Zdenkowski, George --- "Community Protection Through Imprisonment Without Conviction: Pragmatism Versus Justice" [1997] AUJlHRights 3; (1997) 3(2) Australian Journal of Human Rights 8
[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 The NSW Law Reform Commission (“NSWLRC”) recommended that the CPA be repealed: Sentencing, ibid p 145.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.
[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.