MERKEL: We would say, on our fallback position, yes, your Honour. We say on the fallback position the preventive purpose must be such – Justice McHugh described as “purely preventive” – but we say it must be such that it displaces any element of punishment, and we say when we come to this division it fails to do that.

GORDON J: Mr Merkel, can I ask a question about that. In relation to the division – I know you are going to come to it – does the warning that is to be given – and I know this does not apply to your client because the provisions came in after he was sentenced – as part of the sentencing process, the court must warn the offender that they may be subject to one of these applications, should it not?

MR MERKEL: Yes, your Honour.

GORDON J: Does that not alter the way in which you just put that last proposition ‑ that is, it actually has a couple of purposes; it is both preventative but also part of the sentencing?

MR MERKEL: Yes, your Honour. I am cautious, because the primary position we put is that put by Justice Gummow, but we say that, amongst other aspects, shows that it is not possible to diverge the sentencing process from the continuing detention process. We say they are integrated and bound up with each other. In paragraph 8 of our outline this morning we have referred specifically to the provisions that we say are that overlap and the provision your Honour just took me to is one of the provisions in paragraph 8, but we will come to that in more detail.

EDELMAN J: If that is correct, though, Mr Merkel, how then can you make good the proposition that this preventative type of order is not incidental to the punishment of criminal guilt if it is part of and inseparable from the whole of the sentencing regime, including by reference to the provision that Justice Gordon took you to and also by provisions such as 105A.8(1)(g)?

MR MERKEL: Your Honour, it is an overlap that we have recognised that in accordance with decisions of this Court - and it may be that this case comes up as an exception - the prior convention – and this happened in Fardon – and the serving of the sentence, which was a prerequisite for the operation of the regime in Fardon, was regarded as the factum upon which the later regime of prospective detention, which is said to be preventive, operates, and it is said that that is a line of demarcation.

What we say if we get to our fallback.....is that line of demarcation as a matter of substance does not prevent the overlap and it is our submission that that overlap is sufficient to displace the purely preventive purpose, if one has to put it that way, or if one calls it a preventive purpose, that preventive purpose does not displace the punitive regime and the judicial power is being enlisted in a way that we say is contrary to the decision in Lim.

EDELMAN J: But how is there anything contrary to Lim then if, properly characterised, it is the exercise of judicial power to punish as an incident of criminal guilt?

MR MERKEL: Because, your Honour, the purpose is said not to be punitive. It is said to be preventive. The line of demarcation is said to be that the order is made for continuing detention solely on what the offender might do, not based upon what he has done. So we say that it is not regarded as a resentencing for the original conviction because it is spent. We say, your Honour, it would be wrong to treat this as part of the sentencing.

We draw on the distinction drawn in Veen (No 2) – which is referred to on a number of occasions by Justice Gummow – where there is a delicate line between fixing the maximum sentence based upon and taking into account protection of the community and rehabilitation, amongst other matters, or going beyond that line and imposing something additional to the appropriate sentence based upon protection of the community.

In the majority judgment, that second step was said to be impermissible and to approach what your Honour has put to me would be taking that second impermissible step that is using preventive detention as a basis for going beyond the punitive sentence that has been imposed having regard to rehabilitation and protection of the community which the court has fixed at 15 years. So we say that it is not properly regarded as part of the sentencing process so, we would, with respect ‑ ‑ ‑

EDELMAN J: When you say “is impermissible” under Veen (No 2), do you mean impermissible at common law or constitutionally impermissible?

MR MERKEL: That is more difficult to answer, your Honour. It was a State jurisdiction. Their Honours used the word “impermissible” in the judgment in Veen. But we would say it would be impermissible because that is not what the sentencing process is for – it is to find the appropriate sentence, having regard to all of the relevant factors including rehabilitation and community protection but not to add on above that sentence.

Three judges differed with the majority but only on the point of whether the appropriate sentence could have included what the majority saw as not an add‑on. The minority saw it as an add‑on. What your Honour is suggesting, if it were viewed as part of the sentencing process, we say that that is not correct. We would not accept that premise.

When we take your Honours to the regime, it is very difficult to get that premise that your Honour has put to me from the regime because it is discrete; it is comprehensive; it has regard to the factors that are to be taken into account – the factors that are not. So we would say it comes up more in the context that your Honour Justice Gordon put to me as something independent but overlapping with and stemming from the regime in a way that we say transgresses the principle in Lim.

GORDON J: I do not think you should misunderstand me, Mr Merkel. I do not know that I was putting it as independent. In fact, what I was suggesting was that 105A.23 seemed to suggest that as part of sentencing a person, the court is obliged to warn the person that an application may be made. In other words, it is seen as part of the sentencing – at least, arguably – having regard to the terms of 105A.23.

MR MERKEL: Your Honour is correct but we say the warning does not convert what 105A segregates as a fully independent process based entirely on what you might do and if using what you have done in the past as a factum for the operation of the section extend Division 105A into part of the sentencing process and we say that ‑ ‑ ‑

EDELMAN J: I am sure you will come to this but 105A.8(1)(g) does appear to be operating as more than just a factum. It is a factor to which regard must be had in deciding whether to make the order.

MR MERKEL: Your Honour, I suppose ‑ ‑ ‑

EDELMAN J: Subsection (h) as well, which is the views of the sentencing court at the time the sentence is imposed.

MR MERKEL: Your Honour, they are matters, amongst others, that we have regard to but, your Honour, I will need to come to 105A in due course, if I can do it comprehensively because, we say, it definitely sets up its own independent regime, and based upon this Court’s approach to the similar problem in the migration case that was in Falzon but also in Fardon and also the way Justice Gummow analysed it in Fardon, one does not convert the factum which is a necessary trigger for the operation of the section as being the operation of the section being based upon what you have done in the past. It is necessarily divorced from that.

If you can take the present case, Mr Benbrika has served 15 years, he has fully served his sentence, and at the expiration of the sentence ‑ and this trigger only arises at the expiration of his sentence ‑ the entirety of the inquiry is on what he might do; it is based upon propensity into the future rather than based upon the past.

But, we say, what your Honours are putting to me, in effect, establishes almost beyond argument, a punitive element, whether that punitive element or purpose is not disqualifying because it is an incident of the sentencing process is a question we will address if I can come to it in more detail when I come to the various aspects of the division, but we say it does stand independently of the original sentence and should not be regarded as an extension or continuation of it.

Your Honour is clearly correct to draw our attention to it, an oddity in the present case is that, of course, was not in existence when Mr Benbrika was sentenced, but we say that only makes good our point that that should not matter because it does not produce the result that the division is an incident of the sentencing process and therefore can be part of what may be called the established exceptions.

Can I go back to Lim? Justice Gaudron – I do not need to read it, your Honours, but Justice Gaudron took a different approach. Her Honour found at page 55, point 3 ‑ her Honour supported the general principle but said is it absolute because:

there are other situations in which persons may lawfully be held in custody.

But she did say at line 12 at page 55 that:

Detention in custody in circumstances not involving some breach of the criminal law and not coming within well‑accepted categories . . . is offensive to ordinary notions of what is involved in a just society.

But it is not:

necessarily and inevitably offensive to Ch. III.

Her Honour at page 57 adopts what we say has been accepted as flowing from Lim, that the provisions must not exceed what is reasonably necessary for the purposes, in that case, of deportation, of allowing entry applications to be made, and the implication from the decisions is that if it goes further than reasonably necessary that entitles an inference, or justifies an inference that there is also a punitive element. Justice McHugh at 65, point 9, again adopts the “reasonably necessary” criterion as a limitation and at page 71, his Honour refers to a “non‑punitive object”, if there is a legitimate non‑punitive object. Later on, in other judgments, his Honour refers to a “purely protective” purpose.

We say that the Court’s later cases have not departed from the fundamental propositions that we have identified in paragraphs 2 to 4 of the outline. Can we now go to those cases to make good that point that we made? If I could just take your Honours to Kruger, which is in tab 16 of volume 4, and the passages I want to go to are Justice Gaudron – I will refer to as Justice Gaudron’s criticism of Lim. I do not need to take your Honours to what her Honour said in detail, but what her Honour said at page 110, point 3, is that her Honour was critical of the view that the exceptions could be regarding as establishing any general rule. What her Honour said, they:

serve so many different purposes –

that her Honour says, at 110, point 5, that the exceptions are neither clear nor precise within defined categories. We would make the following observations about what her Honour has said. We would say later cases, as was the case in Lim, have treated the exceptions as confined to historical categories that will, of course, differ, when considered in relation to executive and judicial power or, as I indicated earlier, to their analogues, so we say that her Honour’s criticism has not been followed or backed up in the later decisions.

We also say that it is not open to the Commonwealth properly to call in aid what Justice Gaudron said, because what it is proposing to do is a unification of all the possible exceptions under one criterion, which is the presence of a non‑punitive purpose. We say that converts the exception into a general rule and ‑ ‑ ‑

KIEFEL CJ: Mr Merkel, I had understood you to say earlier that you accept that the exceptions referred to in Lim are capable of being extended by analogy.

MR MERKEL: Yes, your Honour.

KIEFEL CJ: To do that, one would look at what those exceptions might have in common. They might be thought to have in common a purpose protective of the community, or of the person subject of a detention order and if that is so, why would this legislation not fall within an extension of the historical exceptions by analogy?

MR MERKEL: We would have a number of answers to your Honour. The first is that we say the extension by analogy is by reference to the exception in question, so the example given in Lim was the example of exclusion and removal, or removal for the purpose of exclusion would, by analogy, include a person in detention pending an application for a visa to see whether they should be removed.

KIEFEL CJ: What about the exception of a person who is mentally ill in such a way as might be a danger to the community? What is the distinction you draw between the exception which recognises a danger arising from the person and a need to protect the community? I am not saying every mentally ill person produces this, but some conditions might, and the position here, where a person who has an ideology which involves the infliction of harm upon the community, is seen to be a danger and the community needs to be protected from them.

MR MERKEL: Your Honour, the mental illness can have two purposes: one is protection of the community, as your Honour puts to me, but also protection of the individual themselves. That is an historical ‑ ‑ ‑

KIEFEL CJ: But it is only an example of a person presenting a physical or other danger to the community and the courts accepting that it is a proper exercising of judicial power to detain the person for the protection of the community.

MR MERKEL: Your Honour, we say that that is looking at a breadth of exceptions which we say goes beyond what is suggested in the cases. The historical analogue is an extension not of an underlying general principle that might be adopted from an exception, but we say mental illness is a long way from what we are concerned with here. But what your Honour is putting to me raises a more fundamental question, in my respectful submission, and that is, there is almost no victimless crime, assuming that or they are rare exceptions, all crime causes harm to the community.

If preventive detention, we accept it as a principle within the judicial power, then the extension is not within exceptions, the extension is that any exercise of judicial power to prevent harm to the community based on prospective conduct is an analogue and we say that is a very, very big extension. I will come to ‑ ‑ ‑

KIEFEL CJ: How much further do - you would have to take Vella into account then, would you not?

MR MERKEL: Yes, your Honour, but when I come to Division 105A and Part 5.3 offences, to say that they fall into a category of exceptions requires consideration of the range and breadth of offences. Not only do terrorist offences in that division start with terrorist acts but go through to supporting a terrorist organisation, being associated, funding – there is a whole range of offences.

Also, they almost all have extraterritorial jurisdictions, so the community that is being protected under this regime is not the Australian or any local community; it is the international community. We say that that is a very far cry from harm that one individual can cause by reason of a mental illness.

To say that harm to the community that can be caused by crime and the community being extended not only to Australia but to the international community we say that is certainly not an analogue, but if it goes to the point of the exception being, if it is preventive, which is the case that the Commonwealth, in fairness, is putting against us, we say that no longer is within the exception or the analogue rule, that is creating a separate principle. It is interesting, your Honour, that Chief Justice Gleeson in Thomas – this is at volume ‑ ‑ ‑

KIEFEL CJ: Just before you go on to that, another exception referred to in Lim is a person with an infectious disease. That, too, has in common with a person having a mental illness which might – this might have as an aspect of it, physical danger to the community. So, too, would an infectious disease. So, you have at least two examples where it is accepted that a law, having a purpose protective of the community, might be one which is appropriate to the exercise of judicial power if other things being – the other requirements of judicial power, of course, being present. But, the nature of the law itself is one having a protective purpose in both of those examples. I am sure there are others.

MR MERKEL: Your Honour, we give two answers to your Honour’s example. We would say the analogue of the person with infectious diseases and the prevention of danger to the public could easily see that protection going to, not only ensuring that person was maybe isolated, but taking other measures ‑ ‑ ‑

KIEFEL CJ: Quarantine does come to mind, does it not?

MR MERKEL: Yes, it does, your Honour. But that is a quarantine directed to the infectious disease, your Honour. Also, one would look at treatment – or some response that is not punitive – for example, to put that person who had the infectious disease in prison rather than in hospital would classically fall outside any justifiable exception.

KIEFEL CJ: What is the distinction between being required to be in a hotel room unable to mix in the community and I know there is some distinction with being in prison, but it is still a form of detention, is it not?

MR MERKEL: It is, your Honour. That is because there is a pandemic and people who have come from overseas have been found to be the source of the spread of the infection in Australia. So it is obviously an incident of protecting individuals from becoming infected to ensure ‑ ‑ ‑

KIEFEL CJ: Under the regimes which operated in recent times, there was no suggestion of a judicial order but would you submit that a court could not make such an order requiring a person to quarantine themselves and in a particular place and not even to be taken to a place of quarantine as in the olden days and not be permitted to mix in the community. Would you say that is beyond the judicial power of the Commonwealth for a Chapter III Court to make such an order?

MR MERKEL: No, your Honour. We would say that would probably be falling within the ambit of what was considered in Thomas where certain preventive powers could be conferred on a court, but it was recognised that those powers stopped short of detention in prison. Our concern, in the present case, is the basic premise of Justice Gummow’s analysis in Fardon and, we say, in Lim, itself, is that detention in prison is a category of its own and involves punishment unless within an established exception.

So your Honour’s examples to me have all stopped short of detention in prison and if they did involve detention in prison, we would say that would immediately run counter to the “no more than reasonably necessary” test. That is why I gave the example of hospital versus prison as an incident of the kind of problem your Honour raised with me.

KIEFEL CJ: So when you say “detention in prison”, you mean detention in a place which is recognised by statute as a correctional centre, but you would distinguish from that detention at, say, an island off the coast of Australia which was not designated a correctional centre, but from which people could not move?

MR MERKEL: Your Honour, we draw that distinction, although the premise in Lim is concentrating on detention in custody of the State. We say detention in prison is the classic or ultimate example of what their Honours would regard as punitive. If detention on an island were found to be no more than reasonably necessary, for example, like a quarantine centre in a remote area of the Northern Territory, then that would be capable of falling within the judicial power that Thomas recognised, but we are talking about something qualitatively different, and that is that ultimate detention in prison and it is as part of the criminal justice system and it is, in our submission, divorced from the judgment of guilt because it is prospective, which is the matter I took your Honours to earlier. We do say that it is important that these cases do establish that the use of history and analogy is closely geared to the historical source and the way in which ‑ ‑ ‑

KEANE J: Mr Merkel, how can history be controlling? How can history be controlling when Blackstone had never heard of terrorism? How can it possibly be said that the powers of the Parliament are limited to the measures that were taken hundreds of years ago to deal with problems that were problems of the time but by people who had no reason to envisage the difficulties of dealing with people who take it as part of their religious duty to actually kill other members of the society? I mean, to say that the Parliament is straitjacketed in how it is to deal with problems that are today’s problems and to say that that prevents appropriate analogies being drawn just seems to be unduly sclerotic in terms of its thinking.

MR MERKEL: Your Honour, terrorism may be the most recent form of civil violence, but at 1900 and prior to that there were many forms of civil unrest and civil violence that were part and parcel of the process that Parliament had to deal with and the judicial and executive powers had to deal with.

We say the following, your Honour. I was going to say that Chief Justice Gleeson in Thomas at paragraph 18 - I do not need to take you to it, it is at volume 6, tab 26 - when talking of the judicial power, did say that the categories of historical exceptions were carefully confined and this Court in each of the cases I will take you to has not expressed the view that your Honour has put to me that history is merely an incident of this but not limiting in any way or form.

We say that time and again, and particularly in Thomas when we are looking at the judicial power, the power of the courts in 1901 was regarded as extremely significant and the journey of Lim into exceptions were all historically based and Lim was not in an era, your Honour, back 50 years ago and the kind of problems that we are confronting of violence in this community or violence in overseas community are not new problems but, more importantly, your Honour, the exception that is being contended for by the Commonwealth is actually an exception against recidivism whether it be drugs, terrorism, domestic violence, one can go through any range of criminal conduct that causes harm out there to the community.

If this preventive detention regime is allowed to be preventive as an exception then it covers the whole range and makes the whole learning on Lim just a bypass or byword of history. The courts have concentrated on it because as Chief Justice Gleeson said these categories are carefully confined. What the Executive might be ‑ ‑ ‑

KEANE J: You do not suggest, do you, that Fardon’s Case is wrongly decided?

MR MERKEL: No, no, it was decided under a State regime.

KEANE J: That is right. So what is about Commonwealth judicial power that is different in terms of its nature and quality to State judicial power.

MR MERKEL: We say the entirety of the answer to that question resides in Chapter III in two particular aspects. State judicial power is not subject to separation of powers which was the reason why Kable (No 1) was decided as it was. You would not have to worry about institutional integrity if separation of powers existed in the States or the Commonwealth separation of powers made no difference to the exercise of the judicial power. The second, which is not part of the case we are putting here, is the Commonwealth judicial power must be exercised in respect of the matter. That is not an impediment to State judicial power.

KEANE J: So, do you accept that the Commonwealth Parliament could authorise the Executive Government to simply lock someone like your client up, no problem with judicial power, no judicial oversight, no judicial involvement at all? Do you say that is a possibility?

MR MERKEL: Your Honour, it only becomes a possibility if the word “exclusive” is taken out of the judgment and the ruling in Lim so that our primary position is that based on Lim, which has not been departed from, we would say, with respect, the detention in prison is exclusively with the judicial power as part of the judgment.....criminal process. So, the first answer we would give to your Honour is that the word “exclusive” would have to be taken out and that would have the result that the power would then maybe fit in with a chameleon power or would be one that the Executive might be able to exercise.

We say “might” because we recognise that the subject matter of the executive power which relates to administering the laws of the Commonwealth, say, under section 61 of the Constitution, is a very different subject matter to the judicial power determining and resulting controversies in accordance with Chapter III. So, there may be a wider ambit for executive power to be expanded - we do not say to put people in prison, but the exceptions that are relevant to the executive power cannot be equated to exceptions that might be relevant to the judicial power.

That is why in Thomas, the cases that were referred to as historical exceptions or analogues were cases giving examples of protection of the judicial power not protection of society generally which may be the subject of executive activity. The power in Thomas was chameleon so it could be exercised by the judiciary or by the Executive. But we say what is not controlling in this controversy is where it is more desirable for the power to reside if it is chameleon and can reside in the judiciary and the Executive, that is a decision for Parliament.

One example is the matter I took your Honours to this morning in respect of Mr Benbrika. The original amendments to the Citizenship Act entitled: “A person whose citizenship is cancelled can contest the basis of the cancellation on the merits in a Chapter III Court”. The amendments to the regime gave the Minister satisfaction in respect of the requisite elements so it converted what was within the judicial arena into the executive arena, challenging the Minister’s satisfaction. Both are obviously pathways that were open if the power is a chameleon one and can be exercised either way.

But we would say, with respect, the answer to your Honour’s question really resides in what are the terms of the legislation and could it be said, on a fair view of that legislation, that it either contravenes the Lim principle if “exclusive” is taken out of it, or is it empowering the Executive to impose punishment. That would give rise to the kind of debate we are already having with respect to Division 105.A.

I was taking your Honours to Al‑Kateb. That is at volume 2, tab 6. The point of this is really to make good our submission that, by the historical analogues – historical analogues lie at the heart of these decisions – but, also, that the idea of treating “preventive” and “punitive” as binary concepts, we say is an unstable way to approach them because there is no clear dividing line and for that to become the critical criterion raises the issues of where that line is and, we say, it is a very unstable line and it has been recognised as such.

Can I go to Al‑Kateb? Again, I do not need to read it in detail to your Honours, but Chief Justice Gleeson’s reasons, at paragraph 4, made it clear that, in the context of migration, this did not involve punishment. I would ask your Honours to note the reference to his Honour’s comment at paragraph 14, that the detention, even for migration purposes:

may take on a different aspect when the detention is indefinite, and possibly for life.

We note that the current regime in Division 105A certainly has that potential.

At paragraph 44, Justice McHugh refers to framing the question of punishment as being whether the “object is purely protective” and we would say that if we get to our fallback argument, that is the criterion rather than is it a continuation of the sentencing process. His Honour at 45 to 47 found that the detention was purely protective if it is for the immigration purpose of exclusion or removal, which was the power considered in Lim. We will not deal with Justice Gummow here because we will deal with that as part of his discussion of his decision in Fardon.

Could I go to Justice Hayne. Again, I will not take your Honours to read it, could I ask your Honours to note at paragraphs 251, 254 and 255 it is clear that his Honour’s observations were all geared to the historical context which takes into account exclusion for the purpose of removal and we would say historical context was purely a matter of interest. The concentration on justifying removal in that context would have been a side trip by their Honours and it never has been in this jurisdiction.

Then at 264 to 265 his Honour discusses whether it is appropriate to view detention as punishment. Could I go to line 7 at page 637. Just before I take your Honours to it, at the bottom of page 636, which in the papers is page 438 at the bottom, his Honour discusses punishment and judicial power. His Honour then makes reference to H L A Hart, identifying the central concepts or standard concepts and elements of punishment and then his Honour, after referring to Professor Hart, says:

That is not say, of course, that it may not be appropriate to identify treatment of persons as punitive where those persons are not offenders. But punishment is not to be inflicted in exercise of the judicial power except upon proof of commission of an offence.

Then his Honour later goes to Lim at line 30 and discusses the concept of immunity. Then his Honour says at line 37 that whether it is punitive or not:

must be done by reference to the purpose of the detention. Neither the bare fact of detention nor the effluxion of some predetermined period of time in detention is said to suffice to engage Ch III.

So we say his Honour there does not deny ‑ and paragraph 267 his Honour does not deny the Lim immunity, but considers it was not unqualified by reference to the purpose of detention which in this case has been immigration. Justice Callinan – and again I will give your Honour the references – at paragraph 287 and 291, again anchored his Honour’s reasoning in historical examples and in the historical context.

Can I go next to Behrooz which is volume 2 at tab 8. In Behrooz at paragraph 20 his Honour refers to Lim and, again, to immigration detention. If I go to page 499 where his Honour the Chief Justice refers to Lim and then referring to ‑ at about line 16 Justices Brennan, Deane and Dawson said:

in the context and for the purposes of executive powers to receive, investigate and determine an application for an entry permit and, after determination, to admit or deport, is not punitive in nature, and not part of the judicial power of the Commonwealth. In the case of a citizen, what is punitive in nature about involuntary detention (subject to a number of exceptions) is the deprivation of liberty involved. But an alien does not have a right –

and so forth. Down, in the next paragraph at 21:

That being the nature of the power of detention, there is no warrant for concluding that, if the conditions of detention are sufficiently harsh, there will come a point where the detention itself can be regarded as punitive, and an invalid exercise of judicial power. Whatever the conditions of detention, the detention itself involves involuntary deprivation of liberty. For a citizen, that alone would ordinarily constitute punishment.

So, one still finds, echoing there, that is the principle his Honour the Chief Justice regarded as flowing from Lim. Justice Hayne at paragraph – I will just refer your Honours to Justice Hayne at 171, I will not read it, and Justice Callinan at 218 but, again, one finds the application of Lim without any challenge to it. I will pass over Fardon in the chronological sequences. I will come to that later.

Could I come next to Vasiljkovic v Attorney‑General of Queensland which is in volume 7 at tab 27. In the judgment of Justice Hayne and Justice Gummow with whom Justice Heydon agreed, they referred at paragraph 84 to the principle in Lim. Can I ask your Honours if I could read paragraph 84 where their Honours refer to the invitation to go to the statement in Lim, and then said at the top of page 643:

But subsequent consideration indicates that the beneficiaries of this principle derived from Lim are not necessarily limited to citizens.

So, again, there is no suggestion of reading back what was said in Lim. Can I go next to paragraph 109. This was in the judgment of Justices Gummow and Hayne, after their Honours refer to the examples given, again historical examples, and their Honours say:

All of the above examples, in particular that concerned with committal to custody to await trial, were well established at the time of the adoption of the Constitution. So also detention as a step to extradition. The law and practice of extradition had a long history in the United Kingdom. In the United States, the first reported extradition case occurred in 1799 –

So, again, one finds this concentration of focus on historical analysis.

Can I go next to North Australian Aboriginal Justice Agency Ltd v Northern Territory, volume 7, tab 20. In the plurality judgment of Chief Justice French, your Honour Justice Kiefel and your Honour Justice Bell set out at paragraph 37 the general proposition from Lim and consider that case to fall within the important exception in Lim at 28, which relates to arrest and detention in custody pending a criminal justice process. That then found that it was entered into that exception, but at paragraph 38, your Honours noted – it was noted that:

If the maximum period for which a person could be held in detention . . . were significantly greater than that specified ‑

the detention might be characterised as punitive rather than administrative. Justices Nettle and Gordon, at paragraphs 236 and 237 reasoned similarly. We say that the Court, looking at it as a matter of substance, does not determine whether detention is punitive by simply asking whether it is imposed for a breach of the law. Again, the extent to which the breach invades liberty raises always the question of whether it was reasonably necessary.

In paragraph 94, your Honour Justice Gageler identified the start – and the difference between the dissent with your Honour and the other majority judgments was really on the interpretation of the statute and its purpose. But your Honour Justice Gageler at paragraph 94 identified the starting point for the constitutional analysis with the Lim principles and your Honour noted the foundational reason for that starting point was for:

the concern . . . of personal liberty lying at the core of our inherited constitutional tradition ‑

Then your Honour referred to exceptions at paragraph 98. Can I just say that what lies behind and is central to our submissions is the separation of powers is just not a concept of separation between the three branches of government but the separation of powers has always been recognised as the bulwark of liberty in this constitutional setting and in any other separation of power setting. Your Honour Justice Gageler sets out the background to that and I do not need to read it but we say that it is that point of principle which justifies the concern in Lim about detention in prison in custody of the State being an infringement subject only to exceptions. Can I read what your Honour Justice Gageler said at paragraph 98 – this is at page 611:

The joint reasons in Lim also acknowledged that the exceptional circumstances in which involuntary detention might not be penal or punitive would include cases of detention under mental health legislation and detention under quarantine legislation. Other limited forms of protective or preventive detention might well be envisaged.

We would say, “limited forms” means one extent by analogy by reference to the subject matter, not by the reference to some overarching principle:

Cases subsequent to Lim have illustrated the difficulty of seeking to draw a bright‑line distinction between penal or punitive detention and protective or preventive detention. The difficulty of drawing any distinction between detention which is penal or punitive and detention which is not highlights the significance of default characterisation: any form of detention is penal or punitive unless justified as otherwise. The question is always one of characterisation of the detention, in respect of which the object sought to be achieved by the law authorising detention is a relevant consideration, but not the only consideration.

Then your Honour goes to two criteria in respect of executive detention, which is not an issue in the present case, although I will come to that more indirectly when I analyse Division 105A. Your Honour concludes at paragraph 103:

This is not an occasion to mince words. The form of executive detention authorised by Div 4AA is punitive. Because it is punitive, the imposition of the detention involves the exercise of a function which our constitutional tradition treats as pertaining exclusively to the exercise of judicial power.

Your Honour then, at paragraph 103 ‑ sorry, that is including your Honour’s conclusion at 103. We have taken the Court through those judgments to demonstrate the principles that Lim stands for had not been departed from, and are those set out in paragraphs 3, 4, and 5 of our outline.

Could I now go to Justice Gummow’s judgment in Fardon, which ultimately is the judgment that we invite this Court to apply and adopt in the context of Division 105A. Fardon is in volume 2 at tab 11. At paragraph 68 his Honour identifies the argument put by the Commonwealth, which was that the Fardon regime could be enacted under federal law. In the last line of paragraph 68, his Honour said it is said by the Commonwealth that the Fardon jurisdiction could be conferred on a Chapter III court:

even though the detention which the Act provides is preventative, not punitive, in nature.

His Honour then goes to what I had referred to earlier as a disclaimer by his Honour in paragraph 69, where his Honour refers to Veen (No 2) and considers the overlap between:

the objectives of the sentencing process include the various and overlapping purposes of “protection of society, deterrence of the offender and of others who might be tempted to offend, retribution and reform”.

And later he disclaims that as part of his reasoning because his Honour anchors on a central concept in Lim, which is simply that detention in custody of the State is penal subject to the recognised exceptions. His Honour at paragraphs 69 to 73 notes that protection of the community is a legitimate sentencing objection, but notes that the detention order is not imposed as part of the sentencing process, notwithstanding that the Act took as the fact of its application the status of the person as a prisoner, and we say that no different result arises in respect of the current statutory regime. It was not part of the sentencing process, nor could it be said in respect of Mr Benbrika.

At paragraph 75, his Honour identifies the Commonwealth’s argument that the judicial power of the Commonwealth can be employed to imprison a person with criminal propensity, not criminal guilt. His Honour at paragraph 76 quotes Justice Gaudron in Re Nolan that determining breach of the law and pronouncement of the consequences is at the heart of the judicial power, and observed that power in Fardon sat outside that paradigm.

Then his Honour at 77 drew analysis to the constitutional principle in Lim and he sets out that at about line 47, after referring to Lim, and then says:

That passage was applied as a step in the reasoning in Kable of Toohey J and Gummow J, and is reflected in that of Gaudron J and McHugh J.

Then his Honour – can I read these passages at page 612 where his Honour refers to the problems of criminal guilt, at line 79. Then, can I jump down to about line 20:

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”.

His Honour then says:

I would prefer a formulation of the principle derived from Ch III in terms that, the “exceptional cases” aside, the involuntary detention of a citizen in custody by the State is permissible only as a consequential step in the adjudication of criminal guilt of that citizen for past acts.

Then, his Honour comments back, further down at paragraph 81:

That formulation also eschews the phrase “is penal or punitive in character”. In doing so, the formulation emphasises that the concern is with the deprivation of liberty without adjudication of guilt rather than with the further question whether the deprivation is for a punitive purpose.

Then, going down at paragraph 83, about line 28, his Honour says:

But it is not suggested that regimes imposing upon the courts functions detached from the sentencing process form a new exceptional class, nor that the detention of the mentally ill for treatment is of the same character as the incarceration of those “likely to” commit certain classes of offence.

We would say that, with respect, is a succinct answer that we would proffer some of the questions your Honour has asked of us. Then, in paragraph 84:

Another of the well‑understood exceptions to which the Court referred in Lim, with a citation from Blackstone, was committal to custody, pursuant to executive warrant of accused persons to ensure availability to be dealt with by exercise of the judicial power. But detention by reason of apprehended conduct, even by judicial determination on a quia timet basis, is of a different character and is at odds with the central constitutional conception of detention as a consequence of judicial determination of engagement in past conduct.

Then, at paragraph 85, his Honour says:

It is not to the present point, namely, consideration of the Commonwealth’s submissions, that federal legislation, drawing its inspiration from the Act, may provide for detention without adjudication of criminal guilt but by a judicial process of some refinement. The vice for a Ch III court and for the federal laws postulated in submissions would be in the nature of the outcome, not the means by which it was obtained.

We would say that particularly applies to Division 105A. Then, his Honour says:

The repugnancy doctrine in Kable does not imply into the Constitutions of the States the separation of judicial power mandated for the Commonwealth by Ch III. That is fundamental for an understanding of Kable. No party or intervener submits otherwise.

Then, his Honour refers to the joint judgment in Silbert:

it was emphasised that the repugnancy doctrine in Kable operates upon the footing that the outcome provided for by the State law in question could not be obtained in the exercise of federal jurisdiction.

So, that is his Honour’s reasoning.

BELL J: Mr Merkel, could I just take you back to paragraph 83? You relied on his Honour’s analysis in that paragraph as an answer to some of the questions that you had been asked earlier in the course of submissions. His Honour there speaks of the long history of preventative detention regimes and his Honour goes on to say:

But it is not suggested that regimes imposing upon the courts functions detached from the sentencing process form a new exceptional class –

If one were to take by way of example the regime in Chester v The Queen which provided that the sentencing judge having imposed the sentence which ones takes to be the correct sentence incorporating all the purposes of punishment, including protection of the community, was then empowered to make an order for the effectively indefinite detention of the person based on considerations quite separate to the considerations that informed the sentencing process and that would seem to be directed clearly enough to the evident risk the person posed for the commission of offences upon release of that sentence.

It is not clear to me what his Honour is saying in paragraph 83 with respect to a provision of that character. Do you say the provision of the – I think it was the West Australian Criminal Code that enabled the sentencing judge to make an order of that kind is beyond the judicial power of the Commonwealth.

MR MERKEL: No, if I understand it correctly, your Honour, the reason I would answer “no” is because Parliament can stipulate the ambit of the sentencing process and what is required to be taken into account, both at a federal or a State level, and that fixes the outer limit of the sentencing. If it be an outer limit of indefinite imprisonment, so be it. If it be without a non‑parole period and that is authorised by statute, again, so be it. But if what occurs is not part of that sentencing process and not part of the process for sentencing as a result of a judgment of guilt for past conduct but something residing in another court on a later occasion at the conclusion of the sentence that was not part of the sentencing process under the relevant statute, we say that is what his Honour is referring to.

BELL J: I understand, but just to be clear about it; if, as part of the sentencing process after the judge has imposed the correct sentence for the offence in the sense of the sentence that comports with the statutory requirements in the particular jurisdiction as to the considerations to be taken into account in sentencing, if at that time on top of that, as it were, the judge makes an order authorised by statute for effective indeterminate sentencing on the basis of the judge’s assessment of the likelihood that the offender would commit a serious violent offence at the conclusion of the appropriate sentence for the offence, that you accept would be an exercise within the judicial power of the Commonwealth.

MR MERKEL: One would have to look at the particular regime. The distinguishing point we say is relevant for present purposes is: is the sentence of imprisonment imposed by the sentencing judge based upon the sentence that Parliament has provided for as part of the sentencing judge’s function as a result of the crime in question? We say what your Honour has put to me has all left within the sentencing judge a discretion which might in that situation be added to by reason of conduct in prison. Normally that would be the parole board’s function to assess whether someone should be released on parole because of rehabilitation or no threat to society. If that was part of the judicial function, that may raise its own question. But it is still part of the sentencing process entirely premised upon what that person has done in the past.

EDELMAN J: Mr Merkel, how is this case then any different as a matter of principle – or I should say this regime different as a matter of principle, at least in its prospective operation? It involves the same type of considerations as Justice Bell refers to in Chester except they are taking part after the sentence rather than prior to the commencement of the service of the sentence, particularly if you look at 105.8(g) and (h)?

MR MERKEL: Your Honour, the real problem is that the necessary connection that might exist in the situation her Honour Justice Bell put to me is lacking here. These are considerations, but the question the Court has to determine is at the conclusion of the sentence which has been imposed under the law as the maximum or appropriate sentence ‑ at the conclusion of that period the Court is asked an entirely different question and that is, is there an unacceptable risk of the offender committing a Part 5.3 terror offence, and it is not the same offence. The range of offences that bring you within the ambit of Division 105A are considerably larger than Part 5.3 offences, but also Part 5.3 offences themselves cover a huge range.

So we are no longer looking at punishment after the adjudgment of guilt in respect of the very two offences committed. So if Part 5.3 offences were defined as repeating the same offence, which is within the context of what has been put to me by Justice Bell, one might find a sufficient connection. But here there is an entire disconnect between what Mr Benbrika has been sentenced for in respect of past conduct constituting terrorist offences or terrorist‑related offences, and what he can be held in prison for, for the future. When I come to analyse Division 105A, your Honours will the nature and extent of that disconnect and we say that really is an important element that divides what we might have in a case such as your Honours have put to me and the present case, but that depends on a proper analysis of Division 105A which I should try and come to fairly quickly.

STEWARD J: Mr Merkel, could I ask, do you say that the legislation might have been valid if, for example, the sentencing judge, who I think from memory was Justice Bongiorno, had been required to undertake the task in Division 105A when he sentenced Mr Benbrika?

MR MERKEL: If that was stated by Parliament to be a factor that he must have regard to at the time of sentencing, we would say that that is already built into the sentencing process, but if it was spelled out in more detail, that would be within Parliament’s power to prescribe, and that is relevant to be taken into account in a terrorist offence. For example, it may be provided that there could be some kind of indefinite imprisonment with an early parole period if there was rehabilitation, or if certain programs were undertaken, deradicalisation programs, but was the sentencing judge ‑ ‑ ‑

STEWARD J: Just to be clear, you say that Division 105A would have been valid if the particular powers or discretions had been reposed in the sentencing judge when it came time to sentence Mr Benbrika following his trial?

MR MERKEL: It would have to be related to the offence, your Honour. In other words, not repetition of any conduct ‑ ‑ ‑

STEWARD J: Just assume that that is part of the sentencing of Mr Benbrika, the prosecution then said, now, your Honour, let us turn to Division 105A, we would request that your Honour make an order sentencing Mr Benbrika for a further three years if you are satisfied that the requirements of Division 105A are met. Would that be valid or not?

MR MERKEL: We would say that it would not be valid because it would be punishing him for conduct unrelated to that which he has been convicted of. The real problem is the disconnect between Part 5.3 and the two crimes that he had committed. So, if he was being sentenced for what he has done and taken within the rubric of that sentencing was protection of the community and rehabilitation and so forth, that is all power that could be resided in the trial judge by Parliament. But what power cannot be resided in the trial judge, we say, is to punish him for what he has not done and that would effectively be punishing not for what he has done, but for what he might do. And that is really getting into the territory of the majority in Veen.

EDELMAN J: Your submission, then, is that what he might do is entirely disconnected from any of the conclusions that the judge has reached about what he has done.

MR MERKEL: Yes, save and except for the offences ‑ this is within a constitutional hierarchy that we would say may be permissible if it were limited to the offences which he had been convicted of and was being punished for, punishment could take into account the protection of the community and it could have an element such as an unacceptable risk, meaning the original term could be longer. That would not suffer from the problem that was found to exist in Veen, which is not to authorise anything past the original sentence for protection of the community, because the original sentence sets the boundaries. But here, we have got a disconnected regime, so we say the issues that your Honours have raised with me do not arise.

EDELMAN J: Just so I understand, is that effectively a submission that considerations such as deterrents in sentencing, either individual or general deterrents, are only concerned with deterrents of the exact offence that has been committed, and the sentencing regime should never be concerned with deterrents of offences of that general nature?

MR MERKEL: No, your Honour, I do not try and put sentencing in a straitjacket. If deterrents is put under the rubric of general deterrents then it may be within the category of offences, or in similar offences. I am not trying to suggest that power is within a straitjacket, it is up to the Parliament, which it does stipulate factors that are relevant.

We are not trying to limit the factors that could be relevant to a sentencing judge but what we say this case does not get to that issue because we are totally away from anything at sentencing, we are talking about what occurs on the termination of the sentencing process as a totally new and discrete process creating new rights, new obligations, decided by a court or a judge which is totally unrelated to the sentencing judge. So, we say that ‑ ‑ ‑

KIEFEL CJ: Mr Merkel, the disconnect of which you speak between the sentencing process and the regime under the Criminal Code that we are concerned with, is it also disconnected because between the time of sentencing and the consideration necessary for a continuing detention order, a prisoner has the opportunity of rehabilitation against the warning, perhaps, that is to be given at the time of sentencing?

MR MERKEL: Yes, your Honour. We say that is all – that is correct, your Honour. There is a different situation arising and the warning is really no more than a warning of what the law provides.

KIEFEL CJ: Would you say that the factum upon which section 105A.7 operates is that there is – the person is a terrorist offender who is about to be released into the community which is at the termination of the term of imprisonment?

MR MERKEL: Yes, your Honour.

GAGELER J: Mr Merkel, can I ask a question about Justice Gummow’s reasoning in Fardon? His Honour appears repeatedly to be focusing on the propensity to commit a criminal act and, in fact, he seems to characterise the regime as directed to determining and then on the quia timet basis preventing a criminal act in the future. If the analysis were changed slightly to look through the criminal conduct to the interests that are being protected by the criminal prohibitions, that is, to the risk of actual harm to the community to a section of the community or to an individual or group of individuals, would the analysis change?

MR MERKEL: Your Honour, Fardon was a narrower case because it really was a sex offender committing a serious sex offence. We say that if the – within State law, of course, there is no problem with Division 105A because there is no separation of powers. We say there might be questions of fact and degree in what your Honour has put to me but when we look at Division 105A, which I will try and come to now, if I may, we say that there is no connection of the kind that your Honour has raised with me, the nature of similar acts of the kind that could fall within the ambit of Fardon of a serious sexual offence flows from the conduct he was convicted of, but we are nowhere in that territory in the present case, your Honour.

KIEFEL CJ: Mr Merkel, that might be a convenient time for the morning break.

AT 11.16 AM SHORT ADJOURNMENT

UPON RESUMING AT 11:30 AM:

KIEFEL CJ: Yes, Mr Merkel.

MR MERKEL: If the Court pleases. Can I just give your Honours some references? I will not read them, but we were going to refer to Al‑Kateb where their Honours Justice Gummow and Justice Crennan, in effect, adhered to what his Honour Justice Gummow had found in Fardon. That is at paragraphs 137 to 139. Can I also give your Honours quotes from South Australia v Totani? We rely on discussion of Lim at paragraph 34. Also, to his Honour Justice Hayne’s observations at 197 where his Honour said:

I acknowledge the evident force in the proposition that to confine a person for what he or she might do, rather than what he or she has done, is at odds with identifying the central constitutional conception of detention as a consequence of judicial determination of engagement in past conduct.

His Honour said:

much might turn on the particular terms and operation of the legislation –

It is to that which I now turn. Can I do so in the context of identifying, at the outset, that we will address the parts of the legislation why this division cannot be seen as part of the sentencing process of the crime that was committed but, rather, be seen as a response by a different court in a different setting under different standards of proof for what a person might do in the future based entirely on propensity.

Can I just go, at the outset, to refer your Honours to the sections that show how different the process is before I get to the subject matter of the process? At section 105A.13, the civil procedure applies. Section 105A.17(1)(b), the appeal is to the Civil Court of Appeal. Section 105A.7 is a different standard – not beyond reasonable doubt but a high degree of probability and the revised explanatory memorandum which is not covered in papers before your Honours, refer to this regime as the equivalent to the post‑sentencing regimes in the States. So, there is nothing in that context that would connect the regime to the sentencing process.

Can I briefly take your Honours to how the division works? Your Honours will see – it is at page 248 of volume 1, your Honours, sets out Division 105A. The object is protection of the community and because of the extra territoriality, obviously the national and international community that is there referred to. But, can I go to 105A.3? The trigger is not a Part 5.3 offence alone but is any of the range of offences set out in subsections (i), (ii), (iii), (iv) and (v) which are a vast range of offences. Then, (b), the person has to be detained in custody. The propensity is in respect of a “serious Part 5.3 offence” which is defined at page 249 – an offence against this part, the maximum penalty for which is seven years or more.

Can I go briefly to Part 5.3, which appears in volume 1 at page 110. At page 113, “terrorist act” is defined in very wide terms, but subsection (4) of the definitions section says:

In this Division:

(a) a reference to any person or property is ‑

anywhere, and reference “to the public” is of Australia or elsewhere. Then can I go to page 122, can I ask your Honours to note most of these divisions pick up section 15.4 of the schedule to the Criminal Code that provides if the law provides for that section to apply in respect of an extended geographical jurisdiction, category D, the law applies extraterritorially. So almost all of these offences apply anywhere.

The offences start at Division 101, terrorist acts, and your Honours will see subsection (2) as the way section 15.4 is picked up. Then you have a range of terrorist acts provided for in 101. I will not trouble your Honours with it but it is a very wide range.

We then go back to Division 102, which are offences in relation to terrorist organisations and that is at page 127. At page 133, we go to offences under Subdivision B. These are the ones that Mr Benbrika was convicted of, 102.2 and 102.3.

KIEFEL CJ: Mr Merkel, some of us are working from pamphlets. Could you give us the section number.

MR MERKEL: Sorry, your Honour. Section 102.2 and section 102.3 are the sections Mr Benbrika was convicted of. Subdivision C starts at section 102.9, which has extended geographic provision in relation to a range of offences – for example, Division 103, which is section 103.1, deals with financing terrorism and that again has an extended geographic jurisdiction. Then we go to Division 104, which deals with control orders.

What we have at the outset, going back to Division 105A, is the trigger is a conviction in respect of any of the range of offences set out in 105A.3(1) ‑ the person has to be in custody and I will have a little bit to say about that in subsection (b) but I should say so now. We say it is very hard to understand why the requirement of custody is a factum when what is sought is prevention. Logically, this section should apply, if it were to apply purely for prevention, to any person who satisfies the criteria. It could provide that it will apply also to a person in custody. But there is something more afoot here when it is so limited and that undermines somewhat its preventive purpose or purely preventive purpose.

We would then say that the other aspect that is serious omission in this regime if it were for prevention, unlike Fardon, this regime has no provision for rehabilitation, deradicalisation or any other kind of treatment program. It merely provides for continued imprisonment. The underlying assumption is a failure of rehabilitation up to the time the sentence has ended, but it is as if rehabilitation has been thrown out the window and treated as irrelevant because treatment, care or control, including access to a facility which was existing in Fardon is totally absent here.

In Fardon – and I will give your Honours the references in Fardon. At paragraph 5 of the reasons there is reference to section 3 which talks about the object of “continuing control, care and treatment”, and at paragraph 129 there is a reference that the Dangerous Prisoners Act, whilst not containing a mechanism for treatment, there were general provisions in the Corrective Services Act for:

transferring a prisoner from a corrective services facility to a place for medical or psychological examination or treatment.

This regime is totally silent on anything like treatment, deradicalisation, and, of course, the irony – or oddity of that is a better way to describe it – is rehabilitation is an essential element of the sentencing program, yet on its failure it disappears as an element altogether on the continuing sentencing, which makes ‑ ‑ ‑

EDELMAN J: Mr Merkel, could one reason for that be that – and also for the requirement of detention in custody ‑ that this is being seen as an adjunct to the sentencing process and the service of the sentence under that process?

MR MERKEL: Your Honour, if it were an adjunct to the sentencing process, basically it comes about as a result of the failure of that process to achieve its objectives. We cannot see a basis – we would, with respect, not accept the premise, but even if it were related to the sentencing process, the absence of any process for treatment to try and bring it to an end does have the aspect of excess which would say there is a punitive element in it.

I understand the point if it were part of the sentencing process or found to be within the rubric of Chester then it might be said, well, whatever treatment was available during the process is equally available after, but we say this is a totally discrete regime for a raft of factors, some of which I have already taken your Honours to, but on no view can it be seen as a sentencing or a resentencing of the original crime.

EDELMAN J: On the proper construction of Division 105A, if someone like Mr Benbrika were receiving a program of treatment as part of his sentence for the offence, that program would have to, as I understand your submission, come to an end upon the continuing detention order.

MR MERKEL: No, it would not have to come to an end, but the criticism, we say the grievous omission, is to try and contain a process for ensuring this is not indefinite sentencing and becomes a life sentence. It is the absence of any regime of the kind that was in Fardon that we say stands out here. When one looks at it and one looks at the fact that you just have to be in prison rather than fall within the risk in or out of prison, and the lack of any treatment, we say this falls within what the plurality had spoken of in Falzon where the – this is disproportionate. This is not a reasonably necessary measure and we say those gaps attract the inference that there is a punitive element in it. Of course, if the Court finds that this is no more than part of the sentencing process then the punitive element distinction falls away because the sentencing process is punitive.

But can I take your Honours to paragraph 8 of our outline because we have tried to set out in that paragraph the key features that we rely upon. I have taken your Honours to some of the sentencing features, some of the procedural features, but the first we rely upon is the detention in custody is penal and what your Honour Justice Edelman has put to me is based upon the premise that that is undeniable, as is (b), if it be treated as part of the sentencing process, a continuing detention order operates to extend the duration of the current imprisonment and Division 105A makes no provision for treatment or care and then indefinite detention is provided for. Then we come to the overlap provision, can I take your Honours to those, 105A.3(1) deals with the requirement that:

the person has been convicted of –

these series of offences and there is the disconnect that I have taken your Honours to, the conviction of offences are a vast range of offences much wider than serious Part 5.3A offences and then there is the double disconnect because the offences for which Mr Benbrika was convicted of fall within one small part of a range of a vast range of offences, so the prospective conduct cannot be said to be directly related to the conduct constituting the offence that he was convicted of. Can I go next to section 105A.7(1)(a).

GORDON J: Sorry, what division was that, Mr Merkel?

MR MERKEL: Section 105A, section 7, subsection (1), subsection (a).

GORDON J: Before you go to 7 could I just ask you about 4 please and this idea that there is no system of rehabilitation. Is that right, given the way in which 105A.4, both (1) and especially (2), identify where the person is to be kept, and one of the things where it says you are not to keep them in the same part of a prison unless it is:

reasonably necessary for the purposes of rehabilitation, treatment, work –

et cetera. Does that not presuppose that there is some regime?

MR MERKEL: With respect, your Honour, that is giving the section a lot of work to do. We would say, your Honour, that all it does is seek to segregate the prisoner from other prisoners in the prison, to the extent it is practicable to do so, in recognition that is not serving a sentence of imprisonment, but to say that we are not saying for a minute that he cannot have rehabilitation. But unlike the Fardon regime, it is the absence of any provision for that or any objective akin to that in Fardon that we say is the problem here.

There is no obligation, or no program and rehabilitation is one aspect, deradicalisation is another, but we say it is reading a lot into this program to say that it is part of the system designed to ensure that the period of detention may be brought to an end. Yes, there are periods of review provided for, and one would expect the prisoner would have the opportunity to have changed, but that does not suggest that there is any part of this program to actually cause it.

GAGELER J: Mr Merkel, can I ask you a question about the definition of “serious Part 5.3 offence”. I have not been through all of the provisions that might answer that description, do they have a common theme?

MR MERKEL: They all have a common theme of having a relationship to terrorism, whether it be through conduct or an organisation, they are all related in that sense to terrorism, at the highest level, within the broadest definition, and taking place anywhere in the world. That would, I think, be the common element, ranging from association to financing and so forth, including what is started off with, with the engagement in terrorist acts.

GAGELER J: So they all link back, in some way, to the commission or potential commission of a terrorist act, as defined?

MR MERKEL: I think that is putting it too broadly, your Honour. I do not think they do. I mean, for example, if one was serving as a doctor in an ISIS medical facility, that would run counter to these sections, even though you may not be engaged in a terrorist act, but you are involved or associated with a terrorist organisation. So there are a range of offences, stopping well short of being involved in a terrorist act. The association goes no ‑ cannot be put as any higher than association with a terrorist organisation or some kind of involvement, directly or indirectly, including with financing of a terrorist organisation.

GORDON J: Can I ask, is that right, given the definition of “terrorist act”, at least one part of it is:

the action is done or the threat is made with the intention of advancing a political, religious or ideological cause ‑

MR MERKEL: That is correct, your Honour, but when one goes to financing terrorist organisations, and so forth, that really falls under the rubric of an association, directly or indirectly, with terrorism, but it does not require that you are engaging in or planning a terrorist act. I think that is covered in section 100, but the other subdivisions I took your Honours to have a far wider operation. So it is fair to say Part 5.3 offences are, as in the heading, concerned with terrorism or acts related to terrorism, that have the broadest ambit of operation both in Australia and extraterritorially.

GAGELER J: You gave the example of humanitarian assistance to a terrorist organisation. Which provision would be contravened by that conduct?

MR MERKEL: Can I come back to your Honour on that?

GAGELER J: Thank you.

MR MERKEL: I think it would be “serving” or “association”, but I will try and give your Honour the section.

GAGELER J: Thank you.

GORDON J: The reason why it is important, I think, Mr Merkel, is because we have talked about “terrorist act”, but when you go to section 100.1 and one goes to subsections (2) and (3), it prescribes a list of activities that are within that subsection, as I understand it, and then a set of activities that are not.

MR MERKEL: I thought the activities that are not, your Honour ‑ ‑ ‑

GORDON J: One is:

not intended:

(i) to cause serious harm that is physical harm to a person; or

(ii) to cause a person’s death; or

(iii) to endanger the life –

et cetera.

MR MERKEL: I understand that would be a terrorist act, your Honour. There are qualifications, also, on what might be called the freedom of political communication falling outside these sections. I think an answer to your Honour Justice Gageler would be 102.7:

Providing support to a terrorist organisation

I think, your Honour, providing support would fall within it:

support or resources that would help the organisation engage in an activity described in paragraph (a) of the definition of terrorist organisation –

And then you have got:

Associating with terrorist organisations

But that is:

Imprisonment for 3 years.

The first one is:

Imprisonment for 25 years.

EDELMAN J: Sorry, which provision was that?

MR MERKEL: 102.8 is “Associating with terrorist organisations”, which has “Imprisonment for 3 years”, and ‑ ‑ ‑

GAGELER J: That is not a serious Part 5.3 offence.

MR MERKEL: That is not, your Honour. “Providing support to a terrorist organisation” in 102.7:

intentionally provides to an organisation support or resources that would help the organisation engage in an activity described in paragraph (a) of the definition ‑

GORDON J: Do these provisions extend to people who, for example, are unrelated to what I will call this form of terrorism and, to an extent, cover things such as complaints about pro‑life in the definition of ideological, political or religious?

MR MERKEL: Yes, your Honour, I think there is obviously exclusions there that are designed to not inhibit protesting and so forth and regard that as within the ambit of terrorist activities, all caught by Part 5.3.

I was going to take your Honours, I think, to 105A.7(1)(a) I had taken your Honours to. You have got the – we say 105A.7(1)(b) has regard to the matters in section 105A.8, and then you have got the criterion which again would show the disconnect from the sentencing process showing it is entirely based on what might happen in the future:

is satisfied to a high degree of probability, on the basis of admissible evidence, that the offender poses an unacceptable risk of committing a serious Part 5.3 offence if . . . released into the community –

Then, you have got subsection (5) ‑ ‑ ‑

BELL J: Mr Merkel, just before you leave that, can I just inquire, the reference to “released into the community”, do I understand from your earlier submission you contend that extends to the international community as distinct from the community of Australian people?

MR MERKEL: We say that it may have a limitation – a more limited meaning there because you are imprisoned in Australia, but what I had in mind, your Honour, is the object – if you look at the objects clause, the community which is the object of protection is the international community, but I do not have a problem with your Honour interpreting that community, meaning release into the community in the.....

BELL J: May I just inquire, you have taken us in section 100.1(4)(b) to the fact that a reference to the public in Division 100 is a reference to the public of a country other than Australia. Do we find community for the purposes of Division 105A defined anywhere?

MR MERKEL: I am not aware of it being defined anywhere, your Honour, so it would be a question of construction. We put the basis for construing it as widely as that, your Honour. That is how we put it. We refer to 105A.7(b) to show how different the question asked of the Court is to the question asked of the sentencing court. This is not a question which goes to punishment of past conduct but the matters that have regard to – must have regard to and 105A.8(1)(a) is:

the safety and protection of the community –

and we would say that community would be the wider community, not just the Australian community, because of the range of offences. Then, we have got reports and so forth and assessments and then paragraph (e):

any treatment or rehabilitation programs in which the offender has had an opportunity to participate, and the level of the offender’s participation in any such programs –

And (f):

the level of the offender’s compliance with any obligations to which he or she is or has been subject while:

(i) on release on parole –

And then (g):

the offender’s history of any prior convictions –

Now, we say, all of those matters are built into – apart from compliance, all of those matters are built into the original sentencing process.

We then go to 105A.23, which is the subsection your Honour Justice Gordon took us through, a warning about continuing detention orders. That, we say, again raises the Veen (No 2)‑type question, but it is merely the sentencing judge informing an offender who may be liable to a conviction under Division 105A which would trigger a continuing detention order regime, that that is what that person may be facing at the end of his sentence and it is no more than a statement of fact, but it does not make the sentence take that into account.

What we say about that range of positions, your Honours, is that the overlap between the sentencing regime for past conduct and the unacceptable risk based on propensity for future conduct is so great – or so substantial is the way we put it in our outline – that it cannot be said that that regime is purely preventative or displaces any aspect of punishment.

Your Honour Justice Edelman has put it as highly as saying it is a resentencing for the past offence, which is purely punitive. We would say it is not within that process, but we do not have to say it purely punitive. We say that there is sufficient there to displace a solely preventative purpose, which is really what the Commonwealth are putting to us. That is all I wish to say about Division 105A.

I will speak briefly about Thomas v Mowbray. I will not take your Honours to it, but it was critical in Thomas v Mowbray – and that is the only case where this Court has considered the Lim question in the context of the exercise of the judicial power. It was a significant factor, for example, at paragraph 17 Chief Justice Gleeson – I will not read them to your Honours, but his Honour notes the powers are similar to those in Division – powers similar to Division 104 have traditionally been “exercised by the judiciary”.

His Honour noted at paragraph 18 the argument based on Lim, that “only courts may impose restraints on liberty of the kind” imposed. But his Honour was dealing with detention, falling short of detention in prison, and his Honour at page 330, point 4 and point 6, seems to accept the operation of Lim in the way in which Justice Gummow had put it. I will just give your Honours the other references. We say at paragraph 114 of Justice Gummow and Justice Crennan, and 116 where their Honours said:

Detention in the custody of the State differs significantly in degree and quality from what may be entailed by the observance of an interim control order.

Which fell short of a detention order. We say that there is nothing in Thomas that runs counter to what we have put in our submissions. They are the submissions that we wish to put on the basis of invalidity. Could I make one brief comment about Kable (No 2), but we would propose to deal with that in reply, if we may. The Commonwealth has relied on Kable (No 2) as in effect answering the question before your Honours.

We say the constitutional issue raised by the separate question which we have addressed was not an issue argued or raised in Kable (No 2), and we say, as the Court found in CSR Limited v Eddy [2005] HCA 64; (2005) 226 CLR 1 at paragraphs 13 to 15, this Court should not be regarded as having determined that issue, even if it was somehow assumed without argument, and it does not even appear that it was assumed without argument in the Court’s reasons. So, we say that reliance on Kable (No 2) is misplaced, and this Court should not regard itself as having determined that question, and otherwise we would wish to deal with Kable (No 2) in reply.

We would finally observe the State preventative detention regimes offer no useful analogies apart from the discussions that have occurred, for example, by Justice Gummow and Justice Crennan on how they would operate in the federal context. But we do say it is critical to distinguish between the fact of no separation of powers, and therefore the bulwark of liberty approach to Chapter III is absent in the State context, thus the ‑ ‑ ‑

BELL J: Mr Merkel, if I can just take you up on that point of distinction between the judicial power of the State and the Commonwealth. You emphasise the separation of powers under the Constitution, and you invoke the concept of the bulwark of liberty, can I just take you back to the matter that Justice Keane raised with you. Am I right in understanding you accept that it would be open to the Commonwealth, in the exercise of non‑judicial power, to detain a person in custody for the purpose of protection of the community?

MR MERKEL: The way I hope I answered his Honour was on our primary case, no, because we rely on Lim to say that that is part of the exclusive judicial power which cannot be exercised in this case, because it does not fall within any of the established exceptions dealt with in Lim. If the Court rejects that argument, and the word “exclusive is taken out of the formulation in Lim, then we get to his Honour Justice Keane’s question, and we say that because it is disassociated from the judgment of guilt at a trial, then it could only be granted if it were otherwise permissible as part of the Executive power, and you could not attract the clothing of the judiciary to do so.

How Parliament might do it, and the manner in which it might do it may, as Justice Hayne said, turn on the terms of the particular legislation. So that is how we would approach it, and we certainly do not concede it, your Honour, because we do rely heavily on Justice Gummow’s analysis of it being exclusively a judicial function, but it is here disconnected from the judgment of guilt.

BELL J: Thank you.

STEWARD J: Mr Merkel, can I ask you one question, if I may. I think you accept the validity of the ability to make control orders under the Code, is that not right? Under 104?

MR MERKEL: Yes, your Honour.

STEWARD J: Yes. So leaving aside conclusionary statements, what is, as a matter of the judicial power of this Court and other courts invested with Chapter III power, what, as a matter of principle, is the difference between the detention, which the Crown seeks against your client, and the detention that has been imposed upon him recently under the control orders made by Justice Besanko, including, in particular, the fact that he must remain at home between the hours of 10.00 pm and 6.00 am. What is the difference, as a matter of principle?

MR MERKEL: The difference in principle, your Honour, is that Lim is entirely and solely concerned with detention in custody of the State and in the present context in prison, and in a number of the judgments in Thomas the point was made that that is a significant distinction because Lim was relied upon to argue against the power to impose a control order and there was a great deal of discussion about whether section 51 gave the requisite power.

But putting that to one side because it was found that it did give the requisite power, it was found that Lim was concerned with detention in custody and control orders and Justice Besanko’s order fell short of detention in the custody of the State, which is the problem with Lim.

STEWARD J: So detention in custody is necessarily a reference to a prison or corrections facility?

MR MERKEL: Prima facie it would be a reference but it could be an immigration facility. The wording used in Lim is “detention in custody in prison” puts beyond argument the Lim requirement because that is the ultimate form of the Lim detention, which we contend in Lim was found to be essentially exclusive to the judicial power as part of the sentencing process, what you have done.

Your Honours, we conclude by saying that the Commonwealth accepts there is no issue of severance. So if the power to continue in detention is invalid, then Division 105A is likewise invalid and we say a separate question should be answered accordingly.

We would finally ask your Honours to make no order as to costs. There is provision for costs in the Division 105A regime and we would say that, if we succeed, we should get a costs order, but if we fail we would ask that this Court allow the parties to put submissions to a single judge on the question of costs, having regard to the special aspects of this regime that give the Court power to order that the Commonwealth pay the costs.

That order was made before the trial judge and this separate question has come up from the trial judge initially, deciding to refer it to the Court of Appeal and then being removed by the Attorney‑General to this Court, but we do not want to trouble this Court with that. We say it is appropriate for a single judge to determine. They are the submissions we would put, if your Honours please.

KIEFEL CJ: Yes, thank you, Mr Merkel. Mr Berger – Solicitor‑General for the Commonwealth.

MR DONAGHUE: Your Honours, I propose to structure our oral submissions in four parts, starting first with the topic identified in paragraph 2 of our outline of oral argument to address the propositions that can properly be derived from this Court’s decisions in Lim and more recent cases applying them, including Falzon, which your Honours have not been taken to yet.

In short, our submission is that Lim does not support the proposition that the power to order the detention of a person can only be part of the judicial power of the Commonwealth if it is an incident of adjudging or punishing criminal guilt.

The relevant proposition is that, where detention is imposed for a non‑punitive purpose, it can be ordered either by a court or by the Executive subject to the application of ordinary separations of powers principles. So if conferred on a court it has to have the character of judicial power, follow judicial process et cetera, but there is no hard limit of the kind that the respondent asserts.

We do note though – and I will briefly develop this – that even if we are wrong about that and if your Honours were to find that the detention in issue here is punitive, that will not be sufficient for the respondent to succeed because this is a power that is conferred on a court. So that would be a decisive issue in cases where the power had been conferred on the Executive but there is a further inquiry where the power has been conferred on a court and I will develop that. So, that is the first of the four points.

Second, we will address the reasons why we submit your Honours should not accept Justice Gummow’s reasoning in Fardon. That is paragraphs 3 to 5 of the outline. Third, we will develop the submission that Kable (No 2) establishes that the power that was exercised to order Mr Kable’s detention was judicial power and should, we submit, also be found to have been the judicial power of the Commonwealth and we will answer the respondent’s efforts to distinguish that case which are all advanced in writing – Mr Merkel not having developed that today. Fourth, we will advance an affirmative argument that the power one sees in section 105A.7 is properly characterised as judicial power on ordinary separation of powers principles.

GAGELER J: What is the point of arguing about Kable (No 2)?

MR DONAGHUE: There are a couple of aspects of it, your Honour, but most critically, in our submission, the Court unanimously held in Kable (No 2) that the power that had been awarded in that cases was properly characterised as judicial power. In circumstances where we have here a regime where that power is conferred on a court, that, we submit, takes us a long way to answering the Chapter III argument. When one has judicial power conferred on a court ‑ ‑ ‑

GAGELER J: Invalidly.

MR DONAGHUE: Invalidly, in that case. But, as a matter of the characterisation of the power in question, the reason that the judicial order made by Justice Levine was capable of validly authorising the detention of Mr Kable for the period such that he did not get compensation was that it had the character of a judicial order. Our friends have to say, in order to win, either that this power is not judicial power, the power conferred by 105A.7 is not judicial power, or they have to say that even though it is judicial power and even though it is conferred on a court, somehow Chapter III still invalidates it.

GAGELER J: That is what happened in Kable (No 1).

MR DONAGHUE: Yes, indeed, but they have to take the step of doing that, and the reasons that Kable (No 1) failed have no relevant application to this regime.

Can I ask your Honours to start with Lim which is in volume 3, tab 9, 176 CLR 1 and go back to the page that Mr Merkel has already taken you to on page 27 of the report? This is in the joint judgment of Justices Brennan, Deane and Dawson with whom Chief Justice Mason, relevantly, agreed. If I can start in the same place that Mr Merkel started which is about point 4 on the page?

GORDON J: Sorry, what page was it, Mr Solicitor?

MR DONAGHUE: Page 27, your Honour.

GORDON J: Thank you.

MR DONAGHUE: At about point 4, there is a paragraph that begins:

There are some functions which, by reason of their nature or because of historical considerations, have become established as essentially and exclusively judicial in character. The most important of them is the adjudgment and punishment of criminal guilt under a law of the Commonwealth.

I pause to emphasise those words, “under a law of the Commonwealth”. Your Honours will see on the very last line of that page, the principles expressed as punishment “for a breach of law”. We are talking here not about a concept of punishment at large. The exclusively judicial function that is referred to is punishment for breach of the law.

That is the whole jumping off point for the analysis that follows, that there are some kinds of governmental power that can only be proposed in the judicial arm of government. From that starting point, their Honours go on in the next paragraph to point out that the limit in question is one of substance rather than form and we do not quibble with that at all. In illustrating that point, so the first sentence of the paragraph on the second half of the page says the concern is with substance over form. Then, their Honours give an example of what would violate the substance over form limit:

an arbitrary power [conferred on the Executive] to detain citizens in custody –

which in terms is divorced from punishment and guilt. So, their Honours do not say “any” power conferred on the Executive would violate the limit, which they could not say given what happens on the next page in relation to the exceptions. Their Honours are talking about a particular kind of power, an arbitrary power divorced from punishment. We submit that the reason they cast the principle in that way is that an arbitrary power of the kind their Honours posit would be one where it would not be possible to show it was serving a legitimate purpose.

As a matter of characterisation of the power you could not show that it was a power conferred for non‑punitive purposes. So, to use your Honour Justice Gageler’s language in NAAJA, the default characterisation could not be rebutted. Four of your Honours in Falzon said if you cannot show anything else then you will assume that it is punitive and we, again, accept that that is so. One needs to be able to identify a non‑punitive purpose.

GAGELER J: I said in NAAJA that you needed to go beyond purpose to look to character and I gave two indicia that needed to be satisfied. Do you accept those?

MR DONAGHUE: Yes, and Mr Merkel said that neither of them are an issue in this case. They were indicia I think that your Honour posed in terms of limits on executive detention and I think that is why Mr Merkel says they are not in issue in this case but I do accept them. But what their Honours are doing in explaining that the area of exclusive judicial power they have identified in the middle of the page must be identified as a matter of substance over form. They give an example of an executive law, an arbitrary executive power to detain, divorced from guilt. It is then in explaining why that example would be impermissible for the reason why that is so.

So, the critical passage that our friends rely on in this case is an explanation of that substance over form limit and, effectively ‑ and I will not read it to your Honours, your Honours know well what is said there ‑ but it turns on the proposition that that arbitrary law that is being imposed would be penal or punitive in character and existing only as an incident of the exclusively judicial function of judging and punishing criminal guilt.

Now, your Honours will understand that our primary submission is that when one characterises the power that is confirmed under 105A.7, the power in question should not be characterised as penal or punitive, it exists for the purpose of the protection of the community. For that reason, we say, it falls within the exception, the exception or cases aside that I left out in that example. I am going to develop that.

But if, for the moment, your Honours assume we are wrong about that, and that for some of the reasons that have been explored with Mr Merkel this morning, particularly by your Honour Justice Edelman, this process is characterised as being connected in some way with the sentencing process or as an extension of the sentencing process that relates to the offences that Mr Benbrika committed, what follows from that? Well, the respondent assumes that it follows, I think, that if there is a punitive element to this, then it cannot validly have been conferred. But what this passage in Lim says is that if it has that character, it is part of the exclusively judicial function power of the Commonwealth.

.....because here the power in question has been conferred on a court that is capable of exercising the exclusive judicial power of the Commonwealth. So, once it is understood that the principle that we are concerned with on this page is a separation of powers principle, it is not enough for our friends to say, well, this should properly be characterised as punitive. They need to find a limit that means that even though the limb reasoning would suggest it is exclusively judicial power, and even though the power in question has been conferred on a court, it is still otherwise invalid.

KIEFEL CJ: Mr Solicitor, just returning to what you were saying, if one takes the alternative position that the law might be characterised as punitive, if it is seen as connected with, or a continuum incidental to the sentencing process, other questions might arise about the validity of such a law, not.....What do you say about the idea that this law can be seen as connected in that way?

MR DONAGHUE: For the various reasons that your Honours have raised this morning, there are obviously a number of provisions in this part, so the requirement that the person be in custody, the requirement in making the order to have regard to past offences, so the paragraphs in ‑ ‑ ‑

EDELMAN J: 105.8.

MR DONAGHUE: Yes, (g) and (h), those paragraphs, the paragraphs that your Honour Justice Gordon has mentioned about the warning that must be given at the time of sentencing. Those are all factors that we accept create some connection. Our primary argument is that ‑ and so we have not sought to develop the proposition that the law should be characterised as an adjunct of the sentencing process, because we submit that it is valid even if not characterised in that way, but because, we submit that it is properly characterised as pursuing a function protective of the community, but if ‑ ‑ ‑

GORDON J: Do you mind speaking up, Mr Solicitor.

MR DONAGHUE: Sorry, your Honour.

GORDON J: I could not quite hear that last sentence of submission.

MR DONAGHUE: Your Honour, we submit that characterising this division as a whole, the better view is that it is advancing the purpose of protecting the community from a particular kind of risk, and that, in those circumstances, it does not contravene the Lim principle. But if we are wrong about ‑ ‑ ‑

EDELMAN J: But that primary submission is not inconsistent ‑ ‑ ‑

MR DONAGHUE: No.

EDELMAN J: ‑ ‑ ‑ ‑ with a submission that it is still an adjunct to, or part of, the sentencing process.

MR DONAGHUE: I entirely accept that, your Honour, and even if your Honour were to reject – if your Honours were to accept that first submission, then we should win on that basis, but even if your Honours did not accept that submission, there is no inconsistency with having that connection. And it may be that the reasons that we would lose ‑ it may be the reasons your Honours might find that it is not purely protective from that risk is because of the various connections that exist to the antecedent criminal offences, and if your Honours were to take that view, then the regime is still consistent with what is said in Lim, because what is being done is a Chapter III court would be imposing, on that world view, punishment as an incident of adjudging and punishing criminal guilt.

KIEFEL CJ: But not for a breach of the law?

MR DONAGHUE: Well, on that view, it would be. If your Honours find that the various provisions that have been mentioned are all connected back to the fact that Mr Benbrika is in prison and has been sentenced in respect of a breach of the law so that this is an adjunct to the sentencing process ‑ ‑ ‑

KIEFEL CJ: That is why I said to you I think there might be other larger questions in relation to the validity of a law that deals with sentencing twice.

MR DONAGHUE: There might be, your Honour, and my short answer to that is none of those issues have been raised against us.

GORDON J: Can I ask you now though is there as third way of looking at this, that it does, as the Chief Justice says, raise questions about the potential for double punishment? It is either connected or it is not, so it is a question of characterisation and purpose and effect. We have got three potential ways, as I understand – or at least two, and I am giving you a third – of the way in which it might be characterised both in terms of looking at it in terms of structure and purpose and then effect.

MR DONAGHUE: Yes. And the submission we have advanced – and our primary submission ‑ is that it is not connected and so the further issues that your Honour the Chief Justice is raising do not arise.

KIEFEL CJ: I suppose the real question for you, Mr Solicitor, is do you wish to embrace an argument which builds upon the sentencing process, or do you wish to rely upon your principle argument alone?

MR DONAGHUE: Well, for the reasons I think Justice Edelman put to me, I do not accept that they are inconsistent, that I would need to reject one to adopt the other because in essence my – and I am very reluctant to try to answer a case that has not been put against us because I really cannot see the outlines of it.

KIEFEL CJ: I suppose that is really what I am asking you is, without fully developing it, it is difficult for this Court and it is perhaps difficult for you because you have not had an opportunity to consider all of the implications.

MR DONAGHUE: That is right, and that, in my submission, is not a satisfactory position for anyone to be in. Again, I submit your Honours do not need to get to there because if you accept our primary argument, then that would be sufficient. But the reason that I ‑ ‑ ‑

GORDON J: May I ask two questions about that – just two questions. Is conviction central to your argument? Is sentence as preconditions essential to your argument?

MR DONAGHUE: No, no to both, although the past conviction was regarded and has been regarded as important by some judges who have looked at regimes of this kind.

GORDON J: I am asking for the Commonwealth’s submission on the validity of this legislation.

MR DONAGHUE: Your Honour, I can answer that by saying that in circumstances where this legislation can only apply to a person who has been convicted of a serious Part 5.3 offence, I can say that when that element is present the regime is clearly valid and I do not need to answer the position of what the situation would be if a preventive regime were ever to be enacted without such a character.

KIEFEL CJ: The other factum upon which this legislation operates is that the person is about to be released into the community which suggests that, somewhat apart from the sentencing process, it follows on after a period of imprisonment with all that that might involve.

MR DONAGHUE: And that is one of the reasons that we have put our primary argument as we have. The reason that I am seeking to leave the position at least open is really for part of the reasons that your Honour Justice Bell was exploring based on Chester’s Case that if it be the case, as it seems to have been accepted, that one can impose, in addition to the ordinary sentence that would be warranted by an offence, a preventive sentence to protect against future offending at the time of sentence, it would, in our submission, be a most unsatisfactory constitutional principle to say you can make that prediction at the start of what might be a sentence of decades in length, but you cannot do it at the immediate point of possible release where the capacity to assess the future risk will be better.

GAGELER J: Mr Solicitor, there is a difference between leaving something open in the sense of not argued and able to be argued on another day and advancing an alternative submission that raises lots of questions, including about the finality of an exercise of judicial power in quelling a controversy about criminal guilt and consequences of criminal guilt. I mean, it just opens up a whole raft of new inquiries.

MR DONAGHUE: I accept that, your Honour, and that is why I am reluctant to answer a case that has not been met. I can answer ‑ ‑ ‑

GAGELER J: Well, Mr Solicitor, I am sorry but it is the way in which you answer the case that has been put. You can put one submission or you can put two submissions but if you put the second one, you have to answer other questions.

MR DONAGHUE: Your Honours, it is sufficient for my purposes to advance the argument that we have advanced in writing that – let me back up. This debate is a debate about whether or not this provision is invalid because of the principle identified in Lim. It might be outside that principle because it is an exceptional case, however, the exception should be identified. That is the primary way that we have conceived it. It would also be outside that principle if even though not within an exceptional case the punishment was being imposed as an incident of the imposition of criminal guilt. I have not hitherto advanced that proposition and I do not need to and I accept, of course, what your Honour says, advance it as an alternative way for us to succeed here but it should, in my opinion, in my submission, be left open for a future case if the issue were to arise because it has not been said by Mr Merkel for the respondent that for any reason it is invalid by reason of double punishment. We separated the sentencing principles.

KIEFEL CJ: Do we take it then, Mr Solicitor, that you do not wish ‑ whilst you leave it open for another day you do not wish to argue for that proposition today?

MR DONAGHUE: I do not wish to argue that this regime should be identified as a regime that involves punishment as an incident of their first offence. No, I do not.

BELL J: Your primary argument, you would say, derives support from the fact that at the time the respondent was sentenced, the sentencing court was required to impose the appropriate sentence for that offence, taking into account the matters in section 16A or B of the Crimes Act under the regime of Part 1B of the Crimes Act. That regime requires considerations of the various competing factors that bear on the appropriate sentence and that process was completed when the sentence was imposed and either an appeal was dismissed or there was no appeal. But that completed that process and accepting that the sentence may have involved some element – an element of protection of the community the contention is the scheme under Part 105A is wholly directed to protection of the community.

MR DONAGHUE: Indeed, and that there was no reason to view it as needing to reopen any of those previous considerations that had been fully and exhaustively completed at that time.

BELL J: To the extent on your primary argument, you refer to established exceptions, taking into account Division 4, effectively, preventive periods of detention for those who happen to have been convicted of.....or not? In other words, is there an existing category?

MR DONAGHUE: Is there an existing historical category?

BELL J: Yes.

MR DONAGHUE: Your Honours, we have preferred not to analyse it in that way because, in our submission, what one sees from the cases from Lim, and following, is that rather than need to engage in an exercise where one finds an historical box and then when one tries to push it boundaries a little, one instead asks, what is the unifying principle that explains those exceptions which, in our submission, has emerged clearly as being – can the detention be shown, as a matter of construction of the statute, to be for a non‑punitive purpose. Once we do that – which we submit we can do – I do not need to put it in that way. So, perhaps, one could have but we have not.

EDELMAN J: Just so I understand, the alternative submission that you say you are not pressing, or do not need to raise, does that mean that the entirety of your submissions then rises and falls upon whether or not this regime is characterised as punitive or not. Because if you were not found to be correct in a characterisation of it as a non‑punitive purpose for the various reasons that the Court has raised and Mr Merkel has referred to – the absence of a rehabilitation regime, the various assumptions that it is a continuation of the sentencing process, and so on, if that were then to lead to the characterisation of the law as punitive, does that mean that your submissions would fail?

MR DONAGHUE: Your Honour is putting your finger on the reason that I tried to leave the matter open because the difficulty is that your Honours are being asked to rule the division invalid. In my submission, there would some difficulty in you ruling the provisions invalid even on the hypothesis your Honour puts to me because you would still have the power being conferred on a court and you might be entitled to say, well, why is it invalid given that a power to punish has been conferred on a court. Mr Merkel has not explained, in my submission, why it is invalid in that situation so I do not have an argument there to meet. So, I am accepting the force that it does open up – to have that issue in play, does open a range of matters that have not been properly ventilated, so I have backed down.

KIEFEL CJ: Except, Mr Solicitor, it might not be quite as cutthroat as you think it is because we do know that orders can be framed to reflect the basis upon which invalidity is found.

MR DONAGHUE: Yes.

KIEFEL CJ: So, that might be the simple answer to that.

MR DONAGHUE: That may be right.

EDELMAN J: But your primary submission does invite a binary answer to the question of, is this punitive or not?

MR DONAGHUE: That is certainly the binary question that, in my submission, governs all the many cases about executive detention and one can apply that approach to this case which is the primary way that we have run it. But I accept that if we are wrong about that, one would certainly need to frame any orders in a way that left open the fact that there would not have been debate about the validity of this regime if characterised as a regime that imposes a second sentence for the first offence. Given that Mr Benbrika has not advanced any such argument, that should not present any difficulty.

EDELMAN J: It would only be a regime that did that insofar as it operated retrospectively from 2016 onwards. It may not operate retrospectively in that manner.

MR DONAGHUE: Well, that might be one of the nuances that have not really been fleshed out in the way that the matter has been argued. Could your Honours go to the next page of Lim, which is the page where their Honours deal with the exceptions, just.....the way that their Honours characterised both, or the exceptions that they identified. So, under the quote, there is a reference to some qualifications to what is called the “general proposition” that the power to involuntarily confine in custody is exclusively judicial, and in the middle of the page you see, one, the reference to:

committal to custody awaiting trial –

which their Honours describe as:

not seen by the law as punitive or as appertaining exclusively to judicial power.

And then, about seven or eight lines down we come to the two cases that your Honour the Chief Justice raised with my friend this morning:

mental illness or infectious diseases can also legitimately be seen as non‑punitive in character and as not necessarily involving the exercise of judicial power.

So even in ‑ ‑ ‑

KIEFEL CJ: It might be either executive or judicial depending upon separation of power ‑ ‑ ‑

MR DONAGHUE: Depending on ordinary principles, exactly. So right from Lim itself one sees that distinction between the exceptions having the non‑punitive character, and that is what is picked up in the cases that follow. I will not take your Honours to it, but in the middle of page 110 of Kruger, in a passage that Mr Merkel took your Honours to this morning, Justice Gaudron in the course of a critique of these pages of Lim makes very much the point your Honour the Chief Justice was making, that when one looks at those two exceptions in particular, mental health and infectious diseases, and asks why they are exceptions, they point to a unifying notion of an exception where that is necessary for:

the safety or welfare of the community.

So, and Justice Hayne referred, with approval, to that analysis in Al‑Kateb at 257. So, in our submission, Lim quite comfortably accommodates the binary division that we are urging upon your Honours. I should emphasise, given the written submissions of our friends, that the division is not a division between punitive on the one hand and protective on the other hand. There are quite a number of forms of permissible detention that one would not characterise as protective, immigration detention being the most obvious example. The distinction is between punitive and non‑punitive, which is what emerges both from Lim and from the subsequent cases.

We have cited lots of them in footnote 25 on page 6 of our submissions, and I only want to take your Honours to one, which is Falzon, if your Honours could go to that, it is volume 3, tab 10[2018] HCA 2; , (2018) 262 CLR 333. Your Honours might recall that Falzon.....based on his past criminal offending. He argued that the purpose and effect of the power to cancel his visa was to punish him again for the offences that he had committed in the past, and he said that that punishment involved the purported conferral of judicial power onto the Minister, and the Court unanimously rejected that argument.

If your Honours could start at paragraph 17 in the joint judgment of your Honour the Chief Justice and Justices Bell, Keane and Edelman. On paragraph 17, having referred to Lim, your Honour said in the last five or six lines:

This limited authority to detain an alien in custody can be conferred upon the Executive without infringing Ch III because the authority to detain is neither punitive in nature nor part of the judicial power of the Commonwealth.

So, your Honour has picked up the exact language from Lim. At paragraph 19, you explained that whether the law has that character, the character of conferring a power to punish “is a question of construction”, “ordinary principles of statutory construction” focus on the “purpose of the law”. So, when we come to develop our submissions, focusing on construing the division and to identify its purpose, we are doing, in our submission, exactly what your Honours identified as the appropriate inquiry in that paragraph. At paragraph 24 on the next page, under the heading:

Executive detention is prima facie penal or punitive

your Honours say about five lines down:

It is doubtless correct to observe that the detention of a person by the Executive without more is likely to permit an inference to be drawn that, for some reason, the legislature wishes to punish the person to be detained. That means that the legislature must provide a reason consonant with a non‑punitive purpose ‑

So that, in our submission, is the same idea as the default characterisation idea that your Honour Justice Gageler identified in NAAJA once ‑ needs to be able to explain by reference to the construction of the legislation that it has a non‑punitive purpose. But if it does, it sits outside the principle in Lim. In paragraph 25 at the top of the next page, your Honours rejected a submission that there is a – what you identified as a “constitutionally guaranteed freedom from executive detention”. Lim does not establish such a thing. At paragraph 33 at the bottom of page 344:

It may nevertheless be accepted that a legislative power to detain must be justified, in the sense that it must be shown to be directed to a purpose other than to punish.

So, in our submission, this judgment strongly endorses the reading of Lim that we are urging upon your Honours here. In the joint judgment of your Honours Justice Gageler and Gordon, your Honours focused principally on the fact that the provision in question did not authorise detention at all and so Lim was not relevant but you did say at paragraph 82, in discussing Lim, that:

The reason that such laws are valid is that detention for those purposes is “neither punitive in nature nor part of the judicial power of the Commonwealth”.

So, your Honours use again the language “punitive, non‑punitive”, and Justice Nettle did the same at paragraph 96. So, in our submission, the whole Court in Falzon viewed the question in that way.

Justice Gummow in Fardon [2004] HCA 46; (2004) 223 CLR 575 did not analyse the relevant principles in that way. If I could ask your Honours to turn to his Honour’s reasons, it is volume 4, tab 11. We make three points about his Honour’s reasoning, starting at paragraph 77 on page 611. In paragraph 77 his Honour quotes the relevant part of Lim. Then in paragraph 78 his Honour critiques it. He says the expression of the constitutional principle in that way “has certain indeterminacies” that are identified in 78 and 79, 79 referring to the indeterminacy concerned in the phrase “criminal guilt”. Because of those criticisms his Honour says at paragraph 80 – and that is the critical paragraph:

I would prefer a formulation of the principle derived from Ch III in terms that, the “exceptional cases” aside ‑

So we are still subject to exceptions:

the involuntary detention of a citizen in custody by the State is permissible only as a consequential step in the adjudication of criminal guilt of that citizen for past acts.

Our submission, your Honours, is that that is a radical recasting of the principle in Lim for this reason, that Lim was concerned with an analysis of whether or not as a matter of substance over form a particular power should be found to be of a character that was exclusively judicial, that the whole discussion on page 27 was about is it exclusively judicial or not?

What Justice Gummow’s principle does, as reformulated, is a principle that is not really about the division of powers between different branches of government. His Honour says nobody can detain a person in custody except as a consequential step in the adjudication of criminal guilt. The Executive cannot do it. The judiciary cannot do it. No one can do it.

So that, in our submission, is a rather dramatic operation for the separation of powers doctrine to have, given that it is normally understood as about the division of powers between arms of government, rather than abstracting ‑ ‑ ‑

GORDON J: Under a heading of Chapter III, is it not dealing with the separation of powers and the question of whether or not it could have been given to the exercise of judicial power?

MR DONAGHUE: But his Honour’s principle is that it can only be given to a court and then only in one case as an incident of punishing criminal guilt. So on Justice Gummow’s formulation ‑ exceptional cases aside, one needs to work out what they are ‑ but to take your Honour the Chief Justice’s example, a court could not order quarantine unless a court order in quarantine were to be within the exceptional cases because the Court would not be doing that as a step in the adjudication of criminal guilt. The answer to your Honour Justice Keane’s problem would be that Chapter III would be preventing the function being conferred even on the Executive.

KEANE J: So, it is a denial of power, rather than a separation.

MR DONAGHUE: It is, and for that reason alone we submit that your Honours should not accept that reformulation of what was being done, because Lim was not about denial of power; it was about assigning things appropriately into the exclusively judicial or not category.

Your Honours will see that in reformulating the principle in that way, in the next paragraph Justice Gummow specifically explains that part of the reason was to eschew the phrase “penal or punitive” and to emphasise that the concern is with the deprivation of liberty without the adjudication of guilt rather than with the further question of whether the deprivation is for a punitive purpose or not.

So his Honour was specifically trying to not have the constitutional question turn upon: is the detention punitive or not? In that respect, what his Honour was doing – and I should mention that your Honours will see the footnote at the end of that paragraph which is to Al‑Kateb at 137 to 139 ‑ that is his Honour’s dissenting constitutional reasons in Al‑Kateb where he rejects that same distinction ‑ so the reason validly rejects the very thing that was unanimously accepted as the governing principle in Falzon based on, we submit, a correct reading of Lim. I need to take your Honours to Al‑Kateb but I see the time.

KIEFEL CJ: Yes, thank you. The Court might resume a little earlier. The Court will resume at 2.00 pm.

AT 12.45 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.00 PM:

KIEFEL CJ: Yes, Mr Solicitor.

MR DONAGHUE: Thank you, your Honours. Before lunch I had taken you to the end of the passage where Justice Gummow rejected the punitive/non‑punitive distinction as the appropriate test to limit the exceptions in Lim and I noted that his Honour had footnoted his reasons in Al‑Kateb at paragraphs 137 to 139. Can I take your Honours to those passages in Al‑Kateb [2004] HCA 37; (2004) 219 CLR 562 which is in volume 3, tab 6. His Honour footnoted 137 to 139, but if we could start at 136 near the bottom of page 599, your Honours will see that, having mentioned Veen (No 2) in the last four lines of that paragraph, his Honour said:

Once it is accepted that many forms of detention involve some non‑punitive purpose, it follows that a punitive/non‑punitive distinction cannot be the basis upon which the Ch III limitations respecting administrative detention are enlivened.

That distinction focusing on whether detention was penal “is apt to mislead” and:

It is primarily with the deprivation of liberty that the law is concerned, not with whether that deprivation is for a punitive purpose.

That reasoning is minority reasoning both in Al‑Kateb and in Fardon. It was rejected by a majority of the Court in both of those cases. Can I briefly make that good, and I will do it quickly. In Al‑Kateb, given your Honours have it open, Mr Merkel has already taken you to paragraphs 44 to 45 in Justice McHugh’s judgment, so I will not go back there, but you see in those paragraphs his Honour applying that distinction – the punitive/non‑punitive distinction.

In Justice Hayne’s reasons, with whom Justice Heydon agreed, could your Honours turn to paragraph 263, page 636. I might confine myself to paragraph numbers your Honours because there are, oddly, two different versions of this case in the Commonwealth Law Reports. At paragraph 263, you will see Justice Hayne saying:

at its root, the answer made to the contention that the laws now in question contravene Ch III is that they are not punitive.

His Honour then goes on to explain that conclusion on the next page. If your Honours could go to paragraph 267, there Justice Hayne explains that:

Only if it is said that there is an immunity from detention does it become right to equate detention with punishment that can validly be exacted only in exercise of the judicial power.

Then it is noted that Lim accepted that there were exceptions:

the argument from the existence of an immunity must accept that the immunity is not unqualified. The argument must then turn to the identification of those qualifications. That must be done by reference to the purpose of the detention.

Justice Callinan at 287 was to the same effect:

It was not, and could not be contested that detention for purposes other than punitive ones has been traditionally constitutionally acceptable.

He then discusses Lim and I think Mr Merkel also took you to paragraph 4 in Chief Justice Gleeson’s judgments that also mentioned the punitive/non‑punitive distinction. So there was a clear majority in Al‑Kateb in favour of the distinction that Justice Gummow rejects.

Similarly, in Fardon itself, Justice Gummow’s position was a minority one. So, if your Honour could go back to Fardon which is volume 4, tab 11. Just before taking you through the other judgments, could I note if your Honours still have Justice Gummow’s judgment at paragraph 83, there his Honour recognises the history of preventive detention regimes as part of the sentencing process and gives some historical examples. Accepting the list of exceptions is not closed but does not proffer a criterion that could be used to identify when additional things of a similar kind are to fall within the exceptional categories.

So, your Honour, Justice Bell asked me what about Chester and does that fall into that, and it is not quite clear how his Honour would answer that question because obviously that is a version of the kind of examples that his Honour there gives, but part of the reason we submit your Honour should not accept that analysis is that unlike the majority approach which does give you a test that allows one to identify ‑ ‑ ‑

KIEFEL CJ: We appear to have lost Mr Merkel. The Court will need to adjourn until we re‑establish contact.

AT 2.05 PM SHORT ADJOURNMENT

UPON RESUMING AT 2.07 PM:

KIEFEL CJ: Mr Merkel, I.....that you were able to hear what the Solicitor‑General was saying.

MR MERKEL: Yes, and see, your Honour. We did not have any difficulty.

KIEFEL CJ: .....

MR DONAGHUE: Your Honour, so I undertook to briefly indicate the position of the other Justices in Fardon on the punitive, non‑punitive distinction. Your Honours might recall that in this case several members of the Court reserved their position on the question, could the Commonwealth have enacted a law of the kind that was in play in Fardon. The Chief Justice was one of those members of the Court. He did that at paragraph 18, he said:

It is unnecessary in this case to decide whether, under the Constitution, the federal Parliament could enact a valid law –

I will not take your Honours to it but while the Chief Justice reserved his position in this case, subsequently, in Thomas v Mowbray he endorsed Justice McHugh’s judgment in this case in the passage I am about to come to. So, while he reserved his position here, he committed himself to the view that the Commonwealth could have enacted such a law in Thomas at paragraph 15 – or perhaps committed himself, might be slightly overstating it but his judgment associates himself with Justice McHugh’s paragraph and strongly implies the federal Parliament could enact such a law.

Justice McHugh, at paragraph 34 said, about six lines down, making a number of points about the differences between the Act in Fardon and Kable, and the second that his Honour points to is:

when determining an application under the Act, the Supreme Court is exercising its judicial power.

Then the last three lines on that page:

It is true that in form the Act does not require the Court to determine “an actual or potential controversy as to existing rights or obligations”. But that does not mean that the Court is not exercising judicial power. The exercise of judicial power often involves the making of orders upon determining –

a particular status. And then about six or seven lines further down, his Honour says:

The Court must first determine whether there is “an unacceptable risk –

the same standard in issue in this case in 105A.7:

that the prisoner will commit a –

There:

a serious sexual offence”.

Instead of “a serious Part 5.3 offence”:

That is a standard sufficiently precise to engage the exercise of State judicial power. Indeed, it would seem sufficiently precise to constitute a “matter” that could be conferred on or invested in a court exercising federal jurisdiction.

That is the passage that Chief Justice Gleeson picked up in Thomas. Justice Hayne agreed with Justice Gummow’s reasons, save for the fact that his Honour expressly reserved his position on the question of whether or not the Commonwealth could have enacted such a law. And he did that at paragraph 196. But, and it is true that in paragraph 196 his Honour recognised that:

no sharp line can be drawn between criminal and civil proceedings or between detention that is punitive and detention that is not.

But nevertheless, in my submission, particularly bearing in mind the chronology of these cases, which was that Al‑Kateb was decided two or three months before Fardon was decided, and in Al‑Kateb his Honour strongly applied the punitive/non‑punitive distinction as the identification of the constitutional line, in my submission, your Honours should not read Justice Hayne as rejecting that distinction just a few months later, particularly in circumstances where at 197 his Honour says much will depend:

on the particular terms and operation of the legislation in question.

Now, that might be contrasted with Justice Gummow’s statement at paragraph 85, which said, in effect, it does not matter that the legislation creates a:

process of some refinement. The vice –

according to Justice Gummow, is:

in the nature of the outcome ‑

Justice Hayne was not saying the vice was in the nature of the outcome, much depended on the detail of the legislative regime. Justices Callinan and Heydon, in their joint judgment at paragraph 214 to 215 also expressly ‑ did not deal with the question of whether the Commonwealth could pass such a law, but expressly said in 214 that it, in some circumstances, was:

valid to confer powers on both non‑judicial and judicial bodies to authorise detention –

So, their Honours were contemplating that you could, in some circumstances, give such a power either to the Executive or to the courts, and they, in 215, endorsed the question being whether the law is punitive or not or for a:

legitimate non‑punitive purpose ‑

So, in my submission, notwithstanding that Justice Gummow repeated his Honour’s views with Justice Crennan’s agreement in Thomas, those judgments are isolated in the stream of jurisprudence in this Court as to the proper way to identify the Chapter III limit. And one sees, not just in Fardon and in Al‑Kateb, but in NAAJA and in Falzon, clear majorities, if not unanimous courts, in favour of that distinction.

GAGELER J: Their Honours in paragraph 215 are quoting Justice Gummow in Kruger. Are you suggesting that Justice Gummow was saying something different in that case?

MR DONAGHUE: Kruger was, I think, seven or eight years before Fardon and, in my submission, one does see an evolution in Justice Gummow’s thinking about the Chapter III limits, so prior to Al‑Kateb and Fardon his Honour I think had not clearly rejected the punitive/non‑punitive distinction. Indeed, that passage in Kruger seems to accept the validity of that distinction as a constitutional limit, which is not what his Honour did some years later.

GAGELER J: On one view, what his Honour might have been doing, seizing on the sentence that refers to the necessity for a legitimate non‑punitive objective.....say that the objective merely of preventing in a quia timet sense a future criminal act is insufficient to answer that description.

MR DONAGHUE: Your Honour, in my submission, having regard to his Honour’s reasoning both in Fardon and Al‑Kateb, his Honour seems to be rejecting that as the question, in my submission, rather than positing a way of answering it.

GAGELER J: Thank you.

MR DONAGHUE: So post‑Fardon, it was clear that a State court would make an order for the preventative detention in a prison of a person based on an assessment of whether they represented an unacceptable risk of future offending. As the law stood at that moment in time, the main reason that it might have been thought that the position was different with respect to a court exercising federal jurisdiction, whether State or federal, was that it might have been thought that the power to make an order of that kind was not judicial power and, thus, on traditional Boilermakers principles the power could not be conferred on a court because at that point in the authorities while Justice McHugh had clearly in paragraph 34 expressed the view that the power was a judicial power, that opinion had not been expressed in previous judgments of the Court and, indeed, there were a number of statements in Kable (No 1) that were capable on one view of being read as suggesting that the power purportedly conferred in Kable (No 1) was not judicial.

Obviously enough, had that argument prevailed on very well‑established separation of powers principles, it would have been easy to understand why there was a difference between federal courts ‑ or courts exercising federal jurisdiction on the one hand and State courts on the other.

The reason we submit that Kable (No 2) is significant is that Kable (No 2) involves this Court unanimously holding that the power to order the detention of Mr Kable based on an assessment of the risk of future offending was judicial power. So Kable (No 2) put to bed, as it were, the main reason it might be thought that there was a distinction to be drawn between federal courts on the one hand – or State courts exercising federal jurisdiction and State courts on the other.

That is so, notwithstanding the fact that the order that the Community Protection Act then in issue in Kable (No 1) was invalid, because the foundation for the Court’s judgment in Kable (No 2) that the order that was made committing Mr Kable to prison for six months was binding until set aside and therefore provided a valid legal basis for Mr Kable’s detention, notwithstanding the invalidity of the Community Protection Act, was that his Honour had made that order in the exercise of judicial power.

So it was critical to the ratio of the case that one should characterise the power to order preventive detention at least under the Act in issue in Kable as an exercise of judicial power, and your Honours have not seen in this case any argument that there is a material distinction to be drawn between the kind of exercise, albeit invalidly conferred by the Community Protection Act on the Supreme Court and the kind of exercise that is called for by Division 105 which does not have defects that were identified in Kable.....reflects the regime issue.

I do not need to take your Honours to very much of Kable (No. 2) to make that point. If I could ask your Honours to turn to that case, it is in volume 6, tab 19, (2013) 252 CLR 118. I will not take your Honours to it but the question that Justice Levine had to ask under section 5 of the Community Protection Act was whether he was satisfied that Mr Kable was “more likely than not to commit a ‘serious act of violence’ if released” and that it was “appropriate for the protection” of the community to hold him in custody.

So he was asked to make an assessment of the likelihood of a serious act of violence and to make an order for protective purposes. In my submission, that is, in substance, the same kind of exercise as ‑ ‑ ‑

GAGELER J: The headnote really captures the holding, does it not?

MR DONAGHUE: Following the “Held”, your Honour?

GAGELER J: The second sentence of the headnote. Yes, following the “Held”.

MR DONAGHUE: Yes. Indeed, it comes from the law establishing the New South Wales.....Court record. But in the passages ‑ I am going to take your Honours to a few passages but, in my submission, had the Court concluded that Justice Levine had not purported to exercise judicial power in that case, the Court would not have – given, of course, that a State court can exercise judicial powers and non‑judicial powers, if Justice Levine had not been exercising judicial power and had therefore been exercising some non‑judicial power conferred on the State court, his order would not have been valid until set aside ‑ ‑ ‑

GAGELER J: .....there would not have been an appeal to this Court?

MR DONAGHUE: I am so sorry, your Honour.

EDELMAN J: Even if he had been purporting to exercise judicial power and making an order in the nature of judicial power?

MR DONAGHUE: In my submission, it was important to the reasoning, as we read the judgments, of the whole Court that it was because his Honour was ‑ albeit doing so under an invalid statute but what he was purporting to do was to make a judicial order of a superior court, that that was what attracted the principle reflecting the holding that your Honour Justice Gageler has referred me to.

If your Honours go, for example, to paragraph 17 ‑ and I should say that this is – your Honours allowed the appeal from the New South Wales Court of Appeal in this case, which had felt itself compelled not to treat the order that had been made and.....aside, because it had interpreted Kable (No.1) as holding that the power that was exercised was not judicial power and it thought therefore because it could not treat it as judicial power it.....

The error that your Honours identified in that was saying, well, actually, no, Kable did not find that the power was not judicial. So in paragraph 17 – and this is in the joint reasons of six members of the Court, your Honours said:

It is, therefore, to misstate . . . the decision in Kable [No 1] to hold, as the Court of Appeal did, that in exercising power under the CP Act, “the Supreme Court was not exercising judicial power or authority and was not acting, institutionally, as a superior court”. The majority in Kable [No 1] held that the CP Act was invalid because it required the Supreme Court to exercise judicial power and act institutionally as a court, but to perform a task that was inconsistent with the maintenance . . . of the Supreme Court’s institutional integrity.

Then in developing or explaining that doctrine why the order of the superior court is valid until set aside, if one goes forward to paragraph 33 of the judgment, at the bottom of page 133, again in the joint judgment of six members of the Court:

The roots of the doctrine, that the orders of a superior court of record are valid until set aside even if made in excess of jurisdiction, lie in the nature of judicial power.

And we read your Honour Justice Gageler at paragraph 74 to similar effect, where your Honour said:

What the High Court did in Kable [No 1]is therefore consistent with the jurisdiction to make a preventive detention order, purportedly conferred on the Supreme Court by the CP Act, being judicial in character, albeit having features which . . . incompatible with Ch III ‑

GORDON J: The basic principle, you just need it otherwise in order to work out whether you have authority. Otherwise, you could not appeal to this Court.

MR DONAGHUE: Well, indeed, and that was part of the reasoning ‑ ‑ ‑

GORDON J: That is as far as it goes, is it not?

MR DONAGHUE: Well, your Honour, it is quite a long way, in my submission, because if the fact that it was possible to appeal to this Court from an order of that kind also indicates that what the Supreme Court was doing was exercising judicial power because if the Supreme Court does something.....exercises – sorry, I withdraw that. If the Supreme Court of a State exercises a non‑judicial power conferred upon that State.....and that was one of the factors that was relied upon by the Court in Kable (No 2) in explaining why the order was judicial in character.

So, I go to this – I accept, of course, that the law under which the order was made was invalid, albeit for reasons not relevant here but, in my submission, the character of the task that that law conferred, having been identified as it was, in my submission, in both judgments in Kable (No 2) as an exercise of judicial power, removes from play – and, indeed, I do not believe our friends now continue to contend, although they did, I think, contend originally in the Court of Appeal, that the power conferred by Division 105A is not judicial power.

So, but whether or not they contend that, in our submission, Kable (No 2) clearly shows that the power to order on a quia timet basis that a person be detained based on a judicial assessment of a risk of future offending in order to protect the community can be judicial power. And if that is right, then I do not think it is necessary to take the Court orally into the rather detailed submissions that have been exchanged between the parties about whether the judicial power in question was federal judicial power or not.

So, your Honour Justice Gageler in Kable (No 2) said a better view was that it was the judicial power of the Commonwealth that Justice Levine had purportedly exercised. In Kable itself Justice Gummow, Justice Toohey and Justice McHugh all thought that the power that was being exercised in that case was federal judicial power but, in the end, I do not think it matters because, in my submission, the critical question if the power conferred by Division 105A is judicial why cannot it be conferred on a federal court if the same power can be conferred on a State court, as the Court established it could be in Fardon.

What is the relevant difference between a State court exercising State jurisdiction and a State court exercising federal jurisdiction in circumstances where the power is judicial? Obviously, there would be a relevant difference if it was not judicial because then Boilermakers would say that the power cannot be conferred on the Federal Court.

But if your Honours accept that, as a matter of principle, and consistently with Kable (No 2) that what is happening in Division 105 is that judicial power is being conferred on the State court exercising federal jurisdiction, why is that not valid? In our submission, the separation of powers principle cannot explain the answer because the separation of powers principle does not limit the capacity of the Commonwealth Parliament to confer judicial power on a court. That is the one thing that the separation of powers principle clearly allows the Commonwealth Parliament to do and, in our submission, that is exactly what one sees in Division 105 consistently with normal separation of powers principles which is what I am going to come to.

Your Honour Justice Keane asked my friend this morning, what is the difference in terms of the nature and quality of State judicial power and Commonwealth judicial power, and we posed a similar question in our submissions. The answer, as we understood it, was there is a separation of powers doctrine, for the reasons I have just explained that does not explain the distinction where judicial power is conferred on a federal court or State court exercising federal jurisdiction. The other distinction, which we accept exists, is that federal judicial power, the judicial power of the Commonwealth, can be exercised only with respect to a matter, because federal judicial power must, of course, be conferred through Chapter III.

So, there is a difference ‑ to that extent, there is a difference between the two powers to the extent that the difference can be traced to the source of authority to decide, but otherwise, in our submission, the nature, quality, character of judicial power is the same throughout the Australian integrated judicial system.

So if one asks for a practical example of what would be the effect of needing to confer judicial power through Chapter III on the nature of Commonwealth judicial power, In re Judiciary and Navigation Acts provides an example, because there the Court accepted that the advisory opinion function purportedly conferred upon this Court would have involved the exercise of judicial power, but it was invalid because it did not involve a matter.

So there, matter had somewhat limited the scope of judicial power, judicial power could be conferred on a court, on a State court, to give an advisory opinion, without difficulty, cannot be conferred on a federal court. But that difference is, in my submission, modest. It perhaps explains the occasional statements in the authorities that one should not just equate State and Commonwealth judicial power, but in my submission, it would be wrong in principle ‑ leaving aside differences of the kind that I have just identified – to find that there was some difference in the nature or quality of judicial power.

It would mean, for example, that when an appeal comes to this Court under section 73 of the Constitution, the kind of judicial power your Honours are exercising would differ depending on whether the appeal was from a court exercising State jurisdiction or a court exercising federal jurisdiction. What the nature of those differences would be is not revealed by our opponents. So in their reply, at paragraphs 9 and 11, they strongly assert that there is difference, without ever identifying what that difference might be.

In Rizeq ‑ in fact, your Honours, can I ask you to turn to Rizeq, which is volume 7, tab 24. If your Honours could then go to paragraph 52, your Honours will see that there is a description in the joint judgment of five members of the Court in very classical terms of:

The essential character of judicial power –

in the second half of paragraph 52:

quelling controversies about legal rights and legal obligations through ascertainment of facts, application of law and exercise, where appropriate, of judicial discretion.

That kind of statement appears repeatedly in the decisions of this Court, and we are not aware of any of them that suggest that the essential character of judicial power is different if you are talking about State judicial power on the one hand and Commonwealth judicial power on the other. That is just not a distinction that one sees in the jurisprudence of the Court. Then, in 53, your Honour said:

The character of judicial power, as distinct from the source of the authority of a particular court to adjudicate . . . is unaffected by the source of the law that is to be applied to determine the legal rights and legal obligations ‑

Now, it is true, as our friends say in reply, that in terms that passage is talking about the source of the law to be applied rather than the source of authority to decide but on closer analysis, in our submission, that is not actually a helpful distinction because the source of the law to be applied might itself alter the source of authority to decide.

So, if the Court is asked to apply a law of the Commonwealth then that will engage 76(ii) of the Constitution and federal jurisdiction under section 39 of the Judiciary Act. If a constitutional point arises, similarly the law to be applied changes the source of the authority to decide. In our submission, while that kind of change shifts one backwards or forwards between federal jurisdiction and State jurisdiction, it has no effect at all on the character and nature or quality of the task that the Court is to engage in, so it does not provide any explanation for a difference between State and federal courts.

Perhaps a way of trying to make that concrete is to postulate to your Honours that the law upheld in Fardon was enacted in identical terms conferring jurisdiction either upon the Federal Court or upon the Supreme Court of Queensland when exercising federal jurisdiction. So, that second example is better on the Supreme Court of Queensland exercising federal jurisdiction.

So, you have the same judges in the same court under an identically worded law able in State jurisdiction to make an order for the preventive detention of a person, and according to our friends.....in the exercise of federal jurisdiction doing exactly the same things to exercise that power as part of the judicial power of the Commonwealth. In our submission, there is just no principled explanation for that difference and your Honours have not been offered one.

BELL J: Notably, you referred in Fardon to Justice McHugh’s observation as to the unremarkable quality of courts making a declaration of status and it is notable that in Attorney‑General (NT) v Emmerson six members of the court endorsed that analysis in relation to the declaration that a person has the status of being a drug trafficker for the purpose of that legislation. This is in 253 CLR 393 at 430, paragraph 57.

MR DONAGHUE: Thank you, your Honour. Yes, indeed, and it is the same analysis really that one sees in Thomas v Mowbray as well, in terms the control order was doing the same kind of thing as his Honour had referred to in Fardon. So, in our submission, the invitation that is implicitly advanced to your Honours to draw a distinction of the kind that I have just highlighted is to create in the Constitution different grades or qualities of justice between federal and State judicial power. That phrase, of course, comes from Justice Gaudron in Kable.....when her Honour said that there are no such different grades or qualities of justice but this Court had endorsed that in Wainohu and in Condon v Pompano, majorities of the Court endorsed that observation in both occasions.

Our friends say against us, well, that is just talking about no different grades or qualities of justice in the exercise of the judicial power of the Commonwealth, but with respect to our friends, that cannot be right. So in Wainohu, for example, your Honours Justice Gummow, Hayne, Crennan and Bell, after referring to the Australian integrated court system, endorsed the statement about different qualities or grades of justice in the course of explaining why a State law conferring functions on a judge persona designata should be held to the same relevant standards as would apply in a federal context.

GAGELER J: Is the consequence of that submission that Commonwealth legislation is structured in the same way as the Crimes (Serious Crime Prevention Orders) Act (NSW) upheld in Vella would be valid on the authority of Vella?

MR DONAGHUE: Yes is I think the short answer. Your Honour might recall I think I made a submission to that effect in Vella that the Commonwealth could validly enact a law of that kind. In my submission, if I understand your Honour’s judgment correctly with which Justice Gordon relevantly agreed, the main point of distinction in that case was as to the adequacy of the standard created by the legislation to govern the determination of rights, and I accept as a constitutional principle that where a court is given the function of determining as a matter of status and then creating new rights or obligations, the law pursuant to which it acts must create a sufficiently clear standard. So a law would have to jump that hurdle, but it does follow from the fact that the majority held in Vella that the law did clear that test that, in my submission, the Commonwealth could do the same thing.

GORDON J: It is odd, is it not, because, if that is right, the Fardon analysis of determining whether or not the Supreme Court is a suitable receptacle for Commonwealth judicial power does not really arise. It is a funny way to answer the question, is it not? If you are right, you would exercise a judicial power and it satisfies the other tests and therefore you would not even need to undertake that analysis.

MR DONAGHUE: It will only be an exercise of judicial power if it has on traditional separation of powers analysis the relevant features, one of which is the one I just identified to Justice Gageler, so a sufficiently clear standard. But once it involves a conferral of judicial power, in my submission, there is no relevant difference. One does not need to conduct a separate analysis to – well, I think I am accepting what your Honour says.

If our submission is correct then, once the Commonwealth Parliament is conferring judicial power on a court, there is no further inquiry that needs to be undertaken because all that Chapter III is designed to do is to ensure that nothing other than judicial power is conferred upon a court, so we comply with that limit as long as the power is appropriately characterised as judicial. But the examples your Honours are putting to me, of course, were – that really is the only question about characterisation of the power because there was no detention in custody issue so there was no question of Lim exceptions or not; it was just a matter of how is the power properly characterised.

So that takes me, your Honours, to the last part of our submissions, which is the application of normal separation of powers principles to Division 105 and our submission – this is effectively the positive case, if I can call it that, as to why one should characterise the power in that way. Our submission is that at least where the law meets three requirements, that it will form part of the judicial power of the Commonwealth. So first, it is conferred for a non‑punitive purpose. I only need that in order to bring myself within an exception in Lim, as was addressed this morning. So, first, is it conferred for a non‑punitive purpose.

Second, having regard to the features of the power, including the repository of the power, the legislative standards that it requires and the judicial process that it follows, is it properly characterised as judicial power? And third, but not controversial here, is it with respect to one of the matters identified in section 75 or 76 of the Constitution? Because obviously even judicial power cannot be conferred on a federal Court unless it falls within one of those matters, following Wakeham.

So starting with the non‑punitive purpose, if your Honours could turn to Division 105. And bearing in mind the passage in Falzon that I have already taken your Honours to, that the question is one of construction of the legislation, we start in Division 105 with the purpose – sorry, this is 105A.1:

The object of this Division is to ensure the safety and protection of the community by providing for the continuing detention of terrorist offenders who pose an unacceptable risk of committing serious Part 5.3 offences if released into the community.

So, in our submission, there is no hint of a punitive objective there. One is assessing risk if the person re‑enters the community. Moving then immediately to 105A.3, which was the subject of some argument this morning, it is of course true that it is only if a person meets the definition of a terrorist offender that an order can be made against them for their preventive detention. But that, your Honours, is, whether or not essential to validity, it is ‑ ‑ ‑

GORDON J: .....I put to you, you said to me they were not.

MR DONAGHUE: I originally said they were not, and then I said I do not need to take a position on it here, because the legislation makes it a requirement here. The reason I answered that way, your Honour, was that Justice Gummow in Fardon said – actually treated this as a factor in favour of validity and said without it there might be a question, without exploring that further.

I do not need to take your Honours down that path here, given that – but this is, in my submission, critically seen as a confinement of the power. So it recognises that the power to order continuing detention is an extraordinary power, and recognising that, limits the class of person who can be subject to the order. So it should not be, in my submission, perceived on as a punitive feature. It is confining the protective role of orders by narrowing them to people who have these characteristics.

Now, if I could take your Honours back to Fardon, where Justice Gummow discussed the significance of this kind of feature in an analysis that we respectfully endorse. In paragraph 73 and 74 of Fardon, his Honour is looking at the equivalent provisions in the Queensland Act that was in play, and this is in the course of his Honour’s reasons that result in the conclusion that, for different reasons, his Honour says the Commonwealth could not enact a regime of this kind. But he did not see any difficulty with limiting the protective regime in that way, so in paragraph 73 you will see reference to the equivalent features:

It is true that the prisoner must still be under sentence when the Attorney‑General moves under s 5 for an order . . . that detention of the appellant does not draw its authority from what was done in the sentencing of the appellant . . . The Solicitor-General, in oral submissions, correctly accepted that the Act took as the factum for its application the status or condition of the appellant as a “prisoner” . . . might have adopted some other relevant factum.

His Honour leaves aside whether another factum could have been selected, but then moves in 74 to explain that while:

the common law value expressed by the term “double jeopardy” applies not only to determination of guilt of innocence, but also to . . . punishment. However, the making of a continuing detention order with effect after expiry of the term for which the appellant was sentenced in 1989 did not punish him twice, or increase his punishment for the offences of which he had been convicted. The Act operated by reference to the appellant’s status deriving from that conviction, but then set up its own normative structure.

In our submission, that is also what one sees in Division 105A. Taking your Honours briefly back to Falzon, as well, your Honours, where the same factum had been identified as a past offence it was said ‑ ‑ ‑

EDELMAN J: Just before you move on to Falzon, in relation to this point about its own normative structure, was there an equivalent of 105A.8(1)(g) or (h) in the legislation that was being considered in Fardon?

MR DONAGHUE: Can I take that on notice, your Honour? Your Honours, Falzon, at paragraph 48 in the joint judgment of four members of the Court - the Chief Justice, Justices Bell, Keane and Edelman - your Honours referred to the fact that it had been said that cancelling the visa by reference to the past offending added to the punishment for the past offences – so it was obviously quite a different scheme there, but in the same way your Honours said:

It operates on the status of the person deriving from their conviction.

Footnote (44) is to Fardon at 74, so the same paragraphs that I just took your Honours to:

By selecting the objective facts of conviction and imprisonment, Parliament does not seek to impose an additional punishment.

Justices Gageler and Gordon at 89, in my submission, reasoned to the same effect:

The Parliament has a broad choice as to the factum . . . The need for a person to have a substantial criminal record and to be serving a full‑time custodial sentence -

because they were both requirements of the relevant automatic visa cancelation:

does not mean that the cancellation of a visa is directed to the imposition of punishment for criminal guilt. The purpose –

is to ensure the person cannot remain in the community. Justice Nettle at 93 and 94 also rejected the idea there was an increase in punishment. So, in our submission, the fact that the legislation identifies as one of the factum upon which it operates that a person is serving a sentence of imprisonment for a serious offence does not logically lead to the notion that what is happening is some punishment being imposed – additional punishment for that offence.

KIEFEL CJ: But it is not just the factum on which it operates, it is not just that the person is serving a term of imprisonment, it is rather that it is coming to an end and the question that arises is whether to release them to the community.

MR DONAGHUE: Yes, but the question that arises is then framed in terms in 105A.7 as recognising that the release of the person into the community might create an unacceptable risk of harm.

KIEFEL CJ: Yes.

MR DONAGHUE: So, it is the pending release that poses ‑ ‑ ‑

KIEFEL CJ: Is the trigger, is the real trigger?

MR DONAGHUE: Yes, and crystallises - that also crystallises the need for protection because while the person is in prison the protective purpose does not arise ‑ ‑ ‑

KIEFEL CJ: All I was really asking you to clarify was, it is not just the status of the person as one serving a term of imprisonment or even as a terrorist offender, it is both that and the potential release?

MR DONAGHUE: Yes, I accept that that was so. I was perhaps compartmentalising the regime more than I should have.

KIEFEL CJ: Yes.

GAGELER J: Mr Solicitor, could I just pick up on the way in which you answered the Chief Justice then. You said that there were three requirements that need to be satisfied for a Commonwealth law to satisfy the requirements of Chapter III in this context. The first of them you referred to as a non‑punitive purpose. In your answer to the Chief Justice, you referred, at least implicitly, to the purpose here being the mention of an unacceptable risk of harm. In other submissions, you seem to be putting it in terms of the prevention of an unacceptable risk of crime. They are not necessarily the same thing, perhaps.

MR DONAGHUE: Well, the unacceptable risk with which the section is concerned is the unacceptable risk of the person committing a serious Part 5.3 offence if released. That is the way the legislature has framed it. But, in my submission, and this may come back to your Honour’s question to my friend about looking through the offending, Parliament’s concern is, as reflected in - the object uses the same language of committing the offence - but Parliament’s concern is, in my submission, reasonably seen to be in the substantive risk of harm to the community that arises from the commission of the offence, rather than from the commission of offence viewed in isolation from that harm.

The reason that we care about the risk that someone will commit a serious terrorist offence is because of the harm that a serious terrorist offence may do to members of the community, and it is so that the unacceptable risk of offending is a precise way of identifying the kinds of future harm that this regime is designed to guard against. It delineates the behaviour by reference to the criminal offences that one finds meeting the definition of a serious Part 5.3 crime, which is, as we understand it, offences that involve, in some way, a fairly direct connection to a terrorist act, either through the commission of the terrorist act or the supporting of someone else to commit a terrorist act.

The only offences that I have been able to identify that do not meet the seven‑year maximum penalty are the association‑type offences, where there is a three‑year maximum, so being associated generally with terrorists is not enough, but if you are actually going to commit or support others to commit such an act, then the Act applies to you.

So I am endeavouring at the moment to address the question of whether, as a matter of characterisation of this provision, it should be viewed as punitive. For the reasons I have addressed, we submit the terrorist offender factum does not give it that character. Section 105A.4, which your Honour Justice Gordon mentioned this morning is, we submit, quite a strong indicator against a punitive characterisation for this regime, so you have to, by (1) treat the person:

in a way that is appropriate to his or her status as a person who is not serving a sentence of imprisonment, subject to any reasonable requirements –

to the contrary, and then:

must not be accommodated or detained in the same area or unit of the prison –

as serving prisoners, prisoners serving a sentence, unless various purposes, including what is necessary for:

rehabilitation, treatment, work, education, general socialisation or other group activities –

So, in our submission, both aspects of that provision point against the idea that what is sought to be done here is to impose some form of additional punishment. In the criteria that your Honour the Chief Justice took me to a moment ago in 105A.7, one sees the court directed to evidently forward‑looking inquiries, directed to high degree of satisfaction:

satisfied to a high degree of probability, on the basis of admissible evidence . . . an unacceptable risk of committing a serious Part 5.3 offence –

and:

satisfied that there is no other less restrictive measure –

So the court can only require ongoing detention, in effect, in circumstances where it is unable to see any other way of addressing the serious risk to society that the court is inquired to inquire into.

Now, in undertaking that forward‑looking inquiry, as your Honour Justice Edelman has pointed out, one has to have regard to the list of mandatory factors in 105A.8 and it is true that at (g) and (h) part of the forward‑looking inquiry is directed to the history of what has happened in the past, prior convictions for findings of guilt for offences, the use of a sentencing court.

One can see perhaps some illustration of how that might play out in Mr Benbrika’s circumstances himself where the convictions, as Mr Merkel said this morning, are in relation to - one of them was in relation to leading a terrorist organisation. Mr Benbrika is a risk or is said to be a risk because of the capacity of his teachings and views to radicalise others who may then commit terrorist offences rather than a risk of himself committing a terrorist act.

If one can see past conviction in relation to actions of that kind and one can point to, as I understand has been done in this case, ongoing continuing meetings with people who he is thought to be at risk of radicalising in prison then one can say looking at the past, the history of prior convictions for a particular kind of context, for a particular kind of offence, that provides some basis for my forward‑looking assessment of whether or not he stopped doing the kind of thing that led to him being imprisoned or he has continued to do things that create a risk at the time we are concerned with.

But the backward‑looking inquiry as to those past convictions is only undertaken for the purpose of asking and answering the question identified in subsection (b). It is not asked or answered for the purpose of imposing some punishment.

EDELMAN J: You accepted, I think, before lunch that the categories of prevention and punishment are not mutually exclusive. If that is so, what is it about this regime, what element of punishment is missing to characterise it as non‑punitive?

MR DONAGHUE: Your Honour, at every step in this regime, the court is looking to, in my submission, in the terms of all of these provisions, looking to what might happen to the community in the future if the person is released. That is the basic inquiry that the provisions are directed to. In my submission, that is what is missing. That inquiry is not an inquiry at all about punishing the terrorist offender to whom the regime relates. One sees it from - if one looks at some of the other factors in 105A, so mandatory considerations:

the safety and protection of the community -

the relevant expert’s report under subsection (6). That is a report about the prospect of an assessment by an expert as to the risk of future offending. The reports about other ways of managing in the community. So, if there are reasonable and practical ways of managing the offender in the community then that is a mandatory relevant matter to be taken into account in the risk assessment process not, in our submission, consistent with punishing because that suggests that if there are other ways of managing the risks then those other ways should be taken:

any treatment or rehabilitation programs –

mandatory consideration and level of compliance with them. So, in our submission, Falzon and the other cases I have mentioned in our submissions this morning do effectively recognise that where what is happening is the detention of a person in custody, that will inevitably potentially have a punitive appearance, given that that is very thing that our system of justice does in order to punish people for serious offences. But it also says that that starting point can be displaced when one can look at the legislation and see a non‑punitive objective.

So the whole question contemplates that the mere fact of being in prison is not enough to answer the question. You still have to ask why is this regime involving detention in custody, and looking at this regime, in my submission, one see a clear reason why it is not connected to punishing the offender.

KEANE J: But if there is another way of doing it, if there is another way of avoiding the risk of harm, then the court is obliged not to continue the detention, unlike a regime of punishment which someone can come along with glowing references and absolute assurance that there will be no further re‑offending. That is not a basis for a court to say, “Well, we’re not going to punish you”.

MR DONAGHUE: Precisely, and 105A.7(2) is unequivocal:

Otherwise, the Court must dismiss the application.

So if there is any less restrictive way of addressing the risk, that is the end. You cannot detain a person under this regime.

GAGELER J: Mr Solicitor, you were not involved in the case, but not so long ago we had an appeal that involved a person who had been convicted of an offence under section 102.3 of being.....terrorist organisation by reason of attempting to become an ISIS bride.

MR DONAGHUE: Right.

GAGELER J: Now, 105A.7 presumably would.....it a continuing detention order.....in circumstances where there was an unacceptable risk of this woman racing off to become an ISIS bride if she is let out of gaol. Is that the way it works?

MR DONAGHUE: And there was no other less restrictive measure that would prevent her from doing so. So it might be thought in that scenario that one would be able, by appropriate travel controls, passport cancellations, other steps of that kind, to preclude that as an option, and if that was the fear and it could be precluded by those other mechanisms, then there would be no potential to make the order.

GAGELER J: Yes ‑ ‑ ‑

MR DONAGHUE: So one possible – as the note – one recognises one possible less restrictive measure is a control order, and I understand from Mr Berger that that is actually the way that that risk has been addressed, is through a control order under Division 104 rather than under this part. So one would always need to be satisfied – I have now mentioned a couple – passport cancellations, but control orders would be an obvious possible alternative regime that one would need to direct attention to and the court would need to be satisfied that a control order is not up to the task of managing the risk in question before detention can be ordered.

BELL J: Does the risk confine itself to the risk of harm to the Australian community, or does it embrace the risk of harm more broadly?

MR DONAGHUE: Your Honour, I am inclined to think – obviously there is a question of construction there not answered, in our submission, by the definition of “the public” because obviously one is here talking about the risk to the community rather than the public. I am inclined to the view that the better reading would be the Australian community into which the person would be released, but I do not have instructions specifically on ‑ ‑ ‑

GORDON J: What about 100.4 which deals with the application of provisions to all terrorist acts and preliminary acts?

MR DONAGHUE: Yes, your Honour, but does not I think answer the question of what the community would mean. Given that one is here ‑ ‑ ‑

GORDON J: Extraterritorial provisions were identified by Mr Merkel - and I may be wrong, but I just want to make sure I am clear about it - were the definition of “terrorist act” in (c):

with the intention of:

(i) coercing, or influencing by intimidation . . . foreign country –

That was a definition of “terrorist act”, together with subsection (4) of that definition together with, as I understood it, 100.4.

MR DONAGHUE: Your Honour, as I presently understand it, none of those provisions are directed to the meaning of “the community”. They are concerned with ‑ ‑ ‑

GORDON J: No, but they may – it is a matter of statutory construction of the part. They explain clearly that it is intended to be broader than just the Australian community.

MR DONAGHUE: Well, it is certainly undoubtedly the case that the offence provisions and the risks of are concerned with risks not just to the harm the terrorist act may do here, but also in other countries. That is so. But whether or not the preventive detention regime which is focusing on, as a number of your Honours have put to me, what is the risk if the person is allowed to walk out of the gaol, that might be a narrower question and I can seek, but I do not have, instructions as to the Commonwealth view about that question.

KIEFEL CJ: Mr Solicitor, control orders have been held to be, or may be an exercise of judicial power in legislation appropriately drafted. Do you rely upon the fact that this Court has accepted that to be the case, or do you treat this as in different territory, because detention is involved?

MR DONAGHUE: No, your Honours, I most certainly do rely upon it because the tension being involved is relevant to the Lim question. If the Lim question is answered, as we submit it should be, by the conclusion that the legislation is non‑punitive, then one has an ordinary separation of powers question where the Court is being asked, based on a prediction of future risk, to make orders that affect rights.

There, in my submission, the question is basically the same as it was in Thomas answered in relation to 104. You have a statutory standard by which the Court makes a predictive assessment that affects the rights of the person concerned, following a process that very closely approximates ordinary judicial process, civil standards of proof, appeals, et cetera – and we rely on all of those factors. I am actually about to come to Thomas, but we submit that Thomas is strongly in support.....submission on this affirmative case characterised.....of the power.

GAGELER J: Mr Solicitor, while we are still, I hope, looking at section 105A.7(1)(b), are you able to say what the serious Part 5.3 offence or offences in play in the present case are alleged to be?

MR DONAGHUE: Your Honour, can I defer to Mr Berger on that question because he appears in the matter below, and I do not. So I think it is the same offence that he was convicted of, a number of possible offences.

GAGELER J: But they have been particularised. Thank you.

STEWARD J: Can I ask a related question, Mr Solicitor. What is the relationship here between the orders that are presently being sought in the Supreme Court and the orders that have already been granted in the Federal Court? Do the Federal Court orders - do they automatically come to an end if detention orders are made, or what?

MR DONAGHUE: I think, your Honour, that it is part of the case that is being advanced in the Supreme Court before Justice Tinney, that the continuing detention order should be made because the control order is not sufficient in order to address the risk. So that unless Justice Tinney is persuaded to that effect, the application in the Supreme Court will fail and the control order would ‑ - -

STEWARD J: If the application succeeds, does the control order lapse?

MR DONAGHUE: It either lapses or has no practical effect. Because in circumstances where the person is detained, it cannot bite ‑ - -

GORDON J: I do not know that is right. Under 104.5, and I think it is subsection (2AA), a control order remains in force even if the person is in custody.

MR DONAGHUE: But cannot bite.

GORDON J: But does not bite; I agree. But it does not sort of suddenly just go away.

MR DONAGHUE: No, it does not – so that if the continuing detention order goes away for some reason, the control order will still be there. Your Honours, the last features that I should mention very briefly in addressing the question of whether this regime is punitive or not are the orders about time. So Mr Merkel said on a few occasions this is a regime for indefinite detention. That is only true in the sense that it is possible under this regime to renew the application, and each order has a maximum duration of three years, and it is possible to renew, but critically, even if the order is made for three years, it must be reviewed at least annually. Your Honours see that from 105A.10, specifically (1B):

The application –

for renewal:

must be made before the end of the period of 12 months after:

(a) the order began to be in force; or ‑ ‑ ‑

after the most recent review. So even if a three‑year order is made, it gets looked at again at least every year. In addition to that, under 105A.11, the terrorist offender can seek a review if there are either new facts or circumstances or the interests of justice would otherwise require. In either case, the question that the court asks on the review is governed by 105A.12(4) and that is the same question that the court asks when originally making the order.

So in practice, at least every year the court has to go back and ask the same question that is posited by 105A.7 to satisfy itself that the unacceptable risk still exists and that there is no other less restrictive measure and the moment it is not so satisfied it must dismiss - or the order cannot continue in force. That is why we submit that, as a matter of characterisation of this regime it should not be found to be punitive and for that reason not contrary to Lim.

In terms then of the other factors that might bear on the characterisation of the power, I can deal with this quite briefly. As I have already said, we do rely upon Thomas because we submit that the regime one sees in Division 104 is relevantly very similar to the regime one sees in Division 105. So all of the analysis, excepting that Division.....judicial power is fairly readily translated.

What was important in Thomas and in our submission should not be overlooked, even though in a sense it is obvious, is that this is a power.....and the many cases forming the.....authorities, often described as the chameleon doctrine or the chameleon principle recognising a very significant factor in the characterisation of a power can be the character of the repository of the power because where Parliament confers power on a court that provides the.....that the power is to be exercised in accordance with ordinary judicial processes and standards.

We have cited many of those cases in footnote 90 of our submissions. I will not take your Honours to it, but in Thomas v Mowbray at paragraph 59 and then 95, 59 their Honours quote from Justice Kitto in Spicer and at paragraph 95 they apply the observation. Their Honours, in a part of their judgment that commands the support of a majority of the Court, because Justices Callinan and Heydon agreed with it, give significant weight to that fact. This being a power that is neither exclusively judicial or exclusively executive, the choice to repose it on the court is an important factor. The fact that the law creates new rights and obligations in accordance with the judicial standard is not in any way inconsistent with it being judicial power, for the reasons Justice McHugh gave in paragraph 34 and, as your Honour Justice Bell pointed out, were picked up in Emerson.

Your Honours most recently looked at this question in Vella. If I could ask your Honours briefly to go to Vella, it is volume 9, tab 29. If I could take your Honours first to the judgment of Justices Bell, Keane, Nettle and Edelman, starting at paragraph [57]. It is pointed out in [57] that - there is reference to:

the striking similarities –

of the regime there in question, with other preventive regimes that had been held not to infringe Kable, then in the top right‑hand column, your Honour said:

Each regime involves criteria that are necessarily imprecise, since the future is not certain, particularly in relation to the assessment of risk . . . As to the question of risk, some legislation requires a court to be satisfied that there is “an unacceptable risk” –

and then there is a footnote, footnote 82, to many such statutes, so these are various statutes applying the same risk assessment question as is used in Division 104. Your Honours then analyse quite a number - going through in sequence, quite a number of the judgments of the Court discussing standards of this kind, starting with Thomas at paragraph [58] through to [64]. We adopt all of that.

Fardon is then discussed at [65] through to [68], discussing the adequacy of the statutes and standards amongst other things, and then at paragraph [82] - skipped over, there are discussions of other cases, Condon, Wainohu, and then at [82], there is a reference to what emerged in oral argument in that case as the core complaint, which was that the Act was:

“‘not directed to any determination or order which resolves an actual or potential controversy as to existing rights or obligations’ which is the benchmark of an exercise of judicial power”.

Certainly, the respondent in written submissions in this case has said almost exactly the same thing, and that submission was said at the end of [82] to be:

contrary to history, authority and principle -

for reasons that were explained in the paragraphs that follow, including at [84], which said:

one point that emerges clearly from the decisions in Thomas v Mowbray, Fardon, Wainohu v New South Wales, and Condon v Pompano Pty Ltd . . . is that sharp distinctions should not, and cannot, be drawn between the different open‑textured criteria used to shape the judicial evaluative exercise for assessment of risk . . . It could hardly be said that this Court could, on the one hand, uphold, as valid exercises of judicial power, criteria such as “an unacceptable risk to the safety –

but reject others, and at [85] it said:

no relevant distinction can be drawn between the regime upheld in Thomas –

and that here:

Like the terrorism control order regime, the preventive order regime in the SCPO Act involves a judicial procedure for orders that affect the liberty of the subject.

Now, it may be that your Honours Justice Gageler and Gordon would disagree with that, given your Honours’ analysis of the statutory standard, but here your Honours did not disagree that Thomas was sufficiently clear to meet the relevant requirement, and in my submission Division 105A is very close to the Thomas regime, and quite far removed from the SCPO regime.

So, in our submission, it is enough for us, in characterising this power, to say that the standard that is to be applied meets the discussion that I have just referred to leading up to paragraph [84] and should not, we submit, be distinguished from Thomas. While still in Vella, your Honours will recall that in paragraphs [89] and [90], it was pointed out that there was:

nothing antithetical to the judicial process, and nothing that could impair the institutional integrity of a State Supreme Court, in open‑textured legislation that establishes broad principles to be developed and applied –

and your Honours then said at [90] it was:

unsurprising that it was not suggested in submissions that the power to make a preventive order is more naturally an executive power than a judicial power.

Now, while it was not submitted there, it does seem to have been submitted here that the criteria that govern preventive powers are less stringent when they are conferred on the Executive, rather than more stringent. That would be, we submit, a surprising state of affairs for the reasons that your Honours have explained in paragraph [90]. Your Honours expressly point out the desirability, if powers of this kind are to exist, that they be exercised by courts. We submit that that is plainly so, and that there is no reason why constitutional principle should be developed in a way where a power of a kind that might be thought to be neither exclusively judicial or executive should not be conferred judicially.

So, your Honours endorsed Chief Justice Gleeson’s remark in Thomas v Mowbray that the exercise of powers independently and partially and judicially where they affect the liberty of the subject would ordinarily be regarded as a good thing, not something to be avoided and we respectfully endorse that. Your Honours Justice Gageler and Justice Gordon made similar comments at paragraphs [158] and [159] and at [149] accepted that the power to restrict liberty based on a prediction of what a person might do was not “intrinsically” non‑judicial. As I have already submitted the difference was as to the analysis of the sufficiency of the legislative standard.

GAGELER J: Could I ask for your comment on paragraph [171] which follows on really from [149]?

MR DONAGHUE: Yes, well ‑ ‑ ‑

GAGELER J: You can be brutal if you would disagree ‑ ‑ ‑

MR DONAGHUE: Your Honour, can I agree with the second half?

Characterisation of the power as judicial ought to require at least that the criteria to be applied by the court in making the order are legislatively tailored to the achievement of a –

specific, I am not sure that I would accept “protective” but non‑punitive outcome. then in that regard there is no disagreement. I should also say in paragraph [175] as we read your Honour’s judgment, your Honour accepted that the Fardon standard was a sufficiently precise judicial “yardstick” for judicial power. So, that conclusion, in my submission, should replicate in relation to 105A.

GAGELER J: I am perhaps repeating myself and perhaps you have already addressed this, but a potentially significant distinction between the Thomas v Mowbray provisions and these provisions is that in Thomas v Mowbray the order that was permitted was reasonably necessary to protect the public from a terrorist act, an actual bombing or something that actually causes harm whereas here what is authorised is an order that is reasonably necessary to prevent a particular category of crime which can be several steps removed from any actual, physical harm to the public.

MR DONAGHUE: Your Honour, in my submission - my respectful submission is not too much should be made of that ‑ ‑ ‑

GORDON J: Sorry, could you speak up, Mr Solicitor?

MR DONAGHUE: I am sorry, your Honour. In my submission the definition of “terrorist act” and the offences that hang off that definition in Part 5.3 cover a wide range of conduct, obviously including the bombing, but including quite a lot of other conduct as well, preparatory to or planning of events of that kind, financing, other type arrangements, so that.....be made in relation to, as I understand it – not just the bombing, because if one looks at the definition of “terrorist act” it has to fall within (2) and not fall within (3). Subsection (2) includes serious harm to personal property and death, but also “serious risk to the health or safety”, serious interruption with “electronic systems”, other matters of that kind.

In both definitions, in my submission, as a matter of substance, the concern is with the underlying harm that might arise from the terrorist act and, if anything, the question of characterisation of this power as judicial or not is perhaps somewhat easier in 105A than it is in 104 because part of your Honours’ analysis in Vella, as I understand it, turned upon the fact that a control order can create a new rule whereby much conduct that would otherwise have been lawful ceases to be lawful, and the judiciary is given the task of fashioning the lines that must be drawn.

That problem is entirely absent from this regime. The court is just asking the question is there anything short of keeping you in detention that will address the relevant risk. So, it does not have a set of potential difficulties that a control order type regime has, which obviously were not fatal to validity in Thomas but are not present here. In my submission to focus on the unacceptable risk of committing the offences is a sufficiently – has a sufficiently close nexus to the underlying harm that would arise from those offences, so that there is not a need for a different analysis.

Finally, your Honours, then, in terms of the judicial process I do not think that I need to detain your Honours for any length of time. You will have noted the terms of 105A.7(3):

The AFP Minister bears the onus -

105A.13, the order can only be made following an inter partes hearing in which the rules of evidence and procedure apply. Section 105A.14, parties have an opportunity to “adduce evidence” and “make submissions”; 105A.16, the court must give “reasons”; 105A.17, there is the right of appeal.

So all of the traditional features of the judicial process are there. They are not, in my submission, distinguishable from what you saw in Fardon or in Kable, indeed – and I will not take your Honours to it, but in Kable (No 2) at 27 in the plurality reasons there is a summary of the features of the proceeding before Justice Levine that were required which emphasised the same kinds of things – inter partes, rules of evidence, examination, cross-examination, et cetera.

Chief Justice Gleeson in Thomas at paragraph 30 included a similar list, as did Justice Callinan. So all of those features, the repository being a court, the fact that the court has to follow a judicial process and the fact that it is applying a sufficiently precise standard mean that on ordinary separation of powers principles it should be held to be judicial power.

May I have a moment, your Honours. The question I took on notice for your Honour Justice Edelman, the Dangerous Prisoners (Sexual
Offenders) Act did have a relevant equivalent. It was in section 13(4)(g). So, 13(4) said that:

In deciding whether a prisoner is a serious danger to the community . . . the court must have regard to the following –

and there is a long list of factors - (g) was:

the prisoner’s antecedents and criminal history.

So, in my submission there is not a relevant distinction between the regimes.

Your Honours, on the question of costs, we see no reason why costs would not follow the event, but if your Honours are minded to refer that question to a single Justice I do not oppose that course, but we are also happy to address your Honours on the topic as the Court sees fit. If the Court pleases.

KIEFEL CJ: Thank you, Mr Solicitor. Anything in reply, Mr Merkel?

MR MERKEL: Yes. If the Court pleases, my learned friend, Mr Tran, will be replying, your Honour.

KIEFEL CJ: Would you excuse the Court a moment, Mr Tran? Mr Berger, are you in a position to answer the question that Justice Gageler put to the Solicitor about the particulars of the offences?

MR BERGER: I am, your Honour. In the plaintiff’s written outline of opening - there are no pleadings in the proceedings below in the nature of statement of claim or anything of that nature. But in our written outline of opening we contended that the defendant was at risk of committing one or more of the following offences: section 101.1, engaging in a terrorist act; 101.2, providing training connected with terrorist acts; 101.4, possessing things connected with terrorist acts; 101.5, collecting or making documents likely to facilitate terrorist acts; 101.6, doing an act in preparation for, or planning a terrorist act; 102.2, directing activities of a terrorist organisation; 102.3, membership of a terrorist organisation; 102.4, recruiting for a terrorist organisation; 102.5, providing or participating in training involving a terrorist organisation; 102.6, getting funds to, from or for a terrorist organisation; 102.7, providing support to a terrorist organisation; and 103.1 and 103.2 which are financing terrorism or a terrorist.

KIEFEL CJ: Thank you, Mr Berger. Yes, Mr Tran.

MR TRAN: If the Court pleases. The first point in reply is, in our submission, the preferable characterisation of this legislation if it is not to be seen to be punitive, which is of course our primary submission, is that it is striving to prevent crimes. It is not attempting to prevent harm. So of course there is a fine distinction between those two, but we think that the legislation falls on the side of preventing crime and the reason for that is this.

Your Honours will appreciate from R v Abdirahman‑Khalif that Part 5.3 criminalises preparatory or anticipatory acts which would not usually be regarded as criminal. Your Honours in the majority cited Lodhi, Ul-Haque and Benbrika in the Court of Appeal for that proposition.

KIEFEL CJ: Mr Tran, is there something of a difficulty in your submission in that the affliction of harm upon members of the community almost invariably involves a crime?

MR TRAN: It does, your Honour. But what we have fixed on in particular is the fact that one of the criteria for the making of this order is that essentially it is necessary to prevent a serious Part 5.3 offence. We would say that when one scrutinises those Part 5.3 offences they go beyond the actual commission of a terrorist act, for example. A good example is section 101.6 which is one of the offences that Mr Berger just referred to.

If your Honours look at – I am not sure if your Honours will have it but section 101.6 is an offence of engaging in any act in preparation for a terrorist act and it does fall into the category of a “serious Part 5.3 offence” because the maximum penalty for that is life imprisonment. That kind of offence goes well beyond criminalising conduct which would ordinarily be regarded by the criminal law as criminal and so insofar as the CDO regime seeks to prevent the commission of that offence and other preparatory acts, in our submission, it is better regarded as seeking to protect the community from the commission of crimes, serious Part 5.3 offences, rather than protecting the community from harm. I think that was one of the questions ‑ ‑ ‑

EDELMAN J: How is that different from an attempts regime? Is not the purpose of criminalising attempts to protect the community from the risk of harm and to deter attempts to commit that particular crime?

MR TRAN: It is similar to an attempt, your Honour Justice Edelman, but it goes beyond. In section 11.1 of the Criminal Code it is not an attempt in developing the conduct – was not more than merely preparatory and the purpose of Part 5.3 is to go beyond that. So, for example, in Abdirahman‑Khalif Justice Kelly in dissent in the Full Court, which was then upheld by the majority in this Court, said that taking steps to become a member went beyond and criminalised more than a mere attempt under section 11.1 to be a member.

That is the first point that we sought to make in response, I think, to questions raised by your Honour Justice Gageler to my learned leader, Mr Merkel, and to the Solicitor‑General. If the Court considers it to be relevant to ask whether or not this is seeking to protect the community from harm or alternatively, simply seeks to prevent a commission of crimes, we say the latter characterisation is preferable.

The second point I want to make, very briefly, is to address Kable (No 2) - I will be very brief, because our principle response in relation to Kable (No 2) is that this Court simply was not asked to consider, and did not decide, that the detention order regime in Kable (No 1) involved the exercise of the judicial power of the Commonwealth when Justice Levine made his Honour’s order.

So whatever else may have been said in that case, the issue that your Honours are currently presented with simply did not arise, and that case cannot, therefore, be authority against us. We have otherwise addressed it in quite some detail in writing, but like the learned Solicitor‑General, I am content to rely upon what we have said in writing.

The third point in reply, your Honours, is to return to Lim and the exceptions. So the Commonwealth’s submission is that there is an all‑encompassing exception to Lim for detention for non‑punitive purposes. The first point in response to that, we say, is that is inconsistent with Justice Gaudron’s judgment in Kruger at page 110 that the learned Solicitor‑General referred your Honours to, because Justice Gaudron did indeed criticise the joint judgment in Lim, but her Honour’s criticism was to the effect that the exceptions lack any single guiding principle. They were not clear and lacked one guiding principle.

What the Commonwealth is seeking to have your Honours do here is to endorse one underlying principle, which is that detention is permissible, subject to what they refer to as the ordinary separation of powers principles, if it is for a non‑punitive purpose, and we say that is not supported by Justice Gaudron’s critique. Nor, do we say, is it consistent with this Court’s later authorities.

In our submission, all of the cases postdating Lim can be understood as cases that fall within established exceptions within the rubric of Lim other than Thomas, but Thomas was seen to be closely analogous dividing over orders and the like, analogous to.....exception. That may raise the question why is it that the Court in each of those cases was turning its mind to whether or not the detention was punitive. We explain that in this way.

In each of those cases the starting point was that the detention was within an exceptional category. All of the immigration cases, for example, all of those are in an established category of executive detention for immigration purposes. If it were the case that detention under those regimes, despite being prima facie within an exceptional case in fact or in substance did lead to punishment then, in our submission, that would result in invalidity because even though the detention began in an exceptional case, because that detention was punitive it falls outside of the exceptional case and is invalid applying Lim. The fact that this Court in those cases inquired into whether or not the detention was punitive did not discard or do away with the necessity of identifying a relevant exceptional category within the Lim rubric.

The last point we make, your Honours, in reply is just to note the consequences if the Court were to accept the Commonwealth Solicitor‑General’s distinction between punitive and non‑punitive punishment as opposed to a distinction between punitive and protective punishment. Your Honours will recall that the Solicitor‑General suggested that the correct distinction was between punishment and non‑punishment.

If the Court were to accept that submission, in our submission, it will then actually favour the respondent. A point made by Justice Gummow in Fardon which your Honour the Chief Justice referred in Totani in paragraph 472 is that punishment is indeterminate because protection may have an element of punishment to it. For that reason, the distinction between punishment and protection may be regarded as somewhat fuzzy.

By contrast, in our submission, a purpose cannot be said to be non‑punitive if it has any punitive element. One may see, as Justice Gummow identified in Fardon, that something may look protective, even though it has a degree of punishment to it but, in my submission, it cannot be said that detention is relevantly non‑punitive if it has any punitive element to it. That is especially clear if the Commonwealth distinction is endorsed. Otherwise, your Honours, that concludes the respondent’s submissions, if the Court pleases.

KIEFEL CJ: Mr Tran, just before you sit down, could you expand a little upon this idea that an order - the question of orders for costs might be the subject of further consideration either by a single Judge or otherwise. The Solicitor‑General has submitted that costs would follow the event either way, success or not. What sort of arguments would the respondent put – what is contemplated that could not be dealt with in a judgment made on the substantive matter?

MR TRAN: Your Honour, when this matter was removed by Justice Nettle into this Court, the respondent put our written submissions to Justice Nettle that costs should be ordered under provision of Division 105A on the basis that his Honour Justice Tinney had considered appropriate to make such an order to find the defence of the CDO provision – the CDO proceeding. It is section 105A.15A, your Honours “When a terrorist offender is unable to engage a legal representative”.

In our submission, in circumstances where it was considered appropriate by the primary judge to make an order which would cover the costs of Mr Benbrika’s defence on the CDO proceeding in the Supreme Court, in circumstances where this question came to the Court of Appeal as a question arising from that very same proceeding, which question is then removed into this Court, in those circumstances, an order should also be made under 105A.15A in respect of the proceeding before this Court. May it please the Court, unless I can be of further assistance, your Honours.

KIEFEL CJ: Yes, thank you, Mr Tran. The Court reserves its decision in this matter and adjourns to 9.30 am tomorrow.

AT 3.35 PM THE MATTER WAS ADJOURNED