Garlett v The State of Western Australia & Anor [2022] HCATrans 28 (11 March 2022)

Last Updated: 18 March 2022

[2022] HCATrans 028

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Perth No P56 of 2021

B e t w e e n -

PETER ROBERT GARLETT

Appellant

and

THE STATE OF WESTERN AUSTRALIA

First Respondent

THE ATTORNEY‑GENERAL FOR THE STATE OF WESTERN AUSTRALIA

Second Respondent

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

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON FRIDAY, 11 MARCH 2022, AT 9.45 AM

(Continued from 10/3/22)

Copyright in the High Court of Australia
KIEFEL CJ: Yes, Mr Donaldson.

MR DONALDSON: If your Honours please. Could I deal with ‑ ‑ ‑

KIEFEL CJ: Sorry, Mr Donaldson, before you proceed I should say that the Court will sit until 1 o’clock - will have its morning break but will sit until 1 o’clock and resume at 1.45 in an attempt to give the parties a little more time, but the Court will rise at 4.00 pm and if all the addresses are not completed, the matter will stand adjourned. That is not to require anyone not to make the points that they wish to make, but that is just the reality of having a number of interveners as well as lengthy addresses. Yes, Mr Donaldson.

MR DONALDSON: Thank you, your Honour. Can I respond to three matters before continuing along the road as yesterday. Justice Gordon asked me a question concerning section 82 of the Act and what, I think, really, what the effect of section 82(1) might be. As best – I think it relates to this, your Honour, that there are various other parts of legislation in the Western Australian statute book dealing with what are referred to as criminal proceedings. They have certain effects. An example is, under the Criminal Investigation Act (WA), evidence obtained improperly is not admissible in a criminal proceeding, other than with exceptions, and there are other things such as in the Evidence Act there is a provision, for instance, that the court can bring up a prisoner in a criminal proceeding.

My answer was rather glib yesterday, but I think subsection (1) probably is intended to incorporate provisions such as that. It is likely to be a bit more complicated than that in the sense that there are many other circumstances of criminal proceedings being referred to in various legislation that would obviously not be picked up, but one expects that it is really provisions like that it is intended to deal with.

Your Honour Justice Edelman raised an issue with me that I asked to have an opportunity to think about overnight. The observation and suggestion that your Honour has made is that the declaration that we seek would be more appropriately expressed in the following way, and if your Honours have the – it is at the back of our submissions at page 20, amongst other places, but it is c, and so – and this, I think, was your Honour’s suggestion yesterday, the words in the second line starting:

a serious offender under custodial sentence who has been convicted of the offence of robbery as referred to in –

be deleted ‑ ‑ ‑

GORDON J: Sorry, could you just repeat what is being deleted - I missed that, Mr Donaldson.

MR DONALDSON: Yes, starting at, in the second line “a serious offender” all the way through to “as referred to in” on the next line. So, the declaration that is sought is that the Act is invalid insofar as it applies, item 34 of Schedule 1 of the Act.

EDELMAN J: It is not really a question of the application of the Act. It is really that item 34 is invalid, is it not?

MR DONALDSON: Well, I would say that that is to the same effect, your Honour, as that, but alternatively.....declare that the court declare that item 34 of Schedule 1 of the Act is invalid. It is the same effect as it is done with the deletion of those words, your Honour. Your Honour the Chief Justice asked some questions in relation to the similarities or differences between the legislation which is before your Honours in this matter and the legislation in Fardon. Your Honours may have received some documents that have come in overnight from others that have prepared schedules and the like in relation to those matters.

But could I perhaps deal with this as quickly as I might by – and without taking your Honours, necessarily, to each of the provisions in either Act and say this to your Honours. There is no equivalent in the Queensland legislation to section 4 of the WA Act, which is the definition that I took your Honours to yesterday. There is no equivalent in the Queensland Act, or was no equivalent in the Queensland Act to section 6 of the Western Australian Act, and that, your Honours will see, when your Honours reflect on this, has an effect on section 30(2)(f).

When reference is made to a person committing an offence, it does not matter whether the person would ever be charged or convicted of the offence. So, there was no equivalent of that in Fardon. There is no equivalent of section 7(4) in the Fardon legislation. I will have to leave your Honours to perhaps look at that in due course. In relation to section 8 of the WA Act with the expression of the purposes or the object ‑ ‑ ‑

KIEFEL CJ: I am sorry, where are you?

MR DONALDSON: In section 8(a), in the ‑ ‑ ‑

KIEFEL CJ: You have gone through section 7.

MR DONALDSON: Section 7(4). Sorry, your Honour. I was just going to say there is no equivalent of section 7(4); there was no equivalent of section 7(4) in ‑ ‑ ‑

KIEFEL CJ: The onus provisions are the same?

MR DONALDSON: Yes, your Honour.

KIEFEL CJ: Section 7(2) and 13(7) ‑ ‑ ‑

MR DONALDSON: Yes.

KIEFEL CJ: Yes.

MR DONALDSON: In section 8(a), in relation to that object, there was no equivalent in the Queensland Act of victims of serious offences, so it was simply to provide detention to ensure adequate protection of the community. In the Fardon legislation – again, this is not particularly significant – there was no equivalent to certain of the standard conditions, although in Fardon legislation there was the concept of standard conditions on a superficial order. But the conditions of the Western Australian Act in 31 and 32 dealing with electronic monitoring and curfew were not present in the Queensland legislation.

The provision I took your Honours to yesterday in section 69(3) dealing with the rights of appeal was not in the Fardon legislation, the Fardon legislation simply providing in section 1 for a right of appeal. There was no equivalent in the Fardon legislation to section 80 – section 80 provides that it is an offence to contravene a supervision order, and that is a standalone separate offence for which there is a term of imprisonment that can be ordered. So, there is no equivalent to that, although in the Fardon legislation the Court had a power to make further orders, including implementation of a detention order, but there was no equivalent provision to section 80.

In section 84(5) of the Western Australian Act, which is a provision dealing with evidence in hearings, and the matters that are referred to there in subsection (5), no equivalent existed in the Fardon legislation, and so, again, it expands the scope of the material that is available to report under this Act that was not available under the Fardon legislation.

There was no equivalent to sections 41 and 42 which I took your Honours yesterday dealing with the obligations of disclosure by an accused – sorry, by the subject of an application. So, sections 41 and 42 were not in the Fardon legislation. But can I say this to your Honours. Section 41(1), dealing with the offender’s duty to disclose expert evidence material, that is a provision which exists in the Criminal Procedure Act (WA) in relation to criminal prosecutions.

KIEFEL CJ: It is a procedural provision in relation to the preliminary hearing, is it not?

MR DONALDSON: It is a provision which imposes an obligation upon the offender to provide or to disclose expert evidence material as defined.

KIEFEL CJ: That is going to be relied upon at the hearing.

MR DONALDSON: Yes – in relation to an expert who is intended to be called.

KIEFEL CJ: Yes.

MR DONALDSON: Yes. So, although that did not exist in the Fardon legislation, I am simply saying to your Honours that provision exists now rather more generally in relation to criminal prosecutions in Western Australia, in any event. So, that is not an extraordinary rule. It is not a unique provision to this legislation.

KIEFEL CJ: But what do all the differences add up to?

MR DONALDSON: I think your Honour was ‑ ‑ ‑

KIEFEL CJ: I am sorry, if you have not finished.

MR DONALDSON: ‑ ‑ ‑ wanting a catalogue. None of those are in a sense overwhelmingly, your Honours, important in the grand scheme of things. Can I simply say, in our respectful submission, the two most substantial differences between the Fardon legislation and the Western Australian Act is the operation of section 29 – that is, that under Fardon legislation, if a determination was made under section 13 as to a risk of – that is, that the court was satisfied that the prisoner was a serious danger to the community in the absence of an order being made – that is, that there would be an unacceptable risk that the prisoner would commit a serious sexual offence if released - that was the provision that was dealt with in Fardon - there was no burden on an accused to establish that if a supervision order was made that the supervision order would be complied with substantially or not. The Court had ‑ ‑ ‑

EDELMAN J: There is one other difference, Mr Donaldson, that you have not referred to, which is in section 48. The opening words include it “must”. The Fardon legislation was made – which a majority of the Court had interpreted to ‑ ‑ ‑

MR DONALDSON: As “must”.

EDELMAN J: ‑ ‑ ‑to be discretion. That is a fairly substantial difference.

MR DONALDSON: Yes, your Honour is right. So, there was a discretion on the Court in relation to the making of an order and also a discretion in the Court as to whether the order would be for continuing detention or in relation to a ‑ ‑ ‑

GORDON J: Can I raise three other questions just so I understand whether this is part of your case as well? So, in addition to Justice Edelman’s reference to section 48 – as compared to Fardon being discretionary and this appearing to be mandatory – do you also rely upon a fact that the nature and narrow category of offence in Fardon was much narrower than that which is here?

MR DONALDSON: I was just about to say the final point of substantial – I said there were two substantial differences.

GORDON J: Yes.

MR DONALDSON: The second of those, your Honour, is that in Fardon legislation, it related to an obviously much narrower range of offences and they were serious sexual offences. They were defined – again, for the purpose of the Act – as offence of a sexual nature involving violence or against children.

GORDON J: So, does that mean there are three points? Just so I am clear about what are the three primary matters you rely upon - one is the onus point, the second is the discretionary versus the mandatory point and then the third is the extent to which you have identification of the underlying conduct to which the provisions are to relate.

MR DONALDSON: Correct.

STEWARD J: Mr Donaldson, just to complete the shopping list – and going the other way – is there an equivalent to this Act to what is section 13(6)(b) of the Dangerous Prisoners (Sexual Offenders) Act which provides that, in deciding whether to make an order, the court must consider whether adequate protection of the community can be reasonably and practically managed by a supervision order.

MR DONALDSON: I think your Honour must be looking at the – is your Honour look at a recent ‑ ‑ ‑

STEWARD J: It may be that it has been put into the Act, I do not know.

MR DONALDSON: Yes, I think that is a recent iteration.

STEWARD J: Okay. It was not before – it was not in the version before the Court in Fardon.

MR DONALDSON: No, the version which was before the Court does not include that provision, your Honour.

STEWARD J: Thank you.

EDELMAN J: That would be effectively included by implication in the earlier version by having a discretion – in decisions such as Chester this Court said that before a court imposes imprisonment or particularly a term of continuing imprisonment it ought to be a measure of last resort.

MR DONALDSON: Yes. So it might have been thought it was implicit and that is when one has regard to the effect of section 29 that would seem to be different to the result that was reached in Chester.

KIEFEL CJ: Mr Donaldson, would I be wrong in inferring from your written submissions that your principle that you placed emphasis upon, the difference being the narrower range of offences and the extension under the West Australian Act to the offence of robbery?

MR DONALDSON: That is critical, your Honour, to the submissions that we will be – and the articulation of the principle that we say should guide the Court here, that is, it is centrally premised upon what we will seek to convince your Honours is a real difference between the offence of robbery and the offences that were dealt with in Fardon and the offences that were dealt with or the subject of Benbrika also.

Your Honours, can I then deal with the matter that I commenced on yesterday. It is put against us by all of the parties who oppose us that, in effect, the orders that we seek and the application of the Kable principle to this legislation is foreclosed by the decisions of this Court in Fardon and ‑ ‑ ‑

KIEFEL CJ: Just before you go to those decisions, can you summarise what you say the effect of the three principal matters that you point to, how they work to affect the integrity, institutional integrity, of the Court?

MR DONALDSON: Your Honour, could I perhaps do it this way? I will, obviously, be answering your Honour’s question but I was hoping to do so after just quickly dealing with Fardon and Benbrika, if your Honour permits me to do so.

KIEFEL CJ: Very well. Yes, of course.

MR DONALDSON: So what is put against us, your Honours, is that this appeal must fail because those two decisions in Fardon and Benbrika are authority for the proposition that legislation that empowers detention will be valid if the purpose of detention is protective or preventive, and it is put that that is what has been determined in those two decisions. I will take your Honours to both of those to seek to establish that that is not so.

In relation to Fardon, your Honours, we have said a deal about Fardon in our written submissions but having regard to various considerations if I could deal quickly with Fardon and go centrally to the issues in Fardon. In the judgment of the Chief Justice, could I deal with paragraph 20, and if your Honours are off the bundle it is at page 855 in volume 4. So the Chief Justice there says:

It might be thought that, by conferring the powers in question on the Supreme Court of Queensland, the Queensland Parliament was attempting to ensure that the powers would be exercised independently, impartially, and judicially. Unless it can be said that there is something inherent in the making of an order for preventive, as distinct from punitive, detention that compromises the institutional integrity of a court, then it is hard to see the foundation for the appellant’s argument.

What we will be putting in what we say is a principal development of the Kable principle is that what his Honour states there should not be accepted because such an observation would be incorrect, with respect, if detention is a disproportionate response to a risk which the order seeks to protect. So, although there may be nothing necessarily inherently invalid in the making of preventive orders, that an order is characterised as preventive – as we will seek to demonstrate – is not the sole or entire question.

Could I ask your Honours then to turn to Justice McHugh’s judgment at paragraph 34. Again, as your Honours know, Fardon – and Justice Gummow, in particular in Fardon, dealt in some detail with the question of whether the Queensland legislation could have been valid had it been a Commonwealth Act, so dealt with a pure judicial power question because that issue was put by the Commonwealth in that case and no doubt was put because it would have founded a contention that if this could be validly done by a Federal Court the Kable doctrine could not necessarily be invoked.

So, Justice Gummow dealt substantively in some detail with that particular contention. None other of the judges who sat in that case did so. Justice Hayne expressly reserved his view in relation to that, the Chief Justice did not deal with it, Justice Kirby agreed with Justice Gummow, and Justices Callinan and Heydon did not really deal with that particular contention either. It is said that Justice McHugh - it was said by those who oppose us that Justice McHugh dealt with that, and his Honour determined that preventive orders per se would be a valid exercise of judicial power and additionally did not attract the Kable principle.

What is relied upon for that submission is paragraph 34 of his Honour’s judgment, and it is really a sentence in his Honour’s judgment that is relied upon. If your Honours look at this paragraph, the relevant provisions of the Act are set out in Justice Gummow’s reasons:

The differences between the legislation considered in Kable and the Act are substantial.

Sorry, it is really further down a couple of lines, where his Honour says:

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

So, it is said, well, what that is to be understood to mean is his Honour saying for the purpose of Chapter III that would be the exercise - a valid exercise of the judicial power by a Chapter III court. But one suspects that really what his Honour is referring to there when saying he is exercising a judicial power is ‑ ‑ ‑

GORDON J: No, it is what follows, is it not?

MR DONALDSON: That is right.

GORDON J: He sets out the indicia, which we all know is the concept of judicial power cannot be exhaustively determined. He identifies the characteristics of the legislation that gives rise to him forming that conclusion. Is it not the matters that you raise show that this legislation here is different in a number of respects?

MR DONALDSON: Different in a number of respects, your Honour, and again, it is – the purpose of me taking you this paragraph is to say it just makes too much of that single sentence to say preventive legislation, or legislation with a preventive or protective purpose, necessarily is an exercise of judicial power, which is really the proposition which is put against us.

EDELMAN J: That is not necessarily inconsistent with your submissions. I mean, your submissions can say that the exercise of powers under the High Risk Serious Offenders Act involves an exercise of judicial power, but also to say that that exercise of judicial power is in such a manner that it requires the courts to exercise it so injudicially as to be invalid.

MR DONALDSON: So, your Honour, exactly. If, in the notion of judicial power it is referred to essentially with a division between means and ends squarely in mind, and I think that is what Justice McHugh is actually referring to here, that is, the normal indicia of the exercise by a court of its power exists in this particular legislation, rather than anything more broad than that. Could I then take ‑ ‑ ‑

GORDON J: If you took your three indicia about complaint in this Act, and you looked at it, the first one deals with the nature – the first proposition identified by Justice McHugh deals with the narrow nature of the offences the subject of the challenge.

MR DONALDSON: Yes.

GORDON J: The second deals with rules of evidence. Here, as I think you submitted yesterday, as I understood your submission, we are not bound by the rules of evidence, they are subject to adjustment in the way in which you described, and so on. Is that the way you put it? In other words, that identifies the process – to take up what Justice Edelman put to you, you can accept what is set out there, but use it, as I understand your argument, as an explanation as to why this is different.

MR DONALDSON: Yes, there are differences but, your Honour, I think it would be fair to say that the simple departure from the manner in which a court would deal with a criminal prosecution in a process for preventive detention does not necessarily render it invalid. There can be differences and variations from that.

It is really – as a matter of substance – or as a matter of ends – the real difference between this legislation and Fardon is the narrow scope of the operation of Fardon, and the relationship between the consequence of detention and that narrow field of offending, on the one hand, and as regards means, your Honour, well, there are differences in this legislation and the Fardon legislation, and particularly, as it were, the reversal of the onus of proof in relation to the supervision order in section 29. Your Honours I am on a very tight timeframe, I regret to say ‑ ‑ ‑

KIEFEL CJ: You should not feel that – it is important that you put the argument that you feel you need to for your client.

MR DONALDSON: Grateful to your Honour. Could I then ask your Honours to turn to Justice Gummow’s judgment, and Justice Gummow did deal with the issue of judicial power at some length, and of course your Honour Justice Gageler in Benbrika dealt in great detail with his Honour’s judgment in that respect.

GAGELER J: Do you disagree with my analysis in any way? If you do, it would be helpful for me to know.

MR DONALDSON: Your Honour, to the extent that the criticism of Justice Gummow’s judgment was that – can I perhaps deal with this – I was going to go to your Honour’s judgment in Benbrika in a moment or two ‑ ‑ ‑

GAGELER J: That is fine. There was a disagreement about terminology.

MR DONALDSON: Yes, I think that is right. But I will deal with that, if I might, your Honour.

GAGELER J: Thank you.

MR DONALDSON: So, at paragraph 83 of Justice Gummow’s judgment, if I can take your Honours to that. His Honour says there:

Preventative detention regimes attached by legislation to the curial sentencing process upon conviction have a long history in common law countries.

Can I just make this observation, your Honour, that in the joint judgment in Benbrika at paragraph 33 there is a sort of paraphrasing of what his Honour says there, but what his Honour is referring to there is not preventive detention per se, but his Honour is referring specifically to preventive detention regimes attached by – that are part of the sentencing process. So his Honour says, well, these have been around for a while. Then his Honour goes on to say:

It may be accepted that the list of exceptions to which reference was made in Lim is not closed.

So, his Honour, as we dealt with yesterday, defined judicial power which is at paragraph 80, and then referred to the exceptions to Lim, and stated that the exceptions are not closed.

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

His Honour is saying preventive detention per se is not a new or exceptional case, 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. Again, what his Honour is saying there is that, certainly in relation to judicial power, and we would say relevant matters also to the determination of Kable, detention of the mentally ill – which was one of the exceptions that was set down in Lim – does not, as it were, provide a springboard for “any form of preventive detention is a valid exercise of judicial power”. In fact, his Honour is saying, really, quite the opposite.

What was the gravamen of his Honour’s determination that the legislation in Fardon would have contravened Chapter III had it been the Commonwealth Act is really his Honour’s emphasis in paragraph 84 upon the detention by reason of apprehended conduct, and it is really that focus of his Honour’s judgment with which your Honour, I think, disagreed in Benbrika.

It must be said, with respect, that there are many instances – with respect to Justice Gummow – there are many instances of valid exercise of judicial power that respond to apprehended conduct as opposed to past conduct. But, in any event, the fact that this Act deals with apprehended conduct and not punishment for past conduct is not, we say, the matter which gives rise to its invalidity.

If I can take your Honours to paragraph 90 – so, that was really the extent to which his Honour dealt with federal judicial power – and there is nothing – they are the principal paragraphs in which his Honour deals with the notion of judicial power – or pure judicial power, if I can put it that way. There is nothing, in our submission, to be taken from that – that a preventive regime is per se the exercise of a judicial power, or preventive detention regime.

His Honour then went on to deal with the Kable principle separately from that, and obviously on the basis that this would not have been a valid exercise of judicial power, therefore the Kable question was squarely invoked. His Honour’s consideration of these matters is perhaps best summed up, unsurprisingly, on his Honour’s conclusions at 106 – and the reason why his Honour determined in that case that the Kable principle was not invoked or excited could be seen at 106:

the making of a continuing detention order under s 13, could not be attained in the exercise of federal jurisdiction by any court of a State, this circumstance itself cannot dictate a conclusion of repugnancy and incompatibility -

Now, again, we do not disagree with that plainly – we spent some time in our written submissions anyway dealing with the pure judicial power question. That is not to say, well, if it is not a valid judicial power, therefore Kable does not apply. That is to show, if it were a valid exercise of judicial power, that would have more or less foreclosed the Kable challenge, and it does not. So, there is nothing particularly controversial about that. Then, at 107, his Honour says:

On the other hand, the particular preventative detention regime established by the Act cannot be said to bestow upon the Supreme Court a function which “is an integral part of, or is closely connected with, the functions of the Legislature or the Executive Government”.

That would be similar to a case like Totani, where really the courts were enlisted to fulfil an executive direction – and that is, again, not this case, nor is it Fardon. His Honour says:

Rather, the regime is sui generis in nature. That, other things being equal, supports the case by the respondent that no incompatibility in the necessary sense is to be found.

Can I just make this observation in relation to that, your Honours. With respect to his Honour, if a court by legislation is being asked to undertake tasks that are sui generis or have never been performed by courts in the past, we would say rather than that point to the Kable principle not being excited, it rather points in the opposite direction. What is incompatible with the institutional integrity of the court, and what affects public confidence in the administration of justice by a court is by courts doing things that courts have never historically done.

KIEFEL CJ: Mr Donaldson, are you challenging Fardon?

MR DONALDSON: No.

KIEFEL CJ: We seem to be going through to the judgments and you pointing out that there is a fundamental problem with each of them.

MR DONALDSON: I am seeking to really – in my analysis of these judgments in Fardon - do no more than say Fardon does not stand as authority for the proposition that a preventive detention regime that has a protective purpose is necessarily judicial or necessarily could never give rise to the application of the Kable doctrine. We say Fardon does not decide that – and we say nor does Benbrika, to which I will now turn, if I might, your Honours.

Perhaps, before doing so, only to make this observation, at paragraph 234, in the joint judgment of Justices Callinan and Hayne – and this is in their Honours’ conclusion – it deals only with Kable, it is important, in our submission, to just note this. Their Honours say:

The Act does not offend against the principle for which Kable stands. It is designed to achieve a legitimate, preventative, non‑punitive purpose –

So their Honours look at what the purpose of the Act is. It is a legitimate purpose, in this case it is preventive, so:

It is designed to achieve a legitimate, preventative, non‑punitive purpose in the public interest –

So, to protect the public:

and to achieve it with due regard to a full and conventional judicial process –

So their Honours are referring there to what is the object of the legislative scheme, and how is that legislative scheme to be implemented and it is – although it does not expressly state so, it is the first step, as it were, in some sort of proportionality‑type analysis between determining whether, using this example, detention is a proportionate means of achieving the objects which their Honours there identify. But it would be wrong to say that their Honours embark upon that process.

Can I then take your Honours to Benbrika, because again, your Honours, what is put against us in Benbrika is that paragraph [36] of the joint judgment forecloses this appeal. Consideration of the joint judgment in relation to or leading up to [36] really requires consideration of what went before. That was a case, of course, that was not determined on Kable grounds because of the nature of the legislation being Commonwealth legislation, and the particular submissions that were before the Court were put in a particular way. That is to be seen commencing at paragraph 28, and that is in volume 8 at page 2581, volume 8 of the bundle.

So again, in that case the contention was whether the particular legislation there was a valid exercise of judicial power because it fell within one of the exceptions identified in Lim, and then at [29], that notion is, or that contention is addressed. It refers to the joint judgment in Lim, acknowledging that:

there are exceptions . . . Mr Benbrika’s case that the exceptions identified in Lim . . . all pre‑date federation and are to be taken to have –

they essentially froze at that time. That particular contention was rejected. The observation is made at [30], which again is important, that what was central before the Court and being considered by the Court was legislation, the purpose of which was protection of:

the community against the unacceptable risk of harm posed by a terrorist offender.

That is, in effect, by terrorist offences. This was not some broad‑ranging legislation dealing with a wide range of offences. It was legislation similar in a sense to Fardon that focused upon a narrow group of offences. So when we come to [36], that is to be read having regard to the observation that was made at [30], and then enhanced again at [32] where your Honours in the majority noted:

It may be observed that the exceptions to the Lim principle involving the involuntary detention of those suffering from mental illness or infectious disease share a purpose of protection of the community from harm.

Well, that is correct, and then it is said:

His Honour –

and that is Justice Gummow in Fardon:

did not explain why an appropriately tailored scheme for the protection of the community from the harm that particular forms of criminal activity may pose is incapable of coming within an analogous exception.

Again, the emphasis in this passage is upon particular forms of criminal activity, not, as it were, a wide‑ranging class of criminal activity.

KIEFEL CJ: Could I ask you, Mr Donaldson, in relation to the Schedule 1 offences in the West Australian Act, is it your submission that most of them are of the – nature would fall within the protective type of offence with which Fardon was concerned, but that some have a disconnect in their protective purpose?

MR DONALDSON: Yes.

KIEFEL CJ: You would not say the whole of Schedule 1 – it is just some offences have a disconnect?

MR DONALDSON: No, that is why this is only an appeal in relation to section 32. Yes.

KIEFEL CJ: So, Schedule 1 might have to – there might be some offences which have to be excluded from its proper operation.

MR DONALDSON: Yes.

KIEFEL CJ: In relation to robbery, do you say there is no proper protective purpose to the community and, if so, how?

MR DONALDSON: We do not say that there is no protective purpose in relation to robbery. What we ultimately say in relation to that, your Honour, is that for the legislation to be valid there needs to be proportion between the means that are provided for in the Act to achieve that protective purpose in relation to robbery.

KIEFEL CJ: But does any authority have that requirement?

MR DONALDSON: No. What we seek in this appeal to advance is a principled expansion of Kable to deal with preventive detention that explains the result in Fardon and would explain the result in Benbrika as well. What we would be putting to your Honours as a principled expansion of the categories of case in which the Kable doctrine is attracted is where, in relation to preventive detention regimes, detention is a disproportionate response to the purpose or the object of protecting the community from particular types of criminal activity or offending.

KIEFEL CJ: You are really saying that the regime should be limited to supervision orders – in every case?

MR DONALDSON: No, we could not quibble supervision orders in relation to robbery – we do not. But it is detention. Nor would we necessarily quibble – although it is not before your Honours – with, say, a supervision regime in relation to certain arson offences or procuring prostitution.

KIEFEL CJ: But would not the need to protect depend upon the circumstances of a particular case? In some cases a restriction order might be necessary - in relation to robbery. In other cases a supervision order would be sufficient.

MR DONALDSON: No. In our submission, your Honour, in relation to robbery detention will always and necessarily be a disproportionate response because there are practical effective alternatives to detention that give effect to the object of protecting the community from robbery that protect the freedom that is deprived or denied by detention or incarceration.

KIEFEL CJ: You are in a sense applying sentencing principles to Kable, are you not?

MR DONALDSON: Well, I was more really seeking to invoke into this process a well-understood principle on dealing with limitations upon legislative power and the constitutional arrangement of cases – the freedom of political communication cases, for instance, and the recent analysis of section 92 in the Palmer case of course deals with the same notions.

GAGELER J: Rather than putting your submission in terms of an expansion of any doctrine, perhaps another way of looking at it is as an explanation of what amounts to a – for protective detention within the exception in Lim, as I understand it, to characterise detention as protective, one looks at the purpose, but also looks at the means by which that purpose is sought to be achieved by this law and it is in the combination of those two considerations that one arrives at a characterisation as protective or not.

MR DONALDSON: Within that, is there an alternative to the means that are being adopted to effect the purpose, short of detention?

GORDON J: Or put in different terms, to adopt the language it sets out in 32, is there an appropriately tailored scheme?

MR DONALDSON: Yes.

GORDON J: The answer is either yes or no, the combination is as Justice Gageler has put to you, of those two elements.

MR DONALDSON: Relevant to an appropriately‑tailored scheme, your Honour, is, is there a scheme that is efficacious, or a reasonable efficacious alternative that gives effect to the same purpose without the deprivation of liberty that is associated with detention? In some cases, your Honour, we would not quibble with the notion that detention could and would be a proportionate response, and we would not quibble with the notion that Fardon - we do not seek to reopen Fardon. We would say that Fardon is such a case, because Fardon dealt with serious sexual offences. They were sexual offences involving violence or any sexual offence involving children.

Now, because of the nature of the offence, the seriousness of the offence, and the vulnerability of future victims to such offending, we would accept that detention would be a proportionate, or could be a proportionate response to that. It is not to say every such case would give rise to detention. There would be many cases that would be dealt with by supervision orders, but ‑ ‑ ‑

KIEFEL CJ: There is going to be a range in robbery, too, is there not? Robbery, as we said yesterday, and you took us to the definition, involves threats of violence. It can involve home invasions. I mean, there is a level of seriousness that – robbery comprehends a range of offences, and there will surely be, somewhere, a detention order, a continuing detention order may not be appropriate and supervision is, but it is impossible to say, without knowing the circumstances of the particular case where it would lie.

MR DONALDSON: With respect, we disagree for this reason. A suitably‑framed suite of orders that restricted the freedom of a person, short of detention, could deal with any such circumstance, with respect. So, for instance, a curfew that was monitored, regular drug testing to deal with the issue which your Honour raised yesterday, living in a particular location, reporting regularly to police, wearing an ankle bracelet that could be monitored – I mean, it is ‑ ‑ ‑

GLEESON J: But why could not the same thing be said about a determined sexual offender?

MR DONALDSON: We say, your Honour, because of the – really, the vulnerability of victims of serious sexual offending. It is different to the offence in 392 because there it is:

uses or threatens to use violence –

but in that case, your Honour, the nature of the consequence to a victim, of course it is violent ‑ ‑ ‑

GLEESON J: I suppose you cannot – the goal is to provide adequate protection.

MR DONALDSON: Yes.

KEANE J: Surely it is not a question for the Court to decide what level of harm is acceptable or not. Surely that is a question for the legislature.

MR DONALDSON: Well, I respond to your Honour in ‑ ‑ ‑

KEANE J: How can the level of harm be required to be prescribed as a condition for the validity of a regime designed to prevent harm?

MR DONALDSON: Because it is – well, certainly the authorities that I have taken your Honour to do deal with harm, refer to harm of particular kinds, so it is what has been stated in previous judgments, but ‑ ‑ ‑

KEANE J: Yes, they deal with – they are cases where the legislature has responded to the need to provide for protection against harm that the legislature has considered to be so grave as to warrant the establishment of such a regime. But where does the court - where does it become a matter for the judgment of a court to say this level of harm is not sufficient to justify the existence of such a regime? On what basis does a court make that kind of judgment?

MR DONALDSON: Well, courts make judgments of that nicety every day of the week, your Honour.

KEANE J: In the course of a sentencing process – quite.

MR DONALDSON: Yes. But, your Honour, if I could perhaps answer or respond to your question rhetorically. Let us assume that strapped on the back of this legislation was every offence that existed in the West Australia statute book – trivial ‑ ‑ ‑

KEANE J: Because the mechanism in section 7 – and it either does this job or it does not – but because you have a mechanism in section 7 where a judge is required to make an assessment on the facts of a particular case, it is undoubtedly true to say that in many cases of robbery the identification of the proclivity to further harm – proclivity to cause further harm – a judge would say, well, I do not see there is that proclivity.

But in the case of someone who is an intravenous drug user, for example, who, when released from custody, goes and commits offences almost immediately, no doubt – let us not say no doubt – goes and commits offences because they want to get some money to buy some more methylamphetamine – in the circumstances of such a case it is not hard to see that a judge can say that there was a likelihood of further armed robberies occurring.

MR DONALDSON: Unless the person is subject to a supervision regime.

KEANE J: Yes. Yes, but we are talking here about can you have a regime at all.

MR DONALDSON: Yes, we are, your Honour, quite so. We are saying, in relation to this offence ‑ ‑ ‑

KEANE J: You are saying in relation to this offence there cannot be a case in any circumstances where it is constitutionally acceptable for the Parliament to say that there are examples of this kind of offence where the circumstances of the offender may be such that there is an unacceptable risk of harm to the community.

MR DONALDSON: No, with respect, I think that misstates the inquiry, with respect. We would say that in relation to this specific offence the response of detention is not a proportionate response to the risk posed by this kind of offending when there is a ready and efficacious alternative to detention that will give effect to that purpose.

KEANE J: Whether that is so or not depends upon an assessment by the court?

MR DONALDSON: Yes, that is right.

KEANE J: So that the assessment by the Court is the mechanism – not only the mechanism by which the regime works, it is also the guarantor of its constitutionality.

MR DONALDSON: Yes, but, your Honour – yes, but that is the case with every implementation of a proportionality – even structured proportionality type analysis, that is, the court makes a judgment as to whether the means that have been chosen to give effect to the statutory purpose are proportionate, and that requires the court to determine whether there are appropriate alternatives that could effect the purpose without the deprivation of liberty. That is a decision that this Court makes in every – Lange Case, makes in section 92 cases.

KEANE J: We are in furious agreement that that judgment is a perfectly orthodox judicial judgment.

MR DONALDSON: Yes, and we are seeking to develop or explain how a protective detention mechanism could operate having regard to that similar principle, that is, by effectively implementing that orthodox judicial reasoning technique. But your Honour is quite right – we are avowedly stating that detention will always be a disproportionate – is necessarily a disproportionate response to this offence. It would be the case, frankly, with other offences in this list, like procuring prostitution. It is hard to imagine that detention is a proportionate response to that when there could be supervision orders put in place that would, in effect, eliminate the risk of that.

But Fardon is different, your Honour, because the consequence of sexual offending – serious sexual offending as it was in Fardon – that is violent sexual offending and sexual offending involving children – the consequence of that and the risk of that, particularly as many of these offenders have a psychological or psychiatric proclivity to such offences, places that in a different nature to this offence.

KEANE J: It means that it is much easier for a court to come to the conclusion that the harm is unacceptable and that the response of detention is necessary.

MR DONALDSON: Yes.

KEANE J: So, it is just a question of degree.

MR DONALDSON: Yes – proportionality always is. As I said, your Honour, what we are urging the Court to do is to either explain what has happened in the past or expand the operation of Kable to deal specifically with preventive detention regimes to infuse into that Kable process the notion of proportionality that I have advanced to your Honour. But your Honour is quite right – it does require acceptance by the Court that there are adequate alternative means – in the way of supervision – that could deal with robbery.

Could I keep then going quickly with Benbrika because I have not got to paragraph [36] yet? Perhaps, your Honours, if I could simply say this in relation to Benbrika – and really all that I was taking your Honours to in Benbrika before was to say that paragraph [36] does not really foreclose what I have just put to your Honours because Benbrika is not authority for the proposition that a preventive purpose per se is either a valid exercise of judicial power or cannot attract the Kable principle. Your Honours, paragraph [36] starts off with the sentence:

Terrorism poses a singular threat to civil society.

Similar to the observation of Justice Gordon in that case as to the consequence of terrorism. Can I pause there to say, your Honours, we would accept that the legislation that was before the Court in Benbrika, based on the majority judgment, would not fall foul of the proportionality‑type analysis that I have articulated.

That is because it can be foreseen that in relation to terrorist offenders – or the risk of terrorist offending – that detention may be a proportionate response. It may be the only response that can deal with that risk and that is because of the nature of the offending and the serious consequences of the offending and, perhaps, the inability of any supervision regime to preclude terrorists from dealing with each other – would‑be terrorists from dealing with each other – and, as the offences dealt with in Benbrika disclosed, conjuring together these terrorist offences.

EDELMAN J: Mr Donaldson, when you are talking about proportionality as a restriction, it seems to me you might be sliding between two concepts and it would assist me to know whether you are referring to one or for both of them. One is to describe the situation where the purpose of the legislation – the protective purpose of the legislation – could, on any view, very easily be met by any alternative that is less restrictive than imprisonment. The other, is where the protective purpose of the legislation is concerned with matters that are so slight or trivial at one extreme – say speeding offences – that it could never justify detention at all. Are you talking about the first or the second, or both?

MR DONALDSON: Both are dealt with by the same means of analysis, your Honour.

GORDON J: I do not know about that. The second may be dealt with by looking at purpose and then, as Justice Gageler put to you, looking at the means adopted to achieve, or seeking to achieve, that purpose. That is, as I understand, the way you would look at it in the secondary category put to you by Justice Edelman.

The first is looking at the outcome and then saying, is there another means available? I think they do raise different questions, because you are looking at a different part of the analysis in order to determine whether or not – so if you look at, do we have an adequately‑tailored scheme, that is not looking at, arguably, just the last bit. It is actually looking to see whether the category of the conduct is sufficiently identified, whether the harm is identified, whether the means adopted are means adopted to address that purpose.

MR DONALDSON: A lot turns on the correct articulation of what the object of the legislation is, when considering this question, and it was a matter addressed squarely by your Honour Justice Gageler in Benbrika. That is, when one looks at – and it is a real problem with bandying around terms like “preventive” - the object is preventive or protective. When one looks at a piece of legislation like this in relation to the provision which is challenged, which is the robbery offence, one looks at the object of the Act in relation to that, because that is what we are challenging here.

GORDON J: Then you look to the legal and practical operation of the Act in relation to that to see whether or not that purpose is achieved and whether or not the scheme put forward is adequately tailored.

MR DONALDSON: Yes, or, in a sense, proportionate to ‑ ‑ ‑

GORDON J: I do not know why you need that word. The authorities, both the majority and the minority judgments, recognise that that is an appropriate, or at least an available way of analysing it.

MR DONALDSON: With the consequence that if the scheme, in this case, detention, is not tailored to give effect to the purpose, then it is invalid. Yes, we are proposing something different to that, your Honour, as a – bearing in mind Benbrika did not deal with Kable, and in relation to - although what we will be articulating to your Honours would apply to both the judicial power question and also the Kable question, although in the judicial power question in a different context because it is relevant, because your Honour Justice Gageler was indicating it would be relevant as a step in determining whether a particular form of preventive detention was analogous to detention of the mentally ill, whether it was a – can I call it a disproportionate detention scheme, was, in fact, analogous to the exception that was identified in Lim.

But the way that, your Honours, we have sought to - we seek to articulate what we say should be a principled basis upon which the Kable doctrine should apply in cases such as this is as follows, that a law providing for detention in custody that is not a consequential step in the adjudication of criminal guilt for past acts will impair the court’s institutional integrity where detention is not reasonably necessary to protect the community from the risk which the legislation, providing for detention, seeks to effect - that is one way of articulating it - or, where detention is not proportionate to the object of the legislation providing for detention, or which the legislation providing for detention seeks to effect.

KIEFEL CJ: Your first proposition would reflect section 7(1).

MR DONALDSON: Yes. Well, the first proposition – yes, well, it is a matter of whether there is a proportion between the object of the legislation and detention. It is only to do with detention.

KIEFEL CJ: The requirement that the protective regime, the orders under the protective regime are necessary for the protection of the public is what section 7(1) addresses.

MR DONALDSON: Yes, but if detention could never be, your Honour, you do not get to considering section 7. The principle that I have just stated to your Honours would be applied in the following way. First, there would have to be an identification of what the objects of the impugned legislation is. Now, this legislation, because it deals with such a broad scope of criminal offences, cannot be given an object such as the object of Fardon, so the object of Fardon was to protect the community from an unacceptable risk of the commission of serious sexual offences of the type defined in that Act.

Here, where the challenge is only to the robbery provision, we would articulate the relevant object of this legislation as being to protect the community from an unacceptable risk of the commission of robbery, as defined. There is nothing particularly odd about a legislation such as this, with such a diverse range of offences in it, to have more than one object.

The second step, having identified the object, is to then identify the meanings that are applied to effect the object. Here, that which was challenged is detention. Then the question is to consider the relationship between the object and the means. There the question is whether detention is – whichever articulation one prefers – reasonably necessary to protect the community from an unacceptable risk of the commission of robbery or whether detention is proportionate to the unacceptable risk of the commission of robbery.

Detention will never be reasonably necessary to protect the community from that risk or proportionate in the sense stated because there are, in our submission, alternative means – alternative effective means – available to achieve that object, that being protection of the community from the unacceptable risk of robbery where those alternative means are less respective to the liberty of the individual. The obvious example of that is a supervision order.

We say – without repeating what I said to your Honour Justice Keane earlier – there are certain categories of offences where a supervision order will always be and necessarily is effective – an effective alternative. We would accept that there are instances where detention will be a proportionate or a reasonably necessary consequence of the risk posed but this, in relation to this offence, is not one of those.

So, we say the further step in the analysis, the Kable analysis, in respect of that proposition is that the legislation to require a Supreme Court to consider the making of a detention order, particularly in the circumstances, having regard to the mechanism of section 29 of this Act – that gets back to your Honour Justice Gordon’s question – that that is an important aspect of the submission.

To require the Supreme Court to consider making a detention order in that circumstance, where detention is not reasonably necessary to protect the community, will substantially impair the institutional integrity of the court. That is because, requiring a court to consider making a detention order where detention is not necessary to adequately protect the public, would adversely affect public confidence in the court because the public is entitled to believe that courts will not order detention where it is either not a sentence for a crime or whether it is a disproportionate response to a risk of offending. We say the Kable principle is attracted in this particular case.

Dealing with – I was going to take your Honours to, in Vella, paragraph 56, simply to – I will quickly take your Honours to it now. Vella is in volume 7 of the authorities – because Vella was not a detention case. Vella – it is at paragraph 56 – the passage I was ‑ ‑ ‑

KIEFEL CJ: Where do we find Vella in the joint book of authorities?

MR DONALDSON: Volume 7.

KIEFEL CJ: Which tab?

EDELMAN J: Tab 37.

MR DONALDSON: Tab 37 – sorry, I do not have tabs in mine, your Honour. The relevant page for paragraph 56 is page 2349. Really what I was directing your Honours to this passage for is the second sentence:

The contours of the categories where State legislation will substantially impair a court’s institutional integrity will necessarily emerge slowly.

A category is not preventive detention per se. So, the contours of the categories will develop:

But the categories must develop in a principled, coherent, and systematic way rather than as evaluations of specific instances.

In our submission, the articulation of the application of Kable and the judicial power notions to legislation such as this is a coherent and principled expansion of the Kable doctrine. We are not simply saying on an ad hoc basis that this legislation – or this offence of robbery and the risk of reoffending of robbery – is different to the nature of the offences in Fardon or in Benbrika.

So, what we have put to your Honours as a reasoning process that can be applied in determining these questions – or determining this question in relation to preventive detention regimes is a sensible and coherent and principled expansion – or extension of Kable which we urge upon your Honours.

Could I just mention one other matter, your Honour, before I finish? Could I just mention one other matter to your Honours which arose from something that I said to Justice Gordon yesterday. The actual substantive hearing of this matter is on Monday. There is a theoretical possibility that of course that there could no order made against Mr Garlett on Monday – that is neither a supervision order nor a detention order. If either of those orders were made, then this would still be a live issue as it were.

It would be a very great pity even if no order was made on Monday that the view was taken that the matter which has been before your Honours is hypothetical – or cannot be concluded – certainly not our contention, your Honours. But I thought I should bring that to your Honours - - -

KEANE J: It is certainly not moot now.

MR DONALDSON: No, it is not moot now, and it could never be moot until Monday.

KEANE J: Given the likelihood of appeals and so forth, the worst that one could say is that it might become moot.

MR DONALDSON: Yes.

KEANE J: But then it might not.

MR DONALDSON: Yes, and could I say – again, I do not obviously want to foreclose anything that is going on on Monday – or predict anything that is going on on Monday – any issue as to whether the matter was moot could only arise if the application was dismissed on Monday – that is if no order was made at all.

EDELMAN J: And there was no appeal.

KEANE J: And there was no appeal.

MR DONALDSON: No appeal, yes. In any event, I just brought that matter to your Honours’ attention. Certainly we would not be contending in any circumstance that the matter would be moot or hypothetical. If your Honours please.

KIEFEL CJ: Yes, thank you Mr Donaldson. Mr Solicitor.

MR THOMSON: May it please the Court. Can I commence by saying something about Monday. It is not our submission that this case would become moot, whatever the outcome is on Monday. The Court will know that procedurally there were two different things that were decided by Justice Corboy. One thing was whether a declaration should be made as to the validity of the relevant legislation and he made separately the relevant declaration which is the subject matter of this appeal.

There was also a decision that there was a need for this offender to go from a section 46 hearing to a section 48 hearing. That was achieved by a different set of orders, and that set of orders could not be appealed according to the legislation, and so what has happened is that there was an appeal in respect of the declaration of constitutional validity to the WA Court of Appeal, and that appeal has been removed into this Court.

So, that is by way of explanation as to the fact that the thing that is before this Court is part of the appeal about the declaration of constitutional validity insofar as it is dependent upon what might be loosely described as the Kable principle. There was another aspect to that appeal which was the Racial Discrimination Act, but that was not the subject of removal.

Can I commence by trying to draw together what appear to be three questions which have emerged at a general level in the course of the submissions that my friend has made. I propose to identify those questions at the outset, and then I propose to move to the way in which the Act operates because there seem to be some questions about the actual detail of the Act, and then I will return to answering the questions which arise as a matter of law.

The three questions that appear to have emerged are these. First, is there a new limitation in existence on State legislative power which means that a State cannot enact a law for preventative detention unless it is assessed by the court as providing for preventative detention which is proportional to the means it is intended to achieve?

Now, that question, is one that has emerged in the course of the argument that has been made to your Honours this morning. My friend has candidly said that there is no authority to support that. He has said that it is based on a concept of proportionality. He has not offered a constitutional standard for assessing proportionality. It is a new argument, which has not been notified to us, except to the extent of there being some suggestion of proportionality in the oral outline of submissions which was filed yesterday. It is a very large question based upon a new constitutional imperative of some nature, which has been sprung upon this Court. I identify it candidly in that way at the outset because it is a very significant and substantial question for this Court’s consideration.

The second question that arises is that – sorry, is a preventative detention regime for robbery inherently inconsistent with a court being the repository of federal judicial power? Now, that question is one that has been consistently raised – it has been described as the what question in the appellant’s submissions. As has been identified this morning, it effectively rests on three matters: the reversal of the onus in respect of the compliance with the standard conditions attached to a supervision order; the use of the word “must” and not “may” in section 48; and the narrow category of offences in Fardon compared to the wider range of offences here.

It is submitted that the matters that I have just identified in this case mean that a preventative detention regime for robbery is inherently inconsistent with the Supreme Court of Western Australia being the repository of federal judicial power. That is a traditional Chapter III or Kable matter.

EDELMAN J: Mr Thomson just, at least for my part, I do not really see Mr Donaldson as having advanced two separate submissions in that way. I think that what you describe as the alarming first submission is just an outworking of the principles governing in the second.

MR THOMSON: With respect, your Honour, they are perhaps said to be based upon Kable in a very loose way – or Chapter III considerations – but my friend this morning accepted that there was no authority for the proposition that proportionality was something that should be taken into account by this Court, and he put it upon the basis that this was a new limitation that he was suggesting in respect of the State legislative power.

GAGELER J: Are you suggesting that there is a procedural reason why that argument should not be entertained or why it cannot be entertained now?

KIEFEL CJ: Are you saying that section 78B notices should be given and the Court adjourned for that purpose?

MR THOMSON: To answer that question, I think that would be a significant question of which the interveners have not had proper notice. Yes, there should be section 78B notices given on that matter. Can I ‑ ‑ ‑

GORDON J: Just so I am clear, Mr Solicitor, do you mean on your first question?

MR THOMSON: Yes.

GORDON J: Or your first and second question?

MR THOMSON: No, no, just the first question.

GORDON J: You accept the second question is a classic application of the existing principles and authorities.

MR THOMSON: Absolutely.

EDELMAN J: If the first question is just a way of expounding the principles in the second, is that still something that needs to be the subject of a 78B notice?

MR THOMSON: If is it just a way ‑ ‑ ‑

KIEFEL CJ: As I understood Mr Donaldson, he was deriving a principle of proportionality which, frankly, I thought was akin to a sentencing process approach. But I think Mr Donaldson was describing it by analogy to the implied freedom. He was not suggesting that the constitutional principle could be derived. In fact, I do not think Mr Donaldson identified a constitutional basis for any notion of proportionality except insofar as it resides within the exceptions to Lim and how that might be approached. So, it is really an argument about whether something is to be added to – or considered in relation to – the exceptions in Lim. That is as I understood it – assisted, of course, by Justice Gageler.

MR THOMSON: If it is to be understood in that way, then it is covered by the 78B notices. But I am very concerned that what is being put to the Court is effectively something quite different to that and that there is a restriction on State legislative power that is advanced on this separate basis.

KIEFEL CJ: What course are you suggesting that the Court should take?

MR THOMSON: Certainly, the Court should deal with the second and the third question I was about to identify. But, the first question is not one that should be entertained by the Court.

KIEFEL CJ: Do you wish to then proceed to make submissions on that basis and the Court proceed to hear the matter on that basis?

MR THOMSON: Yes.

KIEFEL CJ: Yes, thank you.

EDELMAN J: The difficulty, Mr Thomson, with that approach is that, in the manner I answered the second question in Benbrika, I dealt with a number of issues – maybe all of them – that Mr Donaldson raised in relation to the first question – particularly at paragraph 226.

MR THOMSON: Can I say that the only suggestion of proportionality that has been raised in writing, prior to the submissions that were made orally today, is in the oral outline of submissions that was provided yesterday morning.

GAGELER J: Do you have a difficulty with meeting the argument today?

MR THOMSON: I do not think I do, but ‑ ‑ ‑

GAGELER J: Perhaps we could ‑ ‑ ‑

MR THOMSON: I am perfectly happy to deal with the argument, but part of the difficulty is that there has been a variety of discussion that has occurred in a free‑ranging sort of way. To the extent that this is something that goes beyond the concept of saying that there is an inherent inconsistency with the institutional integrity of the Supreme Court of WA by there being a power to order a preventative detention regime, it does go to the existence of a new constitutional imperative, effectively.

GORDON J: That is not the way at least some of the minority judges in either Vella or Benbrika approached it. So, that is why question 2 is put in those terms – that I imagine as you just put to us. In other words, it may not need to be a new constitutional limit, nor for the matters that are raised by the minority judges, at least to be raised and considered. If you take the label away of “proportionality” and look at “adequately‑tailored scheme” in a way in which that analysis was addressed by at least three of us, then I do not know what the problem is – for you.

MR THOMSON: I am perfectly capable of answering the argument today, but what I apprehend is being suggested is something that is completely different and new in terms of there being a limit upon State legislative power that arises from a proportionality concept based upon the existence of preventative detention.

So, that there is no ability to enact a preventative detention regime unless the Court has assessed it as being proportional – which is a different basis from the three things that were identified – in saying it is inherently inconsistent with the Court being the repository federal judicial power – so that the real crux of the submission in relation to the first question is that it is never justified that there should be a preventative detention regime in respect of the offence of robbery because there could never be such an offence which could warrant the imposition of preventative detention. That was the exact submission that was made - - -

KIEFEL CJ: Mr Solicitor, the question really is whether or not you seek an adjournment.

MR THOMSON: I do not seek an adjournment, because I am perfectly content to deal with that question identified in that way, but it is a very large question that is being put to the Court – and to the extent that there is a different basis advanced for it, we take issue with that. I am perfectly content to continue in making submissions – and maybe other interveners have comments to make about this point – but the basis of the answer to the first question is put that there could never be justified a preventative detention regime because there is never going to be an offence of robbery that is serious enough and the court needs to assess it on a proportional basis.

The answer to the second question was put on the three different grounds that I think were shaken down this morning in the course of discussion with the Court. The third question is whether the power of the Supreme Court of WA to order preventative detention for robbery to occur is being conferred in such a manner that the exercise of the power is inconsistent with the court’s institutional integrity – and there are various other reasons which have been put as to why that is so – that is to say that there is no correspondence between the previous offence that has been committed and the offences that may be the basis for the preventative detention, the need to consider communities of an international character, the fact that expert evidence might not be admissible at a criminal trial and again the reversal of onus. So, although there is a blending between the second and the third questions, they remain distinct.

KIEFEL CJ: I see the time. That might be a convenient time for the Court’s break. The Court will adjourn for 15 minutes.

AT 11.14 AM SHORT ADJOURNMENT

UPON RESUMING AT 11.29 AM:

KIEFEL CJ: Yes, Mr Solicitor.

MR THOMSON: Thank you. Can I make this submission about the matters that we were discussing before the break, and it is this. If the submission that has been made on behalf of the appellant is treated simply as a submission that a legislative scheme for preventative detention must be appropriately adapted for the legislative purposes of the scheme, which is
the Benbrika analysis as we understand it, then we can deal with that, and it is not the large question that we had understood was being raised.

If it is something beyond that and involves using proportionality to determine compliance with some constitutional standard – and we rather apprehended that might be the submission based upon the references to the Palmer Case and structured proportionality – then, in our submission the matter should be the subject of further written submissions from the interveners and from the State.

KIEFEL CJ: Do you need that clarified before you proceed with your submissions, or can it be dealt with in reply by the appellant?

MR THOMSON: It probably needs to be clarified because if it is really just Benbrika, then we can deal with that. We can deal with it separately if it is the larger question, but it should also be the subject of written submissions.

KIEFEL CJ: Yes. Mr Donaldson?

MR DONALDSON: Your Honours, in agreeing with Justice Gordon’s question earlier – we were – or I understood your Honour to be referring really to your Honour’s reasoning in Benbrika at paragraph 177 ‑ ‑ ‑

GORDON J: As well as Justice Gageler’s analysis ‑ ‑ ‑

MR DONALDSON: Quite so. Your Honours both dealt with it on that basis which was effectively – on a similar basis – which is effectively that if the particular regime goes further than necessary to achieve the object, then it is not to be characterised as preventative or preventive. It cannot be characterised as preventive. It does not fall within one of the Lim exceptions, and that was the question that arose that way.

The way in which I sought to articulate the matter this morning was really dealing with the – putting a similar proposition and using a notion of proportionality simply to – and as I said it would have made no difference whether the terms used were “reasonable necessity” or “different to proportionality”. But I was certainly not submitting that there should be a standalone or wholly new judicial principle separate from Kable in relation to these matters.

KIEFEL CJ: You are not contending for a constitutional principle of proportionality to be applied in this case?

MR DONALDSON: No.

KIEFEL CJ: Is the proportionality of which you speak limited to necessity by reference to purpose?

MR DONALDSON: Yes, I was ‑ ‑ ‑

KIEFEL CJ: Is that as far as it goes?

MR DONALDSON: Yes. I was using “proportionality” actually not in the structured proportionality sense ‑ ‑ ‑

KIEFEL CJ: In the more limited sense?

MR DONALDSON: Yes. I simply refer to the Palmer Case because in the Palmer Case there was the reference there to a different way of saying the same thing really. But what is critical to the issue is - what we say is when one comes to consider whether the institutional integrity of the court is affected within Kable, when one is dealing with preventive detention – that is non‑penal detention – then the manner of – the principled manner of determining whether the court’s institutional integrity is affected is by looking – is by going through the process ‑ ‑ ‑

KIEFEL CJ: About whether it has gone too far.

MR DONALDSON: By looking at the process that we articulated - work out what the objects of the Act are – is there no alternative to detention to achieve those means, that object? So, I was not proposing that I was coming up with some principle discrete from Kable in any way. It was just a process of reasoning ‑ ‑ ‑

KIEFEL CJ: Are you arguing that this process of reasoning is somehow conformable with the Kable principle?

MR DONALDSON: Yes, well, it is simply a process of reasoning which is used to get from the manner in which – or if there is a disproportionate regime of detention, that affects the institutional integrity of the court.

KIEFEL CJ: Yes, thank you, Mr Donaldson. Is that sufficient for your purposes, Mr Solicitor?

MR THOMSON: Yes, it is, thank you. Your Honours, can I commence with the legislative regime and some comments about it and hopefully try and alleviate some of the concerns that have been expressed about the way in which the regime operates. What I would propose to do is go to some of the queries that have been raised yesterday and today, first, so that I can directly answer the matters that have been put. Then, perhaps, I will try and draw those together in a way that we did in our oral outline of submissions which was filed yesterday.

The first point is really the operation of section 7. Section 7 is the provision that lies at the heart of the Act, but it is a definition provision and, using the principles from the decision of this Court – and, in particular, Justice McHugh in Kelly’s Case – it should be read in conjunction with section 48(1) – which is the provision that deals with how the matter should be dealt with by the court at a final hearing.

If you do that, then you reach a construction of section 48(1) along the lines that have been set out in paragraph 44 of our submissions – that is, the provisions, read together, mean this – that if the court hearing a restriction order application finds that the offender is a high‑risk serious offender – that is to say, that the court is satisfied by acceptable and cogent evidence and, to a high degree of probability, that it is necessary to make a restriction order in relation to the offender to ensure adequate protection of the community against an unacceptable risk that the offender will commit a serious offence – the court must either make a continuing detention order or, as accepted, as provided at section 29, make a supervision order in relation to the offender.

It is our submission that when section 48(1) is read in this expanded way, it emphasises that there are two steps in concluding that some form of restriction order needs to be applied to the offender. The first step is to conclude that there is a necessity to make an order of some type in the first place to ensure adequate protection of the community against an unacceptable risk that the offender will commit a serious offence.

That requires an assessment of a level of risk which exists that an offender will, at some point in the future, commit a serious offence if no restriction order is made. So, it is an assessment prospectively upon a basis that there is no restriction order at all – not a supervision order and not continuing detention. That corresponds with the first step in the construction process as identified by his Honour Justice Corboy at paragraphs 135 and 139 of his judgment.

The next step in the process is to conclude what type of restriction order should then be made. Obviously, at that stage of the process – sorry, that stage of the process will not be reached unless there is an unacceptable risk to the community that an offender will commit a serious offence if simply released back into the community at the end of the term of imprisonment. The basis for making a restriction order and choosing between a continuing detention order or a supervision order, is provided in section 48(2). In effect, that requires paramount consideration to be given to the need to ensure adequate protection of the community.

To determine what needs to be done to ensure adequate protection of the community, it is necessary to consider what level of risk would be involved to the community if an offender was released, subject to a supervision order. So, it is a different type of assessment at that point. Obviously, if an offender is subject to a continuing detention order, there is no risk that the offender will, at some point in the future, commit a serious offence in the community.

The level of risk that an offender will commit a serious offence if subject to a supervision order, will depend upon the likelihood that the terms of a supervision order will be substantially complied with. If they will not be substantially complied with, the position is really no different from the situation where an offender is simply released back into the community at the end of the offender’s term and not subject to a restriction order. But the court will have already concluded by the stage that it reaches this point in the process, that the level of risk to the community is an unacceptable risk.

GAGELER J: Mr Solicitor, if there is a conclusion that there is an unacceptable risk that the offender will commit a serious offence absent a restriction order, what further inquiry is required for the purpose of the definition under section 7 before going to section 48 and working out what kind of order applies?

MR THOMSON: Section 48(1) requires section 7 to be read into it because of the definition section. So, you first conclude, when you look at this, that there is an unacceptable risk to the community if you allow the offender to be released into the community without any form of restriction order. That is the first stage of the process, but then the question is, can you reduce the risk by putting the offender under a supervision order ‑ ‑ ‑

GAGELER J: My point is this. If there is a conclusion of an unacceptable risk that the offender will commit a serious offence absent a restriction order, then the only question is, what kind of restriction order, is it not?

MR THOMSON: Yes.

GAGELER J: So, all these other words:

it is necessary to make a restriction order –

all those other words do not make any difference to the analysis required.

MR THOMSON: Sorry, which words in particular?

GAGELER J: The verbiage in section 7 that precedes the reference to an “unacceptable risk”.

MR THOMSON: Your Honour may be right. To some extent, the verbiage in section 7 was to parallel or correspond with the actual words that were used in the Queensland legislation in Fardon, so as to make sure that it was as close as possible. But, in the legislation in Fardon, the way it is expressed is converse, that is to say – if I take you to the way it is expressed in that legislation – it is tab 11 in volume 2, in section 13, which is on page 330. It is divided into a number of parts. Section 13 says:

(1) This section applies if, on the hearing of an application for a division 3 order, the court is satisfied the prisoner is a serious danger to the community . . .

(2) A prisoner is a serious danger to the community as mentioned in subsection (1) if there is an unacceptable risk that the prisoner will commit a serious sexual offence‑

and then subsection (3) includes those words about “cogent evidence” and “high degree of probability”.

KIEFEL CJ: If one looks at section 7(1) – is there an unacceptable risk of serious offence – does that comprehend everything that that is concerned with, or the reason for it appears in the words before – that the community needs protection from that person.

MR THOMSON: It must be that - - -

KIEFEL CJ: I mean those words are still necessary because they reflect of the object of the Act.

MR THOMSON: Precisely. Was that the point of your Honour’s question, Justice Gageler, that the words about the risk to the community were not necessary because the question of whether there is an unacceptable risk and can you measure it can only be measured against that standard?

GAGELER J: My question was whether there was really any separate inquiry once one concludes that there is an unacceptable risk to the community that the offender will commit a serious offence.

MR THOMSON: If you reach that conclusion, then you have reached that conclusion that the community will not be adequately protected if the person is released without a restriction order being imposed upon them. I do not think there is anything else to be said. It might be that in making that determination you would take into account any other form of regime that might be applicable to the offender being released, which is not under this Act, but under some other form of Act.

GAGELER J: Except the things referred to in subsection (4) – is that right?

MR THOMSON: Sorry, that was not quite what I had in mind. There is a decision that we have cited, which is the decision of The State of Western Australia v D’Rozario which is a decision of Chief Justice Quinlan, and that is in volume 8 at tab 46.

GORDON J: I am being slow, Mr Solicitor – what is this other regime that we are talking about?

MR THOMSON: There might be a post‑sentence supervision order regime under the sentence ‑ ‑ ‑

GORDON J: But that is imposed at the time of sentencing?

MR THOMSON: Yes, that is right.

GORDON J: This is dealing with these – the people in this category are those who are not the subject of post‑detention order at sentencing, are they not?

MR THOMSON: So, if they become subject to one of these orders, then that is right.

GORDON J: Yes, that is right, is it not? So, that regime is not going to be applicable here.

MR THOMSON: But if the order is not made then they might be the subject of ‑ ‑ ‑

GORDON J: This regime.

MR THOMSON: The post‑sentence regime.

GORDON J: I had thought that the post‑sentence regime was something imposed at the time of sentencing.

MR THOMSON: Yes.

GORDON J: In other words, at the time of sentencing an assessment was made that that person required – possibly required detention post‑sentence. This regime deals with a different category.

MR THOMSON: I accept that, your Honour. I was just going to refer to the remarks about how they might integrate by Chief Justice Quinlan at paragraph 21 of D’Rozario, and he says it might be “rare”, but he refers to that as a potential consideration, and that is at 2740 of the appeal books – the joint book of authorities.

STEWARD J: If you are still on section 7, can I ask a question of construction?

MR THOMSON: Yes.

STEWARD J: The two concepts of necessity and unacceptability, are they different measures or are they expressing the same thing – or what?

MR THOMSON: So, the question is – the standard that has to be considered is the question of whether there is an unacceptable risk to the community. That is a standard that is derived from the Queensland legislation. It has been sanctioned by this Court in Fardon. The question of necessity is to show that you do not make such – well, you do not fall within this definition, and you could not be the subject of such an order unless it was necessary to protect against the risk, not necessary or desirable or something of that nature.

STEWARD J: Are there conceivably unacceptable risks where it would not be necessary to make an order?

KEANE J: That is what Chief Justice Quinlan says at paragraph 21, the passage you have just taken us to.

MR THOMSON: Yes.

KEANE J: That there can be such cases.

STEWARD J: Are we talking about cases where – for instance, take robbery – where the risk of repeat offending is at a very minor or low scale – is that where the work is done? There is a degree of severity of the type of crime or offence.

MR THOMSON: Yes, so the question is not an unacceptable risk of reoffending, it is an unacceptable risk of harm to the community. So there may well be a risk of reoffending, but not a – the question as I have said is based upon the purpose of the Act, which is in fact the point of distinction between the majority and the minority, I think, in Vella.

STEWARD J: Necessity captures high degrees of harm to the community as against lower degrees of harm?

MR THOMSON: It has to be necessary – the community will always be harmed if there is reoffending but it has to be a necessary thing to prevent an unacceptable risk to the community. It is a direct connection, as opposed to the use of the reoffending as a proxy, which is what ‑ ‑ ‑

KIEFEL CJ: It is not implicitly a high risk. It is unacceptable because it is high.

MR THOMSON: Yes.

EDELMAN J: The only circumstance in which it would not be necessary is where, effectively, the same type of supervision orders that you would make under the Act would be made under the Sentence Administration Act. Are there any other circumstances where it would not be necessary to make a restriction order if there is an unacceptable risk that the offender would commit a serious offence?

MR THOMSON: Not if there was an unacceptable risk.

GLEESON J: If there was a separate regime, why would that not be relevant to the determination of whether there was an unacceptable risk?

MR THOMSON: I think it would be.

GLEESON J: Yes.

MR THOMSON: Yes. The question to ask is, is the release of this offender, in a practical sense – taking into account the circumstances of the offender – going to cause there to be an unacceptable risk to the community and, if there happened to be another regime of some sort enacted later, or now, then you would, obviously, take that into account.

GORDON J: Just so I am clear – I am sorry, I am being a bit slow, Mr Solicitor, does that mean – in response to all of those answers – that if one identifies that there is an unacceptable risk that the offender will commit a serious offence and that is perceived to require, in effect, a restriction order to ensure adequate protection against that, it is inevitable that the order will have to be made?

MR THOMSON: Yes.

GORDON J: A form of order and then it is a question about choice between (a) and (b) and then subject to the section 29 issues which have been raised with you.

MR THOMSON: Yes.

GORDON J: So, when you say to us, “another regime”, that is not part of this analysis at this stage, is it?

MR THOMSON: You would not take it into account unless there was the reality that this person was going to be released, subject to a different regime. In relation to your Honour’s question, when you put it to me, you said it is an inevitability – and that goes to the question about the use of the word “must” rather than the use of the word “may”.

GORDON J: I do not want to take you out of your way, I just wanted to make sure I understood the submission that was being put to us as to the proper construction of 7(1).

MR THOMSON: Yes. But, there is a ‑ ‑ ‑I mean, the submission that we will be making about “must” and “may” is that there is, at the stages that I am just taking you through, a significant question of evaluation that has to be undertaken judicially and so because it is a question of evaluation – it is not a discretion – but it is an evaluation applicable to a particular legislative standard and because of that you would only get to the point of having to make the order if the evaluation that has been carried out is one that dictates that as the result. But it is the evaluation of the circumstances that is what is the judicial function.

So, judicial function is not, in fact, taken away. In the same way that if the elements of an offence are proved, then you have to make an order or, if the elements of some form of civil cause of action are proved, then you have to make the order. It is not a discretionary thing. But it is the same level of evaluation.

I think I got to the point of saying that the level of risk that an offender will commit a serious offence if they were released, subject to a supervision order, does depend upon whether the court would be satisfied that there would be compliance with that supervision order because, basically, and fundamentally, what is being looked at is the question of the level of the risk to the community.

So, to say that there is an onus upon the person who is going to be asked to comply with the order, to demonstrate that they will, on balance of probabilities, do so, is really asking them to say – or to show – that they will not be a risk to the community on the basis of complying with things which are actually within their knowledge.

Now, in terms of the supervision order and the standard conditions set out in section 30(2), they are really conditions that relate to reporting to a community corrections officer, receiving visits from a community corrections officer, and being supervised by a community corrections officer. It is important to note that there is a standard condition in paragraph (e), that a person shall:

not leave, or stay out of, the State of Western Australia without the permission of a community corrections officer -

That obviously has an impact upon considering where they will be during the course of the operation of a supervision order, and whether they might be in Tunisia or in Western Australia. It would be appropriate to consider that they would be in Western Australia because the standard condition is to that effect. In terms of the other standard conditions, there is a standard condition in paragraph (f), which relates to not a committing a further “serious offence” but ‑ ‑ ‑

EDELMAN J: Mr Solicitor, is it correct to say that unless the offender can establish that on the balance of probabilities they would not commit a serious offence during the period of the order, then provided that they have fallen within the definition of a “high‑risk serious offender” the only order that the court can and must make is a continuing detention order?

MR THOMSON: Yes, but, again, the question of whether a person who is going to commit a serious offence in the future is a question of future evaluation. It is not proof of an existing fact. Therefore, it is all part of the evaluation of the risk. So even if there were not such a standard condition contained in the Act, if the court could not be satisfied that a person was not going to commit – that it was – if the court was not satisfied that a person was unlikely to commit a further serious offence, then it must be the case that there would be an unacceptable level of risk.

EDELMAN J: Can the court, in determining how that evaluative process works, have regard to the known facts and circumstances that are likely to arise, including, for example, the matters described by Chief Justice Quinlan in the State of Western Australia v Rao [2019] WASC 93 at 14 to which the amicus refers, which is what he describes as the “Catch‑22” that an offender cannot be provided with any treatment until they have been made the subject of a continuing detention order?

MR THOMSON: So, the question about – there are two separate questions involved here. One is that the factum that activates the court in considering this application is that the person is a serious offender and so they have to be in prison for a serious offence. That is a backward‑looking question. That is a question that means that they will have already been incarcerated, and you can only have such an application made in general circumstances where it is made within the space of one year before the expiration of the term of imprisonment. If you happen to be on a supervision order already you can also have such an application made, and this is in sections 35 and 36.

However, there is a forward‑looking question, and the forward‑looking question is that question of evaluation about whether things will happen into the future, and the court is required to make an evaluation about whether there will be a likelihood of the commission of an offence.

Now, if the person has received treatment in prison and can demonstrate that they will continue to receive treatment, then they might be the subject of a supervision order. That is the sort of consideration that has been taken into account in some of the cases that we have set out in a table. I am not sure if the Court has this – I would seek leave to be able to put it to the Court.

KIEFEL CJ: Yes, we have received it.

MR THOMSON: Thank you, your Honour. There are eight cases since this Act was commenced in 2020 where supervision orders have been made and there is some pretty significant analysis of the basis in each of those cases, and they take into account whether there could be the continuing provision of treatment during the course of the supervision order.

We have compiled those cases in response to a question yesterday because there was a question about whether supervision orders could in fact actually logically be made, and clearly there have been a number of cases where they have been made and there has been some quite detailed analysis. Each of the cases involves a focus upon the facts of each offender. It is not really involving statements of principle, but they do go through and look at how the relevant circumstances ‑ ‑ ‑

STEWARD J: That was probably me who asked that question. Can I ask you this question relating to it? Whilst the assessment of risk in 7 and 48, as you have said, is logically different, in practice though there will be a final hearing at which orders will be sought and take an example of an offender who puts on evidence that they will not commit a serious offence during the period of the order – 30(2)(f) – because, for example, they have reformed in prison, by way of example, how can it be then said in those circumstances, if you accept that evidence, that that would ever fit within 7? Where is the unacceptable risk that they will commit a serious offence if that evidence is accepted?

MR THOMSON: Sorry, that there would be evidence accepted that they ‑ ‑ ‑

STEWARD J: Let us say the offender puts on evidence under section 30(2)(f) that says, “I will not commit a serious offence during the period of the order because I’m reformed”.

MR THOMSON: Yes.

STEWARD J: Practically, will that person then – can it be said about that person they will ever fit within 7 as a practical matter?

MR THOMSON: Well, it will depend on a range of circumstances, the circumstances of the commission of the factum offence that puts them in prison in the first place and the independent psychological and psychiatric evaluations that have been carried out and so forth. So there will be a number of pieces of evidence that would no doubt be taken into account and the analyses in the eight cases that we have provided to the Court demonstrate how judges of the Supreme Court of Western Australia have indeed gone about that task.

KEANE J: Mr Solicitor, do I take it that looking at section 29(1) and section 30(2)(f), the exercise that is contemplated in 29(1) can lead to the relevant satisfaction that the condition in 30(2)(f) will be complied with because the court can take into account the operation of the other conditions in section 30(2)? In other words, while you might not be inclined to accept and act upon the assurance of the offender, taking into account the other conditions which you are satisfied will be complied with, the judge can reach a positive state of satisfaction that there will not be a serious offence committed during the period, so that condition (f) will be satisfied?

MR THOMSON: We certainly gratefully adopt that analysis, because we would not think that section 30(2)(f) could be satisfied simply by evidence from an offender saying, “I’m not going to commit another offence”. You would have to take into account the independent psychiatric and psychological evidence and the compliance with the other conditions as sufficiently reducing the risk of reoffending to make it an acceptable risk for the community.

KEANE J: Of course that is the purpose of all the various conditions in 30(2).

MR THOMSON: Yes, precisely. I should mention that paragraph (g) of the standard conditions requires electronic monitoring. There has been not that much said about that. It is a difference that it should be a mandatory part of the standard conditions with the post‑sentence, PSSO regime, under the Sentence Administration Act. It can be imposed under that regime, but it has to be imposed under this regime.

Can I just make a point in response to the question that your Honour Justice Steward was making, and that is you talked about it being a question of the distinction between section 7 and the unacceptable risk there, and section 48. We would prefer to look at it as section 7 read into section 48(1) – and the question of whether there is an unacceptable risk without any form of order in – it is the question posed by section 48(1) and 48(2) is about the form of order.

That mode of construction actually deals with the problem that has been identified by the amicus in this case, which poses the problem – it is suggested – of a court wanting to impose a supervision order but being required by section 48(2) in combination with section 29 to impose a continuing detention order – because there could be no satisfaction about section 29 and section 30 and the compliance with the terms of the standard condition.

But that presupposes that what happens at the first stage is for the court to consider what would be an unacceptable risk. The actuality of it is that the question at the first stage is simply, is there an unacceptable risk if released without an order. Then the question at the second stage is what form of order will reduce that risk in an acceptable way. The reference to section 29 and therefore section 30 means that the court has to be satisfied in truth that an offender will comply substantially with the conditions.

That would be there in any event because, if the court was looking at how to reduce the risk in a forward‑looking way, the court would have to be satisfied that there would be substantial compliance, otherwise there is no point in making the order.

EDELMAN J: Mr Thomson, could you - - -

KIEFEL CJ: Forgive me, Justice Edelman – are you saying that if those words were not expressed in section 29(1), they would be necessarily implied?

MR THOMSON: Yes, because what is the critical matter that is evaluated is the level of risk. You could not form a view about the level of risk - - -

KIEFEL CJ: Without considering compliance.

MR THOMSON: Yes.

EDELMAN J: Mr Thomson, could you perhaps just give me a practical example to show how in a circumstance such as an offender who is addicted to methamphetamine and therefore presents an unacceptable risk of commission of a serious offence would then be able to establish that, with conditions the subject of a supervision order, but without treatment – that had been obtained during the term of the sentence – that offender would be able to establish that, on the balance of probabilities, they would not commit a serious offence? What sort of conditions would prevent a person that the court has determined is a methamphetamine addict and has committed a string of robberies – but both these conditions, without treatment, will be able to be sufficient for the offender to establish that they will not commit a further serious offence?

MR THOMSON: The offender in such a case will have been imprisoned before there could be any such order contemplated. The offender will presumably not have been able to sustain the addiction throughout the course of a long term of imprisonment – because these are offences that do carry significant terms with them. If the offender has been able, without treatment, to avoid sustaining the methamphetamine addiction, then that would be obviously a matter of very great significance – and no doubt would be reflected in the psychological and psychiatric reports – that would then be assisting the court in making an assessment of whether or not this person presented a risk of reoffending.

EDELMAN J: Except in those circumstances they would no longer be a high‑risk serious offender.

MR THOMSON: That might be right. Can I mention something else that the Court raised yesterday about the operation of section 41? I may be jumping at shadows here, but I thought it was worth emphasising that the duty of ongoing disclosure that is imposed by section 41 is only a duty of ongoing disclosure in respect of an expert witness who the offender wishes or intends to call.

It is not a duty, for example, to disclose expert evidence which might be adverse to the offender and the offender does not wish to rely upon it. That is evident from the definition of “expert evidence and material” which incorporates within it, at each stage of the definition, that it would be related to somebody who the offender intends to call.

So, in that sense, there is no compulsory disclosure of adverse material by an offender. It is simply there to assist the court to ensure that when there is a final hearing, the court has experts who are not passing in the night but have conferred and have then been able to work out what their joint position is or what the differences between them happen to be.

In relation to the question of section 82, my friend has explained that there is significance to criminal proceedings for the purposes of statute law in WA, generally speaking. The fact that section 82 is contained in a part of the Act – Part A which deals with matters of procedure and the surrounding provisions are really very much focused upon that, supports what my friend has said about the way in which section 82 would operate.

I think I have canvassed matters that have been raised yesterday in answering some of the questions of the Court – except for, there was a question from your Honour Justice Edelman about severance. As we had understood the question, it was this – that, would there be the capability of severing a preventative order regime from a preventative detention regime. The way this Act is formulated, the two are intertwined and we would accept that they are not severable because of that intertwining.

Can I then say, in trying to draw together the salient features of the legislation, these things? First, the primary object of the legislation is that it ensures the adequate protection of the community. We have been through section 7(1). Section 8(a) has been discussed to a large extent. But, can I also point out – and also, sorry, section 48(2) – but the emphasis upon protection of the community as opposed to the question about reoffending and criminal responsibility by itself, is emphasised by the definition contained in section 6 in relation to committing a serious offence because what it is concerned with is the doing of the acts or the making of the omissions, not the criminal responsibility for those acts or omissions.

The reason why it is concerned with the actual acts or omissions is because it is concerned with the harm that those acts or omissions would create for the community. So, embedded within the definition is the very thing that gives this Act a protective purpose.

GORDON J: Can I just ask one final matter if you are going to leave section 7 – which is the link between the harm – when you were talking about harm and protective purpose – and the scope of section 7 and the reference to “a serious offence”. I put it to Mr Donaldson yesterday that when you read the second reading speech, it was looking at offences that were – I think the word is “like” manner – it does not find reflection in the Act in its terms. Do you wish to say anything about that?

MR THOMSON: Certainly. In relation to ‑ ‑ ‑

GORDON J: In contradistinction to the Fardon scheme which is directed at offences of a like manner because it is dealing with sexual offences linking the conduct to that which is the perceived harm to the community.

MR THOMSON: Can I put it this way? There are, if you like, clusters of different types of offences in Schedule 1. If I can take you to Schedule 1 – if you look at Schedule 1, in Division 1 in Subdivision 1 there is a fire or arson‑type offence, and you will see that in item 36, there is another fire or arson‑type of thing – this on page 186.

Then there are clusters of child sex offences or other types of aggravated sexual offences. They occur in item 1 of Subdivision 2 – and then in Subdivision 3, items 1 through to 6, and then 7 and 8 on the next page – and then items 16 to 19 are child sex offences and there are aggravated sexual offences in items 20 through to 29.

Then there are certain offences relating to death in items 9 through to 12 and other offences relating to GBH in items 13 through to 15. Then there are certain offences about kidnapping or deprivation of liberty or stalking or child stealing in items 30 through to 33. Then there are two offences relating to robbery in items 34 and 35.

So, there are, if you like, clusters of similar offences that are referred to. The fact that they are clustered, if you like, might mean that, as a matter of practicality, the commission of a past offence will inform the forward‑looking assessment of risk that must be undertaken.

We have given in our outline of submissions the example of somebody who is a professional assassin who might have actually only been convicted of a serious offence of an attempt to unlawfully kill somebody – but there might be a prospect that that person will go back into the community and commit a serious offence of murder. In that sense there is a practical connection or link that can exist.

The reality is that, as a matter of practicality, it seems unlikely that if you are convicted of a past offence of one type, that there is going to be any basis for thinking that you might have a future risk of committing an offence in a different cluster or of a different type. But that is a question of practicality in the outworking of the legislation. It is not a connection that is directly required.

In terms of the second reading speech and the debates on the matter, there was nothing that specifically meant that it had to be interpreted in that way and which would overcome the way in which the assessment of future – forward‑looking risk has to take place. But if, as a matter of fact, you are looking at the question of forward‑looking risk, preventative order regimes have been held to be valid by this Court in circumstances where there has been no connection with a past offence, or the factum of a past offence – Vella is a good example of that – and also in Benbrika. So, that the risk of the forward‑looking offence is not necessarily directly tied.

Now, I do understand that your Honour Justice Gordon and your Honour Justice Gageler found that the fact that there was perhaps no complete linking in Vella was a difficulty, but the difference between this case and Vella on that respect is this, that the question was whether there was a legislative scheme that was designed to achieve the purpose – and the question there was really about the appropriate standard that had to be applied and, in this case, the standard that has been adopted to be applied – it is not just simply the word “appropriate”, but it is the words “unacceptable risk” which has been sanctioned in Fardon.

Perhaps that is a convenient point for me to mention – there are three critical cases which this Court has considered preventative regimes, and I have been dwelling upon the nature of the legislation in this case. I will return to those three cases and summarise the differences between them and this case.

The cases I have in mind are Fardon, Vella and Benbrika, and in Fardon some of the differences that have been mentioned this morning – and I will come back to those, but the scheme for obtaining psychiatric and psychological reports was fundamental to the way in which that legislation operated, and it is a very similar scheme that operates here. In relation to Benbrika, there was a similar scheme for the obtaining of psychiatric and psychological reports in the legislation that was considered in that case. We have filed – or we have proposed to file – and again we seek leave for the Court to do so, the table of the comparisons between the legislation in Fardon and this case.

KIEFEL CJ: I do not think you need leave to file. It is part of your submissions, as I understand it. It is an aid to your submissions.

MR THOMSON: Yes. This was a document that we provided to the Court this morning.

KIEFEL CJ: Yes. It is in the form of a note.

MR THOMSON: Yes.

KIEFEL CJ: It just sets out for the convenience of the Court the legislation.

MR THOMSON: Yes. In Vella, the problem was the one I had just mentioned about whether the standard was properly articulated. One thing that that problem does illustrate is that it is necessary for there to be a proper standard, and because we have adopted the standard in Fardon, we think that that is the appropriate standard that can apply here, and it would be unfortunate to go back behind that when so many pieces of legislation have been enacted upon the basis of that.

The difference between this case and Benbrika, in terms of the legislation is that the legislation used the risk of reoffending as a proxy for the question of harm to the community and then that gave rise to the question as to whether there was in fact a proper tailoring of the legislative aim and the legislative scheme, and we say that in this case there is in fact a direct link because the scheme is based upon evaluation of harm or risk to the community directly.

In terms of these same features of the legislation that I had been trying to summarise, I had mentioned that the primary objects of the legislation – how it is embedded in not only express terms, but also the definitional provisions, can I come to the scope of its operation in relation to serious offences, and I have shown you Schedule 1 which expands quite significantly upon the type of offences in Fardon, which was only a dangerous sex case.

Can we put it this way, that in a simplified manner all of the previous dangerous sex offender legislation offences that were in the previous West Australian equivalent to the Fardon legislation had been incorporated into Schedule 1, and most of the offences including robbery in item 34, which were the subject of the post‑sentence supervision order regime under the Sentence Administration Act, were included in Schedule 1, and that gives some context as to why you find these offences contained here.

The third point would make about the legislative scheme is that there is a significant process which must be followed before any final hearing for a restriction order, and that process ensures that the court conducting the final hearing is both informed and independent. That is particularly the case in relation to the independent psychiatric and psychological reports that have to be obtained. But you do not get to the stage of a final hearing unless an independent judicial officer has considered the legislation – sorry, the case – in advance at a preliminary hearing.

The fourth point is that if the matter goes to a final hearing, the Supreme Court will have the benefit of those independent medical reports before it and the ordinary rules of evidence apply in relation to legislative standards – subject to the extent to which they have been adjusted by the legislation. Then, the fifth point is that there is the capacity for review, under section 64, and there is a right of appeal against a final restriction order or a review decision under section 69.

So, that completes my review of the legislative scheme, if you like. I was proposing, then, to say something about the basis of the analysis that has been advanced for the appellant’s arguments and then turn to the particular arguments themselves. But the thing I would say about the appellant’s arguments is this – they start with a question about Chapter III and look at it from the perspective of what was said by Justice Gummow in Fardon and, as my friend acknowledged, Justice Gummow was the only judge in the majority who dealt with that question about Chapter III specifically – it was something that had been raised by the Commonwealth Solicitor‑General intervening. But the true test that comes out of all of the majority judgments is the question of whether the institutional integrity of the State court has been affected.

So, that question about institutional integrity can embody two different elements – the question of whether the inherent quality of the legislative regime – or legislative power – confers a function upon the court which is naturally inconsistent with it also being a repository of federal judicial power. An example of that type of case might be Totani, where there was function of enforcing the control order that had been made by the Executive and that made it inconsistent with it being a repository for federal judicial power.

So, that is a question that goes to inherent nature of the regime and the type of function that is involved. Then, there is a second question and that is the question about the way in which a power has to be exercised – that is, whether the provisions are so onerous or so different from what could be expected from a court that it, by reason of the way in which the regime is administered, involves something that is inconsistent with the institutional integrity of the court.

The way in which the appellant goes about its analysis – or his analysis – is to say that you have to look first as to the question as to whether it is judicial power within Chapter III and then that is a powerful consideration about whether it is inherently inconsistent with the institutional integrity of the Supreme Court. If it is not judicial power within the concepts of Chapter III, that would be a significant and substantial consideration to demonstrate – that it is not consistent with the integrity of the Supreme Court.

With respect, we say that that conflates the appropriate test to be adopted because it is starts with the question about Chapter III and then it moves to the question of institutional integrity. A mode of analysis has been used in cases about rights and declarations of substantive rights where the Court has said, on a number of occasions, that if legislation that declared rights and substantive liabilities was legislation that could have been enacted by the Commonwealth, then it would be legislation that could obviously have been enacted by the State legislature to be applied by the Supreme Court of that State.

Quite obviously the Mineralogy Case which I was involved in last year was exactly that and that was a case – that whole line of cases derives from a jurisprudence which developed in the Commonwealth sphere. So there was obviously a utility in going to the Commonwealth position and then saying, “Well, if the Commonwealth could do it, then we can do it using these looser Kable principles”.

But, with respect, there is no great utility in trying to start with the Chapter III question in circumstances where the type of function that we are dealing with here is perhaps not developed in the jurisprudence in relation to Chapter III, although of course we have Benbrika, but the basic case or cases of Fardon and Vella are cases that come from State legislation and State courts and they deal with the test of institutional integrity. So, with the greatest respect, we say that the analysis must start and end with questions of institutional integrity and that leads you into perhaps a difficult position if you start at a different point.

GAGELER J: At some stage in the analysis, Kable has to be considered in conjunction with Lim, does it not? To what extent does the Lim principle inform the nature of the power that can be conferred consistently with Kable?

MR THOMSON: Can I say that in relation to Fardon there was only really analysis of the Lim principle by Justice Gummow and it was mentioned and the footnote in the judgment of Chief Justice Gleeson has been shown to the Court, but there was no real analysis of the Lim principle in the basic case about this type of regime in considering questions of institutional integrity.

So, the Court at least in Fardon did not regard Lim and the Lim principle as having any great application or relevance to the question of institutional integrity. Can I back that up by also saying that his Honour Justice Gummow came to the view that the Lim principle actually did not answer the question, and then went on to answer the question in terms of institutional integrity at paragraphs 106 and following by reference to different considerations and in fact ‑ ‑ ‑

EDELMAN J: Mr Solicitor, is that really just one way of saying that at the core of the Lim principle is a principle about separation of powers, whereas the core of the institutional integrity question is what within the separation of judicial power can be done?

MR THOMSON: I think that is right. I certainly go along with everything up to the very last comment, and I just need to reflect on it, but I think that is exactly right.

EDELMAN J: Provided that a Supreme Court is exercising what would otherwise be judicial power within the notion of a separation of powers, the institutional integrity notion that is developed in Kable says, well, that is not the end of the question. One still needs to inquire whether the judicial power you are exercising is to be exercised in a proper manner.

MR THOMSON: That is exactly right, and that is the how question or the last question that I identified this morning. I certainly accept that. Can I just go back to the point that I was developing about the consideration of Justice Gummow in Fardon. While the other members of the Court who were in the majority in Fardon took as an important point for the purposes of institutional integrity the question about whether there was a protective purpose, that is in fact not how Justice Gummow reasoned when he came to the question of institutional integrity.

Perhaps I can take you to the relevant part of the decision in Fardon, and it starts are paragraph 106. He is now at this point dealing with the question of institutional integrity and he emphasised the following matters in saying that this was legislation that was consistent with the institutional integrity of the Queensland Supreme Court. First, he referred to the sui generis nature of the scheme at paragraph 107.

GORDON J: I am sorry to interrupt you, Mr Solicitor, but they are the conclusions and they proceed from a set of propositions which start at 100, one of which – the first is, as I understand it, in effect, picking up the Lim proposition. Am I right about that? I just want to make sure I understand – you accept that the propositions that are set out from paragraphs 100 through to really – well, preceding the heading “Conclusions”, identify a set of propositions from which he works, his Honour works.

MR THOMSON: Well, if we go back to paragraph 85, his Honour Justice Gummow 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.

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.

So he has drawn the distinction there quite clearly. Then although it is a set of conclusions from 106 onwards, really between 107 through to 120 are the reasons why his Honour concludes that the legislation in Fardon was consistent with the institutional integrity because his Honour has dealt with a different argument previously. So these are the real reasons, in our submission, as to why he concluded that it was consistent with the institutional integrity of the Court.

Paragraph 107 is really a reference to the sui generis nature of the scheme. In paragraph 108 he focuses upon the factum about ‑ which tracks the “operation of the Act”, which is the status of the person:

as a “prisoner” . . . who is presently detained in custody.

Obviously that is consistent with the legislation in this case. In paragraphs 109 to 113 he refers to the fact that a continuing detention order needed to be reviewed annually. Then if you go to paragraph 114 his Honour says:

The nature of the factum selected for the attraction of the Act (the definition of “prisoner” in s 5(6) and the subjection of continuing orders to annual “review” by the Supreme Court together support the maintenance of the institutional integrity of the Supreme Court.

Now, that encapsulates the reasoning of his Honour as to why this legislation was not inherently inconsistent with the institutional integrity of the court, and that reasoning actually does not refer to the protective purpose. So all of the other judges did focus upon the protective purpose of the legislation.

GAGELER J: So why would you be bothered with the protective purpose if you did not start with the notion in Lim and look for a protective exception to a court ordering the detention of someone only as a result of the adjudication of criminal guilt?

MR THOMSON: Your Honour, I accept that it is important to have a protective purpose. The only reason that I was going to this is because I think your Honour put to me that it was necessary to start with Chapter III in some circumstances and I was trying to demonstrate that Justice Gummow ‑ who was the only judge that did do it ‑ actually ended up assessing the institutional integrity of the court separately and differently.

KIEFEL CJ: The protective purpose and considerations raised in Lim were dealt with by the majority in Benbrika.

MR THOMSON: Absolutely.

KIEFEL CJ: What do you say that the majority held in Benbrika about these matters?

MR THOMSON: In relation to the question of the inherent nature of whether a preventative detention regime involves the exercise of judicial power we would submit that Benbrika certainly characterises the protective detention regime as judicial, and for that reason it could not be inherently inconsistent with the institutional integrity of the Supreme Court as a repository of federal power for it to be conferred with a judicial power. When I say “judicial” I mean “judicial” in the Chapter III sense, and we think that certainly that was also the view of the plurality in Vella. But Vella was a preventative ‑ ‑ ‑

KIEFEL CJ: In relation to Lim, did not the majority in Benbrika hold that it is the protective purpose of the legislation which qualifies it as an exception to Lim, and dealt with Justice Gummow’s view in that regard?

MR THOMSON: Yes.

KIEFEL CJ: Or the views expressed in Lim.

MR THOMSON: I do not want to, in any way, shape or form distract the Court from the fact that we say that it is important that there should be a protective purpose, and that this legislation has a protective purpose throughout it, and that, because it has a protective purpose, that a preventative detention regime to achieve that purpose, which is properly tailored to achieve it, is a regime which involves conferring a function involving the exercise of judicial power in the Chapter III sense upon the Supreme Court of Western Australia, and therefore there is no inherent inconsistency with the repository – with the Supreme Court of Western Australia being a repository of federal judicial power.

The point in Benbrika, and the plurality comments at paragraphs 35 and 36, in our submission, is that they clearly say that a preventative detention regime involves the exercise of judicial power, and they do not confine it to only preventative detention regimes that are of the nature of regimes designed to deal with violent sexual offenders or terrorists, and indeed in Vella the plurality say that a preventative order regime involves the exercise of judicial power, but they said that having regard to Fardon, and so, having, in that sense, inferentially confirmed that what was happening in Fardon involved the exercise of judicial power.

Now, that seems to be something that is not embraced by the appellant, because in their reply, and if I can take your Honours to it, they say in paragraph 2:

In answering the question as to whether the Act, in allowing a post‑sentence detention regime for a person who has committed robbery, contravenes the requirements of Ch III of the Constitution, the appellant contends that the power is not judicial power.

In our submission, that is not a proposition that should be accepted. The reason they have put that proposition is because they say it represents an expansion of the findings in Fardon to extend it from only sexual offences through to other types of serious offence, and in fact they invoke in their oral outline of submissions the concept of an existential threat as being the basis upon which you can have a preventative detention regime.

The words “existential threat” do not come from any judgment except Justice Gordon has used it once in characterising a submission, I think, that was then dismissed. But the principled basis upon which it is submitted that there could be – that this does not involve the exercise of judicial power to the extent that it involves a preventative detention regime in respect of robbery is that robbery does not create an existential threat.

Now, to some extent what has been suggested is that there is a proportionality‑type principle that means that you should not expand Fardon and cases about sex offenders and terrorists. With respect, it is true that the cases thus far have involved preventative detention regimes that have related to terrorists and to sex offenders, but it is not necessarily correct to say that anything else represents an expansion of principle. It might represent an expansion of the type of offences, but there is nothing to suggest that it represents an expansion of principle.

Can I deal with the question about confining the situation to only sex offences or offences of terrorism or offences that involve existential threats?

GAGELER J: Mr Solicitor, if Schedule 1 included the entirety of the Criminal Code, there would be no difference of principle raised, in your submission?

MR THOMSON: It might be that ‑ ‑ ‑

GORDON J: Sorry, I just did not hear what you said then.

MR THOMSON: Sorry, I had not finished my comment. If it included all range of simple offences – parking tickets, things of that nature – there may be a risk of reoffending but it is not going to cause an unacceptable risk of harm to society, so it should never be included in Schedule 1. But even if it was, it would never be sufficient to result in an order being made against somebody if there was a risk of that person reoffending by getting a parking ticket. Those are egregious examples right at the end.

In effect, when you are talking about matters like robbery, the question of the seriousness of the offence and the question about whether or not that is sufficiently serious to attract a preventative detention regime would involve this Court saying it is unconstitutional for a preventative detention regime to apply to that sort of an offence because it is not serious enough and could never be serious enough. But the question would be, well, what sort of constitutional standard is being applied to come to that view, and there is no indication within the Constitution about this Court assessing the seriousness or not of an offence for the purposes of it being capable of attracting a preventative detention regime.

In a sense, this is a reworking of the arguments that have been made about loss of public confidence in the court and it is expressly said in some of the submissions that have been made that it could not possibly be the case that these offences or this legislation operated in a particular way because it would cause a loss of public confidence. The Court has been very clear that it is not appropriate for it to become involved in assessing the nature or seriousness of offences for the purposes of using the loss of public confidence as a point of veto.

EDELMAN J: Mr Solicitor, just so I understand your answer to Justice Gageler’s question, is there any offence in the Criminal Code to which you say that as a matter of principle could not be included in the schedule?

MR THOMSON: Your Honour is asking me to focus upon the most minor offence that could possibly exist and therefore come ‑ ‑ ‑

EDELMAN J: There are offences in the schedule already which in some circumstances have a maximum imprisonment of 18 months. The Criminal Code does not deal with parking offences. Is there anything in the Criminal Code that in your submission could not be included in the schedule?

MR THOMSON: I am hesitant to come to an absolute final landing on the point but, as a matter of principle, probably not. But that should not provide a basis for your Honour to reason backwards from it because it is not really a matter that is before the Court, and there might be other consideration ultimately that have an implication for it.

GORDON J: It might be relevant, Mr Solicitor, I wonder, given the considerations under 7(3), because we are talking about pattern of offending and this comes back to the less than direct connection between the offence for which they are in gaol and that which is the subject of the application for the restriction order.

There are many cases that have come before this Court where one sees a pattern of offending that is not limited to one category of offending – one category of offence. So, I think the question does have some merit in it. In other words, you can have somebody who robs as well as does other conduct which does not constitute robbery.

MR THOMSON: Yes, although the definition in section 6 about commission of an offence does take into account those things that would include acts or omissions that would constitute robbery.

GORDON J: I am talking about other offences outside of robbery – drug dealing.

MR THOMSON: Yes, you can take into account a pattern of offending ‑ ‑ ‑

GORDON J: So, where is the line drawn? Is it the whole of the Criminal Code that is available?

MR THOMSON: In terms of taking into account matters that might then inform a conclusion of unacceptable risk, forward‑looking about the commission of a serious offence ‑ ‑ ‑

GORDON J: I am trying to work out how the Act is structured – and where the line is drawn and why.

MR THOMSON: As I have endeavoured to say at the outset of these submissions, there is both the backward‑looking aspect to the offences and a forward‑looking aspect. In order to activate it – or to be the possible subject for an application, you have to have committed a serious offence. If then you are in the zone for that reason, there is a forward‑looking question about whether there is an unacceptable risk of you committing a further serious offence. In assessing that risk, the Act says that you can take into account propensity and patterns of offending and those sorts of things. Any matter that is logically relevant and probative can be taken into account therefore, and in fact paragraph (j) does say:

any other relevant matter

So, to the extent that your Honour is asking where is the line drawn, the question that has to be determined by the court considering the application is, is there an unacceptable risk of a further serious offence being committed, but any relevant matter can be considered including previous offending – whether it be of a serious offence nature or not – but the logical and probative and relevant persuasive value of any other offending may or may not be great depending on the circumstances.

KIEFEL CJ: I think the question that was earlier put to you was whether or not any of the offences in the Criminal Code could in principle come within Schedule 1. If one looks at Schedule 1, Subdivision 4, item 1, for instance:

Seeking to induce person to act as prostitute -

what would be the protective purpose of a regime applying to an offence like that?

MR THOMSON: Your Honour is asking me about a very particular offence - perhaps I can respond to your Honour about that after lunch.

KIEFEL CJ: Yes, thank you. Yes, we have about five minutes to go.

MR THOMSON: I was actually trying to develop my answer about why, as a matter of principle, the expansion of the type of offences – at least to the level that has occurred – is not necessarily an expansion of legal principle, and that, in fact the type of limit that is being suggested does not involve the application of a constitutional standard, it involves in effect a court saying we do not think that it should extend this far and, if it did, it would cause a loss of public confidence.

GAGELER J: Mr Solicitor, I will tell you what my problem is. Lim says we live in a society where, excepting exceptional circumstances, people do not go to gaol unless they have been found by a court to have committed an offence, and then they go to gaol under sentence. Now, if we expand the schedule to include the Criminal Code, that is no longer the society in which we live. The exception is no longer the exception, and we live in a different society with courts performing a fundamentally different function of incarceration. That is my problem.

MR THOMSON: Certainly - and thank you for articulating it. Can I respond this way, by saying that the standard that is an enforceable standard is the question about the unacceptable risk of harm to the community, and that if you expand the range of offences in a way that your Honour has just contemplated, that fundamentally alters society, you really are going to have a difficulty in complying with that standard. So, the sanction for the standard at the moment is unacceptable risk to the community, and so that actually represents the limit and prevents what your Honour has just mentioned.

In a real sense that reflects what your Honour has just talked about - a change in the community or the society if there was a vast expansion. Well, the standard is an unacceptable risk to society to prevent it from being changed and threated by the activities of these type of people.

STEWARD J: Mr Solicitor, does the word “unacceptable” in that limit mean more than just high risk? Does it mean something about the quality of the harm that might take place to the community?

MR THOMSON: Well, there was discussion about whether or not you can go further in defining “unacceptable” in Fardon, and I would hesitate to try and put any sort of words around it because it is a self‑explanatory thing and it is a word that has been used in this context and also in the context of family law cases. M v M, I think was cited, and so forth.

KIEFEL CJ: In relation to Lim, it must be your position – I take it – that legislation has to qualify as a recognised exception to the principle in Lim, and it may do so by reference to its purpose.

MR THOMSON: Yes.

KIEFEL CJ: That has been held on more than one occasion.

MR THOMSON: Yes.

KIEFEL CJ: I think that might be a convenient time to adjourn.

AT 12.58 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 1.45 PM:

KIEFEL CJ: Yes, Mr Solicitor.

MR THOMSON: Thank you, your Honour. May I please commence by responding to a question that your Honour put to me before the break about section 7 of the Prostitution Act.

KIEFEL CJ: Yes.

MR THOMSON: It is quite a serious offence. The terms of the offence carry imprisonment for 10 years on an indictment, and a summary conviction penalty for three years, and the elements of the offence are these:

A person is not to –

(a) assault or threaten to assault anyone; or

(b) intimidate anyone; or

(c) supply or offer to supply a prohibited drug to anyone; or

(d) make a false representation or use any false pretence or other fraudulent means; or

(e) do anything else, or refrain from doing anything,

with the intention of inducing another person who is not a child to act, or continue to act, as a prostitute.

KIEFEL CJ: I see. Yes, thank you for that. I understand otherwise you would rely upon the exchange you had with Justice Keane to say it is for Parliament to determine which offences have the requisite connection with the need for public protection, or seriousness?

MR THOMSON: Absolutely, because, in a sense, however you work it, this is really just another way of dressing up the comments that have been made about public confidence, and those comments make it clear that it really is for the Parliament and not for the court to determine.

KIEFEL CJ: Yes.

MR THOMSON: In fact, Justice Corboy summarised it in his judgment, and – it is at paragraph 163 of his judgment, and his Honour said:

Concerns about maintaining public confidence in courts are about preserving their essential character – impartiality, independence, procedural fairness and open, reasoned decision making. In my view, the provisions of the HRSO Act are consistent with the essential character of this court as a court exercising both state and federal judicial power. The Act does not undermine public confidence in the court.

We would say, with great respect, that his Honour Justice Corboy has captured the role that public confidence plays and that is quite a limited role.

STEWARD J: I am sorry, Mr Solicitor, I misheard. Which paragraph?

MR THOMSON: Paragraph 163.

STEWARD J: Thank you for that.

KEANE J: I think it is actually 161 ‑ ‑ ‑

GORDON J: I think it is 161 ‑ ‑ ‑

MR THOMSON: I apologise, I was reading from my notes and obviously mis‑transcribed it. Can I then just deal with something that was part of an exchange between myself and Justice Gordon this morning about the PSSO Act? The PSSO regime comes into play at the end of a sentence, not at the time of a sentencing judge imposing the sentence. There are two parallel regimes. There is the regime relating to the PSSO matters and the HRSO regime.

The PSSO regime applies under the Sentence Administration Act, and is conducted by the Prisoners Review Board, and the HRSO regime initiates itself with the HRSO Board and then leads to the application that comes before the court and then the preliminary hearing and so forth. So in relation to the PSSO regime, if I can take your Honours to the Sentence Administration Act, and the parts of it contained in the joint book of authorities in volume 2 at tab 9, and page 315 is the particular one, section 74D. In that provision, it says:

(1) Before the end of a prisoner’s term, the Board –

That is the Prisoners Review Board:

must consider whether a post‑sentence supervision order should be made in respect of the prisoner.

(2) Subsection (1) applies whether or not the prisoner is subject to an early release order.

(3) If the Board, having regard to –

(a) the PSSO considerations relating to the prisoner; and

(b) the report made by the CEO under section 74C; and

(c) any other information about the prisoner brought to its attention,

decides that it is appropriate to make a post‑sentence supervision order in respect of the prisoner, the Board must do so.

That was the legislation as it stood at the time when it applied to Mr Garlett that has been amended. If I can take you to the High Risk Serious Offenders Act and the transitional provisions at section 108 - and this is on page 173 of the joint book of authorities if that is what your Honours are using - section 108 amends section 74D that I have just shown you and it says:

(3) Subject to subsection (5), the Board must make a PSSO in respect of the prisoner if it considers that the order is necessary for the prevention of harm to the community from further offending by the prisoner.

(4) In considering under subsection (3) whether a PSSO is necessary, the Board must have regard to –

the various considerations. Then:

(5) The Board must not make a PSSO in respect of a serious offender under restriction.

The PSSO only cuts in when a person is no longer in custody, but because the regimes operate in parallel what might happen is that a lesser version of the regime - the PSSO being a lesser version compared to the HRSO regime - might be pursued and a decision might be made before there is a preliminary hearing or a final hearing in relation to the HRSO regime. If that happens, then it may be that the court hearing the HRSO application will know of the PSSO restrictions that will apply to the offender when the offender is released from custody. In fact, it is inevitable that the court will know.

That will then be something that the court hearing the HRSO application will take into account in considering the risk of further offending to the community and whether it is sufficient that the risk should have been reduced by the terms of the PSSO regime, or whether it is necessary to go further and impose the supervision order under the HRSO or continue the detention. That provides some explanation for the comments of his Honour Chief Justice Quinlan.

EDELMAN J: Mr Solicitor, will a PSSO always be made if it is going to be made before an order under the HRSO Act?

MR THOMSON: Yes, it is possible that that is the case. If it is not the case, then subsection (5) says that:

The Board must not make a PSSO in respect of a serious offender under restriction.

I had been making submissions about whether the inherent nature of the preventative detention regime in this case meant that it was inconsistent with the institutional integrity of the Supreme Court and in effect I have covered the broad principles and many of the other things within those principles.

But there were three matters that were particularly identified this morning as potentially being matters that meant that the nature of this regime as it has been legislated was inconsistent inherently with the institutional integrity of the Supreme Court. Those matters were that there was a reversal of the onus in section 29 of the Act, that the use of the word “must” and not “may” in section 48 had a consequence and that it applies to a wider category of offences compared to the legislation in Fardon.

Now, in substance I have covered all of those matters, but can I say that the reversal of the onus, in our submission, is of no consequence for the reasons that I have already mentioned because it is relevant to the assessment of the risk and the person who knows about the compliance with the terms of the standard conditions of a supervision order is the offender themselves.

I have explained the particular operation of the condition in section 30(2)(f). In relation to the question about the category of offences, I was endeavouring to go through that prior to the lunch break. In relation to the point about “must” and not “may”, we have made the submissions about how there is a broad evaluation that has to be carried out and that it is only once that has been carried out and the judicial exercise has been performed according to a prescribed legislative standard that you ever get to the point of having to be compelled to make an order and we say that none of that is inconsistent with the institutional integrity of the Supreme Court.

So I just thought that it would be helpful to identify again those things and provide our responses to them because they seem to be the three matters relied upon specifically by the appellant.

Can I move then to the question about whether other matters mean that the preventative detention regime prescribed by the Act, while not inherently inconsistent with the terms of the institutional integrity of the Supreme Court, creates a problem about the way in which the regime requires decisions to be made.

The first matter that seems to have been relied upon by the appellant is the fact of no correspondence between the backward‑looking or previous offence and the forward‑looking or predicted offence. The submission that we make about that is one that I have already developed to a large extent. The particular reason that is given in the submissions by the appellant why a lack of correspondence between the previous offence and what is predicted as a possible further offence is because he says that this undermines the public confidence in the preventative detention regime, and because of that the institutional integrity of the court will be substantially impaired.

For reasons that I have endeavoured to already explain, it is not appropriate to have reference to the public confidence in that manner and, in any event, there can be a clear link demonstrated at a practical level and your Honours have seen the clusters of offences I have mentioned.

Can I then turn to the next matter that we have identified from the submissions of the appellant, and that is that the question about the definition of “community” in section 4, and our submission was that, properly construed, it could mean local communities. Perhaps I can elaborate a little bit and perhaps draw back slightly from that submission.

If you look at the offences that have occurred in the past, it might be that a serious offence could include offences from other jurisdictions. If you look at the terms of the High Risk Serious Offenders Act and section – but, of course, they have to be imprisoned in Australia – in Western Australia ‑ ‑ ‑

GORDON J: Not for those offences.

MR THOMSON: No, that is right. So, you can look backwards at things that have already happened. The activating offence, of course, needs to be one for which they are in prison in Western Australia because otherwise there would be no application under the Western Australian legislation. But you can look backwards at offences that have already been committed and they include offences – or the acts or omissions for offences that have occurred outside Australia. If you look at section 5, that is plain, through section 5(4).

There is an important point about that. It means that there can be times when a person may have committed offences internationally due to sex tourism or something of that nature, and that can be taken into account then looking backwards. But, if you are looking forward and you are looking at the offences which are likely to be committed into the future and evaluating that, if they are released on a supervision order, then they have to be present in Western Australia for the reasons that I have already mentioned.

So, that would be the relevant community, although, the idea of “community” could also extend to a regional community and so that if you are looking at a smaller community – that is to say, a person returning, say, to a regional town such as Albany or Port Hedland, or something of that nature, then that might be the relevant community to have regard to.

KIEFEL CJ: Does the definition also overcome an argument which might be presented that the offender would not be a risk to the community because it was intended to move out of Western Australia?

MR THOMSON: Yes.

EDELMAN J: Or even in a sex tourism‑type case out of Australia.

MR THOMSON: Yes, exactly. Again, the argument that has been put – and the way in which it is put by the appellant – deals with the institutional integrity upon the basis of a loss of public confidence. Again, for the reasons that I have already mentioned, that sort of submission ought not to be accepted.

In relation to the provisions about expert evidence, there is a submission that an assessment of an offender’s risk to the community may depend upon expert evidence which would not be admissible at a criminal trial. That is a submission made in paragraph 76 of the appellant’s submissions. There is a related submission that the assessment of an offender’s risk to the community may depend upon propensity evidence and that the Act requires preparation of psychological and psychiatric reports – even though there may be no reason to think that the psychological or psychiatric factors played any part in the offender’s past offending.

The points that we make in response are that, first, it is very well accepted in this Court that it is permissible for an evidentiary matter – within federal jurisdiction – to be the subject of legislative prescription – such as alterations to the relevant burden of proof. Your Honours know the cases – Williamson v Ah On and Commonwealth v Melbourne Harbour Trust and Labrador Liquor and Nicholas. They would not be cases that would attract the operation of the Kable principle. The requirement of independent psychiatric and psychological evidence is akin to the requirements in Fardon and Benbrika.

GORDON J: They were not mandatory as they are here. Here, under 46(2)(a) a court must order them.

MR THOMSON: Yes.

GORDON J: Then they are obliged to take them into account under 7(3)(a) as, in effect, a mandatory consideration.

MR THOMSON: Yes.

GORDON J: In fact, it may be the situation – I just want to test it – that, in effect, the only thing before the trial judge may be those reports and the prior conduct. Is that right?

MR THOMSON: The reports and – what was the other matter?

GORDON J: The conduct relied upon as the serious offences.

MR THOMSON: Yes, that is possible.

KIEFEL CJ: Although there is provision for other persons and bodies to make reports as well.

MR THOMSON: Yes, that is right. Yes, and also the offender can ‑ ‑ ‑

KIEFEL CJ: Presumably in relation to any parole or community corrections, and the like.

MR THOMSON: Yes, and the offender, also, can obtain their own psychological and psychiatric evidence, and so forth. The ordinary rules of evidence apply in the hearing.

KIEFEL CJ: I suppose the other persons who might give evidence in relation to an offender in relation to their rehabilitation and the course that their life has taken – they would be important matters.

MR THOMSON: Yes. Of course, although it may be mandatory for that material to be before the court, the court still has a standard that it has to apply. That material would have to be relevant and probative in respect of that standard. So, the prescription of having those materials before the court reflects the fact that in many situations, if not all situations, there will be some form of psychiatric or psychological aspect to these types of serious offences. But, even if you take the hypothesis that there is not, it has to be relevant and probative for the court to apply the standard.

So, on that basis, maybe there is not anything then to be applied if that is the argument that is being put. But, in our submission, whichever way you look at it, it is not going to be something that affects the institutional integrity of the WA Supreme Court, because the critical matter is the application of the standard that has been prescribed legislatively.

The same point applies about compliance with the standard conditions and the onus that is stated there. That is a matter that has been raised specifically by the appellant as meaning that there is something to do with the manner of the exercise of the power to impose a preventative detention regime that means it is inconsistent with the judicial – with the institutional integrity of the court. Those seem to be, if we can submit, the primary matters that have been raised in the submissions, both orally and in writing.

Can I conclude by making these points. The HRSO Act is closely modelled, not exactly the same but closely modelled upon the Queensland legislation in Fardon, and that legislation was upheld as being constitutionally valid. I make that point because it is significant that the Parliament of Western Australia has chosen to adopt a legislative model which has been approved by this Court, and in our submission unless there are very good reasons, the Parliament should be able to enact laws having regard to the likely effect of the precedents that have been set.

In that regard, the present legislation, in our submission, should be regarded as constitutionally valid without the Court entering into the policy debate that sometimes exists about the merits or disadvantages of extending the preventative detention regime to a wider range of serious offences and, in substance, the legislative regime has, as its object, the protection of the community from serious harm and it is not requiring the Supreme Court of Western Australia to implement anything other than a legislative objective in relation to the protection of the community, and it is not in any way usurping or identifying the functions of the court in respect of individual offenders. Those are our submissions.

KIEFEL CJ: Thank you, Mr Solicitor. Ms Mitchelmore.

MS MITCHELMORE: If the Court pleases. Your Honours, at paragraph 2 of our oral outline of submissions, we have referred to paragraph 3 of the reasons of the then Chief Justice in Fardon v Attorney‑General (Qld), where his Honour described the outcome of that case as turning on the nature of the functions which the Act at issue in that case conferred on the Supreme Court of Queensland.

KIEFEL CJ: Ms Mitchelmore, could you speak up just a little? I am sure it is not to do with you, it is the audio equipment, but I at least would be assisted if you could speak up a little more.

MS MITCHELMORE: Certainly. Is that better, your Honour?

KIEFEL CJ: Yes, thank you.

MS MITCHELMORE: Yes. Your Honour, I was referring to the reasons of Chief Justice Gleeson in Fardon v Attorney‑General (Qld), when his Honour described the outcome of that case as turning on the nature of the functions which that Act imposed on the Supreme Court of Queensland, and his Honour observed that if it was concluded that the functions imposed were:

not repugnant to the institutional integrity of that Court, the argument for invalidity fails.

The same point, we submit, arises for consideration in this case, and we submit that it can be determined on the same basis without analysing whether the Federal Parliament could enact the HRSO Act. As we have submitted in paragraph 13 of our written submissions, responding to a Kable challenge through the prism of the limits of Commonwealth judicial power can be useful but it does not follow from a negative answer to the question posed at the Commonwealth level that a State law which confers the impugned function or power on a State court is invalid by reason of the Kable principle.

So much is apparent from the decision in Fardon where, most obviously in the reasons of Justice Gummow, his Honour decided the question of whether the Federal Parliament could have enacted the law in question there adversely, but nonetheless held that the Act was not repugnant to the institutional integrity of the Supreme Court of Queensland.

So, in our submission, rather than ask first whether the HRSO Act at issue in this case would infringe Chapter III if enacted by the Commonwealth Parliament, this matter is appropriately to be resolved by turning directly to the Kable principle, and for the purposes of this analysis, as Justice Gummow observed in ‑ ‑ ‑

KIEFEL CJ: Ms Mitchelmore, I am sorry to interrupt you again, some members of the Bench are having trouble hearing. Do you have someone there who can adjust the volume on the audio?

MS MITCHELMORE: I think Mr Hosking can adjust in terms of whether we can hear or not, but I do not think that that assists in terms of the volume of the speakers. We might need to call someone in, your Honour. I apologise.

KIEFEL CJ: Do you have someone on hand who might be able to have a look at it?

MS MITCHELMORE: Yes. If Mr Hosking could just go and – if you will permit Mr Hosking to go and make an inquiry?

KIEFEL CJ: Yes, of course. What we might do, Ms Mitchelmore, is adjourn shortly so that we can involve our IT people as well. I am not sure whether it can be turned up at one end or the other, but it might be best if we adjourn shortly so that they can look into it.

MS MITCHELMORE: Yes, I apologise, your Honours.

KIEFEL CJ: Not a problem, thank you.

AT 2.12 PM SHORT ADJOURNMENT

UPON RESUMING AT 2.17 PM:

KIEFEL CJ: Yes, Ms Mitchelmore.

MS MITCHELMORE: Yes, hopefully that sound level is better for your Honours.

KIEFEL CJ: That is much better, thank you. Very clear.

MS MITCHELMORE: Excellent. Your Honours, the submission I was making was that rather than at first ask whether the HRSO Act would infringe Chapter III if enacted by Federal Parliament, the matter is appropriately to be resolved by turning directly to the Kable principle, and for the purposes of that analysis, as Justice Gummow observed in Fardon at paragraph 90:

the nature of the process for which the Act provides assumes particular importance.

At paragraph.....of the outline and in our written submissions at paragraphs 15 to 39 we have set out the features which in our submission are consistent with the.....making an independent and impartial determination on the basis of evidence as to which both parties have a right to be heard as to whether a restriction order should be made and, if so, whether that should be a continuing detention order or a supervision order.

Can I focus for present purposes on the features that are of concern to the appellant, primarily the inclusion of robbery as an offence in Schedule 1 and the reversal of the onus in section 29 of the Act. Dealing first with the question of the offence provision, it of course operates at the threshold of the application of the Act, and also going forward. The inclusion of an offence in Schedule 1 of the HRSO Act constitutes, in our submission, a legislative judgment as to persons whose offending conduct may be of concern from the standpoint of protection of the community.

Looking at the nature of the conduct that constitutes an offence under section 392 of the Criminal Code (WA) and the intended maximum penalties, the inclusion of section 392 in Schedule 1 does not, in our submission, of itself adversely impact on the Supreme Court’s institutional integrity in a manner which the Kable principle would intervene to protect. It does not follow, of course, from an application being able to be made in respect of an offender that the offender will be the subject of a restriction order, be that a detention or supervision order.

That in turn depends on whether the Court is satisfied as to the matters in a judicial determination of whether the offender the subject of the application is a high‑risk serious offender within the meaning of section 7(1) of the HRSO Act. Subsection (1) of course sets out the definition of “high risk serious offender”, with subsection (2) outlining where the onus lies and subsection (3) listing a range of matters to which the Supreme Court must have regard in considering whether it is satisfied as required by subsection (1).

As to the construction of section 7(1) and some of the questions which have fallen from the Bench and in oral submissions, can I take the Court to the reasons of Justice Corboy in the core appeal book at page 49 starting at paragraph 100 – I am so sorry, page 48 starting at paragraph 110 is the discussion of section 7(1) of the HRSO Act, and his Honour there identified a number of features. At paragraph 116 his Honour observes that:

the wording of s 7(1) of the HRSO Act differs from s 7(1) of the repealed DSO Act.

Section 7(1) of the repealed Act is there set out, and it was primarily - the language was contingent on the finding or satisfaction as to:

an unacceptable risk that, if the person were not subject to a continuing detention order or a supervision order, the person would commit a serious sexual offence.

Over the page at page 49 his Honour then dealt with section 7(3), and then from paragraph 126 and following his Honour dealt with the question of the differences in some respects between the repealed Act and the current Act and sought to construe section 7 in a particular way.

What I seek to emphasise, your Honours, is the passage at paragraph 128 on page 51 of the reasons for judgment of Justice Wheeler in Director of Public Prosecutions (WA) v Williams, your Honours have that, and your Honours will see at the first paragraph her Honour Justice Wheeler referred to the meaning of “unacceptable risk” and observed that it was:

unacceptable having regard to a variety of considerations which may include the likelihood of the person offending, the type of sexual offence which the person is likely to commit . . . and the consequences of making a finding that an unacceptable risk exists. That is, the judge is required to consider whether, having regard to the likelihood of the person offending and the offence likely to be committed, the risk of that offending is so unacceptable that, notwithstanding that the person has already been punished for whatever offence they may have actually committed, it is necessary in the interests of the community to ensure that the person is subject to further control or detention.

In our submission, looking at the language of section 7(1) as it is now, whether one sees it as a two‑stage inquiry or a composite one, the words regarding community protection and the necessity to make a restriction order to ensure adequate protection of the community at the very least informs, in our submission, the meaning of “unacceptable risk” for the purposes of that subsection.

One is looking at an unacceptable risk of a nature such that it is necessary to make a restriction order in relation to the offender to ensure adequate protection of the community against that particular risk. So, as I say, that formulation, in our submission, emphasises the protective purpose – perhaps, picking up on Justice Wheeler’s statement which Justice Corboy extracted at page 52 of the core appeal book.

As we have noted in paragraph 27 of our written submissions, the matters in section 7(3) direct the Court’s attention to the circumstances of the particular offender – the history of offending; any pattern of offending that history demonstrates; information as to whether they have a propensity to commit serious offences; attempts by the offender to rehabilitate and the reports prepared by the court‑appointed experts. The Court must also consider the risk that if the offender were not subject to a restriction order, the offender would commit a serious offence as defined and the need to protect the community from that risk.

The critical point, for present purposes, is that the Court is undertaking an inquiry of substance by reference to criteria – susceptible of judicial application – which involves the consideration and weighing of factors that may point in different directions. Before the Court comes to make any determination under the Act, there are, of course, a number of procedural steps which lead up to that and those procedural steps have been canvassed by counsel for the appellant and for the second respondent – and I will not traverse them.

Could I just say something briefly about offender disclosure – which is section 41 of the Act. If your Honours have section 41, your Honours will see subsection (2) refers to a period of:

at least 28 days before the day fixed under section 46 for the hearing of a restriction order application –

In our submission, properly construed, the particular disclosure that is required is before the actual hearing of the final application. If your Honours go to section 46, your Honours will see that one of the orders that the court must make, in section 46(2)(d) is that it must:

fix a day for the hearing of the restriction order application –

So, in our submission, what section 41(2) is referring to is that date. So, 28 days before the hearing of the final application rather than the preliminary hearing because one could understand why expert evidence and objections might not be necessary at the point of a preliminary hearing, given that the different standard that is there being applied is actually for the final hearing where that material must be provided and objections must be given.

Certainly, in the event that the court were to decide adversely to the applicant that there were not reasonable grounds for believing that the court might, in accordance with section 7, find that the offender was a high‑risk serious offender under section 46(1), there would be no cause for the offender to have had to disclose any material to the State or to the court.

Your Honours, at the final hearing, the court must hear evidence called by the State and the offender if the offender elects to give or call evidence noting that the ordinary rules apply except as modified by section 84(5). Your Honour Justice Gordon raised a question with my learned friend, the Solicitor for Western Australia, about the types of material that might be before the court. Some indication for that might be given by section 34 of the Act which sets out what is described as “evidentiary material” which is relevant to the State’s duty of disclosure, more generally but your Honours will see that that includes not only statements that may be given in relation to evidence that is relevant to the application, your Honours will see that that is irrespective of whether or not it assists the case of the State or of the offender, and other materials.

It also includes a copy of every other document or object that the State intends to tender in evidence at the hearing and a copy of every other document or object that may assist the offender’s case. So, one could imagine while that is the disclosable material, some information of that nature may find its way to the court on a final hearing of an application.

Section 84 of course deals with the application of the rules of evidence. There is of course in subsection (5) perhaps a winding back of the rules insofar as there is allowing the court to receive in evidence particular documents and material which includes any relevant material of the kind mentioned in section 7(3) relating to the offender.

The only point I would seek to make in that regard is of course there are factors in section 7(3) that may well be of assistance to an offender, for example, his or her participation in rehabilitation such that insofar as there is a relaxing of the rules of evidence that relaxation may assist not only the State but also the offender.

Coming then to section 48. In our submission, the state of satisfaction that section 48(1) read with section 7(1) requires is the product of a procedure which is consistent with the judicial process. Insofar as the subsection requires a prediction as to the commission of a serious offence, the inclusion of section 392 of the Criminal Code in Schedule 1, as an offence to which the predictive exercise applies, we have noted in our submissions that one of the elements of the offence is of course the use or threat of use of violence. In circumstances where the offender is armed or pretends to be armed – as in the present case – the maximum sentence for robbery is life imprisonment.

In our submission, the offence in section 392 of the Criminal Code is of a nature that the Supreme Court could be satisfied that the risk of an offender committing that offence carried a threat of harm to the community sufficient to make the risk of commission of the offence unacceptable, and in respect of which it may be necessary to make a restriction order – as defined – to ensure adequate protection of the community.

The court’s decision on that question – where the offence concerned is section 392 of the Code, is inevitably going to depend on its assessment of the circumstances of the particular offender having regard to the factors in section 7(3), and in respect of that the court is required by section 28 to give detailed reasons in relation to that assessment.

Where a continuing detention order is made those reasons would also need to include the reasons as to why the court was not satisfied, on the balance of probabilities, that the offender was substantially complying with the standard conditions of an order. In our submission, the nature of the standard conditions is consistent with the protective purpose of the regime, and the focus of those conditions is managing the identified risk presented by the offender.

The legislature has not imposed that requirement in absolute terms, but rather by reference to substantial compliance, and, in our submission, in deciding whether an offender will comply – substantially comply with the conditions – the Supreme Court would not consider each of those conditions in isolation, but rather as a whole because if the court was satisfied, for example, on the balance of probabilities, that an offender would substantially comply with each of the other conditions in section 30(2), the court may well be satisfied that it is more likely than not that the offender will not commit a serious offence during the period of the supervision order, even if the court may not have been so satisfied as to that in the absence of those other conditions.

For example, the court may be satisfied that there is an unacceptable risk that an offender will commit arson if he is permitted to travel to regional or rural areas with significant amounts of vegetation, but perhaps not in metropolitan areas if the pattern of offending, for example, is lighting of bushfires. The court may also be satisfied on the balance of probabilities that, if the offender is subject to an electronic monitoring condition – and a condition which prohibits him from travelling to regional or rural areas – the offender will not commit arson.

Other matters that might be relevant in that respect may be information obtained from the relevant experts as to whether the offender has any difficulties generally complying with conditions – his or her custodial record in terms of whether that shows compliance with conditions while in custody might also be relevant in that regard. But, in our submission, the way to look at section 30(2) is to – and the way that, in our submission, the court would look at it – would be to look at each of those but by reference to each other and not in a vacuum.

Your Honours, in our submission, it is also relevant of course that the appeal – or the decision may be the subject of an appeal as of right
under section 69 – which appeal is by way of rehearing – and we have made the point in our written submissions that insofar as section 69(3)(e) was concerned, our submission was that that may best be construed as ensuring that there cannot be an appeal from an appeal – it is not to preclude application for special leave to the High Court – which would have its own problems.

So, in our submission, your Honours, the Act places the power to make a restriction order in the hands of a superior court, resting upon matters of evaluative judgment, with which the Supreme Court is familiar, and which it is well placed to make at a particular standard, and on the basis of evidence say for particular exceptions to that otherwise general rule.

Unless there was anything further, your Honours, those are our submissions.

KIEFEL CJ: Yes, thank you, Ms Mitchelmore. Solicitor‑General for New South Wales.

MR SEXTON: If the Court pleases. In view of the earlier submissions, we just have three short points to make. The first of those in not in the oral outline because it has come out of oral argument and that is to note that normally there would be some concurrence between the original offences and the offences that are the subject of the allegedly unacceptable risk occurring, but that this would not always necessarily be so.

Can I refer your Honours to the case of Lawrence v New South Wales [2020] NSWCA 248; (2020) 103 NSWLR 401 – it is not in the book, your Honours, but I do not think your Honours need it in front of you – only to note that Mr Lawrence was originally sentenced for various offences, but none of them were offences relating to terrorism. He was, however, while in prison, the subject of an interim detention order made by a judge of the New South Wales Supreme Court under the Terrorism (High Risk Offenders) Act 2017 (NSW).

The basis for the order was his conduct in prison and the finding of the court was that that conduct evinced evidence of an unacceptable risk of committing a serious terrorism offence if he was to be released in prison. So, your Honours, that is an example, we would say, where there is not a strict concurrence between the original offences and offences that might later be committed.

Your Honours, the second point is a more general one. There seem to be two strains to the plaintiff’s argument: one that the legislation is in breach of the Lim principle, and the other that it contravenes the Kable principle. As to Lim, we would say that the short answer to that submission
is contained in Benbrika at paragraph [36]. Your Honours have been taken to that paragraph on a number of occasions where it said that the protective purpose of legislation qualifies as an exception to the Lim principle, and that would seem to us to be a conclusive answer to that strain of the appellant’s argument.

As to the Kable principle, your Honours have been taken again on a number of occasion to Chief Justice Gleeson’s summary of the legislation in Fardon at paragraph 6 and we would say that, while the two pieces of legislation are not identical, the similarities are very close despite the appellant’s submissions in some respects to the contrary.

A majority of the Court in Fardon considered specifically that the Queensland legislation involved an exercise of judicial power by the Queensland Supreme Court: Chief Justice Gleeson at paragraph 19, Justice McHugh at 34, Justices Callinan and Heydon at 229, and the majority in Benbrika at paragraph [14] referred with approval to that paragraph of Justice McHugh’s judgment in Fardon and added at paragraph [35] of Benbrika that the legislation under consideration in that case was also an exercise of judicial power.

Having found that in Fardon, the majority in that case then considered that the legislation did not adversely affect the institutional integrity of the Queensland Supreme Court, given that the adjudicative process required in making the supervision of detention orders could be performed independently of any instruction, advice or whiff of the legislative or executive branches of government.

Your Honours, the third point, which is also not in the outline because it has arisen in oral argument, is that any question of proportionality, which is a concept that has been raised in some form by the appellant – that any question of proportionality, we would say, in this case with this legislation is left to the court in the sense that if detention is disproportionate, the court will order supervision or no restriction at all, and that even in the case of robbery, detention may be.....and, for example, your Honour the Chief Justice raised the instance of robbery by way of home invasions where it might be thought that that was a case where detention was not disproportionate in terms of the orders that were about to be made.

Unless there are any other matters, your Honours, those are our submissions.

KIEFEL CJ: Yes, thank you, Mr Solicitor. Solicitor‑General for Queensland.

MR THOMPSON: May it please the Court. Can I address four points. Some of them arise from the exchange which has occurred orally and are not in our outline. I will be as brief as possible. The first point is this. At transcript page 13, line 530 yesterday, your Honour Justice Gordon referred to the requirement in section 41(2) for disclosure of expert evidence. That has been touched on by the Attorney for the Commonwealth. In the following line at 541 Mr Donaldson made the observation that the requirement for disclosure of expert evidence is unlike a regular criminal proceeding.

In fact, your Honours, the requirement of an offender to disclose expert evidence before trial is a common provision in legislation addressing criminal procedure. Examples of that appear in the Criminal Procedure Act 2004 (WA) in section 62(4)(b), in the Criminal Code (Qld) in section 590B, in the Criminal Procedure Act 1986 (NSW) in section 143(1)(h), in the Criminal Procedure Act (Vic) in section 189 and in the Criminal Procedure Act 1921 (SA) in section 123(4)(e). So, it is not irregular in the sense of criminal proceedings to require an offender to make disclosure of expert evidence before trial.

The next point that we would like to address is the submission made by our learned friend, Mr Donaldson, in response to an exchange with Justice Steward – again, yesterday – at page 21 of the transcript, line 891, in which it was said that the operation of sections 29 and 48 led to a “one‑way street to detention” and support for that submission appears to have been based on two propositions, the first being the requirement in section 48(2), that adequate protection of the community is the paramount consideration when making an order under section 48(1), and the second being the requirement in section 29 for a judge to be satisfied that there will be substantial compliance with the “standard conditions” of the supervision order before making such an order, including the standard condition in section 30(2)(f) to:

not commit a serious offence during the period of the order -

In our submission that submission by our learned friend should not be accepted. We did circulate to the parties and to the Court two West Australian Supreme Court decisions this morning. Can I inquire whether the Court received those cases – State of Western Australia v Patrick ‑ ‑ ‑

KIEFEL CJ: Yes, we have them. Thank you, Mr Solicitor.

MR THOMPSON: Thank you, your Honour. So, we would ask the Court in relation to the decision of Justice Derrick in State of Western Australia v Patrick to have regard to what appears in his Honour’s reasons at paragraph 55. I will not read it extensively, but what one sees there is that there is an element in the analysis to be undertaken in the process of applying this legislation, which focuses on an expression which has not really been the subject of much debate – any at all – during the course of this hearing and that is the requirement of adequate protection and the qualification, which is imported both into section 7(1) as well into section 48 by the use of that expression. So, there are two stages in the process in which the court looks to determine whether there is adequate protection. The passage from Justice Beech referred to by Justice Derrick, identifies that that is a “qualitative assessment” taking into account:

conditions which can be placed on a supervision order so as to ensure the adequate protection of the community-

and includes, as that passage identifies:

weighing of the nature and degree of risk in the context of methods for the management and reduction of that risk.

The second case was a case of The State of Western Australia v ACJ [2021] WASC 219,a decision of Justice Fiannaca. The relevant passage to which we would refer the Court is paragraph 32 of that judgment, which again deals with this element of the need for a qualitative assessment by reference to the expression “adequate”.

The same approach, with respect, was adopted in Queensland, in the Queensland Court of Appeal in a decision we refer to in paragraph 36 of our written submissions in Attorney-General v Francis [2007] 1 Qd R 396 at 405 in paragraph 39 of the reasons of Justices of Appeal Keane and Holmes and Justice Dutney. The equivalent provision is contained in section 13(6) of the Queensland legislation upheld in Fardon.

As to the second aspect of Mr Donaldson’s submission, read together, in our submission, sections 29 and 30, relevantly provide that a court cannot make, affirm or amend a supervision order in relation to an offender unless it is satisfied on the balance of probabilities that the offender will substantially comply with the standard conditions – including the standard condition that the offender not commit a serious offence during the period of the order – that is the provision in section 30(2)(f) to which the Court has been taken.

As we understood the submission, it was to the effect that the court could never be able to be satisfied in respect of the standard conditions in section 30(2)(f). Again, we would submit that section 29(1) does not require the court to be satisfied on the balance of probabilities in isolation that the offender will not commit a serious offence if released without condition.

The supervisory order must contain a number of other provisions. Section 29(1) requires a court to be satisfied that the offender will substantially comply with the condition not to commit a serious offence in circumstances where the offender is subject to a supervision order, which includes other standard conditions – and indeed, as section 30 identifies, there may be additional conditions appropriate to ensure adequate protection of the community.

Again, this is consistent with the way in which the provision has been interpreted and consistent with respect to the observations which were made by Justice Keane in the course of the exchange about this question. If one goes to the decision which we circulated, of Western Australia v ACJ, at paragraph 416, one sees there that Justice Fiannaca says:

The question of whether the respondent will substantially comply with the standard conditions of the supervision order requires consideration of all of the circumstances, both personal to him and external, which will affect him. External circumstances include the conditions of the supervision order, the available means to monitor, supervise and treat him, and any pro‑social support available to him.

Can I then, if it pleases the Court, make a short submission about Moffatt, which is a decision referred to in our written outline as well as our oral outline of submissions, in paragraphs 8 and following. It may be said that Moffatt concerned a detention order being made at the time of original sentencing but in fact, if one goes to the reasons of Justice Hayne – Justice of Appeal, as his Honour then was – at pages 252 and 253 – it is in volume 8, case number 45, at pages 2722 and on 2723, one will see ‑ ‑ ‑

GORDON J: Sorry, what page number was that, Mr Solicitor? I missed the page number of the report.

MR THOMSON: I am very sorry, your Honour. It is in the report, at the bottom of page 252, and on to page 253. What one would see from that passage is that the attack which was advanced in respect to the Kable principle in fact focused on the review process. So about two‑thirds down the page his Honour refers to Chester and then immediately before the last paragraph he says:

Provisions for preventative detention are, therefore, not new.

No doubt it was with this background in mind that counsel for the applicant focused upon the review provisions in the legislation rather than upon anymore general proposition about power to impose an indefinite sentence. Most of the legislation providing for indefinite sentences to which our attention has been drawn has provided for any review of that sentence to be by the executive rather than the judiciary -

His Honour goes on to on the next page identify the basis of the attack – the Kable attack in that case, and the complaint centred around the continuing administration, as one sees from line 10 on the next page, and that is then rejected towards the bottom of the page at line 43. So Moffatt is not really distinguishable on the basis that it involved a case involving detention at the beginning of the sentence because the review issue was the central issue to the challenge.

The second thing we say about Moffatt – and we accept of course that Moffatt is a rape case – but Moffatt encompassed a suite of serious offences including robbery and there is no suggestion in the reference to Moffatt in Fardon and in particular in the reasons of the Chief Justice which would suggest that there were any indications that that cast the question of the court’s integrity into any doubt. So we do rely on Moffatt.

EDELMAN J: Mr Solicitor, Moffatt was still a case where the indefinite detention was for an offence that had been committed, not an offence that might be committed.

MR THOMPSON: I think that is correct, your Honour, yes. So there was that relevant link. Then can I simply make a further submission in relation to the point about the expression “must” which appears in the current section 48(1) and the difference between that expression “must” and the use of the expression “may” in section 13(5) of the legislation before this Court in Fardon.

We just make one point about that. We do not make anything more than observing that Justice Gummow at paragraph 109 of the reasons in Fardon at page 882 – it is tab 20, volume 4 – interpreted the word “may” in section 13(5) as meaning “must” and Justice Hayne at paragraph 196 in Fardon agreed relevantly with Justice Gummow in respect of ‑ ‑ ‑

EDELMAN J: That was a minority view, was it not, Mr Solicitor?

MR THOMPSON: Yes, it was, your Honour, but the point we make about it is that that expression “must” as opposed to “may” – and we make no suggestion that that is how the section.....interpreted because there are subsequent decisions in Queensland in the Court of Appeal which interpret “may” as meaning “may”, but the only point we make is that that fact as interpreted as being “must” did not influence the outcome of
Justices Gummow or Hayne in Fardon. That was not considered a matter of significance in that case.

The final point we wish to make is this. Your Honours, we, as we say in paragraph 7 of our written outline, are unable to identify any coherent or principled basis upon which the court could distinguish in terms of a question of the severity and potential harm caused by sexual offending as opposed to the severity and potential harm caused by robbery or, indeed, other serious offences in the schedule to the Act.

In our submission, section 7 does the work and it is not a matter for the Court really to import some limitation on the State legislature distinguishing between an offence of robbery on the one hand and a sexual offence of the kind which was the subject of proceedings in Fardon. There will be degrees of seriousness, there will be degrees of potential harm and section 7 is the provision which deals with that.

It is not within the scope of the Court to make those decisions in circumstances where there is such a range of potential circumstances.....or otherwise of those offences in a particular case.

Unless there is something further we can assist with, those are our submissions, if it please the Court.

KIEFEL CJ: Thank you, Mr Solicitor. Solicitor‑General for South Australia.

MR WAIT: Thank you, your Honour. Consistently with the submissions advanced by Western Australia.....the interveners, South Australia submits that the scheme provided for by the Act is not relevantly distinguishable from those schemes that were considered by the Court in Benbrika and in Fardon such that the appellant’s challenges based on the separation of powers and Kable doctrine respectively should fail. On these issues South Australia is content to rely on its written submissions.

South Australia has also responded in writing to the appellant’s submissions concerning the use of history, departures from traditional judicial process and public confidence. However, given the shift in the emphasis that can be seen from the appellant’s written submissions and the oral submissions that have been advanced, South Australia is also content to rely on its written submissions on these topics as well.

Finally, as to the relevance of the Lim principle to the Kable analysis to be undertaken in this case, South Australia adopts Western Australia’s submission that, consistently with the approach taken by Justice Gummow in Fardon, the question of whether the conferral of a preventative power on
a State court would offend the Lim principle is distinct to and should not be conflated with the analysis required by the Kable doctrine.

Questions of proportion and the principle that exceptional cases of.....detention may only be ordered by – as a consequence of a finding of criminal guilt are matters that at a State level ultimately fall to be maintained in the absence of the separation of powers by sound legislative policy held to account by the doctrines of representative and responsible government.

Unless the Court has any questions, those are the submissions for South Australia.

KIEFEL CJ: Yes, thank you. Solicitor‑General for Victoria.

MS ORR: If the Court pleases. The issue on which we wish to focus in our oral submissions is the significance of the specification by the Act of robbery as a serious offence. That specification has been a focus of the appellant’s submissions this morning, the written submissions, particularly the appellant’s written submissions in reply.

In that reply, the question for the Court was framed by the appellant in this way: what is the principal basis for expanding the categories of offenders who can be validly the subject of post‑sentence detention to include those convicted of robbery? That is from paragraph 4 of the appellant’s reply and, with respect, we say that that is not the correct question for the Court in this proceeding.

The correct question is whether the Act has the effect of substantially impairing the institutional integrity of the Supreme Court of Western Australia. The concept of categories invoked by the appellant is relevant to the Kable analysis, but not because the validity of preventative order regimes will depend upon a category of offenders who can be the subject of such orders.

Instead, in Vella the plurality judgment recognised at paragraph 56 the development of categories of legislation that will infringe the Kable principle and the importance of those categories being underpinned by a principled, coherent and systematic development of the law, rather than as evaluations of specific instances.

The corollary of that point is that categories of legislation that will not infringe the Kable principle have also developed and our submission is that whether one approaches the issue before the Court in this case through the lens of categories that will infringe the Kable principle or the categories of cases that will not infringe the Kable principle, the specification of robbery as a serious offence does not lead to invalidity.

If I could deal first with categories of legislation that this Court has recognised will not infringe the Kable principle, our submission is that this Act falls into one of those categories, and that category is preventative order schemes that confer powers on a court with certain key features, namely, the powers have a protective purpose, the powers require the court to make evaluative judgments about the risk posed by an individual and what is needed to protect the community from that risk, and the powers are to be exercised in accordance with procedures that are the ordinary incidence of the exercise of judicial power.

Like the other preventative order regimes that this Court has held to be valid, the power to make a restriction order does have a protective purpose, and I will expand a little on that. It is conditioned on the Supreme Court of Western Australia making evaluative judgments, including a risk assessment and a balancing exercise by reference to criteria readily capable of judicial application and the power is to be exercised in accordance with the ordinary incidence of the exercise of judicial power.

The Western Australian Parliament’s decision to specify robbery as a serious offence for the purposes of the Act does not change the fact that each of those key features of valid preventative order regimes are present in this Act. It does not change the fact that features of legislation that have been held to be invalid in accordance with the Kable principle are not present in this Act and it is not a feature that of itself causes invalidity.

We say that the protective purpose of the Act does not depend on the character of the offences that are designated by the legislature to be serious offences. But it is reinforced in this case by the legislature’s decision to specify only certain offences as being serious offences and in assessing whether this Act has a protective purpose, we say it is not useful to try and establish which other offences Parliament could have chosen to designate as serious offences. Parliament did not choose to designate any other offences as serious offences and the question must be whether, having made that choice, the Act can be seen to have a protective purpose.

The particular offences that the Western Australian Parliament has selected as serious offences in this legislation are those offences that it has judged are capable of causing harm of a kind that the community may need to be protected against by the making of a restriction order and we join with the second respondent and other interveners in making the submission that the judgment as to which offences are capable of causing that kind of harm is a matter for Parliament.

A key plank of the appellant’s case appears to be that robbery is incapable of being such an offence. The risk that a robbery will be committed can never be serious enough to give rise to a need for the sort of community protection to which the Act is directed. We say that suggestion should be rejected by the Court and, as we have made clear in our written submissions, we see one way of assessing the potential seriousness of an offence to be the maximum penalty that Parliament has prescribed for its commission and, as the Court has heard, for robbery the maximum penalty ranges between 14 years, 20 years and life imprisonment, depending upon the circumstances of the offending.

As Justice Keane explained in Magaming v The Queen [2013] HCA 40; (2013) 252 CLR 381 at paragraph 105 – I will not take your Honours to it, but it is in volume 5 of the joint book of authorities at tab 28. Justice Keane emphasised that:

The enactment of sentences by the legislature, whether as a maxima or minima, involves the resolution of broad issues of policy by the exercise of legislative power. A sentence enacted by the legislature reflects policy‑driven assessments of the desirability of the ends pursued by the legislation, and of the means by which those ends might be achieved. It is distinctly the province of the legislature to gauge the seriousness of what is seen as an undesirable activity affecting the peace, order and good government - –

Thus, where Parliament has fixed for a particular offence a maximum penalty of a term of imprisonment that is of significant length, as is the case for robbery, it can be inferred that Parliament has decided that the commission of that offence is capable of having serious consequences for at least some part of society.

In our submission, a power such as the power to make a restriction order which is directed to protecting the community against an unacceptable risk that a person might commit an offence that Parliament has designated as a serious offence, necessarily has a protective character. We refer the Court to the statements made by Justice Edelman in Benbrika, at paragraph [228] of that decision:

“conduct is regarded as criminal for the very reason that its commission harms society, or some part of it” and it is rarely the role of a court to second‑guess Parliament’s decision about the seriousness of the harm that various crimes will have to the community.

At times this morning, the appellant’s submission appeared directed to a criticism of the range of offending that is covered in the offences that are designated as serious offences in this legislation. Could we direct your Honours, in that respect, still to Justice Edelman’s judgment in Benbrika where Justice Edelman, at paragraph [230], noted:

the vase range and “spectrum of conduct” involved in the included sexual offences –

included in the legislation that was under consideration in Fardon, his Honour observed that, notwithstanding that, the Court had there not second‑guessed:

Parliament’s that all such offences could potentially involve harm to the community sufficient to permit consideration of a continuing detention order.

Similarly, in Vella, the fact that the scheme there under consideration was not confined to specific categories of offences did not cause it to be invalid. The power in that case was conditioned, relevantly, on the Court being satisfied that the person had been convicted of a serious criminal offence or had been involved in serious crime‑related activity and that there were reasonable grounds to believe that the making of the order would protect the public by preventing, restricting or disrupting involvement by the person in serious crime‑related activities. As the Chief Justice observed, at paragraph 3 of Vella, the definition of:

“Serious criminal offence” . . . is very wide. “Involved in serious crime related activity” refers to the person having engaged in serious crime related activity, conduct that has facilitated another person’s engagement in such activity, or conduct that is like to facilitate such activity.

Finally, as to the cases, or categories of cases, where the Kable principle has been held to have been infringed, the specification of robbery as a serious offence does not lead the Act to exhibit any of the features of the legislation that was determined to be invalid in the cases of Kable, Totani, Wainohu and International Finance Trust.

The Act preserves the independence of the Court and the ordinary incidence of judicial process. There is no enlistment of the kind considered in Totani. The Court is required to give reasons – unlike the judges acting personae designatae in Wainohu. The respondent to an application has the opportunity to participate in the court process, thereby avoiding the type of problem that arose in International Finance Trust – that is, the specification of robbery as a serious offence does not effect the fundamental requirements of the judicial process or effect any enlistment of the Court. To put it in the terms used by the joint judgment in Vella, the Act is not
within a category of extreme legislation that impairs a court’s institutional integrity.

Those are our submissions, if the Court pleases.

KIEFEL CJ: Thank you. Solicitor‑General for Tasmania.

MS KAY: Thank you, your Honour. Your Honour, the points that we wish to make have been adequately canvassed by the others, particularly the interveners. We agree with their submissions, and we adopt them. In light of that we simply rely on our written submissions. If it please.

KIEFEL CJ: Thank you, Ms Solicitor. Reply, Mr Donaldson?

MR DONALDSON: Your Honours, in my respectful submission it is not an answer to the challenge that was made – being made to the validity of this Act to contend that the inclusion of any and all criminal offences – which is the worst‑case scenario – is not problematic because for some offences it is as a matter of certainty that detention would not be ordered and it would never be ordered by reason of the operation of section 7. That is not an answer, in our submission, to the challenge that is being made.

In fact, let it be assumed that the Criminal Code was inserted into the back of this legislation. There was a challenge to it on the basis that – on the basis of a challenge to one of the less serious offences, if I can put it that way – and it was said to defend the regime that there are certain matters in the operation of this legislation, that although there is a power to detain, the court will never exercise that power by reason of the operation of the discretions that it has in section 7.

Then one goes to consider the effect on public confidence in the court of that. So, the public would have an understanding – or the community would have an understanding that the court has a power to order detention for the purpose of protecting the community that it will never exercise, and that scenario is, in my submission, more likely to undermine public confidence in the court than perhaps anything else.

So, in our submission, the response of my learned friend, Mr Thomson, to what do you say about putting the whole of the Criminal Code in the back of the Act, which is to say, well, the Act will deal with that, perhaps gives rise to greater issues than it solves.

Your Honours, obviously enough the last day and a half have been concerned with our attempt to seek to find a basis for differentiating cases like Benbrika and Fardon, where we do not contend that a detention regime in relation to those kinds of offences is valid. A different case for
detention – and examples have been used – let us say a case of detention for not wearing a bike helmet - we have sought to advance to the Court a circumstance or a principled basis upon which a differentiation can be drawn between Fardon and Benbrika on one side, and trivial cases on another.

That is, I will not repeat myself, but whether detention is a means to affect a relevant object of an Act that is either sufficiently tailored to achieve it or proportionate to it in the sense that I have indicated. But, with respect, on any analysis it is necessary for there to be a differentiator between cases such as Benbrika and Fardon, and a power of detention for not wearing a bicycle helmet. May it please the Court.

KIEFEL CJ: Yes, thank you. The Court reserves its decision in this matter and adjourns to 2.15 p.m. on Tuesday, 15 March.

AT 3.20 PM THE MATTER WAS ADJOURNED