[2013] ACTSC 198 (1 October 2013)

ADMINISTRATIVE LAW - delegation - whether retrospective delegation is invalid - whether statements suggesting invalid delegation are binding upon a party - whether delegation was invalid as unauthorised subdelegation - whether invalid delegation is validated by s 242(1) of the Legislation Act - whether officer may act without delegation under the Carltona principle - whether the Sentence Administration Board could act regardless of the validity of the delegation - delegation valid

ADMINISTRATIVE LAW - validity of meetings - effect of the invalidity of the meeting of the Sentence Administration Board - whether resolutions at that meeting were valid regardless of the meeting's invalidity - resolutions valid and binding

ADMINISTRATIVE LAW - particular tribunals or bodies - the Sentence Administration Board (ACT) - requirement to comply with the rules of natural justice - exercise of power under the Crimes (Sentence Administration) Act 2005 (ACT) not judicial power

ADMINISTRATIVE LAW - natural justice - content of the natural justice requirement on the Sentence Administration Board - requirement to give notice - whether personal service of notice is required - not required -- whether the presence of the accused at an inquiry of the Sentence Administration Board is required - turns on the circumstances - presence of the accused not always required - right of an accused to be present at an inquiry of the Sentence Administration Board - not a necessity for the accused to be present

CONSTITUTIONAL LAW - judicial power - characteristics of judicial power - sentencing as judicial power - powers of the Sentence Administration Board not sentencing - distinction between imposing sentence and the way a sentence is to be served

CONSTITUTIONAL LAW - territories - particular territories - the Australian Capital Territory - establishment of the ACT Legislative Assembly under the Australian Capital Territory (Self-Government) Act 1988 (Cth) was not a delegation of the Commonwealth nor does the Legislative Assembly exercise Commonwealth legislative power - complication of s 48A of the Australian Capital Territory (Self-Government) Act 1988 (Cth)

CONSTITUTIONAL LAW - territories - particular territories - the Australian Capital Territory - no requirement for separation of powers in the ACT under the Commonwealth Constitution - judicial power of the ACT courts not the judicial power of the Commonwealth - establishment of ACT courts was under s 122 not s 71 of the Commonwealth Constitution - laws of the ACT do not 'arise under' a law of the Commonwealth

CONSTITUTIONAL LAW - territories - particular territories - the Australian Capital Territory - interference with or impairment of the institutional integrity of the ACT Supreme Court - no interference or impairment

CRIMINAL LAW - sentencing - options for imprisonment - periodic detention - approach to in the ACT - purpose for and operation of the legislative scheme - whether periodic detention is consensual - it is - distinction between the setting of a sentence and setting a period of periodic detention

CRIMINAL LAW - jurisdiction, practice and procedure - requirement for the presence of an accused during trial or sentence - accused required subject to exception

STATUTES - acts of parliament - validity of legislation - Crimes (Sentence Administration) Act 2005 (ACT) - validity of ss 68(2)(f), 69, 79 and 82 of the Crimes (Sentence Administration) Act 2005 (ACT) - sections all valid

Administrative Decisions (Judicial Review) Act 1989 (ACT)

Acts Interpretation Act 1954 (Qld) s 26

ACT Civil and Administrative Tribunal Act 2008 (ACT), ss 16-8, 22

Australian Capital Territory (Self-Government) Act 1988 (Cth), ss 34, 48A, Pts IV, V, VA

Australian Consumer Law and Fair Trading Act 2012 (Vic), s 184

Bail Act 1992 (ACT) s 49

Corrections Management Act 2007 (ACT) ss 133, 205, 217

Crimes Act 1900 (ACT) s 23

Crimes Act 1914 (Cth) s 20AB, 20AC

Crimes (Administration of Sentences) Act 1999 (NSW) ss 90, 154A, 163

Crimes (Sentencing) Act 2005 (ACT) ss 9-12, 12, 63, 64, 77-9, 81-2, Pt 3.2, Div 5.4, Ch 5, Dictionary

Crimes (Sentence Administration) Act 2005 (ACT) ss 41A, 42-6, 49-54, 57-60, 63-9, 73, 75, 79, 82, 82A, 110, 135, 140, 180-2, 187, 189, 195, 204-6, 303, 313-4, Ch 5, Pts 3.4, 5.2-4, 9.2, Div 5.4.3

Criminal Assets Recovery Act 1990 (NSW) s 10

Discrimination Act 1991 (ACT) s 72

Evidence Act 1995 (Cth) s 87

Human Rights Act 2004 (ACT) s 18

Legislation Act 2001 (ACT) ss 76, 242, 245-7, 250, Pts 1, 19.5

Northern Territory (Self-Government) Act 1978 (Cth)

Northern Territory Supreme Court (Repeal) Act 1979 (Cth)

Penalties and Sentence Act 1992 (Qld) ss 160B, 200, 205

Periodic Detention of Prisoners Act 1981 (NSW)

Public Sector Management Act 1994 (ACT) ss 36, 100

Residential Tenancies Tribunal Act 1997 (ACT) s 115

Sentencing (Crime of Murder) and Parole Reform Act 2003 (NT)

Serious and Organised Crime (Control) Act 2008 (SA)

Australian Constitution ss 1, 51, 61, 71, 76, 80, 122, Ch III

Chief Executive Authority (Justice and Community Safety) (No 15)

Chief Executive Authority (Justice and Community Safety) (No 18h)

Chief Executive Authority (Justice and Community Safety) (No 18i)

Court Procedures Rules 2006 (ACT) r 6405

A B v The Queen [1999] HCA 46; (1999) 198 CLR 111

Adams v Lambert [2006] HCA 10; (2006) 228 CLR 409

Ah Sheung v Lindberg [1906] VicLawRp 55; [1906] VLR 323

Allesch v Maunz (2000) 203 CLR 172

Attorney-General for the Commonwealth v Alinta Ltd [2008] HCA 2; (2008) 233 CLR 542

Attorney-General for the Commonwealth v Breckler (1999) 197 CLR 83

Attorney-General of the Commonwealth v The Queen [1957] HCA 12; (1952) 95 CLR 529

Australian Securities and Investments Commission v Rich [2005] NSWSC 417; (2005) 216 ALR 320

Baba v Parole Board of New South Wales (1980) 5 NSWLR 338

Baker v The Queen [2004] HCA 45; (2004) 223 CLR 513

Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10; (1995) 183 CLR 245

Building Construction Employees and Builders' Labourers Federation of NSW v Minister for Industrial Relations (1986) 7 NSWLR 372

Capital Duplicators Pty Ltd v Australian Capital Territory [1992] HCA 51; (1992) 177 CLR 248

Capital TV and Appliances Pty Ltd v Falconer [1971] HCA 10; (1971) 125 CLR 591

Carltona Ltd v Commissioners of Works [1943] 2 All ER 560

Cassell v The Queen [2000] HCA 8; (2000) 201 CLR 189

Clyne v East (1967) 68 SR(NSW) 385

Commissioner of Corrective Services v Wedge [2006] NSWCA 271; (2006) 68 NSWLR 334

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De Bussche v Alt (1878) 8 Ch D 286 at 310

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Ex parte Forster; Re University of Sydney (1963) 63 SR(NSW) 723

Farrah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22; (2007) 230 CLR 89

Faull v Commissioner for Social Housing of the ACT [2013] ACTSC 121

Federal Capital Commission v Laristan Building & Investments Co Pty Ltd [1929] HCA 36; (1929) 42 CLR 582

G J Coles & Co Ltd v Retail Trade Industrial Tribunal (1986) 7 NSWLR 503

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Johns v Release on Licence Board (1987) 27 A Crim R 445

Kable v Director of Public Prosecutions for the State of New South Wales [1996] HCA 24; (1996) 189 CLR 51

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LNC Industries Ltd v BMW (Australia) Ltd [1983] HCA 31; (1983) 151 CLR 575

Luton v Lessels [2002] HCA 13; (2002) 210 CLR 333

McCallum v Parole Board of NSW [2003] NSWCCA 294

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Members of the Sentence Administration Board of the Australian Capital Territory v Gomez [2002] FCAFC 261

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New South Wales v Commonwealth [1915] HCA 17; (1915) 20 CLR 54

North Australian Aboriginal Legal Service Inc v Bradley [2004] HCA 31; (2004) 218 CLR 146

O'Reilly v Commissioners of the State Bank of Victoria [1983] HCA 47; (1983) 153 CLR 1

Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355

R (on the application of Smith) v Parole Board [2005] 1 WAR 350

R v Abrahams [1895] VicLawRp 73; (1895) 21 VLR 343

R v Bernasconi [1915] HCA 13; (1915) 19 CLR 629

R v Chairman of Parole Board; Ex parte Patterson [1986] NTSC 49; (1986) 43 NTR 13

R v Commonwealth Court of Conciliation and Arbitration; Ex parte Barrett [1945] HCA 50; (1945) 70 CLR 141

R v Cornwell [1972] 2 NSWLR 1

R v Creighton [2011] ACTCA 13

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R v Gallagher; Ex parte Aberdare Collieries Pty Ltd (1963) 37 ALJR 40

R v Gee (2012) 113 SASR 372

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IN THE SUPREME COURT OF THE ) No. SCC 353 of 2009

AND: CHIEF EXECUTIVE OF THE DEPARTMENT OF JUSTICE AND COMMUNITY SAFETY OF THE AUSTRALIAN CAPITAL TERRITORY

AND: SENTENCE ADMINISTRATION BOARD OF THE AUSTRALIAN CAPITAL TERRITORY

1. Sections 68(2)(f) (so far as it relates to cancellation of an offender's periodic detention for failure to perform 2 or more periods of periodic detention), 69, 79 and 82 of the Crimes (Sentence Administration) Act 2005 (ACT) are valid.
2. The Legislative Assembly of the ACT has the power to invest the Sentence Administration Board with the jurisdiction arising from ss 68(2)(f), 69, 79 and 82 of the Crimes (Sentence Administration) Act 2005 (ACT)

3. The decision of the Sentence Administration Board on 8 July 2008 be set aside.

4. The parties be heard in relation to any other orders that should be made.

1. The events which led to this hearing started one Friday night in late 2007 when a fight occurred outside a Fyshwick tavern, regrettably but unsurprisingly, when two groups of males were drinking alcohol and watching football on the tavern's television.

2. A member of one of the groups, the victim of the offence referred to below, lost his wallet. He thought that the members of the other group, which included the plaintiff, Steven James Lewis, had either taken it or knew who had.

3. After some limited and unfriendly interaction between the groups, the victim found his wallet and told the members of the other group "that he had found his wallet and that everything was okay", as the police Statement of Facts put it.

4. It appears that this did not resolve the hostility that had apparently developed between the groups; indeed an apology offered by the victim was met by Mr Lewis responding with aggressive and threatening conduct and language. Later, as the victim was standing outside and at a window of the tavern, finishing a cigarette while watching the football, Mr Lewis smashed a glass into the victim's face, causing him injuries that required ten stitches to repair and severing the nerves in the area.

5. Mr Lewis was charged with recklessly or intentionally inflicting actual bodily harm, an offence against s 23 of the Crimes Act 1900 (ACT), and was sentenced for the offence on 24 January 2008. The Magistrates Court imposed a term of imprisonment for twelve months and, under s 11 of the Crimes (Sentencing) Act 2005 (ACT) (the Sentencing Act), set the whole of the period of imprisonment to be served by periodic detention.

6. On a number of occasions thereafter, Mr Lewis failed to attend at the periodic detention centre to serve that imprisonment and application was made to the Sentence Administration Board (the Board) under s 59 of the Crimes (Sentence Administration) Act 2005 (ACT) (the Sentence Administration Act) for an inquiry under s 66 of that Act.

7. Ultimately, an inquiry was held on 8 July 2008 at which Mr Lewis was not present. The Board cancelled Mr Lewis' periodic detention under s 68(2)(f) of the Sentence Administration Act and issued a warrant for his arrest under s 82(3) of that Act.

8. Mr Lewis was arrested on 5 January 2009 and commenced serving the balance of his sentence of imprisonment calculated in accordance with s 79 of the Sentence Administration Act.

9. On 25 March 2009, Mr Lewis commenced these proceedings seeking an order under s 18(6) of the Human Rights Act 2004 (ACT) to have him brought before the court to determine the lawfulness of his detention, an order for habeas corpus for his release from detention, a declaration that ss 68(2)(f), 79 and 82 of the Sentence Administration Act are invalid and such other orders as the court considers appropriate and for costs.

10. On 27 March 2009, the learned Chief Justice granted Mr Lewis bail pending the hearing of these proceedings.

11. On 10 June 2009, the court directed that the hearing of the proceedings be conducted in two parts. The first part, to be heard on 2 July 2009, was limited to what were described as the "administrative law matters" raised by Mr Lewis, that is, issues relating to the validity of the proceedings before the Board based on suggested failures to comply with mandated procedures and the duty of procedural fairness.

12. The second part, dealing with the constitutional validity of the relevant sections of the Sentence Administration Act, was to be heard on 16 November 2009.

13. I shall, accordingly, deal with the issues and consideration of the proceedings as to each of these matters separately. Before doing so, however, it is appropriate to describe and analyse the sentence of periodic detention which is at issue.

14. As a sentencing option for courts, periodic detention takes a number of forms. It was introduced in New Zealand on 28 November 1962, the first jurisdiction to do so, though the concept of "gaols operating at week-ends" had been suggested by the Member for Lane Cove in the NSW Parliament, Mr E D Darby, in a speech to the NSW Legislative Assembly as early as 10 December 1946 (New South Wales, Parliamentary Debates, Legislative Assembly, 10 December 1946).

15. In Australia, the NSW Parliament in 1970 passed the first legislation to provide for periodic detention, the Periodic Detention of Prisoners Act 1970 (NSW) (later replaced by the Periodic Detention of Prisoners Act 1981 (NSW)) and later that year, the Queensland Parliament passed the Weekend Detention Act 1970 (Qld). Other States, such as Western Australia and Victoria, considered introducing such a scheme but decided not to do so.

16. Some overseas jurisdictions, such as Britain, the Netherlands and Belgium also made provision for it: Peter Prisgrove, "Periodic Detention: A Critical Examination" (1973) 6(3) Australian and New Zealand Journal of Criminology 147.

17. The ACT introduced periodic detention with the Periodic Detention Act 1995 (ACT) which was subsequently replaced by relevant provisions in the Sentencing Act and the Sentence Administration Act.

18. The ACT is now the only jurisdiction in Australia that provides this sentencing option.

19. The scheme in Queensland "soon fell into desuetude when it was found to be too difficult to administer, too expensive to run, and too disruptive on other inmates of the prison": I Potas, S Cumines and R Takach, 'A Critical Review of Periodic Detention in New South Wales' (Monograph No 5, Judicial Commission of New South Wales, 1992) at 10. In NSW, despite a research publication of the relevant department (J McHutchison, 'Outcomes for NSW periodic detention orders commenced 2003-2004' (Research Publication No 48, NSW Department of Corrective Services, 2000) at 28), finding that "[p]eriodic detention is a valuable sentencing option as it has reparative and rehabilitative merit", periodic detention ceased as a sentencing option in that State in October 2010.

20. The ACT legislation followed a review conducted by the ACT Corrections Review Committee. Its report, Paying the Price - A Review of Adult Corrective Services and Juvenile Justice in the ACT (ACT Government, 1992)(Paying the Price) recommended, at Recommendation 35, that periodic detention should be available as an alternative sentencing option. It accepted the purpose of periodic detention which had been accepted in New South Wales as follows (at 79):

to provide a viable and economic alternative to full-time imprisonment, a corrective influence upon the offender, with minimal disruption to family and community life.

21. It cited a monograph of the Judicial Commission of New South Wales, B Bray and J Chan, 'Community Service Orders and Periodic Detention as Sentencing Options' (Monograph Series No 3, Judicial Commission of NSW, 1991) at 80 as reporting the main aims of periodic detention seen by judicial officers as "punishment and deterrence in giving offenders a taste of gaol while avoiding the negative effects of full-time imprisonment".

22. The ACT government accepted the recommendation and prepared a bill which became the Periodic Detention Act; the Explanatory Memorandum for the Bill explicitly acknowledged the genesis of the legislation in the report, Paying the Price, as did the then Attorney-General, Mr G Humphries MLA, in the Presentation Speech. He specifically referred to the advantage that offenders subject to periodic detention orders would make a positive contribution to the community through unpaid work while in detention and the potential saving where suitable offenders would otherwise have been sent to gaol.

23. In Paying the Price (at 80), the option was said, on a continuum of severity, to be placed "between community service orders and imprisonment". This accords with authority such as R v Hallocoglu (1992) 29 NSWLR 67 at 74-5 and R v Qi (1998) 102 A Crim R 172 at 176, though it is a sentence of inconvenience as described in R v Niga (Unreported, NSW Court of Criminal Appeal, Gleeson CJ, Kirby P and Ireland J, 13 April 1994), clearly disturbing the ordinary affairs of the life of the offender and restricting their liberty.

24. Section 4 of the Periodic Detention Act made it clear that the option was an alternative sentencing option by providing:

4. (1) A court_ - _

(a) which convicts a person of an offence against a law of the Territory; and

(b) which, but for the option of making an order under this section, would otherwise sentence the person to a term of imprisonment of not less than 3 months but not more than 24 months;

may, instead of sentencing the person to imprisonment, by order_ - _

(c) sentence the person to complete such number of detention periods at a detention centre, as the court specified; and

(d) direct that the person be released from custody subject to any order that may be made under subsection 10(2).

25. If an offender was subsequently convicted of an offence and sentenced to a term of imprisonment, s 29 provided that the court may cancel the order for periodic detention. Similarly, under s 30, the court was also empowered to cancel the order for periodic detention where, for example, the offender has failed to report for three or more detention periods. In the event of cancellation, s 31 provided that the offender was to serve any remaining periods of detention "as a separate term of imprisonment imposed at the time of cancellation" at the rate of one week per each detention period that the offender would otherwise have been required to serve.

26. The Periodic Detention Act was repealed on 2 June 2006 and the provisions for periodic detention were incorporated into the Sentencing Act and the Sentence Administration Act.

Structure of Sentences under the Sentencing Act

27. Section 11 of the Sentencing Act, which appears in Part 3.2 "Sentences of Imprisonment", provided a somewhat different structure for the sentence as follows:

(1) This section applies if_ - _

(a) an offender is convicted of an offence; and

(b) the court sentences the offender to imprisonment for the offence.

(2) The court may, in the order sentencing the offender to imprisonment, set a period of the sentence of imprisonment (a periodic detention period) to be served by periodic detention.

Note A periodic detention period may be part of a combination sentence together with other sentencing options (see pt 3.6).

(3) The periodic detention period_ - _

(a) may be for all or part of the offender's sentence of imprisonment; but

(b) must be for a period of at least 3 months and not longer than 2 years.

(4) When the court sets the periodic detention period, the court must state_ - _

(a) when the periodic detention period starts and ends; and

(b) the day the first detention period under the Crimes (Sentence Administration) Act 2005 for the offender is to start.

(5) The court may also recommend any condition, not inconsistent with this Act or the Crimes (Sentence Administration) Act 2005, that the court considers appropriate for the offender's periodic detention.

Examples of conditions

see the examples to section 13 (3) (g) (Good behaviour orders)

Note 1 A condition recommended by the court is, under the Crimes (Sentence Administration) Act 2005, an additional condition of the offender's periodic detention (see that Act, s 40, def additional condition, par (a)).

Note 2 An example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act, s 126 and s 132).

(6) This section is subject to chapter 5 (Imprisonment).

Note See, in particular, pt 5.4 about eligibility and suitability for, and other matters in relation to, periodic detention.

28. This provision is similar in structure to s 12 which permits a court to make an order suspending all or part of a sentence of imprisonment. Section 12(1) is identical to s 11(1). The courts have held that such sentences are sentences of imprisonment with elements of retribution and general deterrence involved: R v Valentini [1980] FCA 133; (1980) 48 FLR 416. This reasoning would appear then to apply equally to periodic detention orders: see R v Creighton [2011] ACTCA 13 at [50].

29. Chapter 5 of the Sentencing Act deals with imprisonment, much of which is implicitly (e.g. backdating sentences - s 63) or expressly (e.g. non-parole periods - s 64(3)(b)) not applicable to periodic detention. Division 5.4, however, applies expressly to periodic detention and provides for eligibility and suitability. As to the former, s 77 relevantly provides:

(1) The court must not set a periodic detention for the offender unless satisfied that_ - _

• (a) periodic detention is suitable for the offender (see section 78); and
• (b) it is appropriate for the offender to serve all or part of the sentence by periodic detention; and
• (c) there are appropriate facilities available at a correctional centre for the offender to serve any period of periodic detention set by the court; and
• (d) the offender has signed an undertaking to comply with the offender's periodic detention obligations under the Crimes (Sentence Administration) Act 2005.

Determination of suitability for periodic detention

30. Suitability is determined under s 78 which also refers to s 79, both of which provisions are in the following terms:

78 Periodic detention - suitability

(1) The court must not set a periodic detention period for the offender unless a pre-sentence report is given to the court about the offender's suitability to serve a sentence (or a part of a sentence) by periodic detention.

(2) In deciding whether to set a periodic detention period for the offender, the court must consider the following:

(a) the pre-sentence report;

(b) any medical report about the offender given to the court;

(c) any evidence given by the person who prepared the pre-sentence report;

(d) any evidence given by a corrections officer about the offender.

(3) Subsection (2) does not limit the matters that the court may consider.

(4) In considering the pre-sentence report, the court must consider any indicators of unsuitability mentioned in table 79, column 3 that are stated in the report to apply to the offender.

(5) The court may set, or decline to set, a periodic detention period for the offender despite -

(a) any recommendation in the pre-sentence report about the offender's suitability to serve a sentence (or a part of a sentence) by periodic detention; or

(b) any evidence given by the person who prepared the pre-sentence report or a corrections officer.

(6) The court must record reasons for its decision to set, or decline to set, a periodic detention period for the offender if_ - _

(a) the pre-sentence report recommends that the offender is suitable but the court decides not to set a periodic detention period for the offender; or

(b) the pre-sentence report recommends that the offender is not suitable but the court decides to set a periodic detention period for the offender.

(7) Failure to comply with subsection (6) does not invalidate the periodic detention order.

79. Periodic detention_ - _pre-sentence report matters

For section 42 (3) (Pre-sentence reports by assessors), the matters for assessing the offender's suitability to serve a sentence (or a part of a sentence) by periodic detention are the matters mentioned in table 79, column 2.

Table 79 Assessment of suitability - periodic detention

degree of dependence on alcohol or a controlled drug

potential unfitness to report for periodic detention

potential impracticability of regular reporting for periodic detention

31. The Sentence Administration Act sets out in Chapter 5 the structure of the regime that is constituted by an order for periodic detention in three substantive parts.

Obligations and the status of persons serving periodic detention

32. Part 5.2 sets out the obligations and status of offenders serving periodic detention. Thus, s 42(2) sets out the basic obligations of the person serving periodic detention as:

(a) to perform periodic detention in accordance with Part 5.3;

(b) to comply with the "core" conditions (such as not to commit certain offences, to report certain matters) set out in s 43;

(c) to comply with any additional conditions which the court might recommend under s 11(5) of the Sentencing Act;

(d) to comply with any non-association or place restriction orders made under Pt 3.4 of the Sentencing Act; and

(e) to comply with any other requirement under the Sentence Administration Act (such as to obey a direction given by the chief executive under s 44 or to give a sample for alcohol and drug testing under s 45, or to submit to a search under s 46) or under the Corrections Management Act 2007 (ACT).

33. The offender is, while performing periodic detention, taken to be in the custody of the chief executive or, if being escorted, in the custody of the escort: s 47.

34. Section 48 provides that periodic detention ends at the end of the periodic detention period set by the court under s 11(4) of the Sentencing Act, subject to extensions under ss 57, 58 and 60 of the Sentence Administration Act, or when earlier cancelled under Pt 5.4 of the latter Act.

35. Part 5.3 provides for performing periodic detention. It requires the offender to report for each detention period (s 49), at the reporting place notified to the offender (s 50) on the day of the week notified (s 51), at the times specified for beginning and finishing each detention period (s 52) and to carry out activities as directed (see ss 53, 54). Provisions for non-performance, leave of absence and extension where a detention period is not performed are also provided for in the Part. It is, of course, the failure to report as required under these provisions that led to the cancellation of the periodic detention order of Mr Lewis.

36. Part 5.4 of the Sentence Administration Act regulates the supervision of periodic detention. As some of these provisions are critical for this matter, it is necessary to refer to them in some detail.

37. Section 63 requires a corrections officer who believes that an offender has breached any of his or her periodic detention obligations, including a failure to report for a detention period, to report the breach to the Board. Sections 64 and 65 provide mechanisms to bring such an offender before the Board.

38. The most significant change from the Periodic Detention Act is the role given to the Board, much of which was formerly performed by the court.

39. Section 66 empowers the Board to conduct an inquiry to decide whether an offender has breached any of his or her periodic detention obligations. It may do so on its own initiative or on application of the chief executive. It must then, under s 67, give notice of the inquiry to certain persons, including the offender, such notice to include the reasons for the inquiry.

40. Section 68 sets out the powers of the Board if it decides that an offender has breached any of his or her periodic detention obligations. In particular, s 68(2)(f) permits the Board to "cancel the offender's periodic detention". Specifically, s 69 requires the Board, where it finds that an offender has failed to report (or been directed to leave the reporting place or not to perform periodic detention) on two occasions, to cancel the offender's period detention under s 68(2)(f).

41. Section 73 also empowers the Board to conduct an inquiry "to review an offender's periodic detention" and do so on its own initiative. It is by no means clear what the difference, if any, is between an inquiry under this section and that under s 66, save that the former is "to review an offender's periodic detention" and the latter is "to decide whether an offender has breached any of the offender's period detention obligations". The two purposes obviously have considerable overlap. The Explanatory Statement provides no assistance as, regrettably, is often the case.

42. The Board is given powers under s 75 to give effect to the results of its inquiry under s 73, though these powers are somewhat different to the powers under s 68. It does, however, include, at s 75(1)(e), the power to cancel the offender's period detention or under s 75(1)(f) to refer the matter back to the sentencing court.

43. There are provisions about notices of the Board's decisions and when they take effect. Section 79 provides that when the Board cancels an offender's periodic detention, the offender must serve "the remainder of the sentence" by full-time detention until when the periodic detention period would have ended apart from the cancellation and, under s 82, the Board must order the offender to be placed in the chief executive's custody for that purpose.

44. Not directly relevant to this matter, s 82A permits the court, on a referral under s 75(1)(f), to cancel the offender's period detention or to re-sentence the offender, thereby implying, as one would expect, that cancellation is not in itself a re-sentencing of the offender.

45. I note that in New South Wales, breach of periodic detention was supervised by the Parole Authority which had the power to revoke the order and have the offender taken into custody to serve the remainder of the sentence: s 86 of the Crimes (Administration of Sentences) Act 1999 (NSW). It is the NSW Parole Authority and not the court which had the authority to revoke the order: s 163 of the Crimes (Administration of Sentences) Act.

46. This, however, does not apply to offenders who have committed offences against a law of the Commonwealth (federal offenders). Under s 20AB of the Crimes Act 1914 (Cth), certain of the State and Territory sentencing options can be imposed on federal offenders. This includes an order to serve imprisonment by periodic detention. Breach action, however, must be taken under s 20AC of the Crimes Act, which requires that a summons be issued by a Magistrate requiring a federal offender who is alleged to have breached a sentence so imposed to appear before the sentencing court to be dealt with by imposition of a pecuniary penalty, revocation of the sentence and the re-sentencing of the federal offender. This procedure is said to be required because the adjudication of a breach of a sentencing order involves the exercise of federal judicial power which for federal matters cannot be exercised by a non-judicial body: Australian Law Reform Commission, Same Crime, Same Time, Report No 103 (2000) at 455; [17.18], 457; [17.23]-[17.24].

47. It seems to me that this analysis leads me to the following characterisation of what the periodic detention is under the Sentencing Act when made in respect of a sentence of imprisonment. I formulate it as follows:

The order of the Courts setting a period of periodic detention is the authority for a person on whom a sentence of imprisonment has been imposed (where the offender, who attends at the place of detention every weekend on which he or she has not been granted a leave of absence and while he or she complies with the other conditions, including directions legally given to him or her) to serve a term of imprisonment imposed on them by detention between 7:00 pm each Friday until 4:00 pm the following Sunday, but otherwise in full-time detention.

48. Since these proceedings, the references in the Sentencing Act and the Sentence Administration Act to the "chief executive" have been replaced by the term "Director-General" following a re-organisation of the ACT Public Service. As it was the term at the time and to avoid confusion, I shall refer to the legislation at the relevant time and so to "the chief executive".

49. As noted above (at [5]), Mr Lewis was sentenced on 24 January 2008 to imprisonment for twelve months and the court set the whole of that period to be served by periodic detention.

50. Mr Lewis attended a number of the detention periods between that date and 11 May 2008 when he stopped attending. Prior to that, however, he had failed to attend and thus to perform periodic detention for the periods commencing 1 February 2008, 28 March 2008 and 4 April 2008.

51. A report of the first two breaches was made to the Board by Mr Ray Giucci, Deputy Superintendent of the Periodic Detention Centre, on 29 March 2008 in which report he applied to the Board for an inquiry under s 66 of the Sentence Administration Act into the fact that s 58 of that Act may apply to Mr Lewis for a second or subsequent detention period. A further breach report, in respect of the failure to attend the period commencing on 4 April 2008, was made to the Board by Mr Giucci on 7 April 2008, making a similar application.

52. When Mr Lewis attended on 11 April 2008, he was subjected to breath analysis screening which showed that his blood alcohol reading was 0.037%, amounting, under s 133 of the Corrections Management Act 2007 (ACT), to a positive test sample for alcohol. This constituted to a breach of one of the core conditions for periodic detention in s 43 of the Sentence Administration Act (see s 43(1)(e)), for which breach, under s 58(3), Mr Lewis may be, and was, directed not to perform detention for that period and to leave the periodic detention centre, being taken, therefore, not to have performed periodic detention for that period. Mr Giucci made a further report of this failure, this time under s 45 of the Sentence Administration Act.

53. As a result, the Board, constituted by a division under s 182 of the Sentence Administration Act, met on 15 April 2008. I shall refer to meetings of the division as meetings of the Board, as is authorised by the Act. The Board resolved under s 66 of the Act to hold an inquiry on 13 May 2008 into the matters reported by Mr Giucci. That section authorises the Board to conduct an inquiry to decide whether an offender has breached any of his or her periodic detention obligations. Curiously, the Board decided to conduct an inquiry also under s 73 of that Act which permits the conduct of an inquiry to review an offender's period detention.

54. Two letters about those inquiries were sent to Mr Lewis at his residence by express post on 17 April 2008 and he acknowledged receipt of those letters on 19 April 2008. Those letters included copies of the reports made by Mr Giucci and noted, inter alia, that he was not required to attend the inquiry but that he could make a written submission by 7 May 2008.

55. On 13 May 2008, the Board resolved to hold a hearing under Pt 9.2 of the Sentence Administration Act on 24 June 2008 "on the grounds that natural justice would not be satisfied if the inquiry were completed without a hearing."

56. At the 13 May meeting, Mr Lewis was directed, under s 205 of the Act, to attend the hearing on 24 June 2008. It is clear that the Board is bound to respect and comply with the rules of natural justice: Singh v Sentence Administration Board of the ACT [2004] ACTSC 74. Given the serious consequences likely to flow from the Board's consideration of the applications, it was appropriate for a hearing to be held, and, ordinarily in such cases, should be held. As Lord Bingham of Cornhill said in R (on the application of Smith) v Parole Board [2005] 1 WAR 350 at 361-2; [35] about the consideration of the revocation of a licence of a prisoner to be at liberty "[e]ven if important facts are not in dispute, they may be open to explanation or mitigation, or may lose some of their significance in the light of new facts." An oral hearing would, in most cases, be at least highly desirable if not required.

57. Letters were again sent by express post to Mr Lewis at his residence advising him of the resolution of the Board and directing him to attend the meeting. No acknowledgement of those letters was received; however, on 12 May 2008, he left Canberra, without informing ACT Corrective Services, to work on an orange orchard in Griffith, New South Wales in the place of his father, who was suffering from emphysema.

58. His mother, with whom he had until then been living, received letters at her address which were addressed to Mr Lewis and kept them for him. She did not send them on to him while he was in Griffith.

59. Mr Lewis worked on the farm for about nine weeks and committed no offences during that time but had no contact with ACT Corrective Services, either on his initiative or through his mother or other people.

60. Thus, he failed to attend for his periodic detention at any time after 12 May 2008. As a result, reports of his failures were made to the Board by Mr Damian Froome on 17 May 2008 and 7, 14, 21 and 31 June 2008 and by Mr Peter Divorty on 24 May 2008 and 4 and 6 July 2008, all said to be under s 59 of the Sentence Administration Act.

61. The Board, constituted by the same Division, met on 24 June 2008. Mr Lewis did not attend. He was not represented at the hearing. It purported to conduct a hearing into the breaches of Mr Lewis' periodic detention by his failure to attend on 1 February, 28 March and 4 April 2008 and the deemed failure on 11 April 2008. After receiving submissions from a solicitor employed in the ACT Government Solicitor's Office and from a prosecutor of the Office of the Director of Public Prosecutions, the Board, noting that under s 69 of the Sentence Administration Act it was required to do so, purported to cancel Mr Lewis' periodic detention under s 68(2)(f) of the Act and issue a warrant for his arrest under s 82(3) of the Act.

62. The Board also decided, in the light of its decision to cancel the periodic detention order, to take no further action on the reports about Mr Lewis' absence on 23 and 30 May 2008 and on 6 June 2008. The documents are a little confusing but it seems that, at the same time, the Board decided to take no action in respect of the absences on 16 May and 13 and 20 June 2008.

63. Orders, warrants, notices and letters were prepared and sent or issued thereafter to give effect to these decisions but, in circumstances not entirely clear to me, and probably of no particular moment for these reasons, it was discovered that the Board had no quorum at its meeting on 24 June 2008.

64. Accordingly, a letter was sent from the Board to Mr Lewis on 30 June 2008 advising him that the "decision at it's [sic] meeting on 24 June 2008 was ultra vires" and that the matters involving him would be heard at another date.

65. The Board met on 2 July 2008 for an "email meeting" and reconsidered the reports of Mr Giucci as to absences on 29 March, 7 and 11 April 2008. The Board noted it could not conduct the hearing as no parties had been informed so it decided to hold a hearing on 8 July 2008. It also resolved to conduct an inquiry on 8 July 2008 into the reported breaches of failure to attend on 16, 23 and 31 May and 6, 13 and 20 June 2008, and that Mr Lewis be notified. Each of the members of the Division of the Board confirmed that they agreed with the resolutions.

66. Letters were sent on 2 July 2008 to Mr Lewis at his mother's address about the inquiries and the hearing. He was directed to attend. Although the letters were not sent on to Mr Lewis by his mother, Mr Lewis said in his affidavit:

When I arrived back at my mother's house, there were 5-6 letters for me. I believe these letters were from ACT Corrective Services. I panicked and did not read the letters.

67. The Board then met on 8 July 2008. Mr Lewis was not present nor was he represented. A solicitor employed in the ACT Government Solicitor's Office was present as was a prosecutor of the Office of the Director of Public Prosecutions. The Board considered the reports and the failure of Mr Lewis to attend at the Periodic Detention Centre on 28 March, 4 April 2008 and the deemed failure on 11 April 2008. Curiously, there was no reference to the absence on 1 February 2008. It was noted that the later absences were also before the Board but not for hearing.

68. Again, the Board resolved to cancel Mr Lewis' periodic detention under s 68(2)(f) of the Sentence Administration Act and to issue a warrant under s 82(3) of the Act.

69. Although the transcript of those proceedings does not record it, and that may be because it is only the transcript of the hearing and not the other inquiries, the Board is recorded in a Certificate made under s 189 of the Sentence Administration Act as resolving to take no further action in respect of the other breaches because of the cancellation.

70. Orders, warrants, notices and letters were prepared again and issued or sent to give effect to these decisions.

71. To deal with the complaints made by Mr Lewis in respect of the administrative law matters, it will be necessary to address some further facts, but it is convenient to have this broad background and to refer to the other matters below.

72. Mr Lewis made a number of complaints about the procedures followed by the Board in dealing with these matters. I shall deal with each in turn.

73. Mr Lewis complains that Mr Giucci was not authorised to make a report that enlivened the Board's jurisdiction to conduct an inquiry which led to the hearing that cancelled his periodic detention because he had not been properly delegated to do so. This alleged lack of delegation is the first complaint.

74. The reports which initiated the process that led to the hearing were purported to be made under s 59 of the Sentence Administration Act. That provided at the time:

The chief executive must apply to the board for an inquiry under section 66 (Board inquiry - breach of periodic detention obligations) if section 58 applies to an offender for a second or subsequent detention period of the offender's period detention period.

75. Section 58 applied at the time to an offender if he or she:

(a) fails to report to perform periodic detention for the detention period without having been given approval not to do so; or

(b) reports in a way that results in the chief executive giving him or her a direction not to perform detention and to leave the reporting place because:

(i) he or she reports more than four hours after the required time, when the chief executive must give such a direction; or

(ii) he or she reports less than four hours after the required time without approval to do so, when the chief executive may give such a direction; or

(iii) he or she reports and fails to comply with reporting requirements given to him or her when the chief executive may give such a direction; or

(iv) he or she reports and gives a positive test sample when undergoing an alcohol or drug test, when the chief executive may give such a direction.

76. Mr Giucci was not, at the time he made the reports, the chief executive. He could, therefore, arguably only give a report under section 59, it was submitted, if he was properly delegated to do so. The genesis of this complaint made by Mr Lewis came from a response that the ACT Government Solicitor gave to Mr Lewis' solicitor who had sent an e-mail request for the Instrument of Delegation for Mr Giucci and Mr Divorty. The response of 19 November 2008 was:

Neither Mr Giucci nor Mr Divorty have ever filled the positions which are listed in the delegation instrument in relation to s 59 of the Act.

77. On request, Mr Lewis' solicitor was provided with a copy of a document about these delegations. I am not able to say from the evidence before me exactly what was provided. What, however, was tendered before me was a copy of a document entitled Chief Executive Authority (Justice and Community Safety) (No 15) made on 7 December 2007, by which the chief executive of the Department of Justice and Community Safety exercised the powers set out in the schedules to it. Schedule 4, which was certainly provided, was the schedule by which the Chief Executive delegated certain functions under the Sentence Administration Act to the holders of positions specified by position number.

78. In particular, the chief executive had delegated her functions for s 59 of the Sentence Administration Act, to officers holding positions numbered E00232, E00233, 11198 and 48955.

79. Subsequently, a review of the relevant delegations was undertaken and on 10 March 2009, the ACT Government Solicitor provided to Mr Lewis' solicitor a copy of a Temporary Transfer Form which showed that Mr Giucci had been transferred temporarily to Position Number 48955 for the period 14 June 2007 to 1 August 2008.

80. There were two issues that were agitated in the hearing:

• whether Mr Giucci had actually occupied a position where he had been entitled to exercise a power under s 59 of the Sentence Administration Act; and

• whether any delegation to him had been invalid as being an unauthorised sub-delegation.

(i) Did Mr Giucci occupy a position entitled to exercise the s 59 power?

81. While the document referred to above (at [77]), seemed at the hearing not to be the appropriate document, another two relevant documents were tendered at the hearing before me.

82. The first showed that, on 10 January 2008, Mr Howard Jones, Superintendent in ACT Corrective Services, a Branch within the Department of Justice and Community Safety, approved the temporary transfer of Mr Anthony Johnston to the position of Superintendent in the ACT Corrective Services Branch of the Department, Position Number 11198, from 2 February 2008 to 1 June 2008. At the time, Mr Jones occupied Position Number 48955, a Senior Officer Grade A in ACT Corrective Services.

83. On 2 April 2007, the then Chief Executive of the Department made, under s 36(4) of the Public Sector Management Act 1994 (ACT) (the PSM Act), a delegation of a number of her functions to various designated officers.

84. One of the matters delegated was specified in the List of Delegations (being Part C to the document) to be the power to give a direction under s 100(1) of the PSM Act for an officer to perform temporarily the whole or part of the duties of an officer in the Department. That was delegated to an officer who was classified in Group C, but the power was limited to transfers to a position which was below their own level and only in relation to an organisational unit (which I understood to include a Branch) under the delegate's control.

85. It thus seemed that Mr Jones may have been giving a direction to Mr Johnston to perform the duties of his own office, which may have been inconsistent with the limit of his delegation. For reasons that appear below, I do not have finally to decide this.

86. In any event, Mr Johnston on 12 February 2008, in his role as Acting Superintendent (for he was then occupying the position of superintendent (Position Number 11198) after the temporary transfer), approved, also under s 100 of the PSM Act, a temporary transfer of Mr Giucci to a position as Custodial Officer 4 (Position Number 48955), which, it appears, was the position of Deputy Superintendent of the Periodic Detention Centre.

87. That position, namely Position Number 48955, was one of the positions to which, under the Authority of 7 December 2007, had been delegated the chief executive's powers under s 59 of the Sentence Administration Act (see [78]). Thus, as occupant, albeit temporarily, of that position, Mr Giucci was authorised to apply to the Board for an inquiry into breaches of periodic detention and which he did in his Reports.

88. The matter was complicated by the fact that on 19 February 2009, a new Authority was signed by the chief executive, the Chief Executive Authority (Justice and Community Safety) (No 18h). That effected delegations by reference not to Position Numbers but to positions by reference to the title of the position.

89. That Authority provided that certain sections of the instrument were to commence "on the date [the Authority] is signed or such earlier date as may be provided". In particular, by Schedule 6 of the Authority, it delegated the chief executive's authority under s 59 of the Sentence Administration Act to positions described as "Executive Director", "Deputy Executive Director", "Superintendent", "Deputy Superintendent/s" and "Custodial Officer Grade 3".

90. This Authority seemed to be irrelevant save that, presumably later that day, a further Chief Executive Authority (Justice and Community Safety) (No 18i) was signed also on 19 February 2009, which omitted the words quoted above (at [89]) and substituted "2 June 2006". This then applied to Schedule 6 in which the above positions identified above to apply to the Board under s 59 of the Sentence Administration Act retrospectively from 2 June 2006. It thus applied to the relevant period in which Mr Giucci made the application to the Board under that section.

91. Thus, if these arrangements were effective, then Mr Giucci, whose nominal position was as a Deputy Superintendent and whose temporary position was as Acting Superintendent under the transfer direction given by Mr Johnston, was a position authorised to make applications under s 59.

92. This delegation, however, was challenged by Mr Lewis on the ground that the retrospective delegation did not "have the legitimising retrospective effect relied upon by the defendants". It was further submitted that the defendant was bound by the admission that there was no relevant and effective delegation. Finally it was challenged on the basis that the granting of this power to Mr Giucci was an improper or invalid delegation. The argument was, as I understood it, that Mr Jones "did not have the power/ability to sub-delegate to Anthony Johnston".

Validity of the retrospective delegation to Mr Giucci

93. I refer first to the submission that the retrospective delegation was not effective. Section 76 of the Legislation Act 2001 (ACT) provides:

(1) A statutory instrument may provide that a non-prejudicial provision of the instrument commences retrospectively.

...

(4) In this section:

non-prejudicial provision means a provision that is not a prejudicial provision.

prejudicial provision means a provision that operates to the disadvantage of a person (other than the Territory or a territory authority or instrumentality) by_ - _

(a) adversely affecting the person's rights; or

(b) imposing liabilities on the person.

94. It seems to me that a delegation of the kind with which I am dealing is clearly a non-prejudicial provision. I am unable to see any adverse effect on the rights of Mr Lewis or anyone else by the delegation nor can I see the imposition of any liability by it. None were drawn to my attention in submissions. In my view, the retrospective delegation was effective by virtue of s 76 of the Legislation Act.

Was the purported admission of the ACT Government Solicitor binding?

95. As to the second matter, Mr F J Purnell SC, who appeared with Mr S Gill for Mr Lewis, submitted at the hearing that the response by the ACT Government Solicitor that Mr Giucci (and Mr Divorty) had never occupied a position which had been delegated to make an application under s 59 of the Sentence Administration Act (see [76] above), was an admission made with authority under s 87 of the Evidence Act 1995 (Cth) and which thus bound the defendants in these proceedings.

96. The evidence about the actual delegation made and to which I have referred above is, however, inconsistent with that submission. No objection was taken to the adducing of the evidence on which my findings above are based.

97. I accept that a lawyer has authority to make admissions on behalf of his or her client, as held in Hoy Mobile Pty Ltd v Allphones Retail Pty Ltd [2008] FCA 369 at [18]. While it may have been an admission of this kind, however, it was certainly not a formal admission of the kind that would require leave before it is withdrawn (Jeans v Commonwealth Bank of Australia Ltd [2003] FCAFC 309; (2003) 204 ALR 327 at 330-1; [17]- [22]). It seems to me that it is more in the nature of the kind of matters referred to in Davison v Vickery's Motors Limited (In Liq) [1925] HCA 47; (1925) 37 CLR 1 at 7. See also, Termijtelen v Van Arkel [1974] 1 NSWLR 525 at 529. Thus, it was not an admission that was determinative of the issue; there was plenty of other evidence that showed it was probably stated in error, both by the later review of delegations referred to above (at [78]. [87]-[89]) and by the evidence tendered and admitted at the hearing.

98. If it was, in fact, an admission of the kind for which Mr Purnell contended, then it would have required that the evidence of the delegations and temporary transfers to have been rejected on Mr Purnell's objection. The fact is, however, he did not object; indeed, Mr Purnell expressly did not object to the defendant's Tender Bundle, which became an exhibit and which contained the material inconsistent with the "admission". That is not determinative of its status but is strongly confirmatory.

99. It does not seem to me that the admission precluded the other evidence being admitted and I prefer the other evidence. I do not rely on the admission, if such it could truly be called.

100. It was next submitted that when a call was made at an interlocutory stage of these proceedings, documents were produced which included a delegation that was said to be a nullity because it was not signed. That document, however, was, so far as I could tell, not before me. It may be that what was produced was an unsigned copy of a document, the original copy of which was signed. I am unable to tell. I can only deal with the evidence before me and, on the evidence before me, there were general delegations and they were signed.

(iii) Was Mr Giucci's delegation invalid as an unauthorised subdelegation?

101. Finally, it was submitted that, as the delegation had been to Mr Johnston, his delegation to Mr Giucci was a sub-delegation and so was invalid. This argument relies on the maxim delegatus non potest delegare, that is to say, a delegated authority cannot be re-delegated (R H Kersley (ed), A Selection of Legal Maxims (Sweet & Maxwell Ltd, 10th ed, 1939) 570). See De Bussche v Alt (1878) 8 Ch D 286 at 310.

102. In Lord Woolf and Jeffery Jowell, De Smith, Woolf & Jowell Judicial Review of Administration Action (Sweet & Maxwell, 5th ed, 1995) (Judicial Review) at 358; [6-104] it is said of this maxim:

The maxim delegatus non potest delegare does not enunciate a rule that knows no exception; it is a rule of construction which makes the presumption that 'a discretion conferred by statute is prima facie intended to be exercised by the authority on which the statute has conferred it and by no other authority, but this presumption may be rebutted by any contrary indications found in the language, scope or object of the statute'.

103. The quote in the above passage is taken from an article by John Willis, "Delegatus non potest delegare" (1943) 21 Canadian Bar Review 257. The footnote, in referring to that article, says that "[t]his article contains an excellent review of the earlier authorities." Both, this article and the passage in the first edition of Judicial Review, were described by the Full Court of the Supreme Court of New South Wales in Ex parte Forster; Re University of Sydney (1963) 63 SR(NSW) 723 at 733 as setting out the general effect of the "numerous" cases on the maxim and "the relevant principles."

104. The authors of the 5th edition of Judicial Review go on to say:

But the courts have sometimes assumed that the maxim does lay down a rule of rigid application, so that devolution of power cannot (in the absence of express statutory authority) be held to be valid unless it is held to fall short of delegation. In this way an unreasonably restricted meaning has often been given to the concept of delegation.

105. It seems to me, however, that the maxim is simply inapplicable here. The question is not one of delegation by the delegate. The delegation of the power to report under s 59 of the Sentence Administration Act is to an office, described by a title or position number. Thus, the person who from time to time occupies that office is the repository of the relevant delegated power.

106. Thus, what Mr Johnston was doing was not delegating to Mr Giucci a power that had been delegated to him. He was doing something quite different; he was transferring Mr Giucci temporarily to a different employment position. In the position to which he was transferred, Mr Giucci was, ex officio, entitled to exercise the powers that had been given to the holder of that office from time to time by the delegations of the chief executive. So much would be obvious and appropriate. If one is acting in another position, it would be expected and necessary that one had the powers and authority of that other position, else the point of occupying it would be rendered at least in part illusory.

107. Thus, there is no substance in this argument. As, however, there is an unresolved issue in relation to the power exercised by Mr Jones to transfer Mr Johnston into what appeared to be a position at the same level as that occupied by himself, contrary to a limitation apparently imposed on the delegation to him, I need to consider at least one other submission of the defendants.

(iv) Validity of the Board's actions regardless of whether Mr Giucci's delegation was invalid

108. The defendants submitted that the applications made to the Board by Mr Giucci, even if his appointment is invalid, would not invalidate the decisions of the Board if the decision of the Board:

(1) was saved by the Legislation Act 2001 (ACT); or

(2) relied on reports validated in accordance with the so-called "Carltona principle"; or

Validity of the report to the Board due to the Legislation Act

109. As to the first issue, s 242(1) of the Legislation Act provides:

A delegation, or anything done under a delegation, is not invalid only because of a defect or irregularity in or in relation to the delegation.

110. This provision is similar to s 26 of the Acts Interpretation Act 1954 (Qld). Neither provision seems to have been the subject of judicial consideration.

111. These provisions appear to be a legislative expression of at least an aspect of what is known as the de facto officer's doctrine, namely that "[t]he acts of a de facto public officer done in apparent execution of his office cannot be challenged on the grounds that he has no title to the office" as stated by McHugh JA in G J Coles & Co Ltd v Retail Trade Industrial Tribunal (1986) 7 NSWLR 503 at 525, and approved by the High Court in Cassell v The Queen [2000] HCA 8; (2000) 201 CLR 189 at 193; [19].

112. The limits of the doctrine are said not to be clear. See E Campbell, "De Facto Officers" (1994) 2 Australian Journal of Administrative Law 5; O Dixon, "De facto officers" (1938) 1 Res Judicatae 285. What limits there are, or should be, on the statutory validation in s 242 of the Legislation Act are not clear. It is, for example, not limited to formal defects, such as those which do not invalidate bankruptcy notices under the bankruptcy legislation: Adams v Lambert [2006] HCA 10; (2006) 228 CLR 409 at 415-6; [18]. The statutory provision is cast in wide terms, using the words "anything done under a delegation" and the broad connector "or in relation to the delegation". As to the latter, an expression "of wide import" see, inter alia, Victoria v Commonwealth [1971] HCA 16; (1971) 122 CLR 353 at 359 (Windeyer J).

113. The precise limits of s 242 of the Legislation Act must await for another day. It appears to have very wide application. In any event, I am satisfied that it would validate any report that was made by Mr Giucci under s 59 of the Sentence Administration Act were his appointment to an office, by which he was delegated to exercise the power under that section, to be found to be invalid in fact.

Validity of the report to the Board due to the Carltona principle

114. The defendants also submitted that, even were Mr Giucci not formally delegated, the law recognised that a chief executive of a Department of the government may act through officers of the department without need for a formal delegation. This, it was submitted, is established in relation to Ministers of the Crown by decisions such as Carltona Ltd v Commissioners of Works [1943] 2 All ER 560. The principle, sometimes called "the Carltona principle" has been applied in Australia and extended to heads of government departments in cases such as O'Reilly v Commissioners of the State Bank of Victoria [1983] HCA 47; (1983) 153 CLR 1 at 11-2 (Gibbs CJ), 30-1 (Wilson J).

115. The application of the principle depends upon the nature of the power and all the other circumstances of the case as noted by Ormiston JA, with whom Phillips CJ and Callaway JA agreed, in R v Ngo [1999] VSCA 222; [1999] 3 VR 265 at 271-282; [21]- [49].

116. The existence of an express and limited statutory power of delegation does not necessarily exclude the existence of this implied power to act through departmental officers: Re Patterson; Ex parte Taylor [2001] HCA 51; (2001) 207 CLR 391 at 449; [176] (Gummow and Hayne JJ). Where the power to be exercised does not involve a discretion, the power may more readily be implied, as explained by von Doussa J, with whom Spender and French JJ agreed, in Secretary, Department of Social Security v Alvaro [1994] FCA 1124; (1994) 50 FCR 213 at 223-5.

117. Here, there is no real discretion; the section says that the "chief executive must apply" if the conditions are met. The application is a formal process to start the operation of the processes of the Board. I see no reason why, if necessary, the Carltona principle should not apply. That would validate the Board's reliance of Mr Giucci's reports.

The Board's actions as not invalidated because of invalid reports

118. Finally, the defendants say that, in any event, a proper construction of the Sentence Administration Act does not require that the Board's inquiry be invalidated should an application not be made by an appropriately qualified person. That is to say, an act done in breach of a condition regulating the exercise of a statutory power such as that in s 59 of the Sentence Administration Act is not necessarily invalid or ineffective. Whether it is or not depends upon the legislative purpose that must be identified and whether that purpose requires invalidity where there is no compliance with the condition: Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 at 388-9; [91].

119. It seems to me that the intention of s 59 of the Act is that:

(a) there is a recognition that the breach process is best initiated by the person who has the information about whether there is a second or subsequent breach, namely the chief executive who, through her officers, has the custody of the offender during the detention period and who will know whether the offender has attended;

(b) the person has some status within the administration so as to be likely to exercise the power with an appropriate degree of responsibility; and

(c) there is an obligation, whether there is a second or subsequent breach that the breach process under the Act be initiated.

120. The determination of whether there is, in fact, such a breach is a matter for the Board and not, finally, for the chief executive or her delegate. The Board is an independent body and, therefore, a protector of the offender's rights. This protection does not reside in the initiator of the process, nor does the legislation locate it there. Thus, the process is similar to the filing of an application for the issue of a summons on information which, the Appeal Division of the Supreme Court of Victoria held in Director of Public Prosecutions v His Honour Judge Fricke [1993] VicRp 27; [1993] 1 VR 369 at 371-4, could be done through an agent.

121. In any event, despite all this, s 66 of the Sentence Administration Act permits the Board to conduct an inquiry on its own initiative. Thus, the making of a report is not a condition precedent to the validity of the inquiry. Indeed, were the Board to be informed by a person it considered reliable that there had been a breach or there had likely been a breach, it would be perfectly valid for the Board to initiate an inquiry. Why Mr Giucci, whether the recipient of a proper delegation or not, would not be a proper source of such information is difficult to imagine.

122. This ground has not been made out, even if Mr Giucci was not properly the recipient of a valid delegation.

Validity of the resolutions of the Board meeting on 2 July 2008

123. Mr Lewis next complains that the meeting of the Board on 2 July 2008 which convened the hearing on 8 July 2008 was invalid and thus the hearing was invalid.

124. The circumstances are that the Board purported to meet on 2 July 2008 at which it "resolved to conduct a s 73 inquiry at the meeting on 8 July 2008." It then directed that notices be sent to Mr Lewis and others as required by s 204 of the Sentence Administration Act.

125. An evidentiary certificate as to that meeting was tendered. It is admissible under s 189 of the Sentence Administration Act. It is "evidence of the matters recorded". That is to say, it is not conclusive but only prima facie evidence of the matters recorded and, for example, could be excluded in the exercise of a discretion under the Evidence Act 1995 (Cth) as was held by Austin J in Australian Securities and Investments Commission v Rich [2005] NSWSC 417; (2005) 216 ALR 320 at 371-2; [229]- [232].

126. In particular, it may be displaced by other evidence which is to the contrary. In this case, material tendered shows that there was no actual meeting. The members of the Board in this case did not actually meet. The evidence showed the minutes were entitled "Via E-Mail".

127. What the evidence shows is that the acting Secretary prepared the minutes of what appears to have been intended to be a meeting which was "facilitated" by the acting Secretary. That consisted of the draft of what would be the minutes of the proposed meeting being circulated by email and the members of the Board advising by email whether they agreed or not with the terms of the matters set out in the document. Two of the members sent an email of 2 July 2008 in which one said that he "agree[d] with the record of decisions" (with one exception) and the other said he "endorse[d] the findings and outcomes of the meeting" (with the same exception). The third member, the Chair, orally advised that she "endorsed the proposed actions" and subsequently signed the minutes.

128. Mr Lewis submitted that this could not amount to a valid meeting. He referred, through his counsel, to s 187(3) and (4) of the Sentence Administration Act, which provides:

(3) A meeting may be held using a method of communication, or a combination of methods of communication, that allows a member taking part to hear what each other member taking part says without the members being in each other's presence.

Examples

phone link, a satellite link

Note An example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act, s 126 and s 132).

(4) A member who takes part in a meeting conducted under subsection (3) is taken to be present at the meeting.

129. That submission is correct. Email does not permit the other users, even if online at the same time in real time, to hear what the other member is saying. In any event, one member sent his email at 11:48 am and the other sent his at 1:06 pm. It seems unlikely that they were online at the same time. What occurred on 2 July 2008 was not a meeting of the Board.

The resolutions of the Board on 2 July 2008 were valid

130. That, however, is not the end of the matter. Section 187(5) provides:

(5) A resolution of the board is valid, even if it is not passed at a meeting of the board, if -

• (a) all members agree, in writing, to the proposed resolution; and
• (b) notice of the resolution is given under procedures decided by the board.

131. This is an alternative method of making decisions. It does not, however, constitute a meeting. Thus, as Professor Stephen Bottomley wrote in "From Contractualism to Constitutionalism: A Framework for Corporate Governance" [1997] SydLawRw 17; (1997) 19(3) Sydney Law Review 277 at 305

These requirements [namely of notice, quorum, voting, proxy and minutes] are premised on the idea that the meeting is a forum in which issues will be put, arguments will be heard, and decisions made. In short, the premise is that of deliberation. One aim of deliberative decision-making is to achieve corporate decisions that can rely on a deeper claim to validity than simple majority support. If the process of decision-making is to have this result, it must offer real opportunities for involvement and influence. Amongst other things, this means creating a sense that input into decision-making is important and will be taken into account equally with other contributions.

132. See Re Compaction Systems Pty Ltd [1976] 2 NSWLR 477 at 485; Wagner v International Health Promotions (admin apptd) (1994) 15 ACSR 419 at 421-2; Re Ferguson [1995] FCA 1348; (1995) 58 FCR 106 at 111.

133. Although what occurred was not a meeting, an agreement in writing is a decision of the Board where it is in the form of a resolution. Given that such a decision is made in the absence of a debate, as otherwise would happen at a meeting, it is often the case that a higher level of agreement is required for such decisions; here the section requires that the decision must be unanimous.

134. Was this satisfied in this case? I am satisfied that the agreement by email was, for the purposes of s 187(5), an agreement "in writing". In my view, the definition of "writing" in Pt 1 of the Dictionary of the Legislation Act 2001 (ACT), namely "includes any way of representing or reproducing words in visible form", applies to email.

135. The Chair, however, did not send an email. She simply telephoned her agreement to the acting Secretary who recorded her agreement in a file note. That did not comply with the requirement for writing in s 187(5). She did, however, later sign the "minutes of the meeting" which incorporated the matters to which the other members had agreed (or endorsed). That, it seems to me, was sufficient compliance with the sub-section; it was an agreement in writing.

136. Only three members of the Board agreed in writing. The issue to be determined is whether this satisfied the s 187(5) requirement, which requires "all members" to agree. It is arguable that all members of the Board as constituted under the Sentence Administration Act are required to agree to the resolution. In my view, however, ss 181 and 182 of the Sentence Administration Act answer this contention. These sections relevantly provide:

181 Exercise of board's supervisory functions

(1) The supervisory functions of the board must be exercised by a division of the board.

(2) In exercising a supervisory function, the division of the board is taken to be the board.

182 Constitution of divisions of board

(1) The chair must ensure that there are enough divisions of the board for the proper exercise of the board's supervisory functions.

(2) Each division is to consist only of the following members assigned by the chair:

(a) a judicial member;

(b) 2 non-judicial members.

(3) To remove any doubt -

(a) a division of the board, as constituted at any time, may exercise any supervisory function of the board; and

(b) the chair may assign board members to a division from time to time for the exercise of the board's supervisory functions in a particular case or in any case; and

(c) a judicial member or non-judicial member may be assigned to 2 or more divisions at the same time.

137. The decision in relation to the periodic detention of Mr Lewis was a "supervisory function" (s 180). Thus, the relevant division is, for that purpose, "taken to be the board". If exercising a supervisory function, a resolution signed by all members of a division would be sufficient for s 187(5).

138. What the "minutes" show is much more than a resolution. I have no doubt that the procedure may be used for multiple resolutions. They show, however, other matters such as matters that were "noted", directions that were given and an indication of what would be considered at the hearing on 8 July 2008. None of these things could be nor were validly done by this procedure.

139. That is not to say, however, that this caused some invalidity in this case. The resolution to conduct an inquiry was validly made. The direction by the Chair to give notice to Mr Lewis is a direction that the Chair may given under s 205 at any time and not necessarily at a meeting.

140. In any event, it is by no means clear that the Board can only hold a hearing if a resolution of the Board at an earlier meeting resolved that it do so.

141. The resolutions of 2 July 2008 to conduct an inquiry under s 73 of the Sentence Administration Act were valid. There is no substance in this ground.

142. Mr Lewis further complains that he was denied natural justice.

143. As noted above (at [56]), there is no doubt that the Board was required to afford Mr Lewis natural justice. Mr Purnell referred to a number of authorities which affirmed the central importance of a right to be heard when rights are affected, as would be the right to liberty of Mr Lewis by an order cancelling his period detention order. Suffice it is to refer to the seminal statement of Mason J in Kioa v West [1985] HCA 81; (1985) 159 CLR 550 at 582:

It is a fundamental rule of the common law doctrine of natural justice expressed in traditional terms that, generally speaking, when an order is to be made which will deprive a person of some right or interest or the legitimate expectation of a benefit, he [or she] is entitled to know the case sought to be made against him and to be given an opportunity of replying to it

144. The question here was not whether this doctrine applied; the question is, rather, what was the content of the natural justice to which Mr Lewis was entitled to be afforded. As Tucker LJ said in a frequently cited and quoted passage in Russell v Duke of Norfolk [1949] 1 All ER 109 at 118:

The requirements of natural justice must depend on the circumstances of the case, the nature of the inquiry, the rules under which the tribunal is acting, the subject-matter that is being dealt with, and so forth. Accordingly, I do not derive much assistance from the definitions of natural justice which have been from time to time used, but, whatever standard is adopted, one essential is that the person concerned should have a reasonable opportunity of presenting his [or her] case.

145. See, more recently, what Lord Hoffman said in Secretary of State for the Home Department v AF (No 3) [2010] 2 AC 269 at 357; [72].

146. In this case, Mr Lewis through his counsel effectively made two challenges: he said that the notice he had of the hearing was not sufficient and he also said that he should have been present at the hearing.

147. As to notice, the chronology is relevant and there was some additional evidence.

148. As noted above (at [65]-[66]), the Board resolved on 2 July 2008 to hold a hearing into Mr Lewis' periodic detention. The Chair directed that Mr Lewis be notified. That was, in any event, required under ss 66 and 73 of the Sentence Administration Act. The Chair further directed that under s 205, Mr Lewis attend.

149. A letter was sent to Mr Lewis as noted above (at [66]). That letter was sent to the address at which earlier correspondence had been sent. Receipt of that earlier correspondence to that address was acknowledged by Mr Lewis as noted above

150. That earlier correspondence, on 17 April 2008, forwarded to Mr Lewis the three reports of Mr Giucci relating to his failure to attend for periodic detention on 1 February, 28 March and 4 April 2008 together with the deemed failure on 11 April 2008. It gave him notice to make any submission he might wish to make on or before 7 May 2008. No such submissions were received.

151. Thus, as at 7 May 2008, Mr Lewis had received a copy of the reports of Mr Giucci asserting that he had failed on more than two occasions to report for periodic detention and he had failed to take advantage of the opportunity provided to him to make submission to the Board.

152. Mr Lewis had left Canberra on 12 May 2008 and completed no further periods of detention. He had not, as he was required to do under s 43 of the Sentence Administration Act, sought or obtained approval to change the address of his work, or, possibly, his home.

153. While some correspondence sent to him after 12 May 2008 was received at the address where he had been residing prior to 12 May 2008, namely with his mother, he did not acknowledge it. That he has acknowledged some correspondence and not others is relevant and the Board's knowledge of what he may or may not have received. Precisely what correspondence was actually received is not clear. No steps were taken by Mr Lewis (by production or by affidavit) or by the defendant's (through discovery, interrogatories or notices to produce) to identify exactly which letters had actually arrived at the address.

154. Mr Lewis returned to Canberra on 7 July 2008 and found letters to him at his mother's place. As I have noted above (at [66]), he chose not to open them. He returned to work at his previous place of employment on 9 July 2008.

155. The then acting Secretary of the Board, Ms Amanda Corcoran, also gave evidence, both by affidavit and orally. She deposed that she had inspected the mail register of the section which provides secretariat support to the Board. That showed correspondence sent to Mr Lewis, being five letters on 2 July 2008. They were sent to him by express post in one envelope. The records of the section do not disclose that the envelope was returned undelivered.

156. In oral evidence, Ms Corcoran said that about 50% to 60% of those persons to whom letters are sent on behalf of the Board do not acknowledge them. The Board would, nevertheless, hold an inquiry or a hearing. She acknowledged that the secretariat does not include with any such correspondence a reply paid envelope to facilitate the return of acknowledgements or, indeed, any written submissions they wish to make. She also said that the secretariat do advise solicitors, for offenders if known, of the holding of an inquiry under s 66 of the Sentence Administration Act, but that there was no provision in the legislation for advising anybody else. She did not advise any solicitors for Mr Lewis of the inquiry or hearing into his periodic detention.

157. Ms Corcoran said that she had been present at inquiries and hearings where the offender was not present and that this happened in about 50% of cases. She was also aware that sometimes offenders were not present at hearings because they claimed they were not aware that it was taking place. She said that, of the hearings where offenders were not present, about half later claim that they did not know that the hearing was taking place. She also said that some of the offenders who do not return acknowledgements of letters do attend hearings and that this would be 20% to 30% of those who had been sent a notice.

158. On that evidence, about 40% to 50% of offenders who are sent notices of an inquiry return an acknowledgement, thus showing that they have received the information and opened the envelope, and another 20% to 30% of those who are sent a notice nevertheless actually attend the Board hearing. That represents 60% to 80% of those given notice of inquiry have shown by their actions that they have received good notice of the inquiry or hearing.

159. Mr Purnell, however, submitted that it was not adequate notice to send a letter to the offender. It was not proper notice to Mr Lewis. He submitted that personal service was required. Section 204 of the Sentence Administration Act provides relevantly:

(1) The board must give written notice of a hearing for an inquiry in relation to an offender to each of the following:

• (a) the offender;

(2) The notice must include the following:

• (a) a statement about where and when the hearing is to be held;
• (b) a statement about the effect of section 209 (Offender's rights at board hearing).

(3) A person who is given notice of a hearing under this section may appear at the hearing.

160. Mr Purnell submitted that the use of the term "give" in s 204(1) required personal service. He noted that r 6405 of the Court Procedures Rules 2006 (ACT), which regulates personal service is in the following terms:

(1) To serve a document personally on a person, the person serving the document must give the person -

• (a) if the original of the document is sealed - a sealed copy of the document; or
• (b) in any other case - a stamped copy of the document.

(2) However, if the person does not accept the copy, the person serving the document may serve it by putting the copy down in the person's presence and telling the person in general terms what it is.

(3) Also, if the person serving the document is prevented from approaching the person by violence or threat of violence, the person serving the document may serve it by putting the copy down as near as practicable to, but in the sight of, the person being served.

161. While in that context, "give" must have the meaning of "hand over personally to", it does not seem to me to influence the meaning of the word in quite another context - it is a different legislative regime, where there is no requirement in the regime for personal service.

162. Part 19.5 of the Legislation Act, provides for service of documents that are required by any legislation to be served. The relevant provisions are ss 245-7 and 250 as follows:

245 Application of pt 19.5

This part applies to a document that is authorised or required under a law to be served (whether the word 'serve', 'give', 'notify', 'send' or 'tell' or any other word is used).

246 Definitions for pt 19.5

In this part:

...

home address, of an individual in relation to anything done or to be done under a law, includes the latest home address, or address for service of notices (however described), of the person (if any) recorded in a register or other records kept by the administrator of the law.

...

247 Service of documents on individuals

(1) A document may be served on an individual -

(a) by giving it to the individual; or

(b) by sending it by prepaid post, addressed to the individual, to a home or business address of the individual; or

(c) by faxing it to a fax number of the individual; or

(d) by emailing it to an email address of the individual; or

(e) by leaving it, addressed to the individual, at a home or business address of the individual with someone who appears to be at least 16 years old and to live or be employed at the address.

Note See s 251 for service of documents under other laws.

(2) This section applies to service of a document outside the ACT in the same way as it applies to service of the document in the ACT.

...

250 When document taken to be served

(1) A document served by post under this part is taken to be served when the document would have been delivered in the ordinary course of post.

(2) However, subsection (1) does not affect the operation of the Evidence Act 1995 (Cwlth), section 160.

Note The Evidence Act 1995 (Cwlth), s 160 provides a rebuttable presumption that a postal article sent by prepaid post addressed to a person at an address in Australia or an external territory was received on the 4th working day after posting.

163. The letter giving Mr Lewis notice was sent to him at what would be regarded under this legislation as his home address and was taken to be served no later than on the fourth working day after 2 July 2008, that is 8 July 2008, when Mr Lewis returned home. I note that this is the day of the inquiry which would, in itself, be inadequate notice.

164. That Mr Lewis, who appears to have received some letters, chose not to open them and read them cannot make the service ineffective. Despite Mr Purnell casting rather excessive aspersions on the notion of the Board relying on the Legislation Act provisions for service, they are available as provisions upon which the Board can properly rely.

165. It is clear on the authorities that a party who is given an opportunity to put his or her case but, through their own default, fails to take the opportunity, has no basis for complaint if they are not heard. See, for example, Allesch v Maunz (2000) 203 CLR 172 at 182; [27]; SZFDE v Minister for Immigration and Citizenship [2007] HCA 35; (2007) 232 CLR 189 at 207; [53].

166. In M Aronson, B Dyer and M Groves, Judicial Review of Administrative Action (Lawbook Co, 4th ed, 2009) at 564:

[W]e suggest that the requirements of procedural fairness concerning service, must, like all other facets of fairness, vary with the circumstances. To require actual notice in all cases could impose an unreasonable burden and seriously undermine the finality of administrative decision-making. But in the case of decisions with serious consequences, a requirement of actual notice may well be appropriate. Where the consequences are not grave, it may often be appropriate that actual notice should not be required. In such cases we suggest that a decision-maker must establish that reasonable efforts at service had been made. [footnotes omitted]

167. Of course, the possible deprivation of liberty is a serious consequence. While Mr Lewis did not open and read the letters which, subject to the matters I refer to above (at [153]), advised him of the hearing, he did apparently receive some correspondence from the Board. It was his decision not to open them. Even personal service (as required in certain cases) under the Court Procedures Rules, as set out above (at [160]), does not mandate that the person served must actually read or understand the document.

168. Mr Lewis thus was the author of his own misfortune in that:

(a) the Board had been informed that Mr Lewis was aware of the processes for seeking leave from performing periodic detention, acknowledged on induction;

(b) he had acknowledged receiving the reports of Mr Giucci which applied to the Board for an inquiry into a second or subsequent breach of his periodic detention obligations;

(c) he had breached his core conditions by changing home and business addresses without approval of the chief executive, contrary to s 43(1)(c) of the Sentence Administration Act; and

(d) he had been notified of the hearing on 8 July 2008 in the way in which the legislation provided he be notified but did not open or read the letters he had received.

169. There was, in this case, no denial of natural justice in the notice given to him of the inquiry.

170. The second challenge under this heading was that Mr Lewis, it was suggested, should have been required to be actually present at the hearing and, if he was not, the hearing should not have proceeded until he was actually present.

171. A corollary of this was the submission on behalf of Mr Lewis, rather startling at first sight, that, if Mr Lewis did not attend, he should have been arrested and brought before the Board.

172. The Sentence Administration Act did not in terms require the Board to have Mr Lewis personally before it when conducting a hearing. He was entitled but not required to appear: s 204(3) of the Sentence Administration Act.

173. The Board, through a judicial member, may require an offender to appear before the Board under s 205(1) of the Sentence Administration Act, but this is only if it is considered that the offender should give evidence or produce a document or thing to the inquiry. Indeed, if the document or thing is produced to the secretary to the Board, that can discharge the offender's obligation, without further actual appearance.

174. Section 206 of the Sentence Administration Act permits a judicial member to issue a warrant to bring the offender before the Board if he or she does not attend as required under s 205 or "for any other reason". The judicial member has a statutory discretion as to whether it should be exercised or not.

175. There is no express provision that the Board can proceed in the absence of an offender nor that it must have the offender before it. The legislative provisions referred to above seem strongly to suggest that the former is the position. There is, unsurprisingly, no authorities on point. This legislation does not seem to be replicated in any other jurisdiction.

(i) Requirement for the presence of an accused person in ordinary criminal proceedings

176. As to principle, it is, of course, clear, as noted in Lipohar v The Queen (1999) 200 CLR 485 at 514; [69], that ordinarily criminal proceedings before courts in the common law system require the appearance of an accused person. Thus, the Privy Council said in Lawrence v The King [1933] AC 699 at 708:

It is an essential principle of our criminal law that the trial for an indictable offence has to be conducted in the presence of the accused; and for this purpose trial means the whole of the proceedings, including sentence. There is authority for saying that in cases of misdemeanour there may be special circumstances which permit a trial in the absence of the accused, but on trials for felony the rule is inviolable, unless possibly the violent conduct of the accused himself intended to make trial impossible renders it lawful to continue in his absence. The result is that sentence passed for felony in the absence of the accused is totally invalid.

177. See, also R v Abrahams [1895] VicLawRp 73; (1895) 21 VLR 343; R v King [2004] ACTSC 82; (2004) 155 ACTR 55 at 57-8; [7]- [14]; R v Hallocoglu at 71.

178. Though the "inviolable" rule seems to have, in the decision of the Privy Council, an exception, even this, it has been suggested, does not apply to sentencing proceedings: R v Cornwell [1972] 2 NSWLR 1 at 3, following R v Vernell [1953] VicLawRp 79; [1953] VLR 590 at 600 where Smith J pointed out that in the case of a sentence, the requirement, that the trial in fact becomes impossible, can never be satisfied.

179. More recently, however, the exception, based on violent conduct of the accused making the trial impossible, has been somewhat expanded. That was first expressed by Williams J in R v Abrahams where his Honour said (at 347):

It will thus be seen that in my opinion in all cases whether of felony or misdemeanour, whether the accused be on bail or in custody, whether he be represented by counsel or not, he has a right to be present subject only to one qualification and that is, that he does not abuse that right. If he abuses that right for the purpose of obstructing the proceedings of the Court by unseemly, indecent, or outrageous behaviour, the Judge may have him removed and proceed with the trial in his absence, or he may discharge the jury, but subject to that qualification the right of being present remains with the accused as long as he claims it. When he waives it, then the discretion of the Judge comes into play. To take an extreme case by way of illustration: suppose an accused person to be out on bail, to appear and take his trial for either a felony or misdemeanour, and that when his trial comes on he is found to have absconded. By doing so, I take it, the accused has clearly waived his right to be present, and the Crown might elect to go on with the trial in the prisoner's absence, but then the presiding Judge has to exercise his [or her] discretionary power [emphasis added]

180. That, where an accused voluntarily absents himself, the trial judge has a discretion to continue the trial in his or her absence was accepted by Perry J in R v Rigney (1988) 48 SASR 72. That decision was followed in R v Jones [1998] SASC 7021; (1998) 72 SASR 281 where Lander J, with whom Wicks and Prior JJ agreed, said (at 294-5):

In my opinion a court may proceed with a trial in the absence of an accused person. It may do so in circumstances where the accused person has indicated that he or she waives a right to be present. An accused person will waive a right to be present when that person, during the currency of the trial, for example, escapes from custody; or where the accused person unlawfully absents himself or herself in breach of a bail agreement; or where, without any good excuse or explanation, the person absents himself or herself from the proceedings.

In any of those cases, if the court is satisfied that the accused has waived his or her right to be present during the trial, and that the trial may proceed without any injustice to that person except the injustice caused by the accused's own waiver, then the court may proceed with the accused's trial.

Any discretion to proceed in the absence of the accused, however, should be exercised sparingly.

...

There must be circumstances where a trial can proceed in the absence of the accused. Otherwise any accused, who was on bail, and who believed at some time during a trial that his or her prospects of acquittal were remote could absent himself or herself from the trial and thereby force a new trial. That cannot be right. If that was a principle then it would be necessary to revoke the bail of all accused persons at the outset of their trial. That would be an unfortunate and unfair consequence of that fundamental principle.

181. More recently still, the Victoria Court of Appeal has considered the question in R v Mokbel (2010) 30 VR 115. In that case, not only did the trial proceed in the absence of the accused but he was sentenced in his absence and, indeed, in the absence of his counsel who, following a ruling from the Ethics Committee of the Victorian Bar, withdrew from the case. The court was referred to R v Jones and cited a portion of the passage quoted above with which it agreed. It then added (at 125; [42]):

The submission for the applicant, however, was that these propositions had no application to sentence and that 'it must always be possible to pass sentence in the presence of the prisoner'. We disagree. Just as the 'essential principle' enunciated by Lord Atkin, requiring the accused's presence, applies with equal force to trial and to sentencing, so does the qualification to the principle stated by Lander J. The applicant waived his right to be present for the concluding part of his trial and, likewise, waived his right to be present at sentence. There was no error on his Honour's part in proceeding to sentence the applicant in his absence.

182. Even more recently, the Court of Criminal Appeal of the Supreme Court of South Australia has had to consider these issues again in R v Gee (2012) 113 SASR 372. At issue in that case is whether in certain circumstances the trial of an accused could actually commence in the absence of the accused.

183. In R v King, Gray J, in this Court, had opined (at 57-8; [11]):

[T]hat as a fundamental principle, in an ordinarily criminal trial, an accused person had both a right and an obligation to be present at least at the commencement of that trial. I regarded it as a duty upon a court to ensure that a person knows specifically what is alleged against that person and an obligation to ensure that proper opportunity is given for that person to exercise the right to make answers to those allegations.

184. In R v Gee, however, South Australian Court of Criminal Appeal differed and held, by majority, that the trial could commence in the absence of the accused. That Court (at 391-3; [75]-[83]) followed the House of Lords in R v Jones (Anthony) [2002] EWCA Crim 2949; [2003] 1 AC 1, whose reasoning the Court found "compelling", and which had been referred to with apparent approval by intermediate Courts of Appeal in South Australia, Western Australia, Victoria and in the Federal Court. It was then held (at 392; [79]):

There appears to be no reason in principle for distinguishing between the circumstances of a defendant who is voluntarily absent before the trial, and a defendant who absconds during the course of a trial. Principle strongly supports the conclusion that a trial judge retains a general discretion to proceed with the trial in the absence of the defendant. However, that discretion should be exercised with caution.

(ii) Applicability of these principles to the Board

185. The proceedings before the Board, however, are not criminal proceedings in a court, much less a criminal trial. They are not either, for reasons I set out below (at [290]), sentencing proceedings. What I draw from these authorities, however, is that if, as a matter of principle, a trial may begin and proceed not merely to verdict but also to sentence in the absence of an accused who voluntarily absents himself or herself from the proceedings, then there is no principle that would invalidate a hearing of a proceeding in the administration of the sentence earlier imposed because of the voluntary absence of the offender. That is to say, any such requirement would have to be found in the legislation.

186. It is relevant to note that, in R v Gee, the circumstances were that the accused had been committed for trial and had been arraigned. He was granted bail. There were then a number of adjustments of various pre-trial proceedings at which the accused was not present and, ultimately, he was directed to appear. He did not do so and a warrant was issued for his arrest. The accused's solicitor was given leave to withdraw and the trial judge then considered that, while he had a discretion to proceed with the trial in the absence of the accused who would not have known of any trial date, he should refer to the Court of Criminal Appeal certain questions of law. These questions included whether the common law in Australia allows for a trial of a defendant to commence and continue to verdict in the absence of the accused, to which the Court answered "Yes", and whether the trial judge, in the circumstances, was right to refuse to commence and continue the trial in the defendant's absence, to which the Court answered "No".

187. I do not take from these cases that there is no circumstance where, if the board proceeded in the absence of the offender, here Mr Lewis, its proceedings could be challenged; I consider simply that one has to look at the circumstances, and that there is no rule that the Board cannot proceed in the absence of the offender.

188. I am fortified in this view by the decision of Southwood J in Director of Public Prosecutions v Bakewell [2007] NTSC 49; (2007) 21 NTLR 171. Mr Bakewell had been convicted of murder in the Northern Territory and sentenced to life imprisonment. The Director made an application under the Sentencing (Crime of Murder) and Parole Reform Act 2003 (NT), which fixed a non-parole period of twenty years for persons sentenced to life imprisonment for murder but permitted the Director to apply to the court for that non-parole period to be revoked and either a longer period to be set or that the Court refuse to set a non-parole period.

189. Mr Bakewell had been transferred to a South Australian prison well before the application was made. He was not brought before the Court on the hearing of the application.

190. Mr Bakewell sought that the Director's application be struck out or permanently stayed on various grounds as to the validity of certain legislation.

191. The Court then considered whether Mr Bakewell's presence was required before the Court could entertain the application for a re-determination of the non-parole period. The Court held that, under the legislation, the application could proceed notwithstanding the absence of Mr Bakewell. The Court said (at 180; [26]):

Whether procedural fairness requires the attendance of a prisoner at court when the court is hearing an application under s 19 of the Sentence (Crime of Murder) and Parole Reform Act is a matter to be determined in the circumstances of each case. A prisoner's attendance in court may be required, for example, if he or she was either self-represented or unrepresented.

192. Indeed, it is not clear that an oral hearing has, as a matter of procedural fairness, to be provided in every case. There is some disagreement about this in Australia. In R v Chairman of the Parole Board (NT); Ex parte Patterson [1986] NTSC 49; (1986) 43 NTR 13; the Full Court of the Supreme Court of the Northern Territory held that an oral hearing is not necessarily required to comply with natural justice where a parole order is to be revoked. The court of Appeal of New South Wales came to the opposite conclusion in Johns v Release on Licence Board (1987) 27 A Crim R 445.

193. In Mulley v Southern Queensland Regional Parole Board [2009] QSC 228 at [15], de Jersey CJ held that an applicant for parole was not entitled to an oral hearing.

(iii) A right of appearance in the Sentence Administration Act

194. Nevertheless, it seems to me that there is, in the Sentence Administration Act, a right for an applicant to appear. Section 204(3) of the Act provides that "[a] person who is given notice of a hearing under this section may appear at the hearing". This does not require the person's appearance nor invalidate a hearing where the person does not appear, but gives the person who chooses to appear a right to appear. The question, however, is whether the Board can proceed in the person's absence.

195. In my view, good practice would require the Board to make every reasonable effort to have the person appear where at issue is whether the person's periodic detention is to be cancelled. That, after all, results in his incarceration.

196. I am, however, satisfied that, as a matter of law, it is not necessary for Mr Lewis to be present at a hearing of the Board where his attendance is a result of his own decision not to attend.

(iv) Determination of the decision of an accused not to attend a meeting of the Board

197. The problem for the Board, however, is how it will determine that Mr Lewis has made a decision not to attend. Given the serious consequences to an offender such as Mr Lewis of the outcome of the hearing, it is difficult to accept that anything less than an actual choice by the offender not to attend or, perhaps, wilful blindness as to the possibility of a choice, would be sufficient to justify the Board concluding that the opportunity for the offender to be heard had properly been given. Further, where offenders, knowing of their obligations, flagrantly flout them, for example, by leaving the jurisdiction without notifying the authorities, or simply cannot be found after reasonable inquiry, the Board may undoubtedly proceed in their absence. Otherwise, it seems to me to be necessary for the offender to be present.

198. This approach is confirmed by the decision of the judicial member in this case who decided under s 195(5)(b) of the Sentence Administration Act that natural justice would not be served if the inquiry were completed without a hearing. In addition, the judicial member gave a direction under s 205 of the Act that Mr Lewis attend the hearing. These are consistent with that view and, in my opinion, would require the Board to be satisfied that Mr Lewis has waived his right to be present before proceeding in his absence in one of the ways suggested above.

199. That is not to say that the service of the notices of the inquiry in the way they were given in this case is not valid and sufficient for the purposes of giving notice of the Sentence Administration Act. It is, as I have held.

200. The question is a different one, namely, what is required to comply with the obligation to accord Mr Lewis natural justice. If the Board can satisfy itself that the offender has had actual and reasonable notice of the hearing and the allegations, then it may proceed in his or her absence. Deemed service on the offender would not by itself be sufficient for this. Such service may, of course, be a part of this. Such service combined with contact from the offender with, for example, the Secretariat of the Board, in which it was clear that the offender had actually received the notice would be adequate.

201. As a counsel of perfection, personal service may sometimes be required or, indeed, the arrest of the offender so that the Board can be satisfied that actual notice was received. The latter should, of course, be a last resort. It is a rather worrying irony that a person be arrested, deprived of liberty, in order to comply with the obligation to accord him or her natural justice. Such an option should, of course, be sparingly used, but given that the outcome of the hearing may well be likely to be further deprivation of liberty, the option as a last resort is not necessarily inappropriate.

202. After all, courts use the power of arrest by issuing a bench warrant where a person fails to answer his or her bail (s 49(2) of the Bail Act 1992 (ACT)) even if a custodial penalty is unlikely to be imposed.

203. It seems to me that, even if a personal appearance is not strictly required for validity in each case, at least good practice would be for the Board to have an offender or his or her legal representative before it when considering cancellation of a periodic detention order, given the consequences of this course of action and the limited basis on which such consequences can be avoided. Unless the offender has been given actual, reasonable notice and fails or refuses to attend, it seems to me that natural justice has not been provided to the offender.

204. The difficulty in this case is that there were many letters sent to Mr Lewis between when he left Canberra and the final hearing at which his periodic detention order was finally cancelled. It is not at all clear that the letters he received included the ones which advised him of that hearing date. It is very likely that they did, but neither the Board nor I could be certain on the evidence before me.

205. In those circumstances, it cannot be said that I can be satisfied, from the evidence, that Mr Lewis has had the opportunity he should have been afforded to decide whether to attend before the Board or not. Whether he took advantage of the opportunity or not, he should have actually had it.

206. As a result, I consider the decision of the Board must be set aside on this ground so that a further decision can be made where Mr Lewis is provided with an actual opportunity to be present. If he chooses not to be present, the Board may then proceed in his absence, but the Board must be reasonably satisfied that he has chosen not to be present.

207. The second challenge to the decision was based on a claim that the Board, in exercising a power to cancel Mr Lewis' periodic detention order, was impermissibly exercising a judicial power which, as an administrative body, it could not do or, alternatively, that by so doing, it amounted to an impermissible undermining of the integrity of this Court. In either case, it was argued that the grant of power, both to revoke a periodic detention order and to give effect to such revocation under ss 68(2)(f), 79 and 82 of the Sentence Administration Act, is invalid.

208. Mr Lewis challenged the constitutional validity of these sections on the basis that, by conferring on a body other than a court the power to cancel an order of a court of the ACT, those provisions impermissibly confer:

(a) federal judicial power on a body other than a court, contrary to Chapter III of the Australian Constitution; or

(b) a power to interfere with the exercise of the judicial power of the Commonwealth on a body other than a court, contrary to Chapter III of the Constitution; or,

(c) on a body other than a court, a power that undermines the independence of, and impairs the integrity of, a court of the ACT, being a court capable of exercising federal jurisdiction, contrary to the requirements of Chapter III of the Constitution.

209. The challenged provisions of the Sentence Administration Act are relevantly in the following terms:

68 Board powers****_ - _breach of periodic detention obligations

(1) This section applies, if after conducting an inquiry under section 66 (Board inquiry - breach of periodic detention obligations) in relation to an offender, the board decides the offender has breached any of the offender's periodic detention obligations.

(2) The board may do 1 or more of the following:

...

(f) cancel the offender's period detention.

Note Section 69 and s 70 require the board to cancel the offender's periodic detention in certain circumstances.

...

1. Periodic detention_ - _effect of suspension or cancellation etc

(1) This section applies to a decision of the board to suspend or cancel an offender's periodic detention.

(2) The decision takes effect_ - _

(a) when written notice of the decision is given to the offender under section 77; or

(b) if a later date of effect is stated in the notice_ - _on the date stated.

...

(4) If the decision is to cancel the offender's periodic detention, the cancellation ends the periodic detention period of the offender's sentence of imprisonment and the offender must serve the remainder of the sentence_ - _

• (a) by full-time detention until when the periodic detention period would have ended apart from the cancellation; and
• (b) otherwise in accordance with the sentence.

1. Suspension or cancellation of periodic detention_ - _recommittal to full-time detention

(1) This section applies if the board decides to suspend or cancel an offender's period detention.

(2) The board must order that the offender be placed in the chief-executive's custody to serve the relevant part of the offender's sentence by imprisonment under full-time detention.

Note See s 79 (Periodic detention - effect of suspension or cancellation etc).

(3) If the offender is not in custody, the board may also issue a warrant for the offender to be arrested and placed in the chief executive's custody.

(4) The warrant must -

(a) be in writing signed by the chair of the board; and

(b) be directed to all escort officers or a named escort officer.

(5) An escort officer who arrests the offender under this section must place the offender in the chief executive's custody as soon as practicable.

210. It is a little odd that Mr Lewis did not challenge s 69 of the Sentence Administration Act as it seems to me that it is part of the regime involved although, of course, the power exercised, as s 69 makes clear, is that under s 68(2)(f). That section relevantly provides:

69 Cancellation of periodic detention****_ - _repeated failures to perform

(1) This section applies if -

(a) the chief-executive applies to the board under section 59 (Failing to perform periodic detention - referral to board) for an inquiry in relation to an offender; and

(b) at the inquiry, the board decides that section 58 (Failing to perform periodic detention - extension of periodic detention period) applies to the offender in relation to 2 or more detention periods of the offender's periodic detention period.

...

(2) The board must, as soon as practicable, cancel the offender's periodic detention under section 68.

211. During the hearing, it was agreed that the challenge by Mr Lewis should also encompass s 69 and I will include it in my consideration.

(ii) if so, was the exercise of that power impermissible by an administrative body and not a court; and

(iii) if not, did that exercise offend the institutional integrity of this court as required by Chapter III of the Constitution?

213. The High Court has consistently stated that no exhaustive definition of judicial power is possible. Thus, in Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10; (1995) 183 CLR 245 at 267, Deane, Dawson, Gaudron and McHugh JJ said:

Difficulty arises in attempting to formulate a comprehensive definition of judicial power not so much because it consists of a number of factors as because the combination is not always the same. It is hard to point to any essential or constant characteristic. Moreover, there are functions which, when performed by a court, constitute the exercise of judicial power but, when performed by some other body, do not ...

One is tempted to say that, in the end, judicial power is the power exercised by courts and can only be defined by reference to what courts do and the way in which they do it, rather than by recourse to any other classification of functions. But that would be to place reliance upon the elements of history and policy which, whilst they are legitimate considerations, cannot be conclusive.

214. Nevertheless, their Honours went on to consider some characteristics, noting, however, that often legislative or administrative decisions may also be so characterised. Thus, Kitto J in R v Gallagher; Ex parte Aberdare Collieries Pty Ltd (1963) 37 ALJR 40 at 43 said that judicial power consists of the "giving of decisions in the nature of adjudications upon disputes as to rights or obligations arising from the operation of the law upon past events or conduct"

215. It was, however, pointed out in Re Cram; Ex parte Newcastle Wallsend Coal Co Pty Ltd [1987] HCA 29; (1987) 163 CLR 140 at 149 that non-judicial functions, such as arbitral powers, also involve such adjudication. The court did note, however, that it was undeniable that enforceability of decisions was a judicial characteristic.

216. In Waterside Workers' Federation of Australia v J W Alexander Ltd [1918] HCA 56; (1918) 25 CLR 434 at 451, Barton J said:

It is important to observe that the judicial power includes with the decision and the pronouncement of judgment the power to carry that judgment into effect between the contending parties. Whether the power of enforcement is essential to be conferred or not, when it is conferred as part of the whole the judicial power is undeniably complete.

217. Perhaps more relevantly for present purposes, Griffith CJ said earlier in the same case (at 444) "convictions for offences and the imposition of penalties and punishments are matters appertaining exclusively to [judicial] power".

218. See, more recently, Harris v Caladine [1991] HCA 9; (1991) 172 CLR 84 at 147 (Gaudron J).

219. In Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1 at 27, Brennan, Deane and Dawson JJ, with whom relevantly Gaudron J agreed, said:

There are some functions which, by reason of their nature or because of historical considerations, have become established as essentially and exclusively judicial in character. The most important of them is the adjudgment and punishment of criminal guilt under a law of the Commonwealth. That function appertains exclusively to and 'could not be excluded from' the judicial power of the Commonwealth.

[footnotes omitted]

The plaintiff's submissions regarding the Board's power

220. The plaintiff submitted that the exercise by the Board of a power to cancel his periodic detention was an exercise of judicial power because it:

(i) imposes a sentence of imprisonment for breach of the conditions of periodic detention, that is sentences the offender; or

(ii) imposes a different and more onerous sentence for the original offence for which the offender was convicted.

221. This principle, that sentencing is an exercise of judicial power, was not challenged by the defendants. What, however, was at issue was whether the cancellation of periodic detention was the exercise of judicial power, whether it was the imposition of a sentence.

222. Mr Lewis contended that the Board's power to cancel an offender's periodic detention arose when the offender had breached his or her periodic detention obligations under the Sentence Administration Act. The determination of whether the offender has done so, however, is not an exercise in judicial power; it is a perfectly proper part of administrative process.

223. Mr Lewis contended, however, that the consequence was that he had now to serve a period of time in full-time detention which was not part of the original sentence. This, it was submitted, "in effect increases the penalty imposed" and therefore "constitutes punishment by imprisonment for breach of the statutory obligation". It was, it was submitted, "in substance, a re-sentencing of the offender".

The defendants' submissions regarding the Board's power

224. The defendants submitted that there were a number of aspects of the statutory regime which demonstrate that this is not so. They relied on the important fact that the character of powers and functions may, as described by Aickin J in R v Quinn; Ex parte Consolidated Food Corporation [1977] HCA 62; (1977) 138 CLR 1 at 18, "chameleon like, take their colour from their legislative surroundings or their recipient".

(i) Periodic detention orders as consensual and not imposed

225. The first matter was, it was submitted by the defendants, that periodic detention orders are consensual and not imposed. This submission was based on the need, as a pre-condition for setting a period of periodic detention as all or part of the sentence of imprisonment imposed, that the offender has signed an undertaking to comply with his or her periodic detention obligations, required under s 77 of the Sentencing Act.

226. Thus, it is said, the cancellation flows from the breach of the voluntary undertaking made by the offender. The power of the Board, they submitted, was akin to that of the Superannuation Complaints Tribunal, whose power to adjudicate disputes between superannuation fund trustees and complainants was not an exercise of judicial power because it required an election by a trustee that the relevant legislation apply to it: Attorney-General for the Commonwealth v Breckler (1999) 197 CLR 83 at 108-9; [38]-[39].

(ii) Imposing the sentence as distinct from setting the period of periodic detention

227. It was submitted that the effect of the legislation is that the court sets a sentence, which is a term of imprisonment, and then sets a period, that is the periodic detention period in the order: s 11(2) of the Sentencing Act (above at [27]). The sentence is, and is properly described, as a sentence of imprisonment: Meehan v Lawrence (1974) 22 FLR 296; R v Davey [1980] FCA 134; (1980) 50 FLR 57 at 66; Members of the Sentence Administration Board of the Australian Capital Territory v Gomez [2002] FCAFC 261 at [20]- [21]. The reason why an offender is not "ordered to serve periodic detention," but rather is permitted to do so, is that it can only be so served if there is an undertaking given. That is to say, the submission was, the court is giving effect to the undertaking that the offender is prepared to give in the circumstances.

228. This, it was submitted, was shown to be so because, for example, there are different criteria applicable between the decision to sentence a person to imprisonment, which is the sentence (s 11(1)(b) of the Sentencing Act), and whether to permit the offender to serve the term of imprisonment by periodic detention. The latter criteria are set out in s 78, some of which are by reference to s 79 (both sections being set out in [30] above), and include different considerations to those that inform the decision as to whether to impose a sentence of imprisonment, though some will clearly be relevant to both decisions.

229. Some support for this approach was said to come from Div 5.4.3 of the Sentence Administration Act, which provides that the Board may conduct an inquiry into an offender's periodic detention (s 73(1)), which may be on application by the offender (s 73(4)(b)) and after which the periodic detention may be cancelled or the conditions changed (s 75). This, it was submitted, would permit an offender, in effect, to withdraw his or her undertaking and serve the sentence in full time custody.

230. The defendants drew attention to the legislated process which, it was submitted, also showed that the Board was not exercising judicial functions. While, under s 69(2) (or s 68(2)(f)) of the Sentence Administration Act, the Board is required to cancel an offender's periodic detention if the relevant circumstances were found - here failure to perform periodic detention on two or more occasions - the actual effect is legislatively prescribed by s 79(4) of the Sentence Administration Act, the substance of which is set out above (at [43]). The Board must then order that the offender be placed in the chief executive's custody. It was submitted that the decision of the Board is not the exercise of a judicial power but is the factum on which the statutory consequences are engaged. In this, it is an administrative function where the Board is simply applying legal criteria to the facts: see Luton v Lessels [2002] HCA 13; (2002) 210 CLR 333 at 345; [21] (Gleeson CJ).

231. Thus, the power to give effect to the decision of the Board is not the power of the Board itself but the legislative power which gives the decision its effect. In this way, for example, the power exercised by the Board differs from judicial power as described by Kitto J above (at [214]).

232. As Kitto J said later in R v Trade Practices Tribunal; Ex parte Tasmanian Breweries Pty Ltd [1970] HCA 8; (1970) 123 CLR 361 at 378:

The determination [by the tribunal] itself has no operative effect: it constitutes the factum by reference to which the Act operates to alter the law in relation to the particular case. And an order under s 52 (or an interim restraining order under s 54) is in like case. It presents a direct contrast with an injunction granted by a court as a means of enforcing obligations that have been established by adjudication. The order restrains future conduct, not as being in breach of ascertained obligations, but as being in conformity with ascertained obligations or practices - not in order to ensure observance of them but to prevent observance of them, because it is considered that their observance would be against the public interest. The Act, particularly s 52(7), operates upon the order to give its provisions the force of law, and thus to alter the law for the future in relation to the particular case.

233. As McHugh, Gummow, Hayne and Heydon JJ said in Baker v The Queen [2004] HCA 45; (2004) 223 CLR 513 at 532; [43], "in general, a legislature can select whatever factum it wishes as the 'trigger' of a particular legislative consequence".

234. The distinction between what the Board does and what a court does is reinforced by the consequences of the order itself. As Hayne J, with whom Gleeson CJ and Gummow J agreed on this point, said in Attorney-General for the Commonwealth v Alinta Ltd [2008] HCA 2; (2008) 233 CLR 542 at 579; [100]:

It is important, however, to notice one further consideration which strengthens the case for validity of the impugned provisions. Although the Corporations Act gives an order of the Panel the force of law and makes contravention of the Panel's order an offence, an order of the Panel is open to challenge. It is open to direct challenge by proceedings under s 75(v) of the Constitution or proceedings seeking relief under s 39B of the Judiciary Act. No less importantly, an order of the Panel is open to collateral challenge in other judicial proceedings in which its valid making is an element in issue. That an order of the Panel may be challenged in these ways points away from a conclusion that the Panel exercises judicial power.

[citation omitted]

235. The decisions of the Board are open to similar challenge. They are certainly open to challenge under the Administrative Decisions (Judicial Review) Act 1989 (ACT) (see Singh v Sentence Administration Board of the ACT) by which reviews the process of the decision-making but not the merits, but also by proceedings for an order in the nature of habeas corpus (jurisdictional review: Ah Sheung v Lindberg [1906] VicLawRp 55; [1906] VLR 323 at 327) or by an action for false imprisonment. Indeed, the breach of the periodic detention by failing to attend for two or more sessions would be a jurisdictional fact (see Faull v Commissioner for Social Housing of the ACT [2013] ACTSC 121 at [127]) which is amenable to review.

236. In contrast, the Board may refer an offender to the sentencing Court under s 75(5) of the Sentence Administration Act where the Board decides that an offender is unlikely to be able to serve the remainder of the periodic detention period by periodic detention. Then, the court, under s 82A, may cancel the periodic detention (when the legislative consequences in s 79(4) are taken to apply) or may re-sentence the offender, the latter clearly being a judicial function but also not a power that is given to the Board.

237. There is some similarity to the powers exercisable when there has been a breach of a good behaviour order, made when a sentence of imprisonment has been suspended (s 12(3) of the Sentencing Act). Section 110 of the Sentence Administration Act requires the court to cancel the good behaviour order and either:

(a) impose the suspended sentence imposed for the offence; or

238. Clearly, the discretion as to which option is to be imposed is a judicial function as is, at least, the second option of re-sentencing.

(iii) Cancellation as a function of legislation and not of the board

239. The submission of the defendants was that the force of the cancellation is a function of the legislation and not of the Board. The Board has no discretion as to the outcome in terms of either the period to be served or as to whether it is actually to be served. This, it is submitted, takes the decision out of the realm of the exercise of a judicial function.

240. The submission of the defendants was that the statutory regime establishes that the part of the order that permits an offender to serve a sentence of imprisonment by periodic detention is a defeasible order, thus incorporating into the regime the condition that it ceases to permit service of the term of imprisonment to which the offender has been sentenced (s 11(1)(b) of the Sentencing Act) by custodial incarceration at the weekends where the relevant circumstances occur, in this case, the failure to perform two or more periods of periodic detention.

241. This is reinforced by the clear statutory indication that periodic detention is imprisonment and clearly treated as such. For example, provisions relating to it are set out in Ch 5 of the Sentencing Act, entitled "Imprisonment". The explanation of the order is set out in s 82 of the Sentencing Act, made applicable by s 81 of that Act, because it is a sentence of imprisonment. The term of imprisonment is, however, served in a particular way if the conditions are met.

242. The defendants also referred to the other significant occasions where the Executive can validly interfere with judicially imposed sentences in the way they are served. These include, local leave (s 205 of the Corrections Management Act 2005 (ACT)), parole (s 135 of the Sentence Administration Act), release on licence (s 299 of the Sentence Administration Act), remission of penalties, including a sentence of imprisonment (s 313 of the Sentence Administration Act) or a pardon (s 314 of the Sentence Administration Act). All of these are purely Executive acts which modify or negate in whole or in part the sentence imposed by the court.

243. It is especially relevant that, so far as parole and release on licence are concerned, the offender is, during the period of parole (unless revoked) or licence, taken to be serving the sentence (ss 140 and 303 of the Sentence Administration Act respectively). This is similar to the position with periodic detention under s 41A of the Sentence Administration Act, which provides a relevant symmetry.

244. This also applies to local leave, because s 217(2)(a) of the Corrections Management Act provides that the detainee remains "in the chief executive's custody".

245. The defendants relied, too, on the analogy with parole where the grant of parole and its revocation is entirely a matter of the discretion of the Board. There is no right to parole: Crump v New South Wales [2012] HCA 20; (2012) 247 CLR 1 at 26; [60]; Commissioner of Corrective Services v Wedge [2006] NSWCA 271; (2006) 68 NSWLR 334 at 346; [58]; McCallum v Parole Board of NSW [2003] NSWCCA 294 at [28]; Williams v Community Corrections Board (Qld) [2000] QCA 75; (2000) 110 A Crim R 385 at 390; [25]; R v Solomon (1992) 62 A Crim R 296; Sullivan v The Queen (1987) 87 FLR 123 at 128.

246. Once granted parole, however, the offender is entitled to be at large, in the same way an offender subject to a suspended sentence is entitled to be at large. See R v Davey at 66; Baba v Parole Board of New South Wales (1980) 5 NSWLR 338 at 350. That is, of course, subject to compliance with, in the case of a parole, the terms and conditions of the parole order; in the case of a suspended sentence, the terms and conditions of the good behaviour order which must then be made. That has much similarity with periodic detention, where the offender is entitled to be at large during the week, but subject to compliance with the conditions of the periodic detention arrangement.

247. Revocation of parole is a serious matter. As Nader J, with whom Maurice J agreed, described it in R v Chairman of Parole Board; Ex parte Patterson at 19:

The effect of the revocation or cancellation of a parole order upon a parolee is loss of freedom. A further effect is to postpone the date when the parolee's freedom would otherwise have become unconditional. The revocation (or cancellation) of parole does not merely cause the person affected to cease to enjoy liberty; but, by virtue of s 14, supra, it puts back the day when the person will become unconditionally entitled to liberty. In this very case, the prosecutor, if his parole had not been revoked or cancelled, would have become entitled to unconditional freedom on 16 November 1986. The effect of the purported revocation would have been that he would not have become entitled to unconditional freedom (subject to any remissions) until 27 December 1988: a postponement of more than two years. It can be seen that the longer a parolee has been at liberty on parole the more adversely he is affected by revocation or cancellation of parole by reference to the date on which is freedom will become unconditional. Of course, loss of freedom itself can have harsh consequences for a parolee. He may, for example, be renting a house and supporting a family. There are many ways in which one can imagine the loss of freedom imposing hardships in addition to and consequential upon the loss of freedom itself.

248. As Judd J put it in Kotzmann v Adult Parole Board of Victoria [2008] VSC 356; (2008) 221 FLR 134 at 145; [45]:

While a prisoner has no right to a parole order, its revocation and the timing of its revocation may have the effect of significantly extending the time a prisoner remains under sentence; with the risk that having served time on parole in the community he or she will be required to complete the remainder of the sentence in custody.

(iv) Legislative difference in imposing sentence and the way a sentence is served

249. The defendants submitted that it was also important to appreciate that the sentencing legislation made a very clear distinction between the sentence imposed and the way in which the sentence was to be served. This, it was submitted, was shown from the approach clearly discernible in the Sentencing Act and the Sentencing Administration Act.

250. "[S]entence" is defined in the Dictionary to the Sentencing Act as "the penalty imposed for an offence" or "to impose a penalty for an offence". Section 9 of the Sentencing Act then provides that a penalty that a court may impose is a penalty provided for in the Sentencing Act or another Territory law. The penalty is imprisonment, though the way it is served cannot be irrelevant.

251. Part 3.2 of the Sentencing Act deals with sentences of imprisonment and this includes provisions relating to periodic detention and suspended sentences. The first section in the Part is s 10 which relates to imprisonment and provides relevantly:

(1) This section applies if a court is sentencing an offender convicted of an offence punishable by imprisonment;

(2) The court may, by order, sentence the offender to imprisonment, for all or part of the term of the sentence, if the court is satisfied, having considered possible alternatives, that no other penalty is appropriate.

(3) If the court sentences the offender to imprisonment, the sentence must be served by full-time detention at a correctional centre, unless -

• (a) the court orders otherwise; or
• (b) the offender is released from full-time detention under this Act or another territory law.

Example for part (a)

the court makes a suspended sentence order

Examples for par (b)

1. the court sets a period of the sentence to be served by periodic detention
2. release on parole under the Crimes (Sentence Administration) Act 2005

252. The distinction between paragraphs (a) and (b) of subsection (3) is significant and can be seen in the examples given.

253. Thus, when it comes to periodic detention, the court's power is set out in s 11(2) of the Sentencing Act which provides:

The court may, in the order sentencing the offender to imprisonment, set a period of the sentence of imprisonment (a periodic detention period) to be served by periodic detention.

254. The contrast, noticeable in the examples to s 10, are then evident when this subsection is compared with the power to suspend a sentence which is provided for in s 12(2) of the Sentencing Act as follows:

The court may make an order (a suspended sentence order) suspending all or part of the sentence of imprisonment.

255. This distinction is followed by the differences in response where the order in s 12(2) of the Sentencing Act may only be revoked by a court under s 110 of the Sentence Administration Act as noted above (at [237]) whereas the periodic detention is otherwise cancelled by the legislation following a finding by the Board.

256. The intention that the defendants draw from this is that the order of the Court does not mandate that the offender spends weekends in detention but that the regime of periodic detention, accessible only after a relevant undertaking is signed, is then applicable to the offender. That regime is, in essence, that the period of imprisonment in respect of which a period is to be served by periodic detention will be served by weekend detention unless the conditions, including regular attendance, are breached, in which case the period of imprisonment originally imposed, less that already served, including by periodic detention will be served by full-time detention. See [47] above.

257. The defendants say that this distinguishes between the penalty, the imposition of which is the sentence, and the manner in which it is to be served.

258. The Sentencing Act is clear that periodic detention is a form of imprisonment (as is a suspended sentence). Thus, in s 82 of that Act, the Court is required to explain why the sentence of imprisonment was imposed and the purpose of the sentence obligations that apply to both these methods of serving imprisonment. In addition, where a period of periodic detention is set, the Court is required to explain in general terms the obligation under the Sentence Administration Act and, significantly, the consequences for an offender if he or she breaches those obligations.

259. It is to be noted that the service of a sentence of imprisonment is purely a creature of statute. It did not exist at common law and, thus, the nature of the regime must be found in the statute. The defendants submit that, once the periodic detention period is set, the statutory regime is necessarily engaged and this brings with it not only the obligations on the offender but the consequences of breaches of those obligations as set out in the regime.

260. That statutory regime includes the following elements:

(a) the offender's obligations to perform periodic detention and to comply with some or additional conditions;

(b) administration of the periodic detention is vested in the Executive, which, for example, sets the reporting place, day and time, even though they have been set by the sentencing court and may direct the offender not to perform periodic detention;

(c) responsibility for supervision of the order is reposed in the Executive which must refer breaches to the Board which, if it finds there has been a breach by failure to attend for two or more periods, must cancel the periodic detention, without any discretion;

(d) the defining of the end of the periodic detention period, namely at the end of the period or if the periodic detention is cancelled;

(e) compliance with the offender's obligations is an integral part of the scheme which cannot be made in the absence of an undertaking.

261. Thus, the defendants submit, the regime is a holistic one, interdependent such that, were the challenged sections to be held invalid the regime would be unworkable.

262. The defendants then challenge the characterisation of the cancellation submitted by Mr Lewis. It cannot be said, they submit, that, as submitted by Mr Lewis, it:

'increases the penalty imposed on the offender and constitutes punishment by imprisonment for the breach of a statutory obligation.' Nor can it be said that '[i]t is, in substance, a resentencing of the offender.' Periodic detention is not concerned with imposition of a penalty but only with the manner in which a sentence of imprisonment imposed by the Court is served.

(a) the legislation makes a careful distinction between the sentencing, which is the imposition of a penalty, on the one hand and the setting of a periodic detention period on the other;

(b) the setting of a periodic detention period is, under the legislation, to serve a different purpose, it having already been decided by the court that a period of imprisonment (with all that this entails, including under s 10(2) of the Sentencing Act that "no other penalty is appropriate") and which is exercised by reference to some different (though some same) criteria, especially those concerned with the feasibility and practicality of the sentence being served in that manner;

(c) the Board is directed to cancel the order where two or more periods of detention have not been served and the consequence of that decision is prescribed by the Act;

(d) the cancellation does not affect the order of the Court that imposed a period of imprisonment as to the length of the sentence and there is no re-exercise of any sentencing discretion;

(e) periodic detention can only be set where the offender has given an undertaking to comply with the relevant obligations; and

(f) the setting of a periodic detention period necessarily engages the statutory regime and includes with it the requirement of cancellation and service of the ordered period of imprisonment as full-time custody where the offender fails to comply with the obligation to serve two or more periods of periodic detention; and

(g) the court is required to explain the consequences to the offender of failing to comply with the conditions of periodic detention.

The plaintiff's submissions in reply regarding the Board's power

264. Mr Lewis submitted that these arguments did not answer his contention that the cancellation of periodic detention was the exercise of a power to sentence.

265. So far as the submission that periodic detention was consensual was concerned, he submitted that it was not, because it results from an order of a court imposing a sentence following a determination of guilt. It was submitted that the fact that an undertaking was required did not render the imprisonment "consensual and not imposed".

266. Strictly speaking that is correct, but it goes too far. The imprisonment is imposed by court order, without need for the express consent or otherwise of the offender. Of that there can be no doubt. The court, however, cannot set a term of imprisonment which must be served by periodic detention without the giving of the undertaking. To that extent, the setting of a periodic detention period is dependent upon the consent of the offender and therefore consensual at least to that extent.

267. There would clearly be a degree of compulsion, perhaps self imposed, to sign such an undertaking, but it remains a choice that an offender has and which cannot be imposed or forced or ordered. To that extent, the giving of the undertaking is an exercise of consent.

(ii) Periodic detention orders as consensual but an exercise of judicial power

268. Mr Lewis, however, submitted that even were periodic detention consensual, the cancellation was still an exercise of judicial power or an interference with judicial power. This, he submitted, was to be seen from the decision in Attorney-General v Breckler where, it was submitted, the fact of the election by a trustee to become a fund amenable to the Tribunal was not determinative of the decision of the court to hold that the powers of the Tribunal were not judicial.

269. I am not sure that this is correct, for the High Court did refer to the election in the following terms (at 111):

The application of the provisions of the Complaints Act was possible only because the Plan had the status of a regulated superannuation fund. The attainment of that status was the product of the exercise of an election provided to the trustees by the Supervision Act. Given the importance of attracting the operation of Pt IX of the Income Tax Act, cases may readily be imagined where it would be a breach of trust not to exercise the election so as to obtain the revenue benefits which follow, albeit at the concomitant price of attracting the regulatory regime of which the Tribunal is a component. The availability of an election of this nature may be, and in the context of the present legislative scheme is, a decisive pointer in favour of validity. [footnote omitted]

270. The other reasons expressed by the High Court are not ones that may not be said to be equivalent to circumstances to be found in the periodic detention regime. The first (at111) related to the fact that the exercise of power by the Complaints Tribunal was

the arbitration of a dispute using procedures and criteria adopted by the constituent trust instrument, the existing charter, for the resolution of certain disputes arising thereunder.

271. While the power exercised by the Board here is not to be so characterised, it is not dissimilar to the matter there described, as the proper determination of a breach is effected by an application of the facts to specific legal criteria set out in the relevant legislation.

272. The third matter in Breckler was similar, namely that the determination of the Tribunal is taken as the criterion by reference to which legal norms are imposed and remedies provided for their enforcement, namely (at 111) "the factum by reference to which legislation operates to confer curially enforceable rights and liabilities". This seems to me to describe accurately the Board's operation when cancelling periodic detention and its relationship with the relevant legislation.

273. Finally, the Court also referred (at 111-2) to the fact, "not necessarily decisive" but which "strengthens the case for validity", that the legislation does not give determinations of the Tribunal a conclusive character. This is so also for the decisions of the Board.

274. Mr Lewis, in the alternative, sought to distinguish the Board from the Tribunal, because the latter was given a power of merits review of decisions of superannuation fund trustees.

275. In contradistinction, it was submitted that the cancellation of periodic detention by the Board involved:

(b) imposition of a term of imprisonment for breach of the law; or

(c) review, cancellation or variation of a judicial order.

276. I disagree. There is no adjudgment of criminal guilt by the Board. There is no crime in failing to attend for periodic detention; it is a breach of a condition set out in the legislation, applicable to the offender by his or her undertaking. In this sense, it is very similar to a breach of a condition of parole which may also in many cases not be a criminal offence.

277. Secondly, the imposition of the term of imprisonment has been and is made by the sentencing court in its order; that is the sentence. The fact of imprisonment and the duration of the imprisonment are both imposed by the court and not by either the Board or, indeed, by the legislation.

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

279. The decision of the Board can only be seen as an interference with the Court order if that order is seen as an order that the offender serve the period of periodic detention by "weekend detention". The difficulty with that is easily seen. "Weekend detention" is, under the statutory regime, subject to directions able to be made by the Executive as to the day of the week, the time of starting the detention period, the time of finishing the detention period and even the place of reporting. If these provisions are to be read into any court order, then it is not easy to see a reason why the defeasibility of that method, where conditions have not been met (that is, cancellation for failure to perform two or more detention periods), would not also be read into the order. The statute makes clear that this is the non-discretionary consequence of the operation of the regime.

(iii) Cancellation of the periodic detention order as not merely deciding the manner a sentence of imprisonment is served

280. Mr Lewis further submitted that the Executive, in cancelling the periodic detention of an offender was not merely deciding "the manner in which the sentence of imprisonment is served". I accept that questions of prison discipline, security classification and segregation are different in many ways to a power to cancel periodic detention. The differences may not be as great as may be submitted. For example, it has always been accepted that questions of segregation of prisoners have such an effect on the quality of the punishment imposed that it is properly to be taken into account in determining the quantity of punishment: see A B v The Queen [1999] HCA 46; (1999) 198 CLR 111 at 152; [105] per Kirby J.

281. If, however, the sentence is construed in accordance with the legislation, the decision of the Board is not interfering with any order, but is giving effect to it by providing the occasion (the factum) whereby the legislated regime is to be implemented, which is inherent in the activation of the regime by the setting of a periodic detention period.

282. The criterion provided by Mr Lewis, however, is expressed as "the heart of the punishment imposed on the offender, namely the time that is to be spent in prison."

283. That, however, cannot be the criterion of distinction for the sentence has always specified that and the Board cannot ultimately change that.

284. Insofar as it can affect that, it is relevantly identical to the comparable situations to which the defendants referred, namely parole, release or licence and day release. These equally affect "the time that is to be spent in prison".

285. Mr Lewis submits, however, that parole is distinguishable. It was submitted that parole is "an aspect of the sentence itself, in that a sentence will set a non-parole period". It thus, it is said, "expressly [contemplates] that the person will be released on parole." The decision to release an offender on parole is, as Mr Lewis correctly submits, an administrative one. It is also correct that release of a person is qualitatively and significantly different from the detention of a person. The Board, however, has, as well as the power to release on parole, the power to revoke that release. As noted above (at [247]-[248]), such a revocation cannot be said to have no punitive consequences or character even though it is part of the contemplation of the original order.

286. Mr Lewis submits that the cancellation of periodic detention is not part of the contemplation of the original order, but that can only be if the order, in which a period of periodic detention is set, is not to include by implication the whole of the statutory regime which is the creator of the sentencing option.

287. In any event, it is by no means clear that a court could not be the appropriate repository of the decision to revoke parole; it does not have to be an administrative authority.

288. Further, there are now situations where parole is, in effect, ordered by the court, so that when the non-parole period expires, the offender is automatically released on parole. See, for example, s 160B(3) of the Penalties and Sentence Act 1992 (Qld). In that case, however, the Parole Board may still amend, suspend or cancel a parole order including, it appears, a court ordered parole order: ss 200(2), 205(1) and (2) of the Penalties and Sentences Act.

289. I accept that the fact of such legislation does not mean it is necessarily valid, but it does raise questions about the obviousness of the submissions that parole is a different kind of order to that which is here under consideration.

290. Having carefully considered these matters, I am not persuaded that the cancellation of periodic detention by the Board is the imposition of a sentence and so an exercise of judicial power nor that it is an interference with an order of a court.

291. If, however, I am wrong about that, I need to consider the next of the questions referred to above (at [212]).

292. The answer to this question depends on whether the Australian Capital Territory polity established by the Australian Capital Territory (Self-Government) Act 1988 (Cth) (the Self-Government Act), as described in Capital Duplicators Pty Ltd v Australian Capital Territory [1992] HCA 51; (1992) 177 CLR 248 at 259 as "a body politic under the Crown", is bound by the doctrine of the separation of powers.

293. In that case, it was held that the body politic thereby established was "a new legislative power by a separate legislative body armed with general legislative authority" and thus does not exercise delegated authority from the Commonwealth: Capital Duplicators Pty Ltd v Australian Capital Territory at 282 (per Brennan, Deane and Toohey JJ), at 284 (per Gaudron J).

294. The doctrine of the separation of powers has been articulated by Professor M J C Vile, Constitutionalism and the Separation of Powers (Liberty Fund, 2nd ed, 1998), that as follows:

A 'pure doctrine' of the separation of powers might be formulated in the following way: It is essential for the establishment and maintenance of political liberty that the government be divided into three branches or departments, the legislature, the executive, and the judiciary. To each of these three branches there is a corresponding identifiable function of government, legislative, executive, or judicial. Each branch of the government must be confined to the exercise of its own function and not allowed to encroach upon the functions of the other branches. Furthermore, the persons who compose these three agencies of government must be kept separate and distinct, no individual being allowed to be at the same time a member of more than one branch. In this way each of the branches will be a check to the others and no single group of people will be able to control the machinery of the State.

295. This doctrine was generally recognised in 1915 as having been incorporated into the Australian Constitution when, in New South Wales v Commonwealth [1915] HCA 17; (1915) 20 CLR 54, the Court invalidated a judicial power purported to have been conferred on the Inter-State Commission. Isaacs J referred (at 88) to "the fundamental principle of the separation of powers as marked out in the Australian Constitution" and Rich J observed (at 108) that "[t]he Constitution draws a clear distinction ... between the legislative, executive and judicial functions of Government of the Commonwealth".

296. In a passage, some significance of which will appear below, Dixon J said in Victorian Stevedoring and General Contracting Co Pty Ltd v Dignan [1931] HCA 34; (1931) 46 CLR 73 at 96:

When they adopted the distribution of powers which they found in the Constitution of the United States, the framers of the Constitution of the Commonwealth of Australia were, of course, by no means unaware of the significance given to the distribution and of the consequences flowing from it. But an independent consideration of the provisions of the Commonwealth Constitution unaided by any such knowledge cannot but suggest that it was intended to confine to each of the three departments of government the exercise of the power with which it is invested by the Constitution, the doing of that which can be done in virtue only of the possession of such a power. The arrangement of the Constitution and the emphatic words in which the three powers are vested by secs 1, 61 and 71 combine with the careful and elaborate provisions constituting or defining the repositories of the respective powers to provide evidence of the intention with which the powers were apportioned and the organs of government separated and described.

297. The separation of the legislative and executive powers is not so pure because of the system of representative government which requires Ministers of the Crown, although members of the executive branch of government, to sit in and be part of the legislature.

298. The High Court has, however, been quite strict in enforcing the separation of judicial power from executive or legislative power, invalidating attempts to confer judicial power on non-judicial bodies (R v Kirby; Ex parte Boilermakers' Society of Australia [1956] HCA 10; (1956) 94 CLR 254) and attempts to confer executive power on judicial bodies (Wilson v Minister for Aboriginal and Torres Strait Islander Affairs [1996] HCA 18; (1996) 189 CLR 1).

299. The doctrine, however, does not apply to the States. This was decided in cases such as Clyne v East (1967) 68 SR(NSW) 385 at 395, 402; Kotsis v Kotsis [1970] HCA 61; (1970) 122 CLR 69 at 76; Building Construction Employees and Builders' Labourers Federation of NSW v Minister for Industrial Relations (1986) 7 NSWLR 372 at 381 (Street CJ), 400 (Kirby P), 407 (Glass JA), 411 (Mahoney JA), 419 (Priestley JA); Love v Attorney-General (NSW) (1990) 169 CLR 307 at 319.

300. All the judges in Kable v Director of Public Prosecutions for the State of New South Wales [1996] HCA 24; (1996) 189 CLR 51 (Kable) affirmed this position: at 66-7 (per Brennan CJ), 77-8 (per Dawson J), 92 (per Toohey J), 101-2, 104 (per Gaudron J), 109-10 (per McHugh J), 132-7 (per Gummow J). McHugh J said (at 109-10):

I can see nothing in the New South Wales Constitution nor the constitutional history of the State that would preclude the State legislature from vesting legislative or executive power in the New South Wales judiciary or judicial power in the legislature or the executive. Nor is the federal doctrine of the separation of powers - one of the fundamental doctrines of the Constitution - directly applicable to the State of New South Wales. Federal judicial power may be vested in a State court although that court exercises non-judicial as well as judicial functions. Moreover, when the Parliament of the Commonwealth invests the judicial power of the Commonwealth in State courts pursuant to s 77(iii) of the Constitution, it must take the State court as it finds it. This is because the Constitution recognises that the jurisdiction, structure and organisation of State courts and the appointment, tenure and terms of remuneration of judges of State courts is not a matter within the legislative power of the federal Parliament. But in my opinion none of the foregoing considerations means that the Constitution contains no implications concerning the powers of State legislatures to abolish or regulate State courts, to invest State courts or State judges with non-judicial powers or functions, or to regulate the exercise of judicial power by State courts and judges.

[citations omitted]

301. As French CJ said in South Australia v Totani [2010] HCA 39; (2010) 242 CLR 1 at 45; [66]:

The absence of an entrenched doctrine of separation of powers under the constitutions of the States at Federation and thereafter does not detract from the acceptance at Federation and the continuation today of independence, impartiality, fairness and openness as essential characteristics of the courts of the States. Nor does the undoubted power of State Parliaments to determine the constitution and organisation of State courts detract from the continuation of those essential characteristics. It is possible to have organisational diversity across the Federation without compromising the fundamental requirements of a judicial system.

302. Thus, the States are able to vest judicial power in executive bodies. For example, s 184 of the Australian Consumer Law and Fair Trading Act 2012 (Vic) invests in an administrative tribunal, the Victorian Civil and Administrative Tribunal (VCAT), the settlement of civil disputes and grants VCAT power that are clearly judicial, such as the ordering of the payment of money, making declarations, ordering the rectification of a contract and making an order for the possession of land. It is clearly to be determined from Trust Company of Australia Ltd v Skiwing Pty Ltd [2006] NSWCA 185; (2006) 66 NSWLR 77 that administrative tribunals like VCAT are not courts. This is also the situation of the Board.

303. The territories of the Commonwealth, such as and including the Australian Capital Territory, are not States and the question that needs to be answered is whether the ACT is bound by the doctrine of the separation of powers as is the Commonwealth or whether it, like the States, is able to exercise some flexibility in this regard. Nevertheless, given the description of the polity that is the ACT in Capital Duplicators Pty Ltd v Australian Capital Territory (quoted above at [292]-[293]), the description of the position of NSW by McHugh J in Kable (quoted above at [300]) seems equally applicable to the ACT.

304. In 1999, D Mossop, "The Judicial Power of the Australian Capital Territory" [1999] FedLawRw 2; (1999) 27 Federal Law Review 19 at 27 could write:

The orthodox position is that the judicial power of the ACT is not the judicial power of the Commonwealth, or at least not subject to the same restraints as the judicial power of the Commonwealth. As pointed out above, that position is under challenge. However, as the authorities stand the starting point must be that there is no separation of powers arising from the Commonwealth Constitution that applies to Territory courts.

305. Mr Mossop referred to the structure of the Self-Government Act which made a division between legislative, executive and judicial power in Parts IV, V and VA respectively of that Act, but argued that, despite that, there was no "strict separation of powers" because:

(1) there was no express vesting of legislative, executive or judicial power in the respective branches of government under the Self-Government Act as it then was in ss 1, 61 and 71 of the Australian Constitution (cf Kable at 77 per Dawson J);

(2) there was no antecedent law that suggested a vesting of judicial power in ACT courts as had resulted in the Privy Council finding, in Lyanange v The Queen [1967] 1 AC 259, a separation of power despite the absence of express vesting in the Ceylon Constitution; and

(3) ACT courts have for many years exercised non-judicial power, most clearly under s 11 of the now repealed City Area Leasing Ordinance 1935 (ACT) (a power recognised as non-judicial by Brennan CJ in Kable at 67) and, in addition, the ACT legislature has relied on the absence of this doctrine to invest tribunals, such as the Tenancy Tribunal (Tenancy Tribunal Act 1994 (ACT), ss 33, 61), the Residential Tenancies Tribunal (Residential Tenancies Tribunal Act 1997 (ACT) s 115) and the Discrimination Tribunal (Discrimination Act 1991 (ACT) s 72), with judicial powers.

306. I note that, more recently, the ACT Civil and Administrative Tribunal (the ACAT) has been invested with judicial functions, including a civil disputes jurisdiction similar to that of VCAT. See ss 16-8 and 22 of the ACT Civil and Administrative Tribunal Act 2008 (ACT). That such power has been granted does not mean, of course, that it has been done validly.

307. The position of the territories of the Commonwealth, including their courts, has, however, come under continuing consideration by the High Court and some of the long-decided approaches are being reconsidered. Thus, for example, the Court has held in Wurridjal v Commonwealth [2009] HCA 2; (2009) 237 CLR 309 that the just terms requirement of s 51(xxxi) of the Australian Constitution applied to laws of the Commonwealth Parliament providing for the acquisition of property in the Northern Territory, overruling Teori Tau v Commonwealth [1969] HCA 62; (1969) 119 CLR 564. No doubt there will be further development as what has been described as an "integrationist approach" to s 122 of the Australian Constitution (see Wurridjal v Commonwealth at 345; [48] (per French CJ)) is explored and developed.

308. As at 2010, however, a very helpful summary of the High Court's jurisprudence with respect to territory courts is provided in the careful and thoughtful analysis of the issue by James Stellios, in J Stellios, The Federal Judicature: Chapter III of the Constitution (LexisNexis Butterworths, 2010) at 459-60; [8.105], as follows:

High Court jurisprudence has now reached a point where the following propositions are established:

• that Territory courts, whether created by Commonwealth legislation or subordinate territory legislation, are not federal courts. In other words, the source of the legislative authority for creating Territory courts is s 122 of the Constitution, not Ch III (Re Governor, Goulbourn Correctional Centre; Ex parte Eastman (1999) 200 CLR 322; Spratt v Hermes [1965] HCA 66; (1965) 114 CLR 226; Capital TV and Appliances Pty Ltd v Falconer [1971] HCA 10; (1971) 125 CLR 591);
• that judges of Territory courts are not federal judges whose appointment and tenure have to comply with the requirements in s 72 of the Constitution (Re Governor, Goulbourn Correctional Centre; Ex parte Eastman (1999) 200 CLR 322);
• that Territory courts can exercise federal jurisdiction (Blunden v Commonwealth (2003) 218 CLR 330; North Australian Aboriginal Legal Aid Service Inc v Bradley [2004] HCA 31; (2004) 218 CLR 146; John Pfeiffer Pty Ltd v Rogerson [2000] HCA 36; (2000) 203 CLR 503);
• that an exercise of power under s 122 can trigger federal jurisdiction under s 76(i), which can be vested in federal courts under s 77(i) (Northern Territory v GPAO (1999) 196 CLR 553);
• to the extent that Territory courts exercise federal jurisdiction, they are 'courts exercising federal jurisdiction' from which an appeal can be taken to the High Court under s 73(ii);
• that appeals from Territory courts not exercising federal jurisdiction are not entrenched by s 73(ii), but Parliament has the power under s 122 to provide for them (Porter v The King; Ex parte Yee [1926] HCA 9; (1926) 37 CLR 432). Although the High Court might be exercising appellate jurisdiction when hearing such an 'appeal' (as contemplated in Porter), it may alternatively be the case that it exercises original jurisdiction under s 76(ii) ...;
• that because Territory courts can exercise the judicial power of the Commonwealth, the Kable principles apply to them (North Australian Aboriginal Legal Aid Service Inc v Bradley [2004] HCA 31; (2004) 218 CLR 146).

• trial for a criminal offence created by a law of a Territory is not trial for an offence against "a law of the Commonwealth" and so s 80 of the Constitution has no application to Territory courts (R v Bernasconi [1915] HCA 13; (1915) 19 CLR 629).

• ACT courts do not always exercise federal jurisdiction (Capital TV and Appliances Pty Ltd v Falconer [1971] HCA 10; (1971) 125 CLR 591 (Falconer)).

310. While it is accepted by the parties to these proceedings that the Board is not a court, Mr Lewis submitted that judicial power exercised by the ACT is federal judicial power which can only be conferred on a court. The defendants disagree.

311. Mr Lewis submitted that recent decisions of the High Court had modified some of the principles that I have set out above (at [307]-[308]) relevant to his argument.

312. In the first place, reference was made to Kruger v Commonwealth [1997] HCA 27; (1997) 190 CLR 1 where the power of the Chief Protector of Aboriginals was held unanimously not to be judicial power. The justices, however, expressed views on whether, if the power had been judicial, it could have been conferred on the executive. While Brennan CJ, Dawson and McHugh JJ thought that it could be so conferred, the other members took a different view.

313. Toohey J said (at 84) that "[t]he argument in support of the proposition that Ch III of the Constitution does extend to the Territories is very persuasive". Gaudron J said (at 109) that

there is no convincing reason for treating the words '[t]he judicial power of the Commonwealth' in s 71 of the Constitution as not extending to the determination of justiciable conflicts by application of laws enacted by the Parliament of the Commonwealth pursuant to s 122.

firm view that s 122 is not disjoined from s 116. Also, were the matter res integra, it would be my tentative view, as regards the Territory, that the provisions of Ch III are applicable but that existing authority in this Court would require reconsideration before that conclusion could be reached and applied.

315. That reconsideration may be underway, but has not been concluded.

316. The present position seems to be as follows. In LNC Industries Ltd v BMW (Australia) Ltd [1983] HCA 31; (1983) 151 CLR 575 at 578, Gibbs CJ, Mason, Wilson, Brennan, Deane and Dawson J said:

Before the Court is an application for leave to appeal to Her Majesty in Council from a judgment given in the Supreme Court of New South Wales by Rogers J in favour of the defendant ... The question which now falls for determination is whether the decision of Rogers J was made in the exercise of federal jurisdiction ... The decision will have been made in the exercise of federal jurisdiction if the proceeding before Rogers J was a matter 'arising under any laws made by the Parliament' within s 76(ii) of the Constitution: see s 39(2) of the Judiciary Act.

317. See also R v Commonwealth Court of Conciliation and Arbitration; Ex parte Barrett [1945] HCA 50; (1945) 70 CLR 141; Ruhani v Director of Police [2005] HCA 42; (2005) 222 CLR 489.

318. Whether a matter arose under any laws made by the Parliament has been considered. In Federal Capital Commission v Laristan Building & Investments Co Pty Ltd [1929] HCA 36; (1929) 42 CLR 582 at 585-6, Dixon J said:

It may well be that all claims of right arising under the law in force in the Territory come within this description, because they arise indirectly as the result of the Seat of Government Acceptance Act 1909 (see sec 6) and the Seat of Government (Administration) Act 1910 (see secs 4 to 7 and 12). But it is at least clear that a claim to a right conferred by or under ordinances made by the Governor-General in Council under sec 12 of the Seat of Government (Administration) Act is a matter arising under an enactment of the Parliament.

319. This passage led Professor Leslie Zines, in Cowen and Zines's Federal Jurisdiction in Australia (Federation Press, 3rd ed, 2002) (Federal Jurisdiction in Australia) at 183, to comment:

If Dixon J's reasoning is accepted it is difficult to conceive of any matter that may be tried in a Territorial court, in pursuance of jurisdiction of the sort conferred on Supreme Courts of the Territories, which does not arise under an Act of Parliament. All the common law (including private international law) operating in a Territory has a statutory basis.

320. The same passage appeared in the second edition and was referred to with apparent approval by Gummow J in Kruger v Commonwealth at 169.

321. The defendants, however, submit that the position of a self-governing Territory, such as the ACT, is different and referred to what Brennan, Deane and Toohey JJ said in Capital Duplicators Pty Ltd v Australian Capital Territory at 282, namely:

The Legislative Assembly of the Australian Capital Territory has been erected to exercise not the Parliament's power but its own, being powers of the same nature as those vested in the Parliament.

I agree with Brennan, Deane and Toohey JJ, for the reasons that their Honours give, that the Business Franchise Act was, in terms used in Cobb & Co Ltd v Kropp [[1967] 1 AC 141 at 157], enacted pursuant to 'a new legislative power' by a 'separate legislative body armed with general legislative authority' and, thus, cannot be regarded as an exercise of the legislative power of the Commonwealth.

323. To the same effect was what Mason CJ, Deane, Dawson and McHugh JJ said in Svikart v Stewart [1994] HCA 62; (1994) 181 CLR 548 at 562 as follows:

The view was taken that a legislature created to confer self-government upon a Territory - in that case the Australian Capital Territory - must be regarded as a body separate from the Commonwealth Parliament, so that the exercise of its legislative power, although derived from the Commonwealth Parliament, is not an exercise of the Parliament's legislative power.

324. See also R v Toohey; Ex parte Northern Land Council [1981] HCA 74; (1981) 151 CLR 170 at 279 where Wilson J said:

Section 6 [of the Northern Territory (Self-Government) Act 1978 (Cth)] invests the Legislative Assembly with power to make laws for the peace, order and good government of the [Northern] Territory, a power which in my opinion, subject to the limits provided by the Act, is a plenary power of the same quality as, for example, that enjoyed by the legislatures of the States. The constitution of the Territory as a self-governing community is no less efficacious because it emanates from a statute of the Parliament of the Commonwealth than was the constitution of the Australian colonies as self-governing communities in the nineteenth century by virtue of an Imperial statute: cf Hodge v The Queen [(1883) 9 App Cas 117]; Powell v Apollo Candle Co [(1885) 10 App Cas 282].

325. The ACT Legislative Assembly is not, therefore, either a delegate of the Commonwealth nor exercising its legislative power. In that sense, it cannot be said when vesting judicial power in the ACT courts that it is investing federal judicial power.

326. The position is, however, a little more complicated than this, for s 48A of the Self- Government Act is in the following terms:

(1) The Supreme Court is to have all original and appellate jurisdiction that is necessary for the administration of justice in the Territory.

(2) In addition, the Supreme Court may have such further jurisdiction as is conferred on it by any Act, enactment or Ordinance, or any law made under any Act, enactment or Ordinance.

(3) The Supreme Court is not bound to exercise any powers where it has concurrent jurisdiction with another court or tribunal.

327. Section 48A(1) of the Self-Government Act establishes, by an act of the Commonwealth Parliament, the original and appellate jurisdiction of the Supreme Court. This, on the basis of LNC Industries Ltd v BMW (Australia) Ltd, could be regarded as a vesting of federal jurisdiction. It would, however, be a vesting under s 122 of the Australian Constitution for the plenary power so vested would otherwise be beyond the scope of the enumerated powers in s 51 of the Australian Constitution.

328. Significant, however, is s 48A(2) of the Self-Government Act which is a vesting of the jurisdiction which is made by, inter alia, the separate legislative power of the ACT Legislative Assembly, thereby apparently making such a grant of jurisdiction a grant of federal jurisdiction.

329. Were that not so, there would be other consequences. As Professor Zines points out in Federal Jurisdiction in Australia at 182:

If matters arising under an enactment of a Territorial legislature do not come within s 76(ii) because they do not arise under laws made by the Parliament, those matters are not, as such, determined in federal jurisdiction and, therefore, s 73 does not guarantee an appeal. On the other hand, s 73 expressly provides for appeals from all judgments of the Supreme Courts of the States.

330. See also Kruger v Commonwealth at 175 (Gummow J).

331. After careful analysis of the authorities, Professor Zines (in Federal Jurisdiction in Australia at 186) summarised his views relevantly as follows:

...

(2) A matter arising under a law made by Parliament in pursuance of s 122 is a matter 'arising under any law made by the Parliament' within the meaning of s 76(ii) and jurisdiction may be conferred on a federal court.

(3) It is likely that the jurisdiction possessed by a Territorial court in respect of matters arising under Commonwealth laws authorised by s 122 is federal jurisdiction within the meaning of ss 71 and 73 of the Constitution. The appellate jurisdiction of the High Court under s 73 is, therefore, applicable.

(4) It is uncertain whether (a) matters arising under laws made by the legislature of a self-governing Territory and (b) matters arising under the common law in any Territory come within the scope of s 76(ii). The policy arguments used to support (3), above, namely the unified nature of the legal and judicial system and the establishment of a national common law under the High Court, would require affirmative answers to both these questions.

[footnotes omitted]

It may be that the High Court's reference to the common law of Australia, a unified common law in Farrah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22; (2007) 230 CLR 89 at 152; [135] re-inforces the reference to the "unified nature of the legal and judicial system" referred to in (4) as supporting the views set out in (3).

332. The arguments propounded on behalf of Mr Lewis are powerful and persuasive. They are clearly supported by a strongly discernible trend in the High Court's jurisprudence in this area to favour an "integrationist approach" to s 122 of the Australian Constitution which would undermine or set aside the "disparate and non-federal" (Attorney-General of the Commonwealth v The Queen [1957] HCA 12; (1952) 95 CLR 529 at 545) approach to that section and its powers, on which much of the earlier jurisprudence has been based.

333. I note, however, that such a finding would be significantly disruptive of much of the arrangements for the administration of justice in the ACT which has been based on what Mr Mossop described as "[t]he orthodox position". Such restraint where decisions of long-standing have been acted upon was referred to by Gaudron J in Northern Territory v GPAO (1999) 196 CLR 553 at 603; [127]. While that cannot stand in the way of what I conceive the law nevertheless to be, it perhaps imposes an obligation to be quite certain of that and take particular care in coming to a conclusion that would have such significant practical and potentially disruptive consequences.

334. Having given the matter anxious and careful thought and not without some hesitation, I am of the view that the current state of authority is that there is no applicable doctrine of the separation of powers flowing from the Australian Constitution that applies in the ACT as an independent self-governing territory, and that, while the ACT courts may be invested with federal jurisdiction, as are the State courts, the judicial power of the ACT is not the judicial power of the Commonwealth. I make this finding for four reasons.

335. In the first place, it seems to me that the laws by which ACT courts are created are exercised under s 122 and not s 71 of the Constitution. This distinguishes them from federal courts which owe their existence to the implication from s 71(i), as there is no express power to create such courts in the Australian Constitution. Given the long established principle that Chapter III of the Australian Constitution is the exclusive repository of the judicial power of the Commonwealth (R v Kirby; Ex parte Boilermakers' Society of Australia at 270, 290; In Re Judiciary and Navigation Acts [1921] HCA 20; (1921) 29 CLR 257 at 265), the creation of courts under s 122 of the Australian Constitution cannot be an exercise in judicial power.

336. This source of the authority for the creation of the ACT courts distinguishes them from federal courts which are bound by the strict doctrine of separation of powers effected by the Australian Constitution. See Stephen McDonald "Territory Courts and Federal Jurisdiction" [2005] FedLawRw 3; (2005) 33(1) Federal Law Review 57 at 90.

337. Secondly, it appears to me that what might be suggested is the principle that is stated in Federal Capital Commission v Laristan Building & Investment Co Pty Ltd as set out above (at [318]) is not relevant to self-governing territories. Because of the clear establishment in those situations of a separate polity with plenary powers (subject, of course, to their own constitutional limitations, as, for example, are seen in the Self-Government Act), the powers exercised by the self-governing territorial legislature are those of the body politic established thereby and not those of the Commonwealth government.

338. All the authorities on which Mr Lewis relied were cases in which legislative instruments of the Commonwealth were involved, not of self-governing polities; none were of a self-governing legislature. There are suggestions that this makes a difference. For example, relying expressly upon Capital Duplicators Pty Ltd v Australian Capital Territory, Gaudron J in Kruger v Commonwealth said (at 109):

In my view, there is no convincing reason for treating the words '[t]he judicial power of the Commonwealth' in s 71 of the Constitution as not extending to the determination of justiciable conflicts by application of laws enacted by the Parliament of the Commonwealth pursuant to s 122. However, it may be that different considerations apply to laws enacted by the legislature of a self-governing Territory.

[citation omitted]

339. This reservation was echoed by Gummow and Hayne JJ in Re Governor, Goulburn Correctional Centre; Ex parte Eastman (1999) 200 CLR 322 at 349; [69].

340. In Northern Territory v GPAO, Gaudron J expressed the view (at 603; [126]) that a court created simply to exercise jurisdiction in a Territory with respect to matters arising in that Territory "is not a federal court for the purposes of s 71 because its jurisdiction is confined within the limits of s 122".

341. That matters arising under laws made by a self-governing legislature are not matters that arise under laws of the Commonwealth is, as was pointed out by the defendants, consistent with the approach taken to Article III(2) of the United States Constitution, on which s 76(ii) of the Australian Constitution is based. That this is so was pointed out in John Quick and Robert Garran, The Annotated Constitution of the Australian Commonwealth (Legal Books reprint, 1976) 797. The defendant's submission was:

Article III(2) of the Constitution ... provides that the 'judicial power shall extent to all cases ... arising under ... the laws of the United States'. That requirement is picked up in statutes investing certain federal and other courts with jurisdiction. In Puerto Rico v Russell & Co [1933] USSC 60; (1933) 288 US 476 (a decision referred to by Latham CJ in R v Commonwealth Court of Conciliation and Arbitration; Ex parte Barrett [1945] HCA 50; (1945) 70 CLR 141 at 153) the Supreme Court of the United States held that a claim to recover taxes levied under a statute made by the Puerto Rican legislature was not a claim 'arising under' laws of the United States. This was notwithstanding the fact that the legislature of Puerto Rico was established under a law of the Congress. A similar approach has been taken in relation to cases arising under laws of other self-governing territories such as Guam: see Republican Party of Guam v Gutierrez [2002] USCA9 32; (2002) 277 F 3d 1086 and the Virgin Islands: see Club Comanche Inc v Government of Virgin Islands [2002] USCA3 12; (2002) 278 F 3d 250.

342. Thirdly, the defendants submit that matters arising under laws made by the Legislative Assembly do not, in fact, "arise under" a law made by the Commonwealth Parliament. The link through the Self-Government Act is, they submit, insufficient for that conclusion.

343. In the recent decision of North Australian Aboriginal Legal Service Inc v Bradley [2004] HCA 31; (2004) 218 CLR 146 at 163; [28], McHugh, Gummow, Kirby, Hayne, Callinan and Heydon JJ said:

The first [step of the appellant's argument] is that a court of the Territory may exercise the judicial power of the Commonwealth pursuant to investment by laws made by the Parliament. That proposition, to which there was no demurrer by the Territory or by the Attorney-General of the Commonwealth who intervened in this Court, is supported by the citations of authority by Gaudron J in the above passage from Ebner. It should be accepted.

344. The passage from Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 at 363; [81] by Gaudron J is as follows:

Impartiality and the appearance of impartiality are necessary for the maintenance of public confidence in the judicial system. Because State courts are part of the Australian judicial system created by Ch III of the Constitution and may be invested with the judicial power of the Commonwealth, the Constitution also requires, in accordance with Kable v Director of Public Prosecutions (NSW) [(1996) [1996] HCA 24; 189 CLR 51], that, for the maintenance of public confidence, they be constituted by persons who are impartial and who appear to be impartial even when exercising non-federal jurisdiction. And as courts created pursuant to s 122 of the Constitution may also be invested with the judicial power of the Commonwealth, it should now be recognised, consistently with the decision in Kable, that the Constitution also requires that those courts be constituted by persons who are impartial and who appear to be impartial.

[footnotes omitted]

345. The defendants point out that these statements make it clear that Territory courts do not invariably exercise federal judicial power (see the reference to "may exercise").

346. Laws made by the Territory legislature are not laws of the Commonwealth for the purpose of s 76(ii) of the Australian Constitution.

347. In the same way, the preservation of the Constitution's parliamentary powers and laws of the States do not make those laws and powers matters "arising under" the Australian Constitution. They would not, for example, be amenable to Federal parliamentary power to provide original jurisdiction for the High Court in respect of these matters under s 76(i) of the Australian Constitution.

348. While such strong statements are to be carefully respected, I do note that there are what may be relevant differences between the Northern Territory (which was the polity under consideration in North Australian Aboriginal Legal Service Inc v Bradley) and the ACT. There is, in the Northern Territory (Self-Government) Act 1978 (Cth), for example, no section equivalent to s 48A of the Self-Government Act.

349. Indeed, the Supreme Court of the Northern Territory was created by the Supreme Court Act 1979 (NT), though provisions in it, and in the Northern Territory Supreme Court (Repeal) Act 1979 (Cth), deemed references to the court created by the Northern Territory Supreme Court Act 1961 (Cth) and proceedings in the Court pending at the date of the relevant legislation to be to the Court and proceedings in the Court created by the 1979 Act. Thus, the court which the High Court was considering was a creature of the remit to the Northern Territory Legislative Assembly of a power to make laws for the peace, order and good government of the Territory. As presently advised, however, it does not seem to me that this is a relevant difference and does not render the submissions of the defendants, which I accept, irrelevant or distinguishable.

350. Fourthly, Mr Lewis submitted that, unless I could distinguish Falconer, I would be bound by it. I accept that proposition. This would, it was submitted, would be sufficient to dispose of the argument on this basis. Mr Lewis submitted that Falconer was wrongly decided, which could be discerned from more recent statements of some members of the High Court, in cases such as those to which I have referred above.

351. Despite such references, and clearly the jurisprudence in relation to the judicial power of territory courts is in a state of flux, it is not for me to decide that Falconer was wrongly decided and the High Court, despite opportunities to do so, has not yet so decided.

352. As to distinguishing it, Mr Lewis submitted that because it was decided prior to self-government, with the transfer of responsibility for the ACT courts to the Legislative Assembly and the conversion of relevant Commonwealth acts and ordinance to enactments of the Legislative Assembly, effected by s 34 of the Self-Government Act, it no longer applied to the situation I now face.

353. It seems to me, however, that the effect of self-government is to re-inforce the approach in Falconer and the arguments that succeeded in that case. The power to create a territorial body politic must be found in s 122 of the Australian Constitution and this re-inforces the reasoning in Falconer.

354. Accordingly, I am satisfied that even were the powers of the Board to cancel periodic detention the exercise of a judicial power, contrary to my finding, then the Legislative Assembly has power to invest the Board with that jurisdiction. I shall make a declaration accordingly.

Does the grant of such power to the Board impair the institutional integrity of the ACT Supreme Court?

355. The third constitutional challenge by Mr Lewis was based on the assumption that this court is, and at least could be, invested with federal jurisdiction. Whether or not the legislative remit authorising a decision by the Board to cancel periodic detention is an exercise of judicial power, it is submitted that the grant of that power to an executive body such as the Board impairs the integrity of this Court as, at least, a potential repository of federal judicial power that the legislation providing that authority is invalid.

356. The source of this argument is the decision of the High Court in Kable.

357. As Kirby J observed in Baker v The Queen at 541; [74]:

The decision in Kable does not yield a clear, single statement of principle. There are differences in the way the judges in the majority express the implication of incompatibility (or repugnance) that led them severally to the conclusion that the Community Protection Act 1994 (NSW), in contest there, was constitutionally invalid.

358. His Honour went on (at 543; [82]) to suggest the following reconciliation of the differently expressed views:

The principle expounded in Kable was one of general operation, derived from the Constitution; from the integrated character of the Judicature, federal and State; from the peculiar arrangement for the vesting of federal jurisdiction in State courts; and from the role of this Court at the apex of the entire system. From these constitutional characteristics of the Australian Judicature, this Court derived the conclusion that a State Parliament may confer jurisdiction upon a State Supreme Court as it chooses, but only so far as that jurisdiction is not incompatible with the exercise of federal jurisdiction by such a court. As I said in Silbert v Director of Public Prosecutions (WA):

Kable holds that Ch III of the Constitution limits the power of State Parliaments to confer non-judicial functions or non-judicial characteristics on State courts that are incompatible with, or repugnant to, the core requirements of such courts as potential recipients of federal jurisdiction, as provided for in the Constitution. The core requirements referred to include those of the manifest independence and impartiality of the judiciary in the discharge of their functions. This includes independence from legislative directions over individual judicial decisions and in the findings of fact and law that are necessary to them.

[footnotes omitted]

359. By reference to the increasing number of cases which have referred to the "Kable doctrine", Brendan Lim, "Attributes and Attribution of State Courts - Federalism and the Kable Principle" (2012) 40 Federal Law Review 31 at 33-4, summarised the present position of the doctrine, writing:

Attempts at neat formulation, however, risk being either over- or under-inclusive. For now, it suffices to say that the principle disables legislatures from impairing the 'institutional integrity' of non-federal courts capable of receiving federal jurisdiction, whether impairment be inflicted by conferring an incompatible function, removing an essential function, altering impermissibly the court's composition, modifying repugnantly the court's procedures or processes, enlisting the court in service of political ends, or using incompatibly members of the court acting as personae designatae. The apparent reach of the principle so-stated should be tempered by recognition of the fact that, Kable itself aside, the High Court did not invalidate any statute in Kable grounds until 2009. Since then, the principle has been revived in a number of cases. The article seeks to understand not only the principle's substance, but also its waning and waxing over time.

It is uncontroversial that 'the source of [the Kable principle] is not the separation of powers', which has no constitutional basis in the states. As presently understood, however, the function of the principle is to protect from impairment those attributes of state courts that are said to be their 'defining characteristics', including impartiality, decisional independence, adherence to the open court principle and observance of procedural fairness. Identifying those attributes and their impairment shades into separation-of-powers analysis because it engages efforts to 'mark a court apart from other decision-making bodies'.

[footnotes omitted]

360. That the principle applies to the ACT Courts seems clear from what McHugh, Gummow, Kirby, Hayne, Callinan and Heydon JJ said in North Australian Aboriginal Legal Aid Service Inc v Bradley (at 163; [29]).

361. All the cases that have applied the Kable doctrine, however, have, as will be apparent from the summary above, concerned laws which have conferred functions or power on State or Territory Courts or dealt with the institutional arrangements for those courts. That is to say, they have not dealt with laws that deal with the other bodies within the administration of justice but which do not alter or impinge upon the actual conduct of the Court's business or the work of the judges that compose the courts.

362. In this case, Mr Lewis seeks to extend the principle to the granting of a power to another body which is said to impair the courts integrity while not directly affecting the conduct of the court itself. It is submitted for him that the work of the Board in cancelling periodic detention does infringe on the work of the ACT courts.

363. Thus, the fact that the Board cancels the periodic detention is said to have an effect on the institutional integrity of this Court. As Mr Lewis' submissions put the argument:

as a matter of logic, the reasoning underpinning Kable and its progeny must extend to a law that purports to confer on a non-judicial body a power, the exercise of would tend to undermine the independence of the State or Territory courts from executive and hence undermine their institutional integrity. That is, the Kable doctrine does not operate only in relation to laws that confer powers or functions in courts; it operates in relation to any law that might undermine the independence of court capable of exercising federal jurisdiction.

364. For this argument, Mr Lewis relied on what McHugh J had said in Kable (at 119) that the boundary of legislature power

is crossed when the vesting of those functions or duties might lead ordinary reasonable members of the public to conclude that the [Territory] court as an institution was not free of government influence in administering the judicial functions invested in the court.

365. The difficulty for Mr Lewis, however, is that there is here no "government interference", for the statute mandates the relevant outcome and the Board is merely the agent for the taking of the mandated step. Where there can be no discretion in the Board, it is difficult to see how there is "government interference".

366. Mr Lewis relied on the challenge to the South Australian Serious and Organised Crime (Control) Act 2008 (SA). At the time, only the decision of the Court of Appeal of South Australia, Totani v South Australia [2009] SASC 301; (2009) 105 SASR 244, striking down that legislation, had been made. It was to that decision reference was made in argument. Since then, the High Court has dismissed an appeal from that decision: South Australia v Totani.

367. In that case, the Act empowered the Magistrates Court to make control orders. Those orders, however, were dependent upon a declaration by the Attorney-General made on the application of the Commissioner for Police in relation to an organisation (defined in s 3 of the Act) that the Attorney-General was satisfied that

(a) members of the organisation associate for the purpose of organising, planning, facilitating, supporting or engaging in serious criminal activity; and

(b) the organisation represents a risk to public safety and order in this State.

See South Australia v Totani at 23; [12] per French CJ.

368. Upon that declaration, the Magistrates Court was then required under s 14(1) of the Act to make a control order if satisfied that a person was a member of the organisation.

369. Given the dependence of the court on the declaration of the Attorney-General, a majority of the Court held, at 52; [82] (per French CJ), 67; [149] (per Gummow J), 160; [436] (per Crennan and Bell JJ) and 173; [481] (per Kiefel J) that the legislation

authorises the executive to enlist the Magistrates Court to implement decisions of the executive in a manner incompatible with that Court's institutional integrity.

See also at 52; [82] (per French CJ) and 92-3; [236] (per Hayne J).

370. There was no capacity for the court to go behind the declaration made by the Attorney-General. Bleby J in the South Australian Court of Appeal, with whom Kelly J agreed, pointed out (at 280; [157]) that it was

the integration of the administrative function with the judicial function to an unacceptable degree which compromises the institutional integrity of the court.

Section 14(1) represents a substantial recruitment of the judicial function of the Magistrates Court to an essentially executive process. It gives the neutral colour of a judicial decision to what will be, for the most part in most cases, the result of executive action. That executive action involves findings about a number of factual matters including the commission of criminal offences. None of those matters is required by the SOCC Act to be disclosed to the Court, nor is the evidence upon which such findings were based. In some cases the evidence, if properly classified as 'criminal intelligence', would not be disclosable. Section 14(1) impairs the decisional independence of the Magistrates Court from the executive in substance and in appearance in areas going to personal liberty and the liability to criminal sanctions which lie at the heart of the judicial function.

372. The submission of Mr Lewis was that, as in South Australia v Totani, the Board here was, though after, not before, the making of the relevant court order, being given "impermissible control over the order of the court".

373. Mr Lewis also relied on International Finance Trust Co Ltd v New South Wales Crime Commission [2009] HCA 49; (2009) 240 CLR 319. Section 10 of Criminal Assets Recovery Act 1990 (NSW) required a court to receive an ex parte application, but also to hear and determine it ex parte if the Executive, in the form of the New South Wales Crime Commission, so sought.

In my opinion the power conferred on the Commission to choose, in effect, whether to require the Supreme Court of New South Wales to hear and determine an application for a restraining order without notice to the party affected is incompatible with the judicial function of that Court. It deprives the Court of the power to determine whether procedural fairness, judged by reference to practical considerations of the kind usually relevant to applications for interlocutory freezing orders, requires that notice be given to the party affected before an order is made. It deprives the Court of an essential incident of the judicial function. In that way, directing the Court as to the manner of the exercise of its jurisdiction, it distorts the institutional integrity of the Court and affects its capacity as a repository of federal jurisdiction.

The preceding conclusion involves a judgment about the quality of the Executive's intrusion, sanctioned by the legislature, into the judicial function ...

Nor is it to the point to say that the particular intrusion upon the judicial function authorised by s 10 is confined in scope and limited in effect both in time and by the facility to seek ancillary or exclusion orders. Such a calculus will not accord sufficient significance to the quality of the intrusion upon the judicial function. An accumulation of such intrusions, each 'minor' in practical terms, could amount over time to death of the judicial function by a thousand cuts.

375. Gummow and Bell JJ said (at 366-7; [97]-[98]):

The Supreme Court is conscripted for a process which requires in substance the mandatory ex parte sequestration of property upon suspicion of wrong doing, for an indeterminate period, with no effective curial enforcement of the duty of full disclosure on ex parte applications. In addition the possibility of release from that sequestration is conditioned upon proof of a negative proposition of considerable legal and factual complexity.

Section 10 engages the Supreme Court in activity which is repugnant in a fundamental degree to the judicial process as understood and conducted throughout Australia.

376. Heydon J, the other member of the majority, agreed with the orders proposed by Gummow and Bell JJ. His Honour said (at 385-8; [155]-[156], [159] and [165]):

If there is no procedure by which the person subject to a s 10(2) restraining order made ex parte may approach the Court to have it set aside once that person has learnt of the order, the effect of s 10 is to compel the supreme Court of New South Wales to engage in activity which is repugnant to the judicial process in a fundamental degree.

The element which is repugnant is not the grant of a power to make restraining orders ex parte. That is a very well-known aspect of Australian judicial process in relation to injunctions, although the power should only be exercised in exceptional or special cases, where there is some special hazard or cause of urgency. A risk of dissipation of assets in such a fashion as to frustrate the objects of the law can be in that category

...

The repugnance arises if the legislation ensures that there is no facility for the Court to entertain an application to dissolve an ex parte restraining order once the defendant has received notice of its grant pursuant to s 11(2). If that facility existed, the potential injustice flowing from the preceding three characteristics of s 10 would be nullified or mitigated. But if it does not exist, there is the potentiality for extreme injustice in a fashion repugnant to the judicial process in a fundamental degree.

...

In short, the strict, confined, specific and tight regulation of the powers granted excludes recourse by analogy or otherwise to the general power and traditional procedures of the Supreme Court in its administration of equitable relief. The 'reasonably plain intendment' of the legislation is that Pt 2 does not, in this respect at least, take the Supreme Court of New South Wales as it finds it.

[footnotes omitted]

377. Application of these principles, it was submitted for Mr Lewis, meant that in the case of the cancellation of periodic detention, the Executive was interfering with the order of the Court and, therefore, impermissibly undermining its institutional integrity.

378. The defendants pointed out, however, that what was involved here was quite different from those cases in which the Kable doctrine had been applied, which was where the court or judges were directly affected in their judicial conduct or proceedings. Here was the reverse, namely the conferring of a power away from the court.

379. To some extent, this harks back to the position referred to earlier (at [242]-[248]) where the Executive may ameliorate a sentence by remissions, parole, release on licence and pardon. Neither authority nor principle suggest that these types of executive action interfere with the institutional integrity of a court. Yet, they actually also involve a discretion on the part of the Executive whereas the cancellation of periodic detention does not; the requirement of cancellation by the Board is automatic where there has been a failure to attend to perform periodic detention on two or more occasions.

380. There is some suggestion of authority in this area. In Crump v New South Wales, the High Court had to consider whether s 154A of the Crimes (Administration of Sentences) Act 1999 (NSW) was valid.

381. Briefly, the circumstances were as follows. In 1974, Taylor J in the Supreme Court of New South Wales sentenced Mr Crump to life imprisonment for murder. In 1989, a statute permitted a prisoner such as Mr Crump to apply for a re-sentencing to impose a minimum term and an additional term. Mr Crump applied; the minimum term would permit him to apply for parole on its expiry.

382. In 1997, McInerney J re-sentenced Mr Crump and set a minimum term of thirty years. That would have permitted Mr Crump to apply for parole to commence on or after 13 November 2003.

383. As from 19 July 2001, however, s 154A commenced which prevented the grant of parole except in specific circumstances such as where the prisoner was dying or permanently incapacitated. This validity of the section was challenged; it was submitted that the section was an interference with a judicial order, thereby interfering by legislative action with the rights and entitlements created by the court order made by McInerney J.

384. The court unanimously dismissed Mr Crump's claim. The decision is not, of course, directly in point because the plaintiff's case attacked what was said to be a legislative effect on the order of the court.

385. Some of the statements by the court are, however, apposite. In the first place, the claim of Mr Crump was said by French CJ (at 18; [33]) to raise "large questions", including

• whether a law of a State altering a judicial decision would be purported exercise of judicial power by the legislature of the State;
• whether the State Constitution authorises the exercise of judicial power by the legislature;
• whether, in any event, the State legislature is prevented from enacting such a law by an implication drawn from the provisions of Ch III of the Constitution.

386. Reference in the second dot point was made to Kable and, perhaps, all three raise questions which involve consideration of the Kable doctrine. His Honour did not consider it necessary to consider these "large questions". I take that description to mean that, despite the reference in the submissions on behalf of Mr Lewis, the question of whether the logical "reverse" of the Kable doctrine follows is by no means certain.

387. Further, however, it seems to me that a number of comments made are applicable to the present case. Thus, French CJ said (at 19; [34])

The exercise of judicial power by McInerney J was complete when the order [determining the minimum period] was made.

388. This is consistent with what was said by Gummow, Hayne, Heydon, Crennan and Kiefel JJ in Elliott v The Queen [2007] HCA 51; (2007) 234 CLR 38 at 41-2; [5]:

Subject to the appellate system established by the Criminal Appeal Act, the exercise of judicial power with respect to the trials upon indictment of Elliott and Blessington was spent upon the subsequent imposition of the sentences upon them. The controversy represented by the indictment had been quelled and, allowing for any applicable statutory regime, the responsibility for the future of the appellants passed to the executive branch of the government of the State.

389. On the description of the regime that is periodic detention, that description applies here. On the sentencing of Mr Lewis to prison and the setting of a period for periodic detention, the exercise of judicial power was complete.

390. To paraphrase the words of Gummow, Hayne, Crennan, Kiefel and Bell JJ in Crump v New South Wales (at 26; [59]), the responsibility of the Executive branch of government for the future of Mr Lewis after sentence was imposed on him remained regulated by the Sentence Administration Act and implemented, as regularly are sentences orders made by all courts.

391. While there are relevant differences between parole and periodic detention, it seems to me that, again, I can appropriately paraphrase in terms applicable to this case from what their Honours said in Crump v New South Wales (at 26; [60]), namely that as a matter neither of form nor substance did the sentences imposed on Mr Lewis create any right or entitlement in him to serve his sentence of imprisonment by weekend detention if he failed to attend on two or more occasions for periodic detention. Thus, the cancellation did not interfere with the court order, it implemented it.

392. It seems to me that the periodic detention regime established by the Sentence Administration Act does not impair the institutional integrity of the ACT Courts and, at least so far as the automatic cancellation of periodic detention for a failure to attend for two or more periodic detention periods is concerned, is valid. I expressly decline to consider the position in relation to those provisions which empower the Board to cancel periodic detention as a matter of discretion, though they may well also be valid. They were not before me and not argued.

393. In conclusion, I have found that ss 68(2)(f), 69, 79 and 82 of the Sentence Administration Act are valid and I will so declare.

394. I have, however, found that the decision to cancel the periodic detention of Mr Lewis was flawed and it should be set aside and the decision remitted for reconsideration. Whether s 75(5) of the Sentence Administration Act applies is, of course, a matter for the Board.

395. I shall make orders to give effect to these conclusions.

I certify that the preceding three hundred and ninety-five (395) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Acting Chief Justice Refshauge.

Counsel for the Plaintiff: Mr F J Purnell SC and Mr S Gill (2, 3 July 2009), Mr P J Hanks QC and Ms K Walker (16 November 2009)

Counsel for the Defendants: Mr A Robertson SC and Mr D J C Mossop (2, 3 July 2009) and Dr M A Perry QC and Mr D J C Mossop (16 November 2009)

Solicitor for the Defendants: ACT Government Solicitor