Jacka v Australian Capital Territory and Anor [2014] ACTCA 49

Parties: Mitchell Jacka (Appellant) Australian Capital Territory (First Respondent) Chief Executive of the Department of Justice and Community Safety of the Australian Capital Territory (Second Respondent)

Representation: Counsel Mr F J Purnell SC with Dr J Stellios (Appellant) Mr P Garrisson SC with Ms H Younan (First and Second Respondents)

Solicitors Ken Cush & Associates (Appellant) ACT Government Solicitor (Respondents)

File Number: ACTCA 74 of 2013

Decision under appeal: Court/Tribunal: Supreme Court Before: Refshauge ACJ Date of Decision: 1 October 2013 Case Title: Mitchell Jacka v Australian Capital Territory and Chief Executive of the Department of Justice and Community Safety of the Australian Capital Territory Citation: [2013] ACTSC 199 Court File Number: SC 834 of 2009 PENFOLD J:

1. Mitchell Jacka has appealed against orders made by Refshauge J (Mitchell Jacka v Australian Capital Territory and Chief Executive of the Department of Justice and Community Safety of the Australian Capital Territory [2013] ACTSC 199) dismissing a challenge to the validity of Mr Jacka’s imprisonment for two separate periods of several months each. The custodial terms resulted from the cancellation by the Sentence Administration Board (the Board) of periodic detention ordered as part of two separate sentences imposed in the Magistrates Court some months apart.

2. Three grounds were argued in the challenge before Refshauge J. The matter was heard with a similar challenge brought by a Mr Lewis. In dismissing Mr Jacka’s challenge, his Honour referred to and relied on his reasoning in Mr Lewis’s matter (Lewis v Chief Executive of the Department of Justice and Community Safety of the Australian Capital Territory (2013) 280 FLR 118 (Lewis)). The current appeal relates to the conclusions of Refshauge J that Mr Jacka’s three grounds of challenge were not well-founded, but most of his Honour’s reasoning that is challenged in this appeal is actually found in the judgment in Lewis.

3. Refshauge J dealt with three grounds of challenge to the validity of the imprisonment, which his Honour explained as follows:

4. ... the sections were said to: (a) invest in the Board part of the judicial power of the Commonwealth, contrary to the separation of that judicial power prescribed by Ch III of the Australian Constitution; or (b) invest in the Board the power to interfere with the exercise of the judicial power of the Commonwealth by a court of the ACT, contrary to the separation of that judicial power proscribed by Ch III of the Australian Constitution; or (c) undermine the independence and authority of the courts of the ACT, in a manner inconsistent with those courts’ exercise of the judicial power of the Australian Commonwealth. 27. As those sections were said to be invalid, it was further alleged that the declarations that the orders of the Board on 27 May 2008 and 17 March 2009 did not provide lawful authority for the chief executive to detain Mr Jacka because they were based on those sections which, it was asserted, were invalid, and so could not authorise the orders that were made.

5. His Honour summarised his conclusions as follows:

6. In summary, I held that the decisions of the Board were not an exercise of the judicial power because there was no adjudgment of criminal guilt, no imposition of a penalty or sentence for breach of the law and no review, cancellation or variation of a judicial order. 32. I further held that, were I to be wrong about that, such power, even were it to be judicial power, could be invested in the Board, since the Australian Capital Territory, as a polity, was not subject to the doctrine of the separation of powers such as has been held to bind the Commonwealth. 33. Finally, I held that the investment of these powers did not offend against the principles of Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51 because the investing of the relevant powers in the Board did not interfere with or impair the institutional integrity of the courts of the ACT.

7. I have had the opportunity to read the judgment prepared by Gilmour J. I agree, for the reasons given by his Honour: (a) that the power conferred on the Board by ss 68(2)(f), 69, 79 and 82 of the Crimes (Sentence Administration) Act 2005 (ACT) in relation to an offender’s failure to complete two or more weekends of periodic detention is not judicial power and the relevant provisions are not invalid on that basis; and

(b) that the conferral of those powers on the Board did not offend against the principles set out in Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51 (Kable).

6. I also agree with his Honour’s view that his conclusions, that there has been no invalid conferral of judicial power on an executive body and that there has been no breach of the Kable principles, are sufficient to dispose of this appeal, and that accordingly, for the reasons given by Gilmour J, this Court should not address Refshauge J’s conclusion that if the power concerned were judicial power, it could in any case have been validly conferred on the Board because the Australian Capital Territory is not subject to the doctrine of separation of powers.

7. I would add to Gilmour J’s remarks one further comment about the argument that the Board, in cancelling a periodic detention order and ordering the full-time imprisonment of the offender, is determining the contents of the rights and liabilities as between the offender and the state and that those rights and liabilities are therefore no longer defined by the original court order operating with the Crimes (Sentence Administration) Act.

8. Section 82 of the Crimes (Sentencing) Act 2005 (ACT) is relevantly as follows:

(1) The court must ensure that reasonable steps are taken to explain to the offender (and in language the offender can readily understand)— (a) the reason why the sentence of imprisonment is imposed, and why no penalty other than imprisonment is appropriate; and (b) the purpose of the sentence; and (c) ...; and (d) if the order sentencing the offender to imprisonment sets a periodic detention period—in general terms, the offender’s periodic detention obligations under the Crimes (Sentence Administration) Act 2005 and the consequences if the offender breaches the obligations;

9. There is a clear legislative intention that a judicial officer who includes a periodic detention order in a sentence not only adopts the consequences of that order as part of his or her sentencing disposition but also points out to the offender those consequences, including the liabilities of the offender in the event that he or she does not comply with the periodic detention order.

10. In my view, this further undermines the proposition that in cancelling a periodic detention order in accordance with the relevant legislation, the Board is in any way interfering with the contents of, rather than simply implementing, the rights and liabilities determined in the exercise of judicial power by the judicial officer concerned.

11. I agree with Gilmour J that the appeal must be dismissed, with costs. I certify that the preceding eleven paragraphs numbered [1] to [11] are a true copy of the Reasons for Judgment of her Honour Justice Penfold

Associate:

Date:

GILMOUR J:

12. The appellant’s periodic detention set as part of his sentence of imprisonment for conviction of a certain driving offence was, in May 2008, cancelled by the Sentence Administration Board (board) under s 68(2)(f) read with s 69 of the Crimes (Sentence Administration) Act 2005 (ACT) (the Sentence Administration Act). The board then ordered, pursuant to s 82 of that Act, that he be placed in the custody of the chief executive to serve the relevant part of his sentence by imprisonment under full-time detention.

13. At issue in the appeal is the constitutional validity of s 68(2)(f) as well as ss 69, 79 and 82 of the Sentence Administration Act. The appellant contends that the exercise of power by the board under s 68(2)(f) to cancel the appellant’s periodic detention involved an exercise of judicial power. Further he contends that the exercise of judicial power involved in the board’s cancellation decision can be exercised only by a Territory court in the course of resolving, with an exercise of Commonwealth judicial power under s 71 of the Constitution, the federal matter that is triggered by s 76(ii) of the Constitution. Consequently, he submits that the conferral of the cancellation power on the board, and the exercise of that power by the board to cancel the appellant’s periodic detention, are invalid. Lastly, the appellant contends that the conferral on the board of the cancellation power offends against the principles set out in Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51.

14. I am of the opinion that the first challenge to the validity of these provisions fails.

15. It is only if the first ground of challenge were made out that it would be necessary to consider the second ground. I am conscious of the precept of long standing that constitutional questions should not be decided unless it is necessary to do justice in the given case and to determine the rights of the parties: ICM Agriculture Pty Ltd v The Commonwealth of Australia (2009) 240 CLR 140 at [141] per Hayne, Kiefel and Bell JJ and the cases there cited. These principles apply a fortiori to an intermediate appellate court addressing an area of developing High Court jurisprudence. The rationale for such an approach includes that it is judicially economical and avoids unnecessary conflict between the judicial and other arms of government, thereby enhancing the standing of each: Multicon Engineering Pty Ltd v Federal Airports Corporation (1997) 47 NSWLR 631 at 642 per Mason P. This was adopted by the Full Court in Telstra Corporation Ltd v Hurstville City Council (2002) 118 FCR 198 at [48]. The issues raised by the second ground of challenge may be fairly so characterised. They are not of the kind described by Martin CJ in Rizhao Steel Holding Group Co Ltd v Koolan Iron Ore Pty Ltd (2012) 43 WAR 91 at [98].

16. Accordingly, I do not propose to determine the second ground. The third ground fails essentially for reasons which underpin my conclusions as to the first ground. Sentencing legislation in the ACT

17. The statutory regime for periodic detention in the Australian Capital Territory (ACT) is contained in the Crimes (Sentencing) Act 2005 (ACT) (the Sentencing Act) and the Sentence Administration Act.

18. Legislation to similar effect existed in New South Wales (Periodic Detention of Prisoners Act 1981 (NSW)) and Queensland (the Weekend Detention Act 1970 (Qld)) but no longer does. The ACT is now the only jurisdiction in Australia that provides this sentencing option.

The Sentencing Act

19. The objects of this Act include providing a range of sentencing options as well as flexibility in sentencing: s 6(b) and (d).

20. Section 11 of the Sentencing Act provides the curial power to order that a sentence of imprisonment be served by periodic detention. If an offender is convicted of an offence and has been sentenced to imprisonment (s 11(1)), “[t]he court may, in the order sentencing the offender to imprisonment, set a period of the sentence of imprisonment (a periodic detention period) to be served by periodic detention” (s 11(2)).

21. The periodic detention period “may be for all or part of the offender’s sentence of imprisonment” (s 11(3)(a)). The court “may also recommend any condition, not inconsistent with this Act or the Crimes (Sentence Administration) Act 2005, that the court considers appropriate for the offender’s periodic detention” (s 11(5)).

22. Part 5.4 identifies the criteria for eligibility and suitability for the setting of periodic detention as part of the sentencing order (ss 77, 78 and 79).

23. The court by s 77 must not set a periodic detention period for an offender unless, amongst other things, it is satisfied that such detention is suitable for the offender and that the offender has signed an undertaking to comply with the offender’s periodic detention obligations under the Sentence Administration Act.

The Sentence Administration Act

24. The main object of this Act is to ensure, as far as practicable, that sentences are given effect in accordance with the Act and the Corrections Management Act 2007 (ACT) (s 6).

25. Part 5.2 prescribes the obligations that attach to periodic detention. Section 42(1) provides that “[a]n offender must serve periodic detention in the offender’s periodic detention period in accordance with this part”. Section 42(2) provides that:

To serve periodic detention, the offender must, during the periodic detention period -

(a) perform periodic detention under part 5.3 (Performing periodic detention); and

(b) comply with the core conditions of the offender’s periodic detention; and

(c) comply with any additional condition of the offender’s periodic detention; and

(d) comply with any non-association order or place restriction order made by the sentencing court for the offender; and

(e) comply with any other requirement under this Act or the Corrections Management Act 2007 that applies to the offender.

26. These are defined in s 40 as the “periodic detention obligations”.

27. “Core conditions” are those set out in s 43, as defined in s 40. “Additional conditions”, as defined in s 40, are those “recommended by the sentencing court for the detention” or “imposed” under part 5.4.

28. Part 5.3 provides for performing periodic detention. It requires the offender to report for each detention period (s 49), at the reporting place notified to the offender (s 50) on the day of the week notified (s 51), at the times specified for beginning each detention period (s 52) and to carry out activities as directed (see ss 53, 54). Provisions for non-performance, approval not to perform and extension of a periodic detention period where a detention period is not performed are also provided for in the part (ss 55, 58).

29. Part 5.4 concerns the supervision of periodic detention. Relevantly, if a corrections officer believes “that an offender has breached any of the offender’s periodic detention obligations”, the corrections officer “must report the belief to the board” (s 63(1) and (2)). The offender may be arrested with (where s 65 applies) or without (where s 64 applies) a warrant issued by a judge or magistrate.

30. Section 68 sets out the powers of the board if it decides that an offender has breached any of his or her periodic detention obligations. In particular, s 68(2)(f) permits the board to “cancel the offender’s periodic detention”. However, s 69 where enlivened relevantly requires the board, where it finds that an offender has failed to perform periodic detention on two occasions or more, to cancel the offender’s periodic detention under s 68. This is what occurred in the case of the appellant. The exception provided for under s 69(3) is not presently relevant it having been introduced by amendment in 2012.

31. Where a decision is made by the board to cancel an offender’s periodic detention two things follow. First, by s 79(4) the cancellation ends the periodic detention period of the offender’s sentence of imprisonment. The offender must serve the remainder of the sentence by full-time detention until when the periodic detention period would have ended apart from the cancellation and otherwise in accordance with the sentence.

32. Second, by s 82(2) the board must order that the offender be placed in the director-general’s (previously, “chief executive’s”) custody to serve the relevant part of the offender’s sentence by imprisonment under full-time detention.

33. Section 82A permits the court, on a referral under s 75(1)(f), to cancel the offender’s periodic detention or to re-sentence the offender. This provision was not invoked in the present case.

The facts

34. The facts were agreed before the primary judge and summarised by him as follows.

35. The references in the Sentencing Act and the Sentence Administration Act to the “chief executive” have been replaced by the term “director-general” following a re-organisation of the ACT Public Service. Accordingly, I shall refer to the legislation at the relevant time and so to “the chief executive”.

36. On 26 February 2008, the appellant was convicted of an offence of driving whilst disqualified contrary to s 32(1)(a) of the Road Transport (Driver Licensing) Act 1999 (ACT) and was sentenced to imprisonment for three months to commence on that day. The court set all of the period of the sentence of imprisonment to be served by periodic detention; the first detention period commenced on 29 February 2008.

37. He attended periodic detention on 29 February 2008 and 7 March 2008 but failed to attend thereafter.

38. A delegate of the chief executive submitted breach reports to the board about the appellant’s failure to attend periodic detention on the dates specified in the report, being the dates on which he failed to attend but for which he had not been granted approval not to perform periodic detention by the chief executive, her delegate or the board.

39. On 27 May 2008, the board conducted a hearing for its inquiry into the appellant’s failure to attend periodic detention. The board cancelled his periodic detention under s 68(2)(f) of the Sentence Administration Act on the basis that s 69 of the Sentence Administration Act applied. The board also ordered, under s 82 of the Sentence Administration Act, that the appellant be placed in the custody of the chief executive to serve a period of imprisonment of two months, one week and one day, being the balance of the sentence of imprisonment, taking into account the two periods of periodic detention already served.

40. On the same day, the board issued a warrant under s 82(3) of the Sentence Administration Act to arrest the appellant. He was arrested on 29 May 2008, placed into the custody of the chief executive and imprisoned in full-time detention from 29 May 2008 to 5 August 2008.

41. On 8 January 2009, the appellant was convicted of the offence of committing a negligent act causing grievous bodily harm, contrary to s 25 of the Crimes Act 1900 (ACT).

42. The court sentenced him to ten months’ imprisonment and, in the order, set a period of four months of the sentence of imprisonment to be served by periodic detention from 8 January 2009.

43. The balance of the sentence was suspended from 8 May 2009 and a good behaviour order made for a period of 24 months thereafter with a probation condition and certain other conditions relating to rehabilitation programmes and counselling, medical assessments and supply of samples of blood or urine for alcohol and drug testing if directed.

44. The appellant attended periodic detention on 9 January 2009 and 23 January 2009 but failed to attend thereafter.

45. A delegate of the chief executive submitted breach reports regarding his failure to attend periodic detention for periods in respect of which he had not attended and for which he had not been granted approval not to perform periodic detention by the chief executive, her delegate or the board.

46. The board conducted a hearing on 17 March 2009 for its inquiry regarding the appellant’s failure to attend periodic detention, and cancelled the periodic detention under s 68(2)(f) of the Sentence Administration Act on the basis that s 69 of the Sentence Administration Act applied.

47. The board then ordered, under s 82 of the Sentence Administration Act, that the appellant be placed in the chief executive’s custody to serve the balance of the period of imprisonment that was not suspended, namely three months, two weeks and two days and issued a warrant for his arrest under s 82(3) of the Sentence Administration Act.

48. The appellant was arrested on 19 March 2009 and placed in the chief executive’s custody. He served a term of imprisonment in full-time detention from 19 March 2009 to 4 July 2009.

The decision of the primary judge

49. The primary judge resolved the three issues before him in the following ways. First, that the decisions of the board were not an exercise of the judicial power because there was no adjudgment of criminal guilt, no imposition of a penalty or sentence for breach of the law and no review, cancellation or variation of a judicial order (Mitchell Jacka v Australian Capital Territory and Chief Executive of the Department of Justice and Community Safety of the Australian Capital Territory [2013] ACTSC 199 at [31]). Second, that such power, even were it to be judicial power, could be invested in the board, since the ACT, as a polity, was not subject to the doctrine of the separation of powers such as has been held to bind the Commonwealth (Jacka at [32]); and third, that the investment of these powers did not offend against the principles of Kable because the investing of the relevant powers in the board did not interfere with or impair the institutional integrity of the courts of the ACT (Jacka at [33]).

50. The proceeding below was determined along with another proceeding, Lewis v Chief Executive of the Department of Justice and Community Safety of the Australian Capital Territory (2013) 280 FLR 118 and the reasons in his Honour’s two judgments must be read together.

The appeal

51. The appeal is from the order of dismissal of the proceedings by the primary judge.

52. The grounds challenge each of the conclusions of the primary judge to which I have referred. They are to be found at paras 4(a)-(c) of the notice of appeal. I will refer to them conveniently as grounds 1-3 respectively.

53. The appellant seeks declarations from this Court that ss 68(2)(f), 69, 79 and 82 of the Sentence Administration Act are invalid and that the orders of the board made on 27 May 2008 and 17 March 2009 did not provide lawful authority for the second respondent to detain the appellant.

Ground 1

54. It is well established and was not in issue that the adjudgment and punishment of criminal guilt involves an exclusive exercise of judicial power: Chu Kheng Lim v The Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1.

55. In other words, the functions of determining whether a person has committed a criminal offence and the imposition of a penalty, including a sentence of imprisonment, are characterised as exclusively judicial. A sentence of imprisonment must be determined by an exercise of judicial power, not by the executive branch of government: Crump v State of New South Wales (2012) 247 CLR 1 at [42] (Gummow, Hayne, Crennan, Kiefel and Bell JJ), citing Browne v The Queen [2000] 1 AC 45 for the proposition that “the selection of a sentence is an integral part of the administration of justice which cannot be committed to the executive”.

56. Once the sentence has been imposed, the exercise of judicial power is spent and “the responsibility for the future of the [offender] passe[s] to the executive branch of the government”: Elliott v The Queen (2007) 234 CLR 38 at [5] quoted with approval in Crump at [58] (Gummow, Hayne, Crennan, Kiefel and Bell JJ).

57. The appellant submits that the cancellation of his periodic detention by the board pursuant to the power to do so under s 68(2)(f) of the Sentence Administration Act was, in effect, a re-sentencing by the imposition of full-time detention, and thereby constituted an exercise of judicial power, or, as the appellant also submits, that the function of the board to cancel periodic detention falls within the scope of, or gives content to, the imposition of penalty.

58. The real question is whether the power to cancel periodic detention is an essentially and exclusively judicial power.

59. The appellant sought to characterise the exercise of judicial power as involving the determination of a dispute between parties about pre-existing rights and liabilities. Broadly, this is so: Re Cram; Ex parte The Newcastle Wallsend Coal Company Proprietary Limited (1987) 163 CLR 140 at 148-149 (Mason CJ, Brennan, Deane, Dawson and Toohey JJ). See also Huddart, Parker and Co Proprietary Limited v Moorehead (1909) 8 CLR 330 at 383 per Isaacs J, quoting from Palles CB in The Queen (Wexford County Council) v The Local Government Board for Ireland [1902] 2 IR 349 at 373: the “essential element” of an exercise of judicial power by a court is the “power, by its determination within jurisdiction, to impose liability or affect rights.”

60. In the criminal context, the appellant submits that where a court is adjudging and punishing criminal guilt, the exercise of judicial power involves the determination of a dispute between a person and the state as to whether a person has committed a criminal offence and what punishment should be imposed and that imposition of a penalty involves the substitution, by order of the sentencing court, of a new set of rights and liabilities that are binding on the parties.

61. The legislative scheme involved here empowers a sentencing court to set, as part of the sentencing order, a period to be served by periodic detention. The appellant submits that such an order, when read with the operation of the Sentence Administration Act, determines the extent of the legal liability of an offender to having his or her liberty denied by the court’s order of imprisonment, and the concomitant right and power of the state to deny the offender his or her liberty. The conditions upon which the offender’s liberty is denied are set out in the Sentence Administration Act, and these conditions include any orders made, and conditions recommended, by the sentencing court. Thus, he submits, the rights and obligations that bind the offender and the state, as prescribed by the Sentence Administration Act, are determined in the exercise of judicial power by a court.

62. The appellant then submits, upon this platform, that a breach of these conditions, and vulnerability of an offender to an order cancelling periodic detention, fundamentally alters the rights and liabilities that are determined by the sentencing court. He submits that the effect on a convicted person’s rights and liabilities by a cancellation may be characterised only in one of two ways.

63. First, he submits that the juridical effect of the court’s order no longer sustains the rights and liabilities of detention. Although the sentence continues to provide the factum upon which the legislation operates to enliven the board’s power, the rights and liabilities are no longer defined by the original court order operating with the Sentence Administration Act. Instead, on this view, they are now defined by the terms of the Sentence Administration Act operating as a result of the board’s determination. The new set of detention rights and liabilities, defining the extent to which the offender’s liberty is to be denied and the power of the state to deny that liberty, are determined by the board’s determination.

64. Second, and alternatively, he submits that the juridical effect of the court’s order continues to sustain the rights and liabilities of detention, yet the content of those rights and liabilities has been determined by the decision of the board.

65. He submits that in either case, the board is engaging in an exercise of judicial power or, to put it in the converse, in neither case is the board simply administering the rights and liabilities determined by the court’s sentence.

66. That this is so, the appellant contends, is because the cancellation power results, invariably, in a greater burden on the liberty of the individual and the interposition of the decisions of the board into the determination of rights and liabilities arising from a sentence involves an exercise of judicial power.

Consideration

The scope of judicial power

67. In Brandy v Human Rights and Equal Opportunity Commission (1995) 183 CLR 245 at 267, Deane, Dawson, Gaudron and McHugh JJ explained that difficulty arises in attempting to formulate a comprehensive definition of judicial power, not so much because it consists of a number of factors, but because the combination is not always the same. Their Honours further observed, citing R v Davison (1954) 90 CLR 353 at 368, that there are functions which, when performed by a court, constitute the exercise of judicial power but, when performed by some other body, do not. Their Honours referred to these difficulties which had earlier been recognised by the Court in Precision Data Holdings Limited v Wills (1991) 173 CLR 167 at 188-189:

The acknowledged difficulty, if not impossibility, of framing a definition of judicial power that is at once exclusive and exhaustive arises from the circumstance that many positive features which are essential to the exercise of the power are not by themselves conclusive of it. Thus, although the finding of facts and the making of value judgments, even the formation of an opinion as to the legal rights and obligations of parties, are common ingredients in the exercise of judicial power, they may also be elements in the exercise of administrative and legislative power.

68. This is an echo of what Kitto J stated in R v The Trade Practices Tribunal; Ex parte Tasmanian Breweries Proprietary Limited (1970) 123 CLR 361 at 373:

Questions of this general description are often difficult to decide, for it has not been found possible to frame an exhaustive definition of judicial power. But this is not to say that the expression is meaningless. The uncertainties that are met with arise, generally if not always, from the fact that there is a "borderland in which judicial and administrative functions overlap" (Labour Relations Board of Saskatchewan v. John East Iron Works Ltd. [[1949] AC 134 at 148]), so that for reasons depending upon general reasoning, analogy or history, some powers which may appropriately be treated as administrative when conferred on an administrative functionary may just as appropriately be seen in a judicial aspect and be validly conferred upon a federal court. The judgments in Reg v. Davison [(1954) 90 CLR 353] provide illustrations of this. Characterising the exercise of power by the board

69. The appellant submits that the function of the board to cancel periodic detention constitutes, in effect, a re-sentencing or “falls within the scope of, or gives content to, the imposition of penalty”.

70. The term of imprisonment and the manner in which that term is served are distinct. As observed, s 11(2) of the Sentencing Act enables the sentencing court, “in the order sentencing the offender to imprisonment”, to set a period of the sentence of imprisonment to be served by periodic detention. The periodic detention, by s 11(3), may be for all or part of the offender’s sentence of imprisonment.

71. The imprisonment order made by the magistrate on 26 February 2008 was that:

72. MITCHELL JACKA, DOB 23.04.1989 of 29 KEENAN STREET, EVATT, ACT 2617 be sentenced to a total term of imprisonment of 3 months, the sentence starts on 26 February 2008, ends on 25 May 2008 and is to be served as periodic detention. 2. The periodic detention period starts on 29 February 2008. 3. The offender is to first report for periodic detention at Symonston Periodic Detention Centre, Mugga Lane, Red Hill ACT on 29 February 2008 at 7pm.

73. The imprisonment order made by the magistrate on 8 January 2009 was that:

74. MITCHELL JACKA, DOB 23.04.1989 of 29 KEENAN STREET, EVATT, ACT 2617 be sentenced to a total term of imprisonment of 4 months the sentence starts on 8 January 2009, ends on 7 May 2009 and is to be served as periodic detention. 2. The periodic detention period starts on 9 January 2009. 3. The offender is to first report for periodic detention at Symonston Periodic Detention Centre, Mugga Lane, Red Hill ACT on 9 January 2009 at 7pm.

75. These orders provide separate dates for when the sentence of imprisonment, and in turn periodic detention, respectively commence.

76. The setting by the court, in each case, pursuant to s 11(2) of the Sentencing Act, of the whole of the period of each of the sentences of imprisonment to be served by periodic detention in the orders sentencing the offender to imprisonment is not, in either case, a separate or distinct order for imprisonment. Rather it constitutes in each case the order of the court as to the manner in which each sentence of imprisonment is to be served.

77. As I earlier mentioned, the power of the court to set a periodic detention period for the offender as part of the order sentencing the offender to imprisonment is not engaged unless, amongst other matters, the court is satisfied that the offender has signed an undertaking to comply with the offender’s periodic detention obligations under the Sentence Administration Act. The order cannot be made unless the offender signs an undertaking. However, even where the offender has consented to periodic detention the court is not required to order that the sentence, in whole or in part, be served by periodic detention. Whether it is or not is a matter for the sentencing court. Once the undertaking is given, and the order is made, the serving of the term by periodic detention is predicated on the offender’s compliance with statutory obligations.

78. Each order carried with it the force of the statutory regime under the Sentencing Act and the Sentence Administration Act in respect to offenders sentenced to imprisonment but to be served by periodic detention.

79. Specifically, the order carried with it the prospect of mandatory cancellation of the offender’s periodic detention under s 69 of the Sentence Administration Act if it were to be established by the board that the appellant had failed, without legislative excuse, to perform two or more detention periods of his periodic detention. This, in turn, would require under s 79 that he would have to serve the remainder of his sentence by full-time detention until when the periodic detention period would have ended apart from the cancellation and otherwise in accordance with the sentence. This would be given effect to by the requirement under s 82 to order that the offender be placed in the chief executive’s custody to serve the relevant part of the offender’s sentence by imprisonment under full-time detention.

80. The powers thus exercisable by the board, and exercised in the case of the appellant, did not constitute a re-sentencing. Rather, they are powers of an administrative character which give effect to the sentence imposed by the magistrate.

81. The Sentence Administration Act contemplates that re-sentencing of an offender who has been ordered to serve periodic detention can occur but not by an order of the board. The board, in circumstances not immediately relevant here, may, under s 75 of the Sentence Administration Act, refer an offender to the sentencing court and that court, under s 82A, may cancel the offender’s periodic detention or may re-sentence the offender for the offence for which the offender was ordered to serve periodic detention.

82. The power in s 68(2)(f), to cancel the offender’s periodic detention, was, in the instant case, by virtue of s 69 one which the board was required to exercise. The only decision made by the board is one of fact as to whether there has been a breach involving failure to perform two or more detention periods. Once that breach is established the statutory obligation to cancel ensues.

83. As the primary judge correctly explained in Lewis at [278]:

… [T]he cancellation does not change the order of the Court. The order is for imprisonment. It sets a period of periodic detention; that involves and permits a regime which entitles the offender to serve the period of imprisonment in a particular way but only so long as he or she complies with the conditions which he or she undertook to obey.

82. The inquiry of the board and its decision that the appellant had breached certain of his periodic detention obligations did not constitute “an adjudication of a dispute about existing rights and obligations”: Precision Data at 190. Nor does it seem to me that the board, thus engaged, was “creat[ing] a new set of rights and obligations”: Precision Data at 190.

83. The board neither adjudges the guilt or innocence of the offender for the offence of which he was sentenced nor determines his punishment. It merely inquires into whether any statutory obligations to which the offender has submitted have been breached. The ensuing consequence of full-time imprisonment thus gives effect to the sentence already pronounced.

84. The observations of Crennan and Kiefel JJ in Attorney-General for the Commonwealth of Australia v Alinta Limited (2008) 233 CLR 542 at [171] are apt in this respect.

85. The decision by the board that the appellant had breached his obligations by failing to perform two periods of detention triggered the mandatory cancellation of his periodic detention by the board under s 69(2). However, the appellant’s rights and liabilities in that respect had already been framed by the order for his imprisonment. The manner in which he served the sentence of imprisonment already ordered was dependent upon his compliance with the statutory obligations. He was always liable to the sentence of full-time imprisonment, but permitted by virtue of the terms of the order of imprisonment to serve his sentence by periodic detention conditioned always by his performance of his periodic detention obligations.

86. The appellant referred to the decision of the Privy Council in Hinds v The Queen [1977] AC 195 at 226 in which Lord Diplock when giving the opinion of the majority said:

What Parliament cannot do, consistently with the separation of powers, is to transfer from the judiciary to any executive body … a discretion to determine the severity of the punishment to be inflicted upon an individual member of a class of offenders.

87. However, determining the severity of the punishment is not what the board did. It inquired into the question whether the statutory obligations had been breached. That they had resulted in an order for cancellation of the appellant’s periodic detention and the consequence that the original punishment or sentence of full-time imprisonment became operative.

88. The appellant contends that the board’s decision and order created a new charter of rights and liabilities as between the appellant and the ACT. This harks back to what was said by Kitto J in Tasmanian Breweries at 374.

89. However, the effect of the cancellation order was not to introduce a new charter by the adjudication of facts and the application of the law to those facts, although there was an adjudication of facts and the application of the law.

90. It was rather giving effect to the existing charter: the sentence orders made by the magistrate.

91. The order by the board under s 82 is that the offender be placed in the chief executive’s custody (now “director-general”) to serve the relevant part of the offender’s sentence by imprisonment under full-time detention. It is not the imposition of a new sentence.

92. The offender’s full-time imprisonment as a consequence of the cancellation order is pursuant to the original sentencing orders. The full-time imprisonment of the offender is the enforcement of those orders, not the cancellation order. The order of the board, whilst it had statutory consequences, remained the order of the board.

93. It follows that I do not accept the appellant’s submission that the rights and liabilities determined by the sentencing court are no longer defined by the order of the court or otherwise negated by the board’s decision under s 68(2)(f) to cancel the appellant’s periodic detention. The juridical effect of the order continues. Nor do I accept that the content of those rights and liabilities is somehow altered by the board’s decision. The court order brings the statutory scheme into play, which scheme is then administered by the board. The fact that the decision by the board that the appellant breached certain periodic detention obligations triggered the requirement under s 69(2) that the board under s 68 cancel periodic detention does not have the effect for which the appellant contends.

94. To employ again the language in Tasmanian Breweries the board’s decision had, of itself, no operative effect but was “the factum by reference to which the [Sentencing Act and the Sentence Administration Act] operate”: Tasmanian Breweries at 378 (Kitto J); see also The Attorney-General for the Commonwealth v Breckler (1999) 197 CLR 83 at [45] (Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ); Luton v Lessels (2002) 210 CLR 333 at [22] (Gleeson CJ).

95. Moreover, a decision under s 68(2)(f) and the consequential order made under s 82 by the board may be challenged by judicial review, as indeed occurred in the case of Mr Lewis in the related Supreme Court proceeding. As was recognised by Hayne J (Gleeson CJ and Gummow J agreeing) in Alinta at [100], the availability of such a challenge points away from a conclusion that the decision and order involved the exercise of judicial power.

Ground 3

96. The appellant submits that even if its first ground of appeal fails this ground of challenge remains alive. .

97. The doctrine in Kable is concerned to safeguard the institutional integrity of a Ch III court, including a State court which may be invested with federal jurisdiction under s 77(iii) of the Constitution, by invalidating “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”: Fardon v Attorney-General for the State of Queensland (2004) 223 CLR 575 at [15] per Gleeson CJ. Justice Gummow in that case said at [101]:

… the essential notion is that of repugnancy to or incompatibility with that institutional integrity of the State courts which bespeaks their constitutionally mandated position in the Australian legal system.

98. This was described by the plurality in Pollentine v Bleijie (2014) 88 ALJR 796 at [42] as the accepted doctrine of the Court.

99. The respondents accept that the doctrine applies to the ACT Supreme Court: North Australian Aboriginal Legal Aid Service Inc v Bradley (2004) 218 CLR 146 at [28]-[29] per McHugh, Gummow, Kirby, Hayne, Callinan and Heydon JJ; Wainohu v State of New South Wales (2011) 243 CLR 181 at [105] per Gummow, Hayne, Crennan and Bell JJ.

100. The doctrine is not without limits. As McHugh J observed in Re Wakim; Ex parte McNally (1999) 198 CLR 511 at [63], “State courts can and do exercise many non-judicial powers that are compatible with those courts being invested with federal jurisdiction”.

101. The appellant’s contention seeks to extend the Kable doctrine to the converse position where a Territory law conferring a power upon the executive may be invalid because it would be inconsistent with the institutional integrity of the ACT Supreme Court by removing from it or denying it a function intended by the Parliament to be the characteristic of a Supreme Court or, alternatively, it impermissibly directs, through the board’s decision, the exercise of judicial power by the court.

102. The foundation of both contentions is that the decision of the board constitutes the adjudgment and punishment of criminal guilt. I have already concluded that this is not so.

103. As I have explained the conferral of the cancellation power on the board under s 68(2)(f) is one which could also be conferred upon a court, as indeed it is under s 82A(2). However, it is not a power which is essentially and exclusively judicial in character.

104. This ground fails, at least, for these reasons.

Conclusion

105. The appeal should be dismissed with costs.

I certify that the preceding ninety-four [94] numbered paragraphs [12] to [105] are a true copy of the Reasons for Judgment of his Honour Justice Gilmour

Associate:

Date:

WALMSLEY AJ:

106. I agree with the reasons and conclusions of Gilmour J. I also agree with the additional remarks of Penfold J.

I certify that the preceding paragraph numbered [106] is a true copy of the Reasons for Judgment of his Honour Acting Justice Walmsley

Associate:

Date: