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Zdenkowski, George --- "Community Protection Through Imprisonment Without Conviction: Pragmatism Versus Justice" [1997] AUJlHRights 3; (1997) 3(2) Australian Journal of Human Rights 8

Community Protection Through Imprisonment Without Conviction: Pragmatism Versus Justice [1]

George Zdenkowski[2]


Preventive detention is generally anathema in a democratic society committed to due process and human rights, apart from carefully limited exceptions.[3] Yet in the last few years governments in Victoria and New South Wales have introduced preventive detention laws[4] directed at specific named individuals[5] which authorised their detention by order of the Supreme Court once it had been satisfied, on the balance of probabilities, that he was more likely than not to commit a serious act of violence. No criminal charge, let alone criminal conviction, was required. These laws have been the subject of considerable criticism.[6]

This article will focus on the rise and demise of the Community Protection Act 1994 (NSW) (the “CPA”) which has recently been declared invalid by Kable v Director of _Public Prosecutions (NSW)[7] a majority decision[8] of the High Court of Australia. Preventive detention laws raise many issues including: political power, due process, community anxiety and suitable means of community protection, morality, human rights, the boundaries of the criminal and civil laws, constitutionality and sentencing theory. It will not be possible in this article to examine each exhaustively. An attempt will be made briefly to locate the political origins of the CPA; trace the history of the legal challenges to it; assess the justifications offered in support of it and critically evaluate its compliance or otherwise with human rights benchmarks which apply to Australia. Although preventive detention raises many important questions about the ability to predict dangerousness – indeed the well-established difficulty of doing so is a major objection raised against such laws – the extensive literature in this area will not be explored.

Notwithstanding the recent declaration by the High Court that the CPA is invalid, this examination is by no means an academic exercise. Indefinite sentencing legislation (related to preventive detention, as noted below) has recently been introduced in several jurisdictions. Both major political parties in NSW have embraced preventive detention laws in various forms before and after the decision in Kable.[9] The government has rejected a compensation claim for wrongful detention ___by Kable.[10] There is a substantial prospect that the NSW government will seek to modify the CPA to avoid the implications of the Kable judgment. Indeed, a private member’s bill (the Community Protection (Dangerous Offenders) Bill 1996) has already been introduced in the NSW parliament.[11] Because the High Court decision in Kable was made on constitutional grounds it was, strictly speaking, unnecessary for the court to consider many of the issues raised by the case. Accordingly, this judgment has left unresolved many important matters relating to preventive detention: for example, compliance with international human rights benchmarks; the feasibility of predicting dangerousness;[12] the constitutional limits (if any) on a State parliament to enact laws which purport to infringe fundamental rights.[13] In the circumstances, preventive detention laws in NSW remain a live issue.[14]


To understand why the CPA was introduced it is necessary to mention briefly two features of the political and social context: the law and order climate and related sentencing developments.

Law and Order

The late eighties and early nineties have been characterised by a punitive approach to sentencing issues which has been uncritically embraced by both major political parties. Indeed, the only policy divergence between the parties has been in attempts to outbid each other in terms of law and order rhetoric.[15] This was the prevailing political climate in late 1994 when the CPA was introduced. An informal election campaign[16] was in full swing and law and order was a major issue despite the lack of objective data to support the alleged crisis.[17] The specific catalyst for the CPA was the impending release, in early 1995, of Gregory Wayne Kable who had been convicted of the manslaughter of his wife and would by then have served his complete term. He had allegedly despatched from prison many letters containing violent threats to those who had custody of his children. Once Kable had completed his prison term it was claimed there was no legal basis for his detention.[18] Accordingly, it was claimed by Attorney-General Hannaford, there was an urgent need for legislation to authorise his detention.[19]

Related Sentencing Developments

The resort to preventive detention is related to a resurgence of interest in the use of incapacitation of allegedly dangerous offenders (as a sentencing measure) as a means of securing community protection. Indefinite sentences and preventive detention laws in Australia share certain features: the focus on predicting violence; the indefinite period of detention; the review mechanisms which may authorise release. However, a key difference is that in the case of indefinite sentences, the indefinite prison term is added to a sentence which follows conviction for an offence. No such requirement exists for preventive detention laws. The trend towards use of indefinite sentences helps to explain how an apparently Draconian measure such as the CPA could gain political acceptance.

In one sense, community protection is the object of all sentencing decisions. However, the term is also used to refer to various approaches to sentencing in Australia, which have as their purpose imprisonment of an offender beyond so-called proportional punishment. At common law, proportionality is the basic principle governing custodial sentences in Australia: “The fundamental principle of proportionality does not permit the increase of a sentence of imprisonment beyond what is proportional to the crime merely for the purpose of extending protection of society from the recidivism of the offender”.[20] The various forms of “protective sentencing” authorised by statute are deviations from the general common law rule which require justification. Such deviations have taken diverse forms which should be carefully distinguished: indefinite (or indeterminate) sentences; additional fixed sentences and preventive detention orders.[21]

Indefinite sentences involve penalties imposed without a finite termination date. Courts may impose such penalties ab initio or as an indefinite extension of a normal fixed sentence. Although theoretically the term can apply to any penalty type it usually refers to indefinite imprisonment. The power to impose indefinite imprisonment is widely available in Australia.[22] Such a power is not currently available in New South Wales.[23]

The legislation dealing with indefinite sentences in various Australian jurisdictions is based on the understandable concern to protect the community from violent crime. However, the problems are succinctly captured by Parke and Mason, writing about the Queensland legislation:

Part 10 of the Penalties and Sentences Act 1992 is based upon, first, the assumption that it is just to incarcerate offenders beyond what is proportional for the crime committed on the basis that they are dangerous, and, secondly, that it is possible to accurately forecast dangerousness. Both assumptions are at best arguable and at worst unjust and misleading.[24]

All of the criticisms which apply to indefinite sentences[25] apply with equal force to preventive detention legislation such as the CPA. However, in the case of the latter, a series of additional concerns arise. It is to a detailed analysis of these issues that we now turn.

The Community Protection Act 1994 (NSW)

The Gregory Wayne Kable Story [26]

Gregory Wayne Kable was married to Hilary Therese Kable, with whom he had two children. Following a separation, the parents had a series of disputes over the refusal of access to the children who were in the mother’s custody “despite an entitlement said to have been sanctioned by the Family Court”.[27] As a result of this acrimony Kable killed his wife and was charged with murder. He pleaded guilty to manslaughter on the grounds of diminished responsibility and the Crown accepted the plea. He was sentenced to a minimum term of four years together with an additional term of one year and four months. There was no appeal and Kable served the entire term in prison. Having served his total term, and there being no outstanding punishment for any offence, Kable was (but for the proceedings instituted under the CPA) entitled to be released on 4 January 1995.[28]

The specific catalyst for that legislation was a series of threats made to Kable’s sister-in-law who was caring for the children, and to others. Grove J described the situation in the following terms:

During his custody, the defendant has distributed a torrent of correspondence and written material. It can be perceived that the inspiration for most – if not all – of it is the defendant’s feelings about being deprived of contact with his children. Some of the material conveyed unmistakably threatening messages.[29]

Criminal charges in respect of these threats were subsequently laid but these had no bearing on the denial of the defendant’s liberty. His custody depended entirely on proceedings brought under the CPA described below.[30]

The History of the Legislation

This legislation underwent several incarnations in a relatively short period. Without attempting to be comprehensive, the following indicates, in summary form, some of these changing features. The initial Community Protection Bill 1994 was expressed in general terms and provided for an application by the Attorney-General for a preventive detention order,[31] arrest warrant or interim detention order. In the case of a detention order, the case had to be established to the satisfaction of the Supreme Court, in accordance with the specified criteria, on the balance of probabilities.

Following community and parliamentary criticism, a fresh Bill was introduced entitled the Community Protection (Gregory Wayne Kable) Bill 1994 which, as the title implies, was to operate only in respect of Mr Kable. Clause 14 of this version provided that a detention order[32] could not be made against Mr Kable unless the Director of Public Prosecution (“DPP”) (who now had responsibility for this role) could prove the case beyond reasonable doubt. It imposed the additional requirement that the Court must be satisfied that it was more appropriate for such an order to be made than for action to be taken under the Mental Health Act 1990 for Mr Kable’s involuntary detention. It provided for a sunset clause by virtue of which the Act would expire 9 months after its commencement.

The next version omitted the requirement for the Court to consider the Mental Health Act option, reverted to general title, still applied only to Mr Kable but reinstated the balance of probabilities test for the making of a detention order. It omitted the sunset clause but provided that detention orders could not be made against a person under the age of 16, a curious provision in view of the fact that the Bill applied exclusively to Mr Kable who was well over that age.

The CPA[33] remained substantially in this form. It only applied to Mr Kable and the standard of proof was the balance of probabilities. It retained the age limitation and also, as had various previous Bills, drafting terminology (for example “a specified person” instead of ‘“the specified person” etc) which suggested a general rather than specific application. However, the Act is clearly expressed (in s 3) to apply exclusively to Mr Kable and does not authorise orders against any other person.

Operation of the Act

Section 3 of the CPA provides that the object of the Act was to protect the community by providing for an application to the Supreme Court for the preventive detention of Gregory Wayne Kable. The criteria (specified in s 5) for the making of such an order are that the Court must be satisfied (on the balance of probabilities, s 15), on reasonable grounds: that Kable is more likely than not to commit a serious act of violence and that it is appropriate, for the protection of a particular person or persons or the community generally, that he be held in custody.

The relevant applications are made by the DPP (s 8), interim detention orders may be sought ex parte (s 7), assessors may be appointed (s l1) and treatment can be ordered during custody (s l2). The proceedings are described as civil proceedings (s l4) and are commenced in the Supreme Court by way of summons (s l6). Proceedings are bound by the rules of evidence, with certain modifications, (s l7) and provision is made for amendment or revocation of preventive detention orders (s 13) and appeals therefrom (s 25). However there is no entitlement to apply for revocation or amendment of, or appeal against, an interim order.

History of the Early Litigation

Preliminary Hearings

Initially the DPP sought an interim order for three months detention, a psychiatric examination and a detention order for the maximum period of six months. Spender AJ ruled that the defendant’s application for a permanent stay was fatally flawed because “To grant a stay would negate the express will of the parliament”.[34] Spender AJ also rejected an argument that the Act was such a fundamental denial of due process and reversal of values thought to be the bedrock of the political and legal system that it was beyond power and invalid. Fundamental injustice was not a matter for the courts but rather for the legislature: Building Construction Employees and Builders Labourers Federation of New South Wales v Minister for Industrial Relations[35] (the “BLF case”). On 22 December 1994 the hearing was listed before Justice Hunter. Because of the urgency of the matter (the defendant was due for release on 4 January 1995) His Honour considered it appropriate to hear and determine the application for an Interim Detention Order (“IDO”) and the application for a Preventive Detention Order (“PDO”) was deferred until 9 January 1995 (before Levine J). After hearing substantial affidavit evidence Justice Hunter made an IDO on 30 December 1994[36] for the detention of the defendant for 3 months from midnight on 3 January 1995, ruling that it was unnecessary to be satisfied of facts necessary to establish the making of a PDO provided that it was reasonable in all the circumstances to make an IDO. In the course of the hearing before Hunter J in several constitutional challenges were made to the legislation. All were rejected.[37]

Application for Preventive Detention Order: Levine J

Justice Levine held[38]that a PDO for six months should be made, the plaintiff (DPP) having established on the balance of probabilities to a high degree of satisfaction[39] the substantial likelihood that the defendant would commit a serious act of violence. Levine J agreed that the CPA was constitutionally valid for the reasons given by Spender AJ and Hunter J their earlier judgments.

In addition to the constitutional arguments canvassed by Spender AJ and Hunter J, Justice Levine heard arguments specifically based on NSW Constitutional arrangements. In summary, these submissions contended that: the CPA was unconstitutional for infringing s 5 of the NSW Constitution Act 1902 as not being a law for the peace, welfare or good government of NSW; the proceedings under the CPA (although designated civil proceedings) were in substance criminal in nature and the CPA in effect abolished trial by jury and this violated s 5 of the NSW Constitution Act 1902, jury trial being “entrenched” as part of NSW’s constitutional structure; the CPA effectively imposes a prison sentence on a person after proof of matters to a non-criminal standard; and that the CPA further infringes s 5 of the NSW Constitution Act 1902 as it is ad hominem and cannot therefore be for the peace, welfare and good government of NSW. These submissions were rejected on the basis that s 5 of the NSW Constitution Act 1902 confers plenary power on the NSW Parliament, relying on Union Steamship Company of Australia Pty Ltd v King[40] (“Union Steamship case”) and the BLF case.

Justice Levine described the proceedings as “a melancholy moment in the law and the history of the administration of justice in this state following an endeavour by the legislation to cater for the welfare of the community”.[41] His Honour was also critical of the discriminatory nature of the law describing it as “a matter of controversy and of deep concern it certainly being a departure from the usual expectation as to legislation being enacted to have general application”.[42] Levine J added that if the legislature considered such a law to be warranted it is desirable that (a) it operate generally; (b) it be enacted after due deliberation and after inquiry into relevant fields of scientific expertise, including statistical and similar information available from psychiatrists, psychologists, criminologists and the like; (c) consideration be given to whatever the present law otherwise provides as a remedy; (d) it not create a mischief in the hands of ill motivated members of community; (e) determination of the ultimate issues should be part of the administration of justice of the Supreme Court.

Decision of the Court of Appeal

On 9 May 1995, the Court of Appeal dismissed the appeal against the decision of Levine J. In the leading judgment Mahoney JA concluded that: the CPA was a valid enactment of the NSW parliament; that, although provisions authorising preventive detention have the potential to be abused, they are sometimes justifiable; the CPA is such an instance, because it is directed to a clear, weighty and present danger, its criteria are capable of clear proof or disproof, it is independently administered and any such detention is subject to ongoing appeal and review. Mahoney JA was also of the view that there was a gap in the criminal law in the sense that its provisions did not deal comprehensively with the prevention of violence.

The constitutional challenges to the CPA by counsel for the appellant in respect of the Australian Constitution were summarised follows:

the Act is inconsistent with certain implications ... to be drawn from the Australian Constitution and ... for that reason is invalid. He submitted: first, that it is to be implied from the Australian Constitution that legislation, Federal and State, is invalid if ... it is not general but is directed against an individual and/or discriminates against an individual; and second, that it is to be implied from s 80 of the Australian Constitution that a criminal offence of this kind may be tried only by a judge and jury, and that the present proceeding is for that purpose a prosecution of a criminal offence.[43]

In rejecting these arguments, Justice Mahoney observed that although ordinarily laws are, and ought to be, in general terms because of the possibility of abuse, it is wrong to infer that parliament is not competent to enact laws directed to particular individuals in special circumstances. The principle that a sovereign and plenary legislature may enact private Acts has long been recognised. The argument based on s 80 was dismissed on the simple basis that s 80 did not apply to State laws. His Honour did not canvas the argument as to whether the proceedings under the CPA were civil or criminal.

The submissions made in respect of State constitutional issues on behalf of the appellant appeared to differ somewhat from those made in the courts below. Counsel did not seek to rely on the Constitution Act 1902 but rather sought to draw implications from the “inherited structure of government’ and the importance of jury trials historically in NSW. It was submitted that proceedings contemplated by s 5 of the CPA must be tried by jury. Mahoney JA concluded that such implications were not to be drawn. The plenary power of the NSW parliament allowed it to alter even fundamental aspects of the constitutional structure. The obiter dicta remarks of some judges that the NSW Parliament may possibly not be able to enact legislation inconsistent with certain human rights[44] did not apply, according to Mahoney JA, to the CPA.

Clarke JA expressed considerable misgivings about the legislation[45] but as he agreed with Mahoney JA’s analysis of the questions of validity and the tests posed in the legislation, felt obliged to dismiss the appeal. Sheller JA shared the concern that the CPA “infringes a fundamental safeguard of the democratic rights of individuals in our community”[46] but ruled, in agreement with Mahoney and Clarke JJA, that the acceptance of parliamentary sovereignty was essential to democracy and was only subject to constitutional constraints. There being no such constraints it was the duty of the Court to uphold the law. Levine J did not misconstrue the law or err in its application.

Judgment of Grove J in Relation to Fresh Application for a PDO

The PDO made by Levine J for a period of 6 months expired on 22 August 1995. Shortly before this date an application for a further PDO was made by the DPP. Judgment in relation to this application was delivered by Grove J on 21 August 1995, one day before Mr Kable was due for release.[47] The summons was dismissed on the basis that the plaintiff had failed to establish, in accordance with the Briginshaw balance of probabilities test[48] that Mr Kable was more likely than not to commit a serious act of violence and that it is appropriate for the protection of a particular person or persons that he be held in custody. After carefully reviewing recent medical reports Grove J concluded that the highest state of satisfaction he could reach upon the material before him was equality of chance. This did not mean that the defendant was not potentially dangerous. However, the evidence failed to satisfy the statutory criteria to the relevant standard and accordingly detention could not be authorised pursuant to the CPA. Mr Kable was therefore released.

The High Court Challenge


On 18 August 1995, shortly prior to the hearing before Grove J, Mr Kable was granted special leave to appeal against the decision of the Court of Appeal. Notwithstanding his subsequent release, the High Court determined to continue the proceedings, involving as they did a matter of public importance.[49] The matter was argued before the High Court in early December 1995 and judgment was delivered on 12 September 1996[50] declaring the CPA invalid by a majority of four to two.

Although the appellant was successful in obtaining a declaration that the CPA was invalid the judgments of both the majority and minority were disappointingly narrow in their focus. Arguments as to fundamental rights, due process, the desirability or otherwise of preventive detention, equality before the law and international human rights benchmarks (see below) were largely eschewed. For the majority, aspects of these matters were raised, if at all, in the context of considering the judicial process. For the minority, the supremacy of the legislature which was, in their view, untrammelled by constitutional impediment made it unnecessary to consider these policy matters.[51]

The Majority

Toohey J held that “the appellant has not demonstrated that the doctrine of separation of powers operates in a constitutional sense in New South Wales so as to preclude the Parliament enacting a statute which ensures a particular result in what might be regarded as an exercise of judicial power”.[52] However, it is apparent from His Honour’s remarks elsewhere that he agrees with the respondent’s challenge to the proposition that the CPA is an exercise of judicial power by the legislature because of the need by the Court to be independently satisfied as to the statutory criteria.[53]

The essential difference, from the minority position, is the embrace by Toohey J (and other members of the majority) of the appellant’s argument that the jurisdiction exercised under the CPA is inconsistent with Chapter III of the Commonwealth Constitution because the very nature of the jurisdictions is incompatible with the exercise of judicial power. The argument is not based on either separation of powers or the co-existence of judicial and non-judicial powers in state courts vested with federal jurisdiction. Toohey J characterised the appellant’s argument on this issue as being: “a state court exercising federal jurisdiction, in the sense discussed earlier, could not be the recipient of powers and functions which were incompatible with the very nature of judicial power”.[54] The tenuous link to federal jurisdiction, according to Toohey J, was the requirement of the Supreme Court to determine questions arising under the Constitution.[55] The perhaps surprising outcome of this reasoning is that a litigant will, it seems, readily be able to create this link by raising a constitutional challenge.[56] Nevertheless it remains to be seen what is regarded as the essence of judicial power. Toohey J identifies the offensive functions conferred on the Court by the CPA as: the power to order imprisonment without any adjudication of guilt as to a criminal offence; the participation in a process designed to bring about the detention of a person by reason of a judicial assessment of a person’s prospective, rather than past behaviour; the specific application of the law to one named individual. Interestingly, Toohey J suggested that if the CPA had

operated on a category of persons[57] and a defence to an application for a preventive detention order was confined to a challenge that the criteria in s 5(1) [CPA] had not been met, different questions might arise. In that situation the judicial power of the Commonwealth might not be involved.[58]

The basis for this comment is unclear. If there is no constitutional issue raised, the federal link is severed and Chapter III issues do not arise (on his view). This would presumably also be true, on Toohey J’s reasoning, had Mr Kable simply argued the factual merits in relation to satisfaction of the statutory criteria and not raised a constitutional challenge.

The requirement for a broader category does not advance the federal connection. Does it affect the nature of the exercise of the powers conferred? Arguably, the non-judicial characteristics identified by Toohey J (detention without adjudication of guilt of crime, etc) remain so whether the potential class to which such an order can apply is a class of one or somewhat broader. Once the federal link is severed, the co-existence of judicial and non-judicial powers in a State Supreme Court is accepted by all as non-problematic, constitutionally speaking.[59]

If Toohey J’s analysis were correct it would seem that the so-called “incompatibility” problem can be triggered at the whim of the litigant. For other members of the majority the incompatibility flows from the nature of the powers sought to be conferred by the CPA. In any case, the only constitutionally safe political response would be to ensure a de facto separation of powers doctrine for Supreme Courts and the conferral of CPA type powers on agencies which cannot be repositories of Chapter III judicial power.

Justice Gaudron dealt only with the Chapter III issue. In her view, Chapter III clearly provides for “an integrated Australian judicial system for the exercise of the judicial power of the Commonwealth”.[60] There is nothing in the Constitution “to suggest that it permits of different grades or qualities of justice, depending on whether judicial power is exercised by State courts or federal courts created by the parliament.”[61]

Accordingly, Chapter III requires, as far as Gaudron J is concerned, that State parliaments desist from conferring on State courts powers which are repugnant to the exercise of the judicial power of the Commonwealth. This limitation is designed to ensure the integrity of the judicial process and the integrity of the courts.

Gaudron J embarks on an analysis of the CPA and is highly critical of the legislation. She points out that although the process authorised by the CPA is designated “civil proceedings” they are in reality neither civil nor criminal proceedings but unique. Nor do they partake of the nature of legal proceedings for they are not directed to the resolution of a dispute. The power conferred by s 5(1) is

the antithesis of the judicial process ... It is not a power that is properly characterised as a judicial function, notwithstanding that it is purportedly conferred on a court and its exercise is conditioned in terms usually associated with the judicial process.[62]

It follows that the integrity of the NSW Supreme Court is compromised. But this does not matter, constitutionally speaking, unless the judicial power of the Commonwealth is involved. Although Gaudron J does not canvas the separation of powers argument it is clear from her reasons that State parliaments can validly confer non-judicial powers on their courts provided they are not repugnant to the exercise by those courts of the judicial power of the Commonwealth. For Gaudron J, the necessary link to Commonwealth judicial power is made because the Supreme Court of NSW “is not simply a State court but a court which also exists to exercise the judicial power of the Commonwealth.”[63] Accordingly, the regime described earlier as the “antithesis of the judicial process” also compromises the integrity of the judicial system brought into existence by Chapter III of the Constitution. Gaudron J refers to the significance of public confidence in the integrity of the process and has no doubt that the scheme established by the CPA would undermine public confidence. A further feature of the CPA which erodes public confidence is the obligation for the court to make ad hominem orders. As Gaudron J puts it:

Public confidence in the courts requires that they act consistently and that their proceedings be conducted according to rules of general application. That is an essential feature of the judicial process. It is that feature which serves to distinguish between palm tree justice and equal justice. Public confidence cannot be maintained in a judicial system which is not predicated on equal justice.[64]

Justice McHugh expressly agrees with Brennan CJ and Dawson J (for the reasons given by them) that the appellant’s contentions that the CPA is not a law within the meaning of the Constitution Act 1902 (NSW) and that the CPA is invalid because the New South Wales Constitution contains an entrenched separation of powers, must both fail.

However, McHugh J is of the view that the CPA is invalid “because it purports to vest functions in the Supreme Court of New South Wales that are incompatible with the exercise of the judicial power of the Commonwealth by the Supreme Court of that State.”[65]

He reasons that the States do not have unlimited power in respect of State Courts and that the Federal Constitution impliedly guarantees the continued existence of State Supreme Courts. State Courts are part of an integrated Australian judicial system which administers a unified common law. State or federal parliaments may not legislate in such a manner as would undermine the role of State courts as repositories of federal judicial power by, for example, permitting a Supreme Court (while exercising federal judicial power) to contravene the rules of natural justice or to exercise legislative or executive power.

Moreover, all courts exercising federal jurisdiction must be (and be perceived to be) free from legislative or executive interference. It is argued that public confidence in the impartiality of courts exercising federal judicial power would otherwise be lost. The test according to McHugh J is whether ordinary reasonable people might reasonably be entitled “to conclude that a State Court as an institution was not free of government influence in administering the judicial functions invested in the Court”.[66]

Applying this test to the CPA, McHugh J concludes that, despite the bona fides, independence and impartiality of the judges who sought to apply the CPA according to its terms, the legislation “... makes the Supreme Court the instrument of a legislative plan, initiated by the executive government, to imprison the appellant by a process that is far removed from the judicial process that is ordinarily invoked when a court is asked to imprison a person”.[67] Accordingly, His Honour concluded that the CPA infringed Ch III of the Constitution and was invalid because:

... ordinary reasonable members of the public might reasonably have seen the Act as making the Supreme Court a party to and responsible for implementing the political decision of the executive government that the appellant should be imprisoned without the benefit of the ordinary processes of law. Any person who reached that conclusion could justifiably draw the inference that the Supreme Court was an instrument of executive government policy. That being so, public confidence in the impartial administration of the judicial functions of the Supreme Court must inevitably be impaired.[68]

Justice Gummow only considered it necessary to determine the Ch III point because of his conclusion that the appellant’s submission (“that the jurisdiction and powers conferred by the Act upon the Supreme Court are of such an extreme nature and quality as to render them incompatible with the exercise by the same judicial institution of the State of the judicial power of the Commonwealth and that, as a result, the Act is invalid”)[69] succeeded. In essence, this conclusion is reached as follows: federal judicial power has particular characteristics;[70] an attempt by the Commonwealth to enact legislation which purported to confer upon a court exercising federal jurisdiction (State or Federal) authority to punish and imprison of the nature and scope of the CPA would be invalid;[71] and, finally, the judicial power of the Commonwealth is the same whether exercised by Federal or State Courts and Ch III “assumes and requires, at least as regards the Supreme Courts of the States, an institutional integrity of the State court structure which may not be undermined by the reposition in them of authorities and powers of the nature of those in the Act.”[72]

The Dissenters

Brennan CJ (who dissented with Dawson J and dismissed the appeal) considered only three issues: whether the CPA was a law; whether the CPA was ultra vires; and whether Chapter III of the Commonwealth Constitution precludes the vesting of jurisdiction under the CPA in the Supreme Court of NSW. In relation to the first, the Chief Justice had no hesitation in concluding that the CPA had been properly enacted in terms of the formalities and that “a purported law has never been held to lack the character of a law simply because it affects the liberty or property of a single individual”.[73]

The submission that the CPA was ultra vires (because of the separation of powers doctrine) depended on two assumptions: first, that the Act was in substance an exercise of judicial (rather than legislative power); second, that the NSW parliament cannot exercise judicial power or interfere with the judicial process.

Brennan CJ did not need to decide the first issue [74] because he was of the view that the doctrine of separation of judicial power was not (unlike the Commonwealth position) part of the constitutional law of the State.[75]

Were there other reasons for concluding the CPA was ultra vires the NSW Constitution? Chief Justice Brennan held (agreeing with Dawson J) that the powers of the NSW parliament are not limited as to subject matter.[76] His Honour also agreed with Dawson J’s conclusion that

no non-territorial restraints upon parliamentary supremacy arise from the nature of a power to make laws for peace order (or welfare) and good government or from the notion that there are fundamental rights which must prevail against the will of the legislature.[77]

The third issue was crucial because on this Brennan CJ parted company with the majority in holding that Chapter III of the Commonwealth Constitution did not preclude the vesting of jurisdiction under the CPA in the NSW Supreme Court. He rejected the submission that “a State Court cannot be a repository of both State non-judicial power and federal judicial power if the exercise of the former would be incompatible with the exercise of the latter”.[78]

Justice Dawson, although agreeing with the Chief Justice that the appeal should be dismissed, analysed the arguments somewhat differently. He addressed the issue of parliamentary supremacy and fundamental rights at greater length. The door which was left slightly ajar in the Union Steamship case[79] and Polyukhovich v The Commonwealth[80] has now been firmly closed as far as Dawson J is concerned:

... there can be no doubt that parliamentary supremacy is a basic principle of the legal system which has been inherited in this country from the United Kingdom ... no non-territorial restraints upon parliamentary supremacy arise from the nature of the power to make laws for peace, order (or welfare), and good government or from the notion that there are fundamental rights which must prevail against the will of the legislature. The doctrine of parliamentary supremacy is as deeply rooted as any in the common law. It is of its essence that a court, once it has ascertained the true scope and effect of an Act of Parliament, should give unquestioned effect to it accordingly.[81]

This is a resounding, and unequivocal declaration, soundly based on common law authority but which completely eschews the moral, political and human rights dilemmas which flow from such an approach. The intellectually respectable objections to judicially-based fundamental rights jurisprudence (anti-democratic, Pandora’s box, uncertainty, etc) are simply not canvassed.[82] Likewise, the confronting (but cliched) Diceyan example of grotesque (but valid) legislation (the law which authorises the State to kill blue-eyed babies) is not met head on. Dawson J prefers to rely on the undoubtedly factually accurate premise that a parliament minded to enact legislation of this kind is unlikely to be troubled by exquisite moral dilemmas. But history is littered with oppressive regimes which have enacted grotesque laws which have been adjudged so when this has been a realistic possibility. The legal issue is whether such laws are permissible by reference to the doctrine of parliamentary supremacy. The logic of Dawson J’s approach is that such laws would be valid.[83]

In concluding his judgment, Dawson J observed that he did not find it necessary to examine submissions by the appellant that the CPA authorises the Court to impose punishment by way of executive or legislative act for reasons other than the commission of a crime. As mentioned earlier, Dawson J was not convinced that a non-judicial power was involved. Moreover, there are cases of involuntary detention which are non-punitive viz in cases of mental illness or infectious disease. His Honour also briefly referred to the statutory system of preventive restraint recommended by Deane J in Veen v The Queen (No 2).[84]

The Broader Debate

Arguments in Favour of the Community Protection Act 1994

Rights must be considered in context. The rights of one person may represent a threat to another. The protection of the community against violence must be balanced against the maintenance of human rights and the principles of due process. In limited special circumstances the protection of people against violence involves the authorisation of the detention of individuals without prior conviction of a criminal offence. Problems with the prediction of violence (including the prospect of false positives) do not justify inaction. There is a gap in the protection which the criminal law and mental health systems afford. The gap relates to the prevention of violence as distinct from the punishment of those convicted of crimes involving violence (or detention on the basis of mental illness). Principally, the criminal law is involved with the punishment of violence. In some cases (for example, the Crimes Act 1900 (NSW), ss 3l, 33B, 562B(l), 562L, 545B, s 562AB and the Crimes Act 1914 (Cth), s 85S) the criminal law does provide for the prevention of violence. However, there is still a discernible gap.[85] The former Attorney-General, the Hon JP Hannaford, in his Second Reading Speech said

... the law does not presently provide a mechanism whereby the community can be protected from a potentially violent individual, who is not mentally ill for the purposes of the mental health legislation, and who has not committed a serious act of violence.... This Bill addresses that inadequacy by providing for a mechanism whereby persons who are more likely than not to commit serious acts of violence may be detained when it is appropriate to do so for the protection of the community. It is the need to protect the community which is the paramount consideration for the introduction of this Bill.[86]

In these circumstances, it is justifiable and desirable to introduce legislation such as the CPA. Recognising the potential for abuse of such laws, it is vital that they be expressed clearly, that the criteria be capable of clear proof or disproof, that they be independently administered by superior courts and that provision be made for ongoing appeal and review.[87] The need for a statutory scheme for the restraint of dangerous individuals who had not been convicted of an offence and who were not subject to involuntary detention under mental health laws was acknowledged by Justice Deane in Veen (No 2):

the protection of the community obviously warrants the introduction of some acceptable statutory system of preventive restraint to deal with the case of a person who has been convicted of violent crime and who, while not legally insane, might represent a grave threat to the safety of other people by reason of mental abnormality if he were to be released as a matter of course at the end of what represents a proper punitive sentence. Such a statutory system could, one would hope, avoid the disadvantages of indeterminate prison sentences by being based on periodic orders for continuing detention in an institution other than a gaol and provide a guarantee of regular and thorough review by psychiatric and other experts.[88]

The constitutional invalidity of the CPA does not rule out other suitably drafted legislation which avoids the constitutional pitfalls identified by the High Court. If the objective is desirable, the means can be adapted to achieve it.

Arguments Against the Community Protection Act 1994

The constitutional invalidity of the CPA should not be regarded as merely a technical violation of Ch III of the Commonwealth Constitution. The High Court’s reservations about such a law should give pause to a legislature seeking to circumvent the strictures of its decision. The CPA arguably infringes aspects of the International Covenant on Civil and Political Rights (“ICCPR”) to which Australia is a signatory.[89] Although an infringement is not directly enforceable in a NSW court, an individual who has been adversely affected can now petition the Human Rights Committee of the United Nations under the provisions of the First Optional Protocol to the ICCPR which came into force in Australia on 25 December 1991.[90]

Even if it is possible to devise a valid preventive detention law it is a fundamental principle of a democratic society that, save for carefully defined exceptions relating to the law of bail, contempt, mental illness and migration, citizens shall not be imprisoned unless they have been convicted of a criminal offence following the finding of a tribunal of fact, beyond reasonable doubt. A law which authorises preventive detention of an individual who has not been so convicted (and who does not come within other well-defined exceptions) constitutes an infringement of a fundamental human right. Such a law represents a dangerous precedent and is open to abuse. Every judge who considered the CPA expressed misgivings about the law. Some have trenchantly criticised it. Justice Kirby described the Community Protection Bill 1994 (as it then was) as “a radical departure from our rule of law principles”.[91] Although it is possible to introduce procedural requirements (as to criteria, legal aid, review mechanisms and the like) such as those included in the CPA to reduce the risk of abuse, it is ultimately not possible to eliminate this risk. The balance of probabilities test (even at the Briginshaw level) is not a sufficient standard of proof in relation to the deprivation of liberty. There are serious practical problems (and hence potential injustice) in relying, as the CPA requires, on the prediction of future violent behaviour. The only similar legislative experiment, in Victoria, was a failure.[92] The obiter remarks of Justice Deane in Veen (No 2) do not apply to the CPA scheme for preventive detention. His Honour was there concerned with a statutory scheme for civil restraint (not in prison) of a dangerous person previously convicted of an offence.

If there is a “gap” in criminal laws and mental health laws, consideration should be given to suitable modification of those laws. It would be both naive and intellectually dishonest to deny that a limited number of people who have been demonstrably violent (including through convictions for violent offences) may pose a risk of future harm. But the acceptance that such a risk exists, in those circumstances, does not dictate any particular social response let alone the specific legislative response manifested in the CPA or kindred laws.

To identify the risk does not close off the risk allocation options. Bear in mind that of the group identified as potentially harmful, a substantial number will be dealt with by the criminal justice system (where the threatening behaviour amounts to a criminal offence), or is capable of attracting an application for an apprehended violence order[93] or the mental health system (where the person making the threats is susceptible to classification and treatment within its terms).[94]

Very few people indeed, who pose a relevant risk, fall between the cracks.[95] It should be noted that the law of assault requires only that the offender intentionally threaten the victim and causes him or her to feel fearful as a result. In certain circumstances the courts have held that a threat of future harm or a telephone threat may amount to an assault.[96] Yet politicians regularly invoked the mantra of community protection and pointed to a “gap” in the system of community protection to justify the CPA.[97]

Ironically, the “gap” argument was undermined by the very government seeking to rely on it. First, the criminal charges against Kable for which he might have been remanded in custody were studiously ignored.[98] Second, the Attorney-General specifically referred to amendments to the Crimes Act 1990 (NSW) dealing with threatening conduct and stalking which would have covered the threats alleged to have been made by Kable.[99] These comments were made in the middle of a speech about the imperative need for the CPA.[100] Finally, if the government had been serious about a gap in community protection, the CPA would logically have had a universal (as distinct from an ad hominem) application.[101]

Leaving aside cynical political arguments about populist law and order sentiment and the perceived benefit to government (at least symbolically) of harsh legislation of the kind to be found in the CPA, the real issue involves a utilitarian calculus as to who should suffer harm because of the potential risk of danger. On the one hand, there is the possibility of future harm to the community from violent conduct. On the other, there is the certainty that the subject of preventive detention will suffer the harm involved in incarceration. Whatever the conditions it is impossible to deny that deprivation of liberty is a substantial harm. The question is whether such harm is justified not as punishment for what she or he had done but as a response to potential harm which it is impossible to guarantee will occur.

Possible social responses include: do nothing (because the risk is minimal, because any intervention is more harmful than non-intervention, because one cannot contrive a perfect risk-free society and the current balance is appropriate); modify existing criminal justice or mental health laws to deal with perceived anomalies; develop laws to authorise judicial orders for treatment in limited circumstances; improve pre-release and post-release programs for convicted violent offenders to minimise future violent conduct; or introduce some form of preventive detention. This list is illustrative rather than exhaustive. It is merely intended to indicate that the existence of a problem of the kind identified by Attorney-General Hannaford did not inexorably dictate the selected solution.

The “gap” argument is also problematic insofar as there is no logical limit to its application. The criminal justice system, indeed the legal system, does not (and cannot) provide a perfect guarantee against crime. It is quite misleading to suggest that there is, was or ever will be, a seamless web of community protection via state action. A plethora of variables and discretionary decisions must be considered. Issues concerning crime definition, enforcement policy, reporting, deployment of resources and the like play influential roles. Moreover the cost of preventive detention can be massive.[102]

The above arguments apply to legislation which authorises preventive detention and is of general application. However, although the initial Bill took this form, it was subsequently amended so that the CPA applied only to one specific named individual - Gregory Wayne Kable. Some of the early constitutional challenges against the CPA were based on this remarkable feature of the law. It had been variously argued that the NSW parliament is not competent to enact such a discriminatory law which, in its essence, has penal consequences albeit it is expressed to relate to civil proceedings. These courts rejected submissions based on legal inequality. In support the courts have referred to the High Court decision in Leeth.[103] Mahoney JA held that private Acts directed at specific individuals have long been recognised as valid. It was hoped that the High Court would directly pronounce on the issue but it has been left tantalisingly unresolved.[104] The High Court was, however, generally troubled by the ad hominem nature of the legislation.[105]

However, notwithstanding the outcome as to constitutional challenges based on discrimination, it can be argued that such a law is fundamentally unjust. Levine J, regarded the ad hominem nature of the CPA as “a matter of controversy and of deep concern it certainly being a departure from the usual expectation as to legislation being enacted to have general application”.[106] He cites the learned American judge and jurist Benjamin N Cardozo who wrote:

One of the most fundamental social interests is that the law shall be uniform and impartial. There must be nothing in its action that savours of prejudice or favour or even arbitrary whim or fitfulness.[107]

One obvious response to the specific nature of the legislation would be to enact similar legislation in general terms.[108] According to Levine J: “If the legislature perceives a need to enact legislation of the kind that has been made personal to Mr Kable it is desirable that it operate generally”.[109] Indeed, as mentioned, this was the original intention of the former government. It was also adverted to as an option by both major political parties prior to the March 1995 election. However, although such an amendment would remove one objectionable feature of the legislation it may, ironically, make matters worse. The potential for abuse and the many other problems identified above could in this event be escalated. To make the legislation non-discriminatory would not redeem it as far as arguments as to due process and human rights are concerned. The Victorian experience is a salutary lesson.110

Human Rights Implications

The CPA and the legal challenges to it potentially raise a plethora of human rights issues including: the objection to punitive preventive detention as unjust (because of the lack of an offence, the lack of due process and the lack of proportionality involved); the question of the limits (if any) on the constitutional power of the state parliaments to pass laws which purport to violate human rights either because they are not laws “for peace, order (or welfare) and good government” or because there is an implied limitation on legislative power not to violate fundamental rights; and the extent to which the courts considering the CPA could have (and should have) had regard to relevant international human rights benchmarks in reaching their conclusions. Some of these issues overlap. Not all were comprehensively addressed at all levels of the litigation. Indeed, if anything, least attention was paid to these matters in the High Court

Preliminary Litigation

Giving judgment[111] in relation to the interlocutory application for a permanent stay of proceedings, Spender AJ obliquely considered human rights issues in the context of arguments concerning constitutional issues. His Honour summarised the applicant’s submission as follows: “the Act constitutes such a fundamental denial of due process and a reversal of values thought to be the bedrock of our political and legal systems, that it is beyond power and invalid”.[112]

Spender AJ rejected this argument (relying on the BLF case):

The powers of the New South Wales Parliament are not subject to a Bill of Rights, nor to any doctrine that there are rights so deeply embedded in our political and judicial systems that they cannot be modified or wholly repealed by the Parliament. Acting within its own constitutional sphere, Parliament is supreme and may do what it wishes.[113]

His Honour referred to obiter dicta remarks of Priestley JA in the BLF case to the effect that the Diceyan blue-eyed babies law was arguably such an extraordinary and evil law that it could not be for the peace, welfare and good government of NSW.[114] For his part, Spender AJ was unequivocal on this point: “I would go further: it would seem to me that such a law could not possibly be said to be for the peace, welfare and good government of New South Wales”.[115] However, the CPA could not be so characterised (according to Spender AJ) and the question was left open.

In delivering judgment[116] on an application for an IDO, Justice Hunter considered a number of human rights arguments, again in a constitutional context, such as: violation of legal equality, no imprisonment except following conviction for criminal charges and the “silent constitutional principles” referred to by Murphy J in Sillery v The Queen.[117] Justice Levine’s judgment[118] describes as “a melancholy moment in the law and the history of the administration of justice in this State”[119] his obligation to make a detention order under the CPA against Kable. Levine J was particularly concerned with the ad hominem operation of the law (“the fact that it is addressed to a specific member of the community is a matter of controversy and of deep concern”)[120] referring to the importance of uniform and impartial administration of the law.[121] Levine J advocates the introduction of generally applicable legislation, if such legislation is perceived as necessary by the legislature. His Honour notes that:

exquisite care must be taken [by the legislature] to avoid that which is intended to be a shield being converted into a weapon in the hands of the mischievous, the spiteful, the vindictive, the jealous, the revengeful or similarly motivated individual or individuals to use by way of actual or threatened false allegation against an innocent person who might then become the subject of enquiry.[122]

As Fairall points out,[123] it is not clear how parliament should embark upon let alone achieve this laudable objective. The judgment of Grove J[124] in response to an application for a second detention order, was restricted to an analysis of the CPA criteria and whether the evidence satisfied them. However, Justice Grove did remark, en passant:

The Community Protection Act has been much criticised. Its potential to infringe fundamental human rights has been recognised and the enactment of legislation such as this which enables detention of a citizen not serving a sentence for any crime committed nor awaiting trial for crime alleged has been said to represent a dangerous precedent. I agree entirely but no purpose will be served by my echoing comments which have fallen from almost every judge who has had to exercise some aspect of jurisdiction under this statute.[125]

In the leading judgment of the Court of Appeal, Mahoney JA directly considered the impact of preventive detention legislation on human rights:

An Act which authorises preventive detention may infringe – and certainly will create the danger of infringement of – the basic human rights which should underlie the laws of a modern democratic society. Any proposal for such an Act must have the closest scrutiny: the human rights which are at stake, those safeguarding liberty, are fundamental.[126]

But His Honour proceeded to argue that rights do not exist in a vacuum and that where a legitimate social purpose is served (viz the protection of the community from violence), there is a gap in the law[127] in affording such protection and the dangers to which the law is directed are “clear, weighty and present”,[128] a law such as the CPA may be justifiable. In such circumstances, there is no breach of human rights according to Mahoney JA.[129]

As in the earlier litigation, a number of human rights issues are considered by Mahoney JA in the context of constitutional arguments. These have already been discussed. In his concluding remarks Mahoney JA adverts to the possibility of abuse of legislation such as the CPA, recognises the danger it represents as a potential precedent and is keen to distance himself from general support of preventive detention laws. Clarke and Sheller JJA delivered very brief judgments agreeing with the decision to dismiss the appeal but commenting briefly on human rights issues. Clarke JA observed:

The principle that a citizen of the state is not to be imprisoned except on conviction for a criminal offence following the finding of a tribunal of fact that, beyond reasonable doubt, the citizen is guilty of that crime is fundamental to the democratic society in which we live ... A preventive detention order which enables the imprisonment of a person who has not been convicted of a crime offends against this principle and, prima facie, constitutes an infringement of a fundamental human right. Further, the enactment of legislation enabling the detention of citizens who have not been convicted of a crime, or who are not awaiting trial, in principle represents a dangerous precedent and opens the door to the possibility of abuse.[130]

Nevertheless, His Honour concluded that the CPA was valid and that the court was bound to enforce it. Sheller JA commented:

I share the concern that the Community Protection Act 1994 infringes a fundamental safeguard of the democratic rights of individuals in our community ... However essential to democracy is the acceptance of the sovereignty of the elected parliament subject only to constitutional restraints.[131]

The High Court: By eschewing a detailed consideration of human rights benchmarks and by not expressly disapproving punitive forms of preventive detention per se, and making invalidity of the CPA dependent on an esoteric analysis of the application of Ch III of the Federal Constitution to State Supreme Courts, the High Court has lost an opportunity to express its disapproval in principle of such a policy and left the door open for further legislation which validly evades the strictures of Ch III. A pyrrhic victory for justice may have become a pragmatic challenge for an ingenious parliamentary draftsperson.

The judgments of Chief Justice Brennan and Justice Toohey are silent on human rights issues. Justice Dawson endorses the supremacy of parliament (including the blue-eyed babies law). An oblique, rather lukewarm, hint that he may have some reservations about the CPA may be found in the penultimate sentence of his judgment: “Notwithstanding that the wisdom of the policy adopted by the legislation is open to question, the policy is a matter for the legislature”.[132]

Although Gaudron J does not use the language or benchmarks of human rights, she embodies due process principles in her critical analysis of the CPA. These principles are effectively subsumed under two notions: what is appropriate to the judicial process and the maintenance of public confidence in that process. Interestingly, the notion of equality before the law is dealt with as an aspect of the latter rather than as a “rights” argument.[133]

The human rights implications of the legislation are not expressly identified by Justice McHugh. However, His Honour leaves the reader in no doubt about the shortcomings of this law in terms of the normal judicial process. Parliament was determined to imprison Mr Kable after his sentence expired and although the Supreme Court was not “an automaton”,[134] the CPA certainly gave the appearance of making the Supreme Court an instrument which would do its bidding, given the express object of the Act and the extremely limited discretion available.[135] McHugh J also refers to the difficulty of predicting dangerousness (the only judge to do so) citing the works of Williams[136] and Wood[137]. _In essence, his concern is that the Supreme Court is, in substance, carrying out an executive function on behalf of the government.

Justice Gummow specifically refers to the erosions of the civil liberties and civil status of Kable which flow from the CPA. The conditional release provisions of the Sentencing Act 1989 (NSW) do not apply,[138] nor do the provisions of the Bail Act 1978 (NSW).[139] However, the CPA attracts to detention orders all statutes (other than the Sentencing Act) which impose civil disability by reference to the imposition of imprisonment or the serving of a term of imprisonment.[140] Justice Gummow refers to other types of non-judicial detention which have been condoned by the High Court.[141] These include powers of the parliament to punishment for contempt and of military tribunals to punish for breach of military discipline (which are well-recognised exemptions) and the cases of involuntary detention for mental illness or infectious disease (which are non-punitive in character). The detention authorised by the CPA is punitive in nature (as distinct from statutory description) and, according to Gummow J:

...speaks only ad hominem, applies proleptically the criminal law, determines the case by a civil standard, and provides directly for detention in prison. These are striking features of the legislation. There is, before imprisonment, no determination of guilt solely by application of the law to past events being facts found. The consequence is that the legislature employs the Supreme Court to execute, to carry into effect, the legislature’s determination that the appellant be dealt with in a particular fashion, with deprivation of his liberty, if he answers specified criteria.[142]

All of this leads Gummow J to conclude that the CPA is repugnant to the judicial process because it saps the appearance of impartiality in the court and undermines public confidence.[143]

International Benchmarks

Although various judicial officers made desultory references to human rights matters raised by the CPA, no sustained attempt was made to analyse relevant international human rights benchmarks. It is suggested that the reasoning of the courts would have been strengthened by such an analysis. Some of the potential issues are briefly surveyed below.

Preventive detention: No attempt is made in any of the judgments to explore international norms in relation to preventive detention. There is support for the view that there is a customary international human rights norm against arbitrary detention.[144] Also, Article 9(1) of the International Covenant on Civil and Political Rights (“ICCPR”) provides:

Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law.

However, it is equally clear that preventive detention which cannot be characterised as arbitrary does not constitute a violation of international human rights.[145] For example, the mechanism of administrative internment (detention without charge) by UK authorities in Northern Ireland between 1972 and 1976 was alleged by Ireland to have violated the human rights of internees. However, both the European Commission and European Court of Human Rights held that under the circumstances, the administrative internment did not violate Article 5 of the European Convention on Human Rights.[146]

Accordingly, the crucial issue is whether a particular form of preventive detention can be classified as arbitrary. Arbitrary, in its ordinary English language connotation, has been described as meaning: “subject to individual will or judgment”; “discretionary”; “not attributable to any rule or law”; “accidental”; “capricious”; “uncertain”; “unreasonable”; “uncontrolled by law”; “using or abusing unlimited power”; “despotic”; “tyrannical”; “selected at random”.[147] The term is clearly ambiguous and open to multiple interpretations. It has been the subject of extensive discussion in the context of Art 6(1) ICCPR which provides, inter alia, that “No one shall be arbitrarily deprived of his life”.[148] Caution must be exercised in seeking to transport the jurisprudence developed in one area to another. Yet it is suggested similar uncertainties would arise if one ventured such analogies: whether actions sanctioned by statute may qualify as arbitrary;[149] whether the notion of proportionality is relevant;[150] whether “arbitrary” can be equated with the phrase in Anglo-American jurisprudence “without due process of law”[151] and so on.[152] It has been argued that where preventive detention is “under the sole control of the authority effecting and administering the detention (that is, without some form of external and independent supervision)” that the process of preventive detention would per se be arbitrary.[153] Likewise, where there is prolonged incommunicado preventive detention and denial of the right to mount a legal challenge to such detention, there must be a strong argument that it could be classified as arbitrary.[154] When one assesses the CPA against these norms it could be argued that the preventive detention authorised is arbitrary because the legislation is an elaborate scheme designed to effect the sole objective of incarcerating Kable.[155] Its ad hominem nature is unreasonable and unjust. The measure is disproportionate to the social problem, having regard to other available legal measures. And the Supreme Court process is simply designed to lend credibility to the unwarranted incarceration.

Against this it can be said that the detention authorised by the CPA does not exhibit the features which are the hallmark of arbitrary detention. The prisoner is not kept incommunicado; his right to challenge the legality of the detention is specifically preserved;[156] the detaining authority and the arbitral authority are separate and independent; and the social need, in terms of community protection, renders the measure reasonable, proportional and justifiable in all the circumstances.[157]

Equality before the law: The ad hominem nature of the CPA acutely raises the issue of unequal treatment by the law. Fairall has argued that preventive detention laws may violate the right to equality before the law guaranteed by ICCPR.[158] Article 14(1) provides that all persons shall be equal before the courts and tribunals. Although the bulk of Article 14[159] deals with due process rights in the context of criminal trials, the key initial sentence in Art 14(1) is in general terms which would include preventive detention.[160] It was not strictly necessary for the courts to refer to the ICCPR in relation to equality before the law. This doctrine is already part of the common law. As Fairall has pointed out,[161] it was affirmed by Toohey, Deane and Gaudron JJ in Leeth v The Commonwealth.[162] The joint judgment of Justices Deane and Toohey referred to the “essential or underlying theoretical equality of all persons under the law and before the courts” which “is and has been a fundamental and generally beneficial doctrine of common law and a basic precept of the administration of justice under our system of government ...”[163] Unfortunately this issue was not pursued by the High Court in Kable except in the context of Ch III issues (see above).

Remedy: In the litigation challenging the CPA, the only remedy sought was a declaration of invalidity. Although such a declaration would normally provide a foundation for a common law claim for compensation for wrongful imprisonment without reference to international law, it is worth noting Article 9(5) ICCPR which provides that anyone who has been the victim of unlawful arrest or detention shall have an enforceable right to compensation.[164] This provision would assume more than academic status, however, if the government introduced legislation which sought to bar a civil claim by Kable (see below). In these circumstances, he would be entitled to lodge a communication with the Human Rights Committee pursuant to the First Optional Protocol to the ICCPR.[165]

Relevance of international norms: It is well-established that in Australia international norms are not legally binding unless they have been incorporated into domestic law.[166] This has not occurred as far as the ICCPR is concerned.[167] However, the ICCPR (and international norms of customary law) are relevant in clarifying ambiguity in both the common law and domestic legislation[168] or the proper scope of administrative decisions.[169] But the potential relevance of international norms as a guide to the development of Australian law is predicated on two conditions: first, the application of the norms to the situation in question; second, the existence of ambiguity. As far as Art 9(1) ICCPR is concerned, it would appear to apply. However, the CPA is very clear and accordingly prevails over this international norm. Much the same could be said in relation to Art 14(1). This does not mean that the international norms have no influence whatsoever. An individual who (having exhausted local remedies) claims that a right guaranteed by the ICCPR has been violated may lodge a communication with the Human Rights Committee pursuant to the First Optional Protocol to the ICCPR.[170] The Human Rights Committee is not a court. It expresses a view on the communication lodged, which is not binding on State parties to the ICCPR. However, the view may have moral suasion and lead the domestic government to effect legal change in conformity with the principles espoused.[171]

The Aftermath

Two developments in the wake of the High Court decision in Kable deserve brief mention: the civil claim for damages by Kable and the introduction of legislation which seeks to circumvent the court’s ruling.

The Civil Claim

Following his release from custody after the DPP failed to secure a further detention order[172] Kable left NSW and resided in far north Queensland for the next 12 months or so. Shortly after the High Court delivered its judgment on 12 September 1996 declaring the CPA invalid, solicitors for Kable gave notice to the NSW government of an intention to file a claim for damages for wrongful detention from 4 January 1995 to 22 August 1995.[173] The NSW Premier, Mr Carr, is reported to have vowed there would be no apology to Kable,[174] nor would the government contemplate compensation.[175] The Attorney-General, Jeff Shaw QC, is reported as having responded more moderately to the claim: “He is entitled to make an application for compensation. His application will be treated in the same way as any other”.[176] Prima facie, it would appear that Kable has a sound claim. There may be an argument by the government that it is protected against claims for acts performed in good faith. Certainly s 28 CPA stated: “No action lies against any person (including the State) for or in respect of any act or omission done or omitted by the person so long as it was done or omitted in good faith for the purposes of, or in connection with the administration or execution of, this Act”. However, as Justice Gummow pointed out: “In truth, there was no law to be administered or executed”. Once the CPA fell, s 28 fell with it.[177] Gummow J notes that s 35 of the Director of Public Prosecutions Act 1986 (NSW) purports to protect certain officers from liability but that no point was taken as to invalidity of that provision or any of its operations. This issue is likely to arise, in relation to some potential co-defendants, if the threatened civil suit is launched by Kable. There may also be problems in relation to assessment of damages but these are not insurmountable.[178] It is remotely possible that the NSW government could legislate to seek to prevent the civil claim. Such a statute would probably have no constitutional problems but would be a blatant denial of equality before the law and a violation of international human rights which could lead to a communication to the Human Rights Committee pursuant to the First Optional Protocol of the ICCPR.[179]

The Community Protection (Dangerous Offenders) Bill 1996

The other important recent development is the introduction by Mr Michael Richardson[180]of the Community Protection (Dangerous Offenders) Bill 1996 (the “CP(DO) Bill”). The avowed intention of the legislation is to circumvent the constitutional problems in the CPA. Mr Richardson believes that the High Court would strike down legislation which sought to empower mechanisms other than the Supreme Court to make preventive detention orders.[181] It is not clear why this would follow as long as the parliament chose a mechanism which was not an actual or potential repository of the judicial power of the Commonwealth. Nevertheless, the CP(DO) Bill is based on a scheme analogous to that already provided for in relation to Apprehended Violence Orders (“AVO”).[182] It is argued that the AVO scheme is insufficient to deal with dangerous offenders.[183] The proposal involves the classification of a person as a dangerous offender.[184] Such an application is made by the DPP[185] to the Supreme Court. The Court cannot make such an order unless it is satisfied on reasonable grounds that it is appropriate for the protection of a particular person or persons that such a classification be made.[186] It would appear that there is a civil onus in this respect.[187] The Bill makes it an offence punishable by imprisonment “for a specified term of 2 years or more”[188] to knowingly contact or approach a protected person. A register of protected persons is to be maintained by the Attorney-General.[189] A name cannot be placed on that list except at the request of, or with the consent of, the person so named and unless the Attorney-General is satisfied that person “has reasonable grounds to fear being deliberately contacted or approached, or deliberately harmed in any way, by a particular classified person”.[190]

The register of protected persons is to be kept secret[191] but the classified person is informed in writing by the Attorney-General of the protected person who fears contact from him or her.[192] Provision is made for the temporary revocation of a person’s status as a protected person[193] and for the revocation of a person’s classification as a dangerous offender.[194] The rationale behind the scheme is to avoid the legal and moral criticisms associated with preventive detention by creating a serious offence ie a classified person knowingly contacting or approaching a protected person. Such an offence would be dealt with on indictment in the Supreme Court. The normal criminal burden of proof – beyond reasonable doubt – would apply.[195] Although there are sound grounds for criticising mandatory minimum penalties,[196] it is well established that there is no constitutional impediment to the creation of such penalties, whatever their merits in terms of efficacy, cost, or humanity.[197] There is a remote possibility, perhaps, that the CP(DO) Bill scheme might still fall foul of the reasoning of the majority judgments in Kable, if the High Court took the view that the Supreme Court was still being used as an instrument of the Executive in the procedure for classifying offenders as dangerous.[198] Although the scheme is not ad hominem it is clearly restricted in its application. Moreover it is the trigger for the subsequent offence. And the problems of prediction and of a civil onus remain at the classification stage in the process. Effectively, it converts unwanted contact into a serious criminal offence on the basis of a predicted propensity for violence. Against this, it could be said the punishment is for an offence as distinct from preventive detention. A key distinguishing feature from the CPA could be said to be the ability of the classified person to control his or her conduct in relation to approaching or contacting the protected person.[199] Moreover, the Supreme Court is clearly obliged to deal with the offence in the normal way, in terms of due process. So far neither the government nor the opposition has embraced the CP(DO) Bill.


As far as a human rights perspective on preventive detention is concerned, the prospect is rather bleak. It has been suggested that arguments against such measures could be raised under Art 9 ICCPR (freedom from arbitrary detention) and Art 14 ICCPR (equality before the law). However, these international instruments are somewhat equivocal. Moreover, they are easily avoided by clear drafting which evades ambiguity.[200]

The courts have largely eschewed an analysis of human rights obligations and their potential impact in relation to the CPA. In the Supreme Court various judicial officers expressed their general concern about the CPA and its apparent conflict with human rights. However, they did not engage in a specific analysis, nor did their general concerns affect their conclusions that the CPA was valid.

In the High Court, the CPA was occasionally the subject of acerbic criticism by some of the majority judges, but this was largely within the paradigm of what is appropriate to the judicial process than an analysis of the law in relation to a human rights framework. The decision by the majority judges to strike down the CPA was based on a violation of Chapter III of the Federal Constitution. It should be observed that the High Court’s resolve in relation to equality before the law arguments has yet to be fully tested. This issue would be directly confronted if, for example, a State parliament introduced ad hominem legislation which did not infringe Chapter III (see discussion below) and a High Court challenge were to be mounted. Realistically, the prospect of this encounter is not great as any parliament minded to introduce such a law would now be likely to make it one of general application.

The outcome of the High Court challenge, in practical terms, is that the majority decision has left the door open to State governments to enact preventive detention __legislation as long as the precise objections to the CPA can be avoided.[201] Accordingly, the NSW (or any other State) government could readily devise constitutionally valid schemes in several ways.

First, the CPA could be redrafted to remove its constitutionally obnoxious features by investing judicial power in the Supreme Court. This transmogrification would involve, say: removal of the ad hominem aspect of the law, making it a law of general application; defining the threatening conduct as a criminal offence thereby attracting the ordinary due process features which relate to the hearing and determination of the matter including the normal criminal burden of proof. In those circumstances, the open-ended (and renewable) nature of the sanctions which could be imposed would not be a problem, constitutionally speaking.[202]

Second, the Kable majority decision could be by-passed by simply investing the powers in the CPA in a tribunal in which the judicial power of the Commonwealth could not be invested, as that decision is predicated on the incompatibility of the CPA with federal judicial power and the constitutional inability to vest such incompatible powers in courts which are capable of being repositories of federal judicial power.

As we have seen, shortly after the High Court announced its decision, a private member’s Bill was swiftly introduced in an attempt to circumvent Kable. This involved a third mode of avoiding the constitutional pitfalls identified by the majority judgments. In essence, the Bill proposes a scheme for the classification (by the Supreme Court) of dangerous offenders who will be guilty of a criminal offence if they seek to contact or approach a defined class of protected persons.[203] There are doubtless other possibilities.[204]

And politicians have reiterated their commitment to community protection legislation both during the election campaign of March 1995[205] and following the High Court decision in Kable.[206] It is unclear whether the CP(DO) Bill will be embraced by government but it is likely that some form of community protection legislation will be introduced to replace the CPA.

The title of this article suggests that there may be a trade-off between pragmatism and justice. But this requires clarification. Pragmatism implies that there are real, identifiable gains to be had at the expense of generally prevailing justice principles. Examples in our criminal justice system spring readily to mind: sentencing discounts for informers (the “just punishment” is compromised for information which may lead to the apprehension of other offenders); sentencing discounts for guilty pleas (the “just punishment” is compromised in return for savings to the system in terms of cost, administrative convenience and reduction in trauma to victims who are not required to give evidence and be cross-examined).[207]

In preventive detention the compromise of justice principles (detention without prior conviction) is obvious. The trade-off less so. For what is being achieved by the invocation of Draconian measures is not the avoidance of harm but the avoidance of potential harm which is empirically difficult to establish. The emotional imperative behind this is anxiety. In some cases the anxiety has an objective basis. Clearly former victims of an offender experience such fear and distress. So do people who are threatened with violence even if the threats are not translated into action.

But political responses which are unnecessary because fairer alternatives are available,[208] raise unrealisable expectations of public safety, depend on dubious and speculative assumptions about future behaviour, yet ride roughshod over human rights and due process and are clearly potentially open to abuse, cannot be justified in a democratic polity.[209]

[1] Aspects of this article are drawn from the author’s “The Community Protection Act 1994 (NSW): A working paper for the NSWLRC” (1996) and “Indefinite sentences: A working paper for the NSWLRC” (1996) parts of which have been published in NSW Law Reform Commission Sentencing Discussion Paper 33 (NSW Law Reform Commission, Sydney 1996) (“Sentencing”) pp 140-144 and pp 124-135, respectively.

[2] Associate Professor, Faculty of Law, University of NSW. Comments on an earlier draft by Keven Booker and by an anonymous reviewer are gratefully acknowledged.

[3] These include detention for mental illness, to prevent the spread of infectious diseases or the temporary detention of aliens pending deportation. In relation to the last-mentioned category, see: Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 110 ALR 97. The High Court held that a law which purported to direct that no court shall order the release of a person imprisoned by the Executive purports to derogate from the judicial power of the Commonwealth vested in courts by Ch III of the Constitution and is, accordingly, invalid.

[4] Community Protection Act 1990 (Vic) and Community Protection Act 1994 (NSW).

[5] In Victoria, Gary Ian David (also known as Gary Webb) and in NSW, Gregory Wayne Kable.

[6] For a detailed critique of the Victorian legislation see Fairall P “Violent offenders and protection in Victoria – The Gary David experience” (1993) 17 Crim LJ 40. The NSW law has been criticised by politicians (eg Dr Meredith Burgmann) and judges. See Justice Michael Kirby “Intellectual Disability and Community Protection: The Community Protection Bill 1994” [1994] AUJlHRights 25; (1994) 1 AJHR 398 at 399. Every judge who formally considered the CPA has expressed misgivings about it, irrespective of its perceived validity. The NSW Law Reform Commission (“NSWLRC”) recommended that the CPA be repealed: Sentencing, ibid p 145. See also Zdenkowski G “Draconian law a threat to our justice system” Sydney Morning Herald, 14 November 1994.

[7] [1996] HCA 24; (1996) 138 ALR 577.

[8] Toohey, Gaudron, McHugh and Gummow JJ, with Brennan CJ and Dawson J dissenting.

[9] The original law introduced by the then Coalition government was in general terms. An amendment successfully introduced by the then Labor Opposition restricted the law to Gregory Wayne Kable. However, during the election campaign of March 1995 which had a major “law and order” focus both major parties pledged to expand the law to general operation after the election. Labor won and did not carry out this promise. Following the High Court decision, the Attorney-General and Shadow Attorney-General made it plain that in their opinion, the invalidity was a technicality and that they both supported the spirit of the legislation.

[10] Lewis D “Carr gives short shrift to killer’s legal threat” Sydney Morning Herald _25 September 1996, p 5; “No apology for killer” Daily Telegraph 14 September 1996, p 19.

[11] By Mr Michael Richardson, Member for the Hills. It is designed to avoid the Kable decision.

[12] Human rights benchmarks may have been regarded as inapplicable. Prediction of dangerousness is arguably a matter for political judgment, not for the courts. For an argument that the High Court might have taken a broader approach, see below.

[13] However, Dawson J and Brennan CJ left no doubt that in their opinion there were no such limits to parliamentary supremacy.

[14] Arguably the issues are broadly relevant to all Australian jurisdictions as attempts may be made to emulate the objectives of the CPA by constitutionally permissible means. The only subject of the Community Protection Act 1990 (Vic), Gary David, committed suicide in custody and the law subsequently lapsed.

[15] See Zdenkowski G “Punishment Policy and Politics” in Laffin M and Painter M (eds) Reform and Reversal: Lessons from the Coalition Government in New South Wales 1988-1995 (MacMillan, Melbourne, 1995).

[16] The 19 March 1995 election had not been announced but both major parties were in campaign mode.

[17] This law and order campaign continued until the election on 19 March 1995. For a summary of the attempts by the then Labor Opposition and then Coalition government to outbid each other on law and order policies see Zdenkowski (1995) op cit p 231.

[18] This was certainly true in relation to the sentence for manslaughter. However, whether this is so, in view of the alleged violent threats, is controversial. See discussion below.

[19] There was no evidence that Mr Kable was the most dangerous person in the NSW prison system or why it had suddenly become necessary to develop a special law to authorise imprisonment of an offender at the expiry of his or her term. Thousands of offenders who had been convicted of violent offences had previously been released without a perceived need for preventive detention measures.

[20] Chester v R [1988] HCA 62; (1988) 165 CLR 611 at 618 per Mason CJ, Brennan, Deane, Toohey and Gaudron JJ.

[21] Strictly speaking, the last mentioned are not sentences but involve imprisonment of individuals who have not committed an offence on the basis of predictions about their potential violent behaviour. The CPA, which authorises such detention of a named individual, is discussed below.

[22] See Criminal Law Sentencing Act 1988 (SA), ss 22-23; Penalties and Sentences Act 1992 (Qld), Part 10; Sentencing Act 1991 (Vic), ss 18A-18P; Criminal Code Act 1983 (NT), ss 397-404; Sentencing Act 1995 (NT), ss 65-78; Criminal Code 1913 (WA), s 662(b); Criminal (Serious and Repeat Offenders) Sentencing Act 1992 (WA); Sentencing Act 1995 (WA), ss 98-101. For critiques see: Wilkie M “Crime (Serious and Repeat Offenders) Sentencing Act (1992): A Human Rights Perspective” (1992) 22 UWA Law Rev 197; Parke J and Mason B “The Queen of Hearts in Queensland: A Critique of Part 10 of the Penalties and Sentences Act 1992) (Qld)” (1995) Crim LJ 312; Fox R “Legislation Comment: Victoria Turns to the Right in Sentencing Reform: The Sentencing (Amendment) Act 1993 (Vic)” (1993) 17 Crim LJ 394.

[23] Distinguish additional fixed sentences imposed on habitual offenders in NSW and preventive detention orders imposed pursuant to the CPA. The NSWLRC recommended that indefinite sentences not be introduced: Sentencing, op cit p 135.

[24] Parke and Mason, op cit at 328. Even the protagonists of indefinite detention acknowledge that predictive techniques are flawed and that “false positives” are commonplace. See Floud J and Young W Dangerousness and Criminal Justice (Heinemann, London, 1981) _pp xvii, 60; Morris N “On ‘Dangerousness’ in the Judicial Process” (1982) 39 Record of the Association of the Bar of the City of New York 102; Wilson JQ “Dealing with the high-rate offender” (1983) 72 The Public Interest 52; Walker N “Aspects of detaining dangerous People” in Hamilton and Freeman (eds) Dangerousness: Psychiatric Assessment and Management (Gaskill, London, 1982) p 24.

[25] For a summary see Sentencing, op cit pp 131-134. For arguments in support of indefinite sentences, see pp 130-131.

[26] This is an abbreviated account derived largely from Director of Public Prosecutions (“DPP”) v Gregory Wayne Kable, (unreported, Supreme Court of NSW, Grove J, 21 August 1995) (“Grove J”). For a detailed factual history and a careful sifting of the extensive expert evidence see: DPP v Gregory Wayne Kable (unreported, Supreme Court of NSW, Levine J, 23 February 1995) (“Levine J”). For Kable’s own account of the events, see: Kable GW “The Law According to Gregory Wayne Kable” (1996) 32 Framed 3.

[27] Grove J, op cit at 1.

[28] It should be noted, however, that on 29 December 1994, the day before an Interim Detention Order was issued, Kable had been remanded in custody on 14 charges in the following circumstances. A summons against Kable had been issued under s 85S Crimes Act 1914 (Cth) requiring him to appear at Parramatta Local Court on 16 September 1994. Two further similar charges were added that day. These charges were adjourned several times. On 4 January 1995 bail was refused when they were adjourned to 16 and 17 February 1995. On 29 December 1994, 14 further charges under s 85S Crimes Act 1914 (Cth) were added. These were adjourned to 5 January (bail refused) and on that date further adjourned (bail refused) to 16 and 17 February 1995 to be heard with the original 3 charges. A full chronology appears in the judgment of Mahoney JA in Kable v DPP (1995) 36 NSWLR 374.

[29] Grove J, op cit p 3.

[30] But he could have been detained pursuant to the charges under s 85S Crimes Act 1914 (Cth). See note 28.

[31] For a maximum period of two years.

[32] The maximum period was now six months.

[33] The CPA was assented to on 6 December 1994 and came into force, by proclamation, on 9 December 1994.

[34] DPP v Gregory Wayne Kable (unreported, Supreme Court of NSW, Spender AJ, 19 December 1994) (“Spender AJ”) at 11.

[35] (1986) 7 NSWLR 372.

[36] DPP v Kable (unreported, Supreme Court of NSW, Hunter J, 30 December 1994) (“Hunter J”).

[37] The constitutional arguments included: inconsistency with federal law pursuant to s 109 Commonwealth Constitution; violation of legal equality; no imprisonment except following conviction for a criminal charge; separation of powers; and “silent constitutional principles” (based on obiter remarks of Murphy J in Sillery v The Queen [1981] HCA 34; (1981) 180 CLR 353 at 361).

[38] Levine J, op cit.

[39] In accordance with Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336.

[40] [1988] HCA 55; (1988) 166 CLR 1 at 8.

[41] Levine J, op cit at 187

[42] Ibid at 188

[43] Kable v DPP (1995) 36 NSWLR 374 at 284.

[44] See BLF Case at 378, 385, 406, 407, 411-413, 420 et seq; and the comments of the High Court in the Union Steamship case at 9-10.

[45] Kable v DPP (1995) 36 NSWLR 374 at 395.

[46] Ibid at 395.

[47] Grove J, op cit.

[48] That is to a high degree of satisfaction: Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336.

[49] Gregory Wayne Kable v DPP (NSW), Dawson, Toohey and McHugh JJ, 18 August 1995.

[50] Kable v DPP (NSW) [1996] HCA 24; (1996) 138 ALR 577.

[51] But Brennan CJ and Dawson J did express strong views about “fundamental rights”. “Fundamental rights” did not, in their view, impose any restrictions on parliamentary supremacy: ibid at 582 per Brennan CJ; at 590 per Dawson J.

[52] Ibid at 603.

[53] Ibid.

[54] Ibid at 606.

[55] Under those circumstances s 39(2) of the Judiciary Act 1903 (Cth), taken together with _s 77(iii) of the Commonwealth Constitution conferred jurisdiction on the Supreme Court to determine those questions.

[56] In this respect Toohey J differed from other members of the majority.

[57] Universality was not required.

[58] Kable v DPP (NSW) [1996] HCA 24; (1996) 138 ALR 577 at 609.

[59] The other majority members do not regard the federal link as dependent on a constitutional challenge.

[60] Kable v DPP (NSW) [1996] HCA 24; (1996) 138 ALR 577 at 610.

[61] Ibid at 612.

[62] Ibid at 615.

[63] Ibid.

[64] Ibid.

[65] Ibid at 617.

[66] Ibid at 624.

[67] Ibid at 627.

[68] Ibid at 628-9.

[69] Ibid at 630 per Gummow J.

[70] As described by Deane J in Re Tracy: Ex parte Ryan [1989] HCA 12; (1989) 166 CLR 518, cited by Gummow J, ibid at 631.

[71] Because it conferred neither judicial power nor a permissible ancillary function: ibid at 631.

[72] Ibid at 631-2. The limitation “at least as regards the Supreme Courts of the States” is curious.

[73] Ibid at 581. Dawson J also rejected the submission that the CPA was not a law (at 591).

[74] It was argued that the CPA made the NSW Supreme Court an automaton depriving it of any judicial function. The response of the NSW Solicitor-General on this point (which was persuasive, in my view) was that it confused the harshness and the specificity of the law with interference with the judicial function. The CPA conferred a discretion on an independent officer, the DPP, to invoke a statutory jurisdiction given to an independent body, the Supreme Court, which is exercisable by reference to specified statutory criteria: see Transcript of argument, p 69. Moreover, the automaticity of the outcome was contradicted by the facts. _Mr Kable was ordered to be detained for 6 months by Justice Levine. On the other hand, Justice Grove on 21 August, 1995 dismissed the summons seeking a further order precisely because the DPP was unable to satisfy the statutory criteria because circumstances had changed.

[75] Following Clyne v East (1967) 68 SR (NSW) 385 at 395, 400; the BLF case at 381, 400, 407, 410, 419-420. Dawson J agreed (Kable v DPP (NSW) [1996] HCA 24; (1996) 138 ALR 577 at 592-93, 594, 597).

[76] Subject of course, to the Commonwealth of Australia Constitution Act 1900 (Imp), the Statute of Westminster Adoption Act 1942 (Cth) and the Australia Act 1986 (Cth).

[77] Only restraints on power which were entrenched were immune from modification (absent satisfaction of the criteria in the entrenching provisions).

[78] Kable v DPP (NSW) [1996] HCA 24; (1996) 138 ALR 577 at 583. Dawson J agreed (at 594-99). A separate issue arises as to whether the legal powers invested in the Supreme Court could be characterised as non-judicial. According to Dawson J: “... it is not apparent that an order that the appellant be detained represents the exercise of executive or legislative power rather than of judicial power” (at 600). In support Dawson J relies on Palling v Corfield [1970] HCA 53; (1970) 123 CLR 52 at 58-59, 62, 64-65, 68-69.

[79] [1988] HCA 55; (1988) 166 CLR 1 at 10.

[80] (1991) 182 CLR 501 at 536.

[81] Kable v DPP (NSW) [1996] HCA 24; (1996) 138 ALR 577 at 589-590.

[82] See Morgan J “Equality Rights in the Australian Context: A Feminist Assessment” in Alston P (ed) Towards an Australian Bill of Rights (Centre for International and Public Law, Canberra, 1994).

[83] Likewise, Kirby P in the BLF case argues that the bulwark work against tyranny must be democratically elected governments who, if they contemplated such laws, would be rejected electorally. This view may be politically naive. Many governments have enacted immoral laws and been re-elected. Moreover, parliaments who would enact such laws are less likely to maintain a democratic system.

[84] [1988] HCA 14; (1988) 164 CLR 465 at 495.

[85] The most detailed judicial analysis of this argument was by Mahoney JA: Kable v DPP (1995) 36 NSWLR 374 at 376-77. Ironically, it was Mahoney JA who incorporated in his judgment (at 390-392) a detailed schedule of events relating to Mr Kable including the multiple charges preferred against him for allegedly making threats via the postal service in respect of which bail had been refused. Moreover, His Honour discussed (at 393) the appropriateness of making an order under the CPA notwithstanding that the person against whom it was made was in custody.

[86] NSW Legislative Council, Parliamentary Debates, Hansard, 27 October 1994, pp 4790-4791.

[87] These arguments are substantially based on the arguments raised in the judgment of Mahoney JA in Kable v DPP (1995) 36 NSWLR 374. Of course, the argument by Mahoney JA that there is no constitutional impediment to the enactment of such laws by a sovereign legislature with plenary powers such as the NSW parliament must be reviewed in the light of the High Court decision.

[88] Veen v R (No 2) [1988] HCA 14; (1988) 164 CLR 465 at 495.

[89] See especially Articles 9(1) and 14(1) (and possibly Art 7). See discussion below: Human Rights Implications.

[90] See Toonen v Australia, Communication No 488/1992, UN Doc CCPR/C/50/D/488/1992, 4 April 1992.

[91] Kirby, op cit at 399.

[92] See Fairall, (1993) op cit .

[93] See Part 15A Crimes Act 1900 (NSW).

[94] See Mental Health Act 1990 (NSW) and Mental Health (Criminal Procedure) Act 1990 (NSW).

[95] It is well-established that there are “false positives” in the prediction of dangerous behaviour. (See note 24)

[96] Zanker v Vartzokas (1988) 34 A Crim R 11; Barton v Armstrong (1969) 2 NSWR 451 (see obiter dicta of Taylor J as to telephone threats).

[97] For example, the Hon John Hannaford, see reference at note 86.

[98] He had been charged with three counts under s 85S of the Crimes Act 1914 (Cth) (using a postal service to menace another) before the CPA became law. By the time a PDO had been made Kable faced 17 such charges, in respect of which bail had been refused.

[99] Crimes (Threats and Stalking) Amendment Bill 1994 (NSW).

[100] The Hon John Hannaford, Attorney-General, NSW Legislative Council, Parliamentary Debates, Hansard, 16 November 1994, p 43.

[101] Of course, the original Bill was in general terms but the government subsequently accepted amendments which, inter alia, restricted its application to Kable.

[102] See Fairall, (1993) op cit at 52.

[103] Leeth v Commonwealth [1992] HCA 29; (1992) 174 CLR 455.

[104] Counsel for the appellant, Sir Maurice Byers QC pursued it in oral argument: see Kable v DPP (NSW) [1996] HCA 24; (1996) 138 ALR 577 at 586 per Dawson J. The High Court judgment unfortunately does not consider the argument apart from an oblique reference by Gaudron J who considers the issue of equal justice not as a separate issue but as an essential ingredient of the judicial process. “Public confidence cannot be maintained in a judicial system which is not predicated on equal justice”: Kable v DPP (NSW) [1996] HCA 24; (1996) 138 ALR 577 at 615.

[105] Ibid at 608 per Toohey J; at 615 per Gaudron J; at 626-7 per McHugh J; at 630, 634, 636 per Gummow J.

[106] Levine J, op cit at 188.

[107] Cardozo BN “The Nature of the Judicial Process” (Yale University Press, New Haven and London 1963) p 112, cited in Levine J, op cit at 187.

[108] This would not necessarily avoid constitutional invalidity according to the majority judgments in Kable. The ad hominem nature of the CPA was an obnoxious aspect of the law but simple surgical removal would not cure the Ch III problem.

[109] Levine J, op cit p 188.

[110] See Fairall, (1993) op cit.

[111] Spender AJ, op cit.

[112] Ibid at 11.

[113] Ibid at 12. (See note 128).

[114] Ibid.

[115] Ibid at p 13. Cf the views of Dawson J (in particular) and Brennan CJ in the High Court.

[116] Hunter J, op cit.

[117] [1981] HCA 34; (1981) 180 CLR 353 at 361.

[118] Levine J, op cit.

[119] Ibid at 187.

[120] Ibid at 188.

[121] Citing Cardozo J, op cit p 112.

[122] Levine J, op cit at 189.

[123] Fairall P “Before the High Court: Imprisonment Without Conviction: Kable v Director of Public Prosecutions[1995] SydLawRw 36; (1995) 17 Syd LR 573 at 580.

[124] Grove J, op cit.

[125] Ibid at 3-4.

[126] Kable v DPP (1995) 36 NSWLR 374 at 376.

[127] See discussion elsewhere questioning this assumption.

[128] Kable v DPP (1995) 36 NSWLR 374 at 379 per Mahoney JA.

[129] Ibid.

[130] Ibid at 394-5.

[131] Ibid at 395.

[132] Kable v DPP (NSW) [1996] HCA 24; (1996) 138 ALR 577 at 600.

[133] Note inconclusive debate on this matter in Leeth v The Commonwealth [1992] HCA 29; (1992) 174 CLR 455.

[134] A term used in argument by Senior Counsel for the appellant, Sir Maurice Byers QC.

[135] The response to this, as previously noted, is that Grove J determined not to order detention in relation to the second application because, after carefully weighing the evidence, he was not satisfied on the balance of probabilities as to the specified criteria.

[136] Williams CR “Psychopathy, mental illness and preventive detention: issues arising from the David case” [1990] MonashULawRw 10; (1990) 16(2) Mon LR 161 at 181.

[137] Wood D “A one man dangerous offenders statute – The Community Protection Act 1990 (Vic)” (1990) 17 MULR 457 at 502.

[138] Section 22(4) CPA.

[139] Section 29 CPA.

[140] Although Gummow J does not specifically refer to it, this would include, for example, legislation restricting access to the courts to prosecute civil suits (Felons (Civil Proceedings) Act 1981 (NSW)), and legislation restricting franchise. For a more detailed discussion, see ALRC, Sentencing: Prisons, ALRC DP 31, (AGPS, Canberra, 1987). Gummow J might also have mentioned the extensive loss of ordinary rights (beyond the loss of freedom) which flow from disciplinary measures, classification procedures, administrative segregation etc applying under the Prisons Act 1952 (NSW), as it then was.

[141] Chu Kheng Lim v Minister for Immigration (1992) 176 CLR 1.

[142] Kable v DPP (NSW) [1996] HCA 24; (1996) 138 ALR 577 at 634 per Gummow J.

[143] Ibid at 636.

[144] See Rodriguez-Fernandez v Wilkinson (D Kan 1980) 505 F supp 787 at 795-98, cited in Steiner HJ and Alston P International Human Rights in Context: Law, Politics and Morals (Clarendon Press, Oxford, 1996) p 797.

[145] Rule 95 of the Standard Minimum Rules for the Treatment of Prisoners (Ecosoc res 663 C (XXIV), 31 July 1957) refers to the treatment of persons arrested or imprisoned without charge, and implicitly recognises that preventive detention is valid in some circumstances. Likewise, see Body of Principles for the Protection of All Persons Under Any Form of Detention or Imprisonment (A/RES/43/173, 9 December 1988).

[146] Rodley N The Treatment of Prisoners Under International Law (Clarendon Press, Oxford, 1987) p 83.

[147] The Macquarie Dictionary (Macquarie University 1982) p 127.

[148] Dinstein Y “The right to life, physical integrity and liberty” in Henkin L (ed) The International Bill of Rights (Columbia University Press, New York 1981) pp 115-116; Ramcharan BG “The concept and dimensions of the right to life” in Ramcharan BG (ed) The Right to Life in International Law (Martinus Nijhoff Publishers, Dordrecht 1985) pp 15, 19-20; Nowak M UN Covenant on Civil and Political Rights: CCPR Commentary (NP Engel, Kehl 1993) pp 110-111.

[149] Dinstein, op cit p 116.

[150] Ramcharan, op cit p 20.

[151] Nowak, op cit p 110.

[152] The European Convention on Human Rights has taken a different approach. It provides, via Article 5, that “Everyone has the right to liberty and security of person” and that imprisonment of any kind as an exception to this principle is only possible in cases exhaustively set out in Article 5. See generally, Reynaud A Human Rights in Prisons (Directorate of Human Rights, Council of Europe, Strasbourg 1986) p 53. Of course, this shifts the ambiguity to the terminology in the particular exceptions. The issue is not a concern with the merits of the detention measure or decision but whether there has been conformity with the legal criteria specified and the decision has been made by the competent legal authority.

[153] Rodley, op cit p 266.

[154] Ibid p 272.

[155] The corollary of this is that, at international law, the detainee would be entitled to release (Art 9(4) ICCPR) and would have an enforceable right to compensation (Art 9(5) ICCPR).

[156] It is quite clear at international law that there is a right to challenge the legality of any detention and to be released if the detention is found to be unlawful: Rodley, op cit p 269.

[157] Mahoney JA is the only judge who specifically addressed the issue whether the preventive detention of Kable which prima facie amounted to a violation of human rights could be justified. He concluded that it was: “... the danger posed by Mr Kable, should he be released, is clear, weighty and present” Kable v DDP (1995) 36 NSWLR 374 at 393 This conclusion has been criticised by Fairall: “This aspect of the decision is highly doubtful. The passing of ‘one person’ preventive detention legislation can hardly be seen as a proportionate or rational response to the problem of social protection”: Fairall, (1995) op cit at 577-78.

[158] Fairall, (1993) op cit at 46-47; Fairall, (1995) op cit at 576.

[159] Subsections (2)-(7).

[160] There are also various references in the rest of Art 14 (1) to non-criminal litigation.

[161] Fairall, (1995) op cit at 575.

[162] [1992] HCA 29; (1992) 174 CLR 455.

[163] Ibid at 485.

[164] See also Art 2(3) which provides for guarantees of effective remedies (and enforcement), including compensation, when rights have been violated.

[165] See generally, Pritchard S and Sharp N Communicating with the Human Rights Committee: A Guide to the Optional Protocol to the International Covenant on Civil and Political Rights (Australian Human Rights Centre, Human Rights Booklet No 1, Sydney, 1996).

[166] Mathew P “International law and the protection of human rights in Australia: Recent trends” [1995] SydLawRw 15; (1995) 17 Syd LR 177.

[167] Except in relation to the partial implementation of Art 17(1) via the Human Rights (Sexual Conduct) Act 1994 (Cth).

[168] Dietrich v The Queen [1992] HCA 57; (1992) 177 CLR 292.

[169] Minister for Immigration and Ethnic Affairs v Teoh (1995) 69 ALJR 422.

[170] Pritchard and Sharp, op cit.

[171] As happened in the Toonen case (refered to at note 90).

[172] Grove J, op cit.

[173] Riley M and Humphries D “Kable to sue over law that kept him in jail” Sydney Morning Herald 13 September 1996.

[174] “No apology for killer” Daily Telegraph 14 September 1996, p 19.

[175] Lewis D “Carr gives short shrift to killer’s legal threat” Sydney Morning Herald _25 September 1996. Lewis writes: “A letter from Kable’s solicitors requesting compensation was thrown into a Parliament House garbage bin by Mr Carr at Question Time after he told the House that it was Kable who should be paying compensation.”

[176] “No apology for killer”, op cit.

[177] Kable v DPP (NSW) [1996] HCA 24; (1996) 138 ALR 577 at 645. Gaudron J, the only other judge to consider (obliquely) the issue of severability, agreed that the CPA as a whole was invalid (at 616).

[178] Often in cases of wrongful imprisonment for miscarriages of justice ex gratia payments are made, and these do not provide clear guidelines.

[179] See Zdenkowski G “Scales of justice out of kilter” Sydney Morning Herald, 18 October 1996. Arguably, such legislation would violate the following provisions of the ICCPR: Art 2(1) (prohibition on discrimination based on status); Art 2(3) (denial of an effective remedy); Art 3 (equal rights); Art 9(5) (enforceable right to compensation for unlawful detention); Art 16 (the right to recognition as a person before the law); Art 26 (equality before the law).

[180] MP for The Hills in the NSW Parliament.

[181] Second Reading Speech, NSW Legislative Assembly, Parliamentary Debates, Hansard, _31 October 1996, p 10

[182] See Part 15A Crimes Act 1990 (NSW).

[183] Second Reading Speech, op cit p 11.

[184] Only persons convicted of an offence of serious violence – viz murder, attempted murder, manslaughter and various forms of sexual assault – are eligible: CP(DO) Bill cl 4. A person under the age of 18 cannot be so classified: cl 5.

[185] CP(DO) Bill cl 4.

[186] CP(DO) Bill cl 5.

[187] Query whether the courts would apply the Briginshaw standard in this context.

[188] It is clearly intended to be a mandatory minimum term of two years because such a penalty is deemed necessary as a deterrent: Second Reading Speech, op cit p 11.

[189] CP(DO) Bill cl 8(1).

[190] CP(DO) Bill cl 48(2) and (3).

[191] CP(DO) Bill cl 9.

[192] CP(DO) Bill cl 8(4).

[193] CP(DO) Bill cl 10.

[194] CP(DO) Bill cl 11.

[195] The CP(DO) Bill does not specifically refer to this but, in the absence of statutory directions to the contrary, the ordinary common law rules would apply.

[196] Australian Law Reform Commission, Sentencing: Penalties, ALRC DP 30 (AGPS, Canberra, 1987) p 118.

[197] Palling v Corfield [1970] HCA 53; (1970) 123 CLR 52.

[198] NSW DPP Nicholas Cowdery QC has reportedly expressed the view that it would breach the Constitution: Riley M “Legislation to protect victims ‘madness’” Sydney Morning Herald _26 April 1997.

[199] Contrast the position of Kable under the CPA. As various members of the High Court pointed out there was nothing Kable himself could do to prevent the CPA being invoked against him.

[200] Subject, of course, to the indirect remedy that individuals may have via a communication pursuant to the First Optional Protocol to the ICCPR. See Pritchard and Sharp, op cit.

[201] Of course, the minority judgments did not think there was a constitutional obstacle to the CPA in the first place.

[202] Despite the High Court’s assertion that, at common law, proportionality should be the governing principle (see Veen (No. 2) [1988] HCA 14; (1988) 164 CLR 465) that court has not, to date, expressed any reservations about the constitutional validity of open-ended sanctions. Statutes authorising such sanctions (following conviction for an offence) are to be found in several Australian jurisdictions, see note 22.

[203] See CP(DO) Bill.

[204] Justice McHugh observed: “The Parliament of New South Wales has the constitutional power to pass legislation for the imprisonment of a particular individual. And that is so whether the machinery for the imprisonment be the legislation itself or the order of a minister, public servant or tribunal. Moreover there is no reason to doubt the authority of the State to make general laws for preventive detention when those laws operate in accordance with ordinary judicial processes of the State courts” [1996] HCA 24; (1996) 138 ALR 577 at 626-27.

[205] Both major parties promised to introduce a generally applicable version of the CPA if they were elected. The Labor government has not yet acted on this promise. Nor, however, did it act on the recommendation of the NSWLRC to repeal the CPA in April 1996, well before the High Court declared it invalid: Sentencing, op cit p 135.

[206] Both major parties played down the significance of the decision and referred to it as a technicality. Shadow Attorney-General Hannaford expressed no regret at having introduced the CPA: See “No apology for killer”, op cit.

[207] See generally, Zdenkowski G “Contemporary Sentencing Issues” in Chappell D and Wilson P (eds) The Criminal Justice System: the Mid-1990s (Butterworths, Sydney, 1994).

[208] For the reasons outlined earlier, the “gap” argument cannot really be sustained.

[209] For an eloquent review of the unacceptable nature of the CPA, see Fairall, (1995) op cit at 580.

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