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THE STATE OF WESTERN AUSTRALIA -v- GARLETT [2021] WASC 387 (10 November 2021)

Last Updated: 10 November 2021

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : THE STATE OF WESTERN AUSTRALIA -v- GARLETT [2021] WASC 387

CORAM : CORBOY J

HEARD : 13 OCTOBER 2021

DELIVERED : 18 OCTOBER 2021

PUBLISHED : 10 NOVEMBER 2021

FILE NO/S : SO 8 of 2021

BETWEEN : THE STATE OF WESTERN AUSTRALIA

Applicant

AND

PETER ROBERT GARLETT

Respondent

THE ATTORNEY GENERAL OF WESTERN AUSTRALIA

Intervenor

Constitutional law - High Risk Serious Offenders Act 2020 (WA) - Whether the High Risk Serious Offenders Act is repugnant to or incompatible with the institutional integrity of the Supreme Court as a Chapter III Court - Whether the High Risk Serious Offenders Act is punitive or preventative legislation - Whether the High Risk Serious Offenders Act is inconsistent with s 9(1A) of the Racial Discrimination Act 1975 (Cth)

Criminal law - Preliminary hearing under s 46 of the High Risk Serious Offenders Act - Whether reasonable grounds for belief that a restriction order might be made - Whether interim detention orders should be made

Legislation:

Dangerous Sexual Offenders Act 2006 (WA)
High Risk Serious Offenders Act 2020 (WA)
Racial Discrimination Act 1975 (Cth)
Sentence Administration Act 2003 (WA)
Sentencing Act 1995 (WA)

Result:

High Risk Serious Offenders Act held not to be repugnant to or incompatible with the institutional integrity of the Supreme Court as a Chapter III Court
High Risk Serious Offenders Act held not to be inconsistent with s 9(1A) of the Racial Discrimination Act
Orders made under s 46(2)
Interim detention order made

Category: A

Representation:

Counsel:

Applicant	:	Mr B Meertens
Respondent	:	Mr P A Sheiner
Intervenor	:	Mr J Thomson SC & Ms H Richardson

Solicitors:

Applicant	:	State Solicitor's Office (WA)
Respondent	:	Roe Legal Services
Intervenor	:	State Solicitor's Office (WA)

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

CORBOY J:

The Application, the issues and the result

1 On 24 June 2019, the respondent, Peter Robert Garlett, pleaded guilty to the following charges (the November 2017 Offences):

(1) On 19 November 2017 at Rivervale, [he] and [others] entered or were in the place of Nakyung Lee and Sojung Lee without their consent, with intent to commit an offence therein

And that [he] and [others] were in company with each other

And that immediately before the commission of the offence [he] and [others] knew or ought to have known that there was another person in the place

And that the place was ordinarily used for human habitation.

(2) On the same date and at the same place as in Count [1], [he] and [others] stole from Nakyung Lee and Sojung Lee, with threats of violence, a pendant necklace and $20.00 cash the property of Nakyung Lee and Sojung Lee

And that [he] and [others] pretended to be armed with a dangerous weapon, namely a handgun

And that [he] and [others] were in company with each other.

2 On 2 July 2019, the respondent was sentenced by Fiannaca J to a total effective sentence of 3 years 6 months' imprisonment. The sentence was backdated to commence on 20 November 2017. A parole eligibility order was made.[1]

3 On 12 January 2021, the respondent was sentenced to five months imprisonment in the Magistrates Court for the offence of criminal damage. The sentence was ordered to be served cumulatively on the sentence imposed for the November 2017 Offences. The offence was committed while the respondent was in prison serving his sentence for the November 2017 Offences.[2]

4 The respondent was not released to the community on parole. His release date was 19 October 2021.[3]

5 In February 2021, the High Risk Serious Offender Review Committee referred the respondent to the State Solicitor's Office to consider whether an application should be made under s 35 of the High Risk Serious Offenders Act 2020 (WA) (HRSO Act).[4] That section provides that the State of Western Australia may apply to the Supreme Court for a restriction order in relation to a 'serious offender under custodial sentence who is not a serious offender under restriction'. A 'serious offender under custodial sentence' is a person who is under a custodial sentence for a 'serious offence'. Relevantly, a 'serious offence' is defined by s 5 of the Act to mean an offence specified in sch 1 div 1 to the Act.

6 By application dated 29 July 2021 (the Application), the State applied for:

(1) a restriction order under s 48 of the HRSO Act;

(2) orders pursuant to s 46(2)(a), (b) and (d) of the HRSO Act;

(3) an order that, until the conclusion of the hearing and judgment on the Application:

(a) the respondent be detained in custody;

(b) alternatively, with effect from the date of the order, the respondent be released subject to the conditions required by s 30(2) and such other conditions as the court considered appropriate.

7 The Application was first mentioned before Fiannaca J on 7 September 2021. Counsel for the respondent, Mr Sheiner, advised that he was instructed to challenge the validity of the HRSO Act or parts of the Act.

8 By letter dated 10 September 2021, s 78B of the Judiciary Act 1903 (Cth) notices were given to the Attorney General for the Commonwealth of Australia and the Attorney General for each State and Territory. The notices foreshadowed two matters arising under the Constitution:

(a) whether the HRSO Act, or parts of the Act, are incompatible with Ch III of the Constitution;

(b) whether certain provisions of the Act are inconsistent with s 9 of the Racial Discrimination Act 1975 (Cth) (RDA) and are accordingly, invalid by reason of s 109 of the Constitution.

9 Subsequently, written submissions filed on behalf of the respondent limited the question of validity to items 34 and 35 of sch 1 div 1 to the HRSO Act. Item 34 specifies that robbery (s 392 of the Criminal Code (WA)) is a 'serious offence' for the purpose of the Act. Item 35 specifies that the offence of assault with intent to rob (s 393 of the Code) is also a 'serious offence'.

10 On 24 September 2021, the Chief Justice fixed 13 October 2021 as the date for the preliminary hearing of the Application. There was, at the time of the directions hearing before his Honour, a possibility that the preliminary hearing might be adjourned to a date sometime in November to allow the parties and the court further time to prepare for the preliminary hearing given the constitutional challenge. However, that possibility was contingent on matters that could not be subsequently agreed between the parties and the preliminary hearing proceeded on 13 October 2021.

11 The Attorney General for Western Australia intervened on the matters raised by the s 78B notice. The Solicitor General, Mr Thomson SC, and Ms Richardson appeared for the Attorney General.

12 Mr Meertens represented the applicant at the preliminary hearing. He confined his submissions to the application for orders under s 46 of the HRSO Act.

13 As the respondent's release date was 19 October 2021, it was necessary to determine whether orders should be made under s 46 of the HRSO Act at, or immediately following, the preliminary hearing. That, in turn, required a decision to be made on the validity of the challenged parts of the Act.

14 On 18 October 2021, I held that:

(a) the challenged parts of the HRSO Act do not confer powers on the Supreme Court that are repugnant to or incompatible with the court's exercise of federal jurisdiction;

(b) the HRSO Act is preventative not punitive in character and the Act is not invalid because of the effect a restriction order has on an offender found to be a high risk serious offender;

(d) the effect of the HRSO Act is not inconsistent with s 9(1A) of the RDA;

(e) there are reasonable grounds for believing that the court might, in accordance with s 7 of the HRSO Act, find that the respondent is a high risk serious offender; and

(f) an order should be made under s 46(2)(c) of the HRSO Act for the respondent to be detained until the Application is finally determined.

15 It was not possible in the short time available to provide detailed reasons for those findings at the hearing on 18 October 2021. These are my reasons for the findings and orders made at that hearing.

The scheme of the HRSO Act

16 The long title to the HRSO Act states that the Act is an Act 'to provide for the detention in custody or the supervision of high risk serious offenders, to repeal the Dangerous Sexual Offenders Act 2006 (DSO Act) and to make consequential and other amendments to various Acts'. Section 8 states the objects of the Act:

(a) to provide for the detention in custody or the supervision of high risk serious offenders to ensure adequate protection of the community and of victims of serious offences; and

(b) to provide for continuing control, care or treatment of high risk serious offenders.

17 Section 11 of the HRSO Act provides that the Attorney General may make applications under the Act, or take other proceedings for which the Act provides, in the name of the State. The section further provides that the Attorney General may authorise, among others, the State Solicitor to exercise those powers in the name of the State. Section 82 provides that proceedings under the HRSO Act, or on appeal under the Act, are taken to be criminal proceedings for all purposes. However, that section 'does not require anything that is to be evidenced for the purposes of [the Act] to be evidenced to a higher standard than is required by s 7(1)'.

18 As mentioned above, s 5 of the HRSO Act defines a serious offence to include an offence specified in sch 1 div 1 to the Act. Section 7(1) defines who is a 'high risk serious offender':

An offender is a high risk serious offender if the court dealing with an application under this Act finds that it 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.

19 Section 7(2) provides that the State has the onus of satisfying the court that an offender is a high risk serious offender. Section 7(3) states that in considering whether it is satisfied that an offender is a high risk serious offender, the court must have regard to:

(a) any report prepared under section 74 for the hearing of the application and the extent to which the offender cooperated in the examination required by that section;

(b) any other medical, psychiatric, psychological, or other assessment relating to the offender;

(d) whether or not there is any pattern of offending behaviour by the offender;

(e) any efforts by the offender to address the cause or causes of the offender's offending behaviour, including whether the offender has participated in any rehabilitation programme;

(f) whether or not the offender's participation in any rehabilitation programme has had a positive effect on the offender;

(g) the offender's antecedents and criminal record;

(h) the risk that, if the offender were not subject to a restriction order, the offender would commit a serious offence;

(i) the need to protect members of the community from that risk;

(j) any other relevant matter.

20 Part 2 of the Act creates the High Risk Serious Offenders Board. Section 15 specifies the functions of the Board:

(a) to develop and promote the development of knowledge, understanding, skills and expertise in all aspects of the assessment and management of offenders;

(b) to facilitate cooperation between and the coordination of relevant agencies in the performance of their serious offender functions;

(c) to facilitate information‑sharing between relevant agencies in relation to the performance of their serious offender functions;

(d) to develop best practice standards and guidelines for the performance by relevant agencies of their serious offender functions;

(e) to advise relevant agencies in relation to resourcing, service provision and training relevant to the performance of their serious offender functions.

21 The membership of the Board comprises the Chief Executive Officer of the Department of the public service principally assisting in the administration of the HRSO Act (she or he is to be the chair of the Board); the Chief Psychiatrist or an appointed member of staff of the Chief Psychiatrist; the Chief Executive Officer or chief employee or an appointed member of staff for a number of agencies (agencies concerned with health, housing and policing) and community members. Section 18 specifies that the attributes of a community member may include a knowledge and understanding of Aboriginal culture local to the State of Western Australia and a knowledge and understanding of risk assessment and 'management frameworks' that are appropriate for Aboriginal people.

22 Part 3 of the Act provides for cooperation and sharing of information between 'supporting agencies'. The term 'supporting agency' is defined by s 3. The definition includes a 'relevant agency'. That term is also defined by s 3. Supporting agencies comprise the Department principally assisting in the administration of the Act; Departments relating to health, housing and policing; the Department principally assisting in the administration of the Prisons Act 1981 (WA); the Office of the Director of Public Prosecutions; the Prisoners Review Board; the Supervised Release Review Board and any other public sector body designated by the Regulations as a supporting agency.

23 Supporting agencies are required to cooperate in performing 'serious offender functions'. 'Serious offender functions' are defined by s 3 as functions that are 'concerned with the assessment or management of serious offenders under custodial sentence or serious offenders under restriction'. Section 24(3) provides that cooperation between supporting agencies in the performance of serious offender functions may include the development of multi-agency management plans for offenders and providing assistance and support to offenders through joint programs.

24 Part 4 of the Act provides for the restriction of offenders. Section 26 provides for continuing detention orders and s 27 for supervision orders. A continuing detention order is an order that the offender be detained in custody for an indefinite term for control, care, or treatment. A supervision order is an order that the offender, when not in custody, is to be subject to stated conditions in accordance with s 30 of the HRSO Act.

25 Section 29 limits a court's power to make a supervision order:

(1) 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 of the order as made, affirmed or amended.

(2) The onus of proof as to the matter described in subsection (1) is on the offender.

26 Part 4, div 2 concerns applications for a restriction order. Reference has already been made to s 35 which forms part of div 2. Section 37 provides that a restriction order application must be accompanied by any affidavit to be relied on by the State for the purpose of seeking orders under s 46. The application, and any accompanying affidavit, must be provided to the offender within seven days after making the application.

27 Section 39 imposes an obligation of disclosure on the State after a preliminary hearing has been conducted. The State is under a continuing obligation to disclose 'evidentiary material' as defined by s 34.

28 Section 41 requires an offender to disclose any expert evidence material and to file and serve affidavits prior to a preliminary hearing. Section 45 provides that an affidavit for use in a preliminary hearing must be confined to evidence that could be given orally, except that it may contain statements based on information and belief if the source of the information and the grounds for the belief are stated.

29 Relevantly, s 46 provides:

(1) The main purpose of the preliminary hearing is to decide whether the court is satisfied that there are reasonable grounds for believing that the court might, in accordance with section 7, find that the offender is a high risk serious offender.

(2) If the court is satisfied as described in subsection (1) -

(a) the court must order that the offender undergo examination by a psychiatrist and a qualified psychologist for the purpose of preparing reports in accordance with section 74 to be used on the hearing of the restriction order application; and

(b) the court may, on the application of the State or of the offender, order that a person or body named by the court prepare a report in accordance with section 75 to be used on the hearing of the restriction order application on questions or topics set out in the order; and

(i) if the offender is in custody and might otherwise be released from custody before the restriction order application is finally decided, order that the offender be detained in custody for the period stated in the order; and

(ii) if the offender is not in custody, order that the offender be detained in custody for the period stated in the order;

and

(d) the court must, except as provided in subsection (3), fix a day for the hearing of the restriction order application.

30 Section 48 states:

(1) If the court hearing a restriction order application finds that the offender is a high risk serious offender, the court must -

(a) make a continuing detention order in relation to the offender; or

(b) except as provided in section 29, make a supervision order in relation to the offender.

(2) In deciding whether to make an order under subsection (1)(a) or (b), the paramount consideration is to be the need to ensure adequate protection of the community.

31 Section 30(2) provides that a supervision order must require an offender to:

(a) report to a community corrections officer at the place, and within the time, stated in the order and advise the officer of the offender's current name and address; and

(b) report to, and receive visits from, a community corrections officer as directed by the court; and

(c) notify a community corrections officer of every change of the offender's name, place of residence or place of employment at least 2 days before the change happens; and

(d) be under the supervision of a community corrections officer and comply with any reasonable direction of the officer (including a direction for the purposes of section 31 or 32); and

(e) not leave, or stay out of, the State of Western Australia without the permission of a community corrections officer; and

(f) not commit a serious offence during the period of the order; and

(g) be subject to electronic monitoring under section 31.

32 Section 30(5) provides that a supervision order may also contain any other terms that the court thinks appropriate:

(a) to ensure adequate protection of the community;

(b) for the rehabilitation, care or treatment of the offender subject to the order;

33 A supervision order may provide that, for the period specified in the order, the offender is to be subject to electronic monitoring pursuant to s 31 of the HRSO Act and/or to a curfew under s 32. Section 31 permits a community corrections officer to direct an offender to wear an approved electronic monitoring device. A community corrections officer may also give any reasonable direction necessary for the proper administration of a curfew requirement imposed by a supervision order. Section 33 enables a community corrections officer to take certain steps to enforce electronic monitoring and curfew requirements. The section also creates offences (removing or interfering with an electronic monitoring device; failing to comply with a direction given by a community corrections officer; and hindering an officer exercising the powers conferred by s 33 to enforce electronic monitoring and curfew requirements).

34 Part 5 provides for periodic review of a continuing detention order. Section 64(2) requires the State to apply for a review to be carried out as soon as practicable after:

(a) the end of the period of one year commencing when the offender was first in custody pursuant to the continuing detention order;

(b) the end of the period of two years subsequently while the continuing detention order remains in effect.

35 Section 65 provides for an application by the offender to review a continuing detention order. An offender requires the leave of the court to make the application.

36 Section 68 requires that a continuing detention order must be rescinded if, on a review, the court finds that the offender does not remain a high risk serious offender. If the court finds that the offender remains a high risk serious offender, it must confirm the continuing detention order or rescind the order and make a supervision order. In deciding which order to make, the paramount consideration is the need to ensure the adequate protection of the community.

37 Part 6 of the Act provides for appeals. However, s 69(3) provides that an appeal does not lie against a decision on an order made at a preliminary hearing.

38 Section 80(1) provides that an offender subject to a supervision order must not, without reasonable excuse, contravene a requirement of the order. Section 51 provides that a magistrate may issue a warrant for the arrest of a person where there are reasonable grounds for suspecting that the person has or is likely to contravene a supervision order. A police officer who suspects on reasonable grounds that an offender has committed an offence under s 80(1) may, without a warrant, arrest the offender.

39 The penalty for contravention of a supervision order is imprisonment for three years. The procedure applicable to a charge under s 80(1) is the procedure applicable to a charge of any other simple offence.

The Sentence Administration Act and the Sentencing Act

40 The respondent contended that the HRSO Act is to be interpreted in the context and having regard to a 'legislative scheme' which includes pt 5A of the Sentence Administration Act 2003 (WA) and s 98 of the Sentencing Act 1995 (WA).

41 Part 5A of the Sentence Administration Act requires the Prisoners Review Board to consider whether a post-sentence supervision order (PSSO) should be made in respect of a prisoner. In determining whether an order should be made, the Board is required to have regard to:

(a) the considerations specified in s 74B of the Act;

(b) the report made by the Chief Executive Officer of the agency principally assisting the Minister in administering pt 8 of the Act;

42 The standard obligations of a PSSO require a supervised offender to report to a Community Corrections Centre within 72 hours after being released and to comply with the obligations imposed by s 76 of the Act. The Board may also impose additional requirements pursuant to s 74G, including a requirement that the supervised offender wear an electronic monitoring device.

43 Section 98 of the Sentencing Act empowers a superior court to impose indefinite imprisonment in sentencing an offender. Section 98(2) provides that indefinite imprisonment must not be ordered unless the court is satisfied on the balance of probabilities that when the offender would otherwise be released from custody in respect of the nominal sentence or any other term, he or she would be a danger to society or a part of it because of one or more of the factors specified in s 98(2). Section 98(3) provides that, in deciding whether an offender would be a danger to society or a part of it, the court is not to decide that the offender would not be a danger merely because of the possibility that an order might be made in respect of the offender under the HRSO Act.

The issues The s 46 issues

44 The issues to be determined under s 46 of the HRSO Act were:

(a) whether the court was satisfied of the matter stated in s 46(1);

(b) and if so, whether the respondent should be detained in custody pending the final determination of the Application or whether an interim supervision order should be made under s 58 of the HRSO Act.

The validity issues

45 In his written submissions, the respondent contended that items 34 and 35 of sch 1 div 1 to the HRSO Act are invalid in that:

(a) they are 'contrary to the requirements of Chapter III of the Australian Constitution'; and/or

(b) 'the provisions operate in a manner that is inconsistent with the operation of s 9 of the [RDA] and are therefore invalid by operation of s 109 of the Constitution'.[7]

46 As to the first of those matters, the respondent submitted that the challenged provisions of the HRSO Act were repugnant to or incompatible with the institutional integrity of the Supreme Court as a repository of federal jurisdiction: Kable. One aspect of that submission concerned what the plurality in Minister for Home Affairs v Benbrika referred to as the 'Lim principle' and the 'Lim general proposition': Chu Kheng Lim v Minister for Immigration.

47 As to the second of those matters, the respondent contended that the effect of the HRSO Act was to indirectly discriminate against Aboriginal offenders given the disproportionally high rates of conviction and imprisonment of Aboriginal people and aspects of the risk assessment required by s 7 of the Act: s 9(1A) of the RDA. The respondent presented evidence in the preliminary hearing which he submitted established the constitutional facts required for that contention.

48 The respondent further clarified the scope of his challenge to the validity of the HRSO Act in a letter to the State Solicitor's Office dated 6 October 2021. A copy of the letter was handed up during the preliminary hearing. The letter stated in part:

In the respondent's submissions as filed, it is contended that it is unnecessary for the court to decide the constitutional validity of the HRSO Act save for items 34 and 35 of Schedule 1 Division 1 of the Act. The respondent intends to modify this submission to argue in the alternative that if it is necessary to decide the validity of the other provisions of the Act then sections 48, section 29, and section 30(2)(g) are invalid for the reasons set out in paragraphs 1 to 76 of the submissions. The respondent also contends that these provisions are invalid by reason of the RDA [RDA] for the reasons set out in paragraphs 77 to 95.

49 The Attorney General submitted it was necessary to identify the extent of the challenge to the validity of the HRSO Act as that would 'help clarify thought processes' and because the end point of the issue could be declaratory relief: '[w]e would not wish to be in a position where your Honour has a free-roaming look at the Act, and declares various parts of it valid, or invalid, which would go way outside the declarations that ought to have been sought and have not really been identified.'[8]

50 The respondent's challenge, so the Attorney General submitted, 'may be described as a challenge to the inclusion of the offences of robbery and assault with intent to rob as offences which give rise to a restriction order'. It was also noted that the letter of 6 October 2021 referred to a challenge to those provisions of the HRSO Act that provided for electronic monitoring as a standard condition of a supervision order.[9] The Attorney General's concern with the width of the respondent's challenge was further explained by the Solicitor General: 'this is not a challenge to everything in schedule 1, nor could it be, because there is a diversity of offences, and it is not a challenge to anything which is a standard part of the supervision orders, apart from electronic monitoring'.[10]

51 Items 34 and 35 of sch 1 div 1 merely identify two offences which are defined as 'serious offences' for the purposes of the HRSO Act. They are, in effect, the serious offences identified by the State for the purpose of s 7(1) of the Act.[11] However, legal consequences only attach to the designation of an offence as a 'serious offence' by force of other relevant provisions of the Act. Subject to the comments that follow about the respondent's intent, and the Attorney General's concerns, it is not especially meaningful to speak of the validity or invalidity of two items of sch 1 div 1 divorced from the Act.

52 There are several further points to be noted about the scope of the respondent's challenge to the validity of parts of the HRSO Act.

53 First, the respondent, in effect, recognised the point made immediately above. He advanced arguments to the effect that the Act, as a whole, might be invalid only to the extent that it purported to apply to an offender who had been convicted of robbery and/or assault with intent to rob and/or an offender in respect of whom it was alleged that there was an unacceptable risk that they would commit either of those offences in the future. The respondent was content to adopt that approach as a finding that the Act was invalid on that limited basis would still be sufficient to deny the court jurisdiction over the Application.

54 Second, that approach apparently accorded with the Attorney General's understanding of the scope of the challenge to the validity of the HRSO Act. The Attorney General was concerned to ensure that any declaration of invalidity should be confined to precisely what was put in issue by the respondent so that the validity of the Act, as it applied to other serious offences, would not be affected by any finding made in this matter.

55 Third, in substance, the issue raised by the respondent is the court's power to make orders under s 46 of the HRSO Act. As the respondent's letter of 6 October 2021 recognised, that matter raised a further issue concerning the validity of s 48 given the purpose of a preliminary hearing. Sections 46 and 48 are at the heart of the scheme created by the HRSO Act. That is made plain by the long title to the Act and a review of its objects and provisions. A finding that those sections are valid or invalid is, in a real sense, a finding about the validity of the HRSO Act as a whole.

56 Fourth, the meaning and effect of s 7 was central to the respondent's contentions concerning Kable repugnancy or incompatibility and the alleged inconsistency of the HRSO Act with s 9(1A) of the RDA. Although the respondent did not directly challenge the validity of s 7, the section would have no purpose if ss 46 and 48 were held to be invalid.

57 Fifth, the contention that the HRSO Act was inconsistent with the RDA relied on an allegation that the effect of the former Act was to indirectly discriminate against Aboriginal prisoners. The HRSO Act does not, by its terms, draw any distinction between Aboriginal and non-Aboriginal offenders. It would have been possible on the respondent's contentions to have found the HRSO Act invalid if the State sought to apply the Act to Aboriginal offenders (s 109 of the Constitution inconsistency) but valid when applied to non-Aboriginal offenders. In the event, I found the effect of the HRSO Act was not inconsistent with s 9(1A) of the RDA.

58 I deferred making any order concerning the validity of the HRSO Act at the hearing on 18 October 2021 to enable the parties to consider these reasons. The orders made at the hearing were solely for the purpose of the final hearing of the Application under s 48. Those orders were necessarily premised on a finding that those parts of the HRSO Act that related to the Application were valid. I will hear further from the parties on the form of any declaration that might be sought by the Attorney General.

The evidence

59 The applicant relied on the following affidavits in support of that part of the Application that sought orders under s 46 of the HRSO Act:

(a) affidavit of Brent Douglas Meertens affirmed 3 August 2021 with annexures (Mr Meertens' affidavit);

(b) affidavit of Nadine Christina Minnock affirmed 17 September 2021;

(c) supplementary affidavit of Mr Meertens affirmed 23 September 2021 with annexures (Mr Meertens' supplementary affidavit).

60 The respondent relied on the following affidavits in support of his challenge to the validity of the HRSO Act:

(a) affidavit of Shenaya Beverley Barnard affirmed 3 September 2021 with attachments;

(b) affidavit of Associate Professor Anna Maria Ferrante sworn 9 September 2021 with attachments;

(d) affidavit of Professor Patricia Dudgeon sworn 22 September 2021 with attachments;

(e) affidavit of Dr Stephane Shepherd sworn 22 September 2021 with attachments;

(f) affidavit of Mark David Gregson sworn 6 October 2021 with attachments.

Kable incompatibility and repugnancy The Kable principle

61 In Kable, the majority of the High Court held that the Community Protection Act 1994 (NSW) was invalid. Section 5 of the Act empowered the Supreme Court of New South Wales to order that a 'specified person be detained in prison for a specified period' on being satisfied about certain matters. Although the power was expressed generally, the objects of the Act included protecting the community by providing for the preventative detention of the appellant and that '[t]his Act authorises the making of a detention order against Gregory Wayne Kable and does not authorise the making of a detention order against any other person.'[12]

62 Broadly stated, Kable established that State Parliaments cannot confer on State courts powers or functions that impair the capacity of those courts to exercise federal jurisdiction invested under Ch III of the Constitution. As the Commonwealth Parliament can, and has, conferred federal judicial power on State courts under ss 71 and 77 of the Constitution, State courts form part of an integrated judicial system:[13]

Under the Constitution, therefore, the State courts have a status and a role that extends beyond their status and role as part of the State judicial systems. They are part of an integrated system of State and federal courts and organs for the exercise of federal judicial power as well as State judicial power. Moreover, the Constitution contemplates no distinction between the status of State courts invested with federal jurisdiction and those created as federal courts. There are not two grades of federal judicial power.

And:[14]

The second and, perhaps, the more significant matter which emerges from a consideration of the provisions of Ch III is, as I pointed out in Leeth v The Commonwealth, that State courts, when exercising federal jurisdiction "are part of the Australian judicial system created by Ch III of the Constitution and, in that sense and on that account, they have a role and existence which transcends their status as courts of the States". Once the notion that the Constitution permits of different grades or qualities of justice is rejected, the consideration that State courts have a role and existence transcending their status as State courts directs the conclusion that Ch III requires that the Parliaments of the States not legislate to confer powers on State courts which are repugnant to or incompatible with their exercise of the judicial power of the Commonwealth.

63 There were references in the judgments in Kable to maintaining public confidence in the judicial processes of the courts. However, as will be explained, the notion of public confidence in the courts has a particular connotation. In Fardon, Gleeson CJ observed:[15]

In some of the reasons in Kable, references were made to the capacity of the legislation there in question to diminish public confidence in the judiciary. Those references were in the context of a statute that was held to impair the institutional integrity of a court and involve it in an ad hominem exercise. Nothing that was said in Kable meant that a court's opinion of its own standing is a criterion of validity of law. Furthermore, nothing would be more likely to damage public confidence in the integrity and impartiality of courts than judicial refusal to implement the provisions of a statute upon the ground of an objection to legislative policy. If courts were to set out to defeat the intention of Parliament because of disagreement with the wisdom of a law, then the judiciary's collective reputation for impartiality would quickly disappear.

64 The legislation considered in International Finance Trust Company Ltd v New South Wales Crime Commission (IFT),[16] provided for the ex parte sequestration of property on suspicion that the property was derived from serious crime related activity. The legislation limited the ability of the Supreme Court of New South Wales to enforce the Commission's obligation to give full disclosure when making an ex parte application and to ensure that appropriate steps could be to taken to accord procedural fairness. Further, a party affected by an order under the legislation was confronted with significant obstacles in seeking to have the sequestered property released.

65 The majority of the High Court held that the legislation was 'repugnant to the judicial process'. That was consistent with observations made by Gaudron and Gummow JJ in Kable to the effect that the provisions of the Community Protection Act were antithetical or repugnant to the judicial process.[17]

66 McHugh J criticised 'repugnancy to the judicial process' as a criterion for determining constitutional validity in Fardon. The criticism suggested that there were differences at the time over the basis for, and reach of, the decision in Kable.[18] However, the criticism reflected a concern that the validity of State laws should not be determined according to judicial value judgments about legislative policies:[19]

The bare fact that particular State legislation invests a State court with powers that are or jurisdiction that is repugnant to the traditional judicial process will seldom, if ever, compromise the institutional integrity of that court to the extent that it affects that court's capacity to exercise federal jurisdiction impartially and according to federal law. State legislation may alter the burden of proof and the rules of evidence and procedure in civil and criminal courts in ways that are repugnant to the traditional judicial process without compromising the institutional integrity of the courts that must administer that legislation. State legislation may require State courts to exercise powers and take away substantive rights on grounds that judges think are foolish, unwise or even patently unjust. Nevertheless, it does not follow that, because State legislation requires State courts to make orders that could not be countenanced in a society with a Bill of Rights, the institutional integrity of those courts is compromised.

The pejorative phrase – "repugnant to the judicial process" – is not the constitutional criterion. In this area of constitutional discourse, it is best avoided, for it invites error. That which judges regard as repugnant to the judicial process may be no more than a reflection of their personal dislike of legislation that they think unjustifiably affects long recognised rights, freedoms and judicial procedures. State legislation that requires State courts to act in ways inconsistent with the traditional judicial process will be invalid only when it leads to the conclusion that reasonable persons might think that the legislation compromises the capacity of State courts to administer invested federal jurisdiction impartially according to federal law. That conclusion is likely to be reached only when other provisions of the legislation or the surrounding circumstances as well as the departure from the traditional judicial process indicate that the State court might not be an impartial tribunal that is independent of the legislative and the executive arms of government. (original emphasis)

67 It is now settled that the limitation on State legislative power identified in Kable is concerned with, and explained by, a constitutional requirement that the institutional integrity of State courts invested with federal jurisdiction be maintained. Consequently, a State Parliament cannot validly enact a law which would be repugnant to or incompatible with the institutional integrity of a State court as an element of a nationally integrated judicial system.[20] In Vella v Commissioner of Police (NSW), the plurality stated:[21]

The principle for which Kable stands is that because the Constitution establishes an integrated court system, and contemplates the existence of federal jurisdiction by State Supreme Courts, State legislation which purports to confer upon such a court a power or function which substantially impairs the court's institutional integrity, and which is therefore incompatible with that court's role as a repository of federal jurisdiction, is constitutionally invalid.

68 The plurality in Attorney-General (NT) v Emmerson explained the constitutional vice in the Community Protection Act in the following passage:[22]

The ad hominem legislation in Kable ... authorised the Supreme Court of New South Wales to order preventive detention without any breach of the law being alleged or any adjudication of guilt. A majority of this Court found that task incompatible with the institutional integrity of the Supreme Court because the legislation drew the Court into implementing what was essentially a political decision or government policy that Mr Kable should be detained, without the benefit of ordinary judicial process.

The propositions established by Kable and subsequent cases
Fardon

69 In Fardon, the High Court held that the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) (DPSO Act) was validly enacted as it did not impair the institutional integrity of the Supreme Court of Queensland. The following features of the legislation were identified by Gleeson CJ as establishing the Act's validity:[23]

The Act is a general law authorising the preventive detention of a prisoner in the interests of community protection. It authorises and empowers the Supreme Court to act in a manner which is consistent with its judicial character. It does not confer functions which are incompatible with the proper discharge of judicial responsibilities or with the exercise of judicial power. It confers a substantial discretion as to whether an order should be made, and if so, the type of order. If an order is made, it might involve either detention or release under supervision. The onus of proof is on the Attorney-General. The rules of evidence apply. The discretion is to be exercised by reference to the criterion of serious danger to the community. The Court is obliged, by s 13(4) of the Act, to have regard to a list of matters that are all relevant to that criterion. There is a right of appeal. Hearings are conducted in public, and in accordance with the ordinary judicial process. There is nothing to suggest that the Supreme Court is to act as a mere instrument of government policy. The outcome of each case is to be determined on its merits.

70 His Honour added:[24]

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.

71 The other members of the majority identified similar features of the DPSO Act in holding that the legislation was valid. In particular:

(a) The Act was preventative not punitive.

(b) The Act required the court to make evaluative judgments and exercise discretions. In determining whether it was satisfied that there was an unacceptable risk that a prisoner would commit a serious sexual offence, the court was exercising judicial power; the standard of unacceptable risk was 'sufficiently precise to engage the exercise of State judicial power'.[25] The determination was made in accordance with the rules of evidence and 'the forms and procedures prescribed by the Act [bore] the hallmarks of traditional judicial forms and procedures'.[26]

(c) The 'preventative detention regime established by the Act [could not] 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." Rather, the regime is sui generis in nature'.[27] The terms, background and parliamentary history of the Community Protection Act (the legislation under review in Kable) created a perception that the Supreme Court of New South Wales might be acting in conjunction with the New South Wales Parliament and the executive government to keep one specified person in prison. It could not be concluded from the DPSO Act that the Supreme Court of Queensland 'might not render invested federal jurisdiction impartially in accordance with federal law'.[28]

Other decisions

72 In addition to IFT, the High Court has held that the State legislation considered in The State of South Australia v Totani[29] and Wainohu v The State of New South Wales[30] was invalid on the ground of Kable repugnancy and incompatibility.

73 The reasons for the High Court holding that the legislation in IFT was invalid were briefly mentioned above. The legislation considered in Totani was held to be invalid principally as it 'authorised the executive to enlist the Magistrates Court to implement decisions of the executive in a manner incompatible with the proper discharge of its federal judicial responsibilities and with its institutional integrity'.[31] The legislation reviewed in Wainohu provided that control orders could be made by the Supreme Court in respect of members or former members or prospective members of a 'declared organisation'. The legislation was held to be invalid as it exempted a judge from the duty to give reasons in connection with making an order declaring an organisation to be a 'declared organisation'.

74 On the other hand, challenges to State laws on the ground of Kable repugnancy and incompatibility failed in Attorney-General (NT) v Emmerson, Kuczborski v The State of Queensland, Assistant Commissioner Condon v Pompano Pty Ltd and Vella v Commissioner of Police (NSW). It is to be noted the legislation considered in Condon v Pompano Pty Ltd empowered the Queensland Supreme Court to declare an organisation a 'criminal organisation'. That required the court to decide whether the organisation was 'an unacceptable risk to the safety, welfare or order of the community'. The High Court held that the power to make that determination was judicial in nature.

75 In North Australian Aboriginal Justice Agency Ltd v Northern Territory of Australia,[32] French CJ, Kiefel and Bell JJ concluded that Kable, and decisions following it, established the following propositions:[33]

1. A State legislature cannot confer upon a State court a function or power which substantially impairs its institutional integrity, and which is therefore incompatible with its role, under Ch III of the Constitution, as a repository of federal jurisdiction and as a part of the integrated Australian court system.

2. The term "institutional integrity" applied to a court refers to its possession of the defining or essential characteristics of a court including the reality and appearance of its independence and its impartiality.

3. It is also a defining characteristic of courts that they apply procedural fairness and adhere as a general rule to the open court principle and give reasons for their decisions.

4. A State legislature cannot, consistently with Ch III, enact a law which purports to abolish the Supreme Court of the State or excludes any class of official decision, made under a law of the State, from judicial review for jurisdictional error by the Supreme Court of the State.

5. Nor can a State legislature validly enact a law which would effect an impermissible executive intrusion into the processes or decisions of a court.

6. A State legislature cannot authorise the executive to enlist a court to implement decisions of the executive in a manner incompatible with the court's institutional integrity or which would confer on the court a function (judicial or otherwise) incompatible with the role of the court as a repository of federal jurisdiction.

7. A State legislature cannot enact a law conferring upon a judge of a State court a non-judicial function which is substantially incompatible with the functions of the court of which the judge is a member.

76 Nevertheless, there is no single comprehensive statement of the content to be given to the essential notion of repugnancy to or incompatibility with the institutional integrity of State courts.[34] The notions of repugnancy and incompatibility are not susceptible of further definition in terms which will necessarily dictate the outcome of future cases.[35]

77 Further, in Kuczborski, Hayne J observed:[36]

The questions of validity presented in this case 'cannot be decided simply by taking what has been said in earlier decisions of the Court about the validity of other laws and assuming, without examination, that what is said in the earlier decisions can be applied to the legislation now under consideration'. But likewise, observing that what is said in those other cases does not fit precisely with the issues presented in this case does not conclude the question. It remains necessary to grapple with that 'essential notion' of repugnancy to or incompatibility with the institutional integrity of the State courts and to do that by recognising that there cannot be any single, let alone comprehensive, statement of the content to be given to that essential notion.

The 'defining characteristics' of a court

78 One of the 'Kable propositions' stated by French CJ, Kiefel and Bell JJ in North Australian Aboriginal Justice Agency Ltd v Northern Territory of Australia was to the effect that the expression 'institutional integrity' refers to the defining or essential characteristics of a court. In Condon v Pompano Pty Ltd, French CJ cited the observation of Gummow, Hayne and Crennan JJ in Forge v Australian Securities and Investment Commission,[37] that it was not possible to make 'some single all-embracing statement of the defining characteristics of a court'. His Honour continued:[38]

The defining or essential characteristics of courts are not attributes plucked from a platonic universe of ideal forms. They are used to describe limits, deriving from Ch III of the Constitution, upon the functions which legislatures may confer upon State courts and the commands to which they may subject them. Those limits are rooted in the text and structure of the Constitution informed by the common law, which carries with it historically developed concepts of courts and the judicial function. Historically evolved as they are and requiring application in the real world, the defining characteristics of courts are not and cannot be absolutes. Decisional independence operates within the framework of the rule of law and not outside it.

Nevertheless, his Honour noted that the defining characteristics of courts included the reality and appearance of decisional independence and impartiality; the application of procedural fairness; adherence as a general rule to the open court principle; and the provision of reasons for the court's decisions.[39]

79 Similarly, the plurality in Condon v Pompano Pty Ltd noted that content must be given to the concept of institutional integrity. Their Honours then observed that independence and impartiality are defining characteristics of all courts in the Australian judicial system. They are notions that 'connote separation from the other branches of government, at least in the sense that the State courts must be and remain free from external influence. In particular, the courts cannot be required to act at the dictation of the Executive'.[40]

Benbrika, the judicial power of the Commonwealth and the 'Lim principle'

80 Chu Kheng Lim v Minister for Immigration, concerned the validity of provisions in the Migration Act 1958 (Cth) that allowed for the apprehension and detention in custody of a 'designated person' by an 'officer' (that is, a member of the Commonwealth executive) for the purpose of expulsion or deportation. The grounds on which the provisions were challenged included that they usurped the judicial power of the Commonwealth vested by Ch III in the federal judicature. Consequently, the question of validity concerned, in part, the judicial power of the Commonwealth and the separation of powers mandated by the Constitution. (It is well established that the separation of powers is not implied in the constitutions of the States.)

81 In that context, the plurality in Lim v Minister for Immigration made the following observations about the judicial power of the Commonwealth:[41]

The Constitution is structured upon, and incorporates, the doctrine of the separation of judicial from executive and legislative powers. Chapter III gives effect to that doctrine in so far as the vesting of judicial power is concerned. Its provisions constitute "an exhaustive statement of the manner in which the judicial power of the Commonwealth is or may be vested ... No part of the judicial power can be conferred in virtue of any other authority or otherwise than in accordance with the provisions of Chap III". Thus, it is well settled that the grants of legislative power contained in s.51 of the Constitution, which are expressly "subject to" the provisions of the Constitution as a whole, do not permit the conferral upon any organ of the Executive Government of any part of the judicial power of the Commonwealth. Nor do those grants of legislative power extend to the making of a law which requires or authorizes the courts in which the judicial power of the Commonwealth is exclusively vested to exercise judicial power in a manner which is inconsistent with the essential character of a court or with the nature of judicial power.

There are some functions which, by reason of their nature or because of historical considerations, have become established as essentially and exclusively judicial in character. The most important of them is the adjudgment and punishment of criminal guilt under a law of the Commonwealth. That function appertains exclusively to and "could not be excluded from" the judicial power of the Commonwealth. That being so, Ch.III of the Constitution precludes the enactment, in purported pursuance of any of the sub-sections of s 51 of the Constitution, of any law purporting to vest any part of that function in the Commonwealth Executive.

82 In Benbrika, the plurality identified what their Honours referred to as the 'Lim principle' and the 'Lim general proposition'. The 'Lim principle' was stated to be:

[P]utting to one side the exceptional cases to which reference is made below, the involuntary detention of a citizen in custody by the State is penal or punitive in character and, under our system of government, exists only as an incident of the exclusively judicial function of adjudging and punishing criminal guilt.[42]

83 The 'Lim general proposition' was expressed to be:

[T]he power to order that a citizen be involuntarily confined in custody is, under the doctrine of the separation of judicial from executive and legislative powers enshrined in our Constitution, part of the judicial power of the Commonwealth entrusted exclusively to Ch III courts.[43]

84 The 'Lim principle' was as stated by the plurality in Lim v Minister for Immigration. In Fardon, Gummow J sought to reformulate the principle in the following terms: "'exceptional cases" aside, the involuntary detention of a citizen in custody by the State is permissible only as a consequential step in the adjudication of criminal guilt of that citizen for past acts'[44] (emphasis added). That formulation eschewed the phrase 'penal or punitive in character' and the application of the principle to preventive legislation intended to protect the community from future harm.

85 The plurality in Minister for Home Affairs v Benbrika noted that the recognised exceptions to the 'Lim principle' included the involuntary detention of persons suffering from mental illness or infectious disease. Those exceptions involved detention for the purpose of protecting the community from harm. Their Honours observed that Gummow J had not explained 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'.[45] It was also noted that the power to impose indefinite imprisonment in sentencing an offender (s 98 of the Sentencing Act) was not repugnant to or incompatible with the institutional integrity of State courts. Their Honours continued:

The order for indefinite detention is founded on the court's assessment, in the exercise of State judicial power, of the danger to society that the offender would present at the completion of the nominal sentence. As Gleeson CJ observed in Fardon, if the lawful exercise of judicial power admits of the judge assessing the danger an offender poses to the community at the time of sentencing it is curious that it does not admit of the judge making such as assessment at or near the time of imminent release when that danger might be assessed more accurately.[46]

86 At issue in Minister for Home Affairs v Benbrika was the validity of the preventative detention orders regime created by pt 5.3, div 105A of the Criminal Code (Cth). The object of the division is to allow persons to be taken into custody and detained for a short period so as to 'prevent a terrorist act that is capable of being carried out, and could occur, within the next 14 days, from occurring'.[47] Consequently, the question of validity concerned the judicial power of the Commonwealth.

87 The majority of the High Court in Minister for Home Affairs v Benbrika held that the power to make a continuing detention order under s 105A was within the judicial power of the Commonwealth and was a power that could be validly conferred on a State Supreme Court. In that context, the plurality observed:

Terrorism poses a singular threat to civil society. The contention that the exceptions to the Lim principle are confined by history and are insusceptible of analogical development cannot be accepted. There is no principled reason for distinguishing the power of a Ch III court to order that a mentally ill person be detained in custody for the protection of the community from harm and the power to order that a terrorist offender be detained in custody for the same purpose. It is the protective purpose that qualifies a power as an exception to a principle that is recognised under our system of government as a safeguard on liberty. Demonstration that Div 105A is non-punitive is essential to a conclusion that the regime that it establishes can validly be conferred on a Ch III court, but that conclusion does not suffice. As a matter of substance, the power must have as its object the protection of the community from harm.[48]

88 Self-evidently, a State law will not be repugnant to or incompatible with the institutional integrity of a State court if the law could have been enacted by the Commonwealth Parliament to validly confer power on courts exercising federal jurisdiction.[49] Consistently with cases such as Fardon, the decision in Minister for Home Affairs v Benbrika illustrates that a State law will not be invalid – will not be repugnant to or incompatible with the institutional integrity of a State court - merely because it provides for the detention of a person as a preventative measure to protect the community from the risk of future harm. The decision also confirms that determinations about the risk of future harm are judicial in character.

The validity of the HRSO Act: Kable incompatibility and repugnancy The respondent's contentions

89 In summary, the respondent contended that:

(a) While 'arguably' the DSO Act fell within the category of legislation considered in Fardon, the HRSO Act is not limited to sexual offenders but purports to apply to a wider category of offenders who have been convicted of non-sexual offences. Further, the HRSO Act is 'distinguishable from, and has been imposed on top of, the existing regime for indefinite detention of dangerous criminals under s 98 of the Sentencing Act'.[50]

(b) The 'impugned' provisions, read in the context of the HRSO Act as a whole, operate as 'an impermissible impairment on the ability of the Supreme Court to exercise the judicial power of the Commonwealth under Ch III of the Constitution' as:

(i) the provisions 'impermissibly constrain the discretion able to be exercised by the Supreme Court and for that reason seeks to enlist the Supreme Court to do the bidding of the Executive';

(ii) the overriding object of the provisions cannot properly be characterised as the protection of the community and/or their purpose is punishment;

(iii) the provisions 'do not operate so as to provide equal justice for Aboriginal people and undermine public confidence in the Courts'.[51]

Fardon and the DSO Act

90 The Attorney General submitted that the validity of the DSO Act was effectively determined by the reasoning of the majority in Fardon. I accept that submission. In my view, there is no material difference between those aspects of the DPSO Act identified in Fardon as being consistent with the institutional integrity of the Supreme Court of Queensland and the repealed DSO Act. The objects of both Acts were, in substance, identical and the scheme of each Act similar. Under the DSO Act:

(a) The court was required to make an evaluative judgment on whether it was satisfied that there was an unacceptable risk that the offender would commit a serious sexual offence if not subject to a continuing detention order or a supervision order. That judgment was judicial in nature. It was to be made by reference to relevant matters (s 7(3) of the Act).

(b) The DPP or the State carried the onus of satisfying the court about that matter by acceptable and cogent evidence and to a high degree of probability.

(c) The court was required to hold both a preliminary hearing and a hearing for a div 2 order. The rules of evidence applied to a hearing for a div 2 order and the offender was entitled to be present. The applicant was required to give disclosure and the Act stipulated that relevant expert evidence (that is, independent and impartial evidence) had to be obtained.

(d) The court was required to give detailed reasons for making a continuing detention order or a supervision order at the time that the order was made. There was a right of appeal.

(e) The court could make either a continuing detention order or a supervision order on finding that the offender was a serious danger to the community.[52] Although it was necessary to include certain conditions in a supervision order, the court had a discretion over whether further conditions should be imposed. The Act provided for periodic reviews of a continuing detention order.

91 Further, like the DPSO Act, the DSO Act has been characterised as preventative not punitive legislation. For example, Murray AJA observed in DPP (WA) v GTR:[53]

It seems to me to be absolutely clear that the extraordinary powers provided in the Act are intended to be exercised, not for the purpose of imposing additional punishment on an offender who has served his or her sentence and is discharged from that service, but for the ultimate purpose of the protection of the community, not only by continuing to exercise control over the person the subject of an order, but also by providing for the care and treatment of the offender in the hope that thereby the danger posed by that individual to the community or sections of it, will be reduced.

92 Similarly, in the context of periodic reviews, Hall J observed in The State of Western Australia v Corbett [No 5]:[54]

Detention under the DSO Act is not a punishment for a past offending: it is a protective mechanism designed to prevent the risk of future serious sexual offending from being realised.

...

It is a significant thing to deprive a person of his liberty, not for something he has done, but for something that he might do in the future. In order to justify detention on these grounds the evidence must be acceptable and cogent and establish the existence of a serious danger to the community to a high degree of probability ... Such a finding requires satisfaction that there is an unacceptable risk that the person would commit a serious sexual offence if not placed under a supervision order or detained.

...

The justification for making a continuing detention order is the existence of an unacceptable risk of serious sexual offending that cannot be adequately controlled by conditional release. However, detention also serves the purpose of allowing treatment and care in a secure environment ... This confirms an obligation on the part of prison authorities to facilitate change by offering programmes and access to counselling.

If the risk changes or resources improve to enable more efficacious condition, then the need for detention may dissipate. In these circumstances, continuing detention may be unjust.

The review process is intended to ensure that detention only continues where necessary. It mitigates the otherwise draconian effect of imprisoning people for crimes that they have not committed.

93 Those views reflected the objects of the DSO Act and essential aspects of its intended operation. An offender could only be found to be a serious danger to the community if the court was satisfied that there was an unacceptable risk of future offending; the paramount consideration in determining whether to make a continuing detention order or a supervision order was the need to ensure adequate protection of the community; a continuing detention order could only be made for the purpose of the control or care or treatment of the offender; the mandatory conditions for a supervision order reflected the need for control and supervision of an offender; and the court could impose other conditions in a supervision order that were thought to be appropriate to ensure adequate protection of the community and the rehabilitation, care or treatment of an offender.

94 The Attorney General submitted that cases decided since Kable established that preventative legislation (that is legislation that has as its object the protection of the community from the risk of future harm) is not, by its very subject matter, repugnant to or incompatible with the institutional integrity of State courts invested with federal jurisdiction. That proposition was said to provide the starting point for determining the validity of the HRSO Act. I accept that submission having regard to cases in which preventative legislation conferring powers on State courts, including powers of control and detention, have been held to be valid.[55]

Does the HRSO Act 'impermissibly constrain' the court?

Vella v Commissioner of Police (NSW) – risk assessment and balancing elements

95 It is convenient to commence with the respondent's contention that the 'impugned' provisions of the HRSO Act 'impermissibly constrain' the court and seek to 'enlist the Supreme Court to do the bidding of the Executive'. The respondent developed that contention by reference to the reasoning of the plurality in Vella v Commissioner of Police (NSW).

96 The Crimes (Serious Crime Prevention Orders) Act 2016 (NSW) (SCPO Act) empowered the Supreme Court of New South Wales to make a 'serious crime prevention order'. The plurality noted that there were six required steps before the court could exercise the power to make such an order. The third step required the court to assess whether there was a real likelihood that a person against whom the order was sought would be involved in serious crime related activity. That was a forward‑looking risk assessment requirement. The fifth step required the court to undertake what was described as a 'balancing process': the 'prohibitions, restrictions, requirements and other provisions' ordered were required to be such 'as the court considers appropriate for the purpose of protecting the public by preventing, restricting or disrupting involvement by the person in serious crime related activities'.[56] An 'appropriate' order was an order that was reasonable and adapted to its purpose.

97 Their Honours considered that there were 'striking similarities' between the SCPO Act and other preventative order regimes that have been held not to infringe the Kable principle: '[e]ach regime involves criteria that are necessarily imprecise, since the future is not certain, particularly in relation to the assessment of risk (the third step) and the balancing process (the fifth step)'.[57] The DPSO Act was said to be an example of a 'preventative order regime' that contained risk and balancing criteria:[58]

The risk criterion is if the person is 'a serious danger to the community', defined as involving an unacceptable risk that the prisoner would commit a serious sexual offence if released from custody or released from custody without a supervision order. The Court might decide that it is 'satisfied' only if satisfied to a high degree of probability by acceptable, cogent evidence of sufficient weight to justify the decision. The balancing criteria applies in relation to the Court's choice of three orders (detention in custody, conditional release, or no order) and, in relation to conditional release, the conditions that it 'considers appropriate'.

98 The respondent contended that the reasoning of the plurality in Vella v Commissioner of Police (NSW) established that:

(a) the incorporation of risk assessment and balancing elements underpinned the constitutional validity of 'preventative order regimes' such as the DPSO Act and the regime created by div 104 of the Criminal Code (Cth) considered in Thomas v Mowbray;

(b) the balancing criterion involved an exercise of 'tailoring' any order made by the court so as to 'intrude on personal liberty only to the extent necessary';

(c) the discretion conferred by the HRSO Act was limited as there were restrictions on the risk assessment criteria that were not present in the DPSO Act;

(d) the HRSO Act did not contain any effective balancing criterion.

99 The respondent submitted that the restrictions on risk assessment imposed by the HRSO Act, which were not present in the DPSO Act impermissibly constrained the court's discretion, were:

(a) The offences 'deemed' to be sufficiently serious to attract the application of the HRSO Act are prescribed solely by reference to offences under the Criminal Code, whereas the DPSO Act defines a 'serious sexual offence' as an offence of a sexual nature involving violence or against children.

(b) Accordingly, the court under the DPSO Act is required to make an evaluative assessment about whether a prisoner had committed an offence of a sexual nature involving violence or against children. The HRSO Act, on the other hand, removes any discretion over the types of offences or offending which are sufficient to justify a restriction order.

(c) The court's discretion under the HRSO Act is constrained by the matters specified in s 7(3) that must be considered in determining whether an offender is a 'high risk serious offender': 'the Executive has made its own value judgment as to the evidence which the Court must have regard in determining risk'.[59]

(d) The court is compelled by the HRSO Act to have regard to factors such as the offender's 'disturbed background' only to the extent that it elevated the level of risk and the court was 'simply tasked with an exercise in assessing the probability of future offending based on prescribed criteria'.[60]

100 As for balancing elements, the respondent submitted:

(a) The court has no discretion under the HRSO Act on whether to impose a restriction order. It must do so if it is satisfied that a person is a high risk serious offender. By contrast, the legislation in Vella v Commissioner of Police (NSW) did not mandate that a serious crime prevention order was to be made even if the court concluded that there was a risk of a person being involved in serious crime related activity.

(b) The court can only make a continuing detention order or a supervision order. Further, the court can only impose a supervision order if the respondent satisfies the court that they will comply with the conditions of the order.

The mandated provisions of supervision orders are extensive and analogous to a form of detention in that:

(a) the discretion as to whether or not to impose electronic monitoring is removed from the Court and instead conferred on a community service officer;

(b) the provisions confer substantial other discretionary powers on the community service officer to interfere with the personal rights and liberties of the person subject to the order; and

(c) there are expansive provisions that provide for the arrest of the offender on reasonable suspicion of non-compliance.

101 It is not clear whether the plurality in Vella v Commissioner of Police (NSW) intended to lay down a principle that State preventative legislation must incorporate risk assessment and balancing elements to avoid Kable repugnancy or incompatibility. It is also to be noted that the six steps identified by the plurality in Vella v Commissioner of Police (NSW) to determine the validity of the SCPO Act appeared in a part of their Honours' judgment headed 'The balancing process required by ss 5 and 6 of the SCPO Act'. That implies that the 'balancing process' contemplated by the plurality extended to the operation of the Act considered as a whole and not merely the fifth step.

102 However, in my view, it is difficult to see how legislation that is intended to protect the community from future harm by conferring a coercive power on a court could be valid unless it incorporated at least the following features:

(a) a predictive or risk assessment process to be undertaken by the court by reference to relevant criteria – that is, by a process involving the exercise of judicial power;

(b) a mechanism by which the court may balance the nature and effect of exercising the coercive power with the objective of protecting the community;

(d) limits on the power to ensure that it is exercised for preventative not punitive purposes;

(e) any other provision necessary to ensure that the power is not exercised in an arbitrary way or in a way that merely gives effect to an executive decision – that is, provisions that preserve the court's impartiality and decisional independence.

The specification of a 'serious offence'

103 As noted above, the respondent sought to draw a distinction between the determination of what constitutes a 'serious sexual offence' under the DPSO Act and the specification of a 'serious sexual offence' by the HRSO Act.

104 The respondent referred to the decisions of the Queensland Court of Appeal in Attorney-General for the State of Queensland v Phineasa[62] and Tilbrook v Attorney-General for the State of Queensland[63] on the meaning of 'serious sexual offence' under the DPSO Act. The issue in each case was whether an offender was a 'prisoner' for the purpose of the Act; that is, whether the offender was a person to whom the Act might apply. The Court of Appeal was not concerned with the meaning of 'serious sexual offence' for the purpose of risk assessment. I infer that this is the context in which the respondent raised the issue - his contention being that the DPSO Act confers a 'discretion' on the court to determine who might be subject to the Act.

105 Section 5 of the DPSO Act permits the Attorney-General (Qld) to apply for orders under the Act 'in relation to a prisoner'. The term 'prisoner' is defined by the Act to mean 'a prisoner detained in custody who is serving a period of imprisonment for a 'serious sexual offence'; a 'serious sexual offence' is defined by the Act to mean an offence 'of a sexual nature' involving violence or against children.

106 The determination of whether a respondent to an application under the DPSO Act is a person who is serving a period of imprisonment for a serious sexual offence does not require the court to exercise a discretion or make an evaluative judgment. Rather, the court is required to decide a mixed question of fact and law. The court must first construe the statute. For example, the court must determine the meaning to be attributed to the word 'violence' as it appears in the definition of 'serious sexual offence'. That is a matter of statutory construction to be determined in the context of the objects and scheme of the DPSO Act read as a whole. The court must then make a factual determination about whether the respondent is serving a period of imprisonment for a serious sexual offence having regard to the proper meaning to be given to the defined term, 'serious sexual offence'. That is a conventional process by which courts make findings and does not involve any discretionary element.

107 That is consistent with what was said by the Queensland Court of Appeal in Attorney-General (Qld) v Phineasa and Tilbrook v Attorney-General (Qld) about the meaning of the term 'violence' when used in the definition of 'serious sexual offence'. In Attorney-General (Qld) v Phineasa, Muir JA said:[64]

[T]he 'violence' referred to in the definition of serious sexual offence is force significantly greater in degree than mere physical contact or even, at least as a general proposition, acts such as pawing, grasping, groping or stroking. The language of ss 8 and 13, in particular, is inconsistent with the application of the Act to sexual offences other than of a very serious kind where offending against adults is concerned. Those sections are addressing conduct of such a nature, that the risk that a prisoner, assumed to be a member of a particular class, might engage in it and harm a member or members of the public if released from custody or if released without a supervision order, is regarded as unacceptable. Consequently, the 'violence' contemplated by the Act (excluding for present purposes threats and intimidation) would normally involve the use of force against a person to facilitate the 'rape' of that person within the meaning of s 349 of the Criminal Code or which caused (or in the case of predicted conduct would be likely to cause) that person significant physical injury or significant psychological harm.

It is unnecessary for present purposes to explore the question whether and to what extent there may be 'violence' for the purposes of the Act not involving intimidation, threats or the application of physical force to a person. Nor is it desirable or appropriate to attempt any greater degree of definition of the meaning of 'violent'. It will always be necessary to determine whether conduct involves 'violence' by reference to the particular facts and circumstances of the case under consideration. However, rape, involving as it does the violation of the victim's body would normally, if not invariably, involve 'violence'.

108 As his Honour explained, to determine who is a 'prisoner' for the purpose of the DPSO Act, it is necessary to first ascertain the meaning of the term 'violence' as used and intended by Parliament. It is then necessary to decide whether the offence(s) committed by an offender involved 'violence' according to that meaning. That requires the court to apply the statutory meaning of the term 'violence' to the facts and circumstances of the offending. The decision-making process does not involve the exercise of a discretion by the court.

109 In my view, the fact that the HRSO Act specifies the offences that constitute a 'serious offence' for the purpose of the Act is not an indication that the Act is repugnant to or incompatible with the exercise by this court of federal jurisdiction. Parliament has not compromised the independence or impartiality of the court in applying the Act by determining what offences should constitute serious offences. I note, in passing, that it was not suggested in Fardon that the requirement for the court to decide under the DPSO Act whether a prisoner had, in the past, committed a 'serious sexual offence' was a relevant factor in determining the Act's validity.

Section 7(1) of the HRSO Act

110 Section 7(1) of the HRSO Act was reproduced earlier. Several aspects of the section should be noted.

111 First, the court's jurisdiction under the Act is contingent upon a finding that an offender is a high risk serious offender within the meaning of s 7(1).

112 Second, s 7(1) requires the court to be satisfied about the matters stated in the section. Parliament has conferred on the court powers to deal with a defined class of offenders. However, whether those powers may be exercised in relation to an offender depends on a determination made by the court and not by the legislature or the executive.

113 Third, the court must make a determination under s 7(1) on evidence presented at the final hearing of an application for a restriction order. Further, the court is required by s 46 to make a preliminary determination before an application may proceed to a final hearing. That requires the court to be satisfied that there are reasonable grounds for a belief.

114 Fourth, the court can only be satisfied about the matters specified in s 7(1) on evidence that is 'acceptable and cogent'.

115 Fifth, the court must be satisfied about those matters to the standard of a high degree of probability.

116 Sixth, 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 DSO Act provided that:

Before the court dealing with an application under this Act may find that a person is a serious danger to the community, the court must be satisfied that there is an unacceptable risk that, if the person were not subject to a continuing detention order or a supervision order, the person would commit a serious sexual offence.

Section 7(1) was to be read with s 17 which empowered the court to make either a continuing detention order or a supervision order.

117 Seventh, a court can only find that an offender is a high risk serious offender if it is satisfied 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.

118 Finally, the respondent referred in his submissions to s 7(1) of the HRSO Act conferring a 'discretion' on the court. With respect, the section does not truly confer a discretion. Rather, the section requires the court to make a finding on whether it is satisfied about certain matters. That requires the court to make an evaluative and prospective judgment rather than to exercise a judicial discretion.

119 It will be necessary to further consider the meaning and effect of s 7(1). However, it is convenient to first deal with a submission made by the respondent about the effect of s 7(3).

Section 7(3) of the HRSO Act

120 The respondent contended that:

The discretion of the court is further constrained by the extensive list of considerations in s 7(3) it must have regard to in undertaking the risk assessment, including the mandated psychological report, mental health and criminal histories. The executive has made its own value judgment as to the evidence which the court must have regard in determining risk.[65]

121 Three points can be made about that submission. First, the matters referred to in s 7(3) are matters that were specified by Parliament in legislation which it enacted. The specification of those matters was not by an executive act in any relevant sense.

122 Second, s 7(3)(j) permits the court to take into account any other relevant matter. What is a relevant matter will be determined by the objects of the Act and a consideration of its provisions as a whole.

123 Third, s 7(1) requires an evaluative judgment to be made by the court (as does s 13 of the DPSO Act and s 7(1) of the DSO Act). The evaluative nature of the determination required by s 7(1) is further evidenced by s 7(3). The court is required to consider and weigh up various matters in determining whether it is satisfied for the purpose of s 7(1).

124 It is also to be noted that there is no material difference between s 7(3) and s 13(4) of the DPSO Act. It was not suggested in Fardon that the requirement that the court have regard to certain matters in determining whether there was an 'unacceptable risk' of a prisoner committing a serious sexual offence was repugnant to or incompatible with the Supreme Court of Queensland exercising federal jurisdiction.

125 Contrary to the respondent's submission, s 7(3) does not constrain the matters which the court may consider in making a finding under s 7(1). In addition to the wide range of matters prescribed by s 7(3), the court may have regard to any relevant matter. That enables the court to consider any matter that might fall outside the prescribed matters but which is relevant in the particular circumstances.

Sections 7 and 17 of the DSO Act

126 In Condon v Pompano Pty Ltd,[66] French CJ described the criterion specified in s 10(1)(c) of the Criminal Organisation Act 2009 (Qld) - that the subject organisation is 'an unacceptable risk to the safety, welfare or order of the community' - as evaluative and purposive. The court was not free to characterise as 'unacceptable' any level of risk which it chose. The criterion was prospective and required the court to make an evaluation according to the objects of the Act. Further:[67]

The term 'unacceptable' has a function similar to that of the term 'substantial' in other statutory settings. It imports a requirement that the likelihood of continuing involvement by the organisation in serious criminal activity is not trivial or transient.

127 His Honour also observed that the criterion in s 10(1)(c) for the exercise of the power conferred by s 10(1) (to declare that a particular organisation was a 'criminal organisation' for the purpose of the Act) was imprecise but that did not mean that power was not properly characterised as a judicial power. His Honour continued:[68]

As the plurality said in Baker v The Queen:

There are numerous authorities rejecting submissions that the conferral of powers and discretions for exercise by imprecisely expressed criteria do deny the character of judicial power and involve the exercise of authority by recourse to non-legal norms.

The same point was made in Thomas v Mowbray about the criterion for the imposition of an interim control order under the Criminal Code (Cth), which required a judgment that the order would 'substantially assist in preventing a terrorist act'. Broadly stated standards are commonplace in statutes and in the common law and, as Professor Zines observed in a passage quoted in Thomas:

Given a broad standard, the technique of judicial interpretation is to give it content and more detailed meaning on a case to case basis.

Section 10 is not invalid by reason of s 10(1)(c) and that paragraph is not invalid.

128 In Director of Public Prosecutions (WA) v Williams,[69] Wheeler JA (with whom Le Miere AJA agreed) further explained the process by which the court was required to assess the risk of an offender committing a serious sexual offence for the purpose of s 7(1) of the DSO Act. Her Honour stated:[70]

In my view, an 'unacceptable risk' in the context of s 7(1) is a risk which is 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 (if that can be predicted) 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.

There are four reasons for considering that the meaning outlined above is what Parliament intended by the expression 'unacceptable risk'. The first is that s 7(1) expressly refers to the risk as a risk which exists 'if the person were not subject to [either] a continuing detention order or a supervision order'. That is, Parliament has expressly adverted to the consequences of making a finding, in referring to the type of risk to be guarded against. Second, s 7(2) places upon the DPP the onus of satisfying the court of the matters described in s 7(1) by acceptable and cogent evidence and 'to a high degree of probability'... Third, s 7(3) sets out a variety of matters to which the court must have regard in determining the related question of whether a person is a serious danger to the community. The list includes factors which suggest that there is some need to balance the interests of the offender against those of the public, or at least that it is permissible for a court to have regard to such matters. Section 7(3)(i), for example, refers to the need to protect members of the community from 'that risk' (suggesting that the public may not need protection from every risk) while s 7(3)(j) refers broadly to 'any other relevant matter'.

Finally, it is to be noted that many of the provisions of the Act are similar to, although not identical with, the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld). Section 13(2) of that Act referred to "an unacceptable risk that the prisoner will commit a serious sexual offence". It was argued in Fardon v Attorney‑General (Qld) [2004] HCA 46; (2004) 223 CLR 575 that such a test was devoid of practical content ... those members of the High Court who referred directly to the question considered that the legislature had adopted a criterion and a standard appropriate to the balancing of competing considerations. Fardon was decided prior to the enactment of the Act, and it would be expected that Parliament in Western Australia would be aware of the meaning given to that expression in the reasons in Fardon.

129 The approach taken by Wheeler JA to the meaning and effect to be given to s 7(1) was subsequently accepted by Steytler P and Buss JA in DPP (WA) v GTR[71] and in Woods v Director of Public Prosecutions (WA).[72] In Italiano v The State of Western Australia, Buss JA observed that a finding that there is an 'unacceptable risk' is an evaluative and predictive finding of fact involving a balancing exercise in which the court was required, on the one hand, to have regard to, among other things, the nature of the risk (the commission of a sexual offence with serious consequences for the victim) and the likelihood of the risk materialising and on the other hand, the serious consequences for the offender (either detention, without having committed an unpunished offence, or being required to undergo what might be an onerous supervision order) if an order was made.[73]

130 Accordingly, s 7(1) of the DSO Act, (a) required the court to make an evaluative and predictive finding of fact; (b) also required the court to engage in a balancing exercise in determining whether a risk of future serious sexual offending was unacceptable; and (c) involved the exercise of judicial power. The word 'unacceptable' in s 7(1) had considerable work to do in the application of the Act to an offender.

131 That was especially as the Court of Appeal held that the word 'may' when used in s 17(1) of the DSO Act meant 'must'. In DPP (WA) v Williams, Wheeler JA stated:[74]

[O]n the view that I take of the considerations to which the court must have regard in determining whether to find that a person is a serious danger to the community, the court has already, in arriving at that view, balanced all relevant considerations including the potential consequence of such a finding for the offender. If that is the correct view of the way in which the court should approach the making of such a finding, then there will be no further relevant considerations which the court can have regard to in deciding whether to make, or decline to make, an order. Rather, the only question which would remain is that of what would be the appropriate form of order. In that case, as it appears to me that there would be nothing upon which a discretion could sensibly operate, it is my view that the legislature intended that 'may' was to be understood as 'must'.

132 The Court of Appeal revisited that issue in DPP (WA) v GTR. The construction of s 17(1) adopted by Wheeler JA in DPP (WA) v Williams was accepted by Steytler P and Buss JA, their Honours noting that s 33, which dealt with reviews of a continuing detention order, further supported that interpretation.

Section 7 of the HRSO Act

133 There is arguably a material difference between s 7(1) of the DSO Act, read with s 17, and s 7(1) of the HRSO Act, read with s 48.

134 There were two steps involved in the court making a continuing detention order or supervision order under the DSO Act:

(a) The court was first required to determine whether it was satisfied that there was an unacceptable risk that, if the offender was not subject to a continuing detention order or a supervision order, the offender would commit a serious sexual offence. In making that determination, the court was required to have regard to the matters specified in s 7(3) and to undertake the balancing exercise to which Wheeler JA and Buss JA referred in DPP (WA) v Williams and Italiano v SOWA.

(b) If the offender was found to be a serious danger to the community, the court was required to make a continuing detention order or a supervision order. The paramount consideration in determining which order should be made was the need to ensure the adequate protection of the community. The court could not make a supervision order unless it was satisfied that the offender would substantially comply with the standard conditions of the order (the conditions specified by s 18(1)). The court did not have a discretion not to make an order once it was found that the offender was a serious danger to the community.

135 Section 7 of the HRSO Act requires the court to be satisfied about the need to make a restriction order to ensure that the community is adequately protected against an unacceptable risk. It is arguable that the words 'necessary to make a restriction order in relation to the offender to ensure adequate protection of the community' introduce a further evaluative element over and above an evaluation of whether the risk of an offender committing a serious offence is unacceptable. That is, the section contemplates that the court will determine whether the risk of the offender committing a serious offence is unacceptable (the first step under the DSO Act) and if the risk is found to be unacceptable, the court will then consider whether it is necessary to make a restriction order to ensure the community is adequately protected from the unacceptable risk of serious offending (an additional step that was not required by the DSO Act).

136 On that interpretation, under s 7 of the HRSO Act:

(a) the court is required to make two evaluative judgments - whether the risk of future offending is unacceptable and whether it is necessary to make a restriction order to adequately protect the community (and 'necessity' and 'adequacy' involve evaluative assessments);

(b) the word 'unacceptable' might carry a meaning similar to that suggested by French CJ in Condon v Pompano Pty Ltd - a risk that is not trivial or transient;

(c) the factors identified by Wheeler JA DPP (WA) v Williams and Buss JA in Italiano v SOWA, and the balancing exercise to which their Honours referred, would be most relevant to the determination of whether it is necessary to make a restriction order to adequately protect the community;

(d) the court could find that it was not necessary to make a restriction order to adequately protect the community notwithstanding that it has found that the risk of future offending was unacceptable in the sense referred to above;

(e) the section, like s 7 of the DSO Act, incorporates risk assessment and balancing elements of the kind contemplated by the plurality in Vella v Commissioner of Police (NSW).

137 The alternative interpretation of s 7(1) of the HRSO Act is that the section is to be applied in the same way as s 7 of the DSO Act (read with s 17). That is, the effect of s 7 is that Parliament has provided that it is necessary for a restriction order to be made once it is found that there is an unacceptable risk that the offender will commit a serious offence. On that interpretation, the word 'unacceptable' in s 7(1) of the HRSO Act performs the same statutory function as in the equivalent section of the DSO Act.

138 In my view, the first of those alternative interpretations is to be preferred. It accords with a natural reading of s 7(1) of the HRSO Act. Further, the section focuses on the court's satisfaction about the necessity to make a restriction order and the section includes a reference to ensuring the adequate protection of the community. Under the DSO Act, the need to protect the community was one matter specified in s 7(3) (that remains the position under s 7(3) of the HRSO Act). However, the need to ensure adequate protection for the community was only referred to in s 17(2) and s 33 (3) of the DSO Act (whether a continuing detention order or a supervision order should be made) whereas that is a matter expressly identified under s 7(1) of the HRSO Act.

139 It is to be inferred that Parliament considered that the need to ensure adequate protection for the community should form part of the court's determination of whether an offender is a high risk serious offender (the first step in making a restriction order) and not merely the paramount consideration in deciding what form of order should be made in respect of an offender who has been found to be a high risk serious offender (the second step).

A balancing element

140 As explained above, the plurality in Vella v Commissioner of Police (NSW) considered that the SCPO Act was not materially different from other preventative legislative schemes which have been found not to be invalid on the ground of Kable repugnancy or incompatibility. The plurality added:[75]

Even if the unchallenged precedent of this Court could be put to one side, the core submission of the plaintiffs should not be accepted. The SCPO Act does not involve the exercise of non‑judicial power, nor is it incompatible with the institutional integrity of the District Court or the Supreme Court, because it deploys open‑textured phrases which, properly interpreted, give rise to rules requiring the Court to conduct an assessment of future risk and to balance criteria within a wide degree of judicial evaluation before making a preventative order.

141 Their Honours further explained what was meant by balancing criteria in the following passage:[76]

The balancing process operates as follows. On the one hand, the court will consider the likelihood that an order will prevent, restrict, or disrupt serious criminal activities, and the magnitude of the activity that will be so affected. On the other hand, the court will consider the extent to which an order will intrude upon the defendant's liberty, including the scope of the order and the length of its term. In balancing these matters, if there is a less intrusive order that will achieve broadly the same effect as a significantly more intrusive order then the latter will not be appropriate.

142 The balancing exercise described by their Honours is, in substance, the same as the balancing exercise required by s 7 of the DSO Act on the interpretation of 'unacceptable risk' adopted by the Court of Appeal in DPP (WA) v Williams and subsequent decisions. Further balancing elements were imported into the Act by ss 17 and 18: (a) the requirement that the paramount consideration in deciding whether to make a continuing detention or supervision order was the need to ensure the adequate protection of the community and (b) the choice of conditions to be included in a supervision order. As Beech J explained in Director of Public Prosecutions (WA) v DAL [No 2]:[77]

In choosing between an indefinite detention order or a supervision order, the fact that the paramount consideration is the need to ensure the adequate protection of the community does not exclude other considerations. The use of the word 'adequate' indicates that a qualitative assessment is required. In considering whether a supervision order would adequately protect the community, account must be taken of conditions which can be placed on a supervision order so as to ensure the adequate protection of the community, the rehabilitation of the respondent and his care and treatment. The Act does not require that there be no risk of reoffending. Such a requirement could never be met and would mean no person to whom the Act applies would ever be released. The question is whether the risk is reduced to a reasonably acceptable level that ensures adequate protection of the community. That requires a weighing of the nature and degree of risk in the context of methods for the management and reduction of that risk. If, after considering all the evidence, the court is left in doubt as to whether the conditions of a supervision order would adequately protect the community, because the paramount consideration is the need to ensure the adequate protection of the community, the court must expressly decline to rescind the continuing detention order.

143 Further, it has been accepted in numerous decisions under the DSO Act that the court should choose, as between a continuing detention order and a supervision order, the order that is 'least invasive or destructive' of a person's right to be at liberty while ensuring an adequate degree of protection of the community.[78] That constraint also applies in determining the non-standard conditions (if any) of a supervision order. Moreover, as Hall J pointed out in Director of Public Prosecutions for Western Australia v Decke, '[i]t cannot simply be assumed that the most assured preventative is detention and, therefore, the protection of the community will always favour such an order'.[79] That is because the 'adequate' requires a qualitative assessment.

144 Balancing elements are incorporated into s 7 of the HRSO Act on either of the possible interpretations identified earlier. The observations above concerning the balancing exercise required by s 7(1) of the DSO Act also apply if the effect of s 7(1) of the HRSO Act is, in substance, the same. On the other hand, if the proper interpretation of s 7(1) of the HRSO Act is as I prefer, the words 'it is necessary to make a restriction order in relation to the offender to ensure adequate protection of the community' introduce an additional balancing requirement of the kind referred to in Vella v Commissioner of Police (WA) (including the possibility that a restriction order is not necessary).[80]

145 Further, like s 17 of the DSO Act, s 48 of the HRSO Act is to be interpreted as requiring the court to make the order that is 'least invasive or destructive' of the respondent's right to be at liberty while ensuring an adequate degree of protection for the community. That also applies to the court's discretion in settling the non-standard terms of a supervision order.

146 Finally, the observations of Beech J in Director of Public Prosecutions (WA) v DAL [No 2] apply with equal force to the determination of whether a continuing detention or supervision order should be made under s 48.

Other aspects of the HRSO Act

147 As with the DPSO Act and the DSO Act, the HRSO Act incorporates procedures that are the 'hallmarks of traditional forms and procedures': the onus of proof rests on the State; the 'ordinary' rules of evidence apply with one common exception relating to statements of information and belief (s 84); the offender has a right to appear (s 86) and adduce evidence (s 84(3)); experts must prepare an 'independent report' (s 75(1)(b) in accordance with pt 7; the State is under an obligation to give disclosure and must serve expert reports prepared according to pt 7; hearings are conducted in public; and there is a right of appeal.

The respondent's submissions on the 'Lim' principle

148 The respondent submitted that:

(a) The High Court characterised the legislation considered in Kable as punitive.

(b) The High Court identified an overarching public policy objective involving a real threat to the community in holding that preventative detention or supervision legislation was valid.

(c) The plurality in Benbrika 'looked to synthesise the Kable cases as all falling within exceptions to the Lim principle, finding that they were all concerned with the object of protecting the community from harm'.

(d) The majority in Vella v Commissioner of Police (NSW) 'indicated that there may be a category of cases in which the risk posed to the community is never justified by the orders contemplated, in particular by detention'. That reflected the fact that 'freedom from indefinite detention at the will of the executive is a fundamental tenet of the separation of powers'. Similarly, a judicial power to order indefinite detention is to be sparingly exercised and only in extreme cases.

(e) The HRSO Act has 'many features of, or that are aligned with, criminal law and procedures, and which may be regarded as punitive'. Further there are 'aspects of the legislation that limit the procedural protections otherwise conferred by the criminal law'.

(f) The 'purported justification for the HRSO Act, namely, a real and unusual risk of serious harm to the community at large by a particular individual if extraordinary powers granted by the legislation were not exercised (judicially or otherwise) is inconsistent with the inclusion of robbery or assault to rob (which may be affected by a mere threat)'. Robbery can be classified with property related offences. Robbery and assault with intent to rob involve a wide range of circumstances not all of which will be serious. The offences will 'often be opportunistic acts by younger offenders with whom the community can deal without resorting to protective orders'.

(g) 'When the HRSO Act was passed the State had already legislated for the protection of the community from persons who are deemed to be high-risk through the Sentencing Administration Act (PSSO Regime) and also by s 98 of the Sentencing Act. There was no genuine problem to be solved by including robbery in the far-reaching provisions of the HRSO Act.' The inclusion of robbery and assault to rob as 'serious offences' could not be described as a 'carefully crafted response to a genuine problem' or to a serious threat to the community.

(h) Supervision orders contemplated by the HRSO Act 'appear to be penal in impact rather than reformative being intrusive in nature and bearing multiple latent opportunities for convictions for 'serious offences' for compliance failures to follow'.[81]

149 The respondent also referred to views expressed by the Human Rights Committee of the United Nations on communications submitted by Mr Fardon in 2006/2007; that is, following the dismissal of his appeal by the High Court.[82] The respondent's submitted that:[83]

In finding that indefinite detention laws in Australia considered by the High Court in Fardon violated fundamental human rights the Human Rights Committee said that the ongoing detention was equivalent to a fresh term of imprisonment imposed after a sentence and that the State should have demonstrated that rehabilitation could be achieved by less draconian steps given the State had already had the opportunity to carry out reform during the original sentence.

Is the HRSO Act protective or punitive?

150 Those features of the DSO Act that founded the conclusion that the legislation was preventative not punitive in character were noted earlier. The same features appear in the HRSO Act and the objects of the Act are, in substance, identical to those of the DSO Act.

151 Further, the HRSO Act provides for additional executive infrastructure to promote the objects of the Act: the establishment of the High Risk Serious Offenders Board and the imposition of obligations on 'supporting agencies' in respect of serious offenders. The functions of the High Risk Serious Offenders Board are directed to the assessment and management of offenders and facilitating cooperation between relevant agencies in the performance of 'serious offender functions'. The expression, 'serious offender functions', is defined to mean 'functions that are concerned with the assessment or management of serious offenders under custodial sentence or serious offenders under restriction'. Those aspects of the HRSO Act further reflect the preventative character of the legislation.

152 The other matters to which the respondent referred in his submissions do not affect that conclusion. First, the passage cited by the respondent from the judgment of the plurality in Vella v Commisisoner of Police (NSW) does not provide support for the proposition that the HRSO Act is punitive not preventative legislation when read in context. Further, the HRSO Act requires periodic reviews of continuing detention orders and an offender who is subject to a continuing detention order may initiate a review of the order. The Act does not provide for indefinite detention in any relevant sense.

153 Second, the validity of the HRSO Act is to be determined by the principles established by the High Court and not, with respect, according to the views expressed by bodies such as the Human Rights Committee (or by any judicial views on the desirability or efficacy of the Act).

154 Third, the respondent referred to features of the HRSO Act which were said to be aligned with criminal law procedures and which could be regarded as punitive. Those features included that the serious offences which are within the purview of the Act are offences under the Criminal Code; high risk offenders are not separately detained; the Act refers to victims of crime; the Act creates offences and a court may take into account convictions that were recorded while the offender was a juvenile.

155 In my view, none of those matters impart a punitive character to the Act considered as a whole:

(a) A means by which orders made under the Act can be enforced is obviously consistent with the Act's objective of protecting the community from the risk of future harm.

(b) An offender's criminal history as a juvenile may be relevant to assessing the risk that they might commit a serious offence in the future (what weight will be given to that history is a different matter and will depend on all the relevant circumstances).

(c) The fact that offenders who have been made subject to a continuing detention order under the DSO Act are detained on the same conditions as an offender serving a sentence of imprisonment has been the subject of comment by this court. However, the conditions on which high risk serious offenders are detained in custody under a continuing detention order is a matter for the executive; it is not a matter that is relevant to the validity of the HRSO Act.

(d) The remaining matters to which the respondent referred - for example, that the HRSO Act refers to victims of crime - are not, in themselves, punitive nor do they provide support for a conclusion that the Act is punitive not preventative legislation.

156 The respondent also submitted that the HRSO Act is punitive at least to the extent that it applies to the offences of robbery and assault with intent to rob. Two reasons were advanced for why the Act is punitive to that limited extent: first, the nature and relative seriousness of the offences and the circumstances in which they may committed; and second, the availability of other legislative mechanisms for protecting the community from the risk of that form of offending (the PSSO regime provided for by the Sentencing Administration Act and the power to impose an indefinite sentence under s 98 of the Sentencing Act).

157 The gist of the respondent's submission was that, in light of those matters, the inclusion of the offences of robbery and assault with intent to rob as serious offences revealed a punitive rather than preventative purpose. However, the submission was, in substance, an objection to the policy embodied in the legislative decision to include robbery and assault with intent to rob as serious offences - and the point of departure for the respondent's submission were subjective views about the nature and seriousness of the offences, the circumstances in which they are likely to be committed and the efficacy of the HRSO Act as applied to the offences (the inclusion of the offences was not a 'carefully crafted response' to a problem that warranted legislative intervention of the kind provided for by the Act). Further, the submission, paid little heed to the operation of the Act - the process of risk assessment and the balancing exercise involved in determining whether it is necessary to make a restrictive order to ensure adequate protection of the community. The circumstances in which an offender had, in the past, committed a serious offence is obviously relevant to assessing whether a risk of future serious offending is unacceptable.

158 Finally, the fact that there is other legislation which is intended to protect the community from the risk that an offender will reoffend does not affect the validity of the HRSO Act. Again, the respondent's submissions are directed to matters of legislative policy not constitutional validity. Further, the objectives of the PSSO regime are different to those of the HRSO Act. Section 74D of the Sentencing Administration Act provides that the Prisoners Review Board must make a PSSO in respect of a prisoner if it considers that the order is necessary for the prevention of harm to the community from further offending by the prisoner. Sections 74F and 74G specify the standard conditions for a PSSO and additional requirements that may be imposed at the discretion of the Board. Section 74G(g) permits the Board to impose, as an additional requirement, conditions to facilitate the supervised offender's rehabilitation. Apart from that provision, the conditions specified in ss 74F and 74G are concerned with supervision (control and monitoring) of the offender. Unlike the HRSO Act, the conditions that must or can be imposed by a PSSO are not directed to providing care and treatment for the offender.

The effect of the HRSO Act on public confidence in the court

159 The plurality in Vella v Commissioner of Police (NSW) observed that:[84]

The third strand of the plaintiffs' submissions relied upon the remarks of Gaudron J in Kable that the legislature had attempted to 'dress up' the proceedings as 'proceedings involving the judicial process. In doing so, the Act makes a mockery of that process and, inevitably, weakens public confidence in it.' Contrary to the plaintiffs' written and oral submissions, the reference by Gaudron J to 'public confidence' was not suggesting a licence for the Court to declare legislation invalid based upon its perception of the reaction of the public to the application of that legislation. Rather, public confidence represents 'the trust reposed constitutionally in the courts'. That construct of trust depends upon integrity. As Brennan CJ said in Nicholas v The Queen:

Integrity is the fidelity to legal duty, not a refusal to accept as binding a law which the court takes to be contrary to its opinion as to the proper balance to be struck between competing interests. To hold that a court's opinion as to the effect of a law on the public perception of the court is a criterion of the constitutional validity of the law, would be to assert an uncontrolled and uncontrollable power of judicial veto over the exercise of legislative power. It would elevate the court's opinion about its own repute to the level of a constitutional imperative. It is the faithful adherence of the courts to the laws enacted by the Parliament, however undesirable the courts may think them to be, which is the guarantee of public confidence in the integrity of the judicial process and the protection of the courts' repute as the administrator of criminal justice.

160 The passage cited by the plurality from the judgment of Brennan CJ in Nicholas v The Queen commences with the statement that, '[i]t is for the Parliament to prescribe the law to be applied by a court and, if the law is otherwise valid, the court's opinion as to the justice, propriety or utility of the law is immaterial'.[85] Similarly, Gleeson CJ observed in Fardon, 'nothing would be more likely to damage public confidence in the integrity and impartiality of courts than judicial refusal to implement the provisions of a statute upon the ground of an objection to legislative policy'.[86]

161 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.

Conclusion

162 The respondent contended that the HRSO Act was invalid to the extent that it applied in respect of items 34 and 35 of sch 1 div 1. As has been explained, that contention necessarily entailed a further challenge to ss 46 and 48 of the Act, insofar as it applied to a 'serious offender under custodial sentence' for having committed the offences of robbery and assault with intention to rob.

163 In my view, the HRSO Act is not invalid to the extent that it permits the State to make an application for a restriction order in those circumstances and empowers this court to make such an order. The Act is not repugnant to or incompatible with the institutional integrity of this court as a repository of federal jurisdiction.

164 The features of the Act that support that finding have been identified earlier. In summary:

(a) Section 7 of the Act requires the court to undertake an assessment of the risk of an offender committing a serious offence (whether there is a risk and if so, whether that risk is 'unacceptable'). The assessment requires an evaluative and predictive judgment undertaken according to the matters specified in s 7(3) - matters that are plainly relevant to the assessment of the risk and include mandated reports from appropriately qualified experts (who owe duties of independence and impartiality to the court). The court exercises judicial power in making the assessment.

(b) Section 7 of the Act requires the court to undertake a balancing exercise of the kind contemplated by the parity in Vella v Commissioner of Police (NSW) (whether it is necessary to make a restriction order to ensure adequate protection to the community against an unacceptable risk). Further, s 48 requires the court to perform a further balancing exercise in determining whether to make a continuing detention order or a supervision order - and if the latter, the conditions on which the order is to be made. Section 7 incorporates balancing criteria even if it is construed as being, in substance, identical with the equivalent provision of the DSO Act.

(c) The Act contains provisions that are designed to ensure procedural fairness to a respondent to an application for a restriction order. The procedures by which an application is heard and determined are 'traditional judicial forms and procedures'. The State must give disclosure; the respondent has a right to be present and to adduce evidence at both the preliminary hearing and the s 48 hearing; the rules of evidence apply with only one limited and common modification; the court is required to give detailed reasons at the time of making a restriction order; and there is a right of appeal.

(d) The HRSO Act is preventative not punitive legislation.

(e) The Act does not erode public confidence in the court.

(f) The Act does not compromise the court's impartiality or its decisional independence - the Act does not make the court an instrument of the executive.

The RDA
Sections 9 and 10 of the RDA

165 As stated in its Preamble, the purpose of the RDA is to provide for the prohibition of racial discrimination and certain other forms of discrimination and to give effect to the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD). The term 'racial discrimination' is defined in art 1(1) of the Convention to mean: 'any distinction, exclusion, restriction or preference based on race, colour, descent, or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of human rights and fundamental freedoms in the political, economic, social, cultural or any other field of public life.'

166 The respondent contends that parts of the HRSO Act are inconsistent with s 9(1A) of the RDA and consequently, invalid by operation of s 109 of the Constitution. Those parts, so it was submitted, have the effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, by Aboriginal prisoners of human rights and fundamental freedoms.

167 Section 9 of the RDA provides:

(1) It is unlawful for a person to do any act involving a distinction, exclusion, restriction or preference based on race, colour, descent or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of any human right or fundamental freedom in the political, economic, social, cultural or any other field of public life.

(1A) Where:

(a) a person requires another person to comply with a term, condition or requirement which is not reasonable having regard to the circumstances of the case; and

(b) the other person does not or cannot comply with the term, condition or requirement; and

(c) the requirement to comply has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, by persons of the same race, colour, descent or national or ethnic origin as the other person, of any human right or fundamental freedom in the political, economic, social, cultural or any other field of public life;

the act of requiring such compliance is to be treated, for the purposes of this Part, as an act involving a distinction based on, or an act done by reason of, the other person's race, colour, descent or national or ethnic origin.

(2) A reference in this section to a human right or fundamental freedom in the political, economic, social, cultural or any other field of public life includes any right of a kind referred to in Article 5 of the Convention.

(3) This section does not apply in respect of the employment, or an application for the employment, of a person on a ship or aircraft (not being an Australian ship or aircraft) if that person was engaged, or applied, for that employment outside Australia.

(4) The succeeding provisions of this Part do not limit the generality of this section.

168 Section 9(1) prohibits 'direct' discrimination. Section 9(1A) deals with 'indirect' discrimination - discrimination which Drummond J described in Ebber v Human Rights & Equal Opportunity Commission[87] as 'acts fair in form but discriminatory in impact'. His Honour noted that there were problems in construing s 9(1A)(c) and concluded:[88]

An act that imposes a requirement in terms that operates equally on all, but which, in a particular factual context, operates in a racially, nationally or ethnically discriminatory way because the members of one particular racial or national or ethnic group will not be able to meet the requirement that members of another group or groups can readily meet is thus the kind of discriminatory practice caught by s 9(1A).

The difficulties in construing s 9 of the RDA are not confined to the issue identified by Drummond J in Ebber v Human Rights & Equal Opportunity Commission: see, in particular, Australian Medical Council v Wilson.[89]

169 The tail to s 9(1A) states the effect of the section. The 'act of requiring compliance' is to be treated as an act involving a distinction based on, or an act done by reason of, the other person's race, colour, descent or national or ethnic origin. Consequently, a finding that the matters stated in s 9(1A)(a) – (c) have been established is a finding for the purpose of s 9(1) that the 'act of requiring ...compliance' is an unlawful act as it involves a distinction based on race, colour, descent or national or ethnic origin which has a prohibited purpose or effect (the purpose or effect component of s 9(1) being established by a combination of the finding under s 9(1A)(c) and treating the act of requiring compliance as an act based on or an act done by reason of the other person's race etc). In short, the 'act of requiring' is an act for the purpose of s 9(1) and is accordingly, unlawful if the provisions of s 9(1A) are otherwise satisfied.

170 Section 9(1A) of the RDA requires the following matters to be considered:

(a) what is the term, condition or requirement sought to be imposed for the purpose of s 9(1A)(a);

(b) who is the 'person' seeking to impose that term, condition or requirement;

(d) whether the affected person does not or cannot comply with the term, condition or requirement;

(e) what are the categories of persons to be considered for the purpose of the comparison required by s 9(1A)(c);

(f) whether the term, condition or requirement has the purpose or effect specified by s 9(1A)(c) – that, in turn, requires the asserted right or fundamental freedom to be identified and a determination made as to whether the right or freedom falls within s 9, and if so, whether in fact, the requirement to comply nullified or impaired the recognition, enjoyment or exercise of that right or freedom.

171 The Attorney General contended that '[i]f the respondent considers that the [HRSO] Act invalidly provides for jurisdiction of a State court, it may have recourse to s 10 of the RDA, to the extent that it applies.'[90] Section 10 states:

(1) If, by reason of, or of a provision of, a law of the Commonwealth or of a State or Territory, persons of a particular race, colour or national or ethnic origin do not enjoy a right that is enjoyed by persons of another race, colour or national or ethnic origin, or enjoy a right to a more limited extent than persons of another race, colour or national or ethnic origin, then, notwithstanding anything in that law, persons of the first‑mentioned race, colour or national or ethnic origin shall, by force of this section, enjoy that right to the same extent as persons of that other race, colour or national or ethnic origin.

(2) A reference in subsection (1) to a right includes a reference to a right of a kind referred to in Article 5 of the Convention.

(3) Where a law contains a provision that:

(a) authorizes property owned by an Aboriginal or a Torres Strait Islander to be managed by another person without the consent of the Aboriginal or Torres Strait Islander; or

(b) prevents or restricts an Aboriginal or a Torres Strait Islander from terminating the management by another person of property owned by the Aboriginal or Torres Strait Islander;

not being a provision that applies to persons generally without regard to their race, colour or national or ethnic origin, that provision shall be deemed to be a provision in relation to which subsection (1) applies and a reference in that subsection to a right includes a reference to a right of a person to manage property owned by the person.

172 Section 10 of the RDA is concerned with the operation of Commonwealth, State and Territory laws whereas s 9 prohibits acts by persons that directly or indirectly discriminate and which are, thereby, unlawful. That distinction is significant in this matter. As will be explained, the respondent's assertions about the HRSO Act concern the operation of the Act and not the effect of a person requiring the respondent to comply with a term, condition or requirement for the purpose of s 9(1A). That explains, in my view, the difficulties encountered by the respondent in attempting to align the impugned provisions of the HRSO Act with the language and concepts of s 9(1A) of the RDA.

The respondent's submissions

173 The respondent submitted that:

(a) The making of a State law is not an act for the purpose of s 9 of the RDA. Rather, s 10 applies directly to State laws. However, s 9 may 'operate as a source of invalidity where a State law makes lawful the doing of an act proscribed by s 9'. Section 109 inconsistency may arise 'because a State law is a law dealing with racial discrimination, the Commonwealth law being intended to occupy that field to the exclusion of any other law ... Or it may arise because a State law makes lawful the doing of an act which s 9 forbids' (respondent's emphasis).[91]

(b) The HRSO Act purports to authorise a judicial officer to make decisions that are contrary to the indirect discrimination prohibition in s 9(1A) of the RDA –

(i) The term, condition or requirement imposed by the HRSO Act for the purpose of s 9(1A) is that the HRSO Act requires the court to undertake the risk assessment provided for by s 7 in determining whether a 'serious offender under custodial sentence' is to be made subject to a restriction order. The term, condition or requirement 'can be characterised as a requirement that a person serving a sentence for a serious offence does not pose an "unacceptable risk" of committing a serious offence'.[92] (The requirement was referred to in the respondent's submissions as the 'risk assessment condition'.)

(ii) A person who does not satisfy the risk assessment condition will be subjected to a restriction order which will interfere with their fundamental human right to liberty and/or freedom of movement.

(iii) The risk assessment condition applies to persons serving a custodial sentence for a serious offence. The comparison required by s 9(1A) is between Aboriginal and non-Aboriginal prisoners who have been convicted of a serious offence.

(iv) Aboriginal people constitute approximately 40% of the adult prison population. It can be inferred that Aboriginal people constitute approximately 40% of prisoners who have been convicted of a serious offence, including robbery.

(v) Aboriginal people are more likely than non-Aboriginal people to satisfy the risk factors specified in s 7(3) of the HRSO Act; that is, the risk assessment criteria are likely to have a discriminatory effect on Aboriginal prisoners compared to non-Aboriginal prisoners.

(vi) The risk assessment condition is not reasonable 'as it relates to the impugned provisions' of the HRSO Act given the restrictions on the assessment of risk contained in the Act; the lack of any balancing criteria; the punitive provisions of the HRSO Act, including in relation to supervision orders; and 'the commitment of [the] Australian government to reduce Aboriginal incarceration'.[93]

174 As noted above, the respondent in his written submissions identified the term, condition or requirement with which he was required to comply as the 'risk assessment condition': a requirement that a person serving a sentence for a serious offence not pose an "unacceptable" risk of committing a serious offence'. In his oral submissions, Mr Sheiner identified an alternative term, condition or requirement by reference to the matters stated in s 7(3) of the HRSO Act: that the respondent not have a particular history of offending or a propensity to commit serious offences or a certain pattern of offending and that he has successfully participated in a treatment programme and so on. It is convenient to refer to that alternative formulation as the 's 7(3) requirements'.

The Attorney General's submissions

175 In summary, the Attorney General submitted that:

(a) The respondent's challenge was 'essentially to the operation of the [HRSO] Act, rather than to the act of a judicial officer himself or herself.' That was so for the following reasons. The respondent 'expressly challenged' the power of a judicial officer to conduct a preliminary hearing as being contrary to s 9(1A) of the RDA and accordingly, 'inoperative' by reason of s 109 of the Constitution. However, the respondent characterised the 'term, condition or requirement' for the purpose of s 9(1A) as 'a requirement that a person serving a sentence for a serious offence does not pose an "unacceptable risk" of committing a serious offence' and that a failure by the offender to satisfy this requirement 'will result in the imposition of a restriction order and consequential interference with the offender's human rights'. The respondent also contested the power to determine whether an offender should be made subject to a restriction order. Moreover, the respondent's ultimate submission was that 'the HRSO Act purports to authorise a judicial officer to make decisions that are contrary to the indirect discrimination prohibition in s 9(1A) and that it [ie, the HRSO Act] is for that reason inconsistent with the operation of s 9(1A) of the RDA and invalid under s 109 of the Constitution'.[94]

(b) The risk assessment undertaken by the court pursuant to s 7 of the HRSO Act does not require a serious offender to 'comply' with a term, condition or requirement. Further, as s 7 does not require a serious offender to do anything, it cannot be said that the offender does not or cannot comply with any term, condition or requirement.

(c) The purpose of the court undertaking an assessment of risk pursuant to s 7 of the HRSO Act is to satisfy the terms of the Act, not to nullify or impair the recognition, enjoyment or exercise of any human right or fundamental freedom of the serious offender.

(d) As for the effect of s 7:

A risk assessment is entirely concerned with likely future risk which an individual person poses. There is no discrimination for or against any person, whatever race, colour, descent or national or ethnic origin, who poses the relevant risk. They are all treated the same way. Therefore, any requirement to comply with a risk assessment does not nullify or impair the recognition, enjoyment or exercise of any right or freedom, except upon an equal footing.[95]

(e) Section 9 of the RDA is concerned with the recognition, enjoyment or exercise of a substantive 'human right or fundamental freedom in the political, economic, social, cultural or any other field of [public] life'. Properly construed, s 9 is not intended to regulate the jurisdiction of a State court and the orders which may be made by the court. It protects the individual rights and freedoms of a person, not the exercise of jurisdiction by a State court. That is consistent with the constitutional reality that the Commonwealth lacks power to enact a law which purports to regulate the exercise of State jurisdiction by a State court. The respondent may have recourse to s 10 of the RDA, to the extent that it applies, if he considers that the HRSO Act invalidly confers jurisdiction on the court.

(f) There is, in any event, no inconsistency for the purpose of s 109 of the Constitution. There is no direct inconsistency as the HRSO Act does not expressly make any act lawful; rather, it requires the court to determine whether a person is a high risk serious offender and to make consequential orders. There is no indirect inconsistency as the Act is not a law dealing with racial discrimination. In particular, ss 7 and 48 (and by inference, s 46) are laws of general application which apply to those offenders whom Parliament has prescribed as serious offenders.

Constitutional facts and discrimination

176 The respondent proposed that several matters concerning the numbers, and personal and social-economic circumstances, of Aboriginal prisoners compared with non-Aboriginal prisoners be accepted as facts for the purpose of establishing that risk assessment and, more particularly, the risk assessment undertaken by the court pursuant to s 7(1) of the HRSO Act was 'likely to have a discriminatory effect on Aboriginal as opposed to non-Aboriginal prisoners as Aboriginal people are more likely than non-Aboriginal people to satisfy most of the risk factors which the court is mandated to have regard to set out in s 7(3)'.[96] A copy of the constitutional facts proposed by the respondent is annexed to these reasons (the Proposed Facts Statement). The facts were based on the evidence provided by Associate Professor Ferrante, Professor Dudgeon and Dr Shepherd. The matter stated in par 1 of the Proposed Facts Statement was said to be taken from annual reports produced by the Department of Justice which were attached to the affidavit of Mr Gregson.

177 The Attorney General accepted as facts the matters stated in pars 1 and 3(a) and (c) of the Proposed Facts Statement. An amendment to add par 4 to the statement had not been brought to the attention of the Solicitor General prior to the hearing on 13 October 2021. Accordingly, he had no instructions in relation to the matters stated in par 4. The Attorney General did not accept the balance of the matters stated in the absence of further evidence.

178 My understanding was that the respondent only relied on the matters stated in the Proposed Facts Statement to establish the discriminatory effect of a requirement to comply with the risk assessment condition and/or the s 7(3) requirements, with the affidavits filed on his behalf providing the evidence to establish those facts. However, some matters stated in the affidavits were not fully reflected in the proposed constitutional facts. In particular, Dr Shepherd's affidavit provided evidence about 'violence' risk assessment instruments employed in the criminal justice system throughout Australia. Some of the instruments to which he referred are routinely used by psychiatrists and psychologists giving evidence about risk in applications to this court; other instruments were not familiar.

179 Dr Shepherd advised that he did not know which instruments were employed to assess risk in applications under the HRSO Act. However, he stated that generally '[p]rior research indicates that Aboriginal Australian offenders receive risk instrument total scores in the realm of 3 - 6 points higher than non-Aboriginal Australian offenders.' That was because Aboriginal offenders often presented with higher scores on criteria such as criminal history, education/employment, family/marital issues, substance use and anti-social attitudes.[97]

180 It is not necessary to resolve the issues arising out of the respondent's proposed constitutional facts given the reasons for finding that the challenged parts of the HRSO Act are not inconsistent with s 9(1A) of the RDA. I would have accepted the matters stated in par 4 of the Proposed Facts Statement had it been necessary to finally decide whether s 7 of the HRSO Act or any other part of the Act had the effect proscribed by s 9(1A) of the RDA. However, the respondent's challenge to the validity of parts of the HRSO Act can be decided according to the resolution of questions about the proper construction of ss 9 and 10, rather than by factual determinations. Although the Attorney General did not accept some of the proposed constitutional facts, it was not suggested that the respondent's challenge should be decided according to whether the evidence established those facts.

181 It is also not necessary for the same reason to consider whether the appropriate comparison for the purpose of s 9(1A)(c) was, as the respondent submitted, a comparison between Aboriginal and non-Aboriginal prisoners who have committed a serious offence.

Sections 9(1A) and 10 of the RDA – the difference between the operation of a statute and making a proscribed act lawful

182 The respondent cited from the judgment of Mason J in Gerhardy v Brown to contend that a State law may be inconsistent with s 9(1A) of RDA notwithstanding the provisions of s 10. At issue in Gerhardy v Brown was the validity of the Pitjantjatjara Lands Right Act 1981 (SA) (the Land Rights Act) and, in particular, s 19 of the Act which prohibited any non-Pitjantjatjara person from entering certain lands without permission. The High Court held, among other things, that the Act was a 'special measure' within the meaning of s 8 of the RDA and accordingly, s 19 was valid.

183 That part of the judgment of Mason J relied on by the respondent was reproduced (at [173(a)] above). It is helpful to set out in full the relevant part of his Honour's judgment:[98]

The operation of s.9 is confined to making unlawful the acts which it describes. It is s.10 that is directed to the operation of laws, whether Commonwealth, State or Territory laws, which discriminate by reference to race, colour or national or ethnic origin. Accordingly, we must look to s.10, rather than to s.9, of the Commonwealth Act, in order to determine the impact which that Act has on s.19 of the State Act. This is not to say that s.9 of the Commonwealth Act cannot operate as a source of invalidity of inconsistent State laws, by means of s.109 of the Constitution. Inconsistency may arise because a State law is a law dealing with racial discrimination, the Commonwealth law being intended to occupy that field to the exclusion of any other law (Viskauskas v. Niland [1983] HCA 15; (1983) 57 ALJR 414; 47 ALR 32). Or it may arise because a State law makes lawful the doing of an act which s.9 forbids (see Clyde Engineering Co. Ltd. v. Cowburn [1926] HCA 6; (1926) 37 CLR 466, at p 490). But, neither the State Act, nor s.19, is a law dealing with racial discrimination; nor does either make lawful the doing of an act proscribed by s.9. And s.10 of the Commonwealth Act, by making specific provision in the case of State laws which discriminate in the manner already described, makes it clear that s.9 is not intended to apply to such a situation.

One important aspect of s.9 of the Commonwealth Act, which the respondent's argument raises for consideration, however, is the effect of the section in relation to an act done pursuant to a statute which authorizes the conferring of a benefit, or the imposition of a burden or liability, on persons of a race or races, but not on persons of another race or races. This question arises because the respondent submits that the issue by the Governor of a land grant under s.15 of the State Act and the prosecution of the respondent for an offence under s.19 of that Act fell foul of s.9(1) of the Commonwealth Act. Because s.9(1) creates a criminal offence and because the subsection is aimed at an act whose purpose or effect is to nullify or impair the recognition, enjoyment or exercise on an equal footing of a relevant human right or fundamental freedom, the operation of the subsection does not extend to circumstances in which the actor, having statutory authority to confer a benefit or to impose a burden or liability only in a particular way, acts in accordance with that authority. (emphasis added)

184 Two preliminary points should be noted. First, s 9(1A) was only introduced into the RDA in 1990 - five years after the High Court decided Gerhardy v Brown. The reference to 'doing an act' reflected the wording of s 9(1) at the time of the High Court's decision. However, properly construed, the application of ss 9 and 10 is not affected by differences in wording between ss 9(1) and 9(1A).[99]

185 Second, the respondent did not contend that he was subject to direct discrimination for the purpose of s 9(1). He did not allege that a person had done an act based on race, colour, descent or national or ethnic origin. Rather, he contended that s 7 of the HRSO Act, read with s 46 (and by implication, s 48) made lawful a requirement to comply with a term, condition or requirement which was not reasonable, with which he did not or could not comply, and which had the proscribed effect referred to in s 9(1A)(c).

186 Mason J drew a distinction in the passage cited above between the operation of a law and a law that authorises the doing of an act that is prohibited by s 9. Section 19 of the Land Rights Act provided for a statutory prohibition on any non-Pitjantjatjara person entering certain lands. The section did not make lawful the doing of an act. Rather, the prohibition applied by operation of the Act. Consequently, the question was whether s 19 was inconsistent with s 10, not s 9, of the RDA.

187 His Honour identified two kinds of cases on which s 10 can operate. The application of s 10 in the second kind of case was described as follows:[100]

When racial discrimination proceeds from a prohibition in a State law directed to persons of a particular race, forbidding them from enjoying a human right or fundamental freedom enjoyed by persons of another race, by virtue of that State law, s.10 confers a right on the persons prohibited by State law to enjoy the human right or fundamental freedom enjoyed by persons of that other race. This necessarily results in an inconsistency between s.10 and the prohibition contained in the State law.

The plurality in The State of Western Australia v Ward added, '[t]he same is true of a State law that deprives persons of a particular race of a right or freedom previously enjoyed by all regardless of race'.[101]

188 In Maloney v The Queen, Gageler J described the second category identified by Mason J in Gerhardy v Brown as follows:[102]

In the case of a State law which results in the unequal enjoyment of a human right by positively impeding the enjoyment of that right by persons of a particular race (for example, by imposing a legal prohibition or by extinguishing a legal right), s 10 operates to remove that impediment. ... In ... [that] case, the State law is inconsistent with the operation of s 10 and is to that extent invalid under s 109 of the Constitution.

189 It is apparent from the opening words, 'by reason of', that s 10 is concerned with the operation and effect of laws.[103] Further, the plurality in Ward observed:[104]

Section 10(1) is directed at 'the practical operation and effect' of the impugned legislation and is 'concerned not merely with matters of form but with matters of substance'. Mason J in Gerhardy put the matter this way:

[Section] 10 is expressed to operate where persons of a particular race, colour or origin do not enjoy a right that is enjoyed by persons of another race, colour or origin, or do not enjoy that right to the same extent.' (Original emphasis.)

190 The respondent did not contend that s 10 of the RDA applied; as noted above, his contention was that parts of the HRSO Act were inconsistent with s 9(1A), notwithstanding s 10. Accordingly, it is necessary to turn to consider the possible application of s 9(1A) to the impugned parts of the RDA.

References in the HRSO Act to 'the court'

191 Section 7 of the HRSO Act refers to 'the court dealing with an application' under the Act. The respondent contended that the judge determining the application is the 'person' who requires compliance by the 'other person' for the purpose of s 9(1A).

192 The Attorney General, on the other hand, noted the reference to 'the court' for a different purpose; indeed, it was observed that the HRSO Act refers throughout to 'the court'. That observation was foreshadowed two related submissions.

193 First, it was submitted that s 9 'is not intended to regulate the jurisdiction of a State court, and the orders which may be made by a State court'. The section 'protects the individual rights and freedoms of a person, inside or outside of a court'. That led to the submission noted earlier concerning the respondent's possible recourse to s 10.[105]

194 Second, that submission was said to be consistent with limitations on the legislative power of the Commonwealth. The Commonwealth Parliament has no power to pass laws that regulate the exercise of State jurisdiction by State courts and s 9(1A) should be construed to be within the Commonwealth's legislative powers.

195 It will be necessary to return to the Attorney General's submissions. The point to be presently noted in analysing the respondent's assertion of inconsistency is that the 'person' who 'requires' for the purpose of s 9(1A) is a judge who determines an application for a restriction order and not the court.

Section 7 of the HRSO Act and s 9(1A) of the RDA

196 In my view, the series of evaluative judgments required by s 7 of the HRSO Act cannot be characterised in any meaningful or relevant way so as to conform to the language and concepts employed by s 9(1A) of the RDA - the expressions, 'a person requires'; 'another person to comply' and 'term, condition or requirement'.

197 The verb 'requires' connotes something directed to the 'other person' as a stipulation. The stipulation takes the form of a term, condition or requirement with which the other person is required to comply. The term, condition or requirement may, for example, be that the 'other person' do, or refrain or be prohibited from doing, an act or the 'other person' conform to, or with, something. The respondent contended that s 7 requires that he and other Aboriginal prisoners who have committed a serious offence comply with a term, condition or requirement concerning the acceptability of their risk of serious offending and/or about their personal circumstances and their personality and offending profiles.

198 However, in determining an application for a restriction order, a judge does not 'require' an offender to 'comply' with a 'term, condition or requirement' that the offender not pose an unacceptable risk of committing a serious offence. Rather, the court makes findings based on a consideration of the matters specified in s 7(3). The findings are predictive about a future risk and evaluative about the nature of the risk (acceptable or unacceptable) and the need to make a restriction order to ensure adequate protection of the community. Whether an offender poses an 'unacceptable' risk of serious offending is a judgment made by the court having regard to the circumstances under consideration - an inference that may or may not be drawn by the court. Section 7 does not embody a term, condition or requirement with which the court requires an offender to comply.

199 It can be said that one 'requirement' for a person to be found to be a high risk serious offender is that they are adjudged, on a consideration of the matters stated in s 7(3), to be an unacceptable risk of serious offending by the evaluative and balancing process described in the earlier sections of these reasons. However, that is different to saying that the section requires a judge to require an offender to comply with a term, condition or requirement that they do not pose an unacceptable risk of serious offending. In terms of the tail to s 9(1A), a judge does not, in applying s 7, do an 'act of requiring compliance' by the offender. Rather, the section is directed to the court; it requires a judge of the court to assess the risk of an offender committing a serious offence and to determine the other matters referred to in the section.

200 That view of the application of s 9(1A) of the RDA is not affected by substituting the s 7(3) condition as the term, condition or requirement. Again, the matters referred to in s 7(3) cannot be characterised as 'terms, conditions or requirements' within the meaning of s 9(1A) in that a court can require an offender to comply with those requirements. The matters are not stipulations that might be imposed by a judge determining an application for a restriction order; they are matters to be considered in undertaking the evaluative exercise required by s 7(1). So, for example, the court does not require an offender to have successfully participated in treatment or counselling programmes or to not have a particular criminal history or to not have a propensity to commit a particular type of offence. Those are matters about which the court is required to make findings of fact according to the evidence. The court is then required to apply those findings in determining whether the offender is a high risk serious offender. Accordingly, the matters stated in s 7(3) cannot be characterised as terms, conditions or requirements and they are not matters with which the offender is required to comply within the meaning of s 9(1A) of the RDA. Again, in terms of the tail of s 9(1A), a judge does not do an 'act of compliance' in making findings under s 7(3).

201 Section 9(1A)(a) qualifies the application of s 9(1A): the term, condition or requirement with which the 'other' person is required to comply must be unreasonable having regard to the circumstances of the case. The respondent submits that the risk assessment condition and the s 7(3) requirements are unreasonable given the restrictions on the assessment of risk contained in the Act; the lack of any balancing criteria; the punitive provisions of the HRSO Act, including in relation to supervision orders; and 'the commitment of [the] Australian government to reduce Aboriginal incarceration'.[106]

202 Two points can be made about that submission on the assumption that must be made for the purpose of the analysis that it is possible to spell out of s 7 a 'requirement to comply' with a 'term or a condition or requirement'.

203 First, with one exception, those matters have already been considered. I have found that the HRSO Act does not unreasonably restrict the process by which an assessment of the risk of an offender committing a serious offence is undertaken; the Act incorporates balancing criteria and the Act is not punitive. Further, the matters relied on to establish unreasonableness were, in substance, matters concerning the policy embodied in the legislation. That is because the alternative contention of inconsistency with the RDA necessarily proceeds on the assumption that the HRSO Act is valid in that it is not repugnant to or incompatible with the institutional integrity of this court. Accordingly, the respondent's submission was, in truth, a submission that any term, condition or requirement with which he was required to comply was unreasonable because the effect of the Act was unreasonable.

204 The additional matter raised by the respondent concerned 'the commitment of the Australian Government to reduce Aboriginal incarceration'. The respondent referred to the 'National Agreement on Closing the Gap' (the National Agreement), signed by the Commonwealth and State Governments in July 2020. That, of course, is a policy of executive governments. No matter how desirable the policies and commitments contained in the National Agreement are, they could not make either the risk assessment condition or the s 7(3) requirements unreasonable 'given the circumstances of case'; that is, in the context in which the respondent would be required to comply with them. In circumstances where the respondent had committed a serious offence in the past, and where he was the subject of an application under the HRSO Act (a 'preventative legislative regime'), it could not be unreasonable to require him to not present an unacceptable risk of serious offending or to have successfully completed relevant treatment and counselling programmes or to not have a propensity to commit a particular type of serious offence and so on.

205 Second, the reference to the statutory context again exposes the more fundamental problem with the respondent's analysis of the application of s 9(1A) to the risk assessment provisions of s 7 of the HRSO Act. In finding that an offender is a high risk serious offender as defined by s 7, a judge of the court is merely applying the statute. The question whether an offender presents an unacceptable risk of serious offending is a question posed by the HRSO Act. The matters stated in s 7(3) are not matters imposed or 'required' by a judge making a determination under s 7. Rather, they are matters specified by Parliament which the Act mandates the court must consider in determining whether an offender is a high risk serious offender.

206 The point can be further illustrated by reference to what was said by Heerey J in Australian Medical Council v Wilson about the term 'unreasonable' when used in s 9(1A):[107]

In a passage which has been adopted on a number of occasions by the High Court, Bowen CJ and Gummow J said in Secretary, Department of Foreign Affairs and Trade v Styles [1989] FCA 342; (1989) 23 FCR 251 at 263 (speaking of the relevantly indistinguishable provision in s 5(2) of the Sex Discrimination Act) that the test of "reasonableness"

... is less demanding than one of necessity, but more demanding than one of convenience ... The criterion is an objective one, which requires the court to weigh the nature and extent of the discriminatory effect, on the one hand, against the reasons advanced in favour of the requirement or condition on the other. All the circumstances of the case must be taken into account.

207 If it was possible to spell out of s 7 a 'requirement to comply' with a 'term or a condition or a requirement', it would be a requirement to comply with a term, condition or requirement imposed, expressly or impliedly, by a judge applying the law. That is, 'the reasons advanced in favour of the requirement or condition' would be found in the provisions of the HRSO Act. A judge requiring an offender to comply with the risk assessment condition or the s 7(3) requirements would, in substance, be merely giving effect to the statute.

208 Put another way, the matters sought to be raised by the respondent concern the operation of the HRSO Act. The source of the indirect discrimination he alleges lies in the Act and its application. The discrimination is said to occur when the Act is applied by the court making determinations according to the Act's provisions. That is recognised in parts of the respondent's submissions; for example, in the submission that Aboriginal people are more likely than non-Aboriginal people to 'satisfy' the factors specified in s 7(3) as a result of the matters stated in the Proposed Facts Statement.

The Attorney General's submissions on s 10

209 The Attorney General submitted that the respondent sought to elide the distinction between s 9(1A) of the RDA (a person requiring compliance with a term, condition or requirement) and s 10 (the effect of Commonwealth, State and Territory laws) by equating the judicial officer who determines an application under the HRSO Act with the 'person' to whom s 9(1A) refers. The HRSO Act confers, so the Attorney General submitted, powers on the court; the judge who determines an application under the Act is merely the means by which those powers are exercised in a particular instance. Moreover, 'in truth what is being attacked here is a law, and what the law requires, not what a person has required, or a person complying with the law requires. And therefore, there is no legislative intention for s 9(1A) to apply to a State court, or for a judge sitting in a State court.'[108]

210 The Attorney General further submitted that, properly construed, s 9 is concerned with the recognition, enjoyment or exercise of a substantive human right or fundamental freedom in the political, economic, social, cultural or any other field of life. The section is not intended to regulate the jurisdiction of a State court or the orders that may be made by the court. Those matters lie outside the legislative power of the Commonwealth. The Commonwealth Parliament may legislate to confer federal jurisdiction on State courts and to regulate the exercise of that jurisdiction. However, the Commonwealth cannot legislate to affect the exercise of State judicial power.

211 I accept those submissions. The RDA is to be construed according to the limits on the Commonwealth's legislative powers; that is, it is to be applied according to an interpretation that preserves its validity. Further, the Solicitor General's observation that 'in truth what is being attacked here is a law, and what the law requires, not what a person has required, or a person complying with the law requires' reflects the conclusions I have reached.

Conclusion

212 Section 10 of the RDA is headed 'Rights to equality before the law', whereas s 9 is headed 'Racial discrimination to be unlawful'. In Maloney v The Queen, French CJ observed that:[109]

Section 10 was evidently inserted in the RDA to give effect to Art 2(1)(c) of the ICERD. It is said to have been designed to bring about equality before the law.. It might more modestly be described as designed to overcome inequality before the law based on race, colour or national or ethnic origin.

213 Fundamentally, the respondent's contention was that the effect of the HRSO Act, and in particular, s 7 read with ss 46 and 48, is to deny him, and other Aboriginal prisoners who have committed a serious offence, equality before the law. He contended that a person who does not satisfy the risk assessment condition or the s 7(3) requirements will be subjected to a restriction order that interferes with their human right to liberty and/or freedom of movement. The constitutional facts he proposed were to establish that Aboriginal prisoners, when compared with non-Aboriginal prisoners, are more likely to be caught by the provisions of the HRSO Act - they are more likely to be serious offenders to whom the Act might apply and they are disadvantaged – discriminated against – in the risk assessment process undertaken pursuant to 7 of the Act because of the nature of the matters enumerated in s 7(3). Accordingly, they are more likely to be found to be high risk serious offenders and they are, therefore, more likely to be made subject to a restriction order. Those are all matters that relate to the operation of the Act: the definition of what constitutes a serious offence, the considerations specified by s 7(3) and the matters about which the court must be satisfied under s 7(1).

214 The court, in making a determination under s 7, evaluates matters that are prescribed by the Act (s 7(1)) according to considerations that are specified in the Act (s 7(3)). The finding required by s 7 is that the court is satisfied about the matters stated in the section. The finding is made by applying the Act and it is by operation of the Act that an offender comes to be a 'high risk serious offender' for the purpose of the Act. Consequently, an assertion of inconsistency between the challenged parts of the HRSO Act and the RDA falls to be considered under s 10 and not s 9(1A). In my view the observations of Mason J in Gerhardy v Brown reproduced at [183] above explain why that is so.

The s 46 issues The proper construction of s 46

215 The respondent submitted that, properly construed and applied, s 46 raised a 'formidable threshold'. That submission drew on observations made by Callinan and Heydon JJ in Fardon:[110]

The forms and procedures prescribed by the [DPSO Act] bear the hallmarks of traditional judicial forms and procedure. Section 5(3) raises a formidable threshold for the Attorney-General as applicant to surmount: a need at a preliminary hearing to satisfy the Court that 'there are reasonable grounds for believing the prisoner is a serious danger to the community in the absence of [an] ... order.' This is a considerably higher threshold than a prosecutor has to surmount at a committal, effectively the establishment of a prima facie case only.

216 The respondent further submitted that this approach was reflected in the analysis of s 14 of the DSO Act (equivalent to s 46 of the HRSO Act) by McKechnie J in Director of Public Prosecutions (WA) v Free.[111] His Honour considered that s 14 was a 'check on the power of the executive' in circumstances where '[t]he decision a judge makes on a preliminary hearing is the first step in a process which might lead to the indefinite detention of a citizen following the conclusion of a sentence of imprisonment on the grounds that they are an unacceptable risk to the community.'[112] His Honour continued:[113]

A judge does not have to be satisfied that an order will be made. It is sufficient if there are reasonable grounds for believing that an order might be made. 'Might' is an unusual word to use in the circumstances, being the past tense of 'may', yet describing an event that could occur in the future, not the past. 'May' means a possibility.

It is not helpful to speak of the test at a preliminary hearing as a low threshold or any other description. The words mean what they say, and the belief of the judge must be grounded in fact and must acknowledge that a judge is exercising a judicial, not administrative power, and so is permitted to bring scrutiny to the possibility of a detention or supervision order being made.

217 His Honour then cited well known passages from the judgment of the High Court in George v Rockett[114] on the expression 'reasonable grounds of belief' and concluded that, '[t]he principle to be extracted is that there must be sufficient facts or circumstances to ground in reason an inclination towards the proposition under review.'[115]

218 The respondent sought to contrast that analysis with the approach taken by Allanson J in The State of Western Australia v PAS[116] and Quinlan CJ in The State of Western Australia v Nelson.[117] In The State of Western Australia v PAS, Allanson J commented that:[118]

Belief is an inclination of the mind towards assenting to, rather than rejecting, a proposition. For there to be 'reasonable grounds' for belief requires the existence of facts which are sufficient to induce that state of mind in a reasonable person.

219 In The State of Western Australia v Nelson, the Chief Justice observed:[119]

While the definition of 'high risk serious offender' sets a relatively high bar for the imposition of a restriction order (in the sense of requiring proof to a high degree of probability), s 46(1) of the Act sets a low threshold for the purposes of a preliminary hearing. I do not have to be satisfied that a restriction order will be made. It is sufficient if there are reasonable grounds for believing that an order might be made. To say that something might occur, is to say that it is possible. Belief is an inclination of mind towards assenting to, rather than rejecting, a proposition. For there to be reasonable grounds for belief requires the existence of facts which are sufficient to induce that state of mind in a reasonable person.

220 The respondent also contended that the words 'could' or 'would' may be substituted for the word 'might' when used in s 46(1) without changing the meaning or 'intention' of the section.[120] The respondent referred to the decision of the Queensland Court of Appeal in Australian Hospital Care Pty Ltd v Swinbank[121] and the judgment of Gillard J in R v Jeffrey[122] in support of that proposition.

221 The issue in Australian Hospital Care was the proper construction of an exclusion clause in an insurance policy. The clause excluded liability for a claim arising out of malpractice prior to the commencement date of the policy if the assured could, among other things, have reasonably foreseen that such malpractice 'might be expected to be the basis of a claim'. The primary judge had held that 'the element of certainty attaching to the word "expect" is somewhat qualified by the element of possibility or conditionality rather than probability introduced into the exclusion clause by the adverb "might"'.

222 On appeal, Chesterman J concluded that the word 'might' is not 'an adverb used to indicate possibility and so to qualify the primary meaning of "expect". Its function is as an auxiliary verb to render the phrase, "might be expected", into the subjunctive mood appropriate for the connotation that any claim is hypothetical or prospective. It would have been possible to omit 'might' without altering the sense or subjunctive form'.[123] The respondent relied on those observations to contend that the word 'might' appearing in s 46(1) of the HRSO Act merely indicated that the determination to be made under s 48 was prospective.

223 The observations of Chesterman J were made in an entirely different context to the interpretation of s 46(1). As his Honour explained, the word 'might', when used in the exclusion clause, was substantively redundant; the operative part of the clause was to be found in the expressions 'reasonably foreseeable' and 'be expected'. The word 'might' merely indicated that the reasonably foreseeable expectation concerned past malpractice giving rise to a claim made after the inception date of the policy.

224 That is not the function performed by the word 'might' in s 46(1). The word denotes not just that a finding may be made in the future. Unlike in Australian Hospital Care, the word 'might' cannot be struck from s 46(1) without altering its meaning and intended effect. The word identifies the matter about which the court must be satisfied there are reasonable grounds for believing: the possibility of a finding that, in accordance with s 7, the offender is a high risk serious offender.

225 Similarly, the judgment of Gillard J (sitting in the Full Court of the Supreme Court of Victoria with Barry and Smith JJ) in R v Jeffrey concerned an issue that was entirely different to any question about the interpretation of s 46(1) of the HRSO Act. In that case, the trial judge directed the jury on the defence of provocation by reference to acts being of such a character as would cause an ordinary person to lose self control. Gillard J noted that there were authorities referring to 'would' as the correct test and other authorities referring to 'could'. His Honour was not persuaded that the trial judge had necessarily erred in his direction to the jury but, in any event, a miscarriage of justice had not occurred. The respondent's contention gave undue weight to the use of one word in the context of a lengthy charge.

226 Barry J likewise held that the trial judge's direction had not caused a miscarriage of justice. The direction was 'adequate and completely fair in the circumstances of this trial'.[124] Smith J, however, considered that the proper test was 'could' not 'would' and that there was a material difference between the two words. His Honour concluded that there was a misdirection of law and the appeal should have been allowed.

227 The discussion in R v Jeffrey about 'would' and 'could' does not assist in construing s 46(1) and provides no support for the respondent's contention. Self-evidently, there is a substantive difference between the meanings denoted by the words 'would' and 'might'. To substitute, in effect, the word 'would' for 'might' in s 46(1) would fundamentally alter the operation of the section. To substitute the word 'could' for 'might' would do less violence to the operation of the section but it is not the word used in the statute and there is no ambiguity in the meaning and effect of the word Parliament chose to use in enacting the HRSO Act.

228 In my view, there is no substantive difference between the views expressed by McKechnie J in Director of Public Prosecutions (WA) v Free, on the one hand, and Allanson J and Quinlan CJ in The State of Western Australia v PAS and The State of Western Australia v Nelson. I also do not consider that the approach taken by the Chief Justice and Allanson J is inconsistent with the observations made by Callinan and Heydon JJ in Fardon.

229 As McKechnie J observed, it is probably not helpful to characterise the requirement imposed by s 8 of the DSO Act and s 46 of the HRSO Act in terms of either a high or low threshold. The court is required to determine whether it is satisfied about the matter stated in s 46(1) on a proper construction of the statutory wording. The expression 'reasonable grounds for believing' is used in a variety of legal contexts and has a well understood meaning – an inclination of mind towards assenting to, rather than rejecting, a proposition. The word 'might' means a possibility. The Chief Justice's reference to a 'low threshold' is to be understood in the context of a comparison made with a finding under s 48 that an offender is a high risk serious offender. The reference by Callinan and Heydon JJ to a 'formidable threshold' is likewise to be understood in the context of their Honours' observations about the operation and validity of the DPSO Act.

Are there reasonable grounds for believing?

230 Section 46(1) requires the court to consider the matters stated in s 7(3) of the HRSO Act as they govern the determination of whether an offender is a high risk serious offender. The court is required to assess the evidence adduced in the preliminary hearing by reference to the s 7(3) matters to decide whether it is satisfied there are reasonable grounds for believing that an offender might be found to a high risk serious offender.

231 Independently of the s 7(3) matters, it is possible a court might not be satisfied for the purpose of s 46(1) by inadequacies or defects in the evidence presented in the preliminary hearing. I was satisfied in this instance that the evidence contained in Mr Meertens' Affidavit, and in his supplementary affidavit, provided a proper basis on which to determine whether there were reasonable grounds for the required belief. There was nothing raised by the respondent, and nothing apparent on a review of the evidence, to suggest otherwise. The materials annexed to Mr Meertens' Affidavit, and his supplementary affidavit, present an internally consistent account of the respondent's history of offending, his personal circumstances, the likely causes of his offending, his participation in treatment programmes and his conduct while in custody.

The respondent's antecedents and criminal history – s 7(3)(g)

232 The respondent's personal circumstances were summarised in the remarks made by Fiannaca J in sentencing the respondent for the November 2017 Offences. The respondent was charged with committing the November 2017 Offences with others, including his sister, Ms Garlett‑Exell. He and Ms Garlett-Exell were sentenced together by Fiannaca J.

233 As his Honour observed, both the respondent and Ms Garlett-Exell 'had a sad and difficult upbringing, lacking in proper emotional nurturing and positive role models'. In their early childhood, they were exposed to domestic violence inflicted by their father on their mother and to drug and alcohol abuse in the home by both parents.[125] The respondent was placed in foster care at the age of 7, apparently on his parents being sentenced to a term of imprisonment.

234 A report for the Perth Children's Court dated 19 March 2009 and prepared by an officer of the Department for Child Protection noted that the Department had a history with the respondent's parents 'going back to at least 1997 regarding spouse abuse'. The report further stated that the respondent's parents 'have a long history of ongoing and severe domestic violence, drug abuse and criminal behaviour'. The report also noted two allegations of 'substantiated' physical abuse against the respondent and one unsubstantiated allegation of abuse.[126]

235 The report provided a detailed history of the Department's involvement with the respondent. The history indicated that a protection order was made in respect of the respondent in 2002 and he was placed with his maternal grandparents. In 2004, he was relocated to a station near Fitzroy Crossing. There was a period towards the end of 2006 in which his whereabouts was unknown to the Department but he was charged with offences in December 2006 and subsequently detained at the Banksia Hill Detention Centre. That corresponds with his first recorded convictions in the Children's Court in April 2007.

236 It appears that the respondent was expelled from school at about the age of 10 years; at about the age of 12 he was living on the streets and already had a problem with alcohol and drug abuse. The respondent's criminal history shows that he was convicted of numerous offences, including aggravated burglaries and aggravated robberies between 2007 and 2012. He was sentenced to several periods of juvenile detention. In February 2013, he was sentenced to a total effective sentence of 3 years' imprisonment for numerous offences including aggravated robbery (three offences); aggravated burglary (three offences); stealing motor vehicles (three offences) and escaping lawful custody. On 12 December 2013 he was sentenced to a further 12 months' imprisonment cumulative on the sentences imposed in February 2013. He was released from prison on 5 September 2017 and made subject to a PSSO under pt 5A of the Sentence Administration Act. The November 2017 Offences were committed a little more than two months following his release.[127]

237 The respondent has a history of substance abuse and he tested positive for methamphetamine, amphetamine and cannabis following his release to the community in September 2017. He stated that he was injecting methamphetamine daily at the time that he committed the November 2017 Offences.

238 The respondent advised the author of a pre-sentence report dated 15 January 2013[128] that he smoked cannabis almost daily between the age of about 10 and 12 years; that he was introduced to amphetamines at the age of 9 years by an older half-brother; that he had consumed amphetamine intravenously since that time (but stated that he did not use the drug all the time) and had used heroin as a method of coping when coming down from the effects of amphetamine.

239 A parole assessment report dated 5 August 2015 noted that the respondent had incurred 15 prison charges, including charges relating to drug use.[129] A parole review report dated 11 July 2019 noted that the respondent had been found to have used or possessed an illicit drug while in custody in December 2018 and had charges relating to using or possessing illicit drugs referred to a court in March 2019.[130] However, there is no record of a conviction for those offences.

240 The State provided an aide memoire summarising the history of the serious offences for which the respondent had been convicted. That disclosed that the respondent has been convicted of four offences of aggravated armed robbery; one offence of armed robbery; three offences of aggravated robbery and one offence of aggravated armed assault with intent to rob. Save for the November 2017 Offences, the offences were committed while the respondent was a juvenile.

241 It appears from the reports annexed to Mr Meerten's Affidavit that the respondent has a poor record of behaviour while in custody. A PSSO report dated 20 July 2017 described the respondent's prison conduct record as 'appalling'.[131] According to the report, the respondent had been involved in fighting and assaults, threatening behaviour and drug charges. Further, as previously noted, the criminal damage offence for which the respondent was convicted in January 2021 occurred while he was in custody.

Assessments of the respondent – s 7(3)(b)

242 There were no psychiatric or psychological reports annexed to Mr Meertens' Affidavit. There was a reference in a parole assessment report dated 1 August 2019 to the respondent having 'had a counsellor as a juvenile who he trusts and engaged well with but is highly resistant of engaging with any other service or individual'.[132] However, there was no report annexed to Mr Meertens' Affidavit from a person who could have been the counsellor and I was unable to find references in other reports to the respondent having participated in one-on-one personal counselling. The respondent received a reasonably positive report from his participation in a treatment programme while in custody at Casuarina Prison. He was 21 at the time he participated in that programme.[133]

243 In a pre-sentence report dated 15 January 2013, the respondent was described as presenting with no insight into his offending, limited recollection of antecedence, poor demonstration of victim empathy and justification for his behaviour.[134] A Cognitive Skills Program completion report noted that the respondent trusted only a few family members who were close to him as a result of his past experiences. In a report dated 25 June 2019, the author noted that the respondent was currently on anti-depressant medication which the respondent reported helped to calm him. The author of the report commented that '[t]here may be some benefit in further exploration of underlying mental health issues which have led to his entrenched substance misuse'.[135]

244 It is, perhaps, surprising that there was not more evidence of the respondent having been referred to, at least, a psychologist while in detention or custody given his apparently abusive and emotionally impoverished childhood. It is possible a court may find that the respondent has personal counselling needs that are different to, and have not and will not be fully met, by participation in other custodial treatment programs. That finding might be made having regard to the respondent's personal history; the young age at which he commenced committing significant and serious offences such as aggravated burglary and armed robbery; the repetitive nature of his offending; his prison conduct, and references in reports to anger and emotional volatility.

Propensity and pattern of offending – s 7(3)(c) and (d)

245 The word 'propensity' is taken to have its ordinary meaning in the context of the criminal law. In DPP (WA) v GTR, Murray AJA stated that:

[Propensity] means that the offender has an inclination or tendency, a disposition to commit serious sexual offences generally, in a particular way, or upon a particular type of victim. The word refers to some identifiable characteristic of the offender, something in his makeup or personality which may or may not be of the quality of a diagnosable mental illness or personality disorder.[136]

246 Those remarks were made in the context of the DSO Act. They might more appropriately apply to an offender who has a history of serious sexual offending. In the case of an offender who has a history of committing offences of the kind committed by the respondent, the question of propensity will substantially overlap with the question whether of there is a pattern of offending behaviour by the offender.

247 The respondent has accumulated a significant history of serious offending. In addition, he has been convicted of numerous other offences which are not designated serious offences for the purpose of the HRSO Act but which could be found to be relevant to the pattern of the respondent's offending and his propensity to commit particular types of offences. Most relevantly, he has 22 convictions for burglary offences - the majority of his burglary convictions were for aggravated burglary and committing an offence in a dwelling. The respondent also has convictions for stealing and receiving, assault, drug possession, breach of bail and escaping lawful custody.

248 To the extent that propensity for the purpose of s 7(3) comprises an inclination to commit a particular type of offence, it is possible a court may find that the respondent's criminal history discloses a propensity to steal, sometimes armed and in the company of others. His offending, including by committing serious offences, is persistent. He was aged 12 years when he committed his first armed robbery. He was convicted on 30 April 2007 of, among other things, two aggravated armed robbery offences committed on 4 December 2006, an armed robbery offence committed the following day, an aggravated robbery offence committed on 13 December 2006 and an aggravated armed assault with intent to rob committed on 20 December 2006. The respondent was subsequently convicted of armed robbery or aggravated robbery offences committed on 11 and 12 January 2009, 10 September 2009, 24 January 2012, 24 February 2012 (two offences committed on that day) and 19 November 2017. As previously noted, the last offence was committed approximately two months after the respondent had been released from a term of imprisonment of four years.

249 It also possible that a court may find that there is a pattern to the respondent's offending – repeated robberies, sometimes armed and mostly in company. The statements of material facts annexed to Mr Meertens' Affidavit for the armed and aggravated robbery offences and the sentencing remarks of Fiannaca J raise the possibility of a finding that the robbery offences were largely unplanned, reasonably spontaneous, involved vulnerable victims and, on occasions, the use of physical force.

The respondent's participation in treatment programmes – 7(e) and (f)

250 The respondent commenced the 'Think First' programme at Casuarina Prison in August 2013. He was 19 years of age at the time. The objective of the program is to help individuals acquire, develop and apply a series of social problem-solving and associated skills to assist in managing a participant's personal difficulties and to avoid future offending. The respondent was removed from the programme in about September 2013 after being involved in an incident at the prison and after missing three sessions. He completed 12 out of the 30 scheduled sessions. It was stated in the programme non-completion report that the respondent appeared to be progressing well with his self-development in the programme. He was attentive and displayed an understanding of the causes of his offending.[137]

251 The respondent was offered a further opportunity to participate in the 'Think First' programme in September 2014. He declined the offer stating that he would not be attempting to obtain parole.[138] A parole assessment report dated 5 August 2015 noted that the respondent had been unable to participate in programmes for addiction offending (Pathways Programme) and violent offending (Intensive Programme) due to 'active alerts'. The assessment report noted that the respondent had nine active prison alerts at that time, including for returning positive results on three urinalysis tests.[139]

252 The respondent completed the 'Think First' programme in September/October 2015. He received a generally positive completion report noting that he was an enthusiastic group member who was always keen to volunteer information about himself and be involved in group discussions. He had made gains in the ability to think and develop alternatives, awareness of consequences and impulsivity. He stated that after completing the programme he was more aware of his victims' feelings.[140]

253 In October 2016, the respondent waived participation in the 'Pathways Programme'. The waiver form noted he believed that participating in the programme would 'place more pressure on him' and that prison officers in his unit 'would try to get him to "muck up"'.[141]

254 It is apparent that the respondent's abuse of substances, particularly methamphetamine, is a significant contributing factor to his offending. The respondent has admitted in the past his problems with illicit substances and that he has been under the influence of methamphetamine and alcohol while committing offences.

255 The sentencing remarks by Fiannaca J stated that the respondent had advised he had received drug and alcohol counselling while in custody. There is no record of that having occurred in the reports annexed to Mr Meertens' Affidavit. As noted earlier, the reports indicate that the respondent was unable to participate in an addictions offending programme. In any event, Fiannaca J noted that the respondent tested positive for methamphetamine, amphetamine and cannabis following his release in September 2017 on the PSSO.

256 His Honour further noted a pre-sentence report in which the author stated that she believed the respondent suffered from mental health issues which have led to his entrenched substance misuse. It was suggested that the respondent would benefit from intensive substance abuse counselling and psychological counselling to develop the skills necessary to refuse peer pressure to use drugs.

257 It is possible that a court may find that the respondent has unmet treatment needs for substance abuse; that he requires personal counselling for emotional issues; that he may benefit from other psychological and treatment problems to address decision-making, impulsivity, anger management and the development of work and social skills; and that the factors contributing to his history of offending have not been adequately addressed in the past.

Risk and community protection – s 7(h) and (i)

258 Having regard to the respondent's history of offending, the pattern of his offending, his substance abuse problems and his apparent on-going treatment and counselling needs, it is possible a court may find that (a) there is a risk that the respondent would commit a serious offence and (b) there is a need to protect the community from that risk.

Conclusion

259 I am satisfied that there are reasonable grounds for believing that the court might, in accordance with s 7, find that the respondent is a high risk serious offender having regard to the matters referred to above.

Interim detention order or supervision order?

260 Section 46(2)(c)(i) provides that the court may order an offender to be detained in custody until an application for a restriction order has been finally decided. The order may be made in circumstances where the court is satisfied of the matters stated in s 46(1) and the offender is in custody but might otherwise be released from custody before the restriction order application is finally decided. The court is not compelled to make an interim detention order but can release an offender on an interim supervision order under s 58 of the HRSO Act.

261 The respondent submitted than an interim supervision order should be made. It was contended that the State's case was weak; the affidavit of Mr Minnock established that the respondent could reside with his partner; he had a three year old daughter; he would be subject to a PSSO on release and he had spent long periods in custody as a juvenile and adult.

262 The State opposed an interim supervision order being made. The State relied principally on the respondent's history of offending and his problems with substance abuse. The State contended that there was a risk of re-offending despite any supervision conditions that might be imposed, if the respondent was released to the community

263 The discretion whether to make an interim detention order or a supervision order must be exercised judicially by reference to the objects and provisions of the HRSO Act. It is necessary to keep in mind that an interim detention order has the effect of detaining the respondent in custody after completion of his sentence. Nevertheless, I concluded that an interim detention order should be made.

264 It is not appropriate to provide detailed reasons for the exercise of that discretion or to comment on whether the State's case against the respondent is, or is not, weak lest any observation I make is misinterpreted given that there is to be a final hearing of the Application pursuant to s 48. It is appropriate to only observe that I have exercised the discretion after considering all of the evidence that was adduced in the preliminary hearing and the matters referred to in these reasons.

ANNEXURE 1

IN THE SUPREME COURT OF WESTERN AUSTRALIA

SO 8 of 2021

IN THE MATTER of Sections 35, 46 and 48 of the High Risk Serious Offenders Act 2020

B E T W E E N

THE STATE OF WESTERN AUSTRALIA

Applicant

and

PETER ROBERT GARLETT

Respondent

_________________________________________________________________

RESPONDENT'S STATEMENT OF PROPOSED CONSTITUTIONAL FACTS

_________________________________________________________________

Date of Document: 13 October 2021

Filed on behalf of: Respondent

Date of Filing: 13 October 2021

Prepared by:

Roe Legal Services Tel: +08 9325 4396
Level 10 Fax: +08 6270 4464
16 St Georges Terrace Ref: 11905
PERTH WA 6000 Paul Sheiner

___________________________________________

1. Aboriginal people comprise approximately 40% of the adult prison population in Western Australia.[142]

2. Aboriginal people comprise at least 40% of the prisoners currently serving a custody or sentence for a serious offence as defined in the HRSO Act.[143]

3. Aboriginal prisoners are more likely than non-Aboriginal prisoners to;

(a) have a prior history of incarceration and juvenile detention;

(b) suffer from poor mental health;

(d) use illicit drugs;

(e) have experienced family violence; and/or

(f) experience greater levels of socio-economic disadvantage.[144]

4. Aboriginal prisoners currently serving a custody or sentence for a serious offence as defined in the HRSO Act are more likely than non-Aboriginal prisoners to;

(a) have a prior history of incarceration and juvenile detention;

(b) suffer from poor mental health;

(d) use illicit drugs;

(e) have experienced family violence; and/or

(f) experience greater levels of socio-economic disadvantage.

ROE LEGAL SERVICES

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

IC
Associate to the Honourable Justice Corboy

10 NOVEMBER 2021

[1] The State of Western Australia v Garlett [2019] WASCSR 74.
[2] Annexures 'B' to 'D' to the supplementary affidavit of Brent Douglas Meertens affirmed 23 September 2021.
[3] Annexure 'B' to the affidavit of Brent Douglas Meertens affirmed 3 August 2021 (Mr Meertens' Affidavit).
[4] Attachment 'SB1'to the affidavit of Shenaya Beverley Barnard affirmed 3 September 2021.

[5] Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs [1992] HCA 64; (1992) 176 CLR 1. The plurality in Minister for Home Affairs v Benbrika [2021] HCA 4; (2021) 95 ALJR 166 termed the relevant principle as 'the Lim principle' and the underlying proposition as 'the Lim general proposition' [18] (Kiefel CJ, Bell, Keane and Steward JJ).

[6] Kable v Director of Public Prosecutions for the State of New South Wales [1996] HCA 24; (1996) 189 CLR 51.

[7] Respondent's Submissions on Constitutional Validity of the HRSO Act dated 22 September 2021 (the Respondent's Submissions on Constitutional Validity), pars 1.1 and 1.2.
[8] ts 85.
[9] ts 85.
[10] ts 86.
[11] The applicant submitted that the respondent's offending history indicated that he had a propensity to commit armed robberies. The applicant further submitted that the pattern of the respondent's offending involved recurrent stealing using violence and committing violent offences in the course of the theft/robbery: Applicant's Outline of Submissions for Preliminary Hearing dated 17 September 2021 (the Applicant's Preliminary Hearing Submissions), pars 32 and 36.

[12] Section 3 of the Act.
[13] Kable, 114 -115 (McHugh J).
[14] Kable, 103 (Gaudron J).
[15] Fardon v Attorney-General for the State of Queensland [2004] HCA 46; (2004) 223 CLR 575 [23].
[16] International Finance Trust Company Ltd v New South Wales Crime Commission [2009] HCA 49; (2009) 240 CLR 319.
[17] Kable, 106 and 134.
[18] Professor Appleby observed that the 'inherent uncertainty of the principle, together with its almost constant reformulation and re-explanation had led to much confusion' (Gabrielle Appleby, The High Court and Kable; A Study in Federalism and Rights Protection [2014] MonashULawRw 27; (2014) 40(3) Monash University Law Review 673.
[19] Fardon v Attorney-General (Qld) [41] - [42].
[20] Fardon v Attorney-General (Qld) [101] (Gummow J); Kuczborski v The State of Queensland [2014] HCA 36; (2014) 254 CLR 51 [38] (French CJ), [102] (Hayne J) and [139] (Crennan, Kiefel, Gageler and Keane JJ).
[21] Vella v Commissioner of Police (NSW) [2019] HCA 38; (2019) 269 CLR 219 [55] (Bell, Keane, Nettle and Edelman JJ). The statement of the principle reproduces what was said by the plurality in Attorney‑General (NT) v Emmerson [2014] HCA 13; (2014) 253 CLR 393 [40].
[22] Attorney‑General (NT) v Emmerson [42].
[23] Fardon [19].
[24] Fardon [20].

[25] Fardon [34] (McHugh J).
[26] Fardon [220] (Callinan and Heydon JJ).

[27] Fardon [107] (Gummow J).
[28] Fardon [44] (McHugh J).
[29] The State of South Australia v Totani [2010] HCA 39; (2010) 242 CLR 1.
[30] Wainohu v The State of New South Wales [2011] HCA 24; (2011) 243 CLR 181.
[31] See the headnote to The State of South Australia v Totani, 2.
[32] North Australian Aboriginal Justice Agency Ltd v Northern Territory of Australia [2015] HCA 41; (2015) 256 CLR 569.
[33] North Australian Aboriginal Justice Agency Ltd v Northern Territory of Australia [39].
[34] Kuczborski v The State of Queensland [38] (French CJ), [106] (Hayne J).
[35] Condon v Pompano Pty Ltd [124] (Hayne, Crennan, Kiefel and Bell JJ).

[36] Kuczborski [106] (Hayne J). See also, Condon v Pompano Pty Ltd in which the plurality stated that 'the critical notions of repugnancy and incompatibility are insusceptible of further definition in terms which necessarily dictated future outcomes' [124].

[37] Forge v Australian Securities and Investments Commission [2006] HCA 44; (2006) 228 CLR 45.
[38] Condon v Pompano Pty Ltd [68].
[39] Condon v Pompano Pty Ltd [67].
[40] Condon v Pompano Pty Ltd [125].
[41] Lim v Minister for Immigration, 26 - 27 (Brennan, Deane and Dawson JJ).
[42] Lim v The Minister for Immigration, 27 (Brennan Deane and Dawson JJ).
[43] Lim v The Minister for Immigration, 28.
[44] Fardon [80].
[45] Minister for Home Affairs v Benbrika [32].
[46] Minister for Home Affairs v Benbrika [34].
[47] Section 105.1 of the Criminal Code (Cth).
[48] Minister for Home Affairs v Benbrika [36].
[49] See, for example, H A Bachrach Pty Ltd v State of Queensland [1998] HCA 54; (1998) 195 CLR 547 and Duncan v Independent Commission Against Corruption [2015] HCA 32; (2015) 256 CLR 83.

[50]Respondent's Submissions on Constitutional Validity, par 42.

[51]Respondent's Submissions on Constitutional Validity, par 45.

[52] A majority of the Court of Appeal held in Director Public Prosecutions (WA) v Williams [2007] WASCA 206; (2007) 35 WAR 297 that the word 'may' in s 17(1) meant 'must' (the section was subsequently amended to substitute the word 'must' for 'may'). That construction of the section was affirmed by the Court of Appeal in Director of Public Prosecutions (WA) v GTR [2008] WASCA 187; (2008) 38 WAR 307 and Woods v Director of Public Prosecutions for the State of Western Australia [2008] WASCA 188; (2008) 38 WAR 217. The effect of those decisions on questions of Kable repugnancy or incompatibility are considered later when the HRSO Act is compared with the DSO Act.
[53] DPP (WA) v GTR [97]. In The State of Western Australia v West [2013] WASC 14, I accepted what was said by Murray AJA (at [52(g)]).
[54] The State of Western Australia v Corbett [No 5] [2017] WASC 115 [8] – [13].
[55] Fardon, Kuczborski v The State of Queensland, Condon v Pompano Pty Ltd, Minister for Home Affairs v Benbrika and Vella v Commissioner of Police (NSW). See also Thomas v Mowbray [2007] HCA 33; (2007) 233 CLR 307.
[56] Vella v Commissioner of Police (NSW) [49].
[57] Vella v Commissioner of Police (NSW) [57].
[58] Vella v Commissioner of Police (NSW) [66].

[59] Respondent's Submissions on Constitutional Validity, par 56.

[60] Respondent's Submissions on Constitutional Validity, par 57.

[61] Respondent's Submissions on Constitutional Validity, par 58.2(2).

[62] Attorney-General for the State of Queensland v Phineasa [2012] QCA 184; (2012) 221 A Crim R 200.
[63] Tilbrook v Attorney-General for the State of Queensland [2012] QCA 279.
[64] Phineasa [38] – [39]. In Phineasa, White JA and Philippides J agreed with Muir JA. His Honour repeated his observations in Tilbrook. In that case, Gotterson JA and Atkinson J agreed with his Honour's reasons.
[65] Respondent's Submissions on Constitutional Validity, par 56.
[66] Assistant Commissioner Condon v Pompano Pty Ltd [2013] HCA 7; (2013) 252 CLR 38.
[67] Condon v Pompano Pty Ltd [23].
[68] Condon v Pompano Pty Ltd [24]. See also the observations of the plurality in Vella v Commissioner of Police (NSW) at [86] and following.
[69] Director of Public Prosecutions (WA) v Williams [2007] WASCA 206; (2007) 35 WAR 297.
[70] Director of Public Prosecutions (WA) v Williams [63] - [65].
[71] DPP (WA) v GTR [26].
[72] Woods v Director of Public Prosecutions (WA) [2008] WASCA 188; (2008) 38 WAR 217 [86].

[73] Italiano v The State of Western Australia [2009] WASCA 116 [4] and [46].

[74] Director of Public Prosecutions (WA) v Williams [68].

[75] Vella v Commissioner of Police (NSW) [23].
[76] Vella v Commissioner of Police (NSW) [51].

[77] Director of Public Prosecutions (WA) v DAL [No 2] [2016] WASC 212 [33]. That statement was adopted with approval by Quinlan CJ in The State of Western Australia v Rao [2019] WASC 93
[78] See, for example, The State of Western Australia v Latimer [2006] WASC 235 in which Murray J stated at [24]: 'the scheme of the Act requires the Court to do no more than its necessary for the continuing control, care or treatment of the offender to achieve an adequate degree of protection for the community' and again at [49], '[the court] should choose the order that is least invasive or destructive of the respondent's right to be at liberty while, at the same time, ensuring an adequate degree of protection of the community'. His Honour's comments have been cited with approval in numerous subsequent decisions on the DSO Act and the HRSO Act.

[79] Director of Public Prosecutions (WA) v Decke [2009] WASC 312 [14].
[80] Some members of the High Court in Fardon assumed that under the DPSO Act the court could decide not to make a continuing detention or supervision order even if the offender was found to be a serious danger to the community. As has been explained, the Court of Appeal interpreted 'may' in s 17 of the DSO Act to mean 'must'. That interpretation was picked up by Parliament in s 48 of the HRSO Act. In my view, the possibility that a continuing detention or supervision order might not be made under the DPSO Act notwithstanding a finding that the offender was a serious danger to the community was not an essential step in the finding in Fardon that the DPSO Act was valid.

[81] Respondent's Submissions on Constitutional Validity, pars 59 – 72.
[82] Human Rights Committee, Communication No 1629/2007: Views of the Human Rights Committee under article 5, paragraph 4, of the Optional Protocol to the International Covenant on Civil and Political Rights, Ninety-eighth session, UN Doc CCPR/C/98D (18 March 2010).
[83] Respondent's Submissions on Constitutional Validity, par 65.

[84] Vella v Commissioner of Police (NSW) [80] (Bell, Keane, Nettle & Edelman JJ).
[85] Nicholas v The Queen [1998] HCA 9; (1988) 193 CLR 173 [37].
[86] Fardon v Attorney-General (Qld) [23].

[87] Ebber v Human Rights & Equal Opportunity Commission (1995) 129 ALR 455.
[88] Ebber v Human Rights & Equal Opportunity Commission, 480 - 481.
[89] Australian Medical Council v Wilson [1996] FCA 1618; (1996) 68 FCR 46.

[90] Attorney General's submissions, par 90.

[91] Respondent's Submissions on Constitutional Validity, pars 78 - 79, citing Gerhardy v Brown [1985] HCA 11; (1985) 159 CLR 70 at 92 - 93 (Mason J).

[92] Respondent's Submissions on Constitutional Validity, par 85.

[93] Respondent's Submissions on Constitutional Validity, par 95.

[94] Attorney General's Submissions, pars 71 and following.

[95] Attorney General's Submissions, par 86.

[96] Respondent's Submissions on Constitutional Validity, par 90.
[97] Dr Shepherd's Affidavit, pars 6, 14 and 15.
[98] Gerhardy v Brown, 92 – 93.
[99] It should also be noted that s 9(1) does not create a criminal offence: The State of Western Australia v Ward [2002] HCA 28; (2002) 213 CLR 1 [102] (Glesson CJ, Gaudron, Gummow and Hayne JJ).
[100] Gerhardy v Brown, 98 – 99.
[101] The State of Western Australia v Ward [107].
[102] Maloney v The Queen [2013] HCA 28; (2013) 257 CLR 168 [303].
[103] And see, Mabo v The State of Queensland [No1] [1988] HCA 69; (1988) 166 CLR 186, 230 (Deane J) and Maloney v The Queen [148] (Kiefel J).
[104] The State of Western Australia v Ward [115].
[105] Attorney General's Submissions, par 90.
[106] Respondent's Submissions on Constitutional Validity, par 95.4.
[107] Australian Medical Council v Wilson, [1996] FCA 1618; (1996) 68 FCR 46, 60.
[108] ts, 112.
[109] Maloney v The Queen [10].
[110] Fardon v Attorney-General (Qld) [220].
[111] Director of Public Prosecutions (WA) v Free [2010] WASC 255.
[112] Director of Public Prosecutions (WA) v Free [9].
[113] Director of Public Prosecutions (WA) v Free [10] - [11].
[114] George v Rockett [1990] HCA 26; (1990) 170 CLR 104.
[115] Director of Public Prosecutions (WA) v Free [13].
[116] The State of Western Australia v PAS [2020] WASC 405.
[117] The State of Western Australia v Nelson [2021] WASC 215. The Chief Justice has adopted this approach in other applications and it has been picked up and applied by other judges determining preliminary hearings under the HRSO Act.
[118] The State of Western Australia v PAS [21].
[119] The State of Western Australia v Nelson [10]. It should be noted that the Chief Justice had consistently adopted that interpretation of the requirement imposed by s 46 in various applications that he has considered for orders under that section.
[120] Respondent's Outline of Responsive Submissions for Preliminary Hearing on 13 October 2021 (Respondent's s 46 Submissions), par 5.
[121] Australian Hospital Care Pty Ltd v Swinbank [1999] QCA 247.
[122] R v Jeffrey [1967] VicRp 51; [1967] VR 467.
[123] Australian Hospital Care [20].
[124] R v Jeffrey, 478.
[125] The State of Western Australia v Garlett [46].
[126] Annexure 'AB' to Mr Meertens' Affidavit.
[127] The respondent's criminal record is annexure 'A' to Mr Meertens' Affidavit.
[128] Annexure 'AC' to Mr Meertens' Affidavit.
[129] Annexure 'AF' to Mr Meertens' Affidavit.
[130] Annexure 'AL' to Mr Meertens' Affidavit.
[131] Annexure 'AJ' to Mr Meertens' Affidavit.
[132]Annexure 'AM' to Mr Meertens' Affidavit, p 314.
[133] Cognitive Skills Program, annexure 'AG' to Mr Meertens' Affidavit.
[134] Annexure 'AC' to Mr Meertens' Affidavit.
[135] Annexure 'AK' to Mr Meertens' Affidavit.
[136] DPP (WA) v GTR [178].
[137] Annexure 'AD' to Mr Meertens' Affidavit.
[138] Annexure 'AE' to Mr Meertens' Affidavit.
[139] Annexure 'AF' to Mr Meertens' Affidavit.
[140] Annexure 'AG' to Mr Meertens' Affidavit.
[141] Annexure 'AI' to Mr Meertens' Affidavit.

[142]. In 20/21 2662 of 6662 prisoners in WA were Aboriginal or Torres Strait Islander people: Affidavit of Mark Gregson sworn 6 October 2021 MDG 3 at 13.

[143] Refer Respondent Submissions on Constitutional Issues at paragraph [88].

[144] Refer Table of Evidence; Respondent Submissions on Constitutional Issue at [90]-[93] and cases cited.

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