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Western Australian Student Law Review |
ELENA LUCASSEN[*]
NON-PUNITIVE INCARCERATION—PREVENTIVE JUSTICE—MINISTER FOR HOME AFFAIRS V BENBRIKA (2021) 272 CLR 68—COMMONWEALTH CONSTITUTION—CHAPTER III COURTS—SEPARATION OF POWERS—INSTITUTIONAL INTEGRITY—IMPLICATIONS ON HUMAN LIBERTY
ABSTRACT
‘History, and not only ancient history, shows that in countries where democratic institutions have been unconstitutionally superseded, it has been done not seldom by those holding the executive power’.[1] This article explores the development of jurisprudence around non-punitive incarceration, explaining the implications of the decision in the case of Minister for Home Affairs v Benbrika (2021) 272 CLR 68 (‘Benbrika’) on human liberty, the separation of powers doctrine, and the institutional integrity of Ch III courts. The article argues that the plurality decision in Benbrika has made it easier for the Commonwealth Parliament to characterise incarceration as non-punitive, which in turn may lead to an individual’s incarceration without a finding of guilt beyond reasonable doubt. The article also argues that the High Court should re-open the cases of Fardon v Attorney-General (Qld) [2004] HCA 46; (2004) 223 CLR 575, Thomas v Mowbray [2007] HCA 33; (2007) 233 CLR 307, and Benbrika for a careful examination of the reasonings, giving more attention to the implications posed by the decisions.
I INTRODUCTION
Since the early 2000s, Australia has seen a rapid growth in the use of preventive detention, especially in the application of anti-terrorism legislation,[2] and where sex offenders are deemed to pose an unacceptable risk of re-offending after release from prison.[3] In determining the constitutional validity of such laws, the High Court of Australia (‘High Court’) is progressively moving away from the original notion of punitive detention based on a finding of criminal guilt. It appears that the High Court is moving towards the new characterisation of incarceration as non-punitive,[4] provided the laws have a clear non-punitive object of protecting the community from harm, and do not breach Ch III of the Commonwealth Constitution;[5] that is, the laws do not ‘compromise the institutional integrity and independence of any court involved in the process’.[6]
This article will argue that the plurality decision in Minister for Home Affairs v Benbrika (‘Benbrika’)[7] has made it easier for the Commonwealth Parliament to characterise incarceration as non-punitive, which in turn may lead to an individual’s incarceration without a finding of guilt beyond reasonable doubt. Initially, Part II of this article will explore the development of jurisprudence around non-punitive incarceration. It will then focus on the decision in Benbrika, explaining how the plurality reached the decision. Finally, Part III will explain the implications of Benbrika on human liberty, the separation of powers doctrine, and the institutional integrity of Ch III courts. The article will also argue that due to the significant implications posed, the High Court should re-open the cases of Fardon v Attorney-General (Qld) (‘Fardon’),[8] Thomas v Mowbray (‘Thomas’),[9] and Benbrika[10] for a careful examination of the Court’s reasoning in those cases and to give more attention to the implications posed.
II THE DEVELOPMENT OF THE CHARACTER OF INCARCERATION: FROM PUNITIVE TO NON-PUNITIVE
A Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs: A Starting Point
To explain how the plurality of the High Court in Benbrika[11] arrived at the conclusion that the imposition of non‑punitive incarceration was within the power of the Commonwealth, it is necessary to first explore the development of recent jurisprudence, starting with the case of Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (‘Lim’).[12] The case of Lim concerned the constitutional validity of certain sections of the Migration Act 1958 (Cth), which authorised the compulsory detention in custody of certain non-citizens. The majority of the High Court held that ‘putting to one side the exceptional cases ... 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’.[13] This has been termed the ‘Lim principle’.[14] The High Court further clarified that ‘[d]etention in custody in circumstances not involving some breach of the criminal law and not coming within well-accepted categories is offensive to ordinary notions of what is involved in a just society’.[15] Therefore, any involuntary detention (even short of incarceration) was originally considered punitive.
Well-accepted categories of exceptions to the Lim principle[16] include where an accused person is detained on remand pending trial,[17] and detention in cases of mental illness and infectious disease.[18] Both categories could ‘legitimately be seen as non-punitive in character and as not necessarily involving the exercise of judicial power’.[19] As observed by Gaudron J in Kruger v Commonwealth,[20] the exceptions to the Lim principle involving the involuntary detention of those suffering from mental illness or infectious disease share a purpose of protecting the community from harm.[21] However, the exceptions are ‘neither clear nor within precise and confined categories’.[22] Indeed, by extending the exceptions to the administrative detention of a non-citizen that was reasonably necessary to achieve a non-punitive purpose (a grant of an entry permit or removal from the country), the High Court in Lim effectively allowed courts to extend the list of exceptions further in future.[23] However, the High Court cautioned that for detention to have non-punitive character, the legislation providing for detention should have a justified non-punitive object.[24]
The Lim principle has been referred to by many courts when considering the validity of laws conferring judicial power to incarcerate an individual for non-punitive purposes, including in Kable v Director of Public Prosecutions (NSW) (‘Kable’),[25] Fardon,[26] Thomas,[27] and Benbrika.[28] These cases will be discussed below.
B Kable: An Unsuccessful First Attempt
In Kable,[29] the High Court was concerned with the Community Protection Act 1994 (NSW), which vested the Supreme Court of New South Wales with powers to order re-incarceration of a dangerous criminal offender—in this case, Mr Kable, who had already served his sentence of imprisonment. One of the issues for the High Court was whether the legislation was invalid because it authorised the incarceration of a person ‘not for what he has done but for what the [government and the Parliament] fear that he might do’.[30] Even though the legislation had a legitimate non-punitive purpose of protecting the community, the majority held that non‑punitive incarceration without a prior finding of criminal guilt could not be upheld.[31] The High Court further emphasised that such an authority to do so was ‘non-judicial in nature ... and repugnant to the judicial process in a fundamental degree’.[32]
The second issue was whether valid legislation could be ad hominiem in nature; that is, tailored to a particular individual as opposed to a class of persons. The High Court answered in the negative.[33] As will be explained below, it is this second finding that other courts have subsequently decided to take into consideration, while completely overlooking—and, in some instances, contradicting—the finding that incarceration without a prior finding of criminal guilt is repugnant to the judicial process.
C Controversial Fardon
In Fardon,[34] the High Court considered the validity of the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) (‘Dangerous Prisoners Act’), which empowered the Supreme Court of Queensland to make interim detention orders and continuing detention orders for serious sexual offenders after the expiry of their sentence of incarceration. The Dangerous Prisoners Act considered in Fardon[35] differed from the legislation that was found to be invalid in Kable[36] in that it was not ad hominiem in nature; the Dangerous Prisoners Act authorised the executive to single out not a particular individual, but a class of persons who could be re‑incarcerated without a fresh finding of criminal guilt.[37] The majority in Fardon[38] relied primarily on this difference and held that the judicial power was valid, and that interim detention orders and continuing detention orders were non-punitive.[39] The High Court did not consider the first finding in Kable,[40] focusing on procedural features of the Dangerous Prisoners Act instead, which has sparked criticism by academics.[41] In doing so, the High Court effectively overruled Kable[42] without any express acknowledgement or reasoning for departing from the decision.[43] It is worth noting that two members of the majority in Fardon, McHugh and Gummow JJ, who came to the opposite conclusion in Kable,[44] provided no explanation as to the change in their views.
The majority in Fardon held that incarceration would not have a punitive nature if it was ordered for non-punitive purposes.[45] The Dangerous Prisoners Act provided for ‘the continued detention in custody or supervised release of a particular class of prisoner to ensure adequate protection of the community’.[46] Unlike in Kable,[47] the High Court had to be satisfied of the ‘unacceptable risk’ standard ‘to a high degree of probability’.[48] The higher onus of proof that a prisoner remains a danger to the community was held to be sufficient for the Dangerous Prisoners Act to be regarded as protective and not punitive.[49]
Gleeson CJ further explained:
If it is lawful and appropriate for a judge to make an assessment of danger to the community at the time of sentencing ... it may be thought curious that it is inappropriate for a judge to make such an assessment at or near the time of imminent release, when the danger might be assessed more accurately.[50]
Thus, the proper characterisation of the Dangerous Prisoners Act was found to be protective rather than punitive.
D Even More Controversial Thomas
In Thomas,[51] the High Court had to determine whether a scheme concerning the making of control orders against persons suspected of terrorist activities, as inserted into the Criminal Code (Cth)[52] by the Anti-Terrorism Act [No 2] 2005 (Cth), was valid. Unlike the preventive detention orders in Kable[53] or Fardon,[54] control orders stopped short of incarcerating an offender in a state facility and restricted where a person could be at specified times. The High Court drew attention to this fact, stating that ‘[d]etention in the custody of the State differs significantly in degree and quality from what may be entailed by observance of an interim control order’.[55] Still, it seems clear that an order imposing a restriction on a person to be at specified places at specified times could amount to punitive detention in all but name.[56]
Additionally, the legislation did not impose a requirement for the existence of a prior criminal offence. Indeed, the appellant in Thomas was found to be not guilty of the offence of intentionally providing resources to a terrorist organisation and was released from custody.[57] To address this point, the High Court said that ‘the jurisdiction to bind over did not depend on a conviction and it could be exercised in respect of a risk or threat of criminal conduct against the public at large’.[58]
The High Court adopted the observations of McHugh J in Fardon[59] (but not in Kable)[60] and found that the power to issue control orders could be validly conferred on a federal court because it was judicial power. Chief Justice Gleeson held:
The power to restrict or interfere with a person’s liberty on the basis of what that person might do in the future, rather than on the basis of a judicial determination of what the person has done, which involves interfering with legal rights, and creating new legal obligations, rather than resolving a dispute about existing rights and obligations, is in truth a power that has been, and is, exercised by courts in a variety of circumstances.[61]
Reaching this conclusion, Gleeson CJ drew analogies with reference to historical practices such as bail and apprehended violence orders. However, as his Honour acknowledged, these ‘analogies are not exact’.[62] Justice Kirby, in his Honour’s dissenting judgment, performed a detailed examination of these analogies and explained that such analogies should not be relied upon because they ‘are distinguishable and therefore fail as analogies’.[63] Justice Kirby further added that deprivation of liberty by the judiciary based on an assumption by an official of some future act, not necessarily one to be committed by a person subject to a control order, should not be validly upheld because doing so would deny a person their basic legal rights of a fair trial and would seriously undermine public confidence in federal courts.[64]
E Benbrika as a Consequence of Fardon and Thomas
The recent case that followed Lim,[65] Fardon,[66] and Thomas[67] on the issue of preventive incarceration orders is Benbrika.[68] In Benbrika, the High Court had to determine the validity of the power to order persons who have been convicted of a terrorist offence to be re‑incarcerated for a further period after the expiration of their sentence of imprisonment, conferred by s 105A.7 of the Criminal Code (Cth).[69]
1 Exercise of the Federal Judicial Power
The plurality began their reasoning by stating that the scheme in question was comparable to the one in Fardon.[70] There is a problem with this comparison: as highlighted by Gordon J in her Honour’s dissenting judgment, while the two schemes are drafted in similar terms, they differ significantly in the legal and practical operation due to the difference in the kinds and range of conduct which may constitute the identified offences.[71]
It was further suggested by the plurality that the legislation in Fardon[72] had been tested against the Kable[73] principles and had survived,[74] although this might not be the case, as explained above in Part IIC. Additionally, Gordon J noted an additional problem with this reasoning: the Kable[75] principle asked whether a task given to a state court impaired the institutional integrity of that state court, but in Benbrika[76], it was a federal court that was assigned the task.[77] Next, the plurality made brief reference to Thomas[78] as authority for the validity of the power of Ch III courts to issue control orders. This reference established that issuing continuing detention orders is within the jurisdiction of Ch III courts.[79]
These findings of the plurality contain limited reasons as to the constitutional underpinnings of the federal judicial power to issue continuing incarceration orders; however, they create significant implications for the separation of powers doctrine and the institutional integrity of Ch III courts, as will be explained in Part IIIC. Finally, the plurality established that s 105A.7 could be seen as a valid exception to the Lim[80] principle, stating:
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.[81]
2 Non-Punitive Character of Incarceration
Chief Justice Kiefel explained in Benbrika[82] that if the legislation had a clear object to protect the community from an unacceptable risk of harm, then incarceration pursuant to a continuing detention order could be seen as non-punitive:[83]
Detention in prison is prima facie penal or punitive; however, that characterisation may be displaced by an evident non-punitive purpose.
This Court has consistently held, and most recently in Fardon, that detention that has as its purpose the protection of the community is not punishment. As Gummow J explained, the making of a continuing detention order under the Qld Act did not punish Fardon twice, nor did it increase his punishment for the offences of which he had been convicted.[84]
In affirming the non-punitive character of incarceration, the plurality further stated:
The object of Div 105A ... is plainly directed to the protection of the community from harm. The fact that the Parliament has chosen not to pursue this object by a more extreme measure that is not conditioned on the subject being a ‘terrorist offender’ does not gainsay that the object of the continuing detention order is community protection and not punishment. Nor does the fact that the detention for which Div 105A provides is in a prison detract from the conclusion that its purpose is protective and not punitive.[85]
It will be argued in Part IIIA that these reasons and findings of the plurality, paired with the manner in which the plurality chose to exercise judicial power, has made it easier for the Commonwealth Parliament to characterise incarceration as non-punitive, which in turn may lead to an individual’s incarceration without a finding of guilt beyond reasonable doubt.
3 Non-Punitive Purpose of Legislation
As the plurality’s reasoning in Benbrika primarily focused on the legitimate non-punitive purpose of legislation, as opposed to the nature of federal judicial power, it is important to examine how the High Court has assessed the meaning of a non-punitive protective purpose. In Benbrika, the object of the relevant legislation stated: ‘to ensure the safety and protection of the community by providing for the continuing detention of terrorist offenders who pose an unacceptable risk of committing serious Part 5.3 offences if released into the community’.[86] Justice Gageler cautioned that the legitimacy of the objective is to be determined by examination of ‘the compatibility of what the impugned law is designed to achieve in fact with values protected by the constitutional principle to be applied’.[87]
In Lim, the High Court said: ‘if imprisonment goes beyond what is reasonably necessary to achieve the non-punitive object, it will be regarded as punitive in character’.[88] Explanations of what might be seen as ‘reasonably necessary’ have since been offered by the plurality in Benbrika: ‘demonstration that legislation is non-punitive is essential, but it does not suffice. As a matter of substance, the power must have as its object the protection of the community from harm’.[89] Justice Gageler agreed that the concern should be with substance and not mere form.[90] His Honour further suggested that prevention of harm which is grave and specific would constitute a legitimate non-punitive objective, while merely the prevention of a criminal offence would not.[91] Thus, the High Court should be satisfied that ‘the offender would engage in conduct the consequences of which would be grave or serious for society as a whole, or some part of it; a bare conclusion that it was probable the offender would commit some indictable offence in the future would not suffice’.[92] Additionally, the risk of committing a future offence should be ‘unacceptable’ to a judge in light of the facts as they stand at the time of making an order.[93] Finally, as suggested by the plurality in Benbrika, the protective purpose would be supported by the requirement to treat the incarcerated person in a way ‘as far as reasonably possible, that is appropriate to their status as a person not serving a sentence of imprisonment’.[94]
Thus, it appears that the High Court has moved towards the new characterisation of incarceration as non-punitive, provided the laws have a clear non-punitive object of protecting the community from harm. However, this poses implications on human liberty, the separation of powers doctrine, and the institutional integrity of Ch III courts.
III IMPLICATIONS OF BENBRIKA ON HUMAN LIBERTY, THE SEPARATION OF POWERS DOCTRINE, AND THE INSTITUTIONAL INTEGRITY OF CH III COURTS
A Incarceration Without Proof of Criminal Guilt
Historically, a criminal trial has been a bulwark of liberty in Australia.[95] At federation, the power to incarcerate a person without a criminal trial did not exist.[96] In traditional criminal law, a person could only be incarcerated following the curial process, and there was an initial presumption of innocence.[97] A criminal offence had to be committed first, followed by a fair trial of the accused by a jury, where a charge had to be proven beyond reasonable doubt.[98] However, as seen in the decisions above, the fundamental principle allowing the deprivation of liberty only upon criminal conviction, might have deteriorated. For example, pursuant to Fardon[99] (which is considered valid law), a person could be re-incarcerated at state level, without any new finding of criminal guilt, purely on the assumption that they might commit a future offence. In such cases, it is difficult to see how the presumption of innocence would apply; at the time of the review hearing a person could be seen as a danger to the community simply because of their previous conviction for which they have been initially incarcerated. It effectively becomes the offender’s responsibility during their initial incarceration to prove they do not pose an unacceptable risk of recidivism by participating in rehabilitation.[100] Further, the review hearing is conducted by a single judge as opposed to a jury, which raises questions of objectiveness and impartiality.[101] Additionally, a judge is to make their decision on the basis of the admissible evidence.[102] As highlighted by Lynch:
[w]hen courts are required to predict the future, the prediction will usually be determined having regard to expert evidence. Rarely, if ever, would it be information about which expert evidence, independent of the relevant government agency, could be adduced. In such cases the court would be left with little practical choice except to act upon the view that was proffered by the relevant agency.[103]
Finally, proof beyond reasonable doubt is not required for a preventive detention order to be issued in a review hearing.[104] Thus, while the legislation in Fardon[105] and Benbrika[106] allows for a person’s review hearing, such hearing has ‘no real resemblance to a criminal trial’.[107] Above all, the number of subsequent review hearings is not limited,[108] which could potentially lead to indefinite incarceration. It is argued that allowing for the re-incarceration of a person without the commission of a fresh criminal offence and without a traditional criminal trial offends the fundamental principles of liberty and breaks ‘the nexus between crime and punishment that is fundamental to [the Australian] system of law’.[109] Nevertheless, the plurality in Benbrika[110] not only expressly affirmed the decision in Fardon,[111] thus agreeing with the preventive legislative scheme as a whole, but took a few bold steps further.
B Further Implications on Human Liberty
First, as highlighted by Gageler J, by declaring div 105A[112] valid, the plurality allowed the Commonwealth Parliament to:
[extrapolate] from continuing detention to protect against a narrow category of inherently harmful criminal conduct to continuing detention to prevent criminal conduct remote from the terrorist acts ... The exceptional case of detention in custody otherwise than as punishment for a past offence has in the result become unexceptional in relation to offences having some (even very remote) connection to a potential terrorist act.[113]
To reiterate, the legislation in Kable[114] and Fardon[115] was subject to being a narrow category of a dangerous ‘criminal offender’ or ‘sexual offender’ respectively. The legislation in Benbrika[116] covers a ‘terrorist offender’,[117] ‘intentionally associating with the terrorist organisation’,[118] and a wide range of actions that are regarded as ‘engaging in a terrorist act’.[119] The latter includes any preparatory acts or mere membership in a terrorist organisation.[120] Combined together, the definitions in div 105[121] dealt with by the High Court in Benbrika[122] cover a very broad category of persons who could be somehow connected to a terrorist act and therefore incarcerated, presenting great danger to the liberty of a person.
Second, while the Court in Fardon insisted that for the positive outcome of the review of subsequent re-incarceration to occur, the emphasis of the legislation should be placed on rehabilitation, appropriate treatment, and staged reintegration,[123] there is no such rehabilitation objective in the legislation considered in Benbrika.[124] Thus, once a person has been found guilty beyond reasonable doubt, incarcerated and later re-incarcerated for the prescribed period of time, there seems to be little opportunity given to the offender to satisfy a judge to a reasonable degree that they might have changed and consequently should not be re‑incarcerated.
Finally, the plurality in Benbrika expressly allowed for the incarceration to be ‘not conditioned on the subject being a “terrorist offender”’,[125] as discussed in Part IIE2. It is the definition of a ‘terrorist offender’ that requires a person to be held continuously in custody at the time of issuing a continuing detention order. The High Court in Benbrika went further to explain that the power in question to issue a continuing detention order is conditioned ‘on the status of the offender as a prisoner serving a sentence for a terrorist offence (or having been in custody continuously since having been convicted of such an offence)’.[126] However, one may argue that the statement of not being subject to being a terrorist offender could amount to not being subject to continuous custody. This would allow for a continuing detention order to become a preventive detention order similar to the control order in Thomas,[127] but with far greater consequences of incarceration. Such a statement of the plurality also raises a potential for the incarceration to be applied to any class of persons that might be regarded as dangerous or harmful to the community by the legislature, so long as it does not distort the institutional integrity of a court and is for a protective non-punitive purpose; the latter of which could be achieved through careful drafting.[128]
C The Separation of Powers and the Institutional Integrity of Ch III Courts
While the plurality in Benbrika[129] appeared to be concerned with determining whether preventive orders which allow incarceration should be characterised as punitive or non‑punitive, it seems the very fact that preventive detention orders issued in these ways offend the doctrine of separation of powers may have been overlooked.[130] This oversight could undermine the institutional integrity demanded by the High Court of the legislature and the executive.
As held in Attorney-General (Cth) v The Queen; Ex parte Boilermakers’ Society of Australia (‘Boilermakers’’),[131] the Commonwealth Constitution forbids the conferral of judicial and non‑judicial power upon one body. The doctrine of separation of powers was affirmed in many cases including Kable,[132] Thomas,[133] and Benbrika.[134] Therefore, Ch III courts can exercise only judicial power. Arguably, federal legislation which gives the High Court power to make non-punitive incarceration orders for protection of the community is conferring on the High Court non-judicial power, infringing the Boilermakers’ principle.[135]
In reaching the conclusion that the power to make non-punitive incarceration orders conferred by the federal legislation was federal judicial power and could be validly exercised by the High Court, the plurality in Benbrika[136] relied heavily on specific findings in Kable,[137] Fardon,[138] and Thomas.[139] These findings will now be addressed, as they offend the separation of powers doctrine and damage the institutional integrity of Ch III courts.
1 The Judicial Power of Ch III Courts Requires a Matter
As reiterated by Gordon J in Benbrika, ‘[t]he judicial power of the Commonwealth under Ch III requires that there be a “matter” before there can be an exercise of federal judicial power’.[140] Justice Gordon also cautioned that merely observing that the legislation was enacted to further desirable public ends did not answer whether the task was within the judicial power of the Commonwealth; rather, it invited closer attention to whether the High Court was ‘used to further a legislative or executive objective or issue of policing and detecting future crime by dressing the objective or issue in the garb of a judicial determination’.[141]
Whether an application for any preventive order could constitute a ‘matter’ was decided by the plurality in Benbrika[142] (and earlier in Thomas)[143] by reference to McHugh J’s finding of a matter in Fardon.[144] His Honour explained in Fardon[145] that ‘[t]he exercise of judicial power often involves the making of orders upon determining that a particular fact or status exists. It does so, for example, in the cases of matrimonial causes, bankruptcy, probate and the winding up of companies’.[146] It is argued that the analogies to which his Honour referred are very different as they are civil law matters, which rarely (if ever) result in incarceration and potential further re-incarceration.
It is also worth noting that there is a further issue with his Honour’s finding in Fardon, as discussed in Part IIC: in his Honour’s earlier decision in Kable,[147] McHugh J supported the opposite view, that is, that non-punitive incarceration without a prior finding of criminal guilt could not be upheld.[148] This was because it was ‘non-judicial in nature ... and repugnant to the judicial process in a fundamental degree’, even where the legislation had a legitimate non‑punitive purpose of protecting the community.[149] His Honour did not explain in Fardon[150] why an opposite conclusion was arrived at. It is thus unclear why the plurality in Benbrika[151] chose to rely on McHugh J’s finding of a ‘matter’ in Fardon[152] but not in Kable.[153] Such reliance seems arguable and could lead to the infringement of the separation of powers doctrine and damage the institutional integrity of Ch III courts.
2 Exercise of the Judicial Power: From the State Level to the Federal Level
Relying on Fardon,[154] the plurality in Benbrika[155] acknowledged that the conferral of power in Fardon was at the state level, and thus the Supreme Court was not restricted to exercising only judicial functions, due to the absence of a strict separation of powers doctrine in state constitutions.[156] To make the exercise of the power valid at the federal level, the plurality in Benbrika[157] used Kable’s ‘recognition that the Constitution does not permit different grades or qualities of justice’,[158] and added the Thomas[159] findings of a validly conferred power to issue control orders at the federal level to the equation. Thus, the power to issue continuing detention orders in Benbrika[160] became capable of valid exercise at the federal level, provided it did not undermine the High Court’s independence and impartiality as required by the Kable principle.[161] This finding raises a few issues that will be addressed further.
First, the references to Kable[162] made by the plurality in Benbrika[163] will be addressed. As explained by Gordon J in Benbrika,[164] the decision in Fardon[165] depended upon the Kable[166] principle which asked whether a task assigned to a state Supreme Court impaired the institutional integrity of that court so as to be incompatible with the court's exercise of Federal judicial power.[167] Her Honour further argued that the separation of power doctrine would be inverted if one contended that a ‘task which would not impair the integrity of a State court can for that reason be given to the High Court or a federal court created by the Parliament’.[168] This is because such contention would not recognise that the basic premise of the Kable[169] principle was that ‘the State courts can be given tasks that the High Court (and federal courts created by the Parliament) cannot’.[170] Therefore, it seems that the Kable[171] principles could not be properly engaged in Benbrika[172] because the High Court was tasked by the federal legislation; and thus the Kable[173] principles should not have been relied upon by the plurality.
Further, as highlighted by Gordon J in Benbrika,[174]
[t]he Court did not decide in Fardon whether a law of that kind—permitting a court to make an order for continuing detention—would be valid if made by the Commonwealth Parliament. The Court did not need to directly address [federal] judicial power. It does not follow from Fardon that a law of the kind considered in that case would be valid if enacted by the Commonwealth Parliament.[175]
Finally, the plurality’s references to Thomas[176] in Benbrika[177] need to be considered. When reaching the decision in Thomas,[178] the High Court specifically addressed the point that issuing a control order, as a limited circumstance of preventive interim orders, was very different to incarceration.[179] Justice Kirby further cautioned:
Terrorist acts are indeed, potentially, serious dangers to the Australian body politic. Effective laws to respond to such dangers are possible, consistent with the Constitution and specifically with Ch III. However, the lesson of the past responses of this Court to new challenges to the nation and its security is that fundamental features of the Constitution are preserved or compatibly adapted. They are not abandoned. Division 104 of the Code attempts an unbalanced and unequal departure from the Constitution's guarantee of equal justice to all who come before the independent federal courts of the nation.[180]
Therefore, it is unclear why the plurality in Benbrika[181] considered it appropriate to refer to Thomas[182] as the authority for issuing continuing detention orders. Thus, it is arguable that the plurality in Benbrika[183] might have erred in finding that the power to make non‑punitive incarceration orders conferred by the federal legislation was federal judicial power and could be validly exercised by the High Court.
IV FINAL REMARKS
In light of the implications discussed above, which were posed by the High Court decisions in Fardon,[184] Thomas,[185] and subsequently Benbrika,[186] it is suggested that these cases should be re-opened, and the issues should be re-considered. Careful examination of the issues and decisions should take place, with a stronger emphasis on protecting human liberty against potential executive or legislative intrusion. Indeed, the plurality in Benbrika seemed to allude to the possibility of re-opening Thomas and Fardon.[187]
It is undisputable that an unacceptable risk posed by some serious sex offenders, terrorist offenders, or any other class of dangerous offenders for that matter, should be mitigated and the community should be protected. It might be that traditional criminal law is not suitable for such cases and new standards need to be introduced by the legislature, ‘which are consistent with the Constitution and specifically with Ch III’.[188] However, in deciding such cases, especially where liberty is at stake, the judiciary should not divert from exercising judicial power, overlook the doctrine of separation of powers, or undermine the rule of law. By doing so, the judiciary could damage public confidence in the impartiality and integrity of federal courts. As Kirby J reasoned in Thomas,[189] once public confidence is lost, it will be difficult to regain.
[*] Third-year Bachelor of Laws (LLB) student, Edith Cowan University, Western Australia.
[1] Australian Communist Party v Commonwealth [1951] HCA 5; (1951) 83 CLR 1, 187 (Dixon J).
[2] Criminal Code Act 1995 (Cth) sch 1 (‘Criminal Code’).
[3] Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) (‘Dangerous Prisoners Act’).
[4] Recently, judges and academics have chosen to use different terms interchangeably when describing forms of detention, including ‘punitive or non-punitive detention’, ‘administrative detention’, ‘involuntary detention’, or ‘imprisonment’. In this article, except for direct quotations, the word ‘detention’ will be used to mean any form of involuntary detention short of imprisonment, while ‘incarceration’ will be used in reference to imprisonment in a prison facility.
[5] Commonwealth Constitution ss 71–80.
[6] Anthony Gray, ‘Executive Detention and the Australian Constitution’ (2014) 22(1) Australian Journal of Administrative Law 43, 1.
[7] (2021) 272 CLR 68 (‘Benbrika’).
[8] [2004] HCA 46; (2004) 223 CLR 575 (‘Fardon’).
[9] [2007] HCA 33; (2007) 233 CLR 307 (‘Thomas’).
[10] Benbrika (n 7).
[11] Ibid 103 [48] (Kiefel CJ, Bell, Keane and Steward JJ).
[12] (1992) 176 CLR 1 (‘Lim’).
[13] Ibid 27 (Brennan, Deane and Dawson JJ, Mason CJ agreeing at 10, Gaudron J agreeing at 55).
[14] Benbrika (n 7) 89–90 [15] (Kiefel CJ, Bell, Keane and Steward JJ), 130 [130]–[131] (Gordon J), 161 [210] (Edelman J).
[15] Lim (n 12) 55 (Gaudron J).
[16] Ibid 28 (Brennan, Deane and Dawson JJ).
[17] Blackstone, Commentaries on the Laws of England (1769), bk 4, ch 22, 294.
[18] Ibid bk 4, ch 2 at 25.
[19] Lim (n 12) 28 (Brennan, Deane and Dawson JJ).
[20] [1997] HCA 27; (1997) 190 CLR 1.
[21] Ibid 110 (Gaudron J).
[22] Ibid. See also Behrooz v Secretary of the Department of Immigration and Multicultural and Indigenous Affairs [2004] HCA 36; (2004) 219 CLR 486, 499 [20]; Al-Kateb v Godwin [2004] HCA 37; (2004) 219 CLR 562, 604–5 [110], 646–7 [251].
[23] Lim (n 12) 31–2 (Brennan, Deane and Dawson JJ, Mason CJ agreeing at 10, Gaudron J agreeing at 53).
[24] Ibid 71 (McHugh J).
[25] [1996] HCA 24; (1996) 189 CLR 51 (‘Kable’).
[26] Fardon (n 8).
[27] Thomas (n 9).
[28] Benbrika (n 7).
[29] Kable (n 25).
[30] Ibid 120 (McHugh J).
[31] Ibid (Toohey J agreeing at 96–7, Gaudron J agreeing at 106, Gummow J agreeing at 132).
[32] Ibid 132 (Gummow J). See also Gaudron J at 106, and McHugh J at 115–16.
[33] Ibid 98 (Toohey J), 109 (Gaudron J), 125 (Gummow J).
[34] Fardon (n 8).
[35] Ibid.
[36] Kable (n 25).
[37] Patrick Keyzer, ‘Preserving Due Process or Warehousing the Undesirables: To What End the Separation of Judicial Power of the Commonwealth’ [2008] SydLawRw 5; (2008) 30(1) Sydney Law Review 101, 104.
[38] Fardon (n 8).
[39] Ibid 591–2 [16]–[19] (Gleeson CJ), 596–7 [34] (McHugh J), 610 [74] (Gummow J, Hayne J agreeing at 647–8 [196]), 654 [216]–[217] (Callinan and Heydon JJ).
[41] Keyzer (n 37) 104–12; Dan Meagher, ‘The Status of the Kable Principle in Australian Constitutional Law’ (2005) 16(3) Public Law Review 182, 185.
[42] Kable (n 25).
[43] Keyzer (n 37) 104.
[44] Kable (n 25).
[45] Fardon (n 8) 591–2 [16]–[19] (Gleeson CJ), 596–7 [34] (McHugh J), 610 [74] (Gummow J, Hayne J agreeing at 647–8 [196]), 654 [216]–[217] (Callinan and Heydon JJ).
[46] Dangerous Prisoners Act (n 3) s 3.
[47] Kable (n 25).
[48] Dangerous Prisoners Act (n 3) s 13(3)(b).
[49] Fardon (n 8) 596–7 [34] (McHugh J), 615–16 [93]–[96] (Gummow J), 649 [203] (Callinan and Heydon JJ).
[50] Ibid 586 [2].
[51] Thomas (n 9).
[52] Criminal Code (n 2).
[53] Kable (n 25).
[54] Fardon (n 8).
[55] Thomas (n 9) 356 [115] (Gummow and Crennan JJ), 526 [651] (Heydon J).
[57] R v Thomas [No 3] [2006] VSCA 300; (2006) 14 VR 512, 513.
[58] Thomas (n 9) 357 [120]–[121] (Gummow and Crennan JJ), 526 [651] (Heydon J).
[59] Fardon (n 8).
[60] Kable (n 25).
[61] Thomas (n 9) 328 [16] (Gleeson CJ); see also Gummow and Crennan JJ at 356 [116], Callinan J at 507–8 [595]–[596] and Heydon J at 526 [651].
[62] Ibid 329 [17] (Gleeson CJ, Heydon J agreeing at 526 [651]).
[63] Ibid 422–5 [330]–[338].
[64] Ibid 432 [357].
[65] Lim (n 12).
[66] Fardon (n 8).
[67] Thomas (n 9).
[68] Benbrika (n 7).
[69] Criminal Code (n 2).
[70] Benbrika (n 7) 82 [1] (Kiefel CJ, Bell, Keane and Steward JJ).
[71] Ibid 140 [157], 142–6 [161]–[173].
[72] Fardon (n 8).
[73] Kable (n 25).
[74] Benbrika (n 7) 82–3 [2] (Kiefel CJ, Bell, Keane and Steward JJ).
[75] Kable (n 25).
[76] Benbrika (n 7).
[77] Ibid 140–1 [158].
[78] Thomas (n 9).
[79] Benbrika (n 7) 88–9 [14] (Kiefel CJ, Bell, Keane and Steward JJ).
[80] Lim (n 12).
[81] Benbrika (n 7) 97 [36] (Kiefel CJ, Bell, Keane and Steward JJ).
[82] Benbrika (n 7).
[83] Cf ibid 148–9 [182]–[184], where Edelman J reasoned that incarceration pursuant to a continuing detention order is punitive, even where the aim of a continuing detention order is to protect the community by preventing the commission of offences; Witham v Holloway (1995) 183 CLR 525, 534 (Brennan, Deane, Toohey and Gaudron JJ), 545 (McHugh J); Power v The Queen [1974] HCA 26; (1974) 131 CLR 623, 627 (Barwick CJ, Menzies, Stephen and Mason JJ); Keyzer (n 37) 106.
[84] Benbrika (n 7) 99–100 [40]–[41], citing Falzon v Minister for Immigration and Border Protection [2018] HCA 2; (2018) 262 CLR 333, 342 [24] (Kiefel CJ, Bell, Keane and Edelman JJ), North Australian Aboriginal Justice Agency Ltd v Northern Territory [2015] HCA 41; (2015) 256 CLR 569, 611–12 [98] (Gageler J), Fardon (n 8) 592 [20] (Gleeson CJ), 597 [34] (McHugh J), 610 [74] (Gummow J, Hayne J agreeing at 647 [196]), 654 [217] (Callinan and Heydon JJ), Vella v Commissioner of Police (NSW) (2019) 269 CLR 219, 257–8 [83] (Bell, Keane, Nettle and Edelman JJ) (‘Vella’).
[85] Benbrika (n 7) 98–9 [39] (Kiefel CJ, Bell, Keane and Steward JJ).
[86] Criminal Code (n 2) s 105A.1.
[87] Benbrika (n 7) 113 [78] (Gageler J, Edelman J agreeing at 149 [183]).
[88] Lim (n 12) 71 (McHugh J).
[89] Benbrika (n 7) 97 [36] (Kiefel CJ, Bell, Keane and Steward JJ).
[90] Ibid 113 [78].
[91] Ibid 113–14 [79].
[92] Ibid 101 [43], citing McGarry v The Queen [2001] HCA 62; (2001) 207 CLR 121, 129–30 [20]–[23] (Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ).
[93] Benbrika (n 7) 102–3 [46] (Kiefel CJ, Bell, Keane and Steward JJ).
[94] Ibid 98–9 [39] (Kiefel CJ, Bell, Keane and Steward JJ). See Keyzer (n 37) 106, who points out that possibility of Australian prisons to offer a different treatment is questionable. It is beyond the scope of this article to investigate whether prison facilities in Australia indeed offer or are capable of offering a different treatment required by the latter statement.
[95] Benbrika (n 7) 91–2 [20] (Kiefel CJ, Bell, Keane and Steward JJ).
[96] Woolmington v DPP [1935] AC 462, 481; Polyukhovich v The Queen [1991] HCA 32; (1991) 172 CLR 501, 607.
[97] Keyzer (n 37) 104.
[98] Ibid. See also Jeffrey Steven Gordon, ‘Imprisonment and the Separation of Judicial Power: A Defence of a Categorical Immunity from Non-Criminal Detention’ [2012] MelbULawRw 2; (2012) 36(1) Melbourne University Law Review 41, 66.
[99] Fardon (n 8).
[100] Ibid.
[101] Gordon (n 98) 66–8.
[102] See Dangerous Prisoners Act (n 3) s 13(3)(a); Criminal Code (n 2) s 105A.7(1)(b). See also Fardon (n 8), where Kirby J reasoned that functions based on such evidence cannot be imposed on the judiciary: at [169]. Justice Kirby also called such evidence ‘notoriously unreliable’: at [192].
[103] Lynch (n 56) 1206. See also Thomas (n 9) 435 [365], where Kirby J pointed that ‘to expect a court to rely for its decisions solely upon the evidence supplied by the very officers seeking to secure or uphold the control order, is fundamentally inconsistent with the adversarial and accusatorial procedures, observed by the Australian judiciary until now in serious matters affecting individual liberty, as contemplated by Ch III of the Constitution’.
[104] See Dangerous Prisoners Act (n 3) s 13(3)(b); Criminal Code (n 2) s 105A.7(1)(b), which requires ‘a high degree of probability’.
[105] Fardon (n 8).
[106] Benbrika (n 7).
[107] Keyzer (n 37) 104.
[108] Criminal Code (n 2) s 105A.7(5).
[109] Azzopardi v The Queen [2001] HCA 25; (2001) 205 CLR 50, 65 (Gaudron, Gummow, Kirby and Hayne JJ).
[110] Benbrika (n 7).
[111] Fardon (n 8).
[112] Criminal Code (n 2).
[113] Benbrika (n 7) 119 [97].
[114] Kable (n 25).
[115] Fardon (n 8).
[116] Benbrika (n 7).
[117] Criminal Code (n 2) ss 105A.3(1)(a)(iii), 105A.3(1)(b), 105A.3(1)(c) describe a terrorist offender as certain persons who have committed a ‘serious Part 5.3 offence’, which prescribes a maxim penalty of imprisonment for seven or more years.
[118] Ibid s 102.8.
[119] Ibid ss 101.1, 101.2, 101.4–101.6, 102.2–102.7, 103.1, 103.2.
[120] Ibid ss 101.1, 101.2, 101.4–101.6, 102.2–102.7, 103.1, 103.2.
[121] Criminal Code (n 2).
[122] Benbrika (n 7).
[123] Fardon (n 8) 587 [4] (Gleeson CJ).
[124] Benbrika (n 7).
[125] Ibid 599–600 [39] (Kiefel CJ, Bell, Keane and Steward JJ).
[126] Ibid 599 [38] (Kiefel CJ, Bell, Keane and Steward JJ).
[127] Thomas (n 9).
[128] See generally Gerard Carney, ‘The Exercise of Judicial Power by State Parliaments’ (2017) 44(2) Australian Bar Review 204, 215. It is beyond the scope of this article to examine this issue and its implications.
[129] Benbrika (n 7) (Kiefel CJ, Bell, Keane and Steward JJ).
[130] See generally Michael H McHugh, ‘Terrorism Legislation and the Constitution’ (2006) 28(2) Australian Bar Review 117. See also Kate Chetty, ‘Persona Designata, Punitive Purposes and the Issue of Preventative Detention Orders: All Roads Lead to Infringement of the Separation of Judicial Power’ [2016] MelbULawRw 10; (2016) 40(1) Melbourne University Law Review 87, advocating for the consistency with the separation of power doctrine.
[131] [1957] HCA 12; (1957) 95 CLR 529.
[132] Kable (n 25) 131–2.
[133] Thomas (n 9) 326 [10] (Gleeson CJ), 412 [300] (Kirby J), 467 [472] (Hayne J).
[134] Benbrika (n 7) 135 [144] (Gordon J).
[135] Thomas (n 9) 326 [307] (Kirby J), 472–4 [490]–[500] (Hayne J); Benbrika (n 7) 135–8 [144]–[150] (Gordon J).
[136] Benbrika (n 7) (Kiefel CJ, Bell, Keane and Steward JJ).
[137] Kable (n 25).
[138] Fardon (n 8).
[139] Thomas (n 9).
[140] Benbrika (n 7) 135 [144].
[141] Ibid 141–2 [160].
[142] Benbrika (n 7).
[143] Thomas (n 9) 328–9 [16] (Gleeson CJ), 356 [116] (Gummow and Crennan JJ), 507–8 [595]–[596] (Callinan J), 526 [651] (Heydon J).
[144] Fardon (n 8).
[145] Ibid.
[146] Ibid 597 [34].
[147] Kable (n 25).
[148] Ibid 120 (McHugh J, Toohey J agreeing at 96–7, Gaudron J agreeing at 106, Gummow J agreeing at 132).
[149] Ibid 106 (Gaudron J), 115–16 (McHugh J), 132 (Gummow J).
[150] Fardon (n 8).
[151] Benbrika (n 7) (Kiefel CJ, Bell, Keane and Steward JJ).
[152] Fardon (n 8).
[153] Kable (n 25).
[154] Fardon (n 8).
[155] Benbrika (n 7) (Kiefel CJ, Bell, Keane and Steward JJ).
[156] Ibid 91–2 [20] (Kiefel CJ, Bell, Keane and Steward JJ). See also Thomas (n 9) 424 [336], where Kirby J highlighted that ‘the constitutional separation of the judicial power within the States observes different legal rules’.
[157] Benbrika (n 7).
[158] Kable (n 25) 103 (Gaudron J); Fardon (n 8) 617 [101] (Gummow J); Wainohu v New South Wales (2011) 243 CLR 181, 209 [45] (French CJ and Kiefel J), 228–9 [105] (Gummow, Hayne, Crennan and Bell JJ); Vella (n 84) 278 [147] (Gageler J).
[159] Thomas (n 9).
[160] Benbrika (n 7).
[161] Ibid 91–2 [20] (Kiefel CJ, Bell, Keane and Steward JJ).
[162] Kable (n 25).
[163] Benbrika (n 7) (Kiefel CJ, Bell, Keane and Steward JJ).
[164] Ibid.
[165] Fardon (n 8).
[166] Kable (n 25).
[167] Benbrika (n 7) 140–1 [158]–[159] (Gordon J).
[168] Ibid. See also Fardon (n 8) 614 [86], where Gummow J emphasised that ‘the repugnancy doctrine in Kable does not imply into the Constitutions of the States the separation of judicial power mandated for the Commonwealth by Ch III. That is fundamental for an understanding of Kable’ (Hayne J agreeing at 648 [197]–[198]). Justices Callinan and Heydon at 655–6 [219] stressed that ‘this Court did not in Kable hold however that in all respects, a Supreme Court of a State was the same, and subject to the same constraints, as a federal court established under Ch III of the Constitution. Federal judicial power is not identical with State judicial power’.
[169] Kable (n 25).
[170] Benbrika (n 7) 140–1 [158]–[159] (Gordon J).
[171] Kable (n 25).
[172] Benbrika (n 7).
[173] Kable (n 25).
[174] Benbrika (n 7).
[175] Ibid 139–40 [155].
[176] Thomas (n 9).
[177] Benbrika (n 7) (Kiefel CJ, Bell, Keane and Steward JJ).
[178] Thomas (n 9).
[179] Ibid 356 [115] (Gummow and Crennan JJ), 526 [651] (Heydon J).
[180] Ibid 437 [371] (Kirby J).
[181] Benbrika (n 7) (Kiefel CJ, Bell, Keane and Steward JJ).
[182] Thomas (n 9).
[183] Benbrika (n 7) (Kiefel CJ, Bell, Keane and Steward JJ).
[184] Fardon (n 8).
[185] Thomas (n 9).
[186] Benbrika (n 7).
[187] Ibid 89–90 [15] (Kiefel CJ, Bell, Keane and Steward JJ).
[188] Thomas (n 9) 437 [371] (Kirby J).
[189] Ibid 436 [368].
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