The only legally significant distinction between the Fardon legislation and Kable was that the Kable legislation singled out only Kable, whereas the Fardon legislation was of general application. Both dealt with assessment of future risk of serious offenders who had been convicted and served their original sentence i.e. preventative detention. Fardon involved an “Act empowering State court to order continuing detention of persons convicted of serious sexual offences after expiry of their sentence where there is an “unacceptable risk” of the prisoner committing a serious sexual offence in the future”.

As Gleeson CJ explained in Fardon regarding Kable:

The decision in Kable established the principle that, since the Constitution established an integrated Australian court system, and contemplates the exercise of federal jurisdiction by State Supreme Courts, State legislation which purports to confer upon such a court a function which substantially impairs its institutional integrity, and which is therefore incompatible with its role as a repository of federal jurisdiction, is invalid.

The New South Wales legislation in question in that case provided for the preventive detention of only one person, Mr Kable. As was pointed out by Dawson J, the final form of the legislation had a number of curious features, because of its parliamentary history. It was originally framed as a law of general application, but an amendment confined its application to the appellant. The object of the statute in its final form was said to be to protect the community by providing for the preventive detention of Gregory Wayne Kable. Toohey J said that the extraordinary character of the legislation and of the functions it required the Supreme Court to perform was highlighted by the operation of the statute upon one named person only. In that respect, he said, the statute was virtually unique. Senior counsel for the appellant in the case argued that the legislation was not a carefully calculated legislative response to a general social problem; it was legislation ad hominem. That argument was accepted. The members of the Court in the majority considered that the appearance of institutional impartiality of the Supreme Court was seriously damaged by a statute which drew it into what was, in substance, a political exercise.

The Fardon legislation by contrast was characterised as follows:

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

The High Court didn’t decide whether the power conferred was judicial in character as such, because it didn’t need to do so. Separation of powers doesn’t apply at State level so State Parliaments are free to confer non-judicial/executive power on state courts as long as it is compatible with judicial power in the sense explained above i.e. it doesn’t serve to undermine public confidence in the institutional integrity, independence and impartiality of the court.

However, the more recent decision of the Court in Thomas v Mowbraywas based on the proposition that the power to make control orders against terror suspects after an assessment of future risk was a so-called “chameleon” power. It could be conferred on either the judiciary or the executive government and would be exercised differently (assume a different “colour”) depending on which arm of government it was conferred on. The High Court needed to decide whether the pwoer was (or was capable of being) judicial in character because the control order power was conferred on federal courts which are subject to formal constitutional separation of powers.

On that reasoning, the power conferred on the Queensland Supreme Court in Fardon was judicial in character because it was conferred on a court, but would have been executive in character if conferred on an executive body!!! However, as I said, there’s no need to make that distinction at State level.

David died, so that was that. I had thought that Kable the specificity was a problem but my reading was that they also disapproved very strongly of the idea of judges making such prospective decisions. Fardon as I understand it differs in that the decision is essentially judicial: these are the facts and here is the consequence; slightly less so than a trial but slightly more so than an as-yet-unconvicted terrorist (although there are certainly conceivable cases which would be so open-and-shut, leaving aside the question of evidence).

Maybe I read too much into it (and I haven’t really read Fardon since it came out).

On the bill of rights front, were in furious agreement except for the following points:

1. Id be happy enough with a Commonwealth legislative scheme along the lines you propose;

2. I think the free speech right should remain confined to political discussion, albeit that the definition of political should be widened to include religious questions (which more often than not involve political questions, especially these days) and questions concerning the fitness and performance of the judiciary (which have been held by courts at state level not to be political notwithstanding that Parliament dismisses them for misbehaviour or incapacity). A more general right to free speech runs foul of potentially competing rights to privacy and reputation, which would then need to be dealt with in some way and prioritised. Also a “due process” right would be enough to restrain the sillier aspects of Conroy’s current attempts to censor the Internet, and I would not like to see a general free speech right able to be employed to strike down reasonably sensible laws to protect kids from Internet porn etc such as those struck down in ACLU v Reno (1 and 2).

3. I dont think its either necessary or desirable to create a general right to jury trial for all offences including minor ones. I think it should be confined to serious crimes defined by reference to the number of years of imprisonment the crime potentially carries. Moreover, I think such a bill of rights provision should leave sufficient room for particular questions of expert evidence to be determined either by the judge alone or sitting with an expert assessor. This is a particular hobby horse of mine as you might have noticed from a recent post. I dont think the commonsense of juries assists in reliably assessing expert evidence that in many cases jurors have Buckleys chance of understanding. Mostly I suspect they just decide it on the basis of which conflicting expert acts most convincingly like Marcus Welby MD (or some present day wise, fatherly TV doctor figure – I dont watch those sorts of shows).

4. I think any due process freedom should expressly make clear that it must not be used to entrench any form of substantive due process. The US 5th and 14th amendments have been used in that way:

(a) to entrench laissez faire economic freedoms in the early part of the 20th century when the USSC had a conservative majority, and
(b) to entrench civil liberties like gay rights and abortion in the latter part of the 20th century when the Court had a liberal majority.

While Im in no sense an opponent either of gay rights or abortion, I think using a due process clause to substantively entrnech ANY rights is dishonest and constitutionally illegitimate. However, unless the limitation is made clear it would be open to a future court to apply US precedent to interpreting a due process clause.

5. The Commonwealth Constitution provisions for freedom of religion (s116) and property rights just compensation (51(xxxi)) should be extended to cover the States. That too could be done by ordinary federal legislation which WOULD be entrenched so far as the States were concerned because it would be enacted under the external affairs power partially implementing the terms of the ICCPR. This also applies to all the rights youre advocating, because all are contained in one form or another in the ICCPR.

6. I think the right to counsel ought to be conditioned by the same qualifications as the High Courts Dietrich doctrine already is, namely that the right to counsel at public expense only applies to serious crimes and as long as the accuseds inability to afford their own counsel is not their own fault (e.g. deliberately divesting assets). Note that two Justices, Gaudron and Deane JJ, asserted that the Dietrich right to counsel was grounded in constitutional implications derived from Chapter III (and thus already entrenched), although I suspect that position would not command much support on the present HCA bench.

The Kable/NSW legislation was certainly struck down by the High Court as you say. However this was essentially because it was expressly specific to Kable himself rather than a general regime providing for preventative detention of still-dangerous criminals at the expiry of their sentences, in effect conscripting the Supreme Court into “rubber-stamping” decisions of the executive government. Thus it was held to be incompatible with the Commonwealth Constitution which provides for State courts to be vested with federal judicial power. A law of that sort was likely to undermine public confidence in the institutional integrity, impartiality and integrity of the judiciary. This has become known as the Kable doctrine.

A later Queensland law which created a general regime for preventative detention of still-dangerous criminals at the expiry of their sentences was held not to offend the Kable doctrine in Fardon.

Garry David was subjected to an earlier Victorian version of a general regime for preventative detention of still-dangerous criminals, which DID involve the Supreme Court in making or approving the decision. It wasn’t subject to High Court challenge AFAIK and wasn’t struck down. The law was ultimately either repealed or lapsed due to expiry of a sunset clause (I’m not sure which but will check when I get time).

Veen was apparently subject to a statutory scheme involving restraints on liberty after his release, but apparently the restraints were essentially civil rather than criminal and certainly did not involve his being kept imprisoned after expiry of sentence nor did it involve the courts in making the decisions about that. For more detail see George Zdenkowski, ‘Community Protection Through Imprisonment Without Conviction: Pragmatism Versus Justice‘ (1997) Australian Journal of Human Rights 1

In other words they said that only a Judge would not be competent to impose a control order on the basis of apprehended crime, if I understand correctly.

Veen is a red herring, my memory played tricks on me. I had thought that he was also the subject of such an order (and perhaps he was later in life) but his High Court appearances were on sentencing.

I do however support a bill of rights along the lines you suggest.

You should note, however, that we already have two-thirds of the first amendment, partly implied partly express. Likewise with the fifth – all we really want from that is the due process clause, and the tenth. The fourth I have doubts about, the seventh I don’t think is helpful at all.

This would seem to suffice as additions:

1 Neither Parliament nor any State shall make any law abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble.
2 No person shall be deprived of life, liberty, or property, without due process of law.
3 In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial before an impartial jury, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.
4 Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.
5 The enumeration in this Constitution of certain rights, shall not be construed to deny or disparage others, which are inherently retained by the people.

Religion (‘the establishment clause’ of the first amendment) and just terms (the ‘takings clause’ of another) are already in there.

Nope, who are they?

Even with the terrorist threat I still find the whole idea disturbing. Bring on a proper bill of rights in the constitution. Let’s have the first to the nineth except the second and third. I’m not sure the 10th is necessary with our constitution, but put it in if it is not already covered. Oh, and get rid of external affairs as a basis for increasing the field of legislative authority.

I think the question of ‘appropriate judicial function’ is a very important and difficult one. I think that here, I (almost? – it is difficult!) agree with Hayne and Kirby JJ(!). But your concerns about letting the public service exercise these functions are the obvious counterweight. I recall that at law school I tended to think that the judiciary should exercise this kind of role all the time, on the same analysis. That put me at odds with a fair number of High Court decisions!

Now I give greater weight to the judicial role, possibly too much so. Nonetheless, I am uncomfortable with this situation where as the minority point out, the Judge is almost required by the limited terms of his decision-making power to rubber-stamp a departmental decision.

Could some reasonable compromise be a quasi-judicial appointment? ie appoint someome requiring 60% approval by parliament for a fixed term exceeding the the maximum life of two consecutive parliaments? Even better, appoint a panel of three, with the actual consultee chosen by ballot each time?

http://www.theaustralian.news.com.au/story/0,25197,25356427-601,00.html

… legislature and its slavish thrall to the baying, unwashed, racist, xenephobic, misogynist, Islamophobic (do I REALLY need to go on) wretched hoi polloi!

You really surprised me, I was expecting the sentence to end with “Prime Minister”.

But seriously, Howard’s saber rattling was never popular with the Australian people (Howard admitted as much himself). Even after the Daily Terrorgraph had their splash of hate speech and the hollow rain of US propaganda fell into our TV set, people still called a spade a spade and they still knew an oil war when they saw one. It remains as important as ever for all parties concerned (particularly the younger generation) to be familiar with Herman Goering’s work…. Hmmm, I wonder if there’s scope for a video game on this topic?

No John, you REALLY don’t. Unless you mean “go on Australia’s Vacuousest Blowhards Season 4 – The Quickening“, in which case on you go.

Great analysis Ken.

And yet you bally-hoo the HC’s – or let’s be more honest, the legal academic “Public International Law” Luvvies – love of substituting this power for the tedium of the legislature and its slavish thrall to the baying, unwashed, racist, xenephobic, misogynist, Islamophobic (do I REALLY need to go on) wretched hoi polloi!

To wit, your view is just as Stepford, and offensive to all believers in democracy, as the bovine unnuanced rhetoric sermonised by all the other white, bourgeois, baby-boomer, academic, leftist male blogosphere.

I hope this helps.