Kable v Director of Public Prosecutions

High Court of Australia|1996-09-09|Before: Brennan CJ, Gummow JJ, Levine J, Grove J

High Court of Australia Brennan CJ Dawson, Toohey, McHugh, Gaudron and Gummow JJ Kable v Director of Public Prosecutions (NSW) (FC 96/027) [1996] HCA 24

Set aside the order of the New South Wales Court of Appeal and in lieu thereof order:

(a) Appeal to the Court of Appeal allowed with costs.

The Bill for the Community Protection Act 1994 NSW (the Act) was duly passed by the Houses of the Parliament of New South Wales. Assent was given and the Act was proclaimed to come into force on 9 December 1994. Therefore at all material times the Act was on the statute book of the State.

The key provision of the Act is s 5 which reads as follows:

(1) On an application made in accordance with this Act, the Court may order that a specified person be detained in prison for a specified period if it is satisfied, on reasonable grounds:

(a) that the person is more likely than not to commit a serious act of violence; and

(b) that it is appropriate, for the protection of a particular person or persons or the community generally, that the person be held in custody.

(2) The maximum period to be specified in an order under this section is 6 months.

(3) An order under this section may be made against a person:

(a) whether or not the person is in lawful custody, as a detainee or otherwise; and

(b) whether or not there are grounds on which the person may be held in lawful custody otherwise than as a detainee.

(4) More than one application under this section may be made in relation to the same person.

A "serious act of violence" in s 5(1)(a) is defined in s 4 to mean an act of violence, committed by one person against another, that has a real likelihood of causing death or serious injury to the other person or that involves sexual assault in the nature of certain offences under the Crimes Act 1900 NSW. The reference to "the Court" in s 5(1) is to the Supreme Court of New South Wales [1] the jurisdiction of which under the Act is exercisable by a single Judge (s 24). A detention order may be made subject to such conditions as the Court may determine (s 9(1)). Under the Act proceedings for detention orders are civil proceedings (s 14) determined according to the balance of probabilities (s 15). Only the Director of Public Prosecutions may apply for a preventive detention order under s 5 or an interim detention order under s 7 (s 8).

The generality of these provisions was restricted in the course of the passage of the Bill through the Parliament. The liability to suffer the consequences of a detention order was limited so that the only person against whom a detention order might be made was the appellant, Gregory Wayne Kable. Section 3 of the Act reads as follows:

(1) The object of this Act is to protect the community by providing for the preventive detention (by order of the Supreme Court made on the application of the Director of Public Prosecutions) of Gregory Wayne Kable.

(2) In the construction of this Act, the need to protect the community is to be given paramount consideration.

(3) This Act authorises the making of a detention order against Gregory Wayne Kable and does not authorise the making of a detention order against any other person.

(4) For the purposes of this section, Gregory Wayne Kable is the person of that name who was convicted in New South Wales on 1 August 1990 of the manslaughter of his wife, Hilary Kable.

The appellant was originally charged with the murder of his wife but the Crown accepted his plea of diminished responsibility to manslaughter for which he was sentenced to imprisonment for a minimum term of four years with an additional term of one year and four months. The imminent release of the appellant from custody under this sentence was the occasion for both the enactment of the Act and the making of an application for a detention order against the appellant pursuant to the Act. The acts of the appellant relied upon to support the application were the sending of threatening letters through the mail. At the time when the application was made, the appellant was in custody pending the hearing of 17 charges [2] arising from his sending threatening letters through the mail. 1. Under s 85S of the Crimes Act 1914 Cth.

On 23 February 1995, Levine J issued a detention order for a period of six months in respect of the appellant but Grove J refused on 21 August 1995 to issue a further order. This appeal is brought in respect of the order issued by Levine J. The grounds argued on the appeal do not relate to the appropriateness of the making of the order if Levine J had jurisdiction to make it. The argument challenges the very existence of the Act as a law of the State of New South Wales.

This question is to be distinguished from the question whether the Act is beyond the power of the Parliament of New South Wales. This question is whether the instrument that stands on the statute book as the Community Protection Act 1994 has the character of a law. The instrument, enacted in due form and by due process, purports to create a power to make a detention order and it prescribes the procedure by which the order may be made and the consequences of the order when made. True it is that it singles out the appellant as the sole subject of a detention order, but a purported law has never been held to lack the character of a law simply because it affects the liberty or property of only a single individual. Acts of Attainder were nonetheless laws, as Sir Edward Coke accepted, albeit protesting that, in the procedure of imposing the attaint, the high court of Parliament ought to give example of justice to inferior courts [3] . The Act may be a law which, by reason of its specificity, is enacted in exercise of a power that is not purely legislative, but it is nonetheless a law. Specificity does not deny the character of law to an enactment that is otherwise within power. Private Acts of Parliament were a familiar form of laws in the nineteenth century English Parliament and were not open to question on that account [4] . Private Acts have been enacted at times by the Parliaments of this country. The next question is whether the Parliament had power to enact the Act.

Sir Edward Coke, The Fourth Part of the Institutes of the Laws of England, (1809 ed), pp 36-38. 2. See, eg, Edinburgh Railway Co v Wauchope (1842) 8 Cl& F 710 at 725 [8 ER 279 at 285].

Was there power under the Constitution of New South Wales to enact the Act?

It is submitted that the Act is in substance an exercise of judicial power rather than legislative power. On the assumption that the New South Wales Parliament cannot exercise judicial power or interfere in the judicial process [5] , it is submitted that the Act is beyond the powers of that Parliament.

Australian Building Construction Employees' and Builders Labourers' Federation v The Commonwealth (1986) 161 CLR 88 at 96 Liyanage v The Queen [1967] 1 AC 259

There is something to be said for the view that, consistently with s 3, any application made within a short time of the enactment of the Act left the Supreme Court with no discretion. The general provisions of s 5 must yield to the provisions of s 3(1) and (2), so that the Court is commanded to protect the community by making a detention order against the appellant.

Assuming, without deciding, that the Act left nothing for the Supreme Court to decide but merely commanded the making of the formal detention order, the appellant submits that the Act is an exercise of judicial power or an interference in the judicial process and, on that account, is beyond the powers of the New South Wales Parliament. The submission is based on the proposition that the doctrine of separation of judicial power, an essential element of the Constitution of the Commonwealth, is part of the constitutional law of the State. That proposition has been rejected by the Supreme Court of New South Wales [6] as it has by the Supreme Court of other States in respect of their Constitutions [7] . For the reasons stated by Dawson J, I too would hold that that safeguard of liberty is not to be found in the Constitution of New South Wales despite the introduction in 1992 and the entrenchment in 1995 of Pt 9 of the Constitution Act 1902.

Clyne v East (1967) 68 SR(NSW) 385 at 395, 400; Building Construction Employees and Builders' Labourers Federation of NSW v Minister for Industrial Relations (1986) 7 NSWLR 372 at 381, 400, 407, 410, 419-420. 2. Nicholas v Western Australia [1972] WAR 168 Gilbertson v South Australia (1976) 15 SASR 66 at 85affd [1978] AC 772 at 783; Grace Bible Church v Reedman (1984) 36 SASR 376 City of Collingwood v Victoria [No 2] [1994] 1 VR 652

I am in general agreement also with his Honour's reasons for holding that, subject to the Commonwealth of Australia Constitution Act 1900 Imp, the Statute of Westminster Adoption Act 1942 Cth and the Australia Act 1986, the powers of the Parliament of New South Wales are not limited as to subject matter.

However, I would add a qualification and a comment to what his Honour has written, neither of which is material to the present case. First, there is the conundrum of the grant of general legislative power conferred by the "peace, order and good government" formula on a Parliament which might legislate itself or its powers out of existence. In my opinion, this conundrum is resolved by ss 106 and 107 of the Commonwealth Constitution. These are the sections which continue to sustain the Constitutions of the States and confirm their respective powers, including the power to amend their own Constitutions [8] . As s 107 continues the powers of the States, no power can be annihilated by State legislative action. If Parliament, as the repository of a power, were legislatively to deny itself that power, the denial would be inconsistent with s 107 and would be invalid.

New South Wales v The Commonwealth (1975) 135 CLR 337 at 372 McGinty v Western Australia (1996) 186 CLR 140 at 172

Secondly, I would add a further comment to 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". If there were any restraints on the exercise of the powers of the Parliament, they would arise from entrenched provisions of the particular State Constitution [9] . Such restraints would be immune from modification unless the conditions expressed in the entrenching provisions were satisfied. When a submission is made that a particular measure is ultra vires because a restraint on legislative power is implied by an entrenching provision, the implication must clearly appear [10] . If the connection between the text and the propounded implication is tenuous or obscure, it would be wrong for a court by declaration to withdraw from public debate the matters to which the submitted restraint applies. If the constitutional text does not clearly support an implication of restraint, the court declaring the restraint is plunged into political controversy in which it is ill-fitted to engage and from which it is hard put to withdraw [11] .

Australia Act, s 6. 2. McGinty v Western Australia (1996) 186 CLR 140 at 168-171 3. This appears to account for the strong terms in which Scalia J couched his opinion in Webster v Reproductive Health Services (1989) 492 US 490 at 532-533

Does Ch III of the Commonwealth Constitution preclude the vesting of jurisdiction under the Act in the Supreme Court of New South Wales?

Chapter III of the Constitution of the Commonwealth both limits the repositories of the judicial power of the Commonwealth and, in context, prescribes a separation of the function of the High Court and of other federal courts from the functions of the political branches of government. The separation of functions is derived from the structure of the Constitution and, in particular, from the distribution of legislative power to the Federal Parliament (s 1), of executive power to the Queen for exercise by the Governor-General (s 61) and of judicial power to the courts referred to in s 71.

In like manner, no functions that are not judicial can be conferred by the Commonwealth Parliament on a State court [12] , and thus the separation of State courts from the Legislative and the Executive branches of the Commonwealth Government is secured. But that separation does not purport to effect a separation of the courts of a State or Territory from the legislature or executive of the State or Territory. Nor does the Constitution purport to preclude State Parliaments from conferring a non-judicial power on a State court. It would be surprising if it did. Such a provision would have destroyed the State laws investing mining warden's courts, licensing courts and planning courts - to take only some instances - with extensive administrative powers.

British Medical Association v The Commonwealth (1949) 79 CLR 201 at 236 Queen Victoria Memorial Hospital v Thornton (1953) 87 CLR 144 at 151-152

However, it is submitted that, as ss 71 and 77(iii) authorise the investing of the judicial power of the Commonwealth in State courts, those courts must be capable of accepting and exercising the federal jurisdiction invested in them and that that capacity is dependent on their not being repositories of non-judicial power the exercise of which is incompatible with the exercise of federal judicial power. It has been accepted constitutional doctrine that, when the Commonwealth invests the judicial power of the Commonwealth in a State court, it must take that court constituted and organised as it is from time to time [13] . The autochthonous expedient contained in Ch III of providing for the vesting of federal jurisdiction in State courts left to the Commonwealth Parliament the selection of the courts in which federal jurisdiction should be invested. 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 attributes to Ch III a novel operation. On one approach Ch III would limit the power of the Parliament of a State to invest the courts of the State with incompatible non-judicial powers. On another approach, Ch III would limit the power of the federal Parliament to invest some State courts with federal jurisdiction. And on a third approach, the investing by the Commonwealth Parliament of federal jurisdiction in a State court would preclude the State Parliament from investing an incompatible non-judicial power in that State court.

Le Mesurier v Connor (1929) 42 CLR 481 at 496, 498; Adams v Chas S Watson Pty Ltd (1938) 60 CLR 545 at 554-555 Peacock v Newtown Marrickville & General Co-operative Building Society No 4 Ltd (1943) 67 CLR 25 at 37 Kotsis v Kotsis (1970) 122 CLR 69 at 109 Russell v Russell (1976) 134 CLR 495 at 516-517, 530, 535, 554; The Commonwealth v Hospital Contribution Fund (1982) 150 CLR 49 at 61

In my opinion, Ch III does not operate in any of those ways. The test of incompatibility advanced by the submission is taken from the majority judgment in Grollo v Palmer [14] , a case which was not concerned with the jurisdiction or powers of a court but with the powers that might be conferred on individuals - personae designatae - who were judges of a Ch III Court. The incompatibility qualification applied to the persona designata doctrine has no counterpart in the context of possible limitations on the power of a State Parliament to invest courts of the State with non-judicial powers or the power of the Commonwealth Parliament to select whichever State courts it sees fit to invest with federal judicial power. No case has hitherto considered whether Ch III has any of the postulated operations. The absence of such a case indicates that the proposition has never before been advanced. Of course, novelty is not necessarily a badge of error but a suggestion that the power to invest State courts with federal judicial power might be limited or that the power of a State to invest the State's courts with non-judicial power might be limited would surely have provoked debate in the Constitutional Conventions. Yet they are as silent on the subject as the law reports. There is no textual or structural foundation for the submission.

The appellant, Gregory Wayne Kable, was charged with the murder of his wife, whom he stabbed to death in the house in which she lived with the two young children of the marriage. The marriage had broken up and there had been considerable acrimony between the appellant and his wife concerning custody of, and access to, the children. Before killing his wife, the appellant had engaged in violent behaviour towards her and had made threats of violence. In satisfaction of the murder charge the prosecution accepted a plea of guilty to manslaughter upon the basis of diminished responsibility. On 1 August 1990, the appellant was sentenced to a minimum term of imprisonment of four years and an additional term of one year and four months.

Once in prison, the appellant's behaviour was such as to cause serious concern that, upon his release, there would be a repetition of the same conduct that led to the death of his wife. In particular, he wrote a series of threatening letters, mainly to relatives of his deceased wife.

On 2 December 1994, the New South Wales Parliament passed the Community Protection Act 1994 NSW (the Act) which conferred jurisdiction upon the Supreme Court of New South Wales to make an order for the preventive detention of the appellant. The form of the Act was apparently suggested by the Community Protection Act 1990 Vic. The long title of the Act is "An Act to protect the community by providing for the preventive detention of persons who are, in the opinion of the Supreme Court, more likely than not to commit serious acts of violence". That is a misleading guide to the contents of the Act as it was eventually passed because, whilst the Bill in its original form was for an Act of general application, an amendment made during its passage through Parliament confined its application to the appellant [15] . Notwithstanding this, s 5, which is headed "Preventive detention orders", is in general terms and provides:

(1) On an application made in accordance with this Act, the Court may order that a specified person be detained in prison for a specified period if it is satisfied, on reasonable grounds:

(a) that the person is more likely than not to commit a serious act of violence; and

(b) that it is appropriate, for the protection of a particular person or persons or the community generally, that the person be held in custody.

(2) The maximum period to be specified in an order under this section is 6 months.

(3) An order under this section may be made against a person:

(a) whether or not the person is in lawful custody, as a detainee or otherwise; and

(b) whether or not there are grounds on which the person may be held in lawful custody otherwise than as a detainee.

(4) More than one application may be made in relation to the same person.

The object of the Act is "to protect the community by providing for the preventive detention of Gregory Wayne Kable" (s 3(1)) and in construing its provisions "the need to protect the community is to be given paramount consideration" (s 3(2)). Thus, notwithstanding that the Act provides for the appellant's imprisonment, ambiguities in it are not to be construed strictly in his favour but against him. Despite the fact that detention under the Act is based upon community protection, it does not provide for detention in other than an ordinary gaol. A detainee under the Act is taken to be a prisoner within the meaning of the Prisons Act 1952 NSW (s 22(1)).

Whilst s 17(1)(a) of the Act provides that the court is bound by the rules of evidence (see also s 14), the remaining paragraphs of that subsection, in combination with s 17(3), allow the court to have regard to material such as medical or prison records or reports, including hearsay, which would not otherwise be admissible in evidence. Proceedings are instituted by the Director of Public Prosecutions (s 8) but are civil proceedings (s 14) and the case against the appellant need only be proved on the balance of probabilities (s 15).

Section 11 requires the court after making a preventive detention order to appoint assessors, being qualified medical practitioners, psychiatrists or psychologists, to observe and report upon the appellant during the period for which the order is in force. Section 12 empowers the court to make orders for medical, psychiatric or psychological treatment to be made available to the appellant and s 21(1) requires reports to be furnished by the assessors and the Commissioner of Corrective Services on the appellant's condition and progress. Reports are to be prepared at least once while the order is in force and at any time the Director of Public Prosecutions so requires (s 21(2)). The reports are to contain particulars with respect to the appellant's general behaviour, the likelihood that he will commit a serious act of violence, the appropriateness of his continuing to be held in custody and the appropriateness of his continued detention in the same institution (s 21(3)). Also, reports prepared by an assessor are to describe the current state of the appellant's medical, psychiatric and psychological condition, the nature of any treatment made available to or undergone by the appellant during the period to which the report relates and an opinion as to any appropriate future treatment of the appellant (s 21(4)). On the application of the Director of Public Prosecutions or the appellant, the court may revoke a preventive detention order or amend it by reducing the period for which it is in force (s 13(1)). In determining an application for revocation or amendment, the court must have regard to the most recent reports by the assessors and the Commissioner for Corrective Services (s 13(2)). More than one such application may be made in relation to the same order (s 13(3)).

Shortly after the Act came into force, the Director of Public Prosecutions commenced proceedings against the appellant in the Supreme Court of New South Wales before Spender AJ. On 19 December 1994, his Honour made an order under s 17(1)(c) that the appellant be psychiatrically examined. On 30 December 1994, Hunter J made an interim detention order pursuant to s 7 of the Act. On 23 February 1995, Levine J ordered pursuant to s 5 that the appellant be detained in custody for a period of six months. An appeal was dismissed by the Court of Appeal on 9 May 1995 [16] . It is from that decision that this appeal is brought.

See Kable v Director of Public Prosecutions (1995) 36 NSWLR 374

The appellant applied unsuccessfully on three occasions for revocation of the order made against him by Levine J. However, on 21 August 1995 (the day before the order of Levine J was due to expire), Grove J refused an application by the Director of Public Prosecutions for a second preventive detention order against the appellant who has now been released from custody. Nevertheless, the appellant remains liable at any time to be the subject of a further application that he be detained in custody.

The appellant confined his argument before us to an attack on the validity of the Act. The submissions which he made tended to overlap, and some of the grounds raised by the notice of appeal were not pursued. Whilst the appellant identified a number of features of the Act which he contended were obnoxious, in the end his argument was founded upon two of them, namely, the fact that the Act contemplates the imprisonment of the appellant for reasons other than the commission of a crime and the fact that it applies to the appellant alone. He contended first that the Act is invalid because it infringes common law rights which are so fundamental that they cannot be overturned by any legislature. Next, he said that the Act is beyond the power of the New South Wales Parliament to make laws for the peace, welfare, and good government of New South Wales pursuant to s 5 of the Constitution Act 1902 NSW because it is not a law within the meaning of that section. He then argued that the New South Wales Constitution embodies a separation of powers which the Act infringes. In addition he said that the Act is inconsistent with the requirements of Ch III of the Commonwealth Constitution. An argument based upon a constitutional requirement of equality under the law and before the courts was abandoned before us.

The New South Wales Parliament derives its legislative power from s 5 of the Constitution Act 1902 which provides that "[t]he Legislature shall, subject to the provisions of the Commonwealth of Australia Constitution Act, have power to make laws for the peace, welfare, and good government of New South Wales in all cases whatsoever ". It is unnecessary at this point to trace the history which lies behind this provision [17] because it is firmly established that its words confer a plenary power "and it was so recognised, even in an era when emphasis was given to the character of colonial legislatures as subordinate law-making bodies" [18] . That was clear before the passage of the Australia Acts [19] but it is put beyond question by s 2 of those Acts. The legislative power of the New South Wales legislature is no less than the legislative power of the Parliament of the United Kingdom within the scope of the grant of its power. As s 5 of the Constitution Act 1902 itself recognises, the power is subject to the Commonwealth of Australia Constitution Act 1900 Imp. Section 106 of the Commonwealth Constitution makes it clear that the Constitution of each State is subject to the Commonwealth Constitution, and under s 5 of the Australia Acts the powers of the States do not extend to legislation affecting the Commonwealth Constitution, the Commonwealth of Australia Constitution Act, the Statute of Westminster 1931 Imp or the Australia Acts themselves. And under s 6 of the Australia Acts the States are bound to observe any manner and form requirements for laws respecting the Constitution, powers or procedures of their parliaments. In addition, the words "peace, welfare, and good government of New South Wales" may be the source of whatever territorial restrictions upon the State's legislative powers are made necessary by the federal structure [20] .

See Lumb, The Constitutions of the Australian States, 5th ed (1991), Ch 1; Attorney-General (NSW) v Trethowan (1931) 44 CLR 394 at 427-428 2. Union Steamship Co of Australia Pty Ltd v King (1988) 166 CLR 1 at 9 3. Australia Act 1986 Cth; Australia Act 1986 UK. 4. See Union Steamship Co of Australia Pty Ltd v King (1988) 166 CLR 1 at 12-14

But the important thing is that for present purposes the words "peace, welfare, and good government" are not words of limitation. As this Court observed in Union Steamship Co of Australia Pty Ltd v King [21] :

They did not confer on the courts of a colony, just as they do not confer on the courts of a State, jurisdiction to strike down legislation on the ground that, in the opinion of a court, the legislation does not promote or secure the peace, order and good government of the colony [22] . Just as the courts of the United Kingdom cannot invalidate laws made by the Parliament of the United Kingdom on the ground that they do not secure the welfare and the public interest, so the exercise of its legislative power by the Parliament of New South Wales is not susceptible to judicial review on that score. Up to that point, that passage would appear to be a complete answer to any suggestion that there are common law rights which are so fundamental that they cannot be overturned by legislation, but the Court added [23] : Whether the exercise of that legislative power is subject to some restraints by reference to rights deeply rooted in our democratic system of government and the common law (see Drivers v Road Carriers [24] ; Fraser v State Services Commission [25] ; Taylor v New Zealand Poultry Board [26] ); a view which Lord Reid firmly rejected in Pickin v British Railways Board [27] , is another question which we need not explore. Those words were prompted by remarks of Cooke J in the New Zealand Court of Appeal to the effect that "some common law rights may go so deep that even Parliament cannot be accepted by the Courts to have destroyed them" [28] . As this Court observed, that view was rejected by Lord Reid in Pickin v British Railways Board [29] . There he said: The idea that a court is entitled to disregard a provision in an Act of Parliament on any ground must seem strange and startling to anyone with any knowledge of the history and law of our Constitution

I must make it plain that there has been no attempt to question the general supremacy of Parliament. In earlier times many learned lawyers seem to have believed that an Act of Parliament could be disregarded in so far as it was contrary to the law of God or the law of nature or natural justice, but since the supremacy of Parliament was finally demonstrated by the Revolution of 1688 any such idea has become obsolete.

(1988) 166 CLR 1 at 10. See also Polyukhovich v The Commonwealth (1991) 172 CLR 501 at 529, 605-606, 635-636, 695, 714; Riel v The Queen (1885) 10 AppCas 675 at 678. 2. The words "peace, order, and good government" are indistinguishable from the words "peace, welfare, and good government". See Union Steamship Co of Australia Pty Ltd v King (1988) 166 CLR 1 at 9 3. Union Steamship (1988) 166 CLR 1 at 10. 4. [1982] 1 NZLR 374 at 390. 5. [1984] 1 NZLR 116 at 121. 6. [1984] 1 NZLR 394 at 398. 7. [1974] AC 765 at 782. 8. Fraser v State Services Commission [1984] 1 NZLR 116 at 121 9. [1974] AC 765 at 782.

Lord Reid's reference to earlier times would appear to hark back to the view expressed by Coke CJ in Bonham's Case [30] . He said:

And it appears in our books, that in many cases, the common law will control Acts of Parliament, and sometimes adjudge them to be utterly void: for when an Act of Parliament is against common right and reason, or repugnant, or impossible to be performed, the common law will control it, and adjudge such Act to be void. Academic debate over the meaning of those words continues to the present time. It is unclear whether Coke CJ was intending to say that Acts of Parliament which are repugnant to the common law are void or whether he was merely laying down a rule of statutory interpretation. If he was intending the former, he appears to have had second thoughts, because in his Fourth Institute he described parliament's power as "transcendent and absolute", not confined "either for causes or persons within any bounds". He there contemplated the enactment of bills of attainder without trial and statutes contrary to Magna Carta without any suggestion of their invalidity [31] . 1. (1610) 8 Co Rep 107a at 118a [77 ER 638 at 652]. 2. See Coke, The Fourth Part of the Institutes of the Law of England (1809 ed), p 36.

However, Coke was not alone and there were other early expressions of opinion which appear to suggest that courts might invalidate Acts of Parliament which conflict with natural law or natural equity [32] . But they are of academic or historical interest only for such views did not survive the Revolution of 1688 or, at the least, did not survive for very long after it. Judicial pronouncements confirming the supremacy of parliament are rare but their scarcity is testimony to the complete acceptance by the courts that an Act of Parliament is binding upon them and cannot be questioned by reference to principles of a more fundamental kind. Indeed, it is a principle of the common law itself "that a court may not question the validity of a statute but, once having construed it, must give effect to it according to its tenor" [33] . There is more academic writing on the subject but it tends to dwell upon the apparent riddle posed by the question whether parliament can relinquish its powers by exercising them in order to do so. The answer to that riddle appears to lie in that area where law and political reality coincide. The same may be said of examples of extreme laws which would offend the fundamental values of our society which are sometimes suggested in disproof of parliamentary supremacy. It may be observed that a legislature wishing to enact a statute ordering that all blue-eyed babies be killed would hardly be perturbed by a principle of law which purported to deny it that power. Whether one speaks as Salmond does of "ultimate legal principles" [34] , or as Kelsen does of a grundnorm [35] , or as Hart does of the "ultimate rule of recognition" [36] , 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.

See, eg, Day v Savadge (1614) Hobart 86 at 87[80 ER 235 at 237]; Sheffeild v Ratcliffe (1615) Hobart 334 at 346[80 ER 475 at 486]; R v Love (1651), reported in Cobbett's Complete Collection of State Trials (1810), vol 5, 43 at pp 171-172, per Keble J. 2. Dixon, The Common Law as an Ultimate Constitutional Foundation, Jesting Pilate (1965) 203, at p 206. 3. Salmond, Jurisprudence, 2nd ed (1907), p 125. 4. See Winterton, The British Grundnorm: Parliamentary Supremacy Re-examined, Law Quarterly Review, vol 92 (1976) 591. 5. Hart, The Concept of Law (1961), p 145.

In Stockdale v Hansard [37] Lord Denman CJ referred to the supremacy of parliament in terms which indicated his complete acceptance of the principle. And Willes J in Lee v Bude & Torrington Junction Railway Co [38] said: "I would observe, as to these Acts of Parliament, that they are the law of this land; and we do not sit here as a court of appeal from parliament." In Liyanage v The Queen [39] the Privy Council rejected the notion that the power of the Ceylon Parliament to make laws for the peace, order, and good government of the island was limited by an inability to pass laws which offend against fundamental principles. The case was relevantly concerned with the suggestion of Lord Mansfield that there were limitations upon the power of the Crown to make laws for a colony which were contrary to fundamental principles [40] , but there can be no doubt that it is implicit in the decision that the Ceylon Parliament inherited the sovereignty exercisable by the United Kingdom Parliament with the consequence that it was not fettered by any limitation of the kind suggested.

(1839) 9 Ad & E 1 at 108 [112 ER 1112 at 1153]. 2. (1871) LR 6 CP 576 at 582. 3. [1967] 1 AC 259. 4. See Campbell v Hall (1774) 1 Cowp 204 at 209[98 ER 1045 at 1048].

In Madzimbamuto v Lardner-Burke [41] Lord Reid, speaking for the Privy Council, said:

It is often said that it would be unconstitutional for the United Kingdom Parliament to do certain things, meaning that the moral, political and other reasons against doing them are so strong that most people would regard it as highly improper if Parliament did these things. But that does not mean that it is beyond the power of Parliament to do such things. If Parliament chose to do any of them the courts could not hold the Act of Parliament invalid. And in Duport Steels Ltd v Sirs [42] Lord Edmund-Davies observed: From time to time some judges have been chafed by this supremacy of Parliament, whose enactments, however questionable, must be applied. In the same case Lord Scarman said [43] : But in the field of statute law the judge must be obedient to the will of Parliament as expressed in its enactments. In this field Parliament makes, and un-makes, the law: the judge's duty is to interpret and to apply the law, not to change it to meet the judge's idea of what justice requires. 1. [1969] 1 AC 645 at 723. 2. [1980] 1 WLR 142 at 164; [1980] 1 All ER 529 at 548. 3. Duport Steels Ltd v Sirs [1980] 1 WLR 142 at 168[1980] 1 All ER 529 at 551

In the New South Wales Court of Appeal, Kirby P expressed his agreement with Lord Reid in British Railways Board v Pickin [44] . In Builders' Labourers' Federation v Minister for Industrial Relations [45] he said:

I agree with Lord Reid's conclusion. I do so in recognition of years of unbroken constitutional law and tradition in Australia and, beforehand, in the United Kingdom. That unbroken law and tradition has repeatedly reinforced and ultimately respected the democratic will of the people as expressed in Parliament. It has reflected political realities in our society and the distribution of power within it. 1. [1974] AC 765 at 782. 2. (1986) 7 NSWLR 372 at 405.

In Polyukhovich v The Commonwealth [46] I referred to the possibility that a court might in "quite extraordinary circumstances" judge that legislation which otherwise falls within its power is invalid as not being for peace, order, and good government. Similarly, as appears from the passage set out above, in Union Steamship Co of Australia Pty Ltd v King [47] this Court reserved the question whether the exercise of that legislative power is subject to restraints to be found in fundamental principle. This case throws up the question reserved in those cases and it should now be answered by saying 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. The doctrine of parliamentary supremacy is a doctrine 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.

(1991) 172 CLR 501 at 636. 2. (1988) 166 CLR 1 at 10.

The appellant's contention was that the Act is not a law within the meaning of s 5 of the Constitution Act 1902. That is to say, although the New South Wales Parliament has power under s 5 to make laws for the peace, welfare, and good government of the State in all cases whatsoever, the Act is not a law or, at all events, a law of the kind referred to in the section. The argument appears to be based upon the Austinian notion that a law is a command which obliges a person or persons to a course of conduct. The Act, it was said, does not satisfy that definition because it is directed at the preventive detention of the appellant alone.

It may be observed that the Act clearly does oblige those persons charged with its administration to a course of conduct and that many statute laws, including private Acts, are particular rather than general in their application. It may also be observed that Austin, in drawing a distinction between general commands and commands of occasional or particular application, recognised that the latter, issued by a sovereign legislature, might be called laws [48] .

See Austin, Lectures on Jurisprudence, 5th ed (1885), pp 92-93, 265-267.

But nothing is to be gained for present purposes by a jurisprudential analysis of what constitutes a law. What is involved is the construction of s 5 of the Constitution Act 1902 and it is readily apparent that in the context of that section the word "laws" is synonymous with the word "statutes". If any limitation is to be found upon the power of the Parliament, it is to be found elsewhere in the Constitution Act 1902 [49] or in the words "peace, welfare, and good government" which, as I have said, impose no non-territorial limitation. Clearly, in my opinion, when s 5 speaks of the making of laws by the legislature it speaks of the making of statute law, that is to say, of the passage of Bills through Parliament which subsequently receive royal assent. The legislature is defined in s 3 as the Crown with the advice and consent of the Legislative Council and Legislative Assembly [50] . Section 5 is not seeking to impose a distinction between statutes which embody a law and those which do not, according to a definition of law imported from elsewhere. In an appropriate context (and s 5 is one), a statute may be synonymous with a law because of the manner of its creation. It may be so even if the law lacks validity for it is quite permissible to speak of an invalid law in such a context. The appellant's argument must be rejected.

The New South Wales Constitution and the separation of powers

The appellant contended that the Constitution Act 1902 embodies a separation of powers whereby the judicial power of the State is separated from its legislative and executive powers. As a consequence, he said, judicial power is exercisable only by the judiciary, which is incapable of exercising functions which are not judicial or ancillary thereto. However, there is nothing in the structure of the Constitution Act 1902 to support this contention.

That Act vests legislative power in the legislature (s 5) and leaves unaffected the exercise of executive power through the Governor otherwise than on the advice of the Executive Council (s 35A). There is provision for the continuance of an Executive Council (s 35B) and the Premier and other Ministers of the Crown are to be appointed from its members (s 35E). Whilst Pt 9 of that Act is headed "The Judiciary" nowhere does it provide that the judicial power of the State is vested in the judiciary. Section 53, which is contained in Pt 9, provides that no holder of judicial office may be removed from office save on an address of both Houses of Parliament seeking removal on the ground of proved misbehaviour or incapacity. There are additional provisions relating to the suspension of judicial office and the fixing or changing of retirement age (ss 54, 55). Section 56 provides that Pt 9 does not prevent abolition by legislation of a judicial office whether that be done directly or indirectly by the abolition of a court or part of a court.

Whilst these provisions are concerned with the preservation of judicial independence, they cannot be seen as reposing the exercise of judicial power exclusively in the holders of judicial office. Nor can they be seen as precluding the exercise of non-judicial power by persons in their capacity as holders of judicial office. They clearly do not constitute an exhaustive statement of the manner in which the judicial power of the State is or may be vested [51] . Had Pt 9 attempted such an exercise it would have cut across a long history of the exercise of non-judicial power by the courts and the exercise of judicial power by bodies exercising non-judicial functions [52] .

cf R v Kirby; Ex parte Boilermakers' Society of Australia (1956) 94 CLR 254 at 270 2. See Love v Attorney-General (NSW) (1990) 169 CLR 307 at 318-322 Builders' Labourers Federation v Minister for Industrial Relations (1986) 7 NSWLR 372 at 381

The Constitution Act 1902 may be contrasted with the provisions of the Commonwealth Constitution, in particular ss 1, 61 and 71. Those sections respectively vest the legislative power of the Commonwealth in the Parliament, the executive power in the Executive and the judicial power in the Judicature. Section 1 appears at the commencement of Ch 1, which is headed "The Parliament". Section 61 appears at the commencement of Ch II which is headed "The Executive Government". Section 71 appears at the commencement of Ch III which is headed "The Judicature". In R v Kirby; Ex parte Boilermakers' Society of Australia [53] this Court held that this pattern could not be treated as a "mere draftsman's arrangement" or as "meaningless and of no legal consequence". It is because the judicial power of the Commonwealth is vested by Ch III in those courts which it identifies and is dealt with nowhere else (save for s 51(xxxix)) that this Court was compelled to conclude that no functions other than judicial functions may be reposed in the federal judicature and that no powers which are foreign to the judicial power may be attached to courts created by or under that chapter. Not only that, but it was recognised that the position and constitution of the federal judicature was bound up in the federal structure established by the Constitution, "for upon the judicature rested the ultimate responsibility for the maintenance and enforcement of the boundaries within which governmental power might be exercised" [54] .

(1956) 94 CLR 254 at 275. 2. Boilermakers' Case (1956) 94 CLR 254 at 276.

The latter consideration has no application to the judicature of a State and the failure of the New South Wales Constitution to vest judicial power exclusively in the judicature must be fatal to any contention that the separation of that power from the other powers of government is a constitutional requirement. Even if it could be said that it was required, it might, in contrast to the requirement imposed by the Commonwealth Constitution, be disregarded by an Act of Parliament, for in that respect the New South Wales Constitution is "uncontrolled" [55] . It remains true, therefore, as was said by the New South Wales Court of Appeal in Clyne v East [56] , that the structure and provisions of the Constitution Act 1902 provide no ground for importing into it a principle of separation of powers.

McCawley v The King [1920] AC 691 at 704 2. (1967) 68 SR (NSW) 385 at 395, 400. See also R v Lydon; Ex parte Cessnock Collieries Ltd (1960) 103 CLR 15 at 22 Kotsis v Kotsis (1970) 122 CLR 69 at 76 Love v Attorney-General (NSW) (1990) 169 CLR 307 at 319cf City of Collingwood v Victoria [No 2] [1994] 1 VR 652

The appellant placed reliance upon the Privy Council decision of Liyanage v The Queen [57] in which it was held that the Constitution of Ceylon contained a separation of powers notwithstanding that it was silent as to the vesting of judicial power. But the judicature in Ceylon was in existence before the Constitution and was operating under the Courts Ordinance which contained the jurisdiction and procedure of the courts established under the Charter of Justice in 1833. The Charter provided that "the entire administration of justice, civil and criminal therein, shall be vested exclusively in the courts erected and constituted by this Our Charter". There was, for this reason, so the Privy Council found, no need to make specific reference in the Constitution to the vesting of judicial power, but the organisation of that instrument was otherwise such as to manifest "an intention to secure in the judiciary a freedom from political, legislative and executive control". The Constitution's silence as to the vesting of judicial power was, the Privy Council said, "consistent with its remaining, where it had lain for more than a century, in the hands of the judicature". It was, it said, "not consistent with any intention that henceforth it should pass to or be shared by, the executive or the legislature" [58] .

[1967] 1 AC 259. 2. Liyanage [1967] 1 AC 259 at 287-288

There is no such background to the New South Wales Constitution which inherited the United Kingdom model under which the extent to which a separation of powers was observed was conventional rather than compelled by any constitutional mandate [59] . The New South Wales Court of Appeal was clearly correct in concluding in Clyne v East that, notwithstanding that the Supreme Court of New South Wales also owes its origin to a Charter of Justice, no basis could be found in the provisions of the Constitution Act 1902 for isolating judicial power from the other powers of government [60] . To do so would confine the legislative power conferred by s 5 of the Constitution Act 1902. It is clear that it is not so confined and, as I have explained, it extends to the judiciary. As is well established, the ultimate source of the power contained in s 5 is the Imperial Act (18 & 19 Vict c 54), known as the Constitution Statute 1855, and the Act of the Colony of New South Wales which forms the schedule to the statute (17 Vict No 41), which is called the Constitution Act [61] . Section 49 of the latter Act recognised the power of the New South Wales legislature to abolish, alter or vary the constitution and functions of the courts of the colony. That power may be traced through to s 5 of the Constitution Act 1902. It is for that reason and because of the structure of that Act (which at one time contained no provision at all dealing with the judicature) that no useful comparison can be made with the Ceylon Constitution which was analysed in Liyanage v The Queen .

cf Duport Steels Ltd v Sirs [1980] 1 WLR 142 at 157, 168-169; [1980] 1 All ER 529 at 541-542, 551. 2. See also Builders' Labourers Federation v Minister for Industrial Relations (1986) 7 NSWLR 372 at 381, 400-401, 407, 411-412, 419-420. 3. See Clayton v Heffron (1960) 105 CLR 214 at 251

It is true that Pt 9 of the Constitution Act 1902 is doubly entrenched. Under s 7B(1) of the Constitution Act 1902 specified provisions may not be repealed or altered until the repeal or alteration has been approved by referendum. Those provisions include s 7B itself, so providing a double entrenchment. Part 9 was included in s 7B(1), but that did not occur until after it had been inserted in the Constitution Act 1902 in 1992 [62] . The entrenchment of Pt 9 was effected by s 3 of the Constitution (Entrenchment) Amendment Act 1992 NSW, but that did not come into force until 2 May 1995, that is to say, until after the Act came into force. But, as I have said, Pt 9 deals only with matters relating to judicial independence and does not purport to vest judicial power exclusively in the judiciary or to require the judiciary to exercise only judicial power. Even if the Act amounted to the legislative exercise of a judicial function or required the court to exercise a non-judicial function, it would not fall within the terms of s 7B(1) as repealing or amending Pt 9 of the Constitution Act 1902. It is therefore unnecessary to consider whether, the Act having come into force before the Constitution (Entrenchment) Amendment Act, s 7B(1) would have any application.

Under s 71 of the Commonwealth Constitution, which is the first section of Ch III, the judicial power of the Commonwealth is vested in the High Court "and in such other federal courts as the Parliament creates, and in such other courts as it invests with federal jurisdiction". Whilst the nature of the judicial power so vested is not stated, the matters over which it may be exercised are set out with some particularity in ss 75 and 76. Under s 77(iii) the Parliament may make laws "[i]nvesting any court of a State with federal jurisdiction". In s 39(2) of the Judiciary Act 1903 Cth Parliament has exercised that power by conferring federal jurisdiction (with certain exceptions and qualifications) upon "[t]he several Courts of the States" in the matters specified in ss 75 and 76.

In providing for the vesting of federal jurisdiction in State courts, s 77(iii) plainly contemplated that jurisdiction might be vested in a court which did not have the characteristics required of a federal court under Ch III. As has been said, Ch III requires those courts created by or under it to exercise the judicial power vested in them separately from the other powers of Government. In the interests of judicial independence s 72 also requires that the judges of those courts be appointed until a specified age, be not removable except upon an address of both Houses of Parliament praying for their removal on the ground of proved misbehaviour or incapacity, and be not subject to diminution of their remuneration during their continuance in office [63] .

See Waterside Workers' Federation of Australia v JW Alexander Ltd (1918) 25 CLR 434 at 469-470, per Isaacs and Rich JJ.

Plainly those requirements do not extend to State courts which may be invested with federal jurisdiction under s 77(iii). Section 77(iii) speaks of existing institutions the characteristics of which did not necessarily and did not in fact satisfy those requirements. Indeed, in South Australia at federation an appeal lay from the Supreme Court to the Court of Appeals which comprised the Governor in Executive Council. Special provision had to be made in s 73 of the Constitution to include the Court of Appeals [64] . As I have said, in New South Wales there has never been a constitutional requirement of separation of powers and Pt 9 of the Constitution Act 1902, which guarantees a measure of judicial independence, was inserted only in 1992. But as Isaacs J said in R v Murray and Cormie; Ex parte The Commonwealth [65] :

The Constitution, by Ch III, draws the clearest distinction between federal Courts and State Courts, and while enabling the Commonwealth Parliament to utilise the judicial services of State Courts recognises in the most pronounced and unequivocal way that they remain "State Courts." And as Knox CJ, Rich and Dixon JJ pointed out in Le Mesurier v Connor [66] : The Parliament may create Federal Courts, and over them and their organisation it has ample power. But the Courts of a State are the judicial organs of another Government. They are created by State law; their existence depends upon State law; that law, primarily at least, determines the constitution of the Court itself, and the organisation through which its powers and jurisdictions are exercised. 1. See Official Record of the Debates of the Australasian Federal Convention, (Melbourne) 31 January 1898, vol IV, pp 332-333. 2. (1916) 22 CLR 437 at 452. 3. (1929) 42 CLR 481 at 495-496.

Considerations such as those were in the mind of Griffith CJ when he said in Federated Sawmill, Timberyard and General Woodworkers' Employees' Association (Adelaide Branch) v Alexander [67] that "when the Federal Parliament confers a new jurisdiction upon an existing State Court it takes the Court as it finds it, with all its limitations as to jurisdiction, unless otherwise expressly declared". They were in the mind of Latham CJ when he said in Peacock v Newtown Marrickville & General Co-operative Building Society No 4 Ltd [68] that "[t]he Commonwealth Parliament cannot, by virtue of s 77(iii) of the Constitution, under the guise of conferring jurisdiction upon a State court, in effect create a new Federal court, possibly without observing the conditions imposed upon such creation by s 72 of the Constitution " [69] .

(1912) 15 CLR 308 at 313. 2. (1943) 67 CLR 25 at 37. 3. See also Adams v Chas S Watson Pty Ltd (1938) 60 CLR 545 at 554-555 Russell v Russell (1976) 134 CLR 495 at 516-517, 530, 535, 554; Brown v The Queen (1986) 160 CLR 171 at 198-199

The suggestion that the Constitution does not permit of two grades of judiciary exercising the judicial power of the Commonwealth, or that Ch III does not draw the clear distinction between State and federal courts which it has hitherto been thought to, simply ignores the fact that the Constitution ensures security of tenure and of remuneration in respect of judges of courts created by or under Ch III but does not do so in respect of judges of State courts invested with federal jurisdiction. It equally ignores the fact that the Constitution does not require that State courts only exercise judicial power. The suggestion that the Act is invalid because it compromises the institutional impartiality of the Supreme Court of New South Wales ignores the fact that the mechanisms for ensuring judicial impartiality and independence - security of tenure and remuneration, and separation from the other arms of government - are not constitutionally prescribed for State courts notwithstanding that they are prescribed for courts created by or under Ch III. It is difficult to conceive of a clearer distinction.

It is true that some qualifications must be placed upon the statement that the federal Parliament must, in exercising its power under s 77(iii), take a State court as it finds it. Under s 79 Parliament may prescribe the number of judges to exercise federal jurisdiction. And clearly Parliament may extend the jurisdiction of the court because that is precisely what s 77(iii) envisages. Also it may regulate the practice and procedure which the State court is to follow in exercising the invested jurisdiction. But it may go no further than is necessary for that purpose; it may not legislate with respect to the court itself [70] . That is to say, it may not alter the character or constitution of the court. And just as the Parliament cannot do that under s 77(iii), it is clear that there is nothing in Ch III itself which does so.

See Russell v Russell (1976) 134 CLR 495 at 519-520, per Gibbs J.

And yet the appellant's argument, as I understand it, is that the Commonwealth Constitution, and Ch III in particular, precludes a State court, as the potential or actual repository of federal jurisdiction, from having functions conferred upon it by the State legislature which are incompatible with Ch III. Either that or, so the appellant's argument goes, a law, such as s 39(2) of the Judiciary Act 1903 Cth, which invests a State court with federal jurisdiction, is inconsistent with a State law conferring a function upon that court which is incompatible with Ch III and must, for that reason, prevail over the State law under s 109 of the Constitution.

It may be said at the outset that such an argument simply denies the proposition, hitherto accepted without question, that Ch III, and s 77(iii) in particular, treats State courts as existing institutions. The result is that, so long as they are in fact courts, Ch III is unconcerned with whether they comply with the requirements of Ch III for courts created by or under that chapter. State courts are not created by or under Ch III and, provided they are courts within the meaning of s 77(iii), it matters not for the purposes of Ch III what functions they perform in exercising the jurisdiction vested in them by State legislation. That is for the State legislature to determine. As Mason J said in The Commonwealth v Hospital Contribution Fund [71] :

Generally speaking, the Parliament of a State may in the exercise of its plenary legislative power alter the composition, structure, and organisation of its Supreme Court for the purposes of the exercise of State jurisdiction Ch III of the Constitution contains no provision which restricts the legislative competence of the States in this respect. Nor does it make any discernible attempt to regulate the composition, structure or organisation of the Supreme Courts as appropriate vehicles for the exercise of invested federal jurisdiction. It is therefore sensible and natural to read the expression "any Court of a State" in s 77(iii) as referring to State courts in the sense explained by Gibbs J in Kotsis .

His Honour there observed that the exercise of federal jurisdiction did not call for a curial organisation different in kind from that established for the exercise of State jurisdiction [72] . In this situation there is every reason for supposing that the framers of the Constitution intended to arm the Parliament of the Commonwealth with a power to invest federal jurisdiction in a State court as it happened to be organised under State law from time to time. Although the Commonwealth Parliament has no power to alter the structure or organisation of State courts, its freedom of action is completely preserved. It has the choice of investing State courts with federal jurisdiction or of establishing appropriate federal courts. (Emphasis added.)

Kotsis (1970) 122 CLR 69 at 110
1. (1982) 150 CLR 49 at 61.
2. Kotsis (1970) 122 CLR 69 at 110

Whether State courts invested with federal jurisdiction are part of the federal judicature or not is a question of little practical significance, save perhaps in considering the application of the incidental power conferred by s 51(xxxix). They remain State courts even though, when exercising federal jurisdiction, they may be regarded as a component of the federal judicature. There is no one court system in Australia [73] . Each of the States has its own hierarchy which is governed by State legislation. The federal courts created under s 71 of the Constitution constitute a different system. Of course, the whole can be regarded as an entirety. After all, the different parts have a common origin in law and the common law precedes the emergence of the different jurisdictions and applies in them all. Not only that, but the creation of the High Court as a court of appeal - now the final court of appeal - from the courts of all jurisdictions, federal and state, has a unifying influence upon both the common law and also in a more general way. But our legal system, though integrated, is not a unitary system. The States are distinct jurisdictions and the enactments of each of their legislatures are confined in their operation so that in other States their recognition is governed by common law principles and such requirements as flow from the full faith and credit required by s 118 of the Constitution. Federal law, of course, is binding on all courts whether exercising federal jurisdiction or not [74] . The system is a federal system and, whilst the framers of the Constitution might have established a judicial system which was neither State nor federal but simply Australian, they did not do so [75] . It is therefore dangerous to attempt to draw conclusions from the fact that the Australian legal system may be regarded as a whole. It may be, but as a matter of legal analysis that is to stop short of an appreciation of its different parts.

See Leeth v The Commonwealth (1992) 174 CLR 455 at 468-469, per Mason CJ, Dawson and McHugh JJ. 2. See covering cl 5. 3. See Dixon, Sources of Legal Authority, Jesting Pilate (1965) 198, at p 201.

Clearly, a State court may exercise executive or legislative as well as judicial functions, where, as in the case of New South Wales, the State constitution does not require judicial power to be separated from executive and legislative power. In so doing the State court is exercising a function which may not be exercised by a federal court under Ch III. That chapter does not allow a combination of judicial and executive or legislative power in federal courts. As the majority said in the Boilermakers' Case [76] :

The basal reason why such a combination is constitutionally inadmissible is that Ch III does not allow powers which are foreign to the judicial power to be attached to the courts created by or under that chapter for the exercise of the judicial power of the Commonwealth. That passage is careful to omit any reference to State courts invested with federal jurisdiction under s 77(iii) and that is because under State constitutions the combination which is impermissible under Ch III is permissible. 1. (1956) 94 CLR 254 at 289.

Once it is recognised that there is no requirement in the New South Wales Constitution that courts in that State perform solely judicial functions and that, notwithstanding that characteristic, they are nevertheless courts which may be invested with federal jurisdiction under s 77(iii) of the Commonwealth Constitution, any question of incompatibility with Ch III upon the ground that the State court is required to perform executive or legislative functions must disappear. Certainly those functions may not be performed by a federal court created by or under Ch III. That is because the federal court is precluded by the separation of judicial power from performing them. But as far as State courts are concerned there is no incompatibility with Ch III because that chapter accepts those courts as existing institutions which may be invested with federal jurisdiction notwithstanding that they are not subject to any doctrine of separation of powers.

It may be that, in referring to incompatibility, the appellant used the word in the sense in which it was used by the majority in Grollo v Palmer [77] where it was said that the ability of parliament to confer a non-judicial function on a judge of a Ch III court as a designated person rather than as a judge is subject to the limitation that the non-judicial function must not be incompatible either with the judge's performance of his or her judicial functions or with the proper discharge by the judiciary of its responsibilities as an institution exercising judicial power. So much, it was said in that case, was to be "implied from the separation of powers mandated by Chs I, II and III of the Constitution and from the conditions necessary for the valid and effective exercise of judicial power" [78] .

(1995) 184 CLR 348 at 365. 2. Grollo v Palmer (1995) 184 CLR 348 at 365

But the judicial power of which the majority were there speaking was the judicial power exercised by a federal court created by or under Ch III - a Ch III court. The nature of that judicial power is, as was acknowledged in Grollo , very much determined by the separation of powers which the Constitution requires to be observed in relation to such a court. As the Privy Council observed in the Boilermakers' Case [79] , the separation of powers is, in a federal system, a guarantee of the absolute independence of the judiciary which is "the bulwark of the constitution against encroachment whether by the legislature or by the executive" [80] . What is incompatible with the exercise of the judicial power of the Commonwealth by a Ch III court may not be incompatible with the exercise of the judicial power of the Commonwealth by a court which is not restricted by any separation of powers. As Grollo makes clear, the concept of incompatibility is derived from the separation of powers and does not have a life of its own independent of that doctrine. Five members of the Court recognised that very point in Wilson v Minister for Aboriginal and Torres Strait Islander Affairs [81] where they said that " Grollo was concerned with constitutional incompatibility, derived from the constitutional separation of the functions of the Judiciary from the functions of the Parliament and the Executive". (Emphasis added.)

Attorney-General (Cth) v The Queen (1957) 95 CLR 529 at 540[1957] AC 288 at 314-315 2. See also R v Davison (1954) 90 CLR 353 at 381-382, per Kitto J. 3. (1996) 189 CLR 1 at 15, per Brennan CJ, Dawson, Toohey, McHugh and Gummow JJ.

In any event, no question of incompatibility in the sense in which the concept was used in Grollo arises in this case. In that case, the persona designata doctrine was held to justify the giving of an executive function to a judge of a Ch III court. Incompatibility was raised only to demonstrate that the persona designata doctrine has its limits. In this case, where the New South Wales court is not affected by any separation of powers, there is no call for the invocation of the persona designata doctrine and no question of incompatibility arises from the vesting in the court [82] of an executive function. Nor can it be said in these circumstances that a particular type of executive function is incompatible with the exercise of judicial power any more than it can be said that a particular type of judicial function is inconsistent with the exercise of executive or legislative power. The reasons, which are readily apparent, for the adoption of a separation of powers in a federal structure do not have the same force in a unitary state. Be that as it may, New South Wales has not adopted that doctrine so that there can be no incompatibility between the exercise of judicial power and the exercise of executive or legislative power by a court of that State. And there can be no incompatibility with Ch III arising from that situation because it was within the contemplation of those who framed that chapter that federal jurisdiction might be vested in State courts exercising executive or legislative functions as well as judicial powers. If the position is that the conferral of some non-judicial functions on a State court by a State parliament is so undesirable as to be unconstitutional, a quasi-separation of powers will be established in the States, totally contrary to the position which had hitherto been unquestioned and without the virtue of that separation being able to be determined by any criterion other than undesirability. Of course, only judicial functions may be vested by the federal Parliament in State courts pursuant to s 77(iii) [83] , but that is an entirely different thing.

It is clear that the powers conferred by the Act are vested in the Supreme Court of New South Wales and not in the judges of that court as personae designatae. 2. See Queen Victoria Memorial Hospital v Thornton (1953) 87 CLR 144

Because Ch III contemplates that federal judicial power will be exercised by a State court which is not otherwise confined to the exercise of judicial power, it makes no difference that in this case the Supreme Court of New South Wales may have been exercising federal jurisdiction in making orders against the appellant because he raised in his defence the question of the invalidity of the Act under the Commonwealth Constitution. It was the appellant's contention that this made the case a matter arising under the Constitution or involving its interpretation within the meaning of s 76(1) of the Constitution and thus within the ambit of the federal jurisdiction vested in the court under s 39(2) of the Judiciary Act. I am aware of the views expressed in Felton v Mulligan [84] to the effect that once federal jurisdiction is attracted, even by a point raised in a defence, the jurisdiction exercised throughout the case will remain federal jurisdiction. For the purpose of determining the available avenues of appeal that may be the only practical approach, but I would observe that it may lead to a very artificial result in a case such as this, namely, that the Supreme Court of New South Wales was exercising federal jurisdiction in ordering the preventive detention of the appellant under a New South Wales Act. Perhaps the answer may lie in the suggestion by Barwick CJ in Felton v Mulligan [85] that separate and discrete questions may arise, the determination of which will constitute separate proceedings. But there is no need to pursue that matter here.

(1971) 124 CLR 367 at 373, 412-413. 2. (1971) 124 CLR 367 at 373.

It also follows from what I have said that a federal law, such as s 39(2) of the Judiciary Act, which invests a State court with federal jurisdiction, is not inconsistent with a State law which confers functions upon that court of a type which could not be conferred upon a Ch III court. Such a federal law may be passed pursuant to s 77(iii) of the Constitution, which, as has been said again and again, envisages the vesting of federal jurisdiction in State courts as existing institutions possessing characteristics which are not and cannot be possessed by a Ch III court, such as the capacity to exercise executive or legislative power as well as judicial power. Section 39(2) of the Judiciary Act does not and could not require a State court which it invests with federal jurisdiction to exercise judicial power separately and it is thus not inconsistent with a State law which confers upon the court a function which is other than judicial.

For these reasons, the Act is in my opinion valid. In reaching this conclusion I have not found it necessary to examine the view advanced by the appellant that the Act authorises the court to impose punishment upon him by way of an executive or legislative act for reasons other than his commission of a crime. However, in Chu Kheng Lim v Minister for Immigration [86] it was recognised that "[i]nvoluntary detention in cases of mental illness or infectious disease can also legitimately be seen as non-punitive in character". It is apparent from the Act that the New South Wales legislature perceived that there was a gap in the law arising from the fact that there may exist in the community persons with personality disorders which strongly dispose them to commit acts of violence but who are not mentally ill and thus are unable to be detained under mental health legislation [87] . The need for legislation in that situation was foreseen by Deane J in Veen v The Queen [No 2] [88] when he said:

[T]he 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. The detention which the Act authorises the court to impose upon the appellant is, the respondent contends, preventive rather than punitive, although the appellant understandably points to the fact that the detention is in a prison, a place of punishment, rather than some other institution. Moreover, 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 [89] . On an application made in accordance with the Act, the court is required to be satisfied that the criteria laid down by s 5(1) are met before making a detention order. The issues raised are not predetermined by the legislation, as the refusal by Grove J to grant a second preventive detention order demonstrates. Clearly the Act does not amount to a bill of attainder or of pains and penalties. It does not involve a legislative judgment of criminal guilt and, in any event, does not have an ex post facto operation. 1. (1992) 176 CLR 1 at 28. 2. See, eg, Mental Health Act 1990 NSW, s 9(1). See also Williams, Psychopathy, Mental Illness and Preventive Detention: Issues Arising from the David Case, Monash University Law Review, vol 16 (1990) 161, at pp 165-166. 3. (1988) 164 CLR 465 at 495. 4. See Palling v Corfield (1970) 123 CLR 52 at 58-59, 62, 64-65, 68-69.

In the light of the conclusions which I have reached, these considerations raise matters which go to the desirability of the Act rather than to its validity. Notwithstanding that the wisdom of the policy adopted by the legislature is open to question, the policy is a matter for the legislature rather than for this Court.

The Court of Appeal of New South Wales dismissed an appeal by the appellant against orders made by Levine J under the Community Protection Act 1994 NSW (the Act) [90] .

Kable v Director of Public Prosecutions (1995) 36 NSWLR 374

Section 5(1) of the Act empowers the Supreme Court, on application made in accordance with the Act, to order that "a specified person be detained in prison for a specified period" (a "preventive detention order") if the Court is satisfied on reasonable grounds:

(a) that the person is more likely than not to commit a serious act of violence; and

(b) that it is appropriate, for the protection of a particular person or persons or the community generally, that the person be held in custody.

While the Act gives rise to some important questions, it also has some odd features. Undoubtedly these are the result of amendments made while the Bill was in progress through Parliament, without sufficient attention being paid to their impact on other provisions of the Act. For instance, the long title refers to "An Act to protect the community by providing for the preventive detention of persons who are, in the opinion of the Supreme Court, more likely than not to commit serious acts of violence". On its face then, the Act is of application to that class of persons whom it identifies. Yet s 3(1) expresses the object of the Act to be "to protect the community by providing for the preventive detention of Gregory Wayne Kable" while s 3(3) "authorises the making of a detention order against Gregory Wayne Kable and does not authorise the making of a detention order against any other person". There is no definition as such of the expression "a specified person" as it appears in s 5(1) but the provision must be read as if "Gregory Wayne Kable" were substituted for "a specified person". This produces further anomalies. For instance, s 10 prohibits the making of a detention order "against a person who is under the age of 16 years" though there can be no such person on whom the Act may operate. Clearly enough, the original intention of the legislature was to enact a statute of more general application; what emerged was legislation directed at one person only.

The maximum period of detention to be specified in an order under s 5 is six months [91] . The Act does permit the making of further orders pursuant to s 5. On 21 August 1995 Grove J refused to make a further order under the Act. However, that does not preclude the making of a further application against the appellant [92] .

s 5(2). Section 7 authorises the making of an interim detention order for a period not exceeding three months for the purpose of the medical examination of the defendant and also to enable "other proceedings to be brought for the purpose of committing the defendant to custody or other involuntary detention": s 7(2)(c). 2. Section 5(4) provides that more than one application under the section may be made in relation to the same person.

Curiously, proceedings under the Act are identified as "civil proceedings" (s 14) and the standard of proof is "on the balance of probabilities" (s 15). In any proceedings under the Act the Court is bound by the rules of evidence (s 17(1)(a)) but it may order the production of medical records and reports and other documents (s 17(1)(b)) in which event, it would seem, their contents may constitute evidence which ordinarily would be inadmissible (see s 17(3)). The jurisdiction of the Court is exercisable by a single Judge, with a right of appeal against the making of or refusing to make a preventive detention order to the Court of Appeal on a question of law, or fact, or mixed law and fact (ss 24, 25).

The appellant's attack on the validity of the legislation took several forms, not all of which were entirely discrete from or independent of each other. At the forefront of the attack was an argument that wore two faces. One was that the Act constituted an exercise of judicial power by the Parliament of New South Wales. The other was that the Act invests in the Supreme Court of New South Wales a non-judicial power which is incompatible with Ch III of the Commonwealth Constitution. Counsel for the appellant said that this latter argument was not concerned with any doctrine of the separation of powers, as was the former argument, but only with the consequences of conferring upon a State court a jurisdiction which is incompatible with the exercise of federal judicial power. The argument of incompatibility has its foundation in the judicial power of the Commonwealth as identified by Ch III.

The appellant further argued that the Act is beyond the legislative power of the Parliament of New South Wales because it authorises the detention of the appellant without prescribing a rule of conduct by which he is to be judged. It was said, therefore, not to constitute a law. There were other attacks on the Act on the footing that it treats the appellant differently from all other persons and that it is a bill of attainder or of pains and penalties.

The power of the legislature of New South Wales is, by reason of the Constitution Act 1902 NSW, s 5, "subject to the provisions of the Commonwealth of Australia Constitution Act to make laws for the peace, welfare, and good government of New South Wales in all cases whatsoever". In Union Steamship Co of Australia Pty Ltd v King [93] this Court said that such a power is indistinguishable from the power to make laws "for the peace, order and good government" of a territory and that [94] :

[T]he words "for the peace, order and good government" are not words of limitation [T]hey do not confer on the courts of a State, jurisdiction to strike down legislation on the ground that, in the opinion of a court, the legislation does not promote or secure the peace, order and good government of the [State] Whether the exercise of that legislative power is subject to some restraints by reference to rights deeply rooted in our democratic system of government and the common law is another question which we need not explore. 1. (1988) 166 CLR 1. 2. Union Steamship (1988) 166 CLR 1 at 10.

It follows that no attack may be made on the Act simply on the ground that it does not secure the peace, welfare, and good government of New South Wales unless, perhaps, it falls within the category tentatively identified in the passage last quoted. It does not appear that the appellant seeks to bring his case directly within that category. But he does argue for a limitation on legislative power in the sense that the Parliament of New South Wales, not being a recipient of judicial power or function, may not itself exercise such a power or function.

In Fencott v Muller [95] Mason, Murphy, Brennan and Deane JJ referred to judicial power as the power of a sovereign authority to decide controversies between its subjects or between itself and its subjects. Their Honours continued:

The unique and essential function of the judicial power is the quelling of such controversies [that is, controversies between the subjects of a sovereign authority or between the authority and its subjects] by ascertainment of the facts, by application of the law and by exercise, where appropriate, of judicial discretion. The appellant's contention was that an application to the Supreme Court under the Act is in truth a formality, the outcome of which is dictated by the legislation. Although s 5(1) provides that the Court "may" order detention, if satisfied as to the criteria in pars (a) and (b), the appellant submitted that when the Act is read as a whole not only must the Court exercise the power once the criteria have been met [96] but that it is left with no determinative function. Thus the Act was said to be an exercise by the legislature of judicial power by directing the Court to find the criteria satisfied and in consequence to make a preventive detention order. 1. (1983) 152 CLR 570 at 608. 2. See Finance Facilities Pty Ltd v Federal Commissioner of Taxation (1971) 127 CLR 106 at 134-135 Mitchell v The Queen (1996) 184 CLR 333 at 345-346

The respondent challenged the proposition that the Act is an exercise of judicial power by the legislature. On the respondent's argument there is nothing in the Act which dictates the outcome of an application under s 5. It remains for the Supreme Court to be satisfied (albeit on the balance of probabilities) on reasonable grounds that the appellant is more likely than not to commit a "serious act of violence" [97] and that it is appropriate for the protection of a particular person or persons or the community generally, that the appellant be held in custody.

The expression is defined in s 4 as an act of violence that has a real likelihood of causing death or serious injury or that involves sexual assault in the nature of an offence referred to in various specified sections of the Crimes Act 1900 NSW.

In my view, s 5(1) does require a consideration by the Court of the criteria in pars (a) and (b) and accordingly it obliges the Court to be satisfied, on reasonable grounds, that it is appropriate that a preventive detention order be made. It is true that s 3(2) reads: "In the construction of this Act, the need to protect the community is to be given paramount consideration." But the requirement is related to the construction of the provisions of the Act rather than the assessment of the evidence necessary to satisfy the criteria. That the Court may consider an order not to be appropriate in the circumstances is borne out by the refusal of Grove J to make an order under the section. Nevertheless, if the Court is satisfied in terms of pars (a) and (b), it can hardly do other than make a preventive detention order.

In any event 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. In Building Construction Employees and Builders' Labourers Federation (NSW) v Minister for Industrial Relations (the Builders' Labourers Federation Case) [98] the Court of Appeal held that the courts could not declare invalid the Builders Labourers Federation (Special Provisions) Act 1986 NSW even though the Act was, in directing the outcome of pending litigation, an exercise of judicial power. In the course of his judgment, Street CJ said [99] :

Parliament in this State has power to adjudicate between parties by an exercise of judicial power

I recognise that the New South Wales Parliament has judicial power.

Priestley JA discussed this aspect, pointing out that the Supreme Court of Judicature Act 1873 UK effectively brought to an end the existing superior courts and brought into existence one Supreme Court in which litigation already begun would be continued. His Honour observed [100] : [T]his alteration in the English judicial system does not appear to have given rise to any comment relating to the doctrine of the separation of powers. 1. (1986) 7 NSWLR 372. 2. Builders' Labourers Federation Case (1986) 7 NSWLR 372 at 381. 3. Builders' Labourers Federation Case (1986) 7 NSWLR 372 at 416-417.

The appellant conceded that the Parliament of New South Wales may confer upon the Supreme Court functions which would be regarded as non-judicial in the context of Ch III [101] . Nevertheless, he argued that separation of powers should be inferred from the Constitution of New South Wales, in particular by reason of Pt 9. Part 9 was inserted to secure the independence of the judiciary by providing for the appointment of judges and the circumstances in which they may be removed from office. The appellant contended that this gave rise to a constitutional separation of judicial power from legislative power.

See, eg, Love v Attorney-General (NSW) (1990) 169 CLR 307

The respondent replied, first, that the double entrenching of Pt 9 occurred after the events relevant to the appeal. Part 9 of the Constitution Act was inserted by the Constitution (Amendment) Act 1992 NSW and commenced on assent [102] . It was not at that stage doubly entrenched. It became so on 2 May 1995, following a referendum and the Constitution (Entrenchment) Amendment Act 1992 NSW. Levine J made his order on 23 February 1995.

Secondly, the respondent submitted that in any event Pt 9 is of limited operation. In particular, it is said, Pt 9 does not purport to be "an exhaustive statement of the manner in which the judicial power of the [State of New South Wales] is or may be vested" [103] .

See R v Kirby; Ex parte Boilermakers' Society of Australia (1956) 94 CLR 254 at 270

Part 9 is of limited operation in the sense that it deals with the appointment and removal of judges and not with wider considerations. Judicial independence does not of itself protect the judicial process from legislative interference as Street CJ noted in the Builders' Labourers Federation Case [104] . There is no real comparison between Pt 9 and Ch III of the Commonwealth Constitution. Chapter III vests the judicial power of the Commonwealth exclusively in the courts which it identifies and in clear terms recognises the separation of the judicial power of the Commonwealth from legislative and executive powers [105] . It is a consequence of that division that the Parliament of the Commonwealth may not interfere with the judicial process itself [106] .

(1986) 7 NSWLR 372 at 376. 2. Chu Kheng Lim v Minister for Immigration (1992) 176 CLR 1 at 26 3. Australian Building Construction Employees' and Builders Labourers' Federation v The Commonwealth (1986) 161 CLR 88 at 96

But it follows from what has been said that there is nothing in the Constitution (NSW) which prevents the legislature from exercising judicial power.

The appellant also says that the qualification in s 5 of the Constitution Act - subject to the provisions of the Commonwealth of Australia Constitution Act - means that the Supreme Court, as one of the judicial institutions of this country, may not act in a manner inconsistent with Ch III of the Commonwealth Constitution. Section 5 is a qualification on the power of the Parliament of New South Wales; it does not impose the requirements of Ch III on a State court exercising State jurisdiction.

However, the appellant argues to the same end by reason of the Commonwealth Constitution itself. Section 71 of the Constitution vests the judicial power of the Commonwealth in the High Court "and in such other federal courts as the Parliament creates, and in such other courts as it invests with federal jurisdiction". Section 77(iii) empowers the Parliament to make laws "[i]nvesting any court of a State with federal jurisdiction". Effect is given to s 77(iii) by s 39(2) of the Judiciary Act 1903 Cth which invests the "several Courts of the States" with "federal jurisdiction" in all matters in which the High Court has original jurisdiction or in which original jurisdiction can be conferred upon it, subject to s 38 which identifies those matters in which the jurisdiction of the High Court is exclusive of those courts. To the extent that they are invested with federal jurisdiction, the federal courts and the courts of the States exercise a common jurisdiction [107] . It follows that in the exercise of its federal jurisdiction a State court may not act in a manner which is incompatible with Ch III of the Commonwealth Constitution.

Breavington v Godleman (1988) 169 CLR 41 at 166-167

The respondent accepted that in the present case the Supreme Court was exercising federal jurisdiction vested in it by s 39 of the Judiciary Act. The reason for the concession was that the appellant was relying upon what the Solicitor-General for New South Wales described as "federal constitutional points", not only before this Court but at first instance and on appeal to the Court of Appeal. The reference to "federal constitutional points" was a reference to submissions made on behalf of the appellant that an implication is to be drawn from the Commonwealth Constitution that legislation, whether federal or State, that is directed against or discriminates against an individual is invalid. In addition the appellant relied upon s 80 of the Constitution to argue that a charge of the offence created by the Act must be tried by a judge and jury. The federal judicial power may be attracted by the defence raised to a claim for relief [108] . Thus, it was said, federal jurisdiction was attracted in the present case, whereupon "there is no room for the exercise of a State jurisdiction which apart from any operation of the Judiciary Act the State court would have had" [109] . Professor Lane has said [110] :

Jurisdiction and the judicial power of the Commonwealth are two distinct notions, calling on different constitutional provisions and different decisional law. Although the argument before the Court proceeded at times by reference to federal jurisdiction, in truth it is the judicial power of the Commonwealth with which the Court is concerned, a power applicable by reason of s 71 of the Constitution. The Supreme Court of New South Wales was required, at first instance and on appeal, to determine questions arising under the Constitution. In those circumstances s 39(2) of the Judiciary Act, read with s 77(iii) of the Constitution, conferred jurisdiction on the Supreme Court to determine those questions. Section 71 of the Constitution ensured that the judicial power of the Commonwealth was engaged in those circumstances. 1. Felton v Mulligan (1971) 124 CLR 367 2. Felton v Mulligan (1971) 124 CLR 367 at 373, per Barwick CJ. 3. Lane, The Australian Federal System, 2nd ed (1979), p 446.

The argument advanced on behalf of the appellant was that the Act vests in the Supreme Court of New South Wales a non-judicial power which is offensive to Ch III of the Constitution. Hence any exercise of that power would be unconstitutional and the Act conferring the power would be invalid. Reliance was placed on what Dixon CJ, McTiernan, Fullagar and Kitto JJ said in R v Kirby; Ex parte Boilermakers' Society of Australia [111] :

The organs to which federal judicial power may be entrusted must be defined, the manner in which they may be constituted must be prescribed and the content of their jurisdiction ascertained. These very general considerations explain the provisions of Ch III of the Constitution. The argument is not one which relies upon the alleged separation of legislative and judicial functions under the Constitution of New South Wales. Rather it is that the jurisdiction exercised under the Act is inconsistent with Ch III of the Commonwealth Constitution because the very nature of the jurisdiction is incompatible with the exercise of judicial power. 1. (1956) 94 CLR 254 at 268.

The appellant's senior counsel was at pains to eschew any notion that his submission involved challenging the well-established doctrine that, in investing judicial power in the States, the Parliament must take the State courts as it finds them. For instance, the appellant accepted that State courts may be vested with non-judicial powers and functions. His argument was that 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. In other words, the issue as presented by the appellant was not one of judicial versus legislative or executive power but of incompatibility with the essence of judicial power. Hence, no question of taking the courts as the Parliament finds them truly arose. It follows that passages in the judgments of this Court which emphasise that the courts of a State are the judicial organs of the State and not of the Commonwealth do not resolve the questions now facing this Court [112] . By reason of the issues raised in the case, the Supreme Court exercised federal jurisdiction. It is not the investing of the Supreme Court with federal jurisdiction that is in issue; it is the exercise of federal jurisdiction by the Supreme Court in the circumstances arising under the Act that is challenged.

Federated Sawmill, Timberyard and General Woodworkers' Employees' Association (Adelaide Branch) v Alexander (1912) 15 CLR 308 at 313 Le Mesurier v Connor (1929) 42 CLR 481 at 495-496 Peacock v Newtown Marrickville & General Co-operative Building Society No 4 Ltd (1943) 67 CLR 25 at 37

In Grollo v Palmer [113] the Court held that the vesting in designated judges of the Federal Court of the power to issue interception warrants was not incompatible either with the judge's performance of his or her judicial functions or with the proper discharge by the judiciary of its responsibilities as an institution exercising judicial power. Nevertheless the Court emphasised that "no function can be conferred that is incompatible with the proper discharge by the judiciary of its responsibilities as an institution exercising judicial power" [114] . It is true that the proposition was enunciated in the context of the power to confer non-judicial functions on judges as designated persons but in my view it holds good whenever Ch III of the Constitution is operative. And Mistretta v United States [115] , to which the majority judgment refers with approval, is couched in terms of constitutional doctrine. The emphasis in the judgment of the Supreme Court of the United States is on "the integrity of the Judicial Branch".

(1995) 184 CLR 348. 2. Grollo v Palmer (1995) 184 CLR 348 at 365 3. (1989) 488 US 361 at 404.

The appellant's argument of incompatibility of function rests on several foundations. But fundamentally it relies upon the nature of the Act whereby the Supreme Court may order the imprisonment of a person although that person has not been adjudged guilty of any criminal offence. The Supreme Court is thereby required to participate in a process designed to bring about the detention of a person by reason of the Court's assessment of what that person might do, not what the person has done.

The Act speaks of likelihood "to commit a serious act of violence". If the power to detain were the consequence of the actual commission of a serious act of violence, it might be little different from the power to impose an indeterminate sentence to be found in various statutes [116] . In those cases, however, some prior conduct in the form of the commission of an offence of a prescribed nature is the basis upon which an indeterminate sentence may be ordered. The appellant's complaint is that, while prior conduct may bring him to the attention of the authorities, no such conduct is identified as the basis for the making of an order under s 5. No doubt prior conduct has an evidentiary part to play; without it there could hardly be a conclusion that the appellant was more likely than not to commit a serious act of violence. In that respect it was a relevant consideration that the appellant had been charged with the murder of his wife and that subsequently he pleaded guilty of manslaughter, a plea which was accepted by the Crown by reason of his diminished responsibility. But the order for his detention was not made by reason of his commission of that offence. Likewise, it may have been a relevant consideration, in terms of the Act, that the appellant was facing 17 charges alleging contravention of s 85S of the Crimes Act 1914 Cth in making improper use of postal services by sending threatening letters to various persons including his children. But the Act required no determination of his guilt for any of those offences as a condition of the order made against him.

In Chu Kheng Lim v Minister for Immigration [117] Brennan, Deane and Dawson JJ said:

[P]utting to one side the exceptional cases to which reference is made below, the involuntary detention of a citizen in custody by the State is penal or punitive in character and, under our system of government, exists only as an incident of the exclusively judicial function of adjudging and punishing criminal guilt. The exceptional cases to which their Honours referred are committal to custody pending trial, involuntary detention in cases of mental illness or infectious disease, the traditional power of Parliament to punish for contempt and of military tribunals to punish for breach of military discipline [118] . In Lim the Court was concerned with provisions of the Migration Act 1958 Cth which authorised the detention of non-citizens for a specified period for the purposes of expulsion or deportation. The validity of those provisions as an exercise of the constitutional power conferred in relation to aliens by s 51(xix) of the Commonwealth Constitution was upheld by the Court. 1. (1992) 176 CLR 1 at 27. 2. Lim (1992) 176 CLR 1 at 28

The situation in the present case is quite different from that in Lim . Preventive detention under the Act is an end in itself. And the person so detained "is taken to be a prisoner within the meaning of the Prisons Act 1952 " (s 22(1)). It is not an incident of the exclusively judicial function of adjudging and punishing criminal guilt. It is not part of a system of preventive detention with appropriate safeguards, consequent upon or ancillary to the adjudication of guilt [119] . Nor does it fall within the "exceptional cases" mentioned in Lim , directly or by analogy. In the present case the Act requires the Supreme Court to exercise the judicial power of the Commonwealth in a manner which is inconsistent with traditional judicial process [120] .

Section 21 requires the making of reports to the Director of Public Prosecutions on the "condition and progress" of the appellant while a preventive detention order is in force. 2. See Nationwide News Pty Ltd v Willis (1992) 177 CLR 1 at 70

The extraordinary character of the legislation and of the functions it requires the Supreme Court to perform is highlighted by the operation of the statute upon one named person only. In this respect the Act is virtually unique [121] . It does not define "a specified person" by reference to any class or category and it carries no consequences for any person, other than the appellant, to whom its language might otherwise be applicable.

The Community Protection Act 1990 Vic was enacted to authorise preventive detention for Gary David. See Fairall, Violent Offenders and Community Protection in Victoria - The Gary David Experience, Criminal Law Journal, vol 17 (1993) 40.

The Act answers that aspect of incompatibility which was identified in Grollo v Palmer as "the performance of non-judicial functions of such a nature that public confidence in the integrity of the judiciary as an institution is diminished" [122] . The function exercised by the Supreme Court under the Act offends Ch III which, as I said in Harris v Caladine [123] , reflects an aspect of the doctrine of separation of powers, serving to protect not only the role of the independent judiciary but also the personal interests of litigants in having those interests determined by judges independent of the legislature and the executive [124] . The function offends that aspect because it requires the Supreme Court to participate in the making of a preventive detention order where no breach of the criminal law is alleged and where there has been no determination of guilt. On that ground I would hold the Act invalid. It is not possible to sever s 5 from the rest of the Act which exists only to give effect to that section.

Grollo v Palmer (1995) 184 CLR 348 at 365 2. (1991) 172 CLR 84 at 135. 3. See Wilson v Minister for Aboriginal and Torres Strait Islander Affairs (1996) 189 CLR 1

This conclusion makes it unnecessary to deal with the other grounds relied upon by the appellant. I mention only one, namely, that the Act is a bill of pains and penalties, that is, that it is "a legislative act which inflicts punishment without a judicial trial" [125] . The appellant referred to the advice of the Privy Council in Liyanage v The Queen [126] where the Privy Council said of certain statutes of Ceylon:

One might fairly apply to these Acts the words of Chase J, in the Supreme Court of the United States in Calder v Bull [127] : "These Acts were legislative judgments; and an exercise of judicial power." The Act does prescribe criteria of which the Court must be satisfied before making an order. Limited though it is, the role of the Supreme Court is not reduced to saying no more than that the person charged has been identified as fitting a description laid down in the Act [128] . The Act is not invalid on that ground, divorced from any consideration of Ch III. 1. Cummings v Missouri (1866) 71 US 277 at 323See also Polyukhovich v The Commonwealth (the War Crimes Act Case) (1991) 172 CLR 501 at 535-536, 646, 685-686, 719-721. 2. [1967] 1 AC 259 at 291. 3. (1799) 3 Dallas 386. 4. Polyukhovich (1991) 172 CLR 501 at 647-648

However the Act is invalid by reason of the incompatibility with Ch III of the Commonwealth Constitution that its implementation produces. If the Act operated on a category of persons and a defence to an application for a preventive detention order was confined to a challenge that the criteria in s 5(1) had not been met, different questions might arise. In that situation the judicial power of the Commonwealth might not be involved; that is something on which it is unnecessary to comment. But here the judicial power of the Commonwealth is involved, in circumstances where the Act is expressed to operate in relation to one person only, the appellant, and has led to his detention without a determination of his guilt for any offence. In that event validity is at issue, not simply the reach of the Act in a particular case.

Accordingly the appeal should be allowed and the application by the respondent against the appellant dismissed.

Mr Kable (the appellant) appeals to this Court from an order of the Court of Appeal of the Supreme Court of New South Wales dismissing his appeal from a "preventive detention order" made by Levine J under s 5(1) of the Community Protection Act 1994 NSW (the Act). It was submitted for the appellant in this Court, as it was before Levine J and in the Court of Appeal, that it is beyond the power of the Parliament of New South Wales to confer power on the Supreme Court to make the order in question.

Several arguments were advanced in favour of the appellant's contention. I need deal with one only, namely, that Ch III of the Constitution impliedly prevents the Parliament of a State from conferring powers on the Supreme Court of a State which are repugnant to or inconsistent with the exercise by it of the judicial power of the Commonwealth.

It is convenient to consider the constitutional position of State courts before turning to the provisions of the Act. It has been said that "[t]he Constitution, by Chapter III, draws the clearest distinction between federal Courts and State Courts, and recognises in the most pronounced and unequivocal way that they remain "State Courts" " [129] . However, that is not a distinction that appears in s 71, the opening provision of Ch III. On the contrary, the first sentence of that section provides, without distinction between State and federal courts created by the Parliament, that:

The judicial power of the Commonwealth shall be vested in a Federal Supreme Court, to be called the High Court of Australia, and in such other federal courts as the Parliament creates, and in such other courts as it invests with federal jurisdiction. 1. R v Murray and Cormie; Ex parte The Commonwealth (1916) 22 CLR 437 at 452, per Isaacs J.

Moreover, no distinction appears in the concluding provisions of Ch III, namely, s 78, which is concerned with the right to proceed against the Commonwealth and the States in respect of matters within the limits of the judicial power of the Commonwealth, s 79, which provides that "[t]he federal jurisdiction of any court may be exercised by such number of judges as the Parliament prescribes" (emphasis added), and s 80, which requires trial by jury for all indictable offences against the laws of the Commonwealth.

Special provision is made in s 74 with respect to appeals from this Court to the Privy Council. And separate provision is made in ss 73, 75 and 76 as to the jurisdiction of this Court. Sections 75 and 76 also serve to identify the matters which fall for resolution in the exercise of the judicial power of the Commonwealth. Neither s 75 nor s 76 refers to any court other than this Court. There are, however, references to other courts in s 73 which provides with respect to the appellate jurisdiction of this Court. By s 73(i) and (iii), respectively, this Court has "jurisdiction, with such exceptions and subject to such regulations as the Parliament prescribes" to hear and determine appeals from various determinations made by Justices of this Court and the Inter-State Commission. And by s 73(ii) it has jurisdiction, again subject to such exceptions and regulations as are prescribed, "to hear and determine appeals from all judgments, decrees, orders, and sentences [o]f any other federal court, or court exercising federal jurisdiction; or of the Supreme Court of any State, or of any other court of any State from which at the establishment of the Commonwealth an appeal [lay] to the Queen in Council". No distinction is made in that subsection between State courts, as courts exercising federal jurisdiction, and federal courts created by the Parliament.

There is also special provision with respect to the Supreme Courts of the States in the second and third paragraphs of s 73. By the second paragraph, no exception or regulation prescribed by the Parliament "shall prevent [this] Court from hearing and determining any appeal from the Supreme Court of a State in any matter in which at the establishment of the Commonwealth an appeal [lay] from such Supreme Court to the Queen in Council". And it is provided in the third paragraph of s 73 that "[u]ntil the Parliament otherwise provides, the conditions of and restrictions on appeals to the Queen in Council from the Supreme Courts of the several States shall be applicable to appeals from them to the High Court". However, these paragraphs do not distinguish between State courts and federal courts created by the Parliament as repositories of the judicial power of the Commonwealth.

No mention has yet been made of ss 72 and 77, the only other provisions to be found in Ch III. If they are put to one side, the provisions of Ch III clearly postulate an integrated Australian court system for the exercise of the judicial power of the Commonwealth, with this Court at its apex as a constitutional court and as a court exercising appellate jurisdiction for the whole of Australia, and with no distinction, so far as concerns the judicial power of the Commonwealth, between State courts and federal courts created by the Parliament.

Section 72 is concerned exclusively with the appointment, tenure and remuneration of the Justices of this Court and federal courts created by the Parliament. As to the matters which fall within the limits of the judicial power of the Commonwealth, s 77 confers power on the Parliament to make laws:

(i) Defining the jurisdiction of any federal court other than the High Court:

(ii) Defining the extent to which the jurisdiction of any federal court shall be exclusive of that which belongs to or is invested in the courts of the States:

(iii) Investing any court of a State with federal jurisdiction.

Again, s 77 does not distinguish between State courts and federal courts created by the Parliament as repositories of the judicial power of the Commonwealth. It does, however, recognise that the other courts which may be invested with federal jurisdiction are State courts. When s 77 is considered in conjunction with s 72 which, as earlier indicated, provides as to the appointment, tenure and remuneration of the members of this Court and federal courts created by the Parliament, it is correct to say, by reference to those provisions, that Ch III recognises that this Court and other federal courts are creatures of the Commonwealth and that State courts are the creatures of the States.

Once it is accepted that State courts are the creatures of the States and are constitutionally recognised as such, it follows that it is for the States and for the States alone to determine the appointment, tenure and remuneration of State judges and the structure, organisation and jurisdictional limits of State courts. In that sense, it is correct to say, as it often is, that the Commonwealth must take State courts as it finds them. However, it should be remembered that that dictum originates in the judgment of Griffith CJ in Federated Sawmill, Timberyard and General Woodworkers' Employees' Association (Adelaide Branch) v Alexander [130] , a case involving the question whether jurisdictional limits imposed by State law on a State court applied in matters of invested federal jurisdiction. It was in that context that his Honour said that "when the Federal Parliament confers a new jurisdiction upon an existing State Court it takes the Court as it finds it, with all its limitations as to jurisdiction, unless otherwise expressly declared" [131] - a vastly different statement from the unqualified proposition that the Commonwealth must take a State court as it finds it.

(1912) 15 CLR 308. 2. Federated Sawmill (1912) 15 CLR 308 at 313.

Neither the recognition in Ch III that State courts are the creatures of the States nor its consequence that, in the respects indicated, the Commonwealth must take State courts as it finds them detracts from what is, to my mind, one of the clearest features of our Constitution, namely, that it provides for an integrated Australian judicial system for the exercise of the judicial power of the Commonwealth. Moreover, neither that recognition nor that consequence directs the conclusion that State Parliaments may enact whatever laws they choose with respect to State courts. If Ch III requires that State courts not exercise particular powers, the Parliaments of the States cannot confer those powers upon them. That follows from covering cl 5, which provides that the Constitution is "binding on the courts, judges, and people of every State and of every part of the Commonwealth, notwithstanding anything in the laws of any State", and from s 106, by which the Constitution of each State is made subject to the Australian Constitution. And so much was recognised in The Commonwealth v Queensland [132] where it was said that State legislation in violation of "the principles that underlie Ch III" is invalid.

The question whether the Constitution requires that State courts not have particular powers conferred upon them depends, in my view, on a proper understanding of the integrated judicial system for which Ch III provides - the "autochthonous expedient" [133] , as it has been called. One thing which clearly emerges is that, although it is for the States to determine the organisation and structure of their court systems, they must each maintain courts, or, at least, a court for the exercise of the judicial power of the Commonwealth. Were they free to abolish their courts, the autochthonous expedient, more precisely, the provisions of Ch III which postulate an integrated judicial system would be frustrated in their entirety. To this extent, at least, the States are not free to legislate as they please.

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